author: SHEA, J.

text:
    WALTER LEWIS v. PLANNING AND ZONING COMMISSION OF THE TOWN OF CLINTON ET AL.
    (AC 16316)
    O’Connell, C. J., and Dupont and Shea, Js.

      Argued November 3, 1997
    officially released August 11, 1998

      Norman J. Voog, with whom, on the brief, was Christopher J. Molyneaux, for the appellant (plaintiff).

      Philip S. Walker, with whom were Trida A. Haught and Diane C. Bellantoni, for the appellee (defendant Chelsea G.C.A. Realty Partnership, L.P.).

      Patricia A. Horgan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Joseph Rubin, assistant attorney general, for the appellee (defendant commissioner of environmental protection).
   Opinion

SHEA, J.

This is a companion case to Lewis v. Swan, 49 Conn. App. 669, 716 A.2d 127 (1998). The complaints in both cases bear the same date, and both actions were dismissed in the same proceeding for lack of subject matter jurisdiction pursuant to motions to dismiss filed in each case. In this action, the plaintiff, Walter Lewis, seeks to invalidate the permit issued to the defendant Chelsea G.C.A. Realty Partnership, L.P. (Chelsea), by the Clinton inland wetlands and conservation commission (wetlands commission) and the approval of the site plan granted by the Clinton planning and zoning commission (zoning commission) relating to Chelsea’s construction of the shopping center in Clinton that is the subject of Lewis v. Swan, supra, 669.

The complaint alleges in the first count that both the inland wetlands permit and the site plan approval were defective because they were based on maps that did not accurately depict the boundaries of the wetlands that would be destroyed or disturbed in the construction of the shopping center, that Chelsea knew or should have known of the discrepancies between the actual wetlands as shown on the official map adopted by the wetlands commission in 1986 and the wetlands shown on the maps submitted by Chelsea in support of its applications to both town agencies, and that Chelsea, without a lawful permit as required, is now conducting regulated activities related to construction of the shopping center on land classified as wetlands by the official map of the Clinton wetlands boundaries.

The second count incoiporates the first count and adds five paragraphs stating that both the zoning commission and the wetlands commission were informed at the public hearings relating to Chelsea’s site plan and wetlands permit applications that the wetlands boundaries on the maps of Chelsea’s property were inaccurate and inconsistent with those shown on the official Clinton wetlands map adopted in 1986 pursuant to General Statutes § 22a-42a (b), that Chelsea deliberately or with gross negligence insisted that its maps showed the wetlands boundaries accurately and thus misled those town agencies into approving the applications when a substantially larger area of wetlands would be disturbed by the shopping center construction than Chelsea had indicated, and that Chelsea’s construction activities in the wetlands were contrary to law.

The third count incorporates the second count and adds two additional paragraphs alleging that both the zoning commission and the wetlands commission knew or reasonably should have known that Chelsea’s site plan was not consistent with the wetlands boundaries established in 1986 and negligently or wilfully refused to comply with the statutes of the state and also the wetlands regulations of the town for changing the established wetlands boundaries.

Chelsea filed a “motion to dismiss and/or strike” the complaint on the grounds of lack of subject matter jurisdiction and “for failing to state a claim which is legally sufficient.” The trial court granted both motions in the same order. In granting Chelsea’s motion to dismiss, the trial court took the same view of the complaint as it had in Lewis v. Swan, supra, 49 Conn. App. 669, that the plaintiff was attempting belatedly to raise issues that he should have raised at the hearings on Chelsea’s applications for approval of its site plan and for a wetlands permit or in an appeal from those determinations and, thus, had failed to exhaust available administrative remedies. The court also concluded that the plaintiff was making a collateral attack on the decisions of the two administrative agencies involved.

I

The characterization of the complaint as a collateral attack on the determinations of the zoning commission and the wetlands commission is incorrect. The complaint in this action attacks the orders approving the site plan and the wetlands permit applications directly, not collaterally. The plaintiff claims that neither of those agencies is empowered to change the wetlands boundaries established pursuant to § 22a-42a (b) without first conducting a separate proceeding under that statute for the purpose of revising the original boundaries and that the site plan approval and permit processes do not satisfy the statutory requirements for a wetlands boundary change, particularly its notice provisions. The statute provides in part that “[sjuch inland wetland and watercourse boundaries may be from time to time amended, changed or repealed, by majority vote of the inland wetlands agency, after a public hearing in relation thereto is held by the inland wetlands agency, at which parties in interest and citizens shall have an opportunity to be heard and for which notice shall be published in the manner specified in this section. . . .” The plaintiff also relies on provisions of the Clinton inland wetland regulations authorizing the commission to amend regulated area maps “only” in accordance with the procedures of § 22a-42a (b) and requiring any property owner who disputes the designation of any part of his land as a regulated area on the wetlands map to petition the commission to change the designation. The complaint may reasonably be construed as a challenge to the authority or subject matter jurisdiction of the zoning and the wetlands commissions to revise effectively the boundaries of the wetlands on Chelsea’s land without following the procedures prescribed by § 22a-42a (b) and the town wetlands regulations. The prayer for relief seeks a declaratory judgment that the site plan approval and the wetlands permit are invalid because of the failure to comply with the requirements of § 22a-42a (b) for changing a wetlands boundary and also demands an injunction. The complaint alleges intentional fraud on the part of Chelsea in obtaining the site plan approval and the wetlands permit as an additional ground for invalidating those administrative determinations.

The lack of proper notice of a hearing before a zoning board of appeals has been held to constitute a jurisdictional defect that invalidates the grant of a zoning variance, despite the failure of the plaintiff to appeal therefrom within the time limit. Smith v. F. W. Woolworth Co., 142 Conn. 88, 93-95, 111 A.2d 552 (1955). “Equity can always give relief, in an independent action, to one whose property rights are threatened under a void order of an administrative board.” Id., 93; see also Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 101, 616 A.2d 793 (1992); Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979); DiCamillo v. Clomiro, 174 Conn. 351, 353-54, 387 A.2d 560 (1978); Moscowitz v. Planning & Zoning Commission, 16 Conn. App. 303, 313, 547 A.2d 569 (1988). Fraud in the procurement of a judgment, when it can be established, is another recognized ground for overturning a judgment that would otherwise be final. Miller v. McNamara, 135 Conn. 489, 495-96, 66 A.2d 359 (1949); 2 Restatement (Second), Judgments § 70 (1) (b), comment (c), pp. 180-82 (1982).

We are not obliged to resolve the merits of the allegations of the complaint in reviewing the propriety of granting the motion to dismiss, nor can we do so on the record before us. A motion to dismiss can be granted only for lack of jurisdiction. Practice Book (1998 Rev.) § 10-30. We disagree with the trial court’s conclusion that this case should be dismissed for lack of subject matter jurisdiction because of the failure of the plaintiff to appeal from the administrative determinations that the complaint challenges as invalid. “A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it.” Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). The plaintiffs claim that the challenged administrative orders are void unquestionably falls within the jurisdiction of the superior court, which does not lack competence to decide it. Smith v. F. W. Woolworth Co., supra, 142 Conn. 93-95.

II

The complaint alleges that the plaintiff has standing to bring this action pursuant to General Statutes § 22a-16, which provides in part that “any person . . . may maintain an action in the superior court . . . for declaratory and equitable relief . . . for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . .” The defendant Chelsea challenges on appeal the sufficiency of the allegations of the complaint to confer standing on the plaintiff and claims that no facts are set forth to indicate that Chelsea’s activities are likely to result in “unreasonable pollution” of any natural resource. Although this ground was not raised in the motion to dismiss that was granted, the lack of standing to bring an action may be raised on appeal or at any point in the proceeding. Tomlinson v. Board of Education, 226 Conn. 704, 717, 629 A.2d 333 (1993).

A complaint does not sufficiently allege standing by merely reciting the provisions of § 22a-16, but must set forth facts to support an inference that unreasonable pollution, impairment or destruction of a natural resource will probably result from the challenged activities unless remedial measures are taken. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 502, 400 A.2d 726 (1978). In addition to the invocation of the statute, the plaintiff alleges that (1) in 1986, the wetlands commission established the boundaries of the wetlands area contained within the land on which Chelsea subsequently has been constructing a shopping center, (2) Chelsea’s application for a permit to conduct regulated activities on the wetlands portion of its land indicated that a significantly smaller wetlands area would be affected by the shopping center construction than appears from the official wetlands map, (3) changes in the boundaries of wetlands areas shown on that map can be made only in accordance with § 22a-42a (b), which requires a properly noticed public hearing for that purpose, and (4) Chelsea is currently conducting construction and excavation activities within the boundaries of land classified as wetlands pursuant to statute.

