text:
    Hartford Federal Sayings and Loan Association v. Stanley Tucker et al.
    (4628)
    Dupont, C. J., Spallone and Stoughton, Js.
    Argued October 14, 1987 —
    decision released January 19, 1988

      Stanley V. Tucker, pro se, the appellant-appellee (named defendant).

      F. Gina Gelb, with whom, on the brief, was Frederic D. Augenstern, for the appellee (receiver of rent).

      William L. Ankerman, pro se, the appellee-appellant (committee of sale).
   Dupont, C. J.

The history of this case is long and complex. It began more than nine years ago with the initiation by the plaintiff of four separate mortgage foreclosure actions against the named defendant (hereinafter the defendant) and others. The defendant is the owner of the equity of redemption on the four properties. A rent receiver, Frances Gionfrido, doing business as Plaza Realty, was appointed for all four properties upon motion of the plaintiff. The actions were consolidated and a trial court ordered foreclosure by sale for two of the properties and strict foreclosure for the other two. Two committees of sale, William L. Ankerman and Barbara Ruhe, were appointed by the court on or about April 20, 1979, to administer the sales of two of the properties. After the sales had been made by the committees of sale but prior to the ratification of the sales by the court, the defendant filed an appeal from the judgments which had been obtained upon the default of the defendant for failure to timely plead. The appeal resulted in the setting aside of the judgments relating to all four properties, and in a remand to the trial court for consideration of the defendant’s answer, special defenses, and counterclaims. Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 436 A.2d 1259, cert, denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980).

Over a three year period (1982-1985), while the case was pending on remand, the defendant filed numerous motions attempting to have the rent receiver removed, principally claiming that the receiver had failed to obtain rents for the properties consistent with those in the Hartford rental market. All of these motions were denied. One trial court, Brennan, J., did, however, remove the rent receiver as to one property, at the receiver’s request, because the property could not produce sufficient income to justify the receiver’s fees. Ultimately, another trial court, Bar all, J., rendered judgments of strict foreclosure for all four of the properties.

The defendant took a second appeal to the Supreme Court claiming that his motions requesting the appointment of a new receiver of rents and for his own appointment as the rent receiver, should have been granted. He also claimed that Practice Book §§ 504 through 510 were unconstitutional. The court found no error and in its opinion discussed extensively the procedures for petitioning the court for removal of a rent receiver and for requesting the court’s permission to sue a rent receiver. Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 491 A.2d 1084, cert, denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985).

The present case is the aftermath of the prior two cases. In this case, the committees of sale moved for fees and costs associated with the aborted 1979 sale, and the defendant sought permission to sue the rent receiver. The defendant appeals from a judgment of the trial court, Hennessey, J., refusing him permission to sue the rent receiver and from the award by the trial court, A. Aronson, J., of fees and expenses to the committees of sale. The substance of the defendant’s claims is that Judge Hennessey erred (1) in denying him due process of law, and (2) in determining that the defendant had failed to establish a prima facie case against the rent receiver, and that Judge Aronson erred in awarding fees and expenses to the committees of sale. The committee of sale, Ankerman, claims in a cross appeal that the court erred in limiting the fees awarded.

Judge Hennessey heard oral argument on the defendant’s motion for permission to sue the rent receiver. The substance of the defendant’s claim was that the receiver had breached her duty by failing to collect rents consistent with the Hartford rental market from 1982 until 1985. After an exhaustive hearing which included extensive offers of proof by the defendant and a review of the transcript from earlier motions by the defendant on the same issue, the court found that the defendant had not established a prima facie case against the rent receiver.

I

We first consider the defendant’s claim that he was denied due process of law.

“Due process does not mandate a particular procedure but rather requires only that certain safeguards exist in whatever procedural form is afforded. See Fermont Division v. Smith, 178 Conn. 393, 397, 423 A.2d 80 (1979), and cases cited therein. The fourteenth amendment prohibits the state from denying any person life, liberty or property without due process of law, but this adds nothing to the rights of one citizen as against another. United States v. Cruikshank, 92 U.S. 542, 554, 23 L. Ed. 588 (1876). The amendment ‘in no way undertakes to control the power of a State to determine by what process legal rights may be asserted or legal obligations be enforced, provided the method of procedure adopted for those purposes gives reasonable notice and affords fair opportunity to be heard before the issues are decided.’ Iowa Central Ry. Co. v. Iowa, 160 U.S. 389, 393,16 S. Ct. 344, 40 L. Ed. 467 (1896).” Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 176, 491 A.2d 1084 (1985).

The defendant presented a full day of argument in which he was given ample opportunity to establish a prima facie case for permission to sue the rent receiver. There is no due process violation when the party in interest is given a full hearing. This safeguard is more than adequate for assuring the protection of the constitutional right to legal process. Id.

II

The substance of the defendant’s other claim of error, in connection with the denial of his motion for permission to sue the rent receiver, is that the court erred in failing to find that he presented a prima facie case.

It is well established that “ ‘[w]hen a receiver is appointed in a foreclosure action to take charge of the property, he holds it as an arm of the court.’ ” Tucker v. American Ins. Co., 3 Conn. App. 397, 398, 488 A.2d 1278, cert, denied, 196 Conn. 802, 492 A.2d 1239 (1985), quoting New Haven Savings Bank v. General Finance & Mortgage Co., 174 Conn. 268, 270, 386 A.2d 230 (1978); Desiderio v. Iadonisi, 115 Conn. 652, 655, 163 A. 254 (1932). The court will permit a suit against a receiver if the litigant can establish a prima facie case; New Haven Savings Bank v. Tater, 8 Conn. Sup. 42, 43 (1940); and will grant permission to sue only if the party can show that the receiver had acted beyond his authority. Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 178, 491 A.2d 1084 (1985); Walsh v. Raymond, 58 Conn. 251, 255, 20 A. 464 (1889).

“A receiver appointed by judicial authority cannot, in the absence of a statute to the contrary, be subjected to suit without the leave of the court whose officer he is, granted in the cause in which he was appointed. . . . He is presumed to be acting according to the will of that court; and to sue him is necessarily to bring in another court to take part in the disposition of the estate which has been put in his charge. The rule that where a court has once acquired jurisdiction over a particular subject-matter, it retains it free from interference by any other court, is that which governs . . . .” Links v. Connecticut River Banking Co., 66 Conn. 277, 284, 33 A. 1003 (1895); see also Tucker v. American Ins. Co., supra, 399.

This court will not substitute its judgment for that of the trial court which has had the opportunity to weigh the arguments presented by the litigants. See Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981); Munn v. Scalera, 181 Conn. 527, 530-31, 436 A.2d 18 (1980). The record reflects a thorough consideration of the defendant’s arguments by the court. We can find no basis for rejecting its decision that the defendant failed to present a prima facie case showing that the receiver had acted beyond her authority.

III

The defendant’s final claim is that the court, A. Aronson, J., erred in awarding fees and expenses to the committees of sale. “The threshold question that must be determined is whether this court has jurisdiction over [this portion of the defendant’s] appeal. Although this issue was not raised by the parties, the court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear.” Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985).

General Statutes § 49-25 provides, in relevant part, that “the expense of the sale and appraisal shall be paid by the plaintiff and be taxed with costs of the case.” (Emphasis added.) Certainly, the plaintiff, Hartford Federal Savings and Loan Association, is a proper party to contest the award of committee fees and expenses. The question we must address, however, is whether the defendant has standing to raise this issue.

This court’s subject matter jurisdiction over this issue is dependent upon the defendant’s proof of aggrievement. Local 1303 & 1378 v. FOIC, 191 Conn. 173, 177, 463 A.2d 613 (1983). A two-pronged test for determining aggrievement exists. First, “ ‘ “the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.” Nader v. Altermatt, 166 Conn. 43, 51, 347 A.2d 89 [1974].’ Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978).” Local 1303 & 1378 v. FOIC, supra, 176.

According to that standard, we hold that the defendant has shown aggrievement sufficient to confer standing. The defendant’s claim arises from the granting of the defendant’s motion for disbursement of the monies held by the rent receiver. Although the court allowed the defendant to keep the rents, it ordered the receiver to pay the costs and fees of the committees of sale. In effect, the defendant received the net rents collected after deduction for the costs and fees of the committees of sale. Despite the language of General Statutes § 49-25 stating that the plaintiff shall pay the expenses of the sale and appraisal, it is ultimately the defendant who is responsible for such expense. As such, the defendant has shown aggrievement and has standing to raise a claim of error in connection with the trial court’s granting of costs and fees to the committees.

