author: GRUENDEL, J.

text:
    CADLE COMPANY v. DAVID D’ADDARIO, EXECUTOR (ESTATE OF F. FRANCIS D’ADDARIO), ET AL.
    (AC 31174)
    (AC 31674)
    (AC 32066)
    Gruendel, Robinson and West, Js.

      Argued May 25
    officially released September 6, 2011

      Gary S. Klein, with whom was Susan R. Briggs, for the appellants-appellees (defendants).

      C. Donald Neville, for the appellee-appellant (plaintiff).
   Opinion

GRUENDEL, J.

In these consolidated appeals, the defendants, David D’Addario and Lawrence D’Addario, as coexecutors of the estate of F. Francis D’Addario (decedent), appeal from the judgment of the trial court rendered in favor of the plaintiff, Cadle Company, in connection with a jury trial of a collection action. On appeal, the defendants claim that the court improperly (1) denied their motion to strike the plaintiffs prayer for relief, (2) granted the plaintiffs motion to strike their counterclaims, (3) denied their motion to set aside the verdict, and (4) awarded the plaintiff statutory post-judgment interest. We affirm the judgment of the trial court with respect to the defendants’ first three claims but reverse its award of statutory postjudgment interest. Also, on cross appeal, the plaintiff claims that the court improperly held that it was not entitled to recover a delinquency charge provided for in a demand note (note) executed by the decedent. We agree, and, accordingly, reverse that portion of the judgment of the trial court. The judgment is affirmed in all other respects.

The record reveals the following relevant facts and procedural history. In 1985, the decedent executed the note, which had a principal value of $1 million. Following his death in 1986, the defendants, the decedent’s two sons, were appointed as coexecutors of the decedent’s estate. In 1994, the Bank of New Haven (bank) transferred the note and all of its right, title, and interest therein to the plaintiff. In 2002, the plaintiff commenced this action to collect on the note. On March 29, 2006, the defendants filed an answer and a three count counterclaim alleging: (1) violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.; (2) abuse of process; and (3) vexatious litigation, in violation of General Statutes § 52-568. On September 1,2006, the plaintiff filed a motion to strike the counterclaim in its entirety. The court initially granted in part the plaintiffs motion to strike and ultimately granted summary judgment in favor of the plaintiff with respect to all of the defendants’ counterclaims.

The case proceeded to a jury trial. Before trial, both parties filed motions in limine seeking to exclude certain evidence. The plaintiff sought to exclude evidence of the amount that it had paid to purchase the note and certain evidence relating to the defendants’ counterclaim. The defendants sought exclusion of any evidence that the amount of the plaintiffs claim exceeded the principal value of the note, or $1 million.

On May 28, 2009, the court addressed those evidentiary issues and ruled that the plaintiff would be allowed to adduce evidence that its claim exceeded $1 million. The court reserved judgment on the admissibility of the purchase price, ruling that the defendants would be permitted to lay the proper foundation for their proffer of evidence relating thereto. During trial, the court again addressed the plaintiffs motion in limine seeking to exclude evidence regarding the purchase price of the note and the defendants’ counterclaim. The court ultimately excluded evidence of both. In so ruling, the court reasoned that such evidence was irrelevant and had the tendency to confuse the jury.

After the plaintiffs case-in-chief, the defendants moved for a directed verdict, claiming that the plaintiff had not proven a reasonable substitute interest rate for the bank’s prime rate and that it was not entitled to collect a “delinquency charge” of 2 percent per year because it constituted a late fee prohibited by Federal Deposit Ins. Corp. v. Napert-Boyer Partnership, 40 Conn. App. 434, 671 A.2d 1303 (1996). The court denied the defendants’ motion regarding the reasonable substitute interest rate, ruling that the plaintiff had presented sufficient evidence as to a reasonable substitute interest rate to reach the jury. Nonetheless, the court granted the defendants’ motion regarding the delinquency charge, ruling that the plaintiff could not collect the delinquency charge as it constituted an impermissible late charge.

On June 3, 2009, the jury returned a verdict in favor of the plaintiff. Specifically, the jury found that the plaintiff had proven that the amount due on the note was $810,245.59, that the interest rate it sought was a fair and reasonable substitute interest rate for the bank’s rate, that interest should accrue from July, 1990, and that the plaintiff was entitled to costs of collection. On June 11, 2009, the defendants filed a motion to set aside the verdict and for a new trial and moved for judgment in accordance with their motion for a directed verdict. The court denied those motions.

On March 1, 2010, the court rendered judgment for the plaintiff, awarding it $810,245.59 as the principal amount due under the note, interest accrued from June, 1990, to June 3, 2009, in the amount of approximately $1.3 million, interest paid on the principal from June 4, 2009, to the date of the entry of judgment in the amount of $28,863.00, postjudgment interest at the rate of 10 percent from the date of judgment until the full amount is paid and costs of collection, including reasonable attorney’s fees, in the amount of $435,369.54. On June 8, 2010, the defendants filed a motion for rectification and/or articulation concerning the court’s award of postjudgment interest, and the motion was denied. These appeals followed. Additional facts will be set forth as necessary.

I

DIRECT APPEAL

A

The defendants first claim that the court improperly denied their motion to strike the plaintiffs prayer for relief. Specifically, the defendants claim that the plaintiff was not entitled to obtain a money judgment under General Statutes § 45a-400 and that the judgment rendered by the court was not a money judgment under General Statutes § 52-350a (13). We disagree.

The following additional facts and procedural history are relevant to the resolution of this claim. On May 13, 2004, the defendants moved to strike the prayer for relief in the plaintiffs amended complaint, filed May 10, 2004. The defendants claimed that the prayer for relief should be stricken for legal insufficiency because the statute the plaintiff brought the action under, § 45a-400, does not authorize a money judgment, damages, interest and costs, or attorney’s fees. On May 27, 2004, the plaintiff filed an objection to the defendants’ motion to strike. On July 6, 2004, the court denied the defendants’ motion, concluding that the plaintiffs prayer for relief was properly pleaded.

Before addressing the merits of the defendants’ claim that the court improperly denied their motion to strike, we set forth the applicable standard of review and legal principles governing our analysis. The purpose of a motion to strike “is to test the legal sufficiency of a pleading.” (Internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). The motion to strike “contests] . . . the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992). In addition, it may test “the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross-complaint . . . .” Practice Book § 10-39 (a) (2); see also Carchidi v. Rodenhiser, 209 Conn. 526, 531, 551 A.2d 1249 (1989).

“The standard of review in an appeal from the granting of a motion to strike is well established. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling . . . is plenary. ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted. ... A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (Citations omitted; internal quotation marks omitted.) Metcoff v. Lebovics, 123 Conn. App. 512, 516, 2 A.3d 942 (2010).

Section 45a-400 sets out the procedure for when a claimant presents a claim to the fiduciary and the fiduciary does not disallow the claim within thirty days following the hmitation period in General Statutes § 45a-395. A claimant may then give written notice that he intends to bring an action on the claim within four months. If the claimant fails to bring an action within four months of the notice, the claimant is barred from bringing an action on his claim against the fiduciary.

Although our research reveals no binding authority addressing the precise statutory issue presented by the case at bar, General Statutes § 45a-363, the equivalent statute for claims against decedents’ estates for decedents dying on or after October 1,1987, has been explicitly recognized as purely procedural and not as providing a substantive cause of action. For example, in Keller v. Beckenstein, 122 Conn. App. 438, 444-45, 998 A.2d 838, cert. granted, 298 Conn. 921, 4 A.3d 1227, 5 A.3d 486 (2010), this court held that § 45a-363 does not provide a cause of action and could not confer subject matter jurisdiction on the Superior Court when it did not otherwise have subject matter jurisdiction because the claim was not ripe for adjudication. “[T]he purpose of [§ 45a-363] is to encourage the timely settlement of decedents’ estates. [Section] 45a-363 is purely procedural in nature, governing the time within which to file a suit against an estate when a claim has been rejected by an executor or administrator.” (Emphasis in original; internal quotation marks omitted.) Id., 444-45. “[T]he statute does not independently create a cause of action or confer jurisdiction on the Superior Court and, therefore, does not obviate the need for a plaintiff to plead a recognized cause of action over which the court has jurisdiction.” Id., 445; see Kubish v. Zega, 61 Conn. App. 608, 620, 767 A.2d 148, cert. denied, 255 Conn. 949, 769 A.2d 62 (2001).

