author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. WILLIAM R. SCRIBNER
    (AC 20985)
    Schaller, Spear and Hennessy, Js.

      Argued March 22
    officially released October 1, 2002

      John J. Kelly, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Frank S. Maco, state’s attorney, and Kevin S. Russo and Ronald G. Weller, assistant state’s attorneys, for the appellee (state).

       This appeal was argued before a panel comprised of Judges Schaller, Spear and Hennessy. Although Judge Spear agreed with the other judges regarding the resolution of this appeal, he died before he had the opportunity to concur with the written decision. The parties stipulated, however, that rather than rearguing the appeal to this court with a panel consisting of the original two judges and an additional judge, they would permit the remaining two judges alone to render a written decision.

   Opinion

HENNESSY, J.

The defendant, William R. Scribner, appeals from the judgment of conviction, rendered after a jury trial, of negligent homicide with a motor vehicle in violation of General Statutes § 14-222a. On appeal, the defendant claims that the trial court improperly refused to instruct the jury that contributory negligence is a valid defense under General Statutes § 14-283 to the charge of negligent homicide with an emergency vehicle. We conclude that the defendant was not entitled to the requested jury instruction because it was an incorrect statement of the law. Accordingly, we affirm the judgment of the trial court.

The following facts are relevant to the resolution of the defendant’s appeal. While on duty in his patrol car on June 16, 1998, the defendant, a New Milford police officer, responded to a “code three” call, the highest priority call, by the police dispatcher for all available units to respond to a brawl involving as many as twenty combatants at Warner Beach on Candlewood Lake. With the emergency lights flashing on his patrol car, the defendant followed another patrol car operated by Officer James Antonelli southbound on Route 7 toward Warner Beach. Evidence was presented at trial that the defendant’s patrol car followed Antonelli’s patrol car through the intersection where the accident occurred at a distance of approximately three hundred to five hundred feet. Approximately one-half mile from where the defendant and Antonelli entered Route 7, the highway intersects with Sunny Valley Road. As the patrol cars approached the intersection, Angela D’Aquila’s vehicle entered Sunny Valley Road and proceeded toward Route 7. After Antonelli’s vehicle passed through the intersection of Route 7 and Sunny Valley Road, D’Aquila began to turn left onto Route 7. As D’Aquila entered Route 7, the defendant continued southbound on Route 7. Upon seeing D’Aquila’s vehicle, the defendant braked and slid until the left front portion of his vehicle collided with the operator’s side door of D’Aquila’s vehicle. D’Aquila died as a result of injuries sustained in the collision.

On April 11, 2000, the state filed an amended long form information alleging that the defendant negligently had operated his vehicle at or near the intersection of Route 7 (Danbury Road) and Sunny Valley Road in New Milford, causing the death of D’Aquila in violation of § 14-222a, in that the defendant had “proceeded past a red light without slowing down or stopping to the extent necessary for the safe operation of his motor vehicle, exceeded the posted speed limit and endangered life by doing so and therefore breached his duty to drive with due regard for the safety of all persons and property.” On April 19, 2000, the juiy found the defendant guilty of negligent homicide with a motor vehicle in violation of § 14~222a. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the defendant claims that the court improperly refused to instruct the jury that contributory negligence constitutes a defense under § 14-283 to a charge of negligent homicide with a motor vehicle in violation of § 14-222a. The defendant acknowledges that the instruction given to the jury by the court in the present case is consistent with Connecticut case law stating that contributory negligence is not a defense to negligent homicide with a motor vehicle. He argues, however, that he nonetheless was entitled to the requested instruction because the legislature could not have envisioned the result in this case when it enacted § 14-283. Specifically, he argues that the court’s jury charge without the additional requested instruction fails to give § 14-283 effect and causes a “bizarre result,” whereby he could be convicted of a crime while being exonerated from any liability in a civil action on the basis of the same facts. The defendant’s claim is without merit.

Initially, we set forth the standard of review. “It is well established that [a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.” (Internal quotation marks omitted.) Bonan v. Goldring Home Inspections, Inc., 68 Conn. App. 862, 867, 794 A.2d 997 (2002). Conversely, it also is true that a court is under no duty to give a requested jury instruction that is an improper statement of law. Accordingly, if this court concludes that the requested jury instruction was an improper statement of law, the defendant is not entitled to the requested jury instruction and the court’s refusal was proper.

In State v. Nesteriak, 60 Conn. App. 647, 654, 760 A.2d 984 (2000), this court stated that § 14-283 (b) does not immunize the operator of an emergency vehicle from criminal liability for a violation of § 14-222a, negligent homicide with a motor vehicle. The defendant argues that our discussion in Nesteriak regarding the interaction of § 14-283 with § 14-222a is merely dicta and not binding on this court because the defendant in that case was not charged with negligent homicide with a motor vehicle. We disagree with the defendant’s assertion that the discussion of those statutes in Nesteriak is dicta.

The fact that the defendant in Nesteriak was not charged with negligent homicide does not undermine the precedential force of our discussion of §§ 14-222a and 14-283 or its effect of serving notice of this court’s conclusion that the protections against liability afforded under § 14-283 do not apply to a charge of negligent homicide with a motor vehicle. The legitimacy of the proposition from Nesteriak, on which we now rely, not only is supported by Connecticut case law, but also by what we interpret as the legislature’s intent when enacting § 14-283 (b) (3).

In State v. Pope, 6 Conn. Cir. Ct. 712, 714, 313 A.2d 84 (1972), the Appellate Division of the Circuit Court held that the general rule that contributory negligence is not a defense in a criminal case applies in a negligent homicide case where ordinary negligence is one of the required elements, unless such negligence on the part of the decedent is found to be the sole proximate cause of his death. We adopt the appellate division’s reasoning in Pope and thus conclude that the requested jury instruction is an improper statement of law. Accordingly, the court properly denied the defendant’s request.

Further, we note that the court’s instruction as given in the present case did not cause a bizarre result unintended by the legislature when enacting § 14-283 (b) (3). The language of the statute clearly limits immunity in favor of preserving the safety of the public. Thus, we conclude that the legislature did not intend to extend liability protection to a defendant in circumstances such as are present in the case at hand. In his brief, the defendant acknowledges that § 14-283 (d) provides an exception when, even in the civil context, an emergency vehicle operator will be liable for failing to operate his vehicle with “due regard for the safety of all persons and property.” It is clear to this court that the legislature did not intend to put the limitation of liability offered under § 14-283 above the safety of the public. The charge in the present case alleged that the defendant exceeded the posted speed limit and did not slow to an appropriate speed when entering the intersection. Section 14-283 (b) (3) itself has within it a limitation on the protection against liability it offers for speeding. Under § 14-283 (b) (3), an emergency vehicle driver may exceed posted speed limits only “as long as he does not endanger life or property by so doing . . . .” In the present case, the defendant was charged with and found to have endangered life improperly by speeding through the intersection where the collision occurred. Thus, § 14-283 does not offer the defendant any protection against liability in the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-283 provides in relevant part: “(a) ‘Emergency vehicle’, as used in this section, means . . . any state or local police vehicle operated by a police officer . . . answering an emergency call or in the pursuit of fleeing la.w violators.
      "(b) The operator of any emergency vehicle may ... (2) proceed past any red light or stop signal or stop sign, but only after slowing down or stopping to the extent necessary for the safe operation of such vehicle, (3) exceed the posted speed limits or other speed limits imposed by or pursuant to section 14-218a or 14-219 as long as he does not endanger life or property by so doing, and (4) disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions.

        “(c) The exemptions herein granted shall apply only when an emergency vehicle is making use of an audible warning signal device, including but not limited to a siren, whistle or bell which meets the requirements of subsection (f) of section 14-80, and visible flashing or revolving lights which meet the requirements of sections 14-96p and 14-96q, and to any state or local police vehicle properly and lawfully making use of an audible warning signal device only.
      “(d) The provisions of this section shall not relieve the operator of an emergency vehicle from the duty to drive with due regard for the safety of all persons and property.
      “(e) Upon the immediate approach of an emergency vehicle making use of such an audible warning signal device and such visible flashing or revolving lights or of any state or local police vehicle properly and lawfully making use of an audible warning signal device only, the operator of every other vehicle in the immediate vicinity shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the emergency vehicle has passed, except when otherwise directed by a state or local police officer or fireman as provided in section 7-313a. . . .
      “(g) Any person who wilfully or negligently obstructs or retards any ambulance or emergency medical service organization vehicle while answering any emergency call or taking a patient to a hospital, or any vehicle used by a fire department or any officer or member of a fire department while on the way to a fire, or while responding to an emergency call, or any vehicle used by the state police or any local police department, or any officer of the Division of State Police within the Department of Public Safety or any local police department while on the way to an emergency call or in the pursuit of fleeing law violators, shall be fined not more than fifty dollars or imprisoned not more than seven days or both.
      “(h) Nothing in this section shall be construed as permitting the use of a siren upon any motor vehicle other than an emergency vehicle, as defined in subsection (a) of this section, or a rescue service vehicle which is registered with the Department of Motor Vehicles pursuant to section 19a-181.”

