text:
    Helen Hayes v. Manchester Memorial Hospital et al.
    (12453)
    Foti, Lavery and Heiman, Js.
    Argued March 22
    decision released July 18, 1995

      Louis W. Flynn, Jr., with whom, on the brief, were William J. Bumster and Elizabeth Moreshead, for the appellant (plaintiff).

      Lois Tanzer and Louis B. Blumenfeld, with whom, on the brief, was Lorinda S. Coon, for the appellees (defendants).
   Foti, J.

The plaintiff appeals from the judgment rendered, after a jury trial, in favor of the defendants. The plaintiff claims that the trial court improperly (1) limited cross-examination of the defendants’ expert witness and (2) denied her challenge of a juror for cause. We reverse the judgment of the trial court.

The jury could reasonably have found the following facts. The plaintiff suffered a fall in her home that required her to be transported by ambulance to the emergency room at the defendant Manchester Memorial Hospital. The defendant Wells Jacobson was the orthopedic physician assigned to treat the plaintiff. X rays taken of the plaintiff’s left leg showed a comminuted fracture of the left femur. Jacobson performed surgery to set the fracture. One day prior to the plaintiff’s scheduled discharge from the hospital, X rays of her left hip were taken and showed a fracture of the femoral neck. A second surgical procedure was performed to set this fracture.

The plaintiff subsequently filed a medical malpractice action against the defendants, alleging a failure to read and interpret her X rays properly and a failure to take necessary X rays. One of the issues at trial related to the adequacy of hip X rays taken at the time of the plaintiff’s admission. Jacobson and the defendants’ expert witness, Alan Goodman, an orthopedist, testified to the adequacy of the hip X rays under the circumstances in this case. The jury rendered a verdict in favor of the defendants on December 17,1992. The plaintiff’s motion to set aside the verdict was denied by the trial court.

The plaintiff first argues that the trial court improperly limited the cross-examination of Goodman, the expert witness called by the defendants to testify as to the proper standard of care. The trial court refused to allow the plaintiff to cross-examine Goodman, for purposes of attacking his credibility, as to a lawsuit brought against him. That lawsuit alleged the same or similar claims of medical negligence against Goodman as those present here. The trial court, while allowing the complaint against Goodman to be marked for identification, and recognizing that the plaintiff’s claim of relevance went to both motive and bias rather than professional competence, ruled that the prejudicial effect of that evidence outweighed its probative value. The court determined that the allegations in the two lawsuits were superficially similar, but noted that sufficient opportunity existed “in the ordinary manner, of also exploring his motive as well as his bias . . . in connection with his activity on behalf of defendants.”

The plaintiff contends that the jury should have been informed of the similar lawsuit against Goodman because this information would have been relevant in determining Goodman’s credibility, bias and motive. The lawsuit against Goodman involved the reading and ordering of X rays. That suit was pending at the time Goodman was deposed as an expert witness in this case, but it was settled prior to Goodman’s giving testimony. The plaintiff contends that this evidence was sufficient to demonstrate Goodman’s motive to testify as he did. In order to remain consistent and not to admit that he had failed to conform to the applicable standard of care, he had to conclude that the defendant did not deviate from the standard of care in the alleged misreading of X rays and failure to order additional X rays. The plaintiff argues that it was thus in Goodman’s best interest to give the opinion that he did and that it would have been contrary to his interest to testify that there had been a deviation in this case.

“Generally, evidence is admissible to prove a material fact that is relevant to the cause of action alleged by the plaintiff. Chouinard v. Marjani, 21 Conn. App. 572, 575, 575 A.2d 238 (1990). A trial court has broad discretion in ruling on the admissibility of evidence, and we will not disturb such a decision absent an abuse of discretion. Id. Nevertheless, ‘[t]he exercise of discretion to omit evidence in a civil case should be viewed more critically than the exercise of discretion to include evidence. It is usually possible through instructions or admonitions to the jury to cure any damage due to inclusion of evidence, whereas it is impossible to cure any damage due to the exclusion of evidence.’ Larensen v. Karp, 1 Conn. App. 228, 237, 470 A.2d 715 (1984) . . . .” (Citations omitted.) Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 217, 645 A.2d 557, cert. denied, 231 Conn. 915, 648 A.2d 154 (1994).

Cross-examination is an indispensable means of eliciting facts that may raise questions about the credibility of witnesses and, as a substantial legal right, it may not be abrogated or abridged at the discretion of the court to the prejudice of the party conducting that cross-examination. Richmond v. Longo, 27 Conn. App. 30, 38, 604 A.2d 374, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992). It is well settled that the credibility of an expert witness is a matter to be determined by the trier of fact. In re Juvenile Appeal, 184 Conn. 157, 170, 439 A.2d 958 (1981). Such a witness can be examined concerning the factual basis of that expert’s opinion. State v. Steiger, 218 Conn. 349, 372, 590 A.2d 408 (1991). An important function of cross-examination is the exposure of a witness’ motivation in testifying. Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959).

The trial court found that the prejudicial impact of the proffered cross-examination evidence relating to the witness’ credibility due to his motive or bias outweighed its probative value. “In order to exclude evidence on the ground of prejudice, there must be undue prejudice great enough to threaten an injustice.” Martins v. Connecticut Light & Power Co., supra, 35 Conn. App. 220. The burden of showing that the evidence may unduly arouse the jurors’ emotions of hostility or sympathy rests with the party claiming prejudice. Id.

“When the evidence is relevant and the likelihood of prejudice is not great, deviation from the general rule of admissibility is not warranted and discretion has been abused if the evidence is excluded.” Id., 221; see also Batick v. Seymour, 186 Conn. 632, 638, 443 A.2d 471 (1982). We do not agree with the trial court’s finding that the evidence was unduly prejudicial. Any resulting prejudice cannot be so undue and so great as to threaten an injustice. A basic and proper purpose of cross-examination of an expert is to test that expert’s credibility. Richmond v. Longo, supra, 27 Conn. App. 38. Motive for testifying is certainly a permissible line of questioning for that purpose. The plaintiff was deprived of the right to have the jury, as trier of fact, weigh the credibility of the expert witness by assessing his motives for testifying as he did. We conclude that the trial court abused its discretion in excluding that evidence.

The plaintiff is entitled to relief from an erroneous ruling on the admissibility of evidence only if that ruling is also harmful; she must demonstrate that the ruling was likely to have affected the result of the trial. Martins v. Connecticut Light & Power Co., supra, 35 Conn. App. 222. The plaintiff has met her burden. The evidence excluded goes to the principal issue to be resolved by the jury, whether the duty of the defendants to conform to the applicable standard of care was breached by the failure of the defendants to properly interpret X rays or order additional X rays. As a result, we are required to remand this case for a new trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       In paragraph five of the complaint filed against Goodman, the sections claimed to be relevant provide: “[I]n that he failed to carry out adequate . . . x-ray studies to properly diagnose said left calcaneal fracture . . . in that he ignored or failed to avail himself of prior . . . x-rays of the plaintiff

       The record discloses that the court was aware that settlement of the Goodman complaint took place during jury selection in the present matter.

       The defendants argue that the plaintiff failed to create an adequate record for appellate review, and also that she waived her right to contest this issue. Our review of the record shows that both of these claims are without merit.

       Because of our disposition of this issue, we find it unnecessary to address the defendants’ other claim.


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Frederick Leavenworth et al. v. Carleton K. Mathes
    (13635)
    Dupont, C. J., and Foti and Heiman, Js.
    Argued April 27
    decision released July 18, 1995

      Robert J. Nichols, for the appellants (plaintiffs).

      Carla Ottaviano, for the appellee (defendant).
   Foti, J.

The plaintiffs appeal from the judgment of the trial court granting the defendant’s motion for summary judgment. We affirm the judgment of the trial court.

The plaintiffs brought this action against the defendant for legal malpractice. The action was originally filed on August 20,1991. Thereafter, the plaintiffs filed an amended two count complaint, alleging negligence and breach of contract by the defendant.

The plaintiffs are two of the three beneficiaries under the will of their deceased mother, Maude Leavenworth (testatrix). In 1988, the testatrix hired the defendant to prepare a will distributing her estate to her three children. The will contained the following distribution of property: (1) a specific bequest of $40,000 to the testatrix’s son, the plaintiff Frederick Leavenworth; (2) a specific bequest of $25,000 to the testatrix’s daughter, the plaintiff Phyllis Rainhard; and (3) a specific devise of the testatrix’s real property, consisting of two houses, to the testatrix’s son, Wesley Leavenworth.

The testatrix died on November 4,1989. At the time of her death, the liquid assets of her estate were insufficient to satisfy the specific bequests to the plaintiffs. In count one of the complaint, the plaintiffs alleged that the defendant was negligent in failing (1) to inquire into the amount and nature of the testatrix’s assets, (2) to recognize and address the conflicting provisions in the will, (3) to draft the will so that it provided for the real estate to be mortgaged or sold in order to pay the specific bequests, (4) to advise the testatrix of the implications of the conflicting provisions, and (5) to inquire into her wishes in handling those inconsistent provisions. Count two of the complaint alleged the breach of an implied contract by the defendant in that, by his negligence as alleged in the first count, he failed to carry out effectively the intentions of the testatrix.

