text:
    SANDRA COLOMBO v. STOP AND SHOP SUPERMARKET COMPANY, INC.
    (AC 21390)
    Lavery, C. J., and Flynn and Dupont, Js.
    Submitted on briefs September 12
    officially released November 20, 2001

      Brian W. Prucker filed a brief for the appellant (plaintiff).

      Kirby G. Huget filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff in this negligence action, Sandra Colombo, appeals from the judgment of the trial court rendered on a directed verdict in favor of the defendant, Stop and Shop Supermarket Company, Inc. We affirm the judgment of the trial court.

The plaintiff alleged in her complaint that she slipped and fell on spilled milk while walking away from a People’s Bank branch office located within the defendant’s supermarket. She alleged that the condition existed for such a period of time that the defendant knew or should have known about it. She further alleged that the defendant was negligent in failing to maintain the premises adequately, in permitting the condition to remain for an extended period of time, in failing to warn the plaintiff of the dangerous condition or in failing to conduct timely inspections of the premises. She also alleged that such negligence caused her to suffer personal injuries and to incur medical expenses.

The substance of the plaintiffs testimony was that while walking in the defendant’s store, she slipped and fell on milk, and that she noticed immediately thereafter that the milk, her clothing and her hands were “dirty.”

At the close of the plaintiffs case, the court granted the defendant’s motion for a directed verdict and, at the court’s direction, the jury found the issues in the defendant’s favor. The court denied the plaintiffs subsequent motion to set aside the verdict. The plaintiff then brought the present appeal.

At trial, the defendant did not dispute that the plaintiff fell or that the defendant controlled and maintained the store where the incident occurred. As the defendant’s attorney argued, there was only a “question of actual or constructive notice, and the question as to whether the store had a reasonable opportunity to take some kind of curative step.” The court, mindful of the duty that the defendant owed to the plaintiff as an invitee, reasoned that, as a preliminary matter, it had to ascertain simply whether the defendant, in the exercise of due care and inspection, should have discovered the milk on the floor.

The court concluded that “no reasonable juror could find that [the defendant] had notice of this condition [or] that [it] existed for a length of time that reasonable inspection would have discovered it. . . . We have no evidence as to how it got there, no evidence as to when it got there.” The court refused to permit the issue to go to the jury simply because the plaintiff had characterized the milk as being “dirty.” The court added: “[T]he fact that the plaintiff got up and she was dirty is not evidence [from which] a rational juror could make an inference that that milk was there for such an extended period of time that the store reasonably should have found it if [the store] were conducting reasonable inspections or for any other duty of care . . . .”

“Our standard of review of a directed verdict is well settled. A trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, a jury could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail. ... In assessing the evidence, the court should weigh both direct and circumstantial evidence, including all reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) Abramczyk v. Abbey, 64 Conn. App. 442, 447, 780 A.2d 957, cert. denied, 258 Conn. 933, 785 A.2d 229 (2001).

The law concerning notice in this type of case is clear. The plaintiff bore the burden of proffering some evidence, either direct or circumstantial, from which the jury could infer that the defect she allegedly encountered existed for a length of time sufficient to put the defendant on actual or constructive notice of its existence. See Warren v. Stancliff, 157 Conn. 216, 218-19, 251 A.2d 74 (1968); Tuite v. Stop & Shop Cos., 45 Conn. App. 305, 308-309, 696 A.2d 363 (1997). In the absence of such evidence, we cannot permit a jury to reach such a conclusion on the basis of either speculation or conjecture. See, e.g., Gulycz v. Stop & Shop Cos., 29 Conn. App. 519, 522, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). Viewing the facts presented in the light most favorable to the plaintiff, we conclude that, as a matter of law, the jury could not reasonably have concluded that the defendant breached a duty to the plaintiff under the circumstances of this case, and, therefore, the court properly directed a verdict in favor of the defendant.

The judgment is affirmed.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    CARNELL HUNNICUTT v. COMMISSIONER OF CORRECTION
    (AC 20250)
    Lavery, C. J., and Flynn and Peters, Js.
    Argued September 25
    officially released November 20, 2001

      Ann E. Lynch, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Terrence M. O’Neill, assistant attorney general, for the appellant (respondent).

      Camell Hunnicutt, pro se, the appellee (petitioner).
   Opinion

PETERS, J.

In this appeal from the granting of a writ of habeas corpus, the dispositive issue is the scope of the authority of a habeas court to order a correctional institution to have an inmate examined by an orthopedic surgeon. The respondent maintains that the court lacked such authority in the absence of a finding that the institution had been “deliberately indifferent” to the petitioner’s medical needs. We agree with the respondent and reverse the judgment of the court.

The petitioner, Camell Hunnicutt, filed a petition for a writ of habeas corpus in which he charged that the Northern Correctional Institution (institution) had failed to provide adequate medical care to alleviate pain resulting from an injury to his hand. The petitioner claimed that the institution’s inaction violated his rights under the eighth amendment to the United States constitution, which prohibits detention in a manner that constitutes cruel and unusual punishment. Over the objection of the respondent, the court granted the petitioner a writ of habeas corpus, requiring the institution to bring him to an orthopedic surgeon for examination and for development of an appropriate treatment plan.

In its oral memorandum of decision, the court recited the facts on which it based its order. Notably, the court hedged each of its significant findings. The court found it relevant that there was a history of long-standing complaints by the petitioner, even though the court did not decide the merits of any of these complaints. The court found it probative that the petitioner had reported “some tenderness” in the injured hand, even though the court recognized that such tenderness might be self-induced. The court acknowledged that the petitioner had not established any traditionally required “objective” symptoms, but found that the report of tenderness in the injured hand should be considered to be “something of an objective sign.” Finally, the court found that the institution, by regularly providing the petitioner with over-the-counter medication to alleviate his pain, had lent “some veracity” to his claim because it showed either that the plaintiff had suffered from the alleged pain or that the medication was a placebo. It did not find which of these explanations was the more likely. In assessing these findings, the court decided that it was “conceivable” that “some neurological involvement” might be the cause of the petitioner’s pain. It made no finding that the institution had violated the petitioner’s eighth amendment rights by subjecting him to “cruel and unusual punishment.”

After the court announced its decision, the respondent filed motions for clarification and articulation. In both motions, the respondent asked the court to state whether it had found that the petitioner had established “deliberate indifference” on the part of the institution and, if so, to state in what manner such “deliberate indifference” had manifested itself. The court denied both motions. It did, however, grant the respondent’s request for certification to appeal.

In his appeal, the respondent has proffered two arguments in support of his claim that the court’s judgment should be set aside. The first is doctrinal and the second is evidentiary.

The respondent’s principal argument of law is that, in the absence of a finding of institutional “deliberate indifference” to the petitioner’s medical needs, the court lacked authority to order a referral to an outside medical specialist. The petitioner’s brief does not discuss the absence of such a finding or the significance of its absence.

Alternatively, the respondent argues that, if we were to read the court’s memorandum of decision as implicitly including a finding of “deliberate indifference, ” such an implicit finding would be improper because of lack of evidentiary support in the record. The petitioner argues, however, that the court readily could have made such a finding in light of the evidence at trial. We do not reach this issue.

