author: Lavery, J.

text:
    Carol K. Vincent v. Allen R. Vincent
    (11552)
    Dupont, C. J., O’Connell and Lavery, Js.

      Argued May 5
    decision released July 6, 1993

      Claudette J. Narcisco, for the appellant (defendant).

      Carol Vincent Wheeler, pro se, the appellee (plaintiff).
   Lavery, J.

The defendant appeals from the judgment of contempt rendered by the trial court following his failure to comply with court orders requiring him to make certain child support payments. The defendant claims that (1) he cannot be held in contempt because he has not wilfully disobeyed the order of the court, but rather is indigent and cannot make the payments, (2) the trial court improperly determined the amount of child support he should be required to pay, (3) the trial court improperly refused to hear his reclaimed motion to modify child support at the same time it agreed to hear the plaintiff’s motion for contempt that was not on the short calendar, and (4) the trial court improperly stayed a second motion to modify pending this appeal after he filed a motion to waive costs and fees regarding this appeal. We agree with the defendant’s third claim, reverse the judgment of the trial court, and remand the case to the trial court with direction to hear the motion to modify and the motion for contempt. Because we are remanding the case for further proceedings, we need not address the merits of the defendant’s remaining claims.

The following facts and procedural history are pertinent to the disposition of this appeal. On December 22, 1982, the parties’ marriage was dissolved by judgment of the Superior Court. At that time, a separation agreement was made part of the court’s judgment, except for the section pertaining to child support. The trial court ordered that the defendant pay $35 per week to the plaintiff toward the support of each of two minor children.

In 1986, the trial court opened the judgment and modified the child support order, lowering the weekly amount to $35 per week in the aggregate. Finding a significant arrearage in support payments, the trial court ordered that $35 per week be paid toward the arrearage.

The matter came before the court again on October 28, 1991, and the trial court ordered the defendant to pay the plaintiff $200 per week in child support, and $25 per week toward the now reduced arrearage. The trial court further ordered that child support payments be increased to $208 per week once the arrearage is paid off. On November 5, 1991, the defendant filed a motion to modify, claiming that there was a change in circumstances and that the existing orders were not in compliance with the child support guidelines.

On February 13,1992, the plaintiff filed a motion to find the defendant in contempt for failure to comply with the court’s October 28,1991 orders. On March 23, 1992, a hearing was scheduled before Hon. Daniel Spallone, state trial referee, acting with the authority of the court, on the motion for contempt, the defendant’s objection to the motion for contempt, and the defendant’s motion for modification. During the hearing, the court became aware that the plaintiff had not responded to or filed an objection to the defendant’s interrogatories and request for production dated February 5,1992. By a written memorandum of decision, the trial referee declared a mistrial pending compliance by the plaintiff with the defendant’s discovery requests. The court marked the motions off without prejudice, to be reclaimed following the plaintiff’s compliance.

The matter came before the trial court, Higgins, J., again on June 8, 1992. On the court calendar for that day was the defendant’s motion for modification, filed November 5, 1991, and the defendant’s motion for default for the plaintiff’s failure to disclose. The trial court questioned the validity of the November 5,1991 motion to modify because it was many months old, and because it was filed so soon after the new orders went into effect. The trial court did not hear the motion to modify. The trial court did, however, hear the plaintiff’s motion for contempt, although it was not on the court calendar.

Our rules of practice require that when a motion for contempt and a motion for modification come before the trial court those motions are to be heard concurrently. Practice Book § 464; General Statutes § 46b-8. Practice Book § 464 provides in pertinent part: “Upon an application for a modification of an award of . . . support of minor children, filed by a person who is then in arrears under the terms of such an award, the court shall, upon hearing, ascertain whether such arrearage has accrued without sufficient excuse so as to constitute a contempt of court, and, in its discretion, may determine whether any modification of current . . . support shall be ordered prior to the payment, in whole or in part as the court may order, of any arrearage found to exist.” In Sanchione v. Sanchione, 173 Conn. 397, 403, 378 A.2d 522 (1977), our Supreme Court, in explaining Practice Book § 381, the predecessor to § 464, stated: “Obviously, therefore, the intended procedure is that both [the motion for modification and the motion for contempt] be heard concurrently . . . . The section nowhere prohibits such modification after a finding of contempt. This accords, for example, with the fact that ‘[f|or the most part the contempt defense [of inability to pay] requires a proof of greater financial hardship than does a motion to modify alimony.’ Clark, Law of Domestic Relations, § 14.10, p. 469. Thus, a defendant might be in contempt on arrearages, yet his or her financial distress, while not sufficing to excuse the delinquency in payments, might be enough to warrant some modification.”

Our legislature has codified the intentions of Practice Book § 464 through the enactment of General Statutes § 46b-8. Section 46b-8 provides in pertinent part: “Whenever a motion for modification of an order for support ... is made to the superior court by a moving party against whom a motion for contempt for noncompliance with such order is pending, the court shall accept such motion and hear both motions concurrently.”

On June 8, 1992, the trial court, after making inquiries regarding the motion to modify, decided that the motion to modify would not be heard. The motion for default was denied as moot. The motion for contempt, which was not on the court calendar that day, was heard. The hearing on the motion for contempt was held contrary to our rules of practice and the pertinent statute and, accordingly, the judgment of contempt must be reversed.

Because we reverse the judgment of the trial court on the basis of the defendant’s second claim, we need not reach the merits of his remaining claims.

The judgment of contempt is reversed and the case is remanded for a simultaneous hearing on the motion to modify and the motion for contempt.

In this opinion the other judges concurred.

       In Ms memorandum of decision regarding the mistrial Judge Spallone ordered that the court should proceed on the contempt and modification motions “only after there has been compliance, by the plaintiff, with the defendant’s discovery requests.”

       On June 8, 1992, the defendant still claimed that the plaintiff had not complied fully with the disclosure previously ordered by the court.


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    Concept Associates, Ltd. v. Board of Tax Review of the Town of Guilford et al.
    (11736)
    Daly, Foti and Landau, Js.
    Argued May 4
    decision released July 6, 1993

      John K. Atticks III, for the appellant (plaintiff).

