text:
    Robert O’Donnell v. Arthur A. Rindfleisch et al.
    (4985)
    Dupont, C. J., Bieluch and Norcott, Js.
    Argued October 5, 1987 —
    decision released January 5, 1988

      Peter Schwartz, for the appellants (defendants).

      Theodore J. Wurz, with whom, on the brief, was Maroun G. Zoghbi, for the appellee (plaintiff).
   Bieluch, J.

The plaintiff, Robert O’Donnell, brought this action on August 7,1983, against the defendants, Arthur A. Rindfleisch and Irene M. Rindfleisch, husband and wife, to collect monies allegedly due him for services rendered and materials furnished pursuant to an executed oral agreement to reshingle the roof of the defendants’ house. The defendants have appealed from the judgment rendered for the plaintiff awarding him the amount due pursuant to the parties’ agreement, less certain setoffs awarded to the defendants. We find no error.

This case presents a matter of first impression. The dispositive issue on appeal is whether the trial court erred in finding that the plaintiff had not violated either the Home Improvement Act; General Statutes §§ 20-418 through 20-431; or the Connecticut Unfair Trade Practices Act; General Statutes §§ 42-110a through 42-110q (hereinafter CUTPA); by subcontracting the defendants’ roofing work to a roofer who was not registered as a home improvement contractor under the Home Improvement Act. We conclude that the Home Improvement Act does not require that subcontractors be registered as home improvement contractors.

The trial court found the following facts. The defendants are the owners of a single-family home in Bristol. In the spring of 1983, the defendants decided to replace the roof on their house. The defendant, Irene M. Rindfleisch, noticed that a house on their street was having its roof replaced and, upon inquiry, learned that the plaintiff was the contractor. She had also noticed the plaintiffs advertisement in a local newspaper featuring a “special” promotion and found the advertised price attractive in that it was within her financial range.

Mrs. Rindfleisch contacted the plaintiff, described her needs in general terms and asked for a proposal. The plaintiff submitted a written proposal in the form of a contract executed by him. The defendants never executed this document, however, and it was agreed during the course of trial that the litigation would be based on an oral agreement executed by the plaintiff.

At the time that the authorization to proceed with the work was given to the plaintiff, the parties also agreed that the chimney on the defendants’ home was to be repointed by a subcontractor engaged by the plaintiff for the price of $175. This amount was added to the agreed upon price of $2360 for the roof work, for a total cost of $2535. The plaintiff hired a subcontractor, Hermel Levesque, to replace the roof on the defendants’ home. After the work was completed, the defendants refused to pay the plaintiff. The plaintiff filed a mechanic’s lien and commenced this action to recover the amount due.

The defendants denied the debt and alleged two special defenses: (1) that the plaintiff failed to supply the materials agreed upon and that the work was performed in a negligent, defective and unworkmanlike manner; and (2) that the agreement was an invalid unwritten home improvement contract in contravention of General Statutes § 20-419 of the Home Improvement Act. In addition, the defendants filed an amended counterclaim seeking compensation and punitive damages as well as reasonable attorney’s fees for alleged unfair or deceptive trade practices in violation of General Statutes § 42-110b of CUTPA. The allegations relevant to this appeal are as follows: (1) that in hiring the plaintiff, the defendants relied on him to have the work performed by “competent, licensed workmen and to personally supervise the work”; (2) that the defendants relied on the plaintiff’s written representations and advertisements which “represented and advertised that the plaintiff would perform said services himself”; and (3) that the work was done by “an unlicensed roofer without any supervision by the plaintiff, in violation of Section 20-427 of the Connecticut General Statutes.”

The court found that, except for noted exceptions, there had been material and substantial performance under the oral agreement between the parties. The court, however, was unpersuaded by the defendants’ legal claims. Specifically, the court found that the advertisement in the newspaper, to wit: “Bob O’Donnell sells it, installs it, and guarantees the labor and materials,” did not mean, as the defendants had claimed, that the contractor would personally install the roofing material. The court found such an interpretation unreasonable because, if correct, “no contractor could ever expand his business because he would be severely limited by the number of hours he personally could work each day.” The court found that the advertisement merely indicated that the plaintiff “sold the roofing material and installed it in the same manner that an appliance store sells appliances and services them as well, even though the servicing is subcontracted, a universal practice .now.” As to the advertised guarantees, the court concluded that because the plaintiff “assumed the responsibility for the work, it is immaterial whether he has it done by one of his employees or whether he subcontracts the installation.” The court noted that “[t]he contemporary practice is to have most of the work in construction subcontracted.”

The court also found that there was no evidence that the defendants relied upon some special skill or expertise of the plaintiff with reference to roof installation “in the manner of a patient picking a surgeon.” The defendants, the court held, “did not know O’Donnell, knew nothing of his craftsmanship or the quality of his work other than that [Mrs. Rindfleiseh] liked the looks of what she saw on one job she witnessed from the street.”

As to the issue of the licensing of the subcontractor, the court found that “[w]hether or not a subcontractor is ‘licensed’ or not is also of no concern to the owner provided the subcontractor is competent and the question of competency resolves itself to the contractor’s responsibility, who in turn has that privity with the owner.” The court concluded, therefore, that “the licensing issue, although not definitively resolved by evidence, is irrelevant to the main issue as herein defined.” The court rejected the defendants’ claim of a CUTPA violation, finding it was “of no merit, and was injected into the case for purposes of collecting attorney fees.”

The court found the plaintiff to be entitled to payment for materials furnished and work done in the amount agreed upon, diminished by a setoff of damages to be determined after a separate hearing for “shortcomings” in the plaintiffs performance of his contract. Following this hearing, the court found that the plaintiff was entitled to recover $2360, less a setoff of $1025, for a net award of $1335, for which judgment was rendered.

The defendants claim that the trial court committed reversible error in finding, as a matter of law, that the plaintiff did not commit a per se CUTPA violation by subcontracting the work at issue to a roofer who was not registered to perform such work as required by General Statutes § 20-420 of the Home Improvement Act. There is no statutory, administrative, regulatory or judicial authority making subcontractors subject to the registration and other requirements of the Home Improvement Act. Our conclusion that the plaintiff did not violate CUTPA by hiring an unregistered subcontractor to install the defendants’ roof, however, is supported by our analysis and interpretation of the Home Improvement Act and its legislative history, as well as our agreement with the trial court’s reasoning.

The defendants argue that it was the intent of the legislature that the registration requirements of the Home Improvement Act apply to subcontractors. Specifically, the defendants maintain that the definition of “contractor,” outlined in § 20-419 (3) of the Act, as well as the definition of “home improvement,” contained in § 20-419 (4), leave no doubt but that anyone who undertakes to perform roofing work is a “contractor” within the meaning of the Act and, therefore, required to register pursuant to § 20-420 (a).

“In seeking to discern legislative intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to legislative practice and policy, and to judicial construction. Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987); Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987); Gill v. Petrazzuoli Bros., Inc., 10 Conn. App. 22, 30, 521 A.2d 212 (1987).” Petti v. Balance Rock Associates, 12 Conn. App. 353, 359, 530 A.2d 1083 (1987).

