author: Dupont, C. J. O’Connell, J.,

text:
    Theodore E. Griffin v. Claude L. Parker
    (8017)
    Dupont, C. J., O’Connell and Lavery, Js.

      Argued December 5, 1989
    decision released July 12, 1990

      Louis S. Avitabile, for the appellant (defendant).

      Joseph Procopio, for the appellee (plaintiff).
   Dupont, C. J.

The plaintiff initiated this civil action to recover damages for personal injuries sustained as the result of being shot by the defendant. The same shooting incident led to a prior judgment of conviction of assault in the first degree, in violation of General Statutes §§ 53a-59 (a) (1) and 53a-59 (a) (3). On the basis of the prior criminal conviction, the trial court granted summary judgment for the plaintiff. A hearing in damages was subsequently held and the plaintiff was awarded damages in the amount of $475,000.

The defendant claims on appeal that the trial court should not have granted the plaintiff’s motion for summary judgment because (1) the documentation accompanying the plaintiffs motion failed to address and resolve all the factual issues raised by the pleadings, (2) the doctrine of collateral estoppel cannot be applied because the facts and issues litigated and determined in the prior criminal action were not identical to those raised in the later civil action, and (3) offensive collateral estoppel cannot be used by the plaintiff to obtain a summary judgment because he was not a party or in privity with a party in the prior criminal action.

The defendant’s claim that the plaintiff’s documentation failed to address and resolve all the factual issues raised by the pleadings centers on whether any factual circumstances existed that would result in the barring of the plaintiff’s action because of the two year statute of limitations on personal injury actions. See General Statutes § 52-584. The plaintiff’s complaint contains alternative allegations that the act complained of was both reckless and intentional. The defendant’s special defense to the claim of the reckless infliction of injury was that the statute of limitations had run, thereby barring the plaintiff’s action. In order to address the statute of limitations question, it is necessary to review the procedural history in some detail.

The defendant did not appeal from the criminal conviction upon which the summary judgment was based. He was convicted of violating General Statutes §§ 53a-59 (a) (1) and 53a-59 (a) (3). Section 53a-59 (a) (1) is based on the intentional infliction of serious physical injury by means of a deadly weapon or dangerous instrument, while § 53a-59 (a) (3) is based on recklessly engaging “in conduct which creates a risk of death” and causes “serious physical injury,” where “the circumstances evince an extreme indifference to human life.”

The briefs of the parties reflect some confusion as to whether the defendant was actually charged and convicted under both subdivisions of the statute, under one subdivision or under the statute generally, without reference to either subdivision. The substitute information, however, establishes that he was, in fact, charged under both subdivisions, and the transcript of the criminal trial proceedings also indicates that he was convicted under both subdivisions. The criminal docket sheet, which was before the trial court in the civil case at the time of the summary judgment motion, reflects that the conviction was under both subdivisions (a) (1) and (a) (3).

At the close of the criminal trial, the defendant asked that the jury be polled to determine under which subdivision it found the defendant guilty. The court refused to conduct a poll. The defendant failed to challenge either that ruling or the conviction itself. Had he believed that the evidence presented at trial was insufficient to support his conviction on either reckless or intentional assault, the defendant could have appealed from the judgment of conviction, claiming that it could not have been upheld because there were two alternative methods of violating the statute, and that the evidence was insufficient to convict on each of the alternative methods. See State v. Arnold, 201 Conn. 276, 281, 514 A.2d 330 (1986); State v. Ostalaza, 20 Conn. App. 40, 50, 564 A.2d 324 (1989). By choosing not to appeal, the defendant effectively accepted the judgment of conviction that had been rendered on the basis of both reckless and intentional assault.

Although the criminal docket sheet reflects a conviction on both subdivisions of the statute, the parties agree that the trial court requested that the mittimus reflect only the conviction for reckless assault. This fact, however, has only to do with incarceration and does not, as the defendant implies, affect the statutory basis of the conviction. The defendant’s argument, that a suit for personal injury based on the conviction for reckless assault was barred by the statute of limitations, is irrelevant because a claim based on the conviction for intentional assault was, in any case, not barred.

When a motion for summary judgment is made, the movant must show an entitlement to judgment as a matter of law and that no material issue of fact, that is, one that would make a difference in the outcome, remains to be resolved at trial. If this cannot be shown, the motion must be denied. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578-79, 573 A.2d 699 (1990); Genco v. Connecticut Light & Power Co., 7 Conn. App. 164, 167, 508 A.2d 58 (1986). We conclude that the court was not prevented from granting summary judgment for the plaintiff because of the period of limitations of General Statutes § 52-584. This is so because the allegations of the plaintiff’s complaint included a cause of action for intentional assault, based on the prior criminal conviction under § 53a-59 (a) (1). Unless lack of mutuality prevents that conviction from being used under the doctrine of collateral estoppel, summary judgment would be proper.

The defendant argues that the doctrine of collateral estoppel, based on his conviction of first degree assault in the prior criminal action, is not available to the plaintiff because the plaintiff was neither a party to nor in privity with a party to the earlier criminal action and because the facts and issues here are not identical to those in the criminal case. He claims that, for a plaintiff to use the principle of collateral estoppel to resolve an issue, “mutuality of the parties” as well as identity of facts and issues in the two actions must be present.

“Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit.” Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 402, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989). The purposes underlying the doctrine of collateral estoppel are to protect the finality of judicial determinations, and to conserve time and judicial resources. Id. Historically, in order for collateral estoppel to apply, the adversaries in the second action must have been party adversaries in the first action. Parklane Hosiery Co. v. Shore, 439 U.S. 323, 326-27, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979). A frequently cited and basic reason for this mutuality requirement is to assure that the party against whom estoppel is to be used has had an opportunity fully and fairly to litigate the issue in the first action. Ashe v. Swenson, 397 U. S. 436, 444, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1969); State v. Fritz, 204 Conn. 156, 173, 527 A.2d 1157 (1987); Gionfriddo v. Gartenhaus Cafe, supra. The doctrine of collateral estoppel differs from res judicata in that the latter involves claim preclusion, and the former, issue preclusion. The effect of requiring mutuality is to limit the scope of collateral estoppel so that neither party in a second action can use a prior judgment for estoppel purposes against the other unless both were adversaries in the first case and bound by that prior action.

Numerous federal and state courts have abandoned the automatic requirement of mutuality. United Banana Co. v. United Fruit Co., 172 F. Sup. 580, 588 (D. Conn. 1959); Bernhard v. Bank of America, 19 Cal. 2d 807, 813, 122 P.2d 892 (1942); Read v. Sacco, 49 App. Div. 2d 471, 473, 375 N.Y.S.2d 371 (1975). Moreover, one prime authority on which the mutuality requirement in successive civil cases was based, namely, Restatement, Judgments § 82, was revised in Restatement (Second), Judgments § 38, to abandon that requirement. The revised section provides as follows: “Parties who are not adversaries to each other under the pleadings in an action involving them and a third party are bound by and entitled to the benefits of issue preclusion with respect to issues they actually litigate fully and fairly as adversaries to each other and which are essential to the judgment rendered.”

Furthermore, a provision has been added in Restatement (Second), Judgments, that had no counterpart in the prior Restatement. That provision is found in § 85, entitled “Effect of Criminal Judgment in Subsequent Civil Action,” and provides in relevant part: “With respect to issues determined in a criminal prosecution: . . . (2) A judgment in favor of the prosecuting authority is preclusive in favor of a third person in a civil action: (a) Against the defendant in the criminal prosecution as stated in § 29.” Thus, § 85 allows a party to use a prior criminal conviction offensively against a defendant in a subsequent civil case.

The Connecticut Supreme Court has not yet resolved whether the application of collateral estoppel requires the mutuality of parties in all civil cases, or if, indeed, the requirement has any force in a criminal context. We need not, therefore, in the resolution of this case, disturb any existing Supreme Court precedent.

It is obvious that in every criminal trial, the defendant is present or had the opportunity to be present to litigate the issue of whether he or she engaged in the acts comprising the elements of the charged offense beyond a reasonable doubt. It is equally obvious that the state will not ordinarily be a party in a subsequent civil action in which the criminal defendant is a party. If mutuality is an immutable requirement, no third party could ever use the prior criminal conviction against the same defendant in a subsequent civil trial, whether that defendant is a plaintiff or a defendant in the second trial.

