author: Spear, J.

text:
    Celestino Cabasquini v. Commissioner of Social Services
    (13730)
    Heiman, Spear and Hennessy, Js.

      Argued April 18
    decision released July 25, 1995

      Joanne Gibau, for the appellant (plaintiff).

      Jennifer C. Jaff assistant attorney general, with whom were Peter L. Brown, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant).
   Spear, J.

The plaintiff appeals from the judgment of the trial court affirming the defendant’s disbursement of a portion of the plaintiff’s retroactive social security income benefits to the city of New Haven. On appeal, the plaintiff asserts that the disbursement was improper because (1) the plaintiff’s written authorization for such disbursement, required by statute, had expired, and (2) the retroactive benefits were not disbursed within ten working days after the defendant received the benefit checks as required by statute. We disagree with both of the plaintiffs assertions and affirm the judgment of the trial court.

The pertinent facts are as follows. The plaintiff applied for supplemental security income disability benefits on October 29,1986. Whñe his application was pending, the plaintiff received interim assistance from the city of New Haven. The plaintiff signed a written authorization that permitted the Social Security Administration (SSA) to disburse the plaintiff's retroactive supplemental benefits to the defendant for the purpose of reimbursing the city for the interim assistance it had paid to the plaintiff. The trial court found that the authorization expired on July 15,1992. On January 5, 1993, the plaintiff received notice that he had been awarded supplemental benefits totaling $12,094.42 and that his initial retroactive supplemental benefit checks were being sent to the defendant for subsequent remittance to the city. The notice of award also advised the plaintiff that he had a right to appeal the decision of the SSA within sixty days if he disagreed with the amount sent to the state for interim assistance reimbursement. The plaintiff did not appeal.

After learning of the defendant’s receipt and subsequent disbursement of some of his benefits, the plaintiff filed a request for a fair hearing on December 9, 1992. The plaintiff claimed that the defendant was not entitled to reimburse the city because his written authorization had expired. Further, the plaintiff argued that because the defendant had failed to disburse the plaintiff’s supplemental benefits within the statutory ten day period, federal law mandated that the defendant remit the entire amount directly to him. A fair hearing was held on January 28, 1993.

The fair hearing officer concluded that the defendant properly reimbursed the city from the proceeds of the plaintiff’s retroactive supplemental benefits despite the expiration of the authorization and the lapse of the ten working day period for processing the checks. The plaintiff appealed this decision to the trial court. The trial court upheld the decision of the fair hearing officer, and this appeal ensued.

First, we note that our review of an administrative appeal is limited. Our Supreme Court has established a firm standard that is “ ‘appropriately deferential to agency decision making, yet goes beyond a mere judicial “rubber stamping” of an agency’s decisions.’ ” Connecticut Light & Power v. Dept. of Public Utilities Control, 219 Conn. 51, 57, 591 A.2d 1231 (1991); Wood- bury Water Co. v. Public Utilities Commission, 174 Conn. 258, 260, 386 A.2d 232 (1978). Courts will not substitute their judgment for that of the agency where substantial evidence exists on the record to support the agency’s decision, and where the record reflects that the agency followed appropriate procedures. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587, 628 A.2d 1286 (1993); Lieberman v. State Board of Labor Relations, 216 Conn. 253, 262, 579 A.2d 505 (1990); Baerst v. State Board of Education, 34 Conn. App. 567, 571, 642 A.2d 76, cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994).

I

The plaintiff first maintains that the expiration of his written authorization terminated the defendant’s right to remit a portion of his retroactive supplemental benefits to the city as reimbursement for the interim assistance it furnished to the plaintiff. The plaintiff principally relies on 42 U.S.C. § 1383 (g) (l) in support of his contention. Section 1383 (g) (1) requires written authorization from the recipient before the SSA may disburse benefit checks to the state for subsequent remittance to the municipality for reimbursement. Because the plaintiff’s authorization had expired at the time the defendant remitted a portion of the plaintiff’s supplemental benefits to the city, the plaintiff claims that the defendant violated § 1383. We disagree.

Federal statute 42 U.S.C. § 1383 (g) (1) and 20 C.F.R. § 416.19Q4 compel us to conclude that the plaintiff’s claim should have been asserted against the SSA, not the defendant. Under federal law, the burden is on the SSA, not the state, to ensure the presence of a valid written authorization. While § 1383 (g) (1) governs the need for written authorization before the initial disbursement of funds from the SSA to the state, the statute is silent concerning the need for such authorization before the state can subsequently remit funds to the municipality for reimbursement.

Section 416.1904 conclusively places the onus on the SSA, not the state, to confirm that a valid written authorization has been filed. That regulation states that the SSA can not “withhold [a recipient’s supplemental] benefit payment and send it to the State” until an authorization has been filed. As in § 1383 (g) (1), this regulation places no legal obligation on the defendant to ascertain whether the plaintiff has filed a valid authorization. Federal law, therefore, affords the plaintiff no relief against the defendant.

The plaintiff was fully informed of his right to appeal SSA’s decision to disburse his retroactive supplemental benefits to the defendant despite the expiration of his authorization. If the plaintiff believed that the expiration of his authorization necessitated that all retroactive benefit disbursements be paid directly to him, then the plaintiff should have exercised his right to appeal. Having failed to file a timely appeal, the plaintiff forfeited his right to challenge the decision of the SSA.

Connecticut statutes also militate against the plaintiff’s claim. General Statutes § 17b-128, which establishes the responsibilities of interim assistance recipients, directs that “[a]ny person who receives relief from any town or municipality of this state shall be liable to reimburse such town or municipality for any moneys or relief received.” Further, General Statutes § 17b-119 (a) (1) requires that the “full amount of any interim assistance reimbursement received by the state shall be applied to reduce any obligation owed to the town by such applicant or recipient.” These statutes require the defendant to reimburse the city from the proceeds of the plaintiff’s supplemental benefits.

II

The plaintiff next contends that the defendant’s failure to disburse his retroactive supplemental benefits to the city within ten working days violated 42 U.S.C. § 1383 (g) (4) (A) and 20 C.F.R. $ 416.1910 (b) (1). He argues that he is therefore entitled to receive the supplemental benefits in full.

No remedy is provided in the statutes or regulations for a violation of the ten day rule. In support of his claim, the plaintiff principally relies on Baez v. Bane, 159 Misc. 2d 838, 606 N.Y.S.2d 973 (1993). In Baez, the court focused on the repeated failure of the New York City department of social services “to comply with the legal requirements for reimbursement” under § 1383 (g) (4) (A). Baez v. Bane, supra, 845. The court reasoned that since the city had “repeatedly violated the time restraints statutorily imposed upon it,” the recipient was entitled to receive his entire supplemental benefits. Id., 847.

The decision in Baez is neither binding on us nor helpful in resolving the plaintiff’s claim. There, the court fashioned an appropriate remedy to address systematic and regular violations of the ten day requirement. Such misfeasance is not present here. The hearing officer found that the defendant delayed disbursement to the city principally because the defendant did not receive the necessary information from the SSA in a timely fashion. The plaintiff does not challenge this finding. Unlike the egregious mistakes in Baez, there is no evidence in this record showing any systematic and regular practices on the part of the defendant to violate the mandates of § 1383 (g) (4) (A) and 20 C.F.R. § 416.1910 (b) (1).

The plaintiff also relies on Rivers v. Schweiker, 523 F. Sup. 783 (S.D.N.Y. 1981), aff'd, 692 F.2d 871 (2d Cir. 1982), in support of his argument. The decision in Rivers, however, further militates against the plaintiff’s claim in this case. In Rivers, the plaintiff recipients of interim assistance challenged the practice of the New York City department of social services in delaying the processing of their supplemental benefit checks. Id., 785. While the trial court noted that “such delays are clearly forbidden by the federal, state and local regulations,” the court refused to grant the plaintiffs’ request to receive their supplemental benefits in full. Id., 789. The court ordered that the excess over the reimbursement amount be paid to recipients within the ten working day period. Id. On appeal, the Court of Appeals held that the trial court did not abuse its discretion in fashioning appropriate relief. Rivers v. Schweiker, 692 F.2d 871, 874 (2d Cir. 1982).

We conclude that the agency followed appropriate procedures in fashioning a remedy in this case. The hearing officer ordered the defendant to pay the plaintiff $1341.92 as the excess over the reimbursement owed to the city. This payment was ordered after the fair hearing officer determined that the reimbursement had been improperly calculated. Although the plaintiff asserts that he should have received all of the retroactive benefits because of the violation of the ten day rule, there is substantial evidence on the record in support of the agency’s decision to order only the excess over the reimbursement amount disbursed to the plaintiff.

