text:
    Tomasina Banks v. Milton Evans
    (3619)
    Dupont, C. J., Borden and Bieluch, Js.
    Submitted on briefs January 8
    decision released February 11, 1986

      Bruce L. Levin filed a brief for the appellant (defendant).

      Joseph I. Lieberman, attorney general, and Seymour P. Dunn, assistant attorney general, filed a brief for the appellee (plaintiff).
   Per Curiam.

The only issues in this paternity case involve the propriety of the trial court’s actions (1) in permitting the defendant’s counsel to withdraw as counsel immediately after the trial, and (2) in denying the defendant’s subsequent motion to open the judgment filed pursuant to Practice Book § 326. We find no error.

The paternity action was brought in early 1982. The defendant appeared by his counsel and filed an answer. Subsequently, his counsel moved to withdraw, asserting lack of cooperation by the defendant. The plaintiff objected to this motion and it went off the calendar. Ultimately, in 1984, the case was assigned for trial. The defendant’s counsel thereupon filed a second motion to withdraw, dated June 15, 1984, claiming that the defendant refused to respond to counsel’s telephone calls and letters, and that counsel could not, therefore, properly defend the action.

The trial was held on September 25, 1984. The defendant was not present. Immediately prior to the trial, the defendant’s counsel pressed his pending motion to withdraw, and informed the court of his previous motion to withdraw. He also informed the court that, after the trial assignment, he had sent the defendant a certified letter at his place of employment, the Norwalk National Guard Armory, which letter was returned in June. He also stated that he had finally contacted the defendant the day of trial at the Stratford National Guard Armory, had informed the defendant of the impending trial, and had told him of the results of a paternity blood test which the defendant had taken. That result indicated a 97.7 percent likelihood that the defendant was the father of the child involved. The defendant even then failed to appear in court for his defense at trial. The court responded to the defendant’s attorney: “You may protect your client’s interest through the end of trial. And then I’ll remove you as counsel and you can inform your client that he has a right to appeal, [and] right to reopen judgment.” The trial proceeded, resulting in a judgment for the plaintiff. After the judgment was rendered, the court granted counsel’s motion to withdraw. The court specifically found that counsel had “discharged his obligations to the defendant in the highest traditions of the bar,” and that the defendant did not cooperate with his counsel or appear for trial after being notified.

Within four months, the defendant, through new counsel, moved to open the judgment pursuant to Practice Book § 326. His affidavit in support of this motion stated that he had received no notice prior to September 25,1984, that the case would be tried on that day. It also recited that on the same afternoon, while on military duty, he received a telephone call from his attorney advising him, for the first time, that the case would be tried that day and that he would have to be in court in fifteen minutes. He allegedly told his attorney that he would be unable to leave at that time. The affidavit also stated that the defendant had a good defense to the paternity action, namely, that he was not the father of the child, that he had never had vaginal intercourse with the plaintiff, and that she had acknowledged to him and to others that another man was the father of her child.

The court heard the defendant’s motion to open judgment on June 18,1985. Neither the defendant nor his new attorney was present in court. The defendant’s former attorney, presented as a witness in opposition to the defendant’s motion to open judgment, testified as follows: After he filed his appearance for the defendant in early 1982, the defendant failed to respond to his letters and telephone calls. After the blood test results were received, he received no response to his request that the defendant come to his office. The defendant did not respond to telephone messages left at the Norwalk and Stratford National Guard offices. He further testified that the defendant did not respond to certified and regular mail letters, and that he had met with no success in his final attempt, on September 25, 1984, to get the defendant to come to court. The court denied the motion to open the judgment.

The defendant first claims that the court erred in permitting his trial counsel to withdraw (1) because it effectively granted permission to withdraw prior to the trial, and (2) because the record does not indicate that the defendant had reasonable notice that the trial was proceeding on that day. We disagree.

The record is clear that counsel was not permitted to withdraw until after the trial was concluded. We note that the defendant does not claim that counsel inadequately protected his interests during the trial held in his absence.

The entire record of this case also indicates that the notice to the defendant of the trial was reasonable under all the circumstances. The defendant’s counsel told the court that he “finally made contact with” the defendant after receiving the trial calendar. In response to the court’s question, “Is he going to come to court, ever?” the counsel replied, “I told him that it’s down to showtime . . . . ” The defendant gave the court no reason to doubt his counsel’s representations to the court at the time of trial, or his counsel’s testimony at the subsequent hearing on the motion to open judgment. Those representations and testimony adequately spell out the defendant’s lack of cooperation in maintaining contact with his attorney. The defendant cannot insulate himself from his own attorney and then claim that his attorney failed to give him adequate notice of his trial date. The trial court did not abuse its discretion in granting the motion to withdraw. Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 340, 160 A.2d 899 (1960); see Practice Book § 77 (d).

Nor did the trial court err in denying the defendant’s motion to open the judgment. Although the defendant stated in his affidavit that he had no notice of the trial date prior to the afternoon of trial and that he could not leave his job on such short notice, he did not appear in court at the hearing on his motion to open judgment to substantiate those statements. The former counsel amplified for the court his futile efforts to make contact with the defendant, and the defendant’s inadequate responses to those efforts. We cannot find that the court abused its discretion in denying the motion to open the judgment. Manchester State Bank v. Reale, 172 Conn. 520, 523-24, 375 A.2d 1009 (1977).

There is no error.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Tapper, Tapper & Elkin v. Paul F. Papa
    (3892)
    Hull, Spallone and Daly, Js.
    Argued January 14
    decision released February 11, 1986

      Paul F. Papa, pro se, the appellant (defendant).

      Sydney W. Elkin, with whom, on the brief, was Bruce A. Tonkonow, for the appellee (plaintiff).
   Per Curiam.

There is no error.


author: Spallone, J.

text:
    Pero Building Company, Inc. v. Donald H. Smith et al.
    (3508)
    Dupont, C. J., Borden and Spallone, Js.
    Argued November 8, 1985
    decision released February 11, 1986

      Philip M. Hart, for the appellants (named defendant et al.).

      Frank J. Kolb, Jr., for the appellee (plaintiff).

      Joseph Glass, for the appellee (defendant Gerrity Company, Inc.).
   Spallone, J.

The defendants, Donald H. Smith and Leila Smith, are appealing from a judgment of the trial court denying their application for discharge of two mechanics’ liens.

The plaintiff, Pero Building Company, Inc., brought an action to foreclose a mechanic’s lien it had filed when the defendants Donald H. Smith and Leila Smith failed to remit the balance of the payments due under a contract with the plaintiff for the construction of a two family house on property which they owned. The Smiths answered and filed a counterclaim alleging that the plaintiff had performed the contract negligently, had breached the contract and had filed a mechanic’s lien in violation of an express provision of the contract. Gerrity Company, Inc., a supplier of building materials used in the construction of the house, filed a second mechanic’s lien against the property when the plaintiff failed to pay for the material. Gerrity was named as a party defendant in the plaintiff’s foreclosure suit because of its mechanic’s lien. Gerrity filed a cross complaint seeking a foreclosure of that lien.

The Smiths moved to discharge the liens of the plaintiff and of Gerrity pursuant to General Statutes § 49-35a (a). After a hearing, the court concluded that probable cause existed for the filing of both liens and refused to discharge either one. We find error in the court’s conclusion that there was probable cause to sustain the validity of the mechanic’s lien of Pero.

“The purpose of the mechanic’s lien is to give one who furnishes materials or services ‘the security of the building and land for the payment of his claim by making such claim a lien thereon . . . .’ ” H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981), quoting Purcell, Inc. v. Libbey, 111 Conn. 132, 136, 149 A. 225 (1930). The statutory provision of such a lien should be liberally construed so as to implement reasonably and fairly the statute’s remedial intent. H & S Torrington Associates v. Lutz Engineering Co., supra.

General Statutes § 49-35b (a) provides in part that “[u]pon the hearing held on [an] application or motion [for reduction or discharge of a mechanic’s lien], the lienor shall first be required to establish that there is probable cause to sustain the validity of his lien.” The probable cause standard embodied in the statute is analogous to that provided in the statutory provisions relating to prejudgment remedies. See General Statutes § 52-278a et seq. Cases which have interpreted this standard as it relates to such remedies are instructive in the present matter as no definition, either statutory or by case law, has been formulated for a probable cause standard under the mechanic’s lien statute.

“The language of our prejudgment remedy statutes; General Statutes § 52-278a et seq.; requires that the court determine ‘whether or not there is probable cause to sustain the validity of the plaintiff’s claim’; General Statutes § 52-278d (a); that is to say ‘probable cause that judgment will be rendered in the matter in favor of the plaintiff.’ General Statutes § 52-278c (a) (2). ‘The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.’ Wall v. Toomey, 52 Conn. 35, 36 (1884). Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983). The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff’s claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977). The court’s role in such a hearing is to determine probable success by weighing probabilities. Michael Papa Associates v. Julian, 178 Conn. 446, 447, 423 A.2d 105 (1979).” Three S. Development Co. v. Santore, 193 Conn. 174, 175-76, 474 A.2d 795 (1984); Solomon v. Aberman, 196 Conn. 359, 363, 493 A.2d 193 (1985); L. Suzio Concrete Co. v. Salafia, 3 Conn. App. 404, 406-407, 488 A.2d 1280 (1985); see also Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984).