In Gionfriddo v. Gartenhaus Cafe, 211 Conn. 67, 557 A.2d 540 (1989), which involved two successive civil cases, the Connecticut Supreme Court left open the question of whether it would continue “to adhere to the doctrine of mutuality of estoppel or whether [it] should approve of the use of defensive collateral estoppel in . . . any case.” Id., 71. If the doctrine of mutuality exists today in Connecticut, it exists only in successive civil cases, and in a criminal case preceded by a civil case. If the doctrine still exists in such cases, its present basis is Brockett v. Jensen, 154 Conn. 328, 225 A.2d 190 (1966). That case relied on § 82 of the Restatement of Judgments, which has since been revised to eliminate the requirement of mutuality. Restatement (Second), Judgments § 38. Brockett held that the plaintiff in a civil case, not present in a prior civil case, was not bound by a judicial determination made in that prior case, and, therefore, that the defendant in the second civil case could not use the prior determination as a special defense in the second case to bar the plaintiff’s recovery. Brockett also held that a party who was present as a party in both cases could not relitigate an issue resolved in the first case if that party was in an adversarial relationship with the party seeking, in the second action, to assert the preclusion.

In Brockett, the party against whom the issue was to be used was not involved in the first case and, therefore, had no opportunity to litigate the question. The other party was involved in the first case but had not litigated the question in an adversarial capacity. Brockett has more to do with the principle that parties cannot be bound by a judicial proceeding in which they did not or could not fully and fairly litigate the particular issue than it does with the principle of mutuality. The case does not hold that a party in a second action who was an adversarial party in a prior judicial proceeding is not bound by an issue determined in the first action, nor does it hold that the use of collateral estoppel, whether offensive or defensive, requires mutuality.

“No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound it is difficult to comprehend.” Bernhard v. Bank of America, supra, 812. The same line of reasoning would apply to both the offensive and defensive use of the doctrine.

Brockett does not consider or resolve the question of whether the doctrine of mutuality applies in those instances in which a criminal case is followed by a civil case against a defendant convicted in the prior criminal case. In the present action, the plaintiff used collateral estoppel offensively in order to obtain a summary judgment. He did so, however, unlike the defendant in Brockett, in a civil case against a party previously convicted in a criminal action.

The defendant here relies on three cases to support his view that, under Connecticut law, the doctrine of collateral estoppel cannot be applied.

In Page v. Phelps, 108 Conn. 572, 588, 143 A. 890 (1928), an appellant offered into evidence copies of court records showing a testator’s criminal convictions for operating an automobile under the influence of alcohol in order to establish the testator's susceptibility to undue influence in an action contesting a will. This 1928 case preceded the current strong trend toward abandoning the mutuality requirement and does not involve either collateral estoppel or the mutuality requirement, but an evidentiary question. The criminal conviction sought to be introduced as evidence was not that of a party in the second case and did not concern an incident common to both cases. In the present case, the criminal conviction sprang from the identical incident that is the cause of action of the second case and the defendant was clearly an adversarial party in both cases.

In McKenna v. Whipple, 97 Conn. 695, 701, 118 A. 40 (1922), the court did not allow the introduction into evidence of a judgment of acquittal in a prior criminal case to prove that the plaintiff in the subsequent civil case, the defendant in the earlier action, was not intoxicated. The issue of the subsequent civil case was whether, by a fair preponderance of the evidence, the defendant was intoxicated. The issue in the criminal case was whether, beyond a reasonable doubt, the defendant was intoxicated. Failure to prove the latter does not preclude proof of the former. See Palma v. Powers, 295 F. Sup. 924 (N.D. Ill. 1969).

The third case cited by the defendant, Heating Acceptance Corporation v. Patterson,. 152 Conn. 467, 208 A.2d 341 (1965), was an action on a promissory note in which the defendant objected to being questioned on cross-examination about whether she had been convicted, on several occasions, of the crimes of keeping liquor with intent to sell and selling liquor without a permit. The convictions were declared inadmissible under General Statutes § 52-145. Their introduction was sought for the limited purpose of impeaching the credibility of the defendant. The evidence of the convictions was totally unrelated either to the doctrine of mutuality or to collateral estoppel. The purpose of the offer of the evidence was completely unconnected to the issue of the civil case, namely, whether the plaintiff was entitled to payment of the promissory note and whether the plaintiff was a holder in due course of the note.

A judgment of conviction in a criminal case following a plea of guilty is admissible as an admission in a subsequent civil case. State v. Ramsundar, 204 Conn. 4, 16, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 5. Ct. 348, 98 L. Ed. 2d 377 (1987); Graham v. Wilkins, 145 Conn. 34, 40, 138 A.2d 705 (1958); see also Fitzhugh v. Bushnell, 118 Conn. 677, 680, 174 A. 80 (1934); Zenuk v. Johnson, 114 Conn. 383, 388, 158 A.2d 910 (1932). It is difficult to discern any meaningful distinction between the use in a subsequent civil case of a plea of guilty in a prior criminal case and the same use of a conviction of guilty, after a trial, in a criminal case.

The entitlement of the plaintiff to use the defendant’s prior conviction of assault affirmatively to prove the assault in a subsequent civil case involving the same incident, has not yet been resolved in Connecticut. Cases from other jurisdictions have held that such an affirmative use is compatible with the principles of collateral estoppel and that the classic requirement of mutuality of parties is unnecessary and, in fact, impossible where a civil case follows the criminal conviction. In Read v. Sacco, supra, the plaintiff sued in a civil case to recover damages for injuries he suffered as a result of an assault and battery, of which a jury had previously found the defendant guilty. The plaintiff moved for summary judgment, which was granted on the basis that the material issues had been litigated and determined in the prior criminal action. The court held that, despite lack of mutuality, the conviction was conclusive as to the same facts necessarily implicated in the subsequent civil litigation if a full and fair opportunity to contest the issues had existed in the criminal proceeding. The court also concluded that fairness under all the circumstances is the “crowning consideration” and that neither mutuality nor the distinction between offensive and defensive use of collateral estoppel is controlling. Jurisdictions other than New York have held in accordance with Read. Compton v. Ide, 732 F.2d 1429 (9th Cir. 1984); Wolfson v. Baker, 623 F.2d 1074 (5th Cir. 1980); Cardillo v. Zyla, 486 F.2d 473 (1st Cir. 1973); Hardin v. Aetna Casualty & Surety, 384 F.2d 718 (5th Cir. 1967); Erie Ins. Co. v. Belcher, 718 F. Sup. 475 (S.D. W. Va. 1989); Palma v. Powers, supra; Newman v. Larsen, 225 Cal. App. 2d 22, 36 Cal. Rptr. 883 (1964); District of Columbia v. Peters, 527 A.2d 1269 (D.C. 1987); Ross v. Lawson, 395 A.2d 54 (D.C. 1978); Ideal Mutual Ins. Co. v. Winker, 319 N.W.2d 289 (Iowa 1982) ; Hanover Ins. Co. v. Hayward, 464 A.2d 156 (Me. 1983) ; Aetna Casualty v. Niziolek, 481 N.E.2d 1356 (Mass. 1985); Aetna Life & Casualty Co. v. Johnson, 673 P.2d 1277 (Mont. 1984); Hopps v. Utica Mutual Ins. Co., 127 N.H. 508, 506 A.2d 294 (1985); New Jersey Manufacturers Ins. Co. v. Brower, 161 N. J. Super. 293, 391 A.2d 923 (1978); Gilberg v. Barbieri, 53 N.Y.2d 285, 423 N.E.2d 807, 441 N.Y.S.2d 49 (1981); Casey v. Northwestern Security Ins. Co., 260 Or. 485, 491 P.2d 208 (1971).

Several recent Connecticut cases indicate that the absence of mutuality of the parties in a criminal case is not determinative of whether the doctrine of collateral estoppel can be applied. See Virgo v. Lyons, 209 Conn. 497, 501-502, 551 A.2d 1243 (1988); State v. Fritz, 204 Conn. 156, 172-73, 527 A.2d 1157 (1987); Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 363-65, 511 A.2d 333 (1986). State v. Fritz, supra, implies that the use of collateral estoppel does not require that the parties in two successive actions, an administrative proceeding followed by a criminal prosecution, be the same if the party against whom the collateral estoppel is being asserted, or one in privity with that party, was adequately represented in the first proceeding.

