author: SCHALLER, J. BISHOP, J.,

text:
    GENE S. JONES v. ALEX C. KRAMER
    (AC 21677)
    Schaller, Mihalakos and Bishop, Js.
    Argued May 1
    officially released October 8, 2002

      Robert C. Mirto, with whom was Wesley R. Germonto, law student intern, for the appellant (plaintiff).

      J. Kevin Golger, with whom, on the brief, was George L. Holmes, Jr., for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff in this negligence action, Gene S. Jones, appeals from the judgment rendered by the trial court after a jury verdict in his favor. The plaintiff claims that the court improperly applied General Statutes § 52-225a to reduce the jury’s award of economic damages by the amount of collateral source payments he had received. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. By way of an amended complaint, the plaintiff brought this action against the defendant, Alex Davis, executor of the estate of Alex C. Kramer. In the amended complaint, the plaintiff alleged that he sustained injuries in an automobile collision with Kramer and that the collision was caused by Kramer’s negligence. At trial, the plaintiff claimed more than $40,000 in economic damages, including more than $30,000 in medical expenses and $10,000 in lost wages. The jury returned a verdict for the plaintiff, awarding him $15,000 in economic damages and $35,000 in non-economic damages.

At the subsequent collateral source hearing, the parties stipulated that $13,031 of the plaintiffs medical bills had been paid by his insurance carrier. The parties also stipulated that after the deduction of insurance premiums paid by the plaintiff, the net amount received from the insurer was $12,000 and that the plaintiff was entitled to costs in the amount of $4361.21. In addition, the court found, on the basis of the testimony of the plaintiff, that the plaintiffs unreimbursed, out-of-pocket medical expenses totaled $16,008.61. The court reduced the $50,000 verdict by the full amount of $12,000 and thereafter rendered judgment for the plaintiff in the amount of $42,361.21.

On appeal, the plaintiff claims that the court incorrectly concluded that the verdict was subject to a collateral source reduction pursuant to § 52-225a. Specifically, the plaintiff argues that only payments specifically included in the jury’s verdict may be deducted as collateral sources. The plaintiff further argues that the burden is on the defendant to request jury interrogatories to establish which payments actually are included in the jury’s verdict. The defendant argues that § 52-225a requires the reduction of economic damages by the total of all collateral source payments received, less the total of premiums paid to secure the collateral sources. We agree with the defendant.

We begin our analysis by setting forth the relevant standard of review. “ [Interpretation of § 52-225a is a matter of statutory construction. Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Alvarado v. Black, 248 Conn. 409, 414-15, 728 A.2d 500 (1999).

“As with any issue of statutory interpretation, our initial guide is the language of the operative statutory provisions.” (Internal quotation marks omitted.) Id., 415. “We are constrained to read a statute as written . . . and we may not read into clearly expressed legislation provisions which do not find expression in its words . . . .” (Citations omitted; internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 494, 778 A.2d 33 (2001). “In interpreting the language of a statute, the words must be given their plain and ordinary meaning and their natural and usual sense unless the context indicates that a different meaning was intended.” (Internal quotation marks omitted.) In re Darlene C., 247 Conn. 1, 10, 717 A.2d 1242 (1998). Furthermore, “[a] statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way.” (Internal quotation marks omitted.) State v. State Employees’ Review Board, 239 Conn. 638, 654, 687 A.2d 134 (1997).

Subsection (a) of § 52-225a provides in relevant part: “In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death . . . and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section . . . .” Subsection (b) of § 52-225a requires the court to determine “the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment.” Subsection (c) of § 52-225a requires the court to determine “any amount which has been paid, contributed, or forfeited, as of the date the court enters judgment, by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he has received as a result of such injury or death.”

The plaintiff interprets § 52-225a as providing that only payments specifically included in the jury’s verdict may be deducted as collateral sources. The plaintiffs interpretation does not comport with the express language of the statute. Contrary to the plaintiffs argument, the express language of § 52-225a (a) requires the court to deduct from the jury’s award of economic damages “an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section . . . .” (Emphasis added.) Subsection (b) likewise requires the court to determine “the total amount of collateral sources . . . .” (Emphasis added.)

The legislature’s use of the word “total” in both subsections (a) and (b) of the statute is inconsistent with the piecemeal approach to collateral source reductions advocated by the plaintiff. As required by our rules of statutory interpretation, we give the word “total” its plain and ordinary meaning. “Total” is defined as “a product of addition” and “comprising or constituting a whole; entire.” Merriam-Webster’s Collegiate Dictionary (10th Ed.). The statute therefore authorizes a reduction of the jury’s award of economic damages by a single amount representing the sum of all collateral sources received by the plaintiff, less any payments made to secure the collateral sources.

The plaintiff further suggests that we should nevertheless limit the operation of the statute because of concerns expressed by various legislators during the legislative debates leading to the passage of Public Acts 1985, No. 85-574. During the debates in the House of Representatives, certain legislators expressed the concern that a defendant might receive a reduction for collateral source payments not corresponding to damages actually awarded by the jury. See 28 H.R. Proc., Pt. 27,1985 Sess., pp. 9843-47. We decline the plaintiffs invitation to reinterpret § 52-225a. The comments cited by the plaintiff were offered in support of an amendment that eliminated disability coverage from the definition of collateral sources that eventually was codified in General Statutes § 52-225b. There is no indication that the legislators’ concerns were raised in regard to the legislation in general, rather than being limited to the issue of disability benefits. Furthermore, as previously discussed, the statutory language provides no basis for concluding that the legislation as finally enacted was intended to address those concerns. We therefore decline to alter our interpretation of § 52-225a on the basis of those legislative comments.

Moreover, the legislative policy underlying § 52-225a supports our reading of the statutory language. “The language and legislative history of § 52-225a clearly indicate that § 52-225a was intended to prevent plaintiffs from obtaining double recoveries, i.e., collecting economic damages from a defendant and also receiving collateral source payments.” Alvarado v. Black, supra, 248 Conn. 417. The interpretation advanced by the plaintiff would contravene that legislative policy because it would permit plaintiffs to collect the full amount of economic damages as determined by the jury and also receive collateral source payments. The application of the statute as written, by contrast, furthers the legislative purpose of preventing double recovery by limiting plaintiffs to the amount of economic damages as determined by the jury. The legislative policy, therefore, supports our conclusion that § 52-225a must be interpreted as written.

Turning to the application of § 52-225a to the facts of the present case, we note that the jury found that the plaintiffs economic damages totaled $15,000. The parties stipulated that the total collateral source payments received by the plaintiff, less the insurance premiums paid to secure the collateral source, totaled $12,000. Section § 52-225a (a) requires the reduction of the $15,000 economic damages by the $12,000 net collateral source payments. The court, therefore, properly applied § 52-225a to reduce the verdict by $12,000.

The judgment is affirmed.

In this opinion MIHALAKOS, J., concurred.

BISHOP, J.,

dissenting. This case involves two questions not previously decided by either this court or our Supreme Court. The first question is whether, in a personal injury action, the amount of economic damages awarded by a jury should be reduced only by collateral source payments for the damages actually awarded. Second, if a collateral source reduction is warranted only for the specific damages awarded, which party should have the burden of proving the nexus between the damages awarded and the collateral source payments. Because I answer the first question in the affirmative and would place the burden of proof on the defendant with respect to the second, I would reverse the judgment of the trial court.

My analysis follows two related tracks. First, I believe the language of General Statutes § 52-225a, when understood in the context of its purpose, leads to my conclusion. Second, because the statute is in derogation of the common law, it should be narrowly construed to achieve no more than its stated purpose of abrogating the common-law collateral source rule.

