text:
    ROBERT THOMPSON v. RONNIE ROACH ET AL.
    (AC 18006)
    Foti, Hennessy and Sullivan, Js.
    Argued January 22
    officially released April 20, 1999

      Michael J. Belzer, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant second injury fund).

      Michael J. McAuliffe, for the appellee (named defendant et a!.).

      Brendan T. Canty, for the appellee (plaintiff).
   Opinion

SULLIVAN, J.

The defendant second injury fund (fund) appeals from a decision of the workers’ compensation review board (board) affirming an order by the workers’ compensation commissioner (commissioner) transferring liability for workers’ compensation benefits payable to the plaintiff, Robert Thompson, from the defendant workers’ compensation carrier, Aetna Life and Casualty Company (Aetna), to the fund. The fund claims that the board improperly (1) determined that Aetna’s difficulty in obtaining wage information excused it from the notice requirements of General Statutes § 31-349 and (2) affirmed the commissioner’s denial of the fund’s motion to correct.

In his finding and award, the commissioner found the following facts. On November 6, 1988, the plaintiff suffered an injury to the lumbar region of his back. Preexisting degenerative changes in his back made his disability materially and substantially greater than it would have been otherwise. On January 30,1989, Aetna began providing benefits to him.

On September 11, 1989, Pamela Keyes, an Aetna claims representative, informed the director of special funds by certified mail that the plaintiff had been injured and that Aetna intended to seek a § 31-349 transfer of liability to the fund. Keyes sent a second letter dated October 22, 1990, stating: “Voluntary Agreements have not been issued as yet as we are still awaiting receipt of the [plaintiffs] wages. Our insured is now defunct . . . therefore, any salary information will now have to be provided by [the plaintiff]. He has yet to provide us with the same. This letter has been written as we do not want to jeopardize the potential transferral of this case into the Fund with late notice.” On February 25, 1992, the plaintiffs attorney provided Aetna with the necessary wage statement. On July 31, 1992, the voluntary agreement was executed, and the commissioner approved it on August 7, 1992. Keyes sent the fund a letter with the voluntary agreement and the plaintiffs medical records on August 24,1992. Timely notice under § 31-349 would have been due on October 28, 1990.

I

The fund claims that the board improperly concluded that Aetna was excused by impossibility from the statutory notice requirements. Specifically, the fund’s argument is that (1) impossibility does not excuse untimely notice and (2) the board improperly determined that compliance was impossible, which was not found by the commissioner.

A

Section 31-349 (b) provides in relevant part: “As a condition precedent to the liability of the Second Injury Fund, the employer or its insurer shall: (1) Notify the custodian of the fund by certified mail ... no later than ninety days after completion of payments for the first one hundred and four weeks of disability ... of its intent to transfer liability for the claim to the Second Injury Fund; (2) include with the notification . . . (C) copies of all findings, awards and approved voluntary agreements . . . .”

“The object of the ninety-day statutory notice is to enable the fund to be apprised promptly of such a claim being made, to obtain a copy of the agreement or award and to have immediate access to all medical reports. Such information is essential to enable the fund to assess promptly its alleged liability and to establish immediately its financial reserves. A further objective is to give the fund a reasonable period of time within which to investigate the claim and to prepare to meet it.” Plesz v. United Technologies Corp., 174 Conn. 181, 188, 384 A.2d 363 (1978).

“It is well settled that notice provisions under the [workers’ compensation] act should be strictly construed.” Soares v. Max Services, Inc., 42 Conn. App. 147, 164, 679 A.2d 37, cert. denied, 239 Conn. 915, 682 A.2d 1005 (1996). Our requirement of strict compliance with § 31-349, however, has presumed the possibility of compliance. Where notice, such as providing the fund with a voluntary agreement, is impossible to give, the failure to comply strictly with § 31-349 will not preclude a transfer of liability. See Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 392-93 n.10, 618 A.2d 1340 (1993). Under such circumstances, notice will be considered timely if provided within a reasonable period of time thereafter. Marano v. Timex Corp., 14 Conn. Workers’ Comp. Rev. Op. 207 (1995); Reising v. General Dynamics Electric Boat Division, 13 Conn. Workers’ Comp. Rev. Op. 40 (1994).

B

The fund asserts that the commissioner did not determine that timely notice was impossible. Instead, the fund asserts that the board exceeded the scope of its authority and made that determination itself. We disagree.

“[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citation omitted.) Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18, 411 A.2d 924 (1979).

The commissioner found that Keyes had written twice to the fund to inform it of Aetna’s intent to transfer liability and of Aetna’s inability to obtain wage information necessary to formulate a voluntary agreement. The evidence showed that the employer was defunct and that Aetna was unable to obtain wage information from the employer. Shortly after receiving that information from the plaintiffs attorney and formulating a voluntary agreement, Aetna forwarded the agreement to the fund. Without using the term impossible, the commissioner found that it was not possible for Aetna to have complied with the statute despite its efforts. The board affirmed that finding. We conclude that the board properly affirmed the commissioner’s decision.

II

The fund also claims that the commissioner improperly denied its motion to correct and, therefore, the board should have ordered the commissioner to correct his finding. We disagree.

“The finding of the commissioner cannot be changed ‘unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed.’ Wheat v. Red Star Express Lines, 156 Conn. 245, 248, 240 A.2d 859 (1968). ‘It [is] the commissioner’s function to find the facts and determine the credibility of witnesses . . . and a fact is not admitted or undisputed merely because it is uncontradicted.’ . . . Id., 249. A material fact is one that will affect the outcome of the case. See Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 540, 612 A.2d 1222 (1992).” Tovish v. Gerber Electronics, 32 Conn. App. 595, 599, 630 A.2d 136 (1993), appeal dismissed, 229 Conn. 587, 642 A.2d 721 (1994) (certification improvidently granted).

