author: FOTI, J. FLYNN, J.,

text:
    CLIFFORD WREN ET AL. v. MACPHERSON INTERIORS, INC., ET AL.
    (AC 19575)
    Foti, Mihalakos and Flynn, Js.
    Argued January 7
    officially released April 23, 2002

      Jeffrey R. Bobbin, for the appellants (defendants).

      Robert G. Golger, for the appellees (plaintiffs).
   Opinion

FOTI, J.

The defendants, MacPherson Interiors, Inc. (MacPherson), Robert Roth, Roger Roth and Robert Allred, appeal from the judgment in favor of the plaintiffs, Clifford Wren and Barbara Wren, rendered after a hearing in damages on the plaintiffs’ breach of contract claim. The defendants claim that the court improperly (1) awarded damages based on the evidence adduced at the hearing in damages, (2) denied their motion to open the judgment and (3) denied their renewed motion to open the judgment. We affirm the judgment of the trial court.

The court found the following facts. On October 24, 1986, MacPherson agreed to sell its assets to RAR, Inc. (RAR), for $180,000. At that time, Robert Roth, Roger Roth and Allred owned RAR. The plaintiffs served on the board of directors of MacPherson. Clifford Wren was also the vice president of the company and a shareholder, and Barbara Wren was the president. MacPherson, as part of the purchase and sale agreement, was dissolved, and RAR obtained the rights to and assumed the name MacPherson.

On October 30,1986, MacPherson entered into a contract with Clifford Wren and Barbara Wren individually. Essentially, it consisted of MacPherson’s promise to pay the Wrens $445,000 by monthly installment payments over a six year period. MacPherson further agreed that it would provide the Wrens with certified financial statements every quarter and that its failure to do so, or failure to make a monthly installment payment, would amount to a material breach of contract. The defendants also were required to secure their obligations to the Wrens by executing a security agreement and filing a financing statement to perfect that agreement. Further, the defendants personally guaranteed $180,000 of MacPherson’s corporate debt to the Wrens. In return, the Wrens promised not to compete with RAR within a fifty mile radius, and Clifford Wren agreed to consult RAR in the operation of the company for the same six year period as the installment payment period.

In 1987, the defendants breached the contract by failing to provide the plaintiffs with certified financial statements in accordance with the contract terms. Additionally, in May, 1990, the defendants failed to make their monthly installment payment, and they made no further payments after that date. The plaintiffs commenced the present breach of contract action on February 18, 1992.

The plaintiffs applied for and were granted a prejudgment remedy in the amount of $700. In preparation for trial, the plaintiffs filed seven separate discovery requests from April, 1992, through June, 1993. The defendants failed to comply with all seven requests. In response, the plaintiffs filed eight motions to compel, which were granted and which the defendants ignored. On May 31, 1994, the court ordered the defendants to comply with the motions to compel within thirty days. After the defendants failed to comply with the order, the court granted the plaintiffs’ motion for a default judgment on December 5, 1994. Following a continuance, a hearing in damages was set for August 7, 1998. On August 4, 1998, the defendants filed a motion for a continuance, which was denied and the case was assigned for an immediate hearing before the court. The defendants failed to appear at that hearing and, on the basis of the uncontested testimony of Barbara Wren, the court rendered judgment for the plaintiffs.

In response, the defendants timely filed a motion to open the judgment on September 2, 1998. On February 8, 1999, that motion was still pending. Before the court ruled on the motion, it ordered defense counsel to file an affidavit, within one week, explaining in “meticulous detail” why he had failed to appear at the hearing in damages. Defense counsel failed to comply with the court’s order, and the court denied the defendants’ motion. Finally, on June 22, 1999, more than four months after the court rendered judgment, the defendants, then represented by new counsel, renewed their motion to open the judgment. The court denied that motion, and this appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendants first claim that the court awarded the plaintiffs an improper amount of damages. The defendants argue that the court’s findings were not supported by the evidence adduced at the hearing in damages and that the court’s interpretation of the contract terms was contrary to law. We disagree.

The following additional facts are necessary to our resolution of the defendants’ claim. As previously noted, the court granted the plaintiffs’ motion for a default judgment against the defendants. The only remaining issue was the measure of damages, which was to be determined at the hearing in damages. The defendants failed to attend the hearing in damages, and the court allowed the hearing to commence in their absence. The court heard testimony from a single witness, Barbara Wren. She testified that the defendants had failed to provide certified quarterly financial statements from the outset of the transaction. She further testified that the defendants had failed to comply with the payment provision of the contract as of May 31, 1990, and that she had notified them in writing of their failure to pay. On the basis of Barbara Wren’s uncontested testimony, the court awarded the plaintiffs damages in the amount of $710,871.50. Thereafter, the defendants filed a motion seeking an articulation of the judgment rendered after the hearing in damages, which was granted.

We first note our standard of review. “When the factual basis of the trial court’s decision is challenged on appeal, the role of this court is to determine whether the facts set out in . . . the decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. ... On appeal, the function of this court is limited solely to the determination of whether the decision of the trial court is clearly erroneous.” (Citations omitted; internal quotation marks omitted.) DiNapoli v. Doudera, 28 Conn. App. 108, 111-12, 609 A.2d 1061 (1992). “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Azia v. DiLascia, 64 Conn. App. 540, 558, 780 A.2d 992, cert. denied, 258 Conn. 914, 782 A.2d 1241 (2001). “[W]e do not retry the facts or pass on the credibility of witnesses.” (Internal quotation marks omitted.) Aubin v. Miller, 64 Conn. App. 781, 787, 781 A.2d 396 (2001). “[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) Id., 786.

Additionally, because our resolution of the defendants’ claim involves a review of the contractual language, we note that “[w]here . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. ... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard.” (Internal quotation marks omitted.) Aleo Standard Corp. v. Charnas, 56 Conn. App. 568, 571, 744 A.2d 924 (2000). “[W]e interpret contract language in accordance with a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. ... If the terms of [a contract] are clear, their meaning cannot be forced or strained by an unwarranted construction to give them a meaning which the parties obviously never intended. ... A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Citation omitted; internal quotation marks omitted.) Rumbin v. Utica Mutual Ins. Co., 254 Conn. 259, 286, 757 A.2d 526 (2000). Moreover, “[a] contract is to be construed as a whole and all relevant provisions will be considered together.” (Internal quotation marks omitted.) O’Bryan v. O’Bryan, 67 Conn. App. 51, 55, 787 A.2d 15 (2001), cert. granted on other grounds, 259 Conn. 911, 789 A.2d 995 (2002).

The defendants ask this court to review the evidence on which the trial court based its factual findings, to make different findings based on that evidence and to reach a conclusion different from that of the trial court. We decline to do so.

In its articulation, the court set forth the basis of its factual findings. The court noted its reliance on Barbara Wren’s uncontested testimony. Her testimony concerned two specific contract provisions that required the defendants to provide certified financial statements and their obligation to make monthly payments to the plaintiffs. She testified that the defendants failed to provide the certified financial statements from the outset of the transaction in 1987, and that the default in payments occurred in May, 1990.

On the basis of Barbara Wren’s uncontested testimony, the court found that “]i]n May of 1990, RAR, Inc., defaulted both in that portion of the purchase price dealing with the installment payments as well as [its] obligation to furnish quarterly certified financial statements.” The court explained, however, that because the plaintiffs apparently did not rely on the default regarding the financial statements and because they had computed damages following the installment payment default, it would use May 31,1990, “as the date of default for purposes of computing all damages.” The court merely chose a date from which to compute damages that was consistent with the plaintiffs’ calculation of damages. In doing so, the court did not find that the defendants had performed their obligations under the contract until May 31,1990. That date signified only the installment payment default and the date from which damages were to be calculated; it did not signify the actual date of default because the record established that the defendants had defaulted long before that date by failing to provide the plaintiffs with certified financial statements beginning in 1987.

The court implicitly found that the defendants had in fact defaulted under the terms of the contract before January 1, 1988. Indeed, such a finding was necessary to the court’s award of damages, and it finds support in the record. At the prejudgment remedy hearing, the court noted that the parties presented it with conflicting evidence concerning whether the defendants had defaulted with regard to their obligation to provide the plaintiffs with certified financial statements. Barbara Wren’s uncontested testimony at the hearing in damages resolved that conflict because the court found her testimony to be credible.

After a careful review of the entire record, we conclude that evidence exists to support the court’s implicit factual finding that the defendants were in default prior to January 1, 1988. As such, the court’s findings in that regard were not clearly erroneous, and we are not left with the definite and firm conviction that a mistake has been committed.

In finding, albeit implicitly, that the defendants defaulted before January 1, 1988, the court concluded that payments made by the defendants to the plaintiffs after that date did not reduce the defendants’ personal guarantees under the terms of the contract. As already noted, we must determine whether the court’s legal conclusion is “legally and logically correct and whether [it] find[s] support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) Aubin v. Miller, supra, 64 Conn. App. 786. Before we can determine whether the court’s legal conclusion was correct, we must first examine the relevant contract provisions applicable to the defendants’ claim.