Our analysis begins with the relevant language of the Home Improvement Act. Section 20-420 (a) provides that “[n]o person shall hold himself out to be a contractor or salesman without first obtaining a certificate of registration from the commissioner [of consumer protection] as provided in this chapter, except that an individual or partner, or officer or director of a corporation registered as a contractor shall not be required to obtain a salesman’s certificate.” Section 20-419 (3) defines “[contractor” as “any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement.” The definition of “[h]ome improvement,” found in § 20-419 (4), “includes but is not limited to . . . replacement . . . of . . . roofs . . . .”

This language, which sets out the registration requirement of the Home Improvement Act and defines to whom the requirement applies, makes no mention of subcontractors. It is, therefore, not apparent on the face of the act whether the legislature intended that subcontractors hired by contractors in the home improvement industry register themselves as contractors with the department of consumer protection under its terms. We point out, however, that the legislature included salesmen in the registration requirement of § 20-420, and excluded individuals, partners, and officers or directors of a registered corporation from having to register as salesmen. It is reasonable to assume that if the legislature had intended to include subcontractors within the registration requirement of the Home Improvement Act, it would have listed them as affected parties in § 20-420.

“If the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intention of the legislature and there is no room for judicial construction. Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981); Aaron v. Conservation Commission, 183 Conn. 532, 548, 441 A.2d 30 (1981); Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981). ‘When legislation contains a specific definition, the courts are bound to accept that definition.’ (Citations omitted.) International Business Machines Corporation v. Brown, 167 Conn. 123, 134, 355 A.2d 236 (1974); Toll Gate Farms, Inc. v. Milk Regulation Board, 148 Conn. 341, 347, 170 A.2d 883 (1961).” Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert, denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986).

We may also turn to the legislative history regarding the Home Improvement Act to reveal the intent of the legislature regarding the act’s scope and purpose, and the policy underlying its passage. “Before the true meaning of a statute can be determined where there is genuine uncertainty concerning its applications, consideration must be given to the problem in society to which the legislature addressed itself.” 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 45.02; see State v. Gaines, 196 Conn. 395, 400, 493 A.2d 209 (1985).

When introducing the proposed Home Improvement Act to the House of Representatives, the bill’s sponsor made the following statement: “The purpose of the bill is to provide minimal, and I stress minimal, safeguards for the consumer who contracts for home improvement work to be done on or in the home. Contractors will also benefit from this legislation, as it will regulate the influx of irresponsible and fly-by-night operations, which not only undercut the responsible contractor but also contribute to the industry’s negative image with the public.” 22 H.R. Proc., Pt. 33, 1979 Sess., pp. 11613-14, remarks of Representative William P. Candelori. Following these introductory remarks, Representative Candelori outlined the major elements of the legislation. He emphasized that the purpose of registration was primarily one of providing responsibility to the consumer.

The legislative history reveals that at no time was it intended that the registration requirement would serve as the equivalent of a licensing function, that is, to imply that a registered contractor possessed special skills or training. In fact, the contrary was expressed by Representative Candelori in these words: “While a member of the General Law Committee, I proposed the registration of home improvement contractors as an alternative to a piece of proposed legislation that was pending concerning the licensing of home improvement contractors which I felt was too restrictive and certainly too prohibitive.” Id., 11635.

The legislative history of the Home Improvement Act reveals that it was the intent of the legislature that this legislation would serve to regulate the home improvement industry by issuing certificates of registration to contractors earning more than $1000 per year who have no past history of fraud or deceit, and thereby protect consumers from any unscrupulous businessmen. Id., 11625. Nowhere in the legislative consideration is there revealed an intent to include subcontractors within the registration requirement. Its aim was targeted only at contractors who deal directly with property owners. That is evident in these words of its proposer, Representative Candelori: “[T]he act requires that every home improvement contract as defined in this piece of legislation be in writing, contain the entire agreement between the owner and contractor, and each party must have a completed copy of contract at the time the contract is executed.” (Emphasis added.) Id., 11621.

The contract between the contractor and the subcontractor is not within the purview of the act, and need not be under its purpose and premise, for by its terms the contractor is responsible to the consumer and the commissioner of consumer protection for whatever the subcontractor may do. The level of the act’s protection does not reach the contractor in his relationship with a subcontractor. In such a business relationship, the contractor is not a consumer. It is clear from the legislative record that the registered contractor was intended to be the person liable for the actions of persons he hires, employs or engages as a subcontractor to work on a homeowner’s improvement project.

In the case before us, the plaintiff, a registered contractor, hired a subcontractor to install the defendants’ new roof. The defendants were aware that the plaintiff was registered and, therefore, responsible for the completed project, regardless of the capacity of whoever actually performed the work for him. The intent of the legislature, as well as the public policy reflected in the passage of the Home Improvement Act, protected the defendants in their contract with the plaintiff, and the judgment of the court for the setoff in their favor implemented this protection. We agree with the trial court that requiring subcontractors to register as home improvement contractors would be unreasonable and unduly burdensome in an industry where most, if not all, construction work is often subcontracted for its completion by a general contractor who oversees the entire project and is responsible for the final result. The plaintiff did not violate any of the provisions of the Home Improvement Act by hiring a subcontractor to perform the reroofing work on the defendants’ home. In view of that conclusion, we also hold that the plaintiff did not thereby commit an unfair or deceptive trade practice under § 42-110b (a) as alleged in the defendants’ counterclaim. See General Statutes § 20-427 (b).

The defendants’ counterclaim of a CUTPA violation was tandem to their alleged violation of the Home Improvement Act by the plaintiff’s subcontract for performance of the work by another. Their failure to prove a violation of the Home Improvement Act establishes that the plaintiff also did not violate CUTPA. In view of that conclusion, we need not consider the defendants’ claim that the trial court also erred in denying their “motion to reopen trial” to permit testimony to establish that the subcontractor was not registered under the Home Improvement Act. Such evidence would be irrelevant and immaterial to the issues before the trial court.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 20-427 (b) provides in part: “A violation of any of the provisions of [the Home Improvement Act] shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b [of CUTPA].”

       The written offer was admitted into evidence at trial for the limited purpose of showing (1) that an offer was made, (2) what the offer was, (3) what was in the mind of the plaintiff at the time the offer was made, and (4) what the defendants had in mind when they authorized the plaintiff to proceed with the work.

       At trial, there was a dispute as to whether Hermel Levesque was in fact registered to do home improvement work at the time he performed the roofing work in question. Counsel for the defendants was denied an opportunity to produce an absent witness who, as an employee of the department of consumer protection, was allegedly to testify that Levesque was unlicensed. The court, in denying the request, held that this proof was irrelevant because it found Levesque, as a subcontractor, was not a home improvement contractor required to be registered pursuant to the applicable statute. A “motion to reopen trial” was subsequently filed by the defendants to permit the introduction of this testimony. The court denied the motion, citing its previous determination that the absent witness’s testimony would be irrelevant.

       The defendants also claim that the trial court erred in denying their “motion to reopen trial” to permit testimony that Hermel Levesque, the subcontractor who performed the work, was not properly registered. Because of the court’s ruling that any evidence as to whether the subcontractor was or was not properly registered was irrelevant, we need not address this duplicitous claim. In addition, we assume, for the sake of legal argument of the issue considered, that the subcontractor was not properly registered.

       General Statutes § 20-419 (3) provides: “ ‘[Contractor’ means any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement. The term ‘contractor’ does not include a person for whom the total cash price of all of his home improvement contracts-with all of his customers does not exceed one thousand dollars during any period of twelve consecutive months.”