The fund’s motion to correct proposed additional findings regarding the efforts Aetna made to obtain the wage information. In part I of this opinion, we rejected the fund’s interpretation of the law in that respect. Because the proposed factual additions would not change the commissioner’s conclusions and because those conclusions are proper, we conclude that the board properly affirmed the commissioner’s decision.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-349 (b) provides: “As a condition precedent to the liability of the Second Injury Fund, the employer or its insurer shall: (1) Notify the custodian of the fund by certified mail no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier, of its intent to transfer liability for the claim to the Second Injury Fund; (2) Include with the notification (A) copies of all medical reports, (B) an accounting of all benefits paid, (C) copies of all findings, awards and approved voluntary agreements, (D) the employer’s or insurer’s estimate of the reserve amount to ultimate value for the claim, (E) a two-thousand-dollar notification fee payable to the custodian to cover the fund’s costs in evaluating the claim proposed to be transferred and (F) such other material as the custodian may require. The employer by whom the employee is employed at the time of the second injury, or its insurer, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. Failure on the part of the employer or an insurer to comply does not relieve the employer or insurer of its obligation to continue furnishing compensation under the provisions of this chapter. The custodian of the fund shall, by certified mail, notify a self-insured employer or an insurer, as applicable, of the rejection of the claim within ninety days after receiving the completed notification. Any claim which is not rejected pursuant to this section shall be deemed accepted, unless the custodian notifies the self-insured employer or the insurer within the ninety-day period that up to an additional ninety days is necessary to determine if the claim for transfer will be accepted. If the claim is accepted i'or transfer, the custodian shall file with the workers’ compensation commissioner for the district in which the claim was filed, a form indicating that the claim has been transferred to the Second Injury Fund and the date that such claim was transferred and shall refund fifteen hundred dollars of the notification fee to the self-insured employer or the insurer', as applicable. A copy of the form shall be mailed to the self-insured employer or the insurer and to the claimant. No further action by the commissioner shall be required to transfer said claim. If the custodian rejects the claim of the employer or its insurer, the question shall be submitted by certified mail within thirty days of the receipt of the notice of rejection by the employer or its insurer to the commissioner having jurisdiction, and the employer or insurer shall continue furnishing compensation until the outcome is finally decided. Claims not submitted to the commissioner within said lime period shall be deemed withdrawn with prejudice. If the employer or insurer prevails, or if the custodian accepts the claim all payments made beyond the one-hundred-four-week period shall be reimbursed to the employer or insurer by the Second Injury Fund.”

       Neither this court nor the Supreme Court has considered the circumstance where compliance with an element of § 31-349 is impossible. In those cases where we have insisted on strict compliance, strict compliance was possible. See, e.g., Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 618 A.2d 1340 (1993); Fresta v. Connecticut Mason Contractors, Inc., 43 Conn. App. 732, 685 A.2d 698 (1996); Soares v. Max Services, Inc., supra, 42 Conn. App. 147.


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CARL T. FISHER
    (AC 17660)
    O’Connell, C. J., and Sullivan and Daly, Js.

      Argued January 25
    officially released April 20, 1999

      William M. Bloss, with whom, on the brief, was Phillip A. Escoriaza, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Warren Murray, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant, Carl T. Fisher, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (2). The defendant claims that the trial court improperly (1) denied the defendant’s motion to preclude admission of prior misconduct evidence and (2) burdened the defendant’s right to testify by excluding the prior misconduct evidence on the condition that the defendant withdraw his notice of intention to present an alibi defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The eleven year old victim, her parents and her thirteen year old sister were attending a wedding in Redding. During their visit, they stayed at the home of the twenty-six year old defendant and his mother, both of whom were also invited to the wedding. At the wedding reception, the defendant became intoxicated and continued to consume alcohol after he returned home. The victim and her family also returned to the defendant’s home after the reception. The victim and her sister slept in a bedroom on the second floor of the house. Their parents slept in another bedroom on the second floor. At approximately 2:45 a.m., the victim was awakened by the defendant, who had his hands in her undeipants. The defendant was naked, lying in bed next to the victim and was moving one of his fingers in and out of her vagina. When the victim tried to roll over to wake her sister, who was sleeping in the bed next to her, the defendant picked up his clothes, said thank you and left the room.

The victim and her family immediately left the defendant’s home and went to the Redding police station where they filed a complaint. The victim was subsequently examined by an emergency room physician, who found two areas of redness and a scratch in the victim’s vaginal area. The physician concluded that the injuries were caused by trauma and were not self-inflicted. The defendant was arrested and charged with one count of sexual assault in the first degree and one count of risk of injury to a child.

Prior to trial, the defendant filed a notice of his intention to claim an alibi defense. At trial, the defendant filed a motion in limine to prevent the state from presenting evidence of a prior similar act that occurred in 1989, when the defendant was in college. The eighteen year old victim in the 1989 incident was a student at the same school. During the state’s offer of proof, she testified that she was asleep in her dormitory room when she was awakened by the defendant, who was kneeling on her bed, touching her in the vaginal area through her clothes and attempting to put his hand under her clothes. The defendant’s shorts were pulled down from his waist. When the victim told him to get out, the defendant left the room and ran down the hall.

After the state’s offer of proof, the trial court ruled that the prior misconduct evidence was admissible and denied the motion in limine. The court determined that the evidence was relevant to disprove the defendant’s alibi defense. The defendant’s counsel then commented that, although the defendant had filed a notice of alibi, the defendant was not required to pursue that defense. In response, the trial court agreed and noted that, if the defendant were to withdraw the defense, it would reconsider its ruling. After a short recess, the defendant’s counsel informed the court that “based on the issues that are raised, the defendant expects to withdraw any notice of defense of alibi.” The trial court then ruled that the evidence was inadmissible.

The defendant claims that the trial court improperly ruled initially that the prior misconduct evidence was admissible. He argues that the trial court failed to perform the requisite balancing test of weighing the probative value of the evidence against its prejudicial impact. He further claims that the trial court’s initial ruling impermissibly burdened his right to testify because it forced him to withdraw his defense. We now address the defendant’s constitutional claim because it is dis-positive of both claims.

Although the defendant did not raise the constitutional issue at trial, he claims that it is reviewable under the doctrine set out in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review the claim because the record is adequate for review and the defendant alleges a violation of his constitutional right to testify. See State v. Shinn, 47 Conn. App. 401, 408-409, 704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833 (1998). The defendant’s claim fails, however, because the alleged constitutional violation did not clearly exist and did not clearly deprive the defendant of a fair trial.

