author: O’CONNELL, J.

text:
    RUTH G. MERRELL v. TOWN OF SOUTHINGTON
    (14252)
    O’Connell, Lavery and Spear, Js.

      Argued April 25
    officially released July 23, 1996

      Thomas W. Conlin, with whom was Alfred F. Morrocco, Jr., for the appellant (plaintiff).

      John F. Kania, for the appellee (defendant).
   O’CONNELL, J.

The plaintiff appeals from the determination of the value of her property that was condemned and taken by the town of Southington under its power of eminent domain in connection with a redevelopment project. The plaintiff claims that the trial court improperly (1) measured from the edge of the road pavement instead of the middle of the highway, (2) calculated the value of the property taken, and (3) failed to require the town to produce evidence of the value of the property taken.

The record discloses the following facts and procedural history. On June 12, 1985, the town filed with the clerk of the Superior Court for the judicial district of Hartford-New Britain a notice of condemnation and statement of compensation pursuant to General Statutes § 8-129. The plaintiff owned the condemned property and was operating it as a golf driving range. More specifically, the portion condemned by the town was part of the parking lot used by the patrons of the plaintiffs business. The town’s statement of compensation determined the value of the property to be “zero dollars.”

The matter was referred to Hon. Louis Shapiro, state trial referee, who, after a hearing, found that the plaintiffs damages were $8980 plus a $1000 appraisal fee. The plaintiff objected to the finding of fact and appealed to the trial court pursuant to General Statutes § 8-132. The trial court, A. Aronson, J., sustained the plaintiffs objection and the matter was referred to Hon. Simon Cohen, state trial referee. Following a hearing, Judge Cohen found that the plaintiffs damages were $20,000. The plaintiff objected to Judge Cohen’s findings and again appealed to the trial court. The parties stipulated that the hearing on the value of the property could take place before a Superior Court judge. Judge Joseph Koletsky presided over the hearing and rendered judgment in favor of the plaintiff for $14,000 in damages and $1800 in appraisal fees. The plaintiff appealed to this court from that award.

When the Appellate Court hearing commenced on February 15, 1996, we raised, sua sponte, two issues: (1) does General Statutes § 8-132 permit the trial court to review a statement of compensation or does that section mandate that a referee conduct the review, and 2) what is the status of Judge Cohen’s report? Before argument on the merits, the appellate hearing was adjourned and the parties were given an opportunity to file supplemental briefs. Following a resumed hearing, we considered the matter de novo and we affirm the judgment of the trial court.

I

We must first address the threshold question of whether General Statutes § 8-132 is jurisdictional, thereby precluding a Superior Court judge from reviewing the statement of compensation. Section 8-132 provides a procedure by which the owner of condemned property may appeal from the municipality’s statement of compensation and states, inter alia, that the court “shall appoint a state referee to make a review of the statement of compensation.”

“[T]he use of the word ‘shall,’ though significant, does not invariably establish a mandatory duty.” Oller v. Oller-Chiang, 230 Conn. 828, 838, 646 A.2d 822 (1994). “The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. ... If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. . . . Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon the failure to comply. . . . A reliable guide in determining whether a statutory provision is directory or mandatoiy is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision. ...” (Citations omitted; internal quotation marks omitted.) Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995).

The substance of § 8-132 provides a procedure by which an owner of property may appeal from a statement of compensation filed by the municipality. The requirement that the matter be heard by a referee is stated in affirmative terms unaccompanied by negative words and there is no provision invalidating the action upon the failure to comply. We therefore conclude that the requirement that the trial court refer matters to a state referee under § 8-132 is a matter of convenience rather than a matter of substance.

Our Supreme Court has concluded that statutory language that is designed to assist the trial court in the effective management of its docket is directory rather than mandatory. See Bryant v. Bryant, 228 Conn. 630, 639-40, 637 A.2d 1111 (1994). The requirement that the trial court refer condemnation cases to state referees is likewise a legislative effort to assist the court in managing its docket. We therefore conclude that the § 8-132 requirement that the trial court refer review of statements of compensation to a state referee is a matter of convenience and, therefore, the requirement is directory rather than mandatory. Accordingly, we do not reverse on the grounds that the trial court lacked jurisdiction.

We must also address the prehminary issue of the status of Judge Cohen’s report. The plaintiff and defendant both objected to Judge Cohen’s findings and report. The plaintiff claimed that the report did not comply with Practice Book § 434 because it did not state the facts and conclusions in separate and consecutive paragraphs and it appeared to be a judgment rather than a finding of facts. The defendant objected to the report on the ground that the damages were excessive. Although there is no formal order in the record or file rejecting Judge Cohen’s report, we conclude that Judge Koletsky implicitly rejected Judge Cohen’s report by proceeding to hear the matter de novo.

II

The plaintiff claims that the trial corut improperly calculated the amount of property taken by measuring from the edge of the pavement, not from the center line of the road. As the appellant, it is the plaintiffs duty to furnish a proper record for review. Practice Book § 4061. The trial court’s oral memorandum of decision is silent as to the measurements it used to determine the value of the property. “[T]o the extent that the trial court’s memorandum of decision may be viewed as ambiguous . . . we read an ambiguous record, in the absence of a motion for articulation, to support rather than to undermine the judgment.” Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230 Conn. 764, 773, 646 A.2d 790 (1994). Because the record is inadequate, we decline to review this claim.

Ill

The plaintiff complains that the trial court improperly determined the value of the property taken. The gravamen of this claim is that the trial court failed to give appropriate weight to the testimony of the plaintiffs appraiser.

The opinions of experts are of great aid to the trier of fact in a condemnation case, but the trier is not bound by them. Bennett v. New Haven Redevelopment Agency, 148 Conn. 513, 516, 172 A.2d 612 (1961). “ ‘The determination of [a property’s] value by a court is the expression of the court’s opinion aided ordinarily by the opinions of expert witnesses, and reached by weighing those opinions in light of all the circumstances in evidence bearing upon value and on its own general knowledge of the elements going to establish it.’ ” Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 183, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). “[T]he determination of the credibility of expert witnesses and the weight to be accorded their testimony is within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible.” Id. The value placed on land by the court is a question of fact that this court cannot change on appeal unless it is clear that the trial court failed to weigh an element of value that should have been considered. Geberian v. Bristol Redevelopment Agency, 171 Conn. 565, 571, 370 A.2d 1055 (1976). The record amply demonstrates that the trial court limited the value that it placed on the plaintiffs appraiser’s testimony because it determined that the testimony was not credible. We therefore cannot conclude that the trial court improperly determined the value of the property taken.

IV

The plaintiff also complains that the trial court improperly failed to require the town to produce evidence of the property’s value. The plaintiff does not furnish us with any authority, nor are we aware of any, for the contention that the trial court should have required the town to produce evidence of the value of the property taken. Because this claim has no basis in law, we cannot conclude that the trial court acted improperly by failing to require the town to produce evidence of the property’s value.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 8-129 provides in relevant part: “The redevelopment agency shall determine the compensation to be paid to the persons entitled thereto for such real property and shall file a statement of compensation . . . with the clerk of the superior court for the judicial district in which the property affected is located. . . .”

       General Statutes § 8-132 provides in relevant part: “Any person claiming to be aggrieved by the statement of compensation filed by the redevelopment agency may . . . apply to the superior court for the judicial district in which such property is situated . . . for a review of such statement of compensation . . . and said court or such judge . . . shaU, appoint a state referee to malee a review of the statement of compensation. . ..” (Emphasis added.)

       Because the appellate panel sitting at the resumed hearing was not identical to the original panel, the case was heard de novo.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    SUSAN PLIKUS ET AL. v. CONNECTICUT LIGHT AND POWER COMPANY
    (14560)
    Spear, Hennessy and Shea, Js.
    Argued March 21
    officially released July 23, 1996

      Brian T. Henebry, for the appellant (third party plaintiff).

      Michael D. Colonese, with whom, on the brief, was Jeffrey F. Buebendorf for the appellee (third party defendant).
   HENNESSY, J.

The third-party plaintiff, Connecticut Light and Power Company (CL&P), appeals from the judgment of the trial court granting the motion for summary judgment of the third party defendant, Southern New England Telephone Company (SNET). The third party action involves a contract claim. CL&P claims on appeal that the trial court improperly interpreted the contract. We affirm the judgment of the trial court.

This action originated with the complaint of Susan Plikus, an employee of SNET. The complaint named CL&P as defendant and alleged that while acting pursuant to her duties as a SNET employee, Plikus suffered personal injuries in a fall from a utility pole jointly owned by CL&P and SNET. SNET then brought an intervening complaint against CL&P seeking reimbursement of workers’ compensation benefits that it had paid Plikus. CL&P responded with a third party complaint against SNET alleging that, pursuant to article thirteen of a 1936 contract between the companies, SNET must indemnify CL&P in the amount of any judgment and pay its attorney’s fees and costs arising from Plikus’ action. Article thirteen of the contract provides in pertinent part: “Whenever any liability is incurred by either of the parties for damages for injuries to the employees ... of either party . . . arising out of the joint use of poles under this agreement . . . the liability for such damages as between the parties shall be as follows: (a) Each party shall be hable for all damages for such injuries to persons or property caused by its sole negligence or by its sole failure to comply at any time with the specifications herein provided for. (b) Each party shall be hable for ah damages for such injuries to its own employees or its own property that are caused by the concurrent negligence of both parties hereto, or that are due to causes that cannot be traced to the sole negligence of either party hereto. ... (f) In the adjustment between the parties hereto of any claim for damages arising hereunder, the liability assumed hereunder by the parties shall include in addition to the amounts paid to the claimant, all expenses incurred by the parties in connection therewith, which shall comprise costs, attorney’s fees, disbursements and other proper charges and expenditures.”