From these cases, we may infer that § 45a-400, like its counterpart, § 45a-363, does not itself provide a cause of action. Notwithstanding the fact that the plaintiff characterizes § 45a-400 as authorizing a cause of action, the statute is solely procedural in nature. Therefore, § 45a-400 does not determine whether the plaintiff was entitled to a money judgment, and the defendants’ argument that the plaintiff cannot recover money damages because the statute does not authorize them must fail. This is a collection action to enforce the note and was recognized as such by the court. The plaintiffs amended complaint alleges a cause of action for collection and states that the defendants are hable to the plaintiff for the principal amount of the note, plus interest, costs, and attorney’s fees as provided for in the note, and that the defendants have failed to tender the sum due. The prayer for relief states that the “action is based upon an express agreement to pay a definite sum.” In light of the foregoing, we conclude that the plaintiffs prayer for relief was legally sufficient.

Also, we reject the defendants’ argument that the court’s judgment does not fall within the ambit of § 52-350a (13) because it fails to call in whole or in part for the payment of a sum of money but, rather, only determined the amount of the plaintiffs claim. The court’s March 1, 2010 judgment for the plaintiff orders the payment of the principal amount due under the note, as determined by the jury, as well as interest accrued from June, 1990, to June 3,2009, costs of collection, and for postjudgment interest in the amount of 10 percent. The court’s judgment orders the payment of a sum of money and, as such, is unequivocally a money judgment. Accordingly, the defendants’ claim to the contrary is meritless.

B

The defendants next claim that the court erred in granting the plaintiffs motion to strike their counterclaims for abuse of process, vexatious litigation, and CUTPA violations. Specifically, the defendants argue that they pleaded a proper factual basis for their counterclaims and that the counterclaims were legally sufficient. We disagree.

A brief overview of the prior litigation between these parties is necessary for the disposition of this claim. Litigation between the parties began in 1997, when the plaintiff filed a motion for an order with the Probate Court seeking the removal of the defendants as executors of the estate. The motion was denied, and the plaintiff appealed to the Superior Court. The case was dismissed by the Superior Court sua sponte. The plaintiff appealed to this court, and the matter was transferred to our Supreme Court. The Supreme Court affirmed the Superior Court’s dismissal of the removal action but held that the plaintiff had a valid claim against the estate. See Cadle Co. v. D’Addario, 268 Conn. 441, 844 A.2d 836 (2004). The plaintiff also filed a federal breach of fiduciary duty action that was dismissed for a lack of subject matter jurisdiction. Cadle Co. v. D’Addario, United States District Court, Docket No. 3:01CV 1103 (AHN), 2005 WL 3499998 (D. Conn. 2005).

On March 29, 2006, the defendants filed their answer and a three count counterclaim alleging (1) a violation of CUTPA, (2) abuse of process and (3) vexatious litigation. The CUTPA counterclaim was based in part on alleged extrajudicial conduct that the defendants have labeled as the plaintiff’s “campaign,” referring to alleged attempts to pressure nonparties to the litigation, namely, other members of the D’Addario family or beneficiaries of the D’Addario estate, to pay the debt. The CUTPA counterclaim also alleged that the plaintiff was inconsistent in its claims for the principal balance on the note and imposed the delinquency charge of 2 percent. All three counterclaims contained factual allegations about what the defendants have called the “litigation,” which refers to the removal action and appeal and the federal breach of fiduciary duty action.

On September 1, 2006, the plaintiff moved to strike all three counts of the defendants’ counterclaim. The court granted that motion on May 14, 2007. The court’s memorandum of decision makes clear that the court misunderstood the basis for the counterclaims and dismissed them, believing that the underlying litigation was the present case. The defendants subsequently filed a motion to reargue or reconsider the motion to strike the counterclaims in part because of the discrepancy between the bases for the counterclaims as pleaded and as interpreted by the court. On July 23, 2007, the court affirmed its decision to strike the vexatious litigation and abuse of process counterclaims but did not specifically address the issue raised by the defendants in their motion for articulation that the basis of the counterclaim was the removal case, not the present litigation. The court also restored the CUTPA count, with the limitation that any paragraphs contained in the count would be stricken insofar as they alleged that there was a breach of the covenant of good faith and fair dealing, that there was an abuse of process or that the plaintiff engaged in vexatious litigation.

On February 13, 2009, the plaintiff filed a motion for summary judgment as to the remaining CUTPA count. On May 13, 2009, the court granted the motion, thus eliminating the counterclaims entirely.

Before addressing the merits of the defendants’ specific claims on appeal, we set forth the applicable standard of review governing our analysis. Our review of a motion to strike is plenary. “A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim.” (Internal quotation marks omitted.) JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn. App. 125, 131, 952 A.2d 56 (2008).

1

We first address the defendants’ claim that the court improperly granted the plaintiffs motion to strike the second count of their counterclaim alleging abuse of process. Specifically, the defendants argue that their abuse of process counterclaim was factually and legally sufficient. We disagree.

“An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed. . . . Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process . . . against another primarily to accomplish a purpose for which it is not designed .... Comment b to § 682 explains that the addition of primarily is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant.” (Citation omitted; internal quotation marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987); see Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 772-73, 802 A.2d 44 (2002).

The defendants’ counterclaim alleged that the plaintiffs primary purpose in the litigation was to intimidate nonparties to the litigation or to force them to pay the plaintiff money for the debt of the estate, which they are not liable for in their individual capacities. The defendants were required to plead facts sufficient to show that forcing nonparties to the litigation to pay the debt was the plaintiffs primary purpose. The counterclaim asserts multiple times that that was the plaintiffs purpose but did not plead facts sufficient to support that claim. The defendants’ only support for the claim that forcing nonparties to pay the debt was the plaintiffs primary purpose is two references to the plaintiffs internal documents. The defendants allege that the plaintiffs “conscious desire is set forth in [the plaintiffs] internal documents . . . .” and the plaintiff “has expressed its conscious desire in documents . . . .” At most, these facts indicate that the plaintiff had an incidental motive, but an incidental motive is insufficient. See Mozzochi v. Beck, supra, 204 Conn. 494. The defendants failed to plead facts sufficient to show that the plaintiffs primary purpose in bringing the removal action was to accomplish a purpose for which it was not designed. Therefore, the court properly granted the plaintiffs motion to strike the abuse of process counterclaim.

2

We turn next to the claim with regard to vexatious litigation. The defendants alleged that, by bringing the removal action and the breach of fiduciary duty action, the plaintiff has engaged in vexatious litigation in violation of § 52-568. We disagree.

“A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint. To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiffs favor.” (Internal quotation marks omitted.) Keller v. Beckenstein, supra, 122 Conn. App. 443-44.

The defendants alleged that the motion for order in the Probate Court seeking their removal as executors of the estate, the subsequent appeal to the Superior Court and ultimately to our Supreme Court were initiated “without probable cause and with a malicious intent . ...” In this appeal, the defendants maintain that a lack of probable cause can be inferred from the dismissal of the removal case by the Superior Court, which was affirmed by our Supreme Court. The law does not support this inference. Our Supreme Court clearly stated that “[p]robable cause may be present even where a suit lacks merit. Favorable termination of the suit often establishes lack of merit, yet the plaintiff in [a vexatious litigation suit] must separately show lack of probable cause. . . . The lower threshold of probable cause allows attorneys and litigants to present issues that are arguably correct, even if it is extremely unlikely that they will win .... Were we to conclude . . . that a claim is unreasonable wherever the law would clearly hold for the other side, we could stifle the willingness of a lawyer to challenge established precedent in an effort to change the law.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 103-104, 912 A.2d 1019 (2007). A lack of probable cause cannot be inferred from the dismissal of the case, and the defendants did not plead any other basis to establish a lack of probable cause. Therefore, the court properly granted the plaintiffs motion to strike the defendants’ vexatious litigation counterclaim.

3

Turning finally to the defendants’ claim with regard to the alleged CUTPA violations, the defendants assert that the court erred in striking parts of the CUTPA counterclaim and allowing it to proceed only on a limited basis. The court struck the aspects of the CUTPA counterclaim sounding in abuse of process, vexatious litigation, and the breach of the covenant of good faith and fair dealing but otherwise allowed the counterclaim to proceed. We conclude that it was proper to strike the defendants’ CUTPA counterclaim sounding in abuse of process and vexatious litigation. We also conclude that the court improperly denied the plaintiffs motion to strike the remaining aspects of the CUTPA counterclaim.

The following additional procedural history is relevant to the resolution of this claim. On January 8, 2008, the plaintiff filed a motion to compel the defendants to state with specificity the nature of the conduct of the plaintiff and the alleged damage, after the defendants objected to the plaintiffs interrogatories requesting such information. The interrogatories sought, in addition to other information, a detailed list of each action or inaction that was an element or part of the plaintiff’s conduct that allegedly caused damage to the defendants, as claimed in the counterclaim. On March 11, 2008, the court entered an order requiring the defendants to, inter aha, “identify which pleadings and/or decisions in prior cases they are relying on in connection with their CUTPA claims . . . .”