       See State v. Pope, 6 Conn. Cir. Ct. 712, 714, 313 A.2d 84 (1972).


source: Caselaw Access Project

author: MIHALAKOS, J. FOTI, J.,

license: Public Domain

text:
    GAIL A. PARLEY v. JON A. PARLEY
    (AC 21349)
    Lavery, C. J., and Foti and Mihalakos, Js.

      Argued June 6
    officially released October 8, 2002

      Jon A. Parley, pro se, the appellant (defendant).

      Daniel H. Kennedy, Jr., for the appellee (plaintiff).
   Opinion

MIHALAKOS, J.

The defendant, Jon A. Parley, appeals from the judgment of the trial court dissolving the parties’ marriage. On appeal, the defendant claims that the court improperly (1) ordered him to obtain life insurance to secure the court’s alimony order and (2) distributed the marital home in that the court (a) excluded evidence of a written contract, (b) awarded to the plaintiff a credit in the amount of $60,000 and (c) failed to provide specific figures in its financial orders. We reverse the judgment of the trial court as to its financial orders only and remand the matter to that court for a new trial as to the financial matters.

The following facts and procedural history are relevant to our consideration of the defendant’s claims on appeal. The parties were married on August 10, 1979. Five children were bom to the marriage, two of whom reached the age of majority prior to the dissolution action. On April 20, 1999, the plaintiff, Gail A. Parley, brought an action seeking dissolution of the marriage, claiming that it had irretrievably broken down.

The court entered orders regarding property distribution, alimony, child support and other miscellaneous matters. As part of the dissolution decree, the court ordered the defendant to pay to the plaintiff alimony in the amount of $50 per week. At the time of the dissolution, the defendant held a life insurance policy. To secure the alimony payment, the court ordered the defendant to obtain additional life insurance. In addition, the court found that “[t]he parties have agreed to a value of the marital home in the amount of $142,000 . . . .” After ordering that the plaintiff receive a credit in the amount of $60,000 from the equity in the marital home, the court distributed the remaining equity in the property, 60 percent to the plaintiff and 40 percent to the defendant. This appeal followed. Additional facts will be set forth as necessary.

Before addressing the defendant’s claims on appeal, we first set forth our well settled standard of review. “Our standard of review in domestic relations cases is clear. We will not reverse a trial court’s rulings regarding financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did. ... A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.” (Citation omitted; internal quotation marks omitted.) Askinazi v. Askinazi, 34 Conn. App. 328, 330-31, 641 A.2d 413 (1994). “In reviewing the trial court’s decision under [an abuse of discretion] standard, we are cognizant that [t]he issues involving financial orders are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Cordone v. Cordone, 51 Conn. App. 530, 532-33, 752 A.2d 1082 (1999).

“A reviewing court must indulge every reasonable presumption in favor of the correctness of the trial court’s action to determine ultimately whether the court could reasonably conclude as it did. . . . This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant.” (Internal quotation marks omitted.) Askinazi v. Askinazi, supra, 34 Conn. App. 331.

We now turn to the defendant’s claims.

I

The defendant first claims that the court improperly ordered him to obtain additional life insurance to secure his alimony obligation. Specifically, he argues that the court failed to inquire regarding the cost and availability of such insurance, and, therefore, improperly ordered him to obtain the insurance. We agree and vacate the order of the court regarding the additional insurance to secure the alimony payments.

“The ordering of security for alimony by a trial court is discretionary under [General Statutes § 46b-82].” Cordone v. Cordone, supra, 51 Conn. App. 534; General Statutes § 46b-82. The court’s discretion, however, is not without limits. This court has held that the trial court must delve into certain matters before ordering a party to obtain life insurance to secure the payment of alimony. See Michel v. Michel, 31 Conn. App. 338, 341, 624 A.2d 914 (1993). Specifically, the court must engage in a search and inquiry into the cost and availability of such insurance. Id.; see also Lake v. Lake, 49 Conn. App. 89, 92, 712 A.2d 989, cert. denied, 246 Conn. 902, 719 A.2d 1166 (1998).

In the present case, the defendant held a life insurance policy at the time of the dissolution. The court ordered him to obtain additional life insurance to secure his alimony payments without inquiring into the cost or availability of the additional insurance. As in Michel, the court in the present case “has entered . . . financial orders that may be inappropriate, that is, too high or too low depending on the funds required to obtain such [additional] insurance.” Michel v. Michel, supra, 31 Conn. App. 341. Although the charged party in Michel held no insurance at the time of the dissolution; id., 340; we conclude that the same analysis is necessary in cases in which a party is ordered to obtain additional insurance. Because the court did not inquire as to the cost and availability of the additional life insurance, the court’s order lacks a reasonable basis in the facts, and, therefore, constitutes an abuse of the court’s discretion.

Although every improper financial order in a dissolution of marriage action does not necessarily merit a reconsideration of all of the court’s financial orders; see, e.g., Smith v. Smith, 249 Conn. 265, 277, 752 A.2d 1023 (1999); in this case, the court’s order that the defendant obtain additional life insurance is interdependent with its other financial orders and may not be severed from them. We must, therefore, remand the case to the trial court on all financial matters.

II

The defendant next claims that the court improperly distributed the marital home. Specifically, he argues that the court improperly (1) excluded evidence of a written contract, (2) awarded to the plaintiff a credit in the amount of $60,000 and (3) failed to provide specific figures in its financial orders. In essence, the defendant takes issue with the court’s determination that moneys used to construct an addition to the marital home were a gift to the plaintiff from her parents, and he also takes issue with the financial orders flowing from that determination. We disagree.

The following additional facts are relevant to our disposition of the defendant’s remaining claims on appeal. In 1992, the parties constructed an addition to the marital home. The plaintiffs father, Elzidor Miner, funded the construction by writing several checks payable to the plaintiff that totaled $60,000. After the addition was complete, Miner and his ailing wife moved into the marital home.

At trial, Miner testified that the $60,000 was intended to be a gift solely to his daughter. In addition, the plaintiffs testimony mirrored that of Miner. During trial, the defendant repeatedly proffered a copy of a document and argued that it evidenced a contract between the parties, but the court denied its admission as a full exhibit each time it was proffered. On October 6, 2000, the court issued its ruling from the bench and found, inter alia, that the $60,000 was indeed a gift from Miner to his daughter.

The defendant now argues that the court improperly found that the $60,000 was a gift intended solely for the plaintiff rather than the consideration required by the contract he claims existed between the parties. We disagree. To address the defendant’s claims regarding the marital home, we must first decide whether the court properly found that the $60,000 was a gift to the plaintiff rather than made in connection with a contract to which the defendant was a party.

As a preliminary matter, we first address whether the court abused its discretion in excluding from evidence a copy of the purported contract. The defendant argues that the document was admissible because it was relevant, to the determinations regarding the acquisition of assets. We decline to review his claim.

Pursuant to Practice Book § 61-10, “[i]t is the responsibility of the appellant to provide an adequate record for review. ...” The defendant has failed to provide this court with a complete copy of the relevant transcripts. The transcripts that the defendant did provide are devoid of the court’s decision and explanation regarding the exclusion of the purported agreement.

“Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) State v. Duteau, 68 Conn. App. 248, 254, 791 A.2d 591, cert. denied, 260 Conn. 939, 835 A.2d 58 (2002). Because this court does not have before it the reasons for the exclusion of the agreement, we decline to review the defendant’s claim that the exclusion was an abuse of discretion.

We now turn to whether the $60,000 was a gift intended solely for the plaintiff. “A gift is the transfer of property without consideration. ... To make a valid gift inter vivos, the donor must part with control of the property which is the subject of the gift with an intent that title shall pass immediately and irrevocably to the donee. . . . The burden of proving the essential elements of a valid gift rests upon the party claiming the gift.” (Citations omitted; internal quotation marks omitted.) Kriedel v. Krampitz, 137 Conn. 532, 534, 79 A.2d 181 (1951).

“The question of whether a gift inter vivos or causa mortis has been made is within the exclusive province of the court. . . . The determination of whether a gift has been made is not reviewable unless the conclusion of the court is one which cannot reasonably be made. . . . The credibility of the witnesses and the weight to be accorded to their testimony is for the trier of fact. . . . This court does not try issues of fact or pass upon the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) Dalia v. Lawrence, 226 Conn. 51, 70-71, 627 A.2d 392 (1993).

Similarly, “[t]he existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence. ... To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. ... To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties. . . . Because the . . . claim involves a finding of fact, we must adhere to the long-standing principle that findings of fact are ordinarily left undisturbed upon judicial review.” (Internal quotation marks omitted.) Lussier v. Spinnato, 69 Conn. App. 136, 140, 794 A.2d 1008, cert. denied, 261 Conn. 910, 806 A.2d 49 (2002).

“The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence .... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Noble v. White, 66 Conn. App. 54, 60, 783 A.2d 1145 (2001).