Because both of the respondent’s arguments raise issues of law, our review of their merits is plenary. Connecticut Associated Builders & Contractors v. Hartford, 251 Conn. 169, 177, 740 A.2d 813 (1999); Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999).

Two decisions of our Supreme Court provide the framework for our discussion of the significance of the issuance of a writ of habeas corpus without a finding of a correctional institution’s “deliberate indifference” to a petitioner’s medical needs. In Sanchez v. Warden, 214 Conn. 23, 570 A.2d 673 (1990), our Supreme Court concluded that, although a writ of habeas corpus properly might challenge the legality of an inmate’s detention, the scope of such a writ was limited to the vindication of an inmate’s constitutional rights. Id., 33. In Arey v. Warden, 187 Conn. 324, 445 A.2d 916 (1982), that court held that, if a writ seeks to vindicate rights under the eighth amendment to the United States constitution, the petitioner must establish, preferably by objective evidence, that his detention has subjected him to cruel and unusual punishment resulting from the unnecessary and wanton infliction of pain. Id., 328-29. “But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” (Internal quotation marks omitted.) Id., 329.

Applying these principles to the facts of this case, the respondent urges us to conclude that, without a finding of “deliberate indifference,” any failure to respond fully to the petitioner’s claims of pain falls on the nonconstitutional side of the line. We agree. The respondent’s argument properly relies on the fact that the record shows that the institution did not ignore the petitioner’s complaints. Further, the record contains no objective factors to substantiate the petitioner’s subjective feelings of pain. As the court itself noted, tenderness in an injured hand may be self-induced. Finally, it is significant that the court made no finding that anyone at the institution deliberately had inflicted pain on the petitioner.

Under these circumstances, which the petitioner does not challenge, the court’s issuance of a writ of habeas corpus must be reversed. Without a showing of deliberate indifference, the facts found by the court do not support the court’s order requiring a referral to an orthopedic surgeon. It was the petitioner’s burden to make such a showing. We have no reason to doubt the accuracy of the petitioner’s claim that he has experienced substantial discomfort because of his injured hand. Nonetheless, in light of the habeas court’s findings, the conditions of the petitioner’s detention have not, as a matter of law, subjected him to cruel and unusual punishment resulting from “the unnecessary and wanton infliction of pain . . . .” Id., 328.

The judgment is reversed and the case is remanded with direction to render judgment denying the petition for a writ of habeas corpus.

In this opinion the other judges concurred.

       General Statutes § 52-466 provides in relevant part: “Application for writ of habeas corpus. Service. Return, (a) An application for a writ of habeas corpus shall be made to the superior court or to a judge thereof for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of his liberty . . . .”

       The eighth amendment to the United States constitution, which is binding on the states under the fourteenth amendment, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

       The petitioner has not pursued, on appeal, the court’s finding that the record did not establish the petitioner’s claim of undernourishment. That issue, therefore, is not before us.

       The court also recognized that “tenderness can always be invented

       The court elaborated on its usage of “conceivable.” It said: “I have no idea whether that conceivable is something that is likely or probable, but on the other hand it is, in fact, conceivable.”

       Neither at trial, nor in this court, has the petitioner raised any claims under our state constitution. We therefore focus only on the eighth amendment to the United States constitution.

       The record seems to indicate that the court rendered its judgment immediately after the closing of evidence. The record, therefore, does not contain separate analyses of issues of law by either party in this case. It appears, therefore, that the respondent had no opportunity, antecedent to the court’s judgment, to advise the court of its obligation to determine whether the petitioner’s pain resulted from “deliberate indifference” on the part of the institution.

       The petitioner takes no issue with the holdings of these cases.

       The petitioner received regular physical examinations and his injured hand was x-rayed. The hand was tested for range of motion and for strength of the handgrip. The petitioner was given medication for his pain. The court itself noted that “there are some times when the pain is mild and is sometimes exaggerated either intentionally or unintentionally because of stress.”

       See footnote 4.

       The petitioner makes numerous complaints about the quality and timeliness of his medical care, but he does not assert that his medical needs were ignored.

       At the outset, the respondent challenges the court’s subject matter jurisdiction to entertain the petition for a writ of habeas corpus. The issues in this case do not, however, raise any claim with respect to the subject matter jurisdiction of the habeas court. A claim that the court misconstrued the applicable law is not a claim of lack of subject matter jurisdiction. “A court does not truly lack subject matter jurisdiction if it has competence ... to decide the class of cases to which the action belongs . . . .” (Citations omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999); Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); Rosenfield v. Rosenfield, 61 Conn. App. 112, 116, 762 A.2d 511 (2000). None of the cases on which the respondent relies addresses a claim of lack of subject matter jurisdiction.


author: LANDAU, J.

text:
    CYNTHIA TOWER v. MILLER JOHNSON, INC., ET AL.
    (AC 20684)
    Landau, Mihalakos and Flynn, Js.
    Argued September 24
    officially released November 20, 2001

      Constance L. Epstein, with whom, on the brief, were Jack G. Steigelfest and Steven J. Barber, for the appellants (defendants).

      John B. Cantarella, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendants, Miller Johnson, Inc. (Miller Johnson), and its insurer, Utica Mutual Insurance Company (Utica), appeal from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) granting the motion of the plaintiff, Cynthia Tower, the widow of the decedent, to preclude the defendants from contesting her claim for workers’ compensation benefits. We affirm the decision of the board.

The relevant facts as found by the commissioner are as follows. From March, 1988, until October 30, 1995, the decedent was employed by Miller Johnson, where he was exposed to chemicals used in the printing industry. On November 1,1995, the decedent went to a hospital emergency room for treatment of pain he had suffered during the preceding four weeks. On November 5, 1995, he was diagnosed with pancreatic cancer. On February 18, 1996, he died at the age of thirty-four as a result of the disease.

On August 6, 1996, the plaintiff mailed a form 30C to Miller Johnson and the district office of the workers’ compensation commission (commission). A Miller Johnson agent received and accepted the form two days later. On the form, the plaintiff identified herself as the decedent’s widow, alleged the date of the decedent’s injury as November 5,1995, and described his injury as pancreatic cancer due to years of exposure to chemicals while employed by Miller Johnson.

On October 15, 1996, the defendants filed a notice of intent to contest the claim on the ground that it did not meet the jurisdictional requirement that the decedent’s condition be causally related to his work. The plaintiff responded with a motion to preclude the defendants from contesting liability because their notice of intent was untimely filed pursuant to General Statutes § 31-294c (b). The defendants objected to the motion.

In their objection, the defendants did not deny the untimely filing of the notice of intent, but argued that the commissioner did not have jurisdiction to grant the motion because there was no medical evidence that the decedent’s injury was causally related to his employment. At the hearing on the motion, the plaintiff testified that she had not been advised by any medical professionals that her husband’s cancer was related to his employment and that the only basis for the claim was her suspicion that it was so related.