      Judith A. Ravel, with whom, on the brief, was Jeffrey M. Donofrio, for the appellee (defendant).
   Landau, J.

The plaintiff appeals from the judgment of the trial court dismissing the plaintiff’s appeal from a decision of the board of tax review of the town of Guil-ford. On appeal, the plaintiff claims that the trial court improperly dismissed its appeal for lack of subject matter jurisdiction. We disagree and affirm the judgment of the trial court.

The following facts are pertinent to this appeal. The plaintiff, Concept Associates, Ltd., filed a timely appeal to the board of tax review of the town of Guilford (board). On March 31, 1992, the board affirmed the challenged assessment. On May 6, 1992, pursuant to Public Acts 1991, No. 91-221, § 4, the plaintiff filed an appeal to the Superior Court. The plaintiff’s summons specified as a return date May 28,1992, a Thursday, rather than May 26, 1992, a Tuesday. The complaint was served on the defendants on May 7, 1992, and was filed in the Superior Court on May 14, 1992. On May 28,1992, the defendants filed an appearance in the trial court. On June 26, 1992, the defendants filed a motion to dismiss the appeal on the ground that the summons specified a return date of Thursday, rather than a return date of Tuesday, as required by General Statutes § 52-48. On July 2, 1992, the plaintiff filed a motion to amend pursuant to General Statutes § 52-72. The plaintiffs motion to amend sought the trial court’s permission to correct the return date from May 28, 1992 to May 26, 1992. The defendants objected to the plaintiff’s motion to amend. The trial court granted the motion to dismiss on September 4, 1992. This appeal ensued.

The plaintiff argues that General Statutes § 52-72 provides the vehicle by which it can amend its process to reflect the correct return date. The defendants, on the other hand, argue that the plaintiff cannot amend its civil process because the return date had already passed at the time the motion to amend had been filed in the trial court and therefore, the court did not have jurisdiction to consider the matter.

“Statutory limitations ... for the return of process implement the speedy determination of the issues involved. . . . Such time limitations on the enforcement of a right, created by statute and not existing at common law, [are] a part of the right and must be met in order to provide a court with jurisdiction to hear the cause of action. . . .” (Citations omitted; internal quotation marks omitted.) Bergin v. Bergin, 3 Conn. App. 566, 569, 490 A.2d 543, cert. denied, 196 Conn. 806, 494 A.2d 903 (1985). “[A]n improperly specified return date affects the court’s jurisdiction. . . . [An] incorrect return date should not be viewed lightly. The defect of an improper return day is not a minor defect. Rather ... an improper return day is a defect which could not be corrected at all until [General Statutes] § 52-72 was enacted.” (Citation omitted; internal quotation marks omitted.) Carlson v. Fisher, 18 Conn. App. 488, 495-96, 558 A.2d 1029 (1989). “ ‘[I]t is the actual return of the writ to the court which really puts the action before the court and empowers the court to proceed ....’” Arpaia v. Corrone, 18 Conn. App. 539, 541, 559 A.2d 719 (1989). Until such time as a proper return is made to the court, that court does not have jurisdiction to consider the matter. Even though a defendant in a civil action may consent to the jurisdiction of the court, that court will still not have the power to proceed with the action until a proper return of process is made to the court. Id.

The plaintiff’s reliance on Carlson v. Fisher, supra, is misplaced. In Carlson, in upholding the trial court’s denial of the defendant’s motion to dismiss, this court recognized that § 52-72 allows for “ ‘a proper amendment to civil process which has been made returnable to the wrong return day. . . .’ ” Id., 495. In Carlson, however, the motion to dismiss was filed before the date for return had passed, and there was no indication whether the amendment was filed before or after the return day had passed. That decision, therefore, is not controlling under the facts of this case.

In Arpaia v. Corrone, supra, by contrast, this court held that when the return of service is not timely, it is a defect that cannot be cured by amendment. The rationale for this proposition is that once the date for return has passed there is nothing before the court that can be amended. Id., 540-41. The same rationale applies here. The plaintiff’s summons in this case failed to state a correct return date. Therefore, there was no proceeding before the trial court. The plaintiff’s motion to amend the return day was filed after the date for return had passed. Thus, the plaintiff’s motion attempted to amend an action that was not properly before the trial court and must fail. The trial court’s dismissal of the action for lack of subject matter jurisdiction was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are the named defendant and the town of Guilford.

       Public Acts 1991, No. 91-221, § 4, provides in pertinent part: “Notwithstanding the provisions of sections 12-118, 12-121aa and 12-121bb of the general statutes, any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review in any town or city with respect to the assessment list for the assessment ye&r commencing October 1,1989, [or] October 1,1990, OR OCTOBER 1,1991, may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in case of a summons in a civil action. . . .” Public Acts 1991, No. 91-221, § 4, has been codified as General Statutes § 12-117a. See Southern New England Telephone Co. v. Board of Tax Review, 31 Conn. App. 155, 156 n.1, 623 A.2d 1027 (1993).

       General Statutes § 52-48 provides in pertinent part: “(a) Process in civil actions, including transfers and applications for relief or removal, but not including summary process actions, brought to the superior court may be made returnable on any Tuesday in any month. The return day in any summary process action may be any week day, Monday through Saturday, except a holiday.
      “(b) All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.”

       The plaintiff labeled the motion as a request to amend. Because of the language used in the body of the document, however, we will treat it as a motion to amend.

       General Statutes § 52-72 provides in pertinent part: “(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement.
      “(b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form.”


text:
    State of Connecticut v. Arthur Jacobson
    (11523)
    Dupont, C. J., Lavery and Freedman, Js.

      Argued March 22
    decision released July 6, 1993

      Jon L. Schoenhorn, with whom, on the brief, was Karen A. Goodrow, for the appellant (defendant).

