author: LANDAU, J.

text:
    GUY OUTLAW v. CITY OF MERIDEN ET AL.
    (14794)
    (14974)
    Landau, Sehaller and Ilennessy, Js.
    Argued May 2
    officially released October 1, 1996

      Christopher P. Hankins, deputy city attorney, with whom, on the brief, was Megan J. Green, staff attorney, for the appellants-appellees (named defendant et al.).

      Richard W. Gifford, for the appellee-appellant (plaintiff).
   LANDAU, J.

The defendants appeal from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Guy Outlaw. The plaintiff cross appeals challenging the summary judgment in favor of the defendants as to count one of the plaintiffs revised complaint.

The defendants claim that the trial court improperly (1) denied their motions to set aside the verdict and for judgment notwithstanding the verdict in that the defendants could not be found liable for false imprisonment or false arrest because the plaintiff was lawfully restrained and (2) instructed the jury as to the principles of (a) false arrest and false imprisonment, (b) exculpatory information and criminal investigation, (c) probable cause and (d) the identifiable person subject to imminent harm exception to the general rule of governmental immunity.

In his cross appeal, the plaintiff claims that the trial court improperly granted the defendants’ motion for summary judgment as to count one of his complaint because material factual issues existed as to the applicability of the doctrine of qualified immunity.

The jury could reasonably have found the following facts. The plaintiff was arrested on robbery charges stemming from an incident that occurred in Meriden on September 15,1990. Following the incident, an investigation was commenced by Officers Joseph Salafia and Timothy Murphy of the Meriden police department. Subsequently, Salafia filed an affidavit in support of an arrest warrant application that resulted in a finding of probable cause by a judge and the issuance of a warrant for the plaintiffs arrest. On the eve of trial, a principal witness disclosed that she had been untruthful in her statements to the police and that the plaintiff had not committed the crime. The charges against the plaintiff were then dismissed.

In count one of the complaint, the plaintiff alleged a violation of his civil rights in violation of 42 U.S.C. § 1983, to which the defendants interposed a special defense of qualified immunity. The remaining counts, counts two, three and four, alleged claims of false arrest, false imprisonment and malicious prosecution, to which the defendants interposed a special defense sounding in governmental immunity. The plaintiff sought damages from the defendants, the city of Meri-den, Robert Kosienski, Salafia and Murphy. The trial court granted the defendants’ motion for summary judgment on the civil rights count and denied the motion as to the remaining counts.

I

THE APPEAL

The defendants’ appeal raises two main issues: the refusal of the trial court to grant their motions to set aside the verdict and for judgment notwithstanding the verdict, and the court’s instructions to the jury. We begin our analysis with the issues raised regarding the motions to set aside the verdict and for judgment notwithstanding the verdict.

As a threshold matter, the plaintiff asserts that the defendants’ claim is unpreserved and that our standard of review is therefore limited to plain error. The defendants maintain that the claim was properly preserved in that an exception was taken after the court’s charge even though the exception may not have been taken as distinctly and clearly as it could have been. In any event, the defendants argue that the motions to set aside the verdict and for judgment notwithstanding the verdict sufficiently alerted the court so as to comply with the rule requiring the preservation of claims.

The defendants argue in the alternative that, even if the claim is unpreserved, plain error is apparent because, as a matter of law, probable cause existed for the issuance of the arrest warrant and that probable cause had been determined by the issuing magistrate and was not to be determined by a jury at a later date. The defendants argue that the existence of the error is so obvious that it affected the fairness and integrity of and public confidence in the judicial proceedings. See State v. Groomes, 232 Conn. 455, 467, 656 A.2d 646 (1995). Furthermore, the defendants assert that our review is justified under these circumstances because “consideration of the question is in the interest of public welfare or of justice between the parties.” (Internal quotation marks omitted.) Skrzypiec v. Noonan, 228 Conn. 1, 15, 633 A.2d 716 (1993).

Our review of the record reveals that the defendants properly preserved the issues they raise on appeal. Therefore, we will address the merits. At the close of the plaintiffs case, the defendants made a motion for a directed verdict. The trial court denied the motion in part. Following the trial, the defendants filed motions to set aside the verdict and for judgment notwithstanding the verdict pursuant to Practice Book §§ 320 and 321. The motions were denied.

A verdict is set aside, and a contrary verdict directed when the jurors could not reasonably and legally have reached the conclusion they had reached. Berry v. Loiseau, 223 Conn. 786, 819, 614 A.2d 414 (1992); Maroun v. Tarro, 35 Conn. App. 391, 396, 646 A.2d 251, cert. denied, 231 Conn. 926, 648 A.2d 164 (1994). When we are requested to determine whether the jury could not legally have reached its decision, we must “determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict. . . . [0]ur sole responsibility is to decide whether, on the evidence presented, the jury could fairly have reached the conclusion it did.” (Citations omitted; internal quotation marks omitted.) Skrzypiec v. Noonan, supra, 228 Conn. 10-11. While the trial judge has discretion in deciding whether to grant such a motion, the decision will be overturned if it constitutes an abuse of discretion. Id.

The defendants argue that their motions to set aside the verdict and for judgment notwithstanding the verdict should have been granted because the verdict was against the evidence. The defendants argue that the evidence presented at trial furnished no reasonable basis for the jury’s verdict. Specifically, the defendants assert that there was no evidence other than that which established that standard police procedures were followed.

In the first count, sounding in a 42 U.S.C § 1983 civil rights claim, the plaintiff alleged that “said warrant was obtained upon allegations which were false and misleading and were known to the defendants and deprived plaintiff of his liberty without due process of law and caused the injuries.” In the second and third counts alleging false arrest and false imprisonment, the plaintiff again alleged and repeated “paragraphs 1 through 14 of the first count.” In the last paragraph of count two, the plaintiff alleged that he “did not commit an offense and [the] [defendants did not have reason to believe that he was involved in the robbeiy and [the] defendants’] actions resulted in the false arrest of [the] [p]laintiff.” The plaintiff repeated the same language in the third count except that he inserted the phrase “false imprisonment” in place of the phrase “false arrest.”

Although the plaintiff pleaded a count alleging false arrest and a count sounding in false imprisonment, the applicable law for these two causes of action is identical. “False imprisonment, or false arrest, is the unlawful restraint by one person of the physical liberty of another.” Green v. Donroe, 186 Conn. 265, 267, 440 A.2d 973 (1982). The plaintiff, in the second and third counts of his complaint, failed to allege that his physical liberty was unlawfully restrained by the defendants.

Further, nearly 180 years ago, our Supreme Court in Luddington v. Peck, 2 Conn. 700, 701-702 (1818), held that there is no cause of action for false imprisonment if the plaintiff was arrested pursuant to a facially valid warrant. The rule has been followed through the years by our courts; see Whitten v. Bennett, 86 F. 405, 406 (2d Cir. 1898); Clewley v. Brown Thompson, Inc., 120 Conn. 440, 444, 181 A. 531 (1935); McGann v. Allen, 105 Conn. 177, 188, 134 A. 810 (1926); Lo Sacco v. Young, 20 Conn. App. 6, 19, 564 A.2d 610, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989); and continues to be the law in this jurisdiction. “ ‘If the defendant complies with the formal requirements of the law, as by swearing out a valid warrant, so that the arrest of the plaintiff is legally authorized, the court and its officers are not his agents to make the arrest, and their acts are those of the law and the state, and not to be imputed to him. He is therefore liable, if at all, only for a misuse of legal process to effect a valid arrest for an improper purpose. The action must be for malicious prosecution, upon proof of malice and want of probable cause, as well as termination of the proceeding in favor of the plaintiff.’ ” Lo Sacco v. Young, supra, 20, quoting W. Prosser, Torts (4th Ed. 1971) § 11.

Because there is no dispute that the plaintiff was arrested pursuant to process, that is, by an arrest warrant, the issue is whether the subsequent police restraint of the plaintiff was done pursuant to an arrest warrant that was valid on its face. Our Supreme Court defined the phrase “valid on its face” in Aetna Ins. Co. v. Blumenthal, 129 Conn. 545, 553, 29 A.2d 751 (1943), when it stated that “[ujnless there is a clear absence of jurisdiction on the part of the court or magistrate issuing the process, it is sufficient if upon its face it appears to be valid in the judgment of an ordinarily intelligent and informed layman.”

Here, the plaintiffs complaint does not allege the invalidity of the arrest warrant. Accordingly, we must assume it to have been valid on its face. McGann v. Allen, supra, 105 Conn. 187. Because the plaintiff has not alleged false imprisonment based on a detention without process, or under a process void on its face, or under a process valid on its face but procured by one without having any cause of action, the defendants cannot be held liable for false imprisonment.