In December, 1998, the commissioner granted the motion to preclude. The commissioner concluded that the plaintiff properly had alleged the date of the decedent’s injury, how the decedent contracted the cancer that resulted in his death and the last place of employment where he was exposed to the chemicals alleged to have caused the disease.

The defendants appealed to the board, and the board affirmed the commissioner’s decision on the ground that the issue of whether the claim would be successful on the merits was not relevant to a determination of the motion. This appeal followed.

The defendants’ sole claim on appeal is that the commissioner improperly granted the motion to preclude because he did not first address the jurisdictional issue of whether the decedent’s injury arose in the course of his employment. We disagree.

We begin by setting forth the standard of review applicable to workers’ compensation appeals. “The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Where ... [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision.” (Citations omitted; internal quotation marks omitted.) Schiano v. Bliss Exterminating Co., 57 Conn. App. 406, 411, 750 A.2d 1098 (2000). Here, because the relevant portion of § 31-294c (b) has been subjected to judicial scrutiny, the commissioner’s conclusion must stand unless it resulted from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn therefrom. See id.

General Statutes § 31-294c (b) provides in relevant part: “Whenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice . . . stating that the right to compensation is contested .... [A]n employer who fails to contest liability for an alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim and who fails to commence payment for the alleged injury or death on or before such twenty-eighth day, shall be conclusively presumed to have accepted the compensability of the alleged injury or death.”

“Although the conclusive presumption contained in § 31-294c (b) is phrased in absolute language, it does not preclude the employer from challenging the commissioner’s subject matter jurisdiction. Castro v. Viera, 207 Conn. 420, 427, 541 A.2d 1216 (1988). Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. ... It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation. . . .

“This concept, however, is not limited to courts. Administrative agencies [such as the commission] are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves. . . . We have recognized that [i]t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. ... It cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unless the statutes expressly grant it that power. . . .

^ ^

“[0]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case. . . . Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver.” (Internal quotation marks omitted.) Del Toro v. Stamford, 64 Conn. App. 1, 6-7, 779 A.2d 202, cert. denied, 258 Conn. 913, 782 A.2d 1242 (2001).

In Del Toro, we considered whether the compensability of an injury is a jurisdictional issue so that the conclusive presumption of § 31-294c (b) does not apply and concluded that “[t]he concept that subject matter jurisdiction encompasses the issue of the compensability of an injury finds no support in our case law. To the contrary, our case law reveals that, in the context of workers’ compensation proceedings, subject matter jurisdiction is implicated only with issues concerning the existence of an employee-employer relationship; [Castro v. Viera, supra, 207 Conn. 430-37]; or the proper initiation of the claim itself. Infante v. Mansfield Construction Co., 47 Conn. App. 530, 534, 706 A.2d 984 (1998). Our courts have repeatedly refused to characterize as issues of subject matter jurisdiction claims involving whether an injury arose in the course of employment. In such circumstances, the courts precluded the employers from circumventing the conclusive statutory presumption of liability imposed if they failed to contest liability. LaVogue v. Cincinnati, Inc., 9 Conn. App. 91, 93, 516 A.2d 151, cert. denied, 201 Conn. 814, 518 A.2d 72 (1986); Bush v. Quality Bakers of America, 2 Conn. App. 363, 372-74, 479 A.2d 820, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984). We also have concluded that subject matter jurisdiction does not include the issue of causation and, thus, does not allow the employer to circumvent the statutory presumption of liability. See DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441, [445-49], 615 A.2d 1066 (1992). Likewise, we conclude that the issue of compensability of an injury does not implicate the subject matter jurisdiction of the commissioner and, accordingly, the statutory presumption of liability cannot be circumvented.” Del Toro v. Stamford, supra, 64 Conn. App. 7-8.

Here, as in Del Toro, the claim that the decedent’s injury was unrelated to his employment does not present either of the threshold jurisdictional questions of whether an employee-employer relationship existed or whether the claim was properly initiated. Accordingly, the defendants’ claim does not implicate the commissioner’s subject matter jurisdiction and the statutory presumption of liability cannot be circumvented. See id., 8.

The defendants cite Castro v. Viera, supra, 207 Conn. 420, for the proposition that subject matter jurisdiction under Connecticut’s workers’ compensation law is also implicated in claims involving the issue of causation. The defendants, however, misconstrue Castro. The jurisdictional issue in Castro was whether the parties had an employer-employee relationship on the date of the alleged injury, not whether the injury arose out of and in the course of the plaintiffs employment. Id., 426-27. When the court stated in Castro that “the act was intended to be and is the exclusive remedy available where it appears that the necessary employer-employee relationship exists and the injury-producing transaction arises out or and in the course of that employment”; (internal quotation marks omitted) id., 426; it was speaking about the broad, remedial purpose of the act, not about jurisdictional prerequisites, as is plainly evident from the context in which the statement was made.

Moreover, four years after Castro, when we specifically considered the question of whether subject matter jurisdiction requires proof that the alleged injury arose out of and in the course of employment, we concluded that it did not. See DeAlmeida v. M.C.M. Stamping Corp., supra, 29 Conn. App. 446-49. In DeAlmeida, we stated that “[t]o adopt the construction of the statute that would exclude the issue of causation from those matters subject to the doctrine of preclusion would be effectively to disregard our duty to interpret statutory enactments in such a manner as to effectuate their manifest purpose or objective. . . . The language of [General Statutes (Rev. to 1987)] § 31-297 (b) [now § 31-294c (b)] is absolute in its terms. ‘If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury . . . and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.’ . . . General Statutes [Rev. to 1987] § 31-297 (b) [now § 31-294c (b)]. We are obligated to interpret the legislative meaning inherent in the statutory enactment. . . . Where the language used in a statutory enactment is clear and unambiguous, we assume that the words themselves express the legislature’s intent and there is no need to look further for interpretative guidance. . . . We are bound to interpret legislative intent by referring to what the legislative text contains, not by what it might have contained. . . . We will not read into clearly expressed legislation provisions which do not find expression in its words. . . . The manifest purpose of the preclusion statute is to ensure that employers investigate claims promptly and that employees be timely advised of the specific reason for the denial of their claim. . . . Extending the exception beyond that of subject matter jurisdiction would be at variance with the legislative intent. . . .

“The case law in this area is also clear. While the issue of the requisite contract of employment is not barred by the conclusive presumption under § 31-297 (b) [now § 31-294c (b)] . . . the right to contest liability is, however, subject to the preclusive action of the commissioner where the defendant fails to file the requisite notice to contest liability within the time limited by statute. . . . Statutory and case law both demonstrate that the employer is precluded from asserting that an injury did not arise out of and in the course of employment if it fails to contest liability.” (Citations omitted; emphasis in original; internal quotation marks omitted.) DeAlmeida v. M.C.M. Stamping Corp., supra, 29 Conn. App. 448-49.

Accordingly, we conclude that the commissioner correctly applied the law to the facts and properly granted the plaintiffs motion to preclude the defendants from contesting her claim on the ground of compensability.

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

In this opinion the other judges concurred.