The defendant argues that the trial court’s initial ruling allowing the admission of the prior misconduct evidence impeded his right to testify because it forced him to choose either to withdraw his alibi defense or to face the admission of the prior misconduct evidence. Although the defendant was faced with a difficult choice, his decision not to testify was a tactical decision to preclude the admission of evidence that he had committed a similar act in 1989. “It is not thought overly harsh in such situations to require that the determination whether to waive [the right to testify] take into account the matters which may be brought out on cross-examination. . . . Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify. ... A defendant may decide not to take the witness stand because of the risk of cross-examination. But this is a choice of litigation tactics.” (Citation omitted; internal quotation marks omitted.) State v. Harrell, 199 Conn. 255, 264, 506 A.2d 1041 (1986).

After hearing the state’s offer of proof on the prior misconduct evidence and the trial court’s ruling, the defendant and his attorney made a tactical decision to withdraw the alibi defense to prevent the admission of evidence that could have weighed heavily in the jurors’ minds, despite limiting instructions by the court on its puipose. The defendant cannot now complain that he was deprived of his constitutional rights because his trial tactic failed. We conclude that the defendant was not clearly deprived of his constitutional right to testify or to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40. “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Shinn, 47 Conn. App. 401, 409, 704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833 (1998).

       The defendant argues that the holding of State v. Harrell, 199 Conn. 255, 265-66, 506 A.2d 1041 (1986), does not apply to his claim. In Harrell, our Supreme Court adopted the holding of Luce v. United States, 469 U.S. 38, 43, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984), that “to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.” (Internal quotation marks omitted.) State v. Harrell, supra, 265-66. The defendant contends that he did not need to testify to preserve his claim because the present case is distinguishable from Harrell and Luce. We do not address this claim, however, because we grant review under Golding. See State v. Golding, supra, 213 Conn. 239-40.

       We need not address the defendant’s claim that the trial court improperly ruled Initially that the evidence was admissible because the court ultimately ruled that the evidence was inadmissible. Furthermore, we find in the foregoing discussion that the trial court’s ultimate ruling granting the motion in limine after the defendant had withdrawn his defense was also not an improper decision.


author: Per Curiam.

text:
    STATE OF CONNECTICUT v. JOHN T. PRICE
    (AC 18025)
    Lavery, Hennessy and Daly, Js.
    Argued January 26
    officially released February 23, 1999
   Per Curiam.

The judgment is affirmed.


text:
    BOBHIC ASSOCIATES LIMITED PARTNERSHIP v. CARRABBA OB-GYN ASSOCIATES, INC., ET AL.
    (AC 18416)
    Schaller, Spear and Hennessy, Js.
    Submitted on briefs January 28
    officially released February 23, 1999
   Per Curiam.

The judgment is affirmed.


text:
    UST BANK/CONNECTICUT v. JAMES M. DAVENPORT ET AL.
    (AC 18477)
    Schaller, Spear and Hennessy, Js.
    Submitted on briefs January 28
    officially released February 23, 1999
   Per Curiam.

The judgment is affirmed.


text:
    DEBORAH PHILLIPS v. DEBORAH PHILLIPS ET AL.
    (AC 18267)
    Schaller, Spear and Hennessy, Js.
    Submitted on briefs January 28
    officially released February 23, 1999
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    SEAN DONOGHUE v. COMMISSIONER OF MOTOR VEHICLES
    (AC 17834)
    O’Connell, C. J., and Foti and Sullivan, Js.
    Submitted on briefs January 28
    officially released February 23, 1999
   Per Curiam.

The judgment is affirmed.


text:
    ANTHONY MCKNIGHT v. DEPARTMENT OF CORRECTION ET AL.
    (AC 18468)
    O’Connell, C. J., and Foti and Schaller, Js.
    Argued February 17
    officially released March 23, 1999
   Per Curiam.

The decision of the workers’ compensation commissioner is affirmed.


text:
    REGINA M. PASQUALINI v. STATE BOARD OF FIREARMS PERMIT EXAMINERS
    (AC 18308)
    Schaller, Sullivan and Dupont, Js.
    Submitted on briefs February 19
    officially released March 23, 1999
   Per Curiam.

The judgment is affirmed.


text:
    EDWARD T. HANLON v. RON FRIEDMAN ET AL.
    (AC 18197)
    O’Connell, C. J., and Lavery and Sullivan, Js.
    Argued February 22
    officially released March 23, 1999
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. CEDRIC EDWARDS
    (AC 16887)
    Landau, Sullivan and Daly, Js.
    Argued February 25
    officially released March 23, 1999
   Per Curiam.

The judgment is affirmed.


text:
    LEONARD UDOLF v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY
    (AC 18346)
    Lavery, Hennessy and Sullivan, Js.
    Submitted on briefs March 4
    officially released March 23, 1999
   Per Curiam.

The judgment is affirmed.


text:
    EMIL V. BENVENUTO v. RAMESH MAHAJAN ET AL.
    (AC 18826)
    Landau, Hennessy and Shea, Js.
    Argued March 2
    officially released March 23, 1999
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. BRETT SALTUS
    (AC 17877)
    Lavery, Landau and Spear, Js.
    Argued March 23
    officially released April 20, 1999
   Per Curiam.

The judgment is affirmed.


text:
    DERREX CONNER v. COMMISSIONER OF CORRECTION
    (AC 17620)
    Lavery, Schaller and Spear, Js.
    Argued March 22
    officially released April 20, 1999
   Per Curiam.

The judgment is affirmed.


text:
    WETHERSFORD CONDOMINIUM ASSOCIATION, INC. v. JOHN B. DERAY
    (AC 18834)
    Lavery, Schaller and Spear, Js.
    Argued March 22
    officially released April 20, 1999
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    ROSECEIL RADER v. JAYA VIJAYASEKAR
    (AC 17903)
    O’Connell, C. J., and Schaller and Hennessy, Js.
    Argued March 30
    officially released April 20, 1999
   Per Curiam.