Because of the presumption of regularity, the plaintiff was obliged to present evidence to the effect that (1) the judge did not have the authority or jurisdiction to issue the warrant, (2) the judge did not have jurisdiction over the plaintiff, (3) there was an obvious irregularity on the face of the warrant, or (4) the procedures normally taken to issue a warrant were omitted. At trial, the plaintiff failed to present any such evidence, which, when taken in the light most favorable to him, would show that he sustained his burden of proof. The plaintiff was restrained pursuant to a valid arrest warrant issued by a court with jurisdiction over the matter. He was, therefore, lawfully restrained. Because we conclude that the jury could not have legally found that the defendants had falsely imprisoned the plaintiff, the defendants’ claim that the instructions were improper is moot, and, thus, we will not address it. See State v. Smith, 207 Conn. 152, 178, 540 A.2d 679 (1988).

II

THE CROSS APPEAL

In his cross appeal, the plaintiff claims that the trial court improperly granted the defendants’ motion for summary judgment as to 42 U.S.C. § 1983 when it ruled that a qualified immunity existed.

“The standards governing our review of a trial court’s decision on a motion for summary judgment are clear. Practice Book § 384 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. . . . While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment . . . the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . .

“Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [T]he trial court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist. . . .” (Citations omitted; internal quotation marks omitted.) Fleet Bank, N.A. v. Galluzzo, 33 Conn. App. 662, 665-66, 637 A.2d 803 (1994).

State courts follow federal precedent in interpreting the doctrine of qualified immunity. Martinez v. California, 444 U.S. 277, 284 n.8, 100 S. Ct. 553, 62 L. Ed. 2d 481 (1980). “The Supreme Court has expressly encouraged the use of summary judgment when qualified immunity is raised as a defense. The objective reasonableness test was designed to facilitate this summary device as a means quickly to extricate government officials from defending insubstantial suits.” Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir. 1992).

“As a general rule, police officers are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights.” Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir. 1994). “Even defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard.” Davis v. Scherer, 468 U.S. 183, 190, 104 S. Ct. 3012, 82 L. Ed. 2d 139 (1984). As a matter of public policy, “the qualified immunity defense . . . provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986).

“Normally, the issuance of a warrant by a neutral magistrate, which depends on a finding of probable cause, creates a presumption that it was objectively reasonable for the officers to believe that there was probable cause . . . and a plaintiff who argues that a warrant was issued on less than probable cause faces a heavy burden .... In order to meet such a challenge, the plaintiff must make a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit and that the allegedly false statement was necessary to the finding of probable cause.” (Citations omitted; internal quotation marks omitted.) Golino v. New Haven, 950 F.2d 864, 870 (2d Cir. 1991), cert. denied sub nom. Lillis v. Golino, 505 U.S. 1221, 112 S. Ct. 3032, 120 L. Ed. 2d 902 (1992).

A close scrutiny of the affidavits submitted by the parties in this case clearly demonstrates there are no material facts in dispute. The trial court properly found, and we agree, that “two witnesses who had been in the bar on the night of the incident originally independently identified the plaintiffs brother, Joseph Outlaw, as the perpetrator. In fact, Joseph Outlaw had been incarcerated at the time of the incident, but because of the physical resemblance between the brothers, the defendant Salafia arranged two more photo lineups using the plaintiffs picture. This time, both witnesses identified the plaintiff as the perpetrator. It should be noted that although a photograph of George Turner, who was eventually identified as the real assailant, had been included in the photo lineup, neither witness identified Turner as the perpetrator.

“The defendant Salafia and the assistant state’s attorney prosecuting the case interviewed Effie Peters, who had given her telephone number to the victim’s daughter. The parties agree that Salafia contacted Peters more than once prior to [the plaintiffs] arrest. While the parties dispute the degree to which Peters was evasive or hostile, it is undisputed that Peters did not tell Salafia that Turner was the perpetrator until after [the plaintiffs] arrest. . . . It is also undisputed that Salafia did not include the unsuccessful attempts to talk to Peters in the affidavit in support of his application for an arrest warrant, that he did not talk to the bar staff working on the night of the incident, that he was unable to speak to the plaintiff, and that he did not indicate otherwise to the judge reviewing the warrant application.”

“The failure to investigate a matter fully, to exhaust every possible lead, interview all potential witnesses, and accumulate overwhelming corroborative evidence rarely suggests a knowing or reckless disregard for the truth. ... To the contrary, it is generally considered to betoken negligence at most.” (Citations omitted; internal quotation marks omitted.) Beard v. Northglenn, 24 F.3d 110, 116 (10th Cir. 1994). Whatever information could have been given to the warrant judge that was not provided would not alter a reasonable belief in probable cause, especially when balanced against two eyewitnesses.

Salafia’s belief in probable cause to arrest was objectively reasonable; there were no material misstatements or omissions that would detract from an objective belief in probable cause and these circumstances support a finding of immunity for Salafia and the city by the trial court. We conclude that the plaintiff failed to demonstrate that the trial court improperly granted summary judgment.

On the appeal, the judgment is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       The defendants are the city of Meriden and the following individual members of the Meriden police department: Chief Eobert Kosienski, Detective Joseph Salafia and Officer Timothy Murphy. The appeal was filed by the city and Salafia.

       The trial court granted the motion as to the third count, malicious prosecution.


source: Caselaw Access Project

author: DUPONT, C. J.

license: Public Domain

text:
    ADRIEN GIRARD, EXECUTOR (ESTATE OF SUSAN CONDON) v. JOSEPH WEISS
    (14667)
    Dupont, C. J., and O’Connell and Healey, Js.

      Argued April 2
    officially released October 1, 1996

      Donald J. McCarthy, Jr., for the appellant (plaintiff).

      Katherine C. Callahan, with whom was Karen K. Clark, for the appellee (defendant).
   DUPONT, C. J.

The plaintiff, on behalf of his decedent, Susan Condon, instituted this medical malpractice action against the defendant physician, Joseph Weiss, for allegedly misdiagnosing a malignant tumor on Con-don’s foot. The trial court rendered summary judgment in favor of the defendant, from which the plaintiff appealed. The plaintiff raises two issues in this appeal, the first of which is whether the trial court, Hon. Robert J. Hale, state trial referee, had authority to act on pretrial motions made by the defendant including the defendant’s motion for summaiy judgment. The second issue is whether the trial court properly precluded the plaintiff from offering expert testimony at trial. We conclude that the trial court did have authority to act on the defendant’s pretrial motions, but that it improperly precluded the plaintiff from offering expert testimony at trial and, therefore, we reverse the granting of summary judgment rendered in favor of the defendant.

Because we reverse the summary judgment rendered in favor of the defendant, we also consider, pursuant to Practice Book § 4013 (a) (1) (B), two rulings of the trial court that are adverse to the defendant. The defendant seeks review of (1) the denial by the trial court, Sheldon, J., of another motion for summary judgment filed by the defendant, which sought judgment on the ground that the plaintiffs action was barred by the statute of limitations, and (2) the decision by Judge Hale precluding the defendant from subsequently pleading the statute of limitations as a special defense. These claims of the defendant are intertwined. We conclude that the trial court properly determined that the plaintiffs action was not barred by the statute of limitations and that it, therefore, properly denied the defendant’s motion for summary judgment on that basis, and that the defense of the statute of limitations, on the facts of this case, should have been stricken from the defendant’s answer.

The pertinent facts and procedural history are not in dispute. The plaintiff instituted this action by the delivery of process to a sheriff on July 8, 1993, which was served on the defendant on July 23,1993, in accordance with General Statutes § 52-593a. On September 28,1993, the defendant served requests for interrogatories and production on the plaintiff. One of the interrogatories sought the identity of the plaintiffs trial expert and the opinions and subject matter on which the expert was expected to testify. On October 28, 1993, the day the responses to all of the interrogatories were due, the plaintiff filed a motion for extension of time to respond, which the trial court granted, thereby extending the deadline until January 1,1994. On January 7, 1994, the defendant filed a motion for nonsuit pursuant to Practice Book § 231 because the plaintiff had not responded to the discovery requests. The trial court did not enter a nonsuit, but ordered the plaintiff to comply with the discovery requests on or before February 28, 1994,

On March 3, 1994, the defendant, pursuant to § 231, moved for a judgment of dismissal on the ground that the plaintiff did not comply with the court’s order to respond to the defendant’s discovery requests. On March 25,1994, the plaintiff submitted responses to the defendant’s request for interrogatories and production. In response to the interrogatory regarding the identity of the plaintiffs trial expert and the opinions and subject matter on which the expert was expected to testify, the plaintiff answered that “ [n] o decision has yet been made with respect to an expert.” The defendant viewed that answer as incomplete and, therefore, filed a motion to compel the plaintiff to answer the interrogatory. On September 26, 1994, counsel for both parties argued the motion before the trial court. The plaintiff argued that he could not disclose his experts until he had completed the defendant’s deposition. At the conclusion of oral argument, the trial court granted the motion to compel discovery and ordered the plaintiff to depose the defendant within the next thirty days and further ordered the plaintiff to disclose his expert within thirty days after the date of the defendant’s deposition. Although the plaintiff deposed the defendant on November 2, 1994, the plaintiff did not comply with the trial court’s order to disclose the identity of his trial expert.