       A form 30C is the form prescribed by the workers’ compensation commission in Connecticut for use in filing a notice of claim under the Workers’ Compensation Act, General Statutes § 31-275 et seq.


text:
    CONNECTICUT BANK OF COMMERCE v. JULIE D. GIORDANO ET AL.
    (AC 21671)
    Foti, Landau and Dranginis, Js.
    Argued September 20
    officially released November 20, 2001

      Roger J. Frechette, with whom, on the brief, were Matthew E. Frechette and Franz P. Frechette, for the appellants (named defendant et al.).

      Marjorie R. Gruszkiewicz, for the appellee (plaintiff).
   Opinion

LANDAU, J.

In this mortgage foreclosure action, the defendants, Julie D. Giordano and Anthony V. Giordano, appeal from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, Connecticut Bank of Commerce. The defendants claim that the court improperly rendered judgment for the plaintiff in the absence of a valid complaint. We agree and reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In February, 1992, the defendants executed a note payable to the plaintiff that was secured by a mortgage on the property that is the subject of this foreclosure action. In January, 1997, the plaintiff filed a complaint seeking to foreclose the mortgage for nonpayment. On March 19, 1997, the plaintiff filed an amended complaint. On February 27, 1998, the plaintiff filed a request for leave to file a second amended complaint. On April 17,1998, the court overruled the defendant’s objection to the plaintiffs motion.

On July 19, 1999, the plaintiff filed a motion for summary judgment on the ground that there was no genuine issue of material fact in dispute and that it therefore was entitled to judgment as a matter of law. On August 17, 1999, the plaintiff withdrew the second amended complaint. In early September, 1999, the defendants filed an objection to the summary judgment motion, claiming, inter alia, that the plaintiffs withdrawal of the second amended complaint removed the only operative complaint. On September 13, 1999, the court, with all counsel present, granted the plaintiffs motion for summary judgment.

Thereafter, the parties filed several additional motions and objections relating to the complaint. On September 21, 2000, the plaintiff filed a motion requesting a judgment of strict foreclosure. On September 26, 2000, and February 16, 2001, the defendants filed objections to the plaintiffs motion on the ground that there was no viable complaint. On February 16, 2001, the defendants also filed two motions requesting judgment in their favor. That same day, after overruling the defendants’ objections and denying both of their motions, the court rendered judgment of strict foreclosure in favor of the plaintiff. This appeal followed.

The voluntary filing of an amended complaint operates as a withdrawal of the prior complaint, and, thereafter, the earlier complaint, though remaining in the files and constituting part of the history of the case, can furnish no basis for a judgment, nor can any previous ruling on it be made a subject of appeal. Royce v. Westport, 183 Conn. 177, 179, 439 A.2d 298 (1981); Antman v. Connecticut Light & Power Co., 117 Conn. 230, 234—35, 167 A. 715 (1933), overruled on other grounds, Buck v. Morris Park, Inc., 153 Conn. 290, 293, 216 A.2d 187 (1965), appeal dismissed, 385 U.S. 2, 87 S. Ct. 33, 17 L. Ed. 2d 2 (1966); Bennett v. Automobile Ins. Co. of Hartford, 32 Conn. App. 617, 620, 630 A.2d 149 (1993), rev’d on other grounds, 230 Conn. 795, 646 A.2d 806 (1994); Lichteig v. Churinetz, 9 Conn. App. 406, 412, 519 A.2d 99 (1986). Accordingly, when the plaintiff withdrew the second amended complaint on August 17, 1999, it removed the only operative complaint in the action.

The plaintiff argues that because it filled out that section of the withdrawal form relating to the “partial” withdrawal of a complaint, it did not withdraw the entire complaint. In filling out the form, however, the plaintiff identified the document it intended to withdraw as the “Amended complaint dated February 27, 1998,” and there is nothing in the record or docket summary to indicate that the plaintiff did not withdraw the entire amended complaint.

The plaintiff also argues that the court determined during a September 22,1999 hearing on several motions relating to the action that withdrawal of the amended complaint could not be construed as a withdrawal of the “entire action.” Nonetheless, because Connecticut courts have determined that the voluntary filing of an amended complaint, as here, operates as a withdrawal of the prior complaint; Animan v. Connecticut Light & Power Co., supra, 117 Conn. 234-35; the court’s conclusion that the plaintiff did not withdraw “the entire action” was incorrect.

Accordingly, we conclude that the court had no basis in fact or law on which to render judgment of strict foreclosure in favor of the plaintiff.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Other encumbrancers were named as defendants but are not involved in this appeal. We refer in this opinion to Julie D. Giordano and Anthony V. Giordano as the defendants.

       At that time, the plaintiff was known as Amity Bank.

       In its brief, the plaintiff concedes that it withdrew the second amended complaint.

       We do not address the plaintiffs claim that the court properly granted its motion for summary judgment because the defendants’ appeal is limited to the judgment of strict foreclosure.


author: PER CURIAM.

text:
    JEFFREY VANECH v. COMMISSIONER OF CORRECTION
    (AC 20994)
    Lavery, C. J., and Flynn and Dupont, Js.
    Submitted on briefs September 12
    officially released November 20, 2001

      Patrice A. Cohan, special public defender, filed a brief for the appellant (petitioner).

      David Cohen, state’s attorney, Lisa A. Riggione, senior assistant state’s attorney, and Jo Anne Sulik, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Jeffrey Vanech, appeals following the denial by the habeas court of his petition for certification to appeal from the dismissal of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) denied his petition for certification to appeal, (2) rejected his claim of ineffective assistance of counsel and (3) rejected his claim that his plea was not entered knowingly and voluntarily. Our examination of the record and briefs persuades us that the court properly denied the petition for certification to appeal, and we accordingly dismiss the appeal.

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas coipus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Owens v. Commissioner of Correction, 63 Conn. App. 829, 830-31, 779 A.2d 165, cert. denied, 258 Conn. 905, 782 A.2d 138 (2001), citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992).

“[B]ecause the determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances . . . the plea may satisfy constitutional requirements even in the absence of literal compliance with the prophylactic safeguards of [Practice Book §§ 39-19 and 39-20]. . . . Thus, although the trial court never expressly informed the defendant of the mandatory minimum sentence ... as required by [§ 39-19 (2)], that fact alone is not dispositive of the defendant’s constitutional claim. . . .

“[0]ur inquiry . . . must focus upon the effect, if any, that the trial court’s noncompliance with [§ 39-19 (2)] had on the defendant’s ability to make a fully informed and voluntary plea decision. Thus, the ultimate issue to be resolved is whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a [guilty] plea.” (Citation omitted; internal quotation marks omitted.) State v. Johnson, 253 Conn. 1, 44-45, 751 A.2d 298 (2000); see also State v. Wright, 207 Conn. 276, 288, 542 A.2d 299 (1988) (failure to advise defendant of mandatory minimum sentence did not jeopardize constitutional rights where plea intelligently and voluntarily made).

