author: LAVENTE, J.

text:
    SHARON LEE ALBUQUERQUE v. STATE EMPLOYEES RETIREMENT COMMISSION
    (AC 31487)
    Gruendel, Lavine and Bear, Js.

      Argued September 17
    officially released November 9, 2010

      Charles D. Houlihan, Jr., for the appellant (plaintiff).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (defendant).
   Opinion

LAVENTE, J.

To have standing to bring an appeal from the decision of an administrative agency, a person must be aggrieved by the decision. See General Statutes § 4-183 (a); Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007); Terese B. v. Commissioner of Children & Families, 68 Conn. App. 223, 228, 789 A.2d 1114 (2002). The issue in this appeal is whether the plaintiff, Sharon Lee Albuquerque, was aggrieved by the decision of the defendant, the state employees retirement commission, denying her benefits pursuant General Statutes (Rev. to 1987) § 7-439g. We conclude that the plaintiff was not aggrieved by the defendant’s declaratory ruling and that the trial court properly dismissed her administrative appeal for lack of standing. We therefore affirm the judgment of the trial court.

The underlying facts are not in dispute. In 1979, the plaintiff married Anthony Albuquerque (decedent), a Windsor police officer and a member of the municipal employees’ retirement fund. When the decedent retired on September 20,1986, he elected to waive the spousal benefit option, which had the effect of precluding the plaintiff from receiving 50 percent of his reduced monthly pension should he predecease her. See General Statutes (Rev. to 1987) § 7-439g. Consequently, the decedent received a straight life annuity for approximately eighteen years until he died on July 8, 2004. The defendant’s retirement service division (division) was informed of his death on July 8, 2004. On February 11, 2005, through counsel, the plaintiff asked the defendant to pay her 50 percent of the monthly benefit being paid the decedent at the time of his death. She claimed that she was entitled to such spousal benefit as a matter of law, unless she had waived it.

By letter dated April 7, 2005, the division informed the plaintiff that she was not entitled to the 50 percent spousal benefit as the decedent had made a contrary election when he retired. Thereafter, the plaintiff asked the defendant to review the administrative denial. On March 17, 2006, the defendant’s subcommittee on purchase of service and related matters (subcommittee) unanimously recommended denial of the plaintiffs claim for a posthumous change of an irrevocable option election made by the decedent when he retired, finding that there were no statutory bases and no extenuating circumstances sufficient to grant the plaintiffs request. On April 13, 2006, the defendant unanimously voted to adopt the recommendation of its subcommittee.

The plaintiff thereafter asked the defendant to review and to reconsider its denial of her claim. The defendant held a hearing on October 19, 2006. At the hearing, the plaintiffs counsel argued that § 7-448-2 of the Connecticut state regulations was formulated in 1979 to require that pension benefits continue to a surviving spouse following the death of a municipal employees’ retirement fund member. He also argued that the federal Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., made spousal consent to a member’s election a requirement in the retirement process, but acknowledged that Connecticut did not adopt the ERISA consent requirement until 1991. The plaintiff testified that she did not know of the decedent’s straight life annuity election until after his death. Following the hearing, the defendant voted to affirm its prior denial of the plaintiffs request to change posthumously the decedent’s election of a straight life annuity to a 50 percent spousal benefit option.

The plaintiff then sought a declaratory ruling from the defendant concerning her right to spousal benefits under § 7-439g. See General Statutes § 4-176 (a). In its declaratory ruling, issued on August 28, 2008, the defendant stated that it had found “no extenuating circumstances present in the record sufficient to justify either the lateness of the election change request or the election change itself. The [defendant found that] there [was] no evidence showing [that] the election made by the member was contrary to the law at the time it was made. The [defendant found] no statutory authorization or ‘window of opportunity’ that would currently permit such change as requested at the present time. Therefore, even accepting the allegations in the petition as true and according the benefit of every possible inference to [the plaintiff], the [defendant found] nothing in the law or on the record that allows it to change the income payment election that the [decedent] selected at the time of his retirement. Had [the decedent] wished to elect his spouse, [the plaintiff], as his survivor, he was required to make such an election either at the time of his retirement, or soon after the receipt of his first regular monthly payment. He did not and therefore his election is binding. Based upon the findings and conclusions contained herein, the [defendant] denies [the plaintiffs] very untimely request to allow a posthumous change in [the decedent’s] retirement income payment election from that of straight life annuity to a 50 [percent] spouse option.” The plaintiff appealed from the defendant’s decision to the Superior Court pursuant to General Statutes § 4-183 (a).

The trial court dismissed the plaintiffs appeal after concluding that the plaintiff lacked standing, citing McWeeny v. Hartford, 287 Conn. 56, 65, 946 A.2d 862 (2008). In its memorandum of decision, the court stated that “the plaintiff contends that § 7-448-2 of the Regulations of Connecticut State Agencies, providing that a spouse shall be entitled to a retirement salary commencing at the employee’s [death, controls] here; the court is not persuaded. Section 7-448-2 was rendered moot when its corresponding statutes, General Statutes §§ 7-439 and 7-439a, were repealed and replaced by . . . § 7-439g. The court notes that [subsequent enactments of statutes are presumed to repeal earlier inconsistent statutes or regulations only to the extent necessary to remove the conflict. Reddy v. New Hampshire Ins. Co., 28 Conn. App. 145, 160 n.14, 612 A.2d 64 (1992).

“While § 7-448-2 of the regulations and the corresponding statutes, §§ 7-439 and 7-439a, may have guaranteed payment of retirement income to a surviving spouse, the subsequently enacted statute, § 7-439g, allowed for the unilateral exclusion of a surviving spouse from retirement benefits. Since § 7-439g is in conflict with § 7-448-2 of the regulations in this respect, the court presumes the latter repealed. Therefore, the plaintiffs reliance on § 7-448-2 of the regulations is misguided.” (Internal quotation marks omitted.) The plaintiff appealed to this court, claiming that the trial court improperly determined that she lacked standing to challenge the defendant’s declaratory ruling denying her spousal benefits.

A determination of the trial court’s subject matter jurisdiction presents a question of law subject to plenary review. See St. George v. Gordon, 264 Conn. 538, 544-45, 825 A.2d 90 (2003). Judicial review of a decision by an administrative agency is governed by the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., and the scope of that review is very restricted. Celentano v. Rocque, 282 Conn. 645, 652, 923 A.2d 709 (2007). “With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. . . . Judicial review of the conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Citations omitted; internal quotation marks omitted.) Id.

“Pleading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of an administrative appeal.” (Internal quotation marks omitted.) Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, 242 Conn. 152, 158, 699 A.2d 142 (1997). “Aggrievement is essentially a question of standing; without it, a court must dismiss an action for want of jurisdiction. . . . Two broad yet distinct categories of aggrievement exist, classical and statutory. . . .

“Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share. . . . Second, the party must also show that the agency’s decision has specially and injuriously affected that specific personal or legal interest. . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest. . . .

“Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.” (Internal quotation marks omitted.) Terese B. v. Commissioner of Children & Families, supra, 68 Conn. App. 228.

This appeal presents a question of statutory aggrievement. “[T]o determine whether a party has standing to make a claim under a statute, a court must determine the interests and the parties that the statute was designed to protect. . . . Essentially the standing question in such cases is whether the . . . statutory provision on which the claim rests properly can be understood as granting persons in the plaintiffs position a right to judicial relief. . . . The plaintiff must be within the zone of interests protected by the statute. ... It has been [noted] that the zone of interests test bears a family resemblance to the scope of the risk doctrine in the law of torts. ... In tort law, it is not enough that the defendant’s violation of the law caused injury to a plaintiff. The defendant must also owe that plaintiff a duty. Similarly, with respect to the law of [statutory] standing, it is not enough that a party is injured by an act or omission of another party. The defendant must also have violated some duty owed to the plaintiff (Citations omitted; emphasis in original; internal quotation marks omitted.) McWeeny v. Hartford, supra, 287 Conn. 65.

We must, therefore, determine whether the plaintiff is in the class of persons whom § 7-439g was intended to protect. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Windels v. Environmental Protection Commission, 284 Conn. 268, 294-95, 933 A.2d 256 (2007). Moreover, we read statutes together when they are related to the same subject matter. See Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 198, 3 A.3d 56 (2010).