In the present case, the court considered the testimony of Miner, the plaintiff and the defendant regarding whether the $60,000 was a gift or part of a contract. After hearing the testimony and reviewing the evidence, the court found that the $60,000 was indeed a gift to the plaintiff. It reasoned that “Mr. Miner testified it was a gift. The checks were made out to [the plaintiff] specifically, 1'rom him, she paid the contractor who did the work on the house, and it . . . would also give [Miner] and his wife a place to live that was the least costly, allowing that gift to remain with his daughter where moneys might not otherwise be left to her by way of an inheritance.” By finding that the money was a gift, the court implicitly rejected the defendant’s argument that the parties had entered into a contract. As previously noted, this court will not pass on the credibility of the witnesses, nor will it retry the facts. After reviewing the record and transcripts before us, we conclude that there was evidence in the record to support the court’s finding that the money was a gift to the plaintiff. In addition, we are not convinced, on the entire evidence, that a mistake has been committed. Therefore, the court’s finding was not clearly erroneous.

Having concluded that the court’s finding that the $60,000 was a gift solely to the plaintiff was not clearly erroneous, we now address the defendant’s claims regarding the amount of the court’s award relating to the marital home. The defendant first argues that the court improperly awarded to the plaintiff a credit in the amount of $60,000 from the equity in the marital home. He further contends that the court improperly failed to provide specific figures and instructions regarding the $60,000 credit. We disagree.

As previously noted, “[t]he standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . [E]very reasonable presumption will be given in favor of the trial court’s ruling, and [n]othing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Citation omitted; internal quotation marks omitted.) Bleuer v. Bleuer, 59 Conn. App. 167, 169, 755 A.2d 946 (2000).

In a dissolution action, the court is not required to distribute the marital property evenly between the parties. Id., 172. Pursuant to General Statutes § 46b-81 (a), the court, when entering a dissolution decree, may “assign to either the husband or wife all or any part of the estate of the other. ...” In doing so, the court must consider all of the statutory criteria, including the cause of the dissolution, but it need not give equal weight to or explicitly address each factor. Bleuer v. Bleuer, supra, 59 Conn. App. 173; see also General Statutes § 46b-81 (c).

During its oral ruling, the court stated that it considered the statutory criteria and proceeded to distribute the parties’ property. The court specifically found that “fault is a permissible category and . . . that the majority of the fault for the breakdown of this marriage lies on [the defendant’s] doorstep.” By considering the requisite statutory criteria, the court properly applied the law with regard to property distribution in a marital dissolution action. Because the court found that the defendant was at fault for the breakdown of the marriage and that the $60,000 was a gift to the plaintiff, the court reasonably could have concluded as it did. Therefore, the court did not abuse its discretion by awarding to the plaintiff a credit from the equity in the marital home in the amount of $60,000.

The defendant’s final argument is that the court improperly failed to provide specific figures and instructions regarding the $60,000 credit. We disagree. The court found that the value of the property was $142,000 and that there was a mortgage in the amount of $41,000. With those base figures, the parties easily could subtract $60,000 from the equity and determine the value of each party’s interest in the property. Therefore, the court did not abuse its discretion by neglecting to provide specific figures relating to the credit.

The judgment is reversed as to the financial orders only and the case is remanded for a new hearing on all financial issues.

In this opinion LAVERY, C. J., concurred.

FOTI, J.,

dissenting in part. Although I agree with the analysis set forth in the majority opinion, the result reached in reversing the trial court’s order to obtain additional insurance and the affirmance of the judgment in all other respects, I write separately because I respectfully disagree with the majority’s decision to remand the matter for a new hearing on all financial matters.

The majority properly concludes that the trial court improperly ordered the defendant, Jon A. Parley, to obtain additional insurance because the trial court did not have any evidence before it concerning the cost or availability of such insurance. Despite the fact that the defendant possessed some life insurance at the time of the dissolution, that fact alone did not provide a reasonable factual basis on which to order the defendant to obtain additional insurance.

The defendant, on the one hand, argues that the appropriate remedy is to remand the matter for a full reconsideration of all financial issues. The plaintiff, Gail A. Parley, on the other hand claims that she is willing to waive that portion of the court’s order concerning life insurance so as to preserve the remainder of the court’s judgment. The plaintiff does so despite the fact that if the defendant is relieved of that obligation, the plaintiff presumably would benefit from a full reconsideration of all financial issues.

“[I]ssues involving financial orders [in dissolution cases] are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Hopfer v. Hopfer, 59 Conn. App. 452, 458-59, 757 A.2d 673 (2000). Consequently, when an appellate court reverses a trial court judgment in a dissolution matter on the basis of an improper financial order, the remand usually requires the trial court to reconsider all of its financial orders. Our Supreme Court, however, has stated that a financial order in a dissolution case is severable when “it is not in any way interdependent with other orders and is not improperly based on a factor that is linked to other factors.” Smith v. Smith, 249 Conn. 265, 277, 752 A.2d 1023 (1999).

I am persuaded that the court’s life insurance order in the present case may be severed from its other orders. It appears from a review of the record that the court determined its other financial orders independently from that issue and that the other orders are not interdependent with the life insurance order. The defendant does not in any way explain why a reversal of that order warrants a full rehearing on all financial issues. The court ordered the defendant to supplement an existing insurance policy merely as a means to secure a $50 per week alimony payment. In contrast to the panoply of financial orders issued by the court, the life insurance order was of marginal significance and would have imposed, at most, a minimal burden on the defendant. Apart from the requests of either party, it is this court’s duty to fashion an appropriate remedy in this appeal. In so doing, we should be mindful of the need to conserve judicial resources, as well as the burden that court appearances and costs visit on litigants. In light of those concerns, I do not see a useful purpose in ordering a new hearing on all financial orders simply because we have concluded that the court’s order concerning additional insurance was improper. Instead, I am convinced that “reversing the judgment only insofar as it relates to that order does not undermine the other financial orders because its impropriety does not place the correctness of the other orders into question.” Id., 279.

For those reasons, I respectfully dissent only as to the majority’s remand for a new hearing on all financial issues.

       In addition, the defendant raises for the first time several claims in his reply brief. “It is a well established principle that arguments cannot be raised for the first time in a reply brief. . . . Claims of error by an appellant must be raised in his original brief ... so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument.” (Citations omitted; internal quotation marks omitted.) Kelley v. Tomas, 66 Conn. App. 146, 163-64, 783 A.2d 1226 (2001). Thus, we decline to review those claims presented by the defendant in his reply brief that were not previously raised.

       We note that the position of the dissenting opinion is that this court simply should vacate the trial court’s order with regard to the additional insurance. We respectfully disagree. First, we are not similarly persuaded that the court’s order that the defendant obtain additional life insurance may be severed from the other financial orders. To assume that the court would have framed the financial orders in the same manner, absent the additional insurance, would be mere speculation. In addition, the defendant, not the plaintiff, has appealed from the court’s order. If the defendant had wanted to waive a rehearing or had agreed with the plaintiff, he should have entered into an agreement with her and withdrawn that issue from his appeal. That he has not done. Because the defendant has not seen fit to withdraw the issue on appeal, the remand should be in accordance with our case law and not be motivated by what the dissent refers to as the plaintiffs willingness to drop the additional insurance order unilaterally.

       We address the defendant’s remaining claim regarding the distribution of the marital home because it is likely to recur on retrial. See Litchfield Asset Management Corp. v. Howell, 70 Conn. App. 133, 143, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002).

       Prior to completion of the addition to the home, an attorney drafted a document between “Elzidor Miner and Jennie Miner” and “Jon Parley and Gail Parley” whereby the plaintiffs parents were to give $56,000 to the Parleys and, after completion, were to move into the marital home. The plaintiffs parents are the only signatories to the document.

       If the value of the property is $142,000 and there is a $41,000 mortgage on the property, then the equity equals $101,000. Pursuant to the court’s order, the plaintiff is entitled to the first $60,000. In addition, the plaintiff was awarded 60 percent of the remaining $41,000 of equity.

       The majority argues that the plaintiffs willingness to waive her claim to additional insurance should not influence this court’s remand. The majority also points out that had the defendant, who is proceeding pro se, wanted to waive a rehearing on all financial issues, he could have entered into an agreement with the plaintiff to that end and could have withdrawn the issue from his appeal. Although I cannot speak as to the reasons underlying the defendant’s decision not to do either of those things, I nonetheless recognize that on remand for a full reconsideration of all of the court’s financial orders, the court likely will find a way to replace such part of its so-called “mosaic” that conferred a benefit to the plaintiff in the form of the defendant’s additional life insurance by ordering him to confer some other benefit to the plaintiff. Stated otherwise, it is the plaintiff, and not the defendant, who likely will benefit on remand.

       My examination of the record reveals that the court carefully crafted the ■‘mosaic" that constituted its judgment and then, almost as an afterthought, rendered the life insurance order in question.

       I view the life insurance order as a de minimus order of little financial significance.


author: LAVERY, C. J.

text:
    MUNICIPAL FUNDING, LLC v. LOUIS GALULLO, TAX COLLECTOR OF THE CITY OF WATERBURY, ET AL.
    (AC 21923)
    Lavery, C. J., and Bishop and Peters, Js.

      Argued May 2
    officially released October 8, 2002

      Robert P. Hanahan, for the appellant (plaintiff).