In the present case, the petitioner has not established that the court abused its discretion in denying the petition for certification to appeal. The habeas court’s dismissal of the petition for a writ of habeas corpus was based on a review of the petitioner’s claims. The court’s finding that the petitioner failed to sustain his burden of establishing that trial counsel rendered ineffective assistance is supported by the record. With respect to his claim that his plea was not voluntarily and knowingly made, we conclude that in light of all of the circumstances evident from the record before us, the trial court’s failure to inform the defendant of the statutorily required minimum sentence of one year did not render his guilty plea unknowing or involuntary. In fact, the concurrent eight year sentence added only two years to the sentence that he was serving.

We therefore conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right. Furthermore, the petitioner has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice was done. See Simms v. Warden, supra, 230 Conn. 612; Simms v. Warden, supra, 229 Conn. 189.

The appeal is dismissed.


author: DRANGINIS, J.

text:
    ELOISE MARINOS v. BUILDING REHABILITATIONS, LLC, ET AL.
    (AC 20991)
    Foti, Schaller and Dranginis, Js.
    Argued September 10
    officially released November 20, 2001

      William M. Mack, for the appellant (defendant).

      Mary J. Ambrogio, with whom was Steven F. Meo, for the appellee (plaintiff).
   Opinion

DRANGINIS, J.

The defendant Building Rehabilitations, LLC, appeals from the judgment of the trial court enjoining arbitration. On appeal, the defendant claims that the court improperly concluded that the parties’ contract did not provide for arbitration of disputes arising under the contract. We affirm the judgment of the trial court.

This dispute arises from an agreement between the parties that required the plaintiff, Eloise Marinos, to perform architectural services for the defendant as part of a project to renovate a vacant building into law offices. The parties’ relationship, however, deteriorated for reasons not relevant to this appeal. Subsequently, the defendant discharged the plaintiff and filed a demand for arbitration with the American Arbitration Association. The defendant claimed $100,000 in damages allegedly caused by the plaintiff in the design of the project. The plaintiff sought to enjoin the defendant from compelling the plaintiff to arbitrate on the ground that there was no written agreement between the parties to arbitrate. The court granted the injunction. This appeal followed.

“Our Supreme Court recently set forth the governing principles for our standard of review as it pertains to a trial court’s discretion to grant or deny a request for an injunction: A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. ... A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion. . . . Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion . . . the trial court’s decision must stand.” (Internal quotation marks omitted.) Grangers. A. Aiudi & Sons, 60 Conn. App. 36, 44, 758 A.2d 417, cert. denied, 255 Conn. 902, 762 A.2d 908 (2000).

“Arbitration is a creature of contract. ... It is designed to avoid litigation and secure prompt settlement of disputes and is favored by the law.” (Internal quotation marks omitted.) Spicer v. Spicer, 33 Conn. App. 152, 159, 634 A.2d 902 (1993), cert. denied, 228 Conn. 920, 636 A.2d 850 (1994). “[A] person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed to do so. ... No one can be forced to arbitrate a contract dispute who has not previously agreed to do so.” (Internal quotation marks omitted.) Green v. Connecticut Disposal Service, Inc., 62 Conn. App. 83, 86-87, 771 A.2d 137, cert. denied, 256 Conn. 912, 772 A.2d 1124 (2001). Therefore, “[t]he authority for arbitration must be derived from the agreement of the parties . . . and the relevant provisions of applicable statutory directives. . . . Fink v. Golenbock, 238 Conn. 183, 194, 680 A.2d 1243 (1996); see General Statutes § 52-408 et seq.” (Internal quotation marks omitted.) ALCA Construction Co. v. Waterbury Housing Authority, 49 Conn. App. 78, 82, 713 A.2d 886 (1998). General Statutes § 52-408 provides: “An agreement in any written contract, or in a separate writing executed by the parties to any written contract, to settle by arbitration any controversy thereafter arising out of such contract, or out of the failure or refusal to perform the whole or any part thereof, or a written provision in the articles of association or bylaws of an association or corporation of which both parties are members to arbitrate any controversy which may arise between them in the future, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.” (Emphasis added.)

“The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence. ... To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. ... To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties. . . . Because the defendant’s claim involves a finding of fact, we must adhere to the longstanding principle that findings of fact are ordinarily left undisturbed upon judicial review.” (Citation omitted; internal quotation marks omitted.) Cheverie v. Ashcraft & Gerel, 65 Conn. App. 425, 439-40, 783 A.2d 474, cert. denied, 258 Conn. 932, 785 A.2d 228 (2001).

“The trial court’s findings [of fact] are binding upon this court unless they are clearly erroneous in light of the evidence .... We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Noble v. White, 66 Conn. App. 54, 60, 783 A.2d 1145 (2001).

In this case, the court found that there was no written agreement to arbitrate between the parties. Although there was evidence that the plaintiff had sent a proposed contract containing language that disputes would be resolved by arbitration, the evidence failed to establish that the defendant had agreed to the proposed contract. In fact, the proposed contract was marked “DRAFT” and was not signed by the defendant. After the plaintiff started the project, she sent a letter to Patricia Beckett, the sole owner who was forming the defendant, informing her that a contract was necessary. Beckett, however, refused to sign a contract until the defendant was formed as a limited liability company and the property to be renovated was acquired.

The court properly noted that there is no requirement that a written agreement to arbitrate be signed by both parties; Schwarzschild v. Martin, 191 Conn. 316, 321, 464 A.2d 774 (1983); however, the court found that the defendant did not otherwise manifest its assent to be bound. The only evidence that the proposed contract was in fact the parties’ agreement was Beckett’s testimony that she believed the contract was “operable.” The court, however, rejected her testimony as not credible. “The resolution of conflicting factual claims falls within the province of the trial court. . . . [W]e cannot retry the facts or pass on the credibility of . . . witness [es].” (Citation omitted; internal quotation marks omitted.) Crepeau v. Gronager, 41 Conn. App. 302, 310, 675 A.2d 1361 (1996). The court’s finding that the parties did not have a written agreement to arbitrate was not clearly erroneous. We therefore conclude that the court’s decision to enjoin arbitration was not an abuse of its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendant, the American Arbitration Association, is not a party to this appeal. We therefore refer in this opinion to the defendant Building Rehabilitations, LLC, as the defendant.

       The defendant was formed on September 14, 1998. It took title to the property on October 6, 1998.


text:
    JANIS SOLOMON v. MORTON SOLOMON
    (AC 20813)
    Lavery, C. J., and Flynn and Dupont, Js.
    Submitted on briefs September 12
    officially released November 20, 2001

      Michael A. Blanchard filed a brief for the appellant (defendant).

      Sheila S. Horvitz filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Morton Solomon, appeals from the trial court’s orders rendered in this action for the dissolution of the parties’ marriage. On appeal, the defendant claims that the court abused its discretion (1) by failing to award him alimony and (2) in the division of assets.

“A trial court, in deciding family matters, is vested with broad discretion. . . . Appellate review of the exercise of that discretion is limited to determining whether the trial court correctly applied the law ....

