Rachsteinv.Sakon

Connecticut Superior Court, Judicial District of New Britain at New BritainNov 15, 2006
2006 Ct. Sup. 21197 (Conn. Super. Ct. 2006)

No. HHB CV 02 0515919 S

File Date: November 15, 2006.


MEMORANDUM OF DECISION


The defendant/counterclaim plaintiff, John Sakon's (Sakon) bill of costs (#195) and the plaintiff/counterclaim defendant, Rachstein, Norman Buchman, LLP's (Rachstein, LLP) objection thereto (#196) appeared on the short calendar for October 30, 2006. After consideration, the court issues this memorandum of decision.

I Background Rachstein, LLP's complaint in this action, dated July 2, 2002, sought to enforce a Massachusetts judgment entered against Sakon. Rachstein, LLP was seeking to recover unpaid legal fees for services rendered by Rachstein, LLP in the course of its representation of Sakon in connection with negotiations with Shaw's Supermarkets, Inc., concerning a proposed supermarket lease on property owned by Sakon, located in Connecticut. See memorandum of decision, dated September 24, 2004 (Burke, J.) (#128). By revised counterclaim, dated July 12, 2004 (#119.50), Sakon alleged fraud, legal malpractice, practice of law without a license, and violation of the Connecticut Unfair Trade Practices Act, General Statute § 42-110a, et seq. (CUTPA) by Rachstein, LLP.

By memorandum of decision, dated December 19, 2005 (#182), this court granted Rachstein, LLP's motion for summary judgment as to each count of Sakon's revised counterclaim. On April 12, 2006, Rachstein, LLP filed its withdrawal of action, specifying that the plaintiff's action was withdrawn without costs to any party (#194).

As to withdrawals, General Statute § 52-80 provides, "If the plaintiff, in any action returned to court and entered in the docket, does not, in or before the opening of the court on the second day thereon appear by himself or attorney to prosecute such action, he shall be nonsuited, in which case the defendant, if he appears, shall recover costs from the plaintiff. The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof. After the commencement of a hearing on an issue of fact in any such action, the plaintiff may withdraw such action, or any other party thereto may withdraw any cross complaint or counterclaim filed therein by him, only by leave of court for cause shown."

Sakon filed a bill of costs on October 11, 2006, in which he seeks a total of $4,746.82. Rachstein, LLP filed its objection to the bill of costs on October 13, 2006. Therein, Rachstein, LLP asserts that Sakon's bill of costs was not filed within a reasonable time after the filing of the withdrawal. In addition, Rachstein, LLP argues that Sakon is not a "prevailing party" within the meaning of General Statute § 52-257 and that most, if not all, of the costs as to which Sakon seeks reimbursement had to do with the prosecution and defense of Sakon's counterclaim, as to which the court entered summary judgment against Sakon.

II Discussion A Timeliness

General Statutes § 52-257 sets forth the categories of costs which a court may award to a prevailing party. It does not, however, provide a time period within which a bill of costs must be filed. Similarly, Practice Book § 18-5 provides for a procedure by which costs may be taxed by the clerk, but does not state a deadline for the filing of a bill of costs.

Section 52-257(a) provides, "The fees of parties in civil actions in which the matter in demand is not less than fifteen thousand dollars shall be: For each complaint, exclusive of signing and bond, five dollars for the first page and, for each succeeding page, two dollars; for each judgment file, two dollars for the first page and, for each additional page, one dollar and fifty cents. The prevailing party in any such civil action shall receive, by way of indemnity, the following sums: (1) For all proceedings before trial, fifty dollars; (2) for the trial of an issue of law or fact, seventy-five dollars, but if more than one issue of fact is tried at one time, only one trial fee shall be allowed; and (3) in difficult or extraordinary cases in the Superior Court, where a defense has been interposed, a further allowance, in the discretion of the court, not to exceed two hundred dollars." Section 52-257(b) provides other categories of costs which may be awarded.

Practice Bock § 18-5 provides, in pertinent part, "(a) Except as otherwise provided in this section, costs may be taxed by the clerk in civil cases fourteen days after the filing of a written bill of costs provided that no objection is filed. If a written objection is filed within the fourteen-day period, notice shall be given by the clerk to all appearing parties of record of the date and time of the clerk's taxation. The parties may appear at such taxation and have the right to be heard by the clerk, (b) Either party may move the judicial authority for a review of the taxation by the clerk by filing a motion for review of taxation of costs within twenty days of the issuance of the notice of taxation by the clerk."

In an analogous context, concerning the post-judgment award of attorneys fees and expenses to a prevailing party under General Statute 4-184a, which then provided no time limit in which to file a request for such an award, our Appellate Court, in Oakley v. Commission On Human Rights Opportunities, 38 Conn.App. 506, 662 A.2d 137 (1995), affirmed, 237 Conn. 28, 675 A.2d 851 (1996), stated that a motion seeking such an award had to be filed within a reasonable time of the entering of the final judgment. See id., 38 Conn.App. 517. "[T]he determination of whether such a motion has been filed within a reasonable time is a matter within the discretion of the trial court." Id. There, in the absence of a claim of unfair prejudice or surprise, the court affirmed the trial court's consideration of the plaintiff's motion, which was filed almost five months after the final judgment was rendered. See id., 38 Conn.App. 511, 517.

Public Act 97-88 amended § 4-184a(b) to provide that a request for an award of reasonable fees and expenses must be filed within thirty days of the issuance of the court's decision.

