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O'Brien v. City of New Haven

Court of Appeals of Connecticut

December 5, 2017

WILLIAM O'BRIEN
v.
CITY OF NEW HAVEN

          Argued September 14, 2017

          Proloy K. Das, with whom was Joseph B. Schwartz, for the appellant in AC 39102 and the appellee AC 39107 (defendant).

          Vincent F. Sabatini, for the appellee in AC 39102 and the appellant AC 39107 (plaintiff).

          Sheldon, Prescott and Elgo, Js.

          OPINION

          ELGO, J.

         These consolidated appeals concern the indemnification provisions of General Statutes§ 7-101a. The defendant, the city of New Haven, appeals from the judgment of the trial court in favor of the plaintiff, William O'Brien, its former tax assessor, awarding him the attorney's fees and costs that he incurred in defending himself in a prior action brought by a third party.[1] In its appeal, the defendant claims that the plaintiff's action for indemnification was barred because he failed to comply with the notice requirement and time limitations of § 7-101a (d). In his appeal, the plaintiff challenges the trial court's denial of his request for the attorney's fees and costs that he incurred in bringing the present action, claiming that § 7-101a authorizes such an award.[2] We affirm the judgment of the trial court.

         The following facts and procedural history, as set forth in the trial court's memorandum of decision, are relevant to this appeal. ‘‘On November 20, 2010, the plaintiff was sued by Tax Data Solutions, LLC (Tax Data), in the action of Tax Data Solutions, LLC v. O'Brien, Superior Court, judicial district of New Haven, Docket No. CV-10-6016263-S [prior action]. In that action, Tax Data alleged that [while] the plaintiff was the tax assessor for the defendant . . . Tax Data was subjected to various misdeeds by the plaintiff. Upon receiving notice of the lawsuit, the plaintiff contacted the defendant by way of the mayor and the defendant's counsel, Victor Bolden, and requested that the defendant provide the plaintiff with legal representation in the [action] since it involved his duties as tax assessor. The defendant refused . . . the plaintiff's request, even after judgment entered in his favor in the [prior action].

         ‘‘The plaintiff further alleges that hethen hired private counsel, the law firm of Sabatini and Associates, LLC, in order to convince the defendant to provide [him] with legal representation. The defendant continued to refuse to provide legal representation, and on December 22, 2010, Bolden wrote a letter to the plaintiff's counsel wherein he stated that the defendant would not provide a defense, but pursuant to [§] 7-101a (b), if no judgment was rendered against the plaintiff, then the defendant would indemnify him for financial loss and expenses, which included attorney's fees, provided he was also acting in the discharge of his duties. The plaintiff subsequently retained Sabatini and Associates, LLC, to defend him in the [prior action], and he expended money for the legal services and fees associated with his defense.

         ‘‘In the [prior] action, the court [rendered] judgment in the plaintiff's favor on January 15, 2015. The plaintiff further alleges that as a result of this favorable judgment, Sabatini and Associates, LLC, presented the defendant with the plaintiff's bill for attorney's fees, but the defendant again refused to pay said fees, despite having an obligation to defend or indemnify the plaintiff pursuant to § 7-101a.''

         Pursuant to § 7-101a (d), on April 24, 2015, the plaintiff filed a notice with the defendant's city clerk of his intention to bring an action for indemnification. On May 26, 2015, the plaintiff commenced the present action by service of process on the defendant's city clerk.

         The trial court continued: ‘‘On July 14, 2015, the defendant filed a motion to dismiss the plaintiff's complaint on the ground that the plaintiff failed to provide timely and proper notice required by § 7-101a. The court . . . issued a memorandum of decision on November 10, 2015, denying the defendant's motion to dismiss on the ground that the notice provided to the defendant on April 24, 2015, was timely, as it was filed with the defendant's [city] clerk within six months of receiving a final judgment in the [prior] action.

         ‘‘The plaintiff then filed an amended complaint on December 15, 2015, alleging the same facts as his original complaint, but revising his prayer for relief. The defendant filed an answer and special defense to the plaintiff's amended complaint on December 22, 2015, denying or leaving the plaintiff to his proof as to the allegations in the amended complaint. As for the defendant's special defense, it allege[d] that the plaintiff's claim is barred because the notice provided by the plaintiff to the defendant was untimely and improper. On December 23, 2015, the plaintiff filed a response to the defendant's special defense, alleging that the issue of notice was previously adjudicated by the court [when it] denied the defendant's motion to dismiss.''

         The matter was tried to the court. In its memorandum of decision dated March 29, 2016, the court concluded that (1) the notice provided by the plaintiff to the defendant pursuant to § 7-101a (d) was proper and timely; (2) the plaintiff was entitled to recoup attorney's fees and costs he expended to defend himself in the prior action; but (3) the plaintiff was not entitled to recoup costs and attorney's fees he incurred to prosecute the present action against the defendant.[3] These appeals followed.

         I

         The principal question raised by the defendant's appeal is when did the plaintiff's cause of action for indemnification pursuant to § 7-101a (b) accrue for the purposes of the notice requirement and time limitations set forth in § 7-101a (d). The defendant maintains that the time limitations in § 7-101a (d) began to run when Tax Data's cause of action against the plaintiff arose in 2010, and that therefore, the present action was not timely filed.

         At the outset, we note that ‘‘[i]ssues of statutory construction raise questions of law, over which we exercise plenary review.'' (Internal quotation marks omitted.) State v. Jackson, 153 Conn.App. 639, 643, 103 A.3d 166 (2014) cert. denied, 315 Conn. 912, 106 A.3d 305 (2015); see also Dark-Eyes v. Commissioner of Revenue Services, 276 Conn. 559, 570, 887 A.2d 848 (2006) (statutory interpretation gives rise to issue of law over which this court's review is plenary).

         We first set forth the relevant statutory language of § 7-101a. Section 7-101a (a) provides in relevant part: ‘‘Each municipality shall protect and save harmless any municipal officer, whether elected or appointed, of any board, committee, council, agency or commission . . . or any municipal employee, of such municipality from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence, or for alleged infringement of any person's civil rights, on the part of such officer or such employee while acting in the discharge of his duties.''

         Section 7-101a (b) provides: ‘‘In addition to the protection provided under subsection (a) of this section, each municipality shall protect and save harmless any such municipal officer or municipal employee from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand or suit instituted against such officer or employee by reason of alleged malicious, wanton or wilful act or ultra vires act, on the part of such officer or employee while acting in the discharge of his duties. In the event such officer or employee has a judgment entered against him for a malicious, wanton or wilful act in a court of law, such municipality shall be reimbursed by such officer or employee for expenses it incurred in providing such defense and shall not be held liable to such officer and employee for any financial loss or expense resulting from such act.''

         Subsections (a) and (b) of § 7-101a plainly provide three causes of action: (1) a municipal employee's indemnification action pursuant to § 7-101a (a); (2) a municipal employee's indemnification action pursuant to § 7-101a (b); and (3) a municipality's reimbursement action pursuant to § 7-101a (b). In order to bring an action under either subsection (a) or (b) of § 7-101a, ...


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