The plaintiffs and the defendants executed a guarantee to secure a certain portion of the defendants’ obligations under the contract. The guarantee states in relevant part: “[The defendants] [a]gree that their joint and several guarantees provided for herein shall be reduced by the amount of each payment of the Consideration provided for in the Agreement made after January 1, 1988, provided that RAR, Inc. shall not be in default of any provision of the Agreement on that date.” (Emphasis added.)

Section five of the contract, to which the guarantee applies, states in relevant part: “(a) RAR shall be in default of its obligation to pay any installment of the Consideration by the tenth of any month during which such installment is due and unpaid, (b) RAR shall commencing with its fiscal quarter ending March 31, 1987, provide, within twenty days of the close of such quarter, to Clifford Wren, Barbara Wren or [their] legal representative ... a financial statement, certified as being correct by Roger Roth, Robert Roth and Robert Allred, jointly and severally .... Failure to provide such certified financial statement within said twenty day period following the close of each fiscal quarter until such time as the consideration shall have been paid in full shall constitute a default hereunder, (c) Clifford Wren, Barbara Wren or [their] legal representative . . . may, upon any such default, give written notice to RAR of such default. ...” Finally, § 8 of the contract specifies the method of giving such notices. It states: “All notices, requests, demands and other communications made pursuant hereto shall be in writing and . . . mailed by certified mail . . . .”

The defendants essentially ask this court to adopt their interpretation of the previously mentioned contractual language and hold that “a default is effective only if declared in writing,” thereby rendering the trial court’s conclusion in that regard to be incorrect. Because the contract provisions regarding default are clear and definitive, we decline to do so.

The default provision of the contract does not require written notice to effectuate a default. The language is clear. It states that the plaintiffs "umay, upon any such default, give written notice to RAR of such default. . . .” (Emphasis added.) The word “may” is discretionary in that context; see Office of Consumer Counsel v. Dept, of Public Utility Control, 252 Conn. 115, 122, 742 A.2d 1257 (2000); Reiser v. Conservation Commission, 41 Conn. App. 39, 43-44, 674 A.2d 439 (1996); and the effectiveness of a default did not depend on such notice. Had the plaintiffs sought to give notice of the default, they were required to do so according to § 8 of the contract, which they did in May, 1990.

After a careful review of the contract terms, we hold that the court’s legal conclusion that the defendants’ personal guarantees were not to be reduced by payments they made to the plaintiffs after January 1,1988, is legally and logically correct and finds support in the record. The language of the contract concerning default is clear and definitive, and the court’s conclusion is in harmony with the natural, ordinary meaning of that language and with the contract as a whole. We therefore decline to disturb the court’s legal conclusions.

II

The defendants next claim that the court improperly denied their timely filed motion to open the judgment. The defendants argue that the court failed to rule on the merits of that motion and that its denial was improperly based on the defendant’s counsel’s failure to comply with the court’s order requiring him to provide the court with an affidavit explaining why he had failed to attend the hearing in damages.

We decline to address the defendants’ claim because we are not required to review claims that are inadequately briefed. State v. Vicente, 62 Conn. App. 625, 632, 772 A.2d 643 (2001). The defendants failed to provide us with a standard of review and failed to proffer a single case in support of their claim. The defendants’ claim of judicial error amounts to nothing more than a bald assertion. We consistently have held that “[ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Id.

III

Finally, the defendants claim that the court improperly denied their renewed motion to open the judgment on the basis of its conclusion that it lacked subject matter jurisdiction to adjudicate that motion on its merits. Specifically, the defendants make two arguments. First, they claim that their motion was filed within the statutory time frame set forth in General Statutes § 52-212a. Second, they claim that the court has continuing jurisdiction over their renewed motion to open the judgment because the four month limitation contained in § 52-212a does not apply to this case. We disagree.

A

The defendants argue that their renewed motion to open the judgment complied with the four month limitation contained in § 52-212a. The defendants argue that because they timely filed their initial motion to open the judgment and that no ruling occurred on that motion until February 22,1999, the four month time period did not begin to run until the date of the ruling and, as such, the renewed motion to open the judgment properly invoked the court’s jurisdiction. That claim has no merit.

The defendants’ argument is based on nothing more than mere assertion devoid of any authoritative support whatsoever. We therefore decline to address the defendants’ claim in that regard because it is inadequately briefed. See State v. Vicente, supra, 62 Conn. App. 632.

B

The defendants further argue that the four month limitation contained in § 52-212a does not affect the court’s ability to consider their renewed motion to open the judgment on its merits. Specifically, the defendants argue that given the circumstances of this case, the four month limitation does not apply. We disagree.

“We begin our analysis by noting that once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case.” (Citations omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988).

Additionally, we note the applicable law relevant to our determination of whether, in this particular case, the court has the authority to consider a renewed motion to open the judgment on its merits when such motion is filed more than four months after the judgment was rendered. Section 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a 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 following the date on which it was rendered . . . .”

In Kim v. Magnotta, 249 Conn. 94, 99, 733 A.2d 809 (1999), the plaintiffs entered into a contractual agreement with the named defendant. The plaintiffs breached the contract shortly after its inception, and the named defendant thereafter filed an action against them. Id. The parties subsequently agreed to a stipulated judgment. Id. Thereafter, the plaintiffs brought an action alleging, inter alia, unfair trade practices in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. Kim v. Magnotta, supra, 100. The jury found in favor of the plaintiffs on the CUTPA count, and the plaintiffs asked the court to rescind the stipulated judgment. Id. The court declined to do so because “the plaintiffs had not filed a motion to open that judgment within the four month limitation period contained in § 52-212a.” Id.

Our Supreme Court stated that “the four month period does not implicate the court’s subject matter jurisdiction”; id., 101; but is more accurately characterized “as a limitation on the court’s general authority to grant relief from a judgment . . . .’’Id., 102. Thus, a “CUTPA violation can be the basis for setting aside a stipulated judgment, even after the passage of four months . . . .” Id., 109.

Kim involved the interplay between the provisions of CUTPA and § 52-212a. Under certain circumstances, the “otherwise provided by law” provision of § 52-212a provides an exception to that statute’s four month limitation. CUTPA’s remedial provisions provide the necessary law on which to apply that exception. As a result, the trial court’s general authority to grant the plaintiffs relief from the judgment was not limited by § 52-212a in that case.

In Gardner v. Pilato, 44 Conn. App. 724, 726, 692 A.2d 843, cert. denied, 241 Conn. 922, 696 A.2d 1265 (1997), the trial court dismissed with prejudice the plaintiffs action to recover payment for services rendered after the parties had failed to attend a pretrial conference. In that case, we were presented with the question of whether “a trial court, on its own motion, has the power to open a judgment of dismissal more than four months after the judgment was rendered when it is clear that the judgment was originally rendered because of an administrative mistake and a timely motion to open had previously been made and denied.” Id., 725. We noted that Pilato was “not the usual case”; id.; because it previously had been tried to its conclusion. As a result, a dismissal based on the plaintiffs failure to attend a pretrial conference was an obviously improper outcome. We held that the court had continuing jurisdiction because it “retained jurisdiction to open the judgment and to correct an injustice.” Id., 727. Thus, the circumstances of Pilato were such that the “continuing jurisdiction” provision of § 52-212a was implicated.

The defendants ask this court to read Kim and Pilato as providing them with an exception to the four month limitation period contained in § 52-212a. We decline to do so because the defendants’ reliance on those decisions is misplaced.

The defendants’ misplaced reliance on Kim and Pilato is clearly demonstrated by applying the law and comparing the facts of those two cases to the facts of the present case. The decision in Kim provides a trial court with the authority to revisit a prior judgment under the “otherwise provided by law” provision of § 52-212a, after a party prevails on a CUTPA claim, even though the party seeking to change that prior judgment had not timely filed a motion to open the judgment within four months of its rendition. The defendants in this case have not prevailed under a law that might fall within the purview of the “otherwise provided by law” provision contained in § 52-212a. Kim, therefore, is distinguishable and lends little, if any, support to the defendants’ claim.

Pilato, likewise, is distinguishable because it authorizes a court to open a judgment, after it has denied a timely filed motion, to correct an administrative mistake that visits injustice on a party. Unlike the plaintiff in Pilato, the defendants in this case did not timely file their renewed motion to open the judgment, and they were not harmed by an administrative mistake. Pilato, therefore, is distinguishable from the present case and is no more supportive of the defendants’ claim than is Kim.

The facts of the present case demonstrate only that the defendants had numerous opportunities to assert and defend their position in an effort to avoid a judgment against them and, on numerous occasions, failed to do so. The defendants now attempt, by filing a renewed motion to open the judgment, to make an end run around the four month limitation contained in § 52-212a. They do so by casting blame on the trial court, the plaintiffs and their own prior attorney while at the same time characterizing themselves as the victims of injustice. Though the defendants’ prior attorney may deserve some blame, his possible negligence alone does not provide this court with a sufficient reason for holding inapplicable the four month limitation contained in § 52-212a. See Segretario v. Stewart-Warner Corp., 9 Conn. App. 355, 363, 519 A.2d 76 (1986). Simply stated, the facts of this case are far removed from those of Kim and Pilato-, they do not implicate the “otherwise provided by law” provision of § 52-212a, as in Kim, and they do not constitute an unusual case, thereby implicating the court’s continuing jurisdiction, as in Pilato.

