author: DOWNEY, J.

text:
    STATE OF CONNECTICUT v. DANARIUS DUKES
    (AC 15478)
    O’Connell, C. X, and Lavery and Downey, Js.
    Argued March 5
    officially released September 16, 1997

      Rebecca L. Johnson, special public defender, for the appellant (defendant).

      Richard F. Jacobson, supervisory assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard Eisenman, assistant state’s attorney, for the appellee (state).
   Opinion

DOWNEY, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), attempted robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (1) and conspiracy to commit robbery in the first degree in violation of General Statutes § § 53a-48 and 53a-134. On appeal the defendant claims that (1) the trial court improperly failed to instruct the juiy on inconsistency of intents, and (2) the evidence was insufficient to sustain the convictions. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On February 27, 1993, between the hours of 12 noon and 3 p.m., the victim, Monroe Hall, was in the municipal bus terminal in Bridgeport waiting to board a bus. During that period, several persons, including the defendant, entered the terminal. Shortly thereafter, the victim proceeded to the rear of the terminal, intending to make a telephone call. As the victim approached the area, he was grabbed from behind, pushed against a wall and turned around. He found himself facing the defendant, Reginald Reese and another male in close proximity to him. The defendant pointed a handgun at the victim’s face. The victim understood that he was being robbed, and as he attempted to reach for his belongings, he shifted to give himself some room. At that point, he was shot in the face by the defendant. The trio then fled the terminal. The victim sustained massive head trauma, lost the sight in his right eye and underwent extensive surgery.

I

The defendant first claims that the jury verdict resulting in his conviction of attempted murder and assault in the first degree was “legally inconsistent” and that the trial court’s failure to so instruct the jury resulted in the deprivation of his federal and state constitutional rights to due process of law. As part of this argument, the defendant urges that in this case, due to the brevity of the incident, it is highly unlikely that he could have intended to cause serious physical injury to the victim while at the same time intending to cause the victim’s death. The defendant neither filed a request to charge raising this issue nor noted an exception to the instructions as given, and, therefore, this claim is unpreserved. The defendant requests, however, review of this claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), arguing that this claim implicates his due process rights to an adequately instructed jury.

This claim is reviewable under Golding. State v. Jones, 44 Conn. App. 476, 488, 691 A.2d 14, cert. denied, 241 Conn. 901, 693 A.2d 304 (1997). We reject the defendant’s claim, however, on the basis of our Supreme Court’s holding in State v. Williams, 237 Conn. 748, 679 A.2d 920 (1996).

In State v. Williams, supra, 237 Conn. 748, the Supreme Court held that the intent to cause death and the intent to cause serious physical injuiy are not mutually exclusive as a matter of law. In Williams, as in the present case, the defendant claimed that the trial court’s instruction improperly permitted the jury to render an inconsistent guilty verdict on the counts of attempted murder and assault in the first degree. The court rejected that argument, stating that “[t]he defendant’s argument founders on the mistaken presumption that one who intends to kill a person may not also intend to cause serious physical injury to that person. We can perceive no logical reason to preclude, as a matter of law, the simultaneous possession of these intents by a defendant toward the same victim. It is entirely consistent and reasonable, under the facts of a particular case, for a jury to find that a defendant intended to inflict serious wounds upon a victim while also intending to cause that victim’s death.” Id., 754-55; see also State v. Hinton, 227 Conn. 301, 318, 630 A.2d 593 (1993) (“[i]t is clear that an assault in violation of § 53a-59 [a] [1] and [2] would be consistent with an attempted murder count in violation of § § 53a-49 and 53a-54a if [the victim] were the defendant’s intended victim, because those statutory sections require intentional conduct”).

The defendant argues, however, that under the facts of this case, it was unreasonable for the jury to find that he simultaneously possessed the intent to cause serious physical injury to the victim and the intent to cause the victim’s death. The defendant argues that this was an extremely brief incident and that the surrounding circumstances do not lend themselves to a conclusion that there could have been more than one criminal intent.

The defendant, in asking this court to find the jury’s verdict unreasonable, is asking us to find that it was impossibile for the defendant to possess the two intents simultaneously when so acting. This we decline to do. We conclude that, in the circumstances of this case, the jury reasonably could have inferred from the defendant’s conduct that he possessed, at the same time and by the same act, the intent to cause the victim serious physical injury while he was attempting to kill the victim. See State v. Williams, supra, 237 Conn. 757. “Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one.” (Internal quotation marks omitted.) Id.; State v. DeJesus, 236 Conn. 189, 197, 672 A.2d 488 (1996); State v. Patterson, 229 Conn. 328, 333, 641 A.2d 123 (1994).

We conclude that a charge to the jury instructing that the intents at issue were mutually exclusive would have been incorrect.

II

We next address the defendant’s claim that the evidence was insufficient to support any of his four convictions. The defendant would be entitled to an acquittal of a charge on which he claims insufficient evidence if he prevails on his claim. A defendant has a fundamental right, protected by the due process clause of the federal and state constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).

In reviewing the sufficiency of the evidence, we apply the two part test delineated in State v. Traficonda, 223 Conn. 273, 278, 612 A.2d 45 (1992): “ ‘First, we construe the evidence in the light most favorable to sustaining the verdict. 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.’ ” See State v. Bova, 240 Conn. 210, 245, 690 A.2d 1370 (1997); State v. Synakorn, 239 Conn. 427, 435-36, 685 A.2d 1123 (1996); State v. Tomasko, 238 Conn. 253, 257, 681 A.2d 922 (1996). “That the evidence is circumstantial rather than direct does not diminish the probative force of that evidence.” State v. DePastino, 228 Conn. 552, 570, 638 A.2d 578 (1994). “[Contradiction between the testimony of different witnesses and confusion in the testimony is precisely the type of factual conflict that Anglo-American jurisprudence has traditionally entrusted to the jury.” State v.Bember, 183 Conn. 394, 398, 439 A.2d 387 (1981); State v. Gaynor, 182 Conn. 501, 504, 438 A.2d 749 (1980). In reviewing a claim of insufficiency of evidence, we give deference not to the hypothesis of innocence posed by the defendant, but to the evidence and the reasonable inferences drawn therefrom that support the jury’s determination of guilt. State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994).

In arguing insufficiency of evidence, the defendant relies primarily on two facts: (1) the victim identified Reese as the shooter; and (2) the state nolled the charges against Reese that had been filed with reference to this crime. Since there was “no substantial case” against Reese, who was identified by the victim as “the principal actor,” the defendant argues that it is impossible to “impute” to the defendant the intent to commit murder, assault in the first degree, robbery in the first degree, or conspiracy to commit robbery in the first degree. According to the defendant, because there was no case against Reese as the principal, it is impossible to justify imputing to the defendant an intent to commit murder or assault in the first degree on the basis of the defendant’s mere presence at the scene.

The defendant’s argument collapses under the Trafi-conda test. Other people testified that the defendant was the shooter and that the defendant was a participant in the attempted robbery. Specifically, Reese made an in-court identification of the defendant as the individual who shot the victim. Dawn Dunbar, who was in the bus terminal the day of the shooting, testified that she observed the defendant shoot the victim. Kisha Porcher was also present in the bus terminal and, although she did not see the shooting, testified that she saw the defendant with a gun. Bernard Pettway testified that, on the day after the shooting, the defendant told him that the defendant had “shot and robbed a kid” but that the defendant did not tell him where it occurred.

On appeal, the defendant asks this court to sort through the evidence, discarding that which tends to support his guilt. This we cannot do. There was ample evidence in the record to support the jury’s conclusion that the defendant was guilty of the crimes of attempted murder, assault in the first degree, attempted robbery in the first degree and conspiracy to commit robbery in the first degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       The victim testified regarding what occurred once he was facing the three individuals as follows:
      “[Assistant State’s Attorney:] And then what happened?
      “[The Victim:] Uh, one of the persons brandished a gun and put it in my face.
      “Q. All right, and did they say anything to you?
      “A. Uh, they said, ‘Run your shit.’
      “Q. They said, ‘Run your shit?’
      “A. Uh-huh.
      “Q. And what did [that] mean to you?
      “A. Uh, this is a robbery. You know, give me everything you have.
      “Q. And what happened then?
      “A. Uh, I stayed stung for a quick second, but, uh they had me so tied up against the wall I was unable to move. So, I just tried to move a little bit, you know, give myself some room to proceed and give them, uh, my items and that’s when the shot went off.”

       The defendant did raise the issue of the inconsistency of the jury verdict in a motion for judgment of acquittal argued to the court after the jury returned its verdict.

       Under Golding, a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40. The first two conditions under Golding are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. State v. Bouier, 44 Conn. App. 548, 553 n.2, 690 A.2d 889, cert. denied, 241 Conn. 903, 694 A.2d 40 (1997), citing Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992).

