Gagne v. Vaccaro ( 2014 )

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J. WILLIAM GAGNE, JR. v. ENRICO VACCARO
(SC 18937)
Zarella, Eveleigh, McDonald, Espinosa and Keller, Js.
Argued October 25, 2013—officially released May 6, 2014
Peter A. Ventre, for the appellant (plaintiff).
Eugene A. Skowronski, for the appellee (defendant).
Opinion
ZARELLA, J. The present action is the culmination
of a disagreement between two attorneys that has lasted
decades. The plaintiff, J. William Gagne, Jr., appeals
from the judgment of the Appellate Court, which con-
cluded that General Statutes § 51-183c1 required Hon.
Anthony V. DeMayo, judge trial referee, to recuse him-
self from presiding over a hearing regarding the reason-
ableness of attorney’s fees. The Appellate Court deter-
mined that this conclusion was dispositive of the appeal
and remanded the case to the trial court for consider-
ation of the defendant’s other claims.2 We granted the
plaintiff’s petition for certification to appeal, limited to
the following issue: ‘‘Did the Appellate Court properly
conclude that . . . § 51-183c required [Judge DeMayo]
to recuse [him]self from presiding over the hearing on
the plaintiff’s motion for attorney’s fees?’’ Gagne v. Vac-
caro, 304 Conn. 907, 39 A.3d 1118 (2012). We do not
reach this claim, or any of the defendant’s alternative
grounds for affirmance with respect to Judge DeMayo’s
recusal, however, because we conclude that these
claims are moot.3 We therefore remand the case to the
Appellate Court with direction to dismiss the appeal as
to the recusal issue and to consider the defendant’s
remaining claims.
The complete procedural history of this case is set
forth in Gagne v. Vaccaro, 133 Conn. App. 431, 433–36,
35 A.3d 380 (2012). We summarize only the history
relevant to the present appeal. ‘‘On May 28, 2008, the
plaintiff filed a motion for appellate attorney’s fees
incurred in responding to the defendant’s second
appeal. On June 16, 2008, the defendant filed a motion
to dismiss the plaintiff’s motion for attorney’s fees or, in
the alternative, an objection to the motion for attorney’s
fees. On September 3, 2008, [Judge DeMayo] granted
the plaintiff’s motion for . . . attorney’s fees incurred
in the defendant’s second appeal. On September 18,
2008, the defendant filed a motion to reargue and for
reconsideration of the award of attorney’s fees, which
[Judge DeMayo] denied.
‘‘The defendant filed his third appeal in this matter
on October 10, 2008, from [Judge DeMayo’s] award of
attorney’s fees. On December 8, 2009, [the Appellate]
[C]ourt affirmed in part and reversed in part [Judge
DeMayo’s] September 3, 2008 [award of] . . . attor-
ney’s fees. See Gagne v. Vaccaro, 118 Conn. App. 367,
[373] 984 A.2d 1084 (2009). [The Appellate] [C]ourt held
that [Judge DeMayo] had the authority, pursuant to
General Statutes § 52-249, to award appellate attorney’s
fees but that the court should have held an evidentiary
hearing as to the reasonableness of the fees. Id., [371,
373]. [The Appellate] [C]ourt thus reversed the judg-
ment in part and remanded the matter as to the award
of attorney’s fees, with direction to conduct a hearing
as to the reasonableness of the plaintiff’s requested
fees. Id., 373.
‘‘The present appeal concerns the matters [that]
occurred following [the Appellate] [C]ourt’s remand to
the trial court in December, 2009. Following [the Appel-
late] [C]ourt’s remand, the plaintiff filed a motion for
appellate attorney’s fees incurred in responding to the
defendant’s third appeal and a motion for an order that
the hearing ordered by [the Appellate] [C]ourt would
occur at the same time as the hearing on [the plaintiff’s]
most recent motion for attorney’s fees. The defendant
filed objections to the plaintiff’s motions for appellate
attorney’s fees in connection with the second and third
appeals. In addition, the defendant filed a deposition
notice and a subpoena seeking the production of numer-
ous documents from the plaintiff’s attorney. On March
9, 2010, [Judge DeMayo] granted the plaintiff’s motions
for a protective order and to quash the subpoena [and]
. . . overruled the defendant’s objection thereto.