This court’s role in reviewing a trial court’s action upon such a motion is circumscribed even further. Solomon v. Aberman, supra, 364. The trial court is vested with broad discretion in determining whether there is probable cause to grant such remedies. Id.; Price Saver, Inc. v. Maynard, 5 Conn. App. 90, 91, 496 A.2d 991 (1985). We are merely to determine whether the trial court’s decision was reasonable, and we will not upset the decision in the absence of clear error. Solomon v. Aberman, supra; Three S. Development Co. v. Santore, supra, 176; Price Saver Inc. v. Maynard, supra; Babiarz v. Hartford Special, Inc., supra, 393-94. Nothing in the statute requires us to treat or interpret a mechanic’s lien differently from a prejudgment remedy.

In the present action, the plaintiff, by clear and unambiguous language, expressly agreed with the Smiths not to file a mechanic’s lien on their property. The language used could not be more clear: “The CONTRACTOR agrees that no mechanic’s claims or liens will be filed or maintained by CONTRACTOR against the dwelling or other improvements to be constructed or against the PROPERTY.” We recognize that, ordinarily, whether the plaintiff waived his right to a mechanic’s lien is a question of fact to be determined by the trier. Pomarico v. Gary Construction, Inc., 5 Conn. App. 106, 112, 497 A.2d 70, cert. denied, 197 Conn. 816, 500 A.2d 1336 (1985); see Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 14, 420 A.2d 1142 (1979); Holden & Daly, Connecticut Evidence (1966 & Sup. 1983) § 125 (a). Where, however, 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. See Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 404, 499 A.2d 64, cert. granted, 198 Conn. 802, 501 A.2d 1213 (1985). In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard. See Lavigne v. Lavigne, 3 Conn. App. 423, 428, 488 A.2d 1290 (1985).

We conclude that because the language of the agreement between the parties was clear and definitive and because the intention of the parties was unmistakable, the trial court could not reasonably have construed such language as other than a voluntary and an absolute waiver of the plaintiff’s statutory right to file a mechanic’s lien on the Smiths’ property. The decision of the trial court in failing to grant the discharge of the plaintiff’s mechanic’s lien was, under the circumstances of this case, erroneous.

We find no merit to the plaintiff’s contention that due to the Smiths’ alleged breach of contract, the waiver clause of the parties’ agreement was unenforceable. The right to a mechanic’s lien is not a contractual right, rather it is a statutory right available to secure, as well as to enforce, payment for materials and labor rendered. Lampson Lumber Co. v. Rosadino, 141 Conn. 193, 196, 104 A.2d 362 (1954); Purcell, Inc. v. Libbey, supra; New Haven Orphan Asylum v. Haggerty Co., 108 Conn. 232, 239, 142 A. 847 (1928). The effect of a waiver clause is to limit the avenues available to the plaintiff to collect for such material and labor. Once the statutory right to a mechanic’s lien has been waived, there is no provision under the statute for the revival of that right upon the breach of a contract. See General Statutes § 49-33 et seq.

The plaintiff’s argument that there was no consideration given for the waiver provision is likewise without merit. The waiver provision was bargained for and was part of the parties’ original agreement and was therefore given in exchange for the original consideration.

We conclude that the court correctly applied the law in refusing to discharge the mechanic’s lien filed by the defendant Gerrity. A contractor cannot bargain away the lien rights of subcontractors or materialmen who are not themselves privy to the contractor’s agreement and who do not agree with the general contractor to waive their rights or to adopt the waiver provision as incorporated in the contract between the general contractor and the property owner. See Rene Dry Wall Co. v. Strawberry Hill Associates, 182 Conn. 568, 438 A.2d 774 (1980); Seaman v. Climate Control Corporation, 181 Conn. 592, 436 A.2d 271 (1980); Lewin & Sons, Inc. v. Herman, 143 Conn. 146, 120 A.2d 423 (1956); annot., 75 A.L.R.3d 505 (1977). Indeed, the language of the agreement recognized the plaintiffs contractual obligation to secure lien waivers from its subcontractors and materialmen, and its liability to indemnify the property owners for its failure to do so. See footnote 3, supra.

There is error in part, the judgment is set aside as to the plaintiffs mechanic’s lien and the case is remanded with direction to grant the Smiths’ application to discharge that lien.

In this opinion the other judges concurred.

       Upon the death of Donald H. Smith, Leila Smith was substituted as a defendant in her capacity as executrix of her husband’s estate.

       General Statutes § 49-35c (a) provides that an order entered by the court denying an application to discharge a mechanic’s lien is “deemed a final judgment for the purposes of appeal.”

       Paragraph 15 of the contract provides: “The CONTRACTOR agrees that no mechanic’s claims or liens will be filed or maintained by CONTRACTOR against the dwelling and other improvements to be constructed or against the PROPERTY. Further, CONTRACTOR in contracting with any subcontractors or materialmen, will in such contracts provide that such subcontractors or materialmen shall not file or maintain any mechanic’s claims or liens for work done or materials furnished upon the PROPERTY for the purpose of work herein contracted to be performed, including orders, and CONTRACTOR further agrees to indemnify and save OWNER harmless from any costs, expenses, attorneys fees, loss or damage incurred by OWNER by the filing of liens by subcontractors or materialmen.”


text:
    Raymond Plunske v. Board of Tax Review of the Town of Bethel
    (3583)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 10
    decision released February 11, 1986

      Raymond W. Beckwith, for the appellant (plaintiff).

      Stephen C. Gallagher, for the appellee (defendant).
   Per Curiam.

There is no error.


author: Daly, J.

text:
    Rocco D’Agostino v. Angelina D’Addio
    (4071)
    Hull, Borden and Daly, Js.
    Argued December 10, 1985
    decision released February 11, 1986

      Robert J. Nichols, for the appellant (plaintiff).

      Donna D. Morris, with whom, on the brief, was James H. Segaloff, for the appellee (defendant).
   Daly, J.

The plaintiff instituted this action to set aside a conveyance of real estate made to the defendant, claiming that it was a result of undue influence. From the granting of a summary judgment in favor of the defendant, the plaintiff has appealed.

The plaintiff, Rocco D’Agostino, and the defendant, Angelina D’Addio, are brother and sister. The plaintiff commenced this action by complaint dated March 23,1979, and alleged therein that their father, Rocco D’Agostino, Sr., conveyed a parcel of land in Hamden to the defendant by quitclaim deed on January 30, 1970. The father died on December 19, 1972.

The defendant moved for summary judgment claiming that the action was barred by General Statutes § 52-577 which provides that “[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” The plaintiff contended that General Statutes § 52-575 is the applicable statute of limitations which provides in pertinent part: “No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues . . . .” The trial court determined that General Statutes § 52-577 governed and, hence, rendered summary judgment in favor of the defendant.

“ ‘[T]he nature of the right sued upon and not the form of action nor the relief demanded determines the applicability of the statute of limitations.’ ” Dunn v. County of Los Angeles, 155 Cal. App. 2d 789, 803, 318 P.2d 795 (1958). Here, the allegations of the complaint are based on undue influence. “ ‘The undue influence which will avoid a deed is an unlawful or fraudulent influence which controls the will of the grantor.’ ” Guill v. Wolpert, 191 Neb. 805, 821, 218 N.W.2d 224 (1974). In order to have an effect, undue influence must amount to coercion or fraud. 25 Am. Jur. 2d, Duress and Undue Influence § 36, p. 396. Where a complaint alleged a conspiracy to cheat and defraud the plaintiff, it sounded in tort. Accordingly, the applicable statute is General Statutes § 52-577 which limits the bringing of such an action to three years. Rosenblatt v. Berman, 143 Conn. 31, 39, 119 A.2d 118 (1955) (construing General Statutes [Rev. to 1949] § 8316, the predecessor to General Statutes § 52-577).

As to the plaintiff’s claim that General Statutes § 52-575 applies, “the law is clear that that section, entitled ‘Entry upon land to be made in fifteen years,’ applies only to the acquiring of title to land by adverse possession . . . Aksomitas v. South End Realty Co., 136 Conn. 277, 284, 70 A.2d 552 (1949).

There is no error.

In this opinion the other judges concurred.


author: Dupont, C. J.

text:
    State of Connecticut v. Ralph Roman
    (3409)
    Dupont, C. J., Borden and Spallone, Js.
    Argued November 8, 1985
    decision released February 11, 1986

      Howard I. Gemeiner, for the appellant (defendant).

      John P. Zanini, certified legal intern, with whom were Carl Schuman, assistant state’s attorney, and, on the brief, David Gold, deputy assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

After a conviction by a jury of criminal possession of a pistol by a felon, a violation of General Statutes § 53a-217, and carrying a pistol without a permit, a violation of General Statutes § 29-35, the defendant appeals and claims that the trial court erred (1) in refusing to allow the defendant to impeach a state’s witness by use of the witness’ thirteen year old conviction for possession of heroin, and (2) in allowing the state to introduce evidence of a prior inconsistent statement of another witness for the state for the purpose of impeaching his credibility.

The jury could have reasonably found that the defendant was involved in an altercation with several other individuals, during which Joseph Troche was struck by a bullet which grazed his face, and that the bullet was discharged from a pistol of the defendant. The defendant had previously been convicted of burglary in the third degree and did not possess a permit for a gun at the time of the incident.

Troche subsequently named the defendant as his assailant. The evidence was conflicting as to whether the defendant actually caused the gun to discharge. The defendant testified that he did not have a gun with him at the time of the altercation, although Troche testified that the defendant did have a weapon in his possession and that it was that weapon which caused Troche’s injury.

Although the court did not allow the defendant to impeach Troche by use of his thirteen year old conviction for possession of heroin, it did allow the defendant to impeach him by use of three ten year old convictions for burglary in the third degree.