Accordingly, we conclude that in light of Kim and Pilato, § 52-212a limited the court’s general authority to grant the defendants relief from the judgment because they failed to file their renewed motion to open that judgment within the four month limitation period. Because the court lacked the authority to grant the defendants relief from the judgment, it was, therefore, correct in denying the defendants’ renewed motion to open the judgment without considering that motion’s merits.

The judgment is affirmed.

In this opinion MIHALAKOS, J., concurred.

FLYNN, J.,

concurring in part and dissenting in part. I respectfully dissent in part from the result reached by the majority as to the defendant individual guarantors, Robert Roth, Roger Roth and Robert Allred. These three individual guarantors of the corporate debt of RAR, Inc., signed a written guarantee. Paragraph three of the guarantee specifies that the guarantors were to guarantee payment of $180,000 of the consideration recited and to pay upon demand the balance then due after any default. Paragraph five reduced the amount of the guarantee by each debt payment made after January 1, 1988, unless RAR, Inc., was “in default” of any provision of the agreement on that date. This reference to “the agreement” is to a consultation and noncompete agreement which had been signed on the same day as the guarantee. It provided for two events of default. The first was triggered if payments on the debt were not made within a ten day grace period following the due date. The second, if certified financial statements were not delivered to the plaintiffs within twenty days of the end of each quarter.

The parties were not in dispute about the number of cash payments made under the consultation agreement. The plaintiff Barbara Wren testified, however, that RAR, Inc., had never provided the required financial statements properly certified. Failure to do so would constitute the second possible event of default under the consultation agreement. The significance of the date of default is that the defendant individual guarantors were to be credited for each cash payment made on the consultation agreement debt with an aliquot reduction in the $180,000 amount guaranteed unless RAR, Inc., had defaulted on the obligation to furnish financial statements.

For the guarantors to receive no credits against the guarantee, they would have to have been in default from the January 1, 1988 date set forth in the guarantee agreement. The court did not make such a finding. Instead, in its articulation, it expressly found that the default occurred “[i]n May of 1990 . . . .”

Accordingly, I would affirm only so much of the judgment against the guarantors as represents the balance of the $180,000 due after crediting all post-January 1, 1988 payments made through May, 1990, together with the reasonable costs of enforcement of the guarantee.

       The defendant MacPherson Interiors, Inc., formerly was known as RAR, Inc.

       Accordingly, MacPherson is the named corporate defendant in the underlying action.

       The contract was based on what the parties referred to as a consultation and noncompete agreement.

       A default judgment “admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant. . . . Despite the entries of default, had the defendants sought to challenge the right of the plaintiffs to maintain their action, or had they intended to prove any matter of defense, they would have been permitted to do so at the hearing in damages upon written notice to the plaintiffs. See Practice Book § 367 [now § 17-34], Moreover, pursuant to Practice Book § 374 [now § 17-40], the defendants would have been permitted to appear and offer evidence to reduce the amount of damages claimed without giving any notice.” (Citations omitted; internal quotation marks omitted.) LaRosa v. Mine, 36 Conn. App. 501, 503-504, 651 A.2d 1324 (1995). Because the defendants failed to secure the opportunity to challenge the plaintiffs’ action and to present any defenses, the only issue at the hearing in damages was the amount that they owed to the plaintiffs. Though the defendants still had an opportunity to present evidence to reduce the amount of damages at the hearing in damages, that opportunity was lost when the defendants’ failed to appear at the hearing.

       The court scheduled a hearing in damages for an earlier date but rescheduled it because there was some question as to whether the defendants had received proper notice of that hearing date. As a result, the court ordered a continuance and rescheduled the hearing.

       The defendants do not ask this court to interpret or to construe the contract terms. Nevertheless, because their argument is in part based on the contract terms, we must look at those terms to resolve the defendants’ claim.

       The amount of damages hinged on the date of default.

       Robert Roth, Roger Roth and Allred are personally liable to the plaintiffs for $327,315.68 of that amount based on their personal guarantee of $180,000 plus $147,315.68 of statutory interest.

       The court alluded to that implicit finding in footnote 2 of its articulation.

       The defendants further argue that because the court determined damages without regard to the terms of the contract, the judgment must be opened. Our discussion in part I fully disposes of that argument. Additionally, the defendants claim that the judgment cannot be reconciled with the plaintiffs’ complaint. We find no merit to that claim because the judgment awards monetary damages for the contract claim alleged in the summons and complaint.

       An attorney fact finder tried the case and issued a report prior to the date of dismissal when motions concerning that report were pending. Gardner v. Pilato, supra, 44 Conn. App. 726.


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    T. CHRISTOPHER KILLION ET AL. v. IAN MARTIN DAVIS
    (AC 19034)
    Foti, Landau and Daly, Js.
    Submitted December 13, 2001
    officially released April 23, 2002

      Jonathan Turley, pro hac vice, with whom were Lorey R. Leddy and, on the brief, Stefan R. Underhill, for the appellant (defendant).

      Ronald P. Mysliwiec, with whom were Steven D. Ecker and, on the brief, Leigh A. Newman, for the appellees (plaintiffs).
   Opinion

LANDAU, J.

This appeal returns to this court on remand from our Supreme Court; Killion v. Davis, 257 Conn. 98, 106, 776 A.2d 456 (2001); for a resolution of the remaining claims of the defendant, Ian Martin Davis. The Supreme Court reversed this court’s judgment in Killion v. Davis, 59 Conn. App. 358, 757 A.2d 632 (2000), concluding that the defendant was personally liable to the plaintiffs, T. Christopher Killion and Brad J. Felenstein, with respect to moneys owed them pursuant to an oral agreement. The defendant’s remaining claims pertain to the trial court’s judgment in favor of the plaintiffs, specifically that the court improperly (1) concluded that the oral agreement between the plaintiffs and the defendant was not barred by the statute of frauds, (2) failed to correct factual and legal errors in the report of the attorney trial referee (referee) to whom the matter had been referred and (3) abused its discretion by awarding prejudgment interest. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The defendant and his wife, the only shareholders of Sports Marketing Group, Inc. (Sports Marketing), entered into an agreement with Times Mirror Magazines, Inc. (Times Mirror), to sell all of their stock in Sports Marketing for a substantial amount of money. The transaction was consummated on June 14, 1989. As part of the sales agreement, the defendant entered into an employment contract with Times Mirror whereby he would continue to serve as the president of Sports Marketing.

The defendant had developed Sports Marketing during the 1980s with the assistance of the plaintiffs, who were key employees. Shortly before the consummation of the sale, the defendant approached the plaintiffs separately, asked them to continue to work for three years after the sale and promised them that if they did so, they each would receive $100,000. The defendant claims that he wanted the plaintiffs to share in the good fortune of the sale. The defendant benefited from the plaintiffs’ continuing to help operate Sports Marketing.

The defendant and Times Mirror structured the sale to the defendant’s financial benefit. Consequently, Times Mirror paid the defendant $154,000 less than the agreed price. The deducted sum represented the discounted cost of an incentive compensation package for the plaintiffs. The defendant and Times Mirror agreed that if the plaintiffs failed to stay at Sports Marketing for the requisite three years, the defendant was to receive the funds. Times Mirror agreed to this arrangement although it was not incorporated in the sales documents. Times Mirror did not care what the defendant did with his money. The plaintiffs were not parties to the sales agreement.

Shortly after the sale was transacted, the plaintiffs asked the defendant to provide the terms of their agreement in writing. In November, 1989, the defendant asked his attorney to draft incentive compensation agreements for the plaintiffs. His attorney did so and transmitted the draft agreements to the defendant. The defendant, however, never discussed them with Times Mirror or the plaintiffs. The draft agreements were never executed.

Due to disputes between the defendant and Times Mirror, the defendant was fired by Times Mirror before the end of his employment contract. Litigation between the two ensued in federal court. During the course of the federal litigation, the plaintiffs fulfilled their three year obligation and asked the defendant for their money. The defendant told the plaintiffs that they had to look to Times Mirror for their compensation. The parties settled the federal litigation by written stipulation on December 14, 1994. Pursuant to the stipulation, the defendant and Times Mirror agreed that a portion of the settlement money owed the defendant would be placed in escrow to be released to the plaintiffs if they prevailed in this action. If the plaintiffs did not prevail, the defendant was to receive the funds. The plaintiffs were not parties to the federal litigation and expended considerable effort to learn the terms of the stipulation.

The plaintiffs commenced this action in October, 1994. The court referred the matter to a referee for resolution. Following a hearing over several days, the referee concluded that the $100,000 owed the plaintiffs was the defendant’s personal obligation, the plaintiffs’ claims were not barred by the statute of frauds and the plaintiffs were entitled to prejudgment interest as of June 15,1992. The court agreed. This court reversed the trial court’s judgment on the question of the defendant’s personal liability. The plaintiffs appealed to our Supreme Court, which reversed the judgment, concluding that the defendant was personally liable to the plaintiffs, and remanded the case for resolution of the remaining appellate claims.

