******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
ATHENA HOLDINGS, LLC v. JAN MARCUS
(AC 35979)
Gruendel, Beach and Borden, Js.
Argued April 20—officially released October 13, 2015
(Appeal from Superior Court, judicial district of
Danbury, Ozalis, J.)
Nathan C. Nasser, with whom, on the brief, was Jan
A. Marcus, for the appellant (defendant).
Edward M. Rosenthal, for the appellee (plaintiff).
Opinion
GRUENDEL, J. The sole issue in this appeal is
whether the trial court properly denied the defendant’s
motion for attorney’s fees pursuant to General Statutes
§ 42-150bb.1 Specifically, the defendant, Jan Marcus,
claims that he was entitled to attorney’s fees for his
successful defense of two of the three counts alleged in
the plaintiff’s complaint. The plaintiff, Athena Holdings,
LLC, argues in opposition that, because it prevailed on
the breach of contract count, the trial court properly
concluded that the defendant did not successfully
defend the action and, therefore, attorney’s fees were
unavailable under § 42-150bb. We agree with the plain-
tiff and affirm the judgment of the trial court.
The following facts and procedural history are taken
from the court’s memorandum of decision. The plaintiff
owns and operates a nursing home facility in Ridgefield.
On November 12, 2008, pursuant to an agreement
between the parties, the defendant, an attorney, admit-
ted his elderly mother to the plaintiff’s nursing home.
After her admission, the defendant’s mother remained
a resident at the facility until her death on May 10, 2009.
The agreement between the parties classified the
defendant as the ‘‘Responsible Party.’’ Under the terms
of the agreement, the ‘‘Responsible Party does not per-
sonally guarantee or serve as surety for payment as
described in paragraphs II, III and XIV. Responsible
Party liability for failure to perform any of the obliga-
tions set forth in this agreement shall be determined
in accordance with the provisions of this agreement.’’
Section IV of the agreement stated in relevant part that
‘‘if the Responsible Party has received a transfer of
assets from the Resident that result in the Resident’s
ineligibility for Medicaid assistance, the Responsible
Party agrees that these assets, or an amount of the
Responsible Party’s funds at least equal to these assets,
will be used for the cost of care and services rendered
to the Resident until the Resident is determined to be
eligible for Medicaid assistance by the Connecticut
Department of Social Services . . . .’’ This section also
stated that the ‘‘Responsible Party agree[s] to act
promptly and expeditiously to establish and maintain
eligibility for Medicaid assistance . . . [and] during the
pendency of any application for Medicaid assistance,
the Resident’s monthly income, less a personal needs
allowance as established by the Department of Social
Services, will be paid to the Facility on or before the
tenth of each month.’’ Section V of the agreement pro-
vided: ‘‘If the Responsible Party has control of or access
to the Resident’s income and/or assets, the Responsible
Party agrees that these funds shall be used for the
Resident’s welfare, including but not limited to making
prompt payment for the care and services rendered to
the Resident in accordance with the terms of this
agreement.’’
The plaintiff initiated the present action, seeking
recovery of $47,444 in unpaid fees incurred by the defen-
dant’s mother during her stay at the plaintiff’s facility.
The complaint alleged the following three counts: (1)
breach of contract, (2) promissory estoppel, and (3)
negligence. In addition to monetary damages, the plain-
tiff sought reasonable attorney’s fees under the terms
of the agreement,2 interest, and taxable costs.
The case was tried to the court, which rendered its
decision in favor of the plaintiff on the breach of con-
tract count and in favor of the defendant on the promis-
sory estoppel and negligence counts. Accordingly, the
court rendered judgment in favor of the plaintiff in the
amount of $15,778. This amount was determined on the
basis of three findings. First, the court found that the
defendant’s mother had, in violation of the agreement,
transferred $8100 in assets to the defendant that should
have been used to pay the plaintiff. Second, the court
found that the defendant had controlled his mother’s
Social Security and pension benefits and had breached
the agreement when he failed to transfer to the plaintiff
$6608 in benefits received by his mother. Finally, the
court found that the defendant had improperly received
an additional $1070 transfer of his mother’s assets,
which also should have been used to pay the plaintiff.
The court’s judgment also included an award of attor-
ney’s fees to the plaintiff and a denial of attorney’s fees
to the defendant. The court concluded that, pursuant
to Section XIII of the agreement, the plaintiff was enti-
tled to reasonable attorney’s fees on the basis that it
had prevailed on the breach of contract count. The
court further concluded that the defendant was not
entitled to attorney’s fees under § 42-150bb because the
plaintiff had prevailed on count one of its complaint
and therefore, the defendant had failed to successfully
defend the action. Thereafter, the defendant filed a
motion for reconsideration of the court’s denial of attor-
ney’s fees, arguing that § 42-150bb did not require a
‘‘complete victory’’ as a prerequisite to a consumer
defendant’s right to attorney’s fees under the statute.