       General Statutes § 20-419 (4) provides in relevant part: “ ‘Home improvement’ includes but is not limited to, the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation or addition to any land or building or that portion thereof which is used or designed to be used as a private residence or dwelling place, or the construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, insulation, solar energy systems, flooring, patios, landscaping, fences, doors and windows and water-proofing in connection with such land or building or that portion thereof which is used or designed to be used as a private residence or dwelling place, in which the total cash price for all work agreed upon between the contractor and owner exceeds two hundred dollars.”

         General Statutes § 20-420 (a) provides: “No person shall hold himself out to be a contractor or salesman without first obtaining a certificate of registration from the commissioner as provided in this chapter, except that an individual or partner, or officer or director of a corporation registered as a contractor shall not be required to obtain a salesman’s certificate.”


source: Caselaw Access Project

author: Stoughton, J.

license: Public Domain

text:
    Maria Platt v. Brian Newman et al.
    (5084)
    Dupont, C. J., Stoughton and Foti, Js.
    Argued November 14, 1987 —
    decision released January 5, 1988

      Robin J. Hammeal-Urban, with whom, was Amy Stillman Kulig, for the appellant (plaintiff).

      William F. McDonald, for the appellees (defendants).
   Stoughton, J.

This is an appeal from the denial of a permanent injunction. Because the issues have become moot, we dismiss the appeal.

The plaintiff sought temporary and permanent injunctions against the town of Enfield and two town officials under the Uniform Relocation Assistance Act (URAA); General Statutes §§ 8-266 through 8-282; in order to secure replacement housing and relocation assistance. The record contains no response to the complaint. It appears from the trial court’s memorandum of decision, however, that in order to expedite matters the parties submitted a stipulation of facts upon which the case would be decided, the sole issue to be whether a permanent injunction should issue. Under the circumstances of this case, we deem that the stipulation of facts will suffice as a responsive pleading. See Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 248, 440 A.2d 310 (1982). In addition to the use of the stipulation, the trial court held a hearing so that supplemental facts might be presented.

The plaintiff, a low-income resident of Enfield, moved into a first-floor unit in Enfield in August of 1985 with her two small children. This unit had been commercial space, and a special use permit was required from the Enfield planning and zoning commission before the space could be converted to residential use. The landlord was advised of the zoning restriction, but failed to apply for a special use permit. After there had been a fire in the unit on January 7, 1986, the Thompson-ville fire district marshall inspected the building and found many violations of the fire, safety, health, housing and building codes. The Enfield deputy building officer condemned and posted the building as unsafe, and the occupants were required to leave. The plaintiff applied to the director of community development of the town of Enfield for relocation assistance under the URAA. On January 22, 1986, her application was denied on the ground that the plaintiff had not lawfully occupied the dwelling unit. This action seeking injunctive relief followed. The plaintiff also requested a hearing before the relocation assistance appeals board of the state department of housing seeking monetary relief. The administrative hearing officer granted the plaintiffs motion for stay of proceedings pending the outcome of the action seeking injunctive relief.

The defendant moved to dismiss the action in the trial court for failure of the plaintiff to exhaust her administrative remedies. The motion to dismiss was denied and the request for monetary relief from the relocation assistance appeals board remains pending.

The trial court found that the plaintiff was forced to move because of violations of the fire safety, housing, health, building and zoning codes. It concluded that zoning codes are not included within “building code,” as that term is used in the URAA. See Dukes v. Durante, 192 Conn. 207, 216, 471 A.2d 1368 (1984). The court concluded that eligibility under the URAA is limited to persons displaced from a dwelling “actually and lawfully” occupied; General Statutes § 8-270; and that because the plaintiff occupied the premises in violation of the zoning ordinances she did not occupy the premises lawfully. It, therefore, denied the application for a permanent injunction.

During oral argument, the plaintiff conceded that she now has replacement housing and that she no longer seeks injunctive relief. She claims, however, that she is entitled to monetary relief under the URAA. The trial court did not consider any right the plaintiff might have to monetary relief because the parties had agreed that the scope of the relief sought was injunctive. The court was aware, however, of the plaintiffs claim for monetary relief from the department of housing.

Under the circumstances of this case, even if this court should conclude that the trial court was in error in denying injunctive relief, no practical relief could follow because the plaintiff no longer seeks injunctive relief, the issue upon which the trial court ruled. It is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. Waterbury Hospital v. Connecticut Health Care Associates, supra, 249; Gormley v. Panuzio, 166 Conn. 1, 3, 347 A.2d 78 (1974). The doctrine of mootness is applicable to decrees and orders relating to injunctions. Waterbury Hospital v. Connecticut Health Care Associates, supra, 249 n.3.

The appeal is dismissed.

In this opinion the other judges concurred.

       The proceedings below in this action were quite similar to those in Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 440 A.2d 310 (1982). There, a hearing to show cause why a temporary injunction should not issue was, by stipulation of the parties, allowed to proceed as though it was a hearing on the issuance of a permanent injunction. The defendants had not filed answers to the plaintiff’s complaint. Id., 248.


author: Spallone, J.

text:
    Patricia Mora v. Aetna Life and Casualty Insurance Company
    (5087)
    Dupont, C. J., Spallone and Stoughton, Js.

      Argued October 15, 1987 —
    decision released January 5, 1988

      Ross Lessack, with whom, on the brief, was Edward T. Dodd, Jr., for the appellant (plaintiff).

      Louis B. Blumenfeld, with whom, on the brief, was Ellen M. Burns, for the appellee (defendant).
   Spallone, J.

The plaintiff appeals from the judgment rendered after the trial court’s granting of the defendant’s motion to strike the plaintiff’s complaint in its entirety.

The plaintiff, Patricia Mora, instituted this action by filing a four count complaint. The first count sought damages for emotional distress which allegedly resulted from the defendant’s refusal to pay workers’ compensation benefits. In her second count, the plaintiff claimed that the defendant’s refusal to pay such benefits constituted a breach of an implied contract provision of good faith and fair dealing. The third count of the complaint alleged a violation of the Connecticut Unfair Insurance Practices Act; General Statutes §§ 38-60 and 38-61; and the fourth count alleged a violation of the Connecticut Unfair Trade Practices Act. General Statutes § 42-110b (a).

In each count, the plaintiff repeated the following allegations: “On or about April 5,1982, and at all times mentioned herein, the plaintiff . . . was an employee of New Britain Memorial Hospital . . . and was injured within the scope of that employment and hence, entitled to benefits under the Workers’ Compensation Act. ... At all times mentioned herein, the Workers’ Compensation carrier, insuring said liability of the employer . . . was the Defendant. . . . Under the Workers’ Compensation Act, the plaintiff . . . has been and is entitled to temporary total disability benefits, temporary partial disability benefits and the payment of medical, hospital, medication and related expenses. Yet, the defendant refuses to pay said benefits and bills although clearly obligated to do so under the Workers’ Compensation Act. . . . The conduct of the defendant was and is such that it knew or should have known that it would result in the infliction of emotional distress upon the plaintiff and her family. . . . As a result of the defendant’s intentional, wanton, willful and/or wrongful conduct, the plaintiff has suffered emotional distress, financial damages, and other losses and damages.”