      Elaine M. Skoronski, office of corporation counsel, for the appellees (defendants).
   Opinion

LAVERY, C. J.

This is an appeal from the trial court’s judgment in a mandamus action arising from a dispute between the parties over the proceeds of a check issued pursuant to a fire insurance policy on property that sustained damage during the course of foreclosure proceedings. The plaintiff, Municipal Funding, LLC, appeals from the rendering of summary judgment in favor of the defendants, Louis Galullo, tax collector of the city of Waterbury, and the city of Waterbury. The court concluded that the plaintiff, which was an assignee of some of the city’s municipal tax liens and had taken title by foreclosure, had no right to the proceeds of the check. On appeal, the plaintiff claims that the court improperly concluded that (1) the plaintiff could have obtained a deficiency judgment in its underlying tax lien foreclosure action, (2) the plaintiff as an assignee did not have the same rights to the insurance proceeds as the city would have had and (3) the plaintiff’s foreclosures on two of the tax liens that it owned extinguished its right to payment on the third lien, even though the foreclosure did not extinguish the liens owned by another assignee and the city. We affirm in all substantive parts the trial court’s well reasoned decision.

In determining a motion for summary judgment, the court may rely on “affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. . . .” Practice Book § 17-45. That evidence reveals the following. This dispute arises from municipal tax liens and other taxes for property located at 300 Schraffts Drive in Waterbury, formerly known as the Red Bull Motor Inn. The city assigned liens against the property on the 1993, 1994 and 1995 grand lists to GTL Investment Limited Partnership, which subsequently sold the hens to the plaintiff. The assignment to the plaintiff included an agreement between the plaintiff and the city providing that the plaintiff would not foreclose on the city’s water and sewer hens, but would take the property subject to the hens and pay them off with interest. An entity called Angram was the assignee of the tax hens on the 1996 and 1997 grand lists, and the city retained rights to the real property taxes and tax hens on the 1998 and 1999 grand hsts.

Following its acquisition of the hens from GTL Investment Limited Partnership, the plaintiff was substituted as a plaintiff in an action to foreclose the 1993 and 1994 tax hens. On January 19, 1999, a notice of judgment was issued, ordering strict foreclosure on the property. The foreclosure judgment stated that the property had a fair market value of $450,000, debt and attorney’s fees totaling $169,666.03 and a title search fee and an appraiser’s fee totaling $2300. The judgment thereafter was opened, and the law days were rescheduled to begin on May 25, 1999. On May 24, 1999, the premises were damaged by fire. The law days passed without redemption, and the plaintiff took title to the property on June 8, 1999.

On May 23, 2000, Seaco Insurance Company, the insurer of the former property owner, issued a check in the amount of $342,542.99 for partial payment for the damage caused by the fire. The check was payable to Reidville Scott Hospitality, LLC, Tancreti, Phipps, Hoffman & Biller, the city, the plaintiff and ROI Realty Credit, LLC.

On September 12, 2000, the plaintiff filed an application for an order of mandamus, asking that the court order that the tax collector endorse the check to the plaintiff as payment for its hens. The defendants denied that the tax collector was legally obligated to pay the plaintiff and counterclaimed that the city had an interest in the insurance payment. In their counterclaim, the defendants asked that the parties be required to interplead together their claims to the distribution of the insurance proceeds and that the check be placed in escrow pending the outcome.

The parties thereafter filed cross motions for summary judgment. The plaintiffs motion for summary judgment as to liability argued that it was entitled to the insurance proceeds because the fire “occurred after the initiation of the tax foreclosure action, after the court set a fair market value for the property being foreclosed, after the court set a debt for taxes being foreclosed and which fire occurred before any law day for redemption was reached by any party to the foreclosure.” The defendants’ motion for summary judgment asserted that the plaintiffs debt for the tax liens was extinguished under common law, statutory foreclosure principles and the doctrine of merger.

On April 30, 2001, the court rendered summary judgment in the defendants’ favor. In a thoughtful and well reasoned decision, the court concluded that all of the plaintiffs tax liens, including the 1995 lien, were extinguished when the plaintiff took title to the property. The plaintiff appealed to this court.

Summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 17-49. “On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendants] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Massad v. Eastern Connecticut Cable Television, Inc., 70 Conn. App. 635, 638, 801 A.2d 813, cert. denied, 261 Conn. 926, 806 A.2d 1060 (2002). We conclude that with the exception of dictum in the court’s memorandum of decision that conflicts with Winchester v. Northwest Associates, 255 Conn. 379, 767 A.2d 687 (2001), which was released after the parties argued the summary judgment motions, the court’s conclusions are legally and logically correct.

Focusing on the dictum first, the plaintiff argues that the court improperly concluded that it could have obtained a deficiency judgment in its underlying tax lien foreclosure action if the value of the property had decreased because of the fire. The plaintiff notes that in Winchester v. Northwest Associates, supra, 255 Conn. 389, our Supreme Court concluded that the statutory scheme does not allow municipalities to collect deficiency judgments in tax lien foreclosures. As the plaintiff conceded at oral argument, however, the trial court’s observation was mere dictum, and we can affirm the court’s judgment on other grounds.

We also are unpersuaded by the plaintiffs second two claims that (1) it is entitled to the insurance proceeds to satisfy the liens because the fire occurred before the law days, and (2) foreclosure on the 1993 and 1994 tax liens did not extinguish its right to payment on the 1995 lien.

The resolution of those final two claims requires us to interpret the statutes regarding municipal lien assignment and extinguishment, as well as the priority of municipal liens on fire insurance proceeds. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case .... In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Id., 386. We afford plenary review to issues of statutory construction. Id.

General Statutes § 12-172 provides in relevant part: “The interest of each person in each item of real estate, which has been legally set in his assessment list, shall be subject to a lien for that part of his taxes laid upon the valuation of such interest, as found in such list when finally completed, as such part may be increased by interest, fees and charges, and a lien for any obligation to make a payment in lieu of any such taxes .... Such lien . . . shall take precedence of all transfers and encumbrances in any manner affecting such interest in such item, or any part of it. . . .” General Statutes § 12-181 gives municipal tax collectors the authority to “bring suit for the foreclosure of tax liens in the name of the municipality by which the tax was laid . . . .”

Pursuant to General Statutes § 12-195h, a municipality is authorized to assign tax liens. Section 12-195h provides in relevant part: “The assignee or assignees of such liens shall have and possess the same powers and rights at law or in equity as such municipality and municipality’s tax collector would have had if the lien had not been assigned with regard to the precedence and priority of such lien, the accrual of interest and the fees and expenses of collection. The assignee shall have the same rights to enforce such liens as any private party holding a lien on real property.”

I

The plaintiff first argues that the court improperly made a distinction between a lien holding municipality’s right to collect fire insurance proceeds and that of a lien holding municipal assignee. Where property damaged by fire is encumbered by a tax hen, a municipality may have priority to any fire insurance proceeds pursuant to General Statutes § 49-73a et seq. Section 49-73a provides in relevant part: “The interest of each person in the proceeds of any policy issued by an insurance company providing fire insurance coverage for loss or damages caused by fire on an item of real estate . . . provided the amount of the proceeds for the loss payable under such policy is five thousand dollars or more, shall be subject to any tax hen on such item of real estate . . . .” Furthermore, General Statutes § 49-73e provides in relevant part: “The hens filed pursuant to sections 49-73a and 49-73b shah take precedence over any claim of right of an insured owner, mortgagee, assignee or other interested party . . . .” Noting that § 12-195h provides that an assignee has the same rights as to the precedence and priority of the hens as a municipality, the plaintiff argues that the court impermissibly refused to apply § 49-73a, and further speculates that the court would have concluded that the city was entitled to the proceeds on the 1993, 1994 and 1995 hens if the city had been the party that was foreclosing. We disagree with the plaintiffs characterization of the court’s decision and with its claim.

Underlying the claim is the flawed assertion that the timing of the fire before the first law day is a “critical fact.” Assuming that the timing of the fire makes a difference, the plaintiff argues that the court ignored the relevant statutes and precedent from our Supreme Court.

We note, as did the trial court, that the critical fact is not whether the fire occurred before the first law day, but that the plaintiff took title to the property. Just as the plaintiff stepped into the shoes of the municipality as an assignee for purposes of precedence and priority, it also is bound by the extinguishment provision of General Statutes § 12-195. That section provides in relevant part: “When any municipality acquires real estate by foreclosure ... of a tax or an assessment lien or liens thereon . . . [t]he acquisition of such real estate by the municipality shall be deemed a cancellation by such municipality of all of its claims against the tax collector for unpaid taxes and assessments, interest or lien fees assessed against such real estate. . . .” Accordingly, by taking title to the property, the plaintiff lost its rights to collect on all of its liens, including its 1995 lien.

We note that there is no conflict between that interpretation of §§ 12-195 and 12-172. Section 12-172 further provides in relevant part that “[n]o sale of real estate for taxes or foreclosure of any lien shall divest the estate sold of any existing lien for other taxes.” (Emphasis added.) We conclude that the plain language of § 12-172 and its relationship to other language in the statutory municipal foreclosure scheme indicates that this section applies only to real estate sales or foreclosure by sale. It does not apply to instances of strict foreclosure.