Where the parties consent, a case may be referred to a referee. Practice Book § 19-2A. “The report of . . . [an] attorney trial referee shall state . . . the facts found and the conclusions drawn therefrom. . . .” Practice Book § 19-8. Unless the court concludes that the referee has materially erred, “[t]he court shall render such judgment as the law requires upon the facts in the report. . . .” Practice Book § 19-17 (a).

“While the reports of [attorney trial referees] in such cases are essentially of an advisory nature, it has not been the practice to disturb their findings when they are properly based upon evidence, in the absence of errors of law, and the parties have no right to demand that the court shall redetermine the facts thus found. . . .

“A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. . . . [Our Supreme Court] has articulated that attorney trial referees and factfinders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. . . .

“Although it is true that when the trial court reviews the attorney trial referee’s report the trial court may not retry the case and pass on the credibility of the witnesses, the trial court must review the referee’s entire report to determine whether the recommendations contained in it are supported by findings of fact in the report. It is also true that the trial court cannot accept an attorney trial referee’s report containing legal conclusions for which there are no subordinate facts.” (Citations omitted; internal quotation marks omitted.) Killion v. Davis, supra, 257 Conn. 102.

With these legal precepts in mind, we now turn to the remaining claims of the defendant.

I

First, the defendant claims that the court improperly adopted the report of the referee, concluding that the agreement between the parties was not barred by the statute of frauds. See General Statutes § 52-550 (a) (5). Specifically, the defendant claims that there is no writing signed by him or by someone on his behalf in which he himself agreed to pay the plaintiffs for continuing to work for Sports Marketing for three years after the corporation was sold to Times Mirror. We disagree because the facts found and conclusions drawn by the referee are to the contrary.

The following facts found by the referee are relevant to our resolution of this claim. Just prior to the sale of Sports Marketing, the defendant told each of the plaintiffs that he wanted them to benefit from the sale of the corporation and that if they agreed to stay in the service of Sports Marketing for three years, they each would receive $100,000. Following these conversations, the parties exchanged a series of letters regarding the $100,000 payments. In response to the plaintiffs’ requests for a writing memorializing the promised payments, the defendant’s attorney drafted incentive compensation agreements with respect to each plaintiff and sent them to the defendant. The plaintiffs never saw the draft compensation agreements, and the agreements were never executed. The referee also found that the federal litigation between the defendant and Times Mirror was settled by means of a stipulated judgment containing provisions related to this action. The defendant signed the stipulation.

On the basis of these findings and others, the referee concluded, in part, that the correspondence between the plaintiffs and the defendant constituted writings sufficient to satisfy the statute of frauds, the stipulation ending the federal litigation constitutes a writing signed by the defendant that satisfies the statute of frauds and the plaintiffs’ performance of their three year obligation takes the case out of the statute of frauds.

The primary purpose of the statute of frauds “is to provide reliable evidence of the existence and the terms of the contract, the requirements of the statute can be met either by a single document or, as in this case, by a series of related writings which, taken together, describe the essential terms and conditions of the contract. Vachon v. Tomascak, 155 Conn. 52, 56-57, 230 A.2d 5 (1967); Burns v. Garey, 101 Conn. 323, 329, 125 A. 467 (1924); Shelinsky v. Foster, 87 Conn. 90, 97-98, 87 A. 35 (1913); Restatement (Second), Contracts § 208 (Tentative Draft 1973).” Heyman v. CBS, Inc., 178 Conn. 215, 221, 423 A.2d 887 (1979); see also Jacobs v. Thomas, 26 Conn. App. 305, 310, 600 A.2d 1378 (1991), cert. denied, 221 Conn. 914, 603 A.2d 404 (1992). “The memorandum required by the statute is sufficient if it states the contract between the parties with such certainty that the essentials of the contract can be determined from the memorandum itself without the aid of parol proof, either by direct statement or by reference therein to some other writing or thing certain.” Vachon v. Tomascak, supra, 57. “The memorandum of the contract need not be the contract itself .... The memorandum need not be made at the time of the contract; it may be made and signed afterward. . . . The moment written evidence of the contract under his hand, in whatever form, exists, the contract is taken out of the statute, citing Wood on Statute of Frauds, § 334. See 2 Corbin, Contracts § 503 (1950); Restatement (Second), Contracts § 214 (Tentative Draft 1973).” (Internal quotation marks omitted.) Heyman v. CBS, Inc., supra, 222-23. Cross references to the agreement in documents can adequately demonstrate their interconnection. See id., 223.

On the basis of our review of the correspondence between the plaintiffs and the defendant, we conclude that the referee properly concluded that the series of letters was sufficient to take the agreement between the parties out of the statute of frauds. The letters are evidence of an agreement between the parties in which the essential terms of the agreement are described, namely, if the plaintiffs continue in the employ of Sports Marketing for three years after the sale to Times Mirror, they each are to receive $100,000. The correspondence from the defendant was signed by him.

In addition, we have reviewed the stipulated agreement that ended the litigation in federal court, and agree with the referee’s findings and conclusion with respect to the stipulation. The stipulation is signed by the defendant and contains an escrow provision for the payment to the plaintiffs if they prevail in this action, and a provision in which the defendant released Times Mirror and Sports Marketing from liability to the plaintiffs in this action.

Because we conclude that there are sufficient writings to take the parties’ oral agreement out of the statute of frauds, we need not reach the defendant’s claim that the referee improperly concluded that the plaintiffs’ performance of their three year obligation takes the case out of the statute of frauds.

II

The defendant’s second claim is that the court failed to correct findings of fact in the referee’s report. We need not address this issue on remand because one set of factual corrections requested by the defendant concerned his personal liability pursuant to the oral agreement. Our Supreme Court has resolved this issue in the plaintiffs’ favor. Killion v. Davis, supra, 257 Conn. 98. The second set of facts concerns the plaintiffs’ reliance on the defendant’s representations to remain in the employ of Sports Marketing for three years after Times Mirror purchased the corporation. We need not address this claim because we determined in part I that the case was taken out of the statute of frauds by certain writings, and we therefore need not address the defendant’s estoppel claim.

III

The defendant’s final claim is that the court abused its discretion by affirming the referee’s award of prejudgment interest to the plaintiffs pursuant to General Statutes § 37-3a. As a subordinate claim, the defendant argues that even if we conclude that the referee’s award of prejudgment interest was proper, the referee’s finding of June 15,1992, as the date from which the interest is to be calculated is clearly erroneous. We do not agree.

Section 37-3a provides in relevant part that “interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. . . .” “The allowance of prejudgment interest as an element of damages is an equitable determination and a matter lying within the discretion of the trial court. . . . Before awarding interest, the trial corut must ascertain whether the defendant has wrongfully detained money damages due the plaintiff. . . . Interest on such damages ordinarily begins to run from the time it is due and payable to the plaintiff. . . . The determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through the application of an arbitrary rule.” (Internal quotation marks omitted.) Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 734-35, 687 A.2d 506 (1997).

“[P]rejudgment interest is awarded in the discretion of the trial court to compensate the prevailing party for a delay in obtaining money that rightfully belongs to him. . . . The detention of the money must be determined to have been wrongful. ... Its detention can only be wrongful, however, from and after the date on which the court, in its discretion, determines that the money was due and payable.” (Citations omitted; internal quotation marks omitted.) Northrop v. Allstate Ins. Co., 247 Conn. 242, 254-55, 720 A.2d 879 (1998).

“Under § 37-3a, an allowance of prejudgment interest turns on whether the detention of the money is or is not wrongful under the circumstances. . . . There are well established propositions that § 37-3a provides for interest on money detained after it becomes due and payable, that the question under the statute is whether the money was wrongfully withheld .... The statute, therefore, applies to claims involving the wrongful detention of money after it becomes due and payable.

“Prejudgment interest pursuant to § 37-3a has been applied to breach of contract claims for liquidated damages, namely, where a party claims that a specified sum under the terms of a contract, or a sum to be determined by the terms of the contract, owed to that party has been detained by another party.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Foley v. Huntington Co., 42 Conn. App. 712, 739-40, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996).

“[T]he determination of whether interest pursuant to § 37-3a should be awarded is a question for the trier of fact.” Id., 738. “There is no doubt that case law has established that the commencement date for prejudgment interest is a factual determination. See, e.g., Metcalfe v. Talarski, 213 Conn. 145, 160, 567 A.2d 1148 (1989); Spearhead Construction Corp. v. Bianco, 39 Conn. App. 122, 134-35, 665 A.2d 86, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995).” Paulus v. LaSala, 56 Conn. App. 139, 149, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000). As we noted at the beginning of this opinion, it is well known that appellate courts review factual findings under the clearly erroneous standard. Killion v. Davis, supra, 257 Conn. 101-102.