      Susann E. Gill, supervisory assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, Donna Mambrino, deputy assistant state’s attorney, and Carol Gette, former deputy assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction, rendered following a plea of nolo con-tendere, of one count of operating a motor vehicle while his operator’s license was under suspension in violation of General Statutes § 14-215 (c). The defendant claims that (1) the trial court improperly concluded that his operator’s license was under suspension at the time of his arrest pursuant to the provisions of subsection (c) of General Statutes § 14-215, and (2) he was deprived of his due process rights because he lacked notice that the one year suspension period prescribed in General Statutes § 14-227a could be extended indefinitely. We agree with the defendant’s first claim, and therefore set aside the judgment of conviction, and remand the case with direction to resentence the defendant. Because we-set aside the judgment of the trial court on the basis of the defendant’s first claim, we need not reach the merits of his second claim.

The following facts are pertinent to the resolution of this appeal. On March 28, 1989, the defendant was convicted of operating a motor vehicle while under the influence of alcohol in violation of General Statutes § 14-227a. As a result of the conviction, the defendant’s operator’s license was suspended on April 22,1989, for a period of one year. On August 5, 1989, the defendant’s operator’s license was concurrently suspended for six months because of his failure to submit to alcohol testing pursuant to General Statutes § 14-227b. The department of motor vehicles, pursuant to General Statutes § 14-112, imposed an administrative requirement that the defendant show proof of financial responsibility before his license could be restored.

On September 22,1991, the defendant was arrested and charged with operating a motor vehicle while his license was under suspension, allegedly in violation of General Statutes § 14-215 (c). Section 14-215 (c) provides for a substantial fine and a mandatory minimum thirty day jail sentence for individuals who operate a motor vehicle while their license is under suspension because of a violation of the operating a motor vehicle while intoxicated statutes. At the time of the defendant’s arrest, more than a year had passed since his suspension was imposed in April, 1989. The defendant, however, had not shown the department of motor vehicles proof of financial responsibility. Therefore, at the time of the defendant’s arrest, his license had not been restored, although the period of time of the suspension of his license had passed.

The state asserts that at the time of the defendant’s arrest, his license was still under suspension for a violation of General Statutes § 14-227a because, despite the passage of more than one year from the date the suspension took effect, the defendant had not completed the administrative steps to warrant restoration of his license. The defendant concedes that at the time of his arrest he had not submitted a statement of financial responsibility, and could have been charged with operating a motor vehicle without a license. He challenges, however, the state’s contention that at the time of his arrest he was guilty of a violation of § 14-215 (c) because, he argues, his suspension on account of a violation of § 14-227a had expired on April 22,1990, one year after its imposition.

Prior to proceedings on the merits in the trial court, the defendant moved to dismiss the information charging him with violating § 14-215 (c) for the reasons he asserts on appeal. In a memorandum of decision, the trial court, after quoting General Statutes §§ 14-215 (c), 14-112, and 14-111 (a), stated: “Due to the above statutory provisions, the court finds that although the one year period of suspension had elapsed, restoration of the defendant’s driving privilege had not occurred and so the defendant was still subject to arrest for operating a motor vehicle while under suspension in violation of General Statutes § 14-215 (c). See State v. Verville, 16 Conn. Sup. 178 (1949); New Hampshire v. Callahan, 489 A.2d 130 (1985).” The motion was denied.

The state cites, as did the trial court in its memorandum of decision on the motion to dismiss, the Court of Common Pleas case of State v. Verville, supra, to support its proposition that a suspension imposed under § 14-227a continues until all requirements for restoration have been met. The present case can. be distinguished from Verville because of the penal effects of the statutes in question.

The defendant in Verville was convicted of reckless driving in December, 1947. Id., 178-79. In February, 1948, the commissioner of the department of motor vehicles suspended the defendant’s operator’s license. Id., 178. The commissioner notified the defendant that his license would be returned after fifteen days provided that he supplied proof of financial responsibility. Id. In February, 1949, the defendant was arrested and convicted of operating a motor vehicle while his license was under suspension in violation of General Statutes (1949 Rev.) § 2420, a predecessor to General Statutes § 14-215. Id., 179. General Statutes (1949 Rev.) § 2420 provided: “No person to whom an operator’s license has been refused, or whose operator’s license or whose right to operate a motor vehicle in this state has been suspended or revoked, shall operate any motor vehicle during the period of such refusal, suspension or revocation. No person shall operate or cause to be operated any motor vehicle, the registration of which has been refused, suspended or revoked, or any motor vehicle, the right to operate which has been suspended or revoked. Any person who violates any provision of this section shall be fined not less than one hundred dollars nor more than two hundred dollars or imprisoned not more than ninety days or be both fined and imprisoned. ” (Emphasis added.) General Statutes § 14-215, under which the defendant in the present case was charged, provides in pertinent part: “(a) No person to whom an operator’s license has been refused, or whose operator’s license or right to operate a motor vehicle in this state has been suspended or revoked, shall operate any motor vehicle during the period of such refusal, suspension or revocation. No person shall operate or cause to be operated any motor vehicle, the registration of which has been refused, suspended or revoked, or any motor vehicle, the right to operate which has been suspended or revoked. . . . (c) Any person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section lU-227a or section 53a-56b or 53a-60d or pursuant to section 14-227b, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, thirty consecutive days of which may not be suspended or reduced in any manner. ” (Emphasis added.) The current statute, while repeating much of the language of its predecessor, contains a separate subsection singling out violators of the operating while intoxicated statute for stiff penalties, including a mandatory thirty day jail sentence. The heightened penalty distinguishes the current statute from its predecessors.

A guiding principle of our inquiry is that criminal statutes should be strictly construed in favor of the accused. State v. Whiteman, 204 Conn. 98, 101, 526 A.2d 869 (1987); State v. Edwards, 201 Conn. 125, 132, 513 A.2d 669 (1986). “It is a fundamental tenet of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment.” State v. Rawls, 198 Conn. 111, 121, 502 A.2d 374 (1985). We must construe statutory language strictly to avoid imposing criminal liability where none is expressly intended by the legislature. State v. LoSacco, 12 Conn. App. 172, 177, 529 A.2d 1348 (1987).

