author: DiPENTIMA, C. J.

text:
    J.P. ALEXANDRE, LLC, ET AL. v. LOUIS O. EGBUNA ET AL.
    (AC 33476)
    DiPentima, C. J., and Bear and West, Js.

      Argued April 17 —
    officially released August 7, 2012

      Thomas A. Amato, for the appellants (plaintiffs).

      Kirsten S. P. Rigney, assistant attorney general, with whom were Robert W. Clark, special counsel, and, on the brief, George Jepsen, attorney general, for the appel-lees (defendants).
   Opinion

DiPENTIMA, C. J.

The plaintiffs, Yvon J. Alexanri (Alexandre) and J.P. Alexandre, LLC (LLC), appeal frc the summary judgment rendered by the trial court favor of the defendants, Louis O. Egbuna and Pa Greenfield. On appeal, the plaintiffs claim that the cov , improperly concluded that (1) it lacked subject matt;. jurisdiction over the LLC’s federal constitutional claims arising under 42 U.S.C. § 1983 and (2) the Connecticut Taxpayer’s Bill of Rights, General Statutes § 12-39n, afforded no relief to the LLC. We agree with the court that it lacked subject matter jurisdiction over the plaintiffs’ claims, but we conclude that it should have rendered a judgment of dismissal rather than summary judgment. Accordingly, we reverse the judgment of the trial court and remand the case with direction to render a judgment of dismissal.

The record reveals the following relevant facts as alleged in the operative complaint and set forth by the court in its memorandum of decision and procedural history. Alexandre does business as and is the sole owner of the LLC, an entity that owns and operates a restaurant and nightclub in Hartford. The plaintiffs kept permanent records of their sale of food and alcohol items on “Z-reports,” which are printed summaries of daily cash transactions, rather than printouts of original cash register receipts. At all relevant times, Alexandre filed quarterly state sales and use tax returns for the LLC with the department of revenue services (department). In December, 2001, Egbuna, a revenue examiner with the department, advised Alexandre that the department intended to perform an audit of the LLC’s sales and use tax obligations. On or about August 8, 2005, Egbuna released his final sales and use tax audit report, which covered the period from October, 1999, through March 31,2005. The final report showed atax deficiency of $155,536.77, plus interest of $60,322.74 and penalties, including a 25 percent fraud penalty of $38,884.26, for a total assessment of $256,743.77.

In August, 2005, after a hearing was held at the department, the tax assessment was affirmed. The plaintiffs filed an official protest of the assessment and requested a formal hearing. On December 13,2005, the department recorded tax liens on the LLC’s property and on Alexan-dre’s personal property, which were authorized by Greenfield, the tax unit manager for the audit division. On December 27, 2005, before a hearing was scheduled on the official protest of the assessment, the department served the plaintiffs with a tax warrant. According to the complaint, following service of the warrant by a state marshal, the marshal began to harass Alexandre, demanding full payment of the deficiency assessment plus a marshal’s fee of $15,777.92.

In October, 2006, the department’s appellate division remanded Alexandre’s appeal of the tax deficiency assessment to the examination division for reconsideration. On reconsideration, the original deficiency amount of $155,536.77 was decreased to $94,690.22 and the 25 percent intent to evade penalty was decreased to a negligence penalty of 15 percent. Alexandre appealed the department’s final tax deficiency assessment to the Superior Court pursuant to General Statutes § 12-422. See Alexandre v. Law, Superior Court, judicial district of New Britain, Docket No. CV-07-4015060-S (March 17, 2009) (47 Conn. L. Rptr. 393). On appeal to the Superior Court, Alexandre claimed that the department erroneously concluded that his failure to keep and maintain original cash register tapes violated agency regulations and deprived the auditor of the ability to verify the LLC’s sales activity. Alexandre further claimed that the jeopardy assessment imposed against him was improper. The court affirmed the department’s conclusion that original cash register tapes were necessary to conduct a proper audit of the LLC pursuant to General Statutes §§ 12-426 (3), 12-145 (a) and § 12-2-12 (b) of the Regulations of Connecticut State Agencies, but that there was no reasonable basis for the jeopardy assessment under General Statutes § 12-417 (1). The court accordingly vacated the 15 percent negligence penalty and ordered that the $15,777.92 marshal’s fee be removed from the final assessment. Alexandre v. Law, supra, Superior Court, Docket No. CV-07-4015060-S.

Turning to the relevant procedural history in the case before us, in August, 2009, the plaintiffs filed the operative complaint consisting of ten counts. In count one, the LLC sought damages from Egbuna for wanton, reckless and malicious conduct. In the second count, Alex-andre sought damages from Greenfield for intentional infliction of emotional distress. In counts three and four, the LLC sought damages from Egbuna under § 1983 for alleged violation, under color of state law, of its rights under the equal protection clause of the fourteenth amendment to the United States constitution. In counts five and six, the LLC sought damages from Egbuna under article first, § 20, of the Connecticut constitution. In counts seven and eight, the LLC sought damages from Egbuna under § 1983 for alleged violation, under color of state law, of its rights under the due process clause of the fifth and fourteenth amendments to the United States constitution. Finally, in counts nine and ten, the plaintiffs sought damages from both defendants on theories of common-law civil conspiracy, and on a federal statutory claim, pursuant to 42 U.S.C. § 1985 (3), of civil conspiracy to violate their civil rights under color of state law. After filing an answer and special defenses, the defendants filed a motion for summary judgment on all counts on a number of grounds, including lack of subject matter jurisdiction. The court granted the defendants’ motion for summary judgment for lack of subject matter jurisdiction as to all of the counts. This appeal followed. In this appeal, the plaintiffs challenge only the court’s granting of summary judgment as to their federal statutory and constitutional claims and the court’s conclusion that § 12-39n does not create or authorize an independent tort cause of action. The plaintiffs do not appeal from the court’s granting of summary judgment on the remaining counts.

Our standard of review is well established. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a] . . . motion for summary judgment is plenary. . . .

“An appellate court’s review of a trial court decision is circumscribed by the appropriate standard of review .... When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) Biro v. Matz, 132 Conn. App. 272, 277-78, 33 A.3d 742 (2011).

I

The plaintiffs claim that the court improperly concluded that it lacked subject matter jurisdiction over the LLC’s federal constitutional claims arising under § 1983, specifically, counts three, four, seven and eight of the operative complaint. The defendants respond that § 12-422 provides an adequate legal remedy, and, therefore, the plaintiffs have no right to bring an action under § 1983 for these alleged injuries. We agree with the defendants.

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of the case over which it is without jurisdiction .... The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can. be raised at any stage [of] the proceedings.” (Internal quotation marks omitted.) Massey v. Branford, 119 Conn. App. 453, 459-60, 988 A.2d 370, cert. denied, 295 Conn. 921, 991 A.2d 565 (2010).

The plaintiffs begin their argument by asserting that the court improperly invoked the exhaustion doctrine in precluding their federal claims. They misconstrue the court’s analysis. The plaintiffs argue that the court effectively invoked the doctrine of exhaustion, because “administrative remedies would include a tax appeal such as that countenanced by [§] 12-422.” Here, the court stated that the plaintiffs need not exhaust their state administrative remedies before asserting § 1983 claims. The court emphasized, however, on the basis of controlling precedent from our Supreme Court, that a party has no right to bring a federal statutory action under § 1983 in connection with a state’s collection of taxes “if the party has an adequate legal remedy for the claimed violation under state law.” The court concluded that there was an adequate legal remedy under § 12-422, and, therefore, a § 1983 action seeking damages in connection with such conduct was “beyond the subject matter jurisdiction of this court.” The court, therefore, properly concluded that § 12-422 did not create an exhaustion requirement under the facts of this case but, rather, provided an adequate remedy under state law.