Prior to trial, both Plikus and SNET withdrew their actions against CL&P. SNET then moved for summary judgment on CL&P’s claim against SNET involving the 1936 contract. In its motion, SNET claimed that article thirteen contains a condition precedent that requires CL&P to pay damages for injuries to a SNET employee before it can recover under article thirteen of the contract. SNET argued that because that condition was not met, CL&P cannot recover under the contract. CL&P claims that the costs it incurred in defending the action brought by Plikus satisfy the condition precedent and that it may, therefore, recover those costs under the contract. The trial couxt found that the condition precedent requires a finding that CL&P is liable to Plikus and that, because that condition was not satisfied, CL&P cannot recover under the contract. We agree with SNET’s interpretation of the contract and affirm the judgment of the trial court on that ground.

We first determine our standard of review on appeal. If a contract contains definitive language, “the determination of what the parties intended by their contractual commitments is a question of law” subject to plenary review by this court. (Internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 229-30, 654 A.2d 342 (1995). We conclude that the contract in this case contains definitive language and, therefore, that the interpretation of the lease is subject to plenary review. See Kathuria v. Purcell, 40 Conn. App. 227, 230-31, 670 A.2d 889 (1996).

Next, we examine the intent of the contract. CL&P agrees that this contract contains a condition precedent, but urges us to construe the condition so as to avoid unreasonable and irrational results. CL&P focuses on the following emphasized language of article thirteen: “Whenever any liability is incurred by either of the parties for damages for injuries to the employees ... of either party . . . .” (Emphasis added.) CL&P argues that it incurred liability in defending the action against Plikus in the form of legal fees and costs. It contends that this interpretation is consistent with subsection (f) of article thirteen, which states that the liability assumed shall include attorney’s fees.

SNET focuses its claim on the following emphasized language of article thirteen: “Whenever any liability is incurred by either of the parties for damages for injuries to the employees ... of either party . . . .” (Emphasis added.) SNET contends that article thirteen is not applicable until CL&P incurs liability “for damages for injuries.” It argues that summary judgment was proper because CL&P never paid any money damages to the plaintiff as compensation for her injuries. SNET further contends that this interpretation is buttressed by the following emphasized language from subsection (f) of article thirteen: “[T]he liability assumed hereunder by the parties shall include in addition to the amounts paid to the claimant, all expenses incurred by the parties in connection therewith, which shall comprise costs, attorney’s fees . . . .” (Emphasis added.) SNET claims that this language presupposes that the claimant has been paid something before attorney’s fees and costs will be due and that those expenses were incurred in connection with a payment made to the claimant.

“In determining the meaning and effect of the controverted language in [a contract], the inquiry must focus on the intention expressed in the [contract] and not on what intention existed in the minds of the parties.” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, supra, 232 Conn. 231. “When the plain meaning and intent of the language is clear, a clause in a written [contract] cannot be enlarged by construction. There is no room for construction where the terms of the writing are plain and unambiguous, and it is to be given effect according to its language.” (Internal quotation marks omitted.) Id., 232. Furthermore, “[e]very provision of the contract must be given effect if it can reasonably be done, because parties ordinarily do not insert meaningless provisions in their agreements.” Connecticut Co. v. Division 425, 147 Conn. 608, 617, 164 A.2d 413 (1960); see also Ceci v. National Indemnity Co., 225 Conn. 165, 175-76, 622 A.2d 545 (1993); Shawmut Bank Connecticut, N.A. v. Connecticut Limousine Service, Inc., 40 Conn. App. 268, 273, 670 A.2d 880 (1996).

CL&P’s interpretation of the contract requires us to ignore the language “for damages for injuries.” It is clear, however, from the plain and unambiguous language of the contract that the condition requires that liability must be incurred “for damages for injuries.” The only liability that CL&P claims it has incurred is for attorney’s fees and costs. CL&P has incurred no damages for injuries and, therefore, has failed to meet the condition precedent set forth in article thirteen.

Additionally, the condition precedent has not been met by the payment of damages, in the form of workers’ compensation benefits, by SNET to Plikus, its employee. Such an interpretation would allow CL&P to recover attorney’s fees and costs pursuant to subsection (f) because SNET has paid damages to its own employee. It would also defy common sense and be inconsistent with subsection (b), which provides that “[e]ach party shall be liable for all damages for such injuries to its own employees . . . that are caused by the concurrent negligence of both parties hereto, or that are due to causes which cannot be traced to the sole negligence of either party hereto.” The evident purpose of article thirteen, read as a whole, is to restrict the right of indemnification between the parties with respect to employee injuries, for which workers’ compensation liability would ordinarily be incurred, to those instances in which one party has become hable to its employee for injuries caused by the sole negligence of the other party. Furthermore, subsection (f) provides that the only expenses that aparty may recover are those incurred in connection with a payment to a claimant. CL&P has not made any payment to the claimant and, thus, could not have incurred any expenses in connection therewith. Hence, both subsections (b) and (f) support our conclusion that CL&P must have paid damages for injuries to the claimant before it could recover under the contract.

The judgment is affirmed.

In this opinion the other judges concurred.


author: PER CURIAM.

text:
    JEFFREY DONTIGNEY v. COMMISSIONER OF CORRECTION
    (14294)
    Dupont, C. J., and Landau and Heiman, Js.
    Argued June 11
    officially released July 23, 1996

      James E. Swaine, for the appellant (petitioner).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearinglon, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   PER CURIAM.

After a review of the record and briefs, and after hearing from the parties at oral argument, we conclude that the petitioner in this habeas corpus appeal has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The habeas court’s dismissal of the petitioner’s writ was predicated on a factual review of the petitioner’s claim and a determination that the petitioner had failed to establish prejudice as required by Johnson v. Commissioner, 218 Conn. 403, 424, 589 A.2d 1214 (1991). In order to show prejudice, the petitioner must establish that there exists a reasonable probability that the result of the trial would have been different but for counsel’s ineffective assistance. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). A reasonable probability is a probability sufficient to undermine confidence in the verdict. Bunkley v. Commissioner of Correction, 222 Conn. 444, 454, 610 A.2d 598 (1992).

The habeas court reviewed the petitioner’s claims in the context of his testimony before that court and in light of the testimony of the other witnesses before it, including trial counsel. The habeas court also had before it the petitioner’s statements to the police explaining how it came to pass that the victim shot herself in his presence. The habeas court had before it more than sufficient evidence to find that the petitioner was not prejudiced by any assumed ineffective assistance on the part of trial counsel. Moreover, after hearing the testimony of the petitioner, the habeas court made a factual determination that his testimony lacked credibility and found that his testimony at the criminal trial would not have caused a different result.

The petitioner’s attack on the performance of appellate counsel in his direct appeal is equally unavailing. “We conclude that, in order for the petitioner to establish prejudice resulting from his appellate counsel’s deficient performance, he must establish that, as a result of that performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. Put another way, he must establish that, because of the failure of his appellate counsel to raise a [secondary lesser included offense] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt.” Bunkley v. Commissioner of Correction, supra, 222 Conn. 454. Thus, his claim with respect to the alleged ineffective assistance of appellate counsel is subject to the same infirmity as is his claim of ineffective assistance of trial counsel, a lack of proof of the requisite prejudice. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674; Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991).

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. MARCO NIVAL
    (15336)
    O’Connell, Lavery and Hetman, Js.
    Argued May 31
    officially released July 23, 1996

      Bruce A. Sturman, public defender, with whom was Bernard Steadman, special public defender, for the appellant (defendant).

      Peter A. McShane, assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   O’CONNELL, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (4). The defendant claims that the trial court improperly denied his motion for judgment of acquittal made at the close of all the evidence because the state did not present sufficient evidence that the victim suffered serious physical injury. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. On the night of September 16, 1994, the victim, Kathleen White, while hitchhiking, received a ride from Daron Viccione. They drove to an area where White had previously purchased crack cocaine. Viccione parked his car while White exited and approached three males, one of whom was the defendant. When White attempted to purchase crack cocaine, the three men asked her to step around the comer. White followed the men around the comer, where they surrounded her and proceeded to beat and kick her until she lay unconscious. When White regained consciousness, she found help and was transported by ambulance to a hospital where she was treated for her injuries. In addition to other injuries, White sustained a one-half inch permanent scar on her lip.

At the close of all the evidence, the defendant made a motion for a judgment of acquittal on the ground that the evidence of serious physical injury was insufficient to support a conviction of assault in the first degree. The court denied his motion.

A motion for judgment of acquittal must be granted if the evidence would not reasonably permit a guilty finding. Practice Book § 883. In ruling on a motion for judgment of acquittal, the trial court must determine whether a rational trier of fact could find the crime proven beyond a reasonable doubt. State v. Delarosa, 16 Conn. App. 18, 33, 547 A.2d 47 (1988).

The state claims to have proven its case under § 53a-3 (4), which defines serious physical injury as physical injury that causes serious disfigurement. Whether the physical injury sustained by White was serious was a question of fact for the jury, assuming sufficient evidence was introduced. State v. Almeda, 211 Conn. 441, 450, 560 A.2d 389 (1989). No bright line exists between physical injury and serious physical injury, and the trial court could not have determined as a matter of law that the jury could not reasonably find that White suffered serious physical injury. Id., 451.