General Statutes § 52-145 (b) provides that conviction of a crime may be shown for the purpose of attacking the credibility of a witness. It has been interpreted to apply solely to those convictions the punishment for which exceeds one year. State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985); State v. Kuritz, 3 Conn. App. 459, 461, 489 A.2d 1053 (1985). A trial court has discretion in deciding whether such a conviction should be used for purposes of impeachment. State v. Braswell, supra; State v. Nardini, 187 Conn. 513, 521, 447 A.2d 396 (1982). A conviction is not per se admissible. State v. Kuritz, supra. In evaluating whether a conviction should be admitted for impeachment purposes, three primary factors are taken into consideration: (1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime in indicating untruthfulness; and (3) the remoteness in time of the conviction. State v. Geyer, 194 Conn. 1, 11, 480 A.2d 489 (1984). These factors are not to be weighed as though they were in mathematical equipoise. State v. Nardini, supra, 528.

In this case, the two most important factors governing the trial court’s discretion were the significance of the particular crime in indicating untruthfulness and the remoteness in time of the conviction. Although a narcotics offense, such as Troche’s conviction for possession of heroin, reflects adversely on the general character of a witness, it has no direct materiality in determining the credibility of a witness. The relevance of this conviction to veracity should be contrasted with convictions for crimes involving dishonesty or false statement, such as perjury, which obviously bear on the credibility of a witness. See State v. Geyer, supra, 12-13; 3 Weinstein & Berger, Weinstein’s Evidence, Rule 609, p. 74 n.19. The probative value of a conviction in determining the credibility of a witness is related to the span of time between the conviction and the proferred testimony. See generally, Tait & LaPlante, Connecticut Evidence § 7-21 (1985 Sup.) It is a rare prior conviction which is more than ten years old which retains the minimal probative value sufficient to overcome its prejudice. See State v. Kuritz, supra, 463. Due to its minimal probative value in determining the capacity of the witness for truthfulness and due to its remoteness in time, the heroin conviction of the witness was properly excluded by the trial court.

The second claim of error made by the defendant is that the trial court erred in allowing the state to introduce extrinsic evidence of a prior statement made by another witness of the state regarding the events of the night of the incident as recounted to him by the defendant. The witness testified on direct examination that the defendant had admitted to being at the scene with a gun, testimony which the witness denied on cross-examination. On redirect examination, he denied that he had stated to an investigator for the state’s attorney’s office that the defendant had admitted he had a gun at the scene.

Faced with this contradictory testimony, the state produced evidence in the form of testimony by the investigator regarding a conversation involving the investigator, the witness, and the state’s attorney in which the witness stated that the defendant had admitted to having a gun. Defense counsel objected to the introduction of the testimony on the grounds that the state was attempting to impeach its own witness and that the state’s attorney was interjecting his own credibility into the case. These objections were overruled by the trial court and the evidence was admitted.

While a party generally may not impeach its own witness by use of a prior inconsistent statement, it may do so upon a showing of hostility, surprise or deceit. State v. McCarthy, 197 Conn. 166, 177, 496 A.2d 190 (1985). The admissibility of such a statement rests within the discretion of the trial court. State v. McCarthy, supra. Even if surprise is lacking, the trial court retains its discretion to allow the introduction of the prior inconsistent statement where the witness fails to testify in substantial accord with it. State v. McCarthy, supra; State v. Roberson, 173 Conn. 97, 376 A.2d 1089 (1977); Plawecki v. Angelo Tomasso, Inc., 1 Conn. App. 48, 51-52, 467 A.2d 944 (1983), cert. denied, 192 Conn. 801, 470 A.2d 1218 (1984).

The testimony of the investigator did not involve a collateral issue since his recall of the statement made to him by the defendant as to the defendant’s possession of a gun at the time of the incident was central to crucial facts involved in the elements of the crimes with which the defendant was charged.

There is no error.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of assault in the third degree, a violation of General Statutes § 53a-61.

       Federal Rule of Evidence 609 (b) provides that evidence of a conviction is generally not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is later. In State v. Nardini, 187 Conn. 513, 447 A.2d 396 (1982), the Supreme Court established the ten year age of the prior conviction, as embodied in Rule 609 (b) of the Federal Rules of Evidence, as a “rough bench mark in deciding whether trial court discretion has been abused . . . .” Id., 526. In a subsequent case, the court, in dictum, referred to the fact that it is the defendant’s release date from his conviction rather than the conviction date which is relevant to a determination of remoteness. State v. Hamele, 188 Conn. 372, 384 n.7, 449 A.2d 1020 (1982), citing State v. Nardini, supra, 525. Since this dictum is based on Nardini’s choice of the federal rule as a “rough bench mark,” the release date from a conviction may not be the proper time gauge for measuring remoteness. Indeed, it is difficult to conceive of a rationale for measuring the conviction from the date of release from confinement, since such a measurement would mean that, as to judgments of conviction more than ten years old, the longer the sentence served the more likely it would be that the conviction would be deemed admissible. The period of confinement for a felony would rarely be relevant to the issue of the witness’ general credibility. See State v. Cosby, 6 Conn. App. 164, 170, 504 A.2d 1071 (1986); see also State v. Kuritz, 3 Conn. App. 459, 460 n.4, 489 A.2d 1053 (1985).

       The contention of the defendant at the conclusion of his brief that the admission of the investigator’s testimony constituted the improper admission of double hearsay is not considered because this claim was not raised in the trial court. See Practice Book § 3063.

       The court instructed the jury that the testimony of the investigator was to be used for the sole purpose of testing the truth of the testimony of the witness.


text:
    In re Migdalia M.

    (2826)
    (2827)
    Dupont, C. J., Hull and Borden, Js.

      Argued October 2, 1985
    decision released February 11, 1986

      John D. Thomas, for the appellant (father of the minor child).

      Cornelius J. Ivers, with whom, on the brief, was Patrice Noah, for the appellant (mother of the minor child).

      JohnH. Doermann, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert W. Garvey, assistant attorney general, for the appellee (department of children and youth services).

      Laurie Balmuth, with whom, on the brief, was Richard Gee, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Dupont, C. J.

This case involves a petition to terminate the parental rights of parents of a child with severe medical problems, brought by the commissioner of the department of children and youth services (hereinafter DCYS). The trial court granted the petition and the parents have separately appealed.

The issue on appeal is whether DCYS proved by clear and convincing evidence that one or more of the statutory grounds for the termination of parental rights, as provided in General Statutes (Rev. to 1981) § 17-43a (a), as amended by Public Acts 1982, No. 82-202, existed. The grounds for the petition were the same as to each parent. DCYS alleged that the parents (1) abandoned the child in the sense that they have failed to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare, or (2) failed to achieve such degree of personal rehabilitation as would reasonably encourage the belief that at some future date they could assume a responsible position in their child’s life, or (3) have no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral, and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child.

The trial court found that all three grounds for termination had been proven as to the mother, and that two of the grounds had been proven as to the father. The father’s appeal only concerns the ground that he failed to achieve personal rehabilitation within the terms of the statute. The mother’s appeal concerns all three grounds alleged by DCYS and found by the court.

The claims of error of the parents are basically the same, although the facts as to each differ. Both parents claim that the trial court erred in failing to make written findings as required by General Statutes (Rev. to 1983) § 17-43a (b), as amended by Public Acts 1983, No. 83-387, and in considering the suitability and circumstances of prospective adoptive parents. Other issues raised by the parents merge into the main issue of whether any one of the statutory grounds of General Statutes (Rev. to 1981) § 17-43a (a), as amended by Public Acts 1982, No. 82-202, were proven by clear and convincing evidence.

The minor child, through her counsel, claims that the concept of rehabilitation as delineated in General Statutes (Rev. to 1981) § 17-43a (a) (2), as amended by Public Acts 1982, No. 82-202, is an inappropriate consideration in this case, and that it was error to terminate parental rights on the basis of that concept. Her other claims of error are similar to those made by one or both of the parents.

The child of the parties was placed in foster care in July of 1981, when her parents agreed to a ninety day voluntary placement with DCYS. In March of 1982, the parents agreed to a finding that she was neglected and she was committed to the custody of DCYS. In June, 1982, the parents were instructed as to the expectations of the court. The petition to terminate parental rights was filed on December 22, 1982, and the hearing on that petition was held on October 17, 1983.

The dates are relevant because of the differing views of the parties as to the applicable statutory standards which governed the trial of this case. The father and counsel for the child contend that the criterion of the best interest of the child is not involved in the termination of the parents’ rights, whereas DCYS and the mother contend and admit, respectively, that the best interest of the child is involved.

The grounds for termination of parental rights, as enumerated in General Statutes (Rev. to 1981) §17-43a(a), as amended by Public Acts 1982, No. 82-202, and as alleged in the petition, were amended between the date of the petition and the date of the trial. See Public Acts 1983, No. 83-478. The amendment was effective October 1, 1983. If the amendment were to be the statutory test for the termination of parental rights, the best interest of the child would be a significant factor in a termination of parental rights case. See 26 H. R. Proc., Pt. 17, 1983 Sess., pp. 6111, 6114, remarks of Representative Alfred J. Onorato. The amendment added another statutory ingredient by providing that the Superior Court, after hearing and notice, may grant a petition if it finds that termination is in the best interest of the child. If the best interest of the child is a factor to be proven by clear and convincing evidence, in addition to the statutory grounds listed, then evidence as to the suitability and availability of adoptive parents would be relevant in a termination proceeding, and also relevant to a determination of whether there is a statutory ongoing parent-child relationship, as interpreted by Connecticut Supreme Court cases. See 26 H. R. Proc., Pt. 24, 1983 Sess., pp. 8673-74, remarks of Representative Antonina B. Parker.