The facts pertinent to the merits of the defendant’s claim are as follows. On April 20,1979, the trial court rendered a judgment of foreclosure by sale and appointed Ankerman as a committee of sale. The committee of sale scheduled the sale for June 30,1979. On June 29, 1979, the afternoon prior to the day scheduled for the sale, the defendant telephoned the committee of sale to say that he had filed an appeal. The appeal was, in fact, filed on July 5,1979. Subsequently, the trial court refused to ratify the sale because the filing of the defendant’s appeal invoked an automatic stay of the judicial proceedings. As previously noted, the judgment of foreclosure by sale was set aside and the case was remanded to the trial court for further proceedings. On remand, the trial court rendered a judgment of strict foreclosure. The committee of sale filed a motion seeking reimbursement for its expenses incurred and fees in connection with the sale, in the amount of $5000 or such other amount as the court may determine to be fair and equitable. The trial court awarded the committee of sale $3392.80 for reimbursement for expenses of $317.80, appraisal fees of $450, plus committee fees of $2625.

The defendant’s apparent argument is that the costs and fees of the committees of sale were improper or unreasonable in light of the fact that the sale never materialized because his appeal from the judgment of foreclosure by sale resulted in that judgment being eventually converted into a judgment of strict foreclosure. The issue of whether a committee of sale ought to be compensated for expenses in a situation where a foreclosure sale fails, through no fault of the committee, and ends in strict foreclosure, appears to be one of first impression in this state.

The question this court must address, then, is whether the statutory authorization for an award of expenses and fees to a committee of sale contemplates such an award where the sale is not ratified by the court. The precise language found in General Statutes § 49-25, provides, in pertinent part, that: “When the court . . . is of the opinion that a foreclosure by sale should be decreed, it shall, in its decree, appoint a [committee of sale] to make, the sale and fix a day therefor . . . and how the sale shall be made and advertised; but, in all cases in which such sale is ordered, the court shall appoint three disinterested persons who shall, under oath, appraise the property to be sold and make return of their appraisal to the clerk of the court . . . and the expense of the sale and appraisal shall be paid by the plaintiff and be taxed with the costs of the case.” (Emphasis added.) Under Connecticut law, a judicial sale becomes complete and creates a legal right to obligations among parties when it is confirmed and ratified by the court. General Statutes §§ 49-24 through 49-26; Matter of Loubier, 6 Bankr. 298, 302 (D. Conn. 1980). The precise question is whether the use of the phrase 7of such sale” in General Statutes § 49-25 contemplates only confirmed sales or also includes all sales ordered under a decree of foreclosure by sale but which are not confirmed, through no fault of the committee of sale.

The legislative act involved here does not define the phrase “of such sale.” In light of the fact that the phrase is ambiguous as to whether it means any sale by a committee of sale, or only a ratified sale, we must invoke the fundamental rule of construction which mandates that this court ascertain and give effect to the intention of the legislature. State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985); State v. Salz, 8 Conn. App. 125, 141, 512 A.2d 921, cert, denied, 201 Conn. 807, 515 A.2d 380 (1986). In construing a legislative act, we may consider its history, its language, and the purpose it is designed to serve. Feldman v. Administrator, Unemployment Compensation Act, 138 Conn. 724, 727, 89 A.2d 210 (1952).

In examining the legislative history of General Statutes § 49-25, we note that the expense of an appraisal made pursuant to a judicial sale was authorized by our statutes as early as 1902. The Revised General Statutes of 1902 § 4142 provided that “the expense of such appraisal shall be paid by the plaintiff.” It is clear that there was no requirement that the reimbursement for appraisal costs be made only in the event of a confirmed sale. In fact, the use of the phrase “of such sale” does not occur until the year 1917, when General Statutes § 4142 was amended to provide that “the expense of such sale and appraisal shall be paid by the plaintiff.” Although an examination of the legislative history reveals no insight into the meaning of the phrase “of such sale,” it appears that the purpose behind the amendment is to allow reimbursement for all expenses of the committee of sale, including the reimbursement of the costs of the appraisal fees, in fulfilling its obligations under the decree of foreclosure by sale.

The purpose of the legislative authorization is to provide an award to a committee of sale, which is appointed by the court pursuant to a decree of judicial sale, in order that the committee may fulfill its obligations in making the sale and be reimbursed for its efforts. Such purpose would appear to be thwarted if the phrase “of such sale” is construed to encompass merely ratified sales. In interpreting a statute, application of common sense is not to be excluded. Sillman v. Sillman, 168 Conn. 144, 148, 358 A.2d 150 (1975); State v. Ralston, 7 Conn. App. 660, 682, 510 A.2d 1346 (1986). A court construing a statute must avoid a consequence which fails to attain the most rational and sensible result that bears directly on the object which the legislature sought to obtain. Peck v. Jacquemin, 196 Conn. 53, 63-64, 491 A.2d 1043 (1985). If there are two possible interpretations of a statute and one proves unreasonable or produces the possibility of bizarre results, then the more reasonable should be adopted. State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985).

Confirmation by the court of the sale is not a condition precedent to the court’s allowance of costs and fees to the committee of sale in connection with its services performed pursuant to the court order of foreclosure by sale. Such an interpretation is in accordance with the purpose of the legislative act which is to compensate the committee of sale for performing its obligations under the court’s decree of sale. Even in those cases where the sale is not confirmed, a committee of sale has expended money, time and effort in performing its duties. Any other rule would be harsh and oppressive to the committee of sale, depriving it of just remuneration for proceeding in a manner consistent with the decree. A committee of sale, as an arm of the court, should not have to act at its own peril in undertaking its obligations under a judgment of foreclosure by sale. Absent fraud or fault on the part of a committee of sale, the committee should be compensated for its efforts and reimbursed for its expenses associated with those acts in furtherance of its obligations, whether or not such acts eventually culminate in a completed sale. In this case, the fees and expenses which were allowed by the court were incurred prior to the filing of the appeal by the defendant. Accordingly, the court did not err in awarding fees and costs to the committee of sale even though the sale was not ratified.

We hold, therefore, that the phrase “of such sale” provided in General Statutes § 49-25 is not limited to ratified sales but also encompasses those authorized acts undertaken in furtherance of completing a judicially-ordered sale.

IV

In its cross appeal, the committee of sale claims that Judge Aronson erred in awarding fees and expenses which were less than those sought. We are unable to reach the merits of this claim, however, because the committee of sale lacks standing to raise this issue. We must, therefore, dismiss the cross appeal on jurisdictional grounds.

We emphasize the fact that the committee of sale was not a party to this suit. The interests of a committee of sale are ordinarily represented by a party to the suit. Second National Bank of New Haven v. Burtchell, 166 Conn. 388, 349 A.2d 831 (1974). In this case, however, it appears that the committee of sale was permitted to represent its own interests without objection.

A committee of sale functions as an arm of the court in a judicial sale. The committee conducting a sale is an agent or representative of the court. 50 C.J.S., Judicial Sales § 12; 47 Am. Jur. 2d, Judicial Sales § 71. It is, therefore, the instrumentality of the court for the specific purposes designated in the court’s decree. The function of the committee as an arm of the court raises the issue of standing. As an arm of the court, the committee merely carries out the sale of property as if it were the court. Thus, if a court awards fees and expenses which are less than those sought, a committee is in the paradoxical position of appealing an action of the court which it serves. Absent express authority permitting an appeal by an aggrieved committee, we must conclude that the committee lacks standing to challenge the amount of the court’s award through this cross appeal.

The cross appeal is dismissed.

There is no error on the appeal.

In this opinion the other judges concurred.

       The second committee of sale, Ruhe, is not involved in this appeal.

       The defendant’s claim that the court should have permitted him the opportunity to present testimony on his motion is without merit. The trial court determined that the defendant had not indicated an intention to present testimony. Practice Book § 211 (c) (1).

       In Raymond v. Gilman, 111 Conn. 605, 613-14, 151 A. 248 (1930), it was stated that: “ ‘A judicial sale is one made as a result of judicial proceedings by a [committee of sale] legally appointed by the court for the purpose. . . . The court is the vendor, and the [committee of sale] appointed to make the sale is the mere agent of the court. The sale is not absolute until confirmed. The order of confirmation gives the judicial sanction of the court, and when made it relates back to the time of the sale and cures all defects and irregularities except those founded in want of jurisdiction or fraud. The court has power to confirm the sale, although the terms of the decree may not have been strictly followed. The matter of confirmation rests peculiarly upon the sound discretion of the court, to be judicially exercised in view of all the surrounding facts and circumstances, and in the interest of fairness, justice, and the legal rights of the respective parties.' Nevada Nickel Syndicate v. National Nickel Co., 103 Fed. 391, 395 [1900]; 35 Corpus Juris, Judicial Sales, § 73, and cases cited.”