In determining that an adequate legal remedy existed, the court relied on Zizka v. Water Pollution Control Authority, 195 Conn. 682, 490 A.2d 509 (1985). In Zizka, the plaintiffs sought injunctive, declaratory and monetary relief under § 1983 for alleged violation of their rights to equal protection and due process of law under the federal constitution in connection with a town sewer assessment. Id., 682-83. Our Supreme Court affirmed the trial court’s dismissal of the action on the ground that the plaintiffs had an adequate remedy under General Statutes § 7-250. Id., 690. Our Supreme Court reasoned that although the Federal Anti-Injunction Act, 28 U.S.C. § 1341, does not operate as a jurisdictional barrier in state courts, it “points the way to the proper standard by which state tax challenges should be measured.” Zizka v. Water Pollution Control Authority, supra, 690. Further, our Supreme Court stated: “In a § 1983 suit seeking relief from the collection of state taxes, we may impose limitations that, like those of § 1341, inquire into whether the claimants have been afforded a statutory remedy that is plain, speedy and efficient.” (Internal quotation marks omitted.) Id.

The plaintiffs argue that Zizka is inapposite because here they did not seek to enjoin the defendants’ assessment but, rather, they sought monetary damages. Thus, the plaintiffs argue that § 1341 is irrelevant because § 1341 applies only in cases where injunctive relief is sought. The plaintiffs in Zizka, however, sought not only injunctive relief, but also declaratory and monetary relief. Id., 682-83. More importantly, our Supreme Court did not cite § 1341 in relation to its principal requirement that federal courts “shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1341. Rather, the court cited § 1341, which is rooted in principles of federalism, in support of its statement that “state courts should themselves determine the adequacy of state remedies for claims contesting state taxes.” Zizka v. Water Pollution Control Authority, supra, 195 Conn. 690.

The court also relied properly on Jade Aircraft Sales, Inc. v. Crystal, 236 Conn. 701, 674 A.2d 834 (1996). In Jade Aircraft Sales, Inc., the commissioner of revenue services assessed a use tax against the plaintiff pursuant to General Statutes § 12-411. Id., 702. After a hearing, the commissioner upheld the assessment, and the plaintiff appealed the decision pursuant to § 12-422. Id., 702-703. The trial court dismissed the appeal for lack of subject matter jurisdiction because the plaintiff failed to serve properly the commissioner in the manner prescribed by § 12-422, and the plaintiff did not appeal from that judgment. Id., 703. The plaintiff, instead, brought a new action alleging, inter alia, that the assessment violated its federal constitutional rights under the due process clauses of the fifth and fourteenth amendments, as well as its rights under the commerce clause in violation of § 1983. Id., 703. On that count, the plaintiff sought declaratory and injunctive relief. Id. The plaintiff also sought attorney’s fees under 42 U.S.C. § 1988. Jade Aircraft Sales, Inc. v. Crystal, supra, 703. The trial court dismissed the action for lack of subject matter jurisdiction. Id., 704.

On appeal to our Supreme Court, the plaintiff in Jade Aircraft Sales, Inc., argued that § 12-422 does not provide an adequate remedy because “(1) it does not provide for awards of monetary damages or attorney’s fees; and (2) it provides only one month within which a tax assessment may be appealed.” Id., 708-709. Our Supreme Court disagreed with each of the plaintiffs contentions. Id., 709-10. The court stated that the questions presented on appeal were “controlled” by its decision in Zizka; id., 705; noting that Zizka “stands for the proposition that if an adequate remedy exists at law for challenging a state tax assessment, state courts do not have jurisdiction to entertain such a challenge under § 1983.” Id., 707. Our Supreme Court emphasized that “in addition to legal relief, § 12-422 explicitly provides for such relief as may be equitable, including interest.” (Internal quotation marks omitted.) Id., 709. Further, our Supreme Court noted that although attorney’s fees are not available, § 12-422 does provide “both legal and equitable relief,” and, therefore, § 12-422 affords a successful tax appellant an adequate remedy. Id.

Here, the relief sought was only monetary damages and not attorney’s fees. As our Supreme Court noted in Jade Aircraft Sales, Inc., § 12-422 provides for legal and equitable relief. Id., 709. The plaintiffs attempt to distinguish Jade Aircraft Sales, Inc., on the ground that here, the relief sought is solely monetary damages, whereas in Jade Aircraft Sales, Inc., the plaintiff sought declaratory and injunctive relief. We recognize, as did our Supreme Court in Zizka, that as a general principle, “[t]he scope of a § 1983 action in state court depends in part upon the nature of the relief that is sought.” Zizka v. Water Pollution Control Authority, supra, 195 Conn. 687-88. Our Supreme Court in Jade Aircraft Sales, Inc., however, did not limit its holding that § 12-422 provided an adequate remedy to cases involving injunctive and declaratory relief. In fact, as we have stated, the plaintiff in Jade Aircraft Sales, Inc., did argue that § 12-422 provided an inadequate remedy because it did not provide for awards of monetary damages or attorney’s fees. Jade Aircraft Sales, Inc. v. Crystal, supra, 236 Conn. 708. Our Supreme Court rejected that argument. Id., 709.

We conclude that § 12-422 provides an adequate legal remedy for the plaintiffs’ claims. Section 12-422 provides in relevant part: “Any taxpayer aggrieved because of any order, decision, determination or disallowance of the Commissioner of Revenue Services under section 12-418, 12-421 or 12-425 may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of New Britain, which shall be accompanied by a citation to the Commissioner of Revenue Services to appear before said court. . . . Such appeals shall be preferred cases, to be heard, unless cause appears to the contrary, at the first session, by the court or by a committee appointed by it. Said court may grant such relief as may be equitable and, if such tax has been paid prior to the granting of such relief, may order the Treasurer to pay the amount of such relief, with interest at the rate of two-thirds of one per cent per month or fraction thereof, to the aggrieved taxpayer. If the appeal has been taken without probable cause, the court may tax double or triple costs, as the case demands; and, upon all such appeals which are denied, costs may be taxed against the appellant at the discretion of the court, but no costs shall be taxed against the state.” (Emphasis added.)

Here, the court concluded that “a plaintiff against whom sales and use taxes have been misbilled or mis-collected in Connecticut does have an adequate legal remedy to review alleged unconstitutional conduct by state agents in the assessment, levying and/or collection of such taxes under [§] 12-422, and thus a federal statutory action seeking damages in connection with such conduct is beyond the subject matter jurisdiction of this court.” The court noted our Supreme Court’s statement in Jade Aircraft Sales, Inc., that in addition to legal relief, § 12-422 “explicitly provides for such relief as maybe equitable, including interest.” (Internal quotation marks omitted.) Jade Aircraft Sales, Inc. v. Crystal, supra, 236 Conn. 709. Section 12-422, farther, provides that such appeals shall be “preferred cases,” and that the court may grant “such relief as may be equitable . . . .” Thus, the court properly determined that it lacked subject matter jurisdiction over the federal statutory and constitutional claims.