In the case before us, the facts to be proved, an intentional assault by the defendant, causing serious injuries to the plaintiff, were already proved beyond a reasonable doubt in the prior criminal action. A full and fair opportunity to contest those facts has already been given to the defendant. He was represented by counsel in the criminal action and did not appeal from the judgment of conviction.

We conclude that “[a] prior conviction estops a party in a later civil suit from contesting facts necessarily established in the criminal proceeding.” Compton v. Ide, supra, 1434. Symmetry of the parties in the two cases is not controlling. Fairness is. If the defendant did not appeal from his criminal conviction, it would ordinarily not be unfair to prevent him from relitigating, in a subsequent civil action, the precise issue determined by a higher standard of proof in the prior criminal action. Erie Ins. Co. v. Belcher, supra.

The judgment is affirmed.

In this opinion Lavery, J., concurred.

O’Connell, J.,

dissenting. I disagree with the majority’s abandonment of the mutuality requirement of the collateral estoppel rule. I am especially concerned that, despite long standing precedent, the défendant’s criminal conviction can be used conclusively to resolve subsequent civil litigation. See State v. Bradnack, 69 Conn. 212, 215, 37 A. 492 (1897); Betts v. New Hartford, 25 Conn. 180, 185 (1856) (criminal convictions inadmissible in civil cases to prove acts alleged).

The current rule, as clearly stated by our Supreme Court, is that “[tjhere can be no collateral estoppel . . . unless the parties were, in fact, adversaries on the issue in question. The rule has been well stated in these words: ‘[t]he rendition of a judgment in an action does not conclude parties to the action who are not adversaries under the pleadings as to their rights inter se upon matters which they did not litigate, or have an opportunity to litigate, between themselves.” Restatement, Judgments § 82.” (Emphasis added.) Brockett v. Jensen, 154 Conn. 328, 338, 225 A.2d 190 (1966).

“A criminal prosecution is a proceeding instituted by the state to obtain punishment against a person charged with and found guilty of a public offense.” (Emphasis added.) State v. Parker, 194 Conn. 650, 653, 485 A.2d 139 (1984). The fundamental equation is “[t]he state prosecutes and the accused defends.” State v. Figueroa, 22 Conn. App. 73, 80, 576 A.2d 553 (1990) (Lavery, J., dissenting). A victim clearly is not a party to a criminal prosecution and thus cannot be the defendant’s adversary in such a proceeding.

The modifications to the Restatement relied on by the majority do not change the state of our law which remains as set forth in Brockett v. Jensen, supra. This court cannot reexamine or reevaluate Supreme Court precedent. Whether a Supreme Court holding and subsequent cases should be reevaluated and possibly discarded is not for this court to decide. Board of Education v. Bridgeport Education Assn., 9 Conn. App. 199, 203, 518 A.2d 394 (1986). Consequently, I feel that we are bound by the law as it now stands. “As a general rule, judgments in criminal cases are not admissible in civil proceedings to prove the acts charged.” Heating Acceptance Corp. v. Patterson, 152 Conn. 467, 472, 208 A.2d 341 (1965); Page v. Phelps, 108 Conn. 572, 588, 143 A. 890 (1928); McKenna v. Whipple, 97 Conn. 695, 701, 118 A. 40 (1922).

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

Accordingly, I respectfully dissent.

       The transcript of the proceedings in the criminal trial indicates that, following the deliberations of the jury, the clerk asked the jury foreperson: “As to the second count of assault in the first degree in violation of Section 53a-59 Subsection (a) Subsection (1) and 53a-59 Subsection (a) Subsection (3), is the defendant guilty of is he not guilty?” (Emphasis added.) The foreperson responded: “Guilty.”

       Restatement (Second), Judgments § 29 provides: “Issue Preclusion in Subsequent Litigation with Others
      “A party precluded from relitigating an issue with an opposing party, in accordance with §§ 27 and 28, [‘Issue Preclusion—General Rule’ and ‘Exceptions to the General Rule of Issue Preclusion’ respectively] is also precluded from doing so with another person unless the fact that he lacked full and fair opportunity to litigate the issue in the first action or other circumstances justify affording him an opportunity to relitigate the issue. The circumstances to which considerations should be given include those enumerated in § 28 and also whether:
      “(1) Treating the issue as conclusively determined would be incompatible with an applicable scheme of administering the remedies in the actions involved;
      “(2) The forum in the second action affords the party against whom preclusion is asserted procedural opportunities in the presentation and determination of the issue that were not available in the first action and could likely result in the issue being differently determined;
      “(3) The person seeking to invoke favorable preclusion, or to avoid unfavorable preclusion, could have effected joinder in the first action between himself and his present adversary;
      “(4) The determination relied on as preclusive was itself inconsistent with another determination of the same issue;

        “(5) The prior determination may have been affected by relationships among the parties to the first action that are not present in the subsequent action, or apparently was based on a compromise verdict or finding;
      “(6) Treating the issue as conclusively determined may complicate determination of issues in the subsequent action or prejudice the interests of another party thereto;
      “(7) The issue is one of law and treating it as conclusively determined would inappropriately foreclose opportunity for obtaining reconsideration of the legal rule upon which it was based;
      “(8) Other compelling circumstances make it appropriate that the party be permitted to relitigate the issue.”

         In State v. Bradnack, 69 Conn. 212, 215, 37 A. 492 (1897), the court held that a judgment in a prior civil action was not admissible in a subsequent criminal action to prove the same question because the measure of proof in the prior civil action was not as high as in the subsequent criminal action. The case, therefore, does not decide the issue of the present case.

       Minor prior criminal convictions after a court trial, such as traffic convictions or a conviction for placing an obstruction in a highway, are illustrative of a type of conviction that casts doubt on the full and fair opportunity to litigate the charge underlying the convictions. Betts v. New Hartford, 25 Conn. 180 (1856); Gilberg v. Balbieri, 53 N.Y.2d 285, 423 N.E.2d 807, 441 N.Y.S.2d 49 (1981). The rationale of such cases is that the relative insignificance of the charge may not motivate the defendant to litigate the criminal issue thoroughly.

        State v. Fritz, 204 Conn. 156, 527 A.2d 1157 (1987), appears to weaken the holding in State v. Bradnack, 69 Conn. 212, 37 A. 492 (1897).


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    Dean Martin et al. v. Bristol Associates
    (8717)
    Foti, Lavery and Landau, Js.
    Argued June 5
    decision released August 14, 1990

      Richard W. Gifford, with whom, on the brief, was Kimberly Peterson-Staggs, for the appellants (plaintiffs).

      Jon S. Berk, for the appellee (defendant).
   Landau, J.

The plaintiffs appeal from the trial court’s granting of the defendant’s motion for summary judgment on the basis that they had failed to bring their action within the one year limitation period pursuant to either General Statutes §§ 52-592 or 52-593. They claim that their action was timely filed, and, therefore, the defendant’s motion should have been denied. We affirm the trial court’s decision.

The plaintiffs commenced a series of three negligence actions against various entities, all of which were named Bristol Associates. The dispositive fact is that the third action was brought more than one year after termination of the second action.

General Statutes § 52-592 (a) permits a plaintiff, under certain circumstances, to commence a new action within one year after the determination of the original action. General Statutes § 52-593 (a) permits a plaintiff to bring a new action, regardless of the statute of limitations, if service of process in the new action is made within one year after the termination of the original action. Both statutes clearly require that the new action be commenced within one year after the determination or termination of the original action. Even if we were to assume that the plaintiffs’ second action was the “original” action or a continuation of the original action, they nevertheless failed to commence their third action within the one year period set forth under both General Statutes §§ 52-592 and 52-593.

The plaintiffs’ second action was terminated on June 17, 1988. The third action was commenced pursuant to General Statutes § 52-45a on June 27,1989, the date on which the defendant’s agent received service of process. Therefore, the plaintiffs failed to file their action timely under either statute.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are the named plaintiff, William Robbins and Edwin Bartis.

       General Statutes § 52-592 (a) provides in pertinent part that “[i]f any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

       General Statutes § 52-593 (a) provides in pertinent part that “[wjhen a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action.”

       General Statutes § 52-45a provides in pertinent part that: “[cjivil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day and the date and place for the filing of an appearance. The writ shall be accompanied by the plaintiffs complaint.”

       We need not, therefore, reach the issue of which statute controls under these circumstances.


author: O'Connell, J. Lavery, J.,

text:
    Gregory Marciano v. William Piel et al.
    (7648)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued December 6, 1989
    decision released August 21, 1990

      Ridgely W. Brown, with whom, on the brief, was Bracken C. O’Neill, for the appellants (defendants).