The facts reveal that prior to selling Sports Marketing to Times Mirror, the defendant sought out the plaintiffs individually and asked them to continue in the employ of Sports Marketing for three years following the sale. In return for three years of service, the plaintiffs were to receive $100,000 each. The defendant does not dispute that the agreement was made or that the plaintiffs have satisfied their part of the bargain. He disputed his personal liability for the $100,000 payments. The plaintiffs looked to the defendant for their money, and he informed them that they had to get it from Times Mirror. The manner in which the defendant structured the proceeds from the sale of his business and the escrow provisions in the stipulated judgment indicate that the defendant himself acknowledged that the plaintiffs were each due $100,000 in June, 1992. Despite the fact that the defendant was obligated to pay the plaintiffs, he did nothing to pay or to secure for the plaintiffs the benefit of their bargain. His failure to see that the plaintiffs timely received what was rightfully theirs was wrongful. Furthermore, the plaintiffs were entitled to payment on June 15,1992, when they fulfilled their part of the bar-gain. Because the defendant wrongfully withheld the moneys owed the plaintiffs at the time they were payable, § 37-3a provides that the plaintiffs are entitled to prejudgment interest from June 15, 1992.

We conclude that the referee acted well within his discretion when he determined that the defendant wrongfully withheld payment from the plaintiffs and that the plaintiffs were entitled to prejudgment interest pursuant to § 37-3a from June 15,1992. The court therefore properly rendered judgment on the referee’s report. Under the circumstances of this case, justice was served in accordance with the purpose of § 37-3a.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-550 (a) provides in relevant part: “No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged ... (5) upon any agreement that is not to be performed within one year from the making thereof . . . .”

       A letter dated August 31, 1990, from Killion to Ihe defendant included the following language:
      “I would like to confirm our agreement for my compensation in regard to the sale and purchase agreement of Sports Marketing Group, Inc.
      “In connection with the sale and purchase agreement of Sports Marketing Group, Inc., it is my understanding that an incentive compensation plan for the benefit of certain employees was constructed.
      “Per your commitment to me in the press room at the 1989 U.S. Open Championship on Friday June 15, 1989, you agreed that you would pay $100,000 to me on or before your contract completion period date with Times Mirror Magazines Inc. This sum represents all of my efforts and hard work in helping to grow Sports Marketing Group, Inc. since 1981 and until the sale of the company by you to Times Mirror Magazine on June 14, 1989 and in consideration for remaining with the Times Mirror organization.”
      The defendant responded to Killion by letter dated September 24, 1990, which included the following language:
      “The purpose of this letter is to respond to your correspondence dated August 31, 1990 concerning the sale of Sports Marketing Group, Inc. to Times Mirror Magazines.
      “As you will recall, we had agreed that you and Brad Felenstein were to receive $100,000 each in 1992 from Times Mirror Magazines. To accomplish this, my wife and I directed a portion of the purchase price from ourselves to you and Brad. (This was done by discounting the $200,000 directed to the both of you and subtracting the present value of that amount form the purchase price [my wife] and I were due from Times Mirror Magazines; [Times Mirror] was to then pay you the full $200,000 as a deferred bonus approximately 3 years after the closing date of June 14, 1989.)”
      By letter dated September 2,1992, the defendant responded to an August 27, 1992 letter from Felenstein, which, in part, contained the following language:
      “As you know, I never agreed to pay you $100,000 out of my own pocket. As you are well aware, I accepted less money for the sale of [Sports Marketing] upon Times Mirror Magazines’ agreement to pay you $100,000 in 1992.”

       The stipulation is subject to a confidentiality agreement and order of the Superior Court. We therefore do not disclose the specific terms of the stipulation.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. ERNEST FRANCIS
    (AC 21381)
    Foti, Schaller and Flynn, Js.
    Argued January 17
    officially released April 23, 2002

      Alice Osedach-Powers, assistant public defender, for the appellant (defendant).

      Michael E. O’Hare, assistant state’s attorney, with whom, on the brief, was James E. Thomas, state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Ernest Francis, appeals from the order of the trial court denying his motion to correct an illegal sentence, which he filed pursuant to Practice Book § 43-22. On appeal, the defendant claims that the court at sentencing improperly (1) considered his lack of veracity, (2) relied on information outside the record and (3) relied on inaccurate or mistaken information. We conclude that the trial court lacked jurisdiction to consider the defendant’s motion under Practice Book § 43-22. We reverse the judgment denying the motion and remand the case with direction to dismiss the motion.

The defendant was convicted of murder and sentenced to a term of fifty years imprisonment. The judgment was affirmed in State v. Francis, 228 Conn. 118, 635 A.2d 762 (1993). On March 1, 2000, the defendant filed the motion in question and, after a hearing, the court denied the defendant’s motion. The court denied the defendant’s subsequent motion for reconsideration and this appeal followed.

In his motion to correct, the defendant claimed that the court denied his right to speak in mitigation of punishment, relied on inaccurate information and relied on information outside the record.

The facts of the underlying offense are set forth in State v. Francis, supra, 228 Conn. 120-21, and are as follows: “On March 8,1990, the defendant and the victim were incarcerated at the Hartford community correctional center. The two men became involved in an altercation during which the victim and several other inmates attacked the defendant. During the course of this altercation, the defendant was stabbed in his leg with a shank, a prison term for a homemade weapon. The defendant believed that it was the victim who had stabbed him. Both men were subsequently released from custody.

“On August 12, 1990, the defendant and the victim met again. At approximately 4 p.m. on that day, two witnesses, Jennifer Green and Sandra Brown, were on the porch of Brown’s residence at 165 Homestead Avenue in Hartford. At that time, they saw a young man, later determined to be the victim, walking toward them on Homestead Avenue, holding an ‘ice pop’ in his hand. At the same time, two additional witnesses, Victor Lowe and Fred Faucette, were standing on the sidewalk of Homestead Avenue. They also noticed the victim.

“All four witnesses then observed a red Mitsubishi automobile drive up Homestead Avenue, pass the victim, stop suddenly, back up and halt near him. The defendant then emerged from the driver’s side of the car and approached the victim. An argument ensued between the two men. This confrontation occurred twenty to forty feet from Lowe and Faucette.

“While the defendant and victim exchanged words, the four witnesses observed, from different vantage points, that the defendant held his right hand behind his back. From where they were located, both Green and Brown observed that the defendant’s hand, which was behind his back, was on the handle of a knife. Upon seeing the knife, Brown commented to Green, ‘He wouldn’t dare do that.’

“After further words had been exchanged, the victim agreed to fight the defendant. The victim did not, however, make any physical movement toward the defendant. The defendant then pulled the knife from behind his back and began to make stabbing motions at the victim. One of these stabbing motions cut the victim’s ice pop in half as the victim was retreating.

“The victim ran into a nearby yard where he was pursued by the defendant. There, the defendant stabbed the victim in the upper left portion of his chest, causing his death. The defendant then reentered the car and left the scene. He was arrested in Miami, Florida, on August 17, 1990.”

At the time of sentencing, after it heard from the state’s attorney and defense counsel, the court heard from the defendant after he was offered the opportunity to address the court. After hearing statements from members of the defendant’s family, the court inquired of the defendant and his counsel if they wanted to make any further remarks, and they indicated that they did not want to do so. The state’s attorney then addressed the court in rebuttal of the statements made, and the court thereafter permitted the defendant to respond personally to those remarks.

The court noted that, before imposing a sentence, it would consider the nature of the crime, the defendant’s prior criminal record, the defendant’s background and the impact of the crime on the victim’s family. The court reviewed the evidence presented at trial, including evidence concerning the manner in which the defendant delivered the fatal blow to the victim. The court also examined the defendant’s criminal record and noted that the defendant had been on probation at the time of the murder. Thereafter the court commented: “I am not the finder of fact, but the court can consider whether or not perjury was committed in front of it. And I reviewed [the defendant’s] words carefully and I can’t help but infer that perjury was committed in that [the defendant testified that during the incident he] was blinded by the juice from the ice cream. And there [are] so many areas, I counted [about] nineteen . . . that strain credulity.”

The court next commented on the impact that the murder had on the victim’s family and spoke of the purposes of sentencing. Specifically, the court noted the deterrent effect inherent in sentencing and commented: “And I think that’s important, not for [this defendant] or the [other defendants] to come, but for the young people that are on the street that see the young men like [the defendant] that appear macho, that are involved in drugs, that have cars, attractive new cars, that have jewelry, that have money, that have attractive ladies. And that’s impressionable on young people. And when these people are involved in the criminal milieu, it’s unfortunate that these young, impressionable people don’t see where they end up. Because only if these cases, I think every week or every month, the more serious cases and violent cases of conviction, the pictures and articles should be put in the paper in a special section for all to see. Otherwise, to say there’s deterrence is illusory.”

The court also concluded that it possessed little, if any, belief, given the defendant’s criminal history, that he could rehabilitate himself. At that point, the defendant asked to be heard again. The court denied his request and continued to deliver its sentencing remarks without further interruption and, ultimately, imposed its sentence.

I

The defendant first claims that during its sentencing deliberations, the court violated his state constitutional rights when it considered his testimony at trial as perjurious. We disagree.

The defendant failed either to object to the court’s remarks at the time they were made or to raise his claim as part of his appeal to our Supreme Court. Further, the defendant did not raise either this claim or a claim arising under the state constitution, nor did he address “perjury,” “veracity” or “lack of veracity” in his motion to correct. Accordingly, the court did not address those claims. The defendant argues that the motion was broad enough to preserve sufficiently his claim on appeal. Nevertheless, he argues that even if we conclude to the contrary, we should review the claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The state argues that the claim is unpreserved and not reviewable under Golding. The state also argues, in regard to the issue of the court’s consideration of the defendant’s veracity, that the defendant cannot demonstrate that the protection afforded him by the due process clauses of the state constitution exceeds that afforded him under the federal due process clause.