The defendant filed a motion to strike all four counts of the plaintiff’s complaint on the grounds (1) that they were barred by the exclusive remedy provisions of the Workers’ Compensation Act, (2) that they failed to allege that the defendant admitted liability or that the workers’ compensation commissioner had made a determination of liability, and (3) that they failed to allege sufficient facts to constitute a cause of action. The motion to strike was granted and, after the plaintiff failed to file a substitute complaint within fifteen days, the trial court granted the defendant’s subsequent motion for judgment. See Practice Book § 157. The plaintiff then filed this appeal.

Although the plaintiff has presented us with five individual claims of error, all stemming from the granting of the motion to strike, there is no need for a detailed discussion of each. The fate of this case lies solely in our determination of whether the plaintiff’s complaint sufficiently stated a cognizable cause of action as a matter of law. We find that it did not.

“A motion to strike challenges the legal sufficiency of a pleading. It replaced the demurrer in our practice. Like the demurrer, it admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.” (Emphasis in original; citations omitted.) Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985); see also Sheiman v. Lafayette Bank & Trust Co., 4 Conn. App. 39, 42, 492 A.2d 19 (1984); Greene v. Metals Selling Corporation, 3 Conn. App. 40, 41, 484 A.2d 478 (1984). A motion to strike is properly granted where a plaintiff’s complaint alleges legal conclusions unsupported by facts. Simmons v. Parizek, 158 Conn. 304, 308, 259 A.2d 642 (1969). Such is the case here.

Each of the complaint’s four counts is intrinsically contingent on the same factual premise: that the plaintiff was entitled to payment of workers’ compensation benefits and that the defendant, as the employer’s insurer, was legally obligated to pay them. Yet the plaintiff did not set forth facts in her complaint which would support this premise; rather, she simply alleged that she had been injured within the scope of her employment. The plaintiff now argues that this allegation is sufficient to infer entitlement to workers’ compensation benefits.

For us to accept the plaintiff’s claim is to ignore the existence of our Workers’ Compensation Act; General Statutes § 31-275 et seq.; and the myriad caselaw interpreting those provisions. Entitlement to workers’ compensation benefits does not attach upon a mere request for payment. There must first be an injury which is embraced by one of the three exclusive types of compensable conditions defined by the act. Grady v. St. Mary’s Hospital, 179 Conn. 662, 664 n.l, 668, 427 A.2d 842 (1980); see also McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 109, 527 A.2d 664 (1987). The employee must also claim, and prove, that the injury “(1) arose out of the employment, and (2) occurred in the course of employment. McNamara v. Hamden, 176 Conn. 547, 550, 398 A.2d 1161 (1979).” Luddie v. Foremost Ins. Co., 5 Conn. App. 193, 195, 497 A.2d 435 (1985). There must also be adequate notice to the employer, within the statutory period. General Statutes § 31-294; Vegliante v. New Haven Clock Co., 143 Conn. 571, 580, 124 A.2d 526 (1956). Finally, the employer’s liability to compensate the employee must be established. There are only three ways to fix an employer’s liability: first, by the employer’s failure to contest liability within twenty days of receiving notice of the injury as required by General Statutes § 31-297 (b); see Bush v. Quality Bakers of America, 2 Conn. App. 363, 479 A.2d 820, cert, denied, 194 Conn. 804, 482 A.2d 709 (1984), and cases cited therein; second, by the commissioner’s approval of a written voluntary agreement entered into by the employer and employee pursuant to General Statutes § 31-296; and third, where the employer contests liability and the parties fail to reach an agreement, by the adjudication of the claim by the workers’ compensation commissioner and the granting of an award to the employee.

The plaintiff disregards all of these requirements, claiming that the exclusive remedy provisions of the Workers’ Compensation Act control only her right to proceed against her employer and do not prohibit the bringing of this action against the employer’s insurer. Whether or not this assertion is accurate; see Coollick v. Windham, 7 Conn. App. 142, 148, 508 A.2d 46 (1986); the plaintiff’s claim must fail in light of the fact that her complaint did not sufficiently allege that her entitlement to workers’ compensation benefits had attached. At the time the plaintiff filed her complaint, the insurer’s duty to pay compensation had not yet arisen.

There is no error.

In this opinion the other judges concurred.

       The plaintiff claims that the trial court erred (1) in deciding that the complaint was brought prematurely because of the lack of allegations concerning liability, (2) in concluding that there is an inseparable identity between the employer and its insurance carrier in this case, (3) in concluding that the employer’s immunity from a common law negligence action is applicable to the insurer, (4) in concluding that the complaint was factually insufficient concerning the employer’s liability although the defendant did not request a revision, and (5) in striking the nonnegligence counts in the plaintiffs complaint.

       If the employer elects to exercise his statutory right to contest his liability to pay compensation, a hearing must be held. General Statutes § 31-297. At this hearing, “the plaintiff has the burden of proving that his injuries were sustained in the course of his employment and that they arose out of that employment.” Dombach v. Olkon Corporation, 163 Conn. 216, 221, 302 A.2d 270 (1972).

       To presume that the defendant’s obligation to initiate payments could possibly arise before the employer’s liability to compensate had been established, is contrary to the tenets and principles of insurance law. “The liability of the insurer can be no greater than that of the insured employer. The measure of a compensation insurer’s liability under a policy issued under and pursuant to [the workers’ compensation] statutes is the employer’s liability to the injured employee under the compensation act.” 15A G. Couch, Insurance 2d (1983) § 56:53, p. 80.


author: Foti, J.

text:
    State of Connecticut v. Christopher Foster
    (5608)
    Borden, Stoughton and Foti, Js.
    Argued November 3, 1987 —
    decision released January 12, 1988

      Michael A. Georgetti, for the appellant (defendant).

      Joseph C. Morelli, special assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgments of conviction rendered after he entered a conditional plea of nolo contendere to two counts of larceny in the sixth degree in violation of General Statutes § 53a-125b, two counts of burglary in the third degree in violation of General Statutes § 53a-103, and one count of criminal mischief in the third degree in violation of General Statutes § 53a-117, following the denial of the defendant’s motion to suppress. The defendant claims on appeal that the court erred (1) in finding that the police had sufficient articulable grounds to stop him, (2) in finding that the duration of the stop did not exceed constitutional limits, and (3) in refusing to suppress evidence obtained incidental to his arrest. We find no error.

The essential facts are not in dispute. On the morning of June 19, 1986, Officers William Gervais and Sabastian Basile of the Hartford police department were dispatched, at approximately 4:40 a.m., to 90 Henry Street where they received a complaint that a pickup truck had been burglarized. The complainant described the suspects as two black males who jumped from the vehicle and ran south toward Roxbury Street, which intersects with Henry Street. On their arrival, the police observed that the pickup truck had a broken window, evidence which supported the complainant’s statement that the vehicle had been burglarized. The police further determined that another vehicle in the area had also been broken into. They began an immediate search of that area. Gervais stopped a vehicle occupied by two black men. While obtaining the defendant’s driver’s license and vehicle registration, Gervais recognized him as the same individual he had arrested in early 1986 in connection with the burglary and larceny of another motor vehicle in the area.

At the time of the initial stop, the police observed a box of cassette tapes on the front seat of the vehicle which they suspected were taken from the pickup truck. The defendant was detained for approximately one hour while the police located the pickup truck’s owner, and brought him to where the defendant was being detained. The owner immediately identified the box of cassette tapes as his, at which point the defendant and his passenger were arrested and the defendant’s vehicle was searched. The owner of the second vehicle later identified certain items which had been taken from his vehicle. The court denied the defendant’s motion to suppress from evidence the items seized from his vehicle at the time of his arrest.

I

The defendant claims that the police lacked sufficient articulable grounds for stopping him in the first instance. “[T]he precise issue before this court is not whether the police had probable cause to arrest the defendant but rather whether the investigative stop was justified by ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’ Terry v. Ohio, [392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)].” State v. Aillon, 202 Conn. 385, 399, 521 A.2d 555 (1987). “In reviewing the police officers’ actions in this case, we must determine, first, whether the stop was justified at its inception, and second, whether the ensuing police response was ‘reasonably related in scope to the circumstances which justified the interference in the first place.’ Terry v. Ohio, supra, 19-20; United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985) . . . .” State v. Aillon, supra, 399.

The court articulated several factors which gave the police reasonable suspicion for stopping the defendant. These included (1) the temporal proximity of the stop to the reported crime, (2) the geographical proximity of the scene of the crime to the location where the defendant was stopped, (3) the fact that the defendant’s vehicle was the only one moving in the immediate vicinity of the crime at 4:50 a.m., and (4) the neighborhood in which the two black men were stopped was a predominantly white neighborhood.

The defendant contends that the reasons for stopping him articulated by the police and accepted by the court do not meet the test for reasonable suspicion enunciated in Terry v. Ohio, supra, and its progeny in our state. We disagree.

“ ‘Proximity in time and place of the stop to the crime is highly significant’ in the determination whether the police action was reasonable.” State v. Aversa, 197 Conn. 685, 691, 501 A.2d 370 (1985); State v. Carter, 189 Conn. 611, 616-17, 458 A.2d 369 (1983). If the number of people in the area of a felony is sufficiently small, then under appropriate circumstances an investigative stop may be made without any description of the perpetrator whatsoever. See 3 W. LaFave, Search and Seizure (2d Ed.) § 9.3 (d), pp. 469-71.

Here, there were myriad facts supporting the reasonable suspicion of the police: the perpetrators were described as two black males; the defendant’s car was the only vehicle moving in the immediate area of the felony at approximately 4:50 a.m., shortly after the break-in was reported; and the defendant was stopped within blocks of the break-in, minutes after it had occurred. These facts present clearly articulable grounds for an investigative stop.

II

The defendant’s second claim is that his detention for approximately one hour, while the Hartford police determined the identity of the pickup truck’s owner and brought him to the scene of the stop, exceeded the parameters of an investigative stop under United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985), and Terry v. Ohio, supra.

The limits of an investigative stop to investigate past criminal conduct cannot be precisely defined. “The proper way to identify the limits is to apply the same test already used to identify the proper bounds of intrusions that further investigations of imminent or ongoing crimes. That test, which is grounded in the standard of reasonableness embodied in the Fourth Amendment, balances the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion.” United States v. Hensley, 469 U.S. 221, 228, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985); State v. Mitchell, 7 Conn. App. 46, 60, 507 A.2d 1017 (1986), aff’d in part and rev’d in part on other grounds, 204 Conn. 187, 527 A.2d 1168, cert, denied, U.S., 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). Determination of the means and duration that are reasonably necessary for an investigative stop depends on a fact-bound examination of the particular circumstances. See State v. Braxton, 196 Conn. 685, 689, 495 A.2d 273 (1985). The principal factor in this determination is whether the police acted diligently under the circumstances to dispel or confirm their suspicions. United States v. Sharpe, supra, 686-87.

The one hour stop of the defendant was reasonable under the circumstances in this case. The police first determined the identity of the owner of the pickup truck. They were then required to find the owner at approximately 4:50 a.m., a time of day when few people were available to provide information regarding the owner’s whereabouts. Finally, the police transported the owner of the pickup truck to the scene of the stop. Any delay which resulted cannot be attributed to a lack of diligence on the part of the police. See State v. Mitchell, supra, 49. Thus, the detention of the defendant was reasonably calculated to maintain the status quo. See United States v. Richards, 500 F.2d 1025 (9th Cir. 1974), cert, denied, 420 U.S. 924, 95 S. Ct. 1118, 43 L. Ed. 2d 393 (1975) (one hour detention held reasonable).

Ill

The defendant’s final claim is that the trial court erred in refusing to suppress evidence obtained at the time of his arrest because the search failed to meet any of the recognized exceptions to the warrant requirement. We disagree.

“We note at the outset that a search conducted without a warrant issued upon probable clause is per se unreasonable, subject only to a few specifically established and well delineated exceptions.” State v. Lizotte, 11 Conn. App. 11, 17, 525 A.2d 971, cert, denied, 204 Conn. 806, 528 A.2d 1154 (1987). “If evidence obtained without a warrant was obtained as a result of a valid search and seizure incident to a lawful arrest, such evidence was not illegally obtained and is admissible.” Id. “A police officer is authorized to arrest, without a warrant, ‘any person who the officer has reasonable grounds to believe has committed or is committing a felony.’ General Statutes § 54-If (b); State v. Dennis, 189 Conn. 429, 431, 456 A.2d 333 (1983).” State v. Carey, 13 Conn. App. 69, 72, 534 A.2d 1234 (1987).

Once the defendant’s vehicle was stopped, the suspicions of the police were heightened because Gervais recognized the defendant as the individual he had arrested earlier in the year for burglarizing a vehicle in the same area. In addition, the police were able to see, in plain view, a box of cassette tapes in the defendant’s automobile. After the owner of the pickup truck had been located and transported to the scene of the stop, he immediately identifed the cassette tapes as his. These facts exceeded the minimal requirements of probable cause necessary for a lawful arrest. See State v. Carey, supra. The seizure of the cassette tapes and other evidence was incidental to that lawful arrest. State v. Lizotte, supra. Thus, we can find no error in the trial court’s refusal to suppress the evidence obtained as a result of the search.

There is no error.

In this opinion the other judges concurred.

       The defendant has not raised any issue regarding the observation of the seized evidence under the plain view doctrine. Nevertheless, we note that the police observed the seized evidence inadvertently while examining the defendant’s driver’s license as a result of a legal stop, thus meeting the test of the plain view doctrine. See State v. Altrui, 188 Conn. 161, 179, 448 A.2d 837 (1982).


text:
    State of Connecticut v. Willie Manson
    (5801)
    Borden, Stoughton and Foti, Js.
    Argued November 3, 1987 —
    decision released January 12, 1988

      Michael A. Georgetti, for the appellant (defendant).

      Joseph C. Morelli, special assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgments of conviction rendered after he entered a conditional plea of nolo contendere to two counts of burglary in the third degree, in violation of General Statutes § 53a-103, following the denial of his motion to suppress. The defendant claims on appeal that the court erred (1) in finding that the police had sufficient articulable grounds to stop him, (2) in finding that the duration of the stop did not exceed constitutional limits, (3) in refusing to suppress evidence obtained incidental to his arrest, and (4) in finding that the defendant did not have a reasonable expectation of privacy in the vehicle in which he was a passenger. We find no error.

This appeal arises from the same factual background as State v. Foster, 13 Conn. App. 214, 535 A.2d 393 (1988). The defendant’s first three claims of error are identical in all respects to the claims raised by the defendant in State v. Foster, supra. Unless this defendant can establish, however, that he had a reasonable expectation of privacy in the area of the vehicle searched, we need not reach those claims with respect to him.

The defendant’s remaining claim, therefore, is that the court erred in finding that he lacked the requisite expectation of privacy in Foster’s automobile to challenge its search. We find that this claim lacks merit.

“A person may not object to the introduction of evidence resulting from an illegal search unless he first proves that he was a victim of that search. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980). One is a victim of a search when it violates his reasonable expectation of privacy in the area searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387, reh. denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1978). Therefore, the first question that must be answered in any suppression case is whether the individual who seeks suppression had a reasonable expectation of privacy in the area searched. Id. ‘This inquiry . . . normally embraces two discrete questions. The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” [Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)] .... The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable,’ ” id., at 361 . . . . ’ Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); State v. Zindros, 189 Conn. 228, 236, 456 A.2d 288, cert, denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1983).” State v. Daay, 5 Conn. App. 496, 498, 500 A.2d 248 (1985).

In this case, the defendant has neither demonstrated a possessory interest in Foster’s car or in any of the seized evidence. Nor has he established a reasonable expectation of privacy in the area searched. State v. Altrui, 188 Conn. 161, 179, 448 A.2d 837 (1982).

The defendant’s claim that he should be permitted to challenge the search because he has a possessory interest in his person is little more than a rephrasing of the argument that, having been charged with a possessory crime, the defendant can challenge a search. This argument has been unequivocally rejected. United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980); State v. Altrui, supra; State v. Daay, supra, 499. The area searched was not the defendant’s person; it was, instead, the front seat of Foster’s automobile. We conclude, therefore, that the court ruled correctly in finding that the defendant lacked the requisite reasonable expectation of privacy in the front seat of Foster’s automobile so as to challenge the search.

There is no error.

In this opinion the other judges concurred.

       The defendant claims that he had standing to challenge the search. A separate inquiry into whether a defendant has standing is no longer conducted. Rather, the inquiry is limited to whether the defendant had a reasonable expectation of privacy in the area searched. State v. Daay, 5 Conn. App. 496, 497 n.3, 500 A.2d 248 (1985).


author: Dupont, C. J.

text:
    General Motors Acceptance Corporation v. Linda Pumphrey et al.
    (5380)
    Dupont, C. J., Stoughton and Foti, Js.

      Argued November 4, 1987 —
    decision released January 12, 1988

      Michael P. Del Sole, with whom, on the brief, was Vincent J. Beime, for the appellant (third party defendant Aetna Casualty and Surety Co.).

      Michael Brodinsky, for the appellees (defendants-third party plaintiffs).
   Dupont, C. J.

This is an appeal from the trial court’s denial of the third party defendant’s motion to open judgment. The basic issue to be decided is whether the failure to issue a summons to a party precluded the court from obtaining personal jurisdiction over that party, thereby voiding a judgment by default for failure to appear rendered more than four months prior to the motion to open the judgment.

The plaintiff, General Motors Acceptance Corporation (GMAC), brought an action against the defendants, Linda and Stephen Pumphrey, for failure to make payments pursuant to a retail installment contract for the purchase of an automobile. Payments apparently ceased after a collision involving the vehicle. The defendants claimed by way of special defense that the plaintiff had represented that it would obtain collision insurance for the automobile.

The defendants’ motion to implead Aetna Casualty and Surety Company (Aetna) was granted by the trial court. The defendants claimed that there was an insurance policy in force between GMAC and Aetna covering the automobile. The record indicates that Aetna was served with a copy of the third party complaint, the order granting the motion to implead, and a copy of the original writ of attachment and complaint against the third party plaintiffs. The order granting the motion to implead contained a return date but Aetna was never served with a third party writ of summons.

GMAC’s motion for default against Aetna for failure to appear was granted by the trial court. No notice of the granting of the motion was sent to Aetna in accordance with Practice Book §§ 352 (b) and 121 (b) which require service of the defaulting party with a copy of the motion. Pursuant to a stipulation of the appearing parties, a trial referee found that judgment should enter for the plaintiff against the defendants in the amount of $12,812.27, together with $123.20 in costs, and in favor of the third party plaintiffs, Linda and Stephen Pumphrey, against the third party defendant, Aetna, in the amount of $12,935.47, with costs of $31.80. Judgment was rendered by the trial court on December 10, 1985, in accordance with the referee’s report. Aetna did not receive notice of the judgment. The third party plaintiffs’ application for bank execution proceedings against Aetna dated April 24, 1986, was subsequently granted which resulted in satisfaction of the judgment.

On June 23, 1986, Aetna filed an appearance and a motion to open the judgment. In its motion, it alleged that the judgment of the trial court concerning Aetna was void for lack of in personam jurisdiction because Aetna was never served with a third party writ of summons. The trial court denied the motion to open judgment. The trial court stated in its memorandum of decision that Aetna had not demonstrated reasonable cause for its failure to file the motion to open within four months following judgment, as required by General Statutes § 52-212 (a) and Practice Book § 326.

Service of process on a party in accordance with the statutory requirements is a prerequisite to a court’s exercise of in personam jurisdiction over that party. White-Bowman Plumbing & Heating, Inc. v. Biafore, 182 Conn. 14, 16-17, 437 A.2d 833 (1980); Clover v. Urban, 108 Conn. 13, 17, 142 A. 389 (1928). “In the absence of a voluntary appearance, the issuance and service of process or notice is indispensable to the jurisdiction of a court to determine the adverse claims of parties to the litigation. Until notice is given to the defendant of the action or proceedings against him, and he is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment against him even though it may have jurisdiction of the subject matter. One who is not served with process does not have the status of a party to the proceeding. The parties and their case must be brought before the court, and this is accomplished by the use of process.” 62 Am. Jur. 2d, Process § 3. A court has no jurisdiction over persons who have not been made parties to the action before it. See Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987); Graham v. Zimmerman, 181 Conn. 367, 373, 435 A.2d 970 (1980).

The third party defendant in this case did not receive service of process as required by General Statutes § 52-45a. A writ must contain a direction to a proper officer for service and a command to summon the defendant to appear in court. Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 340, 170 A.2d 732 (1961). If there is no writ of summons attached to a complaint, the court lacks jurisdiction. See Basilicato v. Department of Public Utilities Control, 197 Conn. 320, 497 A.2d 48 (1985). The trial court never gained the in personam jurisdiction over the third party defendant which is necessary to impose a binding judgment because the third party defendant never received a writ of summons. A court is without power to render a judgment if it lacks jurisdiction of the parties or of the subject matter. In such cases, the judgment is void, has no authority, and may be impeached. Broaca v. Broaca, 181 Conn. 463, 468, 435 A.2d 1016 (1980). A trial court’s authority to open such judgments does not arise from General Statutes § 52-212 (a) or Practice Book § 326 but from its inherent power to open a judgment rendered without jurisdiction. Id., 466-67.

“No principle is more universal than that the judgment of a court without jurisdiction is a nullity. . . . Such a judgment, whenever and wherever declared upon as a source of right, may always be challenged.” Samson v. Bergin, 138 Conn. 306, 312, 84 A.2d 273 (1951). “If a court has never acquired jurisdiction over a defendant or the subject matter . . . any judgment ultimately entered is void and subject to vacation or collateral attack.” Broaca v. Broaca, supra, 468.

The ability of the third party defendant to challenge the jurisdiction of the trial court is not prejudiced by its failure timely to file a motion to open judgment pursuant to Practice Book § 326. “After the expiration of the four month period provided by § 326 a judgment may not be vacated upon the sole ground that it is erroneous in matter of law, except by a court exercising appellate or revisory jurisdiction . . . unless the error is one going to the jurisdiction of the court rendering the judgment. Kalinick v. Collins Co., 116 Conn. 1, 7-8, 163 A. 460 (1932). The court does have inherent authority . . . at any time to open and modify a judgment rendered without jurisdiction.” Misinonile v. Misinonile, 190 Conn. 132, 134-35, 459 A.2d 518 (1983); see Bartels v. International Commodities Corporation, 435 F. Sup. 865, 867 (D. Conn. 1977).

The failure of the third party plaintiff to effect service of a writ of summons on Aetna resulted in Aetna never actually becoming a party to the trial court’s proceedings. Our Supreme Court long ago stated that “the judgment of a court of even general jurisdiction cannot affect a person who had no notice to appear. As to him the proceedings are corum non judice. ” Parsons v. Lyman, 32 Conn. 566, 577 (1863).

The third party plaintiffs also argue that a satisfied judgment cannot be opened by a court. They cite no Connecticut authority for this proposition. The payment by Aetna of the judgment was involuntary and does not preclude an appeal or preclude the opening of the judgment on appeal. Reilly v. State, 119 Conn. 217, 222, 175 A. 582 (1934); see also annot., 39 A.L.R.2d 153.

There is error, the judgment against the third party defendant is set aside and the case is remanded for farther proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 52-102a provides, in pertinent part: “(a) A defendant in any civil action may move the court for permission as a third-party to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiffs claim against him. The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded.
      “(b) The writ, summons and complaint so served shall be equivalent in all respects to an original writ, summons and complaint . . . .”
      The defendants’ motion to implead a second insurance company, Aetna Insurance Company, was also granted.

       No motion for default against Aetna Insurance Company was ever made and Aetna Insurance Company is not involved in this case.

       The default entered on October 15,1984. The third party plaintiffs certified notice of the motion for default to all counsel of record. Since the third party defendant had no counsel of record, it did not receive notice. The third party plaintiffs argue that the third party defendant had actual notice of the litigation because the latter received a certified letter from an attorney for the third party plaintiffs notifying it that he had inadvertently filed an appearance on behalf of Aetna. The letter, however, is dated April 18, 1985, six months after the default had entered.

       Practice Book § 354 requires that “[a] notice of every . . . judgment after default for failure to enter an appearance, which notice includes the terms of the judgment, shall be mailed forthwith by counsel of the prevailing party to the party against whom it is directed . . . .”

       General Statutes § 52-212 provides in pertinent part: “(a) Any judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”
      Practice Book § 326 provides in pertinent part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.”

       General Statutes § 52-45a provides: “Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day and the date and place for the filing of an appearance.” General Statutes § 52-102a (b) provides that the writ, summons and complaint served on a third party defendant shall be “equivalent in all respects to an original writ, summons and complaint.”


text:
    Rotophone, Inc., et al. v. Danbury Hospital
    (5146)
    Dupont, C. J., Bieluch and Norcott, Js.
    Argued October 5, 1987 —
    decision released January 12, 1988

      Alan Neigher, with whom, on the brief, was Carolyn Comerford, for the appellants (plaintiffs).

      Ted D. Backer, for the appellee (defendant).
   Dupont, C. J.

The plaintiffs appeal from the trial court’s granting of summary judgment in favor of the defendant on the two counts of the plaintiffs’ complaint. The plaintiffs Rotophone, Inc., and Delong Answerphone, Inc., operate telephone answering services in the city of Danbury. Prior to 1982, the plaintiffs provided telephone answering services to the defendant Danbury Hospital for its staff physicians. In 1982, Dan-bury Hospital commenced operation of a telephone answering service for its medical staff.

The plaintiffs allege in the first count of their complaint that the defendant’s operation of a telephone answering service violated the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; and, in the second count, that the operation constituted a tortious interference with the plaintiffs’ business expectancy. The crux of the plaintiffs’ allegation that CUTPA is being violated is that the defendant, a tax-exempt corporation, is conducting an unrelated trade or business as defined in § 513 of the Internal Revenue Code and is, therefore, engaging in unfair competition. The second count of the plaintiffs’ complaint contains allegations that the tortious interference is the solicitation by the defendant of the plaintiffs’ customers and the offering of financial inducements to them to change answering services.

The parties submitted affidavits and counteraffidavits in support of, and in opposition to, the defendant’s motion for summary judgment. The plaintiffs claim that the trial court erred (1) in holding that the plaintiffs’ CUTPA claim is subject to the public interest requirement set forth in Ivey, Barnum & O’Mar a v. Indian Harbor Properties, Inc., 190 Conn. 528, 461 A.2d 1369 (1983), (2) in concluding that the defendant’s answering service was limited to its own medical staff, and (3) in holding that the plaintiffs did not state a cause of action on their claim of tortious interference with a business expectancy. We find no error.

A trial court may appropriately grant a motion for summary judgment only when the affidavits and evidence submitted in support of the motion demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Catz v. Rubenstein, 201 Conn. 39, 48-49, 513 A.2d 98 (1986); Barnes v. Schlein, 192 Conn. 732, 738, 473 A.2d 1221 (1984). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact, a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. Stradav. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party. United States Fidelity & Guaranty Co. v. Metropolitan Property & Liability Ins. Co., 10 Conn. App. 125, 130, 521 A.2d 1048, cert. denied, 203 Conn. 806, 525 A.2d 521 (1987).

The plaintiffs’ first claim is that the trial court erred in holding that they were required to demonstrate a nexus with the public interest as a prerequisite to recovery under CUTPA. Alternatively, the plaintiffs argue that such an element was present in this case.

Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., supra, 537, holds that “suits undertaken pursuant to CUTPA must demonstrate some nexus with the public interest.” The public interest requirement of a private action under CUTPA was subsequently eliminated by the legislature. This change, however, was not retroactive in effect. Fortini v. New England Log Homes, Inc., 4 Conn. App. 132, 137 n.1, 492 A.2d 545 (1985). Therefore, the trial court did not err in holding that in order to succeed on a CUTPA action commenced prior to June 8, 1984, as this case was, a plaintiff must demonstrate a nexus with the public interest.

Furthermore, the plaintiffs failed to allege in their complaint, or in their counteraffidavit opposing the motion for summary judgment, any nexus between their CUTPA claim and the public interest. The plaintiffs argue in their brief, however, that the public interest is implicated in this case because the defendant’s telephone answering service is not limited to its own medical staff, but is available to the medical community at large. The plaintiffs failed, however, to provide any support for this contention, while the defendant clearly demonstrated the limited nature of its telephone answering service in its affidavit in support of the motion for summary judgment. Indeed, the plaintiffs’ counteraffidavit confirms that the defendant’s answering service is only available to its own medical staff. Thus, there is no issue of material fact as to whether the defendant’s telephone answering service is limited solely to its own medical staff. There is, therefore, no merit to the plaintiffs’ claim that if a public interest were required, such an element was present. See Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., supra, 540. In the absence of a genuine issue of material fact as to the existence of some nexus between the plaintiffs’ CUTPA claim and the public interest, the trial court correctly granted summary judgment for the defendant.

