author: SULLIVAN, J.

text:
    IN RE TRICIA A. ET AL.

    (AC 18203)
    O’Connell, C. J., and Foti and Sullivan, Js.
    Argued June 1
    officially released September 28, 1999

      Jewel A. Gutman, for the appellant (respondent mother).

      Patricia E. Naktenis, assistant attorney general, with whom were Benjamin Zivyon, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

SULLIVAN, J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to three of her children. The respondent claims that the court improperly (1) substituted its judgment for that of a court-appointed clinical psychologist, (2) found by clear and convincing evidence that the respondent had not achieved such a degree of personal rehabilitation as would encourage the belief that she could assume a responsible parental role within a reasonable period of time and (3) found that it was in the best interests of the children to terminate her parental rights. We affirm the judgments of the trial court.

The following facts are relevant to this appeal. The respondent is the mother of six children. The three eldest children live with their maternal grandmother in Michigan. The petitions in this case involve her three youngest children. At the time of trial in February, 1998, the children were twelve, eight and six years old, respectively, and had been in foster care for approximately four years.

The department of children and families (department) initially intervened in August, 1993, after the youngest child, then two and one-half years old, was hospitalized for injuries inflicted by the respondent’s boyfriend. On August 8, 1993, the three children were placed in foster care. On August 13, 1993, they were adjudicated neglected. On June 16, 1997, the commissioner of children and families filed petitions to terminate parental rights as to the children.

The respondent admitted to a twelve or thirteen year, four-bag-a-day heroin addiction as well as occasional cocaine use. Despite participation in several programs and services that were offered to her, the respondent failed to make any progress. In March, 1997, she entered the Hogar- Crea in-patient program, where she began to improve and showed signs of recovery. The program was two years long, and at the time of trial she had been drug free for eleven months. Nonetheless, it was unclear whether she would be able to continue her progress to the point of being able to care for her children or whether she would be able to remain drug free. Raphael Mora, a physician, testified that the respondent would not be able to deal with the stresses of raising the children at that time nor could he estimate when she would be able to assume a responsible role in her children’s lives.

All three of the children had been doing well in foster care. The two older children had been in the same foster home for the previous two years and had expressed a desire to remain with and be adopted by that foster family. After having behavioral problems in several foster homes, the youngest child finally settled into a home in which she was controlling her behavior and prospering.

Laura J. Ginther, a court-appointed psychologist, evaluated the children in September, 1997. Ginther testified that the foster parents were the psychological parents of the children. Although the children still had feelings for the respondent, they did not feel safe with her. Their primary attachments were to their foster parents. Moreover, it was Ginther’s opinion that an unsuccessful reunification with the respondent would be devastating and hurtful to the children. Nonetheless, Ginther did not recommend termination of parental rights.

I

The respondent first claims that the trial court improperly substituted its judgment for that of a court-appointed clinical psychologist. Specifically, the respondent argues that the court improperly accepted certain portions of Ginther’s report and testimony and disregarded or gave less weight to other portions. We disagree.

“The trier is the judge of the credibility of all the witnesses and the weight to be given their testimony and, therefore, has the right to accept part or disregard part of a witness’ testimony. Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982).” In re Hector L., 53 Conn. App. 359, 366, 730 A.2d 106 (1999). Indeed, the trier of fact may reject even the uncontradicted testimony of a witness. Id.

We conclude that there is no merit to the respondent’s claim. Although the assessment by a professional may be very useful, especially in the context of parental terminations; see In re Nicolina T., 9 Conn. App. 598, 605, 520 A. 2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987); the trial court need not and should not blindly adopt that person’s view, as the respondent appears to suggest. To do so would be to abdicate the court’s essential function to the professional’s judgment. The trial court acted properly in weighing the evidence.

II

The respondent next claims that the trial court improperly found that she had failed to achieve sufficient rehabilitation so as to assume a responsible role in the lives of her children. See General Statutes (Rev. to 1997) § 17a-112. We disagree.

“ ‘Personal rehabilitation’ as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent.” In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). “Section 17a-112 requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. ... A determination by the trial court . . . that the evidence is clear1 and convincing that the parent has not rehabilitated herself will be disturbed only if that finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. ... In re Christina V., 38 Conn. App. 214, 221, 660 A.2d 863 (1995).” (Internal quotation marks omitted.) In re Tabitha T., 51 Conn. App. 595, 602-603, 722 A.2d 1232 (1999).

The record supports the trial court’s finding. The evidence showed that the respondent had a history of unsuccessful attempts at overcoming her drug addiction despite the assistance provided to her. Although the respondent had been drug free for eleven months of a two year treatment program, Mora testified that she was not ready to care for her children, and he could not estimate when she might become responsible enough to resume a parental role. Ginther’s report stated: “The prognosis for an individual with [the respondent’s] history is poor to fair. ... It appears that she lacks the understanding of how difficult her transition will be to a less structured setting and how much time she will need to begin to function as an independent adult before she is ever able to take on the responsibility of raising children.”

On the basis of our review of the record, we are not persuaded that the trial court’s determination was clearly erroneous.

Ill

The respondent finally claims that the trial court improperly found that termination of parental rights was in the best interests of the children. We disagree.

“If the trial court determines that the commissioner [of children and families] has proven, by the appropriate standard, a failure to achieve rehabilitation, it must then determine if termination of parental rights is in the best interests of the child. . . . The trial court’s findings as to both issues will be reversed on appeal only if they are clearly erroneous.” (Citations omitted.) In re Samantha B., 51 Conn. App. 376, 377-78, 721 A.2d 1255 (1998), cert. denied, 248 Conn. 902, 732 A.2d 177 (1999).

Ginther stated that all three children viewed their foster parents as their psychological parents. The children had been in foster care for four years and finally appeared to have reached a comfort level in their present homes. Whatever positive feelings the children may have had toward the respondent, they did not view her as a parent and did not feel safe with her. We cannot conclude that the trial court was clearly erroneous in finding that termination was in the best interests of the children.

The judgments are affirmed.

In this opinion the other judges concurred.

       The trial court also terminated the parental rights of the father of two of the children. The father of the third child had died prior to the filing of the termination petitions. Only the respondent mother has appealed from the trial court’s judgments, and we refer to her as the respondent in this opinion.

       In her brief, the respondent also claimed that the trial court improperly failed to make written findings as required by General Statutes (Rev. to 1997) § 17a-112 (e). The respondent withdrew that claim at oral argument.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    KAREN LOMBARDI v. JOHN LOMBARDI
    (AC 18607)
    O’Connell, C. X, and Spear and Sullivan, Js.
    Submitted on briefs June 9
    officially released September 28, 1999

      Vito A. Castignoli filed a brief for the appellant (defendant).

      Nicholas A. D Agosto IV filed a brief for the appel-lee (plaintiff).
   Opinion

PER CURIAM.

The defendant, John Lombardi, appeals from the judgment of the trial court finding him in contempt of its marital dissolution order and ordering him to pay to the plaintiff, Karen Lombardi, a lump sum of $5000. The defendant claims that the trial court improperly found him in contempt for wilfully depriving the plaintiff of moneys to which she was entitled under the dissolution judgment by voluntarily resigning his post of employment just prior to receiving a bonus in 1997.