Another substantive change made by the amendment involves the statutory standard for the failure to achieve personal rehabilitation. Prior to the amendment, DCYS had to prove that a parent failed to achieve “any such degree of personal rehabilitation as would reasonably encourage the belief that at some future date they could assume a responsible position in their child’s life.” (Emphasis added.) General Statutes (Rev. to 1981) § 17-43a (a) (2). After the amendment, DCYS had to prove that a parent “failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child.” (Emphasis added.) Public Acts 1983, No. 83-478. Putting aside the statutory differences between “any such” and “such” or “reasonably encourage” as opposed to “encourage,” the amendment makes two major changes. “At some future date” is quite another test than “within a reasonable time.” See In re Juvenile Appeal (84-3), 1 Conn. App. 463, 477, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). The amendment also adds that the age and needs of the child must be considered, factors not previously listed in the statute.

The initial question to be determined on appeal, before the trial court’s conclusions may be tested by examining the reliable evidence to support those conclusions, is whether the hearing should have been governed by the law existing as of the date of the petition, or by the law as it existed as of the date of the trial.

General Statutes § 1-1 (u) provides the general rule as to the applicability of amended or repealed statutes. “The passage or repeal of an act shall not affect any action then pending.” Id. Case law follows the words of the statute and makes it clear that statutes affecting the substantive rights of parties do not affect pending actions unless a contrary legislative intent is expressed. Hunter v. Hunter, 177 Conn. 327, 332, 416 A.2d 1201 (1979); New Haven v. Public Utilities Commission, 165 Conn. 687, 726, 345 A.2d 563 (1974); Little v. Ives, 158 Conn. 452, 455, 262 A.2d 174 (1969).

Although the issue of whether parental rights should have been terminated is to be decided by a trial court on the basis of conditions existing at the time of trial; In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983); there is no legislative or decisional mandate allowing a trial court to decide that issue on the basis of statutes existing at the time of trial, but not in effect when the termination petition was filed. The mandates are to the contrary. Parents have a constitutionally protected right to raise and care for their children and that protection cannot be diluted by the use of statutory standards enacted subsequent to a petition to terminate that right, absent a counter legislative directive. See In re Laura F., 33 Cal. 3d 826, 662 P.2d 922, 191 Cal. Rptr. 464 (1983); Matter of Myers, 417 N.E.2d 926 (Ind. App. 1981). The trial court in this case, in its memorandum of decision, reiterated the grounds for termination as they existed as of the date of the petition, concluded that the termination of parental rights was in the best interest of the child, and ordered DCYS to implement the planned adoption of the child by her foster parents, “if and whenever said step is practicable.”

Since the legislature did not except pending actions when it amended the statute, the appellate review of this case is limited to a review of whether the trial court’s conclusion to terminate parental rights of both parents can stand based on General Statutes (Rev. to 1981) § 17-43a (a), as amended by Public Acts 1982, No. 82-202, and as it existed as of the date of the petition.

Many of the relevant facts involved in this case are not in dispute. The minor child has serious medical problems, consisting of renal failure, seizure disorder, left ventricular disorder and hypertension. She was born in 1975 and resided with her parents until she was approximately four years old when it was learned that she suffers from a chronic kidney disease requiring a lifelong vigorous regimen of medication, diet control and physical care. After a hospitalization in 1979, her parents separated and she was cared for by an uncle for about seven months, and then by her mother and father who had reunited. She was hospitalized five times between May of 1979 and July of 1981 while in the care of her mother, father, or uncle, due to improper diet or inappropriate administration of medication. Her parents had minimal educations in Puerto Rico, and have marginal or nonexistent skills in reading, writing or speaking English. The parents are now divorced. The mother has custody of another child of the marriage, and the father has custody of three children, including the child involved in this appeal.

Two years after the diagnosis of her medical problems, the minor child was voluntarily placed in foster care by her father. Subsequently, pursuant to a petition and hearing thereon, but with the acquiescence of both parents, she was committed to DCYS as a neglected and uncared for child. That commitment contained the seeds for the present claim of DCYS that the parents have failed to become personally rehabilitated within the terms of General Statutes (Rev. to 1981) § 17-43a (a) (2), as amended by Public Acts 1982, No. 82-202. A subsequent judicial review of the commitment order instructed the parents as to the court’s expectations which would need fulfillment before the commitment would be revoked. These were that they would keep appointments with DCYS, would visit the child as often as possible, would participate in counselling at Yale Renal Clinic and would procure adequate housing.

It is apparent from a reading of the transcript, and admitted by all parties, that the care of the child is tantamount to paramedical care, and requires several hours of time each day. At the time of the hearing on the petition to terminate parental rights, she needed six types of medication, administered at various times during the day, was receiving a weekly blood transfusion, required three medical appointments per week, and was severely restricted in her diet. During the time of foster placement, the father drove, on a consistent biweekly basis to her foster home, taking her some thirty miles distant to his home, and then returning her six to seven hours later. The mother cannot drive, and the father brings the child to visit with her mother on almost every occasion of his visits with the child. The parents live in Meriden, the foster parents in Woodmont and the Yale Renal Clinic is located in New Haven. Bilingual instruction is not always available at the Yale Clinic. The father had held the same factory job for seven years at the time of the hearing, works a shift until midnight, works every other weekend and earns $200 per week. The mother does not work and receives state aid.

I

The only ground for termination of the parental rights of the father which needs to be considered on appeal is whether the trial court erred in finding by clear and convincing evidence that under the provisions of General Statutes (Rev. to 1981) § 17-43a (a) (2), as amended by Public Acts 1982, No. 82-202, he failed to achieve personal rehabilitation. The statute as it read as of the time of the filing of the petition by DCYS required proof of a failure “to achieve any such degree of personal rehabilitation as would reasonably encourage the belief that at some future date [the parent] could assume a responsible position in [the] child’s life.” (Emphasis added.) This section is but one of three grounds upon which the mother’s parental rights could be terminated. The discussion of this section of the statute applies to both parents.

Since termination of parental rights is the ultimate interference by the state with the natural rights of parents in their children, resulting in an everlasting severance of the legal relationship, and usually the permanent separation of parent and child as well, courts must require strict adherence to the statutory standards. See In re Juvenile Appeal (Anonymous), 181 Conn. 638, 640, 436 A.2d 290 (1980); In re Juvenile Appeal (Anonymous), 177 Conn. 648, 671, 420 A.2d 875 (1979).

“Personal rehabilitation” as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. The unamended statute sets no particular time limit as to when a parent must be able to assume again a responsible position in the life of his or her child. In re Juvenile Appeal (84-3), supra. Nor does it require the parent to be able to assume full responsibility for a child, without the use of available support programs. Id. In this case, the behavior modification sought by the state was that the parents keep appointments with DCYS, visit the child as often as possible, participate in counselling at a renal clinic and procure adequate housing.

The trial court found that in 1981, prior to the child’s commitment to DCYS, the mother did not attend bilingual clinical instruction sessions arranged for her at Yale New Haven Hospital and did not keep appointments for tissue typing to evaluate the possibility of a kidney donor. These delicts, however, occurred before the child was committed to DCYS as uncared for, and before the committing court stated its expectations of the parents’ role in the care of the child. A review of the transcript reveals that there was no evidence as to whether or not the mother kept appointments for tissue typing, and no evidence that any appointments were made for her to attend bilingual clinical instructions. There was evidence, however, that she attended such instructional sessions only once or twice. There was no evidence as to whether the mother had kept appointments with DCYS, although there was evidence that an employee of DCYS had visited her home. That same employee testified that the mother’s two bedroom apartment was inadequate to house the child, another child, the mother and her boyfriend. Additional testimony was that the apartment was clean and well-furnished.

The trial court found that as of the date of the termination hearing the father had not engaged in the requisite counselling and did not have adequate housing, and further found that the mother had not complied with any of the instructions contained in the commitment order of 1982. The evidence was, however, that the father had engaged in counselling. A social worker for DCYS testified that his housing was inadequate because his apartment contained only one bedroom, and another daughter was living with him, in addition to a female friend. “Adequate housing” was never defined for the parties by DCYS or by the committing court in its statement of expectations regarding parental rehabilitation.

The father’s testimony indicated that as of the date of the hearing, although not at the time of her commitment, he generally knew what medication his daughter should take and what food she should not eat. His testimony on that point may be summarized by his statement that “[n]ow that I know how to give her the medication I don’t have the girl.”

At the termination hearing, a pediatric nephrologist testified that neither parent has an understanding of their daughter’s medical problems or how to care for her, although he also testified that he had no contact with the mother after July, 1981, and sporadic contact after that with the father. A psychiatrist testified that the child had a good relationship with both her natural and foster parents but that her “best interest” was with the foster parents.

A thorough review of the transcript indicates that both parents love their child, have never been physically abusive to the child, and have never engaged in any deliberate act to harm the child. Their parental limitations lie in their inability to care for a seriously ill child. It is possible that during the minority of their child they may never be able to “rehabilitate” themselves in the sense that they will be able to care for the child all by themselves. They can never be restored to the parents they were before the child became so seriously ill. It is the child’s health problems, not some personal deficiency of theirs, which caused the original commitment. The wealthy parent who cannot give daily arduous care to a severely physically handicapped child obtains the care necessary by paying for it. The affluent parent does not have his parental rights terminated because of an inability to learn how to care full time for a physically dependent child. The low income parent who cannot cope with the daily care of such a child should be put in no different position as far as concerns the termination of his or her parental rights.