On April 21, 2008, the defendants filed their compliance with the order. The defendants provided four incidents of conduct by the plaintiff that caused damage to the defendants as alleged in the counterclaim. The first incident was a 1997 memorandum authored by the plaintiff indicating its intent to “ ‘stir up commotion’ ” with the defendants. The second incident was a demand in 2000 by the plaintiff that the note be paid within two days, and when it was not, the plaintiff began charging the default interest rate. The third incident is a 2002 telephone message left by Daniel Cadle for David D’Addario that was insulting and claimed that David D’Addario had a personal obligation to pay the decedent’s debt. The fourth incident was a 2003 telephone conversation between Daniel Cadle and David D’Addario in which Daniel Cadle threatened D’Addario with federal racketeering claims for the failure to pay the note.

At the outset we address the issue of standing. CUTPA provides a cause of action to a party who suffers an “ascertainable loss” as a result of an unfair trade practice. General Statutes § 42-110g (a). “[T]he words any ascertainable loss ... do not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case.” (Internal quotation marks omitted.) Hinchliffe v. American Motors Corp., 184 Conn. 607, 612-13, 440 A.2d 810 (1981). “Under CUTPA there is no need to allege or prove the amount of the ascertainable loss.” Id., 614. An ascertainable loss is a “deprivation, detriment [or] injury” that is “capable of being discovered, observed or established.” (Internal quotation marks omitted.) Id., 613.

In determining if the defendants have suffered an ascertainable loss, we consider only alleged harm to the estate. Both the counterclaim and the compliance with the court’s order are replete with allegations of harm against individuals who are not parties to this litigation. Any harm or loss suffered by nonparties does not establish standing for the estate to claim a CUTPA violation. In evaluating the sufficiency of the CUTPA counterclaim, we will not consider any portions of the counterclaim alleging harm to nonparties or relating to the litigation. We also will not consider the first, third, or fourth incidents listed in the compliance with the court order to supplement the counterclaim, as those alleged incidents represent harm to either the D’Addario family generally, or to David D’Addario individually.

Aside from the allegations of harm to nonparties and the allegations based on the litigation, the remaining factual allegations of misconduct by the plaintiff are as follows: during the litigation, the plaintiff inconsistently claimed the amount of the principal balance due on the note and the interest rate, and the plaintiff imposed the delinquency charge of 2 percent. “The ascertainable loss requirement is a [threshold] barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief.” Id., 615. The statements of a party during litigation and a disagreement over the terms of the note do not cause the type of ascertainable loss required by CUTPA.

C

The defendants next claim that the court erred in denying their motion to set aside the verdict and for a new trial. They claim that the denial of their motion embraces three erroneous evidentiary rulings: (1) the exclusion of evidence relating to the three count counterclaim; (2) the exclusion of evidence relating to the purchase price of the note; and (3) the admission of evidence that the amount due on the note was greater than $1 million. We disagree.

On June 11,2009, the defendants filed a motion to set aside the verdict and for a new trial, and for judgment in accordance with their motion for a directed verdict made during trial. The defendants argued that the verdict should be set aside because: (1) the court erroneously precluded evidence relating to the three part counterclaim; (2) the court erroneously precluded evidence of the purchase price of the note; (3) the court erroneously admitted evidence that the amount due on the note was greater than $1 million; (4) the verdict was against the evidence because the plaintiff did not prove beyond a reasonable certainty the principal amount due on the note; and (5) the plaintiff failed to meet its burden of proof as to the reasonableness of the substitute interest rate. On November 2, 2009, the court summarily denied the motion. The defendants failed to file a motion for articulation.

Consistent with our rules of practice, it is the sole responsibility of the appellant to provide this court with an adequate record for review. Practice Book § 61-10. Practice Book § 66-5 permits an appellant to seek an articulation by the trial court of the factual and legal basis on which it rendered its decision. “[A]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated, is unclear. . . . The purpose of an articulation is to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Citations omitted; internal quotation marks omitted.) Fantasia v. Milford Fastening Systems, 86 Conn. App. 270, 283, 860 A.2d 779 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1286 (2005). “[W]e will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 789, 804 A.2d 889 (2002). The defendants claim on appeal that they did not need to file a motion for articulation because the court’s reasoning was clear from the record. We disagree. Because the defendants failed to provide an adequate record for review of their claim that the court improperly denied their motion to set aside the verdict, we need not reach the merits of this claim.

D

The defendants’ final claim is that the court improperly awarded statutory postjudgment interest under General Statutes § 37-3a until the note is paid in full. Specifically, the defendants claim that § 37-3ais inapplicable because a postjudgment rate of interest was specified in the note. We agree.

The following additional facts and procedural history are relevant to the resolution of this claim. When the court rendered judgment in favor of the plaintiff on March 1, 2010, it awarded the plaintiff postjudgment interest in the amount of 10 percent from the date of judgment until the full amount is paid. The note itself provides in relevant part for interest at the rate of the bank’s prime rate plus 1.5 percent, “payable at such [r]ate until the entire principal of this Note has been fully paid, whether before or after maturity, by acceleration or otherwise, and whether or not judgment is obtained . . . .”

Before addressing the merits of the defendants’ claim, we set forth the applicable standard of review and legal principles governing our analysis. Although a trial court’s decision to award postjudgment interest is subject to review for an abuse of discretion; see Bower v. D’Onfro, 45 Conn. App. 543, 551, 696 A.2d 1285 (1997); the defendants’ claim on appeal that § 37-3a is inapplicable is a question of law. Sosin v. Sosin, 109 Conn. App. 691, 708-709, 952 A.2d 1258 (2008), rev’d in part on other grounds, 300 Conn. 205, 14 A.3d 307 (2011). Determining whether the plaintiff is entitled to postjudgment interest at the statutory rate or the rate specified in the note requires interpretation of the unambiguous terms of the contract and statutory construction, which are questions of law to which the plenary standard of review applies. Montoya v. Montoya, 280 Conn. 605, 612, 909 A.2d 947 (2006) (construction of contractual language); State v. Elliott, 127 Conn. App. 464, 477-78, 14 A.3d 439 (2011) (construction of statutory language).

At common law, a note or contract that was the subject of an action was said to merge into the judgment, such that there could no longer be an agreement concerning the judgment. See Bowers v. Hammond, 139 Mass. 360, 361, 31 N.E. 729 (1885). In Connecticut, however, legal interest on judgments is expressly provided for, and “the common-law impediment to interest on judgments does not exist . . . .” Little v. United National Investors Corp., 160 Conn. 534, 537, 280 A.2d 890 (1971). General Statutes § 52-350f provides in relevant part that “[a] money judgment may be enforced against any property of the judgment debtor ... to the amount of the money judgment with . . . interest as provided by chapter 673 [General Statutes § 37-1 et seq.] on the money judgment . . . .” Section 37-1 defines the legal rate of interest and provides in relevant part that “[t]he compensation for forbearance of property loaned . . . shall, in the absence of any agreement to the contrary, be at the rate of eight per cent a year . . . .” Section 37-3a governs the interest rate recoverable as damages and provides in relevant part that “interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . . . including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable. . . .”

In Hubbard v. Callahan, 42 Conn. 524 (1875), our Supreme Court interpreted a predecessor to § 37-3a. That statute, Public Acts 1873, c. 87, § 2, provided that “in all suits in law or equity now pending, or which may hereafter be brought, for the recovery of moneys loaned, no greater rate of interest than seven per cent, per annum shall be recovered or allowed for the time after the money loaned becomes due.” (Internal quotation marks omitted.) Id., 537. The case in question was an action on a note, which provided for interest at the rate of 15 percent after maturity. Our Supreme Court held that the act was not intended to apply, and did not apply, to contracts in which there was an express agreement for payment of a specified lawful rate of interest after maturity. In fact, the court went on to note that if the statute did apply to contracts, where the parties had contracted for a rate, it would be unconstitutional as an unlawful impairment of the obligation of contracts. Id., 537-38.

In Globe Investment Co. v. Barta, 107 Conn. 276, 140 A. 202 (1928), our Supreme Court again interpreted the predecessor statute to § 37-3a. At that time, General Statutes § 4797 provided in relevant part that “[i]nterest at the rate of six per centum a year, and no more, may be recovered and allowed in civil actions, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable.” (Internal quotation marks omitted.) Id., 278. The promissory note in dispute provided for interest at a rate of 6 percent and a postmaturity rate of 12 percent. Id., 277. The court acknowledged that the “language of this [statutory] provision would seem to justify a construction rendering it applicable to the facts of the present case” but, nevertheless, proceeded to hold that it did not apply in light of its legislative history and judicial construction. Id., 278. Relying on Hubbard, the court held that the statute only applied to “those cases in which the contract makes no provision as to the rate of interest after maturity and to exclude therefrom those in which ... a rate of interest, otherwise lawful, is prescribed as applying from and after the time when the principal becomes payable.” Id., 279.