The judgment is affirmed.


text:
    ELLEN ARCE v. RENIE ARCE
    (AC 17532)
    Foti, Landau and Stoughton, Js.
    Argued March 30
    officially released April 20, 1999
   Per Curiam.

The judgment is affirmed.


author: LAVERY, J.

text:
    CAMERON M. HAYWARD v. JAMES R. W. HAYWARD
    (AC 16496)
    Foti, Lavery and Daly, Js.
    Argued December 1, 1998
    officially released April 27, 1999
   Opinion

LAVERY, J.

This appeal, arising from the trial court’s decision modifying its order for periodic child support, returns to this court pursuant to our having granted the plaintiffs motion to reargue. The issue now before us is the plaintiffs claim that trial court improperly applied the child support guidelines (support guidelines) by permitting the defendant to deduct his entire contribution to the Australian superannuation fund and the value of his employer provided automobile from his gross income. We agree.

The following facts are pertinent to this appeal. The plaintiff, Cameron M. Hayward, and the defendant, James R. W. Hayward, were married in 1985, and one child was born to them in 1989. Sometime thereafter, the defendant returned to his native Australia, where he continues to reside. The parties entered into a separation agreement governing the financial aspects of their dissolution of marriage, which was granted on March 1, 1991. At the time of the dissolution, the defendant was self-employed; he is now employed by a third party.

In June, 1995, the defendant unilaterally reduced the amount of child support he paid monthly. Consequently, the plaintiff filed a motion to show cause why the defendant should not be held in contempt, in response to which the defendant filed a motion for modification of his periodic child support claiming a substantial change in the parties’ circumstances. The defendant claimed that despite an increase in his gross income from employment from $181,000 in 1991 to $230,000 in 1996, his net income from employment decreased from $2168 per week to $1560 per week due, in part, to the contributions he is required to make to Australia’s superannuation fund, a compulsory retirement savings program. The defendant’s employer also provides him with an automobile, the value of which is included in his gross income. The defendant deducts approximately $296 from his weekly gross salary for the value of the motor vehicle.

A hearing was held on both motions in September, 1996. As a result of the hearing, the trial court orally denied the plaintiffs motion for contempt and issued a memorandum of decision granting the defendant’s motion for modification. The plaintiff appealed.

I

Before we can resolve the issue on appeal, we must address the defendant’s claims that the plaintiff did not raise the misapplication of the support guidelines at trial and has not provided an adequate record for our review. The defendant is mistaken.

The issue before this court is whether the trial court improperly applied the child support guidelines in modifying the amount of periodic child support that the defendant owes the plaintiff, specifically, whether the trial court properly allowed the defendant to deduct from his gross income (1) his contribution to the superannuation fund and (2) the value of his automobile. The record before us includes a copy of the defendant’s 1996 financial affidavit, a transcript of the hearing and the trial court’s memorandum of decision in which it finds that the defendant’s disposable weekly income is $1560.

The following additional facts are necessary for the resolution of the defendant’s claim. The separation agreement incorporated in the dissolution judgment contained a provision that the defendant’s child support payments were not to be controlled by the support guidelines. In fact, at the time of the dissolution of the marriage, the defendant’s net income was at a level outside the scope of the support guidelines. At the hearing on his motion to modify his child support payments, the defendant argued that his net income was now significantly less than what it was at the time of the dissolution and that it now came within the scope of the support guidelines. Following evidence, the trial court heard argument from the parties’ counsel, during which the following colloquy took place.

“[Plaintiffs Counsel]: With regard to the argument that [defendant’s counsel] makes, first of all, our position is that this isn’t a guidelines case. And it’s not a guidelines case for two reasons. First of all, at the time that the divorce was entered, back in March of 1991 . . . it’s clear that the parties intended, through counsel, and the court accepted to the extent that it could, that this was not a guidelines case then. And moreover, under the agreement, this would not become a guidelines case.
“The Court: Well, that’s the issue right there. That’s the whole issue in the case.
“[Plaintiffs Counsel]: I understand that.
“The Court: And whether the agreement can override the guidelines and the regulation.
* * *
“The Court: Is there any case that says that a party’s agreement approved by the court, made part of the judgment dissolution, can override the guidelines?
“[Defendant’s Counsel]: I know of no case that says that.
“The Court: I don’t either.
“[Plaintiffs Counsel]: And I don’t either.”

The trial court ruled that the support guidelines were mandatory and then applied the guidelines to the facts of the case. The plaintiff appealed.

A

We must first decide whether this court may properly review the plaintiffs claim because it was not raised at trial. This court “may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. ...” (Emphasis added.) Practice Book § 60-5.

In its memorandum of decision, the trial court determined that the defendant’s child support payments were controlled by the support guidelines and could not be overridden by the parties’ separation agreement. The trial court, therefore, applied the support guidelines in modifying the amount of child support the defendant is now required to pay. On appeal, the plaintiff takes exception to the manner in which the trial court applied the support guidelines to the facts of this case. How the support guidelines are to be interpreted or applied was not at issue before the trial court. That issue arose subsequent to the hearing when the trial court issued its memorandum of decision. Pursuant to Practice Book § 60-5, therefore, we may properly consider the plaintiffs claim.

B

The defendant’s second claim, as to whether we may properly review the plaintiffs appeal, is that there is an inadequate record for our review because the plaintiff did not ask the trial court to articulate the manner in which it applied the support guidelines to the defendant’s financial affidavit. “It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this section, the term ‘record’ is not limited to its meaning pursuant to Section 63-4 (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.” Practice Book § 61-10.

The substantive issue before us is whether the trial court properly applied the support guidelines to the defendant’s superannuation fund contribution and the value of his employer provided automobile. The support guidelines are codified in §§ 46b-215a-l and 46b-215a-2 of the Regulations of Connecticut State Agencies. “In construing regulations, the general rules of statutory construction apply.” Smith v. Zoning Board of Appeals, 227 Conn. 71, 89, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994). Statutory construction is a question of law requiring plenary review. See Lopiano v. Lopiano, 247 Conn. 356, 363, 752 A.2d 1000 (1998), citing Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). We need determine only whether the trial court correctly applied the support guidelines. See Lowe v. Lowe, 47 Conn. App. 354, 361, 704 A.2d 236 (1997).