      Neil R. Marcus, for the appellee (plaintiff).
   O'Connell, J.

The defendants appeal from the judgment of mandamus compelling the defendants, Helen Bray, the zoning enforcement officer of the town of Sherman, and William Piel, the chairman of the Sherman planning and zoning commission, to issue a zoning permit to the plaintiff. The plaintiff had sought the permit in order to construct a house on property he owned in Sherman. When his application was denied, the plaintiff filed this action seeking a mandamus. The dispositive question on appeal is whether the trial court should have proceeded to judgment in the absence of any pleadings other than a complaint. We conclude that it should not have done so, and, accordingly, we reverse.

An action for mandamus is a lawsuit like any other lawsuit. See Knibbs v. Knibbs Construction, Inc., 25 Conn. Sup. 253, 255, 202 A.2d 248 (1964). Practice Book § 542 requires that a mandamus action commence with service of a writ and complaint as in other civil actions, and Practice Book § 545, with an exception discussed infra, provides for the filing of the full panoply of pleadings available in any other civil action until the issues are joined. In addition, case law has long dictated that the general rules of pleading apply in a mandamus proceeding. See Brainard v. Staub, 61 Conn. 570, 575, 24 A. 1040 (1892).

In the present case, the defendants were served with the complaint on October 20,1988, and the trial commenced twelve days later on October 31. The defendants were given no opportunity to file motions addressed to the complaint, motions for disclosure and production, an answer, special defenses or any of the other pleadings allowed in our civil practice. Moreover, the summary fashion in which these defendants were placed on trial completely emasculates the orderly procedure for claiming cases for trial set out in Practice Book §§ 252 through 261.

Mandamus actions clearly come within the scope of these rules. For example, § 259 includes a mandamus action among those matters privileged in respect to assignment for trial. It is thirteenth in priority on the list of twenty categories of privileged cases. If the pleadings are not closed, a case may not even be placed on the trial list, let alone be brought to trial. Wooding v. Zasciurinskas, 14 Conn. App. 164, 166, 540 A.2d 93 (1988).

Practice Book § 543 provides that an application for mandamus may be made in a pending action. Practice Book § 545 establishes an exception to § 543. Section 545 provides that “where an application for an order [in the nature of mandamus] is made in aid of a pending action, the extent to which and the time in which the respondent may plead shall be as directed by the court.” (Emphasis added.) This partial relaxation of the pleading rules is clearly not applicable in the present case where there is neither an allegation nor a finding that the proceeding is in aid of a pending action.

The plaintiff argues that his complaint sufficiently apprises the court of the facts necessary for the matter to be heard. This self-serving representation ignores the simple fact that “[i]t is impossible to determine what issues are decisive of the merits without benefit of an answer, and perhaps further pleadings such as special defenses and replies thereto.” Wooding v. Zasciurinskas, supra. “Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them.” Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952). Proceeding to trial and final judgment in the total absence of pleading is a procedure unknown to our law. See Doublewal Corporation v. Toffolon, 195 Conn. 384, 390-91, 488 A.2d 444 (1985).

Finally, we are satisfied that the defendants properly brought their arguments regarding the state of the pleadings to the trial court’s attention during the course of the trial and in their posttrial brief, thereby satisfying Practice Book § 285A. Even if this claim had not been raised in any manner in the trial court, that court’s proceeding in the absence of pleadings is such a radical departure from our rules of practice that we would consider it plain error under Practice Book § 4185.®

In view of our disposition of this issue, we do not reach the other questions raised on appeal, because it is not known whether the same issues will arise on retrial. We cannot forecast the nature of the pleadings that will be filed. Thus, we cannot speculate as to the issues of fact and law that may be raised when the pleadings are closed and the issues joined. Wooding v. Zasciurinskas, supra.

We turn now to the question of the proper disposition of this appeal. The complaint was apparently served without an accompanying writ. Consequently, the file does not contain the type of recognizance mandated by Practice Book § 542. We could dismiss the case, which would require that an entirely new action be instituted. However, “ ‘[t]he public’s interest in avoiding unnecessary litigation and conserving scarce judicial resources is too powerful a factor to ignore.’ ” Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 68, 504 A.2d 1376, cert. denied, 199 Conn. 807, 808, 508 A.2d 769 (1986). Accordingly, we elect to exercise our general supervisory powers under Practice Book § 4183, and remand the case to the trial court with instruction that the plaintiff file an appropriate recognizance. The parties may then continue with the normal course of pleadings until the issues are joined and a trial on the merits is possible.

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

In this opinion Dupont, C. J., concurred.

Lavery, J.,

concurring. The defendants appeal from the judgment of mandamus compelling the defendants, Helen Bray, the zoning enforcement officer of the town of Sherman, and William Piel, the chairman of the Sherman planning and zoning commission, to issue a zoning permit to the plaintiff. The defendants claim that the trial court should not have (1) found that the plaintiff had a clear and positive right to the zoning permit or issued the mandamus order, (2) refused to dismiss the case for want of subject matter jurisdiction due to the plaintiff’s alleged failure to exhaust administrative remedies, (3) proceeded to judgment before the pleadings were closed, and (4) issued an order of mandamus without a full administrative record. The majority found the third issue dispositive of the case.

The plaintiff owns five separate parcels of land on Skyline Drive, a private roadway in the Candlewood Lake Estates development in Sherman. The lots contain approximately six acres of land. Lots fourteen and fifteen are on the west, lower side of Skyline Drive and lots eighty-six, eighty-seven, and eighty-eight are on the east, higher side of Skyline Drive. The lots are high above Candlewood Lake and offer a magnificent view of the lake. The plaintiff plans to build his residence and septic tank on lots fourteen and fifteen, and to have the system serviced by leaching fields on lot eighty-eight. The house and septic system are to be connected to the leaching fields on lot eighty-eight over an easement acquired by the plaintiff from Candlewood Lake Estates Corporation. Under the terms of the easement, the plaintiff will perpetually maintain a septic and sewerage line across Skyline Drive.

The plaintiffs construction plans were opposed by several of his neighbors, including the defendant Helen Bray, the town zoning enforcement officer, who walked her dog daily on the plaintiffs property. Other neighbors opposed to the planned construction were represented by counsel.

On February 9, 1987, the plaintiff submitted a plan for the septic system to the town sanitarian. This plan was rejected but a subsequent proposal, submitted February 20, 1987, was approved and the plaintiff received a septic permit. The plaintiff then applied for a zoning permit and a building permit to begin construction. On November 5,1987, the Sherman planning and zoning commission (commission) denied his application for a zoning permit because the state health code prevented the house and septic system from being built on separate lots. The plaintiff then applied to the state department of health for an exception to the same lot rule. The exception was granted subject to four conditions, which the trial court later determined had been subsequently met by the plaintiff.

On April 26,1988, the plaintiff again applied for a zoning permit to construct his dwelling. The commission sought the advice of the then town attorney on the application. On May 3, 1988, the town attorney reported that he believed that the town zoning regulations did not prohibit the construction of a septic system on a separate lot and that the zoning permit should issue even if the septic approval had conditions attached to it. The plaintiff received the town attorney’s opinion, and was subsequently told that the permit would be granted and there was no need for him to appear at any subsequent meeting of the commission.

On June 2,1988, the defendant Bray issued the plaintiff a blasting permit to excavate an area in order to install the waste pipe running from the septic tank to the leaching fields. That same day, the commission met to consider the plaintiff’s zoning permit application. The chairman of the commission, Piel, later testified that James Bennett, an attorney representing a group of the plaintiff’s neighbors who opposed his construction plans, appeared before the commission ex parte and was able to convince the commission that the town counsel’s opinion was in error. Four days later, the commission denied the plaintiff’s application for a zoning permit.

The plaintiff appealed the commission’s decision to the town zoning board of appeals, which denied the appeal without reasons. The plaintiff then brought this mandamus proceeding. In granting the mandamus, the trial court found (1) that the Sherman sanitary code contained no requirement that the septic system be located on the same lot as the dwelling, (2) that the Sherman sanitary code made all provisions of the state public health code part of the Sherman code unless the town prescribed more stringent requirements, (3) that with regard to the plaintiff’s contemplated septic system, the town had not adopted a more stringent requirement than that of the state, (4) that the town had no zoning regulation requiring the house and septic system be built on the same lot, (5) that the plaintiff was in compliance with the town sanitary code and the state public health code, and (6) that the plaintiff had spent $40,000 in constructing the septic system on his property. In response to the defendants’ motion for articulation, the trial court found that Bray was “factually a neighbor of the plaintiff.”