The court denied the defendant’s motion and awarded
$2336.70 in attorney’s fees to the plaintiff.3 The defen-
dant appeals from this judgment.
On appeal, the defendant claims that he is entitled
to recover attorney’s fees under § 42-150bb because he
successfully defended against two of the three counts
of the plaintiff’s complaint. The plaintiff, on the other
hand, argues that because the court awarded damages
on the breach of contract count, the defendant did not
‘‘successfully’’ defend the action, and therefore was not
entitled to attorney’s fees under § 42-150bb. We agree
with the plaintiff and conclude that the defendant did
not successfully defend the action.
We begin with the standard of review governing this
appeal. The proper construction and meaning to be
afforded to the statutory language of § 42-150bb is a
question of law over which we exercise plenary review.
Ugrin v. Cheshire, 307 Conn. 364, 379–80, 54 A.3d 532
(2012). ‘‘When construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1–2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered.’’ (Internal quotation
marks omitted.) Cruz v. Montanez, 294 Conn. 357, 367,
984 A.2d 705 (2009). ‘‘If the language is ambiguous, the
ambiguity is normally resolved by turning for guidance
to the legislative history and the purpose the statute is
to serve.’’ (Internal quotation marks omitted.) State v.
Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989).
Section 42-150bb provides in relevant part: ‘‘When-
ever any contract or lease entered into on or after Octo-
ber 1, 1979, to which a consumer is a party, provides
for the attorney’s fee of the commercial party to be paid
by the consumer, an attorney’s fee shall be awarded
as a matter of law to the consumer who successfully
prosecutes or defends an action or a counterclaim
based upon the contract or lease. . . .’’ ‘‘[This statute]
is in derogation of the common law. Specifically, [t]he
general rule of law known as the American rule is that
attorney’s fees and ordinary expenses and burdens of
litigation are not allowed to the successful party absent
a contractual or statutory exception. . . . Connecticut
adheres to the American rule. . . . Section 42-150bb
is, however, one of [the] exceptions to the common-
law rule. . . . [The statute] clearly authorizes an award
of attorney’s fees to the consumer who successfully
prosecutes or defends an action or a counterclaim on
a consumer contract or lease.’’ (Citation omitted;
emphasis added; internal quotation marks omitted.)
Aaron Manor, Inc. v. Irving, 307 Conn. 608, 616–17, 57
A.3d 342 (2013). ‘‘The purpose of § 42-150bb is to bring
parity between a commercial party and a consumer
who defends successfully an action on a contract pre-
pared by the commercial party.’’ Id., 618. Stated differ-
ently, when a commercial entity enters into a consumer
contract that provides the commercial entity with the
contractual right to recover attorney’s fees, § 42-150bb
provides consumers with a reciprocal statutory right
to recover attorney’s fees if he or she successfully prose-
cutes or defends an action or counterclaim.
On appeal, the defendant argues that § 42-150bb
should apply to the facts of this case. Specifically, the
defendant argues that the plaintiff’s failure to establish
essential elements of its promissory estoppel and negli-
gence counts constituted a ‘‘successful defense’’ under
§ 42-150bb, thereby entitling him to attorney’s fees.
We disagree.
We begin our analysis by reviewing the language of
the statute. Section 42-150bb provides a statutory right
to attorney’s fees to the consumer who successfully
prosecutes or defends an action or counterclaim based
on a contract. As this court has previously held, ‘‘[t]he
word action has no precise meaning and the scope of
proceedings which will be included within the term
. . . depends upon the nature and purpose of the partic-
ular statute in question. . . . What the legislature may
have intended to be a civil action for some purposes
may not be a civil action for others.’’ (Internal quotation
marks omitted.) Bobbin v. Sail the Sounds, LLC, 153
Conn. App. 716, 721, 107 A.3d 414 (2014). Accordingly,
we conclude that the term ‘‘action’’ is ambiguous and
we look to the legislative history to determine its mean-
ing. Our Supreme Court has previously reviewed the
statute’s legislative history and held that ‘‘it was
designed to provide equitable results for a consumer
who successfully defended an action under a commer-
cial contract and the commercial party who was entitled
to attorney’s fees. . . . The purpose of § 42-150bb is
to bring parity between a commercial party and a con-
sumer who defends successfully an action on a contract
prepared by the commercial party.’’ (Citation omitted;
internal quotation marks omitted.) Aaron Manor, Inc.
v. Irving, supra, 307 Conn. 617–18.