In addition to the plain language limiting § 12-172 to foreclosures by sale, we note that in 1998, the legislature amended § 12-195 to distinguish between strict foreclosures and foreclosures by sale or auction. See Public Acts 1998, No. 98-35, § 1. Speaking in favor of the amendment, which added the words “foreclosure by sale or auction” to the statute, Representative John S. Martinez stated that “this bill would allow municipalities to cancel unpaid taxes on parcels of land acquired by municipalities through foreclosure by sale or auction. Presently, the [statutory reference to ‘foreclosure’] only allow[s] municipalities to cancel such taxes when a parcel is acquired through strict foreclosure.” 41 H.R. Proc., Pt. 5, 1998 Sess., p. 1601. We conclude that the reverse also is true. Because § 12-172 refers only to sales of real estate for foreclosure of liens, we conclude that it does not apply to strict foreclosure. Accordingly, § 12-172 does not save the plaintiffs 1995 hen from extinguishment.

Arguing that this conclusion is contrary to precedent, the plaintiff cites Burritt Mutual Savings Bank v. Transamerica Ins. Co., 180 Conn. 71, 428 A.2d 333 (1980), for the proposition that if fire damage occurs after foreclosure proceedings are initiated, the fire proceeds are needed to restore the property to its previous condition. As the trial court did, we conclude that Bur-ritt Mutual Savings Bank is inapplicable. Whereas that case addressed an insurance company’s liability under a mortgage loss payable clause; see id.; no such provision is present here. Furthermore, as the plaintiff conceded at oral argument, any equitable argument that it is entitled to the insurance proceeds because the property’s “fair market value was diminished by the fire loss” founders for lack of evidence and the plaintiffs failure to seek to open the judgment before the close of the law days.

II

The plaintiffs final claim is that if § 12-195 operates to extinguish its hens, then it extinguishes all municipal liens on the property, including those held by Angram and the city. As a result, it argues that the city has no interest in the insurance proceeds, presumably entitling the plaintiff to them in their entirety. Not only does that argument ignore the contract between the plaintiff and the city whereby the plaintiff agreed to pay the city’s water and sewer hens with interest, but we also disagree with the argument that the statutory scheme requires such a result.

As previously stated, § 12-195 provides in relevant part: “When any municipality acquires real estate by foreclosure ... of a tax or an assessment lien or liens thereon . . . [t]he acquisition of such real estate by the municipality shall be deemed a cancellation by such municipality of all of its claims against the tax collector for unpaid taxes and assessments, interest or lien fees assessed against such real estate. . . .”

We disagree with the plaintiffs assertion that this section means that the plaintiffs foreclosure resulted in the extinguishment of not only the liens assigned to it, but also the liens retained by the city and Angram. By the plain language of the statute, it is the party who forecloses, and thus acquires the subject real property, whose liens then cease to exist. Although by virtue of § 12-195h, the plaintiff, as assignee, acquired the rights and powers of the city with respect to the enforcement of the 1993, 1994 and 1995 liens, it does not follow that it became the functional equivalent of the city for all purposes, particularly so as to trigger a broader application of the extinguishment provision of § 12-195. In that context, the relationship between the city, its other assignee and the plaintiff is analogous to that between different municipalities, such that the foreclosure of the plaintiffs liens did not “divest the estate ... of any existing lien for other taxes.” General Statutes § 12-172. Accordingly, we conclude that the court properly found that the liens held by Angram and the city were not extinguished by reason of the plaintiffs foreclosure and that the only liens that the plaintiff had any right to were the ones that it had purchased.

The judgment is affirmed.

In this opinion the other judges concurred.


author: SCHALLER, J. DUPONT, J.,

text:
    ERICA RIVERA v. CITY OF MERIDEN
    (AC 21692)
    Foti, Schailer and Dupont, Js.
    Argued April 29
    officially released October 8, 2002

      Conrad Ost Seifert, for the appellant (plaintiff).

      Lisa K. Titus, with whom, on the brief, was Thomas R. Gerarde, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Erica Rivera, appeals from the judgment of the trial court rendered after it granted the motion to dismiss that was filed by the defendant, the city of Meriden. On appeal, the plaintiff claims that the court improperly granted the defendant’s motion to dismiss her case. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the plaintiff’s appeal. The plaintiff alleged that she sustained foot and ankle injuries on October 31, 1998, when she fell in a pothole at the intersection of Falcon Lane and Quarry Lane in Meriden. As a result, she gave notice to the defendant pursuant to General Statutes § 13a-149 on November 3, 1998, of her intent to bring an action. The plaintiffs attorney mailed the notice to the defendant’s city clerk. The plaintiff then filed a complaint on October 5, 2000, alleging that the defendant had been negligent relative to the alleged defect in the road.

On January 5, 2001, the defendant filed a motion to dismiss the complaint, claiming that the plaintiff had failed to comply with the notice requirements of § 13a-149 and that the court lacked jurisdiction to hear the case. In particular, the motion claimed that the plaintiff had failed to provide the required notice within the ninety day period mandated by § 13a-149. The defendant maintained that it never received the plaintiffs notice. The defendant also provided two affidavits. The first was from Robert Homiski, the defendant’s risk manager, who stated that the town clerk usually forwards to him copies of claim notices and that he never received a copy of the plaintiffs notice. The second was from Irene G. Masse, the defendant’s city clerk, who stated that to the best of her knowledge, no notice of claim was received by the city clerk, and that she had reviewed the claim book and that it did not contain any reference to the notice.

On January 17, 2001, the plaintiff filed an objection to the motion and provided an affidavit from her attorney, Elton R. Williams, who stated that he had mailed the notice to the city clerk’s office and that the mailing had not been returned. On February 1, 2001, after hearing argument, the court issued a memorandum of decision. The court concluded that “the plaintiff must show that notice was received by, and not just sent to, the [defendant] within ninety days of the alleged occurrence.” The court stated that the notice, while having been mailed, had not been received by the clerk’s office and that the plaintiff had not provided the court with evidence that the notice actually had been received. The court granted the defendant’s motion to dismiss. The plaintiff thereafter filed a motion to reargue, which the court denied. This appeal followed.

The plaintiff claims that the court improperly granted the defendant’s motion to dismiss her case. Specifically, the plaintiff asserts two arguments to support her claim. First, she argues that the defendant had the burden of proving nonreceipt of the notice and failed to meet that burden. Second, she argues that § 13a-149 should be liberally construed so as to confer jurisdiction in this case.

At the outset, we note our standard of review for the plaintiffs claim. “Our standard of review of a trial court’s findings of fact and conclusions of law in connection with a motion to dismiss is well settled. A finding of fact will not be disturbed unless it is clearly erroneous. . . . [Wjhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts .... Thus, our review of the trial court’s ultimate legal conclusion and resulting [granting] of the motion to dismiss will be de novo. ... A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.” (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 242, 789 A.2d 1142 (2002).

The plaintiff first contends that the court improperly granted the motion to dismiss because the defendant had the burden of proving nonreceipt of the notice and failed to meet that burden. We do not agree that the defendant had the burden of proving nonreceipt of the notice. Although the precise question of whether, under § 13a-149, the plaintiff bears the burden of proving actual receipt of notice or the defendant bears the burden of proving nonreceipt has not been decided previously, we conclude that the plaintiff bear s the burden of proving delivery and actual receipt of notice.

In reaching that conclusion, we begin with the well settled proposition that a plaintiff bears the burden of proving the allegations contained in the complaint. Northeast Enterprises v. Water Pollution Control Authority, 26 Conn. App. 540, 543, 601 A.2d 563 (1992). In the present case, the plaintiffs complaint alleged, in addition to other allegations that a plaintiff is required to include under § 13a-149, that “[n]otice was provided to the defendant apprising it of the nature of the plaintiffs injuries, the date and time of the accident and [the] defective road condition as alleged as well as the [intention] of the plaintiff to claim damages pursuant to Connecticut General Statutes Section 13a-149.” On the basis of that allegation in the complaint, the plaintiff was required to prove that notice was provided to the defendant because, according to Northeast Enterprises, the allegation of that fact allocated the burden of proof to the party who pleaded that fact.

Having determined that the plaintiff carries the burden of proving that notice was provided to the defendant pursuant to § 13a-149, the next step in our analysis is to determine what is required to provide such notice. We turn to the case law relevant to notice under § 13a-149. In Brennan v. Fairfield, 255 Conn. 693, 695, 768 A.2d 433 (2001), the plaintiff brought a complaint against the defendant pursuant to § 13a-149. The defendant thereafter sought to dismiss the complaint, claiming that the trial court lacked subject matter jurisdiction because the plaintiff did not provide notice within ninety days of the alleged occurrence. Id., 696. Framing the issue, our Supreme Court sought to determine “whether notice is timely when it is received by a town official on the ninety-second day, under [§ 13a-149], when the municipal office that is authorized to receive the notice is closed on the ninetieth and ninety-first days.” Id., 694-95. The Brennan court concluded that a plaintiff must be afforded a full ninety days to file notice, and that when the clerk’s office is closed on the ninetieth day, notice that is given on the first day thereafter on which the office is open complies with the statute. Id., 698.