In Little v. United National Investors Corp., supra, 160 Conn. 534, our Supreme Court interpreted General Statutes § 37-3, a more recent predecessor to § 37-3a, and substantially the same in substance as the statute in question in Hubbard. The note in Little provided that “interest shall accrue at nine (9%) per cent per annum on unpaid principal balances, before and after maturity, by acceleration or otherwise . . . .” (Internal quotation marks omitted.) Id., 542. The court awarded damages calculated at the statutory rate of 6 percent from the date of the judgment. Id., 535. Our Supreme Court held that “the statute was not intended to, and did not, apply to contracts in which there was an express agreement for the payment of a specified lawful rate of interest after maturity. . . . The statute is applicable to ‘damages for the detention of money after it becomes payable’ in those cases in which the contract makes no provision as to the rate of interest after maturity but is not applicable in those in which ... a rate of interest, otherwise lawful, is prescribed as applying from and after the time when the principal becomes payable.” Id., 540. The court explained that “[t]he legislative history of §§ 37-1 and 37-3, viewed in the light of the developing case law, can only lead to the unquestioned conclusion that the General Assembly by use of the phrase ‘in the absence of any agreement to the contrary’ in § 37-1 defining the legal rate of interest to be paid on judgments intended to and did, within the limits of the usury restrictions, allow parties to agree on the rate of interest on judgments in cases such as this.” Id., 541.

One distinction exists between the notes in these cases and the note in the case at bar. Our courts have addressed many cases where the rate the parties contracted for is higher than the statutory rate. In the present case, the contracted rate is likely lower than the statutory rate and is a variable rate instead of a fixed rate. Given the unequivocal nature of the holdings of these cases, we find that the distinction is not relevant. The foregoing jurisprudence has emphasized the vitality of the doctrine of the freedom to contract, and the courts have held unequivocally that parties may contract for postmaturity and postjudgment interest.

Therefore, Little is applicable and binding. Section 37-3a applies only where the parties have not agreed otherwise. The bank and the decedent agreed that interest would be payable at the note rate until the entire principal of the note had been fully paid. “There is nothing in the nature of the transaction, nor in the customary mode of loaning money, that makes it unreasonable or unjust to allow parties to contract for a rate of interest after maturity as well as before, but rather the contrary is true.” Id. The rate of the note applies, by its terms, before or after maturity, by acceleration or otherwise, and whether or not judgment is obtained. Accordingly, we reverse the court’s award of statutory postjudgment interest and remand for a calculation of postjudgment interest in accordance with the terms of the note.

n

CROSS APPEAL

The plaintiff claims on cross appeal that the court erred when it ruled that the plaintiff was not entitled to recover the delinquency charge provided for in the contract. Specifically, it claims that the delinquency charge is a default interest rate, not an unlawful late charge as the court ruled. We agree.

Resolution of this claim requires us to interpret the language of the contract. “The standard of review for the issue of contract interpretation is well established. When . . . there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . Accordingly, our review is plenary.” (Internal quotation marks omitted.) Genua v. Logan, 118 Conn. App. 270, 273, 982 A.2d 1125 (2009).

In Federal Deposit Ins. Corp. v. Napert-Boyer Partnership, supra, 40 Conn. App. 434, this court addressed the charging of late fees. The notes in question provided that “[i]n the event of default in any monthly installment, Maker agrees to pay Holder a late charge equal to five percent (5%) of said monthly installment.” (Internal quotation marks omitted.) Id., 443. The trial court assessed late fees through the date of the trial, and this court reversed, holding that “a plaintiff may not recover late charges once the note has been accelerated and demand for payment has been made on the defendants. ” Id. The notes in question also provided for an increase in interest upon default, from 1 percent above prime to 3 percent above prime. This court held that “[i]f the late charges are allowed to continue after demand for payment in full upon default, it would, in effect, become a penalty since the plaintiff is being compensated for the default by the higher interest rate.” Id., 443-44. Thus, while this court found late charges impermissible, we recognized the lawfulness of a default interest rate as a way to compensate lenders for a borrower’s delinquency.

Therefore, we must determine whether the delinquency charge is a late fee, as the defendants assert, or a default interest rate, as the plaintiff claims. The note provides that when “any payment of principal or interest is not paid when due,” (or, in other words, when there is default), 2 percent per annum of the unpaid principal balance will be charged “together with, in addition to” the base interest rate for the duration for the default. The note provides for interest on the unpaid balance at the rate of the bank’s prime rate plus 1.5 percent. The delinquency charge is charged “together with, in addition to,” that base rate. We find that the plain meaning of this term is clear. Upon default, the interest rate increases by 2 percent.

Our finding that the delinquency charge is a default interest rate is buttressed by the fact that the delinquency charge differs significantly from a traditional late fee. The delinquency charge applies for the duration of the default and is a percentage of the unpaid principal balance. Late fees are typically a one time fee of a percentage of the missed payment. See, e.g., McKeever v. Fiore, 78 Conn. App. 783, 793, 829 A.2d 846 (2003) (note provided that in the event that any payment was not made within fifteen days after it became due, late charge of 5 percent of overdue payment would become payable); Berkeley Federal Bank & Trust, FSB v. Ogalin, 48 Conn. App. 205, 214, 708 A.2d 620 (late charge of 5 percent of any overdue payment of principal and interest), cert. denied, 244 Conn. 933, 711 A.2d 726 (1998); Shadhali, Inc. v. Hintlian, 41 Conn. App. 225, 229, 675 A.2d 3 (the note stated that “[t]he maker agrees to pay a late charge equal to five percent [5%] of any monthly installment of principal and interest not received by the holder hereof within fifteen days of the monthly installment due date” [internal quotation marks omitted]), cert. denied, 237 Conn. 926, 677 A.2d 948 (1996). While the language of the note speaks for itself, a comparison to other late fees demonstrates that the delinquency charge plainly is a default interest rate.

Finally, the penalty problem that this court sought to avoid in Federal Deposit Ins. Corp. v. Napert-Boyer Partnership, supra, 40 Conn. App. 434, by disallowing the late charges does not exist here. Where an increase in the interest rate already applies, late charges serve as an unlawful penalty. Here, the plaintiff is only being compensated for the default by the 2 percent increase in interest rate. Accordingly, we reverse the judgment of the trial court and remand for a calculation of post-judgment interest in accordance with the terms of the note.

With respect to the defendants’ appeals, the judgment is reversed in part and the case is remanded with direction to render judgment in favor of the plaintiff on the CUTPA count of the counterclaim and to award the plaintiff postjudgment interest calculated in accordance with the terms of the note. With respect to the plaintiffs cross appeal, the judgment is reversed as to the finding that the plaintiff was not entitled to the delinquency charge provided in the note and the case is remanded with direction to award the plaintiff the delinquency charge calculated in accordance with the terms of the note. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiff also claims on cross appeal that the court improperly allowed the defendants to elicit testimony that principal payments were made on the note. Given our disposition of the appeals, we need not address this specific claim.

       See footnote 10 of this opinion.

       The note provides that the interest rate on the unpaid balance of the note would be the bank’s prime rate plus 1.5 percent. By the time of trial, the bank closed, and the plaintiff offered evidence of a reasonable substitute interest rate.

       The note provides that the interest on the unpaid balance of the principal shall be the bank’s prime rate plus 1.5 percent “together with, in addition to the above interest, if any payment of principal or interest is not paid when due, a Delinquency Charge equal to 2 % per annum of the unpaid principal balance hereof for the period from the date such payment is due until such payment is fully paid, whether or not a judgment is obtained

       The amended complaint states in relevant part that the plaintiff “brings suit, pursuant to . . . General Statutes [§] 45a-400, against David D’Addario and Lawrence D’Addario, Executors . . . .”

       We note that the plaintiffs amended complaint pleads a cause of action “pursuant to” § 45a-400. Our review of § 45a-400, as articulated in this opinion, does not provide a cause of action. Nonetheless, the fact that the complaint relied on § 45a-400 does not defeat the claim. Moreover, the defendants have not argued that, notwithstanding the plaintiffs reliance on § 45a-400, the plaintiff failed to plead adequately an action for collection on the note.

       The court’s memorandum of decision indicates that it assumed that the vexatious litigation and abuse of process claims were based on the present action, not the previous litigation between the parties and others. The defendants concede that the present action cannot serve as the basis for a claim of abuse of process or vexatious litigation.

       The court affirmed its decision granting the defendants’ motion to strike the abuse of process and vexatious litigation claims, stating that “[t]he court agrees with the plaintiff that the facts as pleaded do not support claims of vexatious litigation and abuse of process, in brief, because [our] Supreme Court has found the plaintiffs claim to be valid, and, as a result, validated its right to pursue the present litigation.”

       The defendants are not appealing this decision but, instead, have challenged “all of the trial court’s rulings that put [the] plaintiff in the posture to be able to file its motion for summary judgment dated February 12,2009.”

       General Statutes § 52-568 provides “[a]ny person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.”