The court further stated in its articulation: “Her familiarity with the plaintiff, his property and her clear opposition to his application are factors that were weighed by the court. Mrs. Bray lived anywhere from three to six properties from the plaintiff and regularly walked her dog on his property. The plaintiff clearly raised the impropriety of Mrs. Bray’s conflict [to the trial court’s attention]. Prior to the decision of the planning and zoning commission on June 2,1988, denying the plaintiff’s zoning compliance permit, the defendant Bray stated to the plaintiff that he would never build on his lots and further admitted that she said, ‘Greg, you’re in deep shit.’ ”

The trial court also found in response to the defendant’s motion for articulation that “in discussing the opinion of the town attorney the defendant Piel said the commission also heard the opinion of Mr. Bennett who was representing Mr. Sperling and neighbors then and ‘who is our counsel here now. ’ Mr. Bennett’s opinion was clearly against the plaintiff’s application and was contrary to the opinion expressed by the town attorney.” (Emphasis added.)

Mandamus is an extraordinary remedy designed to enforce the performance of a plain positive duty, and will issue only when the person against whom it is directed is under clear obligation to perform the act compelled. Gerrity v. Bisciglia, 178 Conn. 235, 238, 423 A.2d 871 (1979); see also Kosinski v. Lawlor, 177 Conn. 420, 426, 418 A.2d 66 (1979); 52 Am. Jur. 2d, Mandamus § 31. “Mandamus neither gives nor defines rights which one does not already have. It commands performance of a duty. . . . It is an expeditious remedy to protect a clear legal right.” Milford Education Assn. v. Board of Education, 167 Conn. 513, 518, 356 A.2d 109 (1975). The party seeking the performance of the duty has the burden of establishing his clear legal right to its performance. Kosinski v. Lawlor, supra. “Although the remedy by mandamus is at law, its allowance is governed by equitable principles . . . .” Pape v. McKinney, 170 Conn. 588, 596, 368 A.2d 28 (1976).

It is well established that mandamus will issue if the plaintiff can establish (1) that the plaintiff has a clear right to the performance of a duty by the defendant, (2) that the defendant has no discretion with respect to the performance of that duty, and (3) that the plaintiff has no adequate remedy at law. Vartuli v. Sotire, 192 Conn. 353, 365, 472 A.2d 336 (1984); Chamber of Commerce of Greater Waterbury, Inc. v. Murphy, 179 Conn. 712, 717, 427 A.2d 866 (1980). In applying these principles to the circumstances of this case, I conclude that the trial court properly decided to issue an order of mandamus because the plaintiff met all three of the requirements of the three-prong test for such an order.

The trial court correctly found that neither the state zoning statutes nor the Sherman zoning regulations prohibit the building of a house on one lot and the placement of the leaching fields on another lot. The trial court found that all of the state’s conditions of the septic permit had been met, and that the septic permit had been issued. Even if all the conditions stipulated by the state for the septic permit had not been met at the time of the application of the zoning permit, nothing in the state statutes or regulations or in the Sherman zoning regulations charges the zoning authorities with the enforcement of the town sanitary code. The zoning permit is issued by the zoning enforcement officer. The septic permit is issued by the town sanitarian.

On June 2,1988, Bray gave to the plaintiff a fill and blasting permit to complete the system. On June 6, 1988, the commission denied the zoning permit after having dealt with Bennett and his clients on an ex parte basis. The plaintiff and his attorney had no opportunity to participate. The defendants and the commission ignored the objective and correct advice of the town attorney that the plaintiff had the necessary septic approvals and that the zoning permit should issue.

The plaintiff has a clear right to the zoning permit and the defendants had a clear duty to issue it. Mandamus, therefore, will lie. Carr v. Woolwich, 7 Conn. App. 684, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986).

The defendants next argue that the plaintiff did not exhaust his administrative remedies in that he had an adequate remedy at law by way of an administrative appeal to the Superior Court from the town zoning board of appeals. He was, therefore, not entitled to a writ of mandamus, according to the defendants. I disagree.

In the present case, Bray, the defendant zoning enforcement officer, had a clear conflict of interest in that she is a neighbor of the plaintiffs and she utilized the plaintiffs presently vacant lots for walking her dog and she was actively trying to prevent him from using his property by a wrongful use of her position; she should not have been involved in this matter under any circumstances. The defendant Piel, as chairman of the commission, committed a clear violation of the plaintiffs due process rights to a fair hearing when the commission met with, ex parte, and heard argument by the neighbors’ attorney Bennett and fired the town attorney and hired the opponents’ attorney to represent the board. These actions evince a zoning authority and a zoning enforcement officer undisposed to proceed in accordance with the legally accepted and required norms of conduct. “Where a public officer proposes to proceed in plain disregard of the rules of law established for his governance, capriciously or arbitrarily, and not in the honest exercise of discretion or judgment, his conduct is tantamount to a refusal to act at all and mandamus lies, not only to compel him to act, but to direct that action along the prescribed way.” State v. Erickson, 104 Conn. 542, 545-46, 133 A.2d 683 (1926). In addition, this case is analogous to Vartuli v. Sotire, supra, 366. In Vartuli, the plaintiffs sought a mandamus from the defendant zoning board of appeals of Stamford because the defendant failed to act on a coastal site plan within sixty-five days as required by statute. The Supreme Court in upholding the issuance of the mandamus by the trial court and in rebuffing the exhaustion of administrative remedies argument by the defendant board said, “An adequate remedy is one that ‘enforces in some way the performance of the particular duty, and not merely a remedy which in the end saves the party to whom the duty is owed unharmed by its nonperformance.’ State v. Erickson, [supra, 549] .... The trial court correctly held that the zoning appeal, which could do no more than secure approval of the coastal site plan, which had already been approved by operation of law, did not vindicate the plaintiffs’ right to the immediate issuance of a building permit.” (Citation omitted.) Id.

In this case, the bringing of an administrative appeal from the zoning board of appeals would do no more than vindicate the plaintiff in his position that the board was in error in upholding the commission’s and Bray’s refusal to issue the zoning compliance permit. It would require the zoning board of appeals to act to get the commission and then the defendant Bray to act. As in Vartuli, the plaintiff has an immediate right to a certificate of zoning compliance because there is no prohibition in the regulations from building a dwelling on one lot and placing the leaching fields on another lot. His right to the certificate of zoning compliance can most directly, completely and expeditiously be effectuated by mandamus since nothing else needs to be done except issuance of the permit. Merlo v. Planning & Zoning Commission, 196 Conn. 676, 681, 495 A.2d 268 (1985).

On the defendants’ third claim that the trial court should not have proceeded to judgment until the pleadings were closed, I concur with the majority. I am disturbed after reading the transcript that during two days of hearings the defendants never asked for a continuance or raised the issue of closing the pleadings. After the plaintiff presented his case, the defendants put on their witnesses. The only time the issue of pleadings was raised was in a posttrial brief filed two weeks after the hearing. A review of the record and the transcript has convinced me that the defendants’ had a fair hearing, on the subject of the mandamus, i.e. of the issuing of the zoning permit, and that the court came to a just result. I am bound, however, by the rule set forth in Doublewal Corporation v. Toffolon, 195 Conn. 384, 391, 488 A.2d 444 (1985), which states, “[t]he fact that the pleadings were not closed restricts the authority of the trial court to render permanent judgments on pending claims.”

I concur in the result.

       Practice Book § 542 provides: “The writ and complaint in an original action shall be in the form used in, and served as are, ordinary civil actions, but with a distinct statement in the prayer for relief that an order in the nature of a mandamus is sought. No affidavit to the truth of the allegations of the complaint is required, and no bond or recognizance is necessary other than that ordinarily used in civil actions; and no bond or recognizance shall be required where the action is brought by a state’s attorney.”

       Practice Book § 545 provides: “The defendant may file any proper motion directed to the allegations of the complaint, or, if he desires to attack their legal sufficiency in law, a motion to strike, or a return in the form of an answer, and further pleadings shall continue as in civil actions until issues are joined, provided that, where an application for an order is made in a pending action, the extent to which and the time in which the respondent may plead shall be as directed by the court.” (Emphasis added.)