On July 8,1993, the defendant filed a motion for summary judgment claiming that he owed no legal duty to the plaintiffs to ascertain the assets of the testatrix’s estate. On December 7, 1993, the trial court granted the defendant’s motion, concluding that once the defendant drafted a will in accordance with the testatrix’s wishes, and there was no claim made otherwise, the defendant had fulfilled his obligation to his client. On appeal, the plaintiffs claim that the trial court improperly granted the defendant’s motion for summary judgment. The plaintiffs argue that it was the defendant’s duty to use such professional skill as would be required to give effect to the intent of the testatrix. They argue that the defendant is liable to them for his failure to inquire into the nature of the testatrix’s assets and his failure to make a provision in the will to fund the specific bequests in the event that the testatrix’s assets were insufficient.

We begin our analysis by stating the standard by which we review the decision of the trial court in granting a motion for summary judgment. Practice Book § 384 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.” See Starkweather v. Patel, 34 Conn. App. 395, 400, 641 A.2d 809, cert. denied, 230 Conn. 905, 644 A.2d 918 (1994). “Even though the burden of showing the nonexistence of any material fact is on the party that seeks summary judgment, the party opposing summary judgment must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” Id. “ ‘When reviewing a trial court’s ruling on a motion for summary judgment, we 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.’ ” Eisele’s Nursery & Garden Center, Inc. v. Kirkegard, 37 Conn. App. 271, 275, 655 A.2d 1129 (1995).

To recover on a theory of negligence, the plaintiffs must establish that the defendant owed a duty to them and that he breached that duty. Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982). The existence of a duty is a question of law, and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation. Petriello v. Kalman, 215 Conn. 377, 382-83, 576 A.2d 474 (1990). The trial court granted summary judgment on the ground that the defendant did not owe a legal duty to the plaintiffs to inquire as to the amount of the assets of the testatrix. On appeal, we must determine whether the court’s conclusion that the defendant owed no duty under these circumstances, other than to prepare the will as requested by the testatrix, was “legally and logically correct.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

“As a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services. A number of jurisdictions have recognized an exception to this general rule when the plaintiff can demonstrate that he or she was the intended or foreseeable beneficiary of the attorney’s services. . . . Accordingly, courts have held that the intended beneficiary has a cause of action against an attorney who failed to draft a will in conformity with a testator’s wishes; see, e.g., [Stowe v. Smith, 184 Conn. 194, 199, 441 A.2d 81 (1981)]; Lucas v. Hamm, 56 Cal. 2d 583, 364 P.2d 685, 15 Cal. Rptr. 821 (1961), cert. denied, 368 U.S. 987, 82 S. Ct. 603, 7 L. Ed. 2d 525 (1962); Needham v. Hamilton, 459 A.2d 1060 (D.C. App. 1983); Ogle v. Fuiten, 112 Ill. App. 3d 1048, 445 N.E.2d 1344 (1983), aff'd, 102 Ill. 2d 356, 466 N.E.2d 224 (1984); failed to supervise the proper execution of a will; see, e.g., Licata v. Spector, 26 Conn. Sup. 378, 225 A.2d 28 (1966); Succession of Killingsworth, 292 So. 2d 536 (La. 1973); Auric v. Continental Casualty Co., 111 Wis. 2d 507, 331 N.W.2d 325 (1983); or failed to advise a client of the consequences of not revising a will; see, e.g., McAbee v. Edwards, 340 So. 2d 1167 (Fla. App. 1976) . . . .” (Citations omitted.) Krawczyk v. Stingle, 208 Conn. 239, 244-45, 543 A.2d 733 (1988). The claims of malpractice alleged in these cases focus on errors in the drafting and execution of the wills. Here, the plaintiffs make no claim that a particular bequest was not included as directed, or that the will was improperly drafted or executed. There is no claim that the defendant failed to draft the will in accordance with his client’s wishes, or that the testatrix was incompetent at the time of making the will. It is an attorney’s obligation to use the care, skill, diligence and knowledge that a reasonable, prudent lawyer would exercise in order to draft the will according to the wishes of the testatrix. The plaintiffs can point to no authority to support the proposition that an attorney owes a duty to the beneficiaries to ensure the existence of testamentary assets when drafting the instrument.

The plaintiffs argue that the defendant had a duty to “advise” the testatrix about the implications of the conflicting provisions of her will pertaining to the bequests and the devise. We see no conflict, however, on the face of the instrument. An attorney’s obligation to the client is to draft a will in accordance with that client’s wishes, having in mind the best interests of that client.

We conclude that the trial court properly determined the law and applied it correctly to the facts. There being no genuine issue as to any material fact, the defendant was entitled to judgment as a matter of law. Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs’ reliance on Licata v. Spector, supra, 26 Conn. Sup. 381, is misplaced. In that case, the purpose of the testatrix was “completely thwarted because of the negligence of the drafter.” Id. The will was declared invalid because the drafter had not provided the required number of witnesses, resulting in certain assets intended for the plaintiffs to be diverted to others.

       The plaintiffs contend that rule 1.1 of the Connecticut Rules of Professional Conduct requires, as part of competent legal representation, an “inquiry into and analysis of the factual and legal elements of the problem.” The plaintiffs argue that public policy dictates in favor of adopting this standard and imposing a duty upon attorneys drafting wills to conduct an inquiry into the assets of a testator. There is no evidence of a breach of the Rules of Professional Conduct in this case. Also, a breach of the Rules of Professional Conduct does not, of itself, give rise to a cause of action. Noble v. Marshall, 23 Conn. App. 227, 230, 479 A.2d 594 (1990).

       Our Supreme Court has warned that “[f]ear of liability to potential third party beneficiaries would contravene the attorney’s primary responsibility to . . . [effectuate] the client’s wishes . . . .” Krawczyk v. Stingle, supra, 208 Conn. 246.


author: Heiman, J.

text:
    State of Connecticut v. John Roy
    (12281)
    Lavery, Landau and Heiman, Js.
    Submitted June 5
    decision released July 18, 1995

      Daniel S. Blinn, special public defender, for the appellant (defendant).

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Timothy Liston, assistant state’s attorney, for the appellee (state).
   Heiman, J.

This matter is before us on remand from our Supreme Court. State v. Roy, 233 Conn. 211, 658 A.2d 566 (1995). The defendant originally appealed to this court from a judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103, as a lesser included offense of burglary in the first degree; General Statutes § 53a-101 (a) (1); larceny in the first degree in violation of General Statutes § 53a-122 (a), stealing a firearm in violation of General Statutes § 53a-212 and conspiracy to commit the crimes with which he was charged in violation of General Statutes § 53a-48.

In his original appeal to us, the defendant asserted that the trial court improperly (1) refused to suppress testimony concerning statements made by him to the police in violation of his Miranda rights, (2) denied his motion for judgment of acquittal and (3) convicted him of both larceny and stealing a firearm. State v. Roy, 34 Conn. App. 751, 753, 643 A.2d 289 (1994), rev’d, 233 Conn. 211, 658 A.2d 566 (1995). We resolved the first and third issues; id., 756-64, 766-72; but declined to afford him review on the second issue on the ground that he had failed to preserve properly his claim concerning the sufficiency of the evidence at trial. Id., 764-66.

Our Supreme Court granted certification limited to the following issue: “Did the Appellate Court properly conclude that the defendant was not entitled to review of his challenge to the sufficiency of the evidence for his conviction?” State v. Roy, 231 Conn. 918, 648 A.2d 166 (1994). The Supreme Court concluded that “[i]n the circumstances of this case,” the defendant is entitled to review of his unpreserved claim as to the existence of sufficient evidence to support his conviction. State v. Roy, supra, 233 Conn. 212. The Supreme Court reversed this court and remanded the case to us with direction to review the merits of the defendant’s challenge to the sufficiency of the evidence for his conviction. Id., 213.

We are persuaded that the evidence was more than sufficient to support the conviction of the defendant.

“The jury could reasonably have found the following facts. On the evening of July 13 and the early morning of July 14,1991, the defendant and Donald Young were riding in Young’s truck while contemplating breaking into a gun store in Bristol. The defendant was armed with a nine millimeter pistol and Young carried a .38 caliber revolver. They looked through the windows of a Bristol gun store and noted that no weapons were visible. As a result, they decided to find another store from which to steal guns.

“Both the defendant and Young had earlier observed Teddy’s Gun Shop in Haddam (Teddy’s) and had concluded that it was possible to break into that gun store because of its poor security. They thus decided, instead of breaking into the Bristol store, to break into Teddy’s. At the time that they made this decision, Young was operating his truck on Route 72 in Bristol.

“Teddy’s is located in a densely wooded area with sparse population. In the immediate vicinity of the store are an apartment complex, a house and a restaurant. Teddy’s is located on the second floor, over the Glockenspiel restaurant. Young parked his truck in the restaurant parking lot and he and the defendant walked to the area of the gun shop. At that time, the Glockenspiel restaurant had been closed for about one hour.