Because the defendant has failed to provide us with an adequate record, we decline to review his claim. “The duty to provide this court with a record adequate for review rests with the appellant. Practice Book § 60-5; Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998).” State v. Combs, 51 Conn. App. 700, 701, 725 A.2d 349 (1999). We have not been provided with either a written memorandum of decision or a transcribed copy of an oral decision signed by the trial court stating its reasons for finding the defendant in contempt.

The judgment is affirmed.


author: LAVERY, J.

text:
    DAYS INN OF AMERICA, INC. v. 161 HOTEL GROUP, INC., ET AL.
    (AC 18486)
    O’Connell, C. J., and Lavery and Healey, Js.

      Argued April 26
    officially released September 28, 1999

      Michael Nazarko, pro se, with whom, on the brief, was Thomas Nazarko, pro se, the appellants (defendants).

      Daniel J. Klau, for the appellee (plaintiff).
   Opinion

LAVERY, J.

The defendants Michael Nazarko and Thomas Nazarko appeal from a decision of the trial court rendering judgment against them in the amount of $144,842.57, plus costs, as personal guarantors of a franchise agreement between Days Inn of America Franchising, Inc.,* and East Lyme Budget Hotel Partnership. The defendants claim that the trial court improperly (1) precluded them from entering into evidence documents relating to the bankruptcy of East Lyme Budget Hotel Partnership, (2) concluded that the license agreement obligated them to make payment on their guarantees to Days Inn, (3) refused to permit them to amend their answer, (4) excluded evidence of the formation of a partnership and (5) found the defendants liable for the partnership debt without first finding the partnership hable. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. On February 24, 1986, Days Inn entered into a license agreement with East Lyme Budget Hotel Partnership (East Lyme Partnership). East Lyme Partnership did so with the intention of managing a Days Inn Hotel. That same day, Thomas Nazarko executed a guarantee agreement with Days Inn, binding himself to the license agreement and becoming apersona! guarantor of the license agreement between Days Inn and East Lyme Partnership. Calvert Property E.L. Limited Partnership and 161 Hotel Group, Inc., were the original partners of East Lyme Partnership.

The defendants, who were brothers and officers of 161 Hotel Group, Inc., replaced Calvert Property E.L. Limited Partnership as partners in East Lyme Partnership on September 30,1989.1 ** Along with an “Addendum to License Agreement” affecting that change, the defendants executed a supplemental guarantee agreement under which they personally guaranteed East Lyme Partnership’s obligations under the license agreement and bound themselves to that agreement.

On June 19,1995, East Lyme Partnership filed a petition under chapter 11 of the Bankruptcy Code. From June 19, 1995, through September 9, 1996, the hotel managed by East Lyme Partnership continued to operate as a debtor in possession. During that time, various fees due to Days Inn accrued totaling $144,842.57 and were unpaid.

On February 13,1997, Days Inn commenced an action against the defendant 161 Hotel Group, Inc., and the defendants Nazarko to collect the fees due. After a default judgment was rendered against 161 Hotel Group, Inc., on January 1, 1998, the claims against the defendants were tried to the court on May 11, 1998. On May 13, 1998, the court issued a memorandum of decision finding in favor of Days Inn and rendered judgment against the defendants in the amount of $144,842.57 plus costs. The court credited the testimony of the Days Inn’s witnesses, but found the testimony of Thomas Nazarko neither credible nor accurate. The court also concluded that the defendants were liable on their personal guarantee agreements and that the bankruptcy of the partnership did not excuse their liability as guarantors. This appeal followed.

I

The defendants first claim that the trial court improperly precluded them from entering into evidence certain documents relating to the bankruptcy of East Lyme Partnership. We do not agree.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evi-dentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, eviden-tiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Citations omitted; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998).

The defendants cite in their brief two allegedly improper evidentiary rulings. The first involved a failed attempt by Michael Nazarko to enter into evidence a document characterized as a preliminary bankruptcy order authorizing the use of rents and receipts by East Lyme Partnership to keep the hotel running. As Days Inn correctly noted at trial, the document was not relevant. The document related to the bankruptcy proceeding and not to the liability of the defendants as guarantors. The second ruling occurred when the trial court sustained Days Inn’s objection to a question related to the bankruptcy on the ground that it was beyond the scope of cross-examination.* ***** The court properly exercised its discretion in concluding that the testimony was beyond the scope of cross-examination. Accordingly, the trial court did not abuse its discretion in making either of these rulings.

II

The defendants next claim that the trial court improperly concluded that the license agreement did not absolve them from liability for the debt of East Lyme Partnership. We do not agree.

Specifically, the defendants challenge the trial court’s conclusion of law that the franchise agreement and the guarantee made them personally liable for the debt. The defendants point to § 19 (c) of the 1986 license agreement, which states in essence that the license terminates if East Lyme Partnership files a bankruptcy petition. The defendants contend that they were discharged from liability for the debt of East Lyme Partnership when it filed a bankruptcy petition on June 19,1995.

Where, as here, there is definitive contract language that leaves no room for interpretation, the determination of the intent of the parties’ contractual commitments is a question of law. See Levine v. Massey, 232 Conn. 272, 277-78, 654 A.2d 737 (1995). When the trial court reaches conclusions of law, the scope of our appellate review is plenary, “and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) ALCA Construction Co. v. Waterbury Housing Authority, 49 Conn. App. 78, 86, 713 A.2d 886 (1998).

The trial court reached a proper conclusion of law. The relevant language of § 19 (c) of the license agreement, stating that the license shall terminate if the licensee files for bankruptcy protection, is what the Bankruptcy Code terms an ipso facto or bankruptcy termination clause. An ipso facto clause is a provision found in an unexpired lease or executory contract that terminates solely due to the financial condition or bankruptcy filing of a party. In re Lee West Enterprises, Inc., 179 B.R. 204, 209 (Bankr. C.D. Cal. 1995). Although for many years such clauses were permitted, in 1978 the Bankruptcy Code rendered such ipso facto clauses ineffective after the commencement of a bankruptcy proceeding. 11 U.S.C. § 365 (e); In re Lafayette Radio Electronics Corp., 7 B.R. 189, 191-92 (Bankr. E.D.N.Y. 1980); cf. Bargain Mart, Inc. v. Lipkis, 212 Conn. 120, 130, 561 A.2d 1365 (1989).

The rationale of Congress at the time was to aid the debtor’s rehabilitation efforts, presumably by allowing the debtor to retain profitable contracts with other parties. See H.R. Rep. No. 595, 95th Cong., 1st Sess., 348 (1977); S. Rep. No. 989, 95th Cong., 2d Sess., 59 (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6304-6305.9 The defendants, on the other hand, have attempted to turn § 365 (e) on its head and use it as a shield against Days Inn’s efforts to collect a valid debt. This the defendants cannot do. The relevant clause in the franchise agreement is an ipso facto clause and, thus, is unenforceable after the commencement of a bankruptcy case. The trial court correctly found that the bankruptcy of East Lyme Partnership did not excuse the defendants from liability as personal guarantors.