The jury heard evidence of White’s beating, wounds, and treatment, and observed the facial scar. White’s doctor testified that she would be permanently scarred. Accordingly, the trial court properly determined that the jury could reasonably find that the evidence of the one-half inch facial scar constituted serious physical injury.

The trial court properly denied the defendant’s motion for judgment of acquittal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when ... (4) with intent to cause serious physical injury to another person and while aided by two or more other persons actually present, he causes such injury to such person or to a third person . . . .”

       General Statutes § 53a-3 (4) defines serious physical injury as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .”

       The pertinent part of Practice Book § 883 provides: “After the close of the prosecution’s case in chief or at the close of all the evidence, upon motion of the defendant . . . the judicial authority shall order the entry of a judgment of acquittal as to any principal offense charged . . . for which the evidence would not reasonably permit a finding of guilty. . . .”

       Unconsciousness has been held to constitute serious physical injury. State v. Rumore, 28 Conn. App. 402, 414-15, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992). The state in this case, however, relied solely on the serious disfigurement element of the definition provided in § 53a-3 (4) at trial.


author: FOTI, J.

text:
    SHARPER IMAGE CORPORATION v. DONALD F. MILLER, COMMISSIONER OF REVENUE SERVICES
    (14499)
    Foti, Spear and Hennessy, Js.
    Argued June 6
    officially released June 19, 1996

      Martin I. Eisenstein, pro hac vice, with whom was Michael J. Mannion, for the appellant (plaintiff).

      Anne O’Leary, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   FOTI, J.

The plaintiff appeals from the judgment rendered by the trial court confirming the imposition of a use tax by the defendant commissioner of revenue services (commissioner) on its catalogs mailed to Connecticut residents. The issue is whether the trial court correctly determined that the mailing of catalogs directly to Connecticut residents advertising the plaintiffs merchandise constituted a taxable use within the meaning of General Statutes §§ 12-411 and 12-407 (5), in that Sharper Image “owned” the catalogs in Connecticut, and made a taxable “use” of them under applicable statutes, regulations and court decisions. We affirm the judgment of the trial court.

The parties stipulated to the following facts. Sharper Image is a Delaware corporation with headquarters in San Francisco, California. It is engaged nationally and internationally in the retail sale of merchandise, and makes both in-store and mail order sales.

In Connecticut, Sharper Image maintains one store in Stamford and one store in Hartford. In addition to its store sales, Sharper Image makes sales by means of telephone and mail orders transmitted to its San Francisco office. It collects and remits to the commissioner the Connecticut sales and use taxes levied on sales made at its stores in Connecticut and on its mail order sales. The plaintiff concedes that it has a nexus with Connecticut for purposes of sales and use tax collection.

Sharper Image publishes monthly catalogs. The catalogs advertise the products that are available for sale both by catalog orders and at the retail stores, although some products are exclusively catalog order products.

Sharper Image contracts for the printing and distribution of catalogs from its San Francisco headquarters. It has entered into a contract with Mid-American Web Press, Inc., doing business as Foote & Davies of Lincoln, Nebraska (Foote & Davies), for the printing and mailing of the catalogs to residents of foreign countries and throughout the United States, including Connecticut. All instructions and payments to Foote & Davies are made from Sharper Image’s San Francisco headquarters. The numbers of catalogs printed for Sharper Image are as follows: 1988—33.9 million; 1989—40.1 million; 1990—34.3 million. Approximately 2 percent of all catalogs printed for Sharper Image are sent to Connecticut residents. The plaintiff has not contracted with any third parties located in Connecticut for the printing or distribution of the catalogs, and none of Sharper Image’s Connecticut employees are involved in any way with the printing or distribution of the catalogs that are the subject of the assessment in this action.

The catalogs are printed and labeled by Foote & Davies. Foote & Davies transports the catalogs to the mail by way of United States Postal Service (postal service) trailers located at the Foote & Davies facility in Nebraska. Sharper Image’s San Francisco headquarters provides Foote & Davies with a mailing list, which contains the names of customers and prospective customers to whom catalogs are to be sent. The catalogs are addressed to the person named or the current resident at the address listed on the label, and are sent by third class mail.

Neither Sharper Image nor Foote & Davies can withdraw or redirect the catalogs from the mail once they are placed in the postal service trailers. If catalogs are not delivered to the addressee, the plaintiff does not receive a refund or credit from the postal service for the postage or the value of the catalogs lost. Catalogs that the postal service is unable to deliver are destroyed.

Sharper Image has never withdrawn or redirected the catalogs from the mail, or ever taken physical possession of the catalogs mailed to Connecticut residents.

On December 1, 1991, the commissioner issued a notice of assessment of use taxes to the plaintiff based on the sales price of catalogs sent by Foote & Davies to Sharper Image’s customers and prospective customers who are Connecticut residents. The commissioner imposed the use tax on Sharper Image pursuant to General Statutes §§ 12-411 and 12-407 (5). The commissioner determined that Sharper Image made a taxable use of the catalogs mailed from out-of-state to Connecticut residents. On January 21, 1992, Sharper Image filed a protest of the assessment. On March 14,1994, a department hearing officer upheld the assessment insofar as liability for catalogs mailed to Connecticut. The revised assessment consists of $52,466.70 in use taxes, a $2218.33 penalty and $45,471.35 in interest through March 31,1994. The revised assessment is based on the sales price of catalogs sent by Foote & Davies to Sharper Image’s customers.

In addition to the catalogs mailed to Connecticut residents, Foote & Davies mails catalogs to Sharper Image’s Connecticut stores where they are available for employees and customers. Sharper Image paid the use tax on these catalogs because they were received in Connecticut by its Connecticut employees at its Connecticut stores. Sharper Image does not contest the amount of the taxes assessed on the catalogs at issue, but rather challenges the state’s right to levy any taxes on catalogs mailed to Connecticut residents.

This matter was presented to the trial court entirely on the pleadings, stipulations of the parties and a single plaintiffs exhibit. Accordingly, our review of the ruling of the trial court is plenary; Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53-54, 607 A.2d 424 (1992); we must decide whether the trial court’s conclusions are legally and logically correct and find support in the facts that appear in the record. Rich-Taubman Associates v. Commissioner of Revenue Services, 236 Conn. 613, 618, 674 A.2d 805 (1996).

As a preliminary matter we examine the pertinent parts of our statutes affecting the use tax in Connecticut. General Statutes § 12-411 (1) provides in relevant part: “An excise tax is hereby imposed on the storage, acceptance, consumption or any other use in this state of tangible personal property purchased from any retailer for storage, acceptance, consumption or any other use in this state, the acceptance or receipt of any services constituting a sale in accordance with subdivision (i) to (l), inclusive, of subsection (2) of section 12-407 . . . .” (Emphasis added.)

General Statutes § 12-411 (2) provides in pertinent part: “Every person storing, accepting, consuming or otherwise using in this state services or tangible personal property purchased from a retailer ... is hable for the tax. ...” (Emphasis added.)

General Statutes § 12-407 (5) defines “use” as follows: “ ‘Use’ includes the exercise of any right or power over tangible personal property incident to the ownership of that property, except that it does not include the sale of that property in the regular course of business.”

Our Supreme Court has acknowledged that the use tax had been designed “as a complementary measure [to the sales tax] to insure the equitable diffusion of the tax burden upon both in-state purchases of tangible personal property and out-of-state purchases of tangible personal property where such property is used, stored or consumed within the state . . . .” International Business Machines Corp. v. Brown, 167 Conn. 123, 129, 355 A.2d 236 (1974). “ ‘A use tax is a tax on the enjoyment of that which was purchased.’ . . .” (Citation omitted.) Morton Buildings, Inc. v. Bannon, supra, 222 Conn. 59.

In order to create tax liability under our use tax statute, three conditions must exist: “First, there must be a purchase of tangible personal property; second, the purchase must have been made for the purpose of storage, use or other consumption in this state; and, third, there must have been such storage, use or other consumption.” (Internal quotation marks omitted.) Magic II, Inc. v. Dubno, 206 Conn. 253, 256, 537 A.2d 998, cert. denied, 488 U.S. 819, 109 S. Ct. 59, 102 L. Ed. 2d 37 (1988), quoting Stetson v. Sullivan, 152 Conn. 649, 653, 211 A.2d 685 (1965).

The plaintiff claims that it did not own the catalogs when they entered Connecticut because it did not exercise any right or power incident to ownership on which to base the imposition of a use tax. Sharper Image also argues that this statutory definition of “use” cannot be judicially extended to include “distribution.”

The trial court considered, analyzed and distinguished a number of decisions of other state courts in its well reasoned memorandum of decision. The trial court concluded that the three conditions for liability under the use tax statute recited in Magic II, Inc. v. Dubno, supra, 206 Conn. 256, had been met. The first two conditions were stipulated by the parties in that the plaintiff purchased the catalogs from Foote & Davies to be sent to Sharper Image’s customers and prospective customers in Connecticut, and the purpose of the purchase was to advertise its products for sale both from the catalog and at the stores. The court concluded that the third condition was met when the catalogs were mailed at the plaintiffs direction and transported into Connecticut for delivery to the addressees. The court reasoned that the distribution falls within “any other use.” The court also determined that Sharper Image had no intent to make gifts of the catalogs to Connecticut residents, and expected to benefit financially from the delivery of the catalogs.

