Show Me the Money: When and How You Can Recover Attorney’s Fees Following a Successful Appeal

One of the questions that comes up often in the context of appeals is whether a successful party to an appeal may recover their attorney’s fees, and if so, under what circumstances. As usual, the short answer is our favorite answer: it depends!

The general rule in Connecticut is that each party to an action pays his or her own attorney’s fees. This principle is known as the “American Rule,” which, in contrast to the English Rule, states that attorney’s fees and ordinary expenses and burdens of litigation are not recoverable by the prevailing party absent a contractual or statutory exception. This rule applies both in appeals and in the trial court. See Premier Capital, Inc. v. Grossman, 92 Conn. App. 652 (2005) (noting that a prevailing party may recover appellate attorney’s fees only if an appellate fee award is authorized by either statute or contract). The exception to this rule is that a party to an appeal may request and be awarded appellate attorney’s fees pursuant to Practice Book § 85-2, which provides that certain sanctionable actions by a party—including, for example, failure to comply with rules and orders of the court, frivolous appeals, and failure to appear at oral argument—will be subject, at the discretion of the court, to appropriate discipline, including payment of attorney’s fees to the opposing party.

Now, your next question might be, “well, what if I have a contract or an applicable statute that allows for prevailing party attorney’s fees? Would that agreement have to explicitly provide for the recovery of appellate attorney’s fees?” The short answer is no, an agreement does not have to explicitly provide for the recovery of appellate attorney’s fees. In fact, our appellate courts have generally interpreted contracts providing for recovery of attorney’s fees for “the prevailing party in any action” to include a prevailing party on appeal. See, e.g., Neiditz v. Housing Authority of City of Hartford, 42 Conn. App. 409 (1996).

With regard to statutes that allow for the recovery of attorney’s fees by prevailing parties, our appellate courts, too, have concluded that there is no distinction between a prevailing party at trial and a prevailing party on appeal, unless there is explicit language indicating otherwise. See, e.g., Freeman v. A Better Way Wholesale Autos, Inc., 191 Conn. App. 110 (2019) (“Although 42-110g (d) does not expressly state that attorney’s fees may be awarded for appellate work, Connecticut’s courts have consistently construed both contractual and statutory provisions for attorney’s fees to encompass appellate attorney’s fees unless the relevant language clearly indicates otherwise”); Gagne v. Vaccaro, 118 Conn. App. 367 (2009) (concluding that General Statutes § 52-249, which provides for recovery of attorney’s fees in foreclosure actions, includes appellate attorney’s fees despite the statute not specifically providing for appellate fees).

Pursuant to Practice Book § 11-21, motions for appellate attorney’s fees should be filed with the trial court (not the Appellate or Supreme Court) within thirty days following the date on which the Appellate Court or Supreme Court rendered its decision disposing of the underlying appeal. To be safe, it is probably best to calculate your due date from the advance release date and not the official release date. As always, the decision of whether to award such reasonable fees, as well as the amount of those fees, rests entirely within the discretion of the trial court. See Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210 (2003).

If you have more questions about whether you are entitled to attorney’s fees and costs, don’t hesitate to reach out to a member of our Appellate practice for assistance.