In reaching that conclusion, the Brennan court stated that the phrase “be given to” in § 13a-149 is susceptible of different interpretations. Id., 702. The court further stated that “[w]e think, however, that the most sensible inteipretation of this phrase in the context of the statute affords a claimant ninety days to deliver notice to the town clerk’s office, which, in turn, must be open to receive the notice.” (Emphasis added.) Id., 703. In addition to that determination, the court further stated that its conclusion was consistent with Rapid Motor Lines, Inc. v. Cox, 134 Conn. 235, 56 A.2d 519 (1947), because the determination “reaffirms that the delivery of notice requires a completed act, including receipt by the delivered’ (Emphasis added.) Brennan v. Fairfield, supra, 255 Conn. 706.

In Cox, our Supreme Court sought to determine whether the sending of notice on the last day of the notice period, which notice was not received by the defendant until the following day, satisfied the notice requirement of the predecessor to General Statutes § 13a-144, the state highway defect statute. Rapid Motor Lines, Inc. v. Cox, supra, 134 Conn. 237. The court stated that “[o]ne meaning of the verb ‘give’ is ‘to make over or bestow.’ Another is ‘to deliver or transfer; to . . . hand over.’ The idea of delivery is predominant in other meanings of the word. ... It is obvious from the context of the statute that ‘give’ was not used in the former sense. To accord it the latter meaning is the reasonable and natural interpretation, in view of the purpose of the provision, which, it must be held, is to fix a definite limit upon the time within which notice shall be received by the highway commissioner. Any other construction would give rise to needless and undesirable uncertainty. Under [$ 13a-149] of the General Statutes, imposing like liability upon municipalities for defects in highways which they are bound to maintain, the clause ‘notice . . . shall ... be given’ requires a completed act within the number of days prescribed by the statute.” (Citation omitted; emphasis added.) Id., 237-38.

Altho ugh Brennan addressed a question under § 13a-149 different from the question before us, and Cox addressed a different, although similar, statute, we conclude that when those two decisions are considered together, they provide useful guidance in determining what a plaintiff must do to provide notice under § 13a-149. Cox clearly refers to the predecessor of § 13a-149 in its discussion of the predecessor of § 13a-144 and states that the giving of notice under the predecessor of § 13a-149 requires a completed act. The Brennan decision then reaffirms the Cox conclusion, but does so squarely within the context of § 13a-149. Although Brennan addressed a different issue, the court stated unequivocally that the notice pursuant to § 13a-149 requires both delivery and receipt. We are led to the conclusion, on the basis of Brennan and Cox, that providing notice under § 13a-149 requires a plaintiff both to deliver the notice and to assure that it is received by the defendant within the notice period.

We further conclude that because § 13a-149 requires a plaintiff both to deliver the notice and to assure receipt by the defendant, a plaintiff who alleges that notice was provided to a defendant pursuant to § 13a-149 bears the burden of proving that the notice was delivered and actually received. That burden must lie with the plaintiff because, under our well settled law, a plaintiff must prove the allegations contained in the complaint. Moreover, we conclude that this burden properly is assigned to the plaintiff because, as the Supreme Court alluded in Rapid Motor Lines, Inc. v. Cox, supra, 134 Conn. 239, an action pursuant to § 13a-149 is not likely to be contemplated by a municipality prior to its receipt of notice. Because the plaintiff is aware of the impending action against the municipality, which cannot fairly be assigned prior knowledge of the action, it is logical to assign to the plaintiff the burden of proving delivery and receipt.

With that conclusion in mind, we turn to the plaintiffs claim in the present case that the court improperly granted the motion to dismiss. The claim rests on the argument that the defendant had the burden of proving nonreceipt of the notice once evidence was provided that notice had been mailed. Specifically, the plaintiff argues that the court’s decision to grant the motion to dismiss was improper because the defendant failed to meet its burden of proving nonreceipt. Having determined, however, that the plaintiff bears the burden of proving delivery and receipt, we conclude that the court’s decision was not improper. Rather, the court correctly stated the law when it concluded that “the plaintiff must show that notice was received by, and not just sent to, the [defendant] within ninety days of the alleged occurrence.” We conclude, therefore, that the court’s legal determination as to the burden of proof in this case was legally and logically correct.

Moreover, we note that the court found as a matter of fact that the notice, which was mailed, was not received by the clerk’s office. The court further found that the plaintiff had not provided the court with any evidence that the notice actually had been received. Because it is evident that the plaintiff provided no evidence to meet her burden of proving actual receipt, we conclude that the court’s decision to grant the motion to dismiss was legally and logically correct and supported by the facts.

The plaintiffs second argument is that the court’s determination was improper because the notice provision of § 13a-149 should be liberally construed so as to confer jurisdiction in this case. Citing Murphy v. Ives, 151 Conn. 259, 264, 196 A.2d 596 (1963), for the proposition that towns have no sovereign immunity, the plaintiff argues that notice under § 13a-149, the municipal highway defect statute, should be more liberally construed than that of § 13a-144, the state highway defect statute, because the state is shielded by sovereign immunity while towns are not.

The plaintiff argues that § 13a-144 must be construed strictly because it confers a waiver of immunity while § 13a-149 must be construed liberally because it restricts a citizen’s right to bring an action against a municipality. On the basis of that reasoning, the plaintiff concludes that Cox should be distinguished from the present case because Cox concerns the predecessor of the state highway defect statute, § 13a-144, and not the municipal statute, § 13a-149. We are not persuaded.

At the outset, we note that “[historically, the state and its municipalities enjoyed immunity for injuries caused by defective highways under common law, due in good part to the miles of streets and highways under their control. . . . The highway defect statute is one legislative exception to such immunity . . . and statutes in derogation of sovereign immunity must be strictly construed. . . . Section 13a-149 is a very narrow exception to municipal immunity from suit, and the statutory requirements necessarily limit a plaintiffs ability to recover when he or she is injured on a public highway.” (Citations omitted; internal quotation marks omitted.) Prato v. New Haven, 246 Conn. 638, 646-47, 717 A.2d 1216 (1998). Although it may appear, at first glance, that Prato's reference to sovereign immunity in the municipal context is in conflict with the plaintiffs citation to Ives, we conclude that the plaintiff’s reliance on Ives is misplaced.

Although it is true that municipalities do not have sovereign immunity, they are not without similar protection. Specifically, our Supreme Court has “long recognized the common-law principle [of sovereign immunity] that the state cannot be sued without its consent. . . . Alternatively, [a]t common law, Connecticut municipalities enjoy governmental immunity, in certain circumstances, from liability for their tortious acts.” (Citation omitted; internal quotation marks omitted.) Heigl v. Board of Education, 218 Conn. 1, 4, 587 A.2d 423 (1991). Although the plaintiff relies on Ives to argue that towns are essentially without immunity, we conclude that Ives is useful only to illuminate the fact that some prior cases have imprecisely assigned the terms “sovereign immunity” and “governmental immunity” to state and municipal parties. See Martinez v. Dept. of Public Safety, 258 Conn. 680, 689-90 n.11, 784 A.2d 347 (2001) (noting inconsistent use of “sovereign” and “governmental” immunity and that “sovereign immunity” always has referred to sovereignty of state while “governmental immunity” has been used to refer to municipal immunity and immunity of state).

In addition, the plaintiff argues that Pratt v. Old Saybrook, 225 Conn. 177, 621 A.2d 1322 (1993), stands for the proposition that the notice provisions of § 13a-149 should be more liberally construed than that of § 13a-144. We conclude, however, that Pratt is inapplicable to the present case because the discussion of liberal construction in Pratt addresses the sufficiency of the notice for § 13a-149 in terms of the elements that must be alleged and the statute’s savings clause. Id., 180-84. Pratt does not address the delivery and receipt of notice, nor does it relate to who bears the burden of proof to establish that.

Finally, we do not find persuasive the plaintiffs attempt to distinguish the notice required under § 13a-144 from the notice required under § 13a-149 because our Supreme Court twice has declined to draw' a clear distinction between those two similar statutes when it had occasion to analyze them. In Cox, the court addressed the state highway defect statute, but relied on its previous interpretation of the municipal statute, which it stated “[imposed] like liability”; Rapid Motor Lines, Inc. v. Cox, 134 Conn. 238; to reach its conclusion. Similarly, in Brennan, the court stated that its conclusion was consistent with the decision in Cox and reaffirmed that holding in the context of § 13a-149.

In light of the reasoning employed by our Supreme Court in Brennan and Cox, we cannot adopt the plaintiffs attempt to distinguish Cox in the present case. We conclude that the court’s legal conclusion regarding the applicable law in the present case was legally and logically correct, and, as a result, its decision to grant the defendant’s motion to dismiss also was legally and logically correct.

The judgment is affirmed.

In this opinion FOTI, J., concurred.

