author: LAVERY, C. J.

text:
    JOHN DOE ET AL.
      v. JONATHAN RAPOPORT ET AL.
    (AC 23125)
    Lavery, C. J., and Bishop and Hennessy, Js.

      Submitted on briefs September 19
    officially released November 4, 2003

      James J. Farrell, for the appellants (defendants).

      Joseph G. Walsh, for the appellee (plaintiffs).

       On April 26, 2001, the trial court granted the plaintiffs’ ex paite motion to use pseudonyms to protect the privacy of the minor plaintiffs, James Doe and Jeff Doe. The court also granted the plaintiffs’ ex parte motion to seal the court file.

   Opinion

LAVERY, C. J.

The defendants, Jonathan Rapoport, Haig Development, LLC, and Opus Management, Inc., appeal from the judgment of the trial court granting a prejudgment attachment in the amount of $1 million in favor of the plaintiffs, John Doe, Jane Doe, James Doe and Jeff Doe. On appeal, the defendants claim that (1) the court improperly found that the affidavit on which the court based its judgment was sufficient to establish probable cause under General Statutes § 52-278d, (2) the court improperly admitted into evidence a medical report pursuant to General Statutes § 52-174 (b) and (3) the plaintiffs failed to initiate a valid civil action. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendants’ appeal. On February 14, 2001, Rapoport pleaded guilty to three counts of risk of injury to a child in violation of General Statutes § 53-21 (2). The victims of Rapoport’s criminal actions were the minor plaintiffs, James Doe and Jeff Doe. Subsequent to Rapoport’s guilty plea, the plaintiffs filed an application for a prejudgment remedy seeking an attachment to secure the sum of $1 million against the property or assets of the defendants. On May 11, 2001, the defendants were served with the plaintiffs’ application for the attachment, accompanying documents, including an unsigned copy of the complaint, and an affidavit from John Doe in support of the application for the attachment.

The plaintiffs’ proposed twelve count complaint alleged various causes of action against Rapoport, including battery, assault and sexual contact with each of the minor plaintiffs. Count eleven alleged that Rapo-port had quitclaimed certain real property to Haig Development, LLC, with the “intent to hinder, delay or defraud creditors.” Count twelve alleged that the property transfer was made by Rapoport without his having received a reasonable equivalent value and that he either was insolvent at the time of the transfer or became insolvent as a result thereof. A hearing on the plaintiffs’ motion for the attachment was scheduled for May 21, 2001, and then rescheduled for June 12, 2001. Further delays ensued, and the hearing was again delayed. On July 20,2001, the plaintiffs served the defendants with the twelve count complaint. A hearing on the plaintiffs’ original application had not been rescheduled. The plaintiffs, therefore, filed a second application, which was served on the defendants on November 7, 2001. On November 15, 2001, the court granted the plaintiffs’ motion for default for the defendants’ failure to appear.

A hearing on the plaintiffs’ application was held on December 20, 2001. At that hearing, the court heard testimony from Jane Doe, and various documents were introduced into evidence. On May 14, 2002, the court issued its memorandum of decision. The court found that the affidavit that was submitted in support of the application was sufficient to establish probable cause to believe that it was likely that the plaintiffs would succeed on the merits. Accordingly, the court granted the plaintiffs’ application. This appeal followed.

I

The defendants first claim that the court improperly found that the affidavit on which the court based its decision was sufficient to establish probable cause under General Statutes § 52-278c. Specifically, the defendants argue that the affidavit contained no reference to any damages suffered by the plaintiffs and that the affidavit therefore could not support a finding of probable cause. We disagree.

We set forth the following legal principles that will aid in the resolution of that issue. “A hearing on an application for prejudgment remedy is not a full-scale trial on the merits of the plaintiffs’ claims . . . but rather concerns only whether and to what extent the plaintiff is entitled to have property of a defendant held in custody of the law pending final adjudication of the merits of the action. . . . Appellate review of the trial court’s decision is limited to whether it was clearly improper and whether the trial court’s conclusion was reasonable. ... In the absence of a procedural flaw in prejudgment remedy proceedings . . . appellate courts have only a limited role to play in reviewing a trial court’s broad discretion to deny or to grant a prejudgment remedy.” (Citations omitted; internal quotation marks omitted.) Soltesz v. Miller, 56 Conn. App. 114, 116, 741 A.2d 335 (1999).

“[A]n appellate court is entitled to presume that the trial court acted properly and considered all the evidence. . . . [Our role] is not to duplicate the trial court’s weighing process, but rather to determine whether its conclusion was reasonable. In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses. . . . Thus, this court’s review is limited to whether the trial court’s conclusion was reasonable.” (Citation omitted; internal quotation marks omitted.) Bosco v. Arrowhead by the Lake, Inc., 53 Conn. App. 873, 875, 732 A.2d 205 (1999).

In the present case, John Doe provided an affidavit with the application for the attachment. The affidavit stated that Rapoport had pleaded guilty to conduct that constituted a risk of injury to a child in violation of § 53-21. Furthermore, that conduct was committed against the minor children in this matter.

As we have stated, the probable cause hearing is not a full-scale trial on the merits. “The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . . The court’s role in such a hearing is to determine probable success by weighing probabilities. . . . [T]his weighing process applies to both legal and factual issues. ... In addition, the trial court has the responsibility, after the adversarial evidentiary hearing, to consider not only the validity of the claim but also the amount that is being sought.” (Citation omitted; internal quotation marks omitted.) Giordano v. Giordano, 39 Conn. App. 183, 206, 664 A.2d 1136 (1995). Stated more succinctly, “[pjrobable cause for purposes of the [prejudgment remedy] statutes is a flexible common sense standard that does not demand that a belief be correct or more likely true than false.” Fischel v. TKPK, Ltd., 34 Conn. App. 22, 24, 640 A.2d 125 (1994). The affidavit, although very brief, supplied the court with the necessary facts to support a finding that there was probable cause to sustain the validity of the plaintiffs’ claims.

Even if we were to conclude that the affidavit alone was insufficient to support a finding of probable cause, the evidence presented at the hearing amply supported such a finding. Our Supreme Court has stated that “a plaintiff may present evidence at a hearing on a motion to dissolve an ex parte prejudgment attachment in order to support an insufficient initial affidavit.” Glanz v. Testa, 200 Conn. 406, 408, 511 A.2d 341 (1986). We see no reason why the plaintiffs in this case should not be permitted to use evidence at the hearing to buttress the facts contained in the affidavit.

The plaintiffs supplied evidence at the hearing that further supported the court’s finding of probable cause. First, Jane Doe testified that she was present when Rapoport pleaded guilty. She further testified that Jeff Doe had received treatment from both a psychologist and a psychiatrist. She stated that Jeff Doe had not received the recommended amount of treatment due to a lack of financial resources.

Second, the plaintiffs introduced a certified copy of Rapoport’s criminal judgment and a transcript of his plea. Both of those documents supported the allegations set forth in the complaint. Third, the report of William Hartman, a psychologist who treated Jeff Doe, was admitted into evidence. That report detailed the various traumatic effects of Rapoport’s sexual abuse and the subsequent serious effect on Jeff Doe. Furthermore, the report acknowledged that years of specialized psychotherapy, perhaps even a residential treatment setting, likely will be necessary. On the basis of that evidence, it is clear that the court did not abuse its discretion or commit clear error in granting the plaintiffs’ application for an attachment.

II

The defendants next claim that the court improperly admitted into evidence Hartman’s medical report pursuant to § 52-174 (b). Specifically, the defendants argue that the report failed to meet the requirements of § 52-174 (b) in that (1) no bill for treatment accompanied the report and (2) the report did not disclose Hartman’s area of expertise or whether he actually treated Jeff Doe. We address each argument in turn.

A

The defendants first argue that § 52-174 (b) requires that a bill for treatment must accompany the report for the report to be admissible. The defendants further claim the bill is necessary to demonstrate that the provider, in this case a psychologist, treated the plaintiff in the ordinary course of practice. We are not persuaded.

The defendants argue in their brief that “§ 52-174 requires that both the bill for treatment and the report be admitted together.” The defendants, however, have failed to provide us with any rule of law to support that claim. As we frequently have stated, “[a]naiysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis. . . . Wachter v. UDV North America, Inc., 75 Conn. App. 538, 545-46, 816 A.2d 668 (2003).” (Internal quotation marks omitted.) Ghent v. Mead-owhaven Condominium, Inc., 77 Conn. App. 276, 289, 823 A.2d 355 (2003).

Even if we were to consider the defendants’ claim, we would conclude that the § 52-174 (b) does not require that a bill for treatment accompany the medical report. At the outset, we set forth the applicable standard of review. “Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) MacMillan v. Higgins, 76 Conn. App. 261, 274, 822 A.2d 246, cert. denied, 264 Conn. 907, 826 A.2d 177 (2003).