‘‘Thereafter, on March 18, 2010, the defendant filed
a motion to disqualify [Judge DeMayo] from hearing
the plaintiff’s motions for appellate attorney’s fees.’’
(Footnote omitted.) Gagne v. Vaccaro, supra, 133 Conn.
App. 434–35. The defendant argued that Judge DeMayo
should recuse himself pursuant to Practice Book § 1-
224 because he previously had ruled on the plaintiff’s
motion for attorney’s fees on September 3, 2008, and
the Appellate Court had reversed that ruling in part.
‘‘The defendant also filed a motion for a continuance
of that hearing [in light of his] motion to disqualify
[Judge DeMayo].’’ Id., 436. The plaintiff objected to the
defendant’s motion to disqualify on the ground that
the defendant had not complied with the procedural
requirements of Practice Book § 1-23,5 which requires
that a motion to disqualify be filed no less than ten
days prior to the proceeding at issue unless good cause
is shown. Specifically, the plaintiff argued that the
defendant had received notice on March 9, 2010, that
Judge DeMayo would be presiding over the March 23,
2010 hearing but did not file his motion to disqualify
until March 18, 2010, only five days before the hearing.
On March 23, 2010, Judge DeMayo addressed the
defendant’s motion to disqualify prior to considering
the plaintiff’s motions for attorney’s fees incurred in the
defendant’s second and third appeals. The defendant’s
counsel argued that, ‘‘[p]ursuant to . . . Practice Book
§ 1-22, [the defendant] would respectfully . . . request
[that] Your Honor disqualify himself from hearing and
ruling on this motion since it was the subject of an
appeal in which Your Honor’s prior ruling was reversed
. . . .’’ The plaintiff’s counsel responded: ‘‘[W]e did file
an objection to [the defendant’s] motion to disqualify,
and, in effect . . . the defendant has . . . waived that
right to try to even attempt to disqualify you, pursuant
to Practice Book [§] 1-23, [which] requires . . . that
any type of motion to recuse a judge must be filed no
less than ten days before the hearing. This motion, as
the court knows, was only filed five days before the
hearing; [and the defendant did not show] . . . good
cause . . . .’’ The trial court then stated: ‘‘Well, I think
that’s a valid objection, but I think there is also the
additional factor here that this remand from the Appel-
late Court is directed at this court, and this isn’t the
usual situation where the case comes back for retrial,
rehearing, or whatever. . . . So the motion to disqual-
ify is denied.’’
The trial court then addressed, inter alia, the defen-
dant’s motion for continuance and the reasonableness
of the plaintiff’s attorney’s fees. ‘‘On April 14, 2010,
Judge DeMayo . . . [awarded] the plaintiff $16,980 in
appellate attorney’s fees for the defendant’s second
appeal and $9860 for the third appeal.’’ Gagne v. Vac-
caro, supra, 133 Conn. App. 436. On June 17, 2010, Judge
DeMayo ordered the defendant ‘‘to adhere to the order
and schedule of payments in the amounts due.’’ There-
after, on August 19, 2010, the plaintiff filed a ‘‘motion
for order and/or contempt’’ on the ground that the
defendant had not made any payments pursuant to
Judge DeMayo’s June 17, 2010 order. The defendant did
not make any payments until September 7, 2010. On
September 9, 2010, Judge DeMayo found the defendant
in contempt of the June 17, 2010 order and held a hear-
ing regarding sanctions on September 28, 2010. The
defendant thereafter appealed to the Appellate Court.
The defendant claimed on appeal to the Appellate
Court that Judge DeMayo improperly had declined to
recuse himself, in violation of Practice Book § 1-22, and
also claimed, for the first time, that Judge DeMayo
should have been disqualified pursuant to § 51-183c.6
Specifically, the defendant argued that Judge DeMayo
had demonstrated ‘‘bias’’ and ‘‘hostility’’ against the
defendant in comments made during various proceed-
ings.7 The defendant also asserted other claims on
appeal to the Appellate Court, which ‘‘emanate[d] from’’
Judge DeMayo’s ruling regarding discovery objections
and the imposition of interest, as well as a challenge
to Judge DeMayo’s finding of contempt against the
defendant. See Gagne v. Vaccaro, supra, 133 Conn. App.