With this purpose in mind, it is clear that it was the
plaintiff, rather than the defendant, who ‘‘succeeded’’
in the present contract action. The plaintiff’s complaint
sought recovery of money allegedly owed to it under
the terms of the agreement. Thus, the plaintiff initiated
the present action seeking judicial enforcement of its
rights under the contract. While the plaintiff’s complaint
comprised of three counts, each asserting independent
legal theories of recovery, only one count sought recov-
ery for breach of contract. Although it is permissible
under our rules of practice to advance alternative and
even inconsistent theories of liability in a single com-
plaint; Dreier v. Upjohn Co., 196 Conn. 242, 245, 492
A.2d 164 (1985);4 the plaintiff would have been allowed
to recover attorney’s fees under the contract only if it
had prevailed, as it did, on the breach of contract count.
Similarly, the defendant’s statutory right to attorney’s
fees depended on whether he was successful in
defending against the breach of contract count. As the
defendant was unsuccessful in defending against this
count, and no other claim arose under the contract,
we conclude that the defendant has not successfully
defended the action and therefore is not entitled to
attorney’s fees under § 42-150bb.5
In conclusion, ‘‘[i]t is the duty of the court to interpret
statutes as they are written . . . and not by construc-
tion read into statutes provisions which are not clearly
stated.’’ (Citations omitted; internal quotation marks
omitted.) State v. Johnson, 227 Conn. 534, 542, 630 A.2d
1059 (1993); see Forsyth v. Rowe, 226 Conn. 818, 828,
629 A.2d 379 (1993); State v. Dupree, 196 Conn. 655,
660, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct.
318, 88 L. Ed. 2d 301 (1985). Section 42-150bb provides
for attorney’s fees ‘‘to the consumer who successfully
prosecutes or defends an action . . . based upon the
contract . . . .’’ (Emphasis added.) Accordingly, we
decline the defendant’s invitation to interpret the lan-
guage of the statute to provide for attorney’s fees to a
consumer defendant who successfully defends against
two alternative theories of liability set forth in the com-
plaint, but loses on the breach of contract count, the
only count ‘‘based upon the contract.’’
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 42-150bb provides: ‘‘Attorney’s fees in action based
on consumer contract or lease. Whenever any contract or lease entered into
on or after October 1, 1979, to which a consumer is a party, provides for
the attorney’s fee of the commercial party to be paid by the consumer, an
attorney’s fee shall be awarded as a matter of law to the consumer who
successfully prosecutes or defends an action or a counterclaim based upon
the contract or lease. Except as hereinafter provided, the size of the attor-
ney’s fee awarded to the consumer shall be based as far as practicable upon
the terms governing the size of the fee for the commercial party. No attorney’s
fee shall be awarded to a commercial party who is represented by its salaried
employee. In any action in which the consumer is entitled to an attorney’s
fee under this section and in which the commercial party is represented by
its salaried employee, the attorney’s fee awarded to the consumer shall be
in a reasonable amount regardless of the size of the fee provided in the
contract or lease for either party. For the purposes of this section, ‘commer-
cial party’ means the seller, creditor, lessor or assignee of any of them, and
‘consumer’ means the buyer, debtor, lessee or personal representative of
any of them. The provisions of this section shall apply only to contracts or
leases in which the money, property or service which is the subject of the
transaction is primarily for personal, family or household purposes.’’
2
The contract between the parties provided for reasonable attorney’s fees
in the event the plaintiff incurred costs of collection. Section XIII of the
agreement provides in relevant part that ‘‘[u]pon referral of Resident’s over-
due account to an Attorney or to an agency for collection, the Resident and
Responsible [Party] agree to pay the costs of collection including reasonable
attorney’s fees.’’
3
The court concluded that the plaintiff’s attorney’s fees were limited to
15 percent of the judgment, in accordance with General Statutes § 42-150aa.
4
In Dreier v. Upjohn Co., supra, 196 Conn. 246, our Supreme Court noted
that ‘‘[o]ur laws formerly cast on the plaintiff the duty of construing his
rights with respect to the form in which they ought to be brought before
the court, and the relief to which he might be entitled, at the risk of losing
everything if he mistook his remedy. The Practice Act enables him, in a
case like the present, to throw this duty of construction upon the court. It
is enough for him to tell his story as plainly and concisely as may be,
and to state the different kinds of relief, one of which he thinks he may
fairly claim.’’
5
We also note that it would be inconsistent with our rules of practice to
punish a plaintiff who succeeds on one legal theory of liability, and by doing
so, necessarily loses on an alternative theory. See Glazer v. Dress Barn,
Inc., 274 Conn. 33, 88–89, 873 A.2d 929 (2005) (well settled that breach of
contract and promissory estoppel are inconsistent theories of recovery, as
promissory estoppel is appropriate only in absence of contract).