As a starting point, nothing in tort reform negated the basic notion that “[t]he purpose of damages in a tort action is to restore the injured party to his original position.” D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 169, p. 449. To the extent reasonably possible, this includes damages for lost earnings and medical and hospital bills reasonably incurred for injuries proximately caused by the defendant’s negligence, as well as for less tangible non-economic damages. Tort reform did, however, alter the landscape by changing the common-law collateral source rule that a defendant is not entitled to be relieved from paying any part of the compensation due for injuries proximately resulting from his act where payment for such injuries or damages comes from a collateral source wholly independent of him. In 1985 and 1986, through a series of legislative changes, the legislature enacted tort reform, which abrogated this common-law collateral source rule. The chief purpose of the change regarding the collateral source rule was to prevent plaintiffs from receiving a double payment for the same damages. It was not intended to provide an avenue to take away damages awarded to a plaintiff if the result would prevent him from being made whole.

The language of § 52-225a regarding reduction for collateral sources is silent on the issue of whether economic damages awarded by a fact finder may be reduced by the amount of collateral payments for any economic damages sustained by the plaintiff, or whether a defendant is entitled to a reduction of economic damages only for the collateral payments made for the damages actually assessed by the fact finder. I do not share the majority’s conclusion that the repeated use of the word “total” in two portions of the statute makes it clear that the legislature intended for any award of economic damages to be reduced by the amount of payments of any other economic damages, regardless of whether the damages for which collateral payments made were, in fact, part of the jury’s award. Accordingly, I would resort to statutory construction to glean the intention of the General Assembly in enacting the collateral source portion of § 52-225a.

Our Supreme Court and this court often have employed statutory construction to glean the intent of this legislation and, in doing so, uniformly have determined that the principal purpose of the portion of tort reform dealing with collateral sources was to change the common law so as to prevent a plaintiff from receiving a double recovery for the same damages. See Alvarado v. Black, 248 Conn. 409, 417, 728 A.2d 500 (1999); Corcoran v. Taylor, 65 Conn. App. 340, 344, 782 A.2d 728, cert. denied, 258 Conn. 925, 783 A.2d 1027 (2001). In Corcoran, this court opined that “[t]he language and legislative history of § 52-225a clearly indicate that § 52-225a was intended to prevent plaintiffs from obtaining double recoveries, i.e., collecting economic damages from a defendant and also receiving collateral source payments.” (Internal quotation marks omitted.) Corco-ran v. Taylor, supra, 344-45.

Section 52-225a (a) provides in relevant part that “[i]n any civil action . . . wherein. . . damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages ... by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section . . . .” Subsection (b) provides in relevant part that “[u]pon a finding of liability and an awarding of damages by the tiler of fact . . . the court shall receive evidence . . . concerning the total amount of collateral sources which have been paid for the benefit of the claimant . . . .”

In this instance, I believe that the term “damages” in § 52-225a has to be understood in the context of the purposes of tort reform. In relevant part, § 52-225a (a) provides that “wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h . . . .” General Statutes § 52-572h (a) provides in relevant part that “ ‘[e]conomic damages’ means compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages . . . .” The majority reads those statutes as permitting the reduction from the economic award of any medical expenses or lost wages that the plaintiff had claimed and that had been paid by collateral sources, regardless of whether the jury had compensated the plaintiff for them specifically. I believe this result frustrates the stated purpose of tort reform to avoid double payments to plaintiffs. In fact, if the majority is correct in its understanding of the statute, then tort reform serves not only to deny plaintiffs double payments, but also to deny them payments for economic losses not covered by the jury’s award of damages. It also has the potential of negating a jury’s economic damages award when that award was not the subject of a collateral source payment.

I believe that the majority misconstrues the contextual use of the term “damages” in § 52-225a. We know, from our common understanding of tort law, that a fact finder may make an award for economic damages only to the extent that the damages have been proximately caused by the defendant’s negligence and to the extent that the amount of damages is reasonable. Thus, in the case of medical and hospital bills, it is axiomatic that a fact finder may award economic damages only in reasonable amounts for reasonably necessary medical and hospital expenses proximately related to the defendant’s negligence. It is from these specific awards only that collateral payments may be deducted.

With respect to the statutory scheme, § 52-572h provides a generic definition of economic damages. We therefore know that economic damages include several different types of pecuniary loss, including medical and hospital expenses and loss of income. Once it is known whether an item falls within the category of economic damages, we then must look to § 52-225a to determine the application of the collateral source rule. To give meaning to the stated intent of tort reform, a more reasonable understanding of the term “damages” in § 52-225a requires that the court, at a collateral source hearing, should deduct collateral source payments for the specific economic damages that were, in fact, awarded by the jury.

The twofold consideration of reasonableness and causal connection is implicit within the definition of damages awarded by the fact finder. Otherwise, they could not have reasonably been awarded. I therefore would interpret the statute as requiring the fact finder to make this determination as to each item of economic damages it awards, a task that would not be difficult or inconvenient. Indeed, in this case, the plaintiff provided the jury with a one page itemized fist of his claimed medical and hospital expenses, and another one page itemization of his claimed lost earnings. The defendant’s counsel could have asked the jurors, through appropriate interrogatories, to determine which, if any, of the plaintiffs specific damages claimed, they found proximately related and reasonably incurred. If this procedure had been followed, double payment could have been avoided by subtracting from the jury’s award of damages only those payments already received by the plaintiff from collateral sources.

Following the suggested pathway would have avoided double payment to the plaintiff without risking an unwarranted reduction in his economic damages award, a result that may well have occurred in this case. The plaintiff sought economic damages in the aggregate amount of $40,055, broken down as $30,030 in claimed medical expenses and $10,025 in lost wages. In returning its verdict for $50,000, the jury assigned $15,000 as economic damages. The plaintiff thus paid out-of-pocket medical and hospital expenses that were substantially in excess of the total economic damages awarded by the jury. Because no interrogatories were submitted to the jury, it is not possible to know whether the economic damages awarded by the jury included all or any of the plaintiffs claimed lost wages. It is clear, by simple mathematics, however, that the award did not compensate the plaintiff for all of his claimed medical expenses. Reciprocally, with respect to collateral sources, the court was informed only that collateral sources paid a total of $12,000, net of premiums, toward the plaintiffs claimed medical expenses. When, as here, a jury returns a verdict for economic damages in an amount less than that claimed by the plaintiff, it is a necessary inference that the jury found that some of the claimed damages either were not reasonably incurred or were not causally connected to the defendant’s negligence. On the status of this record, however, we cannot know whether any part of the $15,000 awarded by the jury for economic damages was also paid by collateral sources, thus constituting double payments to the plaintiff.

The notion that to operate to reduce an award, collateral source payments must have been directed to specific damages awarded by the jury, finds support in an analysis of the collateral source rule itself. In Mack v. LaValley, 55 Conn. App. 150, 167, 738 A.2d 715, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999), this court expressed its understanding of the common-law collateral source rule as follows: “Prior to the enactment of § 52-225a in 1985, Connecticut adhered to the common-law collateral source rule, which provides that ‘a defendant is not entitled to be relieved from paying any part of the compensation due for injuries proximately resulting from his act where payment [for such injuries or damages] comes from a collateral source, wholly independent of him.’ ” (Emphasis added.) In the application of this rule, courts traditionally excluded evidence that a plaintiff had benefited from payments made by unrelated third parties for damages sought from the jury because the defendant was not entitled to any reduction of liability due to payments for those damages made by an unrelated third party. Because tort reform was intended only to abrogate the common-law rule, it should be limited to relieve a tortfeasor of liability for damages only to the extent that those particular damages have been paid by an independent third party. Relieving a tortfeasor of liability for damages paid by third parties, but not within the jury’s award, goes well beyond merely abrogating the common-law collateral source rule. “It is a rule of statutory construction that statutes in derogation of the common law should be strictly construed so as not to extend, modify or enlarge [their] provisions beyond [their] scope by the mechanics of statutory construction.” (Internal quotation marks omitted.) Brennan v. Burger King Corp., 46 Conn. App. 76, 82-83, 698 A.2d 364 (1997), aff'd, 244 Conn. 204, 707 A.2d 30 (1998).

