author: DiPENTIMA, C. J.

text:
    IN RE ILIANA M.

    (AC 33719)
    (AC 33721)
    DiPentima, C. J., and Beach and Dupont, Js.

      Argued January 3
    officially released March 9, 2012

      John C. Drapp III, with whom, on the brief, was Joseph A. Jaumann, for the appellant (respondent father in AC 33719).

      Rosemarie T. Weber, for the appellant (respondent mother in AC 33721).

      Benjamin Zivyon, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, scad Susan T. Pearlman, assistant attorney general, for the appellee (petitioner in both cases).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       March 9,2012, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

DiPENTIMA, C. J.

The sole issue in these consolidated appeals is whether the trial court properly denied the joint motion to dismiss filed by the respondent father and the respondent mother. Specifically, the respondent father in AC 33719 and the respondent mother in AC 33721 argue that the trial court lacked jurisdiction over the minor child. We disagree and, accordingly, affirm the judgment of the trial court.

The following factual and procedural history is relevant to our resolution of these appeals. Previously, the respondent mother’s parental rights had been terminated with respect to a child in 2008. In 2009, shortly after their birth, the respondent mother’s twin girls were also committed to the care of the commissioner of the department of children and families (commissioner). On February 3, 2011, a social worker from the department of children and families (department), concerned about the respondent mother’s health during her pregnancy, requested the Willimantic police department to perform a well-person check. The child, Iliana M., was bom on February 14, 2011, in Worcester, Massachusetts.

Massachusetts hospital workers alerted the Massachusetts department of children and families regarding concerns about the respondent mother. Upon investigation, agents from Massachusetts contacted their counterparts in the Connecticut department. The respondent mother ultimately informed the Massachusetts agents that “her lawyer [had] told her to come to Massachusetts so that Connecticut [would] not be legally able to remove the child from her custody.” The court noted that “[w]hile the Massachusetts agency seemed ready to assist the Connecticut [department], [the agency] reported that [it was] unable to take custody for another state.”

Personnel from the department, acting on behalf of the commissioner, sought and obtained an ex parte order of temporary custody from the Superior Court on February 17, 2011. Thereafter, social workers from the department traveled to Massachusetts and, pursuant to the order of temporary custody, removed the child from the hospital and placed her in foster care in Connecticut. The respondents then filed a joint motion to dismiss the order of temporary custody.

On March 1, 2011, the corad held a hearing and heard testimony on the jurisdictional issue raised in the motion to dismiss. On April 12, 2011, the court granted the motion to dismiss. It found that Connecticut, and not Massachusetts, was the home state and residence of the respondents and discredited their representations to Massachusetts authorities regarding their intention to live there. The court then referenced General Statutes § 46b-121 (a) (1), which provides: “Juvenile matters in the civil session include all proceedings concerning uncared-for, neglected or dependent children and youths within this state . . . .” (Emphasis added.) The court reasoned that, because of the undisputed fact that the child was not, and never had been, within the state of Connecticut, the order of temporary custody was issued improperly. It then vacated the ex parte order of temporary custody and dismissed the neglect petition without prejudice.

On April 12, 2011, after receiving the court’s decision, the commissioner invoked a ninety-six hour hold pursuant to General Statutes § 17a-101g. The commissioner then filed an application for a second order of temporary custody and neglect petition on April 13, 2011. The court entered an ex parte order of temporary custody on that same day. On April 19, 2011, the respondents again filed a motion to dismiss. The court conducted a second hearing on April 28, 2011, in which the parties stipulated that the findings made during the prior proceedings could be used for the purpose of determining the jurisdictional question. The court again found that Connecticut was the home state and residence of the respondents. Additionally, as the minor child had been in foster care in Connecticut since days after her birth, she was in this state when the respondents were served with process. It also determined, contrary to the arguments of the respondents that, because the child was in Connecticut, “the jurisdictional requirements of [§] 46b-121 (a) have been met.” In addition, the court rejected the respondents’ equity claim that the department had acted with “unclean hands.” Specifically, the court reasoned that the respondents had not been truthful to the Massachusetts authorities and cited the principle that “[t]o seek equity, one must do equity . . . .’’It concluded that the respondents’ unclean hands proved fatal to their equity claim. Accordingly, the court denied the respondents’ second motion to dismiss.

On June 27, 2011, the court issued a memorandum of decision sustaining the order of temporary custody on the basis of the doctrine of predictive neglect. It further found that commitment of the child was warranted and in her best interests, and, accordingly, the court committed the child to the custody of the commissioner. These consolidated appeals followed.

On appeal, the respondents argue that the court improperly denied their second motion to dismiss. Specifically, they contend that the court lacked subject matter jurisdiction pursuant to General Statutes § 46b-116k. The respondent mother also argues that the court denied her right to due process to have an evidentiary hearing in Massachusetts. The commissioner counters that the court properly determined the jurisdictional issue and denied the respondents’ motion to dismiss. We agree with the commissioner.

“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the [state] cannot as a matter of law and fact state a cause of action that should be heard by the court .... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [decision to deny] . . . the motion to dismiss will be de novo.” (Internal quotation marks omitted.) In re Addie May Nesbitt, 124 Conn. App. 400, 407-408, 5 A.3d 518, cert. denied, 299 Conn 917, 10 A.3d 1051 (2010); see generally Keller v. Beckenstein, 122 Conn. App. 438, 442-43, 998 A.2d 838, cert. granted on other grounds, 298 Conn. 921, 4 A.3d 1227, 5 A.3d 486 (2010).

We now set forth the legal principles regarding the jurisdiction of the trial court. “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. ... If a court lacks subject matter jurisdiction to hear and determine cases of the general class to which the proceedings in question belong, it is axiomatic that a court also lacks the authority to enter orders pursuant to such proceedings. . . . We must determine whether the court had subject matter jurisdiction to entertain the plaintiffs complaint. We are mindful that [a] court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it ... . [W]here a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.) Temlock v. Temlock, 95 Conn. App. 505, 518-19, 898 A.2d 209, cert. denied, 279 Conn. 910, 902 A.2d 1070 (2006); see In re DeLeon J., 290 Conn. 371, 376-77, 963 A.2d 53 (2009).

In the motion to dismiss, the respondent mother argued that she filed a special appearance limited to the issue of whether the trial court had personal jurisdiction. Specifically, the respondents argued that the court should have dismissed the matter for lack of personal jurisdiction. The trial court rejected this argument and concluded that, because the child was in this state at the time the commissioner moved for an order of temporary custody, the requirements of § 46b-121 (a) (1) had been met. The commissioner’s brief asserts that the court’s conclusions regarding personal jurisdiction and § 46b-121 (a) (1) were correct. The focus of the respondents’ appellate arguments is, however, on the issues of the subject matter jurisdiction and the applicability of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), General Statutes § 46b-115 et seq. Our focus is, therefore, on the issue of whether the court had subject matter jurisdiction.

At the outset, we note our agreement with the decisions of the Superior Court that have set forth the goals of the UCCJEA. “The purposes of the UCCJEA are to avoid jurisdictional competition and conflict with courts of other states in matters of child custody; promote cooperation with the courts of other states; discourage continuing controversies over child custody; deter abductions; avoid re-litigation of custody decisions; and to facilitate the enforcement of custody decrees of other states. . . . The UCCJEA addresses inter-jurisdictional issues related to child custody and visitation.” (Citation omitted; internal quotation marks omitted.) Casman v. Casman, Superior Court, judicial district of New Haven, Docket No. FA-03-0476028 (February 3, 2006); see Lippman v. Perham-Lippman, Superior Court, judicial district of Fairfield, Docket No. FA-06-4013911-S (March 10, 2006); see also McNamara v. McNamara, Superior Court, judicial district of Tolland, Docket No. FA-97-0064781-S (January 20, 2006).

The UCCJEA is the enabling legislation for the court’s jurisdiction. See In re DeLeon J., supra, 290 Conn. 377; In re Leona A.D., Superior Court, judicial district of Hartford, Docket No. CP-10-013578-A (March 16, 2011); see also Margulies v. Cassano, 52 Conn. App. 116, 119-120, 725 A.2d 988 (addressing jurisdiction enabled by Uniform Child Custody Jurisdiction Act, predecessor to UCCJEA), cert. denied, 248 Conn. 914, 734 A.2d 564 (1999); Muller v. Muller, 43 Conn. App. 327, 331, 682 A.2d 1089 (1996) (same). “The UCCJEA, as adopted in chapter 815p of our General Statutes, provides Superior Courts with exclusive jurisdiction to make a child custody determination by initial or modification decree if: ‘(1) This state is the home state of the child on the date of the commencement of the child custody proceeding; (2) This state was the home state of the child within six months of the commencement of the child custody proceeding, the child is absent from the state, and a parent or a person acting as a parent continues to reside in this state; (3) A court of another state does not have jurisdiction under subdivisions (1) or (2) of this subsection, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child’s care, protection, training and personal relationships; (4) A court of another state which is the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under a provision substantially similar to section 46b-115q or section 46b-115r, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child’s care, protection, training and personal relationships; (5) All courts having jurisdiction under subdivisions (1) to (4), inclusive, of this subsection have declined jurisdiction on the ground that a court of this state is the more appropriate forum to determine custody under a provision substantially similar to section 46b-115q or section 46b-115r; or (6) No court of any other state would have jurisdiction under subdivisions (1) to (5), inclusive, of this subsection. . . .’ General Statutes § 46b-115k (a). ‘Subsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.’ General Statutes § 46b-115k (b). Furthermore, § 46b-115k (c) provides: ‘Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.’ ” Temlock v. Temlock, supra, 95 Conn. App. 519-20.

The court conducted two hearings and made factual findings regarding the jurisdictional issue. See Margulies v. Cassano, supra, 52 Conn. App. 120 (“[w]hen issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine witnesses” [internal quotation marks omitted]). The court found that the respondent mother’s residence had been in the vicinity of Willimantic for the past seven years. Both respondents listed a Willimantic address with the court, and recent police reports also had noted their addresses in Willimantic. Both respondents provided Connecticut addresses to the Massachusetts hospital. Finally, the court found that the respondents’ representations to the Massachusetts authorities were not truthful with regards to their intentions to live in Massachusetts. In conclusion, the court specifically found that “at the time of the institution of these proceedings, [the respondents] were residents of Willimantic CT.”

The court also made key findings with respect to the home state of the child. First, it found that Massachusetts was not the child’s home state within the meaning of the UCCJEA. It then stated: “If there is a home state for this child, and it is not clear that the child even had a home state under the UCCJEA . . . this court finds that Connecticut is the home state.” (Citation omitted.) The respondents have not challenged the factual findings of the court in their briefs. Additionally, at oral argument before this court, counsel for the respondent mother specifically acknowledged that the factual findings were not being challenged on appeal.

Our statutes establish the jurisdiction for a Connecticut court to make the initial child custody determination. Specifically, § 46b-115k (a) provides in relevant part: “Except as otherwise provided in section 46b-115n, a court of this state has jurisdiction to make an initial child custody determination if ... (3) A court of another state does not have jurisdiction under subdivisions (1) or (2) of this subsection, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child’s care, protection, training and personal relationships . . . .” The aforementioned factual findings support our conclusion that the Connecticut court, pursuant to § 46b-115k (a) (3), had subject matter jurisdiction to make the initial child custody determination.

We are not persuaded by the argument advanced by the respondents that, because the child was bom in Massachusetts and the respondents purported to be residents there, it was for the Massachusetts courts to make the initial child custody determination. The respondents have not provided this court with a citation to any statute or case that supports this proposition. Although it would appear that a Massachusetts court could, have made the initial child custody determination, or participated and been involved in the case in some manner, we fail to see any basis whereby it would have initial jurisdiction or priority over a Connecticut court. See General Statutes § 46b-115k; Mass. Gen. Laws c. 209B, § 2.

Likewise, we are not persuaded that the respondent mother had a due process right to have an evidentiary hearing in Massachusetts. The respondent mother has failed to establish a right to have a Massachusetts court exclusively make the initial child custody determination, and, therefore, there is no deprivation of due process because a hearing was not conducted there. Her constitutional rights were safeguarded during the proceeding before the Superior Court in Connecticut.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court stated in its memorandum of decision issued April 12, 2011, that “[i]t [was] unclear from the testimony whether the Massachusetts [department of children and families] initially declined to intervene or whether the Connecticut [department] preempted any Massachusetts action.”

       “See In re T.K., 105 Conn. App. 502, 513, 939 A.2d 9 (‘[t]he doctrine of predictive neglect is grounded in the state’s responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred’), cert. denied, 286 Conn. 914, 945 A.2d 976 (2008); In re Michael D., 58 Conn. App. 119, 123, 752 A.2d 1135 (‘[o]ur statutes clearly permit an adjudication of neglect based on a potential for harm or abuse to occur in the future’), cert. denied, 254 Conn. 911, 759 A.2d 505 (2000).” In re Joseph W., 301 Conn. 245, 249 n.1, 21 A.3d 723 (2011); see In re Ja-lyn R., 132 Conn. App. 314, 319, 31 A.3d 441 (2011).

       We note that the respondents have not challenged the court’s ruling relating to the finding of neglect or the commitment of the child to the custody of the commissioner.

       The respondent mother also claims that the trial court, pursuant to General Statutes § 46b-115r, should have declined to exercise jurisdiction because the department engaged in unjustifiable conduct. This claim was not raised before the trial court, and, therefore, we decline to review it.

       Although the motion to dismiss expresses the arguments in terms of the respondent mother only, the motion was joined by the respondent father. Additionally, we note that the court, in its memorandum of decision, stated that the respondents filed the motion to dismiss.

       To the extent that the respondents argue that the conduct of the department was inequitable in bringing the child from Massachusetts to Connecticut, we agree with the trial court’s statement and finding that “[t]he respondents have acted with unclean hands .... To seek equity, one must do equity, and they have not.” This court has recognized: “Our jurisprudence has recognized that those seeking equitable redress in our courts must come with clean hands. The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue. . . . For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands. . . . The clean hands doctrine is applied not for the protection of the parties but for the protection of the court. ... It is applied ... for the advancement of right and justice. . . . The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation. . . . The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts’ integrity dictate that the clean hands doctrine be invoked.” (Internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn. App. 401, 407, 867 A.2d 841 (2005). The respondents have not demonstrated that the trial court abused its discretion with respect to the clean hands doctrine.

       We note that neither the department nor the commissioner appealed from the first decision of the court granting the motion to dismiss filed by the respondents. That ruling is, therefore, not before us.

       General Statutes § 46b-115a (3) provides: “ ‘Child custody determination’ means a judgment, decree, or other order of a court providing for the legal custody, physical custody or visitation with respect to a child. The term includes a permanent, temporary, initial and modification order. The term does not include an order relating to child support or other monetary obligation of an individual . . . .” See Mass. Gen. Laws c. 209B, § 1.
      Section 46b-115a (8) provides: “ ‘Initial determination’ means the first child custody determination concerning a particular child . . . .’’See Mass. Gen. Laws c. 209B, §1.


source: Caselaw Access Project

author: ESPINOSA, J.

license: Public Domain

text:
    JAMES M. JANCEWICZ ET AL. v. 1721, LLC, ET AL.
    (AC 32719)
    Beach, Espinosa and Peters, Js.
    Argued October 26, 2011
    officially released March 27, 2012

      Lloyd L. Langhammer, with whom, on the brief, was - Kaitlyn M. Pechie, for the appellants (plaintiffs).

      Ellen C. Brown, for the appellee (named defendant).
   Opinion

ESPINOSA, J.

The plaintiffs, James M. Jancewicz and Kimberly A. Jancewicz, appeal from the trial court’s judgment awarding the defendants, 1721, LLC (1721), and Daniel Del Grosso, excess insurance proceeds stemming from a settlement of damages done to property owned by 1721, which is secured by a purchase money mortgage held by the plaintiffs. The plaintiffs claim that the court improperly (1) awarded the excess insurance proceeds to the defendants despite language in the mortgage directing that such proceeds be paid to the plaintiffs and (2) failed to award them attorney’s fees on the defendants’ unsuccessful counterclaim. We affirm the judgment of the trial court.

The following undisputed facts are relevant to our consideration of this appeal. In 2006, 1721 purchased from the plaintiffs certain property located at 495 East Main Street in Norwich (property). A small commercial building that formerly served as a pizza restaurant is located on the property. The plaintiffs took back a purchase money mortgage in the property as a part of the sale. The note secured by this mortgage became due and payable on March 1, 2009. When the note became due, 1721 was unable to make the required balloon payment, but it continued to make monthly payments.

On April 16, 2009, a car struck the building located at 495 East Main Street, damaging it. The city of Norwich issued a permit to the defendants on October 21, 2009, allowing them to repair the damage sustained by the building. The defendants repaired the building, expending $7000 to do so. Following the completion of the work, a building official for the city of Norwich certified that the building had been repaired. 1721 received an insurance proceeds check in the amount of $57,920.69, made payable to 1721 and the plaintiffs, which the defendants requested that the plaintiffs execute to pay for the repairs. The plaintiffs did not do so.

The plaintiffs initiated foreclosure proceedings against the defendants by a complaint filed November 16, 2009. The foreclosure was uncontested. During the foreclosure proceeding, the court found the total value of the property to be $145,000. The court established this valuation solely for the purpose of the foreclosure proceeding, and the parties agreed that they could submit different valuations at future proceedings.

At a hearing on July 28, 2010, the court found that the actual cost of the repairs, together with overhead, was $9400, and that the repairs fully restored the property. The court ordered that the plaintiffs pay the defendants this amount to compensate them for the repairs. At a hearing on September 8, 2010, the court awarded the balance of the insurance proceeds to the defendants. The plaintiffs filed the present appeal on September 24, 2010. Additional facts will be set forth as necessary.

As the plaintiffs’ claims require us to interpret the terms of the parties’ mortgage deed, we conduct a plenary review. “Construction of a mortgage deed is governed by the same rules of interpretation that apply to written instruments or contracts generally, and to deeds particularly. The primary rule of construction is to ascertain the intention of the parties. This is done not only from the face of the instrument, but also from the situation of the parties and the nature and object of their transactions. ... A promissory note and a mortgage deed are deemed parts of one transaction and must be construed together as such.” (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 547, 830 A.2d 139 (2003), cert. denied, 541 U.S. 903, 124 S. Ct. 1603, 158 L. Ed. 2d 244 (2004).

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000). “If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review. . . . [When] the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. . . . [T]he individual clauses of a contract . . . cannot be construed by taking them out of context and giving them an interpretation apart from the contract of which they are a part. ... A contract should be constmed so as to give full meaning and effect to all of its provisions . . . (Citation omitted; internal quotation marks omitted.) FCM Group, Inc. v. Miller, 300 Conn. 774, 811, 17 A.3d 40 (2011).

I

The plaintiffs first claim that the court improperly awarded the excess insurance proceeds to the defendants despite language in the mortgage directing that such proceeds be paid to the plaintiffs. The plaintiffs rely on language within paragraph four of the mortgage, which provides in relevant part:

“Unless [the plaintiffs] and [1721] otherwise agree in writing, insurance proceeds shall be applied to restoration or repair of the Property damaged, if the restoration or repair is economically feasible and [the plaintiffs’] security is not lessened. If the restoration or repair is not economically feasible or [the plaintiffs’] security would be lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with any excess paid to [1721]. If [1721] abandons the Property, or does not answer within 30 days a notice from [the plaintiffs] that the insurance carrier has offered to settle a claim, then [the plaintiffs] may collect the insurance proceeds. [The plaintiffs] may use the proceeds to repair or restore the Property or to pay sums secured by this Security Instrument, whether or not then due. The 30-day period will begin when the notice is given.
“Unless [the plaintiffs] and [1721] otherwise agree in writing, any application of proceeds to principal shall not extend or postpone the due date of the monthly payments referred to in paragraph 1. If under paragraph 19 the property is acquired by [the plaintiffs], [1721’s] right to any insurance policies and proceeds resulting from damage to the property prior to the acquisition shall pass to [the plaintiffs] to the extent of the sums secured by this Security Instrument immediately prior to the acquisition.”

The plaintiffs argue that, because the court found that their security was not lessened, the second sentence of paragraph four, which directs that excess insurance proceeds be distributed to 1721, does not apply. Rather, the plaintiffs assert that the first sentence of paragraph four applies, and that it, on its own, does not indicate to which party excess insurance proceeds are to be distributed. The plaintiffs assert that, in the absence of an express agreement providing for the distribution of the insurance proceeds, a mortgagee may apply insurance proceeds in satisfaction or reduction of the debt underlying the mortgage. According to the plaintiffs, the general rule that necessarily follows from this is that, absent satisfaction of the entire mortgage debt by the mortgagor, excess insurance proceeds must be distributed to the mortgagee when the mortgage does not contain an agreement to the contrary. We disagree with the plaintiffs’ claim that there is no express agreement within the mortgage regarding the distribution of insurance proceeds and conclude that the mortgage unambiguously provides that such proceeds must be distributed to 1721.

We begin our analysis of the mortgage by considering whether any particular provision within it is dispositive of the issue before us. The court found that the plaintiffs had not “acquired” the property within the meaning of paragraph four of the mortgage, and the plaintiffs do not contest this finding on appeal. The court determined that this case presented a different factual situation from that contemplated by the language at the end of paragraph four, which provides that “[i]f under paragraph 19 the property is acquired by [the plaintiffs], [1721’s] right to any insurance policies and proceeds resulting from damage to the property prior to the acquisition shall pass to [the plaintiffs] . . . .” We agree that, as the plaintiffs have not acquired the property, this language is not dispositive of the issue before us.

Furthermore, the court found that the repairs made by the defendants fully restored the property and that the plaintiffs’ security had not been lessened. On the basis of these findings, which are not challenged on appeal, we agree with the court that the language in paragraph four that “[i]f the restoration or repair is not economically feasible or [the plaintiffs’] security would be lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with any excess paid to [1721]” does not control the outcome of the present case.

The plaintiffs assert that the controlling language is the sentence of paragraph four that provides: “Unless [the plaintiffs] and [1721] otherwise agree in writing, insurance proceeds shall be applied to restoration or repair of the Property damaged, if the restoration or repair is economically feasible and [the plaintiffs’] security is not lessened.” Taken alone, this language appears to require nothing more than the use of insurance proceeds to repair or restore the property. Considering that the property has been restored fully, the mandates of this provision have been satisfied. Therefore, this language, considered in isolation, is not dispositive of the question of who is entitled to excess insurance proceeds. The plaintiffs argue that this language reflects the general principle that a mortgagee may apply insurance proceeds in satisfaction of the mortgage debt. Even if we accept this to be the general principle, we conclude that the particular mortgage deed before us unambiguously provides that excess insurance proceeds normally will be distributed to 1721.

Although no single provision of the mortgage deed is dispositive of the issue before us, the intent of the parties readily can be ascertained by considering paragraph four of the mortgage within the context of the entire deed. Paragraph four references “[1721’s] right to any insurance policies and proceeds resulting from damage to the property . . . .” The mortgage does not reference any right in the plaintiffs to insurance proceeds, except in three enumerated circumstances: (1) where restoration or repair is economically unfeasible or the plaintiffs’ security would be lessened; (2) if 1721 abandons the property or does not answer within thirty days a notice from the plaintiffs that the insurance carrier has offered to settle a claim; or (3) if the property is acquired by the plaintiffs. The mortgage, therefore, creates a right to insurance proceeds in 1721 that is altered only if one of three enumerated circumstances arises. As none of these circumstances occurred in the present case, the court correctly determined that any excess insurance proceeds should be distributed to the defendants.

II

The plaintiffs next claim that the court improperly failed to award them attorney’s fees on the defendants’ unsuccessful counterclaim. We disagree.

The plaintiffs rely on paragraph six of the mortgage, which provides in relevant part: “If [1721] fails to perform the covenants and agreements contained in this Security Instrument, or there is a legal proceeding that m[a]y significantly affect [the plaintiffs’] rights in the Property (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture or to enforce laws or regulations), then [the plaintiffs] may do and pay for whatever is necessary to protect the value of the Property and [the plaintiffs’] rights in the Property. [The plaintiffs’] actions may include paying real property taxes, insurance premiums, any sums secured by a lien which has priority over this Security Instrument, and entering on the Property to make repairs. Although [the plaintiffs] may take action under this paragraph, [the plaintiffs do] not have to do so. To the extent that [the plaintiffs incur] legal fees or costs under this paragraph or to protect the lien of its mortgage, [1721] agrees to pay attorneys’ fees and costs of [the plaintiffs]. ...”

The following additional facts are relevant. On September 14, 2010, the court held a hearing regarding the issue of whether the plaintiffs were entitled to attorney’s fees in connection with their defense of the defendants’ unsuccessful counterclaim. The court found, contrary to the assertions of the plaintiffs, that the distribution of insurance proceeds did not affect the underlying property that secures the note. Determining that the mortgage provided for attorney’s fees only to the extent that the plaintiffs incurred legal fees to protect the lien of the mortgage, the court found that the plaintiffs were not entitled to attorney’s fees.

On appeal, the plaintiffs argue that paragraph six of the mortgage entitles them to attorney’s fees incurred in their defense of the defendants’ unsuccessful counterclaim. The plaintiffs assert that the counterclaim did not concern the debt, but that it concerned additional collateral securing the property, namely, the insurance. Therefore, according to the plaintiffs, their defense of the counterclaim constituted an action to protect the property and their rights in the property within the meaning of paragraph six of the mortgage.

Typically, parties must bear their own litigation expenses. E.g., Traystman, Coric & Keramidas, P.C. v. Daigle, 282 Conn. 418, 429, 922 A.2d 1056 (2007). “The general rule of law known as the American rule is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. . . . This rule is generally followed throughout the country. . . . Connecticut adheres to the American rule.” (Citations omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 517, 970 A.2d 583 (2009).

The plaintiffs rely on Atlantic Mortgage & Investment Corp. v. Stephenson, 86 Conn. App. 126, 860 A.2d 751 (2004), in support of their argument that they are entitled to attorney’s fees. In Atlantic Mortgage & Investment Corp., the mortgage at issue contained a clause similar to paragraph six of the mortgage in the present case, providing for payment by the mortgagor of attorney’s fees incurred by the mortgagee in any “legal proceeding that may significantly affect [the mortgagee’s] rights in the Property . . . .” (Internal quotation marks omitted.) Id., 134. The trial court in that case had awarded attorney’s fees to the mortgagee in connection with a zoning enforcement action brought by a municipality against the mortgagor. Id., 132-34. On appeal, this court held that the award was proper because, in the zoning enforcement action, the municipality had the ability to impose a priority hen to demolish the building that was the subject of the mortgage. Id., 133-35. This court concluded that the mortgagee, in defending against the zoning enforcement action, had been acting to protecting its rights in the property. Id.

We conclude that the facts in the present case are distinguishable from those in Atlantic Mortgage & Investment Corp. The mortgagee in that case clearly was acting to protect its rights in the subject property when the legal proceeding at issue could have resulted in the property being demolished. There was no such proceeding in the present case; here, the issue was solely the appropriate distribution of insurance proceeds. This distribution in no way affected either the title to or the value of the property. Therefore, the defendants are not responsible for attorney’s fees under the mortgage.

Our result is supported by our Supreme Court’s decision in Voll v. Lafayette Bank & Trust Co., 223 Conn. 419, 613 A.2d 266 (1992). The mortgage in Voll contained language similar to the provisions in bott Atlantic Mortgage & Investment Corp. and the present case. Id., 425-26. In Voll, the mortgagee claimed that it was entitled to attorney’s fees in an action in which the mortgagors unsuccessfully attempted to enforce a prepayment clause. Id. The mortgagee argued that the action concerned its rights in the property because, had the mortgagors been successful, they could have prepaid the loan in satisfaction of the debt, extinguishing the mortgagee’s rights in the mortgage. Id., 427. Our Supreme Court disagreed, holding that this issue concerned only the debt underlying the mortgage, not the mortgagee’s security interest in the mortgaged property. Id. The same can be said of the distribution of insurance proceeds in the present case. The defendants’ counterclaim alleged tortious interference with business opportunities and breaches of the covenant of good faith and fair dealing and the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. None of these claims could impact the value of the property or the plaintiffs’ rights in the property. As in Voll, which dealt with language similar to that in the mortgage at issue here, the plaintiffs were not entitled to attorney’s fees for defending against the counterclaim.

The plaintiffs, without distinguishing Voll, assert that insurance is additional collateral procured to protect the debt in accordance with the mortgage, and, therefore, that claims regarding insurance concern the property. The plaintiffs’ argument would be persuasive if this were a case in which they, as mortgagee, purchased insurance in light of the mortgagor’s failure to do so as required by the mortgage. In that case, and applying the rationale of Voll, their purchase of insurance clearly would be an action taken to protect the mortgaged property. That is not the case here, however. Here, we are presented with the issue of the distribution of proceeds from properly obtained insurance; this is an inquiry distinct from whether the purchase of insurance in the first place implicates the mortgagee’s rights in the property.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       Del Grosso, a self-represented party at trial and on appeal, was a guarantor of 1721’s obligation under the mortgage at issue, and the plaintiffs’ complaint named him as a defendant. Del Grosso also signed the note and mortgage in his capacity as a member of 1721. We refer to 1721 and Del Grosso collectively as the defendants and individually by name where appropriate.

       The defendants’ counterclaim alleged tortious interference with business opportunities and violations of the covenant of good faith and fair dealing and the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The court rendered judgment for the plaintiffs on the counterclaim, stating that the defendants had failed to offer any evidence to support its allegations. The defendants initially cross appealed this decision but withdrew the cross appeal on December 21, 2010.

       The plaintiffs claimed during oral argument before this court that this finding was clearly erroneous. We decline to review this claim, however, because the plaintiffs did not make such a claim in their brief. “We generally do not consider claims raised for the first time at oral argument.” Zenon v. Mossy, 114 Conn. App. 734, 736 n.2, 970 A.2d 814 (2009).


author: WEST, J.

text:
    DAVID TAYLOR v. COMMISSIONER OF CORRECTION
    (AC 31835)
    (AC 31923)
    (AC 31942)
    Gruendel, Beach and West, Js.

      Argued November 28, 2011
    officially released March 27, 2012

      Christopher Y Duby, special public defender, for the appellant (petitioner).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington,
      state’s attorney, and David Clifton, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

WEST, J.

The petitioner, David Taylor, appeals following the habeas court’s denial of his three petitions for certification to appeal from the judgments dismissing his petitions for a writ of habeas corpus. In this consolidated appeal, the petitioner claims in docket number AC 31835 that the court abused its discretion when it denied his petition for certification to appeal because Practice Book (2009) §§ 23-41 and 23-42 are unconstitutional because they permit the court to dismiss a habeas petition without any evidentiary hearing. We dismiss the appeals.

In September, 2001, the petitioner, a British citizen, pleaded guilty under the Alford doctrine to one count of murder and was sentenced to twenty-five years incarceration. The petitioner has filed several habeas petitions, beginning in 2003. In the present case, there are three consolidated appeals. In July, 2005, while his 2003 habeas petition was on appeal, the petitioner filed a habeas petition alleging ineffective assistance of habeas counsel. In July, 2008, the petitioner filed a habeas petition, claiming that his plea was not voluntary, that there were procedural problems with regard to the presen-tence investigation report and that his counsel in the 2003 habeas action was ineffective. On December 3, 2008, the court granted the petitioner’s motion to consolidate the 2005 and 2008 habeas petitions. On February 20, 2009, the petitioner’s appointed counsel filed an Anders brief to withdraw his appearance for the petitioner in the consolidated petitions. The petitioner filed an opposition to the motion to withdraw. On December 2, 2009, the court granted counsel's motion to withdraw and dismissed the consolidated habeas petitions. The court denied the petitioner’s petition for certification to appeal. The petitioner appealed from that judgment and filed an application for a waiver of fees and the appointment of counsel. The court found the petitioner to be indigent, and thus waived the entry fee, but did not waive other fees necessary to prosecute the appeal and did not appoint counsel for the appeal.

In September, 2009, while the Anders brief was pending in the petitioner’s consolidated habeas action, the petitioner filed a habeas petition again alleging ineffective assistance of counsel and that his plea was not knowingly and intelligently made. The court, finding the petition to be wholly frivolous, declined to issue the writ pursuant to Practice Book § 23-24 and, in support of its ruling, cited the court’s December 2, 2009 decision dismissing the consolidated habeas petitions. The court denied the petitioner’s petition for certification to appeal. The petitioner then filed an application for a waiver of fees and the appointment of counsel. The court waived only the entry fee and declined to appoint counsel for the appeal. From these rulings, the petitioner filed his second appeal.

On December 4, 2009, the petitioner filed a habeas petition, claiming that his incarceration was illegal because the department of correction was “violating the [United States] [constitution by setting arbitrary conditions for participation in an international prisoner transfer treaty in denying [his] requests for a transfer in 2002 and again this year in April.” The court declined to issue the writ of habeas corpus and returned it to the petitioner pursuant to Practice Book § 23-24 (a) (1) on the ground that the court lacked jurisdiction. The court denied the petitioner’s petition for certification to appeal and granted the petitioner’s fee waiver application, waiving the entry fee but declining to appoint counsel. From this judgment, the petitioner filed his third appeal. Subsequently, the petitioner filed a motion to consolidate his three appeals, which this court granted.

We first set forth our standard of review. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion.” Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To prove an abuse of discretion, the petitioner must demonstrate “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Id., 616. “If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” Id., 612.

On appeal, the petitioner’s only claim concerned his first appeal and alleged that the court abused its discretion in denying his petition for certification to appeal because Practice Book (2009) §§ 23-41 and 23-42 are unconstitutional insofar as they permit a court to dismiss a habeas petition without an evidentiary hearing. We disagree.

At the time of the court’s judgment dismissing the petitioner’s consolidated petition, Practice Book (2009) § 23-42 (a) provided in relevant part: “If the judicial authority finds that the case is wholly without merit, it shall allow counsel to withdraw and shall consider whether the petition shall be dismissed or allowed to proceed, with the petitioner pro se. . . .” This court has held that this subsection “provides an explicit exception to the general rule requiring an evidentiary hearing before a habeas petition may be dismissed.” Riddick v. Commissioner of Correction, 113 Conn. App. 456, 467, 966 A.2d 762 (2009), appeal dismissed, 301 Conn. 51, 19 A.3d 174 (2011) (certification improvidently granted); see also Lorthe v. Commissioner of Correction, 103 Conn. App. 662, 693, 931 A.2d 348 (habeas court, sua sponte, dismissed habeas petition pursuant to Practice Book [2004] § 23-42), cert. denied, 284 Conn. 939, 937 A.2d 696 (2007); Freeney v. Commissioner of Correction, 51 Conn. App. 378, 382, 721 A.2d 571 (1998) (habeas court, sua sponte, dismissed habeas petition pursuant to Practice Book [1998] § 23-42, formerly Practice Book § 529U), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999).

Although this court has upheld the dismissal of a petition pursuant to Practice Book (2009) § 23-42 as procedurally proper, no appellate court has ruled on the constitutionality of the provision, specifically whether it violates the petitioner’s right to due process. We resolve due process claims pursuant to Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

“Inquiry into whether particular procedures are constitutionally mandated in a given instance requires adherence to the principle that ‘due process is flexible and calls for such procedural protections as the particular situation demands.’ Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). There is no per se rule that an evidentiary hearing is required whenever a liberty interest may be affected. ‘Due process ... is not a technical conception with a fixed content unrelated to time, place and circumstances.’ . . . Ingraham v. Wright, 430 U.S. 651, 675, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977). Rather, the ‘[specific dictates of due process generally require consideration of three distinct factors: [f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [state’s] interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ Mathews v. Eldridge, [supra, 424 U.S. 335],

“When determining what procedures are constitutionally required, we must bear in mind that ‘[t]he essence of due process is the requirement that a person in jeopardy of a serious loss [be given] notice of the case against him and [an] opportunity to meet it.’ . . . Id., 348-49. The elements of notice and opportunity, however, do not require a ‘judicial-type hearing in all circumstances.’ Parham v. J.R., 442 U.S. 584, 608 n.16, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979). So long as the procedure afforded adequately protects the individual interests at stake, there is no reason to impose substantially greater burdens on the state under the guise of due process. See Douglas v. Warden, 218 Conn. 778, 785, 591 A.2d 399 (1991) (due process requires ‘notice and proceedings . . . adequate to safeguard the constitutional right for which the constitutional protection is invoked’).” State v. Lopez, 235 Conn. 487, 492-93, 668 A.2d 360 (1995).

Applying this analysis to the present case, we conclude that the petitioner’s due process rights were not violated by the corut’s dismissal of his consolidated habeas petitions without an evidentiary hearing. The first factor to consider is “the private interest that will be affected by the official action . . . .” Hunt v. Prior, 236 Conn. 421, 439, 673 A.2d 514 (1996). The private interest affected in this case is the loss of the opportunity for the petitioner to have his claim considered on its merits following a hearing. The impact of such a loss depends on whether the petitioner’s habeas petitions contained legitimate claims or are entirely frivolous.

This interest is not examined alone, however, it must be considered with the second factor, which requires the court to balance “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards . . . .” Mathews v. Eldridge, supra, 424 U.S. 335; see also Hunt v. Prior, supra, 236 Conn. 439. Here, the second element of the test involves consideration of the risk that the court will dismiss a meritorious petition pursuant to Practice Book (2009) § 23-42. The risk of this deprivation is low based on the procedural safeguards in place. Under § 23-41 (a), following a “conscientious investigation and examination of the case, [if counsel] concludes that the case is wholly frivolous” counsel may make a motion to withdraw. Section 23-41 (b) provides the petitioner with thirty days to respond to his counsel’s motion to withdraw. In the present case, the petitioner filed a twenty-three page memorandum in opposition to counsel's motion to withdraw, articulating his basis for claiming that his consolidated petitions were not frivolous. Additionally, § 23-41 (b) provides the petitioner with adequate notice of the action the court could take in regard to his petitions, and with an opportunity to rebut claims made by his counsel regarding whether his case is wholly frivolous. Although that opportunity does not come in the form of a “judicial-type hearing,” the case law is clear that as long as the procedures in place adequately protect the petitioner’s individual interests at stake, a full evidentiary hearing is not necessary to comport with due process. In the present case, the court carefully considered counsel's motion to withdraw and the petitioner’s memorandum in opposition, concluding in a fifteen page memorandum of decision that the consolidated petitions were “wholly without merit” prior to dismissing same. Further, the petitioner could have sought appellate review of the dismissal of his petitions, however, here, the petitioner has not challenged on appeal the merits of the court’s determination.

The final factor to consider under Mathews is “the [government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, supra, 424 U.S. 335; see also Hunt v. Prior, supra, 236 Conn. 439-40. The government has an interest in the proper adjudication of a habeas petitioner’s claims. This interest is limited, however, by the resources of the state. Allowing the case to continue despite a determination by the court that the case is wholly without merit places an unnecessary burden on the respondent to continue to litigate a frivolous case.

Considering all of these factors, we conclude that the procedures used did not expose the petitioner to an unreasonable risk of erroneous deprivation of his liberty. We further determine that there would be little value in the imposition of additional procedural safeguards. Therefore, we conclude that Practice Book (2009) §§ 23-41 and 23-42, as applied to the petitioner, did not violate the petitioner’s procedural due process rights under the federal constitution.

Accordingly, we conclude that the petitioner has not demonstrated that this issue is debatable among jurists of reason, that a court could resolve this issue differently or that the question raised deserves encouragement to proceed further.

The appeals are dismissed.

In this opinion the other judges concurred.

       The petitioner suggests in his brief that the habeas court’s denials of his petitions for certification to appeal in docket numbers AC 31923 and AC 31942 are based on the alleged improper denial of the petition in docket number AC 31835. He does not provide any independent analysis of those denials and we therefore deem any such claims abandoned.

       See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       In the petitioner’s July, 2003 petition, the petitioner alleged that trial counsel was ineffective for failing to request a competency hearing and failing to inform him adequately of the consequences of pleading guilty. The court denied the habeas petition, and on appeal the petition was dismissed in its entirety. See Taylor v. Commissioner of Correction, 284 Conn. 433, 936 A.2d 611 (2007).

       In Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), the United States Supreme Court outlined a procedure that is constitutionally required when appointed counsel concludes that an indigent defendant’s case is without merit and wishes to withdraw representation. State v. Pascucci, 161 Conn. 382, 385, 288 A.2d 408 (1971). “In the Anders case, the court said . . . [t]he constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. ... Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel— then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned .... This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the [c]ourt to pursue all the more vigorously its own review because of the ready references not only to the record but also to the legal authorities as furnished it by counsel.” (Internal quotation marks omitted.) Id., 385-86.

       On February 5, 2010, in the first appeal, the petitioner filed a motion for review of the habeas court’s refusal to appoint him appellate counsel. The petitioner filed motions for review in his second and third appeals, seeking review of the court’s denial of his requests for appointment of counsel. This court granted the petitioner’s motions for review and the relief requested, directing the court to appoint counsel in the consolidated appeal. The petitioner was assigned counsel from the public defender’s office. On January 5, 2011, the petitioner filed with the habeas court a motion for replacement of appellate counsel, pursuant to Practice Book § 62-9A. The court denied the motion, and this court granted the petitioner’s motion for review but denied the relief requested.

       Practice Book § 23-42 was revised in 2010 to no longer permit the judicial authority to dismiss the petition after concluding that a petitioner’s case is wholly frivolous. Under the 2010 revision, the petitioner may proceed as a self-represented party following the withdrawal of counsel.

       On appeal, the petitioner does not challenge the court’s decision to permit appointed counsel to withdraw after finding the petitioner’s case to be wholly without merit. We note that the petitioner’s only claim on appeal comes from the first of the petitioner’s three separate appeals from the habeas court under docket number AC 31835.


text:
    DIRECTORY ASSISTANTS, INC. v. BIG COUNTRY VEIN, L.P., ET AL.
    (AC 32907)
    DiPentima, C. J., and Robinson and Espinosa, Js.
    Argued December 1, 2011
    officially released March 27, 2012

      Linda L. Morlcan, with whom, on the brief, were Frank F. Coulom, Jr., and Brett J. Boskiewicz, for the appellant (plaintiff).
   Opinion

ESPINOSA, J.

The plaintiff, Directory Assistants, Inc., appeals from the trial court’s judgment dismissing its action under General Statutes § 52-417 to confirm an award in its favor obtained in an arbitration proceeding against several defendants. The plaintiff asserts that the court improperly dismissed its action on the ground that the underlying dispute was not arbitrable. We agree. Accordingly, we reverse the judgment of the trial court and remand the case with direction to render judgment granting the plaintiffs application to confirm the arbitration award.

The following undisputed facts are relevant to this appeal. The plaintiff is a Connecticut based corporation. In February, 2008, it entered into a consulting contract with the defendants in which it agreed to reduce the defendants’ Yellow Pages costs. Subsequently, the parties had a dispute concerning the plaintiffs billing procedures and the services that the plaintiff claimed it performed. The plaintiff sought to resolve the dispute through arbitration, citing the arbitration clause in the parties’ contract.

Initially, the plaintiff suggested that the arbitration should take place in New Britain, but the defendants disagreed and demanded that it take place in Texas. In response, the plaintiff suggested three locations that it maintained were approximately equidistant from Connecticut and Texas. The parties did not reach an agreement, and the plaintiff went forward unilaterally with arbitration at the American Dispute Resolution Center (arbitration center) in New Britain on June 17, 2009.

The plaintiff provided the defendants with notice of the arbitration proceeding, but the defendants did not attend the proceeding. Instead, the defendants filed a petition in the United States District Court, 35th Judicial District Court of Brown County, on July 6,2009, alleging that the parties’ dispute was not arbitrable and petitioning for a declaratory judgment and an injunction prohibiting the plaintiff from proceeding with arbitration. Big Country Vein Relief, L.P. v. Directory Assistants, Inc., United States District Court, Docket No. CV0907226 (Brown County, Tex. July 6, 2009) (Texas action). On July 28, 2009, the defendants made a request to the arbitration center that the arbitration proceedings be suspended until the conclusion of this litigation, but the arbitration center denied this request on the ground that the court in the Texas action had not issued a temporary stay.

On August 28, 2009, the arbitrator awarded the plaintiff $77,100.78, as well as costs and attorney’s fees. The defendants received notice of this award on August 31, 2009. Following the adverse decision of the arbitrator, the defendants amended their petition in the Texas action to include a request to vacate the arbitration award. The defendants did not file a motion to vacate the award in Connecticut.

On October 1, 2009, the plaintiff brought an action in Superior Court to confirm the award pursuant to § 52-417. The defendants filed a motion to dismiss the action for a lack of personal jurisdiction, or, in the alternative, to stay the proceeding pending the outcome of the Texas action. The court found that the defendants properly had preserved their objections to the arbitra-bility of the dispute. Interpreting the parties’ contract, the court found that the dispute was not arbitrable and that the parties’ contract unambiguously required that both parties agree to arbitration before one side unilaterally chose the forum, location and choice of law for the arbitration. Therefore, the court determined that the dispute should not have been heard by the arbitration center to which the plaintiff had submitted it, and the court dismissed the action. The plaintiff filed the present appeal on November 23, 2010.

The plaintiff claims that the court improperly dismissed its action on the ground that the underlying dispute was not arbitrable. According to the plaintiff, the court improperly treated the defendants’ motion to dismiss as though it implicated the court’s subject matter jurisdiction. The plaintiff argues that, under § 52-417, the court was required to confirm the arbitration award in light of the defendants’ failure to file a timely motion to vacate, modify or correct the arbitration award. We agree.

“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting grant of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Hayes Family Ltd. Partnership v. Glastonbury, 132 Conn. App. 218, 221, 31 A.3d 429 (2011).

Our Supreme Court has explained that “there are two procedural routes by which a party may preserve the issue of the arbitrability of a particular dispute for judicial determination. First, a party may refuse to submit to arbitration at the outset and instead compel a judicial determination of the issue of arbitrability. . . . Alternatively, threshold questions of arbitrability may properly be committed to the arbitrators themselves for determination under the terms of the contract, along with the merits of the underlying dispute. ... In such cases a court, on a motion to vacate, may properly entertain a challenge to an award alleging disregard of the limits in the parties’ agreement with respect to arbitration.” (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 709, 987 A.2d 348 (2010).

Under § 52-417, a party may apply for the confirmation of an arbitration award within one year after it has been rendered. Section 52-417 provides that upon such an application, “[t]he court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.” (Emphasis added.)

General Statutes § 52-418 (a) provides that a court shall grant a motion to vacate if it finds one of the following enumerated defects: “(1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” General Statutes § 52-420 (b) creates a time limitation on bringing a motion to vacate: “No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion.”

“The trial court lacks any discretion in confirming the arbitration award unless the award suffers from any of the defects described in . . . §§ 52-418 and 52-419. . . . Furthermore, if a motion to vacate, modify or correct is not made within the thirty day time limit specified in General Statutes § 52-420, the award may not thereafter be attacked on any of the grounds specified in §§ 52-418 and 52-419.” (Internal quotation marks omitted.) Stratek Plastics, Ltd. v. Ibar, 120 Conn. App. 90, 91, 991 A.2d 577 (2010).

In the present case, the court improperly dismissed the plaintiffs application to confirm on the basis of its finding that the underlying dispute was not arbitrable. As an initial matter, we note that the defendants’ motion to dismiss or stay did not raise a question of subject matter jurisdiction. The motion claimed only that the court lacked personal jurisdiction over the defendants. Contrary to the assertion of the plaintiff, although a court is without discretion to consider a matter over which it lacks subject matter jurisdiction; see, e.g., Dean-Moss Family Ltd. Partnership v. Five Mile River Works, Inc., 130 Conn. App. 363, 370, 23 A.3d 745 (2011); the defendants’ motion did not argue, and the court did not decide, that the court could not hear the case as a matter of law for a lack of subject matter jurisdiction.

Furthermore, this is not a case in which the defendants claimed that there was no agreement to arbitrate. Cf. MBNA America Bank, N.A. v. Boata, 283 Conn. 381, 394-96, 926 A.2d 1035 (2007) (holding that defendant who objects to existence of arbitration agreement does not fall within scope of § 52-418 and, therefore, does not need to file motion to vacate within thirty days as long as defendant preserved claim as to existence of arbitration agreement). The defendants in this case argued in their petition in the Texas action that the present dispute was not arbitrated properly under the parties’ contract. As the defendants’ argument presumes that there was an agreement to arbitrate, the claim is still within § 52-418, and, therefore, the time limitation in § 52-420 (b) applies.

The court recognized, appropriately, that the defendants initiated the Texas action before the plaintiff filed its application to confirm. The court held that this preserved the defendants’ arbitrability claim under the line of cases that recognize that a party may preserve its claim that a dispute is not arbitrable by “refus[ing] to submit to arbitration at the outset and instead compel [- ling] a judicial determination of the issue of arbitrability.” See Bacon Construction Co. v. Dept. of Public Works, supra, 294 Conn. 709.

None of this, however, excuses the defendants from complying with the statutorily mandated procedures for challenging an arbitration award established by § 52-417 et seq. Even if we assume that the defendants properly had preserved their objection to the arbitration award by initiating the Texas action, the appropriate response was to file a motion to vacate the award under § 52-418. Having failed to file such a timely motion to vacate, however, the defendants cannot now make these claims through a motion to dismiss the application to confirm. The defendants failed to follow the appropriate procedure for raising their objection in Superior Court. As a consequence, the award has not been vacated, modified or corrected, and the court lacked any discretion in confirming it pursuant to § 52-417. See Stratek Plastics, Ltd. v. Ibar, supra, 120 Conn. App. 91.

The judgment is reversed and the case is remanded with direction to render judgment granting the plaintiffs application to confirm the arbitration award.

In this opinion the other judges concurred.

       The defendants originally named in this action are the following related health care entities: Big Country Vein, L.P., Big Country Weight Loss, Big Country Medical Day Spa, Abilene Minor Emergency Clinic, Kerrville Minor Emergency Clinic and New Braunfels Minor Emergency Clinic. We note that only Big Country Vein, L.P., Big Country Weight Loss, and Big Country Medical Day Spa filed a motion to dismiss, and are the only parties to this appeal. Hereafter, references in this opinion to the defendants are to those parties.

       The defendants did not respond to the plaintiffs claim on appeal, having failed to file a brief with this court. Therefore, we will consider the appeal on the basis of the plaintiffs brief and oral argument, as well as the trial court record. See Gail R. v. Bubbico, 114 Conn. App. 43, 45 n.1, 968 A.2d 464 (2009).

       The arbitration clause provides in relevant part: “Should a dispute arise we both agree to try and resolve it with the other party. If we cannot, we both want to resolve it quickly and cost effectively. To achieve that, we both agree to resolve any dispute arising out of or relating to this contract through confidential binding arbitration and agree to mutually choose an arbitration service, location and choice of law forum. If we are unable to come to a mutual agreement, or if one of us refuses to participate in choosing, the party filing a demand will have the right to make the choices unilaterally, as long as the filing party made a good faith effort to come to a mutual agreement, and the non-choosing/non-participating party expressly consents to and waives any and all objectives to the choices made.
      * * *
      “Either of us may obtain judgment upon an arbitration award in any court in either our home state or your home state, and both of us expressly consent to and waive any objection to the jurisdiction of the court selected by the prevailing party for purposes of seeking confirmation and/or judgment on any arbitration award.”


author: ROBINSON, J.

text:
    JOSE REYES ET AL. v. CITY OF BRIDGEPORT ET AL.
    (AC 33239)
    Robinson, Sheldon and Schaller, Js.

      Argued January 3
    officially released March 27, 2012

      W. MartynPhilpot, Jr., for the appellants (plaintiffs).

      JohnR. Mitola, associate city attorney, for the appel-lees (named defendant et al.).
   Opinion

ROBINSON, J.

The plaintiffs appeal following the judgment of the trial court granting a motion for summary judgment in favor of the defendants, the city of Bridgeport (city), the board of police commissioners of the city (board) and Ralph H. Jacobs, the city’s former civil service personnel director. On appeal the plaintiffs contend that the trial court erred (1) in granting the defendants’ motion for summary judgment and (2) in denying the plaintiffs’ motion for reassignment after the court did not issue a decision on the defendants’ motion for summary judgment within 120 days. We agree with the plaintiffs that the court erred in denying their motion for reassignment and, accordingly, reverse the trial court’s judgment and remand the case for reassignment of the defendants’ motion for summary judgment.

The following facts and procedural history are relevant to the resolution of the plaintiffs’ claim. The plaintiffs initiated the present action against the defendants based on allegations that they allowed five candidates to sit for a lieutenant’s promotional examination in the city, although such candidates lacked the requisite time in grade as sergeants to sit for the examination. The five disputed candidates at issue who were allowed to sit for the examination included two candidates who are African-American, one candidate who is Hispanic and two candidates who are Caucasian. The plaintiffs’ third revised complaint consists of four counts. In the first count, the plaintiffs allege that the defendants deprived them of due process of law and equal protection of the laws in violation of § 1983 of title 42 of the United States Code. The plaintiffs contend that they were forced to take the promotional examination with five individuals who were ineligible, two of whom were African-American, and that one of the African-American candidates was provided preferential treatment. In count two, the plaintiffs allege that the defendants violated their contractual rights under their union’s collective bargaining agreement. In count three, the plaintiffs allege that the defendants violated their state constitutional rights. Lastly, in count four, the plaintiffs allege that the defendants intentionally inflicted emotional distress on them.

On June 1, 2010, the defendants filed a motion for summary judgment. A hearing on the motion was held before the comí, Levin, J., on September 7, 2010, at which the parties presented oral argument. The court then summoned the parties on December 21, 2010, to appear before the court on January 3, 2011. When the parties appeared before the court on January 3, 2011, the court apprised the parties as follows: “I noticed the reargument because given the size of the record, I do feel that I should read through the entire record . . . before I rule. I didn’t know if I would be able to make it within the 120 days, so if either counsel wanted rear-gument, I want to give you that opportunity.” Counsel for both parties declined the opportunity for reargument. The plaintiffs’ counsel then inquired whether the court had any questions with regard to the issues that the plaintiffs believed constituted genuine issues of material fact, to which the court answered in the negative. The proceeding was concluded without any additional argument or evidence presented. After the proceeding was concluded, another attorney involved with the case, entered the courtroom and engaged in a colloquy with the court about what had just transpired. In that colloquy, the court noted that the proceeding had been “an opportunity for additional argument . . . continued argument because I’m not going to . . . because of this telephone book I’m not going to make the 120 days, so I thought if counsel wanted to have the opportunity to reargue and also buy me some more time, that’s why I set it down.”

On January 11, 2011, the plaintiffs filed a motion for reassignment. The plaintiffs argued that because the motion for summary judgment had been argued on September 7, 2010, the 120 day filing deadline set forth in Practice Book § 11-19 (a) for filing the court’s decision had expired on January 5, 2011, and as of that date, the court had not issued a decision. The defendants objected to the plaintiffs’ motion for reassignment, and the court, Hon. Edward H. Stodolink, judge trial referee, sustained the defendants’ objection on January 31, 2011. The plaintiffs filed a motion to reargue on February 9, 2011, which that court denied. On February 24, 2011, the court, Levin, J., granted the defendants’ motion for summary judgment on all counts of the plaintiffs’ complaint. This appeal followed. Additional facts will be provided where necessary.

We first address the plaintiffs’ contention that the court erred in denying their motion for reassignment. The plaintiffs contend that because oral argument on the defendants’ motion for summary judgment occurred on September 7, 2010, the court was required to issue its decision on the motion on or before January 5, 2011, to comply with the 120 day filing deadline set forth in Practice Book § 11-19. The defendants make two arguments in opposition to the plaintiffs’ contention: (1) because the parties had been summoned to appear before the court on January 3, 2011, the court had been afforded an additional 120 days in which to issue its decision; and (2) even if the court was not afforded an additional 120 days in which to issue its decision, the actions of the plaintiffs’ counsel on January 5, 2011, constituted a waiver of the 120 day time limitation.

Oral argument was held on the defendants’ motion for summary judgment on September 7, 2010. Using this date as the date from which to measure 120 days under Practice Book § 11-19, the court was required to issue a decision on the defendants’ motion on or before January 5,2011. The defendants contend, however, that the court held another hearing on the motion for summary judgment on January 3, 2011, and thus afforded itself an additional 120 days within which to issue its decision. The first issue, then, is whether the proceeding on January 3, 2011, constituted a hearing that would allow for an additional 120 days under § 11-19.

We begin by considering the common, generally understood meaning of the term “hearing.” “We consistently have acknowledged the definition of a hearing provided in Black’s Law Dictionary, as [a] proceeding of relative formality . . . generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented, and in which parties to a dispute have a right to be heard.” (Internal quotation marks omitted.) Dietzel v. Planning Commission, 60 Conn. App. 153, 160-61, 758 A.2d 906 (2000), citing Black’s Law Dictionary (6th Ed. 1990). “Our Supreme Court has stated that [a] hearing can be a proceeding in the nature of a trial with the presentation of evidence, it can be merely for the purpose of presenting arguments, or, of course, it can be a combination of the two. . . . Not only does a hearing normally connote an adversarial setting, but usually it can be said that it is any oral proceeding before a tribunal. . . . Our cases consistently recognize the generally adversarial nature of a proceeding considered a hearing, in which witnesses are heard and testimony is taken.” (Internal quotation marks omitted.) Dortenzio v. Freedom of Information Commission, 48 Conn. App. 424, 434, 710 A.2d 801 (1998).

The court, on its own initiative, ordered the parties to appear on January 3, 2011, and asked if they would like an additional opportunity to provide argument on the motion for summary judgment. Both parties refused the opportunity to provide additional argument. The plaintiffs’ counsel asked the court whether it had any questions concerning the issues that the plaintiffs believed constituted genuine issues of material fact to which the court responded in the negative. That was the extent of the January 3,2011 proceeding. The defendants contend that because the parties appeared before the court, that is sufficient to constitute a hearing so as to warrant an additional 120 days. We disagree. There was no evidence presented to the court, and the parties did not provide any additional argument on the motion for summary judgment. There was nothing adversarial about the proceeding. We refuse to term something a “hearing” simply because the parties appeared in court. There must be some substantive element, such as the presentation of evidence or argument, in order to constitute a hearing. We thus conclude that the appearance of the parties before the court on January 3, 2011, did not constitute a hearing so as to allow the court an additional 120 days in which to issue its decision under Practice Book § 11-19.

The defendants also argue that the conduct of the plaintiffs’ counsel at the January 3, 2011 proceeding constituted a waiver of the 120 day filing deadline. They contend that the plaintiffs’ counsel knew that the court would not issue its decision by January 6, 2011, the day that the case was scheduled for jury selection. Because January 6, 2011, was one day after the 120 day time limitation had expired and the plaintiffs’ counsel did not object to the court saying that it would not issue its decision before that time, the defendants contend that the plaintiffs waived the 120 day time limit.

“Waiver is the intentional relinquishment or abandonment of a known right or privilege. ... As a general rule, both statutory and constitutional rights and privileges may be waived. . . . Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced. . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed .... Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) LPP Mortgage, Ltd. v. Lynch, 122 Conn. App. 686, 697-98 1 A.3d 157 (2010).

On the basis of our review of the transcript, we cannot conclude that the plaintiffs waived the 120 day time limitation. The plaintiffs’ counsel did not demonstrate an intention to relinquish the plaintiffs’ right to request a reassignment if the court failed to issue its decision within the requisite 120 days. Further, the plaintiffs could not take proper action on the court’s failure to issue its decision within 120 days until that time had officially lapsed on January 5,2011. When that condition occurred, the plaintiffs took the required step of filing a motion for reassignment on January 11, 2011. Accordingly, we conclude that the plaintiffs did not waive the 120 day time limitation set forth in Practice Book § 11-19.

The plaintiffs contend that if a party has not previously waived the 120 day filing deadline and timely files a motion for reassignment pursuant to Practice Book § 11-19, a court is required under that provision to grant the motion. The remaining issue then is whether § 11-19 requires the court to grant the motion if timely filed. We conclude that, absent waiver, it does.

“We interpret provisions of the Practice Book according to the same well settled principles of construction that we apply to the General Statutes. . . . In determining the meaning of a statute, [it] must be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. . . . We presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous.” (Internal quotation marks omitted.) Byars v. FedEx Ground Package System, Inc., 101 Conn. App. 44, 48, 920 A.2d 352 (2007).

Although Practice Book § 11-19 does not explicitly provide that a court is required to grant a motion for reassignment if properly and timely filed, we read the language of § 11-19 as evincing such an intent. Section 11-19 (a) provides that a judge “shall issue a decision on such matter not later than 120 days from the date of such submission, unless such time limit is waived by the parties.” (Emphasis added.) That subsection further provides that “[i]f a decision is not rendered within this period the matter may be claimed in accordance with subsection (b) for reassignment to another judge or referee.” Practice Book § 11-19 (a). We read subsection (a) to provide that unless there is a waiver by the parties, a judge is required to issue a decision on a short calendar matter within 120 days, and if the judge fails to do so, that the matter must be reassigned at any party’s request subject to that party’s compliance with subsection (b). This reading is further supported by the language found in subsection (b). Section 11-19 (b) provides that “[a] party seeking to invoke the provisions of this section shall not later than fourteen days after the expiration of the 120 day period file with the clerk a motion for reassignment .... The failure of a party to file a timely motion for reassignment shall be deemed a waiver by that party of the 120 day time.” If a party wants to invoke the right to have a matter reassigned, he or she must timely file a motion for reassignment. It is only if a party fails to do so, or otherwise waives the 120 day filing deadline, that he or she waives the right to have the matter reassigned. Practice Book § 11-19; see also Irving v. Firehouse Associates, LLC, 95 Conn. App. 713, 720-21, 898 A.2d 270, cert. denied, 280 Conn. 903, 907 A.2d 90 (2006). This reading necessarily implies that by timely filing a motion for reassignment, a party who has not waived the filing deadline is able to invoke his or her right to reassignment, which a court must then grant.

In the present matter, the plaintiffs timely filed a motion for reassignment pursuant to Practice Book § 11-19 (b). Once the plaintiffs did so, and absent a finding of waiver, the court was required to order that the matter be reassigned to another judge. We thus conclude that the court erred in denying the plaintiffs’ motion for reassignment. Accordingly, we reverse the court’s summary judgment in favor of the defendants.

The judgment is reversed and the case is remanded with direction to reassign the defendants’ motion for summary judgment.

In this opinion the other judges concurred.

       The plaintiffs are Jose Reyes, James Kirkland, Steven Lougal, Mark Straubel, Donald Jacques, Christine Bums, William Mayer, Vincent Ingrassia, Melody Pribesh and Kevin Gilleran, each of whom worked for the city of Bridgeport police department at the rank of sergeant.

       The Bridgeport Police Union, Council 15, Local 1159 and Lonnie Blackwell were also named as defendants in this case. Those defendants, however, were not parties to the motion for summary judgment and thus are not defendants in the present appeal. We therefore refer in this opinion to the city, the board and Jacobs as the defendants.

       Because we conclude that the court erred in denying the plaintiffs’ motion for reassignment and reverse the judgment and remand the case on that basis, we need not address the court’s conclusion on the motion for summary judgment.

       According to the plaintiffs’ complaint, the applicable civil service rules require that to sit for a lieutenant’s examination, a candidate must serve for one year as a sergeant before a vacancy in a lieutenant’s position arises.

       The complaint sets forth that Jose Keyes is Caucasian of race and Hispanic of ethnicity and that the remaining plaintiffs are all Caucasian of race and white of color.

       In the defendants’ brief, they argue that in response to the court’s assertion that it would not issue a decision before January 6, 2011, the plaintiffs’ counsel responded by stating, “[v]ery good, Your Honor.”
      The following colloquy occurred:
      “[The Defendants’ Counsel]: The only thing I would say, Your Honor, and I’m sure [the plaintiffs’ counsel] wanted some clarity on this. I think we’re supposed to be here on Thursday for — scheduled for jury selection. I don’t know if we need to do anything with respect to your schedule or—
      “The Court: I can’t have anything — I’m not going to have anything ready on Thursday.
      “[The Defendants’ Counsel]: Okay.
      “The Court: Okay.
      “[The Defendants’ Counsel]: I think the last time you spoke to Judge [Barbara N.] Beilis about it. I don’t know if you want us to do it or if you Your Honor would like to do that.
      “The Court: I’ll make a note. I’ll talk to her. Okay?
      “[The Defendants’ Counsel]: Thank you, Your Honor.
      “[The Plaintiffs’ Counsel]: Very good, Your Honor." (Emphasis added.)
      Upon examination of the transcript, it appears that the statement “[v]ery good, Your Honor” by the plaintiffs’ counsel was in response to the court’s assertion that it would speak to Judge Beilis about jury selection. Even if the plaintiffs’ counsel was responding to the court’s assertion that it would not issue a decision by January 6,2011, that simple statement, without more, cannot be viewed as evidence of a waiver. We also note that there is an apparent error in the transcript indicating that the defendants’ counsel was Attorney Ralph H. Jacobs, when in fact it was Attorney John R. Mitola.

       We note that there was no express waiver in this case. Neither party explicitly notified the court that they would be willing to waive the 120 day requirement.

       “The usual rule ... is that [t]he legislature’s use of the word shall generally evidences an intent that the statute be interpreted as mandatory.” (Internal quotation marks omitted.) Stewart v. Tunxis Service Center, 237 Conn. 71, 78, 676 A.2d 819 (1996).