Neither parent seeks to revoke the child’s commitment to DCYS and neither seeks to remove their daughter from the home of the foster parents, both recognizing the outstanding ability of the foster parents to provide their daughter with proper medical supervision.

General Statutes (Rev. to 1981) § 17-43a (a) (2), as amended by Public Acts 1982, No. 82-202, does not provide that in order to achieve personal rehabilitation a parent must meet the expectations of a court as ordered pursuant to a commitment hearing. See In re Juvenile Appeal (Docket No. 10718), 188 Conn. 259, 263 n.4, 449 A.2d 165 (1982). The underlying cause for commitment was the inability of the parents to provide physical care on a daily basis for a child with a life-threatening disease. The expectations of the court as to the rehabilitation required of them related to this inability. Even if there were a failure of rehabilitation because they did not comply with all of the expectations, that failure could not be converted into a belief that neither could, at some future date, assume a responsible position in the child’s life. Nor does the statute define the degree of personal rehabilitation required or the meaning of a “responsible position in the life of the child.” “A responsible position” is not necessarily the same thing as a full time caretaker. The mother was not a full time caretaker even prior to the termination of her parental rights since the legal custody of the child had been awarded to the father, incident to a judgment of dissolution of their marriage. The statute does not require that a parent must either assume a full time responsibility for a child’s care, or suffer a termination of parental rights. The sole reason for the trial court’s conclusion that parental rights should be terminated for a failure to achieve personal rehabilitation was the failure of the parents to comply with the expectations of the court which committed the child to DCYS. The trial court was presented with an extraordinary factual dilemma due to the severity of the child’s physical condition.

DCYS, however, did not prove by clear and convincing evidence that all of the expectations of the committing court were unfulfilled as to either parent. This, coupled with the lack of clarity as to some of those expectations, and the use of the expectations as the sole standard for the trial court’s conclusion that parental rights should be terminated pursuant to General Statutes (Rev. to 1981) § 17-43a (a) (2), as amended by Public Acts 1982, No. 82-202, leads us to a determination that the trial court was clearly erroneous in its conclusion.

If the statutory standard for termination of parental rights included the best interest of the child and required personal rehabilitation to occur within a reasonable time, considering the age and needs of the child, as it now does, a different result might be warranted in this case. Jurisdictions with statutes requiring proof that a termination of parental rights is in the best interest of the child have usually found termination to be appropriate if a parent has failed over an extended period of time to adjust his or her behavior to provide for the physical needs of a seriously ill or handicapped child. See Thompson v. Arkansas Social Services, 669 S.W.2d 878 (Ark. 1984), appeal dismissed, 469 U.S. 926, 105 S. Ct. 316, 83 L. Ed. 2d 254 (1984); In re Laura F., supra; People in the Interest of V.A.E.Y.H.D., 199 Colo. 148, 605 P.2d 916 (1980); Matter of Welfare of P.J.K., 369 N.W.2d 286 (Minn. 1985). If, however, the parents of a child with developmental disabilities have parenting limitations but love their child, consistently express an interest in the child’s welfare, and periodically visit with the child committed to foster care, parental rights should not be terminated unless the effect on the child is detrimental, since the situation affords the child both the consistency of foster parenting and the relationship with natural parents. See In re R.S., 167 Cal. App. 3d 946, 213 Cal. Rptr. 690 (1985); In re Michael G., 147 Cal. App. 3d 56, 194 Cal. Rptr. 745 (1983). Since no other grounds of General Statutes (Rev. to 1981) § 17-43a (a), as amended by Public Acts 1982, No. 82-202, form the basis for a termination of the father’s parental rights, the petition to terminate the father’s parental rights should have been denied. Nor can the termination of the mother’s parental rights be sustained on this ground.

II

Since DCYS need only prove one of the grounds of General Statutes (Rev. to 1981) § 17-43a (a), as amended by Public Acts 1982, No. 82-202, in order to terminate parental rights, it is necessary to examine the trial court’s findings as to the other grounds upon which it terminated the mother’s rights.

General Statutes (Rev. to 1981) § 17-43a (a) (1), as amended by Public Acts 1982, No. 82-202, provides that a petition for termination of parental rights may be granted if the court finds “upon clear and convincing evidence,” that a parent has “abandoned the child in the sense that [the parent has] failed to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare.”

Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of “interest, concern or responsibility” for the welfare of a child. In re Luke G., 40 Conn. Sup. 316, 323, 498 A.2d 1054 (1985). Where a parent fails to visit a child, fails to display any love or affection for the child, has no personal interaction with the child, and no concern for the child’s welfare, statutory abandonment has occurred. In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 438 A.2d 801 (1981).

The trial court found a number of facts relating to the mother, without separating which of them related to which ground for termination. These facts, not all of which relate to abandonment, are as follows. In 1980, the mother “abandoned her family,” and had no contact with the child for one year until 1981, when she was reunited with her husband and child. The mother has not visited the child as often as possible, the mother “cannot or perhaps does not care to try to understand” the child’s needs, the child enjoys seeing her mother, the mother does not call or visit the child, the father takes the child to visit the mother when he has the child, if “she asks him to,” the mother had schooling to the fourth grade and does not understand her daughter’s medical problems, “has never attended the clinics and appears not to really care, and obviously cannot care for the child,” the mother feels the foster parents are better able to care for her child, and she “cannot and appears not to want to have the burden of this child’s care thrust upon her.”

There is no evidence to support the finding that the mother had no contact with the child for one year. The only evidence is that she went to Puerto Rico in 1980, for no more than two and one half weeks upon leaving her family. The record is silent as to whether she had any contact with her daughter upon her return while her child was living with her brother-in-law.

Most of the court’s findings relate to the inability of the mother to care for the child. The mother admits she cannot care for the child. An inability to give the exceptional care required by this child’s medical condition is not equivalent to the failure to maintain a reasonable degree of interest, concern or responsibility for the child. The transcript reveals that the mother is sorrowful and concerned about her separation from her daughter, and usually sees her on a bi-weekly basis, although admittedly not at the home of the foster parents since she has no car. She displays love and affection for the child, does have personal interaction with her, and expresses a concern for her welfare. The belief that the foster parents are better able to care for her daughter is not necessarily an indication that she has statutorily abandoned her child, but may be an indication that she places her daughter’s health above her own desire to be with her daughter on a daily basis. The temporary leaving of her family in 1980 is not a sufficient basis to find a failure to maintain a reasonable degree of interest, concern or responsibility for the welfare of the child.

“Maintain” implies a continuing, reasonable degree of concern. No fact indicates that she failed to maintain her parental relationship with her daughter. A failure to telephone the child or to travel thirty miles to visit with her when the mother has neither a telephone or a car is not a ground for finding abandonment. If that were so, parents who become noncustodial parents following a dissolution of marriage would be subject to having their parental rights terminated on the ground of abandonment.

It was clearly erroneous for the trial court to find that the mother had abandoned her child within the terms of General Statutes (Rev. to 1981) § 17-43a (a) (1), as amended by Public Acts 1982, No. 82-202.

Ill

The trial court also found that the mother’s parental rights should be terminated pursuant to General Statutes (Rev. to 1981) § 17-43a (a) (4), as amended by Public Acts 1982, No. 82-202. This section requires that there be “no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child.” Under this section, prior to the 1983 amendment, the court must first make a determination that no parent-child relationship exists and then, if that is so, it must determine if, in the future, the child’s best interest would not be served by allowing time for the establishment or reestablishment of the relationship. In re Juvenile Appeal (84-3), supra; In re Juvenile Appeal (Anonymous), 177 Conn. 648, 420 A.2d 875 (1979); see note, “The ‘Two-Pronged’ Inquiry — The Best Alternative for the Conflicting Rights Involved in Proceedings for Termination of Parental Rights,” 13 Conn. L. Rev. 709 (1981).

The court found no facts, relating to this statutory ground other than as previously stated. The question is whether they substantiate a finding by clear and convincing evidence that no relationship ever existed between the parent and child, or that the relationship has terminated, without any future hope for its establishment or reestablishment. In re Juvenile Appeal (84-3), supra; In re Juvenile Appeal (Anonymous), 177 Conn. 648, 670-71, 420 A.2d 875 (1979).

The facts here are that the mother has maintained contact with her daughter, the child recognizes her as the natural mother, and is happy to see her. The child, therefore, does have present memories and feelings for her natural parent. In re Juvenile Appeal (Anonymous), 181 Conn. 638, 436 A.2d 290 (1980). A present ongoing relationship exists. Although there was evidence as to the suitability of the foster parents as adoptive parents which is relevant to the child’s best interest, such evidence only becomes relevant to whether parental rights should be terminated if there is no ongoing parent-child relationship. In re Juvenile Appeal (84-3), supra. It was clearly erroneous to terminate the mother’s parental rights under General Statutes § 17-43a (a) (4), as amended by Public Acts 1982, No. 82-202, as it existed as of the date of the petition brought by DCYS. If the statute as amended by Public Acts 1983, No. 83-478, were the governing statute, the result might well be different.

There is error, the judgments are vacated and the cases are remanded with direction to render judgments for the respondents.

In this opinion thé other judges concurred.

       The appeals were combined upon motion of the appellants.