“The defendant turned off the power to the building. When the power was shut off, the defendant and Young climbed a ladder that they had placed on the west side of the building. They went to a window that was equipped with an alarm pressure switch and the defendant kicked the switch to bend it so that it would not pop up and activate the alarm. They broke the window, pushed up the window latch and the defendant entered the premises. Young waited outside observing the area in case a silent alarm had been activated.

“Young followed the defendant into Teddy’s through the window and they proceeded to load guns into gun cases. The defendant and Young remained in Teddy’s for about three hours. Before placing the guns in the cases, the defendant sprayed the guns with a very light oil to prevent rusting. In addition, they placed a .44 magnum, two .45 caliber, two nine millimeter and two .380 caliber guns in a small duffle bag for removal. The defendant and Young also took ammunition, holsters, magazines, several aimpoint laser scopes and a silencer. Young also removed about $100 from the cash register, which he later divided with the defendant.

“The boxes containing the stolen property were placed in Young’s truck and transported to the Cena-cle property in Middletown. The property is the site of an abandoned convent with wooded trails and several buildings in various states of disrepair. The defendant and Young took the boxes that contained some of the items removed from Teddy’s and stored them in an underground concrete structure that the defendant referred to as the ‘Witch Cabin.’ The structure had a heavy steel door over the top. The defendant took the stainless steel nine millimeter Baretta and the .380 caliber Baretta, and Young took the .22 caliber Baretta and the .38 caliber Smith and Wesson. They stored the remaining weapons and paraphernalia in the underground structure, covered the steel door with dirt and leaves, and left the area.

“On July 16,1991, Young and Ronald Pollack visited the underground structure and Young showed Pollack the weapons and other items that had been taken from Teddy’s. While they were at the structure, they shot one of the nine millimeter weapons. Young removed several of the weapons including a nine millimeter Luger with a silencer attached, a .45 caliber, a .22 caliber, a .380 caliber and another nine millimeter weapon. Young also attempted to file serial numbers from several of the weapons. Young and Pollack then traveled to East Hartford. Pollack was operating a vehicle with Young as the passenger. The vehicle was stopped by the East Hartford police and both Young and Pollack were arrested. When the police stopped the vehicle, Young placed the weapons that he had removed from the cache onto the floor of the vehicle. The East Hartford police took the weapons into possession, identified them as having been taken in the burglary at Teddy’s and notified the state police.

“On July 17, 1991, Young was interviewed by two Connecticut state police officers. During that discussion, Young told the police officers about the burglary. Pollack also spoke with the state police and directed the police to the underground structure where the weapons had been concealed by the defendant and Young. On July 17, 1991, the defendant was arrested pursuant to a warrant.” State v. Roy, supra, 34 Conn. App. 753-56.

Subsequent to his arrest, the defendant was interviewed by Detective Marsha Youngquist and Detective Patrick Gaffney of the Connecticut state police. During the course of the interview, Youngquist stated to the defendant that she knew that he and Young had committed the burglary at Teddy’s. In response to this statement, the defendant nodded his head and said, “Yes.” Furthermore, Youngquist asked the defendant what he and Young had taken from Teddy’s, and the defendant responded, “A lot of guns.” The defendant also told Youngquist that it was Young’s idea to break into the gun shop, and that they had used Young’s pickup truck to drive to the gun shop. Finally, the defendant accurately identified the date and time period during which the burglary had occurred.

The defendant’s attack on the sufficiency of the evidence is premised on his claim that the evidence produced by the state failed to establish that the defendant was present at the scene of the crime. The defendant posits as his basis for this claim a three pronged argument: (1) that the only evidence offered by the state to support the claim that the defendant was present at the scene of the crime was the testimony of Young and Youngquist, (2) that the defendant’s response of “Yes” to Youngquist’s statement that she knew that he and Young had broken into Teddy’s was vague and ambiguous, and that the other statements made by the defendant to Youngquist “failfed] to address the elements of the crimes [with] which he was charged,” and (3) that no reasonable jury could have believed the testimony of Young. We are not persuaded.

We employ a two part analysis in reviewing the sufficiency of the evidence to sustain a criminal conviction. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Citations omitted; internal quotation marks omitted.) Id.

Our review of the evidence in the light most 'favorable to sustaining the verdict satisfies us that the jury reasonably could have concluded that the defendant was present at the scene of the crime on the evening in question, and that he actively participated in carrying out the crimes for which he stands convicted.

“The issue of the identification of the accused as the perpetrator of the crime is peculiarly one of fact to be resolved by the jury. State v. Smith, 138 Conn. 196, 201, 82 A.2d 816 (1951). ‘If evidence, whether direct or circumstantial, should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction.’ Id., 200.” State v. Rivera, 32 Conn. App. 193, 201-202, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993).

In determining whether the defendant is guilty, “[i]t is the sole right of the jury as the trier of the facts to draw all reasonable and logical inferences from the facts as it finds them to exist.” State v. Reddick, 33 Conn. App. 311, 332, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994), citing State v. Gray, 221 Conn. 713, 721, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121L. Ed. 2d 148 (1992); State v. Rivera, supra, 32 Conn. App. 201.

“It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses.” State v. Reddick, supra, 33 Conn. App. 333, citing State v. Pinnock, 220 Conn. 765, 778-79, 601 A.2d 521 (1992); State v. Rivera, supra, 32 Conn. App. 201.

Furthermore, in considering the evidence introduced in a case, “[j]uries are not required to leave common sense at the courtroom door”; State v. Maxwell, 29 Conn. App. 704, 710, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287, cert. denied, 509 U.S. 930, 113 S. Ct. 3057, 125 L. Ed. 2d 740 (1993), citing State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985); nor are they “expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Little, 194 Conn. 665, 674, 485 A.2d 913 (1984).

From the facts established and the reasonable inferences to be drawn therefrom, it was reasonable for the jury to have found the defendant guilty. The jury heard testimony from two witnesses from which it could reasonably have concluded that the defendant was guilty. The jury heard Youngquist testify that (1) the defendant affirmatively responded to Youngquist’s statement that she knew the defendant and Young had committed the burglary at Teddy’s, (2) the defendant admitted that he and Young had taken “[a] lot of guns” from Teddy’s, (3) the defendant admitted that he and Young had used Young’s pickup truck to drive to the gun shop, and (4) the defendant accurately identified the date and time of the burglary.

The jury also had before it the unequivocal testimony of Young that the defendant was an active participant in the crimes with which he stood charged. The jury had the opportunity to judge the credibility of Young on the bases of his testimony and a comparison of that testimony with the admissions made by the defendant, some of which constituted circumstantial evidence of his participation in the crimes. “[W]e rely on the good sense and judgment of American juries to weigh evidence with some element of untrustworthiness since such evidence is customary grist for the jury mill.” (Internal quotation marks omitted.) State v. Reddick, supra, 33 Conn. App. 334, quoting State v. Fullwood, 193 Conn. 238, 254, 476 A.2d 550 (1984).

The defendant’s claim that the evidence was insufficient to identify him as having been present at and a participant in the crime is without merit. “The defendant in the present case has not met his burden on appeal of establishing that there was insufficient evidence from which a reasonable jury could have found each essential element of the crime charged beyond a reasonable doubt.” State v. Salz, supra, 226 Conn. 31.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       General Statutes § 53a-122 provides in pertinent part: “(a) A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and . . . (2) the value of the property or service exceeds ten thousand dollars . . . .”
      General Statutes § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...”

       General Statutes § 53a-212 (a) provides: “A person is guilty of stealing a firearm when, with intent to deprive another of his firearm or to appropriate the same to himself or a third party, he wrongfully takes, obtains or withholds a firearm, as defined in subdivision (19) of section 53a-3.”
      General Statutes § 53a-3 (19) provides: “ ‘Firearm’ means any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged.”

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

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Furthermore, the defendant failed to seek review of his unpreserved claim pursuant to the guidelines of State v. Golding, 213 Conn. 233,239-40, 567 A.2d 823 (1989).

         We have already concluded that the statements made by the defendant while in custody were properly admitted into evidence and that the defendant had knowingly, intelligently and voluntarily waived his constitutional rights under Miranda. State v. Roy, supra, 34 Conn. App. 756-64. This issue was not a part of the grant of certification by our Supreme Court. State v. Roy, supra, 231 Conn. 918.

       The trial transcript reveals that Youngquist testified as follows concerning her interview with the defendant:
      “I said to [the defendant] I know you [and Young] broke in, and he responded yes, and he nodded his head. . . .”