Ill

The defendants next claim that the trial court’s failure to allow them to amend their answer was improper. Paragraph three of the fourth count of Days Inn’s complaint alleges that “[i]n consideration for [Days Inn] extending credit to the defendant, the 161 Hotel Group, Inc., the defendant, Thomas Nazarko, personally guaranteed payment for all amounts owed by the 161 Hotel Group, Inc., to [Days Inn] . . . .” Paragraph three of the fifth count uses the same language but substitutes Michael Nazarko’s name for that of Thomas Nazarko. The allegations in both paragraphs were admitted by the defendants in their answer. At trial, the defendants sought to offer evidence in contradiction of those admissions to show that East Lyme Partnership was the actual licensee. The defendants sought to admit this evidence because they believed that the issue of liability revolved around the identity of the licensee and that the guarantee signed merely was ancillary. The court sustained Days Inn’s objection, reasoning that both defendants admitted in their answer to having personally guaranteed payment for sums owed.

An admission in a defendant’s answer to an allegation in a complaint is binding as a judicial admission. Lutkus v. Kelly, 170 Conn. 252, 257, 365 A.2d 816 (1976). “An admission in pleading dispenses with proof, and is equivalent to proof.” Connecticut Hospital for the Insane v. Brookfield, 69 Conn. 1, 4, 36 A. 1017 (1897). It is “the full equivalent of uncontradicted proof of these facts by credible witnesses”; Cassidy v. Southbury, 85 Conn. 221, 223, 82 A. 198 (1912); and is “conclusive on the pleader.” Rodearmel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260 (1977); Cross v. Hudon, 42 Conn. App. 59, 65, 677 A.2d 1385, cert. denied, 239 Conn. 932, 683 A.2d 400 (1996). “A party is bound by a judicial admission unless the court, in the exercise of its discretion, permits the admission to be withdrawn, explained or modified.” United Electrical Contractors, Inc. v. Progress Builders, Inc., 26 Conn. App. 749, 753-54, 603 A.2d 1190 (1992).

The trial court did not abuse its discretion by excluding the defendants’ evidence on the ground that they had admitted in their answer that they were personal guarantors. The defendants’ motion to amend was the product of their own negligence. Even if the evidence was admitted, it would have had no practical effect because it would not have “open[ed] to attack” the admission already settled in the answer. Cassidy v. Southbury, supra, 85 Conn. 223-24 (admission into evidence of written notice of injuries would not permit attack on legal sufficiency of description of injuries where defendant had admitted in answer having received notice). “The admission had settled that issue. Such a doctrine is indispensable in preserving regularity and stability in a system of pleading and essential in securing fairness in a trial. Our courts have so ruled from earliest time.” Id., 224. Thus, admission of the evidence would have had no effect on the ultimate conclusions of the trial court because it would not have excused the defendants from liability under the personal guarantees they signed. Simply put, East Lyme Partnership received services provided to it by Days Inn while in bankruptcy, those services remained unpaid and the defendants were liable for payment as personal guarantors.

IV

The defendants next claim that the trial court improperly excluded from evidence a document showing the formation of East Lyme Partnership. As noted previously, we will not overturn a conclusion of a trial court on an evidentiary matter unless it manifests a clear abuse of discretion. State v. Hines, supra, 243 Conn. 801.

As with the defendants’ two prior evidentiary challenges, the trial court did not abuse its discretion because it correctly noted that the creation of East Lyme Partnership and its ultimate demise were irrelevant to whether the defendants were responsible for the debt of East Lyme Partnership as a result of the guarantee they signed. The guarantee exists independently of the defendants’ status as partners in the partnership. We conclude, therefore, that the trial court was not required to admit evidence of the formation of East Lyme Partnership.

V

In their final claim, the defendants contend that the trial court was required to find the partnership liable before proceeding against them as partners. Again, we do not find the status of the defendants as partners relevant to estabhshing their liability for the debt of East Lyme Partnership because Days Inn sued the defendants as guarantors. In a supplemental guarantee agreement they signed, the defendants waived the requirement that Days Inn proceed against East Lyme Partnership for payment before proceeding against them. If East Lyme Partnership were found owing Days Inn, the defendants were similarly exposed. Days Inn may proceed directly against the defendants for payment on the debt. See Beach v. Beach, 141 Conn. 583, 592, 107 A.2d 629 (1954); Perry v. Cohen, 126 Conn. 457, 460-61, 11 A.2d 804 (1940). We conclude that the trial court did not have to determine that the partnership was liable for the debt before proceeding against the defendants.

The judgment is affirmed.

In this opinion the other judges concurred.

      A default judgment was rendered against the named defendant prior to the trial against the defendants Michael Nazarko and Thomas Nazarko. We refer in this opinion to Michael Nazarko and Thomas Nazarko as the defendants.

       Days Inn of America Franchising, Inc., is the predecessor in interest of the plaintiff Days Inn of America, Inc. Days Inn of America Franchising, Inc., originally commenced this action. On January 14, 1998, the trial court allowed the substitution of Days Inn of America, Inc., as the plaintiff. Both entities hereinafter shall collectively be referred to as Days Inn.

       On June 2, 1986, East Lyme Budget Hotel Partnership changed its name to East Lyme Budget Hotel Limited Partnership. These entities collectively will be referred to as East Lyme Partnership.

       As of September 30, 1989, the three partners of East Lyme Partnership and their partnership interests were Michael Nazarko (25 percent), Thomas Nazarko (25 percent) and 161 Hotel Group, Inc., (50 percent).

       The supplemental guarantee agreement, which was signed by the defendants in their individual capacities, states in relevant part: “As an inducement to [Days Inn] to execute the preceding transfer and assumption of license agreement, dated as of even date herewith, with East Lyme Budget Hotel Partnership, as licensee, the undersigned (if more than one, jointly and severally) hereby agree to be bound by all terms of the license agreement and any amendments thereof and supplements thereto, including all addenda, schedules and exhibits now or hereafter existing, and irrevocably, unconditionally and personally guarantee to [Days Inn], its affiliates, successors and assigns, that all of licensee’s obligations thereunder . . . and under any promissory note issued by licensee to [Days Inn] or its order will be punctually paid and performed.”

       Michael Nazarko, with the permission of the court and by agreement, speaking for himself and his brother, who were both pro se, proceeded as follows:
      “Mr. Michael Nazarko: I’d like to give you this. Could you identify this document?
      “Mr. Thomas Nazarko: This is the initial preliminary order when we filed chapter 11 authorizing the use of rents and receipts to—basically carry on the business ongoing.
      “Mr. Michael Nazarko: I’d like to submit this.
      “[Plaintiffs Counsel]: Your Honor, I’m going to object. Again, this is evidence of the bankruptcy proceeding. It’s not an issue here. It’s a bankruptcy proceeding not entailing either of the defendants. It’s completely and totally immaterial and, in fact, irrelevant to this action. It doesn’t do anything to discharge the debt of [Days Inn]. And I don’t even think—
      “The Court: All right. I’ll sustain the objection. You may mark it for identification.”

       On redirect examination of Thomas Nazarko, the following colloquy took place between defense counsel, plaintiffs counsel and the court:
      “Mr. Michael Nazarko: While the hotel was operating under chapter 11, the licensee, were you involved in making the budgets?
      “Mr. Thomas Nazarko: Yes.
      “[Plaintiffs Counsel]: I’m going to object, Your Honor. It’s beyond the scope of cross.
      “Mr. Michael Nazarko: He was talking about the chapter 11, Your Honor.”
      “The Court: No. That’s not—I’ll sustain the objection.”