As a preliminary matter, however, we must resolve a jurisdictional question raised by the state. The state asks whether a motion to correct an illegal sentence brought pursuant to Practice Book § 43-22 may be entertained where the validity of the sentence itself is not in dispute and the execution of the sentence has begun.

A trial court has jurisdiction to correct a sentence pursuant to Practice Book § 43-22, which provides that “[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.” See State v. Cator, 256 Conn. 785, 803-804, 781 A.2d 285 (2001). “[T]he jurisdiction of the sentencing court terminates once a defendant’s sentence has begun, and, therefore, that court may no longer take any action affecting a defendant’s sentence unless it expressly has been authorized to act. . . . Practice Book § 43-22 . . . provides the trial court with such authority .... An ‘illegal sentence’ is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory.” (Citations omitted; internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 37-38, 779 A.2d 80 (2001).

A sentence imposed within statutory limits is generally not subject to review. State v. McNellis, 15 Conn. App. 416, 445, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). The sentence imposed in the present case was not illegal; it was facially valid, did not exceed the maximum statutory limits, did not violate a mandatory minimum, did not violate double jeopardy rights and was neither ambiguous nor internally contradictory. See State v. Mollo, 63 Conn. App. 487, 491, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001). The defendant’s claim does not attack the validity of the sentence. “Practice Book § 43-22 is limited by the common-law rule that a trial court may not modify a sentence if the sentence was valid and execution of it has begun.” State v. Motto, supra, 492. The court lacked jurisdiction to consider the defendant’s claim under Practice Book § 43-22 and therefore should have dismissed the defendant’s motion.

II

The defendant also claims that when determining his sentence, the court improperly relied on information outside the record and that it relied on inaccurate information. Neither of those claims goes to the “legality” of the sentence as discussed in part I. Accordingly, we conclude that the court lacked jurisdiction to consider those claims under Practice Book § 43-22.

The form of the judgment is improper, the order denying the motion is reversed and the case is remanded with direction to dismiss the motion.

In this opinion the other judges concurred.

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       On appeal, the defendant states his claim as follows: “The defendant’s state constitutional rights under article first, §§ 8 and 9, were violated when the trial court took into consideration when imposing sentence its belief that the defendant committed perjury while testifying.”

       Although we normally would not recite the facts underlying the conviction in an appeal of this nature, the claims raised are somewhat dependent on those facts as reasonably could have been found by the jury.

       The defendant does not argue on appeal that he was denied the right of allocution at sentencing.

       The defendant raises for the first time on appeal article first, §§ 8 and 9, of the constitution of Connecticut.

       Our Supreme Court has held that considering a defendant’s untruthful testimony or “lack of veracity” at trial in determining the appropriate sentence after conviction does not violate federal due process rights. See State v. Coleman, 242 Conn. 523, 543-44 n.23, 700 A.2d 14 (1997); State v. Huey, 199 Conn. 121, 129, 505 A.2d 1242 (1986).

       Specifically, the defendant claims that the court improperly considered information outside of the record by basing its sentence on the erroneous belief that he was involved with drugs, possessed attractive new cars, possessed jewelry and money, and kept the company of attractive women. He also claims that the court improperly relied on inaccurate information as to the manner in which he committed the crime. He claims, in that regard, that the evidence clearly demonstrated that he did not inflict two knife wounds on the victim, as the court suggested.


author: MIHALAKOS, J.

text:
    ROBERT ANASTASIO v. MAIL CONTRACTORS OF AMERICA, INC., ET AL.
    (AC 20019)
    Mihalakos, Dranginis and Dupont, Js.

      Argued December 10, 2001
    officially released April 30, 2002

      Jason M. Dodge, for the appellants (defendants).

      J. Sarah Posner, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant second injury fund).
   Opinion

MIHALAKOS, J.

The defendants, Mail Contractors of America, Inc. (Mail Contractors), and its insurer, Vanliner Insurance Company (insurer), appeal from the decision of the workers’ compensation review board (board), which affirmed the decision of the workers’ compensation commissioner for the third district (commissioner) to dismiss their request to transfer liability to the defendant second injury fund (fund) for the payment of disability benefits that had been awarded to the plaintiff, Robert Anastasio. The board affirmed the dismissal on the ground that notice to the fund was untimely and not on the ground fixed by the commissioner, namely, failure to pay the statutorily required $2000 notification fee. The principal and dispositive issue to be decided in this appeal is whether the defendants’ claim is moot for failure to file timely and complete notice to transfer liability to the fund pursuant to General Statutes (Rev. to 1993) § 31-349 (b), as amended by the retroactive application of Public Acts 1995, No. 95-277 (P.A. 95-277), § 3 (b). We conclude that the defendants filed timely notice but failed to file proper notice with the fund and, therefore, we dismiss this appeal as moot.

The underlying facts found by the commissioner are not in dispute. On May 2, 1992, the plaintiff, a truck driver employed by the defendant Mail Contractors, suffered a neck, back and left shoulder sprain by falling from the running board of his truck while on the job. Beginning on May 5, 1992, the plaintiff sought and received medical treatment for the injury. The plaintiff was diagnosed thereafter as totally disabled since the date of the injury. The parties have agreed that the compensable injury met the medical qualifications for transfer to the fund.

On September 16, 1993, the defendant insurer, through its agent, issued a voluntary agreement setting forth the respective rights of the parties, but the document was not executed at that time due to an unresolved question. On February 1, 1994, the insurer realized that the document had not been approved so, having resolved the dispute previously, it issued an amended agreement and had an employee hand-carry it to the third district office of the workers’ compensation commission for certification. On February 2, 1994, the insurer sent the fund a copy of the approved document along with notification of the defendants’ intent to transfer the claim to the fund. The signed and approved voluntary agreement recognized the plaintiffs compensable injuries and stated that his incapacity had begun on May 3, 1992. On February 8, 1994, the fund sent the insurer a letter indicating that the defendants’ notice and voluntary agreement had been received on February 2, 1994, along with up-to-date medical information on the plaintiff, who continued to receive treatment.

On March 16,1995, the insurer received a letter from the fund requesting to know whether the defendants intended to transfer liability for payment of the plaintiffs disability payments to the fund. On May 4, 1995, in response to the fund’s letter, the insurer sent a letter to the fund that identified the parties and contained a summary of the plaintiffs medical treatment, the amount of indemnity benefits that had been paid to the plaintiff, and the estimated amount of moneys needed for reserve for the plaintiffs future medical expenses and indemnity. On June 5, 1995, the defendants wrote to the fund concerning the injury, and enclosed a prior finding and award issued by a workers’ compensation commissioner to supplement their initial notice to the fund. On September 7, 1995, another letter was sent to the fund concerning renotification and stating the defendants’ intent to pursue transfer of liability to the fund. That letter stated that it was intended to supplement the prior notices to the fund from February, 1994, and June, 1995. The defendants have never paid the $2000 notification fee, which is required currently under § 31-349 (b), as amended by P.A. 95-277. See footnote 4.

On September 30,1998, the commissioner concluded from those facts that the plaintiff was totally disabled from the injury and that the disability commenced on May 3, 1992. The commissioner also concluded that the defendants had notified the fund of their intent to transfer liability for the compensable injury on February 2,1994, and had paid compensation continuously to the plaintiff since May 3, 1992. The commissioner decided that the defendants had failed to meet the notice requirements of § 31-349 as it existed prior to July 1, 1995, because the ninetieth day prior to the payment of 104 weeks of compensation passed on January 31, 1994. Nevertheless, the commissioner concluded that the defendants’ notice to the fund was timely via the retroactive application of P.A. 95-277, § 3 (b) (1), which in the commissioner’s view lengthened the time allowed for the defendants’ initial notification by 180 days. Even so, the commissioner then concluded that the defendants’ claim should be dismissed because they had failed to pay the required $2000 notification fee, which would have completed the notification to the fund. Further, because notification was left incomplete, the fund had no responsibility to notify' the defendants that it would reject their claim for transfer. Finally, the commissioner decided that because the notice was defective there was no jurisdiction to determine if equitable principles could preclude the fund from raising a defense to the claim for transfer. The defendants appealed from that ruling to the board on October 7,1998, while simultaneously filing a motion to correct the commissioner’s decision.

On August 31, 1999, the board affirmed the commissioner’s decision to dismiss the defendants’ transfer claim but concluded that notice was untimely rather than incomplete. In reaching its conclusion, the board reasoned that the retroactive application of P.A. 95-277 was of no avail to the defendants. Applying the scheme of P.A. 95-277, § 3 (b) (1), to the plaintiffs case, the board decided that the allowable time period for initial notification would have expired in either July, 1994, or by May 2, 1995. Next, the board noted that on July 1, 1995, the date that P.A. 95-277 became effective, the relevant provision of the act had no potential impact on this case. As a result of that analysis, the board concluded that the defendants’ February 2, 1994 notice was untimely because, under the version of § 31-349 in effect before P.A. 95-277 became effective, notice was due on January 31, 1994.