       The file does not contain an original writ, although a sheriffs return form indicates that one was served on the defendants on October 20,1988.

       Practice Book § 543 provides: “An order in the nature of a mandamus may be made in aid of a pending action upon the application of any party, and any person claimed to be charged with the duty of performing the act in question may be summoned before the court by the service upon him of a rule to show cause.” (Emphasis added.)

       We recognize that emergency situations allow hearings on such matters as temporary injunctions and temporary mandamuses without closing the pleadings. These are not, however, final judgments and are followed by full trials after a complete course of pleadings. The parties and the trial court are in agreement that Practice Book § 544 does not apply because a temporary order of mandamus was not sought.

       The present case is not analogous to situations in which pleadings exist but have been drawn in a slovenly fashion; Tedesco v. Stamford, 215 Conn. 450, 457, 576 A.2d 1273 (1990); or in which, by intention or oversight, an answer fails to respond to one or more paragraphs of a complaint. Worden v. Francis, 153 Conn. 578, 584, 219 A.2d 442 (1966); Williamson, Ltd. v. Perry, 111 Conn. 317, 324, 150 A. 17 (1930).

       The pertinent part of Practice Book § 285A provides: “If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief.”

       The pertinent part of Practice Book § 4185 provides: “The [appellate] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The [appellate] court may in the interests of justice notice plain error not brought to the attention of the trial court.”

       The file includes a surety bond of the type required for a temporary mandamus. That bond is defective, however, because plaintiffs counsel signed as the surety. Practice Book § 542.


author: Spallone, J.

text:
    Paine Webber Jackson and Curtis, Inc. v. Geoffrey J. Winters
    (8127)
    Spallone, Norcott and Lavery, Js.
    Argued April 20
    decision released August 21, 1990

      AlanR. Spirer, with whom was Jan A. Marcus, for the appellant (plaintiff).

      John H. Chapman, with whom, on the brief, was Brian E. Moran, for the appellee (defendant).
   Spallone, J.

After remand by this court, the trial court rendered judgments upon jury verdicts for the plaintiff on claims of breach of contract and for the defendant on various counterclaims. On appeal, the plaintiff challenges the trial court’s (1) instructions to the jury on the New York law defining an employer’s responsibility for the intentional torts of its agents, (2) failure to direct a verdict or set aside the verdict on the counterclaim of defamation on the ground of insufficient evidence, and (3) denial of interest on the amount awarded in the breach of contract judgment which exceeded Paine Webber’s pretrial offer of judgment. The plaintiff’s claims attacking the verdict on the defamation counterclaim are unpersuasive, but we agree with its claim for interest.

The plaintiff, a New York brokerage corporation, engaged the defendant, Geoffrey J. Winters, a successful stockbroker, as a managing director in September, 1982. As consideration for joining the firm, the defendant received an interest free loan of $300,000 secured by two promissory notes due at the end of five years. This “loan” was essentially a sign-on bonus; neither party contemplated repayment if Winters remained in the plaintiff’s employ for five years.

The defendant was, however, fired by the plaintiff in March, 1984, for willful misconduct and impaired financial responsibility. Under the terms of the notes, termination for those reasons was a ground upon which the plaintiff could elect to accelerate the debt. Accordingly, it demanded immediate repayment and brought suit in Connecticut when the defendant, a state resident, refused to repay the loan. The defendant asserted twelve counterclaims, including an allegation that after he was fired, the plaintiffs employees made false and defamatory statements about him to his clients.

The plaintiff filed a timely offer of judgment, offering to settle its claims on the notes for $295,000. The defendant did not respond to this offer or make his own offer of judgment on his counterclaims. The plaintiff was subsequently awarded summary judgment on its claims in February, 1986. On the defendant’s appeal, the judgment was set aside by this court on the ground that the trial court had impermissibly resolved issues of fact. See Paine Webber Jackson & Curtis, Inc. v. Winters, 13 Conn. App. 712, 722, 539 A.2d 595, cert. denied, 200 Conn. 803, 545 A.2d 1100 (1988).

On remand, the trial court, on the bases of express terms in the promissory notes, the loci of the contracts and the allegedly tortious acts, determined that New York law would apply to all claims and counterclaims. Neither party challenged this decision at trial or on appeal. The court subsequently instructed the jury on the New York law governing an employer’s liability for acts of employees and agents.

The jury returned a verdict for the plaintiff on the debt and awarded it $440,000 in damages, costs and fees. The jury also returned a verdict for the defendant on five of his counterclaims, awarding a total of $440,000.18 including an award of $300,000 on the counterclaim for defamation. The court rendered separate judgments on the verdicts in May, 1989, and denied the plaintiffs motions to set aside the defendant’s verdict and for interest on the breach of contract award which recovery exceeded its offer of judgment. This appeal ensued.

I

The plaintiff’s first two claims challenge the jury verdict on the defendant’s counterclaim for defamation. The plaintiff asserts that it should not have been held liable for an unidentified employee’s intentional torts, acts it neither authorized nor ratified. The plaintiff claims (1) that the court’s jury instructions misstated the applicable New York law, and (2) that there was insufficient evidence presented to establish its liability. Both claims are without merit.

The defendant’s counterclaim for defamation, slander and libel was based on allegations that the plaintiff’s executives made false statements to the defendant’s clients implying that he had engaged in unlawful activities or unauthorized stock trading. Ebon Alabastur, a long-standing client of the defendant, testified to the principal defamatory acts. He related conversations with the plaintiff’s executives after the defendant’s discharge. Alabastur first was called by a Mr. Kaufman, the executive who had fired the defendant, and was falsely informed that the defendant “was probably no longer in business because he had litigation pending against him.” Alabastur subsequently was called by the plaintiff’s account executive who had been assigned to manage his portfolio. That individual read and later mailed to Alabastur the text of a published article containing the false implication that the defendant, among other brokers, had lost two million dollars of client funds through questionable stock trades.

A

The jury was instructed that the plaintiff could be held liable for an employee’s torts if the employee acted within the scope of his employment, in furtherance of the employer’s business, and if such conduct was generally foreseeable. Both parties concede that the jury charge expresses the common law doctrine of respondeat superior to define the circumstances in which a master may be held responsible for a servant’s acts. The plaintiff argues that, in the case of intentional torts, New York has departed from the common law standard to require proof of bad faith or actual complicity in the employee’s conduct before liability can be imposed on the employer. We do not agree.

The plaintiff asserts that “[sjlander is an intentional tort and is not normally within the scope of anyone’s employment or authority.” Gerard, Inc. v. May & Co., 51 Misc. 2d 711, 712, 273 N.Y.S.2d 888 (1966). “ Tf principals or masters could be held liable for every defamatory utterance of their servants or agents while in their service, it would subject them to liability that they could not protect or guard against. . . . It would be entirely out of the question to hold the principal or master responsible for every reckless, thoughtless, or even deliberate speech made by his agent or servant . . . while in the service of his principal or master.’ ” O’Brien v. B. L. M. Bates Corporation, 211 App. Div. 743, 746-47, 208 N.Y.S. 110 (1st Dept. 1925). The plaintiff argues that under the proper New York standard, “[a]n employer who is acting in good faith and who has not induced an employee to commit an intentional tort is not liable for the employee’s acts.” Banque Worms v. Luis A. Duque Pena E Hijos, Ltda., 652 F. Sup. 770, 773 (S.D.N.Y. 1986).

Contrary to the plaintiffs assertions, we conclude that New York continues to apply the doctrine of respondeat superior to tort liability and that the trial court correctly instructed the jury on the elements of the doctrine as expressed in the landmark case of Riviello v. Waldron, 47 N.Y.2d 297, 391 N.E.2d 1278, 418 N.Y.S.2d 300 (1979). The test for employer liability is “ ‘ “whether the act was done while the servant was doing his master’s work, no matter how irregularly or with what disregard of instruction.” ’ ” Id., 302. If generally foreseeable, even intentional torts may fall within the scope of employment. Id., 304; see also Murray v. Watervliet School District, 130 App. Div. 2d 830, 515 N.Y.S.2d 150 (1987).