“A dissolution action is essentially equitable in nature. . . . The trial court’s equity powers are essential to the task of fashioning relief out of the infinite variety of factual situations presented in family cases. . . . Decision making in family cases requires flexible, individualized adjudication of the particular facts of each case. This court will not substitute its own opinion for the factual findings of the trial court. . . . The trial court has a distinct advantage over a reviewing court in determinations of fact in domestic relations matters because all of the surrounding circumstances, including the appearance and attitude of the parties, are so important. . . . The trial court has the unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold printed record which is available to the reviewing court.” (Citations omitted; internal quotation marks omitted.) Barbieri v. Guaglianone, 58 Conn. App. 378, 379-80, 754 A.2d 180, cert. denied, 254 Conn. 927, 761 A.2d 751 (2000).

In the present case, the court did not prepare a written memorandum of decision and did not sign the transcript of its oral decision, as required by Practice Book § 64-1. An unsigned transcript provided by the defendant reveals, however, that the court, in issuing its decision in open court, intended to order a transcript that would be signed and put in the judgment file. In view of that fact, and the fact that we have reviewed claims when an unsigned transcript contains a sufficiently detailed and concise statement of the trial court’s findings; see Bank of America, FSB v. Franco, 57 Conn. App. 688, 691 n.1, 751 A.2d 394 (2000); we will review the defendant’s claims.

The transcript reveals that the court took into consideration, among other things, the occupations of the parties, their ages, their contributions to the marriage, the cause of the breakdown of the marriage and their opportunities for future earnings, and therefore properly considered factors set forth in General Statutes §§ 46b-81 (c) (setting forth factors for distribution of assets) and 46b-82 (setting forth factors for determining alimony). It is clear that the court properly applied the law and reasonably rendered its orders on the basis of all of the facts.

The judgment is affirmed.


author: MIHALAKOS, J.

text:
    LASALLE NATIONAL BANK v. WINTHROP C. SHOOK ET AL.
    (AC 21281)
    Lavery, C. J., and Mihalakos and Dupont, Js.
    Argued September 12
    officially released November 20, 2001

      Theodore A. Harris, for the appellants (defendants Winthrop C. Shook and Janice C. Shook).

      Ronald E. Lyles, with whom, on the brief, was Allan B. Taylor, for the appellee (substitute plaintiff).
   Opinion

MIHALAKOS, J.

The defendants Winthrop C. Shook and Janice C. Shook appeal from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, LaSalle Bank National Association. On appeal, the defendants claim that the court improperly granted the plaintiffs motion for summary judgment because genuine issues of material fact existed with respect to their three special defenses. We affirm the judgment of the trial court.

The pleadings, affidavits and other documentary information presented to the court reveal the following facts. On July 1, 1997, the defendants executed an amended and restated promissory note in the principal amount of $278,670.63 payable to LaSalle National Bank. The note was secured by a mortgage on real property at 245 Boston Post Road in East Lyme.

On March 12, 1999, following the defendants’ default for nonpayment, the plaintiff commenced this foreclosure action. The defendants asserted three special defenses sounding in equity. Specifically, the defendants alleged that (1) the plaintiff failed to provide them with a payment address, (2) the action was barred by laches due to the plaintiffs failure to take any action to enforce the note for a period in excess of one and one-half years, and (3) the acceleration of the debt was ineffective in that the plaintiff failed to demand any of the monthly payments that were due pursuant to the note and failed to provide any means of making such payments, such as a payment book, invoices or an address. The plaintiff filed a motion for summary judgment to which the defendants objected. The court, Martin, J., granted the plaintiff summary judgment as to liability only. Thereafter, on September 27, 2000, the court, Hon. D. Michael Hurley, judge trial referee, rendered a judgment of strict foreclosure, and determined the amount of the debt and attorney’s fees due and owing. This appeal followed. Additional facts and procedural history will be set forth as necessary.

The standard for appellate review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 17-49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . Further, the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the court rendered judgment for the plaintiffs as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Bank of America, FSB v. Hanlon, 65 Conn. App. 577, 580-81, 783 A.2d 88 (2001).

“[A] foreclosure action constitutes an equitable proceeding. ... In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Internal quotation marks omitted.) Northeast Savings, F.A. v. Hintlian, 241 Conn. 269, 275, 696 A.2d 315 (1997); see also New Milford Savings Bank v. Jajer, 244 Conn. 251, 256, 708 A.2d 1378 (1998).

Historically, defenses to a foreclosure action have been limited to “payment, discharge, release or satisfaction ... or, if there had never been a valid hen.” (Citation omitted.) Petterson v. Weinstock, 106 Conn. 436, 441, 138 A. 433 (1927). “The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.” (Internal quotation marks omitted.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d 1128 (1999). A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity or enforcement of the mortgage, the note or both. See Southbridge Associates, LLC v. Garofalo, 53 Conn. App. 11, 15-16, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999). “Where the plaintiffs conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles.” Id., 15, citing Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980). Furthermore, “if the mortgagor is prevented by accident, mistake or fraud, from fulfilling a condition of the mortgage, foreclosure cannot be had . . . .” (Citations omitted.) Petterson v. Weinstock, supra, 442.

The defendants do not contest the existence of the underlying debt. They do, however, contest the imposition of default interest and late fees. Therefore, the only issue on appeal is whether there are material facts in dispute that would affect a legitimate equitable defense. We conclude that there are not.

I

The defendants first argue that the court improperly granted the plaintiffs motion for summary judgment as to their first special defense because such a defense is a legally recognizable special defense and because there was a dispute as to the material facts supporting it. In their first special defense, the defendants claimed that the plaintiff failed to communicate with them and provide a billing address or alternative means of making payments. Citing Petterson v. Weinstock, supra, 106 Conn. 436, the defendants argue that the plaintiffs failure to provide them with a payment address is a valid equitable defense. Their reliance on Petterson, however, is misplaced.

Petterson is easily distinguished from the present case. In Petterson, the defendants’ own mistake was the cause of their default. The plaintiff took advantage of that mistake by immediately accelerating the note without notice and commencing a foreclosure proceeding. In that case, the plaintiff refused to accept the defendants’ tender of payment.

In the present case, it is undisputed that the defendants have made no attempt to tender payment, even after receiving the correct payment address. In that regard, the court referenced a letter dated July 13,1998, informing the defendants of the correct payment address. The plaintiff did not accelerate the note until five months after the defendants received that letter, but nonetheless failed to make any payments. We agree with the court that once the defendants received the correct payment address, the defense of mistake no longer applied. Because there is no genuine issue of material fact, the plaintiff was entitled to summary judgment on the first special defense as a matter of law.

II

In their second special defense, the defendants claimed that the foreclosure action was barred by the doctrine of laches. They argue that there was a genuine issue as to whether the plaintiffs delay caused them to incur exorbitant amounts of default and late charges, and that they should have been allowed to prove their defense of laches. We disagree.

“Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Voll, 38 Conn. App. 198, 210, 660 A.2d 358, cert. denied, 235 Conn. 903, 665 A.2d 901 (1995). Lapse of time, alone, does not constitute laches. It must result in prejudice to the defendant as where, for example, the defendant is led to change his position with respect to the matter in question; Emerick v. Emerick, 28 Conn. App. 794, 804, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992); or the delay works a disadvantage to another. Unified School District No. 1 v. Dept. of Education, 64 Conn. App. 273, 287, 780 A.2d 154, cert. denied, 258 Conn. 910, 782 A.2d 1253 (2001).

The court determined that the defendants provided no evidence to show that the delay was inexcusable or that it substantially prejudiced them. Accordingly, there is no evidentiary basis for the defendants’ claim that a genuine issue of material fact existed regarding that issue. Furthermore, “the absence of any findings relevant to the issue of laches limits our review to determining whether laches must be found upon the record as a matter of law.” Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 350, 579 A.2d 1054 (1990). We conclude that the delay in this case was not prejudicial as a matter of law.

Ill

The defendants’ final claim is that the court improperly refused to exercise its equitable power to prohibit acceleration because to allow acceleration would require the defendants to perform a “useless act.” The defendants, however, did not present that argument to the trial court.

Although this claim derives from the underlying equitable claims of the defendants, the issue of whether they were required to perform a useless act was not raised before the trial court. Practice Book § 60-5 provides in relevant part that “[t]he [appellate] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” It is well established that appellate courts do not consider issues of law that were not presented first to the trial court absent exceptional circumstances. See Taylor v. Zoning Board of Appeals, 65 Conn. App. 687, 697, 783 A.2d 526 (2001).

The defendants’ argument to the trial court centered on the plaintiffs failure to demand monthly payments and to provide a payment address. The defendants cannot now change their argument. Accordingly, we decline to. review the defendants’ claim.

Because there was no genuine issue of material fact as to liability, and the defendants could no longer claim equitable defenses when the plaintiff apprised them of the proper payment address, the court properly granted the plaintiffs motion for summary judgment.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       The plaintiff brought this foreclosure action against the following defendants: Winthrop C. Shook, Janice C. Shook, Dawn Vernieri, Donna Crisuolo, Post Road Video, Grace Koch, Robin Erickson, Janet Brown and My Convenience Store. This appeal concerns only Winthrop C. Shook and Janice C. Shook.

       On October 6, 2000, the court granted the plaintiff’s motion to open the judgment of strict foreclosure for the sole purpose of substituting LaSalle Bank National Association for LaSalle National Bank as the party plaintiff.

       The transaction modified a previous agreement entered into on September 9, 1988, whereby the defendants executed a $300,000 promissory note payable to New England Savings Bank. Thereafter, the Federal Deposit Insurance Corporation was appointed receiver of New England Savings Bank, and the loan documents were assigned to the named plaintiff.

       The defendants focus on the court,’s characterization of their actions. The court concluded that the defendants’ first special defense was “functionally identical to the special defense of mistake” found in Petterson. Whether the mistake was on the part of the plaintiff or the defendant is irrelevant to this case. Once it was corrected, the defendants were obligated to tender payment to the plaintiff.

       The court noted that Winthrop C. Shook, during his deposition, said that he was not prejudiced in any way by the amount of time that it took for the named plaintiff to file for foreclosure.

       The defendants pleaded as a third special defense that “[t]he puiported acceleration of the sums is ineffective in that the plaintiff failed at all times to demand any of the monthly payments which were due pursuant to the note and failed to provide any means of making such payments, such as payment book, invoices and/or addresses.”


text:
    SUSAN FLYNN v. JEFFREY W. KAUMEYER ET AL.
    (AC 20817)
    Lavery, C. J., and Mihalakos and Dupont, Js.

      Argued September 12
    officially released November 20, 2001

      Michael J. McCabe, for the appellants (defendants).

      Heather M. Brown, for the appellee (plaintiff).
   Opinion

DUPONT, J.

This is an appeal from the judgment rendered for the plaintiff in an action for breach of contract, which included an award of interest pursuant to General Statutes § 37-3a as well as interest and statutory attorney’s fees in the amount of $350 pursuant to General Statutes § 52-192a. The judgment of the trial court was rendered pursuant to a report from an attorney trial referee. The only issue on appeal concerns the amount of interest due to the plaintiff. The defendants’ primary claim is that the plaintiff cannot recover interest on the judgment as provided in § 52-192a (b) because the plaintiffs offer of judgment was not a valid offer of judgment as contemplated by § 52-192a (a). The defendants also claim that § 37-3a interest should not have been awarded.

The following facts are relevant to the disposition of this appeal. The plaintiff commenced this action on July 7, 1998, alleging that she and the defendants, Jeffrey W. Kaumeyer and Janet Kaumeyer, had executed an agreement for the sale of real estate, contingent on the plaintiff obtaining a particular mortgage commitment. In the event that the plaintiff could not obtain a mortgage loan, the contract provided that the defendants were to return a deposit of $62,730, less $150. On August 2,1999, following the plaintiffs offer of judgment dated June 7,1999, and a trial on July 7,1999, the attorney trial referee issued his report. He found that the plaintiffs mortgage loan application had been rejected, that she had notified the defendants and that despite a demand for the return of the deposit, the defendants refused to return it.

The attorney trial referee specifically found that the plaintiff had pursued her application for a mortgage loan with diligence and that as of April 28, 1998, the plaintiff was entitled to receive the sum of $62,580. The referee further found that the plaintiff was entitled to receive interest pursuant to § 37-3a at the rate of 10 percent per annum from the date that the plaintiff was entitled to the return of her deposit. As of the date of the referee’s report, the deposit and interest equaled $70,054.80. Because the offer of judgment was $69,893.52, an amount less than the total sum due the plaintiff as a result of the referee’s award, the referee determined that the plaintiff also should recover 12 percent interest and statutory attorney’s fees in the amount of $350 as provided in § 52-192a (b). The court accepted the report and rendered judgment in the total amount of $87,005.76. This appeal followed.

The defendants claim that the attorney trial referee did not find that the defendants “wrongfully” detained the plaintiffs deposit and, therefore, no § 37-3a interest should have been awarded to the plaintiff. Because this claim affects the amount of the judgment for the purposes of the calculation of the § 52-192a interest; See Paulus v. LaSala, 56 Conn. App. 139, 149-51, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000); we discuss this claim first.

The words used in § 37-3a are “detention of money after it becomes payable.” The word “wrongfully” is not used in the statute. Although the statute does not describe the detention as wrongful, our case law requires a determination that the party against whom the interest is to be awarded “has wrongfully detained money due the other party . . . .” (Internal quotation marks omitted.) State v. Lex Associates, 248 Conn. 612, 628, 730 A.2d 38 (1999). If the money due is not money to which the plaintiff is entitled, it is not wrongfully detained. Id., 629. If, however, it is determined that a defendant has breached a contract, the detention of money that became due as a result of the breach, plus interest thereon, may be awarded at the discretion of the trier of fact. West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 321, 541 A.2d 858 (1988).