The board also concluded that the term disability referred to medical impairment and not employment status. Consequently, the board concluded that it was reasonable for the plaintiffs physicians to determine that his medical impairment began the day after the injury, on May 3,1992, and not on the date of the plaintiffs first doctor’s visit on May 5, 1992. Accordingly, the board deemed specious the defendants’ argument that May 5, 1992, was the operative date of disability and that using that date made the notice timely by one day. Further, the board noted that timely renotification under § 31-349 (e) cannot cure an otherwise insufficient initial notice. On September 16, 1999, the defendants appealed to this court from the board’s decision.

Subsequent to the defendants’ filing the appeal, the fund filed a motion to dismiss the appeal for lack of subject matter jurisdiction pursuant to General Statutes § 31-349h. In the motion to dismiss, the fund argued that the appeal is moot because the plain language of § 31-349h bars the court from ordering transfer of liability on a claim to the fund after July 1, 1999. The defendants objected to the motion and argued that as long as the appellate process concerning the disputed transfer claim commenced before July 1, 1999, as here, the court has jurisdiction to order the claim transferred to the fund after that date via a tolling of the limitation period set forth in § 31-349h. On January 5, 2000, this court denied the fund’s motion to dismiss the appeal and, sua sponte, ordered the parties to brief the mootness issue. Both parties complied with that order and we now address the question.

“Mootness implicates [this] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... 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.

. . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 492-93, 778 A.2d 33 (2001). We note that this court ordinarily defers “to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s pmposes.” (Internal quotation marks omitted.) Soares v. Max Services, Inc., 42 Conn. App. 147, 172, 679 A.2d 37, cert. denied, 239 Conn. 915, 682 A.2d 1005 (1996). Nonetheless, “because [a] determination regarding . . . subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999).

Our Supreme Court has held on at least three occasions that § 31-349h “does not bar the transfer of claims that were eligible for transfer prior to July 1, 1999, and that ultimately are found to be transferable.” Genden v. American Airlines, 257 Conn. 520, 522, 778 A.2d 58 (2001); see Zeoli v. Norwalk Hospital, 257 Conn. 527, 531, 779 A.2d 78 (2001); Giaimo v. New Haven, supra, 257 Conn. 498. In the seminal case on this issue, Giaimo v. New Haven, supra, 498, our Supreme Court employed the rules of statutory construction to discern the legislative intent behind § 31-349h. Specifically, our Supreme Court interpreted § 31-349h “to mean that claims not eligible to be transferred to the second injury fund, on or before July 1, 1999, because 104 weeks of payments had not been made by the employer or by its insurer or because the statutory notice requirements had not been met, shall remain the responsibility of the employer or its insurer. If those requirements have been met, however, but the eligibility of a claim was in dispute on July 1, 1999, transfer of the claim is not barred if the claim is ultimately found to have been eligible for transfer before that date. Accordingly, if it is ultimately determined in this case that the claim should have been transferred to the fund before July 1, 1999, practical relief may be granted.” Id. The parties here agree that, other than meeting notice requirements, the claim involved in this appeal was eligible for transfer before July 1, 1999. As a result, the issue here is whether the defendants’ claim met the applicable notice requirements and, therefore, was transferable ultimately. If the answer to this question is in the affirmative, we could grant practical relief by reversing the board’s decision and ordering that the defendants’ claim be transferred to the fund. To the contrary, because we conclude that notice was timely but incomplete and that consequently no practical relief may be granted, the transfer is barred by § 31-349h and thus the appeal is moot.

I

On appeal, the defendants contend that the retroactive application of P.A. 95-277, § 3 (b) (1), extended the time for filing a transfer claim to no later than ninety days after the completion of the first 104 weeks of disability and that, therefore, the notice received by the fund on February 2,1994, was 177 days early. We agree.

The defendants are correct in asserting that, without doubt, P.A. 95-277, § 3, now codified as § 31-349 (b), applies retroactively. See Badolato v. New Britain, 250 Conn. 753, 757-61, 738 A.2d 618 (1999); cf. Kamane v. Saks Fifth Avenue, 67 Conn. App. 385, 388, 786 A.2d 1228 (2001) (defendants conceded 1993 version of § 31-349 [b] governed timeliness of notice). In the Badolato decision, our Supreme Court ruled that “[r]egardless of whether we characterize P.A. 95-277, § 3 as procedural or substantive . . . there are ample grounds to conclude that the legislature intended P.A. 95-277, § 3 to remove the fund’s obligation to reimburse the [defendant] on or after July 1, 1995. The same considerations that led us to recognize in [prior case law] that the legislature enacted P.A. 95-277 in the face of sobering facts . . . and that the fund faced grave problems and had become a threat to the future economic health of our state . . . leads us to conclude in this case also that the legislature intended P.A. 95-277, § 3 to be applied retrospectively.” (Citations omitted; internal quotation marks omitted.) Badolato v. New Britain, supra, 760. Our Supreme Court further stated: “[A] statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. . . . The purpose of P.A. 95-277 was to reduce the financial burden on the fund. Accordingly, we must construe the legislation in a manner consistent with that goal.” (Citation omitted; internal quotation marks omitted.) Id. Mindful of these underpinnings, we must also construe the act in a way that furthers its legislative objective. Thus, the lone legal conclusion that P.A. 95-277, § 3, applies retroactively does not end the matter.

It is also well established that in workers’ compensation cases “jurisdiction is confined by the [Workers’ Compensation Act, General Statutes § 31-275 et seq.] and limited by its provisions. . . . The [Workers’ Compensation Act] is not triggered by a claimant until he brings himself within its statutory ambit. . . . Although the Workers’ Compensation Act should be broadly construed to accomplish its humanitarian purpose ... its remedial puipose cannot transcend its statutorily defined jurisdictional boundaries.” (Citations omitted; internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 799-800, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998).

The defendants contend that they fell within the jurisdictional boundaries of the Workers’ Compensation Act because the retroactive application of P.A. 95-277, § 3 (b) (1), extended the time for filing notice by 180 days so that their notice was 177 days early. Public Acts 95-277, § 3 (b) (1), now codified as § 31-349 (b) (1), required the defendants to notify the fund “no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier . . . .” May 2, 1995, was the date three calendar years from the undisputed date of the plaintiffs injury. As the defendants conceded in their brief, the date ninety days after completion of payments for the first 104 weeks of disability fell at the end of July, 1994. Accordingly, notice under the provisions of § 31-349, as amended by P.A. 95-277, § 3, was due at the end of July, 1994. The parties agree, and the record is clear, that the defendants filed their initial notice with the fund on February 2, 1994, well before the July, 1994 cutoff date. This initial notice is also the only notice filed with the fund before the cutoff date. The defendants argue correctly, therefore, that under the amended law, they filed notice with the fund within the allowable time period. Having concluded that the defendants’ notice was timely, we now turn to the question of whether the notice in this case was complete.

II

We have held that along with the requirement of timely notice “[tjhere can, of course, be no effective transfer of liability to the Fund under § 31-349 until all those materials specified in that statute have been furnished to the fund, and not just notification of the pendency of the case.” (Emphasis in original; internal quotation marks omitted.) Soares v. Max Services, Inc., supra, 42 Conn. App. 168; see Casey v. Northeast Utilities, 249 Conn. 365, 372 n.4, 731 A.2d 294 (1999) (“proper transfer may be effectuated by fulfilling certain statutory requirements”). The defendants were mandated by law to follow all the requirements for notice delineated by § 31-349 as amended by P.A. 95-277, § 3. Public Acts 95-277, § 3 (b) (2) (E), required that the defendants submit, along with their timely notice, a $2000 notification fee to cover the fund’s costs in processing the claim for transfer. We are mindful of the “basic tenet of statutory construction that the legislature did not intend to enact meaningless provisions.” (Internal quotation marks omitted.) Giaimo v. New Haven, supra, 257 Conn. 493. Moreover, as we noted in part I, a statute performs its function as a whole and not in disconnected segments. See Badolato v. New Britain, supra, 250 Conn. 760. Consequently, we must construe P.A. 95-277 as being animated by its purpose to reduce the financial burden on the fund. See id. The defendants have failed to pay the statutorily required $2000 fee. With that undisputed fact and those immutable precepts in mind, we conclude that we cannot allow the defendants to take advantage of the extended time for filing notice under P.A. 95-277, § 3, without also requiring compliance with the section’s other notice requirements. To do otherwise would undermine the legislative objective embodied in the enactment of P.A. 95-277.

The defendants argue to the contrary that they are excused from paying the required fee for two reasons. We disagree. First, the defendants claim that they are exempt from the fee requirement under § 31-349 (e). We are persuaded by the analysis of the board in Audi v. Chapman, No. 3418, CRB-3-96-9 (August 4, 1997), that § 31-349 (e) was not intended to apply to notice unsuccessfully made under the prior version of the law. As a result, § 31-349 (e) is inapplicable here because under the old law the defendants were not successful in their attempt to notify the fund of their claim for transfer. We conclude, therefore, that the defendants may not avail themselves of the exemption from the fee requirement found in § 31-349 (e).