The remedy that the plaintiff seeks frustrates the purpose underlying the program that provides interim assistance. The main purpose is to provide temporary support to those who qualify under state statute. Once a recipient receives federal assistance through the SSA, the state’s need to provide this support diminishes. Further, the clear and unambiguous language §§ 17b-128 and 17b-119 dictates that the state and its municipalities are entitled to reimbursement. This reimbursement covers any interim assistance they have provided where the recipient receives retroactive supplemental benefits for the same time period. These state statutes, read in conjunction with the federal statute and regulation, clearly preclude a recipient from receiving both interim assistance and retroactive supplemental benefits covering the same time period. To hold otherwise would permit a recipient to enjoy an unjustified windfall, which is a result inconsistent with the express language and the purpose of the law.

The judgment is affirmed.

In this opinion the other judges concurred.

       Title 42 of the United States Code § 1383 (g) (1) provides in pertinent part: “[T]he Secretary may, upon written authorization by an individual, withhold benefits due with respect to that individual and may pay to a State . . . from the benefits withheld an amount sufficient to reimburse the State (or political subdivision) for interim assistance furnished on behalf of the individual by the State (or political subdivision).”

       Title 42 of the United States Code § 1383 (g) (4) (A) provides in pertinent part: “[I]f the Secretary makes payment to the State ... in reimbursement for interim assistance ... for any individual in an amount greater than the reimbursable amount . . . the State . . . shall pay to the individual the balance of such payment in excess of the reimbursable amount as expeditiously as possible, but in any event within ten working days or a shorter period specified in the agreement . . . .”

       The plaintiff received general assistance benefits from the city from December 1, 1985 through September 30, 1991.

       The authorization was valid for one year from the date it was received by the department of income maintenance. The date of receipt was July 15, 1991.

       The defendant received the plaintiffs benefit checks from the SSA on November 9 and December 7,1992. On December 4 and December 15,1992, the defendant remitted the funds to the city for reimbursement.

       The fair hearing was filed pursuant to General Statutes (Rev. to 1993) § 17-2a (now § 17b-60).

       See footnote 1.

       The parties do not dispute that the plaintiffs written authorization expired on July 15,1992, months before the defendant processed the plaintiff’s retroactive benefit checks.

       Section 416.1904 of 20 C.F.R. provides in pertinent part: “We may withhold your [supplemental] benefit payment and send it to the State to repay the State for the interim assistance it gave to you, if . . . [y]our authorization is in effect at the time we make the [supplemental] benefit payment.”

       See footnote 2.

       Section 416.1910 (b) of 20 C.F.R. provides in pertinent part: “The State must agree that, if we repay it an amount greater than the amount of interim assistance it gave to you, the State will . . . [p]ay the excess amount to you no later than 10 working days from the date the State receives repayment from us . . . .”

       The plaintiff also relies on the department of income maintenance general assistance policy manual. The manual dictates that “[a]ll funds remaining after the tenth working day must be paid directly to the claimant.” General Assistance Policy Manual (1991) e. Ill, § XXV (b) (3). The fair hearing officer correctly concluded, however, that this mandate conflicted with General Statutes § 17-273c that entitles a municipality to receive reimbursement for the interim assistance it furnishes to a supplemental benefits recipient. The plaintiff cites no authority for the proposition that where state statute and state departmental policy conflict, the policy supersedes, and we find none.


source: Caselaw Access Project

author: Schaller, J.

license: Public Domain

text:
    State of Connecticut v. Charles Coleman
    (12812)
    Schaller, Spear and Hennessy, Js.
    Argued May 23
    decision released July 25, 1995

      Temmy Ann Pieszak, assistant public defender, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction of burglary in the first degree in violation of General Statutes § 53a-101 (a) (l), burglary in the second degree in violation of General Statutes § 53a-102, unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), and robbery in the third degree in violation of General Statutes § 53a-136 (a). The dispositive issue on appeal is whether the destruction of certain evidence deprived the defendant of his right to due process of law under article first, § 8, of the Connecticut constitution. We remand the case to the trial court with direction to reconsider the defendant’s motion to dismiss in light of State v. Morales, 232 Conn. 707, 657 A.2d 585 (1995).

The following facts are relevant to our disposition of this appeal. On August 12,1986, the defendant was arraigned on seven charges stemming from a burglary, robbery and repeated sexual assaults that occurred in the early morning of March 4,1986. An agreement was reached in which the defendant pleaded guilty under the Alford doctrine to the charges, as well as other charges from eight other files. Prior to sentencing, the defendant sought to withdraw all of his pleas. The trial court allowed the defendant to withdraw his plea on one count from another file, but denied his motion to withdraw his pleas in this case. The defendant was sentenced to thirty-five years in prison on all charges from all nine files.

On appeal, we affirmed the trial court’s refusal to allow the defendant to withdraw his plea. State v. Coleman, 17 Conn. App. 307, 552 A.2d 442 (1989). Subsequently, the defendant filed a petition for habeas corpus relief in federal court claiming that his plea canvass was defective. The United States District Court for the District of Connecticut vacated the defendant’s pleas and remanded the matter for trial. After that decision, on February 19, 1992, the New Haven police department destroyed several pieces of evidence from the case. The destruction of that evidence was carried out pursuant to a court order dated June 6, 1990. A sex crime kit, which was not included on the list was erroneously destroyed. The kit contained physical evidence pertinent to the sexual assault. The United States Court of Appeals for the Second Circuit subsequently affirmed the decision of the District Court.

After pleading not guilty to all counts, the defendant elected to be tried by the court. The defendant requested that the sex crime kit be made available for DNA testing. When the state revealed that the kit had been erroneously destroyed, the defendant moved to suppress any test results and information regarding the testing of items in the kit, and to dismiss the charges on the basis of the state’s destruction of potentially exculpatory physical evidence. The motions were denied. The trial court found the defendant guilty on seven of the eight counts as charged. On the other count, the court found the defendant guilty of the lesser included offense of burglary in the second degree. The defendant received an effective sentence of 110 years in prison.

The defendant claims that the trial court improperly denied his motion to dismiss, which he based on the state’s destruction of physical evidence, thereby depriving him of due process of law. We do not reach this issue, however, because we remand the case to the trial court to reconsider the defendant’s motion to dismiss in light of State v. Morales, supra, 232 Conn. 707.

When the defendant moved to dismiss on the basis of the state’s destruction of the sex crime kit, the trial court applied the bad faith test under State v. Leroux, 18 Conn. App. 223, 227, 557 A.2d 1271 (1989), cert. denied, 212 Conn. 809, 564 A.2d 1072. The trial court stated: “The court finds that the police in destroying the sex crimes kit did not act vindictively, or in bad faith, but acted on the basis that there had been a court order to destroy inventoried items including the sex crimes kit and acted in accordance with that belief.” The trial court concluded that there was no bad faith on the part of the police in destroying the evidence, and thus denied the motion to dismiss.

Subsequent to the trial court’s decision, our Supreme Court decided State v. Morales, supra, 232 Conn. 707. The Morales court rejected the federal bad faith test as enunciated in Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), and instead adopted the Asherman balancing test of State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), as the appropriate standard under the state constitution in assessing whether a defendant is deprived of a fair trial by the loss or destruction of evidence. State v. Morales, supra, 726-27.

The Supreme Court held that “in determining whether a defendant has been afforded due process of law under the state constitution, the trial court must employ the Asherman balancing test, weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused. More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: ‘the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.’ State v. Asherman, supra, 193 Conn. 724.” State v. Morales, supra, 232 Conn. 726-27.

The Morales decision applies to this case. A new constitutional rule applies to any case pending on direct appeal at the time the new rule is announced. Griffith v. Kentucky, 479 U.S. 314, 322-23, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987); Johnson v. Warden, 218 Conn. 791, 797, 591 A.2d 407 (1991). “[F]ailure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.” Griffith v. Kentucky, supra, 322.

Our Supreme Court announced a new rule under our state constitution when it declared that the Asherman balancing test must be used in cases involving a claim of violation of due process because of the loss or destruction of physical evidence. Because direct review is pending as to the defendant, it is mandated that the new rule be applied in this case. Id.

There is no doubt that the trial court applied the federal bad faith test in finding that “the police in destroying the sex crimes kit did not act vindictively, or in bad faith . . . .” A ruling cannot stand if it “ Tnvolve[s] the application of some erroneous rule of law material to the case.’ ” Morris v. Costa, 174 Conn. 592, 597, 392 A.2d 468 (1978). Because the bad faith test applied by the trial court was later determined by the Supreme Court to be inappropriate, we conclude that this case must be remanded to the trial court so that the Asher-man balancing test as required by Morales can be applied.

Because the outcome on remand, which could result in dismissal, is not predictable, we do not address any of the other claims.

The case is remanded for further proceedings to reconsider the defendant’s motion to dismiss by applying the appropriate balancing test in light of State v. Morales, supra, 232 Conn. 707.

In this opinion the other judges concurred.

       General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument . . . .”

       General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”

       General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes § 53a-136 (a) provides: “A person is guilty of robbery in the third degree when he commits robbery as defined in section 53a-133.” General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       Under the federal standard, due process is not violated unless the police act in “bad faith,” i.e., had “ ‘knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.’ ” State v. Leroux, supra, 18 Conn. App. 227.


text:
    State of Connecticut v. Clint Pickering
    (13975)
    Schaller, Spear and Hennessy, Js.