       While it is not clear that the removal case terminated in the defendants’ favor, because the Supreme Court held that the plaintiff had a valid claim against the estate, this issue does not alter our analysis because the defendants failed to plead a sufficient basis for a lack of probable cause.

       The defendants do not contest the court’s ruling that they could not support a CUTPA counterclaim based on a violation of the common-law covenant of gSood faith and fair dealing.

       The other bases for the CUTPA counterclaim were that the plaintiffs conduct violated established concepts of fairness and that the conduct constitutes unfair and deceptive practices and/or practices that are immoral, unethical, oppressive and/or unscrupulous.

       While the defendants argue that the plaintiff has abandoned any argument that the defendants’ counterclaims should be dismissed for lack of standing due to a failure to join necessary parties, standing is an issue that cannot be waived. See, e.g., Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 429-30, 829 A.2d 801 (2003).

       The defendants alleged generally in their counterclaim that the plaintiffs conduct caused the estate damage through resulting attorney’s fees and costs and resulted in the inability to close the estate due to the pendency of the litigation.

       On June 8,2010, the defendants filed a motion for articulation concerning the postjudgment interest award. The court denied the motion for articulation, and the defendants did not seek review of that denial. The plaintiff claims that the defendants’ failure to seek review of the court’s denial of the articulation motion precludes review of the postjudgment interest award. We disagree. A motion for articulation was not necessary as this claim presents a question of law. See Niehaus v. Cowles Business Media, Inc., 263 Conn. 178, 184-85, 819 A.2d 765 (2003).

       General Statutes § 37-3a was amended in 1987, 1992, and 2003. Those amendments, however, are not relevant to these appeals.

       While our research reveals no appellate cases applying the principles of Little in a case where the contracted rate was lower than the statutory rate, there are Superior Court cases reaching that holding. In Vigneau v. Storch Engineers, judicial district of Hartford, Docket No. CV-89-0700122-S (December 4, 1995) (15 Conn. L. Rptr. 623), the court had to determine the interest rate owed on the plaintiffs unpaid partnership interest following the dissolution of a partnership. The parties disagreed over whether the agreed on rate of 8 percent would apply or the 10 percent rate provided for in § 37-3a. Id., 627. The court, citing Little, stated that “[t]he law clearly is that when an obligation to pay money is breached, the interest rate agreed upon by the parties and not the rate provided for in §§ 37-1 and 37-3a, applies.” Id. Similarly, in People’s Bank v. Pallman, judicial district of Ansonia-Milford, Docket No. CV-90-033932-S (February 17, 1993), an acjjustable note and mortgage provided for interest at a rate of 9.46 percent before and after default. The court, relying on Little, held that the note rate of 9.46 percent would apply and not the statutory rate of 10 percent under § 37-3a.

       We note that the plaintiff has asked this court to overrule Little. This court has no authority to do so. See, e.g., Robert J. Bamabei Contracting, LLCv. Greater Hartford Jewish Community Center, Inc., 127 Conn. App. 507, 520, 14 A.3d 461 (2011).

       The defendants also argue that the plaintiff is not entitled to postjudgment interest because the amount due on the note is not yet payable as otherwise required by § 37-3a. Because we find § 37-3a inapplicable, we do not reach this claim.


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    RIDGEFIELD HOUSING AUTHORITY v. RIDGEFIELD WATER POLLUTION CONTROL AUTHORITY
    (AC 32368)
    Lavine, Beach and Dupont, Js.

      Argued May 20
    officially released September 6, 2011

      Thomas M. Cassone, with whom, on the brief, were Randolph T. Lovallo and Robert S. Bello, for the appellant (defendant).

      Michael N. LaVelle, for the appellee (plaintiff).
   Opinion

DUPONT, J.

The plaintiff, Ridgefield Housing Authority, obtained a judgment granting it a permanent injunction against the defendant, Ridgefield Water Pollution Control Authority, from “seeking any further hookup fee payments from the plaintiff’ and an order to “refund to the plaintiff the sewerage payments it has made that are in excess of a fair and reasonable connection fee.” The questions to be resolved in the defendant’s appeal from the granting of the injunction and the court’s order are: (1) whether the plaintiffs action should have been dismissed for lack of subject matter jurisdiction because the plaintiff failed to exhaust its administrative remedies, and (2) whether the court properly issued the permanent injunction and ordered a refund of the fees. We conclude that the trial court had subject matter jurisdiction to grant the permanent injunction and to issue the order, and we affirm the well considered judgment of the trial court.

The parties stipulated to the relevance of certain facts and exhibits, which the trial court considered. The court also considered testimony, given at a hearing on whether to grant the permanent injunction, of three witnesses, namely, the executive director of the plaintiff, the former first selectman of the town of Ridgefield (town), and the current chairman of the defendant. The plaintiff introduced into evidence statutory histories of municipal sewer systems, the power and authority of water pollution control authorities and PILOT (payment in lieu of taxes) payments by local housing authorities. Also in evidence was a 1976 PILOT agreement between the plaintiff and the town. In its memorandum of decision, the trial court found certain facts, which are undisputed.

Beginning in 1988, the state department of environmental protection ordered the town to expand its sewerage system plant. Legal counsel to the town advised the first selectman concerning different options to raise the necessary capital to recover the costs of the sewer plant expansion. In 1992, the defendant published legal notices and heard public comment regarding various plans to allocate the costs of the loan repayment needed to fund the expansion. On April 8, 1992, the defendant adopted a plan, which provided for a yearly loan repayment of $445,850 to be paid by sewer users, plus $126,000 to be paid by future users, plus $78,150 to be paid from general revenues. Incorporated into this capital cost recovery plan was the fee at issue in this case.

The plaintiff, as a public housing authority, is subject to certain legislation, referred to as PILOT, or “payment in lieu of taxes” statutes; see General Statutes § 8-119gg; which legislation is designed to address the balance between a housing authority’s limited revenue stream, the contributions it makes to a community and the need to pay for municipal services. Pursuant to § 8-119gg, instead of “real property taxes, special benefit assessments and sewerage system use charges otherwise payable to a municipality,” the plaintiff housing authority “shall pay each year ... a sum to be determined by the municipality,” as limited by the statute. The town entered into a PILOT agreement with the plaintiff executed in 1976, which, pursuant to the statute, provides in relevant part that “the town of Ridge-field has determined that the [plaintiff] shall pay to said municipality in lieu of property taxes, special benefit assessments and sewerage system use charges the sum of ten percent (10%) of the shelter rent paid by tenants for each occupied dwelling unit of the Project and the [plaintiff] agrees to make the [town] such payment in lieu of taxes, assessments and charges.” We will refer to this as the “PILOT cap.”

The plaintiff constructed four new buildings for low income housing in the town, each with five housing apartment units. The defendant’s approval was required before certificates of occupancy of the units could issue. In 2007, the plaintiff applied to the defendant for a “Sewer Hookup/Connection Permit” for each building. The defendant assessed a fee of $5700 per unit, for a total of $114,000 for the twenty unit development. The fee could be paid in a lump sum, or over a ten year period with an interest charge on the declining balance. The plaintiff has paid installments, including interest, to the defendant and has obtained the certificates of occupancy.

The primary dispute between the parties is whether the disputed fee is a “connection fee,” which is excluded from the PILOT cap, or whether it is actually a special benefit assessment, which is subject to the PILOT cap. Part of this disagreement arises out of the parties’ conflicting interpretation of two statutes, General Statutes §§ 7-255 and 7-249, which pertain to how the defendant may raise revenue. Section 7-255 relates to the “fair and reasonable charges” that a water pollution control authority may establish and revise “for connection with and for the use of a sewerage system.” The plaintiff does not claim that it is exempt from paying connection charges. Section 7-249 concerns when a water pollution control authority may levy special benefit assessments on lands and buildings that are, in the judgment of the “municipality,” “especially benefited” by the construction of a sewerage system. The plaintiff claims that the PILOT cap would apply. The defendant does not dispute that the fee was adopted to pay for 14 percent of the capital project cost of the sewer expansion. It maintains, however, that the fee is a sewer connection fee that was established pursuant to § 7-255 and that, because it was not calculated or levied as a special benefit assessment pursuant to § 7-249, it is not subject to the PILOT cap.

The trial court concluded that, despite the defendant’s label, the “hookup/connection” fee was in actuality an assessment, not a connection fee, and as such, subject to the PILOT cap. The court concluded that the plaintiff was entitled to a permanent injunction enjoining the defendant from seeking further payments of the fee and that the defendant must refund to the plaintiff the sewerage payments made in excess of “a fair and reasonable connection fee.” This appeal followed.

