author: HENNESSY, J. LAVERY, J.,

text:
    YEONG GIL KIM ET AL. v. DOMINICK MAGNOTTA ET AL.
    (AC 16509)
    Lavery, Hennessy and Daly, Js.

      Argued December 12, 1997
    officially released June 23, 1998

      Edward T. Krumeich, for the appellants-appellees (plaintiffs).

      Howard I. Gemeiner, for the appellee-appellant (named defendant).
   Opinion

HENNESSY, J.

The plaintiffs, Yeong Gil Kim and Hi-Soon Seo Kim, appeal from the trial court’s denial of their motion for rescission of the underlying stipulated judgment. The named defendant, Dominick Magnotta, cross appeals from the denial of his motion for a directed verdict and his motion to set aside the jury verdict of a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

On December 5, 1989, the plaintiffs purchased a car wash business from Raindance, Inc., a corporation owned and controlled by the defendant, for a purchase price of $903,000. In addition, the plaintiffs entered into a twenty-five year lease of the premises, fixtures and personalty located at 938 West Main Street, Bran-ford, with a monthly rental payment of $3000.

The plaintiffs operated the Branford car wash for the next eighteen months, during which time they fell into arrears on both the rent and note payments. The defendant subsequently brought a summary process action against the plaintiffs. The plaintiffs stipulated to the entry of judgment against them in the amount of $436,743.49 owed under the note, $294.10 in costs, $11,854.69 in rental payments owed and the voluntary surrender of possession of the Branford car wash to the defendant.

On December 4, 1992, the plaintiffs filed a complaint against the defendant for fraud, theft and violation of CUTPA. The complaint alleged that the plaintiffs were induced into purchasing the car wash by the fraudulent misrepresentations of the defendant as to the volume of cars serviced, operating expenses, and past and future gross earnings. In addition, the plaintiffs claim that while the summary process action was pending, the defendant offered to settle if the plaintiffs voluntarily surrendered possession of the Branford car wash and stipulated to the entry of judgment for the full amount due under the note. In exchange, the defendant would forgive all debts relating to the Branford car wash, including the release of the stipulated judgment, pay the attorney’s fees the plaintiffs incurred in connection with the summary process action and transfer title to another car wash located in Hamden to the plaintiffs. The plaintiffs agreed and a stipulated judgment was entered. The plaintiffs claim that the defendant failed to forgive all debts owed, to pay all attorney’s fees and to transfer title to the Hamden car wash.

The case was bifurcated at trial, with the jury deciding the issue of liability on all counts and the trial court deciding the remedy should the plaintiffs prevail. On August 25, 1995, the jury returned a verdict in favor of the defendant on the counts of fraud and theft, and in favor of the plaintiffs on the count of a violation of CUTPA. The defendant cross appeals from the denial of his motion for a directed verdict and his motion to set aside the verdict in connection with the CUTPA claim.

The trial court then considered the issue of relief. The plaintiffs requested restitution, rescission of the stipulated judgment, punitive damages and attorney’s fees. The court found that restitution was the proper remedy and rendered judgment in the amount of $483,000. The court declined to rescind the stipulated judgment, reasoning that the four month limitation provided in General Statutes § 52-212a and Practice Book § 326 operated as a bar, absent a showing of fraud, duress, accident or mistake. The jury declined to find fraud, and the court found no duress, accident or mistake. The plaintiffs appeal from the denial of their request for rescission.

I

The plaintiffs claim that the trial court improperly denied their request for rescission of the stipulated judgment. They claim that the court had jurisdiction to rescind the stipulated judgment and that rescission was an appropriate equitable remedy for a CUTPA violation. We disagree.

“A stipulated judgment is not a judicial determination of any litigated right. New York Cent. & H. R. R. Co. v. T. Stuart & Son Co., 260 Mass. 242, 248, 157 N.E. 540 [1927]; Dulles v. Dulles, 369 Pa. 101, 107, 85 A.2d 134 [1952]. It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. Owsiejko v. American Hardware Corporation, 137 Conn. 185, 187, 75 A.2d 404 [1950]; Risk v. Director, 141 Neb. 488, 496, 3 N.W.2d 922 [1942], [It is] the result of a contract and its embodiment in a form which places it and the matters covered by it beyond further controversy. 3 Freeman, Judgments (5th Ed.) p. 2774. The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement. Harter v. King County, 11 Wash. 2d 583, 591, 119 P.2d 919 [1941].” (Internal quotation marks omitted.) Gillis v. Gillis, 214 Conn. 336, 339-40, 572 A.2d 323 (1990).