      Argued May 22
    decision released July 25, 1995

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

      Michele C. Lukban, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Joseph Valdes, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempt to distribute narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a-49 (a) (2) and 21a-278 (b), conspiracy to commit the sale of narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (b), and possession of a narcotic substance in violation of General Statutes § 21a-279 (a). The defendant claims that the trial court improperly (1) allowed the state to file an amended substitute information after jury selection and (2) admitted into evidence a gun possessed by a charged coconspirator. We affirm the judgment of the trial court.

The following facts are relevant to our disposition of this appeal. On March 11,1993, an informant, Eric Rivera, placed a telephone call to a beeper number to arrange for the delivery of four ounces of cocaine. Rivera placed this call under the supervision of Sergeant Eric Smith of the Connecticut state police from the parking lot of the McDonald’s restaurant on Weston Street in Hartford.

An unidentified man then telephoned Rivera and arranged to meet him in the McDonald’s parking lot. Shortly thereafter, the defendant, the defendant’s brother Clement Pickering and a third person arrived at the parking lot in a white Pontiac. The defendant spoke with Rivera, arranged to return in a few minutes with four ounces of cocaine and then left with his brother and the third person.

Approximately fifteen or twenty minutes later, the white car returned to the parking lot followed by a blue Ford Mustang. There were two people in each car. The defendant was in the white car and his brother was driving the blue car. The two cars stopped in the parking lot, and the occupants conversed. The cars then parked near each other. The defendant’s brother parked the blue car in a position from which he could observe the white car and its occupants.

When police officers approached the parked cars, the defendant attempted to flee. As the defendant ran, he threw away four ounces of cocaine and $1259, which the police later recovered. The police also seized a beeper from the defendant’s person. The defendant’s brother remained in the blue car and hid a loaded gun under the front passenger seat. Police seized the gun, $737, a $101 bank check, a cellular telephone, and drugs from the blue car. Police also seized a beeper from the defendant’s brother.

On June 9, 1994, the state filed a substitute information charging in the second count that an unknown male conspirator “returned a phone call to Trooper Smith, agreeing to deliver a quantity of cocaine at McDonald’s restaurant.” The second count further alleged that the defendant, the defendant’s brother, and Antoinette Little entered the McDonald’s parking lot shortly thereafter and spoke to Smith. Finally, the second count alleged that the defendant and Little “approached Trooper Smith” when they returned to the parking lot.

The trial court put the defendant to plea on this substitute information. The defendant entered pleas of not guilty and elected a jury trial. Jury selection began on June 9 and concluded on June 15, 1994.

On June 21,1994, the state filed an amended substitute information against the defendant. The second count of the amended substitute information replaced the name of Trooper Smith with the name of Eric Rivera as the individual whom the defendant called on the telephone and spoke to in the parking lot. The second count of the amended substitute information also changed the description of the defendant’s activities from “approached Trooper Smith” to “attempted to deliver the cocaine.”

After overruling the defendant’s objection to the state’s amended substitute information, the trial court asked the defendant if he needed a continuance. The defendant stated that he did not need a continuance. On June 21,1994, the presentation of evidence began.

I

The defendant claims that the trial court improperly allowed the state to file an amended substitute information after the jury had been selected, in contravention of Practice Book § 624. That section provides in pertinent part: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting attorney to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. . . ."

Practice Book § 624 requires that the state show: “(1) good cause for the amendment; (2) that no additional or different offense is charged; and (3) that no substantive right of the defendant will be prejudiced.” State v. Tanzella, 226 Conn. 601, 614, 628 A.2d 973 (1993). The defendant’s sole contention is that the allowance of the amended substitute information prejudiced his substantive right.

We first consider the state’s argument that the defendant failed to raise the claim at trial with sufficient clarity to alert the trial court to the claim now raised on appeal. “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial . . . .” Practice Book § 4185. We must examine the record to discern whether the defendant raised the issue in question at trial. State v. Zollo, 36 Conn. App. 718, 726, 654 A.2d 359 (1995).

In this case, the defendant objected to the admission of the amended substitute information on the ground that the admission infringed on his substantive right to notice of the offenses charged. Moreover, counsel argued that he relied on the facts of the original substitute information when he conducted voir dire of the jury. Counsel specifically pointed out to the trial court that he had used the voir dire to examine the prospective jurors with regard to racial bias and prejudice. We conclude that the record indicates that counsel preserved the defendant’s claim that his substantive right to conduct an effective voir dire was prejudiced.

We turn, therefore, to the merits of the defendant’s claim. “Practice Book § 624 is primarily designed as a notice provision. Its purpose is to ensure that the defendant has adequate notice of the charges against which he must defend.” State v. Tanzella, supra, 226 Conn. 608, citing State v. Jacobowitz, 182 Conn. 585, 590, 438 A.2d 792 (1981). “The voir dire process is ‘ “an integral part” of the criminal trial . . . .’ ” State v. Cole, 8 Conn. App. 545, 551, 513 A.2d 752 (1986), quoting State v. Gethers, 197 Conn. 369, 375-76, 497 A.2d 408 (1985). For the purposes of Practice Book § 624, “a criminal trial begins with the voir dire of the prospective jurors.” State v. Cole, supra, 551-52. The defendant, therefore, “needs to know the nature of the accusations against him in order to question jurors effectively.” State v. Tanzella, supra, 608, citing State v. Cole, supra, 551.

In this case, the defendant claims that the amended substitute information prejudiced his substantive right to conduct an effective voir dire. In support of his claim, the defendant argues that he relied on the detailed factual allegations made by the state in the original substitute information when he conducted the voir dire. The defendant concludes, therefore, that the original substitute information did not provide adequate notice of the offenses charged because of the factual differences in the amended substitute information. We do not agree. The trial court acted properly within its discretion in permitting the amendment.

Our Supreme Court has held that Practice Book § 624 does not prohibit the state from amending the factual allegations of a charge even after closing arguments. State v. Anderson, 211 Conn. 18, 32, 557 A.2d 917 (1989). In Anderson, the Supreme Court upheld the trial court’s ruling that the state could amend its bill of particulars to allege attempted anal intercourse rather than attempted oral intercourse. Id., 30, 32. Likewise, this court has permitted the state to amend a bill of particulars so as to delete the word “kick” from the allegation of the specific ways in which the defendant committed the crime charged. State v. Cunningham, 3 Conn. App. 353, 358, 488 A.2d 834 (1985).

In this case, the amended substitute information alleged that an informant, Rivera, rather than a state trooper, Smith, telephoned a beeper number and met with the defendant in a McDonald’s parking lot. The amended substitute information also changed the description of the defendant’s activities from “approached Trooper Smith” to “attempted to deliver cocaine.” These factual amendments are not distinguishable from those in State v. Anderson, supra, 211 Conn. 32, and State v. Cunningham, supra, 3 Conn. App. 358.

The defendant relies on this court’s ruling in State v. DesLaurier, 32 Conn. App. 553, 630 A.2d 119 (1993), aff’d, 230 Conn. 572, 646 A.2d 108 (1994), for support. In DesLaurier, we held that a defendant’s substantive right to an effective voir dire is prejudiced if the state is permitted to add drug charges after voir dire has begun. Id., 558. We stated: “Obviously, defense counsel would not have examined the prospective jurors to uncover possible bias or prejudice concerning drug crimes and the entire voir dire would be severely impaired if not completely emasculated.” Id.

DesLaurier stands for the proposition that no new or additional charges may be brought against the defendant after commencement of the trial. See State v. Cole, supra, 8 Conn. App. 550-52. DesLaurier does not, however, create a right to examine prospective jurors for possible bias or prejudice concerning each aspect of the factual scenario alleged in the information. “ ‘ “A party has no right to assume the facts of a case about to go on trial, and ascertain a juror’s opinion in advance.” ’ ” State v. Anthony, 172 Conn. 172, 176, 374 A.2d 156 (1976); State v. Clark, 164 Conn. 224, 226, 319 A.2d 398 (1973); F. Busch, Law and Tactics in Jury Trials (1959) § 82. We conclude that the defendant had adequate notice of the offenses charged and the amended substitute information did not cause the defendant’s substantive rights to be prejudiced.

II

The defendant next claims that the trial court improperly admitted into evidence a gun possessed by a charged coconspirator. The defendant claims that, because no evidence connected the seized gun to the defendant, the gun is not relevant. The defendant further contends that, even if the gun is relevant, the prejudice caused by its admission outweighs its probative value. We disagree with the defendant’s claim.

The determination of relevance is left to the broad discretion of the trial court. State v. Sauris, 227 Conn. 389, 407, 631 A.2d 238 (1993); State v. Greene, 209 Conn. 458, 478, 551 A.2d 1231 (1988). Evidence can be found relevant if it may reasonably be construed “to establish a fact in issue or to corroborate other direct evidence in the case.” (Internal quotation marks omitted.) State v. Greene, supra, 477. We will defer to the trial court’s finding unless there has been a clear abuse of discretion. State v. Sauris, supra, 407. Our Supreme Court has held that a gun may be relevant to the issue of intent to sell narcotics. State v. Delossantos, 211 Conn. 258, 280-81, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); State v. Avila, 166 Conn. 569, 580, 353 A.2d 777 (1974).