It can hardly be disputed that wetlands constitute a natural resource of this state and that the purpose for enacting § 22a-16 was to prevent their unreasonable “pollution, impairment or destruction.” A motion to dismiss “admits all well pleaded facts, the complaint being construed most favorably to the plaintiff.” (Internal quotation marks omitted.) Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983). We construe the complaint in this action to allege that Chelsea’s construction activities within the portion of its land designated as wetlands on the map adopted in 1986 are impairing or destroying those wetlands. Any impairment or destruction of such a natural resource would be “unreasonable” if it is occurring unlawfully, as the plaintiff claims, because of the failure to follow the procedures established by § 22a-42a (b), as well as the Clinton inland wetland regulations.

Accordingly, the plaintiff has standing to bring this action pursuant § 22a-16.

III

After granting Chelsea’s motion to dismiss the complaint, the trial court proceeded to grant its motion to strike the complaint for failure of the plaintiff to “state a claim which is legally sufficient.” That ruling is flawed for several reasons unrelated to its merits. First, the dismissal of the complaint was a final judgment that effectively terminated proceedings in the trial court. Once the case was dismissed for lack of subject matter jurisdiction, the complaint was no longer before the trial court for the purpose of considering whether it alleged a viable cause of action. Second, the rules of practice provide a plaintiff whose complaint has been stricken an opportunity to amend a pleading deficiency before a final judgment may be rendered. Practice Book (1998 Rev.) § 10-44. This plaintiff, however, was deprived of that opportunity once his complaint was dismissed for lack of jurisdiction. No amendment of the complaint was possible after it had been dismissed. Third, there is no final judgment on the motion to strike as contemplated by Practice Book (1998 Rev.) § 10-44 and, therefore, that prerequisite for appellate review has not been satisfied. Accordingly, we must await further proceedings in the trial court relating to the rendition of a final judgment on the motion to strike before we may consider the plaintiffs appeal therefrom.

The judgment is reversed and the case is remanded with direction to deny the motion to dismiss the complaint and for further proceedings with respect to the motion to strike.

In this opinion the other judges concurred.

       The complaint is dated July 12, 1996, and the shopping center opened for business in September, 1996.

       General Statutes § 22a-42a (b) provides in relevant part: “No regulations of an inland wetlands agency including boundaries of inland wetland and watercourse areas shall become effective or be established until after a public hearing in relation thereto is held by the inland wetlands agency, at which parties in interest and citizens shall have an opportunity to be heard. Notice of the time and place of such hearing shall be published in the form of a legal advertisement, appearing in a newspaper having a substantial circulation in the municipality at least twice at intervals of not less than two days, the first not more than fifteen days nor less than ten days, and the last not less than two days, before such hearing, and a copy of such proposed regulation or boundary shall be filed in the office of the town, city or borough clerk as the case may be, in such municipality, for public inspection at least ten days before such hearing, and may be published in full in such paper. A copy of the notice and the proposed regulations or amendments thereto, except determinations of boundaries, shall be provided to the commissioner at least thirty-five days before such hearing. Such regulations and inland wetland and watercourse boundaries may be from time to time amended, changed or repealed, by majority vote of the inland wetlands agency, after a public hearing in relation thereto is held by the inland wetlands agency, at which parties in interest and citizens shall have an opportunity to be heard and for which notice shall be published in the manner specified in this subsection. . . .”

       The complaint also contained a fourth count claiming that Chelsea was constructing a storm sewer drainage system that would discharge contaminated water into the Indian River, which flows into Long Island Sound, without the required discharge permit from the state department of environmental protection. The plaintiff has not briefed this claim and must be deemed to have abandoned it for the purpose of this appeal. Mather v. Griffin Hospital, 207 Conn. 125, 129 n.2, 540 A.2d 666 (1988); Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149, 448 A.2d 829 (1982).

       The motion to strike does not comply with Practice Book (1998 Rev.) § 10-41, which requires that such a motion “shall distinctly specify the reason or reasons for each such claimed deficiency.” Chelsea filed a memorandum in support of the motion, raising its claim that the complaint did not adequately allege standing in accordance with General Statutes § 22a-216. Despite these procedural deficiencies, we consider the issue of standing in part II of this opinion.

       A “collateral attack” on a judgment is “an attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it.” Black’s Law Dictionary (6th Ed. 1990). On the other hand, “[a] direct attack on a judgment or decree is an attempt, for sufficient cause, to have it annulled, reversed, vacated, corrected, declared void, or enjoined, in a proceeding instituted for that specific purpose, such as an appeal, writ of error, bill of review, or injunction to restrain its execution; distinguished from a collateral attack, which is an attempt to impeach the validity or binding force of the judgment or decree as a side issue or in a proceeding instituted for some other purpose.” Id.; see Smith v. F. W. Woolworth Co., 142 Conn. 88, 93, 111 A.2d 552 (1955); Miller v. McNamara, 135 Conn. 489, 496, 66 A.2d 359 (1949).

       See footnote 1.

       Section 3 of the Clinton inland wetlands regulations provides in relevant part: “3.2 The Commission shall establish or amend regulated area maps only in accordance with the procedures of Section 22a-42a of the General Statues, as amended.

        “3.3 Any property owner who disputes the designation of any part of his or her land as a regulated area on the Inland Wetlands and Watercourses Map, may petition the agency to change the designation. All petitions for a map change shall be submitted in writing and shall include all relevant facts and circumstances which support the change. The petitioner shall provide proof that the designation is inapplicable. Documentation in accordance with Section 14 of these regulations may be required of the property owner when the agency requires an accurate delineation of regulated areas.”

       See footnote 4.

       In part II of this opinion, we addressed this claim so far as it relates to subject matter jurisdiction and concluded that it was without merit.


source: Caselaw Access Project

author: KULAWIZ, J.

license: Public Domain

text:
    INWOOD CONDOMINIUM ASSOCIATION v. HAROLD WINER ET AL.
    (AC 16488)
    Spear, Sullivan and Kulawiz, Js.
    Argued May 27
    officially released August 11, 1998

      H. Jeffrey Beck, for the appellant (named defendant).

      Lee Samowitz, for the appellee (plaintiff).
   Opinion

KULAWIZ, J.

The named defendant, Harold Winer (defendant), appeals from the judgment rendered in favor of the plaintiff, Inwood Condominium Association, in this action to foreclosure a statutory lien. The defendant claims that the trial court improperly found that no genuine issues of material fact existed. We affirm the judgment of the trial court.

The plaintiff instituted the underlying action to foreclose a lien, pursuant to General Statutes § 47-258, for common charges and assessments levied against the defendant. The defendant filed an answer, alleging a special defense of payment.

Thereafter, the plaintiff filed a motion for summary judgment alleging that there were no genuine issues of material fact, and supplying the court with a supporting affidavit and memorandum of law. The defendant filed an objection, without supporting affidavits, claiming that the amount due was in dispute. He claimed that the amount due to the plaintiff for assessments and common charges had been tendered to it but not accepted and that, therefore, the only remaining sums allegedly due were for attorney’s fees. The defendant claimed that such fees are not recoverable until a judgment has entered.

The trial court granted the motion for summary judgment as to liability on both substantive and procedural grounds. Subsequent to its granting of the motion for summary judgment as to liability, the court granted the plaintiffs motion for judgment of foreclosure by sale finding a debt of $3980.28, “which sum includes an attorney’s fee of $3300.”

Practice Book (1998 Rev.) § 17-49, formerly § 384, provides that “[t]he judgment sought 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.” Further, Practice Book (1998 Rev.) § 17-45, formerly § 380, provides in relevant part that the party in opposition to the motion for summary judgment “prior to the day the case is set down for short calendar shall file opposing affidavits and other . . . documentary evidence. ...”

Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. Scinto v. Stamm, 224 Conn. 524, 533, 620 A.2d 99, cert. denied, 510 U.S. 861, 114 S. Ct. 176, 126 L. Ed. 2d 136 (1993); State v. Goggin, 208 Conn. 606, 616, 546 A.2d 250 (1988); Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11-12, 459 A.2d 115 (1983). “It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].” (Internal quotation marks omitted.) Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts in accordance with Practice Book (1998 Rev.) §§ 17-45 and 17-46, formerly §§ 380 and 381, which contradict those stated in the movant’s affidavits and documents and show that there is a genuine issue for trial. If he does not so respond, summary judgment shall be entered against him. Farrell v. Farrell, 182 Conn. 34, 38, 438 A.2d 415 (1980); Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5, 357 A.2d 484 (1975).

Here, the defendant filed no affidavits but relied on assertions of fact in his brief in opposition to the plaintiffs motion. A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book (1998 Rev.) § 17-49; Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979). Because the defendant failed to file opposing affidavits, the trial court’s decision could be affirmed.

In a memorandum of decision, however, the court addressed the substantive issue raised by the defendant. The defendant claimed that attorney’s fees and costs of litigation are not recoverable as a priority debt. The plaintiff claims that § 47-258 authorizes as part of its condominium priority lien, the litigation expenses, including attorney’s fees, incident to its foreclosure.