On December 7, 1994, the defendant filed a motion for a judgment of dismissal on the ground that the plaintiff failed to comply with the trial court’s order compelling him to disclose the identity of his expert within thirty days of the defendant’s deposition. The trial court did not render a judgment of dismissal, but did issue an order precluding the plaintiff from offering the testimony of any expert at trial.

On February 8, 1995, the defendant moved for summary judgment on the ground that the plaintiff could not prevail on his malpractice claim without expert testimony. The trial court granted the defendant’s motion for summary judgment and issued a memorandum of decision in which it concluded: “Since the plaintiff for good reason had been precluded from offering any expert testimony at trial, the plaintiff cannot establish the standard of care, a deviation from the standard of care or even that the defendant’s conduct caused the plaintiff decedent’s death. The plaintiff cannot sustain his burden of proof and therefore the defendant is entitled to judgment as a matter of law.” Additional facts and procedural history will be discussed as they become relevant to the issues.

The standard of review of a trial court’s decision granting a motion for summary judgment is well settled and is not challenged in this case. Practice Book § 384 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.” “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.” D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). A trial court “must view the evidence in the light most favorable to the nonmoving party” when deciding a motion for summary judgment. Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 781, 595 A.2d 334 (1991); Remington v. Aetna Casualty & Surety Co., 35 Conn. App. 581, 583, 646 A.2d 266 (1994). “The test is whether a party would be entitled to a directed verdict on the same facts.” Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).

The plaintiff claims that the trial court (1) exceeded its powers and lacked jurisdiction when it (a) granted the defendant’s motion to compel discovery, (b) precluded the plaintiff from offering the testimony of any expert at trial, and (c) granted summary judgment in favor of the defendant, and (2) improperly, on the merits, granted the defendant’s motion for summary judgment. The defendant claims that if we reverse the summary judgment rendered in his favor, we should conclude that his prior motion for summary judgment, which was based on his claim that the statutes of limitation had run, should have been granted. He further argues that the statutes of limitations that were subsequently pleaded as a special defense should not have been stricken from his answer.

I

We first consider the plaintiffs claim that challenges the jurisdiction of the trial court. See Sadloski v. Manchester, 228 Conn. 79, 84, 634 A.2d 888 (1993). The plaintiff claims that the trial court lacked both the authority and jurisdiction to decide the defendant’s motion to compel discovery, to order the preclusion of expert testimony, and to grant the defendant’s motion for summary judgment. The plaintiff, therefore, argues that the trial court’s rulings on these motions should be vacated. The rulings on each of these motions were issued by the Hon. Robert. J. Hale, state trial referee. The powers and jurisdiction granted to state referees are set forth in General Statutes §§ 52-434 and 52-434a. Pursuant to § 52-434 (a) (1), the Superior Court “may refer any civil, nonjury case or with the written consent of the parties or their attorneys, any civil jury case pending before the court in which the issues have been closed to such a state referee who shall have and exercise the powers of the superior court in respect to trial, judgment and appeal in the case.”

The record reveals that the defendant filed a claim for a jury trial prior to the issuance of the trial court’s orders granting the defendant’s motion to compel, precluding the plaintiff from offering the testimony of any expert at trial, and granting the defendant’s motion for summary judgment. Furthermore, a review of the record reveals an absence of any document or pleading that indicates that the trial court or any other judicial authority ever solicited or obtained the written or oral consent of the plaintiff or his attorney to have a state trial referee hear and decide any of the motions that are the subject of this appeal.

The plaintiff argues that the trial court failed to comply with § 52-434 because neither he nor his attorney consented to have a state trial referee hear and decide any of the motions that are at issue in this appeal. Moreover, the plaintiff argues that at no time did the state trial referee disclose his status and that the plaintiff was unaware that he was in fact a state trial referee and not a judge of the Superior Court. The plaintiff asserts that the trial court’s alleged failure to comply with § 52-434 deprives it of jurisdiction and, therefore, its orders and decisions are void, or at the very least voidable, and that the summary judgment rendered in this case should be vacated.

The defendant argues that the plaintiff impliedly consented to having the motions decided by a state trial referee because at no time did the plaintiff raise an objection to the referral of these motions to a state trial referee, and, alternatively, that a state trial referee did have jurisdiction to decide the motions at issue in this case, without the consent of the parties.

Although this case was claimed for trial by a jury, the pleadings were not closed at the time the motions at issue in this appeal were referred to and heard by the state trial referee, and, therefore, the status of the pleadings in this case was such that it was not a “civil jury case pending before the court in which the issues have been closed.” Section 52-434 makes it clear that if the issues have been closed in a civil jury case at the time of reference to a state trial referee, written consent of the parties must be obtained. The determinative issue in this appeal is whether a state trial referee is authorized to hear and decide pretrial motions involving cases claimed for a jury in which the issues have not been closed at the time of reference and which, therefore, have not been placed on the jury trial list. The statute does not specifically address this issue, and we next look to the rules of practice.

Practice Book § 430 echoes § 52-434 and adds a sentence that permits the reference to a state trial referee of any civil jury case and “any motion for summary judgment and any other pretrial matter in any civil nonjury or civil jury case.” Section 430, however, is silent as to whether the consent of the parties is needed to refer pretrial motions including motions for summary judgment to a state trial referee. We conclude that the absence of a consent requirement in the provisions of § 430 regarding the referral of pretrial matters to trial referees, in contrast to the express mandate for such consent contained in the provisions of General Statutes § 52-434 (a) (1) and Practice Book § 430 regarding the referral of civil jury cases in which the issues have been closed and in which the trial referee is to exercise the powers of the Superior Court in respect to trial, judgment and appeal, indicates that no such consent is necessary for the referral of pretrial matters, including motions for summary judgment. Because all of the motions at issue in this appeal were pretrial motions, including a motion for summary judgment, the trial court was authorized to hear and decide those motions without the consent of the parties. The plaintiff, therefore, had no right to have the motions at issue in this appeal decided by a judge of the Superior Court and we are, therefore, not concerned with whether the plaintiff impliedly consented to have these motions heard and decided by a state trial referee.

Although § 52-434 does not expressly provide that pretrial matters in both jury and nonjury cases in which the issues have not been closed may be referred to state trial referees without the consent of the parties, § 52-434 (b) does provide that the “chief justice may designate, from among state referees, trial referees to whom criminal and civil cases and juvenile matters may be referred.” (Emphasis added.) We find nothing in the language of § 52-434 that would confute the language of Practice Book § 430 in which pretrial matters may be heard by state trial referees without the consent of the parties, and we, therefore, conclude that § 430 does not exceed the powers and jurisdiction of state trial referees as provided pursuant to § 52-434. In this case, the state trial referee had the power to decide the motions involved in this appeal.

II

The plaintiffs next claim is that the trial court improperly precluded him from offering expert testimony at trial. Because the trial court concluded that the plaintiff could not sustain his burden of proof without the offering of expert testimony, the court rendered summary judgment in favor of the defendant. The plaintiff asserts that the summary judgment was improperly rendered because that judgment was predicated on the trial court’s improper order precluding the plaintiff from offering expert testimony at trial.

As a result of the plaintiffs failure to identify his expert and the opinions and subject matter on which the expert is expected to testify, the trial court, on January 4, 1995, issued an order precluding the plaintiff from offering expert testimony. At the time that the trial court issued its order of preclusion, Practice Book § 220 (D) required a plaintiff to disclose the name of his expert “within 60 days from the date the case is claimed to a trial list.” Because this case was never claimed to a trial list, the plaintiff argues that the trial court was without authority to order the disclosure of the plaintiffs expert in a shorter time frame than that established by § 220 (D). We agree.