II

The plaintiffs also claim that the court improperly concluded that the Connecticut Taxpayer’s Bill of Rights, § 12-39n, does not create or authorize a common-law tort cause of action. We disagree.

This issue presents a question of statutory interpretation over which our review is plenary. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratex-tual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Windels v. Environmental Protection Commission, 284 Conn. 268, 294-95, 933 A.2d 256 (2007).

“We begin our analysis with the well settled fundamental premise that there exists a presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute. In order to overcome that presumption, the [plaintiffs bear] the burden of demonstrating that such an action is created implicitly in the statute. ... In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff one of the class for whose . . . benefit the statute was enacted . . . ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? . . . Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 249, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997).

“Consistent with the dictates of ... § l-2z, however, we do not go beyond the text of the statute and its relationship to other statutes unless there is some textual evidence that the legislature intended, but failed to provide expressly, a private right of action. Textual evidence that would give rise to such a question could include, for example, language granting rights to a discrete class without providing an express remedy or language providing a specific remedy to a class without expressly delineating the contours of the right. . . .

“Finally, we note that [i]n examining [the three Napo-letano] factors, each is not necessarily entitled to equal weight. Clearly, these factors overlap to some extent with each other, in that the ultimate question is whether there is sufficient evidence that the legislature intended to authorize [these plaintiffs] to bring a private cause of action despite having failed expressly to provide for one. . . . Therefore, although the [plaintiffs] must meet a threshold showing that none of the three factors weighs against recognizing a private right of action, stronger evidence in favor of one factor may form the lens through which we determine whether the [plaintiffs] satisf[y] the other factors. Thus, the amount and persuasiveness of evidence supporting each factor may vary, and the court must consider all evidence that could bear on each factor. It bears repeating, however, that the [plaintiffs] must meet the threshold showing that none of the three factors weighs against recognizing a private right of action. . . .

“The stringency of the test is reflected in the fact that, since this court decided Napoletano, we have not recognized an implied cause of action despite numerous requests.” (Citation omitted; internal quotation marks omitted.) Gerardi v. Bridgeport, 294 Conn. 461, 468-70, 985 A.2d 328 (2010).

Section 12-39n provides in relevant part: “There is created a Connecticut Taxpayer’s Bill of Rights to guarantee that the rights, privacy, and property of Connecticut taxpayers are adequately safeguarded and protected during tax assessment, collection and enforcement processes administered under the revenue laws of this state. The rights afforded taxpayers to assure that their privacy and property are safeguarded and protected during tax assessment and collection are available only insofar as they are implemented in other parts of the general statutes or rules or regulations of the Department of Revenue Services. . . .” Here, the court rejected the plaintiffs’ claim that § 12-39n provided either an express or implied right of action. Specifically, the court stated that “there is simply nothing in the Taxpayer Bill of Rights that creates or authorizes the kind of legal claim or cause of action which the plaintiffs urge this court to recognize. Had it been the intent of the legislature to create or authorize such a claim or cause of action, it could easily have done so in the text of the statute, such as by amending the scope and substance of [§] 12-422 or by expressly establishing a new and different statutory remedy. As the plaintiffs candidly admit, however, the legislature did no such thing. It ill behooves this court to rewrite statutes on the theory that the legislature implicitly intended that they be so construed.”

The court properly concluded that § 12-39n provides no implied right of action because there is no indication of legislative intent, explicit or implicit, to create such a remedy. Section 12-39n explicitly states that the rights afforded to taxpayers therein are “available only insofar as they are implemented in other parts of the general statutes or rules or regulations of the Department of Revenue Services. . . .” (Emphasis added.) Thus, the legislature expressly provided that the rights granted in § 12-39n shall be enforced by other parts of the general statutes, or by rules or regulations of the department of revenue services. The plaintiffs point to 4 Restatement (Second) Torts, § 874A (1979), in support of their argument that this court should infer a private right of action in their favor. Section 874A provides that when a legislative provision “protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the legislation and needed to assure effectiveness of the provision, accord to an injured member of a class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.” (Emphasis added.)

Here, an implied remedy is not needed to ensure the effectiveness of § 12-39n, because the remedies available to taxpayers in our General Statutes and the department’s regulations adequately protect the rights in § 12-39n. As we have stated, § 12-422 provides an adequate remedy for the plaintiffs’ claims against the defendants. Further, the allowance of a private right of action under § 12-39n would interfere with the existing remedies available under our tax statutes and regulations. See Gerardi v. Bridgeport, supra, 294 Conn. 472 (rejecting claim that General Statutes § 31-48d [c] provided private right of action when statute clearly delegated all powers related to violations of that statute to labor commissioner); Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 373-74, 880 A.2d 138 (2005) (rejecting plaintiffs’ claim of private right of action under Liquor Control Act when act delegates all enforcement authority exclusively to department of consumer protection). Finally, if the legislature intended to provide a private right of action for enforcement of § 12-39n, it easily could have done so. Instead, it expressly provided that the enforcement of the rights in § 12-39n shall be “implemented in other parts of the general statutes or rules or regulations of the Department of Revenue Services. ...” Accordingly, the court properly concluded that § 12-39n does not provide a private right of action for the plaintiffs.

The form of the judgment is improper, the judgment is reversed and the case is remanded with direction to render judgment dismissing the action for lack of subject matter jurisdiction.

In this opinion the other judges concurred.

       Title 42 of the United States Code, § 1983, provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . . subjects, or causes to be subjected any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .”

       The plaintiffs also claim that the court erroneously determined that (1) no genuine issue of material fact existed with respect to their claims that the defendants violated their rights to substantive due process under the fourteenth amendment to the United States constitution and (2) the defendants were shielded by the doctrine of qualified immunity from their substantive due process claims. We do not address these claims because we agree with the court that it lacked subject matter jurisdiction.

       The final report did not state that the assessment was a jeopardy assessment. The court noted, however, that the tax deficiency assessment was billed as a jeopardy assessment pursuant to General Statutes § 12-417, which provides in relevant part: “(1) ... If the commissioner believes that the collection of any tax or any amount of tax required to be collected and paid to the state or of any assessment will be jeopardized by delay, the commissioner shall make an assessment of the tax or amount of tax required to be collected, noting that fact upon the assessment and serving written notice thereof . ... (2) .. . The amount assessed is due and payable no later than the tenth day after service of the notice of assessment, unless on or before such tenth day the person against whom such assessment is made has obtained a stay of collection, as provided in subdivision (3) of this section. To the extent that collection has not been stayed, the commissioner may enforce collection of such tax by using the method provided in section 12-35 or by using any other method provided for in the general statutes relating to the enforced collection of taxes . . . .”

       Our Supreme Court affirmed the court’s decision on appeal. See Alexan-drev. Commissioner of Revenue Services, 300 Conn. 566,22A.3d518 (2011). On appeal, Alexandre claimed that the trial court improperly “(1) concluded that his failure to retain detailed cash register tapes meant that he could not sustain his burden of proving that the defendant’s decision to impose a deficiency assessment was incorrect; and (2) failed to discharge a tax lien that the defendant had placed on his real property in conjunction with a jeopardy assessment that the trial court determined had been improperly imposed pursuant to ... § 12-417.” Id., 571. Our Supreme Court concluded that the commissioner of revenue services properly required Alexandre to produce detailed cash register tapes to verily his gross receipts. Id., 571-72. It declined to review Alexandre’s second claim because he failed to raise it properly before the trial court. Id., 572. The LLC was not a party in that case.