Simply put, the defendants’ claim that a bill for treatment must accompany a medical report for the report to be admissible pursuant to § 52-174 (b) is without merit. We have stated that the language of the statute is the most important factor in statutory construction. See In re Shonna K., 77 Conn. App. 246, 254, 822 A.2d 1009 (2003). The language of § 52-174 (b) provides in relevant part: “The use of any such report or bill in lieu of the testimony . . . .” (Emphasis added.) The use of the disjunctive “or” indicates that either a report or a bill may be used by the offering party as long as it was signed by the treating physician. See Lopiano v. Lopiano, 247 Conn. 356, 383, 752 A.2d 1000 (1998) (“ ‘[t]hus, once the statutory requirement that the report be signed by a treating physician is met, the evidence in that report is admissible and has the same effect as a business entry’ ”). Moreover, the legislative history supports such an interpretation. “[T]his bill would allow an attorney in a civil action based on personal injury or death to introduce into evidence a medical report of a physician without the necessity of in fact calling the physician to testify.” (Emphasis added; internal quotation marks omitted.) Id., 382, quoting 20 H.R. Proc., Pt. 8, 1977 Sess., p. 2993, remarks of Representative Ernest N. Abate.

Finally, as we have stated, the defendants have failed to provide us with any case law indicating such a requirement. Our research has found, however, instances where a report was admitted pursuant to § 52-174 (b) without an accompanying bill. See, e.g., Pineau v. Home Depot, Inc., 45 Conn. App. 248, 252-54, 695 A.2d 14 (1997) (court properly admitted cover letter of treating physician pursuant to § 52-174 (b)), appeal dismissed, 245 Conn. 422, 713 A.2d 825 (1998); Shegog v. Zabrecky, 36 Conn. App. 737, 750, 654 A.2d 771 (“signed report of a treating physician may be used in lieu of the testimony of that treating physician”), cert. denied, 232 Conn. 922, 656 A.2d 670 (1995).

On the basis of the foregoing, we conclude that it was not necessary for the plaintiffs to submit a bill for treatment for the Hartman report to be admissible pursuant to § 52-174 (b).

B

The defendants next argue that the report did not disclose Hartman’s area of expertise or whether he actually treated Jeff Doe. The defendants further claim that because the report failed to contain that information, it was hearsay, and the court improperly admitted the report into evidence. We disagree.

As a preliminary matter, we set forth the applicable standard of review. “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and . . . evi-dentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of a substantial prejudice or injustice.” (Internal quotation marks omitted.) Sheiman v. Shei-man, 72 Conn. App. 193, 201, 804 A.2d 983 (2002).

Our Supreme Court has set forth the requirements for a report to be admissible pursuant to § 52-174 (b). “[Section 52-174 (b)] permits a signed doctor’s report to be admitted as a business entry. . . . [It] creates a presumption that the doctor’s signature is genuine and that the report was made in the ordinary course of business. . . . Thus, once the statutory requirement that the report be signed by a treating physician is met, the evidence in that report is admissible and has the same effect as a business entry. . . . This statute serves the purpose of getting medical evidence before the jury in the absence of the treating physician. . . . The need for this statutory exception allowing for a substitute for testimony was clearly driven by economics due to the necessity for medical evidence in every personal injury action for damages.” (Citations omitted; internal quotation marks omitted.) Lopiano v. Lopiano, supra, 247 Conn. 383.

In the present case, the plaintiffs, pursuant to Practice Book § 13-4, disclosed Hartman as the psychologist who had treated Jeff Doe. Furthermore, at the hearing, Jane Doe testified that Hartman was the treating psychologist of Jeff Doe. Hartman signed the report that was admitted into evidence. On the basis of those facts, it is clear that the requirements of § 52-174 (b) were met; the report was signed by the treating psychologist. We conclude, therefore, that the court did not abuse its discretion in admitting the Hartman report into evidence pursuant to § 52-174 (b).

Ill

The defendants’ final claim is that the plaintiffs failed to initiate a valid civil action. Specifically, the defendants argue that the plaintiffs’ first application was deemed withdrawn on June 21, 2001, when a hearing was not scheduled within thirty days of the original hearing date of May 21, 2001. The defendants further assert that because the original application was withdrawn, service of the civil action on July 20, 2001, was somehow invalid, as was the service for the second application for the attachment that was made on November 7, 2001.

Aside from a reference to General Statutes §§ 52-278d (b) and 52-278j (b), the defendants again have failed to provide this court with any meaningful legal analysis of their claim. The applicability of the statutes cited by the defendants is not clear, as the original application was never granted or denied. Absent such legal analysis, the claim is deemed waived. See Ghent v. Meadowhaven Condominium, Inc., supra, 77 Conn. App. 289.

Even if we were to review that claim, it is clear that it is without merit. General Statutes § 52-278h provides that “[t]he provisions of this chapter shall apply to any application for prejudgment remedy filed by the plaintiff at any time after the institution of the action, and the forms and procedures provided therein shall be adapted accordingly.” The plaintiffs in this case commenced an action on July 20,2001, and even if we assume arguendo that the first application was deemed to have been withdrawn due to a lapse of time, the service of the second application on November 7, 2001, was valid. Thus, service of the complaint, and the application for the attachment and the hearing on the application all were valid and proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 53-21 provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of ... a class B felony . . . .” The criminal conduct in this case allegedly occurred between 1992 and 1998. General Statutes § 53-21 was amended twice during that period for purposes not relevant here. For convenience, we cite the 1997 revision of the General Statutes. See Public Acts 1995, No. 95-142, § 1, and Public Acts 1997, No. 97-147, § 1.

       John Doe and Jane Doe brought this action as parent and next friend of the minor children, James Doe and Jeff Doe. John Doe and Jane Doe also brought this action on their behalf for damages arising from the minor plaintiffs’ injuries.

       The plaintiffs requested an order “garnishing the defendant Opus Management, Inc. ... as it is the agent or trustee of . . . Rapoport in that it has property ... or goods or effects ... of Rapoport, or is indebted to him.”

         General Statutes § 52-278c (a) provides in relevant part that “any person desiring to secure a prejudgment remedy shall attach his proposed unsigned writ, summons and complaint to the following documents:
      “(1) An application, directed to the Superior Court to which the action is made returnable, for the prejudgment remedy requested;
      “(2) An affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of facts sufficient to show that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any known defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff;
      “(3) A form of order that a hearing be held before the court or a judge thereof to determine whether or not the prejudgment remedy requested should be granted and that notice of such hearing complying with subsection (e) of this section be given to the defendant;
      “(4) A form of summons directed to a proper officer commanding him to serve upon the defendant at least four days prior to the date of the hearing, pursuant to the law pertaining to the manner of service of civil process, the application, a true and attested copy of the writ, summons and complaint, such affidavit and the order and notice of hearing . . . .”

       General Statutes § 52-278Z (a) provides in relevant part that “[a]n order (1) granting or denying a prgjudgment remedy following a hearing under section 52-278d . . . shall be deemed a final judgment for purposes of appeal.”

       In part II, we determine that the court did not abuse its discretion in admitting the report into evidence.

       General Statutes § 52-174 (b) provides in relevant part: “In all actions for the recovery of damages for personal injuries or death, pending on October 1, 1977 . . . and in all other civil actions pending on October 1, 2001, or brought thereafter, any party offering in evidence a signed report and bill for treatment of any treating . . . psychologist . . . may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating . . . psychologist . . . and that the report and bill were made in the ordinary course of business. The use of any such report or bill in lieu of the testimony of such treating . . . psychologist . . . shall not give rise to any adverse inference concerning the testimony or lack of testimony of such treating . . . psychologist . . . .”

       Practice Book § 13-4 (4) provides in relevant part that “any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. . . .”

       General Statutes § 52-278d (b) provides that “[t]he clerk, upon the granting of the application for prejudgment remedy, shall deliver to the applicant’s attorney the proposed writ, summons and complaint for service of process. If the court does not grant the application for any reason, including the failure of the plaintiff to serve the defendant, only a summons and complaint may be issued and served. In either event, the plaintiff may alter the return date of the writ, summons and complaint or the summons and complaint, as the case may be. No additional entry fee shall be collected upon the return of such action to court unless the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j.”

       General Statutes § 52-278j (b) provides that “[i]f an application for a prejudgment remedy is denied and the plaintiff, within thirty days thereof, does not serve and return to court the writ of summons and complaint for which the prejudgment remedy was requested, or if a date for a hearing upon a prejudgment remedy is scheduled by the clerk and such hearing is not commenced within thirty days thereof, except as provided in section 52-278e, the court shall order 1he application to be considered as having been withdrawn.”


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    EXECUTIVE SERVICES, INC., ET AL. v. JADWIGA H. KARWOWSKI ET AL.
    (AC 23686)
    West, McLachlan and Peters, Js.
    Argued September 12
    officially released November 4, 2003

      Martin M. Rizzi, for the appellants (defendants).

      Leonard M. Isaac, with whom, on the brief, was S. Dave Vatti, for the appellees (plaintiffs).
   Opinion

PETERS, J.