       Section 19 (c) of the license agreement provides in relevant part: “The license shall automatically and immediately terminate without notice if any involuntary proceeding in bankruptcy is filed against the licensee which is not dismissed within sixty days of filing, any voluntary proceeding in bankruptcy is filed by [the] licensee, [the] licensee is dissolved or liquidated, a receiver is appointed for [the] licensee or hotel, or [the] licensee makes any assignment for the benefit of creditors.”

       Title 11 of the United States Code, § 365 (e) provides in relevant part:
      “(1) Notwithstanding a provision in an executory contract or unexpired lease, or in applicable la.w, an executoiy contract or unexpired lease of the debtor may not be terminated or modified, and any right or obligation under such cont raet or lease may not be terminated or modified, at any time after the commencement, of the case solely because of a provision in such contract or lease that is conditioned on—
      “(A) t he insolvency or financial condition of the debtor at, any time before the closing of the case;
      “(B) the commencement of a case under this title . . . .”

       The legislative history provides in relevant part: “Subsection (e) invalidates ipso facto or bankruptcy clauses. These clauses, protected under present law, automatically terminate the contract, or lease, or permit the other contracting party to terminal e the contract, or lease, in the event of bankruptcy. This frequently hampers rehabilitation efforts. . . .
      “The unenforceability of ipso facto or bankruptcy clauses proposed under this section will require the courts to be sensitive to the rights of the nondebtor party to executory contracts and unexpired leases. . . .
      “This subsection does not limit the application of an ipso facto or bankruptcy clause to a new insolvency or receivership after the bankruptcy case is closed. That is, the clause is not invalidated in toto, but, merely made inapplicable during the case for the purposes of [disposition] of the execu-tory contract or unexpired lease.” 1978 U.S.C.C.A.N. 6304—6305.

       The supplemental guarantee agreement, signed by the defendants in their individual capacities, provides in relevantpart: “The undersigned waive, to the extent permitted by applicable law, notice of acceptance, notice of default, presentment and demand. Upon default by licensee and receipt of written notice from [Days Inn], the undersigned will immediately make each payment and perform or caused to be performed each obligation of licensee under the agreement. [Days Inn] may to the extent permitted by applicable law (without affecting any obligation of any of the undersigned) waive any licensee default, extend any licensee cure period, or settle, ac[just, compromise or release any indebtedness of or claims against licensee. The undersigned waive notice of amendment of the license agreement and demand for payment or performance by licensee. The undersigned further waive the defenses of novation, increase in risk, release or compounding oí any other guarantor, or any requirement that [Days Inn] first exhaust other remedies, resort to any collateral, or proceed diligently to collect any amounts due from licensee, this guarantee agreement being a primary obligation of the undersigned and a guarantee of payment and performance, not of collection.”


author: O’CONNELL, C. J.

text:
    MICHAEL CONNAIR v. CITY OF NEW HAVEN
    (AC 18175)
    O’Connell, C X, and Landau and Schaller, Js.
    Argued March 4
    officially released September 28, 1999

      Brian W. Prucker, with whom, on the brief, was Robert M. Fitzgerald, for the appellant (plaintiff).

      Scott Wilson Williams, for the appellee (defendant).
   Opinion

O’CONNELL, C. J.

The plaintiff, Michael Connair, an orthopedic surgeon, appeals from the decision of the workers’ compensation review board (board) reversing the commissioner’s denial of the defendant’s motion to dismiss. The plaintiff claims that the board improperly ordered the commissioner to grant the defendant’s motion to dismiss because the retroactive procedure adopted by the workers’ compensation chairman (chairman) was in excess of the statutory authority delegated to him. We affirm the board’s decision.

The chairman of the workers’ compensation commission has authority under General Statutes § 31-280 (b) (23) to develop guidelines for expediting disputed cases and has authority under § 31-280 (b) (26) (A), in consultation with insurers and medical practitioners, to establish guidelines, including procedures for resolution of billing disputes. Pursuant to that statute, the chairman, by resolution and order on March 4, 1994, adopted § 31-280-3 (e) (2) of the Regulations of Connecticut State Agencies, which established three-member dispute resolution panels comprised of a commissioner, a payor representative and a medical practitioner representative. The panels were intended to resolve, expeditiously and efficiently, a backlog of disputes regarding medical claims that already had been submitted. Previously, all disputed medical bills were submitted to a single commissioner for determination. Under the new procedure, the old bills were to be resubmitted to one of the new three-member panels.

The plaintiff had treated several employees of the defendant, the city of New Haven (city), who had filed workers’ compensation claims for injuries covered by the Workers’ Compensation Act (act). General Statutes § 31-275 et seq. The plaintiff submitted a claim for his services to the commissioner in accordance with the former procedure instead of to the three-member panel, and he asserted that he was never paid for these services. A consolidated formal hearing on all of these claims was held before the commissioner on August 28, 1996. The city filed a motion to dismiss with the commissioner because the plaintiff did not comply with the new regulation. The commissioner denied the motion to dismiss, and the city appealed to the board, which reversed the commissioner’s decision and remanded the case with direction to dismiss the plaintiffs claim. This appeal followed.

The plaintiff argues that the procedure established by the chairman is an excessive delegation of power and, therefore, cannot retroactively be applied to his claims. The city maintains that the chairman acted pursuant to a lawful delegation of power and, consequently, the plaintiffs bills should have been submitted to the three-member panel in accordance with the new regulation.

It is not disputed that the chairman is given broad authority to promulgate rules and regulations to administer the act. The legislature provided the chairman with the power to develop guidelines for expediting disputed cases, “approving all fees for services rendered under this chapter by attorneys, physicians, surgeons, podiatrists, optometrists, dentists and other persons . . . .” General Statutes § 31-280 (b) (11) (A). The administrative authority granted to the chairman by § 31-280 (b) (23), when read with the rest of the act, indicates an extensive and broad power to manage the workers’ compensation system; the authority to process cases in a timely and efficient manner is ,plenary. Nevertheless, the plaintiff argues that the chairman exceeded the scope of his authority when he established guidelines to resolve past disputed medical claims.

We generally look to the statutory language and the pertinent legislative history to ascertain whether the legislature intended that an amendment be given retroactive effect. Reliance Ins. Co. v. American Casualty Co. of Reading, Pennsylvania, 238 Conn. 285, 290, 679 A.2d 925 (1996) (en banc). As a general rule of law, “statutes affecting substantive rights . . . apply prospectively only.” (Internal quotation marks omitted.) Rice v. Vermilyn Brown, Inc., 232 Conn. 780, 786, 657 A.2d 616 (1995). “[Procedural statutes generally are applied retroactively absent a clear expression of legislative intent to the contrary.” Id., 786 n.12. To determine if the resolution and order should be applied retroactively, we must first determine whether the statute is substantive or procedural.

Our review of the record and the statutory construction of § 31-280 shows a broad grant of power given to the chairman to adopt regulations to carry out his responsibilities under the act, including the authority to “[a]ppoint such supplementary advisory panels as the chairman deems necessary . . . .” General Statutes § 31-280 (b) (9). Pursuant to this statutory power, the chairman procedurally changed the requirements of filing disputed claims. Instead of submitting a claim to one commissioner, the plaintiff was required to submit it to a three-member panel. This regulatory scheme affects only the remedy by which the payment of compensation is evaluated. Everett v. Ingraham, 150 Conn. 153, 157, 186 A.2d 798 (1962).