We have before us the defendant’s 1996 financial affidavit, a transcript of the hearing and the trial court’s memorandum of decision in which it found the defendant’s net income. This record is sufficient for us to determine whether the trial court properly applied the support guidelines as a matter of law. We will, therefore, review the plaintiffs claim.

II

We now turn to the plaintiffs claim that the trial court improperly applied the child support guidelines. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. . . . McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982); see also Rostain v. Rostain, 213 Conn. 686, 693, 569 A.2d 1126 (1990). In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . Sands v. Sands, 188 Conn. 98, 101, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983). . . . Simmons v. Simmons, 244 Conn. 158, 174-75,708 A.2d 949 (1998).” (Internal quotation marks omitted.) Stewart v. Stewart, 50 Conn. App. 762, 763, 718 A.2d 516, cert. denied, 247 Conn. 948, 723 A.2d 323 (1998).

“Where the legal conclusions of the trial court are challenged, on appeal those conclusions are subject only to the test of abuse of discretion. . . . Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . The salient inquiry is whether the court could have reasonably concluded as it did. ... It goes without saying that the term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Citations omitted; internal quotation marks omitted.) Misinonile v. Misinonile, 35 Conn. App. 228, 234-35, 645 A.2d 1024 (Landau, J., dissenting), cert. denied, 231 Conn. 929, 649 A.2d 253 (1994).

“ ‘Trial courts have broad discretion in deciding motions for modification.’ Noce v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980).” Shearn v. Shearn, 50 Conn. App. 225, 227, 717 A.2d 793 (1998). General Statutes § 46b-86 governs the modification of a child support order after the date of a dissolution judgment. See Bor-kowski v. Borkowski, 228 Conn. 729, 734, 638 A.2d 1060 (1994). A final order for child support may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. See Shearn v. Shearn, supra, 228. “ ‘The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances.’ Jaser v. Jaser, 37 Conn. App. 194, 204, 655 A.2d 790 (1995).” Shearn v. Shearn, supra, 228.

A

The plaintiffs first claim is that the trial court improperly applied the child support guidelines by permitting the defendant to deduct his entire contribution to the superannuation fund from his gross employment income. We agree.

Section 46b-215a-l contains the definitions to be used in §§ 46b-215a-l through 46b-215a-5 of the Regulations of Connecticut State Agencies. “ ‘Allowable deductions” means amounts subtracted from gross income to arrive at net income. Such amounts are computed on a weekly basis and are limited to the following . . . (B) social security taxes or, in lieu thereof, mandatory retirement plan deductions for an amount not to exceed the maximum amount permissible under social security.” Regs., Conn. State Agencies § 46b-215a-l (1) (B).

In accord with the tenets of statutory construction, we attribute the plain meaning to the words of a statute or regulation. See Bittle v. Commissioner of Social Services, 48 Conn. App. 711, 714, 711 A.2d 1198, cert. granted on other grounds, 245 Conn. 922, 717 A.2d 237 (1998). In his original brief to this court, the defendant defined superannuation as the Australian equivalent of our social security. The support guidelines do not permit the defendant to deduct more than the maximum amount withheld pursuant to our social security laws. Because the trial court permitted the defendant to deduct the full amount of his superannuation contribution from his gross income, which is more than the amount allowed by the support guidelines, the trial court misapplied the support guidelines.

B

The plaintiff also claims that the trial court misapplied the support guidelines by permitting the defendant to deduct the value of his employer provided automobile from his gross income. We agree with this claim as well.

“ ‘Gross income’ means the average weekly income before deductions. (A) Inclusions . . . (xii) in-kind compensation (any basic maintenance or special need such as food, shelter, or transportation provided on a recurrent basis in lieu of salary).” (Emphasis added.) Regs., Conn. State Agencies § 46b-215a-l (11). Again, we apply the tenets of statutory construction. See Bittle v. Commissioner of Social Services, supra, 48 Conn. App. 714. “Here, the regulation, which provides for the inclusion of in-kind contributions, is unambiguous.” Shearn v. Shearn, supra, 50 Conn. App. 232. The defendant’s employer provides the defendant with the use of an automobile, the value of which the defendant properly included in his gross income. Section 46b-215a-l (1) sets forth the deductions permitted to be taken from the defendant’s gross employment income. In-kind compensation is not one of the deductions permitted by § 46b-215a-l (1). The trial court, therefore, improperly permitted the defendant to deduct the value of his employer provided automobile from his gross income.

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

In this opinion the other judges concurred.

       Originally, the plaintiff raised three claims in her appeal. The plaintiff claimed that the trial court improperly (1) determined that the child support guidelines were “mandatory” in the present case given the defendant’s explicit waiver in the separation agreement that said guidelines would not operate as the basis for modification of child support in the future, (2) applied the support guidelines and (3) denied the plaintiffs motion for contempt. In a per curiam opinion, we affirmed the trial court’s decision. Hayward v. Hayward, 49 Conn. App. 904, 718 A.2d 86 (1998). Subsequently, the plaintiff filed a motion seeking reargument on the issue of whether the trial court properly applied the support guidelines, and we granted that motion. Because the plaintiff did not seek to reargue our decision as to the trial court’s determination that the support guidelines applied to the facts of this case and its denial of her motion for contempt, our earlier decision is dispositive of those issues.

       “The guidelines are set forth at § 46b-215a-l et seq. of the Regulations of Connecticut State Agencies. The guidelines are promulgated by the commission for child support guidelines . . . which was established by the legislature pursuant to General Statutes § 46b-215a. General Statutes § 46b-215b (a) provides that the guidelines are to be considered in all determinations of child support in the state, and creates a rebuttable presumption that the amount of support calculated through application of the guidelines is the amount of support to be ordered.” Jenkins v. Jenkins, 243 Conn. 584, 586 n.2, 704 A.2d 231 (1998).

       Both of the parties have married others since the dissolution of their marriage.

       All sums are in United States dollars.

       The plaintiff challenged both of the trial court’s rulings, but only the issue concerning modification of child support is before us at this time.