       General Statutes (1902 Rev.) § 4142 provides: “appointment of seller AND DIRECTION OF SALE. APPRAISAL. “When the court in any such proceeding is of the opinion that a foreclosure by sale should be decreed, it shall, in its decree, appoint a person to make such sale and fix a day therefor, and shall direct whether the property shall be sold as a whole or in parcels, and how such sale shall be made and advertised; but in all eases in which such a sale is ordered, the court shall appoint three disinterested persons who shall, under oath, appraise the property to be sold and make return of their appraisal to the clerk of the court; and the expense of such appraisal shall be paid by the plaintiff and be taxed with the costs of the case.”

       Connecticut Public Acts 1917, “[House Bill No. 106.] chapter 30. an ACT CONCERNING FORECLOSURE OF MORTGAGES AND LIENS BY SALE. . . .
      “section 1. Section 4142 of the general statutes is amended to read as follows: When the court in any such proceeding is of opinion that a foreclosure by sale should be decreed, it shall, in its decree, appoint a person to make such sale and fix a day therefor, and shall direct whether the property shall be sold as a whole or in parcels, and how such sale shall be made and advertised; but in all cases in which such sale is ordered, the court shall appoint three disinterested persons who shall, under oath, appraise the property to be sold and make return of their appraisal to the clerk of said court; and the expense of such sale and appraisal shall be paid by the plaintiff and be taxed with the costs of the case.”

       Other jurisdictions have allowed some form of compensation to the committee of sale where a sale is set aside for reasons not imputable to the fault of the committee of sale. See 47 Am. Jur. 2d, Judicial Sales § 81 and cases cited therein.

       We note that, contrary to the committee of sale’s assertion, the fees and expenses awarded were not less than those sought in its motion. The motion sought specific amounts “or [i]n such other sum as the court may determine to be fair and equitable.”

       Both the receiver of rents, Frances Gionfrido, and the committee of sale, Ankerman, have filed appearances in connection with this appeal. There is no indication in the record, however, that either was a party in the action. As a result of the lack of status as parties, for the purposes of this appeal, we have treated the briefs of both the receiver of rents and the committee of sale as amicus curiae briefs.

       An appearance was filed on behalf of Frances Gionfrido, the rent receiver, when this case was before our Supreme Court in Hartford Fed

        eral Savings & Loan Assn. v. Tucker, 196 Conn. 172, 491 A.2d 1084, cert, denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985): The question of whether the receiver’s standing to litigate issues or the appropriateness of appearing in an appeal to which it was not a party was never addressed by the court.

       We are aware that this holding leaves a committee, which is given an award in a lesser amount than its claimed fees and expenses, without a mechanism for redress. We believe, however, that if the legislature determines that appellate review of an award to a committee of sale should be available, then the legislature and not this court should fill the appellate void.


source: Caselaw Access Project

author: Spallone, J. Bieluch, J.,

license: Public Domain

text:
    Ernst Steel Corporation v. Reliance Insurance Company et al.
    (4803)
    Spallone, Bieluch and Stoughton, Js.
    Argued October 13, 1987 —
    decision released January 19, 1988

      Wesley W. Horton, with whom were Susan M. Cormier and Hugh J. Lavery and, on the brief, Stuart J. Moskovitz, for the appellants-appellees (defendants).

      J. Paul Kane, with whom was Jack L. Getman, for the appellee-appellant (plaintiff).
   Spallone, J.

The defendants are appealing from the judgment rendered for the plaintiff in an action on a construction contract. The plaintiff has cross appealed from the denial of counsel fees on the defendant’s counterclaim. We find no error.

The plaintiff, Ernst Steel Corporation (Ernst) commenced this action against the defendants Reliance Insurance Company (Reliance) and General Reinsurance Corporation (General) in their capacities as sureties for the defendant, Yonkers Contracting Company, Inc. (Yonkers). Ernst sought to recover $410,472.80, plus interest and attorney’s fees, against Yonkers’ sureties, due in connection with its performance under a subcontract with Yonkers for the fabrication and erection of steel structures required in the construction of certain bridges. Yonkers was under a general contract with the Connecticut department of transportation for the construction of a portion of Interstate Route 84. Ernst claimed payments and interest due under its contract with Yonkers as damages and also claimed counsel fees by application of General Statutes § 49-41a. Although Yonkers was not named as a party in the initial complaint, the general contractor moved to be added as a defendant and filed a counterclaim against Ernst for damages allegedly caused by Ernst’s delays in performing its contractual duties.

The trial judge presiding over this action endeavored to simplify the proceedings by bifurcating the trial into the issues of liability and damages. In a memorandum of decision dated February 15, 1985, the trial court found that the parties had not agreed upon a firm delivery schedule, that the plaintiff had satisfactorily performed its contractual obligations within a reasonable period of time and, therefore, Yonkers was not justified in withholding the sums owed to the plaintiff. Additional testimony was heard by the court on June 25, 1985, and a second memorandum of decision followed on October 13, wherein the court discussed its determination of damages. Ernst was awarded $343,387.15 plus interest at 1.5 percent per month for the work done under the contract and $10,394.88 plus interest at

1 percent per month for work performed by Ernst outside of the contract. ■

The court also found that, pursuant to General Statutes § 49-41a, Ernst was entitled to collect attorney’s fees, and therefore awarded Ernst an amount equal to 20 percent of the sums found to be due as of December 13,1985. The plaintiff was not awarded, however, additional attorney’s fees which it claimed it incurred as a result of defending against Yonkers’ counterclaim. After the rendition of judgment, the defendants filed this appeal, and the plaintiff filed a cross appeal alleging error in the court’s denial of its claim for additional counsel fees.

In January of 1986, the defendants filed a motion for rectification with the trial court. One month later, the plaintiff filed a motion for further articulation, largely in response to the defendants’ motion, which set out in detail the necessary underlying facts to support the court’s factual conclusions. Oral argument was held on both motions and the court issued an articulation which, for the most part, adopted verbatim the proposed findings filed by the plaintiff.

I

In its statement of issues, the defendants initially claimed that the trial court’s articulation should be reviewed by a standard more strict than clear error because of the court’s wholesale adoption of the plaintiff’s proposed articulation. The defendants abandoned this claim at oral argument in light of the recent disposition by our Supreme Court of a similar claim. See Grayson v. Grayson, 202 Conn. 221, 520 A.2d 225 (1987) (appeal dismissed on the ground that certification was improvidently granted).

The defendants’ remaining claims are that the court erred: (1) in finding that there was no agreement as to a specific delivery date; (2) in finding that the time within which the subcontract was to be performed was not of the essence; (3) in finding that the plaintiff performed within a reasonable time; (4) in awarding the plaintiff interest and attorney’s fees under General Statutes § 49-41a; (5) in its computation of the damages awarded under the contract; and (6) in holding for the plaintiff on the counterclaim.

The first three of the defendants’ claims of error, no matter how couched, presented or obfuscated, are merely attacks on the factual findings of the trial court. In essence, the defendant is asking us to retry these issues. We cannot. On appeal, the function of this court is limited solely to the determination of whether the decision of the trial court is clearly erroneous. Practice Book § 4061; Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Ram Roofing & Sheet Metal Co. v. A.B.C. Plumbing & Heating, Inc., 2 Conn. App. 54, 56, 475 A.2d 341 (1984). It is the province of the trial court to “pass upon the credibility of witnesses and the weight to be accorded the evidence.” Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976); Essex Savings Bank v. Leeker, 2 Conn. App. 98, 102, 476 A.2d 1071 (1984). It is not within this court’s power to find facts or draw conclusions therefrom. As an appellate body, we review the factual findings below to ensure that they could have been legally, logically and reasonably found, thereby establishing that the trial court could reasonably conclude as it did. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 280-81, 471 A.2d 651 (1984). Our review of the record and transcripts discloses ample support for the court’s findings and conclusions that the contract between Ernst and Yonkers contained no agreement which evinced a specific delivery date, that the time within which the contract was to be performed was not of the essence, and that the plaintiff performed its contractual obligations within a reasonable time. There is no merit to the defendants’ assertion to the contrary.

Next, the defendants argue that Ernst was not entitled to interest and attorney’s fees under General Statutes § 49-41a because the following requirements were not met: (1) there was no evidence of the amount Yonkers received in payment from the state for Ernst’s work; (2) there was no amount due Ernst in 1979, Yonkers having paid Ernst all but its retainage, which under Yonkers’ reading of the contract did not become payable until 1981; and (3) Ernst’s demands in March and April of 1978 were premature and therefore improper.