       The grounds alleged in the petition for termination of parental rights are now embodied in General Statutes § 17-43a (b). All statutory references in this opinion, unless otherwise noted, are to General Statutes (Rev. to 1981) § 17-43a (a), as amended by Public Acts 1982, No. 82-202, as it existed on December 22, 1982, the date of the petition.

       DCYS withdrew its allegation of statutory abandonment by the father just prior to trial. During oral argument, counsel for DCYS conceded that the trial court erred in finding by clear and convincing evidence that there was no ongoing parent-child relationship between the father and the child.

       The trial court’s memorandum of decision does not make specific findings of fact for each parent as to each ground for termination of parental rights but lumps all the facts found together, and then states conclusions as to the grounds for termination. As of December 22, 1982, the date of the petition, there was no statutory requirement for written findings. Public Acts 1983, No. 83-387, effective October 1, 1983, amended General Statutes (Rev. to 1983) § 17-43a (b) to require written findings. The requirement of written findings is now embodied in General Statutes § 17-43a (d). A requirement of written findings does not affect the substantive rights of the parties. The memorandum of decision, coupled with the court’s further articulation, was a sufficient compliance with the requirement of written findings.

       Although this claim is made in the brief of the child’s counsel, during summation in the trial court, counsel stated that the natural parents of the child, by clear and convincing evidence, “are not able to be rehabilitated.”

       The judicial severance of the issues of whether a termination of parental rights is statutorily warranted and whether a proposed adoption is desirable, as required in cases such as In re Juvenile Appeal (Anonymous), 181 Conn. 638, 645, 436 A.2d 290 (1980), has been weakened by the amendment, as have cases such as In re Juvenile Appeal (Anonymous), 177 Conn. 648, 420 A.2d 875 (1979), which eschew the test of the best interest of the child in parental rights termination cases.

       During the pendency of this appeal, the child received a kidney transplant. The medical testimony at the trial was that, even with a transplant, she will need medication and a special diet for the rest of her life.

       The decision that the father’s rights should not have been terminated virtually eliminates any possibility that the child is adoptable. See In re Theresa S., 196 Conn. 18, 31, 491 A.2d 355 (1985). The claim of error that the trial court considered the suitability and circumstances of potential adoptive parents is thereby rendered moot.


author: Hull, J.

text:
    The R.A. Civitello Company v. City of New Haven
    (3310)
    Hull, Daly and Bieluch, Js.

      Argued November 13, 1985
    decision released February 11, 1986

      Charles G. Albom, corporation counsel, with whom, on the brief, was Carolyn W. Kone, assistant corporation counsel, for the appellant (named defendant).

      Robert B. Cohen, with whom, on the brief, were Jacob H. Channin and Susanne Gordon, for the appellee (third party defendant Edward Larrabee Barnes).

      William F. Gallagher, with whom, on the brief, were Robert J. Gillooly and Elizabeth A. Gallagher, for the appellee (third party defendant Spiegel & Zamecnik, Inc.).

      Vincent M. DeAngelo, with whom were Louis B. Blumenfeld, LorindaS. Coon, and, on the brief, Eugene S. Cooney, for the appellee (third party defendant Van Zelm, Heywood & Shadford, Inc.).
   Hull, J.

This is an appeal from the rendering of summary judgment for three third party defendants on third party complaints brought by the defendant city of New Haven.

The R.A. Civitello Company, a construction contractor, brought suit against the city of New Haven in December, 1977, claiming damages arising out of a 1972 contract between the parties for the construction of a public school in the city. Civitello alleged that the city had caused lengthy delays in its performance of the contract work and as a result it had suffered damages. The city denied the allegations in this underlying action and later brought the three third party actions involved in this case. These actions were initiated as follows: (1) against Edward Larrabee Barnes, the architect hired by the city; (2) against Spiegel and Zamecnik, Inc., the structural engineering company retained by Barnes; and (3) against Van Zelm, Heywood and Shadford, Inc., the mechanical engineering company retained by Barnes.

In its third party actions, the city claimed breach of contract and negligence against Barnes, and negligence against the others. Each third party defendant filed a motion for summary judgment on the ground that the city's negligence claim was barred by the three year statute of limitations contained in General Statutes § 52-584. Barnes made the additional claim that the contract action against him was barred by the six year statute of limitations contained in General Statutes § 52-576. The city also moved for partial summary judgment against the three third party defendants on their respective special defenses of statute of limitations on the ground that such special defense was barred by the doctrine of governmental immunity. The parties agreed in the trial court, and on appeal, that all acts giving rise to the city’s claims against the third party defendants occurred before September 1,1974, so that, if the three year statute of limitations; General Statutes § 52-584; applied, the city’s claims against the third party defendants would be barred, and, if the six year statute; General Statutes § 52-576; applied, the contract claim against Barnes would be barred. It was also agreed that if the seven year statute of limitations covering architects and engineers; General Statutes § 52-584a; applied, the city’s claims would not be barred.

The trial court thus considered two clear cut issues: (1) whether the city of New Haven was vested with governmental immunity so that the city was immune from a statute of limitations running against it; and (2) if the city was not so immune, what statute of limitations applied to the city’s third party claims against the three third party defendants.

The court granted the third party defendants’ motions for summary judgment. It held that the rights asserted by the city were proprietary rights and, consequently, that the city was not immune from the defense of statute of limitations. The court further held that subsection (d) of General Statutes § 52-584a prevented the seven year limitation from being operative. The court reasoned that to hold otherwise would extend the three year and six year time periods, running from the accrual of causes of action, to a seven year time period, running from substantial completion of performance. Such a decision, the court stated, would be contrary to subsection (d). Thus, the court concluded that the city’s negligence and contract actions were barred by General Statutes §§ 52-584 and 52-576 and rendered summary judgment for the third party defendants. The court thereafter rendered judgment for the third party defendants and against the city in the third party actions.

The city, as third party plaintiff, appeals from the judgment rendered against it and raises the two issues considered below: (1) whether the court erred in granting summary judgment to the third party defendants and in ruling that the city, in hiring an architect or structural engineer in connection with the construction of a public school building, was engaged in a proprietary function and not a governmental function, and was therefore bound by the ordinary statutes of limitations governing negligence and contract actions respectively; and (2) whether the court erred in concluding that § 52-584a, which expressly allows actions against architects and engineers for their work to be brought within seven years after substantial completion of that work, did not supersede the general three and six year statutes of limitations applicable to tort and contract actions which run after a cause of action accrues and therefore erred in granting summary judgment against the city.

I

Whether the City Was Immune from the Special Defense of Statute of Limitations

“The Connecticut Supreme Court has repeatedly stated that, as respects public rights, ‘a subdivision of the state, acting within its delegated governmental capacity, is not impliedly bound by the ordinary statute of limitations.’ State v. Goldfarb, 160 Conn. 320, 326, 278 A.2d 818 (1971); New Haven v. Torrington, 132 Conn. 194, 204, 43 A.2d 455 (1945); Bridgeport v. Schwarz Bros. Co., 131 Conn. 50, 54, 37 A.2d 693 (1944).” (Emphasis added.) Department of Transportation v. Canevari, 37 Conn. Sup. 899, 900-901, 442 A.2d 1358 (1982). The distinction between governmental and nongovernmental functions was clearly stated in Winchester v. Cox, 129 Conn. 106, 109, 26 A.2d 592 (1942): “The functions of a municipal corporation fall into two classes, those of a governmental nature, where it acts merely as the agent or representative of the state in carrying out its public purposes, and those of a proprietary nature, where it carries on activities for the particular benefit of its inhabitants.” (Citations omitted.)

Although this case involves the city itself rather than its board of education, the reasoning of the court in Board of Education v. Dow Chemical Co., 40 Conn. Sup. 141, 142-43, 482 A.2d 1226 (1984), concerning sovereign immunity, is instructive. “The protections offered by the doctrine of sovereign immunity have been extended to agents of the state acting in its behalf. Cahill v. Board of Education, 187 Conn. 94, 101, 444 A.2d 907 (1982). A board of education is an agency of the state in charge of education in a town. Murphy v. Berlin Board of Education, 167 Conn. 368, 372, 355 A.2d 265 (1974). Local boards of education are not agents of the state, however, in performing each and every mandated function. Cheshire v. McKenney, 182 Conn. 253, 257, 438 A.2d 88 (1980). Local boards of education act as agents of the state when fulfilling the statutory duties imposed upon them by the legislature in light of the state constitutional mandate to furnish public education. Cheshire v. McKenney, supra, 257-58. Local boards of education also are agents of the towns, subject to the law governing municipalities, when acting on behalf of the municipality in its function of mandating control over the public schools within the municipality’s limits. Id., 258-59; Cahill v. Board of Education, supra, 101-102; see General Statutes §§ 10-220, 10-240.

“In determining whether a local school board is afforded the protections consistent with the doctrine of sovereign immunity, the courts look to whether the suit would operate to control or interfere with the activities of the state. Cahill v. Board of Education, supra, 102; Lostumbo v. Board of Education, 36 Conn. Sup. 293, 295, 418 A.2d 949 (1980). The maintenance of school property is not encompassed within the educational activities of the state. Lostumbo v. Board of Education, supra, 294-95. The funding source for such building and maintenance is primarily a local responsibility. Id. We conclude that a local school board acting to recover damages arising from the construction of the physical plant of a school building is not acting as a state agent and, therefore, would not be entitled to employ the doctrine of sovereign immunity as a shield from the defense of the statute of limitations.” Board of Education v. Dow Chemical Co., supra, 142-43.