       We note that the defendant’s brief, filed on June 25, 1996, relied on this court’s decision in State v. Williams, 39 Conn. App. 18, 663 A.2d 436 (1995), to support the claim that the trial court improperly failed to instruct the jury as to the inconsistency of intents. On July 16, 1996, the Supreme Court released its opinion in State v. Williams, supra, 237 Conn. 748, reversing this court’s judgment.

       Specifically, the victim testified that Reese was the individual who shot him and that the defendant was one of the two individuals who prevented him from moving.


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ANTHONY LEWIS
    (AC 16097)
    O’Connell, C. J., and Foti and Hennessy, Js.

      Argued May 30
    officially released September 16, 1997

      Albert B. Harper, for the appellant (defendant).

      Michael E. O’Hare, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John J. Dropick, senior assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant appeals from the denial of his motion to dismiss the criminal charges pending against him in the judicial district of Hartford. The motion for dismissal was predicated on his acquittal of other criminal charges in the judicial district of Waterbury. The defendant’s claims on appeal are subsumed in the issue of whether the trial court properly held that the collateral estoppel aspect of double jeopardy does not bar prosecution when evidence of the crimes charged was offered as evidence of uncharged misconduct in a prior trial that resulted in an acquittal.

The incident leading to this appeal began at about 5:45 p.m. on August 13, 1994, on Albany Avenue in Hartford. The state alleges that, at that time and place, a person, whom the state claims to be the defendant, engaged in criminal activity including the carjacking of a vehicle together with its driver. When the driver fled the vehicle, the perpetrator took over the vehicle’s operation until he lost control and crashed into a house. The peipetrator fled the scene followed by two occupants of the house in hot pursuit. These events are among those charged in Hartford Docket No. CR94-464653. See footnote 2 of this opinion.

The next activity occurred between 6 and 6:30 p.m. on Sigourney Street in Hartford. At that point, a person, whom the state alleges was the defendant, came running down the street, pursued by two men. The runner jumped into and drove off in a vehicle that was standing on the street with its engine running. The vehicle’s owner and several friends gave chase in another vehicle. The pursuit continued into downtown Hartford where the stolen vehicle crashed into another vehicle. The driver of the stolen vehicle fled the collision scene on foot until he hailed a taxi. He asked the taxi driver to take him to Hartford Hospital but, on the way to the hospital, changed his mind and asked to be taken to Waterbury instead. These events are among those charged in Hartford Docket No. CR 94-464652. See footnote 2 of this opinion.

Upon arriving in Waterbury, the taxi passenger pulled a gun on the driver, robbed him and stole the taxi. These are the charges for which the defendant was tried before a jury in the Waterbury case. The state was allowed to introduce evidence pertaining to the Hartford crimes as evidence of uncharged misconduct in an effort to show that the defendant was the passenger who committed the Waterbury crimes. The thrust of an alibi defense was that the defendant was at a church festival in Hartford at the times the state claims that he committed both the Hartford and Waterbury crimes. The jury acquitted the defendant in the Waterbury case.

The gravamen of the defendant’s motion to dismiss is that, because evidence of the Hartford crimes was offered as evidence of uncharged misconduct in the Waterbury case, the doctrine of collateral estoppel bars prosecution of the Hartford cases. The defendant relies heavily on the fact that identity was the sole issue he contested in the Waterbury case. This defense was supported by alibi witnesses who placed him at another location during the time of the crimes. Because this was the only defense raised, the defendant argues that his acquittal must of necessity have been based on the jury’s finding that he was not the person who committed the Waterbury crimes. Additionally, the defendant argues that, because the Waterbury crimes were part of one continuous crime spree, the jury’s findings necessarily mean that it has been judicially determined that he was not the person who committed the Hartford crimes and, therefore, he cannot now be prosecuted for them.

“In a criminal case, collateral estoppel is a protection included in the fifth amendment guarantee against double jeopardy.” State v. Hope, 215 Conn. 570, 584, 577 A.2d 1000 (1990), cert. denied, 498 U.S. 1089, 111 S. Ct. 968, 112 L. Ed. 2d 1054 (1991). “Collateral estoppel applies in two ways: (1) it may bar prosecution or argumentation of facts necessarily established in a prior proceeding; or (2) it may completely bar subsequent prosecution where one of the facts necessarily determined in the former trial is an essential element of the conviction the government seeks.” (Internal quotation marks omitted.) State v. Aparo, 223 Conn. 384, 389, 614 A.2d 401 (1992), cert. denied, 507 U.S. 972, 113 S. Ct. 1414, 122 L. Ed. 2d 785 (1993). The defendant contends that the second prong applies to his pending Hartford cases.

The defendant relies heavily on Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). In Ashe, six card players were robbed simultaneously. The state elected to try the robbery of each victim separately. Ashe based his defense solely on identity and was acquitted in the first trial. When the state attempted to try Ashe for robbing the second card player, the court held that the first jury had determined the issue of identity in the defendant’s favor and that reconsideration of that fact by a second jury was barred by collateral estoppel.

Ashe is inapposite. “For estoppel to apply, the fact sought to be foreclosed by [the] defendant must necessarily have been determined in his favor in the prior trial; it is not enough that the fact may have been determined in the former trial. . . . The defendant has the burden of showing that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Aparo, supra, 223 Conn. 406, quoting Dowling v. United States, 493 U.S. 342, 350, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990).

“Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, [the court must] examine the record . . . and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” (Internal quotation marks omitted.) State v. Hope, supra, 215 Conn. 585. Because jury interrogatories are not part of criminal procedure, the judgment in the Waterbury case was of necessity based on a general verdict. Under these circumstances the court must examine the record of the first trial.

The issue submitted to the Waterbury jury was whether the defendant had committed the robbery and larceny that were charged in that case. The only evidence the jury heard about the Waterbury crimes was the testimony of the taxi driver. The trial court properly instructed the jury on the elements of robbery and larceny and on the state’s burden of proof. It is presumed that the jury followed the court’s instructions. State v. Nelson, 17 Conn. App. 556, 558, 555 A.2d 426 (1989).

“Where there is more than one possible reason for the jury’s verdict, and the court . . . cannot say that any one is necessarily inherent in the verdict, the doctrine of collateral estoppel is inapplicable . . . .” (Internal quotation marks omitted.) United States v. Irvin, 787 F.2d 1506, 1515 (11th Cir. 1986).

In Aparo v. Superior Court, 956 F. Sup. 118 (D. Conn. 1996), aff'd, 129 F.3d 113 (2d Cir. 1997), the United States District Court considered a theory similar to that advanced by the defendant in the present case. In that federal habeas corpus case, the petitioner argued that the jury, by its acquittal of an accessoiy to murder charge, necessarily found that the petitioner had lacked the specific intent to kill, thereby barring a subsequent trial on a charge of conspiracy to commit murder. The District Court reviewed the evidence and determined that the jury was continually faced with conflicting interpretations of whether the petitioner had had the intent to cause her mother’s death. Id., 126-27. Given the evidence of intent, the District Court concluded that the jury, in its general verdict, determined that the defendant had not intended to kill. Id., 127. Consequently, the court held that the subsequent charge of conspiracy to commit murder violated the principles of collateral estoppel incorporated in the prohibition against double jeopardy. Id., 127-28.

In the present case, there is more than a limited ambiguity in the general verdict. The alibi defense does not limit the jury’s finding to one of identity because the other elements of the crimes still must be proved beyond a reasonable doubt. In the Aparo case, the petitioner had testified and admitted the actus reus of the alleged crime, denying only the intent to kill. Here, the defendant admitted nothing.

The federal Aparo case is similar to Ashe v. Swenson, supra, 397 U.S. 436, because, in both cases, the subsequent retrial involved the same conduct, i.e., the robbery of several card players in Ashe, and the murder of the petitioner’s mother in Aparo. In the case now before us, the subsequent trial on the Hartford crimes presents different charges and different alleged conduct. In the present case, the state must present evidence to prove beyond a reasonable doubt that the defendant committed the Hartford crimes, and the state is not limited to the evidence of identification involving the Hartford crimes that was presented in the Waterbury case.

The defendant contends that an alibi defense logically admits all elements of the crime except identity, because a defendant cannot have knowledge of the other elements if he claims he was not present at the scene of the crime. This argument confuses a plaintiff s burden of proof in a civil action with the state’s burden of proof in a criminal prosecution. This case does not involve a waiver of the defendant’s due process right to proof of an element. See State v. Cooper, 38 Conn. App. 661, 670, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995). Depending on the pleadings, the plaintiff in a civil action may be relieved of its burden of introducing evidence to prove an allegation by a defendant’s admissions, but in a criminal prosecution the state bears the burden of proving each and every element of the crime charged. Giving notice of an alibi defense, pursuant to Practice Book §§ 762 through 768, does not relieve the state, in any measure, of its burden of proof of any elements.