That the aforesaid requirements were met was decided in the affirmative by the trial court. Our review of the court’s decision is limited in scope to a determination of whether the facts found could legally, logically and reasonably be found. Appliances, Inc. v. Yost, supra. The matter of compliance with § 49-41a was in issue before the trial court; testimony was elicited and the arguments presented the parties’ competing positions. The court ultimately resolved the issue in favor of the plaintiff. The court expressly found that all of Ernst’s work was completed and accepted by the state as of December 21, 1978, that Yonkers received payment for all of Ernst’s work, less retainage of 5 percent, on or before February 10, 1979, and that Ernst made a proper demand on April 10,1979, by registered mail which was received by Yonkers on April 13,1979. “[WJhere 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, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Our review, as limited by Pandolphe’s, finds full support for the court’s factual findings and legal conclusions as to the applicability, under the circumstances of this case, of General Statutes § 49-4 la. Accordingly, we find no error in the court’s application of General Statutes § 49-41a and its award of attorney’s fees and interest pursuant thereto.

The defendants also allege error in the court’s computation of the amount due and the interest accrued under the contract. We see no merit to this claim. The essential dates concerning completion of the contract by the defendant, when payments to the plaintiff were due, when payments were made to Yonkers and that Yonkers failed to pay same in due course and after receiving notice under General Statutes § 49-41a were all established by the court. The computation of damages and interest became a mere mathematical procedure which was reasonably utilized by the trial court.

As its final averment of error, the defendants claim that there is reversible error on the counterclaim. In its forty-one page brief, the defendants’ sole reference to this claim is as follows: “Since Yonkers’ counterclaim for damages is a mirror image of the complaint, there is no need to consider it separately. If there is error in the complaint, there is error on the counterclaim.” We refuse to accept such an unsupported assertion as a cognizable claim of error. It is the obligation of the appellant, when claiming error, to be direct and concise and to lay before this court, with precision, the exact claim which he is asking us to review. The defendants have referred to no legal authority for their claim of error on the counterclaim. “Bare assertions of error without citation to legal authority may constitute an abandonment of a claim.” State v. Chauvin, 8 Conn. App. 307, 311, 512 A.2d 969 (1986). We will not consider this claim because “[assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned.” Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149, 448 A.2d 829 (1982).

II

The plaintiff, in its cross appeal, claims that the trial court erred in failing to conclude that the plaintiff was entitled to the attorney’s fees which it incurred as a result of the defendant’s counterclaim. The court in its memorandum of decision with regard to damages expressly stated: “No award is, or will be, made for attorney[’s] fees that were incurred as the result of the defendant’s counterclaim.” We concur with the conclusion of the trial court.

The trial court by its explicit denial of counsel fees for defense of the counterclaim has narrowed the issue for us by limiting its award solely to reimbursement for counsel fees and expenses incurred by the plaintiff in its prosecution of the complaint. We are thereby not required to attribute any portion of the award to the defense of the counterclaim which, in the absence of the express award of the court, would have presented some difficulty. Because the issues are intertwined, it would have been virtually impossible to apportion the work of counsel between the prosecution of the complaint and the defense of the counterclaim.

“The rule in Connecticut is that absent contractual or statutory authorization, each party must pay its own attorney’s fees.” Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 140, 475 A.2d 305 (1984); Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 297, 472 A.2d 306 (1984); State v. Bloomfield Construction Co., 126 Conn. 349, 359, 11 A.2d 382 (1940). Any statute in derogation of the general rule that each party pay his or her own attorney’s fees should be construed so as to give it efficacy and application only under the circumstances where the conditions giving rise to the exception, under the statute, are manifest. General Statutes § 49-41a authorizes an award of counsel fees upon the written demand for the payment of sums due under a subcontract, by the subcontractor, when the general contractor has been paid by the state and has refused to place in escrow such funds claimed as due, and the party making the claim is found to have substantially performed its obligations under the subcontract in litigation to determine the validity of the claim.

The plaintiff reads § 49-4 la as authorizing the payment of “attorney’s fees” regardless of the type of legal work which precipitated the fee. The plaintiff argues that because the statute does not specifically exclude the payment of certain fees, the provision should be interpreted to include any and all fees incurred as a result of the litigation. We do not believe that such an interpretation is warranted.

The statute as written, in plain and unambiguous language, enunciates the conditions which give rise to the defendant’s obligation to pay the plaintiff’s counsel fees. Without the statutory imposition of attorney’s fees, the defendant would have no such liability. General Statutes § 49-41a contains no provision which authorizes an award of counsel fees for defending a counterclaim, therefore, the trial court was correct in declining to make such an award.

In conclusion, we hold that the trial court acted properly and in accordance with the applicable law in its findings and rulings as to the defendant’s and plaintiff’s claims of error. Accordingly, we find no error as to either the appeal or the cross appeal.

There is no error.

In this opinion, Stoughton, J., concurred.

Bieluch, J.,

concurring in part and dissenting in part. I agree that there is no error in the defendants’ appeal. As to the plaintiff’s cross appeal, however, I would find error. The plaintiff has established its entitlement to additional attorney’s fees incurred in its defense of Yonkers’ countersuit for an alleged breach of the subcontract upon which the plaintiff had initially brought suit under General Statutes § 49-42 against the two sureties on the payment bond furnished under the provisions of General Statutes § 49-41.

On May 20, 1976, Yonkers entered into a contract with the state of Connecticut, project No. 96-114,115, Newtown-Southbury, Interstate Route 84, for the construction of certain highways, bridges and structures. Under the requirements of General Statutes § 49-41 (a), Reliance and General furnished a bond to the state as sureties for payment by Yonkers “for all materials and labor used or employed in the execution of such contract, to the extent as required by the General Statutes of Connecticut.” By a subcontract with Yonkers, Ernst agreed to fabricate, deliver and erect structural steel for four bridges in accordance with the plans and specifications of the project for $3,220,000.

The necessary steel was fabricated, furnished and erected by the plaintiff in accordance with its subcontract. Upon the completion of the highway by Yonkers under its prime contract with the state it was paid in full. Of the amount received from the state, Yonkers paid Ernst only $2,928,477.75. When the balance due Ernst was refused, it then proceeded to comply with the conditions of General Statutes § 49-41a, first seeking payment, and thereafter demanding the deposit of the amount due in an interest-bearing escrow account. After Yonkers ignored these statutory demands, Ernst brought suit against the two sureties on their payment bonds pursuant to § 49-42, seeking interest and attorney’s fees under § 49-41a in addition to the contractual sums due. In their answer, Reliance and General sought a setoff and recoupment for damages caused to Yonkers by Ernst’s alleged breach of its subcontract. By Ernst’s reply to these affirmative allegations, the issues in this case were closed on May 22, 1980.

More than two years later, Yonkers reopened the issues by successfully moving to be added as a party defendant “so that it may seek affirmative relief against the Plaintiff for breach of the contract which is the subject matter of this cause of action and so that complete relief may be afforded to all the parties.” Thereafter Yonkers filed a “Third Party Cross-Complaint” seeking damages from Ernst for breach of the subcontract. These alleged damages consisted of the claim for setoff and recoupment previously made by Reliance and General, and in addition, a new claim for damages in the amount of $56,158.19 for work, labor and materials which Ernst failed, omitted or refused to provide. Ernst denied these substantive allegations. It also filed a substituted complaint against all three defendants. In the first count, it sought recovery of the balance due under the subcontract, together with interest and attorney’s fees pursuant to § 49-41a. The second and third counts sought recovery from the sureties, Reliance and General, respectively. In their answers, the defendants denied a breach of the subcontract by Yonkers. In addition, the defendants Reliance and General repeated their previous setoff and recoupment claims, but this time their allegations were expanded to those of Yonkers’ “Third Party Cross-Complaint.” The pleadings were again closed on December 12,1983, and the parties went to trial thereafter on the affirmative issues raised by the plaintiff’s substituted complaint, by Yonkers’ “Third Party Cross-Complaint,” and by the sureties’ setoff and recoupment.

At trial the plaintiff claimed that the steel was delivered and erected within the agreement of the parties. The defendant Yonkers maintained that as a result of late delivery of steel and the late erection of the bridges, the entire project was delayed with a loss of profits which it sought to recover. At the request of the court, the trial was bifurcated. The first segment of the trial considered the issue of delivery of the steel by Ernst. Upon the completion of this evidence, the court found that the plaintiff “did in fact perform its contractual obligation within the terms of the contract. . . . [Therefore,] the defendant [was] not justified in withholding the disputed sums.”