The language providing for a one year suspension for a first violation of General Statutes § 14-227a is unambiguous. Subsection (h) of § 14-227a provides in pertinent part: “Any person who violates any provision of subsection (a) of this section shall: (1) For conviction of a first violation, (A) be fined not less than five hundred dollars nor more than one thousand dollars and (B) be (i) imprisoned not more than six months, forty-eight consecutive hours of which may not be suspended or reduced in any manner or (ii) imprisoned not more than six months, with the execution of such sentence of imprisonment suspended entirely and a period of probation imposed requiring as a condition of such probation that such person perform one hundred hours of community service, as defined in section 14-227e, and (C) have his motor vehicle operator’s license or nonresident operating privilege suspendedfor one year . . . (Emphasis added.) The language of § 14-215 (c) does not provide for a suspension in excess of one year if the defendant does not take the administrative steps necessary for the restoration of a license.

Under General Statutes § 14-112, the commissioner of motor vehicles shall require a person who has violated § 14-227a to show proof of financial responsibility before the person’s license is restored. If proof of financial responsibility is not shown, then the license will not be restored. Our legislature has set out a comprehensive scheme for punishing violators of our operating while intoxicated statutes. That scheme unambiguously mandates a one year suspension of a violator’s operator’s license under § 14-227a, and provides that a license shall be restored upon proof of financial responsibility in another section, § 14-112. Nothing in the statutory scheme, however, indefinitely extends the period of suspension, pursuant to § 14-227a, past one year. If the legislature chooses to amend § 14-215 (c) to extend the period of suspension of a license beyond one year, and until the defendant has complied with § 14-211, it may do so. Meanwhile, we are bound by the present language of § 14-215 (c). The defendant in this case was not charged with a violation of a statute regarding failure to show financial responsibility or of a statute relating to the administrative steps necessary to restore a license.

Although the defendant in this case was not guilty of operating a motor vehicle while his license was under suspension pursuant to General Statutes § 14-227a, and therefore is not subject to the heightened penalty provided by General Statutes § 14-215 (c), he is subject to the penalties provided under General Statutes § 14-215 (b) since violation of § 14-215 (a) constitutes a lesser included offense of a violation of § 14-215 (c). A crime is a lesser included offense of another charged crime if it is not possible to commit the crime charged in the information or bill of particulars without first having committed a lesser crime, and if, upon the evidence, an accused can properly be found guilty of the lesser crime. State v. Whistnant, 179 Conn. 576, 584, 427 A.2d 414 (1980). In this case, the information or charging document was a form entitled “Misdemeanor/M.V. Summons and Complaint.” The form states the date, time, and place of the violation. Under the heading “offenses” is written “op. m.v. under suspension” and under the heading “stat. or ord. no.” is written “14-215 c.” Since the information contains no pertinent material regarding the manner of the commission of the crime, we turn next to the language and meaning of the statute. Subsection (a) of § 14-215 provides that no one whose license has been suspended or revoked may operate a motor vehicle in Connecticut. Subsection (b) provides penalties for violations of subsection (a). Subsection (c) provides that if a person whose license was suspended pursuant to § 14-227a operates a motor vehicle, that person will be subject to certain penalties, which are more severe than those provided under subsection (b). The elements of the crime of operating a motor vehicle while under suspension under § 14-215 (a) are the operation of a motor vehicle — while one’s operator’s license is under suspension. The elements of the crime of operating while under suspension under § 14-215 (c) in this case are operating a motor vehicle — while one’s operator’s license is under suspension on account of a violation of subsection (a) of § 14-227a. This analysis clearly shows that, in order to commit the crime of operating a motor vehicle while under a § 14-227a suspension, the defendant must commit the lesser included offense of operating a motor vehicle while under suspension.

Since the defendant pleaded nolo contendere to the charge of violating § 14-215 (c), he could have been convicted of the lesser crime of violating § 14-215 (a), and subjected to the less severe penalties provided for by § 14-215 (b).

“It is axiomatic that this court is vested with the authority to remand a case for resentencing. See, e.g., State v. Hanson, 210 Conn. 519, 556 A.2d 1007 (1989); State v. Carpenter, 19 Conn. App. 48, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). In doing so, however, it is not this court’s function to prescribe the new sentence. Miller v. Commissioner of Correction, 29 Conn. App. 773, 780, 617 A.2d 933 (1992); State v. Schaeffer, 5 Conn. App. 378, 390, 498 A.2d 134 (1985). The appropriate disposition is a remand to the trial court with direction to resentence the defendant.” State v. Dennis, 30 Conn. App. 416, 426, 621 A.2d 292, cert. denied, 226 Conn. 901, 625 A.2d 1376 (1993).

The judgment is reversed and the case is remanded with direction to render judgment of guilty of violating General Statutes § 14-215 (a) and to resentence the defendant in accordance with General Statutes § 14-215 (b).

In this opinion the other judges concurred.

       General Statutes § 14-112 provides in pertinent part: “To entitle any person to receive or retain a motor vehicle operator’s license or certificate of registration of any motor vehicle when, in the opinion of the commissioner, such person has violated . . . subsection (a) of section 14-227a . . . the commissioner shall require from such person proof of financial responsibility to satisfy any claim for damages by reason of personal injury to, or death of, any one person, of twenty thousand dollars, or by reason of personal injury to, of the death of, more than one person on account of any accident, of at least forty thousand dollars, and for damage to property of at least ten thousand dollars ... .If any person fails to furnish such proof, the commissioner shall, until such proof is furnished, suspend or revoke the license of such person to operate a motor vehicle or refuse to return any license which has been suspended or revoked in accordance with the provisions of section 14-111 . . . . Prior to such suspension, revocation or withdrawal, notice thereof shall be given by the commissioner by a notice forwarded by bulk certified mail to the address of such person as shown by the records of the commissioner. . . .”

       General Statutes § 14-215 (b) provides: “Except as provided in subsection (c) of this section, any person who violates any provision of subsection (a) of this section shall be fined not less than one hundred fifty dollars nor more than two hundred dollars or imprisoned not more than ninety days or be both fined and imprisoned for the first offense, and for any subsequent offense shall be fined not less than two hundred dollars nor more than six hundred dollars or imprisoned not more than one year or be both fined and imprisoned.”


author: Dupont, C. J.

text:
    Michael Lutynski v. B. B. and J. Trucking, Inc.
    (11300)
    Dupont, C. J., Landau and Heiman, Js.