I

EXHAUSTION OF ADMINISTRATIVE REMEDIES

The defendant claims that the plaintiff failed to follow statutory administrative remedies available to it pursuant to §§ 7-255 and 7-246a, and, therefore, that the trial court was without subject matter jurisdiction to consider the plaintiffs cause of action. Without such subject matter jurisdiction, the defendant argues that the plaintiffs action should have been dismissed. In essence, the defendant is arguing that the plaintiffs action cannot be a substitute for administrative appeals as provided by the statutes.

As a threshold matter, we address our standard of review. “We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at anytime. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . .” (Internal quotation marks omitted.) Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, 285 Conn. 278, 286, 939 A.2d 561 (2008).

“It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. . . . This requirement reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board’s judgment.” (Citations omitted; internal quotation marks omitted.) O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 425, 655 A.2d 1121 (1995).

A

General Statutes § 7-255

The defendant first claims that the fee was adopted pursuant to the strictures of § 7-255 (a) and that the statute provides an administrative remedy to aggrieved parties, which the plaintiff failed to follow. The defendant maintains that none of the narrow exceptions to the exhaustion requirement apply here. The plaintiff argues that, even if this claim is reviewable as one that implicates subject matter jurisdiction, it is plain that the plaintiff had no administrative remedy under § 7-255. We conclude that § 7-255 did not deprive the trial court of subject matter jurisdiction over the plaintiffs claim.

The following additional facts are relevant to the defendant’s claim. In 1992, pursuant to § 7-255, the defendant published legal notices and heard public comment regarding various plans to allocate the costs of the loan repayment of the state mandated expansion of the sewer treatment plant. On April 8,1992, the defendant adopted its plan to pay for the annual capital cost of $650,000 for the sewer plant expansion. On April 20, 1992, a copy of the charges that the defendant adopted was filed in the office of the town clerk. On April 23, 1992, legal notice was published according to the requirements of § 7-255.

Section 7-255 (a) allows a water pollution control authority such as the defendant to establish “fair and reasonable charges for connection with and for the use of a sewerage system” and provides that no such charge can be established without proper adherence to the notice and public hearing requirements set forth. Section 7-255 (a) further provides that an appeal must be taken within twenty-one days from the filing of sewer connection charges in the office of the town clerk. The essence of the defendant’s claim is that, because the plaintiff was a landowner in the town in 1992, it can be charged with notice of the fee. It therefore failed to exhaust its administrative remedy because it did not challenge the imposition of the $5700 charge for “future hook ups” as outlined in the schedule of charges within twenty-one days of April 20, 1992, the date that a copy of the charges adopted by the defendant were filed in the office of the town clerk.

We do not need to address the defendant’s arguments concerning the exceptions to the exhaustion of administrative remedies requirement because we conclude that the requirement does not apply to this case. Cf. Forest Walk, LLC v. Water Pollution Control Authority, 291 Conn. 271, 283, 968 A.2d 345 (2009) (noting that parties seeking to appeal from “denials of applications for sewer connections or extensions had to exhaust certain administrative remedies prior to appeal” before legislature enacted § 7-246a), citing BRT General Corp. v. Water Pollution Control Authority, 265 Conn. 114, 116—27, 826 A.2d 1109 (2003); River Bend Associates, Inc. v. Water Pollution Control Authority, 262 Conn. 84, 86-87, 809 A.2d 492 (2002).

Insofar as the defendant’s claim can be read as an argument concerning the timeliness of the plaintiffs challenge to the fee, we are not persuaded that the twenty-one day appeal period of § 7-255 (a) barred the trial court from considering the plaintiffs claim in this case. The purpose of the exhaustion requirement is to further the legislative intent that certain issues be addressed first by local administrative officials. This purpose would not be served by dismissing the plaintiffs action because the plaintiffs complaint does not evince a dispute over the schedule of fees that the defendant adopted in 1992. Rather, the plaintiffs complaint evinces a disagreement between the parties concerning the applicability of the PILOT cap to the fee assessed attendant to the “hookup/connection” of the plaintiffs property to the town’s sewerage system. The plaintiff first applied for those permits in 2007. The disagreement did not exist in 1992. Accordingly, we conclude that § 7-255 did not deprive the trial court of subject matter jurisdiction over the plaintiffs claim.

B

General Statutes § 7-246a

The defendant claims that the plaintiff failed to exhaust the remedies arguably available to it pursuant to § 7-246a. The plaintiff responds that, by its terms, § 7-246a does not apply to the present case. We conclude that § 7-246a did not deprive the trial court of subject matter jurisdiction over the plaintiffs claim.

The following additional facts are relevant to the defendant’s claim. On March 13, 2007, in a letter to the defendant, the plaintiff claimed that the fees assessed on its applications for “Sewer Hookup/Connection Permitís]” did not apply to it because of the PILOT cap. The defendant, at its regular meeting, disagreed and found that the fees were due. No appeal to the Superior Court was taken from that decision pursuant to § 7-246a, which incorporates the familiar fifteen day administrative appeal procedure outlined in General Statutes § 8-8 (b).

We note that when a water pollution control authority performs its administrative functions, such as considering an application for sewer service, “a reviewing court’s standard of review of the [authority’s] action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion.” (Internal quotation marks omitted.) Forest Walk, LLC v. Water Pollution Control Authority, supra, 291 Conn. 286. In the present case, the trial court was presented with a dispute over whether the PILOT cap applied to the “connection/hookup” payment sought by the defendant. This legal question of statutory interpretation is not one to which this court needs to accord deference to an agency. See id. (court defers to water pollution control authority on “credibility of witnesses and the determinations of issues of fact”). Moreover, § 7-246a (a), by its terms, applies to applications or requests for, inter alia, “approval to hook up to a sewer system at the expense of the applicant . . . .” The defendant concedes in its principal brief that the plaintiffs request was “to hook up to the [town] sewer system at a cost lower than [that] paid by other users . . . For the foregoing reasons, we conclude that the application of § 7-246a did not deprive the trial court of subject matter jurisdiction over the plaintiffs claim.

Having concluded that the trial court had subject matter jurisdiction to consider the merits of the plaintiffs claims, we next discuss the disposition of the defendant’s appeal.

n

MERITS OF THE JUDGMENT

We set forth the principles of law that guide our analysis and our standard of review of the trial court’s judgment. The plaintiff commenced this action seeking a permanent injunction enjoining the defendant from collecting the connection fee and a “permanent injunction requiring [the defendant] to refund all payments made by the [plaintiff] in excess of a fair and reasonable connection fee,” which relief the court granted. Injunctive relief is warranted when the party seeking it meets the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. Brennan v. Brennan Associates, 293 Conn. 60, 86, 977 A.2d 107 (2009). The granting of an injunction rests within the sound discretion of the court and the court’s ruling can be reviewed “only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion.” (Internal quotation marks omitted.) Id., 86-87. To the extent that the claims in this appeal require us to construe the relevant statutes, we note that the construction of a statute is a question of law subject to plenary review. See id., 87. “In examining the meaning of a particular statute, we are guided by fundamental principles of statutory construction. See General Statutes § l-2z; see also Testa v. Geressy, 286 Conn. 291, 308, 943 A.2d 1075 (2008) ([w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . .).” (Internal quotation marks omitted.) Shorten v. Cavanagh, 300 Conn. 383, 386-87, 15 A.3d 1042 (2011).

The primary dispute between the parties is whether the trial court properly determined that the disputed fee was a special benefit assessment, which the plaintiff would be exempt from paying pursuant to the PILOT cap, and, accordingly, whether the court properly issued the permanent injunction and ordered repayment to the plaintiff of any payment that it had made to the defendant in excess of a fair and reasonable connection fee. The defendant claims that the disputed fee properly was adopted pursuant to § 7-255 and that the plaintiff is not exempt from paying “fair and reasonable charges for connection with and for the use of a sewerage system. . . .” General Statutes § 7-255 (a). The plaintiffs argument is that the defendant’s method of financing its sewerage expansion in 1992 was in contravention of the sewer system statutes. Specifically, the plaintiff maintains that § 7-249, the special benefit assessment statute, is the exclusive method that the defendant can use to recoup the cost of financing the sewage plant expansion, and that the defendant has “avoided” the statutory scheme by adopting the disputed fee in the manner that it did. The defendant, in response, argues that nothing in the case law or statutory scheme prohibits a municipality from using sewer connection charges to aid it in financing the expansion of a sewage treatment plant.

The defendant argues that the trial court improperly characterized the fee as a special benefit assessment. It maintains that the fee is not akin to a special benefit assessment because, when it was adopted, no regard was given to the special benefit that accrued to any property in the town, including the plaintiffs property, nor would any property be charged the fee if it did not actually connect to the system. In response, the plaintiff maintains that there are indicia that the disputed fee is really a special benefit assessment by another name. For example, it is undisputed that the fee was imposed to recover 14 percent of the capital costs associated with the sewage treatment plant, and the defendant allows installment payments and charges interest on the declining balance.