The defendant’s contention would mean that his identity would be the only issue that had to be submitted for the jury’s consideration. This, of course, is not the case. The fact that the defendant may have chosen not to cross-examine vigorously the state’s witnesses does not mean that the jury was excused from deciding all of the issues submitted to it in the court’s instructions. In considering all of the issues, the Waterbury jury in this case may have found the state’s case wanting on any one or more of the elements.

The jury reasonably could have found that the defendant was not the person who committed the crimes that occurred in Waterbury without reaching the issue of whether he committed the crimes in Hartford. The state presented evidence of the Hartford crimes to support the identity elements of the Waterbury crimes. The state, however, was not required to prove beyond a reasonable doubt that the defendant committed the Hartford crimes. Accordingly, the jury reasonably could have determined that the state had not met its burden on any or all of the elements of the Waterbury crimes without determining whether the defendant was involved in the Hartford crimes.

We conclude that the defendant has not sustained his burden of showing that the identity issue that he seeks to foreclose from relitigation was actually decided in the Waterbury case. The trial court properly denied the motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court wrote its memorandum of decision on the bottom of the defendant’s motion to dismiss as follows: “The defendant misconstrues [Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970)]. Its application to [this case] is misplaced. The defendant’s suggestion that the risk of prior acts of his conduct in a trial triggers a double jeopardy in the event of an acquittal is rejected. Ashe and the instant case are factually at variance. Additionally, the trial judge cautioned the jury that the defendant’s participation in prior acts was not at issue before them.”

       The charges pending against the defendant in Hartford in Docket No. CR 94-464653 are robbery in the first degree in violation of General Statutes §§ 53a-133 and 53a-134, kidnapping in the first degree in violation of General Statutes § 53a-92, robbery of an occupied vehicle in violation of Public Acts 1993, No. 93-204, now codified as General Statutes § 53a-136a, attempted assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 and assault in the second degree in violation of General Statutes § 53a-60.
      The charges pending against him in Docket No. CR 94-464652 are kidnapping in the second degree in violation of General Statutes § 53a-94, larceny in the third degree in violation of General Statutes §§ 53a-119 and 53a-124 and risk of injury to a child in violation of General Statutes § 53-21.

       In the judicial district of Waterbury the defendant had been charged with robbery in the first degree and with larceny in the second degree in violation of General Statutes §§ 53a-119 and 53a-123.

       The petitioner was initially charged with being an accessory to murder and with conspiracy to commit murder. The jury acquitted the petitioner on the accessory charge but was unable to reach a verdict on the conspiracy charge. The federal habeas corpus case arose out of the state’s attempt to retry the petitioner on the conspiracy charge.

       Regardless of the alibi defense, it was defense counsel’s duty to cross-examine the state’s witnesses and to assure that no evidence was admitted that did not comply with the rules of evidence. A defendant is not properly represented by counsel who sits idly by during the state’s case, waiting to put on his alibi defense.

       In a civil action, an opponent’s admission relieves the pleader of the burden of proving the factual allegations admitted. Reese v. First Connecticut Small Business Investment Co., 182 Conn. 326, 329, 438 A.2d 99 (1980); Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199, 286 A.2d 308 (1971).


author: LANDAU, J.

text:
    ELEANOR SIVILLA ET AL. v. PHILIPS MEDICAL SYSTEMS OF NORTH AMERICA, INC., ET AL.
    (AC 15291)
    Lavery, Landau and Healey, Js.

      Argued May 30
    officially released September 16, 1997

      Lois Tanzer, with whom, on the brief, was Tanya Feliciano, for the appellant (intervening plaintiff).

      James E. O’Donnell, with whom was David J. McDonald, for the appellees (defendants).
   Opinion

LANDAU, J.

The intervening plaintiff, Saint Mary’s Hospital (St. Mary’s), appeals from the judgment, rendered after a jury trial, of indemnification in favor of the defendants, Philips Medical Systems of North America, Inc., and North American Philips Corporation (Philips) on their counterclaim. On appeal, St. Mary’s argues that the trial court improperly (1) rendered judgment in the absence of subject matter jurisdiction, (2) admitted evidence of the underlying judgment, (3) found that an enforceable indemnity agreement existed between St. Mary’s and Philips, and (4) found that the action was not time barred. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In August, 1988, the plaintiff Eleanor Sivilla, an employee of St. Mary’s, sustained work-related injuries when an X ray machine fell on her. St. Mary’s had purchased the X ray machine from Philips in October, 1980. In August, 1990, Sivilla commenced a products liability action against Philips. Sivilla’s husband, Mathew Sivilla, joined in the action seeking damages for loss of consortium. In January, 1992, St. Mary’s intervened by way of an amended complaint in Sivilla’s product liability action seeking reimbursement from Philips for workers’ compensation benefits paid to Sivilla. Philips filed an answer, special defenses and a counterclaim. The counterclaim alleged an independent legal relationship between Philips and St. Mary’s based on a purchase and sale contract that provided that St. Mary’s would indemnify and hold Philips harmless from all claims and judgments arising out of or in connection with the operation of the product by St. Mary’s.

In June, 1993, Philips moved for summary judgment on St. Mary’s intervening complaint on the ground that the products liability statutes barred employers from intervening or asserting a lien if the claim against the third party is a products liability claim. The trial court granted Philips’ motion for summary judgment on the ground that General Statutes (Rev. to 1993) § 52-572r (c) precluded the cause of action by St. Mary’s against Philips. In February, 1995, following a mediation conference, Sivilla and Philips filed a stipulated judgment for Sivilla to recover $750,000 in the underlying action.

Philips proceeded to trial against St. Mary’s on the indemnification counterclaim. On May 3, 1995, the jury returned a verdict in the amount of $750,000 on behalf of Philips. St. Mary’s moved postverdict to set aside the verdict, for judgment notwithstanding the verdict and for a set off of the amounts paid under the Workers’ Compensation Act. The trial court, in a thorough memorandum of decision, denied the motion by St. Mary’s to set aside the verdict and for judgment notwithstanding the verdict. This appeal followed.

I

St. Mary’s first claims that the trial court improperly rendered judgment in the absence of subject matter jurisdiction. St. Mary’s argues that Philips’ action for indemnification is barred by the Product Liability Act and the “exclusive remedy” provisions of the Workers’ Compensation Act. We disagree.

We first address the issue of subject matter jurisdiction of this court. “Lack of subject matter jurisdiction may be raised at any time. . . . Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.” (Citations omitted; internal quotation marks omitted.) Second Injury Fund v. Lupachino, 45 Conn. App. 324, 330, 695 A.2d 1072 (1997). It is well settled that statutes are to be read as favoring subject matter jurisdiction, absent a clear indication of legislative intent to limit it. Doe v. Statewide Grievance Committee, 240 Conn. 671, 684, 694 A.2d 1218 (1997).

General Statutes (Rev. to 1993) § 52-572r (d) of the Product Liability Act provides: “In any product liability claim for personal injury or death arising out of and in the course of employment subject to the provisions of sections 52-240a, 52-240b, 52-572m to 52-572r, inclusive, and 52-577a, brought against any third party, such third party may not maintain any action for indemnity against any person immune from liability.” No language exists in this statute which implicates the trial court’s subject matter jurisdiction over this action, as claimed by St. Mary’s. Therefore, we conclude that the trial court had subject matter jurisdiction over this case.

Philips further argues that, because the trial court had subject matter jurisdiction and St. Mary’s failed to plead immunity as a special defense or otherwise to raise the defense at trial, the issue of whether St. Mary’s was entitled to immunity under the Workers’ Compensation Act was not properly preserved and, therefore, is not reviewable by this court. We agree.

Our Supreme Court has determined that immunity must be raised as a special defense in the pleadings. See Gauvin v. New Haven, 187 Conn. 180, 184-85, 445 A.2d 1 (1982). “ ‘The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway.’ ” Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 24, 664 A.2d 719 (1995). If St. Mary’s was immune from liability, as it claimed under the exclusive remedy provision of the Workers’ Compensation Act, it was incumbent upon St. Mary’s to plead that fact as a special defense. St. Mary’s did not do so.

It is true that “[i]n certain limited circumstances, an appellate court will address the issue of whether . . . immunity is available to a defendant where the defense was not specially pleaded. If the question of . . . immunity was fully litigated at trial, without objection from the plaintiff, the plaintiff is deemed to have waived its objection to the requirement that the defense be specially pleaded.” Id., 24-25. In this case, however, St. Mary’s did not raise the issue of immunity at trial, and, therefore, Philips cannot be deemed to have waived its objection. In fact, the first time that St. Mary’s claimed immunity, pursuant to § 52-572r (d), was in its postver-dict motions to set aside the verdict and for judgment notwithstanding the verdict. Accordingly, we decline to review this claim. See id., 27.

II

St. Mary’s next argues that the trial court improperly admitted evidence of the underlying judgment. St. Mary’s concedes that the jury properly considered the fact that a stipulated judgment, including the amount of the judgment, was accepted by the court. St. Mary’s argues, however, that the mediation settlement opinion and the testimony of Sivilla and her attorney regarding the settlement were improperly admitted and considered by the jury.