For a fee, public insurance adjusters assist property owners in receiving insurance payments for insured fire losses. Section 38a-788-6 of the Regulations of Connecticut State Agencies, which determines the fee that insurance adjusters may charge, permits them to recover a fixed percentage “of the amount of the loss when adjusted with the Insurance Companies or otherwise recovered . . . ,” The issue in this case is whether the amount “otherwise recovered” is the gross amount of the insured’s recovery or the net amount after an insured has paid attorney’s fees and mortgage debts. The trial court concluded that the adjuster was entitled to recover a percentage of the gross amount. We agree.

The plaintiffs, public insurance adjusters Executive Services, Inc., and Louis E. Ranciato, filed a multicount complaint alleging breach of contract by the defendants, Jadwiga H. Karwowski and Mieczyslaw Karwowski, arising out of the defendants’ failure to pay the fees specified in a contract for fire adjustment services. The defendants denied their liability and filed special defenses as well as a claim for setoff. After a stipulation of facts, the trial court rendered judgment in favor of the plaintiffs, from which the defendants have appealed. Because the only issue before us is a question of the proper interpretation of a state regulation, an issue of law, our review of the defendants’ appellate claim is plenary. See Rudy’s Limousine Service, Inc. v. Dept. of Transportation, 78 Conn. App. 80, 84, 826 A.2d 1161 (2003).

The court’s memorandum of decision and the stipulation of the parties state the relevant facts. The defendant Jadwiga Karwowski contracted with the plaintiffs after three fires on September 26, October 5 and October 24, 1994, that destroyed her property at 73-75 Broad Street in New Britain. The property was insured by the Travelers Insurance Company (Travelers), which refused to pay the face amount of the policy because of its suspicion that the defendant Mieczyslaw Karwowski might have committed arson.

The plaintiffs’ claim arose out of litigation between the parties that resulted in Travelers paying a stipulated judgment of $1,054,138 for the fire loss. Part of that judgment reflected Travelers’ initial payment of $50,000 to the plaintiffs, as well as payment of $104,138.17 to mortgagees and recovery of $20,290.23 at a tax foreclosure sale of the property. Accordingly, Travelers paid the defendant Jadwiga Karwowski the net amount of $900,000, of which $300,000 was paid to her attorney as a fee for his services.

In her written contact with the plaintiffs, the defendant Jadwiga Karwowski agreed to pay the plaintiffs a fee of 5 percent of the amount of her recovery from her fire loss. She tendered the plaintiffs a check for $32,500, calculated as 5 percent of the $600,000 she had retained after paying her attorney and 5 percent of the $50,000 advance she had received when she first presented her claim to Travelers.

The plaintiffs assisted the defendants in recovering an initial adjustment of $50,000 and subsequently assisted in the litigation that resulted in their receiving a favorable stipulated judgment. During the jury trial, the plaintiffs Louis Ranciato and John Ranciato testified as expert witnesses in support of the successful claim of the defendant Jadwiga Karwowski against Travelers. The plaintiffs provided the proof of loss figures that were the basis of her claim. The plaintiff Louis Ranciato also assisted in the resolution of criminal proceedings charging the defendant Mieczyslaw Karwowski with having committed arson. Although the value of these services has not been quantified, the record demonstrates that the plaintiffs contributed significantly to the defendants’ recovery from Travelers.

The legal issue that confronts us is more easily stated than resolved. The insurance commissioner requires insurance adjusters to use a contract that states: “In consideration for these services, Ewe hereby assign out of the monies due or to become due from said Insurance Companies on account of the said loss a sum equivalent to __% percent of the amount of the loss when adjusted with the Insurance Companies or otherwise recovered . . . .” Regs., Conn. State Agencies § 38a-788-6. All we have before us is the text of the regulation designating this contract language. Did the insurance commissioner intend “otherwise recovered” to mean the gross recovery received after litigation, in contrast with the amount “when adjusted,” or did he intend to limit recovery after litigation to the net amount received by the insured after deduction of costs and fees? The only thing that is clear is that the text is ambiguous. There are no appellate decisions construing the text, and the trial courts that have considered the matter have disagreed about its meaning.

The defendants’ argument for deduction of costs and fees from sums “otherwise recovered” proceeds from the unchallenged premise that legislation should be construed to produce a rational and sensible result. See, e.g., Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991). They maintain that the text should be read to protect those confronted by fire losses from overreaching by knowledgeable insurance adjusters. This case, however, does not present any evidence of unconscionable conduct on the part of the plaintiffs. On the contrary, their vigorous efforts on behalf of both defendants manifestly protected the defendants’ interests in a proper recovery. It is reasonable to read the regulation as having been intended to encourage just such efforts on behalf of insurance claimants.

The defendants also argue that it would be unfair to awar d the plaintiffs a percentage of an insurance award that did not reflect the cost of the counsel fees incurred by the defendants. The defendants observe that the plaintiffs have not challenged the reasonableness of the payment of $300,000 to the defendants’ attorney. The defendants further argue that, although the plaintiffs’ services contributed to the defendants’ recovery, payment of 5 percent of $600,000, the net recovery from the litigation, is sufficient compensation for their contributions. That argument assumes the propriety of deducting mortgage payments from the amount that is “otherwise recovered.” We cannot, however, conceive of the basis for that assumption. The money that Travelers paid to discharge the defendant Jadwiga Kar-wowski’s mortgage debt was a benefit to her that she retained only because of the stipulated judgment.

In our view, the text of the regulation is more plausibly interpreted to support the plaintiffs’ analysis of the meaning of “otherwise recovered.” The plaintiffs properly advise us to read this phrase in light of the entirety of the sentence in which it appears. The sentence begins: “To the Interested Insurance Companies and Others Whom it May Concern: I/we retain . . . (name of public adjuster) to act as my/our public adjusters) and to advise and assist in the adjustment and settlement of my/our . . . loss at . . . (address) which occurred on or about . . . (date). In consideration for these services, I/we hereby assign out of the monies due or to become due from said Insurance Companies on account of the said loss a sum equivalent to_% percent of the amount of the loss when adjusted with the Insurance Companies or otherwise recovered . . . .” Regs., Conn. State Agencies, § 38a-788-6. The phrase “otherwise recovered” appears, therefore, not in a description of the contract obligations of the plaintiffs and the defendants but in instructions to Travelers. As the plaintiffs further observe, the assignment directs Travelers whom to pay and when, i.e., “when adjusted with the Insurance Companies or otherwise recovered . . . .” In this context, the phrase “otherwise recovered” does not address the question of whether the recovery should be net or gross of the insured’s litigation costs.

The plaintiffs’ interpretation of § 38a-788-6 finds additional support in another part of the regulation. The parties apparently have deemed it irrelevant that the regulation expressly defines the fees that an insurance adjuster may charge. The regulation requires a contract between an adjuster and an insured to state: “We cannot charge you a fee greater than ten percent (10%) of the actual or final settlement of the loss covered by this contract nor can we rebate any part of the fee specified in this Employment Contract. . . .” (Emphasis added.) The phrase “actual or final settlement” indicates that the amount “otherwise recovered” is the gross amount that an insurer must pay for an insured loss.

In the absence of guidance from the insurance commissioner, we conclude that the court properly interpreted the contract between the parties. As mandated by § 38a-788-6, an insurance adjuster may recover a fee of no more than 10 percent of the total amount that an insurer is obligated to pay under a policy of fire insurance.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 38a-788-6 of the Regulations of Connecticut State Agencies provides in relevant part: “Form of contract [Formerly Sec. 38-769-6.] No public adjuster shall enter into an employment contract except in conformity with this regulation. There shall be a true copy of the employment contract which shall be given to the client at the time the contract is signed. The contract and copy(ies) of the contract . . . shall state: (1) On side one: INFORMATION ABOUT YOUR PUBLIC ADJUSTER EMPLOYMENT CONTRACT YOUR LEGAL RIGHTS: Cancellation: You may cancel this contract by notifying us at the address shown on the other side of this page .... Settlement offer: We shall forward to you any written settlement offer from the insurance company. Fee: Our services are available for a fee to be paid by you. We cannot charge you a fee greater than ten percent (10%) of the actual or final settlement of the loss covered by this contract nor can we rebate any part of the fee specified in this Employment Contract. Copy of the contract: We must give you a true copy of this Employment Contract at the time you sign it. . . . We must . . . inform you that we do not represent any insurance company or any insurance company adjusting firm. (2) On side two: ... To the Interested Insurance Companies and Others Whom it May Concern: I/we retain _ (name of public adjuster) to act as my/our public adjusters) and to advise and assist in the adjustment and settlement of my/our_(type) loss at _ (address) which occurred on or about _(date). In consideration for these services, I/we hereby assign out of the monies due or to become due from said Insurance Companies on account of the said loss a sum equivalent to_% percent of the amount of the loss when adjusted with the Insurance Companies or otherwise recovered . . . .” (Emphasis in original.) The text of the contract was exactly the same as that specified in the regulation.

       In the underlying litigation, Jadwiga Karwowski recovered $1,142,172.48 from Travelers, and Travelers recovered $133,847.94 from Mieczyslaw Karwowski. As part of the stipulated judgment, Travelers issued a general release to Mieczyslaw Karwowski.