The attorney trial referee found that the plaintiff was entitled to the money as of April 28, 1998, and that the defendants refused to return it. The referee found that the plaintiff had complied with the terms and conditions of the mortgage commitment contingency, the plaintiff pursued her application for a loan diligently, the plaintiff was unable to obtain a mortgage commitment, the plaintiff notified the defendants of her inability and submitted documents sufficient to prove the same, the plaintiff was entitled to recover her down payment and that the defendants had refused to return it. Clearly, the referee’s findings of fact are tantamount to a conclusion that the defendants wrongfully detained the plaintiffs money after it was payable.

In their brief, the defendants make the blanket statement that the discretionary interest awarded pursuant to § 37-3a should not have been added to the amount of the damages to determine whether the plaintiff was entitled to recover the offer of judgment interest as provided by § 52-192a (b). No argument or citation bolsters the defendants’ argument, and the defendants give no reason or rationale for the statement.

The defendants acknowledge that the award of prejudgment interest is discretionary. See State v. Lex Associates, supra, 248 Conn. 628; West Haven Sound Development Corp. v. West Haven, supra, 207 Conn. 321; Paulus v. LaSala, supra, 56 Conn. App. 147. We also note that it is well settled that such interest is an element of damages. Nor’Easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 482, 542 A.2d 692 (1988). An offer of judgment is an offer to settle the case completely, including all compensatory damages. Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 307, 472 A.2d 316 (1984). Prejudgment interest for money detained after it becomes due is compensatory because it compensates or reimburses plaintiffs for the interest they could have earned on the money that was rightfully theirs, but that was not paid when it became due. See Paulus v. LaSala, supra, 151.

The dicta in Gillis v. Gillis, 21 Conn. App. 549, 554-55, 575 A.2d 230, cert. denied, 215 Conn. 815, 576 A.2d 544 (1990), indicates that the total of money damages, including § 37-3a interest, recovered by a plaintiff is the appropriate amount to be considered when determining whether the amount of the plaintiffs recovery equals or is greater than the sum certain stated in the plaintiffs offer of judgment. See also Paulus v. LaSala, supra, 56 Conn. App. 143 n.5.

An award of § 37-3a interest is discretionary, and a trial court need not award any interest if it concludes that such interest is inequitable in view of the mandatory award of § 52-192a interest. Loomis Institute v. Windsor, 234 Conn. 169, 181-82, 661 A.2d 1001 (1995); Munroe v. Emhart Corp., 46 Conn. App. 37, 45, 699 A.2d 213, cert. denied, 243 Conn. 926, 701 A.2d 658 (1997). Frequently, however, prejudgment interest as provided in § 37-3a and the statutory interest provided by § 52-192a have both been awarded. See, e.g., Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 164-66, 681 A.2d 293 (1996); Aubin v. Miller, 64 Conn. App. 781, 797-99, 781 A.2d 396 (2001); Paulus v. LaSala, supra, 56 Conn. App. 139; Gillis v. Gillis, supra, 21 Conn. App. 554-55. The court in this case made no determination that the award of both types of interest would make the award of § 37-3a interest inequitable.

Prejudgment interest may be awarded at the discretion of the trier of fact as an element of liquidated damages in breach of contract cases. Nor’Easter Group, Inc. v. Colossale Concrete, Inc., supra, 207 Conn. 482-83; Foley v. Huntington Co., 42 Conn. App. 712, 738-40, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). We hold that such interest should be included when determining whether the plaintiff recovered an amount equal to or greater than the sum stated in the plaintiffs offer of judgment except in the event that the trier finds special circumstances of inequity. The amount recovered by the plaintiff here included the 10 percent interest of § 37-3a, and that amount exceeded the offer of judgment made by the plaintiff, thereby triggering the imposition of the additional interest provided by § 52-192a.

The defendants argue that the amount of the offer of judgment must be a fair and reasonable compromise of litigation without a trial or it is void. In this case, the plaintiffs offer of judgment was filed one month prior to trial, and the offer of judgment included § 37-3a interest. The defendants claim that the offer was unreasonable because it exceeded the amount of the damages sought for the contractual breach and because, at the time it was made, the attorney trial referee had not yet found the amount of damages due and had not yet awarded § 37-3a interest. As an unreasonable offer, the defendants claim that § 52-192a interest cannot be due.

Our first observation is that at the time an offer of judgment is made, it is always true, short of clairvoyant counsel, that the amount of damages is not yet known. Nothing in the language of § 52-192a (a) or (b) indicates that the offer of judgment must not include § 37-3a interest. Furthermore, our case law provides that such interest is an element of damages.

The purpose of § 52-192a is to encourage pretrial resolution of disputes by allowing a plaintiff to make an offer and allowing a defendant to accept a reasonable offer of settlement to save the time and expense of trial. Kusha v. Respondowski, 3 Conn. App. 570, 573-74, 490 A.2d 1014 (1985). Our Supreme Court has stated that “[i]n construing § 52-192a, we first note that its purpose is to encourage pretrial settlements and, consequently, to conserve judicial resources. . . . [T]he strong public policy favoring the pretrial resolution of disputes ... is substantially furthered by encouraging defendants to accept reasonable offers of judgment. . . . Section 52-192a encourages fair and reasonable compromise between litigants by penalizing a party that fails to accept a reasonable offer of settlement. . . . In other words, interest awarded under § 52-192a is solely related to a defendant’s rejection of an advantageous offer to settle before trial and his subsequent waste of judicial resources.” (Citations omitted; internal quotation marks omitted.) Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 742, 687 A.2d 506 (1997). Although an offer of settlement is described as “reasonable” in the foregoing quotation from EI Constructors, Inc., the determination of the reasonableness of an offer is solely left to a defendant to determine. It is the defendant who must decide if the amount is reasonable in view of the probable liability and the size of the probable dollar recovery after a trial.

“An offer of judgment is an offer to settle the entire case, including claims both known and unknown, and both certain and uncertain.” Lutynski v. B.B. & J. Trucking, Inc., 31 Conn. App. 806, 813, 628 A.2d 1 (1993), aff'd, 229 Conn. 525, 642 A.2d 7 (1994). In addition to money saved by avoiding litigation expenses, a defendant might also save the discretionary interest of § 37-3a. A defendant must assess the degree of possibility that interest may be awarded in the event that the trier determines that money has been detained by a defendant after it became due. The defendants here risked that a judgment would not include § 37-3a interest. The vagaries of the components of settlement include a possibility that § 37-3a interest will be awarded in some cases. In the present case, the possibility became reality.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 37-3a provides in relevant part: “Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable. . . .”

       General Statutes § 52-192a (a) provides in relevant part: “After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, 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. ...”

        General Statutes § 52-192a (b) provides in relevant part: “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. . . .”

       The damages for the breach were $62,580, the interest pursuant to § 37-3a equaled $10,794.98, the interest pursuant to § 52-192a (b) was $13,280.78 and the attorney’s fees were $350.

       Ordinarily, an issue that is raised for which there is no substantive discussion or citation of authority is deemed abandoned. In re Antonio M., 56 Conn. App. 534, 545, 744 A.2d 915 (2000). Here, however, the claim affects whether the mandatory statutory interest provided in § 52-192a offers of judgment should have been awarded, and we therefore discuss it.