In this case, the state presented evidence that the defendant and his brother initially arrived at the McDonald’s parking lot in a white Pontiac. The defendant spoke with Rivera, arranged to return in a few minutes with four ounces of cocaine, and then left with his brother. Approximately fifteen or twenty minutes later, the defendant returned to the parking lot in the white car followed by a blue Ford Mustang driven by Ms brother. In the parking lot, the two cars stopped and the occupants conversed. The cars then parked in a position from which the defendant’s brother could observe the white car and its occupants. When officers approached the parked cars, the defendant attempted to flee. The defendant’s brother remained in the blue car and hid a loaded gun under the front passenger seat. Police seized the gun from the blue car. From these facts the trial court could have determined that the gun seized from the blue car was relevant to the charges against the defendant.

This case can be distingmshed from our recent decision in State v. Mozell, 36 Conn. App. 672, 652 A.2d 1060 (1995), where we found that “the defendant was never alleged or shown to be in possession of the gun. Nor was the gun alleged or shown to be involved in any of the activities observed by the surveillance team.” Id., 677. We concluded, therefore, that the trial court abused its discretion in admitting the gun into evidence. Id. Where, as in this case, the gun is shown to be involved in the offense charged by reason of being in the possession of a charged coconspirator, the trial court will not be found to have abused its discretion in admitting the gun into evidence. State v. Lee, 30 Conn. App. 470, 489, 620 A.2d 1303 (1993) (presence of firearms at defendant’s residence factor tending to show that defendant kept firearms in connection with attempted distribution of marijuana).

Finally, the defendant claims that, even if the gun is relevant, the prejudice caused by its admission outweighs its probative value. Specifically, the defendant claims that the gun’s admission unduly aroused the jury’s interest and created a side issue that distracted the jury. Resolution of these determinations is left to the sound discretion of the trial court judge. State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980). The defendant has failed to demonstrate how the admission of the gun unduly aroused the jurors’ hostility or sympathy. The state had already introduced testimony that a gun had been found in the blue car. The admission of the gun itself, therefore, merely amounted to cumulative evidence. Moreover, the admission of the gun did not create a side issue because it corroborated testimony that a gun was found. See State v. Greene, supra, 209 Conn. 479. The balancing of the prejudicial effect of this evidence fell within the bounds of the trial court’s discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 provides in pertinent part; “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 21a-278 provides in pertinent part: “(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance . . . except as authorized in this chapter, and who is not at the time of such action a drug-dependent person . . . shall be imprisoned . . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 21a-279 provides in pertinent part: “(a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter . . . may be imprisoned. . . .”

       The defendant also argued in Ms brief that the state lacked good cause for the amendment, but withdrew this issue at oral argument. The state had claimed that it learned of the informant Rivera’s participation on the eve of trial and after jury selection.

       In Anderson, the Supreme Court specifically ruled on the amendment of a bill of particulars. The court noted, however, that Practice Book § 624 applied equally to informations and bills of particulars. State v. Anderson, supra, 211 Conn. 29-30 n.13.

       In State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982), our Supreme Court outlined the following four situations where prejudice to the defendant could outweigh the probative value of evidence: “(1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” The defendant in this case appears to be claiming that the first two of these situations occurred in this case.


author: Heiman, J.

text:
    Arthur J. Mulligan v. Robert Rioux et al.
    (14172)
    Foti, Heiman and Hennessy, Js.

      Argued May 26
    decision released July 25, 1995

      Joseph A. La Bella, with whom was JohnF. Scully, and, on the brief, John T. Scully, for the appellant (plaintiff).

      John B. Farley, for the appellees (defendants).
   Heiman, J.

The plaintiff appeals from the judgment of the trial court setting aside the jury verdict in his favor as excessive as a matter of law. On appeal, the plaintiff claims that the trial court improperly set aside the verdict on the basis of an improper finding that the plaintiff did not produce sufficient evidence of lost earning capacity. We agree with the plaintiff and reverse the judgment of the trial court.

The following facts are necessary for the resolution of this appeal. In the fall of 1985, the plaintiff was finishing his seventeen year career as the director of the department of public works for the town of East Hartford. On October 28, 1985, four days before his planned retirement, the plaintiff was arrested and charged with violating an East Hartford town bidding ordinance. The warrant that provided a basis for the plaintiff’s arrest was prepared by the defendants, Detective Robert Rioux and Detective Gerald Myers, and contained allegations that the plaintiff had continued a contract for lubrication services from Automatic Lubrication after the contract had terminated and without putting it out to bid. On November 19, 1985, the plaintiff was arrested for a second time, again on the basis of a warrant prepared by the defendants. The November 19 arrest resulted in twelve charges against the plaintiff for allegedly receiving bribes from Automatic Lubrication in the form of twelve rounds of golf at the Blackledge Country Club. The plaintiff’s arrests were reported in various local newspapers and featured on local news on television.

On February 20,1987, the plaintiff was acquitted of all charges against him. Thereafter, in September, 1987, the plaintiff instituted a civil action against the defendants alleging malicious prosecution and a violation of his federal civil rights pursuant to 42 U.S.C. § 1983 based on both arrests. In his complaint, the plaintiff alleged that (1) the defendants had failed to investigate properly the charges relating to both arrests and had submitted an affidavit in support of both arrests that contained numerous false and inaccurate statements, (2) the arrests were made without probable cause and with malice, and (3) as a result, the plaintiff had received “massive amounts of unfavorable publicity,” greatly damaging his reputation, and had experienced humiliation, disgrace and mental anguish.

At trial, the plaintiff introduced evidence on the issue of damages that his reputation had been destroyed as a result of the arrests and that he and his family had suffered both physically and mentally. The plaintiffs wife testified that the plaintiff had difficulty eating and sleeping after the arrests. Other evidence established that the plaintiff became withdrawn and mistrusting of people and that his self-esteem was severely damaged.

In addition to the alleged intangible injuries, the plaintiff introduced evidence concerning his claim for lost earning capacity. Evidence was introduced that the plaintiff had planned to work in the private sector after he retired from public office, but those plans collapsed due to his damaged reputation. He testified that his goal was to achieve financial security for himself and his wife and that he was willing to work as many hours as necessary to achieve that goal. The plaintiff introduced evidence that his annual salary with the department of public works was $48,000 plus benefits and that he could make more in the private sector. Specifically, he testified as to two employment opportunities that he considered pursuing after his retirement. The first was a company started by the plaintiff and two colleagues, James Fitzgerald and Eugene Paganetti. The plaintiff was not active in the corporation while in public office, but planned to join and act as a manufacturers representative upon his retirement. The business, however, collapsed after the arrests because of the damage to the plaintiffs reputation and credibility. The second was an opportunity with David Hanlon of DRJ Associates. Hanlon testified that he spoke with the plaintiff in the early fall of 1985 about representing engineers and contractors seeking business with Connecticut state and municipal governments. Hanlon testified that the plaintiff would have been ideal for the job because of his credibility and his valuable professional and political ties in Connecticut and that he could have earned between 4 and 8 percent of the company’s gross sales in Connecticut, depending on the level of involvement that the plaintiff chose. Gross sales in Connecticut at the time were approximately $1.5 million.

At the close of the evidence, the trial court instructed the jury that if it found for the plaintiff it would have to consider the issue of damages. The jury was informed that “[djamages for malicious prosecution are not limited to easily determined special damages such as attorney’s fees or loss of time from work. . . . Damages are also designed to compensate for intangible injuries such as mental anguish, humiliation, embarrassment, mortification, shame, fear, and damage to reputation.” The jury returned a general verdict for the plaintiff on all counts of his complaint and awarded him damages totaling $974,000.

The defendants moved the trial court to set aside the jury’s verdict and for judgment notwithstanding the verdict, claiming, inter alia, that the defendants were protected from liability under the doctrine of qualified immunity and that the verdict was excessive as a matter of law. The trial court concluded that the defendants were entitled to qualified immunity, set aside the verdict of the jury, and rendered judgment for the defendants on all counts of the plaintiff’s complaint.

The plaintiff, thereafter, appealed to this court and the appeal was transferred to the Supreme Court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). Our Supreme Court reversed the judgment of the trial court, finding that the trial court applied the incorrect standard of qualified immunity to the plaintiff’s common law claims and had improperly substituted its judgment for that of the jury on factual issues relating to the plaintiff’s civil rights claim. Mulligan v. Rioux, 229 Conn. 716, 726-38, 643 A.2d 1226 (1994). Although the Supreme Court’s reversal reinstated the verdict, it remanded the case to the trial court for a determination of the defendants’ claim that the verdict was excessive as a matter of law and based on inadmissible evidence of lost earning capacity. Id., 752.