       Although “the proper way to challenge subject matter jurisdiction is by a motion to dismiss, rather than a motion for summary judgment”; Booth v. Flanagan, 19 Conn. App. 413, 415, 562 A.2d 592 (1989); it is not improper to treat a motion for summary judgment as a motion to dismiss. See Bellman v. West Hartford, 96 Conn. App. 387, 392-93, 891 A.2d 82 (2006).

       We note that although the court’s memorandum of decision states that the federal claims “must be dismissed” for lack of subject matter jurisdiction, in its conclusion, the court stated that the defendants’ motion for summary judgment is granted “in its entirety.”

       The plaintiffs cite Blass v. Rite Aid of Connecticut, Inc., 51 Conn. Sup. 622, 16 A.3d 855 (2009), aff'd, 127 Conn. App. 569, 16 A.3d 737 (2011), in support of their argument that the court improperly invoked the exhaustion doctrine. In Blass, the court dismissed the plaintiffs action under the exhaustion doctrine; the court stated that the plaintiff could not bring an action arising under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., where administrative remedies under the Sales Tax Act were available pursuant to General Statutes §§ 12-425 and 12-422. Id., 630-31. Blass is distinguishable because exhaustion is not required for § 1983 actions. Here, the court did not apply the exhaustion doctrine to the § 1983 claims; rather, it concluded that an adequate legal remedy under state law existed, and, accordingly, an action under § 1983 was inappropriate. See Zizka v. Water Pollution Control Authority, 195 Conn. 682, 690, 490 A.2d 509 (1985).

       General Statutes § 7-250 provides in relevant part: “No assessment shall be made until after a public hearing before the water pollution control authority at which the owner of the property to be assessed shall have an opportunity to be heard concerning the proposed assessment. . . .”

       Title 28 of the United States Code, § 1341, provides: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.”

       Title 42 of the United States Code, § 1988 (b), provides in relevant part: “In any action or proceeding to enforce a provision of [section] . . . 1983 . . . 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 . . .

       In support of its conclusion, the court in Jade Aircraft Sales, Inc., relied on National Private Truck Council, Inc. v. Oklahoma Tax Commission, 515 U.S. 582, 115 S. Ct. 2351, 132 L. Ed. 2d 509 (1995), in which the United States Supreme Court held that § 1983 provides no basis for courts to issue injunctive or declaratory relief in state cases when there is an adequate remedy at law. The United States Supreme Court referred to Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100, 116, 102 S. Ct. 177, 70 L. Ed. 2d 271 (1981), in which it held that under principles of comity and federalism, Congress “never authorized federal courts to entertain damages actions under § 1983 against state taxes when state law furnishes an adequate legal remedy.” National Private Truck Council, Inc. v. Oklahoma Tax Commission, supra, 587. The court stated that “[wjhether a suit is brought in federal or state court, Congress simply did not authorize the disruption of state tax administration in this way.” (Emphasis added.) Id., 590.
      The allowance of a § 1983 action for damages in state court challenging a tax assessment, where an adequate remedy at law exists, would invoke the same policy concerns regarding the disruption of state tax administration expressed in National Private Truck Council, Inc. Several of our sister states have also disallowed such actions for lack of subject matter jurisdiction under this rationale. See, e.g., Kowenhoven v. Allegheny, 587 Pa 545, 563, 901 A.2d 1003 (2006) (holding that § 1983 monetary damages are unavailable in tax cases brought in state court when adequate legal remedy exists); General Motors Corp. v. San Francisco, 69 Cal. App. 4th 448, 458-59, 81 Cal. Rptr. 2d 544 (1999) (denying claim for damages under § 1983 because tax refund provided adequate remedy); New England Legal Foundation v. Boston, 423 Mass. 602, 614, 670 N.E.2d 152 (1996) (denying attorney’s fees pursuant to § 1988 where adequate state remedy existed); General Motors Corp. v. Linden, 143 N.J. 336, 671 A.2d 560 (1996) (denying claim seeking compensatory and punitive damages under § 1983).

       The plaintiffs argue that because they are not challenging the tax assessment itself but, rather, are bringing an “original damages action,” § 12-422 does not provide an adequate remedy. We disagree with this narrow interpretation of the statutory language. Section 12422 provides for an appeal of “any order, decision, determination or disallowance of the Commissioner of Revenue Services under section 12418, 12421 or 12425 . . . .” Further, § 12422 allows the court to grant “such relief as may be equitable . . . .” See Jade Aircraft Sales, Inc. v. Crystal, supra, 236 Conn. 709.

       See Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 797-800, 970 A.2d 640 (2009) (rejecting plaintiffs claim that General Statutes § 22a-20 implicitly provides private right of action); Provencher v. Enfield, 284 Conn. 772, 777-90, 936 A.2d 625 (2007) (rejecting plaintiffs claim that General Statutes § 22-331 [a] implicitly provides private right of action); Rollins v. People’s Bank Corp., 283 Conn. 136, 137-38, 925 A.2d 315 (2007) (refusing to find that General Statutes § 51-199b [d] implicitly provides private right of action for customer against financial institution for disclosure of customer’s financial records in violation of General Statutes § 36a-42 or § 36a-43); Asylum Hill Problem, Solving Revitalization Assn. v. King, 277 Conn. 238, 259, 890 A.2d 522 (2006) (rejecting plaintiffs claim that General Statutes § 8-37cc [b] implicitly provides private right of action); Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 378, 880 A.2d 138 (2005) (rejecting plaintiffs’ claim that Liquor Control Act, General Statutes § 30-1 et seq., implicitly provides private right of action); Pane v. Danbury, 267 Conn. 669, 680, 841 A.2d 684 (2004) (rejecting plaintiffs claim that Freedom of Information Act, General Statutes § 1-200 et seq., implicitly provides private right of action).

       It is undisputed that the plaintiffs, as taxpayers, are within the class for whose benefit § 12-39n was enacted. See Gerardi v. Bridgeport, supra, 294 Conn. 468.


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    LANDMARK INVESTMENT GROUP, LLC v. CHUNG FAMILY REALTY PARTNERSHIP, LLC
    (AC 33083)
    Gruendel, Robinson and Sullivan, Js.

      Argued January 19 —
    officially released August 7, 2012

      Walter A. Twachtman, Jr., for the appellant (defendant).

      Anne D. Peterson, with whom, on the brief, were Christopher Rooney and Kurtis Z. Piantek, for the appellee (plaintiff).
   Opinion

SULLIVAN, J.

The defendant, Chung Family Realty Partnership, LLC, appeals from the trial court’s order granting the application for a prejudgment remedy filed by the plaintiff, Landmark Investment Group, LLC. On appeal, the defendant claims that (1) the doctrine of res judicata prevents the plaintiff from relitigating issues that have been or could have been litigated in the first litigation; and (2) the court erred when it awarded the plaintiff a prejudgment remedy in the amount of $4.5 million. We affirm the judgment of the court.

The following facts and procedural history are relevant to our review of the defendant’s appeal. On June 30, 2005, the plaintiff and the defendant entered into a purchase and sale agreement for commercial real estate located at 311-349 New Britain Avenue in Plainville. A dispute arose regarding the agreement. On December 19, 2006, the plaintiff commenced an action against the defendant, claiming, inter alia, breach of contract and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. See Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, Superior Court, judicial district of New Britain, Docket No. CV-07-5003201-S (August 19, 2009) (Landmark I). On August 19, 2009, following a trial, the court issued its memorandum of decision. The court in Landmark I found that the defendant had breached the contract and had violated CUTPA. On December 28, 2010, this court affirmed the judgment of the trial court. Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, 125 Conn. App. 678, 10 A.3d 61 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011).