The plaintiff concedes that it owned the catalogs while they were at Foote & Davies. The plaintiff agrees that ownership never passed to the postal service, nor does it pass to the recipient of the catalogs until delivery is accomplished. Sharper Image argues, however, that at the time the catalogs were brought into Connecticut it did not “own” them because it could not exercise a right or power over them. We do not agree. As the trial court properly concluded, the plaintiff retained ownership in the catalogs when Foote & Davies transferred possession of them to the postal service at the direction of Sharper Image. Sharper Image maintained the incidents of ownership of the catalogs as they passed into Connecticut to the time of delivery. Ownership was never relinquished. The plaintiffs control was the direction; relinquishing the right to withdraw or redirect does not for purposes of “ownership” relinquish control. A person who shoots a bullet across a state line cannot withdraw or redirect that bullet but, by initially directing that shot, controls its flight over the state line to its eventual resting place. By directing the shipping of the catalogs, Sharper Image retained ownership, even though it relinquished physical possession to the postal service. The trial court properly concluded that Sharper Image purchased the catalogs and “maintained the incidents of ownership of the catalogs as they passed in Connecticut to the time of delivery to the addresses in Connecticut.”

Although the plaintiff argues that the trial court improperly concluded that it “owned” the catalogs in Connecticut, it argues further that, even if that conclusion is proper, the party taxed must both own the property taxed and exercise a right or power over the property in Connecticut. The plaintiff argues that the trial court “blurred” the distinction between these two separate requirements. Sharper Image also argues that as a matter of law the definition of “use” cannot be judicially extended to include “distribution.”

The use tax is imposed in Connecticut on “the storage, acceptance, consumption or any other use in this state . . . .” General Statutes § 12-411 (1). “Use” includes “the exercise of any right or power over tangible personal property incident to the ownership of that property . . . .” General Statutes § 12-407 (5). While many other states have employed the phrase “storage, consumption, use or distribution” (emphasis added), we observe that our legislature employed the phrase “any other use” to broaden the scope of defined uses without specifically listing “distribution.” The trial court recognized, and we agree, that Sharper Image uses its unsolicited advertising material for the sole purpose of promoting its business, resulting in sales and profit. It distributes its catalogs within Connecticut to expand and enhance sales, to acquire and enlarge name recognition, and generally to do a profitable business in Connecticut. The phrase “any other use” as employed in § 12-411 (1) includes but is not limited to distribution, as viewed and judged by economic standards.

The plaintiff cites a case with a similar issue that appears to be factually identical. In Sharper Image Corp. v. Dept. of Treasury, 216 Mich. App. 698, 704, 550 N.W.2d 596 (1996), the Michigan Court of Appeals, in reversing the trial court concluded that “the plaintiff did not exercise sufficient control over the catalogs in Michigan, and because the [Michigan Use Tax Act] does not define a ‘use’ to include the distribution of material, we find that the use tax may not be applied here.” While the Michigan statute defines the term “use” as “the exercise of a right or power over tangible personal property incident to the ownership of that property”; Mich. Comp. Laws § 205.92 (b); the Use Tax Act is worded so as to apply to every person in Michigan “ ‘for the privilege of using, storing or consuming tangible personal property in this state.’ ” Sharper Image Corp. v. Dept. of Treasury, supra, 701, quoting Mich. Comp. Laws § 205.93 (1). Since the legislature chose not to include the word “distribution” in the definition of use, the appeals court concluded that no provision in the statutory definition of use allowed the state to tax Sharper Image’s distribution of catalogs. We distinguish the Michigan case because our statutes contain the phrase “any other use” as discussed previously.

We realize the far reaching impact that may result from this opinion. We find that a substantial question of law exists that should be reviewed by the Supreme Court and request certification be granted pursuant to Practice Book § 4135. The question to be determined is the issue as previously set forth.

The judgment is affirmed.

In this opinion the other judges concurred.

       The use tax imposed by the commissioner on the plaintiffs catalogs mailed to the plaintiffs Connecticut stores is not part of this appeal; the plaintiff concedes that it exercises a right or power incident to ownership of those catalogs in Connecticut.

       The plaintiffs exhibit consists of an affidavit.

       This case was decided more than one year after the judgment was rendered herein.

       While the plaintiff argued before the trial court that a use tax on the catalogs is a tax on interstate commerce in violation of the commerce clause of the United States constitution, it raises no such claim on appeal.


author: FREEDMAN, J.

text:
    MARY CATHERINE DEVELOPMENT COMPANY v. TOWN OF GLASTONBURY
    (14486)
    Heiman, Hennessy and Freedman, Js.
    Argued April 22
    officially released July 23, 1996

      John A. Wall, for the appellant (plaintiff).

      Barry M. Winnick, for the appellee (defendant).
   FREEDMAN, J.

The plaintiff, Mary Catherine Development Company, appeals from the judgment of the trial court dismissing its appeal from the decision of the Glastonbury board of tax review (board). On appeal, the plaintiff claims that the trial court improperly determined that its appeal was untimely pursuant to General Statutes § 12-llTa. We agree with the plaintiff and reverse the judgment of the trial court.

The following facts are undisputed. On March 2,1994, the plaintiff appealed the valuation of certain real properties to the board. On March 9,1994, the board denied the plaintiffs appeal. The board notified the plaintiff of its decision in a letter dated March 11, 1994. By application dated May 6, 1994, the plaintiff appealed the board’s ruling to the Superior Court. The plaintiffs application was served on the defendant town of Glastonbury on May 11, 1994. The defendant moved to dismiss the appeal on the ground that it was not filed within two months of the date the board made its decision. The trial court granted the defendant’s motion, and the plaintiff has appealed.

The sole issue raised in this appeal is whether, in an appeal taken pursuant to § 12-117a, which provides that an appeal may be taken “within two months from the time of such action,” the appeal period commences with the date that the board renders its decision or the date that notice of the decision is issued to the appealing party. According to the plaintiff, the appeal period does not start running until notice of the board’s decision is issued, which in this case was March 11, 1994. Therefore, the plaintiff argues that the present appeal, which commenced with service on the defendant on May 11, 1994, was within the appeal period.

The defendant counters that the appeal period commences on the date that the board’s decision is rendered. According to the defendant, because the board in the present case rendered its decision on March 9, 1994, the appeal period expired on May 9, 1994, and, thus, the plaintiffs appeal was untimely. We conclude that the appeal period commences with the date that notice of the board’s decision is issued to the appealing party and that the trial court thus improperly dismissed the plaintiffs appeal.

We begin our analysis by noting that “[i]n construing a statute, common sense must be used, and the courts will assume that the legislature intended to accomplish a reasonable and rational result .... A statute . . . should not be interpreted to thwart its purpose. ...” (Citations omitted; internal quotation marks omitted.) Conaci v. Hartford Hospital, 36 Conn. App. 298, 301, 650 A.2d 613 (1994). In Hubbard v. Planning Commission, 151 Conn. 269, 196 A.2d 760 (1963), the court considered an analogous issue in the context of a zoning appeal. The issue in Hubbard involved the timeliness of an appeal brought pursuant to General Statutes § 8-28 that, at that time, provided that “ ‘any person aggrieved by an official action of a planning commission may appeal therefrom within fifteen days of such official action.’ ” Id., 269-70. The plaintiffs in Hubbard were notified by letter dated June 22, 1962, that on June 20, 1962, the commission had denied their application for subdivision approval. The plaintiffs served the defendant with an appeal on July 7,1962. The trial court subsequently sustained the defendant’s plea in abatement on the ground that the “official action” of the commission, within the meaning of § 8-28, was the disapproval of the plaintiffs’ application on June 20, 1962, and the appeal was not taken within fifteen days of that date. See id., 271.

On appeal, our Supreme Court held that the words “official action” under § 8-28 “embrace not only the formulation of the defendant’s decision but also the announcement thereof to the interested parties, in this case the plaintiffs.” Id., 273. Therefore, the official action in Hubbard occurred on June 22,1962, when the defendant’s secretary sent the plaintiffs the notice of decision, and, accordingly, the plaintiffs’ appeal was timely. In so holding, the court stated that “[t]he right of appeal, if it is to have any value, must necessarily contemplate that the person who is to exercise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appealable issue. Until the prospective appellant has either actual or constructive notice that a decision has been reached, the right of appeal is meaningless.” Id., 271-72.

The plaintiff cites Trap Falls Realty Holding Ltd. Partnership v. Board of Tax Review, 29 Conn. App. 97, 104, 612 A.2d 814, cert. denied, 224 Conn. 911, 617 A.2d 170 (1992), as further support for its position that the appeal period does not start running until notice of the decision is issued. In Trap Falls, an aggrieved property owner appointed an agent to represent it before the defendant board. The agent specifically requested that notice of the board’s decision be sent to the agent’s address, rather than to the property owner at the property address. The board in Trap Falls, however, mailed the notice to the property address rather than to the address of the designated agent. The trial court granted the defendant’s motion to dismiss the plaintiffs appeal, which was taken beyond the two month appeal period, on the ground that the appeal was untimely. Citing Hubbard v. Planning Commission, supra, 151 Conn. 271-72, we reversed that decision, concluding that because the notice was sent to the property address rather than the agent’s address, the agent did not receive actual or constructive notice of the board’s decision, and that the plaintiffs right to appeal was thus rendered meaningless. Trap Falls Realty Holding Ltd. Partnership v. Board of Tax Review, supra, 103-104.

The defendant argues that Trap Falls applies only when improper notice is given by the board. According to the defendant, if a board of tax review fails to give proper notice pursuant to General Statutes § 12-111, a claim that is not made in the present case, the two month limitation will not bar the action; rather, the Trap Falls rationale will allow a late appeal. The plaintiff argues in response that although § 12-111 requires that the board send written notice of its decision within one week after reaching its determination, there is no penalty for the failure to provide notice, and the board’s decision could theoretically be withheld for more than two months. Furthermore, even if notice is properly given by the board pursuant to § 12-111, the defendant’s interpretation could potentially reduce by one week the two month appeal period in § 12-117a. We agree with the plaintiff.