The Supreme Court further articulated the appropriate test as follows. “[A] local board of education is bound by and may sue or be sued on contracts in the same manner as municipal corporations. 17 McQuillin, Municipal Corporations (3d Ed. 1968 Rev.) § 49.60, p. 310; 1A Antieau, Municipal Corporation Law (1982) § 10.08; see Light v. Board of Education, 170 Conn. 35, 41, 364 A.2d 229 (1975); Milford Education Assn. v. Board of Education, 167 Conn. 513, 520, 356 A.2d 109 (1975); Waterbury Teachers Assn. v. Board of Education, 162 Conn. 390, 416, 294 A.2d 546 (1972). A breach of contract between a local board of education and its employees does not give rise to a conclusion that such an action would operate to control the activities of the state or subject it to liability. Employment contracts in such circumstances remain primarily the function of the local communities, and any damages resulting from a breach of these contracts would be paid by the community, not the state. Mt. Healthy School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); Lostumbo v. Board of Education, 36 Conn. Sup. 293, 296, 418 A.2d 949 (1980); cf. Somers v. Hill, 143 Conn. 476, 479-80, 123 A.2d 468 (1956). Sovereign immunity is therefore inapplicable in this case.” Cahill v. Board of Education, supra, 102.

The factors to consider in making the final determination of whether the municipality is acting within a governmental capacity so as to allow it to invoke the doctrine of sovereign immunity are well stated in Lostumbo v. Board of Education, supra. “The court must determine whether, in fact, the state is the real party in interest by examining ‘the essential nature and effect of the proceeding’ and whether a judgment would ‘operate to control the activities of the state or subject it to liability. . . . ’ Somers v. Hill, [supra, 479-80]. The alleged tortious conduct of a local board in these circumstances has no bearing on the state’s activities. In addition, funding education, although increasingly regulated by the state, remains primarily the function of the towns. Any judgment to be paid would come from local coffers. The town, not the state, would be the real party against whom relief would be sought.” (Footnote omitted.) Lostumbo v. Board of Education, supra, 295-96.

Board of Education v. Dow Chemical Co., supra, is very similar to this case. In that case, a school board sought to recover for damages to the roofs of two schools allegedly caused by the use of the defendant’s insulation product. The court denied the plaintiff’s motion to strike the defendant’s special defense of statute of limitations. In so doing, the court reasoned that “a local school board acting to recover damages arising from the construction of the physical plant of a school building is not acting as a state agent and, therefore, would not be entitled to employ the doctrine of sovereign immunity as a shield from the defense of the statute of limitations.” Board of Education v. Dow Chemical Co., supra, 143.

The trial court in this case, relying on New Haven v. Torrington, 132 Conn. 194, 204, 43 A.2d 155 (1945), held that Connecticut has extended immunity from a statute of limitations defense to municipalities when suing to vindicate “public or governmental rights as opposed to private or proprietary rights.” The court was correct. A public right is one with statewide implications affecting all of the people of the state, as opposed to one in which only the inhabitants of a particular political subdivision are interested. Spitzer v. Waterbury, 113 Conn. 84, 87, 154 A.2d 157 (1931); Board of County Commissioners v. Willett, 49 Okla. 254, 152 P. 365 (1915); 51 Am. Jur. 2d, Limitation of Actions § 412. This distinction is critical, for “[i]n a sense, every right possessed by a municipal corporation is a public right, and every class of property held by it is held in its public capacity, and for public use, but for the purpose of distinguishing such rights, as only that part of the public included within the corporate limits of a municipality are interested in, from such rights in which all the people in the State are interested, the former class is designated by law writers and courts as ‘private rights/ and the terms ‘public rights,’ ‘public uses’ and ‘public capacity’ are used only with reference to such rights, uses and capacities, as all the people of the state are alike interested in.” Chicago v. C. & N.W. Ry. Co., 163 Ill. App. 251, 254 (1911).

Applying this narrow definition here, it is clear that the city’s contract and negligence claims against the third party defendants concern “private rights” and not rights in which all people of the state are interested. Although the state supplies substantial financial support to the building of public schools, the construction of a public school by the city in this case is clearly a local function. The ultimate and total responsibility under the school construction contracts involved here vests with the city.

The court did not err in concluding that the umbrella of governmental immunity did not cover the city from the special defense of statute of limitations.

II

Which Statute of Limitations Applies

The city argues that General Statutes § 52-584a operates to extend to seven years the time during which an action may be brought to recover damages for delicts of an architect or professional engineer. In rejecting this claim, the trial court held that this interpretation ignores the effect of General Statutes § 52-584a (d) which provides: “Nothing in this section shall be construed to extend the period prescribed by the laws of this state for the bringing of any action.” It concluded that this proviso indicates that General Statutes § 52-584a must be superimposed on existing statutes of limitations.

In considering the city’s claims, we are guided by well known canons of statutory construction. “[Statutes should be construed so that no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment.” (Citation omitted.) Charlton Press, Inc. v. Sullivan, 153 Conn. 103, 109, 214 A.2d 354 (1965). In interpreting two separate acts, if this court “ ‘can by any fair interpretation find a reasonable field of operation for both statutes without destroying or perverting their evident meaning and intent, it is the duty of the courts to do so, thus reconciling them and according to them concurrent effect.’ ” (Citations omitted.) Waterbury Teachers Assn. v. Furlong, 162 Conn. 390, 404-405, 294 A.2d 546 (1972); Daley v. Liquor Control Commission, 166 Conn. 97, 101, 347 A.2d 69 (1974). State ex rel. Kennedy v. Frauwirth, 167 Conn. 165, 168, 355 A.2d 39 (1974); State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978).

It is also clear that “[w]here the meaning of a statute is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Its unequivocal meaning is not subject to modification by way of construction. Holmquist v. Manson, 168 Conn. 389, 393, 362 A.2d 971 (1975); Hurlbut v. Lemelin, 155 Conn. 68, 73, 230 A.2d 36 (1967); State v. Springer, 149 Conn. 244, 248, 178 A.2d 525 (1962).” Connecticut State Board of Labor Relations v. Board of Education, 177 Conn. 68, 73, 411 A.2d 28 (1979). Finally, if construction of a statute is necessary, “ ‘a court considers its legislative history, language, purpose and the circumstances surrounding its enactment. Delinks v. McGowan, 148 Conn. 614, 618, 173 A.2d 488; Cassidy v. Tait, 140 Conn. 156, 160, 98 A.2d 808.’ State v. Sober, 166 Conn. 81, 91n, 347 A.2d 61 [1974].” Winchester v. Connecticut State Board of Labor Relations, 175 Conn. 349, 356, 402 A.2d 332 (1978).

The city’s argument fails on all of these canons of statutory construction. In construing subsection (d) of General Statutes § 52-584a as part of the overall statute, the court made a cogent and logical conclusion. Any other interpretation would render subsection (d) meaningless. The city claims that subsection (d) was intended to make certain that this seven year statute would not be applied retroactively to any pending claim. Even under this argument, subsection (d) would become meaningless in a few years. Nor does this argument find support in the language of subsection (d). A close look at the provisions of § 52-584a supports the trial court’s view. That section states that, notwithstanding any provision of the general statutes, no “action or arbitration, whether in contract, in tort, or otherwise, . . . shall be brought . . . more than seven years after substantial completion of [the work].” (Emphasis added.) The use of the phrase “or otherwise” shows that the act was intended to act as a seven year outer limit for any and all types of claims that might be brought by court action or arbitration.

It may be argued that the fact that contract and tort actions are specifically mentioned in General Statutes § 52-584a evidences an intent that the new seven year statute be the statute of limitations for actions involving architects and engineers. This inference is rebutted, however, by the opening phrase of General Statutes § 52-584a which states “notwithstanding any provision of the General Statutes,” by the language of § 52-584a (d), and by the entire background of § 52-584a.

A review of the state of the law at the time General Statutes § 52-584a was passed is necessary to understand clearly the law’s intent of the new act. Two emerging trends in modern tort law, the fall of the privity barrier and the death of the “completed and accepted” rule, greatly increased architect’s and engineer’s potential liability. See 2 Restatement (Second), Torts § 385; Prosser, Torts § 104. Under the “completed and accepted” rule, the liability of a design professional or builder terminated when the improvement was finished and accepted by the owner. See Mann v. Leake & Nelson Co., 132 Conn. 251, 43 A.2d 461 (1945). In Coburn v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599 (1977), our Supreme Court eroded this rule by upholding a negligence action by a subsequent purchaser of a house against the defendant, who had furnished a defective septic system to the original purchaser of the house. In so doing, the court stated: “The revolution in the law of negligence which began with MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 [1916], and which resulted in recognition that privity was not a legitimate concern in negligence actions has finally produced the general rule ‘that the seller is liable for negligence in the manufacture or sale of any product which may reasonably be expected to be capable of inflicting substantial harm if it is defective.’ ” (Citation omitted.) Id., 574. The effect of these legal developments on architects and engineers was to extend their liability beyond the date of completion of an improvement to all foreseeable users. See, e.g., Laukkanen v. Jewel Tea Co., Inc., 78 Ill. App. 2d 153, 222 N.E.2d 584 (1966).

The American Institute of Architects, the National Society of Professional Engineers and the Associated General Contractors responded to these developments by endorsing a model act, and legislatures in some thirty states passed laws incorporating some of the provisions of the act. Cotter, “Limitation of Actions Statutes for Architects and Builders — Blueprints for Non-Action,” 18 Cath. U.L. Rev. 361 (1969). Commenting upon this type of legislation, Cotter, supra, 367-68, states that “statutes requiring actions to be brought only within the stated time period may explicitly stipulate that the enactment neither extends nor limits periods otherwise prescribed for commencement of any action, and thus expressly incorporate other provisions to govern the time period for bringing the action once the injury has occurred.” (Emphasis added.) It is clear, given this history, that the model act was drafted not to preempt existing statutes of limitations but to provide these professions additional protection.