Our analysis begins with the language of § 7-439g (a), which provides in relevant part: “On and after July 1, 1985, a member of the municipal employees’ retirement fund may elect one of the following optional forms for retirement income by filing ... a written election .... A member who has been married at least one year shall be presumed to have elected the option provided in subdivision (1) of this subsection unless a contrary election is made by the member. . . .’’General Statutes (Rev. to 1987) § 7-439g (a). Subdivision (1) provides: “A reduced amount payable to the member for his lifetime, with the provision that after his death his spouse, if surviving, shall be entitled to receive a lifetime income equal to fifty per cent of the reduced monthly amount payable to the member.” General Statutes (Rev. to 1987) § 7-439g (a) (1). Subdivision (4) provides: “An amount payable to the member for his lifetime, with no payments continuing after the member’s death, except for a lump sum death benefit as provided in section 7-440.” General Statutes (Rev. to 1987) § 7-439g (a) (4). The term member is defined in General Statutes § 7-425 (5), which provides, in relevant part, that “ ‘[m] ember’ means any regular employee . . . receiving pay from a participating municipality ”

We conclude that the language of the statute is plain and unambiguous. By its terms, § 7-439g describes the benefit options available to a member of the municipal employees’ retirement fund at the time of his or her retirement and the method of electing an option. The statute contains a presumption regarding spousal survivor benefits for members who have been married for at least one year at the time of retirement, unless the member elects a contrary option. As a result of the presumption, the member will receive a reduced amount payable for the member’s lifetime and if the member’s spouse survives him or her, the spouse will receive a lifetime income equal to 50 percent of the member’s reduced monthly benefit paid at the time of death. The statute, however, clearly states that a member may elect a benefit option that is contrary to the presumption. Pursuant to our construction of the statute, we conclude that § 7-439g was intended to provide retirement funds to members of the municipal employees’ retirement fund and their spouses with the proviso that a member may elect to override the statutory presumption of providing benefits for a surviving spouse.

In the case before us, the evidence demonstrates that the decedent rejected the statutory presumption of providing spousal benefits to the plaintiff and elected the option codified in § 7-439g (a) (4), that is, to receive retirement benefits during his lifetime only. The plaintiff has not demonstrated how the defendant’s application of the facts of her particular circumstance in its declaratory ruling is contrary to the plain language of the statute. Because the decedent elected to preclude the plaintiff from spousal benefits under § 7-439g, the plaintiff is not within the class of persons the statute was intended to benefit, and she was not aggrieved by the defendant’s declaratory ruling. The court therefore properly dismissed the plaintiffs administrative appeal because she lacked standing.

The judgment is affirmed.

In this opinion the other judges concurred.

       On appeal the plaintiff raises the following claims: (1) the court improperly concluded that (a) she lacked standing to assert her right to survivor benefits pursuant to § 7-439g, (b) § 7-448-2 of the Regulations of Connecticut State Agencies implicitly was repealed and (c) the defendant’s retirement system did not deprive her of due process of law and equal protection and (2) the defendant illegally authorized her late husband, Anthony Albuquerque, to waive her survivorship rights without her knowledge or consent. Because the question of the plaintiffs standing to bring the administrative appeal is dispositive, we need not address her other claims.

       Section 7-448-2 (a) of the Regulations of Connecticut State Agencies provides in relevant part: “If an employee retires after his election has been approved by the retirement commission and is outlived by his spouse, such spouse shall be entitled to a retirement salary commencing at the employee’s death. ...”

       In this opinion, all citations to § 7-439g refer to the version of the statute in effect on the date of the decedent’s retirement and election of benefits. Public Acts 1991, No. 91-86, however, amended that section to provide that a member’s election to eliminate survivor benefits to a spouse shall not be effective unless the member’s spouse consents in writing to the election and such written consent acknowledges the effect of the election and is witnessed by a representative of the municipality or a notary public.
      General Statutes § 55-3 provides: “No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shah be construed to have a retrospective effect.” See also Gormley v. State Employees Retirement Commission, 216 Conn. 523, 529, 582 A.2d 764 (1990); Flanagan v. Blumenthal, 100 Conn. App. 255, 259-60, 917 A.2d 1047 (2007).

       General Statutes § 4-176 (a) provides in relevant part: “Any person may petition an agency ... for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.”

       General Statutes § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by the final decision may appeal to the Superior Court as provided in this section. . . .” (Emphasis added.)

       Specifically, the plaintiff claims on appeal that (1) McWeeny v. Hartford, supra, 287 Conn. 56, is not applicable or relevant to an administrative appeal, (2) the defendant is collaterally estopped from contesting her petition to receive spousal benefits, (3) the defendant’s reliance on discredited ERISA cases provides no legal basis on which to deny her standing, (4) she has satisfied the requirements for standing and (5) she has been denied access to the courts in violation of article first, § 10, of the constitution of Connecticut. The fifth claim was not addressed in the trial court and therefore is not reviewable.

       There is no factual dispute that the decedent was a member and that the plaintiff is and was not a member.

       Our conclusion is dictated, not by the actions of the defendant but by the decision the decedent made to waive the spousal benefit option in 1986. We acknowledge that the plaintiff may feel personally aggrieved by the defendant’s declaratory ruling, but her sense of personal aggrievement does not translate into aggrievement in a legal sense.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    GORDON JONES v. COMMISSIONER OF CORRECTION
    (AC 31126)
    Harper, Bear and Mihalakos, Js.
    Argued September 21
    officially released October 12, 2010
   Per Curiam.

The appeal is dismissed.


text:
    EAKER MCCLENDON v. COMMISSIONER OF CORRECTION
    (AC 30826)
    DiPentima, C. J., and Lavine and Bear, Js.
    Submitted on briefs September 10
    officially released October 12, 2010
   Per Curiam.

The appeal is dismissed.


text:
    ALEXIAS PIZZA, LLC v. COMMISSIONER OF REVENUE SERVICES
    (AC 31400)
    DiPentima, C. J., and Lavine and Bear, Js.
    Submitted on briefs September 10
    officially released October 12, 2010
   Per Curiam.

The judgment is affirmed.


text:
    JONAS COHLER v. LISA SELSBY COHLER
    (AC 30448)
    Bishop, Haiper and Beach, Js.
    Submitted on briefs September 10
    officially released October 12, 2010
   Per Curiam.

The judgment is affirmed.


text:
    MICHAEL GAY v. COMMISSIONER OF CORRECTION
    (AC 31473)
    Bishop, Harper and Beach, Js.
    Submitted on briefs September 10
    officially released October 12, 2010
   Per Curiam.

The appeal is dismissed.


text:
    ANTONIO T. RIBEIRO v. ROSEMARY WONG FRAGOSO
    (AC 31480)
    Bishop, Haiper and Beach, Js.
    Submitted on briefs September 10
    officially released October 12, 2010
   Per Curiam.

The judgment is affirmed.


text:
    GLENN S. JACKSON v. COMMISSIONER OF CORRECTION
    (AC 31241)
    Bishop, Harper and Beach, Js.
    Submitted on briefs September 10
    officially released October 12, 2010
   Per Curiam.

The appeal is dismissed.


text:
    JOSE I. POLANCO v. COMMISSIONER OF CORRECTION
    (AC 30885)
    Gruendel, Robinson and Alvord, Js.
    Submitted on briefs September 10
    officially released October 12, 2010
   Per Curiam.

The appeal is dismissed.


text:
    RICHARD BARRETTA, JR., ET AL. v. CHRISTOPHER BARRETTA ET AL.
    (AC 31863)
    Gruendel, Robinson and Alvord, Js.
    Submitted on briefs September 10
    officially released October 12, 2010
   Per Curiam.

The judgment is affirmed.


text:
    DUANE K. BANKS v. COMMISSIONER OF CORRECTION
    (AC 30704)
    Bishop, Bear and Peters, Js.
    Argued September 13
    officially released October 12, 2010
   Per Curiam.

The appeal is dismissed.


text:
    WILLIAM SCOTT DALTON v. COMMISSIONER OF CORRECTION
    (AC 30170)
    Bishop, Lavine and Dupont, Js.
    Argued September 14
    officially released October 12, 2010
   Per Curiam.

The appeal is dismissed.


text:
    RICARDO EVANS v. COMMISSIONER OF CORRECTION
    (AC 31139)
    Gruendel, Flynn and Pellegrino, Js.
    Argued September 20
    officially released October 12, 2010
   Per Curiam.

The appeal is dismissed.


text:
    EDWARD PARKER v. COMMISSIONER OF CORRECTION
    (AC 30746)
    Bishop, Bear and Peters, Js.
    Argued September 13
    officially released October 12, 2010
   Per Curiam.

The appeal is dismissed.


text:
    ARTHUR E. SCOTT, JR., EXECUTOR (ESTATE OF BARBARA H. SCOTT) v. MARK M. HEINONEN
    (AC 31341)
    Bishop, Gruendel and West, Js.
    Argued September 7
    officially released October 12, 2010
   Per Curiam.