“ ‘[I]t is a principle of natural justice of universal obligation, that before the rights of an individual be bound by a judicial sentence he shall have notice . . . of the proceedings against him.’ . . . Fundamental tenets of due process, moreover, require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses.” (Citations omitted.) Kron v. Thelen, 178 Conn. 189, 193, 423 A.2d 857 (1979) (holding that appeal period for probate decisions commences on date that Probate Court sends notice); see also Conaci v. Hartford, Hospital, supra, 36 Conn. App. 303 (in context of workers’ compensation, ten day appeal period in General Statutes § 31-101 (a) commences on date party wanting to appeal is sent meaningful notice of commissioner’s decision).

We conclude that the trial court improperly determined that the appeal period commences with the date that the decision is rendered rather than the date that notice of the decision is issued. On remand, therefore, the trial court must determine whether, applying the correct standard, the plaintiffs appeal was timely.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 12-117a provides in pertinent part: “[A]ny person . . . claiming to be aggrieved by the action of the board of tax review in any town or city with respect to the assessment list. . . may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. . . .”

       The court in Hubbard also referred to the fact that, in 1963, after the commission’s decision, § 8-28 was amended to make clear that “henceforth, the appeal period begins to run from the date of the prescribed publication of notice of the commission’s official action.” Hubbard v. Planning Commission, supra, 151 Conn. 270-71. Similarly, we note that the legislature has recently amended General Statutes § 12-117a, effective October 1, 1996, to provide that an appeal may be taken “within two months from the date of notice of such action . . . .” (Emphasis added.) See Public Acts 1995, No. 95-283, § 17.

       Specifically, we held that “[w]hen (1) a taxpayer-property owner claiming to be aggrieved by the doings of the assessors appoints an agent to represent himself or herself in a hearing before the board pursuant to [General Statutes] § 12-111, and (2) that agent appears before the board under the authority of his or her agency and specifically requests that notice of the board’s decision be sent to the agent’s address, the board is required to abide by that request in order to commence the running of the statutory period for the filing of any appeal.” Trap Falls Realty Holding Ltd. Partnership v. Board of Tax Review, supra, 29 Conn. App, 104.

       General Statutes § 12-111 provides that the board “shall determine all such appeals and report in writing the final determination of such appeals to each such person within one week after such determination has been made. . . .”


author: SCHALLER, J.

text:
    DELORES GRIMES ET AL. v. HOUSING AUTHORITY OF THE CITY OF NEW HAVEN
    (14894)
    Dupont, C. J., and Foti and Sehaller, Js.
    Argued April 22
    officially released July 23, 1996

      David N. Rosen, for the appellants (plaintiffs).

      Edward T. Krumeich, with whom, on the brief, was Miles F. McDonald, Jr., for the appellee (defendant).
   SCHALLER, J.

The plaintiffs appeal from the judgment of the trial court granting the defendant’s motion for summary judgment. The defendant moved for summary judgment on the ground that the plaintiffs’ claims were barred by General Statutes § 52-584, the applicable statute of limitations. The plaintiffs argued in response that a related class action tolled the statute of limitations pursuant to the rule of American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1973). The dispositive issue of this appeal is whether the trial court improperly determined that, even if we were to adopt the American Pipe tolling rule, it would not apply to this case. We affirm the judgment of the trial court.

The following facts and procedural history are undisputed. On December 10, 1981, six tenants of the Elm Haven Extension apartments (Elm Haven) filed a class action lawsuit on behalf of all Elm Haven tenants against the defendant, which owned and operated the apartments. Elm Haven consists of six separate eight-story buildings at 120 and 180 Canal Street, and 185, 225, 250 and 265 Ashmun Street in the city of New Haven. The tenants sought injunctive relief and damages in two counts. In the first count, the tenants alleged that the defendant failed to provide heat and hot water in violation of General Statutes § 47a-7. In the second count, the tenants alleged that the defendant’s actions constituted a violation of the Connecticut Unfair Trade Practices Act (CUTPA). On December 22, 1981, the trial court issued an injunction ordering the defendant to make immediate repairs to restore heat and hot water to the tenants’ apartments.

In the present personal injury action, the plaintiffs alleged the following in a revised complaint. On September 4, 1982, the plaintiff Dolores Grimes was seven years old. The plaintiffs were tenants of an apartment at 250 Ashmun Street. Because the defendant failed to provide hot water on September 4, and for an extended period of time prior thereto, the plaintiff Ethel Grimes heated water on the stove in an attempt to bathe her children. Dolores tried to remove the pot of heated water from the stove to carry it into the bathroom. The hot water spilled on Delores causing second and third degree bums over approximately 22 percent of her body. Dolores required multiple skin grafts and received permanent scarring as a result of her injuries. Ethel Grimes suffered anxiety and distress as a result of seeing her daughter seconds after her daughter had been injured. The injuries to the plaintiffs were caused by the negligence of the defendant in that it failed to provide hot water in violation of § 47a-7 and paragraph 300 of the New Haven housing code, it knew for a long time preceding the injuries that the facilities for providing hot water were inoperative and defective, it failed to take measures to restore the facilities to working order and it knew or should have known that its conduct created an unreasonable risk of personal injury.

In January, 1987, the tenants in the class action suit and the defendant stipulated that the class action would be limited to those tenants who resided at Elm Haven between November 1, 1981, and March 31, 1982, and who lacked adequate heat and hot water in their apartments. On March 11,1988, the plaintiff filed the present personal injury action. The defendant pleaded as a special defense that the claims were barred by General Statutes § 52-584. On February 21, 1992, the defendant filed a motion for summary judgment on the same ground. On May 22, 1995, the trial court granted the motion for summary judgment.

Section 52-584 provides: “No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .” Because the plaintiffs negligence action was not brought until more than five and one-half years after the alleged injuries were sustained, § 52-584 bars the action unless the statute of limitations was sufficiently tolled during this period.

The plaintiff argues that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” American Pipe & Construction Co. v. Utah, supra, 414 U.S. 554. The plaintiff contends that she and her daughter were members of the asserted class “until the stipulation closing the class period” and that after the stipulation, she filed this action in a timely manner.

In American Pipe, the United States Supreme Court addressed the relationship between a statute of limitations and Rule 23 of the Federal Rules of Civil Procedure regulating class actions in federal courts. Id., 540. The court held that where the “named plaintiffs asserted claims that were ‘typical of the claims or defenses of the class’ and would ‘fairly and adequately protect the interests of the class,’ Rule 23 (a) (3), (4), the claimed members of the class stood as parties to the suit until and unless they received notice thereof and chose not to continue.” Id., 550-51. Where class action status is later denied because joinder of all members is impracticable, the court continued, “the commencement of the original class action tolls the running of the statute for all purported members of the class.” Id., 553.

The plaintiffs argue that the American Pipe rule applies to the present action because the class action sought to address the same violations of law by the defendant, namely, the defendant’s failure to provide hot water to its tenants in violation of § 47a-7. The plaintiffs further assert that individual injuries like those alleged in the present action were cognizable in the class action. The plaintiffs’ argument, however, misconstrues the pleadings and skirts the limitations of the American Pipe rule.

The United States Supreme Court emphasized that this class action tolling rule does not interfere with the function of a statute of limitations to “ ‘promote justice by preventing surprise through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.’ ” Id., 554. Fairness to defendants is ensured because the statute of limitations is tolled only when “a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment.” (Emphasis added.) Id., 554-55; Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353, 103 S. Ct. 2392, 76 L. Ed. 2d 628 (1983); United Airlines v. McDonald, 432 U.S. 385, 395, 97 S. Ct. 2464, 53 L. Ed. 2d 423 (1977).

“When reviewing a trial court’s ruling on a motion for summary judgment, we must decide whether the trial court erred in determining that there was no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 384 .... West Haven v. Hartford Ins. Co., 221 Conn. 149, 155, 602 A.2d 988 (1992).” (Citations omitted; internal quotation marks omitted.) CTB Realty Ventures XXII, Inc. v. Markoski, 33 Conn. App. 388, 391, 636 A.2d 379, cert. granted, 228 Conn. 929, 640 A.2d 115 (1994) (appeal withdrawn July 18, 1994). “ ‘The interpretation of pleadings is always a question of law for the court ....’” (Citations omitted.) Geren v. Board of Education, 36 Conn. App. 282, 290, 650 A.2d 616 (1994), cert. denied, 232 Conn. 907, 653 A.2d 194 (1995), quoting Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985).

Our review of the pleadings reveals that the class action alleged a violation of § 47a-7 and a violation of CUTPA. See Connelly v. Housing Authority, 213 Conn. 354, 355-56, 567 A.2d 1212 (1990). The present action alleged two counts of negligence by the defendant causing personal injury to the plaintiffs. The United States Supreme Court reiterated in Johnson v. Railway Express Agency, 421 U.S. 454, 467, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1974), that the “tolling effect given to the timely prior filings in American Pipe . . . depended heavily on the fact that those filings involved exactly the same cause of action subsequently asserted.” See also Crown, Cork & Seal Co. v. Parker, supra, 462 U.S. 355 (Powell, J. concurring) (“[i]t is important to make . . . certain that American Pipe is not abused by the assertion of claims that differ from those raised in the original class suit”).

We conclude that the claims raised in the class action that the defendant violated § 47a-7 and CUTPA did not provide notice to the defendant that negligence claims were being made by the plaintiff and her daughter for personal injuries, even though the latter claims arose out of the defendant’s violations of § 47a-7. While a claim of negligence may be predicated on a defendant’s violation of § 47a-7; see, e.g., Gore v. People’s Savings Bank, 235 Conn. 360, 665 A.2d 1341 (1995); the plaintiffs’ claims were not actually alleged in the class action. The trial court properly granted summary judgment in favor of the defendant because the plaintiffs’ claims were barred by § 52-584.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because we agree with the trial court that the American Pipe rule does not apply to this case, we need not reach the issue oí whether the rule should be adopted.

       General Statutes §§ 42-110a through 42-110q.

       Many of these facts are reproduced in Connelly v. Housing Authority, 213 Conn. 354, 567 A.2d 1212 (1990) (holding that trial court properly dismissed count two of class action complaint because municipal housing authority is exempted from liability under CUTPA when it leases subsidized units to low' income tenants).

       The plaintiffs specific arguments on appeal were as follows. “Did the trial court err when it held that the claims made in this action were not included within the claims made in an earlier action where: (1) both actions sought damages for the harm to health and safety caused by the defendant’s longstanding failure to provide hot water to New Haven’s Elm Haven Extension public housing project in violation of the New Haven Housing Code and Section 47a-7 of the Connecticut General Statutes; (2) plaintiffs personal injuries allegedly caused by the lack of hot water were precisely the type of harm at which the class action suit was directed; (3) plaintiffs’ claims would be included within the class action except that they occurred after the cutoff date for inclusion; (4) the cutoff date was not selected, and the plaintiffs thereby excluded from the class, until less than two years before this action was filed; and (5) contrary to the trial court’s opinion, whether repairs to the hot water system were completed by the cutoff dates for injuries included within the class action was a factually disputed issue, making summary judgment inappropriate?”
      Our resolutions of arguments (1) and (2) are dispositive of the plaintiffs appeal. Arguments (3) and (4) need not be resolved; because the plaintiffs claims were not represented in the class action, the stipulation concerning the time period covered by the class action is not relevant. Finally, with regard to argument (5), any factual issue that may exist concerning when repairs to the hot water system were completed is immaterial and, therefore, does not render summary judgment inappropriate.


author:
FOTI, J.
      LAVERY, J.,

text:
    WASHINGTON TRUST COMPANY v. MARIE D. SMITH
    (13416)
    O’Connell, Foti and Lavery, Js.

      Argued February 22
    officially released July 30, 1996

      William F. Gallagher and Robert D. Tobin, with whom were S. Joel Suisman, and, on the brief, Andrew J. Brand and Raymond L. Baribeault, Jr., for the appellants (Spicer Plus, Inc., et al.).

      Donald E. Frechette, for the appellee (plaintiff).

      Francis J. Pavetti, with whom, on the brief, was Jane W. Freeman, for the appellee (intervening defendant Hendel’s Investors Company).
   FOTI, J.

This is the appeal of the proposed defendants Spicer Plus, Inc. (Spicer), and John Holstein, trustee of City Discount Oil Nominee Trust (Holstein), from the judgment rendered by the trial court denying their motions to be made parties as of right to the underlying foreclosure action, and confirming the foreclosure by sale. The appellees are the plaintiff, Washington Trust Company (Washington Trust), which is the holder of the mortgage being foreclosed, and the intervening defendant Hendel’s Investors Company (Hendel’s), the highest bidder at the foreclosure sale.

In February, 1990, the defendant, Marie D. Smith, executed a note to Washington Trust in the principal amount of $110,000. The note was secured by a mortgage on a parcel of land in North Stonington. Upon Smith’s default, Washington Trust sought to foreclose the mortgage. A judgment of foreclosure by sale was rendered on December 9, 1993. On February 10, 1994, Holstein acquired Smith’s equity of redemption by way of a quitclaim deed. A foreclosure sale was held on February 12, 1994. Hendel’s was the highest bidder at the foreclosure sale and was therefore made a party defendant on February 18, 1994. Spicer operated a gas station and convenience store on the North Stonington property at the time of the December 9, 1993 judgment and on the date of the sale pursuant to a lease dated April 1, 1988; it was not named a defendant in the original complaint, nor did it move to intervene as a defendant before the sale took place. Spicer did, however, actively bid at the sale.

On February 16,1994, Spicer attempted to redeem the property from Washington Trust. Likewise, on February 28, 1994, Holstein sought to exercise the equity of redemption; both attempts to redeem were rejected. On February 28, the trial court confirmed the foreclosure sale. On that same day, Spicer and Holstein moved to be made defendants for the purpose of taking an appeal from the court’s order confirming the sale. They claimed that the court lacked jurisdiction to confirm the sale because they had previously redeemed the premises. The trial court denied the motions.

On March 17, 1994, Spicer and Holstein timely filed this appeal from both the judgment confirming the sale and the denial of their motions to be made defendants. On March 21, 1994, Spicer and Holstein filed a motion for articulation with the trial court, asking the court to articulate (1) whether Spicer or Holstein has a right to redeem the property; (2) if they did not possess such a right, why not; and (3) the reasons they were not considered necessary parties to the foreclosure action. A hearing on the motion for articulation was held on April 13,1994, and the trial court filed a lengthy articulation on April 28, 1994.

In denying their motions to intervene, the trial court found that at the February 28, 1994 hearing neither Spicer nor Holstein “made any attempt to introduce, nor did they introduce any testimony or evidence whatsoever, in support of their motions to intervene, to establish what interests, if any, they had in the premises foreclosed, or regarding their alleged tenders to the plaintiff, to redeem.” The trial court also concluded that the motions to intervene were untimely filed.* *

As a preliminary matter, we address Hendel’s challenge to Spicer and Holstein’s appeal contesting the judgment confirming the sale by foreclosure because they were not made parties to the underlying proceeding.

“ ‘Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.’ ” Monroe v. Horwitch, 215 Conn. 469, 473, 576 A.2d 1280 (1990); Housing Authority v. Local 1161, 1 Conn. App. 154, 157, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984).

“It is well established that the right to appeal is purely statutory and is accorded only if the conditions fixed by statute are met .... General Statutes § 52-263 provides that in proceedings before the Superior Court, ‘if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial ... he may appeal to the court having jurisdiction from the final judgment . . . .’ The right to appeal is therefore limited to parties who are aggrieved by a final judgment of the trial court.” (Citations omitted; emphasis added.) Durso v. Misiorek, 200 Conn. 656, 660, 512 A.2d 917 (1986); see also In re Juvenile Appeal (Anonymous), 181 Conn. 292, 293-94, 435 A.2d 345 (1980). The fact that the appellants may have participated in proceedings in the trial court does not make them parties or entitle them to appeal from the court’s judgment. See Hispanic Society v. New York City Police Dept., 806 F.2d 1147, 1153 (2d Cir. 1986), aff'd sub nom. Marino v. Ortiz, 484 U.S. 301 108 S. Ct. 586, 98 L. Ed 2d 629 (1988). Rather, as nonparties claiming to be adversely affected by a trial court’s judgment, they must seek the court’s permission to intervene for purposes of appealing that judgment. General Statutes § 52-107; Practice Book § 99.® Spicer and Holstein filed such motions to intervene.

We cannot separate Spicer and Holstein’s appeal from the denial of their motions to intervene from their appeal of the order confirming the sale because the latter is dependent on the former. We must, therefore, first address whether Spicer and Holstein have properly appealed from the judgment denying their motions to intervene.

“Any motion for intervention, whether permissive or of right, must be timely. . . . The timeliness of a motion for intervention, however, must be judged by all of the circumstances of the case. ... In any event, an untimely motion for intervention of right is not transformed automatically thereby into a motion for permissive intervention. The right to intervene is lost, not merely weakened, if it is not exercised in a timely fashion.” (Citations omitted.) Horton v. Meskill, 187 Conn. 187, 193-94, 445 A.2d 579 (1982).

The trial court refused to join Spicer as a party because of its failure to exercise its right to intervene until after judgment of foreclosure had been rendered and the sale of the premises had taken place. The trial court articulated that “Spicer’s motion was filed at an extremely late date in the foreclosure proceedings, and after the foreclosure sale had been held; notwithstanding that Spicer had been in possession of the premises foreclosed and had substantial advance notice of the sale, it had done nothing to seek party status prior to the sale date.”

A sign was posted on the property on January 10, 1994, announcing the upcoming sale; as a tenant in possession of the property, Spicer had notice for at least one month before the sale took place. Moreover, Spicer was aware of a potential claim on February 4, 1994, when the plaintiff caused a subpoena duces tecum to be served upon it. Spicer, however, elected to bid actively at the sale rather than move to be made a party.

Holstein’s motion to intervene was also filed at an extremely late date in the foreclosure proceedings and after the sale had taken place. Holstein acquired his interest in the property on February 10, 1994, as set forth in a recorded quit claim deed. He, therefore, had the opportunity to move to intervene two days before the sale occurred.

Both voluntarily chose not to move to intervene until after the sale was completed, notwithstanding that their “interests” must have been equally threatened at an earlier date. Spicer and Holstein filed their motions two weeks after the sale. The trial court properly considered as a factor on the issue of timeliness the length of time that they knew or reasonably should have known of their “interests” in the case before moving for permission to intervene. The trial court found that although Spicer had notice as early as January 10, 1994, it did not file its motion to intervene until after it went to the foreclosure sale, bid thirteen times, and lost the bidding to Hendel’s. In further weighing the evidence, the trial court recognized that Holstein acquired his interest shortly before the foreclosure sale, with knowledge that a sale was about to occur, and that possibly he might not be able to protect his “interest.” We conclude that the trial court properly determined that their failure to intervene prior to the sale clearly shows that Spicer and Holstein did not move to protect their claimed interests in a timely fashion. See, e.g., Horton v. Meskill, supra, 187 Conn. 194.

The trial court also denied Spicer’s and Holstein’s motions to intervene because Spicer and Holstein failed to prove that they had direct and substantial interests in the property. To intervene successfully in a pending action, the movant bears the burden of proving all of the following elements: (1) the motion to intervene must be timely; (2) the movant must have a direct and substantial interest in the subject matter of the litigation; (3) the movant’s interest must be impaired by disposition of the action without the movant’s involvement; (4) the movant’s interest must not be represented adequately by one of the existing parties to the action. Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir. 1985), cert. denied sub nom. Illinois Pro-Life Coalition, Inc. v. Keith, 474 U.S. 980, 106 S. Ct. 383, 8 L. Ed. 2d 336 (1986); Associated General Contractors, Inc. v. City of New Haven, 130 F.R.D. 4, 11 (D. Conn. 1990); see also Horton v. Meskill, supra, 187 Conn. 192 n.7; Stale Board of Education v. Waterbury, 21 Conn. App. 67, 72, 571 A.2d 148 (1990).

In order to be heard on a motion to intervene, a movant must have standing; he must allege a colorable claim of injury, or an arguably protected interest that will be affected. See Madison Hills Ltd. Partnership v. Madison, 40 Conn. App. 404, 408, 670 A.2d 1332 (1996). Standing is a prerequisite to jurisdiction; it is “the legal right to set judicial machinery in motion. . . . [Standing requires] some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 693, 600 A.2d 1019 (1991).

Spicer and Holstein claim that as necessary parties to the foreclosure proceeding, they had colorable claims to intervention as of right. Spicer argues that, as a tenant of the property, it possessed the right to redeem the property by virtue of the doctrine of equitable subrogation. Holstein argues that as owner of the equity of redemption that was quitclaimed to him from Smith, he had a recognizable interest in the property.

General Statutes § 52-102 requires that the trial court make a person a party to the action “if that person is necessary for a complete determination or settlement of any question involved therein . . . (Emphasis added.) A necessary party is one having an interest in the controversy, who ought to be made a party, so that the court may finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. Biro v. Hill, 214 Conn. 1, 4-5, 570 A.2d 182 (1990).

Claiming an alleged interest that sets forth a colorable claim in order to establish standing to be heard on a motion to intervene meets the jurisdictional threshold of appealability. Spicer and Holstein claimed that as possessors of the equity of redemption they were necessary parties to the appeal. They claim that merely alleging that colorable claim was sufficient to require the court to grant, as a matter of law, their motion to intervene. We do not agree.

“An applicant for intervention has a right to intervene . . . where the applicant’s interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment.” (Internal quotation marks omitted.) Horton v. Meskill, supra, 187 Conn. 195. The applicant has the burden of proving each of the four elements of intervention as of right; the lack of one element requires that the motion to intervene be denied. United States v. 36.96 Acres of Land, 754 F.2d 855, 858 (7th Cir. 1985).

By way of analogy, the trial court stated that “persons seeking to intervene in other civil actions [other than administrative proceedings] should satisfy standards similar to aggrievement to establish that they will either gain or lose by the direct operation of a judgment, and similar elements of proof should be required. ” The court recognized that aggrievement must be pleaded and proven, with an evidentiary hearing to determine that issue, and concluded that “[intervention also focuses on the person desiring to put his claim before the court and thus a hearing on a motion to intervene involves substantially similar issues to a hearing on aggrievement. Thus, before a person moving to intervene can put his claim before the court, he must show that he has an interest that a judgment of the court will affect; the nature and extent of the proposed intervenor’s interest also presents a question of fact.”

The motions to inteivene recited a claim that Spicer and Holstein had interests in the premises foreclosed, had tendered amounts to the plaintiff prior to the confirmation of the sale that were sufficient to redeem, and that their presence as party defendants was necessary for a full adjudication of the action. The plaintiff disputed the underlying factual predicates of the motions filed.

The trial court allowed the potential intervenors a full and fair opportunity to present any evidence they thought relevant and supportive of their motions but they chose not to do so. They introduced no evidence or testimony that would allow the trial court to determine what interests they had and what effect the judgment of the court would have on those interests. They failed to sustain their burden of proof as no proof was offered.

We conclude that the trial court properly denied the motions to intervene because Spicer and Holstein neither proved their alleged interests nor timely filed their motions to intervene.

The denial of the motions to intervene is affirmed and the appeal from the judgment is dismissed.

In this opinion O’CONNELL, J., concurred.

LAVERY, J.,

dissenting. I respectfully dissent from the majority opinion, which affirms the trial court’s denial of the motions to intervene filed by the proposed defendants, Spicer Plus, Inc., (Spicer) and John Holstein, trustee of City Discount Oil Nominee Trust (Holstein). I disagree with the majority’s conclusion that the trial court properly denied the motions to intervene because the proposed defendants neither proved their alleged interests in the property nor timely filed their motions to intervene. The majority’s conclusion deprives the owner of a leasehold interest and the owner of the fee of their respective rights to redeem without the opportunity to be heard. I would conclude that the proposed defendants alleged sufficient facts to support applications for intervention and that their right of redemption was not extinguished until the trial court confirmed the foreclosure sale.

I

The majority concludes that the trial court correctly denied the motions to intervene because Spicer and Holstein failed to sustain the burden of proving that they had direct and substantial interests in the property. I disagree with the majority’s holding that a proposed party has the burden of proving an interest in the underlying litigation before he has the right to intervene. I would hold that a motion to intervene should be decided on the tendered pleadings and the trial court should have granted the proposed parties’ motions on the basis of the allegations set forth therein.

“An applicant for intervention has a right to intervene under Practice Book § 99 where the applicant’s interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment.” (Internal quotation marks omitted.) Horton v. Meskill, 187 Conn. 187, 195, 445 A.2d 579 (1982). “Most of our cases discuss the admission of new parties as coming within the ‘broad discretion’ of the trial court. E.g, Manter v. Manter, 185 Conn. 502, 507, 441 A.2d 146 (1981); Jones v. Ricker, 172 Conn. 572, 575n, 375 A.2d 1034 (1977); Nikitiuk v. Pishtey, 153 Conn. 545, 555, 219 A.2d 225 (1966). But there are also cases which make clear that intervention of right exists in Connecticut practice. Richard v. Stanadyne, Inc., 181 Conn. 321, 322n, 435 A.2d 352 (1980); Greenwich Gas Co. v. Tuthill, 113 Conn. 684, 695, 155 A. 850 (1931); Bucky v. Zoning Board of Appeals, 33 Conn. Sup. 606, 608, 363 A.2d 1119 (1976); DeFelice v. Federal Grain Corporation, 12 Conn. Sup. 199, 201 (1943). The nature of the right to intervene in Connecticut, however, has not been fully articulated. Where state precedent is lacking, it is appropriate to look to authorities under the comparable federal rule, in this case Rule 24 of the Federal Rules of Civil Procedure.” Id., 192.

Under federal law, “[a]n application to intervene should be viewed on the tendered pleadings—that is, whether those pleadings allege a legally sufficient claim or defense and not whether the applicant is likely to prevail on the merits. United States v. American Telephone & Telegraph Co., 642 F.2d 1285, 1291 (D.C. Cir. 1980); Lake Investors Development Group v. Egidi Development Group, 715 F.2d 1256, 1258 (7th Cir. 1983).” Williams & Humbert Ltd. v. W. & H. Trade Marks, 840 F.2d 72, 75 (D.C. Cir. 1988). “All nonconclusory allegations supporting a motion to intervene are taken as true, absent sham, frivolity, or other objections.” Central States, Southeast & Southwest Areas Health & Welfare Fund v. Old Security Life Ins. Co., 600 F.2d 671, 672 (7th Cir. 1979).

In this case, Spicer’s motion to intervene alleges that it leased the premises from the defendant and, prior to confirmation of the foreclosure sale, sought to redeem. Spicer claims that it was subrogated to the rights of the defendant by virtue of the doctrine of equitable subrogation, and sought to exercise its right of redemption on February 16, 1994, when it tendered the full amount necessary to redeem the mortgaged premises. Holstein’s motion to intervene alleges that the named defendant quitclaimed all of her rights to the property, including her equity of redemption, to him and, prior to the confirmation of the foreclosure sale, he sought to redeem. Holstein also alleges that on February 28, 1994, he tendered the full amount necessary to redeem the mortgaged premises.

I would hold that the proposed party defendants have each alleged sufficient facts indicating a direct and substantial interest in the property, and each interest will be directly and immediately affected by the outcome of the underlying foreclosure action. Each proposed party sought to redeem the mortgaged premises and was refused by the plaintiff. When the bank refused redemption, Spicer and Holstein were entitled to be made parties to the litigation such that each could prove the alleged interest and redeem. I disagree with the majority’s conclusion that Spicer and Holstein have failed to sustain their burden of proof.

II

The majority also concludes that Spicer and Holstein failed to file their motions to intervene in a timely manner because the motions were filed after judgment of foreclosure had been rendered and the sale of the premises had taken place. The majority holds that the failure of a proposed party to protect his interest in property prior to the foreclosure sale precludes intervention and extinguishes his right of redemption. I would conclude that both Spicer and Holstein had the right to intervene prior to confirmation of the sale because the right of redemption is not extinguished until the trial court approves the sale.