Because the criteria relied on in making such substantive determinations has not been altered, the only change in the regulatory scheme is procedural in nature. In addition, the resolution arid order applied only for a limited period of time and was enacted for the specific purpose of reducing a backlog of medical claims. Accordingly, because we conclude that the regulation is procedural, its retroactive application is not inconsistent with the grant of authority by the legislature.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-280 (b) provides in relevant part: “The chairman of the Workers’ Compensation Commission shall . . . (23) Develop guidelines for expediting disputed cases . . . .”

       General Statutes § 31-280 (b) (26) (A) provides in relevant part: “In consultation with insurers and practitioners, establish . . . practitioner billing guidelines .... The guidelines shall include procedures for the resolution of billing disputes and shall prohibit a practitioner from billing or soliciting payments from a claimant for services rendered to the claimant under the provisions of this chapter (i) during a payment dispute between the practitioner and the employer or its workers’ compensation insurance carrier, or (ii) in excess of the maximum fees established pursuant to subparagraph (B) of subdivision (11) of this subsection . . . .”

       Section 31-280-3 (e) of the Regulations of Connecticut State Agencies provides in relevant part: “(2) Effective no later than sixty (60) days following the effective date of these regulations, the Chairman shall maintain a list of members to serve on the Dispute Resolution Panels. Such Dispute Resolution Panels shall resolve issues that cannot be resolved through the internal mechanisms established by Payors. Each panel shall consist of three members appoint ed by the Chairman: one Reviewer or Payor representative, one Practitioner representative, and one representative from the Commission.
      “(3) A Practitioner ma.y request review of unresolved payment issue disputes by submitting a written request for review to the Chairman and the Payor. Within 21 days following receipt of such request, the Payor, or a Reviewer acting on behalf of the Payor, must forward all supporting documentation for the claim to the Dispute Resolution Panel. ...”

         On June 18,1999, the chairman issued the following memorandum: “The Dispute Resolution Panel, which was originally created to handle disputed medical bills, was utilized for dates of service between July 1, 1990 and April 1,1994. That panel is no longer in existence, and any dispute concerning medical bills is now solely within the purview of the workers’ compensation commissioner.”
      At the request of this court, both counsel filed briefs and appeared before us on July 7,1999, at which time both agreed that the foregoing memorandum did not render this appeal moot.


author: LANDAU, J.

text:
    JOSEPH CONSIGLIO ET AL. v. TRANSAMERICA INSURANCE GROUP
    (AC 18796)
    Landau, Hennessy and Dupont, Js.
    Argued May 26
    officially released September 28, 1999

      Joel M. Fain, with whom, on the brief, were William E. Murray and Alfred P. Forino, for the appellant (defendant).

      Steven D. Jacobs, for the appellees (plaintiffs).
   Opinion,

LANDAU, J.

The defendant, Transameriea Insurance Group (Transameriea), appeals from the judgment of the trial court granting the plaintiffs’ application for an order compelling arbitration of their claim for under-insured motorist benefits. On appeal, Transameriea claims that the trial court improperly relied on this court’s decision in Prudential Property & Casualty Ins. Co. v. Perez-Henderson, 49 Conn. App. 653, 714 A.2d 1281, cert. denied, 247 Conn. 917, 722 A.2d 807 (1998) (Prudential). Specifically, Transameriea extends two invitations to us: first, it invites us to revisit Prudential and reverse the ruling in that case and second, so as to accomplish the first request, entreats this court, in effect, to go behind our Supreme Court’s opinion in Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474, 659 A.2d 1188 (1995), and “[closely examine] the Supreme Court records and briefs in [that case] . . . .” We decline to do either and affirm the judgment of the trial court.

Due to the nature of the claim on appeal, only a bare bones recitation of the virtually undisputed facts is necessary. On April 24, 1989, the plaintiffs Joseph Consiglio and John Mathis, the driver and passenger of a motor vehicle, respectively, were involved in an accident. The tortfeasor, Levi George, Jr., drove the vehicle that struck the plaintiffs’ vehicle from behind, causing the plaintiffs’ personal injuries. An action, commenced on March 24, 1991, resulted in a monetary settlement, which exhausted the limits of the tortfeasor’s liability insurance policy and a withdrawal of the action on June 8,1995. Thereafter, on May 16, 1997, the plaintiffs made a demand for arbitration of their underin-sured motorist claim to Transamerica, the company that issued the insurance policy that covered the plaintiffs’ vehicle. When the parties failed to reach an agreement to arbitrate, the plaintiffs filed an application to compel arbitration on September 17, 1997.

The trial, court found that the applicable insurance policy “includes an endorsement for uninsured-underin-sured motorist coverage which contains no time limit for making a claim. It states that Transamerica ‘will pay only after all liability bonds or policies have been exhausted by judgments or payments.’ ” At the hearing, all parties agreed that the applicable statute of limitations is General Statutes § 52-576, which provides that an action to enforce a contract must be brought “within six years after the right of action accrues . . . .” The issue before the trial court was whether the right of action accrued in 1995, when the action against the tortfeasor was settled, exhausting the limits of his liability policy, or whether it accrued in 1989, when the accident occurred. In granting the application to compel arbitration, the trial court stated that “[t]he statute of limitations on the plaintiffs’ claim began to run in 1995, and it presents no bar to the arbitrability of the plaintiffs’ claim.” The trial court distinguished the claim from that made to our Supreme Court in Bayusik v. Nationwide Mutual Ins. Co., supra, 233 Conn. 474, and found, instead, that the claim was precisely the same as the claim presented to this court in Prudential Property & Casualty Ins. Co. v. Perez-Henderson, supra, 49 Conn. App. 653. The trial court concluded, therefore, that it was bound by this court’s decision in Prudential. This appeal followed.

The issue before this court, is clear: Transamerica invites us to reverse our decision in Prudential. We decline, however, to accept that invitation. Our review of the record in this case persuades us that the trial court correctly concluded that Prudential controls the outcome of the present case. In Bayusik, the insurance contract required that the plaintiff make a demand for arbitration within two years from the date of the accident. Bayusik v. Nationwide Mutual Ins. Co., supra, 233 Conn. 480. Our Supreme Court held that such a time limitation was valid and enforceable in McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 140-41, 617 A.2d 445 (1992), and in Hotkowski v. Aetna Life & Casualty Co., 224 Conn. 145, 152, 617 A.2d 451 (1992). Thereafter, the General Assembly enacted Public Acts 1993, No. 93-77, effective May 20,1993, which the Bayu-sik court interpreted to mean that policies governed by Public Act 93-77, § 3, are subject, not to the limitation period prescribed by § 2 (e) of that act, now codified as General Statutes § 38a-336 (g), but, rather, to the six year statute of limitations applicable to contract actions in general. Bayusik v. Nationwide Mutual Ins. Co., supra, 482. The insurance policy on which Bayusik was decided required the defendants to pay underinsured motorist benefits only after the insured had exhausted the liability limits of other applicable policies. Nonetheless, after the Bayusik court invalidated the stated two year statute of limitations, it applied the six year statute of limitations from the date provided for in the policy, the date of the accident, and not from the date of the exhaustion of the policy limits. Id., 485-86.