The appeal is dismissed. See Scott v. Heinonen, 118 Conn. App. 577, 985 A.2d 358 (2009), cert. denied, 295 Conn. 909, 989 A.2d 603 (2010).


text:
    STATE OF CONNECTICUT v. DAVID M. GUZMAN-TORRES
    (AC 31006)
    Lavine, Alvord and Bear, Js.
    Argued September 20
    officially released October 12, 2010
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. LATONE JAMES
    (AC 31185)
    Lavine, Beach and Laveiy, Js.
    Argued September 16
    officially released October 12, 2010
   Per Curiam.

The judgment is affirmed.


text:
    DEBRA L. SZYMASZEK v. MICHAEL SZYMASZEK
    (AC 31361)
    Harper, Robinson and Alvord, Js.
    Argued September 24
    officially released October 19, 2010
   Per Curiam.

The judgment is affirmed.


text:
    WENDELL HASAN v. COMMISSIONER OF CORRECTION
    (AC 30386)
    Beach, Robinson and Alvord, Js.
    Argued September 23
    officially released October 19, 2010
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. JOSEPH M. MONTANEZ
    (AC 30824)
    Bishop, Lavine and Bear, Js.
    Argued September 24
    officially released October 19, 2010
   Per Curiam.

The appeal is dismissed.


text:
    GARDNER HEIGHTS HEALTH CARE CENTER, INC. v. RICHARD J. KOROLYSHUN ET AL.
    (AC 31097)
    Gruendel, Beach and Bear, Js.
    Submitted on briefs October 15
    officially released November 2, 2010
   Per Curiam.

The judgment is affirmed.


text:
    RONNIE HOLLEY v. COMMISSIONER OF CORRECTION
    (AC 30775)
    Harper, Alvord and West, Js.
    Argued October 14
    officially released November 2, 2010
   Per Curiam.

The appeal is dismissed.


text:
    BINH LE v. ANNE MARIE EDWARDS
    (AC 31844)
    Harper, Alvord and West, Js.
    Argued October 14
    officially released November 2, 2010
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. VALISA KINION
    (AC 30171)
    Robinson, Bear and Freedman, Js.
    Argued October 18
    officially released November 2, 2010
   Per Curiam.

The judgment is affirmed.


text:
    ALBERT BACHER v. MARLENE MARCUS-BACHER
    (AC 31687)
    Beach, Robinson and Pellegrino, Js.
    Submitted on briefs October 15
    officially released November 2, 2010
   Per Curiam.

The judgment is affirmed.


text:
    BARBARA LAMELE v. PASQUALE LAMELE
    (AC 30827)
    DiPentima, C. J., and Harper and Robinson, Js.
    Submitted on briefs October 15
    officially released November 2, 2010
   Per Curiam.

The judgment is affirmed.


text:
    ROBERT HAGERMAN v. COMMISSIONER OF CORRECTION
    (AC 31358)
    DiPentima, C. J., and Harper and Robinson, Js.
    Submitted on briefs October 15
    officially released November 2, 2010
   Per Curiam.

The appeal is dismissed.


author: GRUENDEL, J.

text:
    ROCKVILLE BANK v. VICTORY OUTREACH MINISTRIES, INC.
    (AC 31471)
    DiPentima, C. J., and Bishop and Gruendel, Js.

      Argued September 23
    officially released November 9, 2010

      Glenn T. Terk, for the appellant (defendant).

      Linda Clifford Hadley, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

In this mortgage foreclosure action, the defendant, Victory Outreach Ministries, Inc., appeals from the judgment of foreclosure by sale rendered by the trial court setting a sale date for certain real property owned by the defendant and, thereafter, approving the sale on the motion of the committee of sale (committee). On appeal, the defendant claims that the court improperly (1) ordered the sale in light of evidence that the defendant had complied with an agreement (agreement) entered into with the plaintiff, Rockville Bank, in satisfaction of the mortgage, and (2) approved the sale despite that compliance and evidence that the committee improperly administered the sale. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. On December 28, 2005, the defendant executed a mortgage in favor of the plaintiff as security for a $500,000 loan. The mortgage encompassed two parcels of land located in East Windsor and South Windsor. One of these parcels is undeveloped property that the defendant planned to convert into a condominium complex (undeveloped parcel), and the other is developed property on which the defendant’s church and church infrastructure are situated (developed parcel).

The defendant subsequently defaulted on the loan, and the plaintiff instituted foreclosure proceedings pursuant to a complaint filed March 5, 2007. On August 6, 2007, the court rendered judgment in favor of the plaintiff, ordering a foreclosure by sale of both parcels, and set an initial sale date of February 9,2008. Nonetheless, because of delays in the appraisal process and ongoing negotiations between the parties, the original sale date was eventually moved to May 17,2008. On May 16,2008, the day before the parcels were to be sold, the parties negotiated the agreement in lieu of the impending sale. The plaintiff then filed a motion to open the judgment of foreclosure by sale, with the caveat that the matter remain pending with the court in the event that the defendant defaulted on the terms of the agreement. The court granted the motion.

On February 13, 2009, the plaintiff filed a motion to set a new sale date, claiming that the defendant had defaulted on the terms of the agreement. The defendant filed an objection to the motion, and hearings were held on March 2 and 9, 2009. At the conclusion of the March 9 hearing, the court ruled that the defendant had failed to fulfill its obligations under the agreement, rendered a judgment of foreclosure by sale and set the sale dates for the undeveloped and developed parcels as July 11 and September 12, 2009, respectively. The sale of the undeveloped parcel took place as scheduled, and on July 16, 2009, the committee moved for approval of the sale. On August 27, 2009, the court granted the committee’s motion for approval over the defendant’s objection.

The defendant now claims that the court improperly rendered a judgment of foreclosure and set a sale date for the two parcels, despite evidence of the defendant’s compliance with the agreement, and improperly granted the committee’s motion for approval of the sale of the undeveloped parcel. We address each of these claims in turn. Additional facts will be set forth as necessary.

I

The defendant first claims that because there was sufficient evidence to show that the defendant had fully complied with the terms of the parties’ agreement, the court improperly ordered a sale date for the two parcels. Additionally, the defendant argues that the court abused its discretion in precluding the defendant from presenting evidence of its compliance. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. The central purpose of the agreement was to grant the defendant “an additional six month period, [beyond the previously set sale date of May 17, 2008], to pay off the loan in full.” The terms of the agreement required, inter alia, that the defendant provide the plaintiff with an executed deed for the undeveloped parcel in lieu of the immediate foreclosure sale of that property. The plaintiff was to hold this deed in escrow until the defendant paid off the loan in full or the end of the six month extension period, whichever occurred first. As a condition of the agreement, the defendant was required to procure “written confirmation” from the owners of an adjoining parcel (adjoining parcel) that they would “sell their property for fair market value to the owner of the [undeveloped parcel — namely, the plaintiff], in the event that the [defendant] [was] unable” to repay the loan by the end of the six month extension. Furthermore, the defendant was obligated to deliver this written confirmation to the plaintiff “on or before May 27, 2008,” or the condition would go unsatisfied.

During the March, 2009 hearings on the plaintiffs motion to set a new sale date, the plaintiffs counsel represented to the court that the written confirmation called for under the agreement never had been received from the adjoining parcel owners. Therefore, as argued by the plaintiff, the defendant had failed to comply with a condition of the agreement, and the plaintiff was free to renew foreclosure proceedings for both the undeveloped and developed parcels. To the contrary, counsel for the defendant maintained that the written confirmation had been “sent to him from the adjoining parcel owners” before May 27, 2008, and, accordingly, the plaintiff was limited to its remedies under the agreement — namely, recording the deed for the undeveloped parcel.

Following argument by counsel, the court agreed with the plaintiff, finding that, although the written confirmation may have been sent to the defendant’s attorney by the attorney for the adjoining parcel owners before May 27, 2008, there was no evidence to show that it had been received by the plaintiff by that time. As such, the court ruled that the plaintiff was not limited to the remedies provided for under the agreement, rendered a judgment of foreclosure by sale and set new sale dates for both the undeveloped and developed parcels.

Before addressing the merits of the defendant’s claim that the court’s ruling was improper, we begin with the applicable standard of review. “A foreclosure action is an equitable proceeding. . . . The determination of what equity requires is a matter for the discretion of the trial court. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Angle, 284 Conn. 322, 326, 933 A.2d 1143 (2007).