       The trial transcript reveals the following dialogue concerning Youngquist’s interview with the defendant:
      “[Prosecutor:] Could you tell us the best you recall the questions you asked and the answers Mr. Roy gave in connection with the Teddy’s Gun Shop case?
      “[Youngquist:] Yes. I told him that Donald Young had been arrested, and he was aware of that because he had seen the news of it. I told him that we had gotten the guns back, and I asked him to tell me his version of what happened. ... He told me he had known Donald for sometime and that they had done a lot together and that it was Donald’s idea to break into the gun shop. He said they used Donald’s blue pickup to drive down to the gun shop, and Donald knew the area because his grandfather used to have a barber shop there. And he acknowledged being in the shop. He acknowledged—
      “Q. [Interposing] How did that come about? Specifically, do you recall what questions, answers or what happened?
      “A. I said to him that I know you two broke in, and he responded yes, and he nodded his head. And I asked him what — what did you get? And he said: ‘A lot of guns.’
      “Q. Did he give you the time frame or did you ask him anything about a time frame?
      “A. Yes, I did, and he said that it was late Saturday into early Sunday.”


text:
    State Bank of Westchester v. New Dimension Homes of Connecticut, Inc., et al.
    (13967)
    Dupont, C. J., and Foti and Heiman, Js.
    Argued April 27
    decision released July 18, 1995

      Neil R. Marcus, with whom was Daniel F. Wolf, for the appellants (defendants).

      PaulE. Bums, with whom, on the brief, was William Nathaniel Carroll, for the appellee (plaintiff).
   Heiman, J.

In this foreclosure action, the defendants appeal from the judgment of the trial court in favor of the plaintiff. On appeal, the defendants claim that the trial court improperly (1) determined that an attorney trial referee was authorized to rule on the defendants’ contested motion to amend their answer, (2) found that the attorney trial referee correctly denied that motion to amend, and (3) rendered judgment in accordance with the recommendations of the attorney trial referee. We agree with the defendants that the trial court incorrectly determined that an attorney trial referee has the authority to rule on a motion to amend and reverse the judgment of the trial court.

The following facts are relevant to this appeal. In early 1988, the defendant N. David Hanania began negotiations regarding the purchase of five lots in Wilton with the intention of developing those lots residen-tially. The defendant corporation, New Dimension Homes of Connecticut, Inc., was created for the purpose of acquiring and developing this property. At about this time, John Fitzgerald, chairman of the board and chief executive officer of the plaintiff, expressed an interest on behalf of the plaintiff in providing financing for the project. The discussions between Hanania and Fitzgerald regarding financing were not memorialized in writing.

On July 26, 1988, the plaintiff agreed to loan the defendant New Dimension Homes of Connecticut, Inc., the principal amount of $2,025,000 to be secured by a mortgage on the five lots of property purchased. The loan was further secured by the personal guarantees of the defendants Hanania, Raymonde Mujak, Earle S. Rynston and George Stanley. The terms of the loan provided for the principal to be repaid one year from the making of the loan and for quarterly payments of interest. Fitzgerald was the loan officer responsible for the loan.

Upon the defendants’ failure to make the required payment of interest on July 26, 1989, the plaintiff decided to exercise its option to declare the entire balance on the loan due and payable. On September 26, 1989, the plaintiff instituted suit against the defendants, seeking to foreclose on the mortgaged property. In their answer, the defendants admitted having executed the note, mortgage and guarantees. The defendants asserted, however, by way of special defense, that they were fraudulently induced into acquiring the Wilton property by the plaintiff’s promises to make available sufficient additional funds to complete the construction on that property. The defendants claimed that this failure to advance additional sums forced them to default on the loan.

On October 1, 1991, the defendants moved for the appointment of a commission to take the deposition of Fitzgerald, who was no longer in the plaintiff’s employ and resided in New York. This motion was granted on October 21,1991. On December 11,1991, still attempting to depose Fitzgerald, the defendants moved to compel Fitzgerald’s deposition or in the alternative to preclude the plaintiff from introducing his testimony at trial. This subsequent motion was denied.

On January 21,1992, the parties consented to reference of the case to attorney trial referee David Albert. At that time, the defendants informed the attorney trial referee that they wanted to postpone the trial until they could take the deposition of Fitzgerald who was present in the courtroom. The defendants stated that the plaintiff had responded to their notice of deposition by informing them that it could not produce Fitzgerald because he was no longer an employee of the plaintiff. The defendants also informed the court that they had instituted a separate action in New York for the sole purpose of taking Fitzgerald’s deposition. The attorney trial referee decided to allow the plaintiff to call its first witness to establish the amount of the debt, but continued further hearings until the defendants were able to take Fitzgerald’s deposition.

On February 20,1992, the defendants deposed Fitzgerald. Allegedly as a result of the information obtained in the deposition, the defendants moved the court for permission to amend their answer to add a special defense and to file two counterclaims. The proposed amendments included a second special defense that the interest rates on the loan were usurious and two counterclaims, one alleging fraud and the other, a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110 et seq. The plaintiff objected to the motion to amend and requested oral argument. Oral argument was heard before the attorney trial referee who granted the motion as to the additional special defense of usury and denied the motion as to the proposed counterclaims. Trial continued thereafter on June 2, 1992, and was completed on September 2, 1992.

On March 18,1993, the attorney trial referee issued a report containing his findings of fact and recommended judgment for the plaintiff. The defendants filed exceptions to the attorney trial referee’s report and objected to its acceptance. Among its objections, the defendants claimed that the attorney trial referee lacked the authority to rule on their contested motion to amend their answer. On August 6, 1993, the trial court overruled their objections and entered judgment in accordance with the attorney trial referee’s report. This appeal followed the entry of strict foreclosure and setting of law days on August 5, 1994.

I

The defendants first claim that the attorney trial referee did not have the authority to rule on their motion to amend their answer to the plaintiffs complaint. We agree and reverse the decision of the trial court.

The limited authority of attorney trial referees was first defined by our Supreme Court in Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986). Attorney trial referees, whose authority stems from General Statutes § 52-434 (a) (4), are not judges and do not have the authority of a judge. Seal Audio, Inc. v.Bozak, Inc., supra, 501-502. Rather, attorney trial referees have limited roles as fact finders “whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. Practice Book §§ 428 through 445.” Id., 502; see also Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 299, 552 A.2d 827 (1989). Any legal conclusions reached by an attorney trial referee have no conclusive effect. Seal Audio, Inc. v. Bozak, Inc., supra, 510. “The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney trial referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment.” Id .; see also CMG Realty of Connecticut v. Colonnade One at Old Greenwich Ltd. Partnership, 36 Conn. App. 653, 664, 653 A.2d 207 (1995); Rostenberg-Doern Co. v. Weiner, supra, 300.

“The rules of practice governing procedure in matters referred to committees are also applicable to ‘[attorney trial] referees.’ Practice Book § 428.” Seal Audio, Inc. v. Bozak, Inc., supra, 199 Conn. 502-503; see also Rostenberg-Doern Co. v. Weiner, supra, 17 Conn. App. 300 n.8. As such, Practice Book § 433 requires that a case be referred to a committee or attorney trial referee only after the issues have been closed and the case has been claimed to the trial list. After such time, no further pleadings may be filed “except by agreement of all parties or order of the court.” (Emphasis added.) Practice Book § 433; compare Practice Book § 438 (motion to correct to be filed with court and then forwarded to attorney trial referee for consideration of motion). The attorney trial referee cannot, therefore, make a legal determination regarding the merits of a contested motion to amend pleadings, nor can the trial court legally delegate its authority to the attorney trial referee; it is an integral part of the authority of the court to make such rulings. See Practice Book § 433; Seal Audio, Inc. v. Bozak, Inc., supra, 501-502.

The trial court, therefore, improperly determined that the attorney trial referee was authorized to rule on the defendants’ contested motion to amend. The attorney trial referee’s limited role does not extend to legal rulings regarding the pleadings of the parties; see Practice Book § 433; and the trial court improperly found otherwise. The trial court should, therefore, have rejected the report of the attorney trial referee and ordered further proceedings pursuant to Practice Book § 443.

II

Because we determine that an attorney trial referee has no authority to rule on a contested motion to amend we need not address the defendants’ second claim that, if an attorney trial referee did have such authority, the trial court improperly determined that the attorney trial referee correctly denied that motion.

In addition, in light of our remand to the trial court for further proceedings pursuant to Practice Book § 443, we do not address the defendants’ third claim that the trial court improperly rendered judgment in accordance with the recommendation of the attorney trial referee.

The judgment is reversed and the case is remanded to the trial court with direction to reject the report of the attorney trial referee and to order further proceedings pursuant to Practice Book § 443.

In this opinion the other judges concurred.

       The defendants in this appeal are New Dimension Homes of Connecticut, Inc., and four individuals associated with that corporation: N. David Hanania, Raymonde Mujak, Earle S. Rynston, and George Stanley.

       The transcript from January 21,1992, reveals that the plaintiff readily consented to the reference and that the defendants expressed some concern that the case was too complicated to be heard by an attorney trial referee. The defendants ultimately consented to the reference.

       In the defendants’ first proposed counterclaim, the defendants alleged that they had approached the plaintiff concerning the possibility of the plaintiff’s financing the purchase of a “minimum of one and a maximum of two” lots in Wilton. The defendants further alleged that the plaintiff encouraged them to form the defendant corporation and to proceed with the acquisition of the Wilton lots with false promises to extend the necessary financing. The defendants alleged that they relied on these promises to their detriment and that the plaintiff knew that the promises were false because such an extension of funds would have exceeded its legal lending limitations as well as the limits of the loan policy as set by the plaintiffs board of directors.