In Prudential, the insurance policy did not contain a limitation on the time within which to bring a claim, but, rather, “stated that the provider would not be obligated to pay an underinsured motorist claim until all underlying insurance was exhausted. ” Prudential Property & Casualty Ins. Co. v. Perez-Henderson, supra, 49 Conn. App. 660. As in Prudential, the plaintiffs in this case could not have maintained an action against Trans-america until all underlying insurance was exhausted, which did not occur until June 8, 1995. Furthermore, as in Prudential, the policy in this case did not indicate the date by which the plaintiffs had to make demand for arbitration. Therefore, pursuant to Prudential, the plaintiffs timely filed their application to compel on May 16, 1997.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Joseph Consiglio, Donna Consiglio, John Mathis and Carol Mathis.

       Even if Prudential were not on point with the facts of this case, this court’s policy dictates that one panel should not, on its own, reverse the ruling of a previous panel. The reversal may be accomplished only if the appeal is heard en banc. Before a case is assigned for oral argument, the chief judge may order, on the motion of a party or suo moto, that a case be heard en banc. Practice Book § 70-7 (a). This appeal is a figurative descendant of Don Quixote; M. Cervantes, Don Quixote de la Mancha (1615); fully armored, tilting at windmills, which seeks to overturn a trial result that was preordained from the moment Transamerica failed to invoke the applicable rule of practice and thereby precluded our consideration of its request.


text:
    ROBERT B. BERGER ET AL. v. ARTHUR L. FITZGERALD, JR., ET AL.
    (AC 18045)
    Lavery, Spear and Hennessy, Js.

      Argued April 26
    officially released October 5, 1999

      Michael C. Blaney, for the appellants-appellees (plaintiffs).

      James H. Howard, with whom, on the brief, was Howard M. Wood III, for the appellees (named defendant et al.).

      Wesley W. Horton, with whom were Maria N. Stavro-poulos, senior assistant town attorney, and, on the brief, Christopher W. Bromson, town attorney, for the appel-lee-appellant (defendant town of Enfield).
   Opinion

LAVERY, J.

The plaintiffs appeal from the judgment of the trial court quieting title to certain real property in favor of the defendant Arthur L. Fitzgerald III (Fitzgerald III). The land was sold pursuant to a tax sale. On appeal, the plaintiffs claim (1) that General Statutes (Rev. to 1991) § 12-159 validates and cures any defects in the tax sale and (2) that the trial court improperly (a) concluded that the description of the land in the tax sale notice was insufficient and (b) determined the ownership of the land. We reverse the judgment of the trial court.

The following facts are necessary for our review of the plaintiffs’ claims. The land in question is 4.465 acres in the town of Enfield (town). In 1979, the town’s planning and zoning commission (commission) gave the then owner of the land, the defendant Arthur L. Fitzgerald, Jr. (Fitzgerald, Jr.), approval to subdivide the land into five lots. Subsequently, the land was described as lots 1, 2, 3, 4 and 5 on a map or plan titled “subdivision plan prepared for Norman H. Trudeau.” The lots were identified on the town assessor’s map seventy-four as lots 247,248,249,250 and 251, and also on the assessor’s map seventy-four as R-119, R-120, R-121, R-122 and R-123. Because Fitzgerald, Jr., never developed the subdivision, the commission canceled the subdivision approval on March 7, 1991, and the town returned the subdivision bond money of $32,676.71 to Fitzgerald, Jr. On March 15, 1991, a legal notice concerning the expiration of the subdivision was published in a local newspaper, and the subdivision map was stamped expired on May 2,1991. Fitzgerald, Jr., did not pay taxes assessed on the land on the grand lists of October 1, 1986, through and including October 1, 1990, wherein the lots were described as 247, 248, 249, 250 and 251 Hazard Avenue. The town tax collector, therefore, set in motion a tax sale of the land that is the subject of this litigation.

On August 14, 1991, the town published a notice of sale of land for taxes (1991 notice). Among the various parcels to be sold at auction on October 23, 1991, were two listed in the name of Fitzgerald, Jr. One parcel was identified as lot 49 Hazard Avenue on the assessor’s map seventy-four, and the other was identified as 118 Hazard Avenue on the same map. The lots that are the subject of this action were described in the same notice as items thirty-five, thirty-six, thirty-seven, thirty-eight and thirty-nine, owned by Shamrock Realty and referred to as lots 247, 248, 249, 250 and 251 Hazard Avenue on the assessor’s map seventy-four. The town, however, canceled the sale. Fitzgerald, Jr., received notice of the sale but did not receive notice of the cancelation.

On October 5, 1992, the town published a second notice of sale of land (1992 notice). The 1992 notice stated that parcel 20, in the name of Shamrock Realty, would be sold to satisfy unpaid taxes from the grand lists of 1986 through 1991 in the amount of $44,999.84, plus charges accrued. The parcel was described as lot 251 Hazard Avenue on the assessor’s map seventy-four. The 1992 notice made no mention of lots 247, 248, 249 and 250 Hazard Avenue. The 1991 assessor’s card identified the parcel as lot 251 Hazard Avenue, which contained 4.465 acres and was a combination of lots 1, 2, 3,4 and 5. From this information, the trial court found that the tax collector identified the parcel in the 1992 notice as lot 251 in lieu of the description in the 1991 notice as lots 247 through 251, inclusive.

At the tax sale, which was conducted on December 14, 1992, the plaintiff Edward J. McGuire, as trustee (trustee), purchased parcel 20 for $79,170.22, the amount owed on the entire parcel since 1986, which included all the lots in the defunct subdivision, now one parcel. The trustee recorded the notice of purchase at tax sale on June 15,1993. Thereafter, neither Fitzgerald, Jr., nor any other person redeemed the land in accordance with General Statutes (Rev. to 1991) § 12-157. The December 17, 1993 tax deed to the trustee did not refer to Fitzgerald, Jr., or Shamrock Realty as the prior owners. The trustee subsequently transferred title to the land to himself, individually, and to the other plaintiffs. The tax deed and the deed from the trustee to the plaintiffs described the land as lots 1, 2, 3, 4 and 5 on a map or plan titled “subdivision plan prepared for Norman H. Trudeau.” On June 30, 1994, Fitzgerald, Jr., conveyed lots 247, 248, 249 and 250 to Fitzgerald III.

In June, 1994, the plaintiffs commenced an action to quiet title, and the Fitzgerald defendants counterclaimed to quiet title. The plaintiffs thereafter cited in the town as a defendant to obtain restitution of the moneys paid to the town pursuant to the tax sale if the plaintiffs were unsuccessful in quieting title in their favor. At trial, Fitzgerald, Jr., claimed that the town conveyed only lot 251 to the trastee as a result of the tax sale and that Fitzgerald III is the rightful owner of the remaining four lots. Fitzgerald, Jr., also claimed that the tax deed to the trustee was invalid because of two errors in the procedure used by the tax collector. He first claimed that because the land description in the 1992 notice was incorrect, a deed to lots 247 through 250 could not be conveyed. Second, Fitzgerald, Jr., claimed that the tax deed that the trustee recorded on December 17,1993, was not lodged with the clerk within one week of the sale pursuant to § 12-157. The trial court found that the deed was lodged with the clerk on December 21, 1992, as required by § 12-157, and that the clerk later substituted a correcting deed, because the trustee objected to the statement in the original deed that the land was subject to liens rather than being sold free and clear of all liens. The court, citing § 12-159,* * concluded that the clerk’s action did not violate § 12-157 so as to void the tax deed.