DUPONT, J.,

dissenting. I respectfully dissent because I believe that the issue of whether the defendant received the notice mailed by the plaintiff is a disputed issue of fact that requires an evidentiary hearing. In dissenting, I do not disagree with the majority that, in accordance with the dicta in Rapid Motor Lines, Inc. v. Cox, 134 Conn. 235, 56 A.2d 519 (1947), and Brennan v. Fairfield, 255 Conn. 693, 768 A.2d 433 (2001), notice must be received by the defendant as well as mailed to the defendant by the plaintiff.

The standard of review in determining whether a complaint survives a motion to dismiss requires that we take the facts to be those alleged in the complaint, including those facts necessarily implied from the plaintiffs allegations, and construe them most favorably to the plaintiff. Pamela B. v. Ment, 244 Conn. 296, 307-308, 709 A.2d 1089 (1998); Pinchbeck v. Dept. of Public Health, 65 Conn. App. 201, 208, 782 A.2d 242, cert. denied, 258 Conn. 298, 783 A.2d 1029 (2001). If no jurisdictional flaws appear on the record, and if the defendant has not filed supporting affidavits as to relevant jurisdictional facts not appearing on the record, the plaintiff has no burden of proving the allegations of the complaint, which are taken as true. If, however, jurisdictional flaws appear on the record or axe alleged by the defendant in a supporting affidavit as to facts not apparent on the record, a motion to dismiss may be granted; Ferreira v. Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001); Bradley’s Appeal from Probate, 19 Conn. App. 456, 461-62, 563 A.2d 1358 (1989); but only if the supporting affidavit contains undisputed facts that are not challenged by the plaintiffs counteraffidavit, brief or argument as to the accuracy of the defendant’s affidavit. Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). In this case, the plaintiff challenged the defendant’s affidavits by arguing that the notice could have been internally lost at the Meriden city hall.

The key to the granting or denial of the motion, as described in the previously cited cases, is whether there still remains an issue of fact after the filing of affidavits and briefs and the arguments of both parties. There is no necessity for an evidentiary hearing if there is no disputed issue of fact. Amore v. Frankel, 228 Conn. 358, 636 A.2d 786 (1994). If there is a jurisdictional issue of fact in dispute, however, a hearing must be held to allow the presentation of evidence and the cross-examination of witnesses. Henriquez v. Allegre, 68 Conn. App. 238, 247-48, 789 A.2d 1142 (2002).

Where important decisions are factual, due process affords a party an opportunity to confront and to cross-examine witnesses. Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). “When issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” Id.

In this case, there is a question as to a jurisdictional issue of fact, namely, whether the defendant received the notice mailed by the plaintiff. In prior cases involving General Statutes § 13a-149, there was no disputed issue of fact. Those cases do not involve the actual receipt of the notice, but rather, concern the resolution of questions of law such as the sufficiency of the notice or its timeliness; see Brennan v. Fairfield, supra, 255 Conn. 697-98; Rapid Motor Lines, Inc. v. Cox, supra, 134 Conn. 236-37; or whether a defendant had an obligation of maintenance. Ferreira v. Pringle, supra, 255 Conn. 340-41; Novicki v. New Haven, 47 Conn. App. 734, 739-40, 709 A.2d 2 (1998).

Here, it is possible that cross-examination of the affi-ants of the defendant as to the defendant’s procedure for receipt of incoming mail, as to the defendant’s procedure for investigating claims of “lost letters,” and whether temporary employees were retained by the city clerk’s office during the relevant period of time might establish the fact that the defendant had received notice. In a close case, I would rather err on the side of giving a plaintiff a day in court, complete with the opportunity of live testimony and the cross-examination of witnesses. See Henriquez v. Allegre, supra, 68 Conn. App. 247. Accordingly, I would remand the matter for an evidentiary hearing.

       In her statement of issues, the plaintiff lists two issues. They are, however, two arguments that support the plaintiffs single claim that the court improperly granted the motion to dismiss.

       General Statutes § 13a-149 provides in relevant part: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. ... No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. . . .”

       Because we conclude that the plaintiff has the burden of proof, we need not address the evidence presented by the defendant or answer the question of whether the defendant met any burden.

       The dissent asserts that the court should have held an evidentiary hearing on the motion to dismiss because a disputed jurisdictional issue of fact existed after the filing of affidavits, briefs or arguments of the parties. The dissent, however, does not take issue with our conclusion that the plaintiff must establish that notice was received by the defendant. That being the case, there remained no issue of fact on the basis of the parties’ affidavits on the motion to dismiss. The plaintiff failed to assert any fact tending to prove receipt. Although we agree that the parties are entitled to an evidentiary hearing, the court did not improperly decline to hold a hearing. On the basis of the affidavits, the plaintiff failed to assert, any fact that would tend to prove receipt of the notice. Under the circumstances, the plaintiff failed to establish that a jurisdictional issue of fact existed so as to entitle her to an evidentiary hearing.

       At oral argument on the defendant’s motion to dismiss for lack of jurisdiction, the trial court asked; “Why couldn’t I, at most, schedule an evidentiary hearing, let [the plaintiff] put on whatever evidence you have of whether there was or was not notice given and then make a ruling." The court at one point asked: “What is the vehicle for determining a disputed fact in a motion to dismiss?” The defendant responded by stating that there was no disputed fact, and, subsequently, the plaintiff noted that if the court believed that there is a factual dispute, a hearing was necessary “because I have got some other evidence other than my assertion that it was mailed.” The plaintiff, however, never filed an additional affidavit or offered any other evidence. The court in its memorandum of decision, however, made no reference to the need for an evidentiary hearing, stating that the plaintiff did not provide the court “with any evidence by way of affidavit or otherwise that this notice was received by the [defendant].”


author: BISHOP, J.

text:
    MARY FITZPATRICK ET AL. v. DAVID A. SCALZI ET AL.
    (AC 21433)
    Schaller, Mihalakos and Bishop, Js.
    Argued May 1
    officially released October 8, 2002

      Roy W. Moss, for the appellants (defendants).

      Lindy R. Urso, with whom was John P. Regan, for the appellees (plaintiffs).
   Opinion

BISHOP, J.

This an appeal by the defendants, David A. Scalzi, Anthony G. Scalzi and Celeste Scalzi, from the judgment of the trial court rendered upon the acceptance of a report by an attorney trial referee (referee) recommending judgment in favor of the plaintiffs, Mary Fitzpatrick and Charles Morgan, the sublessors in this residential housing action for the return of a security deposit. We affirm the judgment of the trial court.

The referee found the following facts. The defendants owned certain real estate (premises) at 921 Stillwater Road, Stamford, and had leased the premises to Nancy Rivero and Carlos Rivero for a term to run from June 1, 1997, until May 31, 1998. By the terms of the lease, the premises could be sublet with the written approval of the defendants.

The Riveros sublet the premises to the plaintiffs for a term to run from September 15, 1997, until May 31, 1998, with the consent and active participation of the defendants. Because the defendants were unwilling to accept the plaintiffs’ credit, they retained the Riveros’ security deposit, in the sum of $3700, and the Riveros, in turn, were paid that sum by the plaintiffs to replace their deposit made to the defendants.

The plaintiffs occupied the premises for the entire term of their sublease and subsequently informed the defendants of their forwarding address and made due demand for the return of their security deposit. The defendants failed to return the deposit or to forward an itemized list of damage to the premises that was to be withheld from the deposit.

The plaintiffs thereafter filed an action claiming unlawful retention of their security deposit under General Statutes § 47a-21 (d) (2), violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and unjust enrichment. After a trial, the referee found violations of § 47a-21 (d) (2) and CUTPA, and that the defendants had been unjustly enriched. The referee determined damages to be $3700 for the failure to return the plaintiffs’ deposit, an additional $3700 because that failure was wilful and wrongful, $1411 in interest under General Statutes § 37-3a and $1321 for attorney’s fees under CUTPA for a total of $10,132. The court accepted the referee’s findings and recommendation that judgment be rendered in favor of the plaintiffs. After the court rendered judgment in favor of the plaintiffs, this appeal followed.

The defendants claim that the court improperly accepted the report of the referee because (1) the referee improperly concluded that the defendants were landlords as to the plaintiffs and that the defendants were liable to the plaintiffs under § 47a-21 (d) (2), (2) the referee improperly concluded that the defendants were liable to the plaintiffs under CUTPA, (3) the referee improperly concluded that the defendants had been unjustly enriched and (4) the amount of the damages award was improper in light of the evidence.

We first set forth the standard of review for matters involving referees. “It is axiomatic that [a] reviewing authority may not substitute its findings for those of the trier of the facts. . . . The factual findings of a [trial referee] on any issue are reversible only if they are clearly erroneous. ... [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted). Meadows v. Higgins, 249 Conn. 155, 162, 733 A.2d 172 (1999). Thus, the findings of the referee will be disturbed only if they are clearly erroneous.