      Argued February 22
    decision released July 6, 1993

      James A. Mulhall, Jr., with whom was Kevin T. Nixon, for the appellant-appellee (plaintiff).

      James E. Kernan, with whom was Allisan Lee Adams, for the appellee-appellant (defendant).

      Cynthia C. Bott, William F. Gallagher and Kurt Koehler, law student intern, filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Dupont, C. J.

The principal issue to be decided in this appeal is whether the trial court improperly refused to award the plaintiff prejudgment interest and attorney’s fees pursuant to General Statutes (Rev. to 1989) § 52-192a after the plaintiff received a jury award in excess of his rejected offer of judgment. At the time the plaintiff made his offer of judgment, his complaint alleged that he had sustained certain injuries. Prior to trial, but after the defendant’s rejection of the plaintiff’s offer of judgment, the plaintiff was allowed to amend his complaint to allege additional, but related, injuries. The trial court’s refusal to award interest and attorney’s fees was based on its determination that the plaintiff’s offer to settle the “claim underlying the action” as presented to the jury was different from the claim on which the plaintiff based his offer of judgment, and on which the defendant based its decision not to accept that offer.

We are not aware of any appellate case in this jurisdiction that answers the question whether interest pursuant to § 52-192a may be added to a plaintiffs recovery only if the amount of damages sought for injuries sustained has not changed since the offer of judgment. We determine that the plaintiff had a statutory right to interest, and that the trial court had a mandatory duty to award such interest.

The facts are not in dispute. On January 8,1988, the plaintiff was traveling on Interstate 84 in Waterbury when a truck owned by the defendant, and operated by one of its employees, was traveling in the opposite direction. As the vehicles converged, the truck struck the median divider, became airborne, and crashed into the plaintiffs car. The plaintiff, in his complaint filed April 21,1989, alleged that he had been “thrown about the interior of the car striking his face and head against the windshield which shattered and he was trapped in his car as it was crushed around him. . . He further alleged that he suffered serious injuries as a result of this collision, including a cerebral concussion, a permanent facial scar and spasmodic muscular contractions along the left side of his face. On August 18,1989, the plaintiff filed an offer of judgment pursuant to § 52-192a in the amount of $95,000. The defendant did not accept the offer. On November 8,1989, the defendant made an offer of judgment to the plaintiff in the amount of $85,000, which the plaintiff did not accept.

The plaintiff moved to amend his complaint on January 9,1991, to add the words “permanent brain damage with an emotional upset” to the paragraph in which he had alleged his injuries. The court overruled the defendant’s objection and allowed the amendment. On the eve of a scheduled trial, the plaintiff moved for leave to amend his complaint further. The court again overruled the defendant’s objection and granted the motion on September 23,1991. The amendment claimed “an increased risk of future harm in that [the plaintiff] has a greater susceptibility to further head injury from trauma which may occur in the future along with accompanying anxiety and fear concerning the future in that regard.” The trial was then continued to give the defendant additional time to prepare a defense to the amended complaint. The case was tried to a jury, and a verdict in favor of the plaintiff in the amount of $150,026.62 was returned on February 7, 1992. Although the verdict separated economic damages from noneconomic damages, there were no interrogatories and it is impossible to determine how much of the award was attributable to brain damage as opposed to the other serious injuries alleged in the original complaint.

After the trial, both the plaintiff and the defendant made posttrial motions regarding the amount of the award. The plaintiff moved for an award of prejudgment interest on his recovery and for reasonable attorney’s fees under § 52-192a (b). The trial court denied the plaintiff’s motion. In its memorandum of decision, the trial court determined that it was not compelled to award interest and attorney’s fees under the statute where the plaintiff’s “claim” was amended after the period for the defendant to accept the offer of judgment had lapsed because the claim presented to the jury was a different and enhanced claim from that which was the subject matter of the offer of judgment.

The defendant moved to reduce the jury award by $10,676.62, arguing that under General Statutes § 52-225a, that portion of the award constituting past economic damages must be reduced by any amount received by the plaintiff from collateral sources. The defendant claimed that the plaintiff received more than $10,676.62 in collateral source payments, and, thus, the amount of the award should be reduced by the total amount awarded for past economic damages. The trial court denied the motion.

The plaintiff now appeals from the trial court’s denial of his motion for interest and attorney’s fees, and the defendant cross appeals from the trial court’s denial of its motion to reduce the amount of the award by the amount received from collateral sources.

I

The plaintiff’s appeal is premised on several grounds. Principally, the plaintiff argues that the award of prejudgment interest is mandatory under General Statutes § 52-192a and the applicable case law. Additionally, the plaintiff contends that the trial court’s decision is contrary to the purpose of § 52-192a, which is the promotion of fair and reasonable pretrial settlements, and, consequently, the conservation of judicial resources. Civiello v. Owens-Coming Fiberglass Corporation, 208 Conn. 82, 91, 544 A.2d 158 (1988); Paine Webber Jackson & Curtis, Inc. v. Winters, 22 Conn. App. 640, 651, 655, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990). Finally, the plaintiff argues that the trial court’s interpretation of the word “claim” as used in § 52-192a is too restrictive because the court limits it to the precise injuries alleged in the complaint as of the date of the offer of judgment.

In response, the defendant contends that since the offer of judgment did not offer to settle the claim on which the plaintiff ultimately recovered, § 52-192a does not apply, and that it should not be penalized by paying prejudgment interest. The defendant admits that the plaintiff would have been entitled to interest had there been no amendment to his complaint because then the claim underlying the action would be the claim that was the subject of the jury verdict. The defendant does not deny that an offer of judgment exists but argues that it can relate only to the injuries claimed as of its date. We cannot, however, separate the general verdict into three monetary parts, one for the injuries alleged in the original complaint, one for the injuries alleged in the first amended complaint, and one for the injuries alleged in the second amended complaint.