To follow the intent of tort reform faithfully without impermissibly diminishing an economic damages award to the plaintiff, the court, before making any reduction in economic damages for collateral source payments, must know specifically what economic damages were awarded by the jury. With this information, the court can then satisfy tort reform’s intent by reducing the economic award only by the amount of collateral source payments for the damages actually awarded. Such a process would have been simple to adopt in this case because the jury was provided with two relevant exhibits. Exhibit five was a one page document, itemizing by care provider and amount, the total of the plaintiffs medical damages claim. Exhibit six was a one page document listing each date and the corresponding amount of lost earnings claimed by the plaintiff. It would not have been either confusing or cumbersome to ask the jury, in its deliberations concerning economic damages, to specify the medical expenses and lost earnings, if any, that constituted the components of its $15,000 economic damage award.

I believe that the defendant should have the burden of proving collateral source payments of damages awarded by the jury. While I agree that the language of the pertinent statutes is silent on the question of burden of proof, placing the burden on the defendant is consistent with the statutory purpose. Additionally, because the statute is a deviation from the common law, placing the burden on the defendant to prove the applicability of the statutory collateral source provision to the facts at hand is consistent with the traditional approach to statutes in derogation of the common law. Because I believe that the decision of the majority has the effect of enlarging the provisions of § 52-225a beyond its intended reach, I respectfully dissent.

       General Statutes § 52-225a provides: “(a) In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1,1987, or (2) personal injury or wrongful death, arising out of the rendition of professional services by a health care provider, occurring on or after October 1, 1985, and prior to October 1, 1986, if the action was filed on or after October 1,1987, and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section, except that there shall be no reduction for (1) a collateral source for which a right of subrogation exists and (2) that amount of collateral sources equal to the reduction in the claimant’s economic damages attributable to his percentage of negligence pursuant to section 52-572h.
      “(b) Upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment.
      “(c) The court shall receive evidence from the claimant and any other appropriate person concerning any amount which has been paid, contributed, or forfeited, as of the date the court enters judgment, by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he has received as a. result of such injury or death.”

       The plaintiff originally commenced the action against Alex C. Kramer. Kramer died prior to trial, and the court, Nadeau, J., granted Davis’ motion to be substituted as the defendant. In this opinion, we refer to Davis as the defendant.

       Because we conclude that § 52-225a does not require the court to determine which payments actually are included in the jury’s verdict, we do not reach the plaintiffs argument regarding the burden of proof.

       In proposing that resort to statutory construction is necessary “to glean the intention of the General Assembly in enacting the collateral source portion of [General Statutes] § 52-225a,” the dissent emphasizes that the purpose of tort reform in this context was to prevent the recovery of double payments to plaintiffs. Considering, however, the language that the legislature adopted to accomplish that purpose, our reading of § 52-225a neither “frustrates the stated purpose of tort reform,” denies plaintiffs “payments for economic losses not covered by the jury’s award of damages,” nor does it in any sense negate “a jury’s economic damages award,” as the dissent asserts. It may well be that an elaborate statutory scheme imposing on the defendant the burden of proving to the trial court the specific expenses for which a jury awards economic damages and one in which only those specific expenses are eligible for collateral source deductions would be fair and reasonable. Policy arguments in support of such a proposed statutory scheme are compelling in many respects. We conclude, however, that the legislature did not enact such a plan; the language it adopted establishes neither that burden nor that methodology. Given the legislative history of the tort reform statutes, it is clear that the legislature easily could have adopted such a scheme if its intent were to do so. In light of what the legislature did enact, our responsibility is to interpret the statutory language before us. We are bound by that legislation.

       At the collateral source hearing, the court found that the plaintiffs unreimbursed medical expenses totaled $16,008.61.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. TERRELL WATKINS
    (AC 21674)
    Mihalakos, Dranginis and West, Js.
    Submitted on briefs June 11
    officially released October 8, 2002

      William A. Snider filed a brief for the appellant (defendant).

      James E. Thomas, state’s attorney, Thomas R. Garcia and Ronald G. Weller, assistant state’s attorneys, and Joseph J. Hurley, deputy assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

WEST, J.

The defendant, Terrell Watkins, appeals from the judgments of conviction, rendered after a jury trial, of three counts each of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-48 (a), and robbery in the second degree in violation of General Statutes § 53a-135 (a) (1). The defendant was sentenced on November 7, 2000, to a total effective term of thirty year s in the custody of the commissioner of correction, execution suspended after twelve years, with five years probation.

On appeal, the defendant claims (1) that the court improperly admitted the written statements of a state witness pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), and (2) that the jury’s verdict was against the weight of the evidence. We disagree and affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On October 27,1999, at approximately 12:30 a.m., one of the defendant’s victims, Tywan Williams, was walking on East Street in the direction of Seyms Street in Hartford. A silver colored car with tinted windows stopped and parked at the corner of East and Seyms streets. As Williams passed the car, he noticed a silver colored or chrome colored gun being pointed out of the passenger’s side of the car in his direction. Williams observed three individuals in the car, one of whom demanded his money. At that point, Williams dropped a bag that he was carrying and fled along East Street. The victim witnessed one of the occupants of the car take the bag. The car then was driven away in the direction of Main Street.

On October 27, 1999, at approximately 1:40 a.m., Victoria Mercado and Raymond Nieves were walking along Farmington Avenue in the direction of Owen Street. As they arrived at the intersection of Farmington Avenue and Owen Street, two black males got out of a gray Honda CRX that had been parked on the street, approached and ordered Mercado and Nieves to the ground. One of the males was wearing a black hooded sweatshirt and a mask, and the other male was wearing a camouflage army jacket. The two men pushed the victims to the ground, whereupon one of the assailants started kicking Nieves and searching his pockets. The second assailant took Mercado’s book bag from her and searched her pockets as well. The book bag contained a compact disc player, apager, shoes, apassport, a binder and some money. The assailants then entered the Honda that was waiting for them on Farmington Avenue and drove along Farmington Avenue toward downtown Hartford.

In the early morning hours of October 28,1999, Carlos Colon had stopped at a Sunoco station at the comer of Wethersfield Avenue and Eaton Street in Hartford. As he was walking back to his vehicle, two men approached him. One of the men was wearing a camouflage style aimy jacket, and the second man was wearing a dark hooded sweatshirt. Both men were wearing masks. The men demanded Colon’s money. One of the assailants placed a silver colored gun at Colon’s ribs. After going through Colon’s pockets, the assailants retrieved $19 as well as Colon’s wallet. When Colon refused to accede to the assailant’s demand for his car, he was struck from behind with a metal object. The assailants then ran.