433 n.2. The plaintiff argued that, pursuant to Practice
Book § 1-22, the defendant had waived his right to seek
the disqualification of Judge DeMayo because the defen-
dant filed his motion to disqualify less than ten days
before the March 23, 2010 hearing and did not show
good cause for the delay.
The Appellate Court agreed with the defendant that
§ 51-183c required Judge DeMayo to recuse himself.
Id., 436, 439. The Appellate Court reasoned that the
language of § 51-183c is ‘‘clear and unambiguous’’ and
‘‘explicitly prohibits a judge who tries a case that is
thereafter reversed to try the case on remand.’’ Id., 437.
The Appellate Court concluded that § 51-183c applied
and, therefore, that Judge DeMayo should not have
presided over the March 23, 2010 hearing regarding the
reasonableness of attorney’s fees. See id., 439. Accord-
ingly, the Appellate Court reversed Judge DeMayo’s
award of attorney’s fees and his finding of contempt,
and remanded the case for a new hearing on the plain-
tiff’s motions for attorney’s fees and contempt, and for
consideration of the defendant’s discovery objections.
Id. The Appellate Court specified that ‘‘a different trial
judge necessarily will hear’’ the plaintiff’s motions for
attorney’s fees and contempt, and consider his discov-
ery objections. Id., 433 n.2. This certified appeal fol-
lowed.
On appeal to this court, the plaintiff claims that the
Appellate Court incorrectly concluded that Judge
DeMayo was required to recuse himself under § 51-
183c. The defendant counters that § 51-183c required
Judge DeMayo to recuse himself because he previously
had ‘‘tried’’ the case and the Appellate Court reversed
his award of attorney’s fees. The defendant also offers
twenty-six alternative grounds for affirmance of the
Appellate Court’s judgment, which fall into four catego-
ries: (1) alternative grounds relating to the recusal of
Judge DeMayo; (2) discovery objections; (3) the imposi-
tion of interest; and (4) the defendant’s challenge to
the trial court’s finding of contempt.8 After oral argu-
ment, this court, sua sponte, ordered supplemental
briefing on the following issue: ‘‘Does the failure of the
defendant to appeal [from] the trial court’s ruling that
the motion [to disqualify] failed to comply with Practice
Book § 1-23 [render] moot the remaining issues regard-
ing disqualification?’’
We conclude that the issue of whether Judge DeMayo
should have recused himself is moot. Because the
Appellate Court did not address the defendant’s other
claims regarding discovery and the imposition of inter-
est, we remand the case to the Appellate Court for
consideration of those claims. We also decline to
address the defendant’s claims regarding Judge
DeMayo’s finding of contempt because the defendant
failed to file a cross appeal. Accordingly, we reverse
the judgment of the Appellate Court and remand the
case to that court with direction to consider the defen-
dant’s remaining claims.
I
As a threshold matter, we note that the Appellate
Court lacked subject matter jurisdiction to review the
defendant’s claims regarding the issue of Judge
DeMayo’s recusal because that issue is moot. Our deter-
mination that the recusal issue is moot disposes of the
certified issue on appeal and five of the defendant’s
alternative grounds for affirmance.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[this] court’s subject matter jurisdiction. . . . Because
courts are established to resolve actual controversies,
before a claimed controversy is entitled to a resolution
on the merits it must be justiciable . . . . Justiciability
requires (1) that there be an actual controversy between
or among the parties to the dispute . . . (2) that the
interests of the parties be adverse . . . (3) that the
matter in controversy be capable of being adjudicated
by judicial power . . . and (4) that the determination
of the controversy will result in practical relief to the
complainant. . . . A case is considered moot if [the]
. . . court cannot grant the appellant any practical
relief through its disposition of the merits . . . .
Because mootness implicates this court’s subject mat-
ter jurisdiction, it raises a question of law over which
we exercise plenary review.’’ (Internal quotation marks
omitted.) Wyatt Energy, Inc. v. Motiva Enterprises,
LLC, 308 Conn. 719, 736, 66 A.3d 848 (2013).