       In two cases, the court, Hon. Anthony V. DeMayo, judge trial referee, concluded that General Statutes § 38a-788-6 was enacted for the benefit of insureds and that “otherwise recovered” should therefore be construed so as to limit the fees of insurance adjusters. Biller Associates v. Route 156 Realty Co., Superior Court, judicial district of New Haven, Docket No. 348897 (October 22, 1996) (18 Conn. L. Rptr. 132, 134), rev’d on other grounds, 52 Conn. App. 18, 725 A.2d 398 (1999), aff'd, 252 Conn. 400, 746 A.2d 785 (2000); Biller Associates v. Peterken, Superior Court, judicial district of New Haven, Docket No. 354173 (October 10, 1997), aff'd, 58 Conn. App. 8, 751 A.2d 836, cert. granted on other grounds, 254 Conn. 914, 759 A.2d 506 (2000). In another case, the court, Hon. Howard J. Moraghan, judge trial referee, construed the regulation to permit an adjuster to recover a percentage of the insured’s recovery measured by a proof of loss even though the adjuster had been discharged. Malis, Inc. v. Commercial Union Ins. Co., Superior Court, judicial district of Danbury, Docket No. 330811 (December 12, 2001) (31 Conn. L. Rptr. 93).

       We therefore need not consider the proper outcome of a case in which the conduct of the public insurance adjuster was unconscionable.

       In this case, of course, the fee was set at 5 percent rather than 10 percent. ' Although at trial the plaintiffs claimed that an oral agreement entitled them to more than 5 percent, that claim was rejected by the court and has not been pursued on appeal.


author: SCH ABLER, J.

text:
    LENORA MENNA v. JULIO T. JAIMAN
    (AC 23804)
    Schaller, Bishop and Hennessy, Js.

      Argued September 10
    officially released November 4, 2003

      Margaret J. Slez, for the appellant (plaintiff).

      NoelR. Newman, with whom, on the brief, was James A. Mahar, for the appellee (defendant).
   Opinion

SCH ABLER, J.

In this personal injury action, the plaintiff, Lenora Menna, appeals from the judgment of the trial court rendered in her favor after a jury trial in which the jury awarded her $50 in nominal damages as against the defendant, Julio T. Jaiman. On appeal, the plaintiff claims that the court improperly (1) granted the defendant’s motion in limine to preclude expert testimony, (2) placed the burden on her to show an absence of prejudice due to her failure to disclose expert witnesses and (3) refused to allow her to cross-examine certain witnesses. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of the plaintiffs appeal. The plaintiff was involved in a motor vehicle accident caused by the defendant in August, 1995. The plaintiff brought an action against the defendant for injuries sustained in the accident. John Kurtzenacker, a passenger in the plaintiffs vehicle at the time of the accident, also brought an action against the defendant for injuries he sustained during the collision. The court consolidated the cases for trial.

The defendant filed a motion in limine to preclude the plaintiff from offering expert testimony regarding the cause of her injuries, disability or medical treatment because the plaintiff failed to meet the disclosure requirements for expert witnesses pursuant to Practice Book § 13-4 (4). The defendant sought the preclusion of expert testimony as a sanction for that failure. On the first day of trial, the court heard oral argument on the defendant’s motion in limine. The court granted the defendant’s motion, and the jury was brought into the courtroom for the presentation of opening statements.

Kurtzenacker presented his case, which included expert testimony from an orthopedic physician who treated him after the accident. The plaintiff sought and was denied the opportunity to cross-examine Kurtzen-acker’s expert witness. The plaintiff made three motions on the third day of trial: (1) to allow expert testimony in the form of a medical report from plaintiffs treating physician, (2) a continuance to allow the defendant to prepare for the introduction of the report and (3) a motion for a mistrial. All three motions were denied. The plaintiff presented her case without the use of expert medical testimony in an effort to prove that her injuries were caused by the August, 1995 motor vehicle accident. On August 16, 2002, the jury returned a verdict in favor of the plaintiff, but awarded only $50 in nominal damages. The plaintiff filed a motion to set aside the verdict and a motion for a new trial. The court denied both motions. This appeal followed.

I

We first consider the plaintiffs claim that the court improperly granted the defendant’s motion in limine to preclude expert testimony. Specifically, the plaintiff argues that the court improperly granted the defendant’s motion in limine to preclude her from offering expert testimony because the plaintiff failed to disclose the expert prior to trial. We are not persuaded.

The following additional facts are relevant to the plaintiffs claim. Two days before trial, the defendant filed a motion in limine to preclude expert testimony by the plaintiff because of her failure to disclose her expert witnesses. The defendant had served standard interrogatories on the plaintiff to disclose her expert testimony in September, 1997. The plaintiff had been ordered to disclose her expert testimony by October 5, 1998, at the early intervention pretrial. The only disclosure made by the plaintiff was in her response to the interrogatories served by the defendant nearly five years before the start of the trial. In her response to those interrogatories, the plaintiff identified the two treating physicians whom she intended to call at trial. She indicated that the physicians would testify “according to their expertise” on their “diagnosis and treatment of the plaintiff as well as any prognosis for future care and permanent disability.” The plaintiff did not make any further disclosure of expert witnesses until trial. The defendant argues that the plaintiffs disclosure of her experts failed to comply with Practice Book § 13-4 and the court’s order that disclosure be completed by October, 1998.

Three requirements must be met for a trial court’s order of sanctions for a violation of a discovery order to withstand scrutiny. “First, the order to be complied with must be reasonably clear. In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court’s intended meaning. This requirement poses a legal question that we will review de novo. Second, the record must establish that the order was in fact violated. This requirement poses a question of fact that we will review using a clearly erroneous standard of review. Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion.” Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001).

The court’s discovery order and the mandates of Practice Book § 13-4 are “reasonably clear” and satisfy the first prong of the test under Millbrook Owners Assn., Inc. The defendant was ordered to disclose her expert witnesses by October 5, 1998, and was served with interrogatories requesting information on the expert witnesses she intended to call at trial pursuant to Practice Book § 13-4 (l). Such an order requires the plaintiff merely to comply with the rules of practice. Sullivan v. Yale-New Haven Hospital, Inc., 64 Conn. App. 750, 759, 785 A.2d 588 (2001).

The record establishes that the order to disclose was violated, satisfying the second prong of the test under Millbrook Owners Assn., Inc. Practice Book § 13-4 (4) sets forth an affirmative duty that “[a]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. . . .’’In the present case, the plaintiff merely identified the two treating physicians and stated that they would testify as to their expertise in relation to their treatment of her. The plaintiff failed to file an expert disclosure pursuant to Practice Book § 13-4, and her interrogatory responses did not, except in the most cursory fashion, state the substance of the facts and opinions about which the experts were expected to testify. The plaintiffs disclosure did not comply with the requirements of Practice Book § 13-4 (4). Thus, the court’s finding of a violation of a discovery order was not clearly erroneous.

Finally, the third prong of the test under Millbrook Owners Assn., Inc., was satisfied. The court’s exclusion of the expert testimony as a sanction for the plaintiffs violation of the court’s discovery order and her failure to comply with the affirmative duty to disclose found in Practice Book § 13-4 was proportional to the violation. Furthermore, Practice Book § 13-4 (4) specifically authorizes the court to preclude expert testimony if the plaintiff fails to disclose such experts properly. The court’s order of sanctions satisfied all three prongs of the test; under Millbrook Owners Assn., Inc., concerning sanctions for violation of a discovery order and, thus, withstands scrutiny. The court did not abuse its discretion in granting the defendant’s motion in limine to preclude expert testimony by the plaintiff.

II

The plaintiffs second claim is that the court improperly shifted the burden to her to show an absence of prejudice to the defendant as a result of her failure to disclose expert witnesses. The plaintiff argues that the court improperly concluded that her inadequate disclosure caused prejudice to the defendant without a factual basis for its decision other than the late disclosure itself. We are not persuaded.

The following additional facts are relevant to the plaintiffs claim. On the first day of trial, the court heard oral argument on the defendant’s motion in limine to preclude the plaintiffs experts. The defendant read into the record the standard interrogatories that had been sent to the plaintiff nearly five years before trial and her answers, which disclosed only the experts’ names and occupations. The court stated that the plaintiffs answers to the standard interrogatories were inadequate. The court stated that the plaintiffs late disclosure would prejudice the defendant because she had failed to provide any notice of her purported expert testimony. When the plaintiff offered to give the defendant copies of medical reports, the court stated, “[t]o hand over a medical report to defense counsel in the middle of trial simply is unacceptable. It . . . was a clear violation of the rules of practice, and I think it would result in a great deal of prejudice to the defendant if I were to permit that.” The plaintiff conceded at the hearing that “there is a good argument that the [interrogatory] answers did not comply with Practice Book § 13-4 (4).”

Once the court made the determination that the plaintiff had failed to provide disclosure to the defendant that showed a causal relationship between her injuries and the automobile accident, the court gave the plaintiff an opportunity to rebut the defendant’s assertions and to indicate any evidence she had to the contrary. The plaintiffs counsel conceded that he did not currently have any medical information that connected the plaintiffs injuries to the accident.