Section 47-258 (g) provides: “A judgment or decree in any action brought under this section shall include costs and reasonable attorney’s fees for the prevailing party.” The defendant does not dispute that this section authorizes the inclusion of these costs and fees as part of plaintiffs judgment but maintains that because § 47-258 (b) does not specifically include the words “costs and attorney’s fees” as part of the priority lien, those fees and costs could not be imposed until a judgment was rendered.

This issue was reached and decided in Hudson House Condominium Assn., Inc. v. Brooks, 223 Conn. 610, 616-17, 611 A.2d 862 (1992), in which our Supreme Court held that § 47-258 (g) authorizes the inclusion of costs of collection as part of the lien, and that § 47-258 authorizes the inclusion of attorney’s fees and costs in the sums entitled to priority. A 1991 legislative enactment, Public Acts 1991, No. 91-359, amended § 47-258 (b) specifically to include the costs of collection and attorney’s fees within the priority. See General Statutes § 47-258 (b) (B).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47-258 provides in relevant part: “(a) The association has a statutory lien on a unit for any assessment levied against that unit or fines imposed against its unit owner. Unless the declaration otherwise provides, fees, charges, late charges, fines and interest charged pursuant to subdivisions (10), (11) and (12) of subsection (a) of section 47-244 are enforceable as assessments under this section. If an assessment is payable in instalments, the full amount of the assessment is a lien from the time the first instalment thereof becomes due.
      “(b) A lien under this section is prior to all other liens and encumbrances on a unit except (1) liens and encumbrances recorded before the recordation of the declaration and, in a cooperative, liens and encumbrances which the association creates, assumes or takes subject to, (2) a first or second security interest on the unit recorded before the date on which the assessment sought to be enforced became delinquent, or, in a cooperative, a first or second security interest encumbering only the unit owner’s interest and perfected before the date on which the assessment sought to be enforced became delinquent, and (3) liens for real property taxes and other governmental assessments or charges against the unit or cooperative. The lien is also prior to all security interests described in subdivision (2) of this subsection to the extent of (A) an amount equal to the common expense assessments based on the periodic budget adopted by the association pursuant to subsection (a) of section 47-257 which would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce either the association’s lien or a security interest described in subdivision (2) of this subsection and (B) the association’s costs and attorney’s fees in enforcing its lien. A lien for any assessment or fine specified in subsection (a) of this section shall have the priority provided for in this subsection in an amount not to exceed the amount specified in subparagraph (A) of this subsection. This subsection does not affect the priority of mechanics’ or materialmen’s liens or the priority of liens for other assessments made by the association.”


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. JOSE RODRIGUEZ
    (AC 17234)
    Laveiy, Sullivan and Spallone, Js.
    Argued May 29
    officially released August 11, 1998

      M. Donald Cardwell, for the appellant (defendant).

      Rila M. Shair, assistant state’s attorney, with whom were John A. Connelly, former state’s attorney, and, on the brief, John J. Davenport, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant appeals from his conviction, following a plea bargain, of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). The defendant was arrested following the receipt of information provided by several informants and a surveillance of certain premises within which certain alleged criminal acts occurred.

The defendant was successful in suppressing evidence that was obtained from his person and his automobile. The defendant did not prevail on his motion to exclude evidence that was seized from his apartment, which evidence the court ruled was admissible because Juana Lara, the woman who rented the apartment and with whom the defendant lived, voluntarily consented to the search.

It is axiomatic that “ ‘searches and seizures inside a home without a warrant are presumptively unreasonable.’ Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Guertin, 190 Conn. 440, 446, 461 A.2d 963 (1983). A warrantless search or entry into a house is not unreasonable, however, under the fourth amendment to the United States constitution or article first, § 7, of the Connecticut constitution when a person with authority to do so has freely consented. State v. Reagan, 209 Conn. 1, 7, 546 A.2d 839 (1988).” State v. MacNeil, 28 Conn. App. 508, 513, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). “The question of whether a defendant has given voluntary consent to enter or search his or her premises is a question of fact to be determined by the trial court by considering the totality of the circumstances surrounding the entry or search. State v. Ortiz, 17 Conn. App. 102, 103, 550 A.2d 22, cert. denied, 209 Conn. 828, 552 A.2d 1216 (1988).” State v. Vargas, 34 Conn. App. 492, 496, 642 A.2d 47, cert. denied, 230 Conn. 907, 644 A.2d 921 (1994). “Whether there was valid consent to search is a factual question that will not be lightly overturned on appeal. United States v. Sanchez-Jaramillo, 637 F.2d 1094, 1098 (7th Cir.), cert. denied, 449 U.S. 862, 101 S. Ct. 166, 66 L. Ed. 2d 79 (1980).” State v. Zarick, 227 Conn. 207, 226, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993).

In this case, the trial court made specific findings regarding Lara’s consent to search. In its memorandum of decision on the defendant’s motion to suppress, the trial court found that the defendant lived with Lara in an apartment that Lara rented and acknowledged to be hers. Lara also told the police that she knew this was going to happen someday and expressed a willingness to cooperate with the police. Lara also signed the consent form after one of the police officers translated it into Spanish and she indicated that she understood the completed consent form. After Lara executed the consent form, she directed the police to her bedroom closet where she pointed out a cardboard box that contained, inter alia, illegal drugs.

On the basis of these facts, the trial court’s finding that under the totality of the circumstances, Lara voluntarily consented to a search of her apartment was not clearly erroneous. Therefore, it properly denied the defendant’s motion to suppress the evidence found in the apartment.

Essentially, the defendant’s claim is that the trial court failed to consider that the consent to search that was given to the police was tainted by the defendant’s illegal arrest and that the evidence found in the apartment was derivative of police misconduct. The issue of whether the determination of the police to search the apartment was either based on information that was obtained from the unlawful search of the defendant’s person and automobile, or resulted from information that was obtained from informants and surveillances, independent of the illegal search, was not raised by the defendant in the trial court, nor was it the subject of a request for an articulation from the trial court.

The defendant’s failure to file a motion for an articulation to obtain an elucidation of the trial court’s decision results in a record that is inadequate for our review. See Practice Book (1998 Rev.) § 66-5, formerly § 4051. We will not review that claim.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. KIRK A. BOULIER
    (AC 16910)
    Lavery, Sullivan and Kulawiz, Js.
    Argued June 1
    officially released August 11, 1998

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

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Reidy, assistant state’s attorney, for the appellee (state).
   Opinion

KULAWIZ, J.

The defendant, Kirk A. Boulier, appeals from the trial court’s denial of his motion to correct his presentence investigation report (report). He claims that the trial court improperly denied the motion for lack of jurisdiction because judgment had entered. We affirm the denial of the defendant’s motion, although the preferred procedure would be to dismiss the defendant’s motion.

The defendant was charged by long form information with one count of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59, one count of kidnapping in the first degree in violation of General Statutes § 53a-92, one count of sexual assault in the first degree in violation of General Statutes § 53a-70 and three counts of risk of injury to a child in violation of General Statutes §53-21. He pleaded nolo contendere to one count of kidnapping in the second degree in violation of General Statutes § 53a-94 and one count of risk of injury to a child in violation of § 53-21.

Prior to sentencing, the court ordered the preparation of the report prepared by the office of adult probation, as required by General Statutes § 54-9la. After the report was filed and considered, on March 3, 1995, the trial court sentenced the defendant to a total effective sentence of twelve years, execution suspended after five years. On September 20, 1996, eighteen months after the imposition of sentence, the defendant filed a pro se motion to correct the report. The motion was denied by the trial court and this appeal followed.

The defendant claims that the trial court improperly denied his motion to correct the report for lack of jurisdiction. He claims that because the court has ongoing jurisdiction to correct illegal sentences, the trial court should be deemed to have jurisdiction to review the defendant’s untimely motion to correct information contained in the report, which adversely affects his penal classification. This claim is without merit.

It is important to note that the defendant does not claim that the report contained inaccurate information, that the trial court improperly relied on information contained therein or that the sentence imposed was excessive or illegal. Instead, the defendant seeks to delete references to sexual conduct relating to the charge of sexual assault in the first degree. The defendant concedes, however, that the references to sexual conduct would not be improper even if he was acquitted of the charge of sexual assault.

Even where a defendant claims that the information in a presentence report is inaccurate, the trial court does not have jurisdiction to consider a motion to correct the report after sentencing. Defense counsel is required to become familiar with the contents of the report and to bring to the attention of the judicial authority any inaccuracies. Practice Book §§ 924 and 925, now Practice Book (1998 Rev.) §§ 43-13 and 43-14. Any objection to the report must be made prior to sentencing because the trial court is required to consider the information contained in the report prior to sentencing. General Statutes § 54-9 la.