St. Mary’s argues that it was prejudiced by the reading of the mediation settlement recommendation to the jury, which included unfavorable statements concerning St. Mary’s in that it was asked to participate in the mediation but declined. The trial court did give a curative instruction. St. Mary’s further argues that Sivilla’s attorney was an improper witness because he was not a fact witness to the accident and that his testimony was irrelevant and prejudicial.

Philips argues that the judgment and the attached settlement negotiation were properly admitted, and, if part of the recommendation was prejudicial, that St. Mary’s was obligated to make a specific objection before the trial court to have that prejudicial portion redacted. Philips also argues that the settlement recommendation was relevant and probative on the issue of the reasonableness of the settlement. Finally, Philips argues that any prejudicial impact was avoided by the trial court’s jury instruction.

It is well established that a “trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Citation omitted; internal quotation marks omitted.) New England Savings Bank v. Bedford Really Corp., 238 Conn. 745, 752, 680 A.2d 301 (1996). In its memorandum of decision on St. Mary’s motion to set aside the verdict and for judgment notwithstanding the verdict, the trial court rejected that argument. Where an action for indemnity is brought based on a stipulated judgment, the reasonableness of the settlement is an element that must be proven. Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 160, 681 A.2d 293 (1996). In its jury charge, the trial court instructed the jury that, in evaluating the issue of the reasonableness of the settlement, it could consider the mediation recommendation as one factor, but that it was not bound by the recommendation. Even if we assume that St. Mary’s properly objected to the admission of the recommendation, its claim that it was prejudiced by the admission into evidence of the statement in the recommendation that it was asked to participate but declined fails because the trial court instructed the jury on that issue as well. As a result of our review of the record, we conclude that the trial court did not abuse its discretion by admitting the mediation settlement recommendation.

Ill

St. Mary’s next argues that the trial court improperly found that Philips had established that an enforceable indemnity agreement existed between St. Mary’s and Philips. St. Mary’s argues that the evidence proffered by Philips was insufficient to establish such an indemnity agreement. We disagree.

“To be enforceable, an agreement must be definite and certain as to its terms and requirements. . . . Whether and on what terms a contractual commitment has been undertaken are ultimately questions of fact for the trier of facts.” (Citation omitted; internal quotation marks omitted.) Presidential Capital Corp. v. Reale, 231 Conn. 500, 506-507, 652 A.2d 489 (1994). “Appellate review of findings of fact is limited to deciding whether such findings were clearly erroneous. . . . Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996). A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached.” (Citations omitted; internal quotation marks omitted.) D’Angelo v. McGoldrick, 239 Conn. 356, 363-64, 685 A.2d 319 (1996).

There was substantial evidence regarding the transaction between the parties. Evidence was offered that an original proposal was made to St. Mary’s on a standard Philips proposal form, the back of which contained conditions of sale, including the indemnity provision. St. Mary’s forwarded a purchase order in response thereto, the terms of which were consistent with Philips’ proposal form. Subsequently Philips, after receiving St. Mary’s responsive purchase order, again confirmed the terms and conditions of the sale, and, thereafter, St. Mary’s accepted the equipment. “ ‘A manifestation of mutual assent may be made even though neither offer nor acceptance can be identified and even though the moment of formation cannot be determined.’ 1 Restatement (Second), Contracts § 22 (2) (1981); Rah-mati v. Mehri, [188 Conn. 583, 587 and n.4, 452 A.2d 638 (1982)].” Presidential Capital Corp. v. Reale, supra, 231 Conn. 507. Based on the foregoing, we conclude that the evidence was sufficient to permit a jury reasonably to find that a contract existed between St. Mary’s and Philips.

This does not, however, conclude our analysis on this issue. St. Mary’s argues in the alternative that, even if a contract did exist, the indemnity provision was ambiguous. The indemnity agreement provides in pertinent part that the “Buyer agrees to indemnify and hold Seller harmless from and against all claims, damages, actions, causes of actions, judgments and costs, including reasonable attorney’s fees, arising out of or in connection with the operation of the products by the Buyer, unless caused by the Seller’s negligence.” The jury in rendering its verdict in favor of Philips and the trial court in denying St. Mary’s postverdict motions found that the indemnity provision was not ambiguous. The language of the indemnity provision required St. Mary’s to indemnify Philips for all judgments. We conclude that the language of the express indemnification provision was clear and unambiguous.

IV

St. Mary’s finally argues that Philips’ counterclaim was time barred by General Statutes § 52-577a (a) and (b). St. Mary’s argues that Philips’ counterclaim is untimely because it was not brought within one year from the date the cause of action was returned to court pursuant to § 52-577a (b). Philips contends, however, that § 52-577a applies only to product liability claims, and, since its claim is a contractual claim for indemnification, § 52-577a does not apply and General Statutes § 52-598a, which provides the time limitation for actions for indemnification, controls. Moreover, Philips contends that its claim was brought as a counterclaim and, thus, could be brought at any time before the pleadings were closed.

Section 52-598a sets forth the statute of limitations for actions for indemnification and provides “an action for indemnification may be brought within three years from the date of the determination of the action against the party which is seeking indemnification by either judgment or settlement.” Section 52-598a expressly provides that a cause of action for indemnity does not arise until the determination of the underlying action against the party seeking indemnification. Thus, where an indemnity is against loss, as it is here, the loss must actually occur and be ascertainable before the indemni-tee can maintain an action. Fairfield v. D’Addario, 149 Conn. 358, 361, 179 A.2d 826 (1962). Philips’ cause of action, notwithstanding the date on which its contingent claim for indemnification was filed, did not accrue until February 8, 1995, when the stipulated judgment was accepted by the trial court. We note that the “[substantive rights of the parties are fixed at the date upon which the cause of action accrues”; Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 520-21, 562 A.2d 1100 (1989); i.e., when a party suffers actionable harm. Because Philips’ cause of action arose on February 8,1995, the three year statute of limitations provided for in § 52-598a controls. Therefore, Philips’ cause of action was timely filed.

The judgment is affirmed.

In this opinion the other judges concurred.

       Mathew Sivilla subsequently withdrew his claim and is not a party in this appeal.

       General Statutes (Rev. to 1993) § 52-572r (c), repealed by Public Acts 1993, No. 93-228, § 34, provides in pertinent part: “[A]n employer . . . shall [not] have any lien upon any judgment received in any product liability claim, or any right of subrogation if the claim against the third party is a product liability claim.”

       General Statutes § 52-572m et seq.

       General Statutes § 31-284 (a).

       The argument by St. Mary’s seems to suggest that the trial court should have taken judicial notice of the fact that it was entitled to immunity. “The true conception of what is judicially known is that of something which is not, or rather need not be, the subject of either evidence or argument, unless the tribunal wishes it,—something which is already in the court’s possession, or, at any rate, is so accessible that there is no occasion to use any means to make the court aware of it.” 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) pp. 112-13. The issue of whether St. Mary’s is entitled to immunity under the exclusive remedy provision of the Workers’ Compensation Act is not a matter of which the trial court could appropriately take judicial notice. See Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 246, 520 A.2d 1008 (1987).

       St. Mary’s also moved for a setoff of the workers’ compensation it had paid to Sivilla. St. Mary’s claimed that it had paid Sivilla $183,011.70 indemnity and $74,098.48 in medical expenses and that the $750,000 verdict should be reduced accordingly. St. Mary’s improperly relies on General Statutes (Rev. to 1993) § 52-572r (b), which provides in pertinent part that “[t]he plaintiff upon verdict or settlement against a third party resulting from a product liability claim shall receive the amount of the verdict or settlement reduced by . . . [any] amount paid as compensation, including medical expenses, under the provisions of chapter 568 [Workers’ Compensation Act]. . . .” That statute provides for the third party, Philips in this case, to obtain a setoff for any amounts paid to the plaintiff under the Workers’ Compensation Act. It does not provide for a setoff in favor of the employer. Therefore, the trial court properly denied the motion for a setoff filed by St. Mary’s.

       The trial court instructed the jury in part as follows: “Now, ladies and gentlemen, I’ve admitted into evidence a document that’s entitled motion for a stipulated judgment, the judge’s order on it and the recommended settlement opinion that was attached to it.
      “As part of this recommended settlement opinion, the mediator indicated that although invited to participate, St. Mary’s Hospital chose not to do so, and my instruction to you now is that should not in any way be held against St. Mary’s in this particular case. They had every right not to participate in the mediation session, and they had rights, including a constitutional right, to appear before the court and to have a judge and a jury hear these issues.”