Finally, were there any question of construction of subsection (d), the legislative history of General. Statutes § 52-584a supports the trial court’s conclusion. When General Statutes § 52-584a was enacted in 1969, there were two situations not covered by the general statutes of limitations contained in §§ 52-584 and 52-576: arbitration proceedings and actions based on negligent failure to warn. Arbitration proceedings, not being common law actions, are not subject to statutes which limit the time for bringing actions. Skidmore, Owings and Merrill v. Connecticut General Life Ins. Co., 25 Conn. Sup. 76, 197 A.2d 83 (1963). Therefore, General Statutes § 52-584a, since it especially includes arbitration, is the only limit on demands for arbitration involving architects and engineers. Secondly, under the negligence statute of limitations; General Statutes § 52-584; the Supreme Court held that “[b]ecause the negligent failure to warn is a continuing course of conduct, the statute of limitations does not begin to run until the course of conduct is completed. Prokolkin v. General Motors Corporation, 170 Conn. 289, 298, 365 A.2d 1180 (1976); Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957).” Cross v. Huttenlocher, 185 Conn. 390, 400, 440 A.2d 952 (1981). Under this theory, without General Statutes § 52-584a, the legal door would be open to a negligence action years after completion of construction or improvement, based upon a claimed breach by an architect or engineer of a continuing duty to warn of a defect.

The following remarks from the General Assembly also indicate the intent behind General Statutes § 52-584a. “Nothing in this act will be construed to extend the period of the statute of limitation in all other matters” (Emphasis added.) 13 S. Proc., Pt. 5, 1969 Sess., p. 2129. (Remarks of Senator Jackson.) Representative Stecker, in discussing the bill, stated as follows: “I think that architects and engineers are in a little bit of a peculiar situation, different than what most professions are in, in that as it now stands as the law now stands, not only are we responsible for a building for our lifetime but our estates are responsible for that building as well. To put it in very simple terms, if a person 60 years from now is going down a [flight of] stairs holding on to a handrail and the handrail fails, even if I’m long gone from this earth, that person would have recourse to sue my wife if she is still alive or my estate for the action I took perhaps 10 years ago.” 13 H.R. Proc., Pt. 8,1969 Sess., p. 3919. Representative O’Neill stated that “[t]he big problem that I think we have here with architects is, more than any other area, what happens to them upon retirement when they get out of the business of being an architect and they are no longer busy at their work. Under the present situation, they still must maintain insurance, liability insurance, for the rest of their lives, even though they are no longer practicing. They no longer have architectural income but they still must maintain a liability policy. This bill would allow them after the 7-year period to finally get out from under the burden and drop that policy. This is a great expense and unnecessary expense. From the analysis at the hearings we had, we found no buildings that caused trouble after 7 years. The architect is protected, the public is protected and I think it is time that we remove the very unfair burden that architects and engineers carry as a result of having no statute of limitations whatsoever to protect them.” 13 H.R. Proc., Pt. 8, 1969 Sess., p. 3920.

There is other authority rebutting the city’s claim concerning the interpretation of General Statutes § 52-584a. The Supreme Court of Tennessee faced the identical issue in Watts v. Putnam County, 525 S.W.2d 488 (Tenn. 1975). “These sections [Tenn. Code Ann. §§ 28-314 to 28-318] deal with actions to recover damages for any deficiency in the design, planning, supervision, observation of construction, construction of, or land surveying in connection with, an improvement to real property, for injury to property, real or personal, arising out of any such deficiency, or for injury to the person or for wrongful death arising out of such deficiency.

“Section 28-314 provides in substance that all such actions shall be brought within four years after substantial completion of the improvement. . . . Section 28-316, provides in substance that nothing in 28-314 to 28-318 shall be construed as extending the period or periods provided by the laws of Tennessee for the bringing of any action ....

“The four-year statute of limitations as imposed by § 28-314, is but an outer limit or ceiling. This is not a conventional statute of limitations. Sec. 28-316 makes it clear that these statutes do not extend the ‘period, or periods provided by the laws of Tennessee . . . for the bringing of any action.’ This wording effectively says that the limitations imposed by Sec. 28-304 (one-year personal injury) and 28-305 (three-year property damage) are applicable in a limited sense. Sec. 28-314 et seq. are simply superimposed upon existing statutes. Suits for personal injuries and for property damage must be brought within one and three years, respectively, from and after the date of injury or damage, or the date of such injury or damage was discovered or should have been discovered with reasonable care and diligence, subject to the ceiling imposed by Sec. 28-314 et seq. . . .

“These statutes may not be construed to extend any existing statute of limitation, but they must be construed to curtail and limit all other periods to the four-year period . . . . ” Id., 490-91.

We conclude, from all of the above, that § 52-584a was not intended to give more time than the contract and negligence statutes of limitation may give when applicable, as in the present case. The intent of the seven year statute, and its clear mandate, was to create a seven year absolute maximum on actions against architects and engineers, based upon the finite barrier of substantial completion, regardless of the nature of the claim, while leaving any other lesser limitations in effect.

The court was not in error in concluding that the third party plaintiff’s contract action against Barnes was barred by General Statutes § 52-576 and its negligence claims against all three third party defendants was barred by General Statutes § 52-584.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-584 provides in pertinent part: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .”

       General Statutes § 52-576 provides in pertinent part: “(a) No action ... on any contract in writing, shall be brought but within six years after the right of action accrues . . . .”

       Although the court did not specifically rule on the city’s counter motion for partial summary judgment, it impliedly denied that motion when it granted the motions filed by the third party defendants.

       The defendant Barnes contends that the city waived its right to claim immunity by not filing a motion to strike his statute of limitations defense. The defendants Spiegel and Van Zelm claim waiver by the city’s failure to plead immunity as a matter in avoidance of the statute of limitations. In response to defendant Barnes’ claim, the city contends that it was not required to file a motion to strike. In response to defendants Van Zelm and Spiegel, it argues that there is no waiver because the city’s complaint contained allegations constituting a claim of immunity and because the claim was fully litigated at trial.
      The third party defendants’ claims of waiver were not raised during the trial court’s consideration of the motions for summary judgment. Under these circumstances, we could decline to consider the matter further. Chaplin v. Balkus, 189 Conn. 445, 447, 456 A.2d 286 (1983). We note, however, that the issue of sovereign immunity was raised in the city’s brief before the trial court and was fully litigated. Thus, the normal rule of waiver cited in Marlin Rockwell Employees Credit Union v. Brown, 3 Conn. Cir. 569, 571, 221 A.2d 862 (1966), is inapplicable.

       The city, in its reply brief to Barnes’ brief, citing McEvoy v. Waterbury, 92 Conn. 664, 666, 104 A. 164 (1918), argued for the first time that the city’s indemnification claim, based upon a breach of contract by defendant Barnes, was timely filed because the statute of limitations does not begin to run until judgment against the plaintiff is rendered. Later, in reply to Spiegel’s arguments in its brief, which Spiegel was not entitled to make since no such claim was filed against it, the city restated its claim and argued that the period of limitations on a third party contract claim does not begin to run until the third party defendant is impleaded. We decline to consider this claim of error. “Claims of error by an appellant must be raised in his original brief; Practice Book § 3060F; so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant’s reply brief is to respond to the arguments and authority presented in the appellee’s brief, that function does not include raising an entirely new claim of error.” Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 403 n.6, 499 A.2d 64 (1985).

       General Statutes § 52-584a provides in pertinent part as follows: “(a) Notwithstanding any provision of the general statutes, no action or arbitration, whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of an improvement to real property; (B) for injury to property, real or personal, arising out of any such deficiency ... or (2) for contribution or indemnity which is brought as a result of any such claim for damages shall be brought against any architect or professional engineer performing or furnishing the design, planning, supervision or observation of construction or construction of such improvement more than seven years after substantial completion of such improvement. . . . (d) Nothing in this section shall be construed to extend the period prescribed by the laws of this state for the bringing of any action.”

       Several other jurisdictions have construed statutes similar to General Statutes § 52-584a and have concluded that such statutes establish an outer limit only. See Lee v. Fister, 413 F.2d 1286 (6th Cir. 1969) (Kentucky law);
        Federal Reserve Bank v. Wright, 392 F. Sup. 1126 (E.D. Va. 1975) (Virginia law); Grissom v. North American Aviation, Inc., 326 F. Sup. 465 (M.D. Fla. 1971) (Florida law); Benning Construction Co. v. Lakeshore Plaza Enterprises, 240 Ga. 426, 241 S.E.2d 184 (1977); R.L. Sanders Roofing Co. v. Miller, 153 Ga. App. 225, 264 S.E.2d 731 (1980); Landon v. William Bros. Concrete Co., 149 Ga. App. 699, 256 S.E.2d 99 (1979); Lamb v. Wedgewood South Corporation, 308 N.C. 419, 302 S.E.2d 868 (1983); O’Connor v. Abraham Altus, 67 N.J. 106, 335 A.2d 545 (1975); Misitis v. Steel City Piping Co., 441 Pa. 339, 272 A.2d 883 (1971); Virginia Military Institute v. King, 217 Va. 751, 232 S.E.2d 895 (1977).