In the second phase of the trial, the court heard evidence on the outstanding issues regarding the plaintiffs damages. Upon the conclusion of its hearing, the court found that the plaintiff was entitled to recover from Yonkers the following sums: (1) $343,387.15 balance due on the contract as of April 23, 1979, after credits to the defendant of $6000 for splices and $4158 for back charges, with interest at the agreed contract rate of 1.5 percent per month; (2) $10,394.88 for extra work, with interest at the statutory rate under § 49-41a of 1 percent per month; and (3) attorney’s fees under § 49-41a “of 20 percent of the sums found due as of the date of this judgment.” Without furnishing any reason or explanation, the court peremptorily ruled as follows: “No award is, or will be, made for attorney’s fees that were incurred as the result of the defendants’ counterclaim.” The plaintiff has appealed from the court’s denial of its attorney’s fees incurred in the defense of Yonkers’ counterclaim. I would find error.

At the outset, it should be noted that the trial court failed to render judgment on Yonkers’ counterclaim. Neither the memoranda of decision on liability and damages, nor the judgment file prepared by the clerk, show the rendition of a judgment by the court on the counterclaim. A judgment is in fact rendered whenever the trial judge announces his decision in court or out of court, orally or in writing, in any cause of action. The writing out of the judgment, in the form of a judgment file to be recorded, is a matter of subsequent clerical action. Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 535 n.2, 294 A.2d 573 (1972); Bulkeley’s Appeal, 76 Conn. 454, 457-78, 57 A. 112 (1904); LaPre v. Nibo Films, Ltd., 10 Conn. App. 669, 673 n.4, 525 A.2d 140 (1987). Implicit in the trial court’s memoranda, and the findings and conclusions contained in them, however, is an unexpressed judgment for the plaintiff on Yonkers’ counterclaim. The parties to this appeal have proceeded on that assumption, and for the purposes of this review we may also hold to that course.

Although the trial court gave no reason, factual or legal, for its denial of an award for attorney’s fees incurred by the plaintiff in its defense of Yonkers’ counterclaim, the majority opinion finds a legal basis for the trial court’s ruling. The majority opinion holds that § 49-41a contains no provision authorizing an award of counsel fees for defending a counterclaim. That is a myopic view of the statute. Section 49-41a (b) provides that “[i]n the event that such general contractor or subcontractor refuses to place such funds in escrow, and the party making a claim against it under this section is found to have substantially performed its work in accordance with the terms of its employment in any arbitration or litigation to determine the validity of such claim, then such general contractor or subcontractor shall pay the attorney’s fees of such party.”

Attorney’s fees in the context of § 49-41a include all legal fees necessarily incurred in the collection of the contractual payment. All of the enumerated conditions have been met here. The plaintiff, therefore, is entitled to full reimbursement of counsel fees incurred as a consequence of Yonkers’ refusal to pay the contract balance because of its disproven claim that Ernst breached their subcontract, including the fees expended in the defense of the counterclaim filed to defeat, or at least to minimize, any award of contractual damages to it. The defense of the counterclaim was a necessary component of the action brought by Ernst under § 49-41a to recover for its “labor performed or materials furnished” to “the contractor and paid by the state.” This defense being an integral part of its statutory suit “to determine the validity of such claim, then [the] general contractor . . . shall pay the attorney’s fees of such party.”

Ernst initially brought this action against the two sureties on their payment bonds furnished to the state by Yonkers under the requirements of § 49-41. This suit was authorized by § 49-42. The pleadings in that case were closed on May 22, 1980. After more than two years, Yonkers reopened the case for the purpose of bringing a retaliatory action to defeat, in whole or in part, the plaintiff’s claim for the contract balance due. As stated in its motion on October 8, 1982, it sought to “be made a party Defendant so that it may seek affirmative relief against the Plaintiff for breach of the contract which is the subject matter of this cause of action and so that complete relief may be afforded to all the parties.” That it sought to achieve after it was allowed to enter the case by its “Cross-Complaint” or counterclaim. The counterclaim became an integral part of Ernst’s suit to recover the balance due on its contract together with interest and attorney’s fees under the provisions of § 49-41a. Therefore, it should have been awarded attorney’s fees for all necessary services furnished in its successful defense of the counterclaim.

The majority opinion states that since § 49-41a contains no provision which authorizes an award of counsel fees for defending a counterclaim, the trial court was correct in declining to make such an award. Such a deductive conclusion begs the question. Section 49-41a (b) provides that “[i]n the event that such general contractor . . . refuses to place such funds in escrow, and the party making a claim against it under this section is found to have substantially performed its work in accordance with the terms of its employment in any arbitration or litigation to determine the validity of such claim, then such contractor . . . shall pay the attorney’s fees of such party. ” (Emphasis added.) There is nothing equivocal, uncertain or vague about this provision, its meaning or its application.

Yonkers at its risk refused to place the contested amount in an escrow account after demand by Ernst. After the plaintiff commenced this action, Yonkers supported this risk by bringing its counterclaim to counteract, and even counterattack, the plaintiffs collection of its contractual balance. The defense of Yonkers’ counterclaim then became a necessary step in establishing the validity of the plaintiff’s claim and the collection of interest and attorney’s fees pursuant to the provisions of § 49-41a.

“Under our rules of practice, a counterclaim, if proper, is an independent action. See Practice Book §§ 116, 168, 169; Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 63, 485 A.2d 1296 (1985); see also Schurman v. Schurman, 188 Conn. 268, 270, 449 A.2d 169 (1982). It has been defined ás “a cause of action existing in favor of a defendant against a plaintiff which a defendant pleads to diminish, defeat or otherwise affect a plaintiff’s claim and also allows a recovery by the defendant.’ 1 Stephenson, Conn. Civ. Proc. (2d Ed. 1982 Sup.) § 129b.” Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985). Yonkers’ counterclaim was belatedly injected into this cause of action “to diminish, defeat or otherwise affect the plaintiff’s claim” for recovery of the balance due it from Yonkers and was, therefore, an integral part of the “litigation to determine the validity of such claim” under the provisions and entitlements of § 49-41a.

The trial court found that the plaintiff substantially performed its contract and, therefore, had a valid claim. This conclusion was reached by the trial court in this single action after the combined litigation of the plaintiffs substituted complaint, the sureties’ setoff and recoupment, and Yonkers’ long delayed counterclaim. To establish the validity of its claim under the requirements of § 49-41a, the plaintiff had to prevail on the three affirmative issues raised by the plaintiff and the defendants in their respective pleadings. That, the plaintiff did in obtaining judgment on its complaint. Therefore, under the provisions of § 49-41a it is entitled to all attorney’s fees incurred in prosecuting and defending all phases of the “litigation to determine the validity of such claim.”

The majority opinion states that “[bjecause the issues are intertwined, it would have been virtually impossible to apportion the work of counsel between the prosecution of the complaint and the defense of the counterclaim.” The evidence shows otherwise. There was testimony that Ernst had an agreement with its counsel in Buffalo, New York, to pay a collection fee in the amount of 20 percent of the sum recovered on its contract balance due from Yonkers. Ernst also agreed to pay its attorneys at an hourly rate for legal work necessary for the defense of any counterclaim or affirmative defenses that might be pleaded by the defendants. The reasonableness and amount of such fees were left to the determination of the trial court. In addition, disbursements and expenditures were properly to be reimbursed. This evidence of the retainer agreement of Ernst with its attorneys was for an unexplained reason not considered by the trial court when it summarily decided that “[n]o award is, or will be, made for attorney’s fees that were incurred as the result of the defendants’ counterclaim.”

I would find error on the plaintiff’s cross appeal and remand the case for a hearing on the award of further attorney’s fees to the plaintiff for its defense of Yonkers’ counterclaim.