Here, the gravamen of the defendant’s claim is that the court improperly ordered new sale dates because the written confirmation establishes that the defendant complied with the condition of the parties’ agreement. On the basis of our review of the record in this case, however, we cannot say that the court’s factual finding that the plaintiff failed to receive the written confirmation by the May 27,2008 deadline was clearly erroneous. See, e.g., Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007) (“[t]o the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous” [internal quotation marks omitted]). Although the written confirmation is dated May 23, 2008, and there is evidence to show that it was transmitted to the defendant’s counsel that same day, there is no evidence to support the defendant’s claim that the written confirmation was received by the plaintiff “on or before May 27, 2008,” as the agreement required. Indeed, there is no evidence to refute the plaintiffs assertion that the written confirmation was first produced by the defendant on March 2, 2009, nearly nine months after it was to be delivered to the plaintiff.

Moreover, the defendant’s assertions that the court prevented it from “presenting] evidence of compliance with the . . . [agreement” is belied by the transcripts of the March, 2009 proceedings. Not only did the defendant offer the agreement to the court for consideration, but also both parties were allowed to articulate fully their positions with respect to the issue of whether or not the written confirmation was timely received by the plaintiff. The written confirmation itself is included in the court file, as is the attendant facsimile of May 23, 2008, from the attorney for the adjoining parcel owners to the defendant’s counsel. In contrast to the defendant’s claims during oral argument, at no time during the March, 2009 hearings did the defendant’s counsel request an evidentiary hearing to address specifically the question of when the written confirmation was (or was not) received by the plaintiff. Nor did the defendant’s counsel represent to the court at the March, 2009 hearings that one of the owners of the adjoining parcel was prepared to testify as to the timing and transmittal of the written confirmation.

We conclude that the court had adequate evidence to find that the plaintiff had not timely received the written confirmation from the defendant as required under the agreement. We also conclude that the defendant’s assertion that the court prevented the defendant from presenting evidence as to its compliance with the agreement is unsupported by the record. Accordingly, the defendant’s claim fails.

n

The defendant next challenges the court’s approval of the sale of the undeveloped parcel, arguing both that the committee improperly administered the sale and that the evidence showed that the defendant complied in all respects with the parties’ agreement. We are unpersuaded.

A

First, the defendant claims that the court improperly approved the sale of the undeveloped parcel because there was evidence that the committee provided incorrect information to potential bidders. Specifically, the defendant alleges that the committee mistakenly informed potential bidders that, in order to bid successfully on the undeveloped parcel, a bidder would also have to bid on the developed parcel, resulting in an excessively inflated bid price. As the defendant argues, this mistake deterred potential bidders, depriving the defendant of a “bona fide sale” and allowing the plaintiff to acquire the undeveloped parcel for an artificially low price.

The following additional facts are relevant to the resolution of the defendant’s claim. On August 27, 2009, a hearing was held on the committee’s motion to approve the sale of the undeveloped parcel. At that hearing, the court heard testimony from the committee as to the circumstances surrounding the sale of the undeveloped parcel and the information provided by the committee to potential bidders. During the committee’s testimony, the following colloquy took place:

“[The Defendant’s Counsel]: [W]e did have a conversation in which you indicated that there were three parcels involved [with the sale of the undeveloped parcel] in the subdivision and at that time we informed you that there were only two?

“[The Committee]: Yes.

“ [The Plaintiffs Counsel]: [D]id you tell [any potential bidders] that they would have to purchase the [developed] parcel in order to accomplish a subdivision?

“[The Committee]: No. I said that there were three parcels of land that the subdivision encompassed.” (Emphasis added.)

“[T]he applicable standard of review applied to a court’s approval of a committee sale is the abuse of discretion standard.” First Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App. 750, 760, 966 A.2d 239 (2009). As previously noted, “an action of foreclosure is peculiarly equitable and . . . the court exercises discretion in ensuring that justice be done. ... In approving the committee sale, [t]he court must exercise its discretion and equitable powers with fairness not only to the foreclosing mortgagee, but also to . . . the owners [of the foreclosed property]. . . . Most importantly, the court possesses the authority to refuse to confirm sales upon equitable grounds where [the sales are] found to be unfair or the price bid was inadequate.” (Citations omitted; internal quotation marks omitted.) Id., 763. As a corollary, “in a foreclosure by sale, [t]he court is the vendor . . . and the committee of sale is the mere agent of the court. . . . For that reason, whatever discretion the committee may have certainly cannot extend to selling property . . . .” (Citation omitted; internal quotation marks omitted.) Id., 765-66.

We reject the defendant’s claim that the court abused its discretion in approving the foreclosure sale of the undeveloped parcel in light of the information provided by the committee to potential bidders. The defendant’s argument that the committee incorrectly informed bidders that they would need to purchase the developed parcel to bid successfully at the foreclosure sale of the undeveloped parcel is disproved by the transcript of the August 27, 2009 hearing. Indeed, it is clear from the transcript that the committee denied telling bidders that they needed to purchase the developed parcel and only stated that the developed parcel was “involved” with the foreclosure sale. Additionally, there was no evidence offered by the defendant to show that the foreclosure sale of the undeveloped parcel was otherwise unfair or that the sale yielded an inequitable bid price. Thus, we conclude that the court did not abuse its discretion in approving the sale of the undeveloped parcel and, as such, the defendant’s claim fails.

B

Finally, the defendant claims that the court improperly approved the sale of the undeveloped parcel, given evidence of the defendant’s compliance with the parties’ agreement, and improperly refused to hear evidence in this regard during the August 27, 2009 hearing on the committee’s motion for approval.

The only evidence offered in support of this claim is the same written confirmation presented to the court during the March, 2009 hearings and the purported testimony of the adjoining parcel owner as to the timing and transmittal of the written confirmation. Accordingly, at the time the court approved the sale of the undeveloped parcel on August 27, 2009, the defendant had been granted an adequate opportunity to argue that the sale should not proceed given its compliance with the agreement. Because the court had previously rejected the defendant’s argument of compliance on March 9, 2009, we fail to see how the court abused its discretion in approving the sale on August 27, 2009. It bears repeating that at no time did the defendant’s counsel specifically request to offer evidence to refute the plaintiffs claim that the written confirmation had not been received by the plaintiff in accordance with the terms of the parties’ agreement. Accordingly, the defendant’s claim is without merit.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date as to the developed parcel.

In this opinion the other judges concurred.

       The plaintiff was the successful bidder for the undeveloped parcel. At the time that this appeal was filed, the sale of the developed parcel had not yet taken place.

       The six month extension period terminated on November 17, 2008.

       This adjoining parcel was adjacent to the undeveloped parcel.

       Even if we assume that this condition was satisfied, the plaintiff agreed to return the deed for the undeveloped parcel to the defendant should the loan be repaid in full, or, alternatively, record the deed in the event that the defendant failed to repay the loan.

       There was no dispute that the defendant had failed to repay the loan in full by the end of the six month extension. Rather, the main point of contention between the parties during the March, 2009 hearings was what remedy was available to the plaintiff as a result of the defendant’s default.

       A careful review of the record demonstrates that the written confirmation was dated May 23, 2008, and sent to the defendant’s counsel that day via facsimile by counsel for the adjoining parcel owners.

       Although both parties repeatedly use the terms written confirmation and option interchangeably when referring to the condition, there is ample evidence, including argument by both counsel and in the agreement itself, that the condition called only for a written confirmation to sell, not an option to purchase, the adjoining parcel.

       The transcripts disclose that the only time the defendant’s counsel brought the court’s attention to the presence of one of the adjoining parcel owners in the courtroom was during the August 27, 2009 hearing on the committee’s motion to approve the sale of the undeveloped parcel.

       The three parcels referred to by the committee were the undeveloped parcel, the developed parcel and the adjoining parcel. The adjoining parcel was “involved” with the foreclosure sale because at the time of the sale, there was an ongoing dispute as to whether the owners of the adjoining parcel were willing to sell their property in an effort to raise more money to help the defendant pay off the loan. The developed parcel’s “involvement” was more limited in that the defendant had granted easements over the developed parcel to encourage bidder interest by facilitating potential commercial development of the undeveloped parcel.

       The undeveloped parcel was appraised at $155,000 at the time of the March 9, 2009 judgment of foreclosure by sale and sold to the plaintiff for $150,000 on July 11, 2009.


author: PER CURIAM.

text:
    MYRTLE MEWS ASSOCIATION, INC. v. CHARLES BORDES ET AL.
    (AC 31098)
    Beach, Robinson and Borden, Js.
    Argued September 15
    officially released November 9, 2010

      David F. Borrino, for the appellant (defendant Mortgage Electronic Registration Systems, Inc.).

      Brenden P. Ley don, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant Mortgage Electronic Registration Systems, Inc., appeals from the trial court’s judgment in favor of the plaintiff, Myrtle Mews Association, Inc., and, more particularly, from the denial of the defendant’s motion to open the judgment of strict foreclosure. The defendant claims that the court erred in denying its motion to open because the court lacked personal jurisdiction over it as a result of insufficiency of process and insufficient service of process, thus rendering the judgment void. We affirm the judgment of the trial court.