Alternatively, the defendants stress that at the time they filed notice they were unaware that they should pay the required fee because P.A. 95-277 had not been enacted yet. The defendants argue, therefore, that requiring them to pay the fee at that time was an impossible task. In support of that argument, the defendants direct us to our Supreme Court’s suggestion that judicial interpretation of § 31-349 should avoid requiring a type of notice that is impossible to give. See Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 392-93 n.10, 618 A.2d 1340 (1993). Subsequent to our Supreme Court’s decision in Vaillancourt, this court affirmed the holding of a compensation review board that excused a timely but incomplete notice because providing timely and complete notice was deemed impossible. See generally Thompson v. Roach, 52 Conn. App. 819, 728 A.2d 524, cert. denied, 249 Conn. 911, 733 A.2d 227 (1999). In that case we concluded that “[w]here notice ... is impossible to give, the failure to comply strictly with § 31-349 will not preclude a transfer of liability. . . . Under such circumstances, notice will be considered timely if provided within a reasonable period of time thereafter.” (Citation omitted.) Id., 823.

The present case differs markedly, however, from Thompson. In Thompson, the defendant insurer was prevented from providing complete notice because the plaintiffs employer became defunct and information relevant to the claim was not obtained until well after the deadline for timely notice. Id., 822. Moreover, within a reasonable time after obtaining the information, the defendant insurer in Thompson provided the fund complete notice in accordance with the notice provision of § 31-349. Id. In the present case, although the defendants could not have been aware of the required fee when they filed their initial notice, they were not prevented from completing notice within a reasonable time after P.A. 95-277, § 3, became effective on July 1, 1995. In fact, the defendants conceded in their brief that they were familiar with P.A. 95-277 since at least September 7, 1995, if not before. On that date, as the defendants stated, they attempted to provide the fund “with a ‘re-notice’ letter in accordance with [P.A. 95-277].” Without deciding exactly what would have been a reasonable time here, we conclude that allowing more than six years to pass without paying the required fee was not reasonable. Consequently, the defendants’ claim of impossibility is unavailing because they could have completed notice when P.A. 95-277 became effective. Moreover, to conclude otherwise would be to undermine the legislative objective of P.A. 95-277 and to apply its notice provisions in a piecemeal fashion, which we will not do. See Badolato v. New Britain, supra, 250 Conn. 759-60. Because the timely February 2, 1994 notice was not complete, the defendants’ claim was not transferable ultimately, and we cannot grant any practical relief. Accordingly, the defendants’ claim for transfer is barred by § 31-349h and, therefore, is moot.

The appeal is dismissed.

In this opinion the other judges concurred.

       The insurer is referred to in the record at times as Thomas E. Fay Insurance Adjusters. Thomas E. Fay Insurance Adjusters is the licensed Connecticut adjusting company for Vanliner Insurance Company. Because the defendants’ brief lists the party as Vanliner Insurance Company, we designate this party as such here. We note as well that further reference to the “defendants” in this opinion refers only to Mail Contractors and its insurer.

       The plaintiff is not a party to this appeal. The defendant second injury fund is the appellee in this appeal.

       General Statutes (Rev. to 1993) § 31-349 (b) provides in relevant part: “As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, ninety days before the expiration of the first one hundred four weeks of disability, notify the custodian of the second injury fund of the pending case . . . .” Although the defendants refer in their brief to the 1991 version of this statute, the 1993 version of the statute provided here incorporates amendments made by the public acts of 1991, which were in effect on the date of the plaintiffs injuries.

       Public Acts 1995, No. 95-277, § 3 (b), effective July 1, 1995, and now codified in General Statutes § 31-349 (b), provides in relevant part: “As a condition precedent to the liability of the Second Injury Fund, the employer or its insurer shall: (1) Notify the custodian of the fund by certified mail no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier, of its intent to transfer liability for the claim to the Second Injury Fund; (2) include with the notification (A) copies of all medical reports, (B) an accounting of all benefits paid, (C) copies of all findings, awards and approved voluntary agreements, (D) the employer’s or insurer’s estimate of the reserve amount to ultimate value for the claim, (E) a two-thousand-dollar notification fee payable to the custodian to cover the fund’s costs in evaluating the claim proposed to be transferred and (F) such other material as the custodian may require. . . .”

       Although the defendants do not dispute that the fee was not paid, they do contend that they were exempt from the statutory requirement to pay the fee under General Statutes § 31-349 (e). See part II. We note also that the commissioner and the board referred mistakenly to the section requiring the fee as § 31-349 (b) (2) (B) and § 31-349 (b) (E), respectively.

       The defendants’ motion, which was granted in part and denied in part, sought minor changes to the commissioner’s findings that are not dispositive of the issue here.

         General Statutes § 31-349h provides: “All transfers of claims to the Second Injury Fund with a date of injury prior to July 1, 1995, shall be effected no later than July 1, 1999. All claims not transferred to the Second Injury Fund, on or before July 1, 1999, shall remain the responsibility of the employer or its insurer.”

       In Giaimo, our Supreme Court was faced with resolving “an apparent inconsistency in the statutes governing the fund.” Giaimo v. New Haven, supra, 257 Conn. 494. In that case, the fund argued that General Statutes § 31-349h barred any claim for transfer to the fund not resolved by July 1, 1999, regardless of whether the appellate process involving a particular claim was completed by that date. Giaimo v. New Haven, supra, 494-95. The fund’s opponent, the city of New Haven (city), responded that, § 31-349h “should apply only to claims that were not eligible for transfer prior to July 1, 1999 . . . .” (Emphasis in original.) Id., 495. Our Supreme Court agreed with the city’s argument that if “the claim should have been transferred to the fund before July 1,1999, the fact that the appeal process could not be completed before that date should not bar the transfer.” Id. In support of this conclusion, our Supreme Court stated that “[i]f the legislature had meant to terminate all claims, including those where the requirements for a transfer had been met and those where the requirements had not been met, on July 1, 1999, it easily could have so provided.” (Emphasis added.) Id., 496-97. Stated in the negative, therefore, our Supreme Court held that if either the applicable notice requirements were not met or the claim was otherwise ineligible for transfer before July 1, 1999, then § 31-349h bars transfer of the defendants’ claim to the fund.
      Here, in its appellate brief, the fund offers a different version of its mootness argument than that made in its motion to dismiss. The fund seeks to recast its interpretation of § 31-349h by stating that its argument, is not “that the legislature snuffed out the right to appeal, but that this appeal has become moot because the underlying legal issue has been resolved by the enactment of P.A. 95-277.” Regardless of how the claim of mootness is presented, however, the question to be examined here is still whether the claim was transferable ultimately to the fund and, in particular, whether the defendants filed proper notice under the applicable law.

       The defendants do not claim on appeal, as they did before the commissioner and the board, that they filed timely notice under General Statutes (Rev. to 1993) § 31-349 as it existed prior to the effective date of P.A. 95-277, § 3, on July 1, 1995. Indeed, the defendants filed their initial notice on February 2, 1994, two days late under the old law.

       We note, therefore, that the several letters of notice sent by the defendants in response to the fund’s March, 1995 request for resubmission of notices are not operative here.

       General Statutes § 31-349 (e) provides: “All claims fortransfer of injuries for winch the fund has been notified prior to July 1, 1995, shall be deemed withdrawn with prejudice, unless the employer or its insurer notifies the custodian of the fund by certified mail prior to October 1, 1995, of its intention to pursue transfer pursuant to the provisions of this section. No notification fee shall be required for notices submitted pursuant to this subsection. This subsection shall not apply to notices submitted prior to July 1, 1995, in response to the custodian’s request, issued on March 15, 1995, for voluntary resubmission of notices.”

       In Audi, the board concluded that when the legislature used the term “notified” it meant “properly and timely notified, rather than unsuccessfully notified. [Public Acts 95-277, § 3 (e), now codified as General Statutes § 31-349 (e),] clearly deals with pending notice claims that the Fund had been apprised of prior to July 1, 1995, and forces the party seeking transfer to reaffirm its intent to pursue its claim, as all claims were deemed withdrawn with prejudice subject to renotification by October 1, 1995. See 38 S. Proc., Pt. 15, 1995 Sess., p. 5487 (remarks of [Senator John A.] Kissel). Nowhere in this provision does the legislature evince an intent to allow parties that have missed the filing deadline in the past to resurrect those claims by re-notifying the Fund of their intent to seek transfer.” (Internal quotation marks omitted.) Audi v. Chapman, No. 3418, CRB-3-96-9 (August 4, 1997).

       We note as well that General Statutes § 31-349 (e) expressly states that it is not applicable to any notice filed prior to July 1, 1995, in response to the fund’s request for voluntary resubmission of notices. Thus, even if the notice letters sent by the defendants after their initial February 2, 1994 notice but before July 1, 1995, were operative here, they would not be exempt from the fee requirement because they were sent in response to the fund’s request. See footnote 10. In addition, the defendants’ reliance on Masko v. Wallingford, 67 Conn. App. 276, 786 A.2d 1209 (2001), for the proposition that they are exempt from the fee requirement is misplaced. The issue in that case was whether a renotice letter submitted subsequent to timely initial notice and relying on the speed of the mail service was timely under § 31-349 (e). Id., 278. The present case clearly is dissimilar from Masko both on its facts and on the issues to be resolved.