Practice Book § 13-4 (4) (A) allows a court to preclude expert testimony if the proponent of the testimony has made a late disclosure of the expert and the late disclosure “will cause undue prejudice to the moving party . . . .” The moving party bears the burden of showing that it was prejudiced.

After a review of the record and transcripts in this case, we conclude that the court did not place the burden on the plaintiff to show a lack of prejudice or base its decision solely on the late disclosure. The record reveals that the court determined that the defendant would be prejudiced by the plaintiffs lack of disclosure only after the defendant read into the record the standard interrogatories that had been sent to the plaintiff and her answer. The answers to those interrogatories, submitted nearly five years before trial, were the only disclosure of expert information. It is clear that the plaintiffs cursory response to the standard interrogatories did not satisfy the disclosure requirements of Practice Book § 13-4.

The arguments raised by the defendant addressed and satisfied his burden of proof. Although the court allowed the plaintiff to present evidence at the oral arguments, the evidence was rebuttal evidence. The court merely gave the plaintiff one last opportunity to rebut the defendant’s claim of prejudice before it ruled. Therefore, the court did not improperly shift the burden to the plaintiff.

Ill

The plaintiffs third claim is that the court improperly refused to allow her to cross-examine certain witnesses. Specifically, the plaintiff argues that the court improperly precluded her from cross-examining Kurtzenacker’s treating physician.

The following additional facts are relevant to the plaintiffs claim. On the second day of trial, Kurtzenacker’s expert witness, Donald Dworken, a physician, testified. Dworken was the treating physician for Kurtzenacker. He did not treat the plaintiff or review any medical records of the plaintiff. Dworken gave testimony concerning Kurtzenacker’s injuries. At the conclusion of Kurtzenacker’s and the defendant’s questioning of Dworken, the plaintiff sought to cross-examine the witness concerning the plaintiffs injuries in an effort to establish a causal relationship between her injury and the accident. The court refused to allow the plaintiff to cross-examine Dworken for that purpose.

“[In] . . . matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed. . . . The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Interna! quotation marks omitted.) Robert M. Elliot, P.C. v. Stuart, 53 Conn. App. 333, 340-41, 730 A.2d 1176, cert. denied, 249 Conn. 928, 733 A.2d 848 (1999).

“In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. . . . Although it is axiomatic that the scope of cross-examination generally rests within the discretion of the trial court, [t]he denial of all meaningful cross-examination into a legitimate area of inquiry constitutes an abuse of discretion. ... It is well settled that the scope of the cross-examination of a witness is limited by the scope of the direct examination unless there is an attack on the credibility of that witness. . . . The evidence elicited during direct examination delineates the scope of cross-examination.” (Citations omitted; internal quotation marks omitted.) Dubreuil v. Witt, 65 Conn. App. 35, 42, 781 A.2d 503 (2001).

In the present case, the court did not abuse its discretion in denying the plaintiff the opportunity to cross-examine Kurtzenacker’s expert witness in relation to her injuries. In regard to the plaintiffs injuries, Dworken had not examined or read any medical records or reports pertaining to the plaintiff. Dworken had not been disclosed as an expert witness concerning the nature, extent or cause of the plaintiffs injuries. Because the testimony presented by Dworken also did not address the plaintiffs injuries, the plaintiffs attempt to cross-examine was beyond the scope of the direct examination. The court did not abuse its discretion in precluding the plaintiff from cross-examining Kurtzen-acker’s treating physician with regard to the plaintiffs injuries.

The plaintiff also argues that the court improperly denied her the opportunity to cross-examine Dworken to establish a causal relation between her injuries and the accident. In support of that position, the plaintiff cites a line of cases that hold: “[Wjhere one party has disclosed an expert witness pursuant to Practice Book § 220 [now § 13-4], and that expert witness has either been subsequently deposed by the opposing party, or the expert’s report has been disclosed pursuant to discovery, then either party may call that expert witness to testify at trial.” Lane v. Stewart, 46 Conn. App. 172, 177, 698 A.2d 929, cert. denied, 243 Conn. 940, 702 A.2d 645 (1997); see Barksdale v. Harris, 30 Conn. App. 754, 622 A.2d 597, cert. denied, 225 Conn. 927, 625 A.2d 825 (1993). Those cases are not pertinent to the present case. In those cases, the expert testimony to be elicited from the opposing party pertained to the same subject matter for which the expert had been disclosed properly. In this case, however, the expert, Dworken, had been retained for the purpose of testifying concerning Kurtzenacker’s injuries. See Lane v. Stewart, supra, 175-76. Dworken had no knowledge or opinions concerning the plaintiffs injuries and did not testify concerning the plaintiff. We conclude that the court did not abuse its discretion in refusing to allow the plaintiff to cross-examine Kurtzenacker’s expert witness.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claimed that the court improperly denied her motion for a continuance and denied her motion for a mistrial. We need not address those claims because we conclude that the court was within its discretion in granting the defendant’s motion in limine to preclude the plaintiff from offering expert testimony. Accordingly, the plaintiff’s motion for a continuance to allow the defendant additional time to prepare for the plaintiffs expert testimony was not necessary. The motion for a mistrial need not be addressed because the court was within its discretion in granting the defendant’s motion in limine and in refusing to allow the plaintiff to cross-examine the coplaintiff s expert witness.

       Practice Book § 13-4 (1) provides in relevant part: “(A) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion . . . .”

       Practice Book § 134 (4) provides in relevant part: “If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after a reasonable time prior to trial, such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party . . .

       The party who files the motion in limine has the burden of demonstrating that the evidence is inadmissible on any relevant ground. See First Savings Bank, F.S.B. v. U.S. Bancorp, 117 F. Sup. 2d 1078, 1082 (D. Kan. 2000); see also Plair v. E.J. Brach & Sons, Inc., 864 F. Sup. 67, 69 (N.D. Ill. 1994). Notably, except Practice Book § 13-4(1), which requires voluntary disclosure of each party’s experts, Practice Book § 13-4 in general is a mirror image of Federal Rule of Civil Procedure 26 (b) (4).

       Kurlzenacker properly disclosed Dworken as an expert, witness.


author: PER CURIAM.

text:
    MARK A. MASON v. COMMISSIONER OF CORRECTION
    (AC 22943)
    Lavery, C. J., and Bishop and Hennessy, Js.
    Submitted on briefs September 19
    officially released November 4, 2003

      Alan E. Dillon, special public defender, filed a brief for the appellant (petitioner).

      Paul E. Murray, state’s attorney, David M. Kutzner, assistant state’s attorney, and Julia K. Conlin, deputy assistant state’s attorney, filed a brief for the appel-lee (respondent).
   Opinion

PER CURIAM.

The petitioner, Mark A. Mason, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus and his petition for certification to appeal to this court. On appeal, the petitioner argues that the court (1) abused its discretion when it denied his petition for certification to appeal and (2) improperly denied his second amended petition for a writ of habeas corpus because the court incorrectly determined that he was not denied the effective assistance of counsel. We dismiss the appeal.

The following facts, as found by the court, are relevant to our disposition of the petitioner’s appeal. After being arrested and charged with a multitude of offenses, the petitioner entered a plea of guilty to several of those offenses on August 18,1990, and his case was continued to October 18, 1990, for sentencing. The petitioner’s attorney had negotiated a plea bargain with the prosecutor on the counts to which the petitioner had pleaded guilty. That plea bargain was to result in a sentence of ten years imprisonment, execution suspended after six years. During the late night hours of October 16, 1990, and into the early morning hours of October 17, 1990, while out on bond awaiting sentencing, the petitioner was arrested and incarcerated in Massachusetts. He failed to appear for his Connecticut sentencing on October 18, 1990, and the record is devoid of any evidence that he attempted to contact his attorney or the court regarding his inability to appear for sentencing. The petitioner’s sentencing date was continued to November 26,1990, to allow the petitioner’s attorney the opportunity to locate his client. The petitioner’s attorney subsequently withdrew from the case because the petitioner failed to pay him for his services.

On February 22, 1991, the petitioner was released from the Norfolk County House of Correction in Massachusetts to the custody of the state of Rhode Island. On June 6, 2001, he was extradited from Rhode Island to Connecticut. The court appointed Ramon Canning as the petitioner’s public defender on the still pending charges. In addition to the charges previously discussed, the state added a charge of failure to appear stemming from the petitioner’s absence from the November 26, 1990 sentencing hearing, and the plea agreement was also withdrawn. The potential maximum exposure that the petitioner faced on all counts was approximately 200 years. Canning, however, was able to negotiate another plea agreement with the state, which required that the petitioner plead guilty to one count of burglary in the third degree in violation of General Statutes § 53a-103 and one count of failure to appear in the first degree in violation of General Statutes § 53a-172. On September 30, 1991, in accordance with the plea agreement, the petitioner was sentenced to serve five years imprisonment on the burglary count and two years, consecutively, on the failure to appear count, for a total effective sentence of seven years.