       “[General Statutes] Sec. 49-41a. enforcement of payment by general CONTRACTOR TO SUBCONTRACTOR AND BY SUBCONTRACTOR TO fflS SUBCONTRACTORS. (a) When any public work is awarded by a contract for which a payment bond is required by section 49-41, the contract for the public work shall contain the following provisions: (1) A requirement that the general contractor, within thirty days after payment to the contractor by the state or a municipality, pay any amounts due any subcontractor, whether for labor performed or materials furnished, when the labor or materials have been included in a requisition submitted by the contractor and paid by the state or a municipality ....
      “(b) If payment is not made by the general contractor or any of its subcontractors in accordance with such requirements, the subcontractor shall set forth his claim against the general contractor and the subcontractor of a subcontractor shall set forth its claim against the subcontractor through notice by registered or certified mail. Ten days after the receipt of that notice, the general contractor shall be liable to its subcontractor, and the subcontractor shall be liable to its subcontractor, for interest on the amount due and owing at the rate of one per cent per month. In addition, the general contractor, upon written demand of its subcontractor, or the subcontractor, upon written demand of its subcontractor, shall be required to place funds in the amount of the claim, plus interest of one per cent, in an interest-bearing escrow account in a bank in this state, provided the general contractor or subcontractor may refuse to place the funds in escrow on the grounds that the subcontractor has not substantially performed the work according to the terms of his or its employment. In the event that such general contractor or subcontractor refuses to place such funds in escrow, and the party making a claim against it under this section is found to have substantially performed its work in accordance with the terms of its employment in any arbitration or litigation to determine the validity of such claim, then such general contractor or subcontractor shall pay the attorney’s fees of such party.”

       The contract between the parties included a provision which imposed an interest charge of 1.5 percent on overdue accounts. The trial court found this provision viable, therefore, the contract rate, rather than the statutory rate of 1 percent, applies. Little v. United National Investors Corporation, 160 Conn. 534, 541, 280 A.2d 890 (1971).

       A rate of 1 percent interest was applied, pursuant to General Statutes § 49-41a (b), to that portion of Ernst’s work which was performed outside of the contract. Because this extra work was not originally contracted, the higher contract rate was found not to apply. See footnote 2, supra.

       In its articulation, the court stated that it had requested the defendants to also provide it with documentation similar to that filed by the plaintiff, detailing all subordinate facts the defendants believed they had proven. The defendants apparently either refused or were unable to so assist the trial court.

       It should be noted, however, that although our Supreme Court did not find it necessary to heighten the standard of review in those situations where a trial court’s findings mirror those submitted by a party, the court found such a practice “deplorable.” Grayson v. Grayson, 202 Conn. 221, 223, 520 A.2d 225 (1987). Our earlier review in Grayson had elicited the same reaction: “[T]he practice of adopting parties’ proposed findings of fact invites error or sloppy analysis on the judge’s part. More importantly, the appearance of justice is just as important as the reality, and a verbatim adoption of the facts proffered by one of the advocates invites a public suspicion of the trial court’s decision. The perceptions by the public and by the losing litigant of our system of justice are surely not enhanced by such a practice.” Grayson v. Grayson, 4 Conn. App. 275, 284, 494 A.2d 576 (1985).

       The plaintiff did not object to Yonkers’ self-impleader. See General Statutes § 52-102a; see also Practice Book § 117.

       Although designated a “Third Party Cross-Complaint,” under our practice such a pleading by a defendant against the plaintiff is called a counterclaim and the trial court properly referred to it as such. See Practice Book § 116 (“In 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”).

       A judicial error on the record may be corrected upon motion to open or set aside the judgment. General Statutes § 52-212a; see Varanelli v. Luddy, 130 Conn. 74, 79, 32 A.2d 61 (1943).


author: Foti, J.

text:
    Michele L. Louney v. James C. Louney
    (5691)
    Daly, Norcott and Foti, Js.
    Submitted on briefs November 20,1987 —
    decision released January 19,1988

      Reuben S. Midler filed a brief for the appellant (plaintiff).

      Michael E. Shay filed a brief for the appellee (defendant).
   Foti, J.

In this appeal from the judgment of the trial court dissolving the marriage of the parties, the plaintiff wife claims an abuse of discretion by a state trial referee acting as the trial court (1) in awarding periodic alimony that was limited in its duration, (2) in awarding only $1200 per month in periodic alimony, (3) in establishing a minimal level of expenses, at $1500 before the defendant would have to contribute to the upkeep of the marital residence, and (4) in its order concerning the joint bank accounts with the children. We find error in part.

The plaintiff and defendant were both forty-one years of age at the time of trial and had been married for twenty years. The parties had three children: Jennifer, nineteen, Kurt, seventeen, and Elizabeth, fourteen. The two younger children reside with the plaintiff. At the time of trial, the defendant, a vice-president of investments and assistant to the president of a Boston corporation, earned $72,500 annually. The plaintiff was a commissioned salesperson and earned approximately $13,000 annually, which she anticipated would increase to $17,000 annually. The plaintiff was compensated on a draw against commissions and did not receive any other benefits, but became eligible for insurance coverage a week or two after trial at a cost of $70 per month. Furthermore, her earnings did not permit her to contribute to an IRA which remained at $1300, the initial fund level. The principal asset of the parties was the residence where the plaintiff and minor children reside, valued at between $375,000 to $400,000.

The court’s judgment required a division of the equity-in the marital residence, granting 65 percent of the equity to the plaintiff and 35 percent to the defendant; the plaintiff was made responsible for all replacements and repairs on the house up to $1500 per year. Alimony and child support were ordered as part of the court’s judgment, but the alimony was to terminate on December 1,1993. The court also provided for the disposition of the personal property, health insurance, and life insurance, and indicated that the plaintiff was to remain as trustee of “trust funds” provided for the children’s college education.

The “trust funds” alluded to by the court are monies deposited in revocable bank accounts by the defendant, who contributed between $28,000 and $34,000 for the children with the plaintiff listed as joint depositor. The accounts were originally established as a source of funds for the college education of the children with a separate account for each child. The court allowed the plaintiff to remain as trustee but established criteria upon which the funds could be withdrawn.

The plaintiff first claims the trial court erred in awarding periodic alimony that would terminate on December 1,1993. The plaintiff agrees that this decision is within the discretion of the court; General Statutes § 46b-82; but contends that the court abused its discretion in awarding time limited alimony in view of its findings of income disparity and future earning potential, and in failing fully to consider the purpose of alimony and the length of the marriage. The plaintiff contends that a specific finding is necessary that the plaintiff will be able to support herself as is appropriate to her “station” on December 1, 1993. We do not agree.

While it is essential that the court consider the statutory criteria, it is not essential that it make express findings on each. Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). A review of the memorandum of decision and the judgment clearly demonstrates that the court considered the required statutory criteria in arriving at its decision.

An appellate court’s review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to whether that court correctly applied the law and whether it could reasonably have concluded as it did. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984). Conclusions we might reach, if we were sitting as the trial court, are irrelevant. Gallo v. Gallo, 184 Conn. 36, 44-45, 440 A.2d 782 (1981); Koizim v. Koizim, 181 Conn. 492, 498, 435 A.2d 1030 (1980).

“Underlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency.” Markarian v. Markarian, 2 Conn. App. 14, 16, 475 A.2d 337 (1984). We cannot conclude that the decision of the trial court awarding periodic alimony which was time limited was an abuse of discretion.

The plaintiff next attacks the amount of periodic alimony awarded by the court. The court has very broad discretion in determining the amount of alimony which is proper in such cases; Aguire v. Aguire, 171 Conn. 312, 314, 370 A.2d 948 (1976); and may exercise that discretion to determine what is fair and equitable under the circumstances. Sweet v. Sweet, 190 Conn. 657, 662, 462 A.2d 1031 (1983). The trial court sits in a clearly advantageous position to assess all of the circumstances before it, so it must be accorded broad discretion in awarding alimony. Papageorge v. Papageorge, 12 Conn. App. 596, 598, 553 A.2d 229 (1987). We find no abuse of discretion in the amount of alimony awarded.

The plaintiff’s next claim is that the threshold figure established by the court between major and minor expenses which would trigger a proportional contribution by the parties is not supported by the facts. Though the factual basis for the court’s decision is unclear, the plaintiff did not move for articulation. Since the plaintiff has failed to supply a record presenting the trial court’s rationale, as is her burden, we decline to review the court’s setting of that amount. Holmes v. Holmes, 2 Conn. App. 380, 383-84, 478 A.2d 1046 (1984).

Finally, the plaintiff claims that the court erred in limiting the use of funds held in joint accounts for the children’s education. It was not disputed that these accounts, which were funded by the defendant and held jointly by each of the children with their mother, were originally intended for the expenses associated with the children’s education. The plaintiff contends, however, that these funds were part of the marital property and, thus, could not be limited to a particular purpose. To the contrary, this portion of the court’s order can reasonably be understood as providing for the support and maintenance of the children; it is well settled that the court has broad discretion in this regard. Volante v. Volante, 180 Conn. 528, 532, 429 A.2d 964 (1980). The limitation placed on these funds, therefore, did not exceed this discretion.

The plaintiff also claims that even if the court had the discretion to limit the use of the accounts held jointly with the minor children, it lacks the authority to place similar limitations on the account held jointly with Jennifer, who was nineteen at the time of the dissolution. We agree.