On remand, the trial court found that the evidence before the jury on the issue of lost earning capacity established that the plaintiff intended to do only part-time work after his retirement from the department of public works. The trial court did not find the evidence presented by Hanlon to be inadmissible, but stated that Hanlon’s testimony “did not provide a basis for the jury putting a dollar amount on lost earning capacity from that source.” The trial court, therefore, concluded that the evidence produced by the plaintiff in support of his claim for lost earning capacity was too speculative to support the jury’s verdict. The trial court set aside the verdict and ordered that a new hearing in damages be held. This appeal followed.

In determining whether to set aside a verdict, “[t]he size of the verdict alone does not determine whether it is excessive. The only practical test to apply to this verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. . . . [T]he court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict.” (Citation omitted; internal quotation marks omitted.) Bartholomew v. Schweizer, 217 Conn. 671, 687, 587 A.2d 1014 (1991); see also Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988).

On appeal, our standard of review of a trial court’s decision to grant or deny a motion to set aside a verdict as excessive as a matter of law is whether the trial court abused its discretion. Mulligan v. Rioux, supra, 229 Conn. 753; Oakes v. New England Dairies, Inc., 219 Conn. 1, 14, 591 A.2d 1261 (1991). In conducting this review, we are, however, guided by the principle that the right to have the issue of damages determined by a jury is “one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court.” (Internal quotation marks omitted.) Mather v. Griffin Hospital, supra, 207 Conn. 138.

We agree with the plaintiff that the trial court abused its discretion in setting aside the verdict because the jury had before it sufficient evidence to determine the plaintiff’s lost earning capacity when that evidence is viewed in the light most favorable to the plaintiff. See Bartholomew v. Schweizer, supra, 217 Conn. 687. In order to recover damages for lost earning capacity, the plaintiff was required to present sufficient evidence to “establish a reasonable probability that his injury did bring about a loss of earnings, and must afford a basis for a reasonable estimate by the trier ... of the amount of that loss. . . . The evidence must be of such certainty as the nature of the particular case may permit. The plaintiff must lay a foundation which will enable the trier to make a fair and reasonable estimate.” (Citation omitted; internal quotation marks omitted.) Berndston v. Annino, 177 Conn. 41, 46-47, 411 A.2d 36 (1979). The evidence produced by the plaintiff was sufficient for the jury to make such a determination.

Although the trial court found that the evidence established only that the plaintiff was willing to work part-time after his retirement, the jury had before it evidence that the plaintiff wanted to achieve financial security for him and his wife and that he was willing to work as many hours as necessary to achieve that goal. “It was for the jury to evaluate the credibility of the witnesses and the weight to be accorded the evidence.” Mather v. Griffin Hospital, supra, 207 Conn. 144. In addition, Hanlon’s testimony gave the jury a range of compensation that the plaintiff could have earned if he had been able to take the job at DRJ Associates. It was within the province of the jury to credit the plaintiff’s testimony regarding the amount of time he was willing to work and to consider that evidence with the testimony of Hanlon to arrive at a dollar amount representing a “fair and reasonable estimate” of lost earning capacity. See id. The jury also had before it evidence that the plaintiff was earning a salary of $48,000 per year, plus benefits, before his retirement. Such evidence could also properly be considered by the jury to arrive at an adequate measure of lost earning capacity. Chase v. Fitzgerald, 132 Conn. 461, 469, 45 A.2d 789 (1946). The jury, therefore, had sufficient evidence before it to make a fair and reasonable estimate of the plaintiff’s damages for lost earning capacity and the trial court improperly set aside the jury’s verdict on that basis.

We note also that even if the plaintiff were unable to establish damages for lost earning capacity, that would not have been sufficient to set aside the verdict. As we have said, the only practical test to apply when considering a motion to set aside a verdict as excessive as a matter of law is whether it “so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.” Bartholomew v. Schweizer, supra, 217 Conn. 687. The trial court failed to apply this test when it set aside the verdict solely on the basis of its determination that the claim for damages for lost earning capacity was too speculative to support the jury’s verdict. The trial court properly instructed the jury that an award of damages included not only special damages such as attorney’s fees, loss of time from work and lost earning capacity, but also “intangible injuries such as mental anguish, humiliation, embarrassment, mortification, shame, fear, and damages to reputation.” A failure to establish damages for lost earning capacity would not necessarily require that the jury’s verdict be set aside as excessive because that is only one of many components making up the jury’s award.

The judgment is reversed and the case is remanded with direction to reinstate the verdict of $974,000 in favor of the plaintiff and to render judgment in accordance with the verdict.

In this opinion the other judges concurred.

       The plaintiff was charged specifically with acting in violation of chapter 10, article 2, § 10-5 of the code of ordinances of the town of East Hartford. That section provides in pertinent part: “All single purchases and contracts, other than professional services for which the requirement of competitive bidding would not be to the Town’s advantage, in which the amount of expenditure is estimated to exceed Two Thousand Five Hundred Dollars ($2500), shall be made from or let by sealed bids. However, all purchases less than Two Thousand Five Hundred Dollars ($2500), but more than One Thousand Five Hundred Dollars ($1500), shall be substantiated by three (3) quotations which shall be held as a permanent record for audit and public inspection.”

         The town of East Hartford was also named as a defendant in this case and conceded liability for the actions of Rioux and Myers. See General Statutes §§ 7-101a and 7-465.

       Title 42 of the United States Code § 1983 (1988) provides in pertinent part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory 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. . . .”

       “The plaintiff alleged, inter alia, that in the affidavits in support of each arrest the defendants had: (1) falsely and inaccurately stated that the department’s lubrication services contract with Automatic Lubrication (contract) was fixed for one year; (2) failed to disclose that the contract was a continuing contract that could be terminated by either the department or Automatic Lubrication; and (3) falsely and inaccurately stated that it was the plaintiff’s responsibility to put the contract out to bid. Specifically with respect to the affidavit in support of the October 28 arrest, the plaintiff alleged that the defendants had: (1) provided a false and misleading account of the plaintiffs testimony at a meeting of the town council’s audit and investigations committee, held for the purpose of investigating the criteria for running the lubrication service, by selectively editing the plaintiff’s testimony and by failing to include the plaintiff’s complete responses to the committee’s questions; and (2) falsely and inaccurately stated that the plaintiff, having the responsibility to put the contract out to bid, had failed to do so by his own admission. Finally, with respect to the affidavit in support of the November 19 arrest, the plaintiff alleged that the defendants had failed to disclose that on eight of the twelve occasions that the plaintiff had played golf at Blackledge Country Club, his round had been neither charged to nor paid for by Automatic Lubrication.” Mulligan v. Rioitx, 229 Conn. 716, 723 n.ll, 643 A.2d 1226 (1994).

       The Supreme Court also rejected all of the defendants’ alternative grounds for affirmance. Mulligan v. Rioux, supra, 229 Conn. 738-52.


author: Landau, J.

text:
    Middlesex Mutual Assurance Company v. Edward Clinton et al.
    (13428)
    Landau, Schaller and Spear, Js.

      Argued March 21
    decision released August 1, 1995

      Judith Clinton, pro se, the appellant (defendant Judith Clinton).

      Joel J. Rottner, with whom was Barbara Sacks, for the appellee (plaintiff).
   Landau, J.

The defendant Judith Clinton appeals from the judgment of the trial court ordering her to proceed with an appraisal. She claims that the. trial court (1) did not have jurisdiction to consider the plaintiff’s application to compel the appraisal and (2) improperly granted the application to compel the appraisal because (a) the court failed to consider the rights of the parties, (b) General Statutes §§ 52-410 and 52-411 provide statutory relief only for an aggrieved insured, not an insurer, and (c) the plaintiff presented no evidence of an appraisal agreement or of a dispute as to the value of the loss.

The following facts are relevant to our consideration of the defendant’s claims. On April 21, 1993, Edward Clinton and Judith Clinton suffered a loss by fire at premises owned by them and insured by the plaintiff under a homeowner’s policy. After the parties were unable to agree as to the value of the loss, the plaintiff appointed an appraiser pursuant to an appraisal clause in the insurance policy. After the Clintons failed to appoint an appraiser, they were served with an application for an order to proceed with an appraisal and for the appointment of an appraiser pursuant to §§ 52-410 and 52-411. The trial court conducted a hearing on the plaintiff’s application and, on March 8,1994, granted the application and ordered the Clintons to proceed to appraisal. This appeal by the defendant followed.

I

The defendant first challenges the trial court’s authority to have heard the plaintiff’s application to compel appraisal. Specifically, she argues that the court lacked jurisdiction because (1) the plaintiff filed its application on Form JD-CV-1, which Practice Book § 49 excludes from use in matters pertaining to arbitration, (2) the plaintiff failed to make a proper appearance, (3) the plaintiff changed the return date on the original writ from March 1,1994, to March 8,1994, before the writ was served on the defendant, (4) the plaintiff included a recognizance in its application, (5) the plaintiff failed to attach a copy of the arbitration agreement to its application as an exhibit, (6) a contract of appraisal does not grant the trial court power to appoint an arbitrator or to order arbitration and (7) the plaintiff failed to achieve personal service on all the defendants. We will consider the defendant’s arguments seriatim.