       In their second proposed counterclaim, the defendants asserted that the facts alleged in their first counterclaim constituted an unfair trade practice.

       Although the arguments before the attorney trial referee were conducted off the record, the parties agree that the attorney trial referee asked the judge who had assigned the case whether he should decide the motion. The trial court informed the attorney trial referee that he had the case for all purposes and was to hear the parties and then rule on the motion.

       The attorney trial referee first issued his report on January 6, 1993. Both parties filed motions to correct these findings pursuant to Practice Book § 438. After considering these motions, the attorney trial referee filed the March 18,1993 report in substitution of the original report. The attorney trial referee’s decisions whether to correct various findings is not at issue in this appeal.

       General Statutes § 52-434 provides in relevant part: “state referees. (a) APPOINTMENT OF RETIRED JUDGES AND MEMBERS OF THE BAR. CASES referred. (1) Each judge of the supreme court, each judge of the appellate court, each judge of the superior court and each judge of the court of common pleas who ceases or has ceased to hold office because of retirement other than under the provisions of section 51-49 and who is an elector and a resident of this state shall be a state referee for the remainder of his term of office as a judge and shall be eligible for appointment as a state referee during the remainder of his life in the manner prescribed by law for the appointment of a judge of the court of which he is a member. The superior court may refer any civil, nonjury case or with the written consent of the parties or their attorneys, any civil jury case pending before the court in which the issues have been closed to such a state referee who shall have and exercise the powers of the superior court in respect to trial, judgment and appeal in the case. The superior court may, with the written consent of the parties or their attorneys, refer any criminal case to such a state referee who shall have and exercise the powers of the superior court in respect to trial, judgment, sentencing and appeal in the case. (2) Each judge of the circuit court who has ceased to hold office because of retirement other than under the provisions of section 51-49 and who is an elector and a resident of this state shall be a state referee for the remainder of his term of office as a judge and shall be eligible for appointment as a state referee during the remainder of his life in the manner prescribed by law for the appointment of a judge of the court of which he is a member, to whom the superior court may, with the written consent of the parties or their attorneys, refer any case pending in court in which the issues have been closed and which the judges of the superior court may establish by rule to be the kind of case which may be heard by such referees. The referee shall hear any such case so referred and report the facts to the court by which the case was referred. (3) Each judge of the juvenile court who ceases or has ceased to hold office because of retirement other than under the provisions of section 51-49 and who is an elector and a resident of this state shall be a state referee for the remainder of his term of office as a judge and shall be eligible for appointment as a state referee during the remainder of his life in the manner prescribed by law for the appointment of a judge of the court of which ''e is a member, to whom a judge before whom any juvenile matter is pending may, with the written consent of the child concerned, either of his parents or his guardian or his attorney, refer any juvenile matter pending. The referee shall hear any matter so referred and report the facts to the court for the district from which the matter was referred. (4) In addition to the state referees who are appointed pursuant to subdivision (1), (2) or (3) of this section, the chief justice may appoint, from qualified members of the bar of the state, who are electors and residents of this state, as many state referees as he may from time to time deem advisable or necessary. No appointment of a member of the bar may be for a term of more than one year. Notwithstanding the provisions of subsection (f) of this section, state referees appointed by the chief justice from members of the bar shall receive such reasonable compensation and expenses as may be determined by the chief justice. . . .”

       Our Supreme Court in Seal Audio, Inc. v. Bozak, Inc., supra, 199 Conn. 500-509, found that these limitations on the powers of an attorney trial referee are compelled by reason of the constitution of Connecticut, article fifth, § 2, which requires judges to be nominated by the governor and appointed by the General Assembly, as well as the legislative history surrounding General Statutes § 52-434 (a) (4) establishing attorney trial referees.

       Practice Book § 443 provides in pertinent part: “The court shall render such judgment as the law requires upon the facts in the report as it may be corrected. If the court finds that the [attorney trial referee] has materially erred in his rulings or that by reason of material corrections in his findings the basis of the report is subverted or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another committee for a new trial or revoke the reference and leave the case to be disposed of in court.”


text:
    David B. Cook v. Ann N. Cook
    (14097)
    Dupont, C. J., and Heiman and Hennessy, Js.

      Argued May 1
    decision released July 18, 1995

      Charles F. Brower, with whom, on the brief, was Marcus G. Organschi, for the appellant (defendant).

      Michael J. Mannion, for the appellee (plaintiff).
   Heiman, J.

In this dissolution action, the defendant appeals from postjudgment orders of the trial court denying her motions for contempt and for a restraining order. On appeal, the defendant claims that the trial court improperly (1) denied her motion for contempt by finding that the separation agreement did not require the plaintiff to pay off an equity credit line and (2) denied her motion for an order seeking to enjoin the plaintiff from further encumbering the marital residence. We conclude that the appeal is moot and accordingly dismiss it.

The following facts are necessary for the resolution of this appeal. On May 31, 1989, the parties’ twenty-four year marriage was dissolved. As part of the dissolution decree, the trial court incorporated various provisions of a separation agreement signed by the parties prior to the decree. Article XV of that agreement concerned the disposition of the parties’ real property and provided for the sale of the marital residence with the net proceeds of the sale to be divided as follows: two thirds to the defendant and one third to the plaintiff. The net proceeds were to be determined “by deducting any mortgages, real estate taxes, broker’s commissions, attorney’s fees associated with the closing, and other customary real estate adjustments from the gross proceeds of the sale.” At the time of the dissolution decree, the marital home was encumbered by a first mortgage and an equity credit line.

Article XV further provided for the distribution of the proceeds of the sale of a house built on speculation (investment property) and owned jointly by the plaintiff and his business partner. Upon the sale, the gross proceeds were to be used to pay the equity credit line encumbering the marital property. Any net proceeds would then be divided equally between the parties. In the event that the marital property was sold before the investment property, the equity credit line was to be transferred to the investment property. In addition, the rental income from the investment property was to be applied to the balance owed on the equity credit line.

On September 6,1994, the defendant filed a motion for contempt, alleging that subsequent to the dissolution decree, the plaintiff had further encumbered the investment property with an equity credit line of $25,000. This credit line had to be paid at the time that the investment property was sold and, as a result, the gross proceeds of the sale were insufficient to pay the entire equity credit line encumbering the marital residence, and there were no net proceeds remaining to be distributed to the parties. In addition, the defendant alleged that the plaintiff had taken additional advances from the equity credit line encumbering the marital residence for his own purchases. In her motion for a restraining order filed the same day, the defendant requested that the plaintiff be enjoined from further encumbering the marital property.

On September 29, 1994, hearings were held on the defendant’s motions. Counsel for the defendant informed the court that the investment property had been sold and that the gross proceeds of the sale had been used to pay down the equity credit line on the marital residence. The gross proceeds, however, were insufficient to pay off the equity credit line completely. The defendant alleged that this was due to the plaintiff’s borrowing an additional $25,000 against the investment property, taking an advance of approximately $19,000 against the equity credit line, and writing checks totaling approximately $46,000 against the equity credit line. Counsel for the defendant then claimed that article XV required that the equity credit line be satisfied at the time of the sale of the marital residence and that the defendant was entitled to two thirds of the net proceeds of that sale after the deduction of only the first mortgage. The trial court informed counsel that the issue of the calculation of the net proceeds on the sale of the marital home was premature as the marital residence had not yet been sold. Counsel then stated that there was, however, an issue regarding regular payments on the equity credit line.

In his defense, the plaintiff testified that the tenants who had been renting the investment property had moved out and there was no rental income to cover the monthly payments on the equity credit line as provided in article XV. He, therefore, made those payments with his own funds. The additional funds withdrawn against the equity credit line were drawn to reimburse the plaintiff for the payments made on the equity credit line when rental income was unavailable. In addition, the plaintiff testified that the $25,000 borrowed against the investment property was necessary to complete the building and to provide further funds to continue making payments on the equity credit line encumbering the marital residence. Regarding the motion for a restraining order, counsel for the plaintiff informed the court that the defendant had already written a letter to the bank that froze the account.

During argument by counsel regarding the admissibility of certain checks drawn on the equity credit line, the trial court again clarified for the parties that the only issue before it was the responsibility of the parties in so far as paying toward and withdrawing against the home equity loan. The issue of the distribution of the proceeds upon the sale of the marital home and the ultimate liability of either party on the equity credit line were issues that the trial court stated would have to be raised upon the subsequent sale of the marital home.

On September 30, 1994, the trial court denied both of the defendant’s motions without memorandum of decision. In response to the defendant’s motion for articulation, the trial court stated that its examination of article XV of the dissolution decree did not reveal any order of the court that the equity credit line be frozen and that the plaintiff could not, therefore, be held in contempt for utilizing those funds. In addition, the trial court pointed to the fact that article II of the separation agreement, which prohibited either party from incurring any debt for which the other's property may be liable, was not incorporated into the dissolution decree. The trial court continued, “Whatever may be the rights of the parties at the time the marital residence is sold is not now before the court.” This appeal followed.

Subsequent to the filing of the appeal and the submission of the briefs, the marital residence was sold on March 31, 1995. As a result of the sale, the equity credit line at issue was paid in full and the remaining proceeds distributed to the parties.