In Horton v. Meskill, supra, 187 Conn. 193-94, our Supreme Court stated: “Any motion for intervention, whether permissive or of right must be timely. See Fed. R. Civ. Proc. 24. The timeliness of a motion for intervention, however, must be judged by all of the circumstances of the case. See NAACP v. New York, 413 U.S. 345, 366, 93 S. Ct. 2591, 37 L. Ed. 2d 648 (1973); Hodgson v. United Mine Workers of America, 473 F.2d 118, 129 (D.C. Cir. 1972). In any event, an untimely motion for intervention of right is not transformed automatically thereby into a motion for permissive intervention. The right to intervene is lost, not merely weakened, if it is not exercised in a timely fashion. Ricard v. Stanadyne, Inc., supra, 323-24. See 7A [C.] Wright & [A.] Miller, Federal Practice and Procedure § 1916; 3B [J.] Moore, Federal Practice § 24.13 [1], As a general matter, the timeliness requirement is applied more leniently for intervention of right than for permissive intervention because of the greater likelihood, that, serious prejudice will result. See Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir.), cert. denied, 439 U.S. 837, 99 S. Ct. 123, 58 L. Ed. 2d 134 (1978); Diaz v. Southern Drilling Corporation, 427 F.2d 1118, 1126 (5th Cir. 1970).” (Emphasis added.)

The dispositive issue in this appeal is whether Spicer and Holstein possessed an interest in the property when they filed their respective motions to intervene, or whether their respective rights of redemption were extinguished by the foreclosure sale. In Citicorp Mortgage, Inc. v. Burgos, 227 Conn. 116, 120, 629 A.2d 410 (1993), our Supreme Court restated the general rule that a foreclosure sale is not completed until the sale has been confirmed and ratified by the court. See also Raymondv. Gilman, 111 Conn. 605, 613-14, 151 A. 248 (1930); New England Savings Bank v. Loubier, 6 Bankr. 298, 303 (D. Conn. 1980). The ratification or confirmation of the sale is, therefore, a condition precedent to any operative effect arising out of the sale. Mariners Savings Bank v. Duca, 98 Conn. 147, 153, 118 A. 820 (1922). “Redemption by the owner of property annuls the sale and defeats the title of the purchaser threat.” 55 Am. Jur. 2d, Mortgages § 901 (1971).

Spicer and Holstein filed their motions to intervene on February 28, 1994, after the foreclosure sale but prior to the trial court’s confirmation of the sale. Prior to their motions to intervene, each had attempted to redeem the property by way of full payment of the foreclosed mortgage, but the plaintiff rejected each attempt. By filing their motions to intervene, both Spicer and Holstein sought a court order to permit them to redeem. Our cases indicate that the right of redemption is not extinguished until the court approves the foreclosure sale. Once redemption is made, the trial court is without authority to approve the sale. Spicer’s and Holstein’s motions were timely because they alleged that they tendered full payment on the foreclosed property. When the bank refused the tender of the full amount to redeem, Spicer and Holstein were entitled to be made parties. If the plaintiff had accepted the tender, there would be no need to intervene and hold a hearing on the committee sale except to set the committee fees and expenses. There would be no sale.

The majority opinion denies Spicer and Holstein their rights to full adjudication of their property interest in this matter. The conclusion reached by the majority is especially bothersome because both Spicer and Holstein allegedly attempted to redeem the property prior to filing their respective motions to intervene. I would conclude that the trial court improperly denied Spicer’s and Holstein’s motions to intervene in this action.

I would reverse the judgment of the trial court and remand this case for further proceedings.

       “The test for determining whether an order denying a motion to intervene constitutes a final judgment is whether the would-be intervenor can make ‘a colorable claim to intervene as a matter of right.’ ” Winslow v. Lewis-Shepard, 216 Conn. 533, 536, 582 A.2d 1174 (1990).

       The sale has been ordered stayed pending resolution of this appeal.

       The trial court also held, gratuitously, that the rights of redemption are extinguished with the “knockdown” of the sale; Spicer and Holstein argued that because they had each tendered payment in full prior to the trial court’s confirmation of the sale on February 28, 1994, they had timely exercised their equity of redemption.

       Hendel’s motion to dismiss was denied without prejudice to our consideration at the time of full hearing. The motion was not directed to the appeal taken from the judgment denying Spicer’s and Holstein’s motions to be made party defendants.

       Practice Book § 99 provides in pertinent part: “If a person not a party has an interest or title which the judgment will affect, the court, on his motion, shall direct him to be made a party.”
      General Statutes § 52-107 contains nearly identical language, providing in pertinent part: “If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party.”

       Neither motion contained a verification, nor included any exhibits or attachments.

       Initially, the court denied the oral motion of Spicer and Holstein to be made parties; thereafter, the court vacated its ruling and ordered a rehearing on the written motions. The underlying factual predicates were disputed at all times by Washington Trust.

       The trial court “specifically and categorically rejected” any assertion by the proposed intervenors that they were denied the opportunity to present evidence.

       We, therefore, do not address the claims of Spicer and Holstein that they effectively and timely redeemed the property. See footnote 3.

       The doctrine of equitable subrogation is designed to promote and accomplish justice, and is the mode that equity adopts to compel the ultimate payment of a debt by one who, in justice, equity, and good conscience, should pay it As now applied, the doctrine includes instances in which one person, not acting as a mere volunteer or intruder, pays a debt for which another is primarily liable, and which in equity and good conscience should have been discharged by the latter. Westchester Fire Ins. Co. v. Allstate Ins. Co., 236 Conn. 362, 371, 672 A.2d 959 (1996).

       The pleadings suggest that the plaintiff had a significant incentive to refuse the proposed party defendants’ offers to redeem. The plaintiff held a $700,000 certificate of attachment on the premises that was subsequent and subordinate to the mortgage’s being foreclosed.


text:
    ARTHUR RUSSELL ET AL. v. THOMAS O’CONNOR AND COMPANY
    (14714)
    O’Connell, Foti and Schaller, Js.
    Submitted on briefs March 27
    officially released July 30, 1996

      Richard B. Grabow, for the appellants (plaintiffs).

      John B. Farley, the appellee (defendant).
   SCHALLER, J.

The plaintiffs, Arthur Russell and Jeanne Russell, appeal from the order of the trial court granting summary judgment against them. They claim that the trial court improperly concluded that their complaint was not filed within the one year time period of General Statutes § 52-593. We reverse the judgment of the trial court.

The following facts and procedural history are undisputed. In 1989, the plaintiffs commenced an action against Natkin & Company (Natkin) for personal injuries sustained by the named plaintiff in the course of his employment at the Mid-Connecticut Resources Recovery Project. On June 24, 1992, Natkin filed a motion for summary judgment asserting that it had no responsibility for the plaintiffs’ injuries. On October 23, 1992, the trial court signed an order granting Natkin’s motion for summary judgment, stating that the “[plaintiff presented no competent evidence that the defendant had any duty to the plaintiff.” On November 19, 1992, notice of the court’s order granting summary judgment in favor of Natkin was sent to the parties.

On November 13,1993, the plaintiffs commenced the present action involving the same allegations of injury against the defendant pursuant to § 52-593, which provides in pertinent part: “When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after termination of the original action. . . .” On November 16, 1993, service of process was made on the defendant.

On September 22, 1994, the defendant filed a motion for summary judgment against the plaintiffs. The defendant asserted that it was entitled to judgment as a matter of law “based on the plaintiffs service of his complaint on the defendant more than one year- after the termination of a prior action as required by § 52-593.” The defendant argued that the action against Nat-kin terminated on October 23, 1992, when the court signed the order granting summary judgment and that the plaintiffs’ failure to effectuate service in the present action within one year of October 23, 1992, precluded the plaintiffs from bringing this action. The plaintiffs objected, arguing that pursuant to § 52-593, they had one year from the date that the clerk’s office sent notice of the summary judgment in the original action to serve the defendant in this action. The plaintiffs assert, therefore, that they complied with § 52-593 by serving the defendant within one year of the termination of the original action.

The trial court found that “the date from which the one year period runs is the date the judge grants the motion. Therefore, pursuant to the clear and unambiguous language of the statute, the prior action was terminated on October 23, 1992. The last day for service of the new complaint on the defendant was October 23, 1993. The defendant was served on November 16, 1993, more than one year after termination of the prior action. Accordingly, the motion for summary judgment is granted.”

We conclude that the one year period in which to file a new action under § 52-593 begins when notice is issued that the original action has been terminated. See Practice Book § 398. It is axiomatic that the right to bring a new action under § 52-593 assumes that the party who is to exercise the right be given the opportunity to know that the original action has been terminated. See Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 281, 487 A.2d 559 (1985); Habura v. Kochanowicz, 40 Conn. App. 590, 592, 672 A.2d 512 (1996); Noethe v. Noethe, 18 Conn. App. 589, 595, 559 A.2d 1149 (1989). On November 19, 1992, notice was sent to the plaintiffs that their original action against Natkin was terminated. In the present action, the defendant was served on November 16,1993, within one year from the date of notice that the original action was terminated.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The trial court’s order was rendered in writing and not in open court.

       There is nothing in the record to indicate what happened to the order between October 23 and November 19, 1992.

       A notation by a clerk of the court in the court file, however, raises a presumption that notice was sent and received, absent a finding to the contrary. Morelli v. Manpower, Inc., 34 Conn. App. 419, 423, 642 A.2d 9 (1994).