On April 5, 2001, the petitioner filed a second amended petition for a writ of habeas corpus, claiming that Canning was ineffective because he allowed the petitioner to plead guilty to a charge of failure to appear when the petitioner had not committed that crime. The petitioner argued that his failure to appear in Connecticut could not have been wilful because he was incarcerated in Massachusetts. The petitioner further argued that had his trial counsel explained to him that his failure to appear had to be intentional or wilful, he would have proceeded to trial rather than accept the plea agreement. The court rejected the petitioner’s claim, concluding that his testimony was not credible and that he had failed to prove that he was denied the effective assistance of counsel.

Specifically, the court found, on the basis of the credible testimony of Canning, that when the petitioner was arrested in Massachusetts, he was on his way to Canada to avoid sentencing on the pending Connecticut charges. The court also found that he intentionally embarked on a course of conduct, two days before he originally was to be sentenced in Connecticut, that resulted in his incarceration and prevented him from receiving notice of the rescheduled sentencing date. The court further found that the representation by Canning “was very effective,” concluding that Canning, “in counseling [the petitioner] to plead guilty to a charge of failure to appear, a charge for which there was a factual basis, rendered effective assistance of counsel.” On the basis of those findings, the court denied the petitioner’s petition for a writ of habeas corpus and his petition for certification to appeal.

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Citations omitted; internal quotation marks omitted.) Bewry v. Commissioner of Correction, 73 Conn. App. 547, 548-49, 808 A.2d 746 (2002), cert. denied, 266 Conn. 918, 837 A.2d 801 (2003).

“For the petitioner to prevail on his [underlying] claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” White v. Commissioner of Correction, 58 Conn. App. 169, 170, 752 A.2d 1159 (2000), citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

After reviewing the record and the briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right. See Bewry v. Commissioner of Correction, supra, 73 Conn. App. 549-50; see Daniels v. Commissioner of Correction, 75 Conn. App. 196, 198, 815 A.2d 715 (2003). He also has failed to sustain his burden of persuasion that the court’s denial of his petition for certification to appeal was a clear abuse of discretion or that an injustice has been committed. See Bewry v. Commissioner of Correction, supra, 550; see also Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).

The appeal is dismissed.

       In 1994, the petitioner filed his first habeas petition, challenging the failure to appear conviction. A special public defender, David A. Dee, was appointed for that matter. That petition, however, was withdrawn on September 16,1994, signed by both Dee and the petitioner. Dee then filed a motion to withdraw with prejudice, indicating that such withdrawal was necessary for the records of the public defender’s office. The court granted that motion on November 7, 1994. Dee, however, had not discussed the filing of the motion to withdraw with prejudice with the petitioner. In his second amended petition, the petitioner also argued that Dee had rendered ineffective assistance of counsel by filing a motion to withdraw with prejudice. The court held, however, that “prior habeas counsel could not have rendered ineffective assistance of counsel in a matter in which [the petitioner] has failed to show that the claim in the prior habeas had any merit.” That finding is not challenged on appeal.

       At the habeas trial, Canning testified that he had read a statement in the prosecutor’s file in which a witness overheard the defendant remark that he “was due in court on the eighteenth [of October] for sentencing, and he wanted to go to Canada to avoid that sentence.” He further testified that the petitioner had indicated to Canning that he did make that statement. Canning concluded that the statement supported the inference that the petitioner had attempted to flee Connecticut's jurisdiction. As such, Canning did not advise him that he had a defense to the charge of failure to appear on the ground that his failure to appear was not wilful.


text:
    DAVID BURNS ET AL. v. GENERAL MOTORS CORPORATION ET AL.
    (AC 23659)
    Lavery, C. J., and McLachlan and Hennessy, Js.

      Argued September 11
    officially released November 11, 2003

      Justin E. Proper, for the appellant (named defendant).

      William J. Ward, for the appellees (plaintiffs).
   Opinion

LAVERY, C. J.

The defendant General Motors Corporation (General Motors) appeals from the judgment of the trial court granting the application of the plaintiffs, David Burns and William Bums, to vacate an arbitration award that had been rendered in favor of the defendants. On appeal, the defendant claims that the court improperly vacated the award of the arbitration panel because the record contains substantial evidence to support the panel’s findings that (1) there was a noise in the plaintiffs’ vehicle and (2) that the noise did not substantially impair the use, safety or value of the vehicle. We reverse the judgment of the trial court.

The arbitration panel reasonably could have found the following relevant facts. On October 20, 2000, the plaintiffs purchased a new Chevrolet Cavalier from Woodbury West Chevrolet (West), a General Motors dealership in Woodbury. On October 26,2000, the plaintiffs returned the car to West, complaining of a rattle in the transmission whenever the car shifted from first gear to second gear. A West technician road tested the car with the plaintiffs, at which time West informed the plaintiffs that it did not have a remedy for the noise. West told the plaintiffs that it would retain the car while it contacted General Motors to see if it was aware of the type of noise heard in the plaintiffs’ car and whether the noise rendered the car unsafe. After holding the plaintiffs’ car for three days and consulting General Motors about the noise, West informed the plaintiffs that the noise did not impair the car and that if General Motors were to issue a remedy for the noise, General Motors would inform the plaintiffs of the remedy. The plaintiffs continued to operate the car, but returned to West several more times in November, 2000, each time asking the dealership to remedy the noise. Each time, West told the plaintiffs that the car was safe to operate and that General Motors had no remedy for the noise. Neither General Motors nor West ever replaced the plaintiffs’ car, the car’s transmission or remedied the noise.

Thereafter, the plaintiffs initiated an arbitration proceeding against the defendant pursuant to General Statutes § 42-181 (lemon law). After a hearing, a majority of the three member arbitration panel of the automobile dispute settlement program determined that there was a noise in the transmission, but that the plaintiffs had failed to prove that the noise substantially impaired the use, safety or value of the car within the meaning of General Statutes § 42-179. Consequently, the panel con-eluded that no action be taken by the defendant. The plaintiffs filed a timely application in the trial court to vacate the arbitration award pursuant to General Statutes § 52-418. The court, in its memorandum of decision, found the plaintiffs’ expert testimony more credible and persuasive than the defendant’s on the degree to which the transmission noise impaired the car’s value. Contrary to the arbitration panel, the court found that the transmission noise did substantially impair the use, safety or value of the car. It also found no basis in the record to uphold the award rendered in the defendant’s favor. For those reasons, the court vacated the arbitration award in favor of the defendant and rendered judgment for the plaintiffs, awarding them the option to have a new, comparable car or of returning the car to the defendant. It also awarded to the plaintiffs all costs and reasonable attorney’s fees. This appeal followed.

The defendant claims that the court improperly concluded that the record did not contain substantial evidence to support the arbitrators’ finding that the noise in the transmission of the plaintiffs’ car did not substantially impair the car’s use, safety or value. We agree with the defendant.

At the outset, we set forth our standard of review. Judicial review of lemon law arbitration awards is governed by § 42-181 (c) (4), which provides in relevant part: “The court shall conduct a de novo review of the questions of law raised in the application. ... In reviewing questions of fact, the court shall uphold the award unless it determines that the factual findings of the arbitrators are not supported by substantial evidence in the record and that the substantial rights of the moving party have been prejudiced. If the arbitrators fail to state findings or reasons for the award, or the stated findings or reasons are inadequate, the court shall search the record to determine whether a basis exists to uphold the award. ...” Section 42-181 (c) (4) confines the court’s review of the application “to the record of the proceedings before the arbitration panel. . . .” General Statutes § 42-181 (c) (4).

Our Supreme Court has determined that in reviewing questions of fact in arbitration proceedings, “a reviewing court must determine whether there is substantial evidence in the record to support the arbitrators’ findings of fact and whether the conclusions drawn from those facts are reasonable.” General Motors Corp. v. Dohmann, 247 Conn. 274, 281-82, 722 A.2d 1205 (1998).

“This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain ... [a] finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The fact that a possibility exists that two inconsistent conclusions may be drawn from the evidence does not prevent the arbitrators’ finding from being supported by substantial evidence.” (Citation omitted; internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Zasun, 52 Conn. App. 212, 225, 725 A.2d 406 (1999). With those principles in mind, we address the merits of the defendant’s claim.

Here, the court searched the record before the panel and proceeded to weigh the evidence itself, concluding that “no basis exists to uphold the award in favor of the defendant.” Our Supreme Court has articulated the deference due to an arbitration panel’s credibility judgments by a reviewing court when applying the substantial evidence standard: “[I]n determining whether an [arbitration panel’s] finding is supported by substantial evidence, a court must defer ... to the [arbitration panel’s] right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part. . . . This limited standard of review dictates that, [w]ith regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the [arbitration panel].” (Citations omitted; internal quotation marks omitted.) General Motors Corp. v. Dohmann, supra, 247 Conn. 282.