A

The defendant first argues that the trial court lacked jurisdiction because the plaintiff filed its application to compel appraisal on Form JD-CV-1. She asserts that Practice Book § 49, which outlines the requirements for mesne process, provides that “Form JD-CV-1 shall not be used in . . . [proceedings pertaining to arbitration.”

A defect in process, such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction. Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 551, 610 A.2d 1260 (1992). Our Supreme Court has held, however, in the context of an administrative appeal, that the improper use of Form JD-CV-1 does not defeat the Superior Court’s jurisdiction “[a]s long as it contains a proper citation, signed by a competent authority . . . .” Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986). In Chestnut Realty, “the court examined the contents of the form and, finding that the information adequately gave notice to the defendant of the nature of the proceedings, it concluded that, absent a showing of prejudice by the defendant, the use of the incorrect form did not mandate dismissal of the administrative appeal.” Carlson v. Fisher, 18 Conn. App. 488, 493, 558 A.2d 1029 (1989).

We conclude that the same reasoning is applicable in the context of this case. “ ‘It is elementary that the [defendant] cannot be bound by the action of the court without reasonable notice and an opportunity to be heard.’ ” Middlesex Ins. Co. v. Castellano, 225 Conn. 339, 344, 623 A.2d 55 (1993). In this case, the defendant, while served with the incorrect form, nonetheless received actual notice of the proceedings. She was personally served on February 24, 1994, with the Form JD-CV-1 writ, the plaintiff’s application to compel appraisal and an order to appear on March 7,1994, and show cause why the application should not be granted. On the following day, February 25, 1994, the defendant filed an appearance, an answer and a motion to dismiss the defendant’s application. Also, the defendant personally appeared at the March 7 show cause hearing. Thus, because the contents of the form adequately gave notice to the defendant of the nature of the proceedings and because the defendant has not shown prejudice arising from the use of the incorrect form, we must conclude that the plaintiffs lack of compliance with Practice Book § 49 was not fatal to the trial court’s jurisdiction.

B

Our conclusion that the plaintiff’s use of Form JD-CV-1 in this matter was harmless dictates that the defendant’s next argument must fail. She asserts that the plaintiff failed to make a proper appearance because its appearance was made by virtue of the Form JD-CV-1 writ, which may not be used in matters pertaining to arbitration. Because its underlying premise is not supportable, this claim is without merit.

C

The defendant next argues that the plaintiff’s alteration of the return date deprived the trial court of jurisdiction. The application to compel appraisal was originally made returnable to the court on March 1, 1994. On February 24, 1994, the serving sheriff contacted counsel for the plaintiff and reported that he had been unable to locate the defendant until that day. Counsel for the plaintiff authorized the sheriff to alter the return date from March 1 to March 8,1994, before serving the defendant.

The defendant relies on Denison v. Crafts, 74 Conn. 38, 49 A. 351 (1901), for the proposition that a plaintiff cannot lawfully change the return date in his writ after its issue and before service, unless the writ is reissued at the time of the alteration. The defendant’s reliance on this case, however, is misplaced. In Denison, the court held that a pro se plaintiff did not have the authority to alter process. Denison has since been cited for the proposition that only the issuing authority can change the return date of a writ. 1E. Stephenson, Connecticut Civil Procedure (2d Ed. 1982) § 21b. In the case at hand, the alteration of the return date was made with the express authorization of the plaintiff’s counsel, a commissioner of the Superior Court duly authorized to issue writs. For this reason, we conclude that the alteration of the return date is not, as the defendant claims, a jurisdictional defect.

In a subsidiary argument, the defendant asserts that the March 1,1994 return date, which was subsequently altered, did not give her enough time to respond under the applicable accelerated pleading schedule of General Statutes § 52-410 (c), which provides that “[t]he parties shall be considered as at issue on the allegations of the complaint unless the defendant files answer thereto within five days from the return day . . . .” Because the alteration was effective, however, the return date was March 8, 1994. The defendant was served on February 24,1994, giving her a legally sufficient eight days within which to file an answer.

D

The defendant also contends that the trial court’s jurisdiction was affected by the plaintiff’s inclusion of a recognizance in its application to compel appraisal. She argues that the provision of a recognizance was improper because a recognizance is not required in arbitration proceedings. Fishman v. Middlesex Mutual Assurance Co., 4 Conn. App. 339, 345-46, 494 A.2d 606, cert. denied, 197 Conn. 806, 499 A.2d 57 (1985) (plaintiff’s application to compel arbitration pursuant to § 52-410 not subject to dismissal on basis of lack of recognizance). The court in Fishman noted that arbitration proceedings are “ ‘intended to avoid the formalities, the delay, the expense and vexation of ordinary litigation.’ In re Curtis-Castle Arbitration, 64 Conn. 501, 511, 30 A. 769 (1894) . . . .” (Citations omitted.) Id., 345. “To the extent that arbitration proceedings are viewed as requiring all the formal trappings of civil actions, those policies would be frustrated.” Id. Just as the Fishman court determined that the omission of a recognizance did not defeat the trial court’s jurisdiction to hear an application to compel arbitration, we conclude that the inclusion of the same, albeit an unnecessary “formal trapping of civil actions,” likewise does not undermine the court’s jurisdiction.

E

The defendant next argues that the plaintiff’s application to compel appraisal was defective because the plaintiff failed to attach a copy of the arbitration agreement, as required by § 52-410. The plaintiff admits that it did not attach a copy of the arbitration agreement to its application, but asserts that § 52-410 permits but does not require such an attachment.

“In order to resolve the issue presented to us, we must resort to statutory interpretation in accordance with well defined principles that require that we ascertain and give effect to the apparent intent of the legislature. . . . To determine the intent of the legislature, we first consider whether the statutory language yields a plain and unambiguous resolution. ... If the words are clear and unambiguous, it is assumed that [they] express the intention of the legislature . . . and we need inquire no further. . . . The words of a statute must be interpreted according to their ordinary meaning unless their context dictates otherwise. . . .’’(Citations omitted; internal quotation marks omitted.) State v. Burns, 38 Conn. App. 8, 12, 658 A.2d 163 (1995).

Section 52-410 (b) provides in part that an application to compel arbitration “may be in the following form: ‘1. On , 19 , the plaintiff and the defendant entered into a written agreement for arbitration, of which exhibit A, hereto attached, is a copy. . . .’ ” (Emphasis added.) We must conclude, therefore, that the statute is permissive rather than mandatory regarding the attachment of a copy of the arbitration agreement. Thus, while the attachment of an arbitration agreement pursuant to a § 52-410 application is desirable and encouraged, the plaintiff’s failure to do so was not a statutory violation and did not affect the jurisdiction of the trial court to hear the matter.

F

The defendant next challenges the trial court’s jurisdiction by relying on Mott v. Goer Bros., Inc., 22 Conn. Sup. 449, 174 A.2d 549 (1961), for the proposition that a contract of appraisal does not grant the trial court the authority to create an order to proceed with arbitration. In Covenant Ins. Co. v. Banks, 177 Conn. 273, 279-80, 413 A.2d 862 (1979), however, our Supreme Court concluded that an appraisal clause in a fire insurance policy, required under General Statutes § 38a-307, constitutes a written agreement to arbitrate within the meaning of §§ 52-410 and 52-411. See also Giulietti v. Connecticut Ins. Placement Facility, 205. Conn. 424, 432, 534 A.2d 213 (1987). The defendant’s claim, therefore, is without merit.

G

Finally, the defendant argues that because the plaintiff failed to achieve personal service on all the defendants, the application was not properly before the trial court. The defendant does not contest that she was personally served. Rather, she asserts that only abode service was achieved on the defendant Edward Clinton.

A similar claim was made in Bridgeport v. Debek, 210 Conn. 175, 554 A.2d 728 (1989), where the defendants asserted that the trial court lacked subject matter jurisdiction to entertain the plaintiffs foreclosure action because the plaintiff failed to serve all the defendants in a timely manner. Our Supreme Court held that “[o]ur precedents make it abundantly clear that, except in the special circumstances of administrative appeals, defects in process do not deprive a court of subject matter jurisdiction.” Id., 179. Because the defect in service implicated only the court’s in personam jurisdiction, the Supreme Court held that the trial court had jurisdiction to consider the case on its merits as to the defendants who had been properly served. Id., 179-80. Similarly, we conclude that the plaintiffs failure to serve Edward Clinton personally did not deprive the trial court of subject matter jurisdiction in this case. Because the court had subject matter jurisdiction to consider the application to compel appraisal and personal jurisdiction over the defendant, we conclude that this claim must fail.