The scope of discovery of experts is set forth in Practice Book § 220. Subsection (A) of § 220 permits a defendant, through the use of interrogatories, to discover the identity of a plaintiffs expert witness and the substance of the facts and opinions to which the expert is expected to testify. Subsection (D) of § 220 provides that, except in the discretion of the court for good cause shown, such an expert shall be precluded from offering testimony at trial if a plaintiff failed to disclose the identity of that expert within sixty days from the date the case is claimed to a trial list.

The trial court’s order precluding the plaintiff from offering expert testimony was not predicated on § 220 (D), but rather on Practice Book § 231. The question is which rule of practice controls. Pursuant to § 231, as a result of a party’s failure to comply with a discovery order “made pursuant to Secs. 222, 226 and 229,” the court may issue a number of orders “as the ends of justice require.” One such order is “an order prohibiting the party who has failed to comply from introducing designated matters in evidence.” Practice Book § 231 (d).

Although § 231 refers specifically to a number of other sections of our rules of practice with which a party may have failed to comply, it does not mention Practice Book § 220. The scope of § 220 is limited to discovery involving experts and begins by stating that such discovery “may be obtained only as follows . . . .” (Emphasis added.) We cannot ignore the express time limitation in which to disclose the identity of a party’s expert witness pursuant to § 220 (D) because “[i]t is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. . . ,” (Citations omitted; internal quotation marks omitted.) Plourde v. Liburdi, 207 Conn. 412, 417, 540 A.2d 1054 (1988).

“Whether to exclude testimony under § 231 (d) is a matter entrusted to the sound discretion of the trial court.” Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 48, 634 A.2d 870 (1993). While this court has consistently yielded to the sound discretion of a trial court’s decision to preclude expert testimony pursuant to § 231 (d); Roberto v. Honeywell, Inc., 33 Conn. App. 619, 624-26, 637 A.2d 405 (1993), cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994); Guzze v. New Britain General Hospital, 16 Conn. App. 480, 484—85, 547 A.2d 944, cert. denied, 209 Conn. 823, 552 A.2d 430 (1988); Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 518-19, 509 A.2d A.2d 552 (1986); a review of this line of cases reveals that the preclusion of expert testimony was sought after the mandatory time period in § 220 (D) had passed or before a mandatory time period was provided for in this section. Cases involving a trial court’s discretion to preclude expert testimony that have been decided by our Supreme Court have also involved preclusion only after the mandatory time period of § 220 (D) had passed. Knock v. Knock, 224 Conn. 776, 780-83, 621 A.2d 267 (1993); Berry v. Loiseau, 223 Conn. 786, 793-802, 614 A.2d 414 (1992); Mulrooney v. Wambolt, 215 Conn. 211, 221-23, 575 A.2d 996 (1990); Pool v. Bell, 209 Conn. 536, 540-42, 551 A.2d 1254 (1989).

Although our case law clearly recognizes a trial court’s discretion to preclude expert testimony pursuant to § 231 (d), we conclude that such discretion does not arise under either § 231 (d) or § 220 (D) until a party has failed to comply with the express time limitation set forth in § 220 (D) in which to disclose the identity of an expert witness.

The language in Bourquin v. B. Braun Melsungen, 40 Conn. App. 302, 670 A.2d 1322, cert. denied, 237 Conn. 909, 675 A.2d 456 (1996), shows that we view the provisions of § 220 (D) as a time limitation before the expiration of which a party need not disclose the identity of an expert witness and that until that period has expired, a trial court has no discretion to impose the sanction of § 220 (D), although it may exercise its discretion thereafter. In describing the procedural background, the Bourquin court noted that the trial court “had previously granted a motion to preclude such testimony after the plaintiff had failed to disclose such a witness within the deadline previously set by the court after the time limit established by Practice Book § 220 (D) had expired.” Id., 304.

This interpretation of the interplay between the trial court’s authority to preclude expert testimony pursuant to § 231 (d), and the time limitation set forth in § 220 (D) in which to disclose the identity of an expert witness, is logical because until the issues are joined, i.e., until the pleadings are closed and the case is claimed to the trial list, a party may not know the breadth of expert testimony that is needed to support his case or whether expert testimony is needed at all. See Puro v. Henry, 188 Conn. 301, 449 A.2d 176 (1982).

In the present case, the record reveals that at the time that the trial court issued its order precluding the plaintiff from offering expert testimony at trial, the pleadings were not closed and the case was not claimed to a trial list. Because the time limit in § 220 (D) had not expired, we conclude that the trial court was not authorized to preclude the plaintiff from offering expert testimony at trial and therefore reverse the trial court’s decision to render summary judgment in favor of the defendant.

Ill

Because we reverse the summary judgment rendered in the defendant’s favor, we next consider the prior adverse ruling that denied the defendant the summary judgment that he sought on the ground that the plaintiffs action was time barred. We also consider the adverse ruling in which the trial court overruled the defendant’s objections to the plaintiffs requests to revise, thereby deleting special defenses relating to statutes of limitations from the defendant’s answer.

On March 10,1994, the trial court, Sheldon, J., denied the defendant’s motion for summary judgment. The motion’s sole basis was that General Statutes § 52-584 barred the action. Several additional facts are needed to resolve the question of whether the denial was proper. The alleged negligence of the defendant occurred on June 20, 1990, and the diagnosis of malignancy was made in September, 1990. The decedent died on April 9,1992. On April 8,1993, the plaintiff obtained an automatic ninety day extension of the statute of limitations pursuant to General Statutes § 52-190a (b), concerning negligence actions against health care providers, and suit was instituted on July 8, 1993. At the time the summary judgment was decided, the pleadings were not closed nor was closure required by the rules of practice; see Practice Book § 378; and the case had not been placed on a trial list or assigned for trial. After the motion for summary judgment was denied, the defendant filed a special defense of statutes of limitations. The plaintiff then filed requests to revise attacking the defendant’s special defense that the plaintiffs action was time barred, and sought a revision of the special defenses by deletion of the special defense of statutes of limitations. The defendant objected to the requests to revise and Judge Hale overruled the objections on October 13, 1994, thereby striking the special defense of statutes of limitations. The pleadings were closed upon the filing of the plaintiffs reply to the defendant’s remaining special defense of contributory negligence on March 13, 1995.

In deciding the defendant’s motion for summary judgment, the trial court first discussed whether a motion for summary judgment was a proper procedural vehicle to attack the timeliness of the plaintiffs action and concluded that it was not, but determined that, if it were, the plaintiffs action was timely and that summary judgment should be denied on the merits. The trial court relied on Forbes v. Ballaro, 31 Conn. App. 235, 624 A.2d 389 (1993), to conclude that the defendant’s motion was not properly before the court.

In Forbes, the defendant had not pleaded the special defense that the plaintiffs action was barred by a statute of limitations, but instead sought to have the plaintiffs complaint stricken prior to pleading such a special defense. We held, on the facts of that case, that “[a] claim that an action is barred by . . . the statute of limitations must be pleaded as a special defense, not raised by a motion to strike.” Id., 239. We also concluded that there are two exceptions to that holding. Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted. If all of the facts pertinent to the statute of limitations are pleaded in the complaint and the parties agree that they are true, or if a statute creating the cause of action on which the plaintiff relies fixes the time within which the cause of action must be asserted, a motion to strike would be allowed. Id., 239-40.

The question we must resolve is whether a motion for summary judgment and a motion to strike based on the time barring of a plaintiffs cause of action are to be treated similarly such that in either case the raising of the issue generally would be premature prior to a pleading asserting a time limitation as a special defense. The issue arises only in cases that apply Practice Book § 379, as effective October 1, 1992, because until that date there was a requirement that the pleadings be closed before seeking a summary judgment. A motion to strike should not generally be used to assert a special defense because the facts in a plaintiffs complaint must be taken as true for purposes of the motion, without considering contrary facts proffered by a defendant to show that the action is time barred and because until the pleadings are closed the plaintiff has not had an opportunity to plead in avoidance of the statute.

If we were to hold that a motion for summary judgment cannot be made prior to pleading a statute of limitations as a special defense, we would negate that portion of § 379 that provides that a motion for summary judgment can be made “at any time,” without the necessity of closing the pleadings. If a defendant chooses to postpone raising a time limitation as a bar to the plaintiffs cause of action by way of a special defense, in favor of obtaining an earlier disposition by way of summary judgment, we see no reason why he should not be allowed to do so. Limitation defenses are procedural and can be waived. Orticelli v. Powers, 197 Conn. 9, 16, 495 A.2d 1023 (1985).

Facts that are not alleged in a complaint may be added to the procedural mix and facts in avoidance of the statutory time limitation of action can be considered in a motion for summary judgment, whereas they cannot be considered in a motion to strike. On a motion for summary judgment, the questions are whether there is any material fact in issue, and, if not, whether the mov-ant is entitled to judgment as a matter of law. The key difference between the two motions is that, when considering a motion for summary judgment, facts in addition to those asserted in the complaint can form the basis for an argument that there is no material fact in dispute that would prevent judgment as a matter of law. When there is no such material fact in dispute or where there is agreement of the parties as to every relevant fact, we conclude that the pleadings need not be closed in order to move for summary judgment. See Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 171-72, 127 A.2d 814 (1956). Here, the parties do not disagree as to the facts, and we therefore hold that the trial court could properly consider the motion for summary judgment.

After the motion for summary judgment was denied, the defendant filed special defenses raising some of the same statutory limitations as were raised in his motion for summary judgment. The plaintiff requested revisions that, in effect, called for the deletion of any special defense relating to any statutory provision that claimed the plaintiffs action was time barred. The request to revise was an inappropriate way to contest the special defenses because none of the reasons listed in Practice Book § 147, which addresses requests to revise, is present in this case. Instead, the plaintiff should have moved to strike the special defenses because he sought a test of their legal sufficiency. See Practice Book § 152 (5); see also Forbes v. Ballaro, supra, 31 Conn. App. 235. We do not condone the misuse of the rules of practice, but, in the interest of judicial economy, we will treat the request to revise as a motion to strike.

The court, at the time it considered the defendant’s “Objections to Revise,” had all of the appropriate statutes of limitations before it. Because § 52-594 requires a consideration of whether the “time limited for the commencement” of the action had elapsed at the time of the plaintiffs decedent’s death, both that statute and § 52-584, which establishes that time limitation, must be considered together. Additionally, the timeliness of the plaintiffs action cannot be resolved without also considering § 52-190a (b).

Section 52-584, as pertinent to this case, provides time limits for actions of malpractice of a physician and allows two years from the date when the injury is first discovered for the institution of suit. The parties agree that the injury was first discovered before two years had elapsed and that, at the time of the decedent’s death on April 9, 1992, the statute of limitations in § 52-584 had not run. Section 52-594 provides that if the limit of time to bring the decedent’s action has not elapsed at the time of the death, an action may be instituted within one year from the date of death. The suit, therefore, should have been brought by April 9,1993. Section 52-190a (b) grants an automatic ninety day extension of the statute, making it clear that the ninety days is in addition to other tolling periods. Suit here was instituted on July 8, 1993, and is not time barred.

As a matter of law, we hold that the defense of limitations should be stricken from the defendant’s answer.

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

In this opinion the other judges concurred.

       Wo note the passage of recent legislation replacing the phrase “state trial referees” wiUi the phrase “judge trial referees.” Public Acts 1996, No. 96-37, § 8. Because this legislation was not effective when the parties submitted their briefs, for purposes of this opinion, we shall refer to judge trial referees as state trial referees.

       At least one pretrial motion, not involved in this appeal, was decided by Hon. Fra ricos Alien, state trial referee. The defendant malms no argument as to her authority.

       Practice Book § 4013 (a) (1) provides in relevant part: “If any appellee wishes to . . . (B) present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial . . . that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant's preliminary statement of the issues. . .

       The particular claims of negligence surrounding the diagnosis and treatment of the decedent are not relevant to the issues raised on appeal and, therefore, are not discussed in this opinion.

       General Statutes § 52-593a (a) provides: “Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to an officer authorized to serve the process or is personally delivered to the office of any sheriff within the time limited by law, and the process is served, as provided by law, within fifteen days of the delivery.”

       Interrogatory number fifty-five provides: “If you expect to call an expert witness at trial, please state:
      “a. The identity of each such expert;

        “b. The subject matter on which the expert is expected to testily;
      “c. The substance of the facts and opinions to which the expert is to testify; and
      “d. A summary of the grounds for each opinion.”

       Practice Book § 224 provides in relevant part: “Any such interrogatories shall be answered under oath by the party to whom directed and such answers shall not be filed with the court but shall be served within thirty days .... The party serving the interrogatories may move for an order under Sec. 231 with respect to any failure to answer.”

       Practice Book § 231 provides: “If any party has failed to answer interrogatories or 1,o answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or has failed to respond to requests for production orfor disclosure of the existence and contents of an insurance policy or the limits thereof, or has failed to submit to a physical or mental examination, or has failed to comply with a discovery order made pursuant to Sec. 230A, or has failed to comply with the provisions of Sec. 232, or has failed to appear and testify at a deposition duly noticed pursuant to this chapter, or has failed otherwise substantially to comply with any other discovery order made pursuant to Secs. 222, 226, and 229, the court may, on motion, make such order as the ends of justice require.
      “Such orders may include the following:
      “(a) The entry of a nonsuit or default against the party failing to comply;
      “(b) The award to the discovering party of the costs of the motion, including a reasonable attorney’s fee;
      “(c) The entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
      “(d) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence;
      “(e) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal.
      “The failure to comply as described in this section may not be excused on the ground that, the discovery is objectionable unless written objection as authorized by Secs. 222, 226, and 229 has been filed.”

       General Statutes § 52-434 provides in relevant part: “State referees, (a) Appointment of retired judges and members of the bar. Cases referred. (1) Each judge of the supreme court, each judge of the appellate court, each judge of the superior court and each judge of the court of common pleas who ceases or has ceased to hold office because of retirement other than under the provisions of section 51-49 and who is an elector and a resident of this state shall be a state referee for the remainder of his term of office as a judge and shall be eligible for appointment as a state referee during the remainder of his life in the manner prescribed by law for the appointment of a judge of the court of which he is a member. The superior court may refer any civil, nonjui'y case or with the written consent of the parties or their attorneys, any civil jui~y case pending before the court in which the issues have been closed to such a state referee who shall have and exercise the powers of the superior court in respect to trial, judgment and appeal in the case. . . .

      “(b) Trial referees. The chief justice may designate, from among the state referees, trial referees to whom ciiminal and civil cases and juvenile

        matters may be referred. Criminal cases and civil cases of an adversary nature shall be referred only to state referees who are designated as trial referees. . . .” (Emphasis added.)

       General Statutes § 52-434a (a) provides: “In addition to the powers and jurisdiction granted to state referees under the provisions of section 52-434, a chief justice or judge of the supreme court, ajudge of the appellate court, ajudge of the superior court or ajudge of the court of common pleas, who has ceased to hold office as justice or judge because of having retired and who has become a state referee and has been designated as a trial referee by the chief justice of the supreme court shall have and may exercise, with respect to any civil matter referred by the chief court administrator, the same powers and jurisdiction as does ajudge of the court, from which the proceedings were referred.”

       Practice Book § 430 provides: “Reference to Trial Referee
      “The clerk shall give notice to each referee of a reference and note in the court file the date of the issuance of the notice. In addition to matters required to be referred to a trial referee, the judicial authority may refer any civil noiyury case or, with the written consent of the parties or their attorneys, any civil jury case, pending before such court, in which the issues have been closed, to a trial referee, who shall have and exercise the powers of the superior court in respect to trial, judgment and appeal in such case. Any case referred to a trial referee shall be deemed to have been referred for all further proceedings and judgment, including matters pertaining to any appeal therefrom, unless otherwise ordered before or after the reference. The. court may also refer to a trial referee any motion for summary judgment and any other pretrial matter in any civil nonjury or civil jury case." (Emphasis added.)
      Prior to October 1,1990, the last sentence of this rule of practice allowed reference for “any short calendar matter” instead of “any motion for summary judgment.”

       After October 1,1992, the pleadings do not have to be closed as between the parties in order for a party to move for summary judgment. Practice Book § 379.

       We note that the referral of summary judgments and pretrial matters to trial referees by way of Practice Book § 430 was not addressed in either of the briefs of the parties.

       The plaintiff concedes that he cannot sustain his burden of proof without the offering of expert testimony. See, contra, Bourquin v. B. Braun Melsungen, 40 Conn. App. 302, 313-17, 670 A.2d 1322, cert. denied, 237 Conn. 909, 675 A.2d 456 (1996).

       Practice Book § 220 provided in relevant part: “Discovery of fact s known and opinions held by experts, otherwise discoverable under the provisions of Sec. 218 and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
      “(A) (1) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert, is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testily and a summary of the grounds for each opinion. . . .
      “(D) In addition to and notwithstanding the provisions of subsections (A). (B) and (C) of this rule, any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the, case is claimed to a trial list.. Each defendant shall disclose the names of his or her experts in like manner within 120 days from the date the case is claimed to a trial list. If disclosure of the name of any expert expected to testify is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after that date, such expert shall not testify except in the discretion of the court for good cause shown.” (Emphasis added.)
      We note that § 220 (D) was significantly amended effective October 1, 1995. See W. Moller & W. Horton, 1 Connecticut Practice Series: Practice Book Annotated (Sup. 1996) § 220, comment. Section 220 now provides that any plaintiff expecting to call an expert witness shall disclose the name of that expert “within a reasonable time prior to trial.”

       We note that at no time did the plaintiff claim to have retained the services of an expert witness. During argument on the defendant’s motion
        for a judgment of dismissal on December 19, 1994, the plaintiffs counsel stated that “[i]f I, indeed, had a trial expert, which I had already signed up and had paid to become a trial expert, then in answer to the interrogatories I should probably answer those, but I’m not required to. But I don’t have to and have not paid anyone yet to be a trial expert.”

       A party’s failure to comply with § 222, entitled “Interrogatories,” § 226, entitled “Requests for Production, Inspection and Examination,” § 230A, entitled “Disclosure of Assets in Cases in Which Prejudgment Remedy Sought,” or § 232, entitled, “Continuing Duty to Disclose” are all listed as sufficient cause for a trial court to issue an order prescribed by § 231.

       We note that the rales of statutory construction apply with equal force to our rules of practice. Roberto v. Honeywell, Inc., supra, 33 Conn. App. 625.

       We note that because subsection (D) of Practice Book § 220 was not established as a rule of practice until October 1,1986, cases involving rulings issued prior to that date are not relevant to this issue because no such specific time requirement for the disclosure of a party’s expert was in place at that time. Furthermore, because § 220 (D) was amended on October 1, 1995; see footnote 15; cases involving rulings after that date are also not relevant.

       Practice Book § 220 (D) allows an expert witness to testify even if the expert witness is not disclosed within sixty days from the date the case is claimed to a trial list, “in the discretion of the court for good cause shown.”

       General Statutes § 52-584 provides: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       General Statutes § 52-594 provides: “If the time limited for the commencement of any personal action, which by law survives to the representatives of a deceased person, has not elapsed at the time of the person’s death, one year from the date of death shall be allowed to his executor or administrator to institute an action therefor. In computing the times limited in this chapter, one year shall be excluded from the computation in actions covered by the provisions of this section.”

       General Statutes § 52-190a (b) provides: “Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods.”

       Pursuant to Practice Book § 164, a statute of limitations shall be pleaded as a special defense.

       Practice Book § 380 provides in relevant part: “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. . . .”

       Practice Book § 147 provides: “Whenever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party’s pleading, or (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party’s pleading, or (3) separation of causes of action which may be united in one complaint when they are improperly combined in one count, or the separation of two or more grounds of defense improperly combined in one defense, or (4) any other appropriate correction in an adverse party’s pleading, the party desiring any such amendment in an adverse party’s pleading may file a timely request to revise that pleading.”


author: FOTI, J. SPEAR, J.,

text:
    NICHOLAS R. DINAPOLI, JR., TRUSTEE, ET AL. v. JOHN P. COOKE ET AL.
    (14290)
    Foü, Lavery and Spear, Js.
    Argued June 11
    officially released October 1, 1996

      Paul L. Bollo, for the appellants-appellees (defendants).

      Thomas W. Beecher, for the appellees-appellants (plaintiffs).
   FOTI, J.

The defendants appeal from the judgment

of the trial court rendered in favor of the plaintiffs on their complaint and on the defendants’ counterclaim. The plaintiffs’ complaint alleges that the defendants tortiously interfered with their sale of the land to the state of Connecticut. The defendants’ counterclaim alleges that the plaintiffs breached a contract with the defendants with respect to a portion of the subject land and that the plaintiffs violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendants assert that the trial court (1) improperly found that the plaintiffs proved the malice and proximate cause elements of the tort of intentional interference with a business relationship, and that the plaintiffs had not breached their agreement and had not engaged in unfair or deceptive trade practices, and (2) abused its discretion in awarding punitive damages. The plaintiffs cross appeal, claiming that the trial court improperly (1) found that the plaintiffs did not prove damages and, consequently awarded only nominal damages, and (2) limited punitive damages to attorney’s fees. We affirm the judgment on the complaint and on the counterclaim.

The relevant facts and procedural history are as follows. The plaintiffs owned a forty-nine acre tract of land situated on Nod Hill and Old Branchville Roads in Ridgefield. On November 18, 1986, they obtained approval from the Ridgefield planning and zoning commission for a planned residential development on the property. As a condition of the approval, the plaintiffs were required to convey approximately eighteen acres of the subdivision to the town of Ridgefield to be dedicated as open space. The plaintiffs conveyed the eighteen acres to the town on November 20, 1986.

On January 30,1987, the state department of transportation advised the plaintiffs that the state was going to acquire a portion of their property for the reconstruction of Route 7. Prior to conveying the eighteen acres to the town, the plaintiffs had inquired of the department of transportation on two occasions whether there were planned condemnation proceedings against their property. In each instance, they were told that the plans for Route 7 were dormant. The plaintiffs ceased their construction activities on the subdivision roadway after the notice of the forthcoming condemnation.

In March, 1988, the state informed the plaintiffs that the plan to acquire a portion of their property had been postponed indefinitely. The plaintiffs initiated an inverse condemnation action against the state that ultimately was settled by way of a stipulated judgment. The terms of the stipulation required the state to pay to the plaintiffs the sum of $2,800,000. In return, the plaintiffs were to convey two noncontiguous parcels to the state totaling eighteen acres. One of the parcels (parcel A) consisted of approximately ten acres from the open space portion of the subdivision. The stipulation necessitated a reacquisition of the ten acre parcel that the plaintiffs had previously conveyed to the town and the substitution of another ten acre parcel (parcel B) to meet the open space requirement. The other parcel to be conveyed to the state (parcel C) was eight acres from another portion of the subdivision. The stipulation provided that the entire $2,800,000 was to be paid for parcel C and that parcel A was to be transferred for “no consideration.” The town approved the plaintiffs’ proposal to substitute parcel B for parcel A as open space to comply with a condition of the subdivision approval. This approval took place at a town meeting on February 22, 1989.

The defendants own a parcel of land that partially abuts the plaintiffs’ property. They entered into an agreement with the plaintiffs on November 6, 1986, in which they agreed not to oppose the development of the subdivision, and the plaintiffs agreed, inter alia, to give the defendants an option to purchase lot 1 of the subdivision for a price equal to 85 percent of the fair market value of the lot.

The defendants opposed the substitution of parcel B for parcel A at the February 22, 1989 town meeting. Thereafter, Torrey Cooke brought an action to preclude the property exchange, claiming that such an exchange violated certain statutory provisions regarding public and charitable uses. The case was subsequently dismissed because Cooke lacked standing to bring the action. While this matter was in litigation, the state and the plaintiffs opened the stipulated judgment in the inverse condemnation case and agreed to substitute parcel B for parcel A, thereby leaving the town with parcel A as open space. Title closed on the substituted parcel B and parcel C on January 6, 1990.

After the Superior Court dismissed Torrey Cooke’s action, the plaintiffs instituted this action against the defendants alleging intentional and malicious interference with the plaintiffs’ business expectations and business relations. The defendants’ counterclaim alleges that the transfer by the plaintiffs to the state breached the November 6, 1986 agreement between the plaintiffs and the defendants, and that the breach precluded the defendants from acquiring lot 1 at a price below the fair market value. In the second count of the counterclaim, the defendants allege that the plaintiffs violated CUTPA by misleading the defendants as to their intent and as to any threat of condemnation of the open space property.

The trial court found for the plaintiffs on the complaint, reciting numerous acts of deliberate and malicious interference with the plaintiffs’ land transfer to the state. The court stated, however, that “in view of the lack of persuasive evidence on the measure of damages, the court finds certainly that [the plaintiffs] are entitled to nominal damages and awards the sum of one ($1) dollar.” The court thereafter held a separate hearing and awarded punitive damages in the amount of $21,080. This appeal and cross appeal followed.

I

The defendants first allege that the trial court made incorrect findings of fact. We view this as a wholesale attack on the court’s findings based on a claim that the court could not have reasonably concluded as it did on the bases of the subordinate facts found and the reasonable inferences drawn from those facts. Our review of the record discloses that the trial court reasonably and logically concluded as it did, and that the decision of the trial court was not clearly erroneous in light of the evidence and pleadings in the record as a whole. See Dalia v. Lawrence, 226 Conn. 51, 71-72, 627 A.2d 392 (1993).

“On appeal, the function of this court is limited solely to the determination of whether the factual findings of the trial court are clearly erroneous or whether the decision is otherwise erroneous in law. . . . Determining whether a trial court’s decision is clearly erroneous involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Haynes Construction Co. v. Cascella & Son Construction, Inc., 36 Conn. App. 29, 32, 647 A.2d 1015, cert. denied, 231 Conn. 916, 648 A.2d 152 (1994).

The trial court found that the plaintiffs were not entitled to actual damages and awarded only nominal damages. “Nominal damages mean no damages. They exist only in name and not in amount.” (Internal quotation marks omitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 504, 656 A.2d 1009 (1995); see also Sessa v. Gigliotti, 165 Conn. 620, 622, 345 A.2d 45 (1973). Furthermore, such damages “may be a mere peg to hang costs on . . . .” (Internal quotation marks omitted.) Riccio v. Abate, 176 Conn. 415, 420, 407 A.2d 1005 (1979). It is also well established that an award of nominal damages is appropriate where there is insufficient evidence produced at trial to prove actual damages. See, e.g., Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 218 Conn. 474, 477, 590 A.2d 431 (1991).

The trial court gave no reasons for its finding that the plaintiffs were entitled to only nominal damages other than its statement that “a mathematical computation does not necessarily establish damages.” The plaintifl's did not file a motion to articulate, and, to the extent that statements elsewhere in the memorandum of decision that the plaintiffs “were indeed damaged” and “damages have occurred” make the decision ambiguous, “we read an ambiguous record, in the absence of a motion for articulation, to support rather than to undermine the judgment.” (Internal quotation marks omitted.) State v. Arisco, 39 Conn. App. 11, 16, 663 A.2d 442 (1995). We read this record, therefore, to support the trial court’s finding that there were no actual damages. Our review of the record discloses nothing that makes this finding clearly erroneous.

II

We turn now to the question of whether the trial court’s finding that the plaintiffs failed to prove damages precludes a judgment for the plaintiffs. The defendants did not claim on appeal that it was improper for the trial court to award nominal damages in a case involving tortious interference with a business relationship after finding no actual damages. We address this issue as a matter of plain error. We “may in the interests of justice notice plain error not brought to the attention of the trial court. Practice Book § 4185. Such 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. ... An important factor in determining whether to invoke the plain error doctrine is whether the claimed error resulted] in an unreliable verdict or a miscarriage of justice.” (Citations omitted; internal quotation marks omitted.) State v. Knight, 29 Conn. App. 675, 676-77, 617 A.2d 913 (1992). Plain error review may be appropriate “where consideration of the question is in the interest of public welfare or of justice between the parties.” (Internal quotation marks omit-ted.) Skrzypiec v. Noonan, 228 Conn. 1, 15, 633 A.2d 716 (1993).

The essential elements of the tort of unlawful interference with a business relationship are (1) a business relationship between the plaintiff and another party, (2) the defendant’s intentionally interfering with it while knowing of the relationship and (3) as a result of the interference, the plaintiffs suffering actual loss. Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 415, 363 A.2d 86 (1975); see also Herman v. Endriss, 187 Conn. 374, 377, 446 A.2d 9 (1982).

This court has held that it was improper for a trial court to award a plaintiff $3500 in damages after finding that a defendant had tortiously interfered with the plaintiffs business expectancy, but that there was no credible evidence of actual damage. We stated that “[ujnlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss . . . it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffered actual loss.” (Citation omitted; emphasis added.) Taylor v. Sugar Hollow Park, Inc., 1 Conn. App. 38, 39, 467 A.2d 935 (1983).

It is beyond dispute that the trial court found that the plaintiffs were damaged by the acts of the defendants. The court stated: “Those various and sundry acts, together with the initial ‘extractions’ obtained from the [plaintiffs] by the [defendants], the funds which the [plaintiffs] paid to them for the potable water system which might suggest the word extortion to a lay person and the comment, ‘pay me a million dollars for my property and I will go away,’ all of which the court finds to be credible, constrains [me] to find that the motive indeed was malicious and the interference resulting in the injury is certainly wrong beyond the fact of the interference itself. . . . The nexus between the tortious conduct and injury to the [plaintiffs] becomes immediately apparent. The malicious motivation and the obvious success of the improper conduct lead to a single inescapable conclusion, and that is that the [plaintiffs] were indeed damaged by these acts of the defendants. The evaluation of those damages, however, is most difficult to ascertain.”

We recognize the distinction between “damage” and “damages.” The word “damage” is defined as the “[l]oss, injury, or deterioration, caused by the negligence, design, or accident of one person to another, in respect of the latter’s person or property. The word is to be distinguished from its plural, ‘damages’ which means a compensation in money for a loss or damage. ... By damage, we understand every loss or diminution of what is a man’s own, occasioned by the fault of another. . . .” Black’s Law Dictionary (4th Ed. 1951). The pecuniary compensation for loss, detriment or injury is “damages”; actual damages are synonymous with compensatory damages and with general damages. “Although the words, ‘damage,’ ‘damages’ and ‘injury,’ are sometimes treated loosely as synonymous, there is a material distinction between them. Injury is the illegal invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered. 22 Am. Jur. 2d [Damages] § 1 [1988].” Ballen-tine’s Law Dictionary (3d Ed. 1969) p. 303.

It is an essential element of the tort of unlawful interference with business relations that the plaintiff suffered actual loss, i.e., damage; Taylor v. Sugar Hollow Park, Inc., supra, 1 Conn. App. 39; “actual damage suffered”; Goldman v. Feinberg, 130 Conn. 671, 675, 37 A.2d 355 (1944); “that, except for the tortious interference of the defendant, there was a reasonable probability that the plaintiff would have entered into a contract or made a profit.” Id. Such a determination is a question for the trier of fact; Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., supra, 169 Conn. 415; as is the question of whether the plaintiff has suffered “actual loss.” Id. “A plaintiff states an actionable cause [for tortious interference with a contract] by alleging that the defendant intentionally interfered with a business or contractual relationship of the plaintiff and that the plaintiff, as a result, has suffered an actual loss.” (Emphasis added.) Herman v. Endriss, supra, 187 Conn. 377.

The trial court found that the plaintiffs had sustained or suffered actual damage, or actual loss, but the court could not mathematically compute the precise or approximate pecuniary compensation, or damages, for that loss. The actual damage was some or all of the nine month and five day delay in consummating the almost three million dollar transaction pursuant to the stipulated judgment.

Ill

The defendants claim that the trial court improperly rendered judgment for the plaintiffs on the defendants’ counterclaim because (1) the plaintiffs breached the covenant of good faith and fair dealing implicit in the November 6, 1986 contract between the plaintiffs and the defendants, (2) the plaintiffs breached the November 6, 1986 contract by transferring lot 1 as part of parcel C to the state, thereby vitiating the defendants’ right to purchase the lot at a price below the fair market value, and (3) the defendants proved that the plaintiffs violated CUTPA.

The trial court’s memorandum of decision does not address the defandants’ claim of a violation of the implied covenant of good faith and fair dealing and the defendants did not request an articulation from the trial court on that issue. The record is, therefore, inadequate for us to review this claim. See Wilson v. Hryniewicz, 38 Conn. App. 715, 720, 663 A.2d 1073, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995); DeLuca v. DeLuca, 37 Conn. App. 586, 588, 657 A.2d 690 (1995).

We agree with the trial court’s finding that the plaintiffs clearly gave the state a deed in lieu of condemnation with respect to parcel C, eliminating the defendants’ option to purchase lot 1 pursuant to the terms of the November 6, 1986 agreement. The agreement states: “The foregoing [right to purchase lot 1] is subject to possible condemnation by the state of Connecticut for highway purposes or deed to the state of Connecticut in lieu of said condemnation.” This clause disposes of the defendants’ claim and no further discussion is warranted.

The defendants’ sparsely briefed CUTPA claim is no more than an assertion that the trial court should have credited the defendants’ evidence and found in their favor. Our review convinces us that the trial court’s rejection of the CUTPA claim was not clearly erroneous.

IV

By way of cross appeal, the plaintiffs claim that the trial court improperly (1) limited the award of punitive damages to the amount of attorney’s fees incurred by the prevailing party, and (2) concluded that the plaintiffs failed to establish the amount of their consequential damages and awarded the nominal sum of $1 in consequential damages.

The plaintiffs first argue that punitive damages in addition to attorney’s fees were warranted. Such damages are limited to the expenses of litigation less taxable costs. Berry v. Loiseau, 223 Conn. 786, 827, 614 A.2d 414 (1992). We, as an intermediate appellate court, will not reexamine or reevaluate Supreme Court precedent; whether such precedent should be reevaluated and possibly discarded is not for this court to decide. Somohano v. Somohano, 29 Conn. App. 392, 393-94, 615 A.2d 181 (1992).

The plaintiffs next claim that the trial court improperly failed to establish the amount of consequential damages. They argue that it was a clear abuse of discretion by the trial court, having determined that the plaintiffs did not collect $2.8 million until nine months and five days after they otherwise would have collected it because of the actions of the defendants, not to award consequential damages in excess of the nominal award of $1. We do not agree.

Our review of the record discloses that the trial court properly concluded that the plaintiffs had failed to sustain their burden in presenting sufficient evidence for the awarding of compensatory damages. The burden of proving damages is on the party claiming them. Gar-gano v. Heyman, 203 Conn. 616, 620, 525 A.2d 1343 (1987). Claimed damages are an essential element of the proof and must be proved with reasonable certainty. Simone Corp. v. Connecticut Light & Power Co., 187 Conn. 487, 495, 446 A.2d 1071 (1982). The plaintiffs argued that a 10 percent interest amount was the proper measure of damages, as the amount written as a penalty in the plaintiffs’ stipulation with the state. The trial court properly noted that the penalty had been deleted from the revised stipulated judgment, and also that while that might have been the state’s penalty, there had been no evidence presented that such a penalty was transferable to the defendants. The record is also devoid of any evidence that the substitution of properties that facilitated the actual closing could not have been done anytime after the defendants sued the town of Ridgefield. While it is clear that some delay was caused by the action of the defendants, no evidence was presented to demonstrate that the plaintiffs’ transaction with the state could not have been accomplished earlier than in nine months and five days.

The judgment is affirmed.

In this opinion LAVERY, J., concurred.

SPEAR, J.,

dissenting. I concur with that part of the majority opinion that affirms the judgment of the trial court on the defendants’ counterclaim. I respectfully dissent with respect to the trial court’s judgment on the plaintiffs’ complaint. I conclude that it was plain error for the court to award nominal damages on the plaintiffs’ claim of tortious interference with a business relationship after finding that no actual damages were proven. Accordingly, I would reverse the judgment on the complaint.

The majority correctly points out that “[u]nlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss ... it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffered actual loss.” (Citation omitted; emphasis added.) Taylor v. Sugar Hollow Park, Inc., 1 Conn. App. 38, 39, 467 A.2d 935 (1983); see also Conrad v. Erickson, 41 Conn. App. 243, 246-47, 675 A.2d 906 (1996). I view Taylor as standing for the proposition that it is impermissible to award nominal damages in a case involving tortious interference with business relations where actual damages have not been proven. The trial court’s failure to find actual damages is thus fatal to the plaintiffs’ cause of action here.

The precedent on which Taylor rests includes Goldman v. Feinberg, 130 Conn. 671, 37 A.2d 355 (1944). In Goldman, our Supreme Court stated with respect to a case involving tortious interference with business relations: “In other words, it does not appear that the plaintiff has sustained any damage as a result of those acts. For that reason the plaintiff has not made out a complete cause of action for unlawful interference with his business.” Id., 676. “A plaintiff states an actionable cause by alleging that the defendant intentionally interfered with a business or contractual relationship of the plaintiff and that the plaintiff, as a result, has suffered an actual loss.” Herman v. Endriss, 187 Conn. 374, 377, 446 A.2d 9 (1982).

The majority addresses our holding in Taylor by stating that the trial court found that the plaintiffs had suffered actual damage, but the court could not mathematically compute the “precise or approximate pecuniary compensation, or damages, for their loss. The actual damage was some or all of the nine month and five day delay in consummating the almost three million dollar transaction pursuant to the stipulated judgment.” I disagree.

The trial court stated: “However, a mathematical computation does not necessarily establish damages, despite the nature of the defendants’ interference and despite the fact that the tort had been made out and damages have occurred. In view of the lack of persuasive evidence on the measure of damages, the court finds certainly that the trastees are entitled to nominal damages and awards the sum one ($1) dollar.” (Emphasis added.) It is clear that it was the lack of evidence that led the court to deny compensatory damages to the plaintiffs and not the difficulty of mathematically computing the loss. More important, the plaintiffs point to no evidence that the defendants were responsible for the delay in closing the sale of their land to the state. They simply assert that the transaction would have closed by April 21, 1989, had Torrey Cooke not brought suit to prohibit the transfer. The plaintiffs then reason that they are entitled to interest on $2,800,000 from April 21, 1989, to January 26, 1990, the date of the closing with the state.

My review of the evidence discloses that the town filed suit by way of a complaint dated April 17, 1989, for a declaratory judgment seeking to authorize the transfer of parcel A to the plaintiffs in exchange for parcel B. The matter was returnable to the Superior Court on May 2, 1989, and was apparently pending during the entire period of time that the plaintiffs claim that the defendants were responsible for the delay in closing. This action could well have caused the trial court to conclude that the defendants were not responsible for any part of the delay in closing the transaction. Obviously, the plaintiffs could not convey parcel A to the stale until they acquired it from the town and the town, by its own action, decided that a court ruling was necessary prior to conveying parcel A to the plaintiffs.

In its lawsuit, the town alleged that parcel A is “open space and therefore public, and thus governed by the charitable use statute section 47-2 of the Connecticut General Statutes.” The town, thus, agreed with the defendant Torrey Cooke’s claim in her lawsuit that parcel A was open space that was governed by General Statutes § 47-2. The town’s action was dismissed on December 7,1990, for failure to prosecute with reasonable diligence, a time well after the closing of January 26,1990. In view of the evidence, the trial court’s conclusion that the plaintiffs failed to prove damages is certainly supported in the record. It is clear that four days before the April 21, 1990 closing deadline the town had decided that it would not convey parcel A without a declaratory judgment ruling from the Superior Court. That decision apparently did not change during the nine month, five day period in question and parcel A was never transferred to the plaintiffs.

I conclude that plain error review and reversal is proper here because the judgment for the plaintiffs on the complaint is directly contrary to the holding of Taylor. It is axiomatic that Supreme and Appellate Court precedent that is directly on point binds the Superior Court. Plain error review may be appropriate “where consideration of the question is in the interest of public welfare or of justice between the parties.” (Internal quotation marks omitted.) Skrzypiec v. Noonan, 228 Conn. 1, 15, 633 A.2d 716 (1993). To allow the judgment to stand would constitute an injustice between the parties because the improper award of nominal damages was the predicate for the award of punitive damages consisting of the plaintiffs’ attorney’s fees of $21,080. Because the award of nominal damages was improper, the punitive damage award is also improper.

I would reverse the judgment for the plaintiffs on the complaint and remand the case to the trial court with direction to render judgment for the defendants on the plaintiffs’ complaint.

       The defendants are John P. Cooke and Torrey M. Cooke.

       The plaintiffs are Nicholas R. DiNapoli, Jr., trustee, and Carl H. Lecher, trustee.

       General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

       The plaintiffs alleged that Torrey Cooke’s injunction action was maliciously instituted, that the defendants had made false statements to state and town official regarding the plaintiffs’ property and that the defendants real motive was to force the plaintiffs to buy their property.

       The trial court did state that the 10 percent interest penalty m the stipulation between the plaintiffs and the state was the state’s obligation. This statement, although correct, does not help in determining the basis of the court's decision on damages. Moreover, the statement makes no difference in light of the defendants’ claim that the interest rate in the stipulation is simply illustrative of what would be a reasonable rate of interest, not that the defendants were bound by the stipulation.

       The parties, at our direction, submitted supplemental briefs after oral argument on the following question: “Did the trial court commit plain error in awarding nominal and punitive damages despite its finding that the plaintiffs failed to prove actual damage. See Taylor v. Sugar Hollow Park, Inc., 1 Conn. App. 38, 39, 467 A.2d 935 (1983).”

       The majority has properly stated the plain error rule and noted that the parties were given the opportunity to file supplemental briefs on the question of plain error.