“It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) Dutch Point Credit Union, Inc. v. Caron Auto Works, Inc., 36 Conn. App. 123, 126, 648 A.2d 882 (1994); see also Gagnon v. Planning Commission, 222 Conn. 294, 299, 608 A.2d 1181 (1992). “Mootness applies to situations where events have occurred during the pendency of an appeal that make an appellate court incapable of granting practical relief through a disposition on the merits. . . . The standards governing mootness are well established. Because this court has no jurisdiction to give advisory opinions, no appeal can be decided on its merits in the absence of an actual controversy for which judicial relief can be granted.” (Internal quotation marks omitted.) Thorn Americas, Inc. v. Torres, 34 Conn. App. 303, 305, 641 A.2d 386 (1994).

This court can afford no practical relief to the defendant. See Dutch Point Credit Union, Inc. v. Caron Auto Works, Inc., supra, 36 Conn. App. 126. Her motions for contempt and for a restraining order were addressed to the plaintiffs use of the funds available through the equity line of credit encumbering the marital residence. That line of credit has since been paid and the marital residence has been sold. There is, therefore, no line of credit against which the plaintiff can borrow or be enjoined from borrowing, and the defendant’s appeal must be dismissed as moot.

The appeal is dismissed.

In this opinion the other judges concurred.

       On April 12, 1995, notice was sent to the parties to be prepared to address the issue of mootness at oral argument before this court.

       In oral argument before this court, counsel for the defendant claimed that the motion for contempt addressed the failure of the plaintiff to payoff the entire equity credit line at the time of the sale of the investment property. The trial court, however, viewed the motion for contempt as limited to the use of the funds in the equity credit line prior to the sale of the marital residence. At the hearing on the motion for contempt, the trial court clearly informed the defendant that the issue of who would be obligated to pay the equity credit line upon the closing of the sale of the marital residence would have to be decided at a later time. In its articulation, the trial court again stated that its decision was limited to a consideration of whether the plaintiff could withdraw funds against the equity credit line. The trial court expressly declined to determine the ultimate issue of the distribution of the liability for that line of credit, saying that such a determination must await the sale of the marital residence. If the defendant disagreed with the distribution of the proceeds after the sale, a motion for contempt could have been filed at that time and the trial court would then have properly before it the question of which party bore ultimate liability for payment of the equity credit line.

       We recognize that there is an exception to the mootness doctrine for cases that are “capable of repetition, yet evading review,” but conclude that this is not such a case. In Loisel v. Rowe, 233 Conn. 370, 382-83, 660 A.2d 323 (1995), our Supreme Court stated: “Our cases reveal that for an otherwise moot question to qualify for review under the ‘capable of repetition, yet evading review’ exception, it must meet three requirements. First, the challenged action, or the effect of such action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as a surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.”
      The defendant’s appeal here fails to meet these requirements. Although her action is of limited duration because the court’s order of dissolution included the provision of the separation agreement that the marital residence be sold, the second and third requirements for the exception to the mootness doctrine have not been meet. The marital residence has been sold and the equity credit line completely paid. As a consequence, there is no likelihood that the question presented will arise again to affect the rights of this defendant. Nor does this defendant represent a class of litigants for whom she may be considered a surrogate. In addition, this is not a case that presents a question of such public importance that this court should determine the merits of the appeal. This failure to meet all three of the requirements set out in Loisel v. Rowe, supra, 233 Conn. 382-83, precludes our reviewing the defendant’s claims under the exception to the mootness doctrine for cases that are “capable of repetition, yet evading review.”


author: Dupont, C. J.

text:
    Barbara Oakley v. Commission on Human Rights and Opportunities et al.
    (12900)
    Dupont, C. J., and Heiman and Hennessy, Js.
    Argued March 22
    decision released July 25, 1995

      Charles Krich, staff attorney, with whom, on the brief, was Philip A. Murphy, Jr., commission counsel, for the appellant (named defendant).

      A. Susan Peck, for the appellee (plaintiff).

      Richard Blumenthal, attorney general, and Carolyn K. Querijero, assistant attorney general, filed a brief for the named defendant as amicus curiae.
   Dupont, C. J.

The defendant state commission on human rights and opportunities appeals from the trial court’s granting of the plaintiff’s motion for attorney’s fees and expenses pursuant to General Statutes § 4-184a. The commission claims that (1) the trial court did not have jurisdiction to entertain the plaintiff’s motion because it was filed nearly five months after the final judgment was rendered, (2) the plaintiff is barred from recovering attorney’s fees and expenses because she failed to request them in her appeal petition, and (3) the amount requested by the plaintiff and granted by the trial court was unreasonable under the facts and circumstances of this case. The attorney general has submitted a brief as amicus curiae. We affirm the decision of the trial court.

Certain facts are relevant to this appeal. The underlying action is a sex discrimination case filed with the commission by the plaintiff against her employer, the defendant state judicial branch. The plaintiff alleged in her complaint that she was hired in December, 1989, as a “Maintenance Administrator,” and discovered shortly thereafter that she had been given the title “Associate Maintenance Administrator,” that two males had been hired at about the same time with the title “Maintenance Administrator,” and that the two males with the superior title were compensated at a salary higher than that of the plaintiff. The plaintiff farther alleged that all three positions require the same knowledge, skill and abilities, and that, therefore, the judicial branch had discriminated against her on the basis of sex and had denied her equal pay for equal work in violation of General Statutes §§ 46a-58 (a), 46a-60 (a) (1), 46a-70 (a) and 31-75, and in violation of Title VII of the federal Civil Rights Act of 1964 and the federal Equal Pay Act of 1963.

Upon receipt of the plaintiffs complaint, the commission commenced its investigation. In early February, 1991, a commission investigator concluded that there was no reasonable cause to believe that a discriminatory practice had occurred and prepared a draft finding to that effect. In his draft finding, the investigator recommended that the complaint be dismissed for lack of evidence. The investigator gave the draft finding to his supervisor, who forwarded it to the plaintiff with a cover letter advising the plaintiff that she had fourteen days to comment on the draft finding.

Upon receipt of the draft finding, the plaintiff requested that the commission give her copies of all evidence produced in connection with her case. The commission investigator sent the plaintiff copies of that evidence. The plaintiff then submitted her comments on the draft finding to the commission. The commission supervisor notified the plaintiff that her comments had been received and would be reviewed to determine if additional investigation or a change in the draft finding would be warranted.

After reviewing the plaintiffs comments, the commission investigator telephoned the plaintiffs supervisor at the judicial branch to discuss the plaintiffs comments. The plaintiff’s supervisor asked the investigator to fax him a copy of the comments. Upon reviewing the plaintiff’s comments, the plaintiff’s supervisor faxed the investigator a memorandum in which he set forth his responses to the plaintiff’s comments on the draft finding. The plaintiff’s supervisor claimed in this memorandum that the plaintiff refused to follow department procedure for handling maintenance jobs and that maintenance problems had developed “because of [the plaintiff’s] continual overextension of her authority .. . .” The memorandum also discussed the plaintiff’s job title as printed on business cards, in the judicial branch directory, and on monthly report forms, and that the plaintiff’s personnel file would be “marked to reflect” her “being insubordinate.” Finally, the plaintiff’s supervisor questioned the impartiality of the plaintiff’s witnesses.

After faxing his memorandum to the commission investigator, the plaintiff’s supervisor telephoned him and requested that the substance of his memorandum not be included in any response that the investigator might make to the plaintiff’s comments because the statements in the memorandum were “subjective.”

The investigator placed the memorandum in the commission case file, but did not tell the plaintiff about it or about his telephone conversations with the plaintiff’s supervisor. Instead, he wrote his own memorandum to the commission supervisor rebutting the plaintiff’s comments on the draft finding.

A few days later, the commission supervisor wrote to the plaintiff’s attorney to acknowledge receipt of the plaintiff’s comments and to advise the attorney that the commission supervisor and the investigator had determined that further investigation was not warranted. She further advised the plaintiff’s attorney that she would endorse and forward to the commission the investigator’s recommendation that the plaintiff’s complaint be dismissed. She did not mention the memorandum from the plaintiff’s supervisor.

Shortly thereafter, the commission issued its “Finding of No Cause and Summary,” which is almost identical to the draft finding and which recommends dismissal of the plaintiffs complaint for lack of evidence. By letter dated March 28,1991, the chairperson of the commission notified the plaintiff that she had accepted the recommendation to dismiss the complaint for lack of sufficient evidence and that the plaintiff could'apply for reconsideration of the disposition.

The plaintiff requested reconsideration of the dismissal of her complaint. After reviewing the request, a commission staff attorney recommended dismissal of the complaint. The chairperson approved this recommendation and dismissed the complaint.

On July 23,1991, the plaintiff appealed to the Superior Court pursuant to General Statutes § 4-183 on several grounds and requested that her case be remanded to the commission. The plaintiffs petition further requested “[s]uch other relief as the court may deem fair and equitable.” After her appeal was filed, the plaintiff learned of the ex parte communication between the commission investigator and the plaintiffs supervisor, and on December 11,1991, moved to supplement the agency record by showing that there were procedural irregularities in the commission’s handling of her complaint. The motion was granted and a hearing was held at which the plaintiff produced evidence concerning the commission investigator’s ex parte communication with the plaintiff’s supervisor.