       St. Mary’s argues, on the basis of the public policy of promoting settlement of disputes, that evidence of the settlement negotiations is not admissible at trial. “The general rule that evidence of settlement negotiations is not admissible at trial is based upon the public policy of promoting the settlement of disputes.” (Internal quotation marks omitted.) Tomasso Bros., Inc. v. October Twenty-Four, Inc., 221 Conn. 194, 198, 602 A.2d 1011 (1992). The trial court, however, did not admit evidence of the settlement negotiations, but rather admitted evidence only of the stipulated judgment. That evidence was relevant to the reasonableness of the indemnity agreement and, therefore, was properly considered by the jury.

       The trial court stated in part: “The court admitted no evidence of settlement negotiations between Philips and St. Mary’s. The court did admit evidence of the stipulated judgment between Mrs. Sivilla and Philips. The evidence of the stipulated judgment which the court . . . adopted was relevant to the indemnity agreement which was before the jury. The indemnity agreement set forth an obligation on the purchaser to indemnify for claims, demands and judgments. Since the reasonableness of Philips’ payment to Mrs. Sivilla was at issue, it was further evidence of what the nature of her claims or demand was.”

       The trial court further instructed the jury in part: “It’s your job to determine whether $750,000 represents fair and just compensation. You may find a lesser sum represents fair and just compensation for her injuries and that a lesser sum was reasonable, and if you find that such a sum was a lesser amount, then that is the amount you would award as damages in this case.”

       In its memorandum of decision, the trial court summarized the specific arguments by St. Mary’s as follows: (1) the alleged contract, if it existed, does not contain an authorized purchaser’s signature; (2) at no time did Philips offer evidence that the parties had contracted on similar matters in the past or developed a continuing course of conduct to interpret the terms of the alleged agreement which was ambiguous and incomplete; (3) the alleged contract, if it existed, was ambiguous and the only document offered by Philips that was signed by a representative of St. Mary’s was a purchase order that did not acknowledge acceptance of the terms of the alleged agreement offered by Philips; (4) there was no evidence to support a claim that the terms and conditions allegedly on the back of the quotation offered by Philips was ever received, reviewed or accepted by an authorized representative of St. Mary’s; and (5) the documentary evidence that allegedly evidenced a meeting of the minds for a contract or acceptance of the proposed agreement by St. Mary’s was not offered into evidence and did not exist.

       St.. Maiy’s also argues that the trial court improperly charged the jury regarding the testimony Philips elicited from Stanley Bernier, the current director of material management at St. Maiy’s, that St. Mary’s had destroyed all the documents in its possession relating to the purchase of the X ray machine. St. Mary’s argues that a negative inference was created by its failure to produce the documents and, thus, they were entitled to a curative jury instruction.
      The trial court rejected this argument in its memorandum of decision, stating “[s]ince no other copy existed of both front and back of that original [the Philips proposal form] proof of what it contained could only be offered through secondary evidence as to what the form used had always contained. That was the purpose of mentioning that fact.” We note that “[t]he extent to which a court should comment on the evidence is largely a matter within its sound discretion.” State v. Villafane, 45 Conn. App. 110, 114, 694 A.2d 802 (1997), citing Wordenv. Francis, 153 Conn. 578, 580, 219 A.2d 442 (1966). We cannot say that the trial court abused its discretion by commenting as it did.

       General Statutes § 52-577a provides in pertinent part: “(a) No product liability claim . . . shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered . . . [and] no such action may be brought against any party nor may any party be impleaded pursuant to subsection (b) later than ten years from the date that the party last parted with possession or control of the product.
      “(b) In any such action a product seller may implead any third party who is or may be liable for all or part of the claimant’s claim, if such third party defendant is served with the third party complaint within one year from the date the cause of action brought under subsection (a) of this section is returned to court. . . .”

       As a result, we do not address Philips’ argument that, because the claim was brought in a counterclaim, it could be brought at any time before the pleadings were closed.


author: O’CONNELL, C. J. SPALLONE, J.,

text:
    CHARLES NICHOLS v. THE LIGHTHOUSE RESTAURANT, INC., ET AL.
    (AC 16325)
    O’Connell, C. J., and Landau and Spallone, Js.
    Argued May 2
    officially released September 16, 1997

      James D. Moran, Jr., with whom was James L. Sullivan, for the appellant (intervening plaintiff).

      John B. Farley, with whom was Kevin M. Roche, for the appellee (named defendant).
   Opinion

O’CONNELL, C. J.

The intervening plaintiff, Henk-els & McCoy, appeals from a summary judgment rendered against it in a negligence action arising out of a workers’ compensation claim. The sole issue is whether an employer’s right to intervene in its employee’s action, asserting a claim to recover workers’ compensation benefits from a third party tortfeasor, is subject to the applicable two year statute of limitations without regard to the timing of the employee’s action.

The plaintiff, Charles Nichols, commenced this negligence action on August 4,1993, after he sustained injuries in a fall on August 20, 1991, while he was at the defendant restaurant, The Lighthouse Restaurant, Inc. On September 1, 1993, the plaintiffs employer, Henk-els & McCoy, intervened as a plaintiff seeking reimbursement for sums it had paid to the plaintiff under the Workers’ Compensation Act. General Statutes § 31-275 et seq. The restaurant moved for summary judgment on the intervening complaint, arguing that the two year statute of limitations applicable to negligence causes of action under General Statutes § 52-584 barred the intervening complaint. The trial court granted the motion for summary judgment in favor of the restaurant and the intervening plaintiff appealed. We affirm the trial court’s judgment.

Summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Citations omitted; internal quotation marks omitted.) Thompson & Peck, Inc. v. Division Dry wall, Inc., 241 Conn. 370, 374, 696 A.2d 326 (1997).

As a preliminary matter, it is important to correct the fallacy in the intervening plaintiffs argument where it confuses the statute of limitations and the thirty day filing period provided by statute to an intervening third party. The intervening plaintiff mistakenly assumes the two concepts are related and misapplies Lakewood Metal Products, Inc. v. Capital Machine & Switch Co., 154 Conn. 708, 226 A.2d 392 (1967).

In Lakewood Metal Products, Inc., the employee filed a motion for permission to intervene as a plaintiff, but did so beyond both the statute of limitations period and the thirty day filing period. The employee alleged that he had not received notice of the underlying complaint that was filed by the plaintiff, his employer, and was, therefore, entitled to intervene. Id., 709. The defendants argued that the employee should not be permitted to intervene because he failed to assert his claim within the applicable statute of limitations period. Id., 710.

Our Supreme Court stated: “We need not . . . determine the efficacy of the defense presented by the defendants because it is prematurely raised. . . . The only statute we need be concerned with is § 31-293 of the General Statutes. It allows intervention by the employer or the employee in an action brought by the other against a third party legally liable for a compensable injury to the employee, provided such intervention is made within thirty days after notification of the action by the other has been given.

“As the plaintiff never notified [the employee], he could not be barred from intervening by the passage of the time which this statute prescribes [thirty days], because, until notice is given, the [thirty days] does not begin to run. . . . The granting of the motion to intervene will merely allow [the employee] to file his intervening complaint. . . . [A]ny defense which the defendants may wish to raise concerning statutes of limitation can then be pleaded as a special defense.” Id., 710-11.

The court, therefore, held that the thirty day filing period does not begin to run until notice is given. Id., 710. This issue is separate and distinct from a statute of limitations defense. As in Lakewood Metal Products, Inc., a party may be entitled to intervene beyond the statute of limitations period simply because notice to that party was never given. The intervention invariably remains subject to a statute of limitations defense.

In the present case, there is no dispute that the intervening plaintiff was notified of the plaintiffs underlying complaint and that it intervened within thirty days of that notice. The only issue here is whether the statute of limitations bars the intervening plaintiffs claim.

That issue—whether an employer has a right to intervene in an employee’s lawsuit beyond the two year statute of limitations asserting a claim to recover workers’ compensation benefits from a third party tortfea-sor—was squarely addressed by this court in Packtor v. Seppala & AHO Construction Co., 33 Conn. App. 422, 636 A.2d 383, appeal dismissed, 231 Conn. 367, 650 A.2d 534 (1994). We held that no such right exists.

The facts in Packtor differ only slightly from those presently before the court. In Packtor, neither the employee nor the employer successfully filed an originating complaint against the third party tortfeasor within the applicable two year limitations period. For that reason, this court concluded that any possible intervention as plaintiff would be barred. Id., 432. In the present case, however, the plaintiff brought his lawsuit within the two year period, but the intervening plaintiff failed to file its intervening complaint until the statute of limitations period had lapsed. The intervening plaintiff mistakenly asserts that this factual distinction is sufficient to distinguish Packtor from this case. We do not agree.