In Wyatt Energy, Inc., the plaintiff, Wyatt Energy,
Inc. (Wyatt), claimed that the trial court and the Appel-
late Court had applied an incorrect legal standard in
defining the relevant product and geographic markets in
their antitrust analysis. See id., 730–31. The defendant,
Motiva Enterprises, LLC (Motiva), argued, inter alia,
that, even if Wyatt’s argument was correct, Wyatt had
not appealed from the trial court’s findings that other
factors would have prevented Motiva from imposing
higher than competitive rates. Id., 731. This court agreed
and, therefore, concluded that the appeal was moot and
dismissed it. Id., 731, 738–40. Similarly, in the present
case, even if we were to agree with the defendant that
Judge DeMayo should have recused himself, the defen-
dant has not challenged Judge DeMayo’s finding that
the defendant waived his right to seek Judge DeMayo’s
disqualification on the ground that the defendant failed
to follow the procedural requirements of Practice Book
§ 1-23. The requirements of Practice Book § 1-23 apply
to any motion for disqualification of a judge and, there-
fore, apply to all of the defendant’s claims regarding
Judge DeMayo’s failure to recuse himself. At the March
23, 2010 hearing, the plaintiff stated that he had filed
an objection to the defendant’s motion to disqualify
because the defendant had failed to follow the proce-
dural requirements set forth in Practice Book § 1-23.
The trial court then found, inter alia, that this was ‘‘a
valid objection . . . .’’ The defendant did not claim on
appeal, either in the Appellate Court or this court, that
Judge DeMayo improperly found that the defendant
failed to follow the procedural requirements of Practice
Book § 1-23 in filing the motion to disqualify. Rather,
the defendant claimed that Judge DeMayo should have
recused himself under Practice Book § 1-22 or General
Statutes § 51-183c. Thus, as in Wyatt Energy, Inc., we
cannot offer the defendant in the present case any prac-
tical relief because he still would be bound by Judge
DeMayo’s adverse ruling that he had not filed his motion
to disqualify in accordance with the procedural require-
ments of Practice Book § 1-23.9 We thus conclude that
the Appellate Court improperly considered the merits
of the defendant’s claims regarding the recusal of Judge
DeMayo because this issue was moot.
II
Pursuant to Practice Book § 84-11, the defendant pro-
vides twenty-six alternative grounds for affirming the
Appellate Court’s judgment. These grounds fall into four
categories: (1) alternative grounds for affirmance relat-
ing to the recusal of Judge DeMayo; (2) discovery objec-
tions; (3) the imposition of interest; and (4) the defen-
dant’s challenge to Judge DeMayo’s finding of con-
tempt. As we previously explained, the claims relating
to the recusal of Judge DeMayo are moot, and, there-
fore, we do not address them. Because the Appellate
Court remanded the case for a new hearing, the Appel-
late Court did not address the defendant’s claims
regarding discovery and the imposition of interest.
Therefore, we remand the case to the Appellate Court
for consideration of those claims.
Finally, we decline to address the defendant’s claims
regarding Judge DeMayo’s finding of contempt because
the defendant did not file a cross appeal. Practice Book
§ 61-8 provides in relevant part: ‘‘Any appellee or appel-
lees aggrieved by the judgment or decision from which
the appellant has appealed may jointly or severally file
a cross appeal within ten days from the filing of the
appeal. . . .’’ In the present case, the defendant filed
separate appeals with the Appellate Court, one from
Judge DeMayo’s award of attorney’s fees and another
from Judge DeMayo’s finding of contempt. In light of
the Appellate Court’s conclusion that Judge DeMayo
should have recused himself, the plaintiff filed with this
court a petition for certification to appeal from the
Appellate Court’s judgment, limited to the issue of
whether the Appellate Court correctly concluded that
§ 51-183c required Judge DeMayo to recuse himself.
Gagne v. Vaccaro, supra, 304 Conn. 907. The defendant
then filed a motion for this court to review twenty-six
alternative grounds for affirmance under Practice Book
§ 84-11,10 some of which related to Judge DeMayo’s
finding of contempt. The finding of contempt was not,
however, an alternative ground for affirmance or
adverse ruling, but, rather, a ruling of the trial court
that aggrieved the defendant. Therefore, the defendant
should have raised any claim regarding the finding of
contempt in a cross appeal filed pursuant to Practice
Book § 61-8. We thus decline to review the defendant’s
claim regarding Judge DeMayo’s finding of contempt
and direct the Appellate Court to consider it on remand.