On April 19, 2010, the town of Plainville initiated foreclosure proceedings to collect unpaid taxes due on the property. The total amount of unpaid taxes was approximately $131,000. Both the plaintiff and the defendant in the present action were named as defendants in the tax foreclosure proceeding. On December 3, 2010, while the foreclosure proceedings were pending, the plaintiff filed its application for a prejudgment remedy against the defendant, along with a proposed complaint, alleging breach of contract. Specifically, the plaintiff alleged that the defendant’s failure to pay the real property taxes was a breach of the purchase and sale agreement. The plaintiff argued that there was probable cause that a judgment would be rendered against the defendant and that the potential damage to the plaintiff would be $4.5 million.

The court held an evidentiary hearing on January 13, 2011. During the hearing, the court heard testimony from, inter alia, the plaintiffs appraisal expert, William Kane, and received documentary evidence from the plaintiff. The defendant called no witnesses. At the conclusion of the hearing, the defendant raised the defenses of laches, waiver and res judicata. On January 14, 2011, the court issued its memorandum of decision granting the plaintiffs application in the amount of $4.5 million. In its memorandum of decision, the court made several findings of fact. Important to our discussion, which follows, the court found that, although the parties litigated the enforceability of the agreement before, “the issue in this case was not raised in [Landmark /].” The court noted that the memorandum of decision in Landmark I made “no mention of any claim of unpaid or delinquent taxes. Moreover, [Landmark T] [was] commenced in December, 2006, and the tax liens, which [gave] rise to the foreclosure action, were not placed on the property until some time after. The failure to pay the taxes became material and caused injury to [the plaintiff] when the town of Plainville chose to exercise its right to foreclose on the property in 2010. It was not until this time that the [defendant’s] failure to pay the taxes became material and caused injury to [the plaintiff] due to the potential change of ownership of the property as a result of the judgment of foreclosure by sale on November 1, 2010.” The court also found that the plaintiff established the probability of a judgment in its favor in the amount of $4.5 million. This appeal followed.

I

The defendant first claims that the doctrine of res judicata should have prevented the plaintiff from reliti-gating issues that have been or could have been litigated in the first litigation. It contends that the claim brought by the plaintiff in the present action is a part of the transaction or series of transactions out of which the first action arose. That action, according to the defendant — including the purchase and sale agreement, the time frame, the actions of the parties, the claim for damages and conduct of the parties — forms a convenient trial unit. The defendant argues that there is a substantial overlap of witnesses in the present case as compared with Landmark I. It also argues that the same purchase and sale agreement is in dispute, and the plaintiff is seeking the same claim for damages.

In response, the plaintiff argues that the present action is not barred by the doctrine of res judicata. The plaintiff contends that the issue in Landmark I was the defendant’s wrongful termination of the agreement on the basis of the failure to obtain funding for the cleanup of the property. It argues that the court in Landmark I, by ordering specific performance of the agreement, reinstated the agreement on the terms originally agreed to by the parties. In contrast, the plaintiff notes that the complaint in the present action alleges a breach of contract claim against the defendant for its additional breaches of the agreement that occurred when the town of Plainville initiated foreclosure proceedings in April, 2010, which was more than eight months after the judgment was rendered in Landmark I. The plaintiff emphasizes that the injury is not the failure to pay taxes, but the commencement of the foreclosure action by the town of Plainville, which resulted in the loss of the property by a foreclosure sale on March 19, 2011. The plaintiff argues that it is well settled that the doctrine of res judicata does not apply to preclude litigation of claims that rest in whole or in part on facts, conduct or occurrences that happened after the date of the original judgment. Finally, the plaintiff argues that the claims should not be barred “as a matter of simple equity

We begin by setting forth the relevant standard of review. “[T]he applicability of res judicata . . . presents a question of law over which we employ plenary review. . . . The principles that govern res judicata are described in Restatement (Second) of Judgments .... The basic rule is that of § 18, which [provides] in relevant part: When a valid and final personal judgment is rendered in favor of the plaintiff: (1) [t]he plaintiff cannot thereafter maintain an action on the original claim or any part thereof, although he may be able to maintain an action upon the judgment .... As comment (a) to § 18 explains, [w]hen the plaintiff recovers a valid and final personal judgment, his original claim is extinguished and rights upon the judgment are substituted for it. The plaintiffs original claim is said to be merged in the judgment. Our . . . case law has uniformly approved and applied the principle of claim preclusion or merger. . . .

“Because the operative effect of the principle of claim preclusion or merger is to preclude relitigation of the original claim, it is crucial to define the dimensions of that original claim. The Restatement (Second), Judgments provides, in § 24, that the claim [that is] extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage. In amplification of this definition of original claim, § 25 of the Restatement (Second) [of Judgments provides] that [t]he rule of § 24 applies to extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action (1) [t]o present evidence or grounds or theories of the case not presented in the first action, or (2) [t]o seek remedies or forms of relief not demanded in the first action.

“The transactional test of the Restatement [(Second) of Judgments] provides a standard by which to measure the preclusive effect of a prior judgment, which we have held to include any claims relating to the cause of action which were actually made or might have been made. ... In determining the nature of a cause of action for these purposes, we have long looked to the group of facts which is claimed to have brought about an unlawful injury to the plaintiff . . . and have noted that [e]ven though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action. . . .

“The Restatement (Second) of Judgments further explains, with respect to how far the witnesses or proof in the second action would tend to overlap the witnesses or proof relevant to the first, [i]f there is a substantial overlap, the second action should ordinarily be held precluded. But the opposite does not hold true; even when there is not a substantial overlap, the second action may be precluded if it stems from the same transaction or series. 1 Restatement (Second), Judgments § 24, comment (b) (1982). Similarly, [w]hen a defendant is accused of successive but nearly simultaneous acts, or acts which though occurring over a period of time were substantially of the same sort and similarly motivated, fairness to the defendant as well as the public convenience may require that they be dealt with in the same action. . . .

“Our rules of res judicata are based on the public policy that a party should not be allowed to relitigate a matter which it already has had an opportunity to litigate. . . . [T]he purpose of a law suit is not only to do substantial justice but to bring an end to controversy. [F.] James & [G.] Hazard, Civil Procedure (3d Ed. 1985) § 11.2, p. 590. . . . [T]he purposes of res judicata [of] promoting judicial economy, minimizing repetitive litigation, preventing inconsistent judgments and providing repose to parties . . . [however, must be] balanced against the competing interest of the plaintiff in the vindication of a just claim. . . . Indeed, we have recognized that the application of res judicata can yield harsh results . . . and, as a result, have stated that the doctrine should be flexible and must give way when [its] mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies.” (Citations omitted; internal quotation marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light & Power Co., 300 Conn. 325, 347-50, 15 A.3d 601 (2011).