II

The defendant’s second claim is that the trial court improperly granted the plaintiff’s application to compel appraisal. She argues (1) that the court failed to consider the rights of the parties, (2) that §§ 52-410 and 52-411 provide statutory relief only for an aggrieved insured, not an insurer, and (3) that the plaintiff presented no evidence of an appraisal agreement or of a dispute as to the value of the loss.

A

Section 52-410 (c) provides that the trial court, after hearing an application for order to proceed with arbitration, “shall either grant the order or deny the application, according to the rights of the parties.” The defendant argues that the trial court failed to consider the rights of the parties before ordering her to proceed with appraisal. Specifically, she asserts that the trial court did not consider (1) her right to have the court not order the appointment of an appraiser, (2) her right pursuant to General Statutes § 52-408 to have the agreement to arbitrate voided as a result of fraud or duress and (3) her right to waive appraisal.

“Arbitration is a creature of contract. ... It is designed to avoid litigation and secure prompt settlement of disputes and is favored by the law. . . . But a person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed so to do. . . .No one can be forced to arbitrate a contract dispute who has not previously agreed to do so.” (Citations omitted; internal quotation marks omitted.) A. Dubrueil & Sons, Inc. v. Libson, 215 Conn. 604, 608, 577 A.2d 709 (1990). Accordingly, it seems that the requirement that the trial court must grant or deny an application to compel arbitration “according to the rights of the parties” refers to the arbitrability of the dispute. The question of arbitrability entails both whether the parties have agreed to arbitration and what issues in particular are arbitrable.

“The issue of whether the parties to a contract have agreed to arbitration is controlled by their intention. . . . The intention of the parties is, in turn, a question of fact.” (Citations omitted.) Id., 608-609. Consequently, the finding of the trial court is subject to only limited appellate review to determine whether it is clearly erroneous in light of the evidence in the whole record. Id., 609; Stelco Industries, Inc. v. Bette, 2 Conn. App. 17, 21, 475 A.2d 1105 (1984).

The defendant first argues that the trial court improperly failed to consider her right to have the court not order the appointment of an appraiser. She asserts that there is no statutory authority for the court to appoint an appraiser. Section 52-411 (b), however, clearly provides that “[i]f no method is provided [in the arbitration agreement], or if a method is provided and any party thereto fails to use the method, or if for any other reason there is a failure in the naming of an arbitrator or arbitrators or an umpire . . . upon application by a party to the arbitration agreement, the superior court . . . shall appoint an arbitrator or arbitrators or an umpire, as the case may require.” See also Covenant Ins. Co. v. Banks, supra, 177 Conn. 278-79. Also, the defendant does not claim nor is there evidence in the record that the appraisal clause in the insurance policy contained an agreement waiving the provision of § 52-411 (b). Therefore, the defendant did not have a right to have the court not appoint an appraiser.

The defendant also contends that the court did not consider her right to have the arbitration agreement voided as a result of fraud or duress. She argues that at the March 7, 1994 show cause hearing, she unsuccessfully attempted to present the trial court with evidence of duress suffered by her as a result of the plaintiffs insistence that she submit to arbitration.

Section 52-408 provides that an arbitration agreement “shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.” “This means that an arbitration agreement, like any other, can be declared void for fraud, misrepresentation, duress or undue influence, among other reasons not pertinent here. See 6 Williston, Contracts (Rev. Ed.) p. 5369.” Dewart v. Northeastern Gas Transmission Co., 140 Conn. 446, 449, 101 A.2d 299 (1953).

In this case, however, the defendant does not claim that duress occurred at the time of the formation of the arbitration agreement, that is, at the time when she signed the insurance policy containing the appraisal clause. Consequently, the defendant did not have a right to have the agreement declared void for duress.

Finally, the defendant argues that the trial court failed to consider her right to waive appraisal. She relies on Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 11, 110 A.2d 464 (1954), for the proposition that “an arbitration clause may be waived by the parties or by the one entitled to its benefit.” She asserts that she wants to waive appraisal in order to preserve her right to sue the plaintiff for breach of contract and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The plaintiff responds that, under the insurance policy, arbitration is a condition precedent to litigation.

In Batter Building Materials Co. v. Kirschner, supra, 142 Conn. 1, after the plaintiffs brought an action against the defendants for breach of contract, the defendants moved for a stay until the subject matter of the suit was submitted to arbitration, as provided for in the contract. The trial court granted the stay after determining that the disputed issue was arbitra-ble and that the contract provided that arbitration was a condition precedent to litigation. On appeal, the plaintiffs claimed, inter alia, that the defendants had waived their right to insist on arbitration because of an unjustifiable delay between the breach of contract and request for submission to arbitration.

The case at hand is distinguishable from Batter Building Materials Co., where the party wanting to sue claimed that the party wanting to arbitrate had waived its right to rely on the provision that arbitration is a condition precedent to litigation. Here, the party wanting to sue is claiming that she has waived her own right to arbitration, while the party wanting to arbitrate relies on the provision that arbitration is a condition precedent to litigation. For this reason, the defendant’s reliance on Batter Building Materials Co. is misplaced. Her assertion of a right to waiver amounts to an attempt to escape her prior agreement to submit to arbitration. For the foregoing reasons, we conclude that the trial court did not improperly fail to consider the rights of the parties before ordering the defendant to proceed with appraisal.

B

The defendant next argues that the trial court improperly granted the plaintiff’s application because §§ 52-410 and 52-411 provide statutory relief only for an aggrieved insured, not an insurer. In support of this position, she cites Covenant Ins. Co. v. Banks, supra, 177 Conn. 278, in which our Supreme Court noted that “§§ 52-410 and 52-411 . . . provide an appropriate procedure for an insured who needs judicial assistance when an insurer unreasonably refuses to proceed with the appraisal procedure specified in the insurance contract.” The defendant asserts that Covenant Ins. Co. dictates that §§ 52-410 and 52-411 are “quite clearly a protection for the rights of the insured, but only the insured.” (Emphasis added.)

We refuse to read either Covenant Ins. Co. or §§ 52-410 and 52-411 so narrowly. The Supreme Court’s comments in Covenant Ins. Co. were appropriate for the facts of the case, where it was the insured who sought appraisal. The reasoning is equally applicable here, where the insurer seeks judicial assistance to compel a reluctant insured to proceed with appraisal.

C

Finally, the defendant claims that the trial court improperly granted the plaintiff’s application because the plaintiff presented no evidence of an appraisal agreement or of a dispute as to the value of the loss. As noted previously, because the issue of arbitrability ultimately is a question of fact, our review is limited to a determination of whether the finding of the trial court was clearly erroneous. See A. Dubrueil & Sons, Inc. v. Libson, supra, 215 Conn. 608-609; Stelco Industries, Inc. v. Bette, supra, 2 Conn. App. 21.

In its application to compel appraisal, the plaintiff alleged the existence of a contract of insurance, which provided that “if the [defendant] and the [plaintiff] should fail to agree on the amount of the loss, either party may demand that these amounts be determined by appraisal.” The plaintiff also alleged that it and the defendant disputed the value of the loss. In her answer and at the show cause hearing, the defendant failed to deny the existence of the appraisal agreement. The defendant now alleges that the parties actually agreed as to the value of the loss, but the record clearly indicates that the trial court could have reasonably found that a dispute existed. Consequently, we conclude that the court properly determined that an appraisal of the value of the loss was necessary so that the plaintiff could make payment to the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       While Edward Clinton and Judith Clinton were the two defendants in the underlying action, only Judith Clinton, hereinafter the defendant, has appealed.

       The appraisal clause provided: “If [the insured] and [the insurer] fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, [the insured] or [the insurer] may request that the choice be made by a judge of a court of record in the state where the residence premises is located. The appraisers will separately set the amount of the loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss.”
      Our Supreme Court has held that such a clause, which is required by the standard form of fire insurance policy set forth in General Statutes § 38a-307, constitutes an agreement to arbitrate and falls within the ambit of our arbitration statutes, General Statutes §§ 52-408 through 52-424. Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 432, 534 A.2d 213 (1987); Covenant Ins. Co. v. Banks, 177 Conn. 273, 279, 413 A.2d 862 (1979).

       General Statutes § 52-410 provides: “application for COURT ORDER TO PROCEED WITH ARBITRATION, (a) A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order directing the parties to proceed with the arbitration in compliance with their agreement. The application shall be by writ of summons and complaint, served in the manner provided by law.
      “(b) The complaint may be in the following form: ‘1. On , 19 , the plaintiff and the defendant entered into a written agreement for arbitration, of which exhibit A, hereto attached, is a copy. 2. The defendant has neglected and refused to perform the agreement for arbitration, although the plaintiff is ready and willing to perform the agreement. The plaintiff claims an order directing the defendant to proceed with an arbitration in compliance therewith.’
      “(c) The parties shall be considered as at issue on the allegations of the complaint unless the defendant files answer thereto within five days from the return day, and the court or judge shall hear the matter either at a short calendar session, or as a privileged case, or otherwise, in order to dispose of the case with the least possible delay, and shall either grant the order or deny the application, according to the rights of the parties.”
      General Statutes § 52-411 provides: “appointment of arbitrator or umpire, (a) If, in a written agreement to arbitrate, a method of appointing an arbitrator or arbitrators or an umpire has been provided, the method shall be followed.
      “(b) If no method is provided therein, or if a method is provided and any party thereto fails to use the method, or if for any other reason there is a failure in the naming of an arbitrator or arbitrators or an umpire, or if any arbitrator or umpire dies or is unable or refuses to serve, upon application by a party to the arbitration agreement, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall appoint an arbitrator or arbitrators or an umpire, as the case may require. A person so appointed an arbitrator or umpire shall act under any arbitration agreement with the same force and effect as if he had been specifically named or referred to therein. Unless otherwise provided in the agreement, the arbitration shall be by a single arbitrator.
      “(c) An application under this section and the proceedings thereon shall conform to the application and proceedings provided for in section 52-410, except that such changes shall be made in the complaint as may be necessary to correctly and concisely state the plaintiff’s claim.”