In a memorandum of decision dated September 3, 1992, the court ruled that the commission had violated General Statutes (Rev. to 1991) § 46a-83 (b) in investigating the plaintiff’s complaint and that the violation had substantially prejudiced the plaintiff’s right to a fair investigation and resolution of her complaint. The court sustained the plaintiff’s appeal and remanded the case pursuant to General Statutes § 4-183 (j) for a new investigation of the plaintiff’s complaint.

On February 3,1993, the plaintiff filed a motion for attorney’s fees and costs under General Statutes § 4-184a, claiming that she was entitled to compensation for 96.2 hours of work billed at the rate of $150 an hour, plus costs of $473.20, for a total of $14,903.37. The plaintiff requested $7500, the maximum amount allowed by § 4-184a. The commission filed an objection, challenging the plaintiff’s right to recover fees and expenses on several grounds. The defendant judicial branch also filed an objection. On September 20,1993, the Superior Court ruled for the plaintiff and found the requested amount of $14,903.37 to be reasonable, but reduced the award to $7500, the maximum amount allowed by § 4-184a. The commission thereafter filed this appeal.

Our standard of review differs for the commission’s three claims. Because the issues of whether the trial court had jurisdiction over the plaintiff’s motion five months after the final judgment was rendered, and whether a party may waive fees under § 4-184a by not expressly requesting them in the petition to the Superior Court raise questions of law rather than fact, those issues are subject to our plenary review. Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995); Langan v. Weeks, 37 Conn. App. 105, 112, 655 A.2d 771 (1995). With regard to the commission’s claim that the amount the trial court awarded the plaintiff was unreasonable, this court has in other contexts held that the assessment of attorney’s fees is a matter within the trial court’s discretion. Stamford v. Kovac, 36 Conn. App. 270, 279, 650 A.2d 626 (1994). The plain language of § 4-184a (a) (2) provides that a court may award reasonable attorney’s fees “not in excess of seven thousand five hundred dollars . . . reasonably incurred in opposing the agency action . . . .” “ ‘In determining whether the trial court has abused its discretion, an appellate court should entertain every reasonable presumption in favor of the trial court’s decision.’ ” Id., 277. The commission’s third claim, therefore, will be reviewed under the abuse of discretion standard.

I

Jurisdiction

We first address the commission’s argument that because the plaintiff filed her motion for attorney’s fees nearly five months after the judgment sustaining the plaintiff’s appeal was rendered, the motion was time barred and the trial court did not have subject matter jurisdiction to consider the motion.

Section 4-184a (b) provides in relevant part that “[i]n any appeal by an aggrieved person of an agency decision taken in accordance with section 4-183 and in any appeal of the final judgment of the superior court . . . the court may, in its discretion, award to the prevailing party, other than the agency, reasonable fees and expenses in addition to other costs if the court determines that the action of the agency was undertaken without any substantial justification.” This statute provides no express time limitation for the filing of requests for these fees. Moreover, there are no published decisions in Connecticut addressing the timeliness of such motions. This issue, therefore, is one of first impression in Connecticut.

The commission makes several arguments to support its claim that the Superior Court did not have jurisdiction to consider the motion five months after final judgment was rendered. In its brief, the commission urges us to adopt the four month limitation applicable to certain postjudgment motions provided by Practice Book § 326 and General Statutes § 52-212 (a). The commission notes that the Supreme Court has adopted this four month limitation in other contexts. See In re Baby Girl B., 224 Conn. 263, 284-87, 618 A.2d 1 (1992); State v. Wilson, 199 Conn. 417, 437, 507 A.2d 1367 (1986). The commission also argues in its primary brief that administrative appeals are occasionally treated as civil actions for various purposes; see Haylett v. Commission on Human Rights & Opportunities, 207 Conn. 547, 548, 541 A.2d 494 (1988) (return date); Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356-57, 514 A.2d 749 (1986) (may use civil summons to initiate administrative appeal rather than citation); and that this appeal should also be treated as a civil action. In its reply brief and at oral argument, however, the commission abandoned that position and adopted the position advocated in the amicus brief that this court should adopt a thirty day time limit on § 4-184a motions in accordance with rule 9 (f) of the Local Rules of Civil Procedure for the United States District Court for the District of Connecticut.

The commission urges that a ruling by this court that the trial court here did have jurisdiction to consider the plaintiff’s motion is tantamount to a ruling that trial courts have unlimited and indefinite jurisdiction over postjudgment motions filed under § 4-184a, even though in other contexts, absent the filing of an appeal or a motion to open the judgment, the trial court’s jurisdiction expires after four months, unless there has been a waiver by the parties. The commission asserts that because both it and the judicial branch filed objections to the plaintiff’s motion, there was no waiver of this four month limitation here. The commission also notes the strong public interest in the finality of legal proceedings, and that, because as a practical matter costs cannot be assessed until after the judgment, there cannot be an unlimited time in which the prevailing party can file a motion to recover those costs.

The commission finally argues that because § 4-184a contains two significant departures from the common law, it must be strictly construed, which counsels against a broad reading of the right to recovery under the statute. The two departures to which the commission refers are the general principle that each litigant bears the cost of his own suit and the rule of sovereign immunity.

Although the commission has raised important policy considerations, we find the plaintiff’s arguments more persuasive. The plaintiff argues that the award of attorney’s fees under § 4-184a is a matter within the discretion of the trial court, and, further, that neither the rules of practice nor the federal rules should dictate the timeliness of motions made under § 4-184a. The plaintiff claims that the award of attorney’s fees under § 4-184a cannot interfere with the merits or the finality of the judgment.

The plaintiff primarily relies on the United States Supreme Court decision in White v. New Hampshire Dept. of Employment Security, 445 U.S. 445, 102 S. Ct. 1162, 71 L. Ed. 2d 325 (1982). White addressed the issue of the timeliness of a postjudgment request for an award of attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. The issue presented to the court in White was whether the plaintiff’s postjudgment request for an attorney’s fee award under § 1988, filed four and one-half months after judgment was entered, was subject to the ten day limitation of rule 59 (e) of the Federal Rules of Civil Procedure. The plaintiff’s original complaint in White, as here, did not specifically request attorney’s fees, but did request “such other and further relief as may be equitable and just.” White v. New Hampshire Dept, of Employment Security, supra, 447.

The court in White held that “a request for attorney’s fees under § 1988 raises legal issues collateral to the main cause of action — issues to which Rule 59 (e) was never intended to apply. Section 1988 provides for awards of attorney’s fees only to a ‘prevailing party.’ Regardless of when attorney’s fees are requested, the court’s decision of entitlement to fees will therefore require an inquiry separate from the decision on the merits — an inquiry that cannot even commence until one party has ‘prevailed.’ ” Id., 451-52. The court also noted that § 1988 “authorizes the award of attorney’s fees ‘in [the] discretion’ of the court. . . . This discretion will support a denial of fees in cases in which a postjudgment motion unfairly surprises or prejudices the affected party. . . . [T]he district courts remain free to adopt local rules establishing timeliness standards for the filing of claims for attorney’s fees.” Id., 454.

We agree with the plaintiff that the attorney’s fees provided for in § 1988 are similar to those provided for in § 4-184a in that they are unaffected by the merits of the action, requiring an inquiry separate from the judgment itself, and their award is a matter entirely within the discretion of the trial court. The trial court’s grant or denial of a motion filed under § 4-184a does not open, modify, or in any way affect the judgment. It is therefore inappropriate to apply time limitations that govern these types of motions.

We hold that postjudgment motions under § 4-184a must be filed within a reasonable time of the entering of the final judgment, and that the determination of whether such a motion has been filed within a reasonable time is a matter within the discretion of the trial court. The commission conceded at oral argument before this court that five months could be a reasonable amount of time in which to file a motion for attorney’s fees under § 4-184a, but that in the present case it was an unreasonable amount of time because the commission had no notice of the plaintiff’s claim for fees. We disagree with this position because the statute gives notice that such fees may be sought.

In this case, we conclude that there was no abuse of discretion in the trial court’s consideration of the plaintiff’s motion almost five months after the rendering of the final judgment because neither objection filed by the defendants claimed unfair prejudice or surprise.

II

Waiver

The commission’s next claim is that because the plaintiff did not expressly request attorney’s fees in her appeal from the dismissal of her claim of sex discrimination, she waived her right to them. The commission reiterates its argument that § 4-184a is in derogation of both the general rule requiring parties to pay their own attorney’s fees and the rule of sovereign immunity, and that, therefore, a party seeking fees under § 4-184a must specifically plead and prove that the agency action was undertaken without substantial justification. The commission also argues that had it known that the plaintiff was going to request fees under § 4-184a, it would have appealed from the trial court’s remand of the plaintiff's complaint, and that, therefore, the plaintiff’s failure to request the attorney’s fees in her petition to the Superior Court effectively deprived it of proper notice of the full extent of its potential liability.