The issue requires us to examine the previous action. “In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action. ” Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 590, 674 A.2d 1290 (1996). Specifically at issue in Landmark I was the enforceability of the June 30, 2005 purchase and sale agreement. Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, supra, 125 Conn. App. 680-86. In Landmark I, the plaintiff filed a six count complaint alleging breach of contract, breach of the implied covenant of good faith and fair dealing, violation of CUTPA and interference with contractual relations. Id., 685. The defendant filed special defenses “averring that [the plaintiff] was limited to remedies set forth in the agreement, that all other relief sought was barred by the economic loss doctrine and that the agreement was voidable due to mutual mistake.” Id., 686. On August 19, 2009, the trial court rendered judgment in favor of the plaintiff, rejecting the defendant’s special defense of mutual mistake and finding breach of contract and a violation of CUTPA. Id. The court awarded the plaintiff specific performance on the contract claim, including a return of its deposit should it elect under the contract to terminate its obligations, and attorney’s fees on the CUTPA claim. Id. This court subsequently affirmed the trial court’s judgment. Id., 708.

The complaint in the present matter addresses a separate issue altogether. The plaintiffs complaint contains one breach of contract count. The plaintiff notes in its complaint that the court in the previous action ordered that the agreement be specifically performed according to its terms. The complaint claims that after the case was decided, and while it was being appealed, the defendant continued to breach the agreement and committed new breaches that have caused injury to the plaintiff. Specifically, the plaintiff claims that the defendant failed to keep current its municipal taxes owed to the town of Plainville. The plaintiff claims that the defendant failed to pay the real estate taxes on the property for the years of 2006, 2007, 2008, 2009 and 2010. The complaint further claims that the defendant’s failure to pay taxes to the town resulted in Plainville instituting a foreclosure action to collect its unpaid taxes against the defendant on April 19, 2010.

The defendant argues that there is substantial overlap in the two cases because the two cases involve the same purchase and sale agreement, a second claim for breach of contract, and two of the same witnesses, Glen Russo, executive manager of the plaintiff, and the plaintiffs appraisal expert, Kane. The defendant further notes that Kane used the same report and estimation for damages in this matter as he did in Landmark I. Although we agree with the defendant that the cases overlap to the extent specified, they remain sufficiently distinct to elude the application of the doctrine of res judicata.

The injury that provides the foundation for the plaintiffs cause of action in this matter — the foreclosure action brought by the town of Plainville — occurred wholly subsequent to the judgment in the previous matter. The court issued its memorandum of decision in the previous action rendering judgment in favor of the plaintiff on August 19, 2009. The foreclosure action was initiated on April 19, 2010. Although it is true that the plaintiff either knew or should have known that the defendant was behind in paying municipal taxes during the previous action, it remained the defendant’s obligation to pay the taxes throughout the proceedings and after the court granted specific performance. As such, the conduct complained of occurred after the judgment alleged by the defendants to have preclusive effect. “Pursuant to a comment to the Restatement section articulating the transactional test for res judicata, which Connecticut cases employ, [m]aterial operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first. ... 1 Restatement (Second), [Judgments] § 24, comment (f), p. 203 (1982); see, e.g., Lawlor v. National Screen Service Corp., 349 U.S. 322, 327-28, 75 S. Ct. 865, 99 L. Ed. 1122 (1955) (prior conspiracy action does not preclude second conspiracy action against same defendant where plaintiff relies on conspiratorial acts postdating judgment in first action); In re Juvenile Appeal (83-DE), 190 Conn. 310, 319, 460 A.2d 1277 (1983) (adjudication that ground for termination of parental rights did not exist at one time does not mean ground has not arisen at later time); Kimmel v. Iowa Realty Co., 339 N.W.2d 374, 379 (Iowa 1983) (successive actions for fraud, breach of fiduciary duty allowed where there are continuing wrongs or significantly changed circumstances).” (Emphasis in original; internal quotation marks omitted.) Cadle Co. v. Gabel, 69 Conn. App. 279, 297-98, 794 A.2d 1029 (2002). As we stated in Cadle Co., “[t]o conclude that [the plaintiffs] claim is now barred by res judicata would be to require omniscience in litigation.” Id., 298. Requiring no such omniscience, we conclude that the doctrine of res judicata does not apply under these circumstances.

II

The defendant next claims that the court erred when it awarded the plaintiff a prejudgment remedy in the amount of $4.5 million. The defendant argues that the plaintiff offered insufficient evidence to establish that it would suffer damages in the amount of $4.5 million. The defendant contends that Kane’s report was based on information from the plaintiff and others on how the plaintiff would develop the premises. The defendant argues, however, that the plaintiff did not sign up any tenants and had no engineering or architectural plans prepared. The defendant claims that there was not one aspect of the appraiser’s report and opinion that was based on actual fact.

“A prejudgment remedy means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment. . . . General Statutes § 52-278a (d). A prejudgment remedy is available upon a finding by the court that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff .... General Statutes § 52-278d (a) (1). . . . Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence. . . . The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. . . . Under this standard, the trial court’s function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits. . . .

“As for [the] standard of review [on appeal], [an appellate] court’s role on review of the granting of a prejudgment remedy is very circumscribed. ... In its determination of probable cause, the trial court is vested with broad discretion which is not to be overruled in the absence of clear error. ... In the absence of clear error, [a reviewing] court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses. . . . [On appeal], therefore, we need only decide whether the trial court’s conclusions were reasonable under the clear error standard.” (Internal quotation marks omitted.) Crotty v. Tuccio Development, Inc., 119 Conn. App. 775, 778-80, 990 A.2d 888 (2010).

The court noted that Kane was an expert real estate appraiser and that he performed his assessment as of October 27, 2006, the date the breach of contract occurred in the previous action. The court found that Kane determined “what if any losses would have occurred if [the plaintiff] had been allowed to purchase the property, and utilized various acceptable and recognized appraisal practices and analyses.” The court further noted that, although the defendant argued that Kane’s report and findings were based on speculation, the defendant had no quarrel with the methodology employed by Kane in reaching the potential lost profits amount. The court found that all of the assumptions and conclusions that Kane made were based on sound methodology and recognized real estate appraisal practices, as well as based on factual data. The court then concluded that on the basis of the evidence produced at the hearing, the plaintiff had established the probability of a judgment in its favor in the amount of $4.5 million.

The court did not commit clear error. The defendant conceded that Kane was an expert. The defendant argues that Kane’s report and testimony were based on speculation and, therefore, improperly were admitted into evidence. We disagree. “The role of the judge as gatekeeper in weighing the reliability of expert testimony was stated by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and incorporated into the law of this state in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). In Porter, our Supreme Court restated the Daubert list of potential factors to be considered when the trial court properly is exercising its role as gatekeeper of the admissibility of scientific expert evidence. Id., 64.” Message Center Management, Inc. v. Shell Oil Products Co., 85 Conn. App. 401, 421-22, 857 A.2d 936 (2004).

“Damages may be awarded on the basis of lost profits when the subject of the damages relates to an unestablished enterprise or if there is no other alternative in terms of the valuation of damages. Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, [247 Conn. 48, 63-64, 717 A.2d 724 (1998)]. A damages theory may be based on assumptions as long as those assumptions are reasonable in light of the record evidence. See National Farmers’ Organization, Inc. v. Associated Milk Producers, Inc., 850 F.2d 1286, 1301-1303 (8th Cir. 1988), cert. denied, 489 U.S. 1081, 109 S. Ct. 1535, 103 L. Ed. 2d 840 (1989). The reasonableness of those assumptions is to be determined by the trier of fact. General Leaseways, Inc. v. National Truck Leasing Assn., 830 F.2d 716, 726-27 (7th Cir. 1987).” Message Center Management, Inc. v. Shell Oil Products Co., supra, 85 Conn. App. 424.