The court’s order which, in effect, requires the plaintiff to use the proceeds of the account for the educational needs of a child beyond the age of majority, extends beyond the court’s authority to provide support and maintenance; Volante v. Volante, supra; and cannot be authorized as a distribution of marital property. General Statutes § 46b-81.

There is error, the judgment is set aside as to the award of the plaintiffs bank account owned jointly with her daughter, Jennifer, and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 46b-82 provides: “alimony. At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for their annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       General Statutes § 46b-81 provides: “assignment of property and transfer of title, (a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.
      “(b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties.
      “(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of 'their respective estates.”


author: Borden, J.

text:
    Reynold Pelletier v. Caron Pipe Jacking, Inc., et al.
    (5755)
    Dupont, C. J., Borden and Bieluch, Js.
    Submitted on briefs November 13, 1987 — decision
    released January 19, 1988

      P. Bryden Manning filed a brief for the appellants (defendants).

      William F. Gallagher filed a brief for the appellee (plaintiff).
   Borden, J.

The dispositive issue of this appeal is whether the timely filing of a notice of a claim for workers’ compensation benefits pursuant to General Statutes § 31-294 is a precondition to the statutory preclusion from contesting liability provided by General Statutes § 31-297 (b). We hold that it is.

The facts are undisputed. On September 8,1975, the plaintiff was employed by the named defendant, Caron Pipe Jacking, Inc., of which the codefendant, Travelers Insurance Company, was the workers’ compensation insurance carrier. On or about December 19,1983, the plaintiff gave his employer and the workers’ compensation commissioner written notice of a claim for compensation based on an alleged work-related heart attack that occurred on September 8, 1975, and its aftereffects, and on a subsequent bypass operation that he underwent on September 30, 1983. On October 29, 1984, the defendants filed a notice of contest of liability with the compensation commissioner. The plaintiff’s notice of claim complied with General Statutes § 31-294, except for its untimeliness. The defendants’ notice to contest liability also complied with General Statutes § 31-297 (b), except for its untimeliness.

The plaintiff moved, pursuant to General Statutes § 31-297 (b), to preclude the defendants from contesting liability because they had not filed a notice to contest liability within twenty days from their receipt of the plaintiff’s notice of claim. The commissioner granted the plaintiff’s motion to preclude. The defendants appealed to the compensation review division. The review division affirmed the commissioner’s decision and dismissed the appeal, relying on our decisions in LaVogue v. Cincinnati Inc., 9 Conn. App. 91, 516 A.2d 151, cert, denied, 201 Conn. 814, 518 A.2d 72 (1986), and Bush v. Quality Bakers of America, 2 Conn. App. 363, 479 A.2d 820, cert, denied, 194 Conn. 804, 482 A.2d 709 (1984). The defendants appealed to this court.

The defendants claim that the review division erred because LaVogue and Bush do not control this case, and because an employer’s preclusion from contesting liability pursuant to § 31-297 (b) only arises upon the timely giving of a written notice of claim for compensation by the employee pursuant to § 31-294. We agree.

Section § 31-294 provides in pertinent part: “No proceedings for [workers’] compensation . . . shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident . ... ” Section § 31-297 (b) provides in pertinent part: “Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice . . . stating [inter alia] that the right to compensation is contested . . . and the specific grounds on which the right to compensate is contested, and a copy thereof shall be sent to the employee. If the employer . . . fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury . . . and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.”

We have had three occasions to consider the effect of the preclusion provision of § 31-297 (b). In Bush v. Quality Bakers of America, supra, 373-74, we held that an employer’s failure to file a timely notice of contest precluded the employer from contesting the issue of whether the death of the claimant’s decedent was work related. In LaVogue v. Cincinnati, Inc., supra, 93, we held that the employer’s failure to file a timely notice of contest precluded it from contesting the issue of whether the employee’s contacts with Connecticut were sufficient to give Connecticut jurisdiction over his employment relationship with the out-of-state employer. In Yuknat v. State, 9 Conn. App. 425, 426, 519 A.2d 622 (1987), we held that where the employee gave the employer an “adequate statutory notice,” the employer was precluded from contesting liability.

None of these decisions, however, addressed the precise issue raised by the defendants in this case, namely, whether an untimely notice of claim by an employee triggers the preclusion provision of § 31-297 (b). In none of those decisions was the employee’s notice of claim untimely. Furthermore, an examination of the decisions of our Supreme Court construing § 31-297 (b) discloses that none of them addresses the specific issue of the timeliness of the employee’s notice of claim. See Adzima v. UAC/Norden Division, 177 Conn. 107, 411 A.2d 924 (1979); Menzies v. Fisher, 165 Conn. 338, 334 A.2d 452 (1973); see also Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 178 n.7, 355 A.2d 227 (1974). An analysis of the relationship between §§ 31-297 (b) and 31-294, and of the purposes of § 31-297 (b), leads us to conclude that Bush, LaVogue and Yuknat do not control this case, and that a timely notice pursuant to § 31-294 is a necessary prerequisite to the preclusion provision of § 31-297 (b).

Section § 31-294 requires an employee to give “a written notice of claim for compensation . . . within one year from the date of the accident . . . . ” Section § 31-297 (b) requires an employer to file a disclaimer “on or before the twentieth day after he has received a written notice of claim . . . .” Although the phrase, “written notice of claim,” in § 31-297 (b) does not specifically refer to the phrase, “written notice of claim for compensation,” in § 31-294, it is clear that both statutory sections refer to the same notice. When two such sections are part of the same legislation and refer to the same conduct, they should be read so as to harmonize with each other. Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 438, 489 A.2d 398 (1985), aff’d, 200 Conn. App. 630, 513 A.2d 52 (1986). Although § 31-297 (b) does not specifically refer to the timeliness of the written notice required pursuant to § 31-294, the relationship between the two sections strongly suggests that § 31-297 (b) contemplates a timely notice given pursuant to § 31-294.

The purposes of the preclusion provision of § 31-297 (b) solidly buttress this suggestion. Those purposes are “to ensure (1) that employers would bear the burden of investigating a claim promptly and (2) that employees would be timely apprised of the specific reasons for the denial of their claim. These effects would, in turn, diminish delays in the proceedings, discourage arbitrary refusal of bona fide claims and narrow the legal issues which were to be contested.” Menzies v. Fisher, supra, 343. Section § 31-297 (b) also requires that the employer’s notice of contest state “the specific grounds on which the right to compensation is contested . . . .” “The point of this criterion is to inform the claimant of the deficiencies of his claim after the defending party has had an opportunity to make a thorough investigation.” Menzies v. Fisher, supra, 345. The employee’s notice triggers the obligation of the employer “to investigate the claim forthwith and either to concede its compensability or to reveal concrete reasons for contesting that claim. This rule is equitable because employers and insurers have the necessary resources to fulfill its mandate, whereas the claimant often receives no more assistance than that furnished by the commissioner in filing his claim.” Id., 345-46. Therefore, “[i]t is not unjust to require a defending employer or insurance carrier to investigate the case seasonably and to cause a responsive answer to be filed.” Id., 348.

It is clear from this discussion of § 31-297 (b) that a principal purpose of the preclusion provision is to require a prompt and thorough investigation of the employee’s claim so as to yield a specific disclaimer of liability, if any, and so as to avoid unnecessary delay in the adjudication of the claim by the compensation commissioner. The statutory scheme contemplates, therefore, that the employer will have, upon receipt of the claim, the opportunity for such an investigation. Unless the claim itself was presented in a timely fashion the employer is deprived of that opportunity. A statute must be construed by reference to its history and purpose. See Shelby Mutual Ins. Co. v. Della Ghelfa, supra, 437-38. The history and purpose of § 31-297 (b) compel the conclusion that the timeliness of the employee’s claim is essential to the operation of the preclusion provision.

Indeed, the facts of this case vividly demonstrate the necessity for this conclusion. The plaintiff gave written notice in 1983 of an alleged work-related heart attack eight years earlier in 1975, followed by heart surgery in 1983. We can hardly say that an employer and insurer in the defendants’ positions would within twenty days likely be able to investigate such a late claim thoroughly and respond to it with specificity.

There is error, the order of the compensation review division dismissing the defendants’ appeal is set aside, and the case is remanded to the compensation review division with direction to sustain the defendants’ appeal and to deny the plaintiff’s motion to preclude.

In this opinion the other judges concurred.


text:
    Alexandra Manndorff v. Maria Anna Dax
    (5287)
    Borden, Bieluch and O’Connell, Js.
    Argued November 10, 1987 —
    decision released January 19, 1988

      Philip H. Bartels, with whom, on the brief, was Vincent P. Adley, for the appellant (plaintiff).

      Frederic S. Ury, with whom, on the brief, was Katherine Eisold, for the appellee (defendant).
   Borden, J.

The plaintiff brought this action seeking a judicial declaration that the marriage between the defendant and the plaintiff’s deceased husband was invalid. The trial court dismissed the action for lack of subject matter jurisdiction. The sole issue presented by this appeal is whether either party to such an action must be a domiciliary of this state in order for the trial court to have subject matter jurisdiction. Because we determine that the plaintiff’s action seeks a declaratory judgment, and not an annulment, we conclude that the plaintiff’s domicile is immaterial to the question of subject matter jurisdiction. Therefore, we find error.

The essential facts are undisputed. In 1946, the plaintiff and Anthony M. Manndorff (hereinafter husband) were married in Hungary. In 1952, the plaintiff and her husband moved to New York, where they lived until 1967, when they moved to Brazil.

On March 12, 1970, the husband obtained a divorce from the plaintiff in Mexico, without giving her any notice of his action. On May 12,1970, the husband married the defendant in Greenwich, Connecticut. The husband and the defendant returned to Brazil, where they and the plaintiff continued to reside. In 1974, the plaintiff obtained a declaration from the Mexican courts that the earlier Mexican divorce decree was invalid.

In 1978, the husband died in Brazil. At that time, the plaintiff, the defendant and the husband had all been residents of Brazil since 1970.

In 1984, the plaintiff instituted the present action. Service was made upon the defendant by an order of notice. The defendant appeared and filed a motion to dismiss on the ground that the court lacked jurisdiction over the person and subject matter. The court, McGrath, J., denied that motion.

At trial, by way of special defense, the defendant renewed her claims of lack of jurisdiction. The court, Novack, J., found that the plaintiff failed to sustain her burden of proving that she is a domiciliary of Connecticut; rather, the court found, she is a domiciliary of Brazil who visits Connecticut for the purpose of attempting to invalidate her husband’s second marriage. Because neither party is a domiciliary of Connecticut, the court dismissed the case for lack of jurisdiction. This appeal followed.

General Statutes § 52-29 and the related Practice Book provisions, §§ 388 through 394, empower the Superior Court “in any action or proceeding [to] declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed.” General Statutes § 52-29. Subject matter jurisdiction in a declaratory judgment action does not require that any party be a domiciliary of this state.

Similarly, General Statutes §§ 46b-40 and 46b-42 give broad authority to the Superior Court to grant an annulment of a marriage. Although the annulment statutes do not specifically say so, the parties agree, as do we, that there is an additional requirement with respect to subject matter jurisdiction over annulment actions. At least one party must be domiciled in Connecticut. Perlstein v. Perlstein, 152 Conn. 152, 155, 204 A.2d 909 (1964); 4 Am. Jur. 2d, Annulment of Marriage §60.

The proposition that “[sjubject matter jurisdiction is the power to hear and determine cases of the general class to which the proceedings in question belong”; England v. Coventry, 183 Conn. 362, 364, 439 A.2d 372 (1981); only restates the question to be answered by this appeal. We must determine to which general class of proceedings this case belongs — a declaratory judgment action or an annulment action. If it is a declaratory judgment action, domicile is unnecessary for the court’s subject matter jurisdiction. If, however, it is an annulment action, domicile of one party is necessary to such jurisdiction.

By her complaint, the plaintiff seeks “a judgment of [the Superior] Court declaring the marriage of Anthony M. Manndorff and Maria Anna Dax invalid.” The plaintiff claims that the trial court erred by treating the plaintiff’s action as an annulment action rather than a declaratory judgment action. We agree. Although in some contexts the difference between a judgment only declaring the invalidity of a marriage — a declaratory judgment — and a judgment invalidating a marriage— an annulment — may be elusive, under the circumstances presented by this case we conclude that the plaintiff seeks only declaratory relief and cannot be understood to seek a judgment of annulment.

First, it is not determinative that the court was asked to conclude that the marriage was invalid. Our cases make clear that a court may be required to pass upon the validity of a marriage in the course of rendering a judgment in another action. See, e.g., Eva v. Gough, 93 Conn. 38, 104 A. 238 (1918) (appeal from probate court regarding appointment of administrator of estate); Roxbury v. Bridgewater, 85 Conn. 196, 82 A. 193 (1912) (action to recover expenses incurred in support of pauper); Erwin v. English, 61 Conn. 502, 23 A. 753 (1892) (action to obtain possession of land); see also Metropolitan Life Ins. Co. v. Manning, 568 F.2d 922 (2d Cir. 1977) (interpleader action to determine beneficiary of life insurance policy). It is true that this case is less clear because, unlike those cases, the sole relief sought is a declaration of the invalidity of the marriage. Nonetheless, those cases do recognize that a judicial determination regarding the validity of a marriage does not alone turn another form of action into an annulment action.

Second, in this case the husband is no longer living. Neither party was his wife at the commencement of this action; his marriage to the plaintiff or the defendant, if we assume one to be his lawful widow, ended upon his death. At the commencement of this action, therefore, the marital status of both the plaintiff and the defendant with respect to the husband no longer existed.

Accordingly, the present action, unlike an annulment action, does not ask the court to act upon or affect either party’s marital status with respect to the husband; the plaintiff does not, and cannot, seek to have the defendant’s marriage to the husband invalidated. Rather than seeking a change in the status of the defendant’s marriage to the husband, the plaintiff seeks a declaration of the invalidity of that marriage when it was contracted and as it may have existed in the past as a basis for determining the status of the parties upon his death. As such, the present action is more properly viewed as a declaratory judgment action.

This conclusion is buttressed by the general proposition that a stranger to a marriage may not maintain or intervene in an action affecting marital status, and by our recent holding in Livsey v. Livsey, 11 Conn. App. 43, 525 A.2d 546 (1987). Although interested in the defendant’s marriage to the husband, the plaintiff, as a nonparty to that marriage, had no right to maintain an action for its annulment. 4 Am. Jur. 2d, Annulment of Marriage § 71; 55 C.J.S., Marriage § 54. Similarly, in Livsey v. Livsey, supra, we recognized that a non-spouse was not entitled to participate in an action for dissolution of marriage; instead, we concluded that an intervening defendant’s claims for relief were “more properly addressed . . . in a separate action.” Where the invalidity of a marriage is the subject of a claim for relief by a nonparty to the marriage, an action seeking a declaration of the invalidity of the marriage pursuant to General Statutes § 52-29 is precisely the kind of “separate action” contemplated by Livsey.

There is error, the judgment of dismissal is set aside and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       The trial court in its memorandum of decision dismissing the action referred to a “lack of in personam jurisdiction.” The matter of the plaintiffs domicile, however, which the trial court found to be dispositive, could only have related to subject matter jurisdiction. Therefore, we treat the court’s determination as one of lack of subject matter jurisdiction over this action.

       Although the defendant, in her motion to dismiss and in her subsequent special defense, asserted lack of personal jurisdiction as well as lack of subject matter jurisdiction, it does not appear clearly from the record that she challenged the trial court’s personal jurisdiction over her resulting from the substituted service by order of notice. In any event, she has not presented such a claim to this court as an alternate ground on which to sustain the trial court’s judgment. See Practice Book §§ 4013 (a) (1) and 4066 (a). We therefore conclude that the trial court had personal jurisdiction over the defendant.

       The plaintiff attacks the court's finding regarding her domicile. The court’s finding is adequately supported by the record. Thus, the plaintiffs claim in this regard is without merit. Lawlor v. Searles, 12 Conn. App. 511, 513, 531 A.2d 607 (1987).

       In Perlstein v. Perlstein, 152 Conn. 152, 204 A.2d 909 (1964), our Supreme Court limited the prior decision of Mazzei v. Cantales, 142 Conn. 173, 112 A.2d 205 (1955), to the following holding: “ ‘Where both parties to an action for annulment of a void marriage are nonresidents and the defendant is not served with process within this state or does not appear and submit to the jurisdiction of the . . . [cjourt, the fact that the marriage was performed within this state does not empower the court to obtain jurisdiction over the defendant by constructive service and to render a judgment annulling the marriage.’ ” (Emphasis added.) Perlstein v. Perlstein, supra, 161, quoting Mazzei v. Cantales, supra, 179. Mazzei does not control this case because (1) we conclude that this is not an annulment action, and (2) the defendant here has appeared and submitted to the jurisdiction of the court. See footnote 2, supra.