In view of our Appellate Court's determination concerning a similar statute, the court concludes that a bill of costs must be filed within a reasonable time. The six months here is not much longer than the almost five months at issue in Oakley v. Commission On Human Rights Opportunities, supra.

Here, likewise, in response to Sakon's bill of costs, Rachstein, LLP has not claimed unfair prejudice or surprise. Under the circumstances, in the exercise of its discretion, the court finds that the six-month period which elapsed between the filing of the withdrawal and the filing of the bill of costs is not an unreasonable period of time.

B Prevailing Party

"It is a settled principle of our common law that parties are required to bear their own litigation expenses, except as otherwise provided by statute . . . A trial court may not tax a cost unless it is clearly empower[ed] to do so by the authorizing statute." (Citation omitted; internal quotation marks omitted.) Northeast CT. Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14, 48, 861 A.2d 473 (2004).

"It is elementary that, whether fees and costs are a matter of right or discretion, they ordinarily are awarded to the party that prevails in the case and, until there is a prevailing party, they do not arise . . .; see also General Statutes § 52-257 (providing that prevailing party receives certain sums in civil actions) . . . It is within the discretion of the trial court to award fees and costs to the prevailing party." (Citations omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 280 Conn. 1, 24, 905 A.2d 55 (2006). Section 52-257 does not define the term "prevailing party."

"Our Supreme Court has discussed the meaning of 'prevailing party' in other contexts. In Wallerstein v. Stew Leonard's Dairy, 258 Conn. 299, 303, 780 A.2d 916 (2001), the court held that 'the plaintiff was the prevailing party of record because a judgment had been ordered in his favor.' Id. Explaining its holding, the court stated that 'it is difficult to see why one who has secured a judgment of the court in his favor should not be viewed as a party who has prevailed in the action in question, irrespective of the route by which he received that judgment. Indeed, prevailing party has been defined as [a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded . . . Moreover, the United States Supreme Court has determined, in construing the attorneys fees provision of the Fair Housing Amendments Act; 42 U.S.C. § 3613(c)(2); and the Americans with Disabilities Act; 42 U.S.C. § 12205; that the term prevailing party is a legal term of art . . . [referring to] one who has been awarded some relief by the court . . . Other courts have held that, under various federal fee shifting statutes, the term prevailing party includes a plaintiff who has secured actual relief on the merits of his claim [that] materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff . . .'" News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 547, CT Page 21200 862 A.2d 837 (2004), affirmed, 276 Conn. 310, 885 A.2d 758 (2005).

Here, Sakon was not the prevailing party on his counterclaims, as to which summary judgment was granted in favor of Rachstein, LLP. Also, since the action was later withdrawn, Sakon was not a prevailing party as to Rachstein, LLP's claim against Sakon. The court did not enter judgment in his favor or award him relief. Thus, he was not a prevailing party for the purposes of General Statute § 52-257. Under these circumstances, the court may not award costs to Sakon.

In addition, even if Sakon were deemed to be the prevailing party, the bulk of the costs which he seeks are not clearly authorized by General Statute § 52-257, which he cites in his bill of costs as authority for his request. For example, as to § 52-257(a), although the case was not tried, he seeks $75.00 for trial of an issue of law or fact He also seeks an award of $200.00 for a difficult or extraordinary case. This case did not present particularly difficult or extraordinary issues.

Under Section 52-257(b), Sakon seeks a total of $747.29 for deposition bills. These appear to be for deposition transcripts, since, although no bills were provided, providers are listed by name. Subsection (b) of § 52-257 does not provide for the reimbursement of such costs, except in the case of the deposition of a practitioner of the healing arts, or other listed health care professional, or of a real estate appraiser that is used in lieu of live testimony. See § 52-257(b)(12). Sakon has not claimed that the deposition costs he seeks relate to the depositions of such persons.

Likewise, the total of $2,476.86 which he seeks for "expert witness trial preparation" is not authorized by § 52-257. See in contrast, General Statute § 52-260(f), which provides for reasonable fees to be paid for the expert testimony, including by deposition, of certain expert witnesses.

Section 52-260(f) provides, "When any practitioner of the healing arts, as defined in section 20-1, dentist, registered nurse, advanced practice registered nurse or licensed practical nurse, as defined in section 20-87a, psychologist or real estate appraiser gives expert testimony in any action or proceeding, including by means of a deposition, the court shall determine a reasonable fee to be paid to such practitioner of the healing arts, dentist, registered nurse, advanced practice registered nurse, licensed practical nurse, psychologist or real estate appraiser and taxed as part of the costs in lieu of all other witness fees payable to such practitioner of the healing arts, dentist, registered nurse, advanced practice registered nurse, licensed practical nurse, psychologist or real estate appraiser."

While Section 52-260(f) includes the expert testimony of a real estate appraiser, and Sakon's disclosure of expert witness concerning Marc Gottesdiener (#176) indicated that Gottesdiener would testify in the area of real estate appraisal, the bill of costs does not assert that Gottesdiener was deposed.

Finally, Sakon seeks a total of $897.67 for costs related to the copying of documents, including replacing equipment. Section 52-257(b)(6) authorizes an award of costs for "copies of records used in evidence . . ." The bill of costs seeks reimbursement for 3,000 pages of copies without specifying which, if any, were used in evidence. There is no provision in the statute for the reimbursement of equipment costs.

In view of the above determinations as to the bill of costs, the court need not consider Rachstein, LLP's contention that the claimed expenses are attributable to Sakon's counterclaims.

CONCLUSION

For the reasons stated above, the objection to the bill of costs is sustained.

It is so ordered.