General Statutes § 52-212a provides that “[u]nless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .” Practice Book § 326, now Practice Book (1998 Rev.) § 17-4, is essentially the same as § 52-212a. See footnote 6. It is well recognized that a failure to file a motion to open a judgment within four months deprives the trial court of jurisdiction to open the judgment. See Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 558, 468 A.2d 1230 (1983); Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 465, 440 A.2d 159 (1981). “In Celanese Fiber, our Supreme Court held that a trial court lacked jurisdiction to open the judgment unless the otherwise provided by law exception applies. Celanese Fiber v. Pic Yarns, Inc., supra, 465. Unless the parties waive this time limitation, the trial court lacks jurisdiction to entertain a motion to open filed more than four months after a decision is rendered. Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 518, 494 A.2d 549 (1985); Gallagher v. Gallagher, 29 Conn. App. 482, 483, 616 A.2d 281 (1992).” (Internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Tarro, 37 Conn. App. 56, 59, 654 A.2d 1238 (1995).

“There are few exceptions to the general rule. The court does have jurisdiction to open a stipulated judgment, on a motion, even after the four month period has elapsed if the movant can show that the judgment was obtained by fraud, duress, accident or mistake. Solomon v. Keiser, 22 Conn. App. 424, [427] 577 A.2d 1103 (1990). Accordingly, Practice Book § 326 does not prevent the later reopening of a judgment obtained by fraud, by mutual mistake or by actual absence of consent. Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980).” Citicorp Mortgage, Inc. v. Tarro, supra, 37 Conn. App. 59.

In the present case, the plaintiffs failed to file a motion to open the stipulated judgment and to request rescission within four months of the entry of judgment. In the absence of fraud, mistake, duress or accident, the trial court was without jurisdiction to order rescission of the stipulated judgment.

The plaintiffs raise three arguments to support their claim that the trial court had jurisdiction to rescind the stipulated judgment. Each is without merit. First, the plaintiffs assert that § 52-212a and Practice Book § 326 do not apply to their request for rescission of the stipulated judgment because they did not make the request through a motion to open or set aside the judgment. The plaintiffs misconstrue the language of those two sections. Contrary to the plaintiffs’ assertions, Practice Book § 326 and § 52-212a do not merely concern time limitations on a motion to open or set aside a judgment, but concern the judgment itself. They provide that a civil judgment or decree rendered in the Superior Court “may not be opened or set aside” (emphasis added) whether through a motion to open or set aside the verdict or through a request for rescission unless the request is made within four months of entry of judgment.

The plaintiffs next assert that the court had independent jurisdiction to open the judgment because they brought a separate action seeking rescission of the judgment. Absent waiver, consent or other submission to jurisdiction, the trial court lacked personal jurisdiction over the defendant after the expiration of the four month period provided in Practice Book § 326 and § 52-212a. See O’Leary v. Industrial Park Corp., 211 Conn. 648, 652-53 n.2, 560 A.2d 968 (1989). This court knows of no authority for the assertion that personal jurisdiction over a defendant in one case confers personal jurisdiction over the defendant in a separate case. It is clear that the plaintiffs cannot confer personal jurisdiction over the defendant, with regard to the stipulated judgment, merely by filing a separate civil action.

The plaintiffs finally claim that the “otherwise provided by law” exception in the statute and rule of practice applies, and that the court was not bound by the four month limitation. “A trial court has only limited authority to modify its judgments. Practice Book § 326 provides in part that ‘[u]nless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed.’ . . . See General Statutes § 52-212a.

“Contrary to the plaintiffs’ assertion, the trial court’s authority was not ‘otherwise provided by law.’ This is not a case in which the legislature has provided the trial court with the statutory authority to modify its previous judgment even after the four month period provided for in Practice Book § 326. See, e.g., General Statutes § 46b-86 (the modification of alimony or support orders and judgments can be made ‘at any time’). Nor is this a situation in which the common law has provided the trial court with continuing jurisdiction. See, e.g., Adams v. Vaill, 158 Conn. 478, 482, 262 A.2d 169 (1969) (‘[i]t cannot be doubted that courts have inherent power to change or modify their own injunctions where circumstances or pertinent law have so changed as to make it equitable to do so’).” O’Leary v. Industrial Park Corp., supra, 211 Conn. 652-53 n.2.

II

The defendant cross appeals from the denial of his motion for a directed verdict and his motion to set aside the jury’s verdict of a violation of CUTPA. We affirm the judgment of the trial court.

A

The defendant claims that the plaintiffs failed to present any evidence of damages necessary to support restitution. We disagree.

General Statutes § 42-1 lOg (a) