author: HEALEY, J.

text:
    HELMUT STEINER ET AL. v. MIDDLESEX MUTUAL ASSURANCE COMPANY
    (15766)
    Dupont, C. J., and Lavery and Healey, Js.
    Argued October 31, 1996
    officially released March 11, 1997

      Joel J. Rottner, with whom was Robyn L. Sondak, for the appellant (defendant).

      Frank J. Kolb, Jr., with whom, on the brief, was David Crow, for the appellees (plaintiffs).
   HEALEY, J.

This case arises out of a dispute over a fire loss between residential property owners and their fire insurer. The defendant, Middlesex Mutual Assurance Company, had issued a homeowner’s insurance policy to the plaintiffs, Helmut Steiner and Michelle Steiner, insuring their Westport residence against loss or damage by fire. On August 18, 1992, their residence was extensively damaged by fire. The parties were unable to agree on the value of the damages, and they, therefore, agreed to have the matter of the loss determined through an appraisal process provided under the policy. The parties thereafter, on January 26, 1993, executed, inter alia, on a printed form the following memorandum of appraisal:

“This memorandum by and between Helmut Steiner & Michelle Brown Steiner of the first part and the Middlesex Mutual Insurance Company of the second part:

“Witnesseth: that whereas the party of the first part claims to have sustained a loss by Fire occurring on the 18th day of August 1992 to and upon the following described property to wit: Building & Code up Grades & establish length of repair period. 249 Greens Farms Road Westport CT and

“Whereas policy # 1277049 issued by the party of the second part to the party of the first part provides as follows:

“2. Appraisal
“If the insured and the company fail to agree as to the amount of loss, each shall, on the written demand of either, made within sixty days after receipt of proof of loss by the company, select a competent and disinterested appraiser, and the appraisal shall be made at a reasonable time and place. The appraisers shall first select a competent and disinterested umpire, and failing for fifteen days to agree upon such umpire, then, on the request of the insured or the company, such umpire shall be selected by a judge of a court of record in the county and state in which such appraisal is pending. The appraisers shall then appraise the loss, stating separately the actual cash value at the time of loss and the amount of loss, and failing to agree shall submit their differences to the umpire. An award in writing of any two shall determine the amount of loss. The insured and the company shall pay his or its chosen appraiser and shall bear equally the other’s expenses of the appraisal and the umpire.’ and,
“Whereas, a disagreement has arisen between the parties hereto as to the amount of such loss.
“Therefore This Memorandum Witnesseth: that in conformity to the terms and conditions of the policy of the party of the second part, Dallas Dodge Sr. . . . and Alan Tancreti . . . have been selected and are hereby appointed appraisers, to appraise, in accordance with the terms and conditions of said policy, the replacement value of said property and the amount of loss directly caused by said fire to and upon the same. . . .”

The two appraisers and the umpire, chosen in accordance with the insurance contract, met and, on May 3, 1993, rendered an “initial appraisal award.” That appraisal was itemized as follows: building—replacement cost value-$l,440,000; building—actual cash value-$864,000; loss—replacement cost value-$858,559.62; loss—actual cash value-$600,000. As the trial court correctly noted, this May 3, 1993 appraisal was “limited” in that it did not take into account any necessary code upgrades in the undamaged areas of the insureds’ premises. It expressly stated that “code upgrades not considered in undamaged areas.” After the completion of the May 3,1993 appraisal, authorities from the town of Westport determined that the undamaged portion would have to be upgraded to meet the Westport code requirements.

Thereafter, the parties apparently tried to negotiate a settlement of the values for the code upgrades in the undamaged areas. They were unable to agree. As a result of that impasse, the plaintiff commenced this declaratory judgment action on August 13, 1993. After the Westport authorities determined that upgrades would be required in the undamaged portion, the parties continued with the appraisal.

On September 14,1995, the appraisers and the umpire issued a memorandum of appraisal, which stated, inter alia, that the award of May 3, 1993, “left code upgrades in undamaged areas open.” That memorandum also said that a meeting that took place sometime after May 30,1995, “during which meeting it was determined that as a result of the fire, the building had to be brought up to current code before a Certificate of Occupancy could be issued for reoccupancy.” It was further determined that it was physically and economically impractical to repair the structure to comply with all applicable building codes. It was then determined that the most logical way to comply with all appropriate codes would be the complete demolition of the building and the construction of a new structure in its place. The September 14, 1995 appraisal developed a total replacement value, inclusive of demolition, of $1,652,017.78. This award noted that “the prior award for the fire loss . . . did include necessary code upgrades in the damaged areas equaling a replacement cost value loss of $858,559.62.” This appraisal then deducted “the previous award from the values developed” and went on to say that “the award [now] equals $793,458.10 which represents the replacement cost value for this portion of the appraisal.” (Emphasis added.) This appraisal also pointed out that “it was further agreed that establishment of the actual cash value of the building as previously developed [had been] $864,000.00” (Emphasis added.) It then reset the actual cash value, stating that “the actual cash value of the building inclusive of code upgrades is [now] $991,210.62.”

The plaintiffs then filed a motion to confirm the appraisal award. The defendant filed a “limited” objection to the confirmation of the appraisal award, alleging that “the submission to the appraisers for the second portion of the appraisal award, which is the subject of the plaintiffs Motion to Confirm, was to determine the increased costs and for the total cost to repair and replace the damaged property taking into account the necessary code upgrades. ... In making said determination it was not necessary to determine the actual cash value of the building subsequent to its replacement and restoration and in accordance with code upgrades . . . .’’In addition, the defendant filed an application to vacate the arbitration award, which sought “an order vacating a portion of [the] arbitration award [of September 14, 1995] ... to the extent that the award . . . exceeded the submission. . . .”

In its decision, the trial court pointed out that, after the issuance of the initial appraisal award, dated May 3,1993, and the plaintiffs’ institution of their declaratory judgment action, the parties “agreed to submit the issue of the total value of code upgrades, including that in undamaged areas, for appraisal.” It further noted that, as a result, on September 14, 1995, a second appraisal was rendered, which listed the actual cash value of the building, inclusive of all code upgrades, at $991,210.62.

The trial court stated that the defendant filed an objection to the plaintiffs’ motion to confirm and that, thereafter, it filed its motion to vacate that award “on the ground that it exceeded the scope of submission in that it determined what the actual cash value of the building would be subsequent to its replacement in accordance with code upgrades. Thus, the defendant requests that an order be issued vacating that portion of the September 14,1995 award.” The court then determined that although the defendant had filed a motion to vacate the award “in light of the language in [its] request, the court believes that the defendant intended to file a motion to modify the award.”

After stating that “[b]oth parties have essentially acknowledged that the purpose of the appraisal was only to establish figures regarding the amount of loss” (emphasis added), it concluded that “[h]aving reviewed the record, this court is not of the opinion that the appraisers acted upon a matter outside the charge submitted to them. Accordingly, the September 14, 1995 Memorandum of Appraisal is confirmed to the extent that it provides a determination of respective [actual] cash and replacement cost values.” (Emphasis added.) It is clear on the record before this court that the trial court granted the plaintiffs’ motion to confirm the September 14, 1995 award and denied the defendant’s motion to vacate that award.

I

The defendant maintains that the trial court acted improperly in granting the plaintiffs’ motion to confirm the appraisal award of September 14,1995, and in denying the defendant’s motion to vacate that award. It argues that the second appraisal award should have been vacated because it exceeded the scope of the submission by redetermining the actual cash value of the property at the time of the second appraisal. The defendant claims that the matter of actual cash value of the loss, both under the policy and the submission, had been fully determined at the time of the first appraisal of May 3, 1993. It is the defendant’s position that, in determining the actual cash value, the only relevant time and the only time contemplated by the policy, is the time of the loss, i. e., the fire of August 18, 1992. That element should not have been revisited or reevaluated, argues the defendant, at the time of the second appraisal. The defendant claims that the only matter left open by the first appraisal was “the amount to be allowed of a replacement cost basis for code upgrades to the undamaged portion of the property.” Therefore, it contends there was a “limited submission” for the “supplemental award” of September 14, 1995. That award was limited not only by its submission, but also by the contract of insurance between the parties. To allow the redetermination of actual cash value in the award of September 14, 1995, to stand would, the defendant claims, contravene applicable law, the objective of which is to provide personal indemnity to the property owner commensurate with the loss actually sustained.

On the other hand, the plaintiffs claim that the trial court acted properly in granting their motion to confirm and in denying the defendant’s motion to vacate the September 14,1995 appraisal award because that award conforms to the contract between the parties as well as to the submission. The submission, they claim, did not restrict the conduct, procedure and method of the appraisal that they say allowed the parties to alter the procedure and method by mutual agreement. The plaintiffs also argue that there was only one submission, that of January 26, 1993. The submission was not in any way limited, according to the plaintiffs. That is so, they argue, because the appraisal award of September 14, 1995, completes what the appraisers expressly left open in their May 3, 1993 award when they stated “code upgrade not considered in undamaged areas.” They contend that later, when authorities determined that the undamaged portion of the residence would have to be upgraded to meet the Westport building code, the appraisers reconvened by the mutual consent of both parties and issued a complete award on September 14, 1995. This award, they argue, “was not a second appraisal but a continuation of the original one.” This was necessary, the plaintiffs claim, because “the appraisers were charged with appraising the plaintiffs’ entire loss within the terms of their contract.” Further, the plaintiffs indicate that, even if this court decides to vacate the replacement cost value of $1,652,107.78 as set out in the second appraisal award, they are still entitled to an immediate payment of $391,210.62, which represents the difference between the actual cash values of $600,000 and $991,210.62, as set out in the first and second awards respectively.

II

Our Supreme Court has held that an appraisal clause in the standard form fire insurance policy as set out in General Statutes § 38a-307, such as the appraisal clause in the policy in this case, “constitutes an agreement to arbitrate and falls within the ambit of our arbitration statutes, General Statutes §§ 52-408 through 52-424. Covenant Ins. Co. v. Banks, 177 Conn. 273, 279, 413 A.2d 862 (1979).” Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 432, 534 A.2d 213 (1987); Middlesex Mutual Assurance Co. v. Clinton, 38 Conn. App. 555, 564, 662 A.2d 1319, cert. denied, 235 Conn. 922, 666 A.2d 1186 (1995), cert. denied, 517 U.S. 1104 , 116 S. Ct. 1320,134 L. Ed. 2d 473 (1996). “The parties themselves, by the agreement of submission, define the powers of the arbitrator. . . . The submission constitutes the charter of the entire arbitration proceedings and defines and limits the issues to be decided. . . . When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits. . . . An application to vacate or correct an award should be granted where an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, [the court] need only examine the submission and the award to determine whether the award conforms to the submission.” (Citations omitted.) Bic Pen Corp. v. Local No. 134, 183 Conn. 579, 583-84, 440 A.2d 774 (1981). As noted, “[i]n determining whether a submission is unrestricted, we look to the authority of the arbitrator.” Fraulo v. Gabelli, 37 Conn. App. 708, 715, 657 A.2d 704 (1995). “The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of any such qualifications, an agreement is unrestricted.” Garrity v. McCaskey, 223 Conn. 1, 5, 612 A.2d 742 (1992); International Assn. of Firefighters, Local 1339, AFL-CIO v. Waterbury, 35 Conn. App. 775, 778, 647 A.2d 361 (1994). When parties mutually agree to submit their dispute to arbitration, judicial review is limited in scope and the resulting award is not reviewable for errors of law or fact. See Hartford v. Board of Mediation & Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989); New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415-16, 544 A.2d 186 (1988); Greater Bridgeport Transit District v. Amalgamated Transit Union, Local 1336, 28 Conn. App. 337, 343, 610 A.2d 1324 (1992). “Even in the case of an unrestricted submission [however, our Supreme Court has] recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy ... or (3) the award contravenes one or more of the statutory proscriptions of § 52-418.” (Citations omitted.) Garrity v. McCaskey, supra, 6; Fraulo v. Gabelli, supra, 716. “Since the parties consent to arbitration, and have full control over the issues to be arbitrated, a court will make every reasonable presumption in favor of the arbitration award .... The party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it, and only upon a showing that it ‘falls within the proscriptions of § 52-418 . . . or procedurally violates the parties’ agreement’ will the determination of an arbitrator be subject to judicial inquiry.” (Citations omitted.) O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 145-46, 523 A.2d 1271 (1987); Malecki v. Burnham, 181 Conn. 211, 214,435 A.2d 13 (1980). While it is required that the arbitrator render an award that conforms to the submission, the award need not contain an explanation of the means by which he reached that award. See Bic Pen Corp. v. Local No. 134, supra, 585.

Ill

Prior to deciding what was submitted to the appraisers, we must determine how many submissions were made. We agree with the plaintiffs that there was only one submission.

The “Revised Memorandum of Appraisal,” dated January 23,1993, is the only document in the record before us signed by the plaintiffs and the defendants submitting this dispute to the appraisal process under their insurance contract. After setting out that the plaintiffs claim that they have sustained a loss by fire on August 18, 1992, on their property, to wit “Building Code Upgrade,” the memorandum sets out the appraisal provision of their policy and that there is “a disagreement . . . between the parties ... as to the amount of such loss.”

The award of May 3, 1993, comported with the submission and made the necessary determinations as to value and loss including actual cash value. That award on its face, however, left open only the matter of code upgrades in the undamaged areas, as demonstrated by the statement placed directly under the values they had found, “code upgrade not considered in undamaged areas.” This is underscored by the “Memorandum of Appraisal” dated September 14, 1995, which was not a result of a new submission, as the defendant appears to argue, but was the undertaking to continue and complete what had expressly been left undone by this May 3, 1993 award. The September 1995 award specifically indicates that the earlier award “left code upgrades in undamaged areas open” and that “the initial appraisal award [of May 3, 1993] . . . addressed fire damages only, leaving necessary code upgrades on undamaged areas as an open entity.”

This clause, after setting out that “in conformity to the terms and conditions of the policy,” the two named appraisers stated that they “have been selected and are hereby appointed appraisers, to appraise, in accordance with the terms and conditions of said policy the replacement value of said property and the amount of loss directly caused by said fire to and upon the same.” (Emphasis added.) “The terms and conditions of said policy” include, of course, the appraisal clause. The authority thus conferred on the appraisers was intended to empower them to resolve the entire matter referred to them—the matter of value and loss. This was, therefore, an unrestricted submission.

Having decided that there was only one submission and that the submission was unrestricted, we now consider whether the award conformed to the submission. In doing so, we keep in mind the defendant’s claim that the appraisers exceeded the scope of the submission by their award in their September 14,1995 memorandum in which they arrived at new figures for both actual cash value and replacement cost value rather than determining only the cost of the now required code upgrades as to the undamaged areas. The focal point of the defendant’s contention is the improper reevaluation or revisiting of the computation of actual cash value in the September 1995 award, which the defendant maintains had already been set at $864,000 in the May award.

Before deciding whether the award conformed to the submission, we should turn to the trial court’s interpretation of that award. This is necessary because the trial court’s decision stated that “the September 14, 1995 Memorandum of Decision is confirmed to the extent that it provides a determination of respective cash and replacement cost values.” (Emphasis added.) During oral argument, counsel were heard as to what the trial court meant by the “to the extent” language as well as to the apparent omission of a word after “respective” in the same sentence.

Our Supreme Court has said that “[t]he construction of a judgment is a question of law for the court. . . . As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The interpretation of a judgment may involve the circumstances surrounding the making of the judgment. . . . Effect must be given to that which is clearly implied as well as that which is expressed.” (Citations omitted; internal quotation marks omitted.) Lashgari v. Lashgari, 197 Conn. 189, 196-97, 496 A.2d 491 (1985); Emerick v. Emerick, 28 Conn. App. 794, 806, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992). In doing so, it assists a reviewing court to keep in mind the theory on which the case was tried and on which the trial court decided it. See Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267, 299 n.19, 545 A.2d 530 (1988); Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985).

It is a fair synthesis from what counsel said orally and in their briefs that “to the extent” was analytically not language of limitation but was regarded by them as the trial court’s granting of the plaintiffs motion to confirm and denying the defendant’s motion to vacate. We agree. With reference to the apparent omission of a word after “respective,” it was suggested at oral argument that the trial court meant “actual” and that this was borne out by the use of the plural “values” at the end of the sentence. We agree. Actually, therefore, the only new dollar values set out in the September 14, 1995 memorandum were the “total replacement value inclusive of demolition” of $1,652,017.78 and the “actual cash value of the building including code upgrades” of $991,210.62.

Now, we take up the issue of whether the award as confirmed by the trial court, exceeded the submission. In doing so we keep in mind that we have already decided that the submission to the appraisers of January 26,1993, was unrestricted. The fact that the May 3,1993 report did not fully complete their charge does not make the January 26, 1993 charge any more restricted. Their May 3, 1993 report completed their original charge except by their own express reservation that “code [upgrades were] not considered in undamaged areas.” Once the Westport building authorities required code upgrades in the undamaged areas, that decision triggered the appraisers’ duty to complete what had been originally submitted to them. To do so, however, did not require anything but their determination of the “increased cost”* brought by doing so. They expressly stated that in their September 14, 1995 memorandum of appraisal. This is underscored by their statement in the same document that the “initial appraisal award . . . completed on May 3, 1993 . . . addressed the fire damages only, leaving necessary code upgrades in undamaged areas as an open entity.” (Emphasis added.)

In returning to do what remained to be done, the appraisers, however, did not have to revisit their earlier computation of the actual cash value of the plaintiffs’ loss as insured by the defendant under the insurance contract. In doing so they have, according to the defendant, contravened General Statutes § 52-418 (a) (4), which empowers the Superior Court to vacate an award “if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

One commentator has said that “[f]ire insurance is a contract of indemnity against actual loss sustained by the insured, in an amount not exceeding that stipulated in the policy, unless it is written as a valued policy, in which case, in the absence of fraud or other illegality, the amount of the loss, if total, is immaterial.” 1 G. Couch, Insurance (2d Ed. Rev. 1984) § 1.52. A “contract of fire insurance is a personal contract for indemnity for the insurable interest possessed by the insured at the time of the issuance of the policy, and also at the time of loss.” 4 J. Appleman & J. Appleman, Insurance Law and Practice (1969) § 2107. The Connecticut Supreme Court long ago said a “policy of fire insurance is an agreement to indemnify the insured against loss by fire . . . .” (Emphasis added.) Finch v. Great American Ins. Co., 101 Conn. 332, 337, 125 A. 628 (1924). “The contract of fire insurance is one of indemnity so far as direct loss or damage is concerned . . . .” 1 G. Richards, Insurance (1952) § 13, citing Finch v. Great American Ins. Co., supra, 332.

Against this backdrop, we point out that it has been said that “[t]he actual cash value policy is apure indemnity contract. Its purpose is to make the insured whole but never to benefit him because a fire occurred. [6 J. Appleman & J. Appleman, Insurance Law and Practice § 3823]; Brand Distributors, Inc. v. Insurance Co. of North America, [532 Fla. 352 (4th Cir. 1976)].” Traveler’s Indemnity Co. v. Armstrong, 442 N.E.2d 349, 352 (Ind. 1982). In Connecticut “the scope of the appraisers’ powers and duties is limited by the terms of the policy, by the statutory provisions of [General Statutes § 38a-307], and by judicial precedent, solely to a determination of the amount of the actual cash value of the fire loss.” Sullivan v. Liberty Mutual Fire Ins. Co., 174 Conn. 229, 231, 384 A.2d 384 (1978). This determination is ordinarily a question of fact. Id., 230-31.

Pursuant to the “conditions” of the policy, the “actual cash value” of the damage to the plaintiffs’ covered residence was a significant factor under the relevant “Loss Settlement” conditions. Conceptually, actual cash value, by whatever measure it is reached, is intended to indemnify the insured. Ideally, it should not amount to undercompensation that fails to make the insured whole, nor should it be overcompensation that “would increase the moral hazard by giving the insured motive to create a loss or be less than vigilant to prevent one.” O. Dykes, “ ‘Actual Cash Value’: The Magic Words —What Do They Mean?” 16 Forum 391, 397-98 (1981).

General Statutes § 38a-307 sets out what “[t]he standard form of fire insurance policy of the state of Connecticut . . . shall be . . . .’’It provides in part that fire insurance may be provided: “In Consideration of the Provisions and Stipulations Herein or Added Hereto ... [to the named insured] and legal representatives, to the extent of the actual cash value of the property at the time of loss. . . against all direct loss by fire. . . .” (Emphasis added.) Section 38a-307 also contains an appraisal clause. The submission in this case charged the appraiser with the duty “to appraise the loss, stating separately the actual cash value at the time of loss and the amount of loss. ...” The appraisers were further charged pursuant to the policy to appraise “the amount of loss caused directly by said fire. ...” The phrase “time of loss,” within the standard form of fire insurance policy, is the date on which the actual cash value of the property insured is to be determined, and that is the date of the fire. Wolf v. Home Ins. Co., 100 N.J. Super. 27, 44-45, 241 A.2d 28 (1968), aff'd, 103 N.J. Super. 357, 247 A.2d 345 (1968); see Montgomery v. First National Bank, 265 Or. 55, 70, 508 P.2d 428 (1973). “Ordinarily, the measure of the benefits payable under fire insurance coverage is the actual cash value of the damaged or destroyed property.” S & S Tobacco & Candy Co. v. Greater New York Mutual Ins. Co., 224 Conn. 313, 315, 617 A.2d 1388 (1992); see Church of the Assumption v. Travelers Fire Ins. Co., 146 Conn. 223, 225, 149 A.2d 906 (1959). It has been said that “[ajctual cash value in a policy of insurance means what it would cost to replace a building or a chattel as of the date of the fire.” Fedas v. Ins. Co. of State of Pennsylvania, 300 Pa. 555, 562, 151 A. 285 (1930); see also Castoldi v. Hartford County Mutual Fire Ins. Co., supra, 21 Conn. Sup. 269. In the policy before us, under “Perils Insured Against,” the defendant contracted, under the applicable coverages, to insure “against risks of direct loss to the type of property described in Coverage A and B only if that loss is a physical loss to property. ...” (Emphasis added.) The submission, in charging the appraisers to determine the “amount of loss,” required that they determine “the amount of loss directly caused by said fire. ...” “It is well settled that the words ‘direct cause’ ordinarily are synonymous in legal intendment with ‘proximate cause,’ a rule applicable to causes involving the construction of an insurance policy.” Dixie Pine Products Co. v. Maryland Casualty Co., 133 F.2d 583, 585 (5th Cir. 1943), cert. denied, 319 U.S. 743, 63 S. Ct. 1033, 87 L. Ed. 1700, aff'd on remand, 145 F.2d 977 (5th Cir. 1944); see Dubuque Fire & Marine Ins. Co. v. Caylor, 249 F.2d 162, 164 (10th Cir. 1957). In an insurance policy that stated that it insured against “[ljoss . . . directly caused by,” the court held that directly caused was fairly synonymous with proximately caused.’ ” O'Doan v. Ins. Co. of North America, 243 Cal. App. 2d 71, 78, 52 Cal. Rptr. 184 (1966). The actual cash value of the plaintiffs’ residence at the time of the loss, i.e., the fire of August 18, 1992, and the amount of the loss directly caused by that fire were fully determined by the appraisers on May 3,1993. There was, therefore, no need for them to reevaluate or recalculate the actual cash value after that date. This is so for any one of three cogent reasons. First, their own report of May 3,1993, expressly states, “code [upgrades] not considered in undamaged areas.” That this was all that was admittedly left to be done is further emphasized by the appraisal memorandum of September 14, 1995, which states that “[the] award [of May 3,1993] left code upgrades in undamaged areas open . . . Nothing else in that memorandum was stated, or even implied, to be “left open.” Second, there can be no question that calculating the cost of the required code upgrades addresses a matter that was not directly caused by the fire itself, not only because the upgrades were in an area undamaged by the fire but also because such upgrades cannot be considered a “loss” under the policy as they did not exist at the time of the fire and hence were incapable of constituting a “loss directly caused by [the August 1992] fire.” The payment of $864,000 to the plaintiffs as the actual cash value indemnified them for their loss. To require the defendants to pay any further sums to the plaintiffs goes beyond indemnity. Third, the potential for an insured to qualify for being paid by the defendant for the cost of code upgrades in the undamaged portion comes from “Additional Coverages,” another type of coverage in this policy apart from that by which an insured can recover the actual cash value. Paragraph 10 (c) of “Additional Coverages” provides for the recovery of the cost of governmentally ordered code upgrades as the insured “may incur” by virtue of such an order. (Emphasis added.) “Incur” means to “become liable or subject to.” Webster’s Third New International Dictionary; see Ballentine’s Law Dictionary; see also Czarnecki v. American Indemnity Co., 259 N.C. 718, 720, 131 S.E.2d 347 (1963). Only this cost was left for the appraisers to determine after their May 3, 1993 appraisal.

Moreover, although the appraisers in their September 19, 1995 memorandum developed a new total replacement cost value inclusive of demolition of $1,662,017.78, as opposed to their May 3,1993 replacement cost figure of $858,559.66, the policy does provide for payment to an insured of the actual cost of the repair or replacement of a building when the actual repair or replacement is completed within a specified time. This figure of $1,662,017.78 is based on the actual replacement of the plaintiffs’ building. That point of reference does not exist as the building has not been rebuilt. They have not incurred any expense in that regard. Because, as we have shown the law and the facts to demonstrate, the only actual cash value figure that is focal is the figure that applies at the time of the loss, i.e., the fire of August 18, 1992, the appraisers could not properly determine a second actual cash value based on a building as replaced where that building has not been replaced. The defendant was required, under the policy, only to pay the plaintiffs if the building was, in fact, replaced. It was not. The policy provides that “where the cost to repair or replace the damage to the building is more than $2500, [the defendant] will pay no more than the actual value of the damage until actual repair or replacement is completed. . . .” (Emphasis added.) By recalculating actual cash value in the September 19, 1995 memorandum, the appraisers exceeded their powers under § 52-418 (a) (4), because that award exceeded the original submission of January 26, 1993. They had completed their job by their award of May 3, 1993, in which they themselves admittedly left open only the determination of the cost of code upgrades in the undamaged portion. The actual cash value was determined as of the date of the loss, as the statute, the policy and the submission required. In revisiting that item, the appraisers violated § 52-418 (a) (4). This award did not conform to the submission. We come to this conclusion recognizing that arbitration awards are generally upheld and are extended great deference because the arbitration process is favored as a means of settling disputes. Garrity v. McCaskey, supra, 223 Conn. 4-5; Bridgeport v. Connecticut Police Dept. Employees Local 1159, 32 Conn. App. 289, 292, 628 A.2d 1336 (1993); Board of Education v. Hartford Federal of School Secretaries, 26 Conn. App. 351, 352, 600 A.2d 1053 (1992). We, nevertheless, believe that this case is one of those rare cases where an arbitration award is to be vacated. We stress in this case that the appraisers’ new replacement cost figure, coming about as it does from the unnecessary and improper determination of actual cash value, also underscores the fact that the appraisers exceeded their power.

Finally, there remains the matter of a proper order as to the appraisers’ awards in this case. We have already decided that there was one submission to the appraisers, that of January 26, 1993. The appraisers, however, approached their tasks in two steps or two “awards.” The appraisers made an award on May 3, 1993. That award has not been appealed. Their second award on September 14,1995, has been the subject of this appeal. While technically we are not presented with the issue of the severability of an award, the claims of the parties have raised the issue of whether the actions of the appraisers throughout are pursuant to one submission, as the plaintiffs claim, or two submissions, as the defendant claims. We have resolved that issue in favor of the plaintiffs. The resolution of that issue affects our remand. Where parties arbitrate pursuant to a statute, the statute itself defines the powers of the arbitrators. Caldor, Inc. v. Thornton, 191 Conn. 336, 341, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985). In such a case, “[a]ny deviation by the arbitrators from the statutory bounds under which they operate would indicate that they had ‘exceeded their powers,’ a basis for vacating any offending part of the award, under General Statutes § 52-418 (a) (4). Carofano v. Bridgeport, 196 Conn. 623, 627, 495 A.2d 1011 (1985).” (Emphasis added.) Chrysler Corp. v. Maiocco, 209 Conn. 579, 591, 552 A.2d 1207 (1989); see Local 63, Textile Workers Union v. Cheney Bros., 141 Conn. 606, 109 A.2d 240 (1954), cert. denied, 348 U. S. 959, 75 S. Ct. 449, 99 L. Ed. 748 (1955). In certain instances, “courts have affirmed one portion of an arbitration award while setting aside the rest.” Mellon v. Travelers Ins. Co., 267 Pa. Super. 197, 198, 224, 406 A.2d 759 (1979).

As this case was presented, we do not have a problem of severability. Only the award of September 14, 1995, was appealed and is before us for determination, although it was necessary for us to address the May 3, 1993 award. While they may be interrelated for that reason, the two awards are substantively independent and differently structured. The second was intended to complete what was left open by the first. The conduct of the appraisers on the second, however, exceeded their powers under § 52-418 (a) (4). Only the cost of the code upgrades in the undamaged area of the residence was to be determined. Neither the parties nor the record before us disclose a dollar figure for such code upgrades. At oral argument it was suggested that the appraisers took that into account in arriving at the new actual cash value figure reported in the September 14, 1995 memorandum.

The judgment is reversed and the case is remanded with direction to render judgment vacating the appraisers’ award of September 14, 1995, and for further proceedings to determine the cost of the code upgrades in the undamaged areas.

In this opinion the other judges concurred.

       Section 1—Conditions, 6. provides: “Appraisal. If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in the state where the residence premises is located. The appraisers will separately set the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss.
      Each party will:
      a. pay its own appraiser; and
      b. bear the other expenses of the appraisal and umpire equally.”

       The word “therefore” has been described “in its ordinary acceptation as meaning ‘consequently’ and ‘for those reasons previously stated.’ Webster’s New International Dictionary, (2d ed.) p. 2621.” States v. Wines, 47 N. J. Super. 235, 240, 135 A.2d 543 (1957).

       These figures appear on the back of the memorandum of appraisal signed by the parties on January 23, 1993.

       The trial court found, citing the January 10,1994 affidavit of the plaintiffs’ appraiser and the September 14, 1995 “Memorandum of Appraisal” signed by both appraisers and the umpire, that the appraisers had considered code upgrades in determining the value of the damaged portion of the premises.

       This statement appears on the memorandum of appraisal signed by the parties on January 23, 1993.

       In their later “Memorandum of Appraisal,” dated September 14, 1995, the appraisers and the umpire also state that “the initial appraisal award was completed on May 3, 1993, which addressed the fire damages only, leaving necessary code upgrades in undamaged areas as an open entity.” (Emphasis added.)

       General Statutes § 52-418, entitled “Vacating award,” provides in pertinent part: “(a) Upon the application of any party to an arbitration, the superior court ... or, when the court is not in session, any judge thereof, shall make an order vacating the award if its finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. . .

       General Statutes § 52-419, entitled “Modification or correction of award,” provides in pertinent part: “(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, when the court is not in session, any judge thereof, shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy. . . . ”

       The September 14, 1995 document was signed by both appraisers and the umpire.

       In their September 14, 1995 memorandum, the appraisers pointed out that when the prior replacement cost value of 8858,559.62 was deducted from the new total replacement value of $1,652,017.78 that yielded the figure of $793,458.16 that represented the replacement cost value for this portion, the September 14, 1995 portion of the appraisal. They also pointed out that the actual cash value “of the building as previously developed” was $864,000 and that, as of September 14, 1995, “the actual cash value of the building inclusive of code upgrades is $991,210.62.”

       This September 14, 1995 memorandum of appraisal stated that their “initial charge” was completed on May 3, 1993 and that award left code upgrades in undamaged areas open and that the subsequent charge to the appraisers was to determine the increased cost brought about by the application of building codes in completing repairs.

       The September 14, 1995 “Memorandum of Appraisal” also expressly states that “the prior award [of May 3,1993] for the fire loss . . . did include necessary code upgrades in the fire damaged area. ...” (Emphasis added.)

       It is well recognized that in determining the amount of a fire loss there are three tests in general use by courts and appraisers to determine actual cash value. They are (1) market value, (2) replacement or reproduction cost and (3) the so called broad evidence rule. Sullivan v. Liberty Mutual Fire Ins. Co., supra, 174 Conn. 232; see Giulietti v. Connecticut Ins. Placement Facility, Inc., supra, 205 Conn. 429; Castoldi v. Hartford County Mutual Fire Ins. Co., 21 Conn. Sup. 265, 154 A.2d 247 (1987). Courts define “actual cash value” differently in different states. O. Dykes, “ ‘Actual Cash Value’: The Magic Words—What Do They Mean?” 16 Forum 391 (1981).

       Section I of the insurance contract, entitled conditions, contained the following provision:
      “3. Loss Settlement. Covered property losses are settled as follows: Coverage for the property described below includes the full cost of repair or replacement, without deduction for depreciation, as follows: a. Buildings under Coverage A and B . . . .
      (2) To adjust losses, under COVERAGE A - DWELLING, we shall use the smaller of the following two amounts:
      (a) The replacement cost at the time of loss of the building, or of any part of the building. . . .
      (b) The actual and necessary amounts spent to repair or replace the building or any part, of the building. . . .
      “4. When the cost to repair or replace the damage is more than $2,500, we will pay no more than the actual cash value of the damage until actual repair or replacement is completed.” (Emphasis added.)

        The policy also provided under “Additional Coverages” coverage for any increased repair cost, or increased rebuilding cost, or increased construction cost that the insured “may incur” if such was required by “Enforcement of Law or Ordinance.” This provision provided the following:
      “10. Building Loss Caused By Enforcement of Law or Ordinance. In the event of loss to your building(s) insured under this policy caused by a Peril Insured Against:
      a. we will pay for loss of the undamaged building(s) value caused by demolition which is brought about because of the enforcement of any state or municipal law or ordinance regulating the construction, repair or demolition of buildings. It is a condition that this policy be in force at the time the covered loss, which necessitates the demolition of any undamaged portions of the building, occurs; and
      b. we will pay you the reasonable costs that you incur in carrying out the enforced demolition order, including the cost of the removal of debris; and c. we will pay you any increased repair cost, or increased rebuilding cost or increased construction cost that you may incur because of an enforcement of these laws, providing such repair, rebuilding or construction takes place on the same premises as the demolished building(s) and that the replacement construction is of like height, floor area, style and for like occupancy of the demolished building(s) covered under this policy.” (Emphasis added.)

       The term “moral hazard” in this context has been commented upon by a number of courts. In Niagara Fire Ins. Co. v. Everett, 292 F.2d 100, 105 (5th Cir. 1961), the court stated: “Moral hazard, in insurance, is but another name for a pecuniary interest to the insured should the property burn.” See also Nemojeski v. Bubolz Mutual Town Fire Ins. Co., 271 Wis. 561, 564, 74 N.W.2d 196 (1956); Soyland v. Farmers’ Mutual Fire Ins. Co., 71 S.D. 522, 527-28, 26 N.W.2d 696 (1947). One court has said that “fire policy provisions precluding recovery of replacement cost until replacement is complete are reasonable as protection against ‘the moral hazard,’ and enforceable.” Bourne v. U.S. Fidelity & Guaranty Ins. Co., 75 Or. App. 241, 246, 707 P.2d 60 (1985); see Higgins v. Ins. Co. of North America, 256 Or. 151, 469 P.2d 766 (1970).
      There is no such “moral hazard” present in this case before us under its facts or any reasonable inference from the facts.

       The appraisal clause set out in General Statutes § 38a-307 provides the following: “In case the insured and this Company shall fail to agree as to the actual cash value or the amount of loss, then, on the written demand of either, each shall select a competent and disinterested appraiser and nol ify the other of the appraiser selected within twenty days of such demand. The appraisers shall first select a competent and disinterested umpire; and failing for fifteen days to agree upon such umpire, then, on request of the insured or this Company, such umpire shall be selected by a judge of a court of record in this state in which the property covered is located. The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized, of any two when filed wi1h this Company shall determine the amount of actual cash value and loss. Each appraiser shall be paid by the party selecting him and the expenses of appraisal and umpire shall be paid by the parties equally.”

       These arise under “Section 1—PERILS INSURED AGAINST Coverage A Dwelling & Coverage B OTHER STRUCTURES.”

       Additional coverages under paragraph 10 (c) provides the following: “10. Building Loss Caused by Enforcement of Law or Ordinance. In the event of loss to your building(s) insured under this policy caused by a Peril Insured Against:
      a. we will pay for loss of the undamaged building(s) value caused by demolition which is brought about because of the enforcement of any state or municipal law or ordinance regulating the construction, repair or demolition of buildings. It is a condition that this policy be in force at the time the covered loss, which necessitates the demolition of any undamaged portions of the building, occurs; and ....
      c. we will pay you any increased repair cost, or increased rebuilding cost or increased construction cost that you may inc,ur because of an enforcement of these laws, providing such repair, rebuilding or construction takes place on the same premises as the demolished building(s) and that the replacement construction is of like height, floor area, style and for like occupancy of the demolished building(s) covered under this policy.” (Emphasis added.)

       There is no evidence or claim that the cost of the code upgrades in the undamaged portion of the premises have in fact been incurred by the plaintiffs.

       One commentator has pointed out that “[property insurance policies which carry indorsements to the effect that replacement cost, in excess of actual cash value, may be recovered, sometimes also contain a provision that in order for the insured to recover under such an indorsement, he must repair or replace the property within a specified or reasonable time. The courts have generally construed such a provision according to its plain meaning.” See “Construction and Effect of Provision of Property Insurance Policy Permitting Recovery of Replacement Cost of Property, in Excess of Actual Cash Value,” 66 A.L.R.3d 885, 887 (1975); see also 1 A.L.R.5th 817, 827-28 (1992).

       In addition, the appraisers also violated that portion of § 52-418 (a) (4) that provides “or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       The actual cash value determined was $864,000 and that sum has been fully paid by the defendant to the plaintiffs.


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    ANTHONY FERRIGNO, TRUSTEE v. CROMWELL DEVELOPMENT ASSOCIATES ET AL.
    (15678)
    O’Connell, Foti, Landau, Schaller and Hennessy, Js.

      Argued November 7, 1996
    officially released March 11, 1997

      William F. Gallagher, with whom, on the brief, were Kurt D. Koehler and Edward Krasnow, for the appellant (plaintiff).

      Max Stuart Case, with whom was Leo J. McManus, for the appellees (defendants).
   O’CONNELL, J.

The plaintiff, trustee of the Treeland Employees Profit Sharing Plan and Trust, appeals from the denial of his motion for a deficiency judgment following a judgment of strict foreclosure. The dispositive issue is whether, in a foreclosure action, the exception for mortgages under the usury statute applies in a subsequent deficiency proceeding. At our request, the parties briefed and argued the issue of whether Maresca v. DeMatteo, 6 Conn. App. 691, 506 A.2d 1096 (1986), should be overruled. We reverse the decision of the trial court.

The facts necessary for disposition of this appeal are as follows. On March 25, 1981, the defendant partnership borrowed $150,000 from the plaintiff at 18 percent interest and secured the loan with a mortgage on partnership property in Cromwell. The defendants defaulted in payment and the plaintiff instituted this foreclosure action. A judgment of strict foreclosure was rendered on April 26, 1995, and title vested in the plaintiff on October 27, 1995.

On November 14, 1995, the plaintiff filed a motion for a deficiency judgment pursuant to General Statutes § 49-14 (a). The trial court denied this motion on the grounds that the loan was usurious under General Statutes § 37-4.

Loans with interest rates in excess of 12 percent per annum are prohibited by General Statutes § 37-4 and as a penalty no action may be brought to collect principal or interest on any such prohibited loan. General Statutes § 37-8. In addition to the civil forfeiture penalty, Connecticut law also provides a criminal penalty of a fine not to exceed $1000 or imprisonment for not more than six months or both, for making a usurious loan. General Statutes § 37-7.'

The mortgage in the present case would be clearly usurious except that General Statutes § 37-9 (3) expressly provides that the usury statute, § 37-4, shall not apply to “any bona fide mortgage of real property for a sum in excess of five thousand dollars.” It is not disputed that the loan in the present case was secured by a bona fide mortgage for more than five thousand dollars.

Although the defendants did not plead usury as a defense in the main part of the foreclosure action, they now claim that a deficiency judgment is barred by the usury statute. In denying the motion for deficiency judgment, the trial court relied on our decision in Maresca v. DeMatteo, supra, 6 Conn. App. 695. In Maresca, we addressed for the first time whether the usury statute applied to a deficiency proceeding despite the exemption of the underlying mortgage pursuant to § 37-9 (3). We concluded that because the deficiency proceeding was merely an expeditious way to take action on the note without instituting a separate action, usury was available as a defense in this “functional equivalent of a suit upon the note.” Id., 696.

Central to our decision in Maresca was the dictum in Associated East Mortgage Co. v. Highland Park, Inc., 172 Conn. 395, 405, 374 A.2d 1070 (1977), that “[b]ecause of . . . [§ 37-9 (3)], the defense of usury is unavailable in a suit for foreclosure of the mortgage, even if the defense would be available in a suit upon the note if upon foreclosure of the mortgaged property it was necessary to act upon a deficiency judgment.” Significantly, however, Associated East Mortgage Co. is a mortgage foreclosure case that did not involve a deficiency judgment.

The defendants rely on Atlas Realty Corp. v. House, 120 Conn. 661, 669-70, 183 A. 9 (1936). Atlas Realty Corp., however, also did not involve a mortgage foreclosure and deficiency proceeding. The plaintiff in Atlas Realty Corp. abandoned its mortgage and sued solely on two promissory notes. A plaintiff who elected to sue solely on the notes may reasonably be found to have given up the protection of an equitable foreclosure action, but this is not authority for the application of the usury exception in the deficiency portion of a foreclosure action.

We do not lightly consider the possible overruling of one of our earlier decisions. Our Supreme Court has recently acknowledged the importance of the doctrine of stare decisis to our system of jurisprudence. Conway v. Wilton, 238 Conn. 653, 680 A.2d 242 (1996). It is axiomatic “that [a] decision of [an appellate court] is a controlling precedent until overruled or qualified. . . . [S]tare decisis . . . serve [s] the cause of stability and certainty in the law—a condition indispensable to any well-ordered system of jurisprudence . . . .” (Internal quotation marks omitted.) Id., 659. “[One] well recognized exception to stare decisis under which a court will examine and overrule a prior decision ... [is when that prior decision] is clearly wrong. . . . The doctrine [of stare decisis] requires a clear showing that an established rule is incorrect and harmful before it is abandoned.” (Internal quotation marks omitted.) Id., 660-61.

We revisit Ma/resca because later case law indicates that a deficiency proceeding has become more than simply a convenient way to pursue collection of a note; the deficiency proceeding is clearly part of the main foreclosure action. Federal Deposit Ins. Corp. v. Hill-crest Associates, 233 Conn. 153, 172, 659 A.2d 138 (1995); Federal Deposit Ins. Corp. v. Voll, 38 Conn. App. 198, 207-208, 660 A.2d 358, cert. denied, 235 Conn. 903, 665 A.2d 901 (1995).

This court unequivocally enunciated the connection between a deficiency proceeding and a foreclosure action in Federal Deposit Ins. Corp. v. Volt, supra, 38 Conn. App. 207-208. “As shown in the legislative history . . . deficiency proceedings are not, and never have been, independent actions on the debt. Rather, they are part of the main foreclosure suit. ... A deficiency judgment proceeding is apart of the foreclosure action, but is distinct from, although dependent on, the common law, nonstatutory process of strict foreclosure. ... It is complementary to, the traditional and equitable common law action. . . .” (Citations omitted; internal quotation marks omitted.) Id., 207.

“A deficiency proceeding is not an independent action because a request for a deficiency judgment in a foreclosure action is brought by written motion and not by service of process. ... A deficiency judgment provides a means for a mortgagee to recover any balance due on the mortgage note that was not satisfied by the foreclosure judgment. . . . It is the only means of satisfying a mortgage debt when the security is inadequate to make the foreclosing plaintiff whole.” (Internal quotation marks omitted.) Id., 207-208. Furthermore, a deficiency proceeding has a very limited purpose. “In the hearing contemplated under § 49-14 to obtain a deficiency judgment, the court, after hearing the party’s appraisers determines the value of the property and calculates any deficiency. This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property.” First Bank v. Simpson, 199 Conn. 368, 373, 507 A.2d 997 (1986). A deficiency proceeding is “not a separate statutory cause of action , but [is] a statutory procedure that is part of, and complementary to, the traditional and equitable common law action of strict foreclosure.” Federal Deposit Ins. Corp. v. Hillcrest Associates, supra, 233 Conn. 172.

The rights and obligations of the parties are fixed at the time the mortgage note is executed. Accordingly, an obligation that is not usurious at its inception cannot become usurious as a result of subsequent events. See 45 Am. Jur. 2d, Interest and Usury § 247 (1969). To hold otherwise would create chaos in the banking and allied money lending fields.

A lender must know at the time that a mortgage loan is made whether it is usurious. If usury is not determined until a deficiency is sought, a lender can make a usury free loan only if the mortgaged property does not decrease in value to less than the balance due on the loan. If the property’s value decreases, the lender’s right to recover on the loan would be limited to the decreased value of the property. This interpretation would nullify our deficiency judgment statute and have a chilling effect on lenders. We decline to interpret a statute to allow such difficult and possibly bizarre consequences. Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, 202 Conn. 583, 593, 522 A.2d 771 (1987).

Equally significant is that making a usurious loan is a crime in Connecticut. If we did not determine usury when it was made, a loan, legal at its inception, would become a criminal act if, through the forces of the marketplace, the value of the mortgaged property dropped below the balance due on the loan and the mortgagee sought a deficiency. It is a fundamental principle of statutory construction that a statute that imposes criminal liability, must be strictly construed. State v. Rogue, 190 Conn. 143, 150, 460 A.2d 26 (1983).

We do not criticize the trial court for relying on Maresca v. DeMatteo, supra, 6 Conn. App. 691, because it was the controlling law at that time. Upon reexamination, however, we now believe that a mortgagor may not defend in a deficiency proceeding as if it were simply an action on an unsecured note. Instead, we hold that the exemption from the usury statutes for bona fide mortgages in excess of $5000 applies to the underlying mortgage note. Accordingly, we now overrule Maresca v. DeMatteo, supra, 691, insofar as it holds that usury is a defense to a deficiency judgment in a mortgage foreclosure in which the mortgage is exempt from the usury laws of this state. We do not reach the plaintiffs other claims.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       General Statutes § 49-14 (a) provides in pertinent part: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. ...”

       General Statutes § 37-4 provides in pertinent part: “No person . . . shall . . . directly or indirectly, loan money to any person and, directly or indirectly, charge, demand, accept or make any agreement to receive therefor interest at a rate greater than twelve per cent per annum.”

       General Statutes § 37-8 provides in pertinent part: “No action shall be brought to recover principal or interest, or any part thereof, on any loan prohibited by sections 37-4 . . . .”

       General Statutes § 37-7 provides in pertinent part: “Any person who . . . violates any provision of section 37-4, 37-5 or 37-6 shall be fined not more than one thousand dollars or imprisoned not more than six months or both.”

       General Statutes § 37-9 provides in pertinent part: “The provisions of sections 37-4 . . . shall not affect ... (3) any bona fide mortgage of real property for a sum in excess of five thousand dollars . . . .”


author: DUPONT, C. J.

text:
    DEBORAH MALASKY v. METAL PRODUCTS CORPORATION ET AL.
    (15361)
    Dupont, C. J., and Foti and Schaller, Js.
    Argued December 16, 1996
    officially released March 11, 1997

      Jon D. Berm,an, with whom, on the brief, was Gerald M. Beaudoin, for the appellant (plaintiff).

      Brenda,n T. Flynn, with whom, on the brief, was Robert L. Hirlle, for the appellee (defendant Sidney Greenberg).
   DUPONT, C. J.

This is a sexual harassment case arising out of the plaintiffs employment with the defendants, Metal Products Corporation (Metal) and Birken Manufacturing Company (Birken). The third defendant, Sidney Greenberg, owns and operates both companies. The two corporations have common ownership, management and staff.

Deborah Malasky, the plaintiff, began working for Metal in November, 1987, as a certification and quality control clerk. She later worked for Birken. She alleges that, beginning in February, 1992, she was repeatedly subjected to sexual harassment by other employees and supervisors until she was compelled to leave her position on March 5, 1993.

On May 7, 1993, the plaintiff, without the assistance of an attorney, filed a complaint, pursuant to General Statutes § 46a-82 (a), with the commission on human rights and opportunities (CHRO) against Metal and Birken, alleging that she had been sexually harassed, retaliated against and constructively discharged in violation of General Statutes §§ 46a-58 (a),* 46a-60 (a) (1), (4), and (8), and Title VII of the Civil Rights Act of 1964. On June 8, 1994, the plaintiff received a release of jurisdiction from the CHRO pursuant to General Statutes § 46a-101, permitting her to bring a civil action against Metal and Birken in Superior Court pursuant to General Statutes § 46a-100.

On October 28, 1994, the plaintiff filed an amended three count complaint against Metal, Birken and Greenberg individually, as owner and president of Metal and Birken. The first count alleges violations of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a~51 et seq., by Metal and Birken only. The second and third counts allege intentional infliction of emotional distress and negligent supervision by all three defendants. As relief, the plaintiff claimed back pay, future earnings, reasonable attorney’s fees, and punitive damages.

On January 16,1995, the defendants moved to dismiss the complaint against Greenberg because the plaintiff had failed to exhaust her administrative remedies against Greenberg, thereby ousting the court of subject matter jurisdiction. The trial court granted this motion over the plaintiffs objection on June 7,1995. The plaintiff appealed to this court from the granting of the motion to dismiss.

The plaintiff claims that the trial court improperly dismissed the action because (1) she did not fail to exhaust her administrative remedies as to Greenberg because he was expressly identified in her administrative complaint, (2) common law causes of action are not preempted by the administrative procedure, and (3) the administrative remedies available to her were inadequate.

The trial court, following the reasoning of Sullivan v. Board of Police Commissioners, 196 Conn. 208, 491 A.2d 1096 (1985), dismissed the action against Greenberg because the plaintiff had not exhausted her administrative remedies as to him. The Sullivan court had reasoned that, “[r]ead in its entirety, the CFEPA not only defines important rights designed to rid the workplace of discrimination, but also vests first-order administrative oversight and enforcement of these rights in the CHRO. It is the CHRO that is charged by the act with initial responsibility for the investigation and adjudication of claims of employment discrimination. That the act does not provide an unconditional private right of action for claimants like the plaintiff is underscored by the terms of General Statutes § 46a-99, which expressly provides such a direct right of action when the allegedly discriminatory employer is a state agency. The plaintiff, having failed to follow the administrative route that the legislature has prescribed for his claim of discrimination, lacks the statutory authority to pursue that claim in the Superior Court.” Id., 216.

The trial court in the present case stated that “[t]here is no unconditional private right of action under the CFEPA. ... A party must follow the administrative route established by the legislature and failure to do so results in a lack of statutory authority to pursue such a claim in Superior Court. . . . The plaintiff never obtained a release to sue from the CHRO pertaining to Greenberg. The plaintiffs failure to follow the prescribed administrative route enunciated in General Statutes §§ 46a-100 through 46a-104 as to Greenberg results in this court’s lack of subject matter jurisdiction. Accordingly, the defendants’ motion to dismiss the plaintiffs complaint as to Greenberg is granted.”

Practice Book § 143 governs motions to dismiss. “A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.” Herzog Foundation, Inc. v. University of Bridgeport, 41 Conn. App. 790, 793, 677 A.2d 1378, cert. granted on other grounds, 239 Conn. 907, 682 A.2d 998 (1996). “A ruling on a motion to dismiss is neither a ruling on the merits of the action . . . nor a test of whether the complaint states a cause of action. . . . Motions to dismiss are granted solely on jurisdictional grounds.” (Citations omitted.) Discover Leasing, Inc. v. Murphy, 33 Conn. App. 303, 306-307, 635 A.2d 843 (1993).

The Superior Court lacks subject matter jurisdiction in a matter if an adequate administrative remedy exists, and it has not been exhausted. Simko v. Ervin, 234 Conn. 498, 503, 661 A.2d 1018 (1995); Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59,377 A.2d 1099 (1977). The defendants argue that an adequate administrative remedy does exist against Greenberg and that the plaintiff did not exhaust that remedy because Greenberg was not named as a defendant in her complaint to the CHRO. We disagree.

It is not necessary for the purposes of this appeal to determine whether the plaintiffs complaint has stated a common law cause of action against Greenberg or whether, because her administrative remedy against Greenberg was inadequate, she can pursue other remedies in the trial court. Those determinations are not necessary because we conclude that the plaintiff did exhaust her administrative remedies against Greenberg, and, therefore, the court had subject matter jurisdiction. Our conclusion is based on the reasoning of Maturo v. National Graphics, Inc., 722 F. Sup. 916 (D. Conn. 1989), which has a similar factual situation.

The Maturo plaintiff had filed a complaint with the CHRO and the federal Equal Employment Opportunities Commission (EEOC) alleging sexual harassment. At the time she made the complaint, the plaintiff was not represented by counsel, but a CHRO staff member helped her to draw up the CHRO complaint. The complaint listed only the employer company and the company’s president as respondents. After the plaintiff obtained a notice of the right to sue from the EEOC, she filed suit in District Court, adding as defendants the employee supervisor who had allegedly harassed her and another supervisor.

“Generally, an action under Title VII can proceed only against those individuals named as respondents in the complaint filed with the EEOC. 42 U.S.C. § 2000e-5 (f) (1). The purpose of this exhaustion requirement is to provide notice to those alleged to have committed the violations and to provide an opportunity for the parties to comply voluntarily with the requirements of Title VII. ... A limited exception to the exhaustion requirement permits an action against a party not named as a respondent in the EEOC complaint if the underlying dual purposes of the exhaustion requirement are otherwise satisfied. . . . Specifically, the factors to be considered under this exception are ‘1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.’ [Garcia v. Gardner’s Nurseries, Inc., 585 F. Sup. 369, 372 (D. Conn. 1984)].” (Citations omitted.) Maturo v. National Graphics, Inc., supra, 722 F. Sup. 924-25.

The Maturo court found that the plaintiffs complaint filed with the CHRO and the EEOC satisfied those requirements. Each of the individual defendants had actual notice of the complaint, and the CHRO complaint had identified by name the employee who had allegedly harassed the plaintiff. Thus, neither previously omitted defendant had suffered any prejudice from the lack of formal notice. In addition, for purposes of voluntary conciliation, the interests of the supervisors were substantially identical to those of the company and its president. Further, the allegedly harassing supervisor had represented to the plaintiff that he had the authority to affect her relationship with the company. Finally, the court considered the fact that the plaintiff had not been represented by counsel at the time she filed the administrative complaints and, instead, relied on the advice of a CHRO employee. Considering all of these factors, the court concluded that “the underlying purposes of providing notice and encouraging conciliation were satisfied and [the] plaintiff should not be barred from proceeding because of a technical failure in the filing of her CHRO and EEOC complaints.” Id., 925.

Although the court in Maturo was concerned primarily with EEOC filing requirements, the same rationale applies to the requirements of the CHRO. We conclude that the defendant Greenberg had sufficient notice of the plaintiffs complaint filed with the CHRO. Paragraphs eight and nine of her complaint state: “8. On February 24, 1993,1 spoke to Mr. Greenberg about the sexual harassment I was being subjected to by Mr. O’Dell and Mr. Burke. Mr. Greenberg did not discipline Mr. O’Dell or Mr. Burke in any way, and the harassment did not stop.

“9. On or about March 5, 1993, I told Mimi that I could no longer work under those conditions. I again spoke to Mr. Greenberg, he apologized for the treatment I was getting from Mr. O’Dell and Mr. Burke. Mr. Greenberg offered to give me a pink slip stating that I was being laid off due to lack of work, and I accepted the offer.”

Reading the allegations of the CHRO filing in a light most favorable to the plaintiff, we identify the “Mr. Greenberg” named by the plaintiff in her CHRO complaint as being the Sidney Greenberg named as a defendant in her court complaint.

In his position as “owner” and president of the companies involved, Greenberg certainly had notice of the CHRO complaint. Because the plaintiffs CHRO complaint specifically stated which acts performed or not performed by Greenberg that the plaintiff considered to have harmed her, there can be no prejudice as to him. In addition, Greenberg’s interests as president and owner of the companies and the interests of the two companies themselves are nearly identical for purposes of voluntary conciliation and compliance. See Busconi v. Dighello, 39 Conn. App. 753, 766, 668 A.2d 716 (1995), cert. denied, 236 Conn. 903, 670 A.2d 321 (1996) (“corporation and those who control it are one entity and the acts of one are the acts of all”). Further, Greenberg’s action of offering the plaintiff a pink slip represented to the plaintiff that he could control her relationship with the company. Finally, as did the Maturo court, we consider the fact that the plaintiff was not represented by counsel at the time she filed the complaint with the CHRO. Considering the entire situation, we conclude that the underlying purposes of providing notice to Greenberg were satisfied in the plaintiffs filing with the CHRO.

Greenberg claims that he was prejudiced because the CHRO complaint did not name him as a respondent, which, he argues, deprived him of an opportunity to resolve informally the plaintiffs claims against him. We do not agree. Any investigation performed by the CHRO would, of necessity, have included him. The complaint against the corporate entities could not have been resolved without involving Greenberg. When the CHRO lost jurisdiction of the business entities, it, in effect, lost jurisdiction over Greenberg individually.

Greenberg also argues that the plaintiff cannot satisfy the first criteria of the Maturo test because she could easily have determined his role as an unnamed party, and, in fact, she had determined his role. Although Greenberg was not named in the title of the CHRO complaint, he was named in its text. Thus, the plaintiff had ascertained the part he played in her allegations and did name him.

The plaintiff exhausted her administrative remedies as to Greenberg, and her complaint as to him should not have been dismissed.

The judgment of dismissal is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       General Statutes § 46a-82 (a) provides: “Any person claiming to be aggrieved by an alleged discriminatory practice, except for an alleged violation of section 46a-68, may, by himself or his attorney, make, sign and file with the commission a complaint in writing under oath, which shall state the name and address of the person alleged to have committed the discriminatory pract ice. and which shall set forth the particulars thereof and contain such other information as may be required by the commission. After the filing of a complaint pursuant to this subsection, the commission shall serve upon the person claiming to be aggrieved a notice that: (1) Acknowledges receipt of the complaint and (2) advises of the time frames and choice of forums available under this chapter.”

       General Statutes § 46a-58 (a) provides: “It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, blindness or physical disability.”

       General Statutes § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section:
      “(1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability, including, but not limited to, blindness ....
      “(4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any discriminatory employment practice or because he has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84 ....
      “(8) For an employer, by himself or his agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent, to harass any employee, person seeking employment or member on the basis of sex. ‘Sexual harassment’ shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (C) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment . . . .”

       General Statutes § 46a-101 provides: “(a) No action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission in accordance with the provisions of this section.
      “(b) The complainant, or his attorney, may request a release from the commission if his complaint with the commission is still pending after the expiration of two hundred ten days from the date of its filing.
      “(c) The executive director of the commission shall grant a release, allowing the complainant to bring a civil action, within ten business days after receipt of the request for the release, except that if a case is scheduled for public hearing, the executive director may decline to issue a release. The commission may defer acting on a request for a release for thirty days if the executive director of the commission, or his designee, certifies that he has reason to believe that the complaint may be resolved within that period.
      “(d) Upon granting a release, the commission shall dismiss or otherwise administratively dispose of the discriminatory practice complaint pending with the commission without cost or penalty assessed to any party.
      “(e) Any action brought by the complainant in accordance with section 46a-100 shall be brought within ninety days of the receipt of the release from the commission.”

        ’ General Statutes § 46a-100 provides in pertinent part: “Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a-82, alleging a violation of section 46a-60 and who has obtained a release from the commission in accordance with section 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business . . . .”

       The case against Metal Products Corporation and Birken Manufacturing Company is still pending in the trial court.

       The relief the commission may grant is set forth in General Statutes § 46a-86 as follows: “(a) If, upon all the evidence presented at the hearing conducted pursuant to section 46a-84, the presiding officer finds that a respondent has engaged in any discriminatory practice, the presiding officer shall state his findings of fact and shall issue and file with the commission and cause to be served on the respondent an order requiring the respondent to cease and desist from the discriminatory practice and further requiring the respondent to taire such affirmative action as in the judgment of the presiding officer will effectuate the purpose of this chapter.
      “(b) In addition to any other action taken hereunder, upon a finding of a discriminatory employment practice, the presiding officer may order the hiring or reinstatement of employees, with or without back pay, or restoration to membership in any respondent labor organization, provided, liability for back pay shall not accrue from a date more than two years prior to the filing or issuance of the complaint and, provided further, interim earnings, including unemployment compensation and welfare assistance or amounts which could have been earned with reasonable diligence on the part of the person to whom back pay is awarded shall be deducted from the amount of back pay to which such person is otherwise entitled. The amount of any such deduction for interim unemployment compensation or welfare assistance shall be paid by the respondent to the commission which shall transfer such amount to the appropriate state or local agency.
      “(c) In addition to any other action taken hereunder, upon a finding of a discriminatory practice prohibited by section 46a-58 . . . the presiding officer shall determine the damage suffered by the complainant . . . and shall allow reasonable attorney’s fees and costs. ...” (Emphasis added.)

       Practice Book § 143 provides in pertinent part: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. . .

       ‘'Owner” is the term the plaintiff uses in her trial court complaint. In light of the fact that at least one of the companies involved is a corporation, it is unclear what this term implies. Greenberg may be the sole stockholder or a stockholder with a controlling interest.

       We are aware that the plaintiff was represented by counsel at the time she sought a release of jurisdiction from the CHRO.


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. EFRAIN VILLANUEVA
    (15112)
    O’Connell, Lavery and Landau, Js.
    Argued January 22
    officially released March 11, 1997

      Norman A. Pattis, special public defender, for the appellant (defendant).

      John A. East III, with whom, on the brief, were John A. Connolly, state’s attorney, and CaraF. Eschuk, assistant state’s attorney, for the appellee (state).
   LAVERY, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21. The defendant claims that (1) the trial court improperly refused to instruct the jury concerning “constancy of denial,” (2) during final argument the state improperly referred to the defendant’s failure to attend a scheduled meeting with the police, and (3) the trial court improperly denied the defendant’s request to poll the jury upon return of the verdict. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, who at the time of the incidents giving rise to these convictions was twelve years old, is a female with mild mental retardation. In 1993, the victim was introduced to the defendant, who at that time was twenty-six years old. Sometime in early September, 1993, the victim accepted an automobile ride from the defendant. The defendant drove the victim to a sparsely furnished vacant apartment in Waterbury and, over the victim’s protestations, had sexual intercourse with her. The defendant eventually drove the victim to her home. The victim did not inform anyone about the incident. Two weeks after the first incident, the defendant again drove the victim to the vacant apartment and, over her protestations, had sexual intercourse with her.

On October 13, 1993, the victim was approached by the defendant at the Waterbury town green. The defendant asked the victim to accompany him while he delivered pizza. The victim, having ran away from home that day, agreed to accompany him. Later that evening, the defendant drove the victim to a nearby motel, where he registered for a room, listing himself as the occupant. Once in the motel room, the defendant, over the protestations of the victim, again engaged in sexual intercourse with her. After the October 13, 1993 incident, the victim had no further contact with the defendant.

I

The defendant’s first claim is that the trial court violated his constitutional right to equal protection and due process’ when it declined to instruct the jury regarding “constancy of denial.” 1 At the center of the defendant’s argument is his contention that the constancy of accusation doctrine is unconstitutional and unfair. The defendant, therefore, contends that the constancy of denial instruction is constitutionally required to offset the harmful impact of the constancy of accusation instruction. We disagree.

It is well settled that the doctrine of constancy of accusation does not violate an accused’s right to confrontation, equal protection or due process. See State v. Troupe, 237 Conn. 284, 290-91, 677 A.2d 917 (1996) (holding that doctrine does not violate right of confrontation); State v. Kelley, 229 Conn. 557, 563-67, 643 A.2d 854 (1994) (holding that doctrine does not violate equal protection); State v. Martin, 38 Conn. App. 731, 735-39, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376 (1996) (holding that doctrine does not violate due process). Because the constancy of accusation doctrine does not violate an accused’s constitutional rights, we find it unnecessary to require the court to deliver a constancy of denial instruction as a counterweight.

The defendant’s constancy of denial instruction is akin to the “consciousness of innocence” doctrine, which has come before the courts of this state. This court in State v. Pettway, 39 Conn. App. 63, 664 A.2d 1125, cert. denied, 235 Conn. 921, 665 A.2d 908 (1995), ruled that a trial court was not obligated to deliver a jury instruction on consciousness of innocence. In Pettway, the defendant’s counsel requested a jury instruction based on the fact that the defendant did not flee when approached by the police, which was purportedly an action consistent with his consciousness of innocence. Id., 77-78. In State v. Jennings, 19 Conn. App. 265, 562 A.2d 545, cert. denied, 212 Conn. 815, 565 A.2d 537, cert. denied, 212 Conn. 815, 565 A.2d 537 (1989), this court upheld a trial court’s refusal to give a similar instruction, finding no support in law for such a request.

In the present case, because of his continuous assertion of his innocence, the defendant wanted the jury instructed that this fact was consistent with his supposed innocence. This position is almost identical to that of the defendants in the line of cases in which a consciousness of innocence instruction was not required. We are not persuaded by the defendant’s contention that the jury needed further instruction concerning the weight given to the defendant’s continuous assertion that he was innocent.

II

The defendant’s second claim is that during final argument the state improperly referred to the defendant’s failure to attend a scheduled meeting with the police, thereby undermining his right to the presumption of innocence. The defendant concedes that this issue was not raised or preserved at trial, but seeks review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We decline to review the defendant’s second claim because it is not of constitutional magnitude and, therefore, does not meet the second prong of Golding.

“We will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial. . . .

“In determining whether a prosecutor’s conduct was so egregious as to deny a defendant a fair trial, we note that some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . [W]e must review the comments complained of in the context of the entire trial.” (Citations omitted; internal quotation marks omitted.) State v. Hansen, 39 Conn. App. 384, 395, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995).

We conclude that this claim is not reviewable under Golding because the argument by the state’s attorney was not so egregious as to deprive the defendant of a fair trial and the claim, therefore, is not of constitutional magnitude.

Ill

The defendant’s third claim is that the trial court improperly denied his request to poll the jury upon return of the verdict.

After the verdict was read, the trial court instructed the six jurors that “[i]f you all agree that this is your verdict just nod please, so that the court is aware that you’re responding.” The defendant then orally moved the trial court to poll each juror. The trial court responded, “I’m satisfied by the acknowledgment of each of the jurors after the verdict was read, that the verdict is their unanimous verdict.”

At the time of trial, Practice Book § 869 provided in relevant part: “After a verdict has been returned and before the jury have been discharged, the jury may be polled at the request of any party or upon the judicial authority’s own motion.” “The decision to poll the jury is discretionary with the court. State v. Avcollie, 188 Conn. 626, 644, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); State v. Tucker, 181 Conn. 406, 420, 435 A.2d 986 (1980). In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709 [1972], State v. Barlow, 177 Conn. 391, 394, 418 A.2d 46 (1979). Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. State v. Brown, 169 Conn. 692, 702, 364 A.2d 186 (1975). State v. Jones, 180 Conn. 443, 448, 429 A.2d 936 (1980).” (Internal quotation marks omitted.) State v. Tirado, 194 Conn. 89, 95, 478 A.2d 606 (1984).

The trial court was in the best position to observe the demeanor of the jurors when they assented to the verdict. Apparently satisfied that the verdict was unanimous, the trial court denied defense counsel’s request to poll. Under the circumstances of this case, there is nothing in the record to indicate that the trial court abused its discretion in refusing to poll the jury, nor is this an issue of constitutional magnitude.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Rev. to 1995) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       Tlu> defendant claims that, his rights guaranteed by the fourteenth amendment to the United States constitution and article first, § 20, of the Connecticut constitution were violated.

       The defendant’s proposed instruction concerning “constancy of denial” states: ‘'Since the State is allowed to prove that, outside of court, the victim had earlier complained of the injury done to her, [to] show that she did not keep silent about it until she came to court to testify, it is only fair and just and equitable that you be reminded that the defendant in this matter has likewise been constant in his denial of having committed the crimes alleged against him. This evidence is admitted solely to corroborate his testimony in court. It is to be considered by you only in determining the weight and credibility you will give the defendant's testimony; and, in determining the extent you will find such corroboration in his out-of-court statements, you should carefully consider all the circumstances under which they were made. You should particularly consider whether he has been constant and consistent in what he has said. To the extent he has been consistent in what he has said, you may find his testimony in court to be corroborated or supported. To the extent he has been inconsistent in what he has said, you may consider the degree of inconsistency which you find, and you may consider the reasons which you find for the inconsistency, in evaluating the defendant’s testimony.”

       Our Supreme Court in State v. Golding, supra, 213 Conn. 239-40, stated: “[W]e hold that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the slate has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.”


author: PER CURIAM.

text:
    C. J. MOZZOCHI v. FREEDOM OF INFORMATION COMMISSION ET AL. TOWN OF GLASTONBURY v. C. J. MOZZOCHI
    (15193)
    O’Connell, Spear and Hennessy, Js.
    Argued January 16—
    officially released March 11, 1997

      C. J. Mozzochi, pro se, the appellant (plaintiff in the first four cases, defendant in the fifth case).

      Victor R. Perpetua, for the appellee (named defendant in the first four cases).

      William S. Rogers, for the appellee (defendant town of Glastonbury et al. in the first four cases, plaintiff in the fifth case).
   PER CURIAM.

The plaintiff C. J. Mozzochi appeals from the judgment of the trial court enjoining him from bringing further appeals to the defendant freedom of information commission (FOIC) that (1) are brought frivolously without reasonable grounds and for the purpose of harassment and (2) would perpetuate an injustice or constitute an abuse of the FOIC’s administrative process. The injunction is further limited to appeals that are of the same kind, nature, scope, magnitude, frequency and purpose as the requests that were involved in four designated FOIC requests and a specified FOIC advisory opinion.

We note that the plaintiff appears pro se. It is, of course, the policy of this court “to allow great latitude to a litigant who, either by choice or necessity, represents himself in legal proceedings, so far as such latitude is consistent with the just rights of any adverse party.” Bitonti v. Tucker, 162 Conn. 626, 627, 295 A.2d 545, cert. denied, 409 U.S. 851, 93 S. Ct. 62, 34 L. Ed. 2d 94 (1972). This is because “[a] party who, unskilled in such matters, seeks to remedy some claimed wrong by invoking processes which are at best technical and complicated, is very ill advised and assumes a most difficult task.” O’Connor v. Solomon, 103 Conn. 744, 745, 131 A. 736 (1926). Nonetheless, while the court exhibits some degree of leniency toward a pro se appellant, it cannot entirely disregard established principles of law.

We have carefully considered the record, briefs and the oral arguments of the parties. Having applied the appropriate standard of review, we conclude that the trial court’s decision conforms to the applicable law.

The judgment is affirmed.

      C. J. Mozzochi is the plaintiff in four appeals from decisions by the freedom of information commission. He is the defendant in the town of Glastonbury’s action to enjoin him from filing certain other actions with the commission. We refer to him as the plaintiff in this opinion.