The trial court agreed with Fitzgerald, Jr., however, that the land description in the 1992 notice was insufficient to provide notice to interested persons of what real property was being sold by the tax collector on December 14, 1992, because the description of the parcel was confusing. The 1991 notice described the land as items thirty-five, thirty-six, thirty-seven, thirty-eight and thirty-nine with reference to the assessor’s map seventy-four showing lots 247, 248, 249, 250 and 251. The 1992 notice described the land as assessor’s map seventy-four lot 251 Hazard Avenue. Furthermore, the tax collector described the land in the tax deed, not as it was described in the 1992 notice, but as lots 1, 2, 3, 4 and 5 on a subdivision map. The court concluded that no one should have to investigate the land records and assessor’s records to find out what real property was included in the 1992 notice of tax sale.

Because it found that the different descriptions of the land created confusion, the trial court concluded that it could not take away the property rights of Fitzgerald III and ruled that only lot 251 was conveyed to the trustee as a result of the tax sale. The court, therefore, quieted title in the land by rendering a judgment of ownership of former subdivision lots 247, 248, 249 and 250 to Fitzgerald III and former subdivision lot 251 to the plaintiffs. The plaintiffs appealed and the town cross appealed.

“The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997). “Ordinarily, the construction and interpretation of a statute is a question of law for the courts . . . .” West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 507, 636 A.2d 1342 (1994).

On appeal, the plaintiffs claim that the notice of the tax sale concerning the land was sufficient and any irregularities were validated by § 12-159. We agree.

In Ontario Land Co. v. Yordy, 212 U.S. 152, 29 S. Ct. 278, 53 L. Ed. 449 (1909), the United States Supreme Court, in a case similar to this one, stated: “We have repeatedly held that these tax foreclosure proceedings are in rem, and not against the person of the owner, and that owners are bound to take notice of the property they own and pay the taxes thereon and defend against foreclosure for delinquent taxes, even though the property is assessed to unknown persons or to other persons.” (Internal quotation marks omitted.) Id., 158, quoting Shipley v. Gaffner, 48 Wash. 169, 171-72, 93 P. 211 (1908).

In Yordy, the plaintiff challenged the sufficiency of the description of land to be foreclosed in a tax sale by the state of Washington. At the time of the tax proceedings, “while the land in controversy was within the limits of the Capital Addition to North Yakima, it had not been divided into lots and blocks, but was simply marked on the official plat ‘reserved.’ In other words, according to the record there was no such property as that described, and nothing to identify any property.” Ontario Land Co. v. Yordy, supra, 212 U.S. 156. In affirming the decision of the Supreme Court of Washington, the United States Supreme Court cited the general rule regarding conveyance descriptions: “The first requisite of an adequate description is that the land shall be identified with reasonable certainty, but the degree of certainty required is always qualified by the application of the rule that that is certain which can be made certain. A deed will not be declared void for uncertainty if it is possible, by any reasonable rules of construction, to ascertain from the description, aided by extrinsic evidence, what property it was intended to convey. The office of a description is not to identify the land, but to furnish the means of identification. The description will be liberally construed to afford the basis of a valid grant. It is only when it remains a matter of conjecture what property was intended to be conveyed, after resorting to such extrinsic evidence as is admissible, that the deed will be held void for uncertainty in the description of parcels.” (Internal quotation marks omitted.) Id., 157-58, citing L. Jones, Law of Real Property (1898) § 323, p. 263. Thus, Yordy stands for the proposition that the vigilant owner of real property is duty bound to go beyond the description provided in a notice of tax sale and look to extrinsic evidence if there is any doubt as to the land at issue.

In the case before us, the undisputed facts are that the taxes on the entire tract on the grand lists of October 1, 1986, through October 1, 1991, were unpaid at the time of the tax sale in 1992. Further, the town published a notice of sale of land for taxes and filed it on the land records. It also is undisputed that Fitzgerald, Jr., received timely notice of this sale and that the commission canceled the subdivision approval on March 7, 1991, and returned to Fitzgerald, Jr., the subdivision bond money in the amount of $32,676.71. Additionally, the notice of sale stated, “20. Property assessed from October 1,1986, through October 1,1991, in the name of Shamrock Realty Company to satisfy taxes of $44,999.84 plus all charges accrued thereon. Property described as assessors map seventy-four, Lot 251 Hazard Avenue.” It also is undisputed that the tax assessor’s 1991 card listed the subject property as lot 251 on Hazard Avenue containing 4.465 acres and reflected that lot 251 was a combination of lots 1, 2, 3, 4 and 5. It further is undisputed that, on the basis of the assessor’s card, the tax collector identified the property in the notice of sale as lot 251. Finally, there is no dispute that $44,999.84 in taxes were owed at the time of the 1992 notice, and that neither Fitzgerald, Jr., nor anyone else redeemed the property in accordance with § 12-157.

Fitzgerald III being the successor in ownership to Fitzgerald, Jr., stands in his shoes with respect to the tax sale. There is no question that, under Yordy, the property was sufficiently identified in the 1992 notice, and that the amount owed was the amount due on the entire tract, and that Fitzgerald, Jr., was properly notified of the tax sale and had one year to redeem his property. See General Statutes (Rev. to 1991) § 12-157. As in Yordy, the tax sale procedure is in rem and Fitzgerald, Jr., was required to take notice of his property, to pay taxes on it and to defend against any foreclosure for delinquent taxes. Fitzgerald, Jr., failed to do so.

In addition, General Statutes (Rev. to 1991) § 12-159 prevents Fitzgerald III from questioning the plaintiffs’ title to the property. Section 12-159 provides in relevant part: “Any deed, or the certified copy of the record of any deed, purporting to be executed by a tax collector . . . shall be prima facie evidence of a valid and unencumbered title in the grantee to the premises .... No act done or omitted relative to the assessment or collection of a tax, including everything connected therewith . . . shall in any way affect or impair . . . the validity of such sale, unless the person contesting such validity shows that . . . the collector neglected to mail to him the notice by law required, or to those with whom he is in privity of title, and who have a right to notice of such sale, and that he or they in fact did not know of such sale within one year after it was made, provided such property was by law liable to be sold to satisfy such tax . . . .” Thus, unless Fitzgerald III can show that (1) the tax collector failed to mail him notice of the sale and that he did not have actual notice of the sale one year after it was made, or (2) that the property was not by law liable to be sold to satisfy the tax, then the plain ti ffs’ proffer of the tax collector’s deed is prima facie evidence of their valid and unencumbered title to the subject property. See Associates Financial Services of America, Inc. v. Sorensen, 46 Conn. App. 721, 730, 700 A.2d 107 (1997), appeal dismissed, 245 Conn. 168, 710 A.2d 769 (1998).

Because it is undisputed that Fitzgerald, Jr., had, pursuant to Yordy, sufficient notice of the tax sale and did not establish at trial that any of the exceptions to § 12-159 were apphcable, unencumbered title to the property now lies with the plaintiffs as it did with the purchasers under the tax hen foreclosure proceedings in Ontario Land Co. v. Wilfong, 223 U.S. 543, 558-59, 32 S. Ct. 328, 56 L. Ed. 544 (1912). “Under the laws of the State a tax deed is prima facie evidence, not only of the validity of the deed and order under which the sale was made but also of the regularity of the prior proceedings.” Id., 558.