The plaintiffs finally claim error in the trial court’s granting of summary judgment to the defendant on the plaintiff’s claim of tortious interference with a business expectancy. In order to succeed on such a claim, a plaintiff must do more than show that the defendant’s actions proximately caused a loss to the plaintiffs’ businesses. A cause of action for tortious interference with a business expectancy requires proof that the defendant was guilty of fraud, misrepresentation, intimidation, molestation, or that the defendant acted maliciously. Sportsmen’s Boating Corporation v. Hensley, 192 Conn. 747, 754, 474 A.2d 780 (1984). A plaintiff is required to plead and eventually to prove at least some improper motive or improper means by the defendant. Blake v. Levy, 191 Conn. 257, 262, 464 A.2d 52 (1983). We agree with the trial court’s conclusion that the plaintiffs failed to demonstrate in their affidavits or evidence that there was a genuine issue of material fact to be decided or that, as a matter of law, the defendant had used any improper means or motive in its operation of a telephone answering service. Conversely, the defendant had demonstrated that there was no issue of any material fact in dispute and that it was entitled to judgment as a matter of law.

The plaintiffs argue that the defendant’s alleged operation of an unrelated trade or business, purportedly constituting an unfair method of competition, meets the improper means requirement set forth in Blake v. Levy, supra. The plaintiffs’ argument is flawed, however, in that they failed to establish that the defendant’s conduct is in fact an unrelated trade or business as defined in § 513 of the Internal Revenue Code. Section 513 (a) (2) clearly exempts from its aegis any trade or business “which is carried on by the [tax-exempt] organization primarily for the convenience of its members, students, patients, officers or employees . . . .” The defendant’s telephone answering service fits squarely into the exemption set forth in § 513 (a) (2). The defendant may operate a telephone answering service for the convenience of its medical staff. The plaintiffs’ argument of improper means is entirely premised on their unsupported contention, discussed supra, that the defendant’s telephone answering service is available to all physicians, not just members of the defendant’s staff. “ ‘While our cases have not focused with particularity on what acts of interference are tortious . . . it [is] clear that not every act that disturbs a contract or business expectancy is actionable.’ ” Kakadelis v. DeFabritis, 191 Conn. 276, 279, 464 A.2d 57 (1983). Such is the case here, and the trial court properly granted summary judgment.

There is no error.

. In this opinion the other judges concurred.

       The plaintiff Connecticut Association of Telephone Answering Services, an unincorporated association composed of private telephone answering services, is involved in the first count only of the complaint. Rotophone, Inc., and Delong Answerphone, Inc., are members of the Connecticut Association of Telephone Answering Services.

       Section 513 of the Internal Revenue Code provides in pertinent part: “(a) The term ‘unrelated trade or business’ means . . . any trade or
      business the conduct of which is not substantially related ... to the exercise or performance by [an] organization of its charitable, educational, or other purpose or function constituting the basis for its exemption . . . except that such term does not include any trade or business—
      “(2) which is carried on . . . by the organization primarily for the convenience of its members, students, patients, officers, or employees Sections 511 and 512 of the Internal Revenue Code set forth the extent to which an unrelated trade or business of an otherwise tax-exempt organization is subject to taxation.

       The plaintiffs conceded during oral argument before this court that the service was only available to the defendant’s own medical staff. Thus, this claim of error need not be considered.

       Public Acts 1984, No. 84-468, §§ 2, 4 (effective June 8, 1984); General Statutes §§ 42-110g, 42-110m.

       We decline the plaintiffs’ invitation to overrule Fortini v. New England Log Homes, Inc., 4 Conn. App. 132, 492 A.2d 545 (1985), and to follow Wilson v. Fireman’s Ins. Co., 40 Conn. Sup. 336, 337-40, 499 A.2d 81 (1985) (holding that Public Acts 1984, No. 84-468 is retroactive in effect).

       Paragraph 9 of the plaintiffs’ counteraffidavit, marked as exhibit A, sets forth:
      “In 1982, Danbury Hospital began operating a telephone answering service for its employee physicians and for private physicians who were members of its staff, but were neither employed by or had offices at the hospital.” (Emphasis added.)

       Even if it were assumed that the defendant’s conduct constituted an unrelated trade or business by a tax-exempt organization as defined in the Internal Revenue Code, it would not necessarily follow that the defendant was engaged in an unfair method of competition. Rather, as the trial court correctly pointed out, such a determination would simply mean that the defendant would be required under the federal tax code to pay taxes on its unrelated business.


author: Per Curiam.

text:
    Kelly Energy Systems, Inc. v. Commercial Industries Corporation et al.
    (4807)
    Borden, Bieluch and O’Connell, Js.
    Argued November 12, 1987 —
    decision released January 12, 1988

      Richard E. Greenspan, for the appellant (named defendant).

      Maureen S. Caine, for the appellee (plaintiff).
   Per Curiam.

The named defendant appeals from the judgment rendered, after a court trial, in favor of the plaintiff on the first count of the complaint. We have fully reviewed the named defendant’s three claims of error. With respect to its first two claims, it is dispositive that the trial court employed an erroneous measure of damages. The court found that the plaintiffs employee negligently caused the roofing materials, which were the subject of the contract between the parties, to leak. This finding was consistent with the claim of the named defendant in its special defense and counterclaim that the roofing materials were installed in a defective manner. Thus, the court had no basis to award, as it did, a recovery to the plaintiff measured by the sales price of the materials supplied by the plaintiff less a 20 percent discount to the named defendant. See Johnson v. Flammia, 169 Conn. 491, 499, 363 A.2d 1048 (1975). Although the named defendant did not move for articulation of the court’s decision, it is clear that, no matter how the award is viewed, it was the result of a method of calculation of damages not contemplated by our law. This conclusion makes it unnecessary to review the named defendant’s third claim of error. Furthermore, since in this case the issue of liability is so inextricably intertwined with the issue of damages, a new trial on both is required in the interest of justice.

There is error, the judgment is set aside and the case is remanded for a new trial.


text:
    State of Connecticut v. Marion Frasier
    (5735)
    Spallone, Bieluch and Norcott, Js.
    Argued December 15, 1987 —
    decision released January 12, 1988

      Kenneth Shluger, for the appellant (defendant).

      Jack W. Fischer, certified legal intern, with whom was Judith Rossi, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant is appealing his conviction, after a jury trial, of the crime of attempted assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1).

The defendant, a correction officer employed by the state of Connecticut, while off duty but in uniform, engaged in a fist fight with the victim. At the conclusion of the altercation, the defendant left the immediate scene and returned with a handgun. The defendant sought the victim and picked him out of the crowd which had gathered because of the previous fight. The victim then attempted to run away, but slipped and fell. The defendant, holding the gun in a two-handed grip, shot the victim, who was lying on the ground. The bullet passed completely through the victim’s leg. As the victim struggled to his feet, the defendant shot him again, the bullet grazing the victim’s left shoulder. The victim staggered part way down the street and collapsed into unconsciousness. The defendant was arrested and tried by a jury which found him guilty of attempted assault in the first degree.

The sole claim of error before this court is that the evidence submitted at the trial by the state was insufficient to prove beyond a reasonable doubt that the defendant had the specific intent to cause serious physical injury to the victim. We disagree.

Our review of the record, transcript and briefs discloses ample evidence to support the jury’s verdict. The question of intent is purely a question of fact to be determined by the jury. See State v. Miller, 202 Conn. 463, 486, 522 A.2d 249 (1987); State v. Chace, 199 Conn. 102, 105, 505 A.2d 712 (1986); State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984); State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert, denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981); State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980).

There is no error.