I

THE DEFENDANTS’ LIABILITY UNDER § 47a-21 (d) (2)

The referee found that under § 47a-21 (d) (2), the defendants were hable to the plaintiffs for failure to return their security deposit. The relevant language of § 47a-21 (d) (2) provides: “Upon termination of a tenancy, any tenant may notify his landlord in writing of such tenant’s forwarding address. Within thirty days after termination of a tenancy, each landlord . . . shall deliver to the tenant or former tenant at such forwarding address either (A) the full amount of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of this section, or (B) the balance of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of this section after deduction for any damages suffered by such landlord by reason of such tenant’s failure to comply with such tenant’s obligations, together with a written statement itemizing the nature and amount of such damages. Any such landlord who violates any provision of this subsection shall be hable for twice the amount or value of any security deposit paid by such tenant >5

The defendants contend that they were not landlords as to the plaintiffs for the purposes of § 47a-21 (d) (2) and that the referee’s finding that they were was improper. We disagree.

The Landlord and Tenant Act, General Statutes § 47a-1 et seq., defines the term “landlord” in both § 47a-l (d) and § 47a-21 (a) (6). Section 47a-l provides in relevant part: “As used in this chapter and sections 47a-21 .. . (d) ‘Landlord’ means the owner, lessor or sub-lessor of the dwelling unit, the building of which it is a part or the premises.” (Emphasis added.) General Statutes § 47a-21 (a) (6) further defines landlord as “any landlord of residential real property, and includes (A) any receiver; (B) any person who is a successor to a landlord or to a landlord’s interest; and (C) any tenant who sublets his premises.”

The term “tenant” is defined in § 47a-l (V) as “the lessee, sublessee or person entitled under a rental agreement to occupy a dwelling unit or premises to the exclusion of others or as is otherwise defined by law.” The term is also defined in § 47a-21 (a) (12) as “a tenant, as defined in section 47a-l . . . .”

As is apparent from the pleadings and the referee’s findings, the defendants meet the definition of landlord as defined in those two statutes. They are the owners of the dwelling unit in accordance with § 47a-l (d), and, under § 47a-21 (a) (6) (B), they were also “successors to ... a landlord’s interest . . . .” The Riveros, as sublessors, were the plaintiffs’ landlords by virtue of § 47a-21 (a) (6) (C). When the plaintiffs paid a security deposit to the Riveros, however, to replace the security deposit that the Riveros had paid to the defendants, the defendants became successors to the Riveros’ interest in the plaintiffs’ security deposit. The Riveros’ interest as holders of the second security deposit was transferred to the defendants. Nancy Rivero testified that the defendants understood that the security deposit in their hands belonged to the plaintiffs. Therefore, for purposes of § 47a-21 (d) (2), the defendants are the plaintiffs’ landlords with respect to the plaintiffs’ security deposit. Further, the plaintiffs fit under the statutory definitions as tenants. They are the persons entitled under a rental agreement to occupy a dwelling unit or premises to the exclusion of others.

Section 47a-21 (d) (2) imposes liability on a landlord who does not deliver a security deposit to the former tenants. A landlord may deduct from the deposit the amount of any damage caused by the tenant in breach of his rental agreement, but must submit an itemized account of such damages to the former tenant. The referee found that the defendants, as the plaintiffs’ landlords, delivered to the plaintiffs neither their security deposit nor an itemized account of damage to the premises. That finding is not clearly erroneous, and liability under § 47a-21 (d) (2) is proper.

II

THE DEFENDANTS’ LIABILITY UNDER CUTPA

The referee also found that the defendants were hable to the plaintiffs under CUTPA for having engaged in unfair trade practices. General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” The defendants raise the following two claims concerning the court’s award under CUTPA: (1) none of the facts found by the referee supports the referee’s conclusion that they violated CUTPA; and (2) the award was not supported by the evidence because the plaintiffs were not tenants of the defendants. We disagree.

Our Supreme Court has determined that CUTPA is applicable to residential landlord-tenant transactions. See Conaway v. Prestia, 191 Conn. 484, 464 A.2d 847 (1983). General Statutes § 42-110b (d) also provides: “It is the intention of the legislature that this chapter be remedial and be so construed.” Also, our Supreme Court has held “that CUTPA is remedial in character . . . and must be liberally construed in favor of those whom the legislature intended to benefit.” (Internal quotation marks omitted). Service Road Corp. v. Quinn, 241 Conn. 630, 637, 698 A.2d 258 (1997).

The referee found that because the defendants had violated § 47a-21 (d) (2) by not delivering the plaintiffs’ security deposit to them, the defendants had committed a CUTPA violation. The legislature and courts mandate a liberal reading of CUTPA. The referee’s finding is not clearly erroneous and will not be disturbed.

Ill

THE DEFENDANTS’ LIABILITY FOR UNJUST ENRICHMENT

The referee found that the defendants’ wrongful retention of the plaintiffs’ security deposit amounted to unjust enrichment. The defendants claim that they were not unjustly enriched and that this finding was improper because there was no evidence of a $3700 payment from the plaintiffs. The referee’s findings are in opposition to the defendants’ claim.

The plaintiffs concede that they never gave the defendants $3700 as a security deposit. During negotiations for the sublease between the plaintiffs and the Riveros, the defendants became unwilling to accept the plaintiffs’ credit. Because of that, the defendants refused to return the $3700 security deposit that had been given to them by the Riveros. To remedy that situation, the plaintiffs paid that same amount to the Riveros, and Nancy Rivero testified that the defendants understood that the deposit in their hands then belonged to the plaintiffs. That was sufficient evidence for the referee to find that the $3700 deposit in the hands of the defendants properly belonged to the plaintiffs at the termination of their tenancy.

“Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered .... A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy. . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Citations omitted; internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282-83, 649 A.2d 518 (1994).

The referee found that the defendants were benefited by retaining the deposit, that it was unjust of them to fail to return the deposit to the plaintiffs and that the plaintiffs had sustained a detriment in the amount of $3700. The defendants retained money that rightfully belonged to the plaintiffs. That act was inequitable, and the defendants were unjustly enriched. The referee’s finding that the defendants were unjustly enriched therefore is not clearly erroneous.

IV

THE PLAINTIFFS’ DAMAGES

The referee found that the plaintiffs should be awarded $3700 for the failure to return of the security deposit, an additional $3700 for the wrongful detention of the deposit under § 47a-21 (d) (2), $1411 in interest under § 37-3a and $1321 in attorney’s fees under CUTPA. The defendants claim that amount is improper. We disagree.

Under § 47a-21 (d) (2), a landlord who wrongfully does not return a tenant’s security deposit is “liable for twice the amount or value of any security deposit paid by such tenant . . . .” Under that provision, “[t]he court, therefore, need only determine two factual questions to award twice the value of the security deposit under the statute: (1) Was the security deposit returned with interest, or a written notification of damages delivered, within thirty days of the tenant’s termination; and (2) if a written notification of damages was delivered, was the balance of the security deposit and a statement of damages delivered within sixty days of the termination?” Kufferman v. Fairfield University, 5 Conn. App. 118, 122, 497 A.2d 77 (1985). Because the defendants neither returned the plaintiffs’ security deposit nor provided the plaintiffs with written notification of damage to the premises, an award of twice the value of the security deposit ($7400) was proper.

The referee awarded $1411 in interest to the plaintiffs under § 37-3a. That section provides in relevant part that “interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. ...” General Statutes § 37-3a. Further, this court has reiterated our Supreme Court’s “well established propositions that § 37-3a provides for interest on money detained after it becomes due and payable, that the question under that statute is whether the money was wrongfully withheld, and that the ultimate determination is one to be made in view of the demands of justice rather than through the application of any arbitrary rule. ... It is equally well established that we will not overrule the trial court’s award of interest absent a clear abuse of discretion.” (Citations omitted; internal quotation marks omitted.) Spearhead Construction Corp. v. Bianco, 39 Conn. App. 122, 136, 665 A.2d 86, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995).

The security deposit was wrongfully detained after it became due and payable. Therefore, it was within the discretion of the referee to determine the amount of interest. We find no abuse of that discretion in the award of interest under § 37-3a.

The referee also awarded $1321 in attorney’s fees for the defendants’ violation of CUTPA. General Statutes § 42-1 lOg (d) provides in relevant part: “In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. . . .” The referee found a CUTPA violation, and we have affirmed the court’s acceptance of that finding. The standard of review for determining whether an authorized award of attorney’s fees is unreasonable pursuant to § 42-1 lOg (d) is whether the amount of the award represents an abuse of discretion by the court. Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 795, 720 A.2d 242 (1998). Under the facts of this case, we find no such abuse.

The judgment is affirmed.

In this opinion the other judges concurred.

       In support of their claim, the defendants in their brief state merely that “[t]he referee’s report is utterly devoid of any finding of any specific facts which would support a conclusion of any CUTPA violation on the part of any of the defendants.” The defendants did not provide any further analysis in support of that argument.

        “[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) Wittman v. Krafick, 67 Conn. App. 415, 416, 787 A.2d 559 (2001), cert. denied, 260 Conn. 916, 797 A.2d 516 (2002). Pursuant to Wittman, we deem the defendants’ claim abandoned and unreviewable.

       We previously concluded in part I that the defendants were landlords as to the plaintiffs for purposes of § 47a-21 (d) (2) because, pursuant to §§ 47a-l and 47a-21 (a) (6) (B), the defendants were owners of the premises and successors to the Riveros’ interest in the plaintiffs’ security deposit