Attorney’s fees may be awarded under § 4-184a only “if the court determines that the action of the agency was undertaken without any substantial justification.” In both the September 3, 1992 memorandum of decision remanding the plaintiff’s complaint to the commission and the September 20,1993 memorandum of decision awarding the plaintiff attorney’s fees, the trial court cites with disapproval the commission’s ex parte communication with the plaintiff’s supervisor and the commission’s failure to disclose to the plaintiff the supervisor’s memorandum, contrary to the plaintiff’s statutory right under § 46a-23 to review and comment on all adverse evidence in the agency file. The September 20, 1993 memorandum of decision makes a clear finding that the commission’s actions with regard to the plaintiffs supervisor and his memorandum were taken without substantial justification. The commission makes no attempt to refute this finding, but rather argues that the plaintiffs request for attorney’s fees should have been made in her appeal petition or in an amended appeal petition, and that her failure to make the request in that form and at that time constitutes a waiver of those fees. We disagree.

At the time she filed her appeal petition in July, 1991, the plaintiff was unaware of either the commission’s ex parte communication with her supervisor or of the existence of a memorandum written by that supervisor in the agency file. It was, therefore, impossible for her to include allegations of those particular procedural irregularities, which eventually became the subject of the award of attorney’s fees under § 4-184a. In December, 1991, the plaintiff brought the commission’s actions to the court’s attention by way of a motion to supplement the agency record, and it is clear that the trial court decided both to remand the case and to award attorney’s fees on the basis of the evidence produced at the hearing on that motion. The commission should not be allowed to rely on the fact that its inappropriate actions were disclosed after the filing of the appeal petition to preclude relief to this plaintiff.

Furthermore, we agree with the plaintiff that the allegation that the commission’s actions were taken without substantial justification was implicit in her appeal petition. The appeal petition alleges, among other things, that the commission failed to take into account the plaintiff’s comments and evidence, and that the commission’s “investigation and handling of plaintiff’s complaint was perfunctory, arbitrary, capricious and an abuse of discretion.” These allegations were sufficient to alert the commission that attorney’s fees could be sought under § 4-184a (b) if a court found that “the action of the agency was undertaken without any substantial justification.”

“[I]t is not essential to the sufficiency of a complaint alleging a statutory cause of action that the precise terms of the applicable statute ‘be either counted upon or recited.’ ” Bouchard v. People’s Bank, 219 Conn. 465, 470, 594 A.2d 1 (1991). Moreover, complaints must be construed in the manner most favorable to sustaining their legal sufficiency. Id., 471.

Finally, we agree with the plaintiff that her request for “[s]uch other relief as the court may deem fair and equitable” entitled her to an award of attorney’s fees within the discretion of the trial court. In Connecticut, absent statutory or contractual authorization, attorney’s fees are not recoverable, and absent such authorization, a trial court may not award attorney’s fees where a party has requested “such other relief as the court deems appropriate.” Plikus v. Plikus, 26 Conn. App. 174, 179, 599 A.2d 392 (1991). Here, however, § 4-184a provides clear statutory authorization for the award of attorney’s fees. Because neither the commission nor the defendant judicial branch claimed unfair prejudice or surprise, and because § 4-184a provides clear statutory authority for the discretionary award of attorney’s fees, we hold that the plaintiff’s request for “such other relief” entitled her to an award of attorney’s fees under § 4-184a within the court’s discretion, and that the failure expressly to plead entitlement under § 4-184a was not a waiver of the claim.

Ill

Reasonableness of Award

Finally, the commission argues that the amount requested by and awarded to the plaintiff was unreasonable under the circumstances.

If a trial court finds under § 4-184a (b) that the action of the agency was “undertaken without any substantial justification,” the court may, “in its discretion,” a vard “reasonable fees and expenses in addition to other costs . . . .” Section 4-184a (a) (2) defines reasonable fees and expenses as “any expenses not in excess of seven thousand five hundred dollars which the court finds were reasonably incurred in opposing the agency action, including court costs, expenses incurred in administrative proceedings, attorney’s fees, witness fees of all necessary witnesses, and such other expenses as were reasonably incurred.” The plaintiff here requested, and the court awarded, the maximum amount of $7500. The commission argues that this amount was unreasonable because the plaintiff prevailed on only one of the issues raised in her appeal petition. The commission also implies that the trial court did not give this matter careful consideration, but merely gave a “rubber stamp” to the plaintiff’s request.

Where a statute contains no standard by which a court is to award attorney’s fees, it is left “to the sole discretion of the trial court to determine if attorney’s fees should be awarded and the amount of such an award.” Staehle v. Michael’s Garage, Inc., 35 Conn. App. 455, 461, 646 A.2d 888 (1994). “ ‘The amount of attorney’s fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion: “A court has few duties of a more delicate nature than that of fixing counsel fees. The degree of delicacy increases when the matter becomes one of review on appeal. The principle of law, which is easy to state but difficult at times to apply, is that only in case of a clear abuse of discretion by the trier may we interfere. . . . The trier is always in more advantageous position to evaluate the services of counsel than are we.” ’ ” (Citations omitted.) Ruwet-Sibley Equipment Corp. v. Steb- bins, 15 Conn. App. 21, 27, 542 A.2d 1171, cert. dismissed, 209 Conn. 806, 548 A.2d 437 (1988). “When reviewing a claim that the trial court abused its discretion, every reasonable presumption should be given in favor of its correctness, and the ultimate issue is whether the court could have reasonably concluded as it did.” Misinonile v. Misinonile, 35 Conn. App. 228, 232, 645 A.2d 1024, cert. denied, 231 Conn. 929, 649 A.2d 253 (1994).

The plaintiff here produced a detailed bill for the trial court’s consideration, reflecting the amount of work done. On the basis of the record before us, we cannot say that the amount awarded was an abuse of the trial court's discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court characterized this memorandum in its memorandum of decision as “an aggressive, adversarial response to the plaintiffs comments . . . .”

       The plaintiff claimed that (1) the commission investigator applied the wrong legal standard in evaluating the plaintiff’s claim, (2) the investigator failed to distinguish between her claims of discriminatory treatment and her claim of unequal work, (3) the investigator failed to consider the plaintiff’s comments and additional evidence submitted in response to the draft finding in violation of General Statutes (Rev. to 1991) § 46a-83 (b), (4) the commission’s finding of no cause was unreasonable in light of the substantial evidence in the record, and (5) the investigator performed adjudicatory functions and employed procedures that deprived the plaintiff of due process of law.

       It is unclear what precise relief the plaintiff sought. In her demand for relief, the plaintiff requested that the case be remanded to the commission with instructions to proceed to a hearing on her complaint. At oral argument, however, the plaintiff stated that she sought a remand for a new investigation.

       General Statutes (Rev. to 1991) § 46a-83 (b) provides in relevant part: “Before issuing a finding of reasonable cause or no reasonable cause, the commissioner or investigator shall afford each party and his representative an opportunity to provide written or oral comments on all evidence in the commission’s file .... The commissioner or investigator shall consider such comments in making his determination. . . .” (Emphasis added.)

       General Statutes § 4-183 (j) provides in relevant part: “The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decision are: (1) In violation of constitutional or statutory provisions ... (3) made upon unlawful procedure .... If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may . . . remand the case for further proceedings. . . .”

       The commission has since made a draft finding of reasonable cause in the plaintiff’s complaint, reversing its earlier finding.

       The commission argued that (1) § 4-184a does not provide for attorney’s fees, (2) the motion was untimely and the court no longer had jurisdiction to consider it, (3) the plaintiff waived her right to attorney’s fees because she failed to claim them in her appeal to the Superior Court, (4) the plaintiff failed to demonstrate she was a “person” as defined by General Statutes § 4-184a (a) (1), (5) the plaintiff had not demonstrated that the action of the commission “was undertaken without any substantial justification” pursuant to § 4-184a (b), and (6) the plaintiff had not established that the attorney’s fees and costs were reasonable.

       The judicial branch argued that (1) it was not an agency within the meaning of General Statutes § 4-184a, (2) the plaintiff did not request attorney’s fees and costs in her appeal, (3) the motion was untimely, (4) there was no evidence or allegations that the judicial branch’s actions were undertaken without any substantial justification, and (5) the plaintiff did not establish that she was a “person” within the meaning of § 4-184a (a) (1).

       Practice Book § 326 provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. ...”

       General Statutes § 52-212 (a) provides: “Any judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident, or other reasonable cause from prosecuting the action or making the defense."

       Rule 9 (f) of the Local Rules of Civil Procedures for the United States District Court for the District of Connecticut provides in relevant part that “Motions for attorneys’fees . . . shall be filed . . . within 30 days of the entry of judgment. Any motions not complying with this rule shall be denied.”

       Title 42 of the United States Code § 1988 provides in relevant part: “In any action or proceeding to enforce [certain federal civil rights statutes], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

       Rule 59 (e) of the Federal Rules of Civil Procedure provides: “A motion to alter or amend a judgment shall be served not later than 10 days after the entry of the judgment.”