Our courts have consistently held that prejudgment interest is to be awarded by the trial court when a valid offer of judgment is filed by the plaintiff, the offer is rejected by the defendant, and the plaintiff ultimately recovers an amount greater than the offer of judgment after trial. See, e.g., Civiello v. Owens-Coming Fiberglass Corporation, supra; Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 472 A.2d 316 (1984); Paine Webber Jackson & Curtis, Inc. v. Winters, supra; Gillis v. Gillis, 21 Conn. App. 549, 575 A.2d 230, cert. denied, 215 Conn. 815, 576 A.2d 544 (1990); Edward Denike Tree Co. v. Butler, 21 Conn. App. 366, 573 A.2d 349 (1990); Crowther v. Gerber Garment Technology, Inc., 8 Conn. App. 254, 513 A.2d 144 (1986); Kusha v. Respondowski, 3 Conn. App. 570, 490 A.2d 1014 (1985). Moreover, an award of interest under § 52-192a is mandatory, and the application of “§ 52-192a does not depend on an analysis of the underlying circumstances of the case or a determination of the facts.” Paine Webber Jackson & Curtis, Inc. v. Winters, supra, 653; see General Statutes § 52-192a (b). The statute is admittedly punitive in nature. Gillis v. Gillis, supra, 554; Edward Denike Tree Co. v. Butler, supra, 369. It is the punitive aspect of the statute that effectuates the underlying purpose of the statute and provides the impetus to settle cases. See Paine Webber Jackson & Curtis, Inc. v. Winters, supra, 654, Gillis v. Gillis, supra, 554; Crowther v. Gerber Garment Technology, Inc., supra, 267.

Section 52-192a uses the phrase, “claim underlying the action.” The trial court determined that “claim” does not mean cause of action. We agree. Our agreement, however, does not mean that the injuries that comprise the claim must remain constant for § 52-192a to apply. “A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief.” (Internal quotation marks omitted.) People’s Bank v. Bilmor Building Corporation, 28 Conn. App. 809, 816, 614 A.2d 456 (1992); Gurliacci v. Mayer, 218 Conn. 531, 546-47, 590 A.2d 914 (1991). A claim is a demand for money or property. Ballentine’s Law Dictionary (3d Ed. 1969). A cause of action in a negligence case arises from tortious conduct; the claim subjects the tortfeasor to responsibility for the payment of money damages for the injuries sustained by the plaintiff because of the tortious conduct. The plaintiff’s cause of action arises out of the negligent conduct of the defendant’s employee in the operation of a truck. The plaintiff’s claim is for money damages for the injuries sustained by him due to that negligent conduct. The passage of time will not change the conduct, but will affect the damages. The monetary value of a case at any given time will change because of inflation, or because of exacerbation or diminution of the injuries.

An offer of judgment is an offer to settle the entire case, including claims both known and unknown, and both certain and uncertain. Gionfriddo v. Avis Rent A Car System, Inc., supra, 307. Obviously, if injuries worsen as time passes, damages will increase, and, if injuries mend, damages will decrease. These are the vagaries of offers of settlement. The fact that the plaintiff amended his complaint to allege “permanent brain damage with an emotional upset” does not make his claim for damages less of a claim underlying his action. There is only one claim underlying the plaintiffs action, although its value may change. We conclude that the plaintiff made an offer to settle that claim, including present and future damages arising from injuries known and unknown as of that date.

The purpose of § 52-192a is to encourage early, fair, and reasonable settlements, and to encourage plaintiffs to make offers of judgment promptly. See Goral v. Ken-ney, 26 Conn. App. 231, 239-40, 600 A.2d 1031 (1991). That purpose is evidenced by the provision of § 52-192a (b) that any interest due on an offer of judgment “shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint.” If the offer is filed later than eighteen months from the date of the filing of the complaint, the interest shall be computed from the date of the offer of judgment.

The purpose of the statute is not to penalize a plaintiff whose monetary claims increase because of worsening of a physical condition by forcing him or her to file another offer of judgment when the change occurs more than eighteen months after the filing of the complaint. If, on January 9, 1991, the date the plaintiff first amended his complaint to allege “permanent brain damage,” or on June 5, 1991, the date of his second amendment, the plaintiff had been forced to file another offer of judgment, he would be entitled to interest on the amount of the verdict only from January 9, 1991, or June 5, 1991, rather than from April 21, 1989, the date of the filing of the complaint. The defendant would require the plaintiff to file a new offer of judgment because his injuries worsened. In this case, because the injuries changed more than eighteen months after the filing of his complaint, the plaintiff would be forced to forgo interest for more than twenty months if we agreed with the defendant. We do not interpret the statute as warranting such a result.

Gionfriddo v. Avis Rent A Car System, Inc., supra, 307, held that an offer of judgment under § 52-192a must be an offer to settle the case on all counts because the statute’s purpose of encouraging settlements would be eroded by piecemeal offers of judgment. See also Crowther v. Gerber Garment Technology, Inc., supra, 269. Thus, the plaintiff’s offer of judgment in this case necessarily encompassed an offer to settle the entire case. Had the defendant elected to accept the plaintiff’s offer of judgment, it would have been insulated from liability for any future damages arising out of the accident in question, including damages for brain injury. The defendant’s rejection in this case of an offer to settle, subjects it to the penalty provided by § 52-192a. The plaintiff in this case filed an offer of judgment in the amount of $95,000, the defendant failed to accept the offer, and the amount ultimately awarded by the jury exceeded the offer of judgment. Thus, under the express language of § 52-192a, the trial court was compelled to award the plaintiff interest on the amount of his recovery.

The defendant also argues that because it did not have “notice” of the plaintiff’s brain damage allegation at the time of the offer of settlement, the imposition of a penalty under § 52-192a would be unconstitutional as violative of the due process provisions of the fourteenth amendment of the United States constitution. The defendant cites no precedent for this application of the due process clause. Because the offer of settlement encompassed all damages, present and future, for his injuries arising out of the accident, the defendant did have notice of the plaintiff’s claim underlying his action.

II

In its cross appeal, the defendant argues that the trial court incorrectly denied its motion to reduce the jury award by the amount of collateral source payments received by the plaintiff from his insurance providers. The defendant contends that in accord with General Statutes § 52-225a, the trial court was compelled to reduce the jury award by the amount of these payments.