       The separation agreement contained the following provision: “The parties recognize and agree that the amount of child support agreed to is not in accordance with the child support guidelines, having taken into consideration the assets of the HUSBAND and therefore specifically agree that said guidelines shall not operate as a basis for a modification of the child support in the future.”

       Section 46b-215a-2 (a) of the Regulations of Connecticut State Agencies provides: “This section shall be used in the determination of all child support award amounts within the state effective June 1, 1994. When the parents’ combined net weekly income exceeds $1,750, awards shall be determined on a case-by-case basis, and the amount of support prescribed at the $1,750 level shall be the minimum presumptive level.”

       General Statutes § 46b-86 provides in relevant part: “(a) Unless and to 1he extent that the decree precludes modification, any final order for the periodic payment of . . . support . . . may at any time thereafter be . . . modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a .... Modification may be made of such support order without regard to whether the order was issued before, on or after May 9, 1991. . .

       During his argument before the trial court on the defendant’s motion to modify, the defendant’s counsel described some of the itemized deductions thus: “The federal—I call it federal income tax, but it’s the Australian tax, is the $282.45 that’s automatically withheld from his pay, plus the tax on the dividends of $153.65. That’s where I get $2,236.10. The $664.61, which is delineated in this country as social security tax, is the superannuation tax that’s taken out of his pay.”

       See 26 U.S.C. § 3101 (b) (with respect to wages received after December 31, 1989, rate shall be 6.2 percent for old age, survivors and disability insurance; with respect to wages received after December 31, 1985, rate shall be 1.45 percent for hospital insurance); see 42 U.S.C § 430 (maximum wages taxable and maximum annual contributions).

       The defendant deducted his superannuation contribution of $664.61 from his weekly gross income.

       If the defendant’s employer makes no contribution to the superannuation fund or contributes an amount that is less than equal to the amount the defendant contributes, the trial court shall permit the defendant to deduct from his gross income the amount an employer in the United States would be required to contribute less any contribution from the defendant’s Australian employer.


author: KULAWIZ, J.

text:
    SOUTHBRIDGE ASSOCIATES, LLC v. ALBERT A. GAROFALO ET AL.
    (AC 18248)
    Lavery, Spear and Kulawiz, Js.

      Argued November 6, 1998
    officially released April 27, 1999

      James T. Shearin, with whom was Aimee J. Wood, for the appellants (named defendant et al.).

      Theodore J. Whitehead, with whom was Thomas D. Goldberg, for the appellee (plaintiff).
   Opinion

KULAWIZ, J.

The defendants Albert A. Garofalo and Pequot Motor Inn, Inc. (Pequot), appeal from the judgment rendered in favor of the plaintiff following that court’s granting of the plaintiffs motion for summary judgment. The defendants claim that the trial court improperly (1) granted the plaintiffs motion for summary judgment, (2) denied the defendants’ motion for an order of compliance with discovery requests and (3) granted the plaintiffs motion for a judgment of foreclosure. We affirm the judgment of the trial court.

On July 18, 1986, Garofalo borrowed $3,000,000 from Connecticut Bank and Trust (CBT) pursuant to a note and secured by a mortgage to CBT. On October 2, 1990, Garofalo borrowed an additional $300,000 from CBT pursuant to a note and secured by a mortgage to CBT. Garofalo used the funds to purchase the Bridgeport Motor Inn in Fairfield and a residential lot in Fairfield and to make improvements to the Pequot Motor Inn in Southport. CBT subsequently assigned the notes and mortgages to Fleet National Bank (Fleet).

In late 1995, Garofalo, an eighty-seven year old attorney licensed to practice in Connecticut, was admitted to a nursing home. Thereafter, beginning in November, 1995, he defaulted on the notes, making no payments until March, 1996, when Fleet accelerated the notes and demanded full payment of the outstanding balances.

Following acceleration, Fleet assigned the notes and mortgages to the plaintiff. Garofalo offered to purchase the notes from Fleet at a price that he claimed was higher than the amount that the plaintiff had paid. On November 21,1996, the plaintiff brought an action seeking a foreclosure against the defendants. The defendants filed an answer and special defenses. The trial court subsequently granted the plaintiffs motion for summary judgment as to liability and then rendered judgment of foreclosure by sale. This appeal followed.

I

The defendants first claim that the trial court improperly granted summary judgment. Specifically, the defendants contend that summary judgment was improper because there were genuine issues of material fact as to whether (1) a fiduciary relationship existed between Garofalo and the plaintiffs predecessors in interest, CBT and Fleet, (2) CBT and Fleet breached an implied covenant of good faith and fair dealing, (3) the plaintiff is barred by waiver and estoppel from recovering in excess of what it paid for the notes and (4) the defendants’ counterclaims were proper. We disagree.

Practice Book § 17-49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ” A material fact is one that would alter the outcome of the case. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990); Budris v. Allstate Ins. Co., 44 Conn. App. 53, 56, 686 A.2d 533 (1996). The trial court, in deciding a motion for summary judgment, must view the evidence in a light most favorable to the nonmoving party. Mingachos v. CBS, Inc., 196 Conn. 91, 111, 491 A.2d 368 (1985). “The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 247, 571 A.2d 116 (1990). The party seeking summary judgment has the burden of presenting evidence showing the absence of any genuine issue of material fact and that it is entitled to judgment as a matter of law, and the party opposing the motion must provide an evidentiary foundation to demonstrate that a genuine issue over a material fact actually exists. Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 5-6, 698 A.2d 795 (1997).

Additional facts are necessary to our resolution of this claim. The plaintiff filed a motion for summary judgment claiming that it was entitled to judgment as a matter of law on all counts of the complaint because Garofalo defaulted on the note, and his defenses, counterclaims and setoffs would not defeat the plaintiffs claims. The defendants, in their “third special defense and counterclaim and set-off one” claimed that Fleet breached an implied covenant of good faith and fair dealing by selling the notes to the plaintiff for an “amount less than that which the Defendant Garofalo was willing to pay.” The trial court, nonetheless, granted the motion for summary judgment because Garofalo admitted that he defaulted on the notes and his defenses failed to “attack the making, validity, or enforcement of the note or mortgage.” We conclude that the trial court properly rendered summary judgment.

“Because a mortgage foreclosure action is an equitable proceeding, the trial court may consider all relevant circumstances to ensure that complete justice is done.” Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982). “The determination of what equity requires in a particular- case, the balancing of the equities, is a matter for the discretion of the trial court.” Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981); Federal Deposit Ins. Corp. v. Bombero, 37 Conn. App. 764, 773, 657 A.2d 668 (1995), appeal dismissed, 236 Conn. 744, 674 A.2d 1324 (1996). Where the plaintiffs conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles. Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980).

“At common law, the only defenses to an action of this character would have been payment, discharge, release or satisfaction . . . or, if there had never been a valid hen.” (Citation omitted.) Petterson v. Weinstock, 106 Conn. 436, 441, 138 A. 433 (1927). Moreover, our courts have permitted several equitable defenses to a foreclosure action. “[I]f the mortgagor is prevented by accident, mistake or fraud, from fulfilling a condition of the mortgage, foreclosure cannot be had . . . .” (Citations omitted.) Id., 442. Other equitable defenses that our Supreme Court has recognized in foreclosure actions include unconscionability; Hamm v. Taylor, supra, 180 Conn. 494-96; abandonment of security; Glotzer v. Keyes, 125 Conn. 227, 233, 5 A.2d 1 (1939); and usury. Atlas Realty Corp. v. House, 120 Conn. 661, 669-70, 83 A. 9 (1936), overruled in part on other grounds, Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 202, 708 A.2d 1371 (1998).

A

The trial court granted the plaintiffs motion for summary judgment because Garofalo defaulted on the note and because the defendants’ “third special defense, counterclaim and set-off one did not challenge the making, validity or enforcement of the notes and mortgages.” The defendants argue, however, that the trial court improperly failed to exercise its equitable powers to deny summary judgment. We disagree.

After examining the facts in a light most favorable to the defendants, the trial court concluded that the special defense of breach of the implied covenant of good faith and fair dealing did not attack the making, validity or enforcement of the note and mortgage and thus raised no genuine issue of material fact that would warrant a trial.

The implied covenant of good faith and fair dealing requires faithfulness to an agreed common purpose and consistency with the justified expectation of the other party in the performance of every contract. Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566, 479 A.2d 781 (1984). “Essentially, it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended. The principle, therefore, cannot be applied to achieve a result contrary to the clearly expressed terms of a contract, unless, possibly, those terms are contrary to public policy.” Id., 567.

After a careful review of the record, we conclude that the trial court properly granted the motion for summary judgment as to the special defense of breach of the implied covenant of good faith and fair dealing. The loan documents do not contain a provision requiring a holder of the notes and mortgages to negotiate with or sell the notes to Garofalo prior to enforcing its foreclosure rights. Moreover, the defendants do not cite nor can we find any authority requiring a holder of a note and mortgage to sell them at a discount to the mortgagor under an implied covenant of good faith and fair dealing when the mortgagor defaults. Indeed, if Garofalo offered to purchase, this occurred well after the loan documents were executed and was therefore irrelevant to the propriety of the notes. Accordingly, the trial court properly granted the motion for summary judgment on the basis of its conclusion that the defense of breach of implied covenant failed to attack the making, validity or enforcement of the notes and mortgages.

B

The defendants, in their “fourth special defense, counterclaim and set-off two,” argue that the trial court improperly granted the motion for summary judgment because there were genuine issues of material fact as to whether the plaintiff and its predecessors in interest breached their fiduciary duties to Garofalo. Specifically, the defendants claim that a fiduciary relationship was breached when Fleet assigned the notes and mortgages to the plaintiff because CBT and Fleet “were committed to being [Garofalo’s] partner in his business dealings.” The trial court, however, granted summary judgment because (1) the defendants failed to allege facts sufficient to establish a fiduciary relationship and (2) even if the defendants alleged these facts, the breach of that fiduciary relationship did not relate to the making, validity or enforcement of the notes and mortgages.

Connecticut courts have “specifically refused to define a fiduciary relationship in precise detail and in such a manner as to exclude new situations . . . .” (Internal quotation marks omitted.) Alaimo v. Royer, 188 Conn. 36, 41, 448 A.2d 207 (1982). Instead, a fiduciary relationship exists where “there is a justifiable trust confided on one side and a resulting superiority and influence on the other.” Id.

A fiduciary relationship is characterized “by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other.” Dunham v. Dunham, 204 Conn. 303, 322, 528 A.2d 1123 (1987), overruled in part on other grounds, Santopietro v. New Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996). “The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him.” Dunham v. Dunham, supra, 322. A bank, as a mortgagee lender, may be the fiduciary of the mortgagor borrower when the bank becomes the borrower’s financial advisor. Stone v. Davis, 66 Ohio St. 2d 74, 78-80, 419 N.E.2d 1094, cert. denied sub nom. Cardinal Federal Savings & Loan Assn. v. Davis, 454 U.S. 1081, 102 S. Ct. 634, 70 L. Ed. 2d 614 (1981). No such allegation was made in the present case.

Again, we cannot conclude after reviewing the record that the trial court improperly granted the plaintiffs motion for summary judgment. The defendants claim that they asserted sufficient facts to indicate that the plaintiff or the plaintiffs predecessors may have held a fiduciary relationship with Garofalo. We disagree.

Garofalo, in his deposition, attested that throughout the 1980s and 1990s, “I had continuous and extensive financial dealings with CBT. In those dealings, various officers and representatives of Fleet Bank, f/k/a CBT, continuously assured me of their good intentions and advised me how they appreciated our banking relationship.” The trial court properly concluded that the defendants failed to establish that anything more than an ordinary debtor-creditor relationship existed between Garofalo and the plaintiff or its predecessors. Neither the plaintiff nor its predecessors acted as Garofalo’s financial advisor or gained his confidence. Moreover, the defendants failed to offer any evidence that the plaintiff or its predecessors intended to act with Garo-falo’s interests in mind. A lender has the right to further its own interest in a mortgage transaction and is not under a duty to represent the customer’s interest. Cooper v. Burby, Superior Court, judicial district of Hartford-New Britain, Docket No. 387563 (April 29, 1992). Generally there exists no fiduciary relationship merely by virtue of a borrower-lender relationship between a bank and its customer. North Central Kansas Production Credit Assn. v. Hansen, 240 Kan. 671, 674-75, 732 P.2d 726 (1987); see Simmons v. Jenkins, 230 Mont. 429, 433-34, 750 P.2d 1067 (1988); see also First National Bank & Trust Co. of Williston v. Brakken, 468 N.W.2d 633, 637 (N.D. 1991).