On October 28, 1999, between 2:30 and 3 a.m., a Bloomfield police officer, Michael Guglietta, observed a gray Honda CRX fitting the description of a vehicle that had been involved in some robberies in Hartford and in Bloomfield. After the officer observed the vehicle turn right into the path of another vehicle, he stopped the Honda. Guglietta testified that the operator appeared hesitant to stop. After the officer drove vehicle behind the Honda and signaled it to stop, the vehicle continued to travel one-half mile, swerving from the left to the right before stopping. The vehicle was operated by Sandy Nealey. The defendant and Givon Iver-son were passengers in the vehicle. At the time that the vehicle was stopped, the defendant was wearing a camouflage, army style jacket. The three individuals in the vehicle were placed under arrest on various charges and taken to the Bloomfield police department. The vehicle was towed to a private garage, which was used regularly by the Bloomfield police department. The owner of the vehicle, Anthony Waite, gave the Hartford police permission to conduct a search of the vehicle. The search revealed a portable compact disc player and discs, a beeper and a wallet later identified by the respective victims as the property that had been stolen from them. Also recovered were a black hood, a nylon stocking cap with two eyeholes cut out of it and a hooded sweatshirt. In addition to those items seized from the vehicle itself, the Hartford police also retrieved, from the Bloomfield police department property room, the camouflage coat that the defendant had been wearing at the time of his arrest.

I

We first address the claim that the court improperly admitted a witness’ prior inconsistent statement into evidence for substantive purposes. We disagree with the defendant that the statement was admitted improperly.

The following additional facts are relevant to our disposition of the defendant’s claim. On two separate occasions, October 28 and November 1, 1999, Neaiey provided written, signed statements to the police in which he provided details of the robberies. At trial, Nealey recanted those statements, testifying that he was not present during the robberies and that he could not remember what he had said in his statements. After being shown his signed, written statements in an effort to refresh his memory, Nealey conceded that the statements were his and that he had signed the statements. He claimed, however, that the police had pressured him into making those statements and that the information concerning the incidents had been supplied to him by Detective Stephen Grabowski. Nealey conceded that he nevertheless understood that if he made a false statement, he would be in violation of the law.

The state then offered the two written statements as substantive evidence, pursuant to the exception to the hearsay rule set forth in State v. Whelan, supra, 200 Conn. 753. The defendant objected, claiming that the statement did not satisfy the criteria for admissibility because the declarant disavowed personal knowledge of the information contained in the statement.

“The admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the wide discretion of the trial court. . . . On appeal, the exercise of that discretion will not be disturbed except on a showing that it has been abused.” (Citation omitted.) State v. Newsome, 238 Conn. 588, 596, 682 A.2d 972 (1996).

Under Whelan, a prior inconsistent statement may be admitted into evidence for substantive purposes where (1) the statement is in writing, (2) the statement is signed by the declarant, (3) the declarant has personal knowledge of the facts contained therein and (4) the declarant testifies at trial and is subject to cross-examination. State v. Whelan, supra, 200 Conn. 753. The admissibility of a prior inconsistent statement depends on the satisfaction of those four requirements. State v. Mukhtaar, 253 Conn. 280, 305-306, 750 A.2d 1059 (2000).

“As with any statement that is admitted into evidence under a hearsay exception, a statement that satisfies the Whelan criteria may or may not be true in fact. But, as with any other statement that qualifies under a hearsay exception, it nevertheless is admissible to establish the truth of the matter asserted because it falls within a class of hearsay evidence that has been deemed sufficiently trustworthy to merit such treatment. Thus, as with all other admissible nonhearsay evidence, we allow the fact finder to determine whether the hearsay statement is credible upon consideration of all the relevant circumstances. Consequently, once the proponent of a prior inconsistent statement has established that the statement satisfies the requirements of Whelan, that statement, like statements satisfying the requirements of other hearsay exceptions, is presumptively admissible.” (Emphasis in original; internal quotation marks omitted.) State v. Sotomayor, 61 Conn. App. 364, 375, 765 A.2d 1 (2001), appeal dismissed, 260 Conn. 179, 794 A.2d 996, cert. denied, 537 U.S. 922, 123 S. Ct. 313, 154 L. Ed. 2d 212 (2002).

The defendant concedes that the admitted statements satisfy three of the four Whelan criteria. The statements are in writing, the declarant signed the statements, and he testified and was subject to cross-examination at trial. The defendant argues, however, that the statements fail to satisfy the requirement that the declarant have personal knowledge of the events described therein.

We are not persuaded that the circumstances in this case differ in any significant manner from the generally prevailing situation in which a declarant denies the truthfulness of an earlier statement. The declarant in lire present case was on the witness stand before the jury, and the jury had sufficient opportunity to weigh the credibility of his testimony against that of his written statements. “[W]hen the declarant is available for cross-examination the jury has the opportunity to observe him as he repudiates or varies his former statement. The cross-examination to which a recanting witness will be subjected is likely to be meaningful because the witness will be forced either to explain the discrepancies between the earlier statements and his present testimony, or to deny that the earlier statement was made at all. If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. . . . The jury can, therefore, determine whether to believe the present testimony, the prior statement, or neither. . . . Quite simply, when the declarant is in court, under oath, and subject to cross-examination before the factfinder concerning both his out-of-court and in-court statements, the usual dangers of hearsay are largely nonexistent.” (Internal quotation marks omitted.) State v. Grant, 221 Conn. 93, 98-99, 602 A.2d 581 (1992).

Allowing a party to circumvent the exception to the hearsay rule established by Whelan merely by repudiating the foundation for his knowledge when that foundation is an element of the statement itself would eviscerate the Whelan exception, potentially leaving no statement admissible under the pertinent rule. “[T]he defendant’s claim that the . . . statement was unreliable because the witness, at trial, repudiated the statement is without merit. That the witness repudiated his earlier statement merely demonstrates that his statements were indeed inconsistent with his trial testimony.” State v. Woodson, 227 Conn. 1, 21, 629 A.2d 386 (1993).

In Sotomayor, we confronted a similar situation in which the declarant recanted his sworn and signed statement, and testified at trial that he did not have personal knowledge of the facts contained in the statement. In that case, we concluded that the statement was admitted properly notwithstanding that the declarant disputed on the witness stand that he had personal knowledge of the events described in his statement. State v. Sotomayor, supra, 61 Conn. App. 377-78. In evaluating whether a declarant has personal knowledge of the facts contained within a prior inconsistent statement, we look to the statement itself. If the statement itself indicates that the basis of the information contained in that statement is the declarant’s personal knowledge, that is sufficient to satisfy the criteria of personal knowledge established by Whelan. State v. Estrada, 26 Conn. App. 641, 657, 603 A.2d 1179 (“to determine whether the declarant has the requisite personal knowledge we look to the statement itself . . . and consider whether the statement indicates that the declarant personally knew the truth of the contents of the statement” [citations omitted]), cert. denied, 221 Conn. 923, 608 A.2d 688 (1992).

The fact that the declarant claimed on the witness stand that he was pressured by the police into providing the written statements also does not preclude their admissibility for substantive purposes. “[Assertions that [the witness] . . . felt pressured by the police to make . . . the statement [are] relevant and proper matters for cross-examination . . . [that] go to the weight of the evidence and not its admissibility.” (Internal quotation marks omitted.) State v. Mukhtaar, supra, 253 Conn. 308. “Of course, a prior inconsistent statement that fulfills the Whelan requirements may have been made under circumstances so unduly coercive or extreme as to grievously undermine the reliability generally inherent in such a statement, so as to render it, in effect, not that of the witness. In such circumstances, the trial court must act as a gatekeeper to ensure that the statement does not go to the jury for substantive purposes. We emphasize, however, that the linchpin of admissibility is reliability: the statement may be excluded as substantive evidence only if the trial court is persuaded, in light of the circumstances under which the statement was made, that the statement is so untrustworthy that its admission into evidence would subvert the fairness of the fact-finding process. In the absence of such a showing by the party seeking to exclude a statement that meets the Whelan criteria, the statement is admissible as substantive evidence; like all other evidence, its credibility is grist for the cross-examination mill. Thus, because the requirements that we established in Whelan provide a significant assur-anee of reliability, it will be the highly unusual case in which a statement that meets the Whelan requirements nevertheless must be kept from the jury.” Id., 306-307.