Thus, a court must limit its review of questions of fact in lemon law arbitrations to whether there exists sufficient evidence in the record to constitute substantial evidence in support of the arbitration panel’s findings. Conversely, the court must avoid, as has happened in the present case, overstepping the scope of its review by weighing the credibility of the evidence.

Here, the court was persuaded, unlike the arbitration panel, by the plaintiffs’ expert testimony. It found the defendant’s expert’s testimony unpersuasive because “he never examined or took this vehicle on a test drive. ” It further found the plaintiff’s expert, John Reed, “credible and persuasive.” The court then went on to find the facts on which it based its opinion from the plaintiffs’ expert witness’ testimony, clearly crediting his testimony over the testimony offered by the defendant. That is not the function of a court reviewing a lemon law arbitration panel’s decision. Regardless of whether the reviewing court would have decided the arbitration differently were it a member of the original arbitration panel, the reviewing court’s scope of review of questions of fact is limited to whether there exists substantial evidence in the record to support the arbitration panel’s award.

On the basis of our review of the record, we conclude that there was substantial evidence in the record before the arbitration panel to support its award in the defendant’s favor. First, the defendant’s expert witness, Dan Fuller, a regional field service engineer for General Motors’ Northeast region, testified that the noise about which the plaintiffs complained is a normal characteristic of any manual transaxle type transmission, particularly pronounced in vehicles, such as the plaintiffs’ vehicle, that are designed for fuel economy and does not, in any way, impair the use, value or safety of the vehicle. He opined, on the basis of his expert knowledge and the description of the noise in the transmission that was provided by the plaintiffs’ testimony, that the noise was a normal characteristic of transmissions, not a defect, and, therefore, required no repair. On the basis of the defendant’s expert testimony, the panel could have concluded reasonably that the noise produced in the transmission did not rise to the level of a substantial impairment of the car’s use, safety or value.

Second, General Motors introduced documentary evidence from its engineering department that discussed the subject. That document indicated that the noise was characteristic of the plaintiffs’ car’s transmission and that replacing the transmission would not eliminate the noise. On the basis of that document, in conjunction with the plaintiffs’ description, the arbitration panel also could have concluded reasonably that the noise produced in the transmission did not rise to the level of a substantial impairment of the car’s use, safety or value.

Finally, the plaintiffs testified on cross-examination that during the time that they drove the car, it never broke down, was never towed, never had a single repair and never had a safety related incident occur. Although the plaintiffs offered some evidence indicating that the value of the car was impaired, it was within the arbitra-tions panel’s discretion to believe or to disbelieve the evidence presented before it, either in whole or in part. “[I]n determining whether an [arbitration panel’s] finding is supported by substantial evidence, a court must defer ... to the [arbitration panel’s] right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part.” (Internal quotation marks omitted.) General Motors Corp. v. Dohmann, supra, 247 Conn. 282. Thus, on the basis of the testimony of the plaintiffs on cross-examination, the arbitration panel could have concluded reasonably that the noise produced in the transmission did not rise to the level of a substantial impairment of the car’s use, safety or value.

We conclude that the record contains substantial evidence to support the arbitration panel’s finding that the transmission noise in the plaintiffs’ car did not substantially impair its use, safety or value within the meaning of § 42-179 (d).

The judgment is reversed and the case is remanded with direction to deny the plaintiffs’ application to vacate the arbitration panel’s award.

In this opinion the other judges concurred.

       Woodbury West Chevrolet, also a defendant at trial, has not appealed. We therefore refer in this opinion to General Motors as the defendant.

       The defendant makes five claims on appeal: (1) Did the court exceed its authority by vacating the decision of the arbitration panel in favor of defendant? (2) Were the arbitration panel’s findings supported by substantial evidence? (3) Did the court improperly substitute its judgment as to the credibility of the witnesses at the hearing for that of the arbitration panel? (4) Did the court improperly rule that General Motors had an obligation to notify the plaintiffs of a “nonconformity” pursuant to General Statutes § 42-179 (c)? and (5) Did the court improperly award attorney’s fees although it failed to determine what a reasonable amount was? Because our resolution of the defendant’s substantial evidence claim is dispositive, it is unnecessary to address the remaining claims.

       The automobile disputes settlement program is administered by the department of consumer protection. See General Statutes § 42-181.

       General Statutes § 42-179 (d) provides in relevant part: “If the manufacturer or its agents or authorized dealers are unable to conform the motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which substantially impairs the use, safety or value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall replace the motor vehicle with a new motor vehicle acceptable to the consumer, or accept return of the vehicle from the consumer and refund to the consumer, lessor and lienholder, if any, as their interests may appear, the following: (1) The full contract price, including but not limited to, charges for undercoating, dealer preparation and transportation and installed options, (2) all collateral charges, including but not limited to, sales tax, license and registration fees, and similar government charges, (3) all finance charges incurred by the consumer after he first reports the nonconformity to the manufacturer, agent or dealer and during any subsequent period when the vehicle is out of service by reason of repair, and (4) all incidental damages as defined in section 42a-2-715, less a reasonable allowance for the consumer’s use of the vehicle. No authorized dealer shall be held liable by the manufacturer for any refunds or vehicle replacements in the absence of evidence indicating that dealership repairs have been carried out in a manner inconsistent with the manufacturers’ instructions. Refunds or replacements shall be made to the consumer, lessor and lienholder if any, as their interests may appear. A reasonable allowance for use shall be that amount obtained by multiplying the total contract price of the vehicle by a fraction having as its denominator one hundred twenty thousand and having as its numerator the number of miles that the vehicle traveled prior to the manufacturer’s acceptance of its return. It shall be an affirmative defense to any claim under this section (1) that an alleged nonconformity does not substantially impair such use, safety or value or (2) that a nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of a motor vehicle by a consumer.”

       General Statutes § 52-418 provides in relevantpart: “(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
      “(b) If an award is vacated and the time within which the award is required to be rendered has not expired, the court . . . may direct a rehearing by the arbitrators. ...”

       Whether the court improperly awarded attorney’s fees although it failed to determine what a reasonable amount was is one of the claims made on appeal by the defendant. Although we find the defendant’s substantial evidence claim dispositive, we note that the court’s award to the plaintiffs of reasonable attorney’s fees pursuant to General Statutes § 42-180 is not appealable, as it is not a final judgment. The award is interlocutory because the court never produced a finding determining the amount of the attorney’s fees. “The situation, therefore, is similar to where a judgment has been rendered only upon the issue of liability without an award of damages. Such a judgment, being interlocutory in character, is not a final judgment from which an appeal lies.” Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84, 495 A.2d 1063 (1985). Thus, the award of reasonable attorney’s fees without a determination of the amount of the attorney’s fees is not appealable for lack of a final judgment. See Liano v. Bridgeport, 55 Conn. App. 75, 80, 737 A.2d 983 (portion of appeal challenging workers’ compensation review board's decision remanding issue of attorney’s fees to commissioner for finding of reasonableness dismissed for lack of final judgment), cert. denied, 252 Conn. 909, 743 A.2d 619 (1999).

       At the time of the arbitration, the plaintiffs’ car had 16,000 miles in eleven months of use.


author: BISHOP, J.

text:
    HAROLYN JOHNSON v. JACQUELINE H. MAZZA ET AL.
    (AC 23387)
    Lavery, C. J., and Bishop and Hennessy, Js.

      Submitted on briefs September 19
    officially released November 11, 2003

      Daniel W. Moger, Jr., filed a brief for the appellant (plaintiff).
   Opinion

BISHOP, J.

The plaintiff, Harolyn Johnson, appeals from the judgment of the trial court rendered after it granted the defendant’s motion to strike the revised amended complaint. On appeal, the plaintiff claims that the court improperly (1) struck the complaint and (2) rendered summary judgment on a complaint that previously had been withdrawn. We affirm the judgment of the trial court in part and reverse it in part.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. The plaintiff and the defendant entered into a five year lease for property that the defendant owned in Stamford. As part of the lease agreement, the plaintiff paid the defendant $9000 as a security deposit. The plaintiff initiated this action against the defendant by filing a complaint on March 27, 2001. The four count complaint claimed that the defendant had made false representations and violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. It further sought reformation of the lease and an injunction. On April 24, 2001, the defendant filed a request to have the plaintiff revise the complaint. The plaintiff subsequently filed a revised complaint on May 11, 2001, claiming fraud and violation of CUTPA, and seeking reformation of the lease.

On December 18, 2001, the defendant filed a motion for summary judgment, alleging that the plaintiffs claims were barred by the doctrine of collateral estop-pel. On December 26, 2001, the plaintiff filed a request to amend the complaint, seeking to add a new count for the return of the security deposit and for double damages pursuant to General Statutes § 47a-21. On December 28, 2001, the plaintiff filed an objection to the defendant’s motion for summary judgment, asserting that he was going to withdraw the claims. The court granted the defendant’s motion for summary judgment on January 10, 2002. The court granted the request to amend on January 31, 2002. The plaintiff, after the defendant filed a request to revise, filed a revised, amended complaint based on one count for the return of the security deposit and for double damages.

On February 28, 2002, the defendant filed a motion to strike the plaintiffs revised complaint, claiming that it failed to state a claim on which relief may be granted because it failed to state that the plaintiff had provided a forwarding address for the defendant to return the security deposit. The court thereafter granted the defendant’s motion to strike, finding that the plaintiff had not alleged that he had given the defendant written notice of a forwarding address. The defendant subsequently filed a motion for judgment on the ground that the plaintiff had failed to replead after the court struck the plaintiffs complaint. The court granted the motion for judgment. This appeal followed.

I

The plaintiff initially claims that the court improperly granted the defendant’s motion to strike the claim for the return of the security deposit and for double damages pursuant to § 47a-21. We disagree with the plaintiffs claim regarding double damages, but agree with the claim regarding the return of the security deposit.

“The standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Citations omitted; internal quotation marks omitted.) Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 257 Conn. 531, 537-38, 778 A.2d 93 (2001).

A

The crux of the plaintiffs claim is that the court improperly granted the defendant’s motion to strike because he was not required to provide the defendant, his landlord, with a forwarding address under § 47a-21 (d) (2) to state a cause of action for the return of the security deposit and for double damages. Accordingly, we are required to interpret § 47a-21 (d) (2) to determine whether a plaintiff is first required to provide a landlord with a forwarding address to afford himself the double damages remedy given to tenants who have not had their security deposits returned within thirty days after terminating the tenancy.

“According to our long-standing principles of statutory construction, our fundamental objective is to ascertain and give effect to the intent of the legislature. . . . In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Zanoni v. Lynch, 79 Conn. App. 309, 316, 830 A.2d 304 (2003).

Section 47a-21 (d) (2) provides in relevant part: “Upon termination of a tenancy, any tenant may notify his landlord in writing of such tenant’s forwarding address. Within thirty days after termination of a tenancy, each landlord other than a rent receiver shall deliver to the tenant or former tenant at such forwarding address either (A) the full amount of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of this section, or (B) the balance of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of this section after deduction for any damages suffered by such landlord by reason of such tenant’s failure to comply with such tenant’s obligations, together with a written statement itemizing the nature and amount of such damages. Any such landlord who violates any provision of this subsection shall be hable for twice the amount or value of any security deposit paid by such tenant . . . .” (Emphasis added.)

In the event that a landlord is not provided with written notice of a tenant’s or former tenant’s forwarding address, § 47a-21 (d) (4) provides that the landlord is required to return the security deposit to the tenant or former tenant “within the time required by [§ 47a-21 (d) (2)] or within fifteen days after receiving written notice of such tenant’s forwarding address, whichever is later.” General Statutes § 47a-21 (d) (4). The clear language of § 47a-21 (d) (2) and (4) requires the landlord to return a tenant’s security deposit at the forwarding address that the tenant provides.

In addition to the clear language of the statute, the legislative history of the statute supports the court’s interpretation that a tenant is first required to provide a forwarding address to a landlord to be afforded the opportunity to receive the double damages remedy under § 47a-21 (d) (2). While the bill, which later became § 47a-21, was in front of the judiciary committee, George Guertin, vice president of the Hartford Property Owners Association, testified about the need for the forwarding address requirement: “Part of this bill should state that a forwarding address should be sent to the owner of the complex. . . . Well, we like the idea of the fine, but we also would like a little cooperation on the part of the tenant . . . .” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1979 Sess., pp. 655-56. It is apparent that the legislature agreed with Guertin’s testimony because when § 47a-21 was enacted, it included the language that requires a tenant to provide a landlord with a forwarding address.

In this case, the plaintiffs revised, amended complaint admitted that he did not provide the defendant with a forwarding address. Accordingly, he has failed to comply with the terms of § 47a-21 (d) (2).

Furthermore, the plaintiffs reliance on Kufferman v. Fairfield University, 5 Conn. App. 118, 497 A.2d 77 (1985), is misplaced. The plaintiff claims that Kuffer-man stands for the proposition that a tenant is not required to provide a landlord with a forwarding address when the landlord knows how to contact the tenant. Kufferman, however, does not stand for that proposition. The Kufferman court addressed whether the trial court improperly awarded a tenant double the security deposit under § 47a-21. The issue of whether a tenant has to provide a forwarding address to a landlord to seek double the security deposit as damages was not at issue in Kufferman. Accordingly, in this case, because the plaintiff did not provide the defendant with a forwarding address, as is required by the clear language of § 47a-21, the court properly granted the defendant’s motion to strike in regard to the claim for double damages.

B

The plaintiffs revised, amended complaint also sought the return of the security deposit. In its memorandum of decision granting the defendant’s motion to strike, the court focused solely on the fact that the plaintiff had failed to provide the defendant with a forwarding address. The court, however, in striking the revised, amended complaint, did not address the plaintiffs claim for the return of the security deposit. Section 47a-21 (g), entitled “Action to reclaim security deposit,” provides in relevant part that “[a]ny person may bring an action in replevin or for money damages in any court of competent jurisdiction to reclaim any part of his security deposit which may be due. ...” Further, § 47a-21 (l) provides in relevant part that “[n]othing in this section shall be construed as a limitation upon . . . (2) the right of any tenant to bring a civil action permitted by the general statutes or at common law.”

Under the terms of a lease agreement, a landlord holds a tenant’s security deposit “in trust” for the tenant. “[A] security deposit, whether commercial or residential, is the tenant’s property and . . . the landlord holds it for the tenant’s benefit subject to the tenant’s fulfilling all its obligations under the lease. Indeed, a security deposit by definition is [m]oney deposited by tenant with landlord as security for full and faithful performance by [the] tenant of [the] terms of lease, including damages to premises. It is refundable unless the tenant has caused damage or injury to the property or has breached the terms of the tenancy or the laws governing the tenancy.” (Emphasis added; internal quotation marks omitted.) Beal Bank, S.S.B. v. Airport Industrial Ltd. Partnership, 74 Conn. App. 460, 463, 812 A.2d 866 (2003). Construing the facts alleged in the revised amended complaint in the manner most favorable to sustaining its legal sufficiency, we conclude that the court should have denied the motion to strike the complaint as it relates to the plaintiffs claim for the return of the security deposit because the complaint supported a cause of action.

We recognize that Practice Book § 10-44 permits a party to file a new pleading within fifteen days after a motion to strike has been granted, which the plaintiff failed to do. Although there is no case law requiring a party to replead after a motion to strike has been granted, in this instance, even if the plaintiff were required to file a new pleading after the complaint was stricken, he would not have had to do so in this case. “[T]he law does not require the performance of a futile act.” (Internal quotation marks omitted.) Barber v. Jacobs, 58 Conn. App. 330, 336, 753 A.2d 430, cert. denied, 254 Conn. 920, 759 A.2d 1023 (2000).

II

The plaintiff next claims that the court improperly rendered summary judgment on the initial complaint, which alleged false misrepresentation and violation of CUTPA, and sought reformation of the lease. It is the plaintiffs claim that the court should not have rendered summary judgment because he “effectively amended to withdraw those counts.” We decline to review the plaintiffs claim.

In response to the defendant’s motion for summary judgment, the plaintiff filed an objection, stating that “the counts for which [the defendant] claims summary judgment are being withdrawn.” The record before us, however, does not reveal that the plaintiff actually did withdraw those counts before the court rendered summary judgment in favor of the defendant. Furthermore, the plaintiff has failed to provide this court with an adequate record to review his claim. The only reference to the court’s granting the defendant’s motion for summary judgment is the order sheet signed by the court with the word “GRANTED” circled and a line on the docket sheet reflecting that the motion was granted because the plaintiff failed to appear.

“The duty to provide this court with a record adequate for review rests with the appellant. ... It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § [60-5] .... It is not the function of this court to find facts. . . . Our role is . . . to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiffs claims] would be entirely speculative.” (Citations omitted; internal quotation marks omitted.) Niehaus v. Cowles Business Media, Inc., 66 Conn. App. 314, 316, 784 A.2d 426 (2001), rev’d on other grounds, 263 Conn. 178, 819 A.2d 765 (2003). We therefore decline to review the plaintiffs claim.

The judgment is reversed to the extent that the trial court struck the claim for the return of the security deposit and the case is remanded for further proceedings according to law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiff brought this action against Jacqueline H. Mazza individually and in Mazza’s capacity as executrix of the estate of Raymond Mazza. Because Mazza’s interests are identical in both capacities, we will refer to her in this opinion as the defendant.

       The plaintiffs revised complaint deleted the fourth count, seeking irgunctive relief. Prior to the plaintiffs filing the revised complaint, the court sustained the defendant’s objection to the plaintiffs application for a temporary injunction.

       In May, 2001, the defendant initiated a summary process action against the plaintiff based on two counts: violation of the lease due to the nonpayment of utilities and the nonpayment of rent. On July 19,2001, the summary process action was tried to the court. Following the trial, the court found in favor of the defendant on the claim on nonpayment of rent and in favor of the plaintiff on the nonpayment of utilities. The court then rendered a summary process judgment of eviction for nonpayment of utilities.