Finally, the trial court properly concluded that even if a defense of a fiduciary relationship did exist, summary judgment was proper because the defense did not relate to the making, validity or enforcement of the notes and mortgages. Any fiduciary relationship claimed by the defendants would relate to the relationship between CBT or Fleet, not the plaintiff, and Garofalo. The plaintiff merely purchased the notes and mortgages after they were executed; the plaintiff was not in any way involved in executing the documents.

C

The defendants also claim that there were genuine issues of material fact about whether the plaintiff was barred under the doctrines of waiver and estoppel from recovering in excess of what it paid for the notes. Specifically, the defendants claim that the mortgage “should only be enforced, if at all, in the amount which plaintiff paid for the mortgage, since plaintiffs conduct in taking the mortgage with knowledge of, and subject to, [the defendants’] defenses, constitutes an implied waiver or estoppel of the right to enforce the mortgages in any greater amount. Further, plaintiff took the mortgage subject to the claim that plaintiffs predecessors are estopped from enforcing the mortgage as a result of their contrary conduct in not protecting [Garofalo’s] interests.” The defendants’ arguments are meritless.

“Under our well-established law, any claim of estop-pel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury.” (Internal quotation marks omitted.) Eis v. Meyer, 213 Conn. 29, 34, 566 A.2d 422 (1989); Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 699, 590 A.2d 957 (1991). Here, the defendants fail to offer evidence of either element of estoppel. Therefore, the trial court properly granted summary judgment.

Finally, the defendants do not provide any evidence that the plaintiffwaived any of its rights. “Waiver is the intentional abandonment of a known right. . . . Waiver is the voluntary relinquishment of a known right. It involves the idea of assent, and assent is an act of understanding. . . . Intention to relinquish must appear, but acts and conduct inconsistent with intention to [relinquish] . . . are sufficient.” (Citations omitted; internal quotation marks omitted.) Soares v. Max Services, Inc., 42 Conn. App. 147, 175, 679 A.2d 37, cert. denied, 239 Conn. 915, 682 A.2d 1005 (1996). Because the defendants failed to offer evidence that the plaintiff voluntarily relinquished a known right, the defendants’ claim of waiver is without merit.

D

The defendants, in conjunction with their special defenses, raised two counterclaims, arguing that they are entitled to damages for the plaintiffs (1) violation of the implied covenant of good faith and fair dealing and (2) breach of fiduciary duty. Practice Book § 10-10 provides that “[i]n any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff and cross claims against any codefendant provided that each such counterclaim and cross claim arises out of the transaction or one of the transactions which is the subject of the plaintiffs complaint . . . .” (Emphasis added.)

“The transaction test [of § 10-10] is one of practicality, and the trial court’s determination as to whether that test has been met ought not be disturbed except for an abuse of discretion.” (Internal quotation marks omitted.) Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983). Here, the defendants’ counterclaims clearly do not arise out of the transactions that are the subject of the plaintiffs complaint. Accordingly, the trial court did not abuse its discretion by rendering summary judgment for the plaintiff on the defendants’ counterclaims.

II

The defendants’ second claim is that the trial court improperly denied their motion for an order of compliance with discovery requests. Specifically, the defendants claim that the trial court abused its discretion by denying their motion for compliance because the discovery sought was relevant and material to the action and therefore should have been ordered by the court. We disagree.

Additional facts are necessary to our resolution of this claim. The defendants filed a motion for an order requesting the court to compel the plaintiffs compliance with the defendants’ previous discovery requests. The trial court denied the defendants’ motion for an order, concluding that the plaintiff sufficiently complied with all of the defendants’ requests.

“The granting or denial of a discovery request rests in the sound discretion of the court.” Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57, 457 A.2d 503 (1983). In our review of the trial court’s exercise of its discretion, we make “every reasonable presumption ... in favor of the correctness of its ruling.” Reynolds v. Ramos, supra, 188 Conn. 320-21.

After a careful review of the record, we cannot conclude that the trial court abused its discretion by denying the defendants’ motion for an order of compliance. The trial court properly concluded that the plaintiff sufficiently complied with the defendants’ discovery requests.

Our conclusions on the defendants’ first and second claims are dispositive of the defendants’ third claim wherein they assert that the foreclosure judgment is improper because it is based on an improper summary judgment and improper denial of discovery requests.

The judgment is affirmed.

In this opinion the other judges concurred.

       We refer in this opinion to Garofalo and Pequot as the defendants. Pequot, a corporation wholly owned by Garofalo, guaranteed the notes at issue in this appeal.

       The defendants sought access to the following documents: (1) “All documents concerning a Loan, Sale and Assignment Agreement dated August 26, 1996 and a Bill of Sale dated September 23, 1996 and an Assignment of Security Agreement dated October 10,1996 as these documents are identified in Paragraph 8 of the Complaint and constitute the basis by which Fleet Bank allegedly sold, assigned, transferred and conveyed all of its right, title and interest in, to and under the Loan Documents which are the subject of this action,” (2) “All documents exchanged by and between Fleet Bank and Plaintiff concerning the performance or status of the loans which are the subject of this action,” (3) “All documents concerning any discussions held by and between Defendants Garofalo or Pequot Motor Inn, Inc. With Fleet Bank or its predecessors-in-interest, Connecticut Bank and Trust company and concerning the loans which hare the subject of this action,” (4) “All documents concerning any and all Loan relationships by and between Defendants Garofalo and Pequot Motor Inn, Inc. with Fleet Bank and/or Connecticut Bank and Trust Company, N.A.” and (5) “All documents concerning Kennedy Funding Inc. as they relate in any way to the loan documents which are the subject of this action or to that certain Loan and Security Agreement dated as of October 3, 1996.”