The parties have stipulated to the following facts. The plaintiff received $2644.90 in reimbursement for medical expenses directly related to the accident from his health insurance carrier, CHCP. The plaintiff had previously paid $3206.58 to CHCP to obtain such coverage. The plaintiff also received $5000 in no-fault benefits from Travelers Insurance Company, $1000 for lost wages and $4000 for medical expenses. He paid $82 in premiums for the no-fault coverage. The parties further stipulated that the money paid by CHCP and Travelers constitutes collateral sources as defined by § 52-225b.

The trial court denied the defendant’s motion as to the medical benefits paid by CHCP on the basis that the plaintiff had previously paid more in premiums than he received in benefits as a result of the accident. General Statutes § 52-225a (a) provides that “the court shall reduce the amount of [any] award which represents economic damages . . . by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section . . . (Emphasis added.) Thus, the amount of benefits received by the plaintiff from CHOP; General Statutes § 52-225a (b); must be reduced by the “amount which has been paid . . . by . . . the claimant ... to secure his right to [the] collateral source benefit which he has received as a result of such injury.” General Statutes § 52-225a (c). Because the amount paid by the plaintiff to secure medical benefits exceeds the amount received by him as a result of his injury, nothing remains by which to reduce the economic damages. The trial court, therefore, properly refused to reduce the award of economic damages by the amount of the benefits received by the plaintiff from CHOP.

The trial court also denied the defendant’s motion as to the no-fault benefits. The trial court properly noted that under our decision in Amica Mutual Ins. Co. v. Barton, 1 Conn. App. 569, 574-75, 474 A.2d 104 (1984), Travelers has an equitable right to reimbursement from the plaintiff for the no-fault benefits it paid to the plaintiff, although its statutory right of subrogation under General Statutes (Rev. to 1989) § 38-325 (c) (now § 38a-369) was extinguished upon completion of the plaintiff’s lawsuit against the defendant. Because Travelers has a direct right of recovery against the plaintiff for the amount paid to him, the trial court was correct in not reducing the award of economic damages to the plaintiff.

We conclude that the plaintiff is entitled to recover prejudgment interest on the entire amount of his recovery, pursuant to § 52-192a, from the date the original complaint was filed until the date of judgment. We also conclude that the defendant is not entitled to have the amount of the award reduced by any amounts paid to the plaintiff by his insurance providers.

On the plaintiffs appeal, the judgment is reversed in part and the case is remanded with direction to render judgment as on file except as modified to include an award of interest in accordance with this opinion. On the cross appeal, the judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1989) § 52-192a provides: “(a) After commencement of any civil action based upon contract or for the recovery of money only, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment’, the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiff’s ‘offer of judgment’. Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1,1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”
      Section 52-192a was amended in 1992 to authorize offers of judgment “whether or not other relief [than money damages] is sought . . . ." That amendment does not affect this case.

       The plaintiff appealed from the denial of his motion for an award of interest and attorney’s fees, but did not brief his entitlement to attorney’s fees and we thus deem that portion of his appeal abandoned. See State v. Samaha, 180 Conn. 565, 565 n.1, 430 A.2d 1290 (1980).

       See footnote 5, infra.

       No Appellate Court case has yet decided whether “refiled” as used in General Statutes § 52-192a (a) would allow a plaintiff to file an offer of judgment that increases or decreases a previously filed offer of judgment, or would allow a plaintiff to refile only the same offer in order to give the defendant a second chance to accept it. The statute previously allowed a plaintiff to file a new offer of judgment after rejection, and to continue to file new offers up to the time of trial, but was amended in 1982 to delete that provision. It is likely, therefore, that the legislature intended to restrict “refíled” to a filing of the same offer. We need not decide this question, however, for the purposes of this decision.

       In its original motion, the defendant alleged that the total amount of collateral source payments made to the plaintiff exceeded the total amount recovered by the plaintiff for past economic damages, and thus requested a reduction of the jury award in an amount equal to the total recovered for past economic damages, or $10,676.62. On appeal, the defendant seeks a reduction of only $7644.90, representing the total collateral source payments actually received by the plaintiff, as stipulated by the parties.

       General Statutes § 52-225a provides: “(a) In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1, 1987, or (2) personal injury or wrongful death, arising out of the rendition of professional services by a health care provider, occurring on or after October 1, 1985, and prior to October 1, 1986, if the action was filed on or after October 1,1987, and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section, except that there shall be no reduction for (1) a collateral source for which a right of subrogation exists and (2) that amount of collateral sources equal to the reduction in the claimant’s economic damages attributable to his percentage of negligence pursuant to section 52-572h.
      “(b) Upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment.
      “(c) The court shall receive evidence from the claimant and any other appropriate person concerning any amount which has been paid, contributed, or forfeited, as of the date the court enters judgment, by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he has received as a result of such injury or death.”

       General Statutes § 52-225b provides: “For purposes of sections 52-225a to 52-225c, inclusive: ‘Collateral sources’ means any payments made to the claimant, or on his behalf, by or pursuant to: (1) Any health or sickness insurance, automobile accident insurance that provides health benefits, and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others; or (2) any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services. ‘Collateral sources’ do not include amounts received by a claimant as a settlement.”


text:
    Andrew Schick v. Windsor Airmotive Division/Barnes Group et al.
    (12219)
    Dupont, C. J., Landau, Freedman and Schaller, Js.
    Considered June 3
    decision released July 6, 1993

      Jonathan L. Gould, in favor of the motion.

      David C. Davis, in opposition to the motion.
   Dupont, C. J.

The dispositive issue of this motion to dismiss by the plaintiff in a workers’ compensation case is whether a decision of the workers’ compensation review board, remanding a case to the workers’ compensation commissioner for a hearing de novo, is a final judgment. The defendants oppose the motion, claiming that the remand order is an appealable final judgment. We conclude that the remand order is a final judgment and that, therefore, the appeal should not be dismissed.

The procedural history is undisputed. In 1987, the plaintiff filed a workers’ compensation claim, after suffering a myocardial infarction he claimed was caused by on-the-job stress. After formal hearings, first district commissioner A. Paul Berte issued a finding and decision on June 5, 1990, that the condition was not work related. The plaintiff appealed to the compensation review board on June 15,1990. In July, 1990, while the appeal was pending, Berte resigned.