We conclude, therefore, that the circumstances surrounding the making of the statements provided sufficient indicia of their reliability to warrant their admission into evidence pursuant to Whelan. Accordingly, we conclude that the court did not abuse its discretion by allowing into evidence Nealey’s prior inconsistent statements for substantive purposes.

II

We turn now to the defendant’s claim that the jury’s verdict was against the weight of the evidence. We disagree.

In reviewing the sufficiency of the evidence to support a criminal conviction, we apply a two part test. “First, we construe the evidence in the light most favorable to sustaining the [finding of guilt]. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Hall, 66 Conn. App. 740, 744-45, 786 A.2d 466 (2001), cert. denied, 259 Conn. 906, 789 A.2d 996 (2002).

The main argument presented in support of the defendant’s claim appears to be that the jury failed to accord the proper weight to his alibi. Tamara Reid testified that the defendant was at her house on the night of the robberies. The defendant argues that there was no evidence that he attempted to fabricate that alibi. The state, however, need not produce evidence of fabrication. It is the exclusive province of the jury to determine the credibility of witnesses. Although the state retains the burden to prove each element of the crimes charged, it need not offer evidence directly showing that the alibi was fabricated. It is sufficient if, by the introduction of evidence inconsistent with the proffered alibi, the prosecution is able to establish the factual predicates necessary to support a conviction. The jury is free to accept or reject, in part or in total, the testimony of any witness, including alibi witnesses. See State v. Bill, 146 Conn. 693, 696, 155 A.2d 752 (1959). That is exactly what the jury in the present case did.

As previously discussed, the state introduced Nealey’s signed, written statements as substantive evidence. In those statements, Nealey stated that the defendant was involved in the crimes charged and provided details as to his involvement. We have concluded that those statements were admitted properly under the Whelan exception to the hearsay rule. Accordingly, the jury was free to decide whether to credit the version of the events contained in those statements or to credit the declar ant’s testimony from the witness stand.

If the jury chose to credit the declarant’s written statements, those statements alone would be sufficient to support the defendant’s conviction. See State v. Newsome, supra, 238 Conn. 617-20 (prior inconsistent statement identifying defendant as perpetrator and admitted as substantive evidence sufficient to establish guilt beyond reasonable doubt where statement possesses ample indicia of reliability). Here, the statements possess sufficient indicia of reliability. They were in writing and were sworn, and the declarant admitted that they contained the information that he had provided to the police shortly after the robberies occurred. The statements describe the locations and times of the robberies, the declarant’s association with the defendant and the declarant’s role in the crimes. Moreover, on cross-examination, the prosecution introduced evidence contained in the statements that had not admitted substantively to impeach the credibility of the declarant’s claim of fabrication.

In addition, the state presented sufficient circumstantial evidence to support a finding of guilt. Specifically, the defendant was stopped by the police while riding in the car used in the robberies a short time after those robberies had been committed. Williams and Mercado positively identified the car as the one that had been involved in the robberies. Several of the items stolen from the victims were found in the car after it had been stopped by the police. The defendant and his two companions fit the descriptions given to police by witnesses. An eyewitness to the Owen Street robbery positively identified Nealey as the driver of the car, thus corroborating his statement to the police. Shortly before the commission of the crimes, Iverson and the defendant were observed together with chrome colored handguns in their possession. The defendant testified that he spent nearly five months living out of his car to avoid the police, whom he had been told were looking for him. The defendant went so far as to quit his job so that he could not be found. The jury was free to consider that as evidence of consciousness of guilt and to give to that evidence the weight that it deemed appropriate. See State v. Kelly, 256 Conn. 23, 54, 770 A.2d 908 (2001); State v. Jefferson, 67 Conn. App. 249, 258, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002); State v. Gilbert, 52 Conn. App. 531, 543, 727 A.2d 747, cert. denied, 249 Conn. 905, 733 A.2d 224 (1999).

Our review of the record before us indicates that the evidence supports the jury’s verdict and was sufficient to convict the defendant of the crimes charged.

The judgments are affirmed.

In this opinion the other judges concurred.

       The witnesses testified variously that the gun was silver colored, chrome colored or gray. The testimony established, however, that the witnesses were using those acjjectives synonymously.

       Although Iverson identified himself to the police as James Price, he later was identified correctly through fingerprint matching.

       Nealey’s two statements were redacted prior to being presented to the jury. As read to the jury by the court clerk, the first statement in relevant part was as follows: “[October 28,1999]. I was arrested today in Bloomfield, Connecticut. The police arrested me for operating without a license, misuse of plates. ... I was arrested with two other guys. Their names are Terrell Watkins and James Price. The Bloomfield police told me that the car we were driving in was used in some robberies. Detectives [Stephen] Grabowski and [Robert] Dionne from the Hartford police department came to the Bloomfield police department to ask me about some robberies. They read me my rights.
      “I told them that we did . . . robberies this morning. The first one was on [Seyms] Street in Hartford. . . . Then we went to Wethersfield Avenue also this morning. I was driving the car, Terrell and James were holding up the people. The people were drug fiends who were being held up, some of them. . . .
      “We talked about . . . the robberies, that’s why we were driving around. To rob people. I just started doing this last night. . . . They asked me if I wanted to do this and I said yes. . . .
      “We went to Owen Street. James was driving, I was in the back. Terrell was passenger, Terrell and James got out. Terrell had the chrome color gun, and they robbed some dude. I stayed in the car for that one, too. Then we went back to Adams Street. . . .
      “This morning we did . . . Wethersfield Avenue . . . the one robbery-on Wethersfield Avenue was way up the street. I never got any money for these robberies, I was only the driver. I got the car from a dude named Oscar, from Sharon Street. The statement was read to me by Detective Grabowski. Everything is true.”
      The second statement was provided to the police on November 1, 1999. As redacted and presented to the jury, it reads in relevant part: “The first day it all happened, they came to my house and they wanted me to drive the car so that they could rob people, so I said OK. We were at my house at the time, so I got in the back.
      “The first place we went was to [Seyms] Street, Givon was driving, I was in the backseat. The car stopped, Givon and Terrell got out of the car and ran a couple houses up to the victim. The victim ran, dropped his bag and Terrell picked the bag up.
      “After that John drove back to the block, we stayed there for a hot minute, then we got back into the car. . . . We then went to Farmington Avenue and Owen Street. John parked at the corner, behind a couple cars. . . . They both got out, turned around the comer, off Owen, they were gone for a hot minute so I then hopped to the driver’s seat and I pulled up to where I could look up Owen Street. They were coming back already.
      “So, I pulled off and went straight to Adams Street. We all got out, I went to the backyard to take a leak. Fr om the yard we were in, Givon drove me home. . . .
      “I parked on Baltimore Street, we stayed there for about fifteen minutes, then I said, ‘I’m about to drive home.’ So, I drove up Blue Hills Avenue, down Cottage Grove Road, and that’s when I got pulled over. ... I, Sandy Nealey, wrote this statement.”

       On redirect examination, the declarant stated that although certain portions of the statement had been “fed” to him by the detectives, information concerning two other crimes had been supplied by him.

       The case cited by the defendant, State v. Reid, 193 Conn. 646, 480 A.2d 463 (1984), stands for the proposition that where the state presents evidence of an attempt by the defendant to fabricate an alibi, that evidence is admissible to show conduct inconsistent with a claim of innocence.

       The two statements provided to the police contained, in their entirety, accounts of five robberies. Because the victims of two of those robberies could not be located for trial, the portions of the statements relating to those two robberies were not introduced as substantive evidence. Nevertheless, those statements were introduced to impeach the declarant’s credibility regarding the claim that the information in his statements had been “fed” to him by the interrogating police officer. Confronted with the fact that police were not yet aware of the two other robberies at the time that the statements were given, the declarant claimed that the information relating to only three of the robberies had been provided by the police and that the information concerning the remaining two robberies had, in fact, been supplied by himself.


author: PER CURIAM.

text:
    PAUL TANPIENGCO ET AL. v. MARIA TASTO ET AL.
    (AC 22350)
    Schaller, Mihalakos and Dranginis, Js.
    Submitted on briefs June 7
    officially released October 8, 2002

      Donald Gaudreau filed a brief for the appellants (defendant Shoreline Real Estate Company et al.).

      Frank B. Cochran and Linda P. Francois filed a brief for the appellees (plaintiffs).
   Opinion

PER CURIAM.

The defendants, Christine Fappiano and Shoreline Real Estate Company, appeal from the judgment of the trial court, rendered on the third count of the complaint, ordering them to pay the sum of $5000 as a penalty, $15,000 for attorney's fees and costs of $545.55. We affirm the judgment of the trial court.

This appeal stems from a purchase and sale agreement executed on September 15, 1999, by the plaintiffs, Paul Tanpiengco and Sharon Tanpiengco, for the purchase of real property owned by Maria Tasto located at 281 Chestnut Hill Road in KUlingworth. The listing broker was Shoreline Real Estate Company and Fappiano, as its agent, showed the property. The plaintiffs submitted $8000 to Tasto, representing the deposit on the property. On November 9, 1999, the plaintiffs rescinded the agreement because the state was taking a portion of the property and because it came to their attention that the property is surrounded by the former Killingworth municipal landfill.

On January 14, 2000, the plaintiffs brought a four count complaint, alleging, inter alia, violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The court found that “[b]oth Tasto and Fappiano knew that the property was built adjoining a landfill and that some of the property itself was on the landfill. When [the] Tanpiengcos inquired of Fappiano what was to the rear of the property, Fappiano deliberately informed [them] that ‘it was open space and that it was owned by the town of Kill-ingworth, and designated as open space and would never be built on.’ ” After finding a CUTPA violation, the court ordered the defendants to pay $5000 as a penalty, $15,000 for attorney’s fees and costs of $545.55. This appeal followed.

“It is well settled that whether a defendant’s acts constitute fraudulent misrepresentation, or deceptive or unfair trade practices under CUTPA, is a question of fact for the trier, to which, on appellate review, we accord our customary deference.” Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 505, 746 A.2d 1277 (2000). “[W]here 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.” (Internal quotation marks omitted.) Kenney v. Healey Ford-Lincoln-Mercury, Inc., 53 Conn. App. 327, 330, 730 A.2d 115 (1999). “The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court.” (Internal quotation marks omitted.) Ancona v. Manafort Bros., Inc., 56 Conn. App. 701, 715, 746 A.2d 184, cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000). Furthermore, “[t]he rule is that a seller may not, under the circumstances, have a duty to speak, although if he does assume to speak, he must make a full and fair disclosure as to the matters upon which he assumes to speak. He must avoid deliberate nondisclosures.” Catucci v. Ouellette, 25 Conn. App. 56, 59, 592 A.2d 962 (1991).

After reciting the “cigarette rule,” which is the standard by which Connecticut courts measure whether conduct is unfair under CUTPA; see, e.g., Murray v. Taylor, 65 Conn. App. 300, 337, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001); the court held that the “representations made to [the] Tanpiengcos were material and deceptive.” John Houston, a former tenant of the property, testified that Fappiano knew that the property abutted a former landfill. In addition, there was evidence that a portion of the property was itself a part of the former landfill. Donald J. Fittings, an environmental consultant, testified regarding the possible dangers attached to property on or adjoining a landfill area. On the basis of those facts and the record as a whole, we conclude that the court had ample support to draw the conclusion of fraudulent nondisclosure by the defendants. See Catucci v. Ouellette, supra, 25 Conn. App. 59. Thus, the court’s finding of a CUTPA violation was not clearly erroneous.

The defendants also challenge the court’s damages award. Specifically, they argue that the court improperly awarded punitive damages in the amount of $20,000 because (1) actual damages were only $2447.54, (2) the damages arose out of the plaintiffs’ unilateral rescission of the contract and (3) their decision to rescind was based on other factors in addition to the misrepresentation of the character of the surrounding land. The court, however, clearly based the award on the CUTPA claim.

“A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he [or she] must establish that the conduct at issue constitutes an unfair or deceptive trade practice. . . . Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered.” (Internal quotation marks omitted.) Reader v. Cassar-ino, 51 Conn. App. 292, 299, 721 A.2d 911 (1998). In addition, “[a]warding punitive damages and attorney’s fees under CUTPA is discretionary . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done. . . . [T]o award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights.” (Citations omitted; internal quotation marks omitted.) Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987).

Because there was evidence that the defendants deliberately misrepresented the character of the surrounding property, we conclude that the court did not abuse its discretion in awarding punitive damages, attorney’s fees and costs as to the plaintiffs’ CUTPA claims.

The judgment is affirmed.

       The named defendant, Maria Tasto, is not a party to this appeal. We refer in this opinion to Christine Fappiano and Shoreline Real Estate Company as the defendants.

       The defendants’ claims on appeal can be restated as follows. The court improperly (1) found that they had misrepresented a material fact and (2) awarded punitive damages in the amount of $20,000 when the plaintiffs (a) never purchased the property at issue, (b) demonstrated actual damages of only $2447.54 and (c) unilaterally rescinded the contract.

       The remaining three counts are not at issue in this appeal. Because the defendants appeal from only the third count of the complaint, we limit our analysis to the court’s finding of a CUTPA violation.


author: PETERS, J.

text:
    ANQUILLARE, LIPNICKI, RUOCCO AND COMPANY v. VCR REALTY ASSOCIATES ET AL.
    (AC 22004)
    Schaller, Bishop and Peters, Js.

      Argued June 3
    officially released October 8, 2002

      Mark T. Kelly, for the appellant (plaintiff).

      Joel M. Jolles, for the appellees (defendants).
   Opinion

PETERS, J.

Pursuant to the United States Bankruptcy Code, if a Bankruptcy Court authorizes an accounting firm to provide professional services, the firm may request payment of its fees during the administration of the bankrupt estate. 11 U.S.C. § 503 (b). If the firm has not received payment before the dismissal of the bankruptcy proceedings, it becomes a general creditor of the debtor who initiated bankruptcy proceedings. 11 U.S.C. § 349 (b). In this case, we must determine how long the firm may wait to assert its claim against that person. Specifically, we must decide when the firm’s claim accrued for the purpose of a statute ofhmitations. The trial court held that the claim accrued at the time when the firm completed its services for the bankruptcy estate. The firm argues, however, that the claim accrued at the time when the bankruptcy petition was dismissed without any distribution of the assets of the bankruptcy estate. We agree with the firm and reverse the judgment of the trial court.

The plaintiff, Anquillare, Lipnicki, Ruocco & Company, an accounting firm, brought an action for breach of contract against the defendant partnership, VCR Realty Associates. The plaintiff alleged that the defendant had filed a petition for protection against creditors pursuant to chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101 et seq., and that, two years later, the defendant had obtained a dismissal of the petition. The plaintiff further alleged that, during this interval, it had performed accounting services for the bankruptcy trustee, the debtor in possession, for which the plaintiff had not been paid during the pendency of the bank-raptcy proceedings. The plaintiff sought to recover its fees, interest and attorney’s fees.

The defendant did not dispute the plaintiffs factual allegations. Furthermore, it did not dispute that, after the dismissal of the bankruptcy petition, the bankruptcy estate revested in the defendant; 11 U.S.C. § 349 (b); and that the defendant thereupon became liable for costs associated with postpetition transactions. In re Safren, 65 B.R. 566, 571 (Bankr. C.D. Cal. 1986); 3 W. Collier, Bankruptcy (15th Ed. Rev. 2000) § 349.03. Instead, the defendant filed an affirmative defense based on the alleged expiration of the applicable statute of limitations. The trial court rendered a judgment in favor of the defendant on that issue.

The parties stipulated to most of the relevant facts. On November 30,1992, the defendant sought chapter 11 protection. Thereafter, until July 16, 1993, the plaintiff performed accounting services worth $4013.46. On November 23, 1994, in response to a motion by the defendant, the bankruptcy petition was dismissed. On March 31, 2000, the plaintiff brought the present cause of action.

The trial court made two additional findings. First, it implicitly found that the plaintiffs fees were administrative expenses of the bankruptcy estate when it stated that the plaintiff might have filed a claim pursuant to 11 U.S.C. § 503 (b). That section deals only with recovery for administrative expenses. Second, it found that “according to the plaintiff ... [its services] were provided with the approval of the [Bankruptcy] Court.” Significantly, the court did not say that the defendant contested this allegation.

In its appellate brief, the defendant disputes these findings. The defendant did not dispute them at trial. It filed no motion for articulation to clarify the court’s opinion. See Practice Book § 66-5. In its appeal, the defendant has not raised any claim of alternate grounds for affirmation of the trial court’s judgment. All that we have before us are repeated assertions in the defendant’s brief that ask us to ignore the court’s findings. In effect, the defendant would have us decide this case on facts directly opposite to those found by the trial court. It is axiomatic that this court cannot find facts. This case must be reviewed on the facts found by the trial court.

The trial court concluded that General Statutes § 52-576 (a) barred the plaintiffs claim for relief. This statute provides, in relevant part: “No action for an account . . . shall be brought but within six years after the right of action accrues . . . .” The court rejected the argument of the plaintiff that its cause of action accrued on the date on which the bankruptcy petition was dismissed. Instead, it agreed with the defendant that the claim accrued on the date on which the plaintiff completed the accounting services that it rendered to the defendant in its role as bankruptcy trustee.

In coming to its conclusion, the court held that ongoing bankruptcy proceedings did not toll the accrual of the plaintiffs postpetition claim. In the court’s view, the statute of limitations began to run when the plaintiff completed its services to the bankruptcy estate because the plaintiff could have, and inferentially should have, sought payment from the bankruptcy trustee while the bankruptcy proceedings were pending.

In its appeal, the plaintiff challenges the validity of the court’s conclusion of law. Our review of the issues, therefore, is plenary. Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 598, 790 A.2d 1178 (2002); Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000); Shoreline Communications, Inc. v. Norwich Taxi, LLC, 70 Conn. App. 60, 65, 797 A.2d 1165 (2002).

We agree with the trial court that there are no provisions in the federal Bankruptcy Code that allow a debt- or’s filing of a bankruptcy petition to toll the running of the statute of limitations with respect to a postpetition claim. See Rogers v. Corrosion Products, Inc., 42 F.3d 292, 297 (5th Cir. 1995); Bennett v. United States Lines, Inc., 64 F.3d 62, 66 (2d Cir. 1995); Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1073 (2d Cir. 1993). Likewise, a postpetition creditor is not entitled to suspension of a statute of limitations because 11 U.S.C. § 108 (c) provides protection only for prepetition creditors. Accordingly, we must decide this case with the understanding that the six year time limitation stated in § 52-576 (a) was in no way extended by the bankruptcy proceeding.

The conclusion that bankruptcy proceedings did not toll or suspend the running of the statute of limitations does not, however, determine the date on which the cause of action accrued. Unless an applicable statute provides to the contrary, “[t]he true test [for accrual] is to establish the time when the plaintiff first could have successfully maintained an action.” (Internal quotation marks omitted.) Polizos v. Nationwide Mutual Ins. Co., 255 Conn. 601, 609, 767 A.2d 1202 (2001); Wynn v. Metropolitan Property & Casualty Ins. Co., 30 Conn. App. 803, 808, 623 A.2d 66 (1993), aff'd, 228 Conn. 436, 635 A.2d 814 (1994).

The trial court held that the plaintiffs cause of action accrued upon the completion of its services to the bankruptcy estate because, in the court’s view, the plaintiff had a right to payment at that time. It relied on a non-bankruptcy case for the proposition that a common-law right of action accrues upon the completion of the services rendered. See R.A. Civitello Co. v. New Haven, 6 Conn. App. 212, 215-16, 504 A.2d 542 (1986). The court concluded that bankruptcy law was to the same effect. It held that, upon completion of its services, the plaintiff could have obtained immediate payment from the Bankruptcy Court. For this proposition, the court relied on 11 U.S.C. § 503 (b), which permits administrative creditors to seek immediate allowance of their claims. It held that the plaintiffs contract claim was time barred because, as a result of 11 U.S.C. § 503 (b), it accrued upon the plaintiffs completion of its professional services. The plaintiff contests the validity of the court’s conclusion.

On its face, 11 U.S.C. § 503 (b) appears to support the reasoning of the trial court. In relevant part, 11 U.S.C. § 503 (b) provides: “After notice and a hearing [before the Bankruptcy Court], there shall be allowed administrative expenses . . . including — (1) (A) the actual, necessary costs of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case . . . .” (Emphasis added.) This statute does not, however, describe the consequences that attach to the allowance of a claim for payment.

The meaning of “shall be allowed” in 11 U.S.C. § 503 (b) is clarified by 11 U.S.C. § 331, entitled “Interim compensation.” That statute addresses the right of compensation of an administrative creditor who has been authorized to provide professional services for the bankruptcy estate. For such a claimant, a Bankruptcy Court “may allow and disburse . . . compensation or reimbursement.” (Emphasis added.) Indeed, federal cases hold that even “[i]nterim fee awards are not final determinations intended to put a matter to rest. Rather, they are interlocutory and reviewable.” 11 U.S.C. § 331. In re Evangeline Refining Co., 890 F.2d 1312, 1322 (5th Cir. 1989); see also In re Anolik, 207 B.R. 34, 37 (Bankr. D. Mass. 1997) (interim compensation awards are interlocutory and subject to disgorgement).

Two principles flow logically from the juxtaposition of §§ 503 (b) and 331. First, bankruptcy law distinguishes between the allowance of a claim and the disbursement of moneys for its payment. Second, bankruptcy law leaves any decision about disbursements to the discretion of the Bankruptcy Court.

It follows from these principles that, although the plaintiff might have presented its bills to the debtor in possession, acting as bankruptcy trustee, it had no duty to do so. It had no right to require the Bankruptcy Court to pay these bills at that time.