The corut in Packtor did not base its holding on whether the employee filed his action within the two year period when it determined the validity of the employer’s intervention as a plaintiff. Therefore, we find no support for the intervening plaintiffs contention that the statute of limitations is tolled during the thirty day filing period for an employer, when it is found that an employee did, in fact, assert a timely claim. Indeed, the Packtor court stated: “An employer who has paid, or by award has become obligated to pay, compensation may also sue the third party in his own name directly for reimbursement. If either the employer or the employee sues the third party, the other is entitled to notice and an opportunity to join in the action. . . . The issue we must determine is whether the employer’s action is itself timely filed. ... An employer has no cause of action unless the employee has a cause of action. . . . The action is not barred, however, by the employee’s procedural failure but by the failure of the employer to bring suit in a timely manner.” (Citations omitted; emphasis added.) Id., 430-31.

Thus, the Packtor court concluded that an employer has a right either to file a lawsuit against the third party tortfeasor or to intervene as a plaintiff to recover workers’ compensation benefits paid to an injured employee. Id. Each action is independent, and each is itself subject to the statute of limitations period without regard to the timeliness of any legal proceeding initiated by the injured employee. Since the employer has the option to file a lawsuit at any time during the two year statute of limitations period and may do so before the employee takes any legal action, it would be illogical to hold that the employer’s rights flow out of, or are contingent on, the time at which the employee commences the litigation.

An employer’s rights against a third party tortfeasor are derivative only in the sense that “the right of the employer depends upon the employee’s right to the extent that he has no cause of action unless the employee . . . has a cause of action, and he cannot recover any more than the employee himself . . . could recover. Subject to those limitations, the right which the employer is given by the statute is his. It is not the right of the employee . . . .” Stavola v. Palmer, 136 Conn. 670, 678, 73 A.2d 831 (1950).

“Since an intervening employer’s statutory right to reimbursement depends on the liability of the third party to the employee, the statute of limitations applicable to the employer’s right of action must be the same as that governing the employee’s underlying action against the tortfeasor.” Packtor v. Seppala & AHO Construction Co., supra, 33 Conn. App. 431. In this case, the two year statute of limitations applies to both the plaintiff employee and the intervening plaintiff employer because the plaintiffs underlying complaint sounded in common-law negligence.

Thus, the plaintiffs employer, the intervening plaintiff, had an independent right to file a lawsuit against the third party restaurant. For unspecified reasons, the intervening plaintiff failed to exercise that privilege. Instead, it chose to file an intervening complaint after the plaintiff filed his lawsuit. Unfortunately for the intervening plaintiff, the plaintiffs lawsuit was filed with less than three weeks left to the limitations period. By the time the intervening plaintiff filed its complaint, the two year limitations period had lapsed. We find nothing in the Workers’ Compensation Act that purports to extend or toll the statute of limitations. The passing of the limitations period barred the action by the intervening plaintiff. Consequently, no genuine issue of material fact remained in the case and summary judgment was appropriate.

The judgment is affirmed.

In this opinion LANDAU, J., concurred.

SPALLONE, J.,

dissenting. I dissent and respectfully disagree with the majority. The majority fails to give efficacy to the obvious legislative intent of General Statutes § 31-293 (a) that an employer has a right to recover from a third party tortfeasor any sum the employer paid or is obligated to pay an injured employee who commences suit against the tortfeasor within the time parameters of General Statutes § 52-584.1 would hold that when an employer receives notice of such a suit, the § 52-584 statute of limitations is tolled. Pursuant to § 31-293 (a), the timely filing of a complaint by the employee and timely notice to the employer thereof invokes a new statute of limitations of thirty days within which the employer may intervene.

“Failure to notify an employer of pending litigation pursuant to General Statutes § 31-293 allows an employer to enter the action at any point in the proceedings.” Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 385, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988). “[A]n employer who does not receive notice from an employee concerning the institution of a third party action in accordance with § 31-293 [cannot] be barred from intervening by the passage of the time which this statute prescribes, because, until notice is given, the time does not begin to run.” (Internal quotation marks omitted.) Rana v. Ritacco, 236 Conn. 330, 336, 672 A.2d 946 (1996).

The right of an employer to obtain reimbursement from a third party tortfeasor for workers’ compensation benefits paid serves the public policy of preventing double recovery by an injured employee. Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 779-80, 610 A.2d 1277 (1992).

In this case, after due notice was given by the plaintiff of the commencement of the suit, the intervening plaintiff, his employer, properly and timely moved to intervene pursuant to § 31-293 (a), but after the expiration of the § 52-584 statute of limitations. The majority holds that the intervening plaintiff is prohibited from intervening where the plaintiff commenced the action within the two year statute of limitations and gave notice to it, and the intervening plaintiff timely filed its complaint under § 31-293 outside the two year statute of limitations. This holding is in defiance of the public policy against double recovery because it places the control of the employer’s recovery in the hands of the employee. As in this case, an employee could wait until the last days, before being time barred from commencing an action, to give timely notice to the employer, and the employer’s timely intervention would be impossible. The employee could deliberately, by filing at the last moment, bar any recovery by the employer and gain double recovery. Although the employer has the right to commence an action on its own, it is not mandated to do so and may elect to proceed as an intervenor in its employee’s suit. Such election is not prohibited by § 31-293.

I would hold that, where the employee commences an action against a third party tortfeasor within the applicable statute of limitations, the employer, who has paid or has become obligated to pay workers’ compensation benefits under § 31-293, has thirty days to intervene regardless of whether the date of its motion to intervene is outside the applicable statute of limitations for the underlying action. If the employer has acted within thirty days of timely notice, it has done all that is required by § 31-293.

I would reverse the trial court’s judgment granting the restaurant’s motion for summary judgment and would remand the case for a new trial.

       General Statutes § 31-293 (a) provides in relevant part: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury . . . [the] employer . . . having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If the employee, [or] the employer . . . brings an action against such person, he shall immediately notify the others, in writing . . . and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate. . .

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . . .”

       In this case, it is unnecessary to address the possibility of a longer limitations period that may have accrued had the intervening plaintiff initiated the lawsuit alleging something other than negligence.

       The fact that an employer joins in a case does not increase the exposure of a defendant. The employer is statutorily entitled to recover from the tortfeasor only the amount equal to the benefit it paid or is obligated to pay its employee under the Workers’ Compensation Act. The employee’s right of recovery is not limited to those sums paid or payable by the employer, but also includes all other damages arising out of the accident. Included among these are pain and suffering, property damages, lost wages and all economic losses and disabilities above and beyond the statutory limits of the Workers’ Compensation Act.

       That the employer’s right to recover is derivative, and not independent, has been clearly established by our Supreme Court in Mickel v. New England Coal & Coke Co., 132 Conn. 671, 678, 47 A.2d 187 (1946). See also Quire v. Stamford, 231 Conn. 370, 376, 650 A.2d 535 (1994). The employer’s right is statutory, but does not come into being unless and until the employer has paid workers’ compensation benefits on behalf of the injured employee. Such right is derived from the common-law tort remedy available to the injured employee.

       The employer or the employee may bring suit independent of the other or may join in any suit brought by the other within thirty days of notification of the commencement of the suit. General Statutes § 31-293.


author: SCHALLER, J.

text:
    ASSOCIATES FINANCIAL SERVICES OF AMERICA, INC. v. SAMUEL P. SORENSEN ET AL.
    (AC 16187)
    Heiman, Schaller and Spear, Js.
    Argued May 30
    officially released September 16, 1997

      Ronald D. Japha, with whom, on the brief, were Abraham I. Gordon and Richards. Sealo, for the appellant (substitute plaintiff).

      Beecher A. Larson, with whom was Robert Solari, for the appellee (defendant Northern State Financial, LLC).
   Opinion

SCHALLER, J.

In this foreclosure action, the substitute plaintiff, Ford Consumer Finance Company, Inc. (Ford Finance), appeals from the judgment rendered following the trial court’s granting of summary judgment in favor of the defendant Northern State Financial, LLC (Northern). Ford Finance claims that (1) General Statutes (Rev. to 1993) § 12-157 is unconstitutional on its face because it fails to provide proper notice and an opportunity to be heard, and (2) the trial court improperly granted summary judgment. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. By way of a note dated April 13, 1990, Samuel P. Sorensen promised to pay to the order of the plaintiff, Associates Financial Services of America, Inc. (Associates), the sum of $100,537.42 plus interest. To secure the note, Sorensen mortgaged a single-family residence at 45 Glendale Avenue, Bridgeport. For several years thereafter, Sorensen failed to pay the property taxes owed to the city of Bridgeport. On June 29, 1993, the city auctioned the Glendale Avenue property at a tax sale pursuant to § 12-157. Robert Solari and Beecher Larson purchased the property and obtained title via a tax collector’s deed. No one redeemed the property and the tax collector’s deed was recorded on June 30,1994. Solari and Larson conveyed the property to Northern on July 11, 1994, by way of a quitclaim deed.

Sorensen ceased making payments on the note on May 1, 1994. Associates filed a substitute complaint on February 22, 1995, against Sorensen and Northern, seeking to foreclose its mortgage on the Glendale Avenue property. Northern moved for summary judgment, arguing that it was entitled to judgment as a matter of law because the conveyance of the premises through a tax sale extinguished Associates’ mortgage. The trial court granted Northern’s motion and this appeal followed.

I

Ford Finance first claims that § 12-157 is unconstitutional because it fails to provide proper notice and an opportunity to be heard in violation of the procedural due process protections provided in the fourteenth amendment to the federal constitution. We disagree.

“In order to prevail on its procedural due process claim, the plaintiff must show that (1) its property interest is cognizable under the due process clause, (2) it has been deprived of its property interest, and (3) the deprivation of the property interest has occurred without due process of law.” Dutch Point Credit Union, Inc. v. Caron Auto Works, Inc., 36 Conn. App. 123, 130, 648 A.2d 882 (1994). Here, the mortgagee possessed a substantial property interest in the subject property. Moreover, because the sale of the property resulted in the passage of title, free of all liens on the property, the mortgagee was deprived of its property interest. We conclude, however, that the deprivation of the mortgagee’s property interest did not occur without due process of law.

A

We first address Ford Finance’s claim that the statutory scheme is unconstitutional because it fails to provide proper notice. In Mennonite Board of Missions v. Adams, 462 U.S. 791, 795, 103 S. Ct. 2706, 77 L. Ed. 2d 180 (1983), the United States Supreme Court held that “prior to an action which will affect an interest in life, liberty, or property protected by the Due Process Clause of the Fourteenth Amendment, a State must provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (Internal quotation marks omitted.) In Mennonite Board of Missions, the Supreme Court found that a state statute that allowed for the sale of real property where the payment of taxes was delinquent after a specified period of time was unconstitutional. The statute in that case required only notice by publication and notice to the owner by mail. The statute did not provide for notice to lienholders and, as a result, property could be sold free of all liens and encumbrances without notice to a mortgagee. Unlike the statute in Mennonite Board of Missions, § 12-157 requires that notice be posted on a signpost in the town where the real estate is located, that the town clerk record notice on the land records, that notice be published in a local newspaper for at least three consecutive weeks, and that notice be sent by mail to the owner, mortgagee, lienholder, or any other party having an interest in the property. We conclude that the notice provided by § 12-157 is reasonably calculated to apprise all interested parties of the tax sale and is, therefore, proper.

B

We next address Ford Finance’s claims that § 12-157 is unconstitutional because it fails to provide for a hearing or judicial review of the valuation and sale. Although our appellate courts have never addressed the constitutionality of § 12-157, that issue has been raised and addressed in the Superior Court. Pace Motor Lines v. Biagiarelli, Superior Court, judicial district of Fairfield, Docket No. 318117S (June 24, 1996) (Levin, J.). In Pace Motor Lines, the court offered the following analysis that we find to be persuasive: “ [T]he procedural due process requirement for a hearing applies only where a governmental body or official has engaged, or should have engaged, in fact-finding. Mathews v. Eldridge, 424 U.S. 319, 344, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (procedural due process rules shaped by risk of error inherent in truthfinding process). In a tax sale pursuant to General Statutes § 12-157, the tax collector does not find facts, other than the fact of nonpayment of taxes. See W. Legg, ‘Tax Sales and the Constitution,’ 20 Okla. L. Rev. 365, 374 (1967). He merely follows the statutory procedure laid out for the sale of real property. The power to sell land for delinquent taxes is strictly construed; the tax collector must substantially, if not strictly, comply with all statutory provisions. 85 C.J.S., Taxation §§ 745, 746, 798, 799 (1954); 72 Am. Jur. 2d, State and Local Taxation § 931 (1974). Where a governmental official or body executes a ministerial duty, there is no need for a hearing. Connecticut Health Facilities v. Zoning Board of Appeals, 29 Conn. App. 1, 6-7, 613 A.2d 1358 (1992). Indeed, in connection with the tax sale, the tax collector is vested with no discretion save for the authority, albeit ‘for any reason,’ to ‘adjourn such sale from time to time . . . .’ General Statutes (Rev. to 1993) § 12-157. That, however, is merely incidental to the ministerial duty to conduct a fair sale in a responsible manner, in accordance with the dictates of Townsend Savings Bank v. Todd, 47 Conn. 190 [1879]. See also Blossom v. Railroad Co., 70 U.S. (3 Wall.) 196, 209, 18 L. Ed. 43 (1865); Weinfield v. Cocke, 60 S.W.2d 842, 844 (Tex. Civ. App. 1933), aff'd, 127 Tex. 353, 92 S.W.2d 1017 (1936); Mower v. Bohmke, 9 Utah 2d 52, 55, 337 P.2d 429 (1959).

“Even if the tax collector were to misuse his authority and to subvert the fairness of the tax sale, that would not render General Statutes § 12-157 violative of procedural due process. Rather, the plaintiffs’ remedy would be a common-law action, such as an action for a declaratory judgment and injunction. General Statutes § 52-483; see also Newton v. Schott, 87 Conn. 142, 87 A. 271 (1913) (action to set aside tax levy and sale of real estate and deed); Townsend Savings Bank v. Todd, supra, 47 Conn. 190 (action for ejectment); see also Curtis Building Co. v. Tunstall, 36 Pa. Commw. 233, 236 n.2, 387 A.2d 1370 (1978) (if statutory remedy inadequate, action in equity to enjoin tax sale would lie; statute not unconstitutional). As the United States Supreme Court has observed, ‘there is an important difference between a challenge to an established state procedure as lacking in due process and a property damage claim arising out of the misconduct of state officers. In the former situation the facts satisfy the most literal reading of the Fourteenth Amendment’s prohibition against “State” deprivations of property; in the latter situation, however, even though there is action “under color of’ state law sufficient to bring the amendment into play, the state action is not necessarily complete. For in a case such as this the law of [the state] provides, in substance, that the plaintiff is entitled to be made whole for any loss of property occasioned by the unauthorized conduct of [a state official].’ Parratt v. Taylor, 451 U.S. 527, 542, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), quoting then Judge, later Justice, Stevens writing for the panel in Bonner v. Coughlin, 517 F.2d 1311, 1319 (7th Cir. 1975), modified en banc, 545 F.2d 565 (7th Cir. 1976), cert. denied, 435 U.S. 932, 98 S. Ct. 1507, 55 L. Ed. 2d 529 (1978).” Pace Motor Lines v. Biagiarelli, supra, Superior Court, Docket No. 318117S.

We conclude that § 12-157 does not violate due process because it fails to provide for a hearing or judicial review.

II

Ford Finance next claims that the trial court improperly granted summary judgment in favor of Northern because the trial court improperly failed to consider certain allegations contained in the affidavit of Associates’ vice president. We are unpersuaded.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmov-ing party. . . . Id., 745. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381. . . . Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994).” (Internal quotation marks omitted.) Doty v. Mucci, 238 Conn. 800, 805-806, 679 A.2d 945 (1996); Thompson & Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370, 374-75, 654 A.2d 748 (1997).

“Although the party seeking summary judgment has the burden of showing the nonexistence of an material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Citations omitted; internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 255, 654 A.2d 748 (1995).

General Statutes (Rev. to 1993) § 12-159 provides in relevant part: “Any deed, or the certified copy of the record of any deed, purporting to be executed by a tax collector . . . shall be prima facie evidence of a valid and unencumbered title in the grantee to the premises .... No act done or omitted relative to the assessment or collection of a tax, including everything connected therewith . . . shall in any way affect or impair . . . the validity of such sale, unless the person contesting such validity shows that . . . the collector neglected to mail to him the notice by law required, or to those with whom he is in privity of title, and who have a right to notice of such sale, and that he or they in fact did not know of such sale within one year after it was made, provided such property was by law liable to be sold to satisfy such tax . . . .” (Emphasis added.) Thus, unless Ford Finance can show that (1) the tax collector failed to mail Associates notice of the sale and that Associates did not have actual notice of the sale one year after it was made, or (2) that the property was not “by law liable to be sold to satisfy the tax,” then Northern’s proffer of the tax collector’s deed is prima facie evidence of its valid and unencumbered title to the subject property.

In support of its motion for summary judgment, Northern attached a certified copy of the tax collector’s deed as prima facie evidence of its valid and unencumbered title to the subject property. Associates filed an objection, claiming that the tax collector’s deed was invalid because the city failed to comply with the statutory prerequisites for a tax sale. The motion in opposition was accompanied by the affidavit of G. J. Hortemiller, Associates’ vice president. In his affidavit, Hortemiller alleged that the tax sale was invalid because (1) the tax collector did not make a proper demand and levy on Sorensen, the owner of the property, pursuant to General Statutes (Rev. to 1993) § 12-155, (2) the tax collector posted notice less than nine weeks before the sale in violation of § 12-157, and (3) the tax collector failed to send Associates timely notice of the sale in accordance with § 12-157.

The trial court found that Associates failed to establish a genuine issue of material fact regarding the validity of the tax sale and the ensuing deed because Hortemiller, the affiant, failed to provide evidence that he had personal knowledge that the tax collector failed to make a proper demand and levy on Sorensen or that the posted notice was untimely. The trial court did state that because Hortemiller is Associates’ vice president, it was “possible that he had personal knowledge of when notice was received by Associates.” Nevertheless, the court granted summary judgment in favor of Northern because Associates failed to offer evidence that it did not have knowledge of the sale within one year after it was made and accordingly, could not overcome the prima facie evidence of unencumbered title.

Practice Book § 381 provides in relevant part: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testily to the matters stated therein. . . .” “[Ajffadavits made by corporate officers and other parties must aver or affirmatively show personal knowledge of the matters stated therein.” Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 515, 391 A.2d 157 (1978). “If the affidavits and other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof.” New Haven Tobacco Co. v. O’Brien, 37 Conn. Sup. 815, 819, 438 A.2d 440 (1981).

Ford Finance claims that Northern withdrew its objection to Hortemiller’s affidavit, and, as a result, the court improperly acted on its own to exclude those allegations. Even if we assume arguendo that Northern withdrew its objection, the trial court properly made an independent legal evaluation of the sufficiency of the Hortemiller affidavit. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 3.2.1 (“judges . . . have the inherent power to . . . exclude inadmissible evidence whether or not objected to by counsel”).

Ford Finance also claims that Hortemiller alleged personal knowledge in the affidavit. The Hortemiller affidavit does contain a statement that “I [Hortemiller] am fully familiar with the facts and circumstances of the case at bar.” That assertion, however, does not amount to an adequate averment of personal knowledge; rather, it merely alleges familiarity with the case file, without mention of how or where the knowledge was obtained.

Finally, Ford Finance claims that Associates affirmatively showed that Hortemiller possessed the requisite personal knowledge at a hearing on Northern’s motion for summary judgment. At the hearing, Associates argued that, because Hortemiller heard or read the deposition testimony of Anne Phillips, the city’s tax attorney, in a companion case, he had personal knowledge of the allegations. That argument is without merit. Our courts have repeatedly held that hearsay statements are inadmissible evidence pursuant to Practice Book § 381 and that a mere assertion of fact is insufficient to establish the existence of a material fact. See Sheridan v. Board of Education, 20 Conn. App. 231, 240, 565 A.2d 882 (1989).

We conclude that Associates failed to show that Hor-temiller had personal knowledge of whether the city made a proper demand and levy, and the timeliness of the posting. Accordingly, the trial court properly declined to consider those allegations in ruling on Northern’s motion for summary judgment.

We next examine the record to determine whether the trial court’s granting of summary judgment was proper. Northern, by attaching a certified copy of the tax collector’s deed, has met its burden of proving that it has unencumbered title to the property. We have concluded that the trial court declined to consider Hor-temiller’s allegations concerning the deficiency of the levy and demand and that the posted notice was untimely. Accordingly, because § 12-157 required Associates to prove that it had neither notice nor actual notice, and because Associates conceded that it received actual notice; see footnote 8; Ford Finance has failed to provide the evidentiary foundation necessary to demonstrate the existence of a genuine issue of material fact concerning the validity of the tax sale or the subsequent deed. We conclude that the trial court properly granted Northern’s motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       Ford Finance was substituted as the plaintiff on May 6, 1996, because it is the current owner and holder of the mortgage.

       General Statutes (Rev. to 1993) § 12-157 provides: “When a collector levies one or more tax warrants on real estate, he shall prepare duplicate notices thereof, containing the name of the taxpayer, the amount of the tax or taxes, a description of the property levied upon and the time and place of sale, one of which he shall post on a signpost in the town where such real estate is situated, if any, or at some other exterior place near the office of the town clerk, which is nearest thereto and the other he shall file in the town clerk’s office of such town, and such town clerk shall record and index the same as a part of the land records of such town. Such posting and filing shall be done not more than ten and not less than nine weeks before the time of sale and shall constitute a legal levy of such warrant or warrants upon the real estate therein referred to. Such collector shall also publish a similar notice for three successive weeks, at least once a week, in a newspaper published in such town, if any, otherwise in a newspaper published in the state having a general circulation in such town, beginning not more than ten and not less than nine weeks before the time of sale. He shall also send by mail, postage prepaid, to the delinquent taxpayer and to each mortgagee, lien holder and other record encumbrancer whose interest in such property will be affected by such sale, a similar notice at least four weeks before such sale, addressed to his place of residence, if known to the collector, otherwise to his place of residence as given in the records of such town. If such collector finds it desirable, he may adjourn such sale from time to time by causing public notice of such a<Jjoumment and the time and place of such acjjoumed sale to be given at the time and place mentioned in such notices. At the time and place mentioned in such notices, or, if such sale is adjourned, at the time and place specified at the time of acjjoumment as aforesaid, such collector (a) may sell at public auction to a bidder enough of such estate to pay the taxes with the interest, fees and other charges allowed by law or (b) may sell such estate to his municipality if there has been no bidder or the amount bid is insufficient to pay the amount due. Within one week after such sale, the collector shall execute a deed thereof to the purchaser or to the municipality conducting the sale and shall lodge the same in the office of the town clerk of such town, where it shall remain unrecorded one year from the date of such sale, and, if the delinquent taxpayer or any person interested in the estate, within such time, pays or tenders to the purchaser or to such municipality, as the case may be, the amount paid by him, with interest at the rate of (1) twelve per cent per annum from the date of such sale, if such sale occurred prior to July 1, 1981, (2) fifteen per cent per annum from the date of such sale if such sale occurs on July 1, 1981, or thereafter but not later than June 30, 1982, or (3) eighteen per cent per annum from the date of such sale if such sale occurs on or after July 1, 1982, such deed shall be delivered to the person paying or tendering the money who, if not the person whose primary duty it was to pay the tax, shall have a claim against the person whose primary duty it was to pay such tax for the amount so paid, and may add the same to any claim for which he has security upon the premises sold. If the purchase money and interest are not paid within such year, the deed shall be recorded and have full effect. Any municipality holding a lien for unpaid taxes on real estate, other than the municipality conducting the sale, may purchase such estate at a tax sale.”

       In its brief, Ford Finance also claims that a tax sale pursuant to § 12-157 violates the takings clauses of the federal and state constitutions and impairs its contractual rights under article one, § 10, of the federal constitution. Because neither Associates nor Ford Finance raised these claims at trial, we decline to review them on appeal.

         Associates’ original complaint, filed on November 16,1994, was stricken by the trial court, Thim, J., for failing to state a claim on which relief can be granted because it contained a paragraph alleging that Solari and Larson obtained title to the subject property via a tax collector’s deed. The trial court held that Associates’ mortgage was extinguished by the tax sale, and, as such, Associates failed to allege a cause of action. Thereafter, Associates amended its complaint to omit any reference to a tax collector’s deed.

       Ford Finance also claims a violation of article first, § 8, of the Connecticut constitution. Associates has failed to provide a separate and distinct analysis of an independent claim under the Connecticut constitution. We have repeatedly held that we will not engage in a separate constitutional analysis where the parties do not provide us with such analysis. See State v. Perez, 218 Conn. 714, 723, 591 A.2d 119 (1991); State v. Russell, 25 Conn. App. 243, 252, 594 A.2d 1000, cert. denied, 220 Conn. 911, 597 A.2d 338 (1991).

       In Pace Motor Lines, an unpublished decision, the plaintiff claimed that § 12-157 violates procedural due process because it fails to provide for judicial review of a commercially reasonable tax sale. The court concluded that the plaintiff did not have a substantive property right to a commercially reasonable tax sale and, therefore, could not prove its claim that the statute violated procedural due process. Pace Motor Lines v. Biagiarelli, supra, Superior Court, Docket No. 318117S. In dicta, the trial court engaged in a procedural due process analysis.

       General Statutes (Rev. to 1993) § 12-155 provides in relevant part: “If any person fails to pay any tax, the collector . . . shall make personal demand of him therefor or leave written demand of him therefor or leave written demand at his usual place of abode or deposit in some post office a written demand for such tax, postage prepaid, addressed to such person at his last-known place of residence. After demand has been made in the manner above provided, the collector may levy for such tax on any goods and chattels of such person and post and sell them in the manner provided in case of executions; but, if no such goods or chattels belonging to such person can be found after reasonable search by the collector, he may enforce by levy and sale any lien upon real estate for such taxes, or he may levy upon and sell such interest of such person in any real estate as exists at the date of the levy.”

       Associates conceded that it received actual notice within one year of the sale at a pretrial hearing on November 17, 1995, and again in response to Northern’s request for admissions.

       In its brief, Ford Finance claims that the trial court refused to consider any facts that Associates offered in an attempt to rebut Northern’s prima facie case. This claim is clearly without merit. The trial court declined to consider portions of Hortemiller’s affidavit only because it determined that the affidavit was defective.