The plaintiff commenced this action on January 11, 2008, to foreclose its statutory lien on property over which the defendant also held a mortgage. The writ of summons named the defendant as “MERS, Inc.,” and was delivered to the Michigan address listed on the defendant’s mortgage deed as it appeared in the land records. On February 19, 2008, the defendant was defaulted for failure to appear.

Subsequently, the plaintiff filed a motion for judgment of strict foreclosure on the property, which was granted on August 11,2008. The law date was scheduled for September 9, 2008. Thereafter, on November 26, 2008, the defendant filed a motion to open the judgment of strict foreclosure, claiming that the judgment was void because the court never acquired personal jurisdiction over it and that the court abused its discretion by ordering a strict foreclosure rather than a foreclosure by sale.

On March 2, 2009, the court held a hearing on the defendant’s motion to open the judgment of strict foreclosure. At this hearing, the court asked the defendant’s counsel, “are you pressing that [the writ of summons and complaint were] served at the wrong address?” In response, the defendant’s counsel stated: “No. I think the court was ready to rule on that issue . . . [b]ut then we raised the equitable issue of whether it should have gone by strict [foreclosure] or [foreclosure by] sale.” The court noted the defendant’s position. The court then denied the defendant’s motion to open the judgment, noting that it was bound to do so pursuant to General Statutes § 49-15. The defendant filed a motion to reargue its motion to open the judgment of strict foreclosure. On April 27, 2009, the court granted the motion to reargue but denied the relief requested. This appeal followed.

In this appeal, the defendant argues that the court erred in denying its motion to open the judgment of strict foreclosure because the court never had acquired personal jurisdiction over it, and, thus, the judgment was void. Specifically, the defendant contends that the delivery of the writ of summons and complaint to Michigan as well as to an address in Florida did not comport with Connecticut’s corporate long arm statute; General Statutes § 33-929; or with General Statutes § 52-57 (c) because the defendant is a Delaware corporation with its principal place of business in Virginia. Furthermore, the defendant contends that the process was insufficient because the summons listed its name as “MERS, Inc.,” instead of “Mortgage Electronic Registration Systems, Inc.,” and that the incorrect address was listed on the writ of summons. The plaintiff contends, however, that the defendant consented to personal jurisdiction and, thus, this appeal is moot because the law days have run and title has vested. Under the circumstances of this case, we disagree with the plaintiffs claim.

We first set forth our standard of review. Because a challenge to the personal jurisdiction of the trial court is a question of law, our review is plenary. See Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007). Although the court’s conclusions are subject to plenary review, “[questions of fact are subject to the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Nascimento v. Connecticut Life & Casualty Ins. Co., 108 Conn. App. 447, 450, 947 A.2d 1057, cert. denied, 289 Conn. 910, 957 A.2d 872 (2008).

Generally, a judgment of strict foreclosure cannot be opened after title has become absolute in an encumbrancer. See General Statutes § 49-15 (a) (providing in relevant part that “[a]ny judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein and for cause shown, be opened and modified . . . but no such judgment shall be opened after the title has become absolute in any encumbrancer”). Here, the title became absolute in the plaintiff because the defendant neither redeemed the property nor filed a motion to open until after the passing of the law days. See City Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16, 25, 179 A. 339 (1935) (“[w]here a foreclosure decree has become absolute by the passing of the law days, the outstanding rights of redemption have been cut off and the title has become unconditional in the [encumbrancer]”).

“It is axiomatic [however] that a court cannot render a judgment without first obtaining personal jurisdiction over the parties. No principle is more universal than that the judgment of a court without jurisdiction is a nullity. . . . Such a judgment . . . may always be challenged. ... [A] defect in process . . . implicates personal jurisdiction . . . .” (Citation omitted; internal quotation marks omitted.) Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008). The defendant claims that the court erred in denying its motion to open because the court did not obtain personal jurisdiction over the defendant and thus the judgment of strict foreclosure was void.

We cannot consider the defendant’s claim that the trial court lacked personal jurisdiction to render judgment because the record is inadequate for review. Practice Book § 64-1 (a) mandates that a trial court must disclose the factual bases of its decision. “Where a transcript of an oral decision of the trial court fails to set forth the factual basis of the trial court’s decision, the [burden is on the appellant to] perfect the record on appeal either by filing a motion to compel the trial court to file a memorandum of decision ... or by filing a motion for articulation .... [T]his court will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the [appellant’s] claim.” (Citations omitted; internal quotation marks omitted.) State v. Wilson, 111 Conn. App. 614, 621, 960 A.2d 1056 (2008), cert. denied, 290 Conn. 917, 966 A.2d 234 (2009).

Here, the record is devoid of factual findings that would allow us to make a determination regarding personal jurisdiction. The trial court made no findings relating to the defendant’s state of incorporation or principal place of business, both of which are essential to making a determination regarding personal jurisdiction. As this court has stated, “ [without any specific findings of fact ... we cannot determine the basis of the court’s ruling and thus cannot review the merits of [a] defendant’s claim.” (Internal quotation marks omitted.) Id.

The judgment is affirmed.

       The other defendant in this action is Charles Bordes. Bordes owned the property at issue over which Mortgage Electronic Registration Systems, Inc., held a mortgage. Bordes was defaulted for a failure to appear and did not appeal from the judgment, and Mortgage Electronic Registration Systems, Inc., is the only defendant involved in this appeal. We therefore refer in this opinion to Mortgage Electronic Registration Systems, Inc., as the defendant.

       On December 30,2007, the writ of summons and complaint were accepted at the Michigan address and were then forwarded to the defendant’s Florida address, where they also were signed for and accepted.

       General Statutes § 49-15 (a) provides in relevant part that “no . . . judgment [of strict foreclosure] shall be opened after the title has become absolute in any encumbrancer.”

       The plaintiff argues that the defendant consented to the personal jurisdiction of the trial court. It is well established that “[ujnlike subject matter jurisdiction . . . personal jurisdiction may be created through consent or waiver.” (Internal quotation marks omitted.) Phoenix Leasing, Inc. v. Kosinski, 47 Conn. App. 650,653, 707 A.2d 314 (1998). The record seems to suggest that the defendant stated to the trial court that it was not contesting the issue of service of process. The record, however, is somewhat vague regarding this issue. Because we conclude that the record is inadequate to review the defendant’s claim, we need not address the plaintiffs consent argument.

       Accordingly, we do not address the defendant’s claim that the court abused its discretion by ordering a strict foreclosure rather than a foreclosure by sale.


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. MARCUS DUFFUS
    (AC 30974)
    DiPentima, C. J., and Beach and Hennessy, Js.

      Argued September 8
    officially released November 9, 2010

      David R. Gronbach, for the appellant (defendant).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anthony Bochicchio, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Marcus Duffus, appeals from the judgment of conviction rendered following his conditional plea of nolo contendere to possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b). The defendant claims that the trial court erred in denying his motion to suppress certain evidence seized from his vehicle because (1) the police did not have probable cause to justify a warrantless search of his vehicle, (2) the consent he gave to search his vehicle was invalid because it was obtained as the result of an unlawful detention and (3) the evidence thereafter seized from his vehicle was the fruit of a Miranda violation. We affirm the judgment of the trial court.

On August 29, 2008, the defendant filed a motion to suppress evidence seized from his vehicle by officers of the Hartford police department and the state police on April 9, 2008. The defendant argued that the search of his vehicle violated both his state and federal constitutional rights. On March 23 and 27, 2009, the court held evidentiary hearings on the defendant’s motion to suppress; the court issued a memorandum of decision on May 26, 2009, denying the motion.

In its memorandum of decision denying the defendant’s motion to suppress, the court set forth the following findings of fact: “On April 9, 2008, [Daniel] Villegas, a [detective with] the Hartford police department with two years of experience on the statewide narcotics task force, received a call on his cellular telephone from a confidential informant. The informant gave . . . Villegas the defendant’s name and stated [that] the defendant had been picked up by the Bloomfield police on a domestic warrant. The informant stated that he (or she) had a recent conversation with the defendant. Based on that conversation, the informant learned that the defendant, after his release from the Bloomfield police department, was going to get a ride to Wawarme Avenue in Hartford to pick up his vehicle — a gray, four door Lexus with the license plate number 174 WPN. According to the informant, the defendant said that he was going to sell the 3.5 kilo [grams] of cocaine that were being stored in the trunk of his vehicle. The informant told . . . Villegas that the defendant was on his way to Wawarme Avenue ‘right now.’

“The confidential informant was not a ‘registered’ informant with the police. His ... or her . . . identity was passed on to . . . Villegas from another officer. . . . Villegas had worked with the informant for six to eight months prior to the April 9 telephone call and had met personally with the informant on several occasions. During that time, the information provided by the informant resulted in the surveillance of the defendant conducting ‘street sales’ of narcotics. Prior to the arrest of the defendant, the informant had not provided any information leading to an arrest, seizure or conviction.

“After speaking with the informant . . . Villegas called Hartford patrol via his police radio— . . . Villegas testified that he called Hartford patrol because the defendant had been ‘stopped in Hartford’ prior to being picked up by the Bloomfield police — to verify that the defendant had been arrested by the Bloomfield police on a warrant. . . . Villegas then called Hartford police to request assistance for the verification of the location of the defendant’s vehicle and for surveillance. . . . Mark Rinaldi [a detective with the Hartford police] responded to the call and located a Lexus, matching the description provided by the informant, parked on Wawarme Avenue. After approximately fifteen minutes of surveillance, Rinaldi observed a gray Honda with a female driver stop near the Lexus. He then observed the defendant exit the passenger side of the Honda. The defendant [then] walked toward the Lexus and opened the door of the vehicle with a key. The defendant was sitting down in the driver’s seat, with his legs outside of the vehicle, when . . . Rinaldi approached and identified himself as a police officer. . . .

“Rinaldi asked the defendant for identification, and the defendant provided Rinaldi with his Connecticut driver’s license. Shortly thereafter . . . Rinaldi asked the defendant to step outside of the vehicle and conducted a patdown search [of the defendant] for weapons. No weapons were found. . . . Rinaldi then placed the defendant in handcuffs for officer safety. The defendant was not placed in a patrol car, [and Rinaldi explained to the defendant that he was not under arrest]. Minutes later . . . Villegas, who was accompanied by . . . Ian Case, [a detective with the state police] arrived on the scene. . . . Rinaldi then stepped aside so . . . Villegas and Case could proceed with the investigation.

“After his arrival at the scene . . . Villegas spoke with the defendant. The defendant told . . . Villegas that he had just been released from the Bloomfield police department, where he had been detained on a domestic warrant. The defendant further stated that his girlfriend gave him a ride from Bloomfield to the current location. . . . Villegas told the defendant that he presently was being detained as a result of a narcotics investigation. He asked the defendant if the Lexus belonged to him. The defendant stated that the Lexus was not his vehicle but that he was using it because he is a clothing vendor. When . . . Villegas asked to see the vehicle registration, however, the defendant admitted that the Lexus belonged to him. . . . Villegas [then] asked the defendant if he would consent to a search of the vehicle and sign a consent to search form. The defendant agreed to both and stated that he had only clothes in the car. . . . Case then approached the defendant and asked if he could conduct a search with his canine. The defendant again agreed to the search. The defendant was not provided with a consent to search form at that time, although . . . Villegas had one in his police vehicle that was on the scene. . . .

“Case proceeded to walk his canine around the Lexus. The canine twice alerted to the exterior of the vehicle’s trunk. When the trunk was opened, the canine jumped into the trunk and alerted to the area of the spare tire wheel well, which was covered by a suitcase containing clothing. . . . Villegas pushed the suitcase aside, and the canine alerted to two plastic bags. . . . Villegas opened the bags and observed what appeared to be kilo-sized packages of narcotics and a large amount of United States currency [approximately $29,000] ....

“Villegas approached the defendant and informed him that the canine alerted to plastic bags in the trunk of the vehicle. . . . Villegas then provided the defendant with a consent to search form, which the defendant declined to sign. The defendant was then advised of his Miranda rights.”

On the basis of these findings, the court denied the defendant’s motion to suppress, holding that the search was supported by probable cause sufficient to satisfy the automobile exception to the warrant requirement and that the defendant voluntarily had consented to the search. On March 30,2009, the defendant entered a plea of nolo contendere, conditioned on his right to appeal from the court’s denial of his motion to suppress. The court accepted the defendant’s plea and determined that denial of the motion to suppress was dispositive of the case. The court then sentenced the defendant to fifteen years incarceration, execution suspended after seven years, followed by five years of probation. This appeal followed.

I

The defendant first claims that the court erred in determining that the search of his vehicle was permissible pursuant to the automobile exception to the warrant requirement. The defendant argues that the information provided by the confidential informant was insufficient to support a finding of probable cause, and, thus, the evidence seized from his vehicle should have been suppressed as the fruit of an unlawful search. We disagree.

We begin with the well established principles governing the standard of review for a motion to suppress. “It is axiomatic that [u]nder the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. ... As a general matter, the standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]hen a question of fact is essential to the outcome of a particular legal determination that implicates a defendant’s constitutional rights, [however] and the credibility of witnesses is not the primary issue, our customary deference to the trial court’s factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court’s factual findings are supported by substantial evidence. . . . [W]here the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Citation omitted; internal quotation marks omitted.) State v. Boyd, 295 Conn. 707, 717, 992 A.2d 1071 (2010).

We next review the court’s denial of the defendant’s motion to suppress. “The [f]ourth [a]mendment to the United States constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures. Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause. [A] search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions. . . . These exceptions have been jealously and carefully drawn . . . and the burden is on the state to establish the exception.” (Internal quotation marks omitted.) State v. Johnson, 286 Conn. 427, 434, 944 A.2d 297, cert. denied, 555 U.S 883, 129 S. Ct. 236, 172 L. Ed. 2d 144 (2008). One such exception is the automobile exception. In Carroll v. United States, 267 U.S. 132, 153, 155-56, 45 S. Ct. 280, 69 L. Ed. 543 (1925), the United States Supreme Court held that, due to the inherent mobility of vehicles, it is permissible under that exception to the warrant requirement of the fourth amendment to conduct a warrantless search of an automobile for criminal evidence or contraband so long as the search is supported by probable cause.

“Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched. . . . The determination of whether probable cause exists under the fourth amendment to the federal constitution, and under article first, § 7, of our state constitution, is made pursuant to a totality of circumstances test. . . . Under the Gates test, a court must examine all of the evidence relating to the issue of probable cause and, on the basis of that evidence, make a commonsense, practical determination of whether probable cause existed. . . . We have said that the question is whether there was a fair probability that the contraband was within the place to be searched.” (Citations omitted; internal quotation marks omitted.) State v. Smith, 257 Conn. 216, 223, 777 A.2d 182 (2001). “Where . . . the police relied on information provided to them by an informant, an examination of the informant’s reliability (or veracity) and the basis of his or her knowledge should be regarded as highly relevant in determining whether, under the ‘totality of the circumstances,’probable cause existed.’’State v. Orellana, 89 Conn. App. 71, 81, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005).

Here, the record supports a finding that the confidential informant was reliable. First, the confidential informant was not anonymous. The fact that an informant’s identity is known to police carries substantial weight in assessing reliability because “the informant could expect adverse consequences if the information that he provided was erroneous. Those consequences might range from a loss of confidence or indulgence by the police to prosecution for the class A misdemeanor of falsely reporting an incident under General Statutes § [53a-180c], had the information supplied proved to be a fabrication.” State v. Barton, 219 Conn. 529, 550-51, 594 A.2d 917 (1991). Furthermore, prior to this case Villegas had worked with the informant for approximately eight months, and they consulted in person on multiple occasions. This is significant because it afforded Villegas the opportunity personally to examine the informant’s demeanor and to make an informed determination regarding the informant’s credibility. See State v. Batts, 281 Conn. 682, 704, 916 A.2d 788, cert. denied, 552 U.S. 1047, 128 S. Ct. 667, 169 L. Ed. 2d 524 (2007). The informant also had provided information leading to Villegas’ observing the defendant engaging in prior street sales of narcotics.

The fact that the police were able to corroborate the informant’s information further supports an inference that the informant was reliable. State v. Smith, supra, 257 Conn. 226 (“[p]olice investigation confirming details of [an] informant’s report may establish that the informant obtained the information in a reliable way”). Here, the informant told Villegas that the defendant just had been released by the Bloomfield police after having been picked up on a domestic warrant, and Villegas immediately confirmed that fact with Hartford police. The informant also gave Villegas the description, location and license plate number of the vehicle, all of which were confirmed by Rinaldi before Villegas arrived at the scene. Corroboration of such specific and timely information supports a finding that the informant was reliable.

The record also shows that the informant had a basis of knowledge regarding his information sufficient to sustain a finding of probable cause. Our Supreme Court has stated that “the surest way to establish a basis of knowledge is by a showing that the informant is passing on what is to him first-hand information . . . [as] when a person indicates he has overheard the defendant planning or admitting criminal activity . . . .” (Internal quotation marks omitted.) State v. Johnson, supra, 286 Conn. 440. Here, the informant reported to Villegas that his or her information came directly from a conversation he or she had with the defendant prior to calling Villegas. The informant’s basis of knowledge was known.

On the basis of the record, we conclude that the totality of the circumstances suggests that the police had probable cause to conduct a warrantless search of the defendant’s vehicle. In light of the detailed information provided by the informant, which was corroborated by the police, the informant’s basis of knowledge regarding the information, and the fact that Villegas knew and had worked with the informant in the past, there was probable cause to believe that contraband would be found in the defendant’s vehicle. Accordingly, we conclude that the court properly held that the search of the defendant’s vehicle was constitutionally permissible pursuant to the automobile exception to the warrant requirement.

II

The defendant next claims that the consent he gave to search his vehicle was invalid because it was obtained as the result of an unlawful detention. Specifically, the defendant argues that his being placed in handcuffs amounted to a de facto arrest that was not supported by probable cause, and, thus, his consent should be invalidated as a fruit of an unlawful detention. We conclude that, because the automobile exception to the warrant requirement justified the search of the defendant’s vehicle, the issue of consent need not be addressed.

“[The] . . . four recognized situations where a warrantless search of a car may lead to the conclusion that such a search was reasonable under the United States or [Connecticut constitution] . . . are: (1) it was made incident to a lawful arrest; (2) it was conducted when there was probable cause to believe that the car contained contraband or evidence pertaining to a crime; (3) it was based upon consent; or (4) it was conducted pursuant to an inventory of the car’s contents incident to impounding the car.” (Emphasis added; internal quotation marks omitted.) State v. Wilson, 111 Conn. App. 614, 622-23, 960 A.2d 1056 (2008), cert. denied, 290 Conn. 917,966 A.2d 234 (2009). Only one of these exceptions must be satisfied in order to conform to the mandates of the fourth amendment. As we held in part I of this opinion, the search of the defendant’s vehicle was supported by probable cause. The warrantless search of the defendant’s vehicle and the seizure of the items found inside the trunk was constitutionally valid pursuant to the automobile exception, and, thus, the court properly denied the defendant’s motion to suppress. Accordingly, we need not consider the applicability of other exceptions to the warrant requirement. See id., 626.

HI

Finally, the defendant claims that the evidence obtained from the search should have been suppressed because it was an inadmissible fruit of a Miranda violation. See United States v. Patane, 542 U.S. 630, 633-34, 124 S. Ct. 2620, 159 L. Ed. 2d 667 (2004). The defendant asks this court to afford greater rights under article first, § 8, of the Connecticut constitution than are afforded under the federal constitution and to hold that physical evidence seized as the result of a Miranda violation should be inadmissible in court.

“As a general principle, the exclusionary rule bars the government from introducing at trial evidence obtained in violation of the fourth amendment to the United States constitution.” (Internal quotation marks omitted.) State v. Brunetti, 279 Conn. 39, 72, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007). This rule “extends to evidence that is merely derivative of . . . unlawful [police] conduct, or what is known as the fruit of the poisonous tree.” (Internal quotation marks omitted.) Id. Our Supreme Court has held that, when adjudicating the issue of fruit of the poisonous tree, the question is “whether, granting establishment of the primary illegality, the evidence to which the objection is made has been come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable . . . .” (Internal quotation marks omitted.) Id., 73.

Even if we were to assume that the defendant’s Miranda rights were violated and that the exclusionary rule applies to physical evidence seized as the result of a Miranda violation, his claim would still fail. As we stated in part I of this opinion, the police had probable cause to search the defendant’s vehicle before they questioned him. The only information conceivably gained through the use of the postdetention questioning was confirmation of the defendant’s ownership of the vehicle and, arguably, consent to search it. The defendant’s consent to the search of his vehicle and his admission of ownership, however, added nothing to the finding of reasonableness; the police already had a constitutionally permissible basis to search the vehicle, probable cause, before any questioning occurred. Accordingly, the evidence was obtained by means of a constitutionally permissible search, not by an exploitation of a Miranda violation. The search, thus, could not have been the fruit of a Miranda violation.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides in relevant part that “ [w]hen a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss . . . .”

       The defendant also had been charged with possession of narcotics in violation of General Statutes § 21a-279 (a) and possession of narcotics with intent to sell within 1500 feet of a public school in violation of General Statutes § 21a-278a (b). The state entered a nolle prosequi as to those charges.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The court stated that “Villegas did not disclose the identity of the informant in his incident report or at the hearing on the motion.”

       The court stated that “[a]t the hearing on the motion . . . Villegas produced, upon the request of the defendant, notes he had pertaining to his work with the confidential informant. The court reviewed the notes and questioned . . . Villegas to determine whether the notes should be disclosed to the defendant. After consideration by the court, the notes were not disclosed to the defense.”

       The court stated that “[according to . . . Villegas’ testimony, the defendant declined to sign the consent to search form after the canine alerted in the trunk of the vehicle . . . but before the drugs actually were discovered. In the incident report, however . . . Villegas indicated that the defendant declined to sign the form after the drugs were found. The testimony and incident report are consistent, however, in that the defendant twice provided oral consent to search the vehicle, and agreed to sign the consent to search form, before ultimately declining to sign the form.” (Emphasis in original.)

       Here, the defendant’s appeal is limited to a challenge of the court’s legal conclusions. Thus, our review is de novo.

       See Illinois v. Gates, 462 U.S. 213, 230-32, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).

       The defendant argues that we must consider the issue of consent because the police testified that the search of the defendant’s vehicle was based solely on consent, and, thus, any alternative grounds to justify the search are irrelevant. First, the defendant’s claim is factually inaccurate. Although Villegas stated that he did not obtain a warrant to search the vehicle because the defendant gave his consent, nothing in the record indicates that Villegas believed that the search was not justified pursuant to probable cause.
      Furthermore, even if Villegas did base his search solely on the defendant’s consent, his subjective intent is irrelevant. It is well established that “[a]n action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’ . . . The officer’s subjective motivation is irrelevant.” (Citation omitted.) Brigham City v. Stuart, 547 U.S. 398, 404, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006).

       We, by no means, suggest that there was, on the facts of this case, custodial interrogation such that the duty to give Miranda warnings was triggered, nor do we discuss the effect of Patane on this jurisdiction’s law of criminal procedure. On the facts of this case, these issues need not be addressed.


text:
    LASALLE BANK, N.A., TRUSTEE v. HANK S. RANDALL ET AL.
    (AC 31489)
    Beach, Robinson and Mihalakos, Js.
    Argued September 17
    officially released November 9, 2010

      HughJ. Lavery, for the appellant (named defendant).

      Jeffrey M. Knickerbocker, for the appellee (substitute plaintiff).
   Opinion

PER CURIAM.

The defendant Hank S. Randall appeals from the judgment of the trial court approving the sale of certain real property after a judgment of foreclosure by sale. The defendant claims that the court improperly approved the sale on the motion of the committee of sale because the foreclosing lender, the substitute plaintiff, LaSalle Bank, N.A., Trustee, submitted an inflated appraisal that discouraged other bidders and allowed the plaintiff to purchase the property for a bid price that was inadequate and inequitable. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The plaintiff commenced the underlying foreclosure action in March, 2001, on the property of the defendant, located at 53 River Road in Washington. Between 2001 and 2009, multiple judgments of foreclosure by sale were rendered by the court. The defendant avoided the sale of the property by filing various motions to open the judgments and by declaring multiple bankruptcies.

On January 26, 2009, the court, Roche, J., ordered a foreclosure by sale to take place on July 18, 2009. The court found the debt owed by the defendant to be $835,307.54 and the fair market value of the property at that time to be $2.2 million. A deposit amount of $220,000 was set. The committee appointed to conduct the sale hired an appraiser. The appraisal, dated July 6, 2009, valued the property at $1.1 million. The plaintiff submitted the only bid and, on July 22,2009, the committee moved for approval of the sale to the plaintiff for $874,724.11. On August 10, 2009, the defendant objected, arguing that the bid price was inadequate and inequitable. Rejecting the defendant’s argument, on August 31, 2009, the court approved the sale. The defendant has appealed.

On appeal, the defendant claims that the court abused its discretion when it accepted the plaintiffs bid because the elevated appraisal and deposit requirement deterred potential competing bids. We decline to review the defendant’s claims because he has failed to provide an adequate record.

The defendant has failed to refer this court to factual findings in the record that substantiate his claim that an improperly elevated appraisal and deposit price deterred potential buyers. “[I]t is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. . . . [A]n appellate tribunal cannot render a decision without first fully understanding the disposition being appealed. . . . Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court.” (Internal quotation marks omitted.) Stutz v. Shepard, 279 Conn. 115, 125-26, 901 A.2d 33 (2006); see Practice Book § 61-10.

In the present case, the court made no specific findings as to whether any bidder was actually precluded from bidding as a result of the appraisal and required deposit, nor did the defendant request a reduction of the $220,000 deposit requirement. After he filed his appellate brief, the defendant filed in this court a motion for permission to file a late motion for articulation in the trial court. We denied the motion for permission, because it was filed well after the time allowed by our rules. We are left without an effective motion for articulation. “We, therefore, are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) New Haven Savings Bank v. Mongillo, 67 Conn. App. 799, 802, 789 A.2d 547 (2002). Finally, other than the defendant’s bald assertions, there is nothing in the record to indicate that the appraisal process was flawed. In the absence of a motion for articulation, or factual findings by the trial court, or indeed any evidence on which the trial court could have found that any potential bidder was dissuaded from bidding because of the amount of the deposit, we have no basis on which to address the merits of the defendant’s claim.

The judgment is affirmed.

       Denise Randall, W.W. Rothmann Company, Inc., the Metcalf Paving Company, Inc., Dean Lindsay, Lloyd Lindsay, New Milford Hospital, Inc., Charlotte Hungerford Hospital, Bantam Supply Company and Melanie Lay are also defendants in this matter. Because Hank S. Randall is the only defendant involved in this appeal, however, we refer to him in this opinion as the defendant.

       When this action was commenced, LaSalle National Bank, in its capacity as trustee, was the plaintiff. Thereafter, LaSalle Bank, N.A., Trustee, was assigned the mortgage and substituted as the plaintiff in the action. Hereafter, we refer to LaSalle Bank, N.A., Trustee, as the plaintiff.

       Practice Book § 61-10 provides: “It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this section, the term ‘record’ is not limited to its meaning pursuant to Section 63-4 (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.”

       The only mention in the record is the speculation of the committee that perhaps bidders were dissuaded. There was no admissible evidence before the court that any bidder was dissuaded.


text:
    WILFRED J. MEGIN v. TOWN OF NEW MILFORD
    (AC 31238)
    Gruendel, Harper and Flynn, Js.
    Argued September 13
    officially released November 9, 2010

      Max F. Brunswick, with whom, on the brief, was Wilfred J. Megin, pro se, for the appellant (plaintiff).

      John D. Tower, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Wilfred J. Megin, appeals from the judgment of the trial court dismissing his municipal tax appeal against the defendant, the town of New Milford. He contends that the court improperly dismissed the appeal for lack of subject matter jurisdiction. We affirm the judgment of the trial court.

This appeal concerns a parcel of land located at 64 Old Town Park Road in New Milford (property). On October 1, 2004, the town assessor valued the property at $60,200, which resulted in an assessment of $42,140. The plaintiff challenged that determination before the New Milford board of assessment appeals, which declined to reduce the assessment, and an appeal to the Superior Court followed.

At trial, the defendant moved to dismiss the action for lack of subject matter jurisdiction. Specifically, the defendant submitted that because the property was owned by “Wilfred J. Megin, Trustee,” the plaintiff lacked standing to maintain the tax assessment appeal. The court agreed, concluding that “[t]he present appeal was brought in the name of someone who does not own the property. The property is assessed in the name of the owner, and the appeal should have been brought by the owner. The failure to have the appeal brought by Wilfred J. Megin, Trustee, deprives the court of subject matter jurisdiction over this appeal because [the plaintiff], as an individual, lacks standing.” The court therefore dismissed the matter and this appeal followed.

It is well established that “[a] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim.” (Internal quotation marks omitted.) Lewis v. Slack, 110 Conn. App. 641, 643, 955 A.2d 620, cert. denied, 289 Conn. 953, 961 A.2d 417 (2008). “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Sadloski v. Manchester, 228 Conn. 79, 84, 634 A.2d 888 (1993), on appeal after remand, 235 Conn. 637, 668 A.2d 1314 (1995). “[T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. . . . Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause. . . . Our review of the question of [a] plaintiffs standing is plenary.” (Citations omitted; internal quotation marks omitted.) Lewis v. Slack, supra, 643-44.

Connecticut law provides an avenue of appeal from the decision of a municipal tax agency. As we recently stated, “[General Statutes §§] 12-117aand 12-119 clearly create causes of action for taxpayers who have been aggrieved by excessive and wrongful valuation of their property. Section 12-117a provides taxpayers with an opportunity to appeal to the Superior Court upon an allegation that their property tax assessment is excessive.” (Emphasis added.) Massey v. Branford, 119 Conn. App. 453, 460-61, 988 A.2d 370, cert. denied, 295 Conn. 921, 991 A.2d 565 (2010). At the same time, “[t]he general rule is that one party has no standing to raise another’s rights.” Sadloski v. Manchester, 235 Conn. 637, 643, 668 A.2d 1314 (1995). In the present case, the plaintiff does not dispute the court’s finding that he is not the record owner of the property. He further advances no claim that he possessed standing to pursue the appeal in his individual capacity.

Instead, the plaintiff argues that the defendant should be collaterally estopped from raising the issue of his standing in light of a tax foreclosure proceeding between the parties that allegedly occurred several years ago concerning the property. Because the defendant allegedly instituted that action against him in his individual capacity, the plaintiff claims that its conduct therein should be afforded preclusive effect.

The doctrine of collateral estoppel expresses “the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest. . . . Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 32, 633 A.2d 1368 (1993). In addressing the plaintiffs collateral estoppel contention, the court found that “there is no credible evidence concerning the prior [tax] foreclosure case. ... It seems clear that the prior action never went to judgment. If it had, there would be a record of the judgment, which the plaintiff could have offered as evidence.” (Citation omitted.) Likewise, the record before us contains no evidence whatsoever that the tax foreclosure action actually was decided. The court thus properly concluded that the doctrine of collateral estoppel has little bearing on the present dispute.

The plaintiff also asserts that his appeal “should be governed” by Isaac v. Mount Sinai Hospital, 210 Conn. 721, 557 A.2d 116 (1989). Isaac involved a wrongful death action that was “dismissed for lack of subject matter jurisdiction because, at the time such original action was commenced, the individual bringing suit had not been appointed administratrix of the estate by the probate court.” Id., 723. A second action thereafter was commenced pursuant to the accidental failure of suit statute, General Statutes § 52-592. The trial court dismissed that second action for lack of subject matter jurisdiction and this court affirmed that determination, concluding that “a wrongful death action under [General Statutes] § 52-555 may be maintained only by an executor or administrator of an estate, and at the time she brought suit the plaintiff was neither.” Id., 724.

In reversing that judgment, our Supreme Court framed the issue before it as “whether the accidental failure of suit statute authorized the bringing of the second [wrongful death] action.” Id., 726. The court answered that query in the affirmative. Id., 733. In so doing, it rejected the defendants’ contention that the accidental failure of suit statute was “inapplicable because the plaintiff in the first suit is not the same plaintiff as in the subsequent suit” and noted that “[t]he fact that Deborah Isaac in the first case was not, in fact, the administratrix of the estate of Redgnard Isaac does not destroy the identity of interest but merely paves the way for the plaintiffs invocation of § 52-592. [A] change of parties does not preclude an application of [a saving] statute where the change is merely nominal or the interest represented in the renewed action is identical with that in the original action. ... In light of the remedial purpose of § 52-592, we conclude that total identity of plaintiffs is not a prerequisite to application of the statute. We look, instead, to the essence of the plaintiffs status and the interest she represented. Deborah Isaac was the purported administratrix of Redgnard Isaac’s estate in the first instance and the actual administratrix in the second case. The cause of action and the claimed factual background, as well as all defendants, were identical in both instances. Accordingly, application of § 52-592 to this case is not precluded.” (Citation omitted; internal quotation marks omitted.) Id., 732-33.

The plaintiffs exhortations aside, Isaac is inapposite to the present case. This appeal does not involve an action instituted pursuant to the accidental failure of suit statute. It involves a municipal tax appeal commenced by an individual who concededly is not the record owner of the assessed property. As our Supreme Court has observed, “[plaintiffs are not fungible, even if they are represented by the same attorney and have similar interests.” Sadloski v. Manchester, supra, 235 Conn. 643. Because the plaintiff failed to demonstrate the requisite aggrievement under § 12-117a, the court properly dismissed the appeal for lack of subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-592 provides in relevant part: “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because . . . the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment. . . .
      “(c) If an appeal is had from any such judgment to the Supreme Court or Appellate Court, the time the case is pending upon appeal shall be excluded in computing the time as above limited.”

       We express no opinion as to the viability of an action under § 52-592.