There was no event before the dismissal of the bankruptcy petition that would have triggered an obligation to request timely payment. During bankruptcy proceedings, there is “no bar date to filing requests for the allowance of administrative expenses under § 503 . . . .” In re Megafoods Stores, Inc., 163 F.3d 1063, 1071 (9th Cir. 1998). “Neither the Bankruptcy Code nor the Federal Rules of Bankruptcy Procedure . . . set forth a deadline within which administrative claims must be filed . . . .” (Internal quotation marks omitted.) In re Southern Soya Corp., 251 B.R. 302, 311 (Bankr. D.S.C. 2000). The timing for filing a request for payment of administrative expenses is a matter to be determined within the discretion of the Bankruptcy Court. 4 W. Collier, Bankruptcy, supra, § 503.02 [2].

This case would have been different if the bankruptcy proceedings had resulted in a distribution plan. The plaintiff would then have been required to seek payment as a priority claimant to the bankrupt’s assets. 11 U.S.C. § 1107. Indeed, even earlier, if the plaintiff had been notified of a claim bar date, it would have been required to file a proof of claim with the Bankruptcy Court before the deadline established by the court. 11 U.S.C § 1111 (a); Rules of Bankruptcy Procedure, Rule 3003 (c) (2); Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 383, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993). Under the circumstances of this case, these requirements are inapplicable.

On the present record, upon the completion of its accounting services, the plaintiff had the right to request payment but no right to require payment. The test for the accrual of a cause of action is not met by a demonstration that a claimant had a right to request payment. The statute does not begin to run before the time “when the plaintiff first could have successfully maintained an action.” (Internal quotation marks omitted.) Polizos v. Nationwide Mutual Ins. Co., supra, 255 Conn. 609. The first time that the plaintiff could have maintained an action was the date of the dismissal of the bankruptcy petition.

In sum, the trial court improperly concluded that the plaintiffs cause of action accrued before the dismissal of the bankruptcy petition filed by the defendant. The plaintiffs complaint was timely. Because the defendant has not claimed that the court’s judgment should be affirmed on any other ground, the plaintiff is entitled to be paid for the services that it rendered to the bankruptcy trustee during the pendency of the bankruptcy petition.

The amount of the plaintiffs damages have, however, not yet been determined with respect to interest and fees. Upon remand, the trial court must make this determination.

The judgment is reversed and the case is remanded with direction to render judgment for the plaintiff on the merits of its claim and for further proceedings to determine the amount of the judgment.

In this opinion the other judges concurred.

       Section 503 (b) of title 11 of the United States Code, entitled “Allowance of administrative expenses,” provides in relevant part:
      “(a) An entity may timely file a request for payment of an administrative expense, or may tardily file such request if permitted by the court for cause.
      “(b) After notice and a hearing, there shall be allowed, administrative expenses . . . including—
      “(1) (A) the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case ....
      “(4) reasonable compensation for professional services rendered by an attorney or an accountant of an entity whose expense is allowable under paragraph (3) of this subsection, based on the time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title, and reimbursement for actual, necessary expenses incurred by such attorney or accountant. . .

       Section 349 of title 11 of the United States Code, entitled “Effect of dismissal,” provides in relevant part: “(b) Unless the court, for cause, orders otherwise, a dismissal of a case other than under section 742 of this title . . . (3) revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case under this title.”

       VCR Realty Associates is a. partnership. The plaintiff also named as defendants its general partners, Vincent Farricielli and Richard Farricielli. Under partnership law, the partners were jointly and severally liable for the debts of the partnership. General Statutes § 34-327 (a). For convenience, we will refer to all three as the defendant, in the singular.

       The fact that the postpetition bankruptcy estate was being administered by the debtor in possession, rather than by a trustee, is of no legal significance, under the circumstances of this case, because 11 U.S.C. § 503 (b) does not differentiate between an appointed trustee or a debtor in possession. Bellus v. United States, 125 F.3d 821, 823-24 (9th Cir. 1997).

       The defendant withdrew its second affirmative defense relating to the statute of frauds.

       Although the parties stipulated that the plaintiff had performed services worth $5513.46, it performed $1500 of these services on November 9, 1992, before the filing of the bankruptcy petition. In its appeal, the plaintiff has withdrawn its claim to recover this $1500.

       In its appellate brief, the defendant disputes the latter finding. It maintains that the services provided by the plaintiff were not administrative services because the Bankruptcy Court had not held any hearings in that respect. This argument comes too late. The defendant made no effort, at trial, to seek rectification or articulation of the findings of the trial court. We have no way of knowing the basis for the court’s statement.To state the obvious, we do not make findings of fact.

       On the present record, we presume that no request for payment was then made.

       In this appeal, the plaintiff has not challenged the trial court’s conclusion that the statute of limitations barred the plaintiffs right to obtain payment for accounting services that it performed before the initiation of bankruptcy proceedings.

       Section 108 of title 11 of the United States Code, entitled “Extension of time,” provides in relevant part:
      “(c) Except as provided in section 524 of this title, if applicable nonbank-ruptcy law, an order enteredinanonbankruptcyproceeding, or an agreement fixes a period for commencing or continuing a civil action in a court other than a Bankruptcy Court on a claim against the debtor, or against an individual with respect to which such individual is protected under section 1201 or 1301 of this title, and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of—
      “(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
      “(2) 30 days after notice of the termination or expiration of the stay under section 362, 922,1201, or 1301 of this title, as the case may be, with respect to such claim.”

       The statute does not apply to the claims of the plaintiff, a postpetition creditor. For prepetition creditors, the statute permits claims to be filed within thirty days of the termination of bankruptcy proceedings. The statute suspends the operation of statutes of limitation to provide a remedy for creditors who, because of the automatic stay in bankruptcy procedings; see 11 U.S.C. § 362; could not enforce their claims while bankruptcy proceedings were pending. See, e.g., In re Etherton, 88 F. Sup. 874, 879 n.15 (S.D. Cal. 1950); In re Berg, 33 F. Sup. 700, 702-703 (D. Minn. 1940), cited in Bridgeport v. Debek, 210 Conn. 175, 188, 554 A.2d 728 (1989).

       Administrative creditors receive special treatment during bankruptcy proceedings to induce them to continue to provide services that are needed by the bankruptcy estate. See In re Merry-Go-Round Enterprises, Inc., 180 F.3d 149, 158 (4th Cir. 1999); In re TransAmerican Natural Gas Corp., 978 F.2d 1409, 1415-16 (5th Cir. 1992).

       Section 331 of title 11 of the United States Code provides: “A trustee, an examiner, a debtor’s attorney, or any professional person employed under section 327 or 1103 of this title may apply to the court not more than once every 120 days after an order for relief in a case under this title, or more often if the court permits, for such compensation for services rendered before the date of such an application or reimbursement for expenses incurred before such date as is provided under section 330 of this title. After notice and a hearing, the court may allow and disburse to such applicant such compensation or reimbursement.”

       Section 1107 of title 11 of the United States Code, entitled “Rights, powers, and duties of debtor in possession,” provides in relevant part: “(a) Subject to any limitations on a trustee serving in a case under this chapter, and to such limitations or conditions as the court prescribes, a debtor in possession shall have all the rights, other than the right to compensation under section 330 of this title, and powers, and shall perform all the functions and duties ... of a trustee serving in a case under this chapter.”

         Section 1111 (a) of title 11 of the United States Code, entitled “Claims and interests,” provides in relevant part: “A proof of claim or interest is deemed filed under section 501 of this title for any claim or interest that appears in the schedules . . . except a claim or interest that is scheduled as disputed, contingent, or unliquidated.”

       Rules of Bankruptcy Procedure, Rule 3003 (c) (2), provides in relevant part: “Any creditor or equity security holder whose claim or interest is not scheduled or scheduled as disputed, contingent, or unliquidated shall file a proof of claim or interest within the time prescribed . . . any creditor who fails to do so shall not be treated as a creditor with respect to such claim for the purposes of voting and distribution.”