Here, the trier of fact was the court, and it implicitly found that Kane’s report was reasonable. The court stated that “[a]ll of the assumptions made by Kane in reaching his conclusions were based on sound methodology and recognized real estate appraisal practices, as well as based upon factual data. The [trial] court has reviewed the report submitted by Kane, and considered his testimony. Kane submitted two scenarios as to the calculations of lost profits, one from the original development plan, which indicated a lost profit of $4.2 million, and a second from an alternative development plan, which indicated a lost profit of $5 million. . . . Based upon the evidence produced at the hearing, the plaintiff has established, to the court’s satisfaction, the probability of a judgment in its favor in the amount of $4.5 million.” (Citation omitted.) Furthermore, the defendant did not introduce any evidence or expert witness to rebut Kane’s testimony. Therefore, we conclude that the court’s finding of probable cause to grant the prejudgment remedy is not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       We have regularly held that the granting of a prejudgment remedy is a final judgment for the purposes of appeal. See, e.g., Marlin Broadcasting, LLC v. Law Office of Kent Avery, LLC, 101 Conn. App. 638, 641 n.1, 922 A.2d 1131 (2007).

       The defendant further argues that the court improperly placed the burden on it to introduce its failure to pay the real property taxes at the first trial. Because we conclude that the injury giving rise to the cause of action in this matter occurred after the conclusion of the previous matter, we are not persuaded by this argument.

       Article 12.1.4 of the agreement provides: “[The defendant] shall keep current all municipal real estate taxes, assessments and levies, and shall not encumber the [property and shall not suffer any hens to be placed upon the [premises during the term of this [a]greement, and shall further pay any and all bills as they become due for any work performed for [the defendant] and/or on or for the benefit of the [pjroperty for which a mechanics Hen can be filed.”


author: ROBINSON, J.

text:
    SARAH STOTT v. PEERLESS INSURANCE COMPANY
    (AC 33565)
    DiPentima, C. J., and Lavine and Robinson, Js.

      Argued May 15 —
    officially released August 7, 2012

      Ralph J. Monaco, with whom was Jonathan T. Lane, for the appellant (plaintiff).

      Philip T. Newbury, Jr., with whom was Alaina C. Judge, for the appellee (defendant).
   Opinion

ROBINSON, J.

The plaintiff in this action for underin-sured motorist benefits, Sarah Stott, appeals from the summary judgment rendered by the trial court in favor of the defendant, Peerless Insurance Company. On appeal, the plaintiff claims that the court erred in concluding that she was barred as a matter of law from recovering additional underinsured motorist benefits under her parents’ insurance policy on the basis of the policy’s “owned auto” exclusion and antistacking provision and pursuant to the antistacking provision in General Statutes § 38a-336 (d). We conclude that the defendant was entitled to summary judgment on the basis of the antistacking provision in § 38a-336 (d), and, therefore, we need not address the plaintiffs other claims regarding the viability and applicability of the “owned auto” exclusion and the antistacking provision in the parents’ policy and whether they would provide an independent basis for granting summary judgment in favor of the defendant. See Cambridge Mutual Fire Ins. Co. v. Sakon, 132 Conn. App. 370, 372 n.2, 31 A.3d 849 (2011), cert. denied, 304 Conn. 904, 38 A.3d 1202 (2012).

We begin by setting forth the following undisputed facts and procedural history. On July 1, 2009, the plaintiff was driving her vehicle on Butts Bridge Road in Canterbury when a vehicle operated by Steven M. Pop-pie, driving in the opposite direction, crossed over into the plaintiffs lane of travel and struck her vehicle head on. The plaintiff suffered serious bodily injuries as a result of the collision. At the time of the collision, Poppie’s vehicle was covered by an insurance policy that included liability limits of $20,000 per person. The plaintiffs vehicle was covered under her insurance policy with the defendant and included underinsured motorist coverage of $100,000 per person. The plaintiff lived with her parents at the time of the collision. Her parents insured their automobiles under a separate policy, also issued by the defendant. The plaintiffs vehicle was not a covered vehicle under the parents’ policy, however, the parents’ policy extended coverage to resident relatives living in their home and provided for underinsured motorist benefits of $250,000 per person.

The plaintiff obtained $20,000 pursuant to Poppie’s liability policy and $80,000 under her own policy’s underinsured motorist coverage. She then filed the present action in which she sought to recover additional underinsured motorist benefits from the defendant under her parents’ insurance policy. The defendant filed an answer denying that the plaintiff was entitled to benefits under the parents’ policy and raising a number of special defenses, including that coverage under the parents’ policy was precluded by the express terms of that policy and that, pursuant to § 38-336 (d), the plaintiffs own policy provided her exclusive remedy.

On December 22, 2010, the defendant filed a motion for summary judgment arguing that there were no genuine issues of material fact in dispute and that it was entitled to judgment as a matter of law on the coverage dispute, again asserting that any recovery by the plaintiff of additional underinsured motorist benefits under her parents’ policy was excluded by the terms of the policy and by the antistacking provisions in § 38a-336 (d). On June 1, 2011, the court issued a decision finding that there were no disputed issues of material fact and that the defendant was entitled to judgment in its favor on the basis of the unambiguous exclusionary provisions of the parents’ policy and pursuant to § 38a-336 (d). This appeal followed.

We begin by setting forth the applicable law governing our review of the claims raised on appeal. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a party’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Hannaford v. Mann, 134 Conn. App. 265, 269-70, 38 A.3d 1239, cert. denied, 304 Conn. 929, 42 A.3d 390 (2012). In conducting our review, we are cognizant that “[a] motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Interna! quotation marks omitted.) Weiner v. Clinton, 106 Conn. App. 379, 383, 942 A.2d 469 (2008).

In the present appeal, the plaintiff acknowledges that there are no material facts in dispute; rather, she challenges the court’s legal conclusions, arguing that they “are inconsistent with the law of uninsured/underin-sured motorist coverage.” We must decide, therefore, whether the court’s determination that the plaintiff was not entitled to additional underinsured motorist benefits under her parents’ policy was legally and logically correct. Specifically, we turn to the plaintiffs claim that the court improperly granted summary judgment as a matter of law on the basis of the antistacking provision in § 38a-336 (d). We disagree with the claim.

Since 1979, this state has required that automobile insurance policies provide underinsured motorist benefits “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of . . . underinsured motor vehicles . . . because of bodily injury . . . .” General Statutes § 38a-336 (a) (1). “[T]he rationale behind underinsured motorist coverage ... is to provide an insured who is injured in an accident with the same resources he would have had if the tortfeasor had liability insurance equal to the amount of the insured’s uninsured/underin-sured motorist coverage. . . . The purpose is not to guarantee full compensation for a claimant’s injuries. . . . Indeed, underinsured motorist protection is not intended to provide a greater recovery than would have been available from the tortfeasor. . . . The public policy established by the uninsured/underinsured motorist statute is to assure that every insured recovers the damages he or she would have been able to recover if the uninsured or underinsured motorist had maintained an adequate policy of liability insurance . . . equal to the amount of the insured’s uninsured/underinsured motorist coverage.” (Internal quotation marks omitted.) Fuchs v. Allstate Ins. Co., 96 Conn. App. 284, 291, 899 A.2d 709 (2006).