The determinative issue presented to this court is much narrower than the claims asserted by the parties. The question to be resolved by us is whether the PILOT agreement between the plaintiff and the town and the PILOT statute, § 8-119gg, exempted the plaintiff from paying the disputed fee. If the plaintiff is exempt, it is entitled to the injunctive relief ordered and is also entitled to the refund ordered by the trial court. The PILOT agreement, which incorporates the language of § 8-119gg, provides that the plaintiff shall pay the PILOT cap “in lieu of property taxes, special benefit assessments and sewerage system use charges . . . .” At issue is the meaning and application of the term “special benefit assessment” in the context of the PILOT statute and agreement.

“Special assessments for local improvements, although bottomed on the taxing power, are based on the principle of special benefit to property. It is a local assessment imposed occasionally, as required, upon a limited class of persons interested in a local improvement; who are assumed to be benefitted by the improvement to the extent of the assessment .... Bridgeport v. New York & N.H. R Co., 36 Conn. 255, 262-63 (1869). The demand for the special contribution is justified by the fact that those who are to make it, while they are made to bear the cost of the public work, are supposed to suffer no pecuniary loss thereby, because their property is increased in value to an amount at least equal to the sum they are required to pay.” (Internal quotation marks omitted.) Shoreline Care Ltd. Partnership v. North Branford, 231 Conn. 344, 350-51, 650 A.2d 142 (1994). Our Supreme Court has concluded that a property can be specially benefited by a sewerage system, and therefore subject to an assessment, even if it does not actually connect to the system. See id., 351-52. The measure of the special benefit is the increase in the market value of the property because of the improvement. Id., 351.

It is accepted that, because special benefit assessments levied may not exceed the special benefit that accrues to the property from the installation or presence of a sewerage system, the use of a special benefit assessment to fund the improvement may mean that the cost of the sewerage system cannot be fully recouped by the town. Id., 352; Bridge Street Associates v. Water Pollution Control Authority, 15 Conn. App. 140, 144, 543 A.2d 1351 (1988); see also Carlson-Lang Realty Co. v. Windom, 307 Minn. 368, 373, 240 N.W.2d 517 (1976) (“[t]he legal limit on special assessments is that they may not exceed the increase in market value of the assessed property, and as a practical matter this means many improvements may not be fully assessed but must be funded through some other means, such as general property taxes”). It follows, as posited by the defendant, that this shortfall must come from “somewhere.” In Cyr v. Coventry, 216 Conn. 436, 441, 582 A.2d 452 (1990), our Supreme Court, in dicta, noted that a municipality has available to it “numerous means of funding [a] sewer project” other than levying special benefit assessments, citing, inter alia, “§ 7-255 (a) (connection and use charges) . . . .”

We accept the defendant’s premise that the town had available a variety of means of funding a sewer expansion. These included increasing real property taxes and building debt service into the connection fee and use charges. It does not necessarily follow, however, that how the defendant chose to structure its debt controls whether the plaintiff, as a public housing authority, is hable to pay for the funding. The PILOT statute and PILOT agreement exempt the plaintiff from certain charges otherwise payable to the town. “[L]ocal housing authorities do not operate for a profit and . . . to minimize their expenses and enable them to provide moderate rental housing within the financial reach of families of low income ... a reduction in their property tax burdens (including special benefit assessments and sewerage system use charges) was necessary while still balancing the municipality’s need for revenue to provide services to the authority.” (Citation omitted; internal quotation marks omitted.) See Opinions, Conn. Atty. Gen. No. 84-128 (November 15, 1984).

Costs of sewer expansion can be recouped in a number of ways, including special benefit assessments and general property tax revenue, both of which are subject to the PILOT cap. As found by the trial court, one of the proposed methods of funding the expansion was a “yearly loan repayment . . . from general tax revenues,” which was rejected. The fee was adopted pursuant to § 7-255, which governs “connection fees” and which fees are not expressly subject to the PILOT cap. It is undisputed that the $5700 per unit fee was adopted to pay for 14 percent of the capital cost of the sewer expansion and that the fee is only charged to new users of the system when they connect. The defendant’s position is that the method it chose to recoup its costs controls the question of whether the plaintiff must pay the fee. We are not persuaded.

The clear purpose of the disputed fee was to shift some of the burden of paying for the upgrade to the system onto new users of the system, by which the defendant and the town avoided the need to assess special benefits and to raise property taxes. Because the plaintiff seeks equitable relief, we are not constrained to conclude that the title or name that the defendant applies to the fee and the method by which it adopted the fee govern the outcome of this dispute. It would be unjust to allow the defendant to circumvent the PILOT cap by denominating as “connection fees” sums that would otherwise be subject to the cap.

The court correctly concluded that the purpose of § 8-119gg, which applies to low income housing projects such as the one operated by the plaintiff, is to control the expenses of municipal housing authorities by putting a cap on certain payments, such as special benefit assessments, property taxes and sewage usage charges. We also agree with the trial court that the name that the defendant applies to the fee does not override the statutory protection afforded to the plaintiff pursuant to § 8-119gg. This is particularly true when the defendant has admitted that the “connection fee” was not imposed simply to connect to the sewerage system, but to repay the capital costs incurred as a result of the increased usage by the plaintiff. We agree with the trial court that this is the type of fee that the legislature intended to exempt the plaintiff from paying.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court concluded that the agreement bound the town and bound the defendant as a creation of the town. See footnote 3 of this opinion.

       General Statutes § 8-119gg provides: “In lieu of real property taxes, special benefit assessments and sewerage system use charges otherwise payable to a municipality, a housing authority approved by the Commissioner of Economic and Community Development for state financial assistance for a low income housing project shall pay each year, to the municipality in which any of its housing projects for low income families are located, a sum to be determined by the municipality with the approval of the Commissioner of Economic and Community Development not in excess of ten per cent of the shelter rent per annum for each occupied dwelling unit in any such housing project; except that the amount of such payment shall not be so limited in any case where funds are made available for such payment by an agency or department of the United States government, but no payment shall exceed the amount of taxes which would be paid on the property were the property not exempt from taxation.”

       It is not argued in this appeal that the defendant, as the town’s water pollution control authority, is not a “municipality” for the purposes of the PILOT statutes or the PILOT agreement. The trial court found that the defendant was a municipality for the purposes of § 8-119gg. The court noted that “[i]t would defeat the purpose and intent of § 8-119gg to control the expenses of a housing authority if the municipality could exempt itself from that statute by operating its sewer operations through a town sewer authority.”

       The plaintiff has paid to the defendant $25,878 in fees and interest to date in order to obtain certificates of occupancy and to permit families to move into the housing.

       General Statutes § 7-255 (a) provides in relevant part: “The water pollution control authority may establish and revise fair and reasonable charges for connection with and for the use of a sewerage system. The owner of property against which any such connection or use charge is levied shall be liable for the payment thereof. Municipally-owned and other tax-exempt property which uses the sewerage system shall be subject to such charges under the same conditions as are the owners of other property, but nothing herein shall be deemed to authorize the levying of any property tax by any municipality against any property exempt by the general statutes from property taxation. No charge for connection with or for the use of a sewerage system shall be established or revised until after a public hearing before the water pollution control authority at which the owner of property against which the charges are to be levied shall have an opportunity to be heard concerning the proposed charges. Notice of the time, place and purpose of such hearing shall be published at least ten days before the date thereof in a newspaper having a general circulation in the municipality. A copy of the proposed charges shall be on file in the office of the clerk of the municipality and available for inspection by the public for at least ten days before the date of such hearing. When the water pollution control authority has established or revised such charges, it shall file a copy thereof in the office of the clerk of the municipality and, not later than five days after such filing, shall cause the same to be published in a newspaper having a general circulation in the municipality. Such publication shall state the date on which such charges were filed and the time and manner of paying such charges and shall state that any appeals from such charges must be taken within twenty-one days after such filing. . . .”

       General Statutes § 7-249 provides in relevant part: “At any time after a municipality, by its water pollution control authority, has acquired or constructed, a sewerage system or portion thereof, the water pollution control authority may levy benefit assessments upon the lands and buildings in the municipality which, in its judgment, are especially benefited thereby, whether they abut on such sewerage system or not, and upon the owners of such land and buildings, according to such rule as the water pollution control authority adopts, subject to the right of appeal as hereinafter provided. Benefits to buildings or structures constructed or expanded after the initial assessment may be assessed as if the new or expanded buildings or structures had existed at the time of the initial assessment. . . .”

       In order to issue the permanent injunction, the trial court first addressed whether the defendant was a municipality under § 8-119gg and concluded that the PILOT agreement between the town and the plaintiff binds the defendant, which is a creation of the town.