See Board of Police Commissioners v. White, 171 Conn.
553, 557, 370 A.2d 1070 (1976).
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
dismiss the appeal as to the issue of disqualification
and to consider the remaining claims.
In this opinion the other justices concurred.
1
General Statutes § 51-183c provides: ‘‘No judge of any court who tried
a case without a jury in which a new trial is granted, or in which the judgment
is reversed by the Supreme Court, may again try the case. No judge of any
court who presided over any jury trial, either in a civil or criminal case, in
which a new trial is granted, may again preside at the trial of the case.’’
2
Specifically, the Appellate Court stated that, ‘‘[b]ecause [it] agree[d] with
the defendant’s first claim [concerning Judge DeMayo’s recusal], [it did] not
[need to] reach the merits of [the defendant’s other] claims. The defendant’s
other claims all emanate[d] from rulings [issued by] the same [judge, who]
improperly presid[ed] over the motion for . . . attorney’s fees . . . . By
way of relief, a different trial judge necessarily will [consider] the plaintiff’s
motion for . . . attorney’s fees, discovery objections and motion for con-
tempt [on remand].’’ Gagne v. Vaccaro, 133 Conn. App. 431, 433 n.2, 35 A.3d
380 (2012).
3
After oral argument, this court, sua sponte, ordered supplemental briefing
on the following issue: ‘‘As shown in the transcript of the March 23, 2010
hearing . . . [Judge DeMayo] denied the defendant’s March 18, 2010 motion
to disqualify. [Judge DeMayo] found, inter alia, that the plaintiff had raised
a ‘valid objection’ in his argument that the defendant had not complied with
the procedural requirements of Practice Book § 1-23. Does the failure of
the defendant to appeal [from] the trial court’s ruling that the motion failed
to comply with Practice Book § 1-23 [render] moot the remaining issues
regarding disqualification?’’
4
Practice Book § 1-22 provides in relevant part: ‘‘(a) A judicial authority
shall, upon motion of either party or upon its own motion, be disqualified
from acting in a matter if such judicial authority is disqualified from acting
therein pursuant to Rule 2.11 of the Code of Judicial Conduct or because
the judicial authority previously tried the same matter and a new trial was
granted therein or because the judgment was reversed on appeal. . . .’’
5
Practice Book § 1-23 provides: ‘‘A motion to disqualify a judicial authority
shall be in writing and shall be accompanied by an affidavit setting forth
the facts relied upon to show the grounds for disqualification and a certificate
of the counsel of record that the motion is made in good faith. The motion
shall be filed no less than ten days before the time the case is called for trial
or hearing, unless good cause is shown for failure to file within such time.’’
6
The defendant did not raise § 51-183c as a ground for recusal before the
trial court. The defendant first mentioned this ground in his brief to the
Appellate Court.
7
Notably, the defendant did not raise this bias or hostility argument before
the trial court. The defendant’s motion to disqualify, the accompanying
supporting memorandum, and the defendant’s attorney, during argument
before Judge DeMayo, only discussed the portion of Practice Book § 1-22
pertaining to the disqualification of a judicial authority in the event of a
new trial or when a judgment is reversed on appeal. See Practice Book § 1-
22 (a).
8
We recognize that the defendant’s discovery objections and challenge
to the finding of contempt are not technically alternative grounds for
affirmance. Because both parties had the opportunity to brief these issues,
however, and because the defendant raised them as alternative grounds for
affirmance, we will treat them as such for purposes of this opinion.
9
The defendant claims that he filed his motion to disqualify as soon as
he learned that Judge DeMayo would be presiding over the March 23, 2010
hearing. It is precisely this issue, however, that we cannot review. Although
late notification might qualify as ‘‘good cause’’ under Practice Book § 1-23,
the defendant never challenged on appeal Judge DeMayo’s finding that he
did not comply with Practice Book § 1-23. Therefore, this issue is moot.
10
Practice Book § 84-11 provides in relevant part: ‘‘(a) Upon the granting
of certification, the appellee may present for review alternative grounds
upon which the judgment may be affirmed provided those grounds were
raised and briefed in the appellate court. Any party to the appeal may also
present for review adverse rulings or decisions which should be considered
on the appeal in the event of a new trial, provided that such party has raised
such claims in the appellate court. . . .’’