In February, 1991, the plaintiff, after reviewing the hearing transcript, filed a motion to correct the commissioner’s findings. On March 19,1991, the plaintiff filed a motion with the review board for an order remanding the case for a new formal hearing. He contended that a hearing de novo was required because Berte was unwilling to rule on the motion to correct. The defendants objected, stating that there was no evidence of the commissioner’s refusal to hear the motion and that General Statutes § 31-281 vests the board of compensation commissioners with the legal authority to appoint an alternate commissioner to act on the motion to correct. On March 26, 1991, the plaintiff moved for an extension of time and a stay of the appeal proceedings pending the review board’s decision on the motion for remand. The defendants again objected and sought the designation of an alternate commissioner by the board of compensation commissioners to hear the motion to correct. The plaintiff then objected to the defendant’s request that an alternate commissioner hear the motion.

On February 16, 1993, nearly two years later, the review board issued a decision addressing solely the plaintiff’s March 19, 1991 motion for remand. Citing its own decisions in Foley v. New Britain, 1 Conn. Workers’ Comp. Rev. Op. 147 (1982), and Gavin v. New Britain, 1 Conn. Workers’ Comp. Rev. Op. 151 (1982), as well as this court’s recent decision in Stevens v. Hartford Accident & Indemnity Co., 29 Conn. App. 378, 615 A.2d 507 (1992), the review board concluded that it could not compel former commissioner Berte to rule on the motion to correct and that due process required that the plaintiff be given a “full bite of the apple.” The review board therefore remanded the case to the first district so that the plaintiff could have the option of either a hearing de novo or, if the parties so agreed, the submission of evidential transcripts and exhibits of the prior hearing, together with Berte’s June 5,1990 finding and the plaintiff’s motion to correct, to another commissioner for completion.

The lack of a final judgment is a threshold question that implicates the subject matter jurisdiction of this court. Walton v. New Hartford, 223 Conn. 155, 162 n.9, 612 A.2d 1153 (1992); Plasil v. Tableman, 223 Conn. 68, 72 n.8, 612 A.2d 763 (1992). If there is no final judgment, we may not reach the merits of the appeal. Practice Book § 4000; Walton v. New Hartford, supra.

Both parties recognize the general principle that a review board decision “is final for purposes of appeal if the proceedings to be conducted by the commissioner on remand are purely ministerial. On the other hand, if the remand requires the commissioner to take evidence and exercise independent discretion or judgment, there is no final determination and an appeal is premature. Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 185-86, 588 A.2d 194 (1991); Guinan v. Direct Marketing Assn., Inc., 22 Conn. App. 515, 516, 578 A.2d 129 (1990).” Boulay v. Waterbury, 27 Conn. App. 483, 486, 607 A.2d 450, cert. denied, 223 Conn. 904, 610 A.2d 178 (1992). This principle arises out of the general rule that an otherwise interlocutory order is appealable only “(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action 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).

The plaintiff contends that this appeal is like the Bou-lay line of cases, in that the proceedings on remand will not be simply ministerial but will require the commissioner to hear additional evidence and exercise independent judgment and discretion. The defendants do not dispute that orders of remand that entail the hearing of further evidence generally are not appealable final judgments. Nor do they dispute that additional evidence will be taken at the new hearing or that the commissioner’s actions will be more than ministerial. Rather, they contend that this case falls within the exceptions to the final judgment rule noted in State v. Curcio, supra. They posit that the review board’s remand for a hearing de novo terminated the prior proceeding and that their rights as to that proceeding will have been concluded once the matter goes back to the first district commissioner for a new hearing.

We need not address the parties’ conflicting arguments. The defendants have challenged the review board’s power to order a remand of the case to the commissioner and to give the plaintiff the option of a new hearing or having another commissioner hear the motion to correct. If the plaintiff elects to have a hearing de novo, the effect will be to render the judgment previously entered by Berte a nullity. The review board’s order is therefore similar to an order of the trial court opening a judgment. Ordinarily, such an order is not an appealable final judgment because its effect is to eliminate the judgment that was rendered earlier. Connecticut National Bank v. Great Neck Development Co., 215 Conn. 143, 147, 574 A.2d 1298 (1990); State v. Phillips, 166 Conn. 642, 646, 353 A.2d 706 (1974).

There is an exception, however, for those cases in which the appellant challenges the power of the trial court to open the judgment. Solomon v. Reiser, 212 Conn. 741, 747, 562 A.2d 524 (1989); Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 418, 426 A.2d 1324 (1980). That exception applies with equal force where there is a challenge to the power of the review board to order a new hearing.

In their preliminary statement of issues, the defendants claim that the review board improperly (1) refused to grant their March 22, 1991 motion to designate a substitute commissioner pursuant to General Statutes § 31-281, (2) remanded the matter to the first district for a new hearing, and (3) applied its own precedents in ordering a remand. The defendants’ appeal thus challenges the power of the review board to set aside the commissioner’s June, 1990 finding and decision and to order a new hearing on the merits.

Because the defendants have challenged the review board’s jurisdiction to order a remand for a de novo hearing, their appeal falls squarely within the Solomon and Connecticut Light & Power Co. exception to the final judgment rule. Therefore, the plaintiff’s motion to dismiss the appeal for lack of a final judgment must be denied.

The motion is denied.

In this opinion the other judges concurred.

       General Statutes § 31-278 provides in pertinent part: “Any compensation commissioner, after ceasing to hold office as such compensation commissioner, may settle and dispose of all matters relating to appealed cases, including correcting findings and certifying records, as well as any other unfinished matters pertaining to causes theretofore tried by him, to the same extent as if he were still such compensation commissioner.” (Emphasis added.)

       At the time the defendants made this objection, General Statutes (Rev. to 1991) § 31-281 provided: “The compensation commissioners for the several districts, acting as a board, may, in the event of the death, illness, resignation or disqualification of a commissioner of any district, designate another commissioner to act in any compensation matter in such district, and any commissioner acting under such designation shall have the same jurisdiction and powers as the commissioner for such district. ” That statute was repealed when the workers’ compensation statutes were substantially revised in 1992. See Public Acts 1991, No. 91-339, § 53, effective January 1, 1992.