       In addition to ordering the Clintons to proceed to appraisal, the trial court ordered (1) that the Clintons would have until March 18,1994, to designate an appraiser, (2) that the Clintons’ appraiser and the plaintiff's appraiser would have until March 28, 1994, to appoint an umpire and (3) that if the Clintons failed to appoint an appraiser or the parties failed to agree on an umpire, the court would appoint an umpire.
      We note that “[a]n order directing the parties to proceed with arbitration is a final judgment from which one can appeal. . . .” (Citations omitted; internal quotation marks omitted.) Smith & Smith Building Corp. v. DeLuca, 36 Conn. App. 839, 841, 654 A.2d 368 (1995). Thus, we have the requisite jurisdiction for appellate review.

       The plaintiff alleges in its appellate brief that the reason for the alteration was to provide the defendant with a sufficient amount oí time between service and the return date.

       General Statutes § 52-45a provides in pertinent part: “COMMENCEMENT OF CIVIL ACTIONS. CONTENTS AND SIGNATURE OF PROCESS. Civil actions shall be commenced by legal process consisting of a writ of summons . . . . The writ . . . shall be signed by a commissioner of the superior court }}

      General Statutes § 51-85 provides in pertinent part: “Each attorney-at-law admitted to practice within the state, while in good standing, shall be a commissioner of the superior court and, in such capacity, may, within the state, sign writs . . . .”

       See footnote 3.

       See footnote 3.

       See footnote 4.

       See footnote 3.

       “The exact meaning of the rights of the parties phrase has rarely been discussed in the reported decisions. The central issue raised by a petition to compel arbitration is whether the reluctant party has agreed to arbitrate the particular question in dispute. Thus, the arbitrability of the dispute, central to General Statutes § 52-409, is undoubtedly what is contemplated by ‘the rights of the parties.’ ” R. Lease, “Judicial Interpretations and Applications of the Connecticut Arbitration Statutes,” 7 Conn. L. Rev. 147, 161 (1974).

       See footnote 3.

       While the defendant also mentions fraud as a factor ignored by the trial court in its granting of the application, her appellate brief contains no discussion or supporting allegations of fraud. Accordingly, we decline to review this claim because it has been inadequately briefed. Practice Book § 4065; State v. Yopp, 35 Conn. App. 740, 750, 646 A.2d 298 (1994).

       The defendant also asserts that the court failed to take due consideration of the amount of time that the plaintiff allowed to elapse before requesting the defendant to submit to appraisal. We construe this to be a claim that the plaintiff has waived its right to appraisal because of an unjustifiable delay. A review of the record convinces us that, as in Batter Building Materials Co. v. Kirschner, supra, 142 Conn. 13, we cannot conclude that, “as a matter of law, the time between the ripening of the dispute and the demand for arbitration was unreasonable and that the [plaintiff] consequently waived [its] right to insist upon arbitration.”


author: O’Connell, J.

text:
    Mechanics Savings Bank v. Townley Corporation et al.
    (14333)
    O’Connell, Landau and Heiman, Js.
    Argued June 1
    decision released August 1, 1995

      Mary-Ellen W. Flatow, for the appellant (defendant Robert A. Ginsburg).

      Jonathan B. Alter, with whom, on the brief, was Ann M. Siczewicz, for the appellee (plaintiff).
   O’Connell, J.

This is a mortgage foreclosure action in which the defendant Robert A. Ginsburg, trustee, appeals from the judgment against him on his stricken counterclaims. He claims that the trial court improperly (1) found that a junior encumbrancer cannot raise a defense or counterclaim that does not relate to the making, validity, or enforcement of the mortgage note, (2) found that there was no legal or equitable basis on which he could raise special defenses and counterclaims, (3) found that he could not invoke the clean hands doctrine in spite of allegations of inequitable conduct by the plaintiff, (4) and failed to consider the allegations of bad faith and inequitable conduct by the plaintiff. We affirm the judgment of the trial court and dismiss the appeal in part.

The plaintiff, Mechanics Savings Bank, brought an action against the defendant Townley Corporation to foreclose a mortgage on a parcel of property located in Hartford. Ginsburg, a junior encumbrancer, was also named as a defendant because he held a subsequent lien on the subject property. Ginsburg filed an answer, special defenses and counterclaims, alleging that the plaintiff had breached agreements with him regarding property other than the subject property. The trial court struck the counterclaims, holding that the agreements relied on by Ginsburg were transactions separate and distinct from the subject of the complaint. The trial court also struck Ginsburg’s special defenses on the ground that the special defenses did not address the making, validity, or enforcement of the notes and mortgages that were the subject of the complaint. Upon Ginsburg’s failure to replead, the plaintiff moved for judgment on the stricken counterclaims pursuant to Practice Book § 157. The motion was granted, and this appeal followed.

As a threshold matter, we must first consider the question of whether this appeal is properly before us. In his notice of appeal, the defendant states that he is appealing only from the judgment on his stricken counterclaims. In his statement of issues, however, the defendant complains about the striking of his special defenses as well as the striking of his counterclaims.

The granting of a motion to strike a special defense is not a final judgment and is therefore not appealable. Breen v. Phelps, 186 Conn. 86, 90, 439 A.2d 1066 (1982). The striking of special defenses neither terminates a separate proceeding nor so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Practice Book § 4002 (b) does not help the defendant because, although it allows appeal after judgment on certain stricken pleadings, it cannot be extended to include special defenses. C & P Excavating Contractors, Inc. v. Ardmare Construction Co., 37 Conn. App. 222, 226, 655 A.2d 278 (1995). Accordingly, we cannot consider that portion of the defendant’s appeal that pertains to the striking of his special defenses. That issue must await review in an appeal from the final decision on the merits of the case. Breen v. Phelps, supra, 90.

Practice Book § 4002 (b) does, however, allow an appeal when an entire counterclaim has been stricken and judgment has been rendered thereon. We will, therefore, review the judgment on the counterclaims. Insofar as they relate to the judgment on the counterclaims, we will consider the defendant’s first two claims together.

The trial court struck the defendant’s counterclaims because they did not satisfy the requirement of Practice Book § 116 that counterclaims arise out of the same transaction that is the subject of the plaintiff’s complaint. In the present case, the subject of the plaintiff’s complaint is the foreclosure of a mortgage from the Townley Corporation of property at 116 Farming-ton Avenue and 775 Asylum Avenue in the city of Hartford. The defendant’s counterclaims had nothing to do with the.mortgage foreclosure on this property, but related instead to an alleged agreement concerning the distribution of rental proceeds from the operation of different property.

“The transaction test is one of practicality, and the trial court’s determination as to whether that test has been met ought not be disturbed except for an abuse of discretion. . . . Where the underlying purposes of Practice Book § 78 [now § 116], to wit, judicial economy, avoidance of multiplicity of litigation, and avoid-anee of piecemeal disposition of what is essentially one action, are thwarted rather than served by the filing of a [counterclaim], the [counterclaim] may properly be expunged.” (Internal quotation marks omitted.) Wal-lingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983).

The disparity between the subject matter of the plaintiffs complaint and that of the defendant’s counterclaims warranted the trial court’s conclusion that they did not arise from the same transaction and that, therefore, joinder was impermissible. The trial court did not abuse its discretion in striking the defendant’s counterclaims.

Because our decision on the first two issues is dis-positive of the appeal, we do not reach the defendant’s third and fourth claims.

That portion of the defendant’s appeal that pertains to the defendant’s special defenses is dismissed; the judgment striking the defendant Ginsburg’s counterclaims is affirmed.

In this opinion the other judges concurred.

       Practice Book § 4002 (b) provides in relevant part: “Where an entire complaint, counterclaim or cross complaint has been stricken, the trial court may, pursuant to Sec. 157, render judgment on such stricken complaint, counterclaim or cross complaint. ...”

       Practice Book § 116 provides in relevant part: “In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff . . . provided that each such counterclaim . . . arises out of the transaction . . . which is the subject of the plaintiffs complaint. . . .”

       Although bearing two street addresses, it is apparently only one piece of property.