       The defendant did not move to dismiss the plaintiffs complaint on the ground that the plaintiff failed to exhaust its administrative remedies. It appears that the defendant advanced its first argument regarding § 7-255 in its trial brief and raises the second regarding § 7-246a for the first time on appeal. The question, however, of whether a trial court had subject matter jurisdiction to render judgment may be raised at any time, including on appeal. Ajadi v. Commissioner of Correction, 280 Conn. 514, 532-33, 911 A.2d 712 (2006). A challenge to subject matter jurisdiction is to be decided on the basis of the complaint alone, or the complaint supplemented by undisputed facts, or, if the facts are disputed, on the basis of an evidentiary hearing to establish jurisdictional facts. Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009). In the present case, the facts relating to subject matter jurisdiction are undisputed.

       General Statutes § 7-255 (a) provides in relevant part: “When the water pollution control authority has established or revised such charges, it shall file a copy thereof in the office of the clerk of the municipality . . . . [A]ny appeals from such charges must be taken within twenty-one days after such filing. . . . The water pollution control authority may establish minimum charges for connection with and for the use of a sewerage system. Any person aggrieved by any charge for connection with or for the use of a sewerage system may appeal to the superior court for the judicial district wherein the municipality is located and shall bring any such appeal to a return day of said court not less than twelve or more than thirty days after service thereof. The judgment of the court shall be final.”

       General Statutes § 7-255 (a) provides that aggrieved persons should appeal to the Superior Court but does not provide for an appeal to an administrative body or official. At oral argument before this court, the defendant addressed the anomaly inherent in its position that the plaintiff failed to exhaust its remedy pursuant to this section, which was an appeal to the Superior Court, by asserting that the same court, the Superior Court in the present action did not have jurisdiction over the subject matter. The defendant’s position was that the distinction between an administrative appeal and a direct appeal is, in the latter, it is the court, and not the agency, which hears live testimony and makes determinations of credibility. Whether or not this is true, it is well established that “when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test.” Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979). We conclude that this independent action does not test the very issue that the statutory appeal was designed to test because this action concerns the applicability of the PILOT agreement and statutes to the fee charged.

       General Statutes § 7-246a provides: “(a) Whenever an application or request is made to a water pollution control authority or sewer district for (1) a determination of the adequacy of sewer capacity related to a proposed use of land, (2) approval to hook up to a sewer system at the expense of the applicant, or (3) approval of any other proposal for wastewater treatment or disposal at the expense of the applicant, the water pollution control authority or sewer district shall make a decision on such application or request within sixty-five days from the date of receipt, as defined in subsection (c) of section 8-7d, of such application or request. The applicant may consent to one or more extensions of such period, provided the total of such extensions shall not exceed sixty-five days.
      “(b) Notwithstanding any other provision of the general statutes, an appeal may be taken from an action of a water pollution control agency or sewer district pursuant to subsection (a) of this section in accordance with section 8-8.”

       General Statutes § 8-8 (b) provides in relevant part: “[A]ny person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located .... The appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.”

       General Statutes § l-2z provides: “The meaning of a statute shaE, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”

       We must examine the character of the fee in order to make that determination, but we need not address all of the arguments made by the parties.

       The court also cited “[General Statutes] § 7-264 (borrow upon credit of municipality), and [General Statutes] § 7-273a (service charges) . . . .” Cyr v. Coventry, supra, 216 Conn. 441.


author: DiPENTIMA, C. J.

text:
    LETICIA CLOUGHERTY v. KEVIN CLOUGHERTY
    (AC 31720)
    DiPentima, C. J., and Lavine and Bear, Js.
    Argued June 1
    officially released September 6, 2011

      William F. Gallagher, for the appellant (defendant).

      Kenneth J. McDonnell, for the appellee (plaintiff).

      Maureen M. Murphy, for the minor child.
   Opinion

DiPENTIMA, C. J.

“The plain error doctrine ... is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice . . . .’’(Internal quotation marks omitted.) Perricone v. Perricone, 292 Conn. 187, 218, 972 A.2d 666 (2009). In this appeal from the judgment dissolving the parties’ marriage, the defendant, Kevin Clougherty, seeks plain error review of his claim that the trial court improperly relied on certain evidence in authorizing the plaintiff, Leticia Clougherty, to move to Texas with the parties’ minor child. We conclude that the defendant’s claim does not present the type of extraordinary situation that warrants application of this doctrine and, accordingly, affirm the judgment of the trial court.

The record reveals the following relevant facts. On May 10, 2003, the plaintiff and the defendant were married. A son, bom on September 21, 2006, is issue of their marriage. On July 14, 2008, the plaintiff filed a complaint seeking a dissolution of her marriage to the defendant and joint legal custody of the parties’ minor child. The defendant filed an answer and cross complaint seeking the same relief. Following a trial, the court orally rendered a judgment of dissolution finding that the parties’ marriage had broken down irretrievably.

The court also awarded the parties joint legal custody and shared physical custody of their child. In doing so, the court observed that living in Connecticut had made the plaintiff physically and emotionally ill because her life was completely integrated in Texas, where she enjoyed “a rich and wonderful life.” The court found that the plaintiff lacked a job or any significant ties in Connecticut, and had not thrived living away from her family of origin and the family business, which provided her with the identity that she needed. In discussing where the child primarily would reside, the court determined that the plaintiff was “doing a little bit better of a job as a parent” than the defendant at that time but not in any great qualitative sense. The court expressed concern over the child’s “failure to thrive” during the disintegration of the parties’ relationship. The court also observed that the child had a close relationship with the plaintiffs large, extended family in Texas, which resulted in his experiencing a richer and more vivacious life there than in Connecticut. The court, therefore, concluded that it was in the child’s best interest to allow the plaintiff to return to Texas with the child. Accordingly, the court ordered the parties to maintain two residences for the child, one in Texas with the plaintiff and the other in Connecticut with the defendant, and it set forth a visitation schedule for the defendant.

Thereafter, the defendant filed (1) a motion seeking to have a supplemental examination of the plaintiff and her family in Texas, (2) a motion to clarify the judgment with respect to various terms of the visitation schedule and (3) a motion to open the judgment. The court denied all of these motions, and this appeal followed.

On appeal, the defendant claims that the court improperly based its order allowing the plaintiff and their child to move to Texas on certain testimony by the guardian ad litem that she was not qualified to provide. Specifically, the defendant claims that the guardian ad litem was not qualified to opine that (1) the child suffered from failure to thrive and (2) the defendant was too attached to the child to act in the child’s best interest. The defendant concedes that during the trial he failed to raise an objection to the testimony at issue and urges that review of his claim is required under the plain error doctrine. We disagree that plain error review is warranted.

Codified in Practice Book § 60-5, “[t]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility.” (Internal quotation marks omitted.) State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009). It is a doctrine that should be invoked sparingly and only on “occasions requiring the reversal of the judgment under review.” (Internal quotation marks omitted.) Id. “Success on such a claim is rare. Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Ortiz, 71 Conn. App. 865, 871, 804 A.2d 937, cert. denied, 261 Conn. 942, 808 A.2d 1136 (2002).

We engage in a two step analysis in reviewing claims of plain error. “First, we must determine whether the trial court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discemable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . [T]his inquiry entails a relatively high standard, under which it is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal. . . . Because [a] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice . . . under the second prong of the analysis we must determine whether the consequences of the error are so grievous as to be fundamentally unfair or manifestly unjust.” (Citations omitted; emphasis in original; internal quotation marks omitted.) States. Coward, 292 Conn. 296, 307, 972 A.2d 691 (2009).

We cannot conclude that under the facts and circumstances of this case that the court committed error, least of all plain error. First, the guardian ad litem did not offer a medical diagnosis of failure to thrive or an opinion she was unqualified to give. The guardian ad litem testified, without objection, that one of the child’s health care providers had explained to her that there was concern that the child suffered from failure to thrive. “Hearsay evidence admitted because no objection was voiced can be considered to prove the matters in issue for whatever its worth on its face.” Derderian v. Derderian, 3 Conn. App. 522, 528, 490 A.2d 1008, cert. denied, 196 Conn. 810, 811, 495 A.2d 279 (1985). Nor did the guardian ad litem opine improperly on the mental health of the defendant. Rather, in assessing the best interests of the child, the guardian ad litem testified that based on her observations, the defendant’s involvement with the child consumed his entire life and that he was uncomfortable disciplining the child, which she believed interfered with his ability to parent appropriately. It is within the province of a guardian ad litem to offer such testimony. See In re Tayquon H., 76 Conn. App. 693, 704-706, 821 A.2d 796 (2003); see also General Statutes § 46b-129a. Second, it is unclear whether the defendant’s failure to interpose an objection to the guardian ad litem’s testimony was part of his trial strategy to obtain primary physical custody. At trial, a significant amount of testimony focused on the child’s eating habits and failure to gain weight, and both parties testified that the other party was to blame for the child’s low weight. In the absence of an obvious and patent error, there can be no plain error. See Baugher v. Baugher, 63 Conn. App. 59, 64, 774 A.2d 1089 (2001).

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court . . . .”