The plaintiff misconstrues the holdings of his cited authorities, cases that we conclude are consistent with the principles of Riviello. In Ogust v. Institute for Public Service, 216 App. Div. 118, 214 N.Y.S. 662 (1926), the complaint of slander was dismissed because the defamatory letter was signed by the institute’s director personally, not in his executive capacity. In Gerard, Inc. v. May & Co., supra, the court dismissed a slander action only because there were no facts alleging that the employee acted with express, implied or apparent authority. The court in O’Brien v. B. L. M. Bates Corporation, supra, dismissed the complaint of slander because the assistant manager of the hotel was acting independently and not in furtherance of hotel business. “[Tjhere is no doubt that a corporation may be held liable for slander [when agents act] within the actual or implied scope of their employment.” Id., 744. Finally, the defendant in Banque Worms v. Luis A. Duque Pena E Hijos, Ltda., supra, was charged with violating federal, not New York, law. The standard of employer liability quoted by the plaintiff is not New York law but rather the statutory standard for violations of the federal Securities Exchange Act. See also Essig v. United States, 675 F. Sup. 84, 90 (E.D.N.Y. 1987) (New York substantive law follows doctrine of respondeat superior); Moscarelli v. Stamm, 288 F. Sup. 453, 460-61 (E.D.N.Y. 1968) (distinguishing the federal standard from New York’s common law standard of employer liability).

The doctrine of respondeat superior focuses on the employee’s conduct rather than on the employer’s knowledge or approval of the acts. If the employee acted with apparent authority in furtherance of employer business, the employer’s consent or ratification of the misconduct is irrelevant to determining compensatory damages; even an innocent employer must compensate an injured party. The jury here was correctly instructed in accordance with New York law that the plaintiff’s lack of good faith or complicity in its employees’ acts were relevant only to the determination of whether to award punitive, as well as compensatory, damages.

B

The plaintiff next claims that the defendant failed to introduce sufficient evidence to establish its liability under even the broad doctrine of respondeat superior. The plaintiff asserts that the defendant offered no proof as to the identity of the person who purportedly called Alabastur and repeated the defamatory statements contained in the news article. Absent proof of identity, the jury could not have determined whether the caller was acting within the scope of his employment and in furtherance of brokerage business. The plaintiff argues, therefore, that the court should have directed the verdict or.subsequently set aside the verdict for the defendant on the defamation counterclaim. The court properly accepted the verdict.

A directed verdict is appropriate only when the jury could not reasonably and legally reach a different conelusion. Golembeski v. Metichewan Grange No. 190, 20 Conn. App. 699, 701, 569 A.2d 1157 (1990). Despite the plaintiffs argument to the contrary, the court correctly submitted to the jury the questions of fact relevant to determining the plaintiffs liability for employee misconduct. See Dunham v. Dunham, 204 Conn. 303, 320, 528 A.2d 1123 (1987). The jury returned a verdict for the defendant on his defamation counterclaim, and the court’s refusal to set aside the verdict is entitled to great weight. Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 247, 522 A.2d 829 (1987). The court’s decision will be upheld on appeal if, from the evidence presented, the jury could reasonably have concluded as it did. LaFaive v. DiLoreto, 2 Conn. App. 58, 59-60, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984).

The plaintiff’s sole basis for challenging the verdict is that Alabastur could not identify his second caller. This argument is unpersuasive and inconsistent with the evidence for two reasons. First, although Alabastur could not remember the name of the person who read and later republished the defamatory news article, the caller had identified himself as a Paine Webber account executive. The caller exhibited knowledge of Alabastur’s account activity and portfolio, information the plaintiff keeps confidential. The jury could reasonably have inferred that the caller was a Paine Webber executive, one of those few individuals permitted access to customer accounts, and that this officer was calling on behalf of the plaintiff and on its business.

Moreover, the jury interrogatories do not indicate that the jury decided that a Paine Webber employee had defamed the defendant on the basis of this particular phone call. Alabastur also testified to a conversation with Kaufman, the Paine Webber executive who had fired the defendant, in which Kaufman falsely stated that there was litigation pending against the defendant. The statement also falsely implied that the defendant had engaged in conduct so seriously wrong that he was “probably no longer in business.” Kaufman was clearly identified as a Paine Webber employee, acting in furtherance of the plaintiffs business rather than for his own interests.

Either of these conversations provides a basis for a finding of slander per se if the jury accepted that a Paine Webber employee uttered the statement disparaging the defendant’s professional reputation in an attempt to discourage Alabastur from transferring his account to the defendant’s new brokerage firm. Either of these conversations, therefore, provides sufficient evidence to support the jury’s verdict on the counterclaim of defamation.

II

On the plaintiff’s claims of breach of contract, judgment was rendered in the amount of $440,000 for damages, attorney’s fees and costs. The plaintiff then moved for an award of interest pursuant to General Statutes § 52-192a and Practice Book § 350 because the amount recovered exceeded its offer of judgment of $295,000. The court denied this motion on the ground that prejudgment interest on the debt was barred by both New York law and the terms of the contracts. The plaintiff argues on appeal that Connecticut’s offer of judgment rule is procedural and should be applied to this case despite the determination that another state’s law governs substantive issues. We agree.

The trial court, in its memorandum of decision denying the plaintiff’s motion for interest, clearly regarded this issue as a question of whether to include prejudgment interest as part of its award of damages flowing from the defendant’s breach of contract. By reference to general choice of law rules, the court determined that New York law governed the parties’ contractual rights and duties, the measure of recovery, and whether such recovery included prejudgment interest. See 1 Restatement (Second), Conflicts of Laws §§ 187,207, comment e. Under New York law, the contract rate of interest governs until the debt principal is paid or until the contract is merged in a judgment. Citibank v. Liebowitz, 110 App. Div. 2d 615, 616, 487 N.Y.S.2d 368 (1985). The contracts in this case, namely, the two promissory notes, specified both that New York law would govern and that no interest would at any time be due. The court, therefore, concluded that it was without authority to apply § 52-192a.

We have no dispute with the court’s determination that New York law applied to the substantive issues of liability and damages. See Santoro v. Osman, 149 Conn. 9, 12, 174 A.2d 800 (1961) (note executed and payable in New York was governed by New York law). We also do not dispute the court’s determination that the parties’ contract barred an award of interest on the debt. We do not agree, however, that interest awarded pursuant to § 52-192a is an award of interest on a debt or that it involves the determination of substantive contract and liability issues.

The judicial rule of thumb, that in a choice of law situation the forum state will apply its own procedure; see Gibson v. Fullin, 172 Conn. 407, 411, 374 A.2d 1061 (1977); brings us to the vexing question of which rules are “procedural” and which “substantive.” These terms “are much talked about in the books as though they defined a great divide cutting across the whole domain of law. But, of course, ‘substance’ and ‘procedure’ are the same keywords to very different problems.” Guaranty Trust Co. v. York, 326 U.S. 99, 108, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945); see also Frenette v. Vickery, 522 F. Sup. 1098, 1100 (D. Conn. 1981).

We will not be enticed to decide simplistically that our offer of judgment rule is procedural merely because it is included in our rules of practice; Practice Book § 350; or upon the axiom that “the law of the forum determines the remedy.” Gibson v. Fullin, supra. “ ‘[MJatters of substance and procedure must not be confounded because they happen to have the same name.’ ” New England Fruit & Produce Co. v. Hines, 97 Conn. 225, 228, 116 A. 243 (1922). Nor will we refuse to apply § 52-192a because our courts have sometimes labelled this a rule of “prejudgment” interest, or because a federal court has determined this law to be “substantive.” The issue before us is whether, in these circumstances, an award of interest on a verdict in excess of a rejected offer of judgment requires a substantive determination of the merits of the claim.

We begin by noting that New York regards its similar rules as procedural. Section 52-192a provides an economic incentive for parties to settle disputes before trial. Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 305, 472 A.2d 316 (1984); Kusha v. Respondowski, 3 Conn. App. 570, 574, 490 A.2d 1014 (1985). Correspondingly, New York’s Civil Practice Law and Rule (CPLR) contains similar provisions of “Tender” and “Offer to Compromise.” CPLR §§ 3219, 3221. New York rules impose penalties on a plaintiff who has recovered less than the amount of a defendant’s pretrial offer. These rules are deemed procedural and without effect on substantive issues in the litigation. See Master Waterproofers, Inc. v. Auserehl & Son Contracting Corporation, 205 N.Y.S.2d 401, 402 (1960) (interpreting the relevant provisions of New York’s rules of practice); CPLR § 101 (New York’s rules of practice govern procedure used in state civil actions).