“The Superior Court is a constitutional court of general jurisdiction. State v. Carey, 222 Conn. 299, 305-306, 610 A.2d 1147 (1992). In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law. Cichy v. Kostyk, 143 Conn. 688, 690, 125 A.2d 483 (1956). It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed. State v. Walzer, 208 Conn. 420, 426-28, 545 A.2d 559 (1988); State v. Nardini, 187 Conn. 109, 123, 445 A.2d 304 (1982); State v. Pallotti, 119 Conn. 70, 74, 174 A. 74 (1934); State v. Vaughan, 71 Conn. 457, 460-61, 42 A. 640 (1899).” State v. Luzietti, 230 Conn. 427, 431-32, 646 A.2d 85 (1994).

“The jurisdiction of the sentencing court terminates when the sentence is put into effect, and that court may no longer take any action affecting the sentence unless it has been expressly authorized to act. State v. Walzer, [supra, 208 Conn. 424-25].”State v. Tuszynski, 23 Conn. App. 201, 206, 579 A.2d 1100 (1990). “The legislature has conferred on trial courts continuing jurisdiction to act on their judgments after the commencement of sentence under a limited number of circumstances. See, e.g., General Statutes §§ 53a-29 through 53a-34 (permitting the trial court to modify terms of probation after sentence is imposed); General Statutes § 52-270 (granting jurisdiction to trial court to hear a petition for a new trial after execution of original sentence has commenced); General Statutes § 53a-39 (allowing the trial court to modify sentences of less than three years provided a healing is held and good cause shown).” State v. Luzietti, 32 Conn. App. 1, 4, 628 A.2d 8 (1993), aff'd, 230 Conn. 427, 646 A.2d 85 (1994).

The defendant cites no legislative or common-law authority that expressly authorizes the trial court to correct a presentence report after the sentence is imposed. It is important to emphasize that the defendant is not challenging the legality of the sentence imposed because of an error in the report.

Because the trial court correctly determined that it was without jurisdiction to consider the defendant’s motion, the trial court should not have denied the motion, but rather dismissed it. In the circumstances of this case, as in State v. Brown, 40 Conn. App. 483, 487-88, 671 A.2d 1316 (1996), aff'd, 242 Conn. 389, 699 A.2d 943 (1997), we discern no practical difference between a denial and a dismissal.

The denial of the defendant’s motion to correct his presentence investigation report is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-91a (a) provides in relevant part: “No defendant convicted of a crime, other than a capital felony, the punishment for which may include imprisonment for more than one year, may be sentenced, or his case otherwise disposed of, until a written report of investigation by a probation officer has been presented to and considered by the court. . .

       The trial court sentenced the defendant to a term of twelve years, suspended after five years, on the kidnapping charge and five years, to be served concurrently, on the risk of injury charge.

       The only language contained in the report that relates to sexual conduct is as follows. “[I]n full view of the three minor children, the defendant dropped his pants, told the victim that before she died she was going to choke on his penis and then forced his penis into her mouth.”


author: SPALLONE, J.

text:
    KEVIN S. v. DEPARTMENT OF CHILDREN AND FAMILIES
    (AC 17861)
    Lavery, Sullivan and Spallone, Js.

      Argued May 29
    officially released August 11, 1998

      Raymond J. Rigat, for the appellant (plaintiff).

      Eliot D. Prescott, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Carolyn Querijero, assistant attorney general, for the appellee (defendant).

      Russell L. Case, for the minor children.

      Kathleen Harkins, guardian ad litem for the minor children.
   Opinion

SPALLONE, J.

The plaintiff appeals from the trial court’s dismissal of his administrative appeal, through which he sought review of a plan of the department of children and families (department) to file termination petitions with respect to his children.

The plaintiff claims that the trial court improperly (1) dismissed his administrative appeal and (2) violated his due process rights by denying his request for a hearing on his challenge to the treatment plan.

The following facts are relevant to this appeal. On June 3,1997, the plaintiff formally requested a treatment plan hearing with the department pursuant to General Statutes § 17a-15 (c) to review the portion of the plan that stated that the department intended to seek termination of the plaintiffs parental rights in his children. A hearing date was set for July 9, 1997.

On July 1, 1997, with full knowledge of the plaintiffs request for a hearing, and that a hearing date had been set, the department filed termination petitions with the trial court. On July 5,1997, the plaintiff received notice that because the department had filed termination petitions, his request for a treatment plan hearing was dismissed.

On July 12, 1997, the plaintiff filed an administrative appeal pursuant to General Statutes §§ 4-183 and 17a-15, alleging that the department’s decision to dismiss his request for a treatment plan hearing was wrong and unlawful. The plaintiff also filed a motion to dismiss the department’s petitions for termination.

On October 16,1997, the trial court, following a hearing, denied the plaintiffs motion to dismiss the termination petitions and dismissed his administrative appeal as moot. This appeal followed.

Initially, we note that the jurisdiction for terminating parental rights lies either in the Probate Court or in the Superior Court pursuant to General Statutes §§ 17a-112, 45a-715 (a) and (g). Section 17a-112 authorizes termination petitions to be filed directly in the Superior Court. Section 45a-715 (a) authorizes the filing of same in the Probate Court. Section 45a-715 (g) authorizes the transfer of termination petitions from the Probate Court to the Superior Court. There is no statutory requirement that the department file a treatment plan as a condition precedent to the filing of a termination petition. An administrative hearing officer in the department has no authority to hear or determine a petition for termination of parental rights.

Pursuant to § 17a-15 (a), a treatment plan is limited to the preparation of “a written plan for care and treatment of every child and youth under [the commissioner’s] supervision . . . .” (Emphasis added.) A hearing under § 17a-15 (c) must necessarily be limited to the plan required by subsection (a) for the care and treatment of children and youth under the supervision of the department, and is heard by an administrative hearing officer in the department.

The only issue raised in the plaintiffs June 3, 1997 request for a treatment plan hearing concerned the department’s plan to file petitions to terminate the plaintiffs parental rights in his children. The resolution of whether termination petitions are appropriate requires a trial court to determine, inter alia, if terminations of parental rights would serve the best interests of the children. See General Statutes § 17a-112 (c). The department has the burden of proving by clear and convincing evidence that terminations would serve the best interests of the children. See In re Bruce R., 234 Conn. 194, 204, 662 A.2d 107 (1995).

We agree with the trial court’s dismissal of the plaintiffs administrative appeal as moot because there was no practical relief that could have been granted in the administrative proceeding. The plaintiff conceded and the trial court found that even if the plaintiff had prevailed in the administrative hearing and the hearing officer determined that termination of parental rights was not an appropriate part of the treatment plan for the children, the hearing officer could not have forced the department to withdraw the termination petitions. Again, only the Superior Court or the Probate Court can make the decision to dismiss a termination petition. Additionally, at the point that the department filed for termination, the question of whether the department should seek termination became moot. “An issue is moot when the court can no longer grant any relief.” Ivimey v. Watertown, 30 Conn. App. 742, 754, 622 A.2d 603, cert. denied, 226 Conn. 902, 625 A.2d 1375 (1993). A case must be dismissed when intervening circumstances eliminate the possibility that any practical relief can be given to the party seeking relief. See Ayala v. Smith, 236 Conn. 89, 93, 671 A.2d 345 (1996). In this case, the filing of termination petitions by the department eliminated the possibility that the plaintiff could obtain the relief he sought in the administrative hearing requested under § 17a-15.

The plaintiffs second claim is that by dismissing his administrative appeal, the court deprived him of due process by denying his request for a hearing on his challenge to the treatment plan. There is no merit to this claim. The plaintiffs interests in due process are fully protected because the issue that he raised for consideration in the administrative proceeding will be addressed in termination proceedings. Moreover, the plaintiff will benefit from a higher degree of due process in a termination proceeding than he would in a treatment plan hearing because in a termination proceeding, the burden is on the department to prove by clear and convincing evidence that sufficient grounds exist for termination. See generally Scinto v. Stamm, 224 Conn. 524, 536, 620 A.2d 99, cert. denied, 510 U.S. 861, 114 S. Ct. 176, 126 L. Ed. 2d 136 (1993) (hearing required only where hearing demonstrably more efficacious means of safeguarding interests of plaintiff than other procedural protections provided by defendant).

In sum, the trial court, in dismissing the plaintiffs administrative appeal and in denying the plaintiffs request for a hearing on his challenge to the treatment plan, acted reasonably and in accordance with applicable law.

The judgment is affirmed.

In this opinion the other judges concurred.


author: DALY, J.

text:
    GOLDEN HILL PAUGUSSETT TRIBE OF INDIANS v. TOWN OF TRUMBULL GOLDEN HILL PAUGUSSETT TRIBE OF INDIANS v. PEOPLE’S BANK GOLDEN HILL PAUGUSSETT TRIBE OF INDIANS v. TOWN OF SHELTON ET AL. GOLDEN HILL PAUGUSSETT TRIBE OF INDIANS v. TOWN OF SEYMOUR
    (AC 17243)
    (AC 17244)
    (AC 17245)
    (AC 17246)
    O’Connell, C. J., and Hennessy and Daly, Js.
    Argued May 4
    officially released August 11, 1998

      Michael D. O’Connell, with whom were Matthew W. Den Ouden and, on the brief, Julia B. Morris, for the appellant (plaintiff).

      Richard Blumenthal, attorney general, with whom were Susan Quinn Cobb, assistant attorney general, and, on the brief, Carolyn K. Querijero, assistant attorney general, for the appellee (intervening defendant state of Connecticut).
   Opinion

DALY, J.

The plaintiff appeals from the granting of motions to dismiss and for summary judgment in favor of the defendants filed by the intervening defendant state of Connecticut in the consolidated actions to quiet title to property in the towns of Trumbull, Shelton and Seymour, and to property held by People’s Bank in Bridgeport. We affirm the judgments of the trial court.

Five actions were filed between August and September, 1993, by the Golden Hill Paugussett Tribe of Indians against (1) the town of Southbury in August, 1993, (2) the town of Trumbull on August 6, 1993, (3) the town of Shelton on August 18, 1993, (4) People’s Bank on August 31,1993 and (5) the town of Seymour on September 14, 1993.

These actions arise out of events that are alleged to have occurred more than 300 years ago. In its complaints, the plaintiff claims that its tribe, from time immemorial until the arrival of English colonists, had possessed, occupied and controlled much of what is now southwestern Connecticut. The plaintiff further claims that in a deed of 1706, the tribe had transferred to a group of colonists the tribe’s Indian title to certain lands, but had “reserved” to the tribe the land now in dispute. The plaintiff admits that in the years 1733 to 1759, a series of additional deeds had purported to transfer to the colonists the reserved land as well. The plaintiff contends, however, that those later deeds had been void ab initio because the transfers had occurred without the Colonial General Court’s express consent in violation of General Court enactments of 1663, 1680 and 1717. In light of the alleged invalidity of the later deeds, the plaintiff contends that its “Indian title” in the reserved land never had been properly extinguished and, therefore, that it has a present right to occupy the land.

The action in Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 651 A.2d 1246 (1995), was initiated as a purported class action by Quiet Hawk in the name of the tribe. It proceeded to trial, and the trial court held an evidentiary hearing on the defendants’ motions to dismiss based on Quiet Hawk’s lack of standing or authority to institute the action. The plaintiff refused, on the ground of tribal sovereignty, to offer any evidence of authority to sue on behalf of the tribe other than copies of documents filed with the governor pursuant to General Statutes § 47-66i.

The only evidence submitted in the trial court indicated that only the tribal council and not Quiet Hawk had authority to initiate legal actions. In Golden Hill Paugussett Tribe of Indians v. Southbury, supra, 231 Conn. 563, our Supreme Court, in upholding the trial court, stated: “Like the trial court, we offer no opinion as to who did have authority to sue on the tribe’s behalf, and affirm only the finding that Quiet Hawk did not have such authority.” Id., 568-69 n.4. We are persuaded that the trial court’s actions were consistent with tribal sovereignty.

The trial court granted the defendants’ motions to dismiss and for summary judgment on the basis of the lack of evidence that the tribal council condoned Quiet Hawk’s authority and relied on the doctrine of collateral estoppel. The plaintiff claims that the trial court should have conducted an evidentiary hearing during which the plaintiff could have presented evidence concerning the ratification by tribe members of Quiet Hawk’s authority to have brought these claims, which were filed at approximately the same time as the South-bury action.

“Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . The doctrine of collateral estoppel is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.” (Citations omitted; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991); State v. Ellis, 197 Conn. 436, 466, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A. 2d 1221 (1990).

The plaintiff was given the opportunity to present evidence regarding Quiet Hawk’s authority in the South-bury action, but decided not to do so. The plaintiff is now precluded from relitigating the issue.

The judgments are affirmed.

In this opinion the other judges concurred.

       “[Although fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation [Great Britain] and later the original States and the United States— a right of occupancy in the Indian tribes was nevertheless recognized. That right, sometimes called Indian title and good against all but the sovereign, could be terminated only by sovereign act.” Oneida Indian Nation of New York v. Oneida, 414 U.S. 661, 667, 94 S. Ct. 772, 39 L. Ed. 2d 73 (1974).

       As reflected in both the trial court and Supreme Court decisions in Golden Hill Paugussett Tribe of Indians v. Southbury, supra, 231 Conn. 567-68, Quiet Hawk and Big Eagle are the tribal leaders in the compulsory statutory filings under General Statutes § 47-66i.

       General Statutes § 47-66Í provides: “Method of selecting tribal leaders. Disputes, (a) Each tribal leader shall file with the Governor his name and a written description of the method of selecting tribal leaders and the process by which tribal leaders exercise their authority. The Governor shall file such description with the Secretary of the State and the Indian Affairs Council established under section 47-59b.
      “(b) A leadership dispute shall be resolved in accordance with tribal usage and practice. Upon request of a parly to a dispute, the dispute may be settled by a council. Each party to the dispute shall appoint a member to the council and the parties shall jointly appoint one or two additional members provided the number of members of the council shall be an odd number. If the parties cannot agree on any joint appointment, the Governor shall appoint any such member who shall be aperson knowledgeable in Indian affairs. The decision of the council shall be final on substantive issues. An appeal may be taken to the Superior Court to determine if provisions of the written description filed with the Secretary of the State pursuant to this section have been followed. If the court finds that the dispute was not resolved in accordance with the provisions of the written description, it shall remand the matter with instructions to reinstitute proceedings, in accordance with such provisions.”


author: SCHALLER, J.

text:
    WILLIAM J. DAOUST, JR. v. CHRISTOPHER MCWILLIAMS ET AL.
    (AC 17265)
    O’Connell, C. X, and Schaller and Hennessy, Js.

      Argued March 3
    officially released August 11, 1998

      Zbigniew S. Rozbicki, for the appellant (plaintiff).

      William C. Berry, for the appellees (defendants).
   Opinion

SCHALLER, J.

The plaintiff, William J. Daoust, Jr., appeals from the decision of the trial court rendering summary judgment as to all claims raised in his complaint. On appeal, the plaintiff claims that the trial court improperly (1) determined that his tort claims of assault and battery, abuse of process, intentional spoliation of evidence, and invasion of privacy were barred by the statute of limitations and (2) applied the doctrines of res judicata and collateral estoppel to the plaintiffs claims of deprivation of his constitutional rights, intentional infliction of emotional distress, wanton injury to his dog, malicious prosecution and indemnification. We conclude that the plaintiffs tort claims are not barred by the statute of limitations, and that only those claims as to which there is an identity of issues with the claims raised in a federal court action on which summary judgment was rendered are barred by the doctrines of res judicata and collateral estoppel. Consequently, we affirm the decision of the trial court in part, reverse it in part, and remand the case for a trial on the remaining issues.

The following facts and procedural history are relevant to this appeal. The plaintiff commenced an action in the United States District Court for the District of Connecticut on July 9, 1993, against the defendants, Officers Christopher McWilliams, Christopher Carlone and Paul Mangini of the Middletown police department and the town of Middletown. This lawsuit arose from an incident that occurred on July 7, 1992, involving the shooting of the plaintiffs dog by the defendant McWilliams in his capacity as a Middletown police officer. In the federal court action, the plaintiff alleged that the defendants had violated rights secured to him under the first, fourth, fifth and fourteenth amendments to the United States constitution, 42 U.S.C. §§ 1983 and 1988, and the laws of the state of Connecticut.

The federal court, Covello, J., disposed of the action in two stages. On December 6, 1993, the court granted the defendants’ motion to dismiss (1) the plaintiffs claim against the defendant police officers in their official capacity under 42 U.S.C. § 1983, (2) the plaintiffs claim that he was deprived of the equal protection of the law and (3) the plaintiffs claim against the town for punitive damages under 42 U.S.C. § 1983. On August 5, 1995, the court granted the defendants’ motion for summary judgment as to all of the plaintiffs remaining federal law claims and declined to exercise supplemental jurisdiction over the remaining state law claims.

On February 29, 1996, the plaintiff filed, in the Superior Court, the complaint that forms the basis for the present action. The complaint consisted of eight counts alleging (1) deprivation by the individual defendants of the plaintiffs rights guaranteed to him by the laws and constitution of the state of Connecticut, (2) assault and battery against McWilliams, (3) intentional infliction of emotional harm against the individual defendants, (4) wanton injury to the plaintiffs dog against McWilliams and Carlone, (5) malicious prosecution, vexatious suit, abuse of process and conspiracy against the individual defendants, (6) intentional spoliation of evidence against the individual defendants, (7) invasion of privacy against McWilliams and Carlone, and (8) negligence against the town of Middletown. On April 24, 1996, the defendants filed a motion for summary judgment as to all counts on the grounds that the action was barred by res judicata and the statute of limitations.

On March 7, 1997, the trial court granted the defendants’ motion for summary judgment, concluding that the counts alleging assault and battery, abuse of process, intentional spoliation of evidence and invasion of privacy were barred by the statute of limitations, General Statutes § 52-577. The court further concluded that the doctrine of collateral estoppel precluded the plaintiff from relitigating his claims of deprivation of rights guaranteed by the laws and constitution of the state of Connecticut, intentional infliction of emotional distress, wanton injury to his dog, malicious prosecution, vexatious suit, conspiracy and negligence.

Before turning to the merits of the plaintiffs appeal, we note the standard that governs our review of a trial court’s granting of summary judgment. The standard of review of a trial court’s decision to grant a motion for summary judgment is well established and is set forth in Practice Book § 384, now Practice Book (1998 Rev.) § 17-49. “ ‘In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.’ ” Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 5, 698 A.2d 795 (1997); Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). “ ‘The test is whether a party would be entitled to a directed verdict on the same facts. Connell v. Colwell, 214 Conn. 242, [247], 571 A.2d 116 (1990).’ ” Beebe v. East Haddam, 48 Conn. App. 60, 64, 708 A.2d 231 (1998).

“A motion for summary judgment ‘is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.’ Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985).” Beebe v. East Haddam, supra, 48 Conn. App. 64. As this appeal involves questions of the application of the statute of limitations, res judicata and collateral estoppel, it presents questions of law, which this court reviews de novo. Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 58, 588 A.2d 138 (1991); Schratwieser v. Hartford Casualty Ins. Co., 44 Conn. App. 754, 757, 692 A.2d 1283, cert. denied, 241 Conn. 915, 696 A.2d 340 (1997).

I

The plaintiff first contends that the trial court improperly determined that his claims of assault and battery, spoliation of evidence, invasion of privacy and abuse of process were barred by the applicable statute of limitations. We agree.

It is undisputed that the incident giving rise to the action took place on July 7, 1992. Consequently, the plaintiff was required to commence his suit on or before July 7, 1995, as set forth in General Statutes § 52-577, unless another provision of the statute allowed him to do otherwise. The trial court concluded that the plaintiffs claims of assault and battery, spoliation of evidence, invasion of privacy and abuse of process were barred by the statute because the complaint was filed after July 7, 1995.

On appeal, the plaintiff argues that these claims are allowed by General Statutes § 52-592 (a) and (d), notwithstanding that the complaint in this action was filed more than four years after the incident that gave rise to the action took place in violation of § 52-577.

In its memorandum of decision, the trial court concluded that “General Statutes § 52-592 (d) allows the plaintiff to pursue the state law claims that were dismissed without prejudice in federal court.” The court concluded, however, that the “new tort claims of assault and battery, abuse of process, intentional spoliation of evidence and invasion of privacy . . . are barred by the statute of limitations.” The trial court’s decision thus indicates that it was based on the conclusion that the savings provisions of § 52-592 operate only to save the exact state law claims that were dismissed without prejudice in federal court, but do not permit the bringing of additional state law claims arising from the same set of facts. We disagree.

Section 52-592 uses the words “action” and “cause of action,” and not “claim,” to refer to what is allowed to be brought under its provisions. Section 52-592 (a) provides that “the plaintiff . . . may commence a new action . . . for the same cause . . . .” (Emphasis added.) Section 52-592 (d) provides that the above language “appl[ies] to . . . any action brought to the United States . . . district court for the district of Connecticut . . . .” (Emphasis added.) “It is well settled that [a] cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. ... A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action. . . . Gallo v. G. Fox & Co., 148 Conn. 327, 330, 170 A.2d 724 (1961). Even though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action.” (Citations omitted; internal quotation marks omitted.) Rogozinski v. American Food Service Equipment Corp., 34 Conn. App. 732, 738-39, 643 A.2d 300, cert. denied, 231 Conn. 910, 648 A.2d 156 (1994); see Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 365, 511 A.2d 333 (1986).

When we apply this interpretation to the facts of the present case, it is evident that both the initial suit filed in the federal court and the subsequent suit filed in the Superior Court constitute the same cause of action, although they may involve different claims for relief. Both state that the actions giving rise to the lawsuit took place on the same date and describe the same event. The trial court’s memorandum of decision describes both the federal and state law claims as arising from the same incident, which occurred on July 7, 1992. Because the plaintiffs claims of assault and battery, spoliation of evidence, invasion of privacy and abuse of process are part of “a new action . . . for the same cause” brought “within one year after the determination of the original action,” as required by § 52-592 (a), they are not barred by the three year statute of limitations.

Accordingly, we conclude that the trial court improperly granted summary judgment on the basis that these claims were barred by the statute of limitations and remand the case to the Superior Court for a trial on these claims.

II

The plaintiff next claims that the trial court improperly granted the defendants’ motion for summary judgment on the ground of collateral estoppel as to his remaining claims that were not barred by the statute of limitations. The trial court determined that these claims were barred on the basis of collateral estoppel arising from the federal court’s disposition of his federal claims. According to the plaintiff, these remaining claims sound in tort law, whereas the claims contained in his federal complaint were based on violations of the federal civil rights statutes. He contends that since the legal basis of the claims differs, the identity of issues required to create collateral estoppel is not present.

“ ‘The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation. Res judicata or claim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit.’ ” Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988); Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 401-402, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989). “For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” Gionfriddo v. Gartenhaus Cafe, supra, 402. While we agree with the trial court that collateral estoppel does operate to bar some of the plaintiffs claims in this action, we do not agree as to the extent of that bar.

“Although the doctrines of collateral estoppel and res judicata are conceptually related, in practice their application may yield distinct results. Unlike collateral estoppel, under which preclusion occurs only if a claim actually has been litigated, [u]nder the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim ... [or any claim based on the same operative facts that] might have been made. . . . [T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding .... Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 871-72, 675 A.2d 441 (1996).” (Emphasis in original; internal quotation marks omitted.) Connecticut National Bank v. Rytman, 241 Conn. 24, 43-44, 694 A.2d 1246 (1997).

“[I]n determining whether the [plaintiffs] had [an adequate opportunity to litigate their claims], we should apply the test set forth in the Restatement (Second) of Judgments, § 25, comment (e). Under this test, ‘[w]hen the plaintiff brings an action on [a] claim in a court, either state or federal, in which there is no jurisdictional obstacle to his advancing both theories or grounds, but he presents only one of them, and judgment is entered with respect to it, he may not maintain a second action in which he tenders the other theory or ground. If however, the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly have declined to exercise it as a matter of discretion), then a second action in a competent court presenting the omitted theory or ground should [be held not] precluded.’ ... 1 Restatement (Second), supra, § 25, comment (e), p. 213. . . . Applied to the circumstances of this case, the Restatement test requires us to decide whether the federal court, clearly vested with jurisdiction over the [plaintiffs’ federal] claim, would clearly have had no pendent jurisdiction, or clearly would have declined to exercise pendent jurisdiction, over [their] common-law claims.” (Citations omitted; emphasis in original.) Connecticut National Bank v. Rytman, supra, 241 Conn. 44-45.

A

The first count of the plaintiffs complaint in this action, which the trial court found to be barred by collateral estoppel, alleged that the defendants acted with the specific intent to deprive the plaintiff of his rights to freedom from physical and verbal abuse, coercion and intimidation, freedom from the deprivation of his liberty without due process of law, freedom from illegal arrest and prosecution, privacy, due process of law, freedom from arrest without probable cause and freedom from malicious prosecution. The complaint identifies these rights as secured by the statutes, laws and constitution of Connecticut. The plaintiffs federal complaint alleged that the defendants acted with the specific intent to deprive the plaintiff of his rights to freedom from physical and verbal abuse, coercion and intimidation, freedom from the deprivation of his liberty without due process of law, freedom from illegal arrest and imprisonment, freedom of speech, silence in the face of police interrogation, freedom from arrest without probable cause, freedom from malicious prosecution, due process of law and equal protection of the laws. The complaint identified these as rights secured by the United States constitution and amendments thereto, and by provisions of federal law.

While there is a clear similarity between the claims contained in the first count of the respective complaints, they are not identical in all respects. Specifically, the claim contained in the plaintiffs state court complaint that he was deprived of his right to privacy does not appear in his federal complaint. It therefore appears to be a new claim, grounded solely in the constitution and laws of the state of Connecticut. This claim was not considered by the federal court in its decision granting summary judgment as to the analogous count contained in the plaintiffs federal complaint.

While the plaintiffs right to privacy claim was not litigated in the federal court, the plaintiff had an adequate opportunity to raise this claim in his federal complaint. The federal court reviewed the plaintiffs federal constitutional claims and could have adjudicated the constitutional right to privacy claim despite its being based on the Connecticut constitution. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 725-26, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). Applying the test from our Supreme Court in Rytman to determine whether the plaintiff had an adequate opportunity to litigate his right to privacy claim, we cannot say that the federal court would clearly have declined to exercise supplemental jurisdiction over this claim. While the federal court did decline to exercise pendent jurisdiction over the state common-law claims, it did adjudicate the federal constitutional claims and may have exercised pendent jurisdiction over the plaintiffs state constitutional right to privacy claim. We do not know for certain, however, because the plaintiff failed to allege this claim in his federal complaint. A plaintiff cannot, under the doctrine of res judicata, withhold certain claims from one action and then raise those claims in a later action when an adequate opportunity existed to raise all claims in one action. We conclude, therefore, that the plaintiffs right to privacy claim secured to him by the statutes, laws and constitution of the state of Connecticut is barred by the doctrine of res judicata.

The remaining claims contained in the first count of the plaintiffs complaint are identical to claims raised in the first count of the plaintiffs federal complaint. These claims are also barred by the doctrine of res judicata because they raise the identical claims that the plaintiff litigated in the summary judgment proceeding in the federal court. Previous cases of our Supreme Court have applied the doctrine of res judicata where the previous action was decided against the plaintiff in a summary judgment proceeding. See Connecticut National Bank v. Rytman, supra, 241 Conn. 43-44; Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., supra, 236 Conn. 871-72. We conclude, therefore, that a judgment obtained through the grant of summary judgment against a plaintiff constitutes a judgment on the merits for pmposes of res judicata. Accordingly, we affirm the trial court’s judgment that barred the entire first count of the plaintiffs complaint under the doctrine of res judicata.

B

The third, fourth and fifth counts of the plaintiffs complaint in this action, which the trial court found to be barred by collateral estoppel, allege various common-law torts against the individual defendants, specifically intentional infliction of emotional harm (third count); wanton injury to the plaintiffs property, in this case, his dog (fourth count); and malicious prosecution, vexatious suit and conspiracy (fifth count). These common-law tort actions were not raised as separate claims or causes of action in the plaintiffs federal complaint due to the different pleading requirements in federal court as compared with state court. The plaintiffs federal complaint makes reference, however, to the factual basis of these allegations. The trial court determined, therefore, that these claims had been litigated and a judgment thereon reached in the federal court, and thus found the claims to be barred by collateral estoppel. The inclusion of some of those claims in the federal complaint was part of the larger context of a § 1983 claim under federal law, on which the federal court granted summary judgment in part, for reasons peculiar to that statute. Some of those claims were not fully and fairly litigated or actually decided by the federal court in its grant of summary judgment and, therefore, are not precluded by collateral estoppel. In addition, the plaintiff did not have an adequate opportunity to litigate those common-law tort claims because the federal court declined to exercise supplemental jurisdiction over them. Those claims are, therefore, also not barred by res judicata.

The plaintiffs claim of malicious prosecution in the state action is a common-law tort action. See Mulligan v. Rioux, 229 Conn. 716, 726-27, 643 A.2d 1226 (1994). In contrast, the claim of malicious prosecution under § 1983 contained in the plaintiffs federal complaint consists of both common-law and constitutional components. See Conway v. Mount Kisco, 750 F.2d 205, 214 (2d Cir. 1984), cert. dismissed, 479 U.S. 84, 107 S. Ct. 390, 93 L. Ed. 2d 325 (1986); DeLaurentis v. New Haven, 220 Conn. 225, 240, 597 A.2d 807 (1991). In ruling on this claim, the federal court recited the federal common-law elements of such a claim under a federal case decided by the United States Court of Appeals for the Second Circuit, and found that the plaintiffs complaint failed to establish one of the required elements. Those common-law elements are identical to those necessary under Connecticut law. See McHale v. W.B.S. Corp., 187 Conn. 444, 447, 446 A.2d 815 (1982), and cases cited therein. To prevail in federal court under § 1983 for malicious prosecution, however, the plaintiff must also prove that he was deprived of a constitutional right. See Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991); Conway v. Mount Kisco, supra, 214. The federal court did not grant summary judgment for failure to satisfy the constitutional or § 1983 prerequisites. We conclude, therefore, that the plaintiffs claim of malicious prosecution is barred by collateral estoppel because the federal court decided the underlying state law issues of malicious prosecution in favor of the defendants.

As to the plaintiffs claims of intentional infliction of emotional harm, wanton injury to property, vexatious suit and conspiracy, the trial court also determined that those claims were barred by the application of collateral estoppel. The federal court’s decision granting summary judgment as to the plaintiffs federal claims, however, makes no mention of any claim of intentional infliction of emotional harm, wanton injury to property, vexatious suit or conspiracy. The decision granting summary judgment as to the plaintiffs federal claims addresses only the claims of malicious prosecution, illegal arrest, arrest without probable cause, deprivation of liberty without due process of law, violation of the right to due process, violation of the right to silence in the face of police interrogation and violation of the right to freedom of speech. Because the federal court declined to exercise supplemental jurisdiction over the plaintiffs state law based tort claims, it cannot be said that these claims were “fully and fairly litigated,” “actually decided” and “necessary to the judgment”; Gionfriddo v. Gartenhaus Cafe, supra, 15 Conn. App. 402; as they must be if we are to conclude that they are barred by the doctrine of collateral estoppel. Additionally, the plaintiff did not have an adequate opportunity to litigate those claims because the federal court declined to exercise supplemental jurisdiction over them. Accordingly, the doctrines of res judicata and collateral estoppel do not operate to bar the plaintiffs claims of intentional infliction of emotional harm, wanton injury to property (the plaintiffs dog), vexatious suit and conspiracy.

C

The discussion of the various counts of the plaintiffs complaint leaves unresolved only the eighth count against the town in its capacity as the employer of the individually named defendants. This count is essentially a claim against the town under the common-law doctrine of respondeat superior under which an employer is held hable for the tortious conduct of its employees when they act in their capacity as employees. See Pelletier v. Bilbiles, 154 Conn. 544, 547, 227 A.2d 251 (1967).

The trial court stated no particular grounds for its entry of summary judgment as to this count of the plaintiffs complaint. The only reasonable conclusion is that because all of the other counts of the plaintiffs complaint against the individually named defendants had been disposed of by summary judgment and respondeat superior liability is derivative in nature, deriving from liability attaching to the individual defendants, there was no individual liability to which respondeat superior liability could attach.

In light of our reinstatement of several of the claims against the individual defendants in this case, there is now a possibility that individual liability will be imposed after a trial on the merits with respect to one or more of the individually named defendants. Accordingly, the possibility of individual liability to which respondeat superior liability can attach also exists. Therefore, because the factual basis for the grant of summary judgment as to the claim against the town no longer exists, there is no longer any basis for the granting of summary judgment as to the claim against the town.

SUMMARY

In conclusion, the trial court properly rendered summary judgment in favor of the defendants as to count one of the plaintiffs complaint and the portion of count five that alleges malicious prosecution. As to counts two, six and seven of the plaintiffs complaint, and the portion of count five that alleges a cause of action for abuse of process, the trial court incorrectly determined that those claims were barred by the statute of limitations and, thus, they should not have been dismissed. Finally, as to counts three, four and eight of the plaintiffs complaint, and the portion of count five that alleges causes of action for vexatious suit and conspiracy against the individual defendants, the trial court incorrectly determined that those claims were barred by the doctrines of collateral estoppel and res judicata and, thus, they also should not have been dismissed.

The judgment is reversed in part and the case is remanded for further proceedings consistent with the preceding paragraph of this opinion.

In this opinion the other judges concurred.

       Practice Book § 384, now Practice Book (1998 Rev.) § 17-49, provides: “The judgment sought 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.”

       In this case, the trial court analyzed the issue of preclusion only in terms of collateral estoppel. Collateral estoppel and res judicata, however, are closely related doctrines; see Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589, 674 A.2d 1290 (1996); and either doctrine, if found to be applicable, would bar the plaintiff from litigating his claims at a later hearing. See Connecticut Natural Gas Corp. v. Miller, 239 Conn. 313, 324 n.8, 684 A.2d 1173 (1996). Because the defendants sought summary judgment on the basis of res judicata and because of the conceptual closeness of the doctrines, we address certain of the preclusion issues raised in this appeal in terms of res judicata.

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       General Statutes § 52-592 provides in relevant part: “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . because the action has been dismissed for want of jurisdiction ... the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment. . . .

        “(d) The provisions of this section shall apply to . . . any action brought to the United States circuit or district court for the district of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court. If such action is within the jurisdiction of any state court, the time for bringing the action to the state court shall commence from the date of dismissal in the United States court . . . .”

       Rule 8 (a) (2) of the Federal Rules of Civil Procedure requires only “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Federal Rule of Civil Procedure 8 (e) directs that “[e]ach averment of a pleading shall be simple, concise, and direct.”

       Title 42 of the United States Code, § 1983, provides in relevant part:
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territoiy or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ...”

       In Post v. Doherty, 944 F.2d 91 (2d Cir. 1991), the court stated that to prevail in a § 1983 malicious prosecution claim, a plaintiff must prove “(1) that the defendant either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in his favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted with actual malice.” (Internal quotation marks omitted.) Id., 100.


author: DUPONT, J.

text:
    BLUE CROSS/BLUE SHIELD OF CONNECTICUT, INC. v. WALTER S. GURSKI, JR.
    (AC 17560)
    O’Connell, C. J., and Spear and Dupont, Js.

      Submitted on briefs June 5
    officially released August 11, 1998

      Richard A. Smith filed a brief for the appellant (defendant).

      Julie A. Manning filed a brief for the appellee (plaintiff).
   Opinion

DUPONT, J.

This case is an appeal by the defendant from a judgment for the plaintiff, after a hearing in damages, in the amount of $28,584.93 and attorney’s fees in the amount of $25,760. The defendant also appeals from the trial court’s denial of his motion to open a judgment by default for failure to plead.

The defendant claims that the trial court, Stodolink, J., improperly failed to open a judgment of default, and that the trial court, Grogins, J., improperly (1) prevented him from introducing certain evidence, (2) admitted the plaintiffs affidavit of debt and affidavit of attorney’s fees and (3) awarded the plaintiff attorney’s fees.

The plaintiffs complaint sought damages for health insurance fraud, misrepresentation, a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., breach of fiduciary duty and conversion. The defendant is a podiatrist who performed professional services pursuant to an agreement with the defendant for reimbursement. The gist of the allegations in the complaint is that the defendant breached a participating podiatrist agreement and improperly billed the plaintiff for services rendered.

The first issue to be resolved is whether the trial court abused its discretion in denying the defendant’s motion to open the default judgment as to liability only rendered in favor of the plaintiff for the failure of the defendant to plead. The plaintiff claims that this court’s dismissal of the appeal by the defendant from the denial of his motion to open that judgment prevents the defendant from now asserting, in this appeal from the judgment rendered after a hearing in damages, any impropriety in failing to open the default judgment as to liability.

The plaintiff is incorrect in asserting that the denial of the defendant’s motion to open the judgment cannot be an issue on appeal from the final judgment after a hearing in damages has been held. The defendant could not appeal from the denial of his motion to open the default judgment before a hearing in damages had taken place because there was no final judgment at that time. Automotive Twins, Inc. v. Klein, 138 Conn. 28, 35, 82 A.2d 146 (1951); Economics Laboratory, Inc. v. Reber, 9 Conn. App. 801, 515 A.2d 664 (1986). A judgment as to liability only, without a judgment for damages, is not an appealable final judgment. Pinnix v. LaMorte, 182 Conn. 342, 343, 438 A.2d 102 (1980).

As a general rule, when an order is interlocutory and cannot be the basis of an immediate appeal, that order and any other interlocutory orders that were adverse to the appellant can be assigned as error and reviewed in an appeal taken from the final judgment in the case. See W. Maltbie, Connecticut Appellate Procedure (2d Ed. 1957) § 15, pp. 17-19; see also General Statutes § 52-263. Review of an interlocutory ruling “must await an appeal from the final judgment . . . .” Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 5, 469 A.2d 778 (1984); see also Prevedini v. Mobile Oil Corp., 164 Conn. 287, 294, 320 A.2d 797 (1973).

The action of a trial court in granting or refusing a motion to open a judgment is generally within the discretion of that court. Eastern Elevator Co. v. Scalzi, 193 Conn. 128, 131-32, 474 A.2d 456 (1984). A review of the pleadings and the court’s reasons for denying the defendant’s motion to open the default judgment is necessary to determine whether there was an abuse of discretion.

The plaintiffs complaint was returnable on September 26, 1995. On October 4, 1995, the plaintiff filed a motion for default for failure to appear, which was granted on October 5, 1995. An appearance was filed by the defendant on October 11, 1995, and on October 17, 1995, the defendant’s motion to admit an attorney pro hac vice was filed, which motion was granted on November 14, 1995. On October 27, 1995, the plaintiffs motions for a default for failure to plead and for judgment after default were simultaneously mailed to the defendant, according to the plaintiffs certification of service on the motions. On November 1, 1995, the defendant filed a motion for extension of time to plead for thirty days from the date the motion for pro hac vice counsel was granted. The plaintiff objected to the motion for extension of time on December 13, 1995. The defendant’s motion for extension of time in which to plead was denied on February 5, 1996. The motion for default for failure to plead was granted on January 11, 1996, and the motion for judgment by default was granted on February 5, 1996, the same date that the case was placed on the hearing in damages list, and the same date that the defendant’s objection to the plaintiffs motions for default and judgment dated October 27, 1995, was overruled. The defendant’s objection was certified as having been mailed on October 31,1995.

The defendant filed a motion to open the default, service certified on January 12, 1996, one day after the motion for default for failure to plead was granted. At the time the motion for default for failure to plead was granted, the defendant’s motion for extension of time in which to plead was still pending, as was his objection to the plaintiffs motion for default and judgment. On February 7, 1996, the defendant swore to a verified motion to open judgment by default and certified to its mailing on the same date. The motion was argued on March 25,1996, and denied the same day in open court.

The defendant’s attorney, in his verified motion, claimed that he had not promptly pleaded because on October 22, 1995, his wife received a telephone call informing her that her father was near death. The family left immediately for Fall River, Massachusetts, where her father died the next day. The plaintiff does not dispute that the telephone call and the death actually occurred. The defendant’s affidavit indicated that the attorney was away from his office until October 27, 1995. As previously noted, the defendant filed a motion for extension of time in which to plead on November 1, 1995, and an objection to the plaintiffs motions for default and judgment was dated October 31, 1995.

At oral argument on March 25, 1996, the defendant’s counsel stated that he had not previously raised the death of his father-in-law as the reason for the late filing of an answer because he did not want to use that death as an issue. He said that he opted instead to raise legal issues as stated in his October 31, 1995 objection to the plaintiffs motions for default and judgment.

The plaintiff argued that the defendant did not need an extension of time in which to plead because many of the same issues had been raised in a prior bankruptcy proceeding involving the defendant and the same pro hac vice attorney. The trial court denied the motion to open the judgment because counsel had had an opportunity to raise all of the same factors for the opening of the default judgment on February 5, 1996, and did not do so.

The trial court also stated that it did not view the consequences of the judgment by default as serious. The court explained its view as follows: “Well, a hearing in damages is not one sided. You’re allowed to be heard on any of the issues that are raised. The only question is you can’t dispute, technically, liability. But the amount of that liability can always be disputed. And so, theoretically, if [the defendant] had no liability, then even in a hearing on damages, [the plaintiff] would be unsuccessful in getting any money. So, that I can—I don’t see anything overwhelming about the situation. You still can be heard in a hearing in damages. It’s not one sided by my understanding.”

The defendant argued at the hearing on his motion to open the default judgment that more than money was at stake because the plaintiffs complaint alleged fraud and criminal conduct of the defendant, which would interfere with his ability to earn a living because his license to practice podiatry might be affected and that, therefore, the judgment by default carried with it an onus beyond a liability for money damages.

Neither the defendant nor the plaintiff can be accused of delinquency in their pleadings. The motion for judgment after default for failure to plead was mailed simultaneously with the motion for default to the defendant, thirty-one days after the return day, sixteen days after the defendant had appeared and ten days after the defendant had moved to admit an Ohio attorney as pro hac vice. On November 1, 1995, the defendant filed a motion for extension of time, and an objection to the plaintiffs motions for default and judgment by default for failure to plead. The defendant’s objections were based on his claimed compliance with Practice Book § 114, now Practice Book (1998 Rev.) § 10-8. He claimed that the time for filing a responsive pleading had not yet passed.

The plaintiffs motions for default and judgment were mailed on October 27, 1995, just after the thirty days had expired. Shortly thereafter, the defendant filed a motion for extension of time to plead, and an objection to the plaintiffs motions for default and judgment by default. At the time the motion for default for failure to plead was granted, the defendant’s motions for extension of time to plead, and his objections to the plaintiffs motion for judgment by default had not yet been acted on. We agree with the defendant that on the facts of this case and the state of pleadings when the motion to open the judgment was denied on March 25, 1996, it was an abuse of discretion not to open the judgment. The defendant was prejudiced by the denial and showed that there was good cause for the setting aside of the judgment and that he was prevented by reasonable cause from defending the action. See Practice Book § 377, now Practice Book (1998 Rev.) § 17-43. We do not, therefore, reach the issues relating to the hearing in damages.

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

In this opinion the other judges concurred.

       The motions are both dated October 27, 1995, but the trial court file is not clear as to the date of filing.

       The plaintiff objected to the motion for an extension of time on December 13, 1995.

       Practice Book § 114, now Practice Book (1998 Rev.) § 10-8, provides in part that pleadings “shall first advance within thirty days from the return day, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the court thereon if one is required . . . .”

       Practice Book § 377, now Practice Book (1998 Rev.) § 17-43 (a), provides in relevant part: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. . . .”