The judgment is reversed and the case is remanded with direction to quiet title to the land by rendering a judgment of ownership in the plaintiffs.

In this opinion the other judges concurred.

       The plaintiffs are Edward J. McGuire, who originally purchased the property in question as a trustee, and Robert B. Berger and Frank G. Santy. McGuire, as trustee, sold the property to himself, individually, and to Berger and Santy.

       The plaintiffs’ substitute complaint is in two counts: count one seeks to quiet title in the plaintiffs; count two seeks restitution from the defendant town of Enfield (town) if the plaintiffs are found not to own the property on which they have been paying taxes. Although the trial court rendered judgment as to only the first count of the plaintiffs’ complaint, that judgment is final pursuant to Practice Book § 61-3 because it disposed of all causes of action brought against the Fitzgerald defendants. See Turner v. Croman, 52 Conn. App. 445, 446, 726 A.2d 1168 (1999). Practice Book § 61-3 provides in relevant part: “A judgment disposing of only a part of a complaint . . . is a final judgment if that judgment disposes of all causes of action in that complaint . . . brought by or against a particular party or parties. . . .” Although it is named as a defendant in count two only, the town participated in the trial of count one because it was affected directly by the resolution of the question of title. The defendant Safety Fund National Bank, which held amortgage on the land, appeared through counsel but did not participate in the trial.

       The land also has been held in the name of the defendant Shamrock Realty, which is controlled by Fitzgerald, Jr.

       The Fitzgeralds also did not pay taxes on the land on the grand lists of October 1, 1992, through and including October 1, 1996.

       General Statutes § 12-157, as in effect in 1991, was not amended until Public Acts 1995, No. 95-228, which took effect on July 6, 1995. General Statutes (Rev. to 1991) § 12-157 provides in relevant part: “Within one week after such sale, the collector shall execute a deed thereof to the purchaser or to the municipality conducting the sale and shall lodge the same in the office of the town clerk of such town, where it shall remain unrecorded one year from the date of such sale, and, if the delinquent taxpayer or any person interested in the estate, within such time, pays or tenders to the purchaser or to such municipality, as the case may be, the amount paid by him . . . such deed shall be delivered to the person paying or tendering the money who, if not the person whose primary duty it was to pay the tax, shall have a claim against the person whose primary duty it was to pay such tax for the amount so paid, and may add the same to any claim for which he has security upon the premises sold. If the purchase money and interest are not paid within such year, the deed shall be recorded and have full effect. Any municipality holding a lien for unpaid taxes on real estate, other than the municipality conducting the sale, may purchase such estate at a tax sale.1'

       General Statutes § 12-159, as in effect in 1991, was not amended until Public Acts 1995, No. 95-228, which took effect on July 6, 1995. General Statutes (Rev. to 1991) § 12-159 provides in relevant part: “Any deed, or the certified copy of the record of any deed, purporting to be executed by a tax collector . . . shall be prima facie evidence of a valid and unencumbered title in the grantee to the premises therein purported to be conveyed and of the existence and regularity of all votes and acts necessary to the validity of the tax therein referred to, as the same was assessed, and of the levy and sale therefor, and no tax collector shall be required to make return upon his warrant of his doings thereunder. No act done or omitted relative to the assessment or collection of a tax, including everything connected therewith, after the vote of the community laying the same, up to and including the final collection thereof or sale of property therefor, shall in any way affect or impair the validity of such tax as assessed, collected or sought to be collected or the validity of such sale, unless the person contesting such validity shows that such act done or omitted caused such tax to be greater than it would have been had a tax of the same per cent in favor of such community been in all respects legally assessed against the taxpayer, or did or would have put him to a greater expense in redeeming the property sold than if the same had been sold in all respects according to law, or that the collector neglected to mail to him the notice by law required, or to those with whom he is in privity of title, and who have a right to notice of such sale, and that he or they in fact did not know of such sale within one year after it was made, provided such property was by law liable to be sold to satisfy such tax; but the fact that the collector charged or received illegal fees upon such sale shall in no wise impair its validity, unless the person contesting it shows that the taxpayer or someone interested in the property sold tendered the lawful tax, interest and fees to the collector before such sale, or the purchase money with interest, less the excessive fees, to the purchaser within one year after it was made.”

         In its cross appeal, (lie town claims that the trial court improperly concluded that the approval to subdivide the property into five lots was still valid and had not automatically terminated pursuant to General Statutes § 8-26c (d). Because we reverse the trial court’s judgment, we need not address the town’s cross appeal.

       See also Straus v. Foxworth, 231 U.S. 162, 34 S. Ct. 42, 58 L. Ed. 168 (1913); Ontario Land Co. v. Wilfong, 223 U.S. 543, 32 S. Ct. 328, 56 L. Ed. 544 (1912). The issue also has been decided by several of the federal Circuit Courts of Appeal and our sister states on numerous occasions subsequent to Yordy. See W.C. &A.N. Miller Development Co. v. Emig Properties Corp., 134 F.2d 36, 41 (D.C. Cir.), cert. denied, 318 U.S. 788, 63 S. Ct. 983, 87 L. Ed. 1155 (1943); George v. Mutual Investment & Agency Co., 284 F. 681, 685 (8th Cir. 1922); Warren v. Oregon & W.R. Co., 176 F. 336, 337 (9th Cir. 1910); Linn County v. Rozelle, 177 Or. 245, 257, 162 P.2d 150 (1945); SAC Downtown Ltd. Partnership v. Kahn, 123 Wash. 2d 197, 202-203, 867 P.2d 605 (1994) (en banc).

       The plaintiff claimed before the United States Supreme Court that sustaining the tax proceedings of the courts of the state of Washington would divest the plaintiff of its property without due process in contravention of the fourteenth amendment. Ontario Land Co. v. Yordy, supra, 212 U.S. 156.

       The trial court concluded that potential bidders at the tax sale should not have to investigate the land records and assessor’s records to find out what real property was included in the notice of tax sale published on October 5, 1992. We disagree.
      Ordinarily, whether notice is adequate is a question for the trier of fact and the question must be determined on the basis of the facts of the particular case. Ozmun v. Burns, 18 Conn. App. 677, 681, 559 A.2d 1143 (1989). The trial court, however, “must first determine whether, as a matter of law, a purported notice patently meets or fails to meet . . . the statutory requirements.” (Internal quotation marks omitted.) Id. In this case, we accept the facts as stipulated to and found by the trial court, but find as a matter of law those facts set forth an adequate notice of the property to be sold, especially to the delinquent taxpayer.
      General Statutes (Rev. to 1991) § 12-157 required only that the notice contain “the name of the taxpayer, the amount of the tax or taxes, a description of the property levied upon and the time and place of the sale . . . .” (Emphasis added.) The notice at issue here stated, “Property described as assessors map seventy-four, lot 251 Hazard Avenue” and, as a matter of law, complied with the requirements of § 12-157.
      We are aware that the legislature subsequently amended the statute in Public Acts 1995, No. 95-228, § 3, to provide that notice of a tax sale shall contain the “name of the taxpayer, a legal description of the real property, including the street address, upon which taxes are due, the amount of the tax or taxes due, including any interest and charges attributable to the property . . . .” (Emphasis added.) General Statutes (Rev. to 1997) § 12-157 (a). At the time of the sale in question, a legal description of the property was not required.