We deem § 52-192a to be a similarly procedural rule, punitive in nature, and enacted to promote fair and reasonable pretrial compromises of litigation. Gillis v. Gillis, 21 Conn. App. 549, 554, 575 A.2d 230 (1990); Crowther v. Gerber Garment Technology, Inc., 8 Conn. App. 254, 267, 513 A.2d 144 (1986). In contrast is General Statutes § 37-3a, a substantive law that requires an analysis of the merits of the underlying claim. Section 37-3a allows the court, in its discretion, to award prejudgment interest for the wrongful retention of money. See Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn. App. 559, 565, 559 A.2d 241 (1989); Perl v. Case, 3 Conn. App. 111, 116, 485 A.2d 1331 (1985). New York has a similar substantive rule, CPLR § 5001. Interest awarded pursuant to the substantive rule § 37-3a constitutes an element of the damages awarded on debts owing. Perl v. Case, supra. See also Stauffer Chemical Co. v. Keysor-Century Corporation, 541 F. Sup. 234, 238 (D. Del. 1982) (prejudgment interest on defendant’s debt awarded pursuant to § 37-3a because Connecticut law governed substantive contract issues).

It is clear that the court here could not have granted the plaintiff interest pursuant to the substantive rule § 37-3a because the promissory notes and New York law barred interest on the debt itself before judgment. This conclusion is unaffected by the label of “postjudgment” interest sometimes applied to § 37-3a. Similarly, the court should have applied § 52-192a despite the rule’s occasional label as “prejudgment” interest. Our courts have not been consistent in the use of these terms. Compare O’Leary v. Industrial Park Corporation, 211 Conn. 648, 653, 560 A.2d 968 (1989), and Gionfriddo v. Avis Rent A Car System, Inc., supra, 308 (§ 52-192a determines prejudgment interest and § 37-3a determines postjudgment interest) with Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 748, 557 A.2d 525 (1989), and Ottaviani v. Pechi, 16 Conn. App. 705, 708, 548 A.2d 1354 (1989) (§ 37-3a allows award of prejudgment interest). Moreover, the case that most clearly labels § 52-192a a statute of “prejudgment” interest specifically limits itself to claims that do not, as here, involve recovery of money. Gionfriddo v. Avis Rent A Car System, Inc., supra. The holding of Gionfriddo, that § 52-192a involves prejudgment interest and § 37-3a involves postjudgment interest, applies only to claims not concerned with the recovery of money, an exception provided for in § 37-3a. Id.

Regardless of label, prejudgment interest awarded pursuant to § 52-192a is not interest awarded on a debt. We must keep before us the question of whether an award of interest following a rejected offer of judgment requires a determination of the substantive issues of a case. We conclude that it does not.

Unlike § 37-3a, § 52-192a does not depend on an analysis of the underlying circumstances of the case or a determination of the facts. Section 52-192a applies only to civil actions on contracts or for the recovery of money. Wrongful detention of money need not be found. The interest awarded is in no way discretionary. The statute provides that the court shall examine the record after trial, and if the plaintiff’s recovery exceeds the rejected offer of judgment found in the record, the court shall add interest to that recovery. In an appropriate case, both statutes could apply; the defendant could owe interest as damages on the debt and then owe interest on the total amount based on his refusal to settle. See Gillis v. Gillis, supra, 555; Crowther v. Gerber Garment Technology, Inc., supra, 266-67; Perl v. Case, supra, 117.

An award of interest pursuant to § 52-192a is independent of the judgment, can be calculated only after judgment has been rendered, and is awarded upon a posttrial motion. See Gionfriddo v. Avis Rent A Car System, Inc., supra, 310 (failure to award interest under § 52-192a required posttrial supplemental order to be set aside); cf. Perl v. Case, supra, 118 (failure to award interest under § 37-3a required judgment to be set aside). The interest awarded under § 52-192a is unrelated to the underlying debt. It is solely related to a defendant’s rejection of an advantageous offer to settle before trial and his subsequent waste of judicial resources. A defendant who rejected an offer of judgment that is less than the plaintiff’s ultimate recovery is subject to additional interest as a penalty for failing to terminate litigation. Section 52-192a merely uses interest calculated upon the plaintiff’s recovery as a convenient measure for assessing that penalty.

Our determination that § 52-192a is a procedural rule not involving substantive issues is unaffected by seemingly contrary language in a federal case. Although the trial court found § 52-192a to be substantive law based on the holding in Frenette v. Vickery, supra, a closer reading of the case reveals no inconsistency with our conclusion that the rule is procedural in this circumstance.

In Frenette v. Vickery, supra, 1099, the plaintiffs brought suit in federal District Court in Connecticut for personal and property damages arising from an automobile accident. The plaintiffs made two offers of judgment, both rejected by the defendants, and moved for interest pursuant to § 52-192a after a jury verdict larger than either offer. Id. The defendants argued that the court should apply federal procedural law to deny an award of interest. Id. The court disagreed, ruling that in these circumstances “Conn. Gen. Stat. § 52-192a clearly creates a substantive statutory right in persons suing in Connecticut courts.” (Emphasis added.) Id., 1100.

The Frenette court did not purport to determine whether the provisions of § 52-192a were “substantive” in an interstate choice of law setting. Rather, the court found Connecticut’s offer of judgment statute to be “substantive” for the purposes of deciding between state and federal rules under the doctrine of Erie Railroad Co. v. Tomkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). Thus, the court ruled that it must apply the forum state’s “substantive” rule rather than the federal “procedural” offer of judgment rule, Fed. R. Civ. P. 68.

The Frenette court acknowledged that its determination that § 52-192a is a “substantive” rule was limited to this Erie context. In distinguishing between substantive and procedural federal rules, “ ‘ “the Supreme Court has held that matters normally regarded as procedural are substantive for the purposes of Erie cases.” ’ ” Frenette v. Vickery, supra, 1101, quoting 2 J. Moore, Federal Practice (2d Ed.) § 1.04 (4). The District Court held our offer of judgment statute to be substantive for the purpose of applying the rule, not avoiding it. “To hold otherwise would indeed frustrate the Erie goals of minimizing forum shopping in the state or federal courts and avoiding the inequitable administration of laws within a particular state.” Frenette v. Vickery, supra, 1100. To hold otherwise would allow parties who have refused reasonable pretrial settlement offers to avoid paying interest on those offers “merely by a timely removal of the case to a federal court.” Id.

We will not permit the defendant to avoid the consequences of his decision to ignore the plaintiff’s offer of judgment merely because his contract obligations were made in another state. Section § 52-192a imposes a penalty for wasting this state’s judicial resources. Our conclusion here that § 52-192á is an indigenous procedural device for promoting judicial economy fosters the principle of reducing forum shopping expressed in Frenette. All litigants in our courts should receive fair and consistent treatment regardless of their state citizenship. No litigant in our courts should be deprived of the benefits and burdens of § 52-192a merely because the substantive issues of the underlying dispute are to be decided under the laws of a sister state. Accordingly, we hold that the trial court should have granted the plaintiffs motion for interest.

The judgment is reversed in part, the order denying interest under § 52-192a is set aside, and the case is remanded with direction to award interest in accordance with this opinion.

In this opinion the other judges concurred.

       The jury awarded the defendant $300,000 on his counterclaim for defamation, $140,000 on his counterclaim for conversion of personal files, and, pursuant to New York law, a nominal award of six cents on each of his counterclaims for breach of employment contract, intentional interference with contract and intentional interference with prospective advantage.

       General Statutes § 52-192a provides in pertinent part: “(a) After commencement of any civil action based upon contract or for the recovery of money only, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. . . . If the ‘offer of judgment’ is not accepted within thirty days, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. . . .
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date . . . the complaint in the civil action was filed -with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. . . . The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”
      Practice Book § 350, which describes the rule used when the plaintiff recovers an amount equal to or greater than a filed offer of judgment, contains substantially the same language as General Statutes § 52-192a (b).

       The Restatement (Second) of Conflicts of Laws § 187 provides in pertinent part: “(1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.”
      Section 207 provides that “[t]he measure of recovery for a breach of contract is determined by the local law of the state selected by application of the rules of §§ 187-88.”
      Comment e of § 207 provides that “[t]he local law of the state selected by application of the rule of this Section determines whether plaintiff can recover interest, and, if so, the rate, upon damages awarded him for the period between the breach of contract and the rendition of judgment. This law also determines the validity of an express contractual provision for the payment of a stipulated rate of interest.”

       General Statutes § 37-3a provides in pertinent part: “Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions . . . including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable . . . . ”