author: SCHALLER, J. HENNESSY, J.,

text:
    PAUL CARRUBBA ET AL. v. EMILY J. MOSKOWITZ
    (AC 22962)
    Laveiy, C. X, and Schaller and Hennessy, Js.

      Argued March 20, 2003 —
    officially released February 3, 2004

      George W. Kramer, for the appellants (plaintiffs).

      Robert J. Kor, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiffs, Paul Carrubba and his minor son, Matthew Carrubba, appeal from the judgment of the trial court dismissing their action. On appeal, the plaintiffs claim that the court improperly (1) determined that the defendant, Emily J. Moskowitz, an attorney for Matthew Carrubba, was immune from suit for torts committed in her capacity as a court-appointed attorney and (2) determined that Paul Car-rubba lacked standing to bring a legal malpractice claim against the defendant. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of the plaintiffs’ appeal. In the prior marital dissolution action between Paul Carrubba and his former wife, Carrubba v. Carrubba, Superior Court, judicial district of Hartford, Docket No. 541518 (September 2, 1994), the defendant served as court-appointed counsel for the minor children, Jessica Carrubba and Matthew Car-rubba. The marriage was dissolved on February 11, 1997. On November 2, 1998, in a postjudgment motion, Paul Carrubba sought to disqualify the defendant. The court denied the motion.

On November 13, 2000, the plaintiffs commenced the present action by filing a two count complaint. In the first count, the plaintiffs claimed that the defendant intentionally or negligently had caused Paul Carrubba to suffer emotional distress. In the second count, Matthew Carrubba, through his father and next friend, Paul Car-rubba, alleged legal malpractice against the defendant. On December 12, 2000, the defendant filed a motion to dismiss the action. The court granted the defendant’s motion as to both counts and subsequently denied the plaintiffs’ motion to reargue. The plaintiffs then filed the present appeal. Additional facts will be provided as necessary.

I

The plaintiffs first claim that the court improperly determined that the defendant was immune from suit for claims that, in her capacity as a court-appointed attorney for the minor, Matthew Carrubba, she had caused Paul Carrubba to suffer emotional distress. To resolve the claim, we must determine, (1) as a matter of first impression, whether attorneys appointed pursuant to General Statutes § 46b-54 are entitled to immunity, (2) the contours of that immunity and (3) the proper procedural vehicle for raising such immunity as a defense. We conclude that attorneys appointed pursuant to § 46b-54 are entitled to qualified quasi-judicial immunity, and that such immunity is properly pleaded as a special defense and the issue raised by using either a motion to strike or a motion for summary judgment.

The following additional facts are necessary for our resolution of the plaintiffs’ claim. In its memorandum of decision dismissing the plaintiffs’ complaint, the trial court determined that, with respect to the emotional distress count, the defendant was judicially immune from suit. The court supported that conclusion by relying on the reasoning set forth in Whitney v. Taplin, Superior Court, judicial district of Fairfield, Docket No. 339190 (May 28, 1999) (24 Conn. L. Rptr. 610) (finding that judicial immunity extends to guardians ad litem), and by analogizing the public policy reasons surrounding immunity for prosecutors to the public trust in guardians ad litem. Specifically, the trial court in the present case reasoned that, like prosecutors, guardians ad litem should be shielded from litigation to preserve the guardian’s independent judgment. Significantly, the trial court went on to state that attorneys for minor children appointed under § 46b-54, like guardians ad litem, should be granted judicial immunity for their actions taken during the representation of a minor child.

We agree with the trial court that attorneys appointed to represent minor children, pursuant to § 46b-54, fulfill a role that is closely related to the role of a guardian ad litem appointed pursuant to General Statutes § 45a-132. Our review of the issue leads us to the conclusion that we should extend immunity to attorneys appointed pursuant to § 46b-54 under a theory of qualified quasi-judicial immunity.

A

At the outset, a brief review of the history of judicial immunity will facilitate our discussion. “The common law recognized a judicial immunity, which protected judges, jurors and grand jurors, members of courts-martial, private arbitrators, and various assessors and commissioners. That immunity was absolute, but it extended only to individuals who were charged with resolving disputes between other parties or authoritatively adjudicating private rights. When public officials made discretionary policy decisions that did not involve actual adjudication, they were protected by quasi-judicial immunity, which could be defeated by a showing of malice, and hence was more akin to what we now call qualified, rather than absolute, immunity.” (Internal quotation marks omitted.) Kalina v. Fletcher, 522 U.S. 118, 132, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997) (Scalia, J., concurring). In recent times, the United States Supreme Court repeatedly has recognized that it is not the judicial office, but instead the judicial function that requires protection. See Westfall v. Erwin, 484 U.S. 292, 296 n.3, 108 S. Ct. 580, 98 L. Ed. 2d 619 (1988); Harlow v. Fitzgerald, 457 U.S. 800, 810-12, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Consequently, judicial immunity has been extended to various individuals whose adjudicatory functions or other involvement with the judicial process has been deemed to warrant protection from harassment, intimidation or other interference with impartial decision making. See Imbler v. Pachtman, 424 U.S. 409, 431, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976) (immunity extended to state prosecutor); see also Moses v. Parwatikar, 813 F.2d 891 (8th Cir.) (immunity extended to court-appointed psychiatrist), cert. denied, 484 U.S. 832, 108 S. Ct. 108, 98 L. Ed. 2d 67 (1987). The purpose of extending immunity to persons who perform an adjudicatory function, or those who have other involvement with the judicial process, is to allow such individuals to engage in fearless decision making for the benefit of the public. See Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967).

When determining which officials perform functions that might justify an exemption from liability, the United States Supreme Court has undertaken an “inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.” (Internal quotation marks omitted.) Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432, 113 S. Ct. 2167, 124 L. Ed. 2d 391 (1993). We will therefore undertake a focused review of the role that attorneys for minor children play in dissolution and custody actions to determine whether the roles that they serve are “closely associated with the judicial process.” Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S. Ct. 496, 88 L. Ed. 2d 507 (1985).

B

With the foregoing principles in mind, we now turn to the first question presented under the facts and circumstances of this case; that is, whether attorneys appointed pursuant to § 46b-54 are entitled to immunity. In dissolution actions, § 46b-54 (a) and (b) permit a court to appoint an attorney for a minor child. The underlying purpose of the appointment is to serve the best interest of the child. See General Statutes § 46b-54 (a). The appointment of counsel, therefore, lies firmly within the trial court’s discretion while resting on the best interest of the child. See General Statutes § 46b-54 (c); see also Salvio v. Salvio, 186 Conn. 311, 325 n.12, 441 A.2d 190 (1982); Ridgeway v. Ridgeway, 180 Conn. 533, 540, 429 A.2d 801 (1980). The appointment ensures “independent representation of the child’s interests, and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation.” Schult v. Schult, 241 Conn. 767, 778, 699 A.2d 134 (1997). Despite the appointment, the court retains broad discretion in determining what is in the child’s best interest. Id., 777.

Typically, an attorney representing a minor “is just that, an attorney, arguing on behalf of his or her client . . . .” Ireland v. Ireland, 246 Conn. 413, 438, 717 A.2d 676 (1998); see also Newman v. Newman, 235 Conn. 82, 96, 663 A.2d 980 (1995). The appointment of counsel under § 46b-54, however, also implicates issues concerning the child’s best interest because the attorney is appointed by the court and that appointment can be terminated at the court’s discretion. That results in the creation of overlapping roles for the court-appointed attorney: (1) acting as the child’s counsel and (2) acting to support the best interest of the child, similar to guardians ad litem. The hybrid nature of the attorney’s role in those situations, therefore, requires that liability for improper conduct should be measured by a standard different from that applicable to traditional “counsel” for a party. A proper standard must strike a balance between protecting minors from malpractice and other injuries resulting from improper representation, and protecting the attorney against attacks concerning the attorney’s proper exercise of discretion.

We now address the specific question presented, that is, whether attorneys appointed pursuant to § 46b-54 are entitled to immunity protection. Our Supreme Court’s opinion in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975), is instructive in determining this issue. In Spring, our Supreme Court considered whether an appointed public defender was immune from suit on the basis of judicial immunity. Id., 564. The defendant in that case argued that judicial immunity should be extended to public defenders assigned to represent indigent clients on the ground “that a public defender is appointed by the judiciary to a judicial office and that in performing his function he is, as is a state’s attorney or prosecutor, in the performance of an integral part of the judicial process.” (Internal quotation marks omitted.) Id., 566. The court considered the public policy reasons surrounding the extension of the doctrine to prosecutors “for acts done in [their] official capacity on grounds that [their] office is vested with a vast quantum of discretion which is necessary for the vindication of the public interest.” (Internal quotation marks omitted.) Id., 565. The court concluded that the prosecutor, unlike the public defender, is an officer of the state “under a duty to see that impartial justice is done to the accused as well as to the state . . . .” (Citations omitted; emphasis added.) Id., 567. By comparison, the court noted that the function of the public defender is to represent his client, not the state, and to provide the client with independent representation. For that reason alone, the court held that public defenders, for judicial immunity purposes, functioned like privately retained attorneys. The court ultimately declined to extend immunity to public defenders on the theory of judicial immunity.

Guided by the Spring court’s rationale for denying judicial immunity to public defenders, we determine that public defenders serve a different function, for purposes of immunity, from that of attorneys for minor children appointed pursuant to § 46b-54. Unlike public defenders, an attorney for minor children serves at the discretion of the court, not the client. The appointed attorney for minor children has substantially less independence in representing his minor client than does a public defender. See Schult v. Schult, supra, 241 Conn. 780 (court may preclude attorney from advancing argument that conflicts with best interest of child as represented by guardians ad litem.) That is, an attorney appointed pursuant to § 46b-54 functions in a manner vastly different from that of a privately retained attorney or public defender. We agree with the views on that issue expressed by other courts that have stated that “[w]hen a statute gives a court the power to appoint an attorney for children in [dissolution or] custody disputes, that advocate must represent the children’s interests alone. In so doing, the attorney is not to take a passive role but should present all evidence available concerning the child’s best interests. The attorney is not simply to parrot the child’s expressed wishes. . . . Thus, this obligation imposes a higher degree of objectivity on a child’s attorney than that for an attorney representing an adult.” (Citation omitted; emphasis added.) In re Marriage of Barnthouse, 765 P.2d 610, 612 (Colo. App. 1988), cert. denied, 490 U.S. 1021, 109 S. Ct. 1747, 104 L. Ed. 2d 184 (1989).

Public policy reasons have been asserted to support the idea that attorneys representing minor children must exercise good faith in reaching an independent position on the child’s behalf. See Schult v. Schult, supra, 241 Conn. 780; Marquez v. Presbyterian Hospital, 159 Misc. 2d 617, 622-24, 608 N.Y.S.2d 1012 (1994). The required independence results from the fact that young children are incapable of intellectually expressing their views. For that judgment to be truly independent, the attorney must not be threatened by the possibility that differences of opinion with the child’s parents may give rise to tort litigation. The threat of a lawsuit by the parents may serve to intimidate and to discourage the attorney from taking appropriately forceful positions on behalf of the child, but adverse to the interests of either, or both, of the child’s parents. For those reasons, we consider attorneys appointed under § 46b-54 to function within the judicial process in a manner analogous to that of a prosecutor for purposes of immunity.

The plaintiffs argue that the public policy reasons for extending immunity should not apply to attorneys for minor children because they merely are “advocates.” Designating an attorney appointed under § 46b-54 as an “advocate” is an oversimplification and does not accurately describe the variety of the functions performed. Those attorneys serve as counselors, advisers, negotiators, conciliators and investigators. More than advocates, those attorneys also must attend to the special emotional needs of their young clients. See Bluntt v. O’Connor, 291 App. Div. 2d 106, 117, 737 N.Y.S.2d 471 (attorney appointed to represent child in custody matter could not act solely as advocate of child client because child was younger than three years old), leave to appeal denied, 98 N.Y.2d 605, 773 N.E.2d 1017 (2002); Matter of Scott L. v. Bruce N., 134 Misc. 2d 240, 243, 509 N.Y.S.2d 971 (1986) (functions of attorney, guardian may overlap in representation of very young children); Marquez v. Presbyterian Hospital, supra, 159 Misc. 2d 624. They perform those functions to ascertain their client’s true desires and interests not only for the benefit of the child, but also for the benefit of the court. The presence of a court-appointed attorney not only provides a reliable and unbiased source of information, but also helps to ensure that the best interest of the child takes priority over the wishes of the child.

Without the appointment of independent counsel for minor children, the court may be unaware of important interests of children in the course of proceedings that often are contentious. One commentator has noted that the attorney for the minor child assists the court in ascertaining the child’s true interests because (1) the child often feels more comfortable talking with the attorney than with others because the interview can take place in a familiar setting rather than in a courthouse, (2) the attorney acts as an independent fact finder and can assist the court in determining relevant evidence free from the parents’ bitterness and (3) the child’s attorney has the opportunity to interview the child’s parents before they have been “coached” by their attorneys to determine the true demeanor of the parents. See K. Landsman, “Lawyering for the Child: Principles of Representation in Custody and Visitation Disputes Arising from Divorce,” 87 Yale L. J. 1126, 1136 n.47 (1978).

In reality, the distinction between a guardian ad litem, appointed under § 45a-132, and an attorney appointed under § 46b-54, is blurred. Often, appointed attorneys for the minor child will speak with social workers, counsel for the parents and teachers, as well as family and friends, in determining the child’s true interests and wishes. Due to the nature of the events, sometimes the child may not honestly represent his wishes to the attorney out of fear of harming either parent. Id., 1147. In such instances, the attorney, like a guardian ad litem, must determine what is in the child’s interest. That is, the attorney must exercise judgment to identify the child’s interests due to the child’s limitations in expressing his or her views.

Having considered those factors, we conclude that an attorney appointed under § 46b-54 has a hybrid role of advocate (attorney) and proponent (guardian) of the child’s interests. See Bradt v. White, 190 Misc. 2d 526, 532, 740 N.Y.S.2d 777 (2002). The balancing of those competing roles in a particular case will depend on the age and maturity of the child. Id.

The threat of civil liability would seriously impair the ability of a court-appointed attorney to represent the child client. As a result, the ability of the court to perform its judicial duties also would be impaired. Because those appointed attorneys exercise discretion and make critical judgments on behalf of their clients and the court, they must be protected by judicial immunity from needless collateral litigation that would undermine their good faith efforts to represent the interests of children, including the zealous pursuit of positions adverse to those of the parents. Failing to extend immunity would be contrary to the strong public policy requiring the appointed attorney to exercise good faith in reaching an “independent” position on the child’s behalf.

c

Although we have concluded that attorneys appointed by the court pursuant to § 46b-54, are entitled to some type of judicial immunity, we must define the contours of that immunity. “Absolute immunity ... is strong medicine . . . .” (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 631, 749 A.2d 630 (2000). The category of persons to whom absolute judicial immunity extends is limited. Id. “The protection extends only to those who are intimately involved in the judicial process, including judges, prosecutors and judges’ law clerks. Absolute judicial immunity, however, does not extend to every officer of the judicial system. . . . Moreover, it is important to note that even judges do not enjoy absolute immunity for administrative as opposed to judicial actions. . . . [Again] [t]he determination is made using afunctional approach.” (Citations omitted; internal quotation marks omitted.) Id. The functional approach “assumes that [i]mmunity flows not from rank or title of location within the Government . . . but from the nature of the responsibilities of the individual official.” (Internal quotation marks omitted.) Id., 631 n.4.

Qualified immunity shields government officials performing discretionary functions “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. ” Harlow v. Fitzgerald, supra, 457 U.S. 818. Qualified immunity typically “turns on the objective legal reasonableness of the action . . . assessed in light of the legal rules that were clearly established at the time it was taken . . . .” (Citations omitted; internal quotation marks omitted.) Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). That type of immunity involves immunity from suit and is intended to permit “courts expeditiously to weed out suits which fall the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits.” Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991).

On the basis of our thorough review of the functions of those appointed attorneys, we conclude that qualified rather than absolute immunity should apply. Appointed attorneys are immune from suit with respect to actions taken in furthering the representation of the minor child unless such actions are done with malice, wantonness or an intent to injure. That exception to the qualified quasi-judicial immunity afforded to court-appointed attorneys applies only to actions directed at the minor child and not at his or her parents.

Our Supreme Court has defined malice as acting with an improper or unjustifiable motive. See Haxhi v. Moss, 25 Conn. App. 16, 19, 591 A.2d 1275 (1991). Additionally, Black’s Law Dictionary defines malice as the “intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent.” Black’s Law Dictionary (6th Ed. 1990). We therefore conclude that, absent a claim that the appointed attorney acted with malice, wantonness or an intent to injure the child, attorneys appointed pursuant to § 46b-54 are immune from suit for their actions taken within the scope of representing a minor child.

In the present case, we have thoroughly reviewed the record. We have found no allegations that would support a conclusion that the defendant acted with malice, wantonness or an intent to injure during her representation of Matthew Carrubba. Accordingly, we conclude that the corut properly dismissed the plaintiffs’ claims.

D

Having decided that attorneys appointed to represent children under § 46b-54 are protected by qualified quasi-judicial immunity, we now proceed to address the proper procedural vehicle to raise a claim of that type of immunity.

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . Furthermore, whether subject matter jurisdiction exists is a question of law, and our review of the court’s resolution of that question is plenary.” (Citation omitted; internal quotation marks omitted.) Berlin Batting Cages, Inc. v. Planning & Zoning Commission, 76 Conn. App. 199, 203-204, 821 A.2d 269 (2003). It is well established that the defense of sovereign immunity implicates subject matter jurisdiction and therefore is properly raised by a motion to dismiss. See Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). Although there is no definitive appellate authority concerning the issue of whether judicial immunity, as compared to sovereign immunity, implicates a court’s subject matter jurisdiction, it would appear to this court that qualified quasi-judicial immunity, like governmental immunity, should be raised by way of a special defense. See Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 24, 664 A.2d 719 (1995).

In the present case, the defendant raised the immunity defense by filing a motion to dismiss. Ordinarily, such a motion would be improper because, as we have stated, qualified quasi-judicial immunity does not implicate the court’s subject matter jurisdiction. The plaintiffs, however, chose to waive any claim of a procedural error. In their brief, the plaintiffs stated: “The trial court dismissed the first count of the plaintiffs’ complaint, holding that ‘[the defendant’s] actions in that role should be protected from tort liability.’ The issue of judicial immunity, however, does not implicate the court’s jurisdiction. The court treated the defendant’s motion to dismiss as a motion to strike or a motion for summary judgment. In doing so, the plaintiffs believe the court [acted improperly]. For the sake of judicial economy, however, the plaintiffs ask the Appellate Court to address the issue of whether attorneys for minor children are entitled to judicial immunity.” (Emphasis added.)

Both this court and our Supreme Court have waived technical procedural irregularities in the past. For example, in Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 483-84, 815 A.2d 1188 (2003), the defendant filed a motion to dismiss the plaintiffs complaint on the ground that the plaintiff had no standing under the Connecticut Environmental Protection Act. Our Supreme Court held that the trial court improperly had determined that the plaintiff lacked standing. Id., 497. The court, however, stated that “we also conclude that the factual allegations of the complaint were insufficient to support the plaintiffs claims for relief .... Accordingly, those claims for relief properly were subject to a motion to strike.” Id. Our Supreme Court concluded that although the court improperly had granted the motion to dismiss, with respect to certain of the plaintiffs claims, that was harmless error because those claims were subject to a motion to strike. Id., 501-502.

In Sullivan v. State, 189 Conn. 550, 457 A.2d 304 (1983), both the plaintiff’s decedent and the defendant worked at the state department of transportation. The plaintiff attempted to bring an action pursuant to the exception in the Workers’ Compensation Act that allows for additional recovery in cases of negligence in the operation of a motor vehicle. Id., 551. The defendant raised the special defense of immunity pursuant to § 4-165. Id. The trial court granted the defendant’s motion to dismiss on the basis of that immunity. Id., 552. Our Supreme Court stated: “No objection has been raised to the procedure of using a motion to dismiss rather than a motion for summary judgment to obtain a pretrial adjudication of the merits of the special defense of immunity from liability by virtue of General Statutes § 4-165 raised by the defendant. See Practice Book §§ 143 [now § 10-31], 384 [now § 17-49]. We have decided to consider the issues as the parties have presented them to us on their merits.” (Emphasis added.) Sullivan v. State, supra, 552 n.4; see also Doe v. Board of Education, 76 Conn. App. 296, 299 n.6, 819 A.2d 289 (2003).

In the present case, the plaintiffs waived any claim of procedural error with respect to the defendant’s motion to dismiss. We conclude, however, that ordinarily the proper procedure for utilizing the special defense of qualified quasi-judicial immunity will be by means of either a motion to strike or a motion for summary judgment.

II

The plaintiffs’ final claim is that the court improperly granted the defendant’s motion to dismiss when it determined that Paul Carrubba, as next friend of Matthew Carrubba, lacked standing to bring a legal malpractice claim against the defendant. We disagree.

The following facts are necessary to the proper resolution of the plaintiffs’ claim. Paul Carrubba brought count two of the complaint on behalf of his son, Matthew Carrubba. The count alleged that during the custody and dissolution action, Carrubba v. Carrubba, supra, Superior Court, Docket No. 541518, the defendant deviated from the standard of care required by attorneys who represent minor children. In its memorandum of decision, the court concluded that the plaintiff father did not have standing because (1) his interests were adverse to his child’s interests and (2) he failed to demonstrate prejudice to his own case.

At the outset, we reiterate the applicable standard of review. “In ruling upon ... a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . Furthermore, whether subject matter jurisdiction exists is a question of law, and our review of the court’s resolution of that question is plenary.” (Citation omitted; internal quotation marks omitted.) Berlin Batting Cages v. Planning & Zoning Commission, supra, 76 Conn. App. 203-204.

“The issue of standing implicates the court’s subject matter jurisdiction.” (Internal quotation marks omitted.) Ragin v. Lee, 78 Conn. App. 848, 859, 829 A.2d 93 (2003). “In order for a party to have standing to invoke the jurisdiction of the court, that party must be aggrieved. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action .... Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision.” (Internal quotation marks omitted.) In re Shawn S., 262 Conn. 155, 164-65, 810 A.2d 799 (2002).

We have stated that the only real test to determine whether a person is a proper or improper person to act as a guardian or next friend for a minor is whether that person’s interests are adverse to those of the child. Caron v. Adams, 33 Conn. App. 673, 682, 638 A.2d 1073 (1994). We also have stated that “[i]n child custody proceedings, parents lack the necessary professional and emotional judgment to further the best interests of their children. Neither parent could be relied on to communicate to the court the children’s interests where those interests differed from his or her own. ... A parent’s judgment is or may be clouded with emotion and prejudice due to the estrangement of husband and wife. ... A discretionary statutory appointment of counsel for the child within the auspices of a custody-visitation proceeding does not interfere with a parent’s right to control her child’s welfare. On the contrary, the appointment of counsel to represent the child’s best interests is consistent with the efforts of the parent in promoting the welfare of the child.” (Citations omitted; emphasis added; internal quotation marks omitted.) Taff v. Bettcher, 35 Conn. App. 421, 427-28, 646 A.2d 875 (1994).

In its memorandum of decision, the court relied on Busby v. Barbarula, Superior Court, judicial district of Stamford-Norwalk, Docket No. 167925 (June 29, 1999) (24 Conn. L. Rptr. 689). In Busby, the minor plaintiffs, through their father as next friend, filed a legal malpractice action against their court-appointed attorney. The Busby court determined that the interests of the father were adverse to those of the minor plaintiffs; therefore, he was not a proper next friend and, accordingly, lacked standing to bring the action. The trial court in the present action implicitly adopted that reasoning when it determined that Paul Carrubba lacked standing to bring a legal malpractice claim on behalf of Matthew Carrubba against the defendant because his interests were adverse to those of his minor child, Matthew Carrubba.

We agree with the trial court’s conclusion that Paul Carrubba’s interests were adverse to those of Matthew Carrubba and, therefore, that he was not the proper next friend. The defendant was responsible for undertaking actions that represented the best interest of the minor, Matthew Carrubba, and it was precisely those actions to which Paul Carrubba had objected. If parents could penetrate the shield of immunity merely by bringing suit in the child’s name, that tactic would undermine the public policy goals supporting the immunity that we extended in part II. Although the complaint was couched in the traditional language of a legal malpractice case, the substance of the claim was not that the defendant violated the standard of care of lawyers representing a client, but that the defendant improperly exercised her judgment in determining the wishes of Matthew Carrubba due to his infancy.

Of particular importance to our reasoning is the fact that on November 2,1998, during the dissolution action, Carrubba v. Carrubba, supra, Superior Court, Docket No. 541518, Paul Carrubba filed a postjudgment motion to disqualify the defendant, which ultimately was denied, based on claims substantially similar to those raised in the present action. For example, in both the motion and the complaint, Paul Carrubba alleged that the defendant had acted as a “de facto” guardian ad litem for Matthew Carrubba and that the defendant “unleashed a barrage of insults” at him. The record also indicates that issues surrounding Matthew Carrubba’s custody remain highly contested between the parties and a motion concerning Matthew Carrubba’s custody was filed as recently as March 27, 2000, approximately seven months prior to the inception of the present action. The substance of those facts indicates that although Paul Carrubba, as next friend, brought the malpractice claim on behalf of his minor son, Paul Car-rubba actually was bringing the claim on his own behalf to relitigate the same issues raised in his previously denied motion to disqualify the defendant.

Our case law also is clear- that a person cannot gain standing by asserting the due process rights possessed by another individual. See Shaskan v. Waltham Industries Corp., 168 Conn. 43, 49, 357 A.2d 472 (1975). Thus, once the court finds it appropriate to appoint counsel for a minor child under § 46b-54, that representation is the child’s entitlement, not the parent’s. Accordingly, we have stated that a parent does not have standing to make claims against a court-appointed attorney who represented his or her minor children during divorce proceedings. See Taff v. Bettcher, supra, 35 Conn. App. 425-28; McGinty v. McGinty, 66 Conn. App. 35, 38-39, 783 A.2d 1170 (2001) (holding that parent lacked standing to sue where child’s appointed counsel failed to participate in hearing on motion to modify visitation). This also is not a case in which the parent can show aggrievement resulting from his legally protected interest having been adversely affected. For example, we have recognized that the inadequate representation of a child could at least colorably harm the respondent as a parent because it is in that capacity that the best interest of the child must be determined, and the respondent had a stake in the outcome of her motion because whether the court granted it could affect the course of the trial and, ultimately, whether her rights as a parent would be terminated. In re Shaquanna M., 61 Conn. App. 592, 599, 767 A.2d 155 (2001).

The court appointed the defendant to represent Matthew Carrubba’s interests. Because Paul Carrubba was asserting a right that did not belong to him, and was effectively bringing a claim of malpractice on his behalf, he did not have standing to make claims against a court-appointed attorney who represented his minor child during divorce proceedings. The court properly determined that Paul Carrubba lacked standing and properly granted the defendant’s motion to dismiss.

The judgment is affirmed.

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

HENNESSY, J.,

dissenting. I respectfully dissent from the conclusion of the majority that those appointed pursuant to General Statutes § 46b-54 as attorneys for minor children are entitled under the common law to qualified quasi-judicial immunity for actions taken during their representation in such matters. I believe that it is the legislature and not the judiciary that should, if it chooses, exercise its authority to extend immunity to court-appointed attorneys for minors. It is clear that neither the statutes of this state, nor the decisions of this court or our Supreme Court, extend the protections of immunity to court-appointed attorneys for minor children under § 46b-54. Consequently, I perceive the conclusion of the majority to be synonymous with legislating and “[m]ore importantly . . . [as] exceeding our constitutional limitations by infringing on the prerogative of the legislature to set public policy through its statutory enactments.” State v. Reynolds, 264 Conn. 1, 79, 836 A.2d 224 (2003).

The majority begins its analysis with the proposition that the common law recognized a judicial immunity that protected judges from suit when they resolved disputes between parties or adjudicated private rights. Common-law immunity has, in recent times, been extended to those whose adjudicatory functions or other involvement with the judicial process was deemed to warrant protection from harassment, intimidation or other interference with impartial decision making. The analysis continues that courts have held, in accordance with the common law, that such immunity includes not only judges, but prosecutors as well on the basis of their exercise of discretionary judgment with regard to the evidence presented to them. “It is the functional comparability of their judgments to those of the judge that has resulted in . . . prosecutors being referred to as ‘quasi-judicial’ officers, and their immunities being termed ‘quasi-judicial’ as well.” Imbler v. Pachtman, 424 U.S. 409, 423 n.20, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976). It was the need to protect the judge like decision-making function of those who ar e an integral part of the judicial system, acting in the public interest, that resulted in the granting of immunity to prosecutors. See Spring v. Constantino, 168 Conn. 563, 565, 362 A.2d 871 (1975).

In contrast, the lack of a judge like decision-making function resulted in our Supreme Court denying the protections of judicial immunity to public defenders. Id., 566-67. It is for that same reason that judicial immunity should be denied to attorneys appointed to represent minors pursuant to § 46b-54. It has been argued that public defenders are an integral part of the judicial process and that “there is a public interest aspect to the public defender system in that it functions to fulfill the constitutional requirement that indigents be ensured competent representation . . . .” (Citations omitted.) Id. Our Supreme Court, however, denied immunity to public defenders, finding that their independent representation of the client and the decisions and judgments emanating from that representation do not present the functional comparability to a judge required to grant public defenders immunity.

The majority concludes that public defenders, for purposes of immunity, serve a function different from that of attorneys for minor children appointed pursuant to § 46b-54, and, therefore, that the Supreme Court’s reasons for denying immunity to public defenders are not applicable. The majority further concludes that attorneys for children, appointed by the court, serve at the court’s discretion and have substantially less independence in representing their clients than public defenders do in representing their clients. See Schult v. Schult, 241 Conn. 767, 780-81, 699 A.2d 134 (1997). I believe that the role of the attorney for the child, despite the fetters placed on her or him, is more consistent with that of the public defender than that of the prosecutor. The restrictions on the attorney for the child set forth by the majority do not undermine the core responsibility of that office. The role of the attorney for a minor “is limited to the type of representation enjoyed by unimpaired adults. In other words, the attorney for the child is just that, an attorney, arguing on behalf of his or her client, based on the evidence in the case and the applicable law.” (Emphasis in original.) Ireland v. Ireland, 246 Conn. 413, 438, 717 A.2d 676 (1998). “The purpose of appointing counsel for a minor child . . . is to ensure independent representation of the child’s interests . . . .” (Internal quotation marks omitted.) Id., 436. That independent representation and the attorney’s strategic decisions and judgments made incident to that representation do not present the functional comparability to those of the judge. Both public defender and attorney for the child fill the role of adversary, and “his [or her] function does not differ from that of aprivately retained attorney. ” Spring v. Constantino, supra, 168 Conn. 567.

The immunity proposed by the majority for attorneys appointed to represent minors pursuant to § 45b-54 should be addressed to a lawmaking body. “It is not our office to legislate.” Colchester Savings Bank v. Brown, 75 Conn. 69, 71, 52 A. 316 (1902).

I would reverse the judgment of dismissal as to count one of the complaint and remand the matter for further proceedings.

       Paul Carrubba sought to disqualify the defendant because (1) Matthew Carrubba’s therapist had indicated to Paul Carrubba that it may not have been in the child’s best interest for the defendant to represent him, (2) the defendant had verbally insulted Paul Carrubba, (3) the defendant had a conflict of interest because the law firm of Berman, Bourns and Currie, the same firm that represented Paul Carrubba’s former wife, Andrea Carrubba, represented the defendant as a client, (4) the defendant had acted as a de facto guardian ad litem as opposed to an attorney, (5) the defendant had recommended that Paul Carrubba seek counseling prior to Matthew Carrubba’s return, (6) the defendant had misrepresented that Matthew Carrubba was doing well at home with Andrea Carrubba, (7) the defendant improperly stated that the Institute of Living, a mental health facility in Hartford, had requested her to terminate Paul Carrubba’s parental rights and (8) the defendant was biased against Paul Carrubba.

       The plaintiffs alleged that the defendant had deviated from the standard of care for attorneys representing minor children by (1) failing to advocate Matthew Carrubba’s position and, instead, acting as a de facto guardian ad litem, and (2) abandoning Matthew Carrubba as a client. Consequently, the plaintiffs alleged that Matthew Carrubba was denied his right to legal representation, suffered the effects of the depletion of his father’s assets and sustained emotional distress. The plaintiffs also alleged that his educational progress was hindered.

       General Statutes § 46b-54 provides: “(a) The court may appoint counsel for any minor child or children of either or both parties at any time after the return day of a complaint under section 46b-45, if the court deems it to be in the best interests of the child or children. The court may appoint counsel on its own motion, or at the request of either of the parties or of the legal guardian of any child or at the request of any child who is of sufficient age and capable of making an intelligent request.
      “(b) Counsel for the child or children may also be appointed on the motion of the court or on the request of any person enumerated in subsection (a) of this section in any case before the court when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy, provided the court may make any order regarding a matter in controversy prior to the appointment of counsel where it finds immediate action necessary in the best interests of any child.
      “(c) Counsel for the child or children shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child.”

       Despite the label of “advocate” affixed to attorneys representing children in dissolution actions, some courts have suggested that such advocacy roles in dissolution actions deserve immunity irrespective of the label of the role because the attorney functions on behalf of the court. See, e.g., Collins v. Tabet, 111 N.M. 391, 806 P.2d 40 (1991). In Collins, the court analyzed the function of the attorney under the specific circumstances of that case and stated that “[w]here the guardian ad litem is acting as an advocate for his client’s position — representing the pecuniary interests of the child instead of looking into the fairness of the settlement (for the child) [of a medical malpractice action] on behalf of the court — the basic reason for conferring quasi-judicial immunity on the guardian does not exist. In that situation, he or she functions in the same way as does any other attorney for a client— advancing the interests of the client, not discharging (or assisting in the discharge of) the duties of the court.” (Emphasis in original.) Id., 399.

       In Ridgeway v. Ridgeway, supra, 180 Conn. 539, our Supreme Court alluded to the similar functions of those two types of appointees. There, our Supreme Court considered whether the trial court’s failure to appoint a guardian ad litem constituted an abuse of discretion. Id., 539-40. The Supreme Court determined that the trial court had not abused its discretion because appointment of a guardian ad litem, like the appointment of an attorney under General Statutes § 46b-54, is discretionary. Ridgeway v. Ridgeway, supra, 539-40. If the trial court did not appoint counsel under § 46b-54, then it stood to reason that the trial court must have concluded, in its discretion, that the child’s best interests were being represented. On the basis of that similarity, we determine that the public policy concerns surrounding the extension of qualified quasi-judicial immunity to guardians ad litem, as expressed by other jurisdictions, also is applicable to attorneys appointed to represent minor children under § 46b-54.

       The defendant in Spring, a public defender, also sought immunity on the basis of common-law sovereign immunity and statutory sovereign immunity under General Statutes § 4-165. Spring v. Constantino, supra, 168 Conn. 564-65.

       Although our Supreme Court did not extend immunity to public defenders on any of the theories advanced by the defendant in Spring v. Constantino, supra, 168 Conn. 563, in 1976, the legislature, through the enactment of Public Acts 1976, No. 76-371, § 2, added public defenders to the definition of “state officers and employees” for purposes of statutory sovereign immunity pursuant to General Statutes § 4-165.

       We also note that principles of statutory sovereign immunity lend support to the extension of immunity to court-appointed attorneys. It is the settled law of Connecticut that the state is immune from suit unless it consents to be sued. Lacasse v. Burns, 214 Conn. 464, 468, 572 A.2d 357 (1990). General Statutes § 4-165 provides in relevant part: “No state officer or employee shall be personally liable for damage or irquiy, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. . . . For the purposes of this section ‘scope of employment’ shall include, but not be limited to, representation by an attorney . . . appointed by the court as a special assistant public defender of an indigent accused . . . .” (Emphasis added.) Because the state can act only through its officers and agents, a suit against “a state officer [or employee] is in effect one against the sovereign state.” (Internal quotation marks omitted.) White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990).
      Connecticut has a clear public policy interest in protecting state officers and employees, as codified within § 4-165. “The manifest legislative intent expressed by chapter 53 [of which § 4-165 is a part] is that an employee is immune where and because the state may be sued, and that the state may be sued in instances where a private person would be liable.” Spring v. Constantino, supra, 168 Conn. 571. That is, the manifest policy interest is the protection of state employees irom liability for negligent acts that occur in the course of their appointment or employment. See Hunte v. Blumenthal, 238 Conn. 146, 153, 680 A.2d 1231 (1996).
      General Statutes § 4-141 provides in relevant part: “ ‘[Sjtate officers and employees’ includes every person elected or appointed to or employed in any office, position or post in the state government, whatever such person’s title, classification or function and whether such person serves with or without remuneration or compensation .... In addition to the foregoing, ‘state officers and employees’ includes . . . attorneys appointed by the court as special assistant public defenders . . . .” Thus, § 4-141 on its face makes § 4-165 applicable to attorneys appointed by the court, but limits it to “attorneys appointed as victim compensation commissioners, attorneys appointed by the Public Defenders Services Commission as public defenders, assistant public defenders or deputy assistant public defenders, and attorneys appointed by the court as special assistant public defenders . . . .” General Statutes § 4-141; see also Lemoine v. McCann, 40 Conn. App. 460, 463, 673 A.2d 115, cert. denied, 237 Conn. 904, 674 A.2d 1330 (1996). In the present case, however, we are concerned with court-appointed attorneys forminor children appointed pursuant to General Statutes § 46b-54. Although such attorneys are not specifically listed within § 4-141, we believe that the public policy surrounding the enactment of §§ 4-141 and 4-165 supports the inclusion of attorneys appointed under § 46b-54. See Hunte v. Blumenthal, supra, 238 Conn. 146 (state licensed foster parents deemed state employees under § 4-141), and Public Acts 1976, No. 76-371, § 2 (in which legislature expanded definition of “state employees and officers” to include public defenders in response to Spring v. Constantino, supra, 168 Conn. 563).
      In further support of extending the definition of “state employees and officers” under § 4-141 to include attorneys appointed under § 46b-54, in Connecticut, court-appointed personnel are considered “arms of the court” and cannot be sued because they are deemed to be acting according to the will of that court. See Summerbrook West, L.C. v. Foston, 56 Conn. App. 339, 344, 742 A.2d 831 (2000) (receiver of rents appointed by court and deemed arm of court), citing Links v. Connecticut River Banking Co., 66 Conn. 277, 284, 33 A. 1003 (1895). Because § 46b-54 requires the court to appoint the attorney and the attorney has a duty to represent the child’s wishes to the court on the court’s behalf, the attorney should be considered an arm of the court. See Delcourt v. Silverman, 919 S.W.2d 777, 783-86 (Tex. App. 1996) (statute for appointment of guardian ad litem to advocate for minor’s interests provides for absolute immunity for actions pursuant to and within scope of appointment, provided appointment contemplates guardian ad litem acts as extension of court, but guardian ad litem appointed under state rule of civil procedure not entitled to absolute immunity because guardian ad litem appointed under rule of civil procedure does not act as arm of court or perform functions court normally performs), cert. denied, 520 U.S. 1213, 117 S. Ct. 1698, 137 L. Ed. 2d 824 (1997).

       We are aware that some trial courts have concluded that absolute judicial immunity can be raised properly in a motion to dismiss. See Janicki v. Subbloie, Superior Court, judicial district of New Haven at Meriden, Docket No. 277848 (April 3, 2002) (31 Conn. L. Rptr. 626) (Skolnick, J.). In the present case, however, we have determined that court-appointed attorneys are protected by qualified quasi-judicial immunity.

       General Statutes § 4-165 provides in relevant part that “[n]o state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. . . .”

       “It has long been the established practice that a minor may bring a civil action only though a guardian or next friend.” Caron v. Adams, 33 Conn. App. 673, 679, 638 A.2d 1073 (1994).

       The court stated: “[The father] is not a proper ‘next friend’ of the minor plaintiffs, his children, for purposes of bringing this malpractice action against the defendant, the court-appointed counsel in the pending divorce action. Because [the father’s] interests are adverse to those of the minor plaintiffs, he cannot be relied upon to communicate his children’s interests to the court; his judgment may be ‘clouded with emotion and prejudice,’ due to his pending divorce. Therefore, [the father] does not have standing to bring this action, thus, the court lacks subject matter jurisdiction. Accordingly, the court, sua sponte, dismisses this action.” Busby v. Barbarula, supra, 24 Conn. L. Rptr. 691.

       The legislature, through the enactment of Public Acts 1976, No. 76-371, § 2, added public defenders to the definition of “state officers and employees” for purposes of statutory sovereign immunity pursuant to General Statutes § 4-165.


source: Caselaw Access Project

author: MCDONALD, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. THADDEUS SINGLETON
    (AC 22906)
    Flynn, Mihalakos and McDonald, Js.
    Argued May 7, 2003 —
    officially released February 3, 2004

      Kirstin B. Coffin, special public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, David Zagaja, assistant state’s attorney, and Prolog K. Das, former special deputy assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Thaddeus Singleton, appeals from the judgments of the trial court, rendered after a hearing, finding him in violation of probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that the state did not meet its burden of establishing the violation of probation. We agree.

General Statutes § 53a-32 (b) requires that a violation of probation be “established by the introduction of reliable and probative evidence.” In State v. Davis, 229 Conn. 285, 290-91, 641 A.2d 370 (1994), our Supreme Court held that a fair preponderance of the evidence is the standard of proof required for a violation rather than that of “reasonable satisfaction.” Id., 295. In so doing, our Supreme Court reversed this court’s judgment in State v. Davis, 29 Conn. App. 801, 618 A.2d 557 (1993). The Supreme Court adopted the fair preponderance standard because, among other reasons, “both society and the probationer share an interest in a successful rehabilitative process, the state, as well as the probationer, has an interest in a reliable determination of whether probation has been violated.” (Emphasis in original.) State v. Davis, 229 Conn. 296-97. The Davis court also quoted from Gagnon v. Scarpelli, 411 U.S. 778, 785, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), that “[b]oth the probationer . . . and the State have interests in the accurate finding of fact” in probation revocation proceedings. (Emphasis added; internal quotation marks omitted.) State v. Davis, supra, 229 Conn. 297.

The issue in this case is whether there was sufficient reliable evidence for the court to conclude that the defendant possessed crack cocaine and thereby violated his probation. We examine the cumulative effect of the evidence presented at the hearing construed in the light most favorable to sustaining the court’s finding. See State v. Niemeyer, 258 Conn. 510, 517, 782 A.2d 658 (2001).

There was evidence before the court that in 1998, the defendant was convicted of numerous felonies. On May 12, 1998, the defendant was sentenced on all charges to a total effective term of eight years imprisonment, execution suspended after three years, and three years of probation. The defendant was released from prison on February 19, 2001, at which time he was placed on probation for a period of three years. One condition of the defendant’s probation was that he not violate any criminal law of the state of Connecticut.

At the hearing, Corporal Timothy Mullaney of the Plainville police department testified that during the early morning hours on June 4, 2001, he was on patrol in the area of Camp Street in Plainville when he noticed a vehicle enter the parking lot of a closed factory. Mulla-ney followed the vehicle and observed that there were three individuals in the vehicle and that all of the vehicle’s lights had been shut off. At that time, Mullaney approached the vehicle.

Mullaney then requested that the individual sitting in the front passenger seat roll down the window so that Mullaney could speak with the vehicle’s occupants. When the passenger complied with the request, Mulla-ney detected the odor of marijuana. At that point, Mulla-ney called for additional police units.

When a backup officer arrived, Mullaney had the defendant step out of the vehicle to conduct a patdown. At that time, another officer discovered a clear plastic package containing a substance in the backseat of the vehicle. Mullaney performed a field test on the package’s substance, which indicated a positive result for crack cocaine. The police also found a clear plastic bag on the floor of the front passenger’s seat containing a leafy substance that appeared to be marijuana.

The police also found two cellular telephones in the vehicle. In the search of the vehicle, one of those cellular telephones rang and Mullaney answered. The caller asked Mullaney if he could buy an “8 ball.” Mullaney testified that “8 ball” is a term used to describe a certain quantity of cocaine. The police did not establish who owned the cellular telephones.

The defendant was then placed under arrest and transported to police headquarters. There, Mullaney conducted a body search of the defendant and found a second clear plastic package containing a substance in the cleft of the defendant’s buttocks. Mullaney performed a field test on the contents of the plastic package, which indicated a positive result for crack cocaine.

Mullaney, who had one week’s training in the field investigation of narcotics, testified that the clear plastic bag hidden on the defendant’s person appeared to be a “bindle,” a clear plastic bag utilized to contain crack cocaine. The substance, which Mullaney did not describe, was field tested for crack cocaine, a narcotic drug. That reagent field test was positive for crack cocaine. The field test, as described by Mullaney, consisted of a small plastic tube with caplets of different chemicals, which are broken and shaken together in the tube. The suspected narcotic substance also is to be put into the tube. Depending on the reagent used, Mullaney testified, the suspected narcotic would turn a specific color. Mullaney did not testify as to the identity or reliability of the field test.

Mullaney testified that he never submitted the suspected substance to a laboratory for analysis. No labora-toiy analysis of the substance was presented at the hearing, although the substance in the plastic bags was introduced into evidence. Mullaney also testified that he had received training in utilizing field drug tests, but he gave no evidence as to the nature of his training or its use while performing the field tests.

At the conclusion of the evidence, the state argued that it had established that the defendant illegally had possessed a narcotic and that he had possessed a narcotic with the intent to sell. The defendant challenged the state’s contention that a field test was sufficient evidence to support a finding that a substance was a narcotic.

In its decision, the court stated: “I think it’s more likely than not that the substance seized from the defendant was narcotics, crack cocaine. The field test indicated it, and there was no indication that the field test was not working properly. But there are other circumstantial factors that corroborate the field test results. The defendant was in the presence of two other individuals from whom or from nearby whom drugs were also seized. There was the smell of marijuana that the officer observed when the window began to open. That confirms that these individuals were here for the purpose of drug use or possibly distribution.

“In addition, there was the [cellular] phone call with a person seeking to buy an ‘8 ball,’ which confirms, again, what was going on here involved drugs and, finally, that the location that this particular item was found, in the cleft of the defendant’s buttocks, is highly corroborative of the results of the field test. It’s hard to imagine anything else being concealed there except something that the defendant wanted to hide from law enforcement authorities. So, I believe that, more probably than not, that the defendant was in possession of a controlled substance.” The court then found that the defendant had violated the terms of his probation because he illegally had possessed a controlled substance, crack cocaine, and added that it was not necessary to find that he had an intent to sell the crack cocaine.

Essential to the court’s finding by a fair preponderance of the evidence that the defendant illegally had possessed crack cocaine was the result of the field tests that Mullaney performed on the substance found on the defendant. The basis of the violation of probation was that the defendant illegally had possessed narcotics, a criminal offense, and the illicit nature of the substance was an element of that criminal offense. See General Statutes § 21a-279 (a).

In this case, an unknown substance that appears in the exhibits as small tan crumbs tested positive as crack cocaine in a field narcotics test. Our Supreme Court, in considering General Statutes § 21a-278 (a), which provides for enhanced penalties for dealing in freebase cocaine, referred to “free-base, or crack, cocaine . . . .” State v. Synakorn, 239 Conn. 427, 431, 685 A.2d 1123 (1996).

“[T]he meaning of the base form of cocaine [or crack cocaine] is undisputed in the scientific community. . . . [It is] a substance which when combined with an acid produces a salt. . . . [T]he chemical formula for cocaine base is C17H2iN04; the formula for cocaine hydrochloride — a chemical term for [powder] cocaine — is C17H2iN04HC1. . . . [T]he two forms have different solubility levels, different melting points and different molecular weights. . . . [J]ust about any chemical laboratory would be able to distinguish the difference between cocaine base and cocaine salt or other forms. . . . United States v. Jackson, 968 F.2d 158, 161 (2d Cir.), cert. denied, 506 U.S. 1024, 113 S. Ct. 664, 121 L. Ed. 2d 589 (1992).” (Internal quotation marks omitted.) State v. Sanchez, 75 Conn. App. 223, 234 n.7, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 (2003).

Connecticut’s enhanced penalties provision for the freebase form of cocaine is similar to federal provisions. The federal sentencing guidelines “provide a fairly precise definition of crack: [A] form of cocaine base, usually prepared by processing cocaine hydrochloride [powder cocaine] and sodium bicarbonate, and usually appearing in a lumpy, rock-like form. [U.S. Sentencing Guidelines Manual] § 2D1.1 (c) note D. That definition adequately describes crack by its telltale appearance and by the common method of its manufacture.” United States v. Camales, 91 F.3d 363, 368 (2d Cir. 1996). As the United States Court of Appeals for the Second Circuit has stated: “To be sure, crack cocaine is one form of cocaine base.” Id., 367.

In United States v. Martinez, 144 F.3d 189, 190 (1st Cir. 1998), the United States Court of Appeals for the First Circuit described the proper method to establish whether a substance is in fact crack cocaine. There, the court stated that “once the government laid a proper foundation by introducing a chemical analysis . . . proving that, chemically, the contraband was cocaine base,” a qualified lay opinion that the substance is the crack form of cocaine based on its appearance and texture may be admissible because “[c]hemical analysis cannot distinguish crack from any other form of cocaine base because crack and all other forms of cocaine base are identical at the molecular level.” (Internal quotation marks omitted.) Id.

In this case, there was no evidence as to the identity and reliability of the field test. The only reference to the identity of the field test at the hearing was a statement by the defendant’s counsel during closing argument, which is not evidence. The test was described by counsel as a “narcotic thirteen” field test. In Weaver v. State, 543 So. 2d 443, 444 (Fla. App. 1989), the Florida District Court of Appeal held that a positive heroin field test of unknown reliability was not sufficient to find a violation of probation. Our Supreme Court in Davis noted that Florida utilizes the preponderance of the evidence standard in determining if an individual has violated the terms of his probation. State v. Davis, supra, 229 Conn. 298-99 n.12. As in this case, the field test in Weaver was not identified or shown to be rehable. In this case, as in Weaver, the substance was not identified as a narcotic by smeh, taste or touch.

Furthermore, the literature reveals that field tests are not designed or marketed for qualitative analysis of suspected narcotics.

Matt Johnson, a narcotics investigator who has taught numerous narcotics field test seminars nationwide, has written that a blue presence after applying cobalt to the tested substance, indicating a positive field test reaction for crack cocaine, occurs not only with crack cocaine, but also with several other nonilhcit substances, such as Benadril. M. Johnson, “Narcotic Field Testing,” Law & Order (June, 2003).

The manufacturer of the “Nark Reagent No. 13” presumptive test for crack cocaine states in its catalog: “Presumptive identification is generally recognized within our legal system as a component of probable cause. There is no drug identification system presently in use which completely eliminates the occurrence of false positives and false negatives. A forensic laboratory is required to qualitatively identify an unknown substance.” Sirchie Finger Print Laboratories On-Line Catalog at http://www.gsa-sales.com/sirchie/sir-18-19.htm. In its spring, 1999 newsletter, ODV, Inc., another manufacturer of field tests, also states that “field tests are designed to confirm your probable cause evidence.” See http://www.ODVINC.com.

There was also no evidence as to the nature of Mulla-ney’s training and the use of that training in conducting the field tests in this case. Johnson cautions that officers should be trained to perform the field test exactly as prescribed to avoid being misled by a false positive. M. Johnson, supra, Law & Order. ODV, Inc., counsels in a similar vein in its spring, 1997 newsletter. See http:// www.ODVINC.com.

We reject the position advocated by the state that the officer’s field test in this case was sufficient proof by a preponderance of the evidence that the substance contained illegal narcotics. Although there were facts to support probable cause, we conclude that there was not reliable evidence to support a finding by a fair preponderance of the evidence that the hidden substance was in fact crack cocaine, a narcotic drug. Probable cause has been defined as existing when there are reasonable grounds to believe an offense has been committed. State v. Jeffreys, 78 Conn. App. 659, 663, 828 A.2d 659, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003). The United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 488, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), specifically concluded that constitutional due process mandates a formal revocation hearing that “must be the basis for more than determining probable cause . . . .” See State v. Davis, supra, 29 Conn. App. 815 (Freedman, J., dissenting).

The state cites several cases in support of its position: State v. Synakorn, supra, 239 Conn. 427; State v. Wil liams, 169 Conn. 322, 363 A.2d 72 (1975); and State v. Lee, 53 Conn. App. 690, 734 A.2d 136 (1999).

State v. Synakorn, supra, 239 Conn. 435-36, involved, in part, a prosecution for possession of marijuana. The defendant argued that the state had offered insufficient evidence to prove that the plant like substance he possessed was marijuana. Id., 435. Our Supreme Court concluded that the evidence was sufficient to support a finding that the defendant possessed marijuana in the absence of the plant material being introduced into evidence. Id., 436. In Synakom, the evidence in support of that finding, however, went beyond the police officer’s field test of the substance. The court also had evidence of the police officer’s experience as well as evidence that the plant “appeared to be marijuana.” Id., 430. We recognize that marijuana has a distinctive appearance that could be identified by an experienced police officer. There was no testimony in this case that would suggest that an officer could reliably identify a substance as crack cocaine by its appearance and concealment without a showing that it was chemically cocaine base.

In State v. Williams, supra, 169 Conn. 322, our Supreme Court determined that it was not an abuse of discretion for the trial court to allow a police officer to testify as to the purpose and results of field tests that were performed. Id., 332-33. That case involved an evidentiary ruling and not a question of the sufficiency of the evidence. See id. The court’s evidentiary ruling, moreover, even if improper, “was harmless in view of the subsequent testimony of a toxicologist.” Id., 333.

Finally, in State v. Lee, supra, 53 Conn. App. 694, a field test was performed by the police, but the issue presented to this court was whether there was sufficient indicia of constructive possession to support the defendant’s conviction. We did not address the issue of whether an officer’s field test was reliable evidence to establish that an unknown substance is a narcotic.

The substance that the defendant possessed was readily available for a laboratory analysis to determine whether it in fact contained cocaine, a narcotic. After such testing, the true nature of the unknown substance could have been determined and served as a reliable basis to find, by a fair preponderance of the evidence, that the defendant illegally had possessed narcotics. In the absence of reliable evidence as to the illicit nature of that substance, we must reverse the judgments of the trial court.

The judgments are reversed and the case is remanded with direction render judgments that the defendant was not in violation of the terms of his probation.

In this opinion the other judges concurred.

       MuUaney’s police report, submitted with the application for the violation of probation arrest warrant, which also was not in evidence, referred to the test as a “Nark #13 test.”

       If reliable evidence that the substance was the base form of cocaine was introduced, qualified police testimony could have been admitted into evidence that the substance, by its appearance and texture, was crack cocaine.


author: DUPONT, J.

text:
    CECI BROTHERS, INC. v. FIVE TWENTY-ONE CORPORATION ET AL.
    (AC 23635)
    Foü, Schaller and Dupont, Js.

      Argued September 15, 2003 —
    officially released February 10, 2004

      Leonard A. Fasano, for the appellant (defendant Five Twenty-One Corporation).

      Eric R. Posmantier, with whom, on the brief, was Andrew P. Nemiroff, for the appellee (plaintiff).
   Opinion

DUPONT, J.

The defendant Five Twenty-One Corporation appeals from the judgment of the trial court awarding damages in the amount of $117,214 for breach of contract for maintenance and gardening at a home owned by the defendant. The defendant makes several claims on appeal, specifically that (1) the discharge of the plaintiffs mechanic’s lien, the subject of the only count of the plaintiffs original complaint, was the equivalent of the granting of a motion to dismiss, therefore depriving the court of subject matter jurisdiction over a later amendment to the complaint, (2) the court improperly imposed interest as provided in General Statutes §§ 37-3a and 52-192a, and (3) the plaintiffs April 15, 1996 offer of judgment, made before the amendment to the complaint, at a time when the complaint solely sought to foreclose on a mechanic’s hen, was not valid. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The return date of the plaintiffs complaint was February 13,1996. On or about March 15,1995, the plaintiff and the defendant entered into a written agreement pursuant to which the plaintiff would provide landscaping services for a house in Greenwich owned by the defendant. The plaintiff and the defendant entered into another subsequent agreement on diverse days between May and July, 1995, for the construction of a visual obstruction, a berm, between the house and adjacent property, and the planting of trees as a visual obstruction. At some point, while performing work pursuant to the second agreement, a rock wall surrounding the defendant’s property was knocked down to allow access to the property and was later rebuilt by the plaintiff. Both the first agreement and the second were the subject of the defendant’s counterclaim, which alleged various breaches of contract, numerous torts and negligence of the plaintiff in rebuilding the wall.

After a dispute about the work performed under the landscaping contract, the plaintiff stopped work at the request of the defendant and demanded payment. When the defendant did not pay for the work the plaintiff had done, the plaintiff filed a one count complaint dated January 26,1996, seeking foreclosure of its mechanic’s lien, and filed an offer of judgment on April 15, 1996. On June 24,1996, the plaintiffs requested leave to amend their complaint to add counts of breach of contract and quantum meruit. The defendant objected to the request to amend on June 28, 1996. The defendant applied for a discharge of the mechanic’s lien, which the plaintiff sought to foreclose in the first count of the amended complaint, on July 23,1996. The court denied the application to discharge on July 16, 1997. That ruling of the trial court was reversed by this court; Ceci Bros., Inc. v. Five Twenty-One Corp., 51 Conn. App. 773, 774-75, 724 A.2d 541 (1999); and the case was remanded with direction to the trial court to grant the application to discharge the mechanic’s hen. Id., 782.

On July 9, 1999, the defendant filed a motion to dismiss, claiming a lack of subject matter jurisdiction because the July 29, 1996 granting of the request to amend the plaintiffs complaint to add counts was subsequent to the filing of the defendant’s application for a discharge of the mechanic’s hen on July 23,1996. The motion to dismiss was denied.

An attorney trial referee (referee) ruled on the remaining counts in the amended complaint, issuing his report on April 11,2002. He determined that the plaintiff had proved damages in the amount of $44,248 and that the plaintiff was entitled to interest in accordance with § 37-3a. The referee also found that the plaintiff was neghgent in its reconstruction of the wall on the premises of the defendant’s house and therefore found in favor of the defendant on the counterclaim in the amount of $8700. In confirming the referee’s findings, the court awarded interest for the plaintiff pursuant to § 37-3a, starting from the June 24, 1996 date of filing of the amended complaint, in the amount of $22,389. The court also ordered offer of judgment interest pursuant to § 52-192a in the amount of $50,577, with interest, again, running from the date of the filing of the amended complaint, for atotal award for the plaintiff of $117,214.

I

The defendant claims that the discharge of the mechanic’s hen functioned as if the court had granted a motion to dismiss and that the discharge of the mechanic’s lien deprived the court of subject matter jurisdiction over the remaining counts of the complaint. The defendant does not claim that the plaintiff originally could not have asserted several alternate causes of action based on the same facts as were the basis for the plaintiffs attempt to obtain a mechanic’s lien. Rather, the defendant contends that because the request to amend the complaint to add claims for breach of contract and quantum meruit was granted on July 29, 1996, after the defendant had filed an application on July 23, 1996, to discharge the mechanic’s lien, the amendment became void when the lien eventually was discharged on June 15, 1999.

“A determination regarding a trial court’s subj ect 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.” (Internal quotation marks omitted.) Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998). While noting this standard of review, we are also aware of judicial policy disfavoring the termination of proceedings without deciding the merits of the dispute. A court should reach the merits of a case when it is possible within the guidelines of available procedural rules. Haigh v. Haigh, 50 Conn. App. 456, 463, 717 A.2d 837 (1998).

The plaintiffs original complaint sought, as relief, foreclosure of a mechanic’s lien, attorney’s fees, interest, costs, and such other legal and equitable relief as the court might deem just and proper. The construction of a pleading, here, the original complaint, to determine its scope, is for a court, which is not required to accept the construction proffered by a party. Home Oil Co. v. Todd, 195 Conn. 333, 340, 487 A.2d 1095 (1985). We do not accept the defendant’s characterization of the complaint as limited to the foreclosure of the lien. Given the broad manner in which the original prayer for relief was framed, we conclude that the defendant, therefore, had notice that the plaintiff also might assert causes of action arising out of the same facts, in addition to the foreclosure of the mechanic’s lien.

The plaintiff filed its request to amend on June 24, 1996, which was objected to by the defendant on June 28,1996. The defendant did not assert a lack of subject matter jurisdiction in connection with the objection. The court granted the request to amend on July 29, 1996, but the amended complaint was date stamped June 24,1996. The defendant’s application to discharge the mechanic’s lien was filed on July 23, 1996. Therefore, although the mechanic’s lien, which the plaintiff sought to foreclose in the original complaint and in the first count of the amended complaint, was later discharged in February, 1999, by the decision of the Appellate Court and by the trial court on remand on March 10,1999, as directed by the Appellate Court, the remaining counts by then had long been a part of an existing, operative complaint. After the Appellate Court rendered judgment, there were two operative counts of the complaint remaining to give the trial court subject matter jurisdiction.

We conclude that the court had subject matter jurisdiction to consider the counts of the amended complaint after the discharge of the mechanic’s lien.

II

The defendant claims that the court and the referee improperly found the plaintiff to be entitled to § 37-3a interest on the basis of the $44,248 that was awarded to the plaintiff and instead should have subtracted the $8700 that was awarded to the defendant before calculating the amount of interest due the plaintiff. The defendant also claims that the court should have stayed the imposition of any interest during the pendency of its successful appeal.

“Prejudgment interest pursuant to § 37-3a has been applied to breach of contract claims for liquidated damages, namely, where a party claims that a specified sum under the terms of a contract, or a sum to be determined by the terms of the contract, owed to that party has been detained by another party.” Foley v. Huntington Co., 42 Conn. App. 712, 740, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). “[T]he determination of whether interest pursuant to § 37-3a should be awarded is a question for the trier of fact.” Id., 738. “It is clear that Connecticut case law establishes that prejudgment interest is to be awarded if, in the discretion of the trier of fact, equitable considerations deem that it is warranted.” Paulus v. LaSala, 56 Conn. App. 139, 147, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000). Prejudgment interest in accordance with § 37-3a normally is awarded for money wrongfully withheld, and provides for interest on money that is detained after it becomes due and payable. Fitzpatrick v. Scalzi, 72 Conn. App. 779, 788, 806 A.2d 593 (2002).

The defendant’s counterclaim, although related to performance of a contract, essentially was a claim in negligence, and prejudgment interest has been denied in similar circumstances. See Tang v. Bou-Fak-hreddine, 75 Conn. App. 334, 346, 815 A.2d 1276 (2003). Prejudgment interest pursuant to § 37-3a is not warranted in cases for breach of contract in which the damages “are similar to damages in a personal injury claim in negligence where a party is seeking to be made whole for the loss caused by another.” Foley v. Huntington Co., supra, 42 Conn. App. 742. The defendant’s counterclaim sounded more in negligence than in breach of contract, as the defendant was seeking to be made whole by the award of damages to repair faults in a rock wall that negligently was caused by the plaintiffs.

To award § 37-3a interest, two components must be present. First, the claim to which the prejudgment interest attaches must be a claim for a liquidated sum of money wrongfully withheld and, second, the trier of fact must find, in its discretion, that equitable considerations warrant the payment of interest. See Fitzpatrick v. Scalzi, supra, 72 Conn. App. 788.

A

The defendant first claims that interest in accordance with § 37-3a should have been applied to the “net” judgment. The defendant contends that § 37-3a interest should be applied only after subtracting the $8700 that was awarded to the defendant from the $44,248 that was awarded to the plaintiff. The defendant’s claim is essentially that the court abused its discretion by deciding that § 37-3a interest was not suitable for their counterclaim for negligence. As we have stated, if the defendant’s counterclaim, as a matter of law, was not one that would allow § 37-3a interest, we do not reach any question of abuse of discretion.

A counterclaim is an independent action. Practice Book §§ 10-10, 10-54, 10-55; Union Carbide Corp. v. Aetna Casualty & Surety Co., 212 Conn. 311, 318, 562 A.2d 15 (1989); Home Oil Co. v. Todd, supra, 195 Conn. 341. The defendant cites Grodzicki v. Grodzicki, 154 Conn. 456, 458, 226 A.2d 656 (1967), for the proposition that one award must be set off against another. Grod-zicki did not discuss the calculation of any interest, however. Neither party has cited relevant precedent as to whether interest should be awarded on gross or net judgment awards in situations in which the claims arose out of the same contract or concerned mutual debts of opposing parties, or where they did not.

In this case, the defendant’s counterclaim did not sound in contract, but was based on negligence, for which no § 37-3a interest can be due. To set off one claim against the other before calculating interest would, in effect, award § 37-3a interest to the defendant when the defendant had not been awarded such interest and was not entitled to such interest.

We conclude that the court, correctly, did not first subtract the defendant’s award from the plaintiffs award before calculating the § 37-3a interest due to the plaintiff.

B

The defendant next claims that interest in accordance with §§ 37-3a and 52-192a should have been stayed during the period of the defendant’s successful appeal. We have discussed the analytical framework behind granting § 37-3a interest. We now discuss the same bases for offer of judgment interest awarded pursuant to § 52-192a.

Offer of judgment interest is a tool for the court to use to promote settlements and to ease the burden of an overload of cases on the court. Kusha v. Respondowski, 3 Conn. App. 570, 574, 490 A.2d 1014 (1985). Its purpose is also to avoid the waste of judicial resources. See id. “The statute is admittedly punitive in nature. ... It is the punitive aspect of the statute that effectuates the underlying purpose of the statute and provides the impetus to settle cases.” (Internal quotation marks omitted.) Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 752, 687 A.2d 506 (1997).

In Blakeslee Arpaia Chapman, Inc., offer of judgment interest continued to run pending an informal stay while the merits of the case were tried in federal court. Id., 752-53. As in Blakeslee Arpaia Chapman, Inc., had the defendant here chosen to accept the offer of judgment, it would have been shielded from any further liability, including the accrual of interest during its successful appeal to discharge a mechanic’s hen. See Lutynski v. B.B. & J. Trucking, Inc., 31 Conn. App. 806, 815, 628 A.2d 1 (1993), aff'd, 229 Conn. 525, 642 A.2d 1 (1994). To allow for stays of the accrual of § 52-192a interest, however, due to delays that are not the fault of the parties would defeat the stated purpose of the statute. The delay here was not the “fault” of the defendant. Nevertheless, the defendant did choose a tactical path to determine a procedural question, not an uncommon, unethical or illegal path, but nonetheless a path that resulted in seven years of litigation over unpaid landscaping fees. General Statutes § 52-192a provides for mandatory imposition of interest at a set rate, unlike § 37-3a; see Suarez-Negrete v. Trotta, 47 Conn. App. 517, 522, 705 A.2d 215 (1998); and affords no allowance for the discretion of the court. The court was correct, therefore, in not staying § 52-192a interest while the defendant’s appeal of the validity of the plaintiffs mechanic’s lien was pending.

As discussed, the purpose of § 37-3a is to make a plaintiff whole in certain cases in which the defendant has wrongfully deprived the plaintiff of the use of a liquidated sum of money. That purpose need not be thwarted because the defendant chose to attack the foreclosure of a mechanic’s lien. The time spent awaiting the outcome of the appeal, however, could have been considered by the trier of fact in deciding whether to award interest at all or in deciding the date from which interest should begin to run. The determination of a proper commencement date for prejudgment interest is purely a determination reserved for the trier of fact. Paulus v. LaSala, supra, 56 Conn. App. 149. In this case, the court did not exclude the time that elapsed while the case was on appeal. There was no abuse of discretion committed by failing to do so.

Ill

The defendant’s final claims relate to the offer of judgment statute. The defendant seeks to avoid offer of judgment interest because it claims that offers of judgment do not apply to actions for the foreclosure of mechanic’s liens. The defendant also claims that the plaintiffs offer of judgment was void because the defendant could not accept or reject the offer of judgment within thirty days as required by § 52-192a. Both parties agree that the complaint was amended to include a breach of contract claim after the defendant’s thirty day statutory window to accept the offer of judgment had passed. The offer of judgment in this case was filed April 15, 1996, the request to amend was dated June 20, 1996, and the granting of the request to amend was filed on July 29,1996. Finally, the defendant claims that the offer of judgment should not apply to the amended complaint at all. We disagree.

Neither the parties nor this court is aware of any Appellate or Supreme Court case that resolves whether offers of judgment apply to mechanic’s liens. An offer of judgment, however, covers all claims, known and unknown, certain and uncertain, relating to a transaction between a plaintiff and a defendant. Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., supra, 239 Conn. 750.

The purpose of the mechanic’s lien was to recover money. See Murphy v. Marmon Group, Inc., 562 F. Sup. 856, 858 (D. Conn. 1983) (offer of judgment can apply to declaratory judgment action, purpose of which was to recover money). The plaintiff could not have known at the time it sought foreclosure of its mechanic’s lien that the Appellate Court would determine that a mechanic’s hen could not be used in cases involving landscaping services. Before this court decided the question, however, the plaintiff successfully had amended its complaint to allege a breach of contract to obtain payment for the same services as were the basis for its mechanic’s hen. Thus, we need not decide whether, if the complaint had remained unamended and solely sought the foreclosure of a mechanic’s hen, the plaintiff’s offer of judgment would have apphed.

The defendant next claims that because the offer of judgment was filed before the amended complaint, which contained the count for which damages finally were awarded, the offer of judgment should have been refiled to make it operative.

It is true that parties are allowed to refile an offer of judgment for the same amount as the first offer as many times as they deem necessary prior to the commencement of trial. Shawhan v. Langley, 249 Conn. 339, 345-46, 732 A.2d 170 (1999). Although a refiling of an offer of judgment would have been possible here, the plaintiff was under no requirement to refile. See Lutynski v. B.B. & J. Trucking, Inc., supra, 31 Conn. App. 815.

As previously stated, an offer of judgment applies to all claims, known and unknown, certain and uncertain. Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., supra, 239 Conn. 750. In Lutynski and in Blakeslee Arpaia Chapman, Inc., the courts found that amended complaints did not invalidate prior offers of judgment. See id., 750-51. The defendant claims that those cases can be distinguished in that the plaintiffs in Blakeslee Arpaia Chapman, Inc., and in Lutynski did not completely change the nature of their claims, but rather amended the claims to reflect new and expanded damages.

In Lutynski, the plaintiff had been in a car accident. Lutynski v. B.B. & J. Trucking, Inc., supra, 31 Conn. App. 809. The injuries that resulted worsened after the initial complaint was filed, after an offer of judgment was filed and after the thirty day acceptance window had passed. Id. The plaintiff amended the complaint to include the new injuries after the offer of judgment acceptance period had passed. Id., 809-10. On appeal, this court held that the offer of judgment that had been made was still valid, regardless of the plaintiffs subsequently having filed amended complaints, and allowed offer of judgment interest to accrue. Id., 814 — 16. We see a distinction without a difference in the present case. The plaintiff attempted to recover wrongfully withheld money by employing a statutoiy lien that turned out to be the improper procedural device. The plaintiff already had amended its complaint to add other causes of action involving the same facts by the time the Appellate Court rendered its judgment ordering that the application to discharge the mechanic’s lien be granted on remand. See Ceci Bros., Inc. v. Five Twenty-One Corp., supra, 51 Conn. App. 782.

A premature filing of a statutorily permissible request can become viable when the basis for the filing comes to fruition. Home Oil Co. v. Todd, supra, 195 Conn. 343. In Home Oil Co., the defendant filed a claim for a jury trial at a time when the issue of fact had not yet been joined. Id. The court held that the claim became valid when the issues were joined and that the defendant did not need to file another claim for a jury trial to satisfy General Statutes § 52-215. Home Oil Co. v. Todd, supra, 343. In the present case, even if it is assumed that the filing of the offer of judgment was premature because the plaintiffs complaint had not yet been amended, the offer of judgment did not become void. We conclude that when the amendment occurred, the offer became valid, and the plaintiff did not need to file another offer of judgment.

The defendant finally claims that the starting date for § 52-192a interest to accrue was improper. In its memorandum of decision, the court decided that the “most equitable and logical” time for offer of judgment interest to accrue would be from the date of the amended complaint, June 24, 1996. The defendant claims that this date is illogical and unfair, given that it would have forced the defendant to accept the offer of judgment prior to the start of the accrual of interest and prior to an effective claim being filed. The court, in its reasoning, equated the amended complaint with the original complaint for purposes of § 52-192a. Pursuant to the reasoning of Home Oil Co., we do not conclude that such an equation was improper. The offer of judgment, as was true of the claim for a jury trial, remained dormant until the amended complaint superseded the original complaint.

We conclude that the court correctly interpreted the language of § 52-192a in this unique case to hold that the amended complaint became the equivalent of the original complaint for purposes of the calculation of interest.

The judgment is affirmed.

In this opinion the other judges concurred.

       As used in this opinion, the term defendant refers only to the corporation. The action originally was brought against Leona M. Helmsley also, as the sole officer of the corporate defendant and as one of its two directors and shareholders. Helmsley used the home, but title was in the name of the corporate defendant, and a corporate representative signed the contract. The attorney trial referee to whom the matter was referred found that no damages were attributable to Helmsley’s actions, and she is not involved in this appeal.

       The mechanic’s lien was the only subject of the one count original complaint, dated January 18,1996. The relief sought was foreclosure of the lien, immediate possession of the liened premises, attorney’s fees, interest, costs and “[s]uch other legal and equitable relief as the court may deem just and proper.” The mechanic’s lien was discharged when this court ruled that the services performed by the plaintiff pursuant to the maintenance contract were not lienable under General Statutes § 49-33. See Ceci Bros., Inc. v. Five Twenty-One Corp., 51 Conn. App. 773, 724 A.2d 541 (1999).

       The plaintiff made no claim to the court that the defendant’s counterclaim was improper because it did not arise out of the same transaction as the subject of the plaintiffs complaint, as required by Practice Book § 10-10. The purpose of that section, formerly § 116, is to enhance “judicial economy, [to avoid] multiplicity of litigation, and [to avoid] piecemeal disposition of what is essentially one action (Internal quotation marks omitted.) Conservation Commission v. Price, 193 Conn. 414, 433, 479 A.2d 187 (1984). Whether those purposes are furthered by permitting a counterclaim is a matter of the court’s discretion. Id. The transaction test is one of practicality and rests on whether a duplication of judicial effort and resources would result if the subject of the complaint and counterclaim were tried in separate actions. Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983). Because the two agreements, one alleged in the plaintiffs amended complaint and the other alleged in the defendant’s counterclaim, were intertwined, the counterclaim in this case was proper. See Home Oil Co. v. Todd, 195 Conn. 333, 487 A.2d 1095 (1985).

       The mechanic’s lien was filed by the plaintiff on November 22, 1995, in the town clerk’s office in Greenwich.

       The parties stipulated on May 8, 2002, that the annual interest pursuant to § 37-3a would be 8 percent, which the referee found reasonable.

       General Statutes § 37-3a provides in relevant part that “interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. ...”

       In its brief, the defendant claimed that interest in accordance with General Statutes § 52-192a, offer of judgment interest, also should be based on the net award as well. It abandoned that claim as to § 52-192a interest at oral argument.

       If opposing parties both seek interest under § 37-3a on related contractual claims, those claims and interest, cannot be set off against each other before interest is calculated unless the court finds that interest should be awarded at the same rate and commencing from the same date for both claims.

       General Statutes (Rev. to 1995) § 52-192a provides in relevant part: “(a) After commencement of any civil action based upon contract or seeking the recovery of money damages . . . the plaintiff may . . . file with the clerk of the court a written ‘offer of judgment’ . . . directed to the defendant . . . offering to settle the claim underlying the action .... Within thirty days after being notified of the filing of the ‘offer of judgment’ and prior to the rendering of ... an award by the court, the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained ....
      “(b) ... If the court ascertains . . . that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment', the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date . . . the complaint in the civil action was filed . . .

       The time to accept or reject offers of judgment under § 52-192a has since been amended by the legislature to allow sixty days. See Public Acts 2001, No. 01-71, § 1.

       In 1982, the legislature deleted language in § 52-192a that specifically allowed multiple offers of judgment for multiple amounts, but left in the language that if such offer was not accepted within thirty days, it shall be deemed rejected unless refiled, thereby allowing a party to refile an offer of judgment for the same amount. See Shawhan v. Langley, supra, 249 Conn. 345.

       The defendant was not charged interest from January 25, 1996 (initial complaint), to June 24, 1996 (amended complaint).. The plaintiffs do not contest a loss of interest over this five month period.

       General Statutes § 52-192a, as applicable when the offer of judgment was filed, allowed for a thirty day window for the opposing party to accept the offer. The offer of judgment was filed on April 15, 1996. The defendant then would have had to answer the offer of judgment in mid-May, 1996, before the court determined that offer of judgment interest should begin to accrue.