In 1993, the legislature enacted Public Acts 1993, No. 93-297, which, among other things, added subsection (d) to § 38a-336. Section 38a-336 (d) provides in relevant part: “If any person insured for uninsured and underin-sured motorist coverage is an occupant of an owned vehicle, the uninsured and underinsured motorist coverage afforded by the policy covering the vehicle occupied at the time of the accident shall be the only uninsured and underinsured motorist coverage available.” (Emphasis added.) The purpose of the new subsection was to bar the practice of “stacking,” which, up to that date, had been judicially approved. Lane v. Metropolitan Property & Casualty Ins. Co., 125 Conn. App. 424, 434, 7 A.3d 950 (2010). “Stacking” refers “to the ability of the insured, when covered by more than one insurance policy, to obtain benefits from a second policy on the same claim when recovery from the fust policy alone would be inadequate.” (Internal quotation marks omitted.) Id., 435.

In the present case, at the time of the collision, the plaintiff was a “person insured for uninsured and under-insured motorist coverage.” She was insured under her own policy, which included uninsured/underinsured motorist coverage, and she was an insured under her parents’ policy. She was an “occupant of an owned vehicle.” It is undisputed that she owned the vehicle she was occupying at the time of the collision. Accordingly, pursuant to the clear and unambiguous language of § 38a-336 (d), the only underinsured motorist coverage available to the plaintiff was the underinsured motorist coverage “covering the vehicle occupied at the time of the accident,” which in the present case was her own automobile insurance policy. Her vehicle was not a covered vehicle under her parents’ policy. Her policy provided for underinsured motorist coverage to a limit of $100,000. The plaintiff received the full benefit of that policy, having collected $20,000 from Poppie — the limit of his policy’s liability coverage — and $80,000 in underinsured motorist benefits from the defendant pursuant to her policy. On appeal, the plaintiff argues that she was entitled to receive the “benefit of the premium for which she paid.” We conclude that she received that benefit.

The plaintiff argues that, because she was an insured under two separate and distinct insurance policies, each of which required the payment of a separate premium for underinsured motorist coverage, she should be entitled to collect underinsured motorist benefits pursuant to both policies. In support of that argument, she cites this court’s decision in Lane v. Metropolitan Property & Casualty Ins. Co., supra, 125 Conn. App. 424. We agree with the court that the facts and circumstances on which this court reached its decision in Lane are readily distinguishable from the present case, and we decline the plaintiffs invitation to expand the holding in Lane to include the factual situation presented here.

In Lane, the owner and operator of a pickup truck, William J. Lane, was seriously injured when a universal joint from an unidentified vehicle smashed through his windshield while he was driving on Interstate 84. Id., 427. At the time of the accident, Lane had two valid, overlapping insurance policies, each covering his truck as an insured vehicle under the policy and each providing $100,000 in uninsured motorist coverage. Id., 427-28. It was undisputed that Lane’s damages exceeded $200,000, and thus he sought full coverage under both policies. Id., 428. The two insurers argued that the anti-stacking provision in § 38a-336 (d) limited their liability to a one-half share of the limit under a single policy. Id., 429. This court ultimately concluded that “§ 38a-336 (d) does not bar an insured with two separate primary policies containing uninsured motorist coverage on the same vehicle from collecting the policy limits of both primary policies combined if the damages to the insured equal or exceed such coverage.” Id., 436.

This court reasoned that “[Lane] had the rare occurrence for a period of thirty days of owning two policies on his truck for which he had paid two separate premiums and of having a serious accident during such period of multiple coverage. Thus, requiring both [insurers] to pay the limits of coverage pursuant to their respective policies would not result in a windfall to [Lane] because it is undisputed that [he] paid for both primary policies on his truck, and his damages exceeded the limits of both primary policies combined. Furthermore, permitting a claimant with two separate insurance policies that provided uninsured and underinsured motorist coverage for the same vehicle to collect the limits of both policies when his damages exceed the total of such coverage would not prejudice either [insurer]. For a period of approximately one month, [Lane] paid premiums for two separate policies covering the same owned vehicle. Each . . . insurer separately underwrote and priced its respective policy, and each insurer was separately compensated for assuming the risk that injury to the insured could occur, while he occupied such vehicle.” Id., 433-34.

In the present case, the plaintiff was not seeking to collect benefits from two separate primary policies covering her vehicle. Unlike Lane, the plaintiff had not paid the premiums for two policies covering her vehicle. It is undisputed that the plaintiffs policy was the only policy covering her vehicle at the time of the collision. Although, as a resident family member, she was an insured under her parents’ policy, her vehicle was not listed as a covered vehicle under the parents’ policy. The plaintiff does not claim that she paid any part of the premium for her parents’ policy. The plaintiff paid premiums for $100,000 in underinsured motorist coverage, and she recovered $100,000. Accordingly, she has received the full benefit provided for under the policy covering her vehicle. Extending our holding in Lane to cover the facts of the present case would effectively render superfluous much of the statutory prohibition against stacking in § 38a-336 (d), which we cannot do. See Segal v. Segal, 264 Conn. 498, 507, 823 A.2d 1208 (2003) (“It is a basic tenet of statutory construction that the legislature did not intend to enact meaningless provisions. . . . Accordingly, care must be taken to effectuate all provisions of the statute. . . . Moreover, statutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant . . . .” [Internal quotation marks omitted.]).

The plaintiff has failed to show the existence of any triable issue of fact, and, as explained previously, § 38a-336 (d) provides a legally sufficient and complete defense to the plaintiffs claim for underinsured motorist benefits under her parents’ policy. Accordingly, we affirm the court’s summary judgment in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 38a-336 (d) provides: “Regardless of the number of policies issued, vehicles or premiums shown on a policy, premiums paid, persons covered, vehicles involved in an accident, or claims made, in no event shall the limit of liability for uninsured and underinsured motorist coverage applicable to two or more motor vehicles covered under the same or separate policies be added together to determine the limit of liability for such coverage available to an injured person or persons for any one accident. If a person insured for uninsured and underinsured motorist coverage is an occupant of a nonowned vehicle covered by a policy also providing uninsured and undeiinsured motorist coverage, the coverage of the occupied vehicle shall be primary and any coverage for which such person is a named insured shall be secondary. All other applicable policies shall be excess. The total amount of uninsured and underinsured motorist coverage recoverable is limited to the highest amount recoverable under the primary policy, the secondary policy or any one of the excess policies. The amount paid under the excess policies shall be apportioned in accordance with the proportion that the limits of each excess policy bear to the total limits of the excess policies. If any person insured for uninsured and underinsured motorist coverage is an occupant of an owned vehicle, the uninsured and underin-sured motorist coverage afforded by the policy covering the vehicle occupied at the time of the accident shall be the only uninsured and underinsured motorist coverage available.”

       Specifically, the plaintiff claims that the “owned auto” exclusion is inapplicable to her as the operator of a nontortfeasing vehicle and that the exclusion as written was not authorized by statute.

       According to her complaint, the plaintiff suffered a crushed right leg, four broken ribs and a broken clavicle.

       The parents’ insurance policy defines the term “family member” in the liability section of the policy as “a person related to you by blood, marriage or adoption who is a resident of your household.” The policy defines “insured” in the uninsured motorists coverage section of the policy as “[y]ou or any ‘family member’. . . .” It is undisputed that the plaintiff is the daughter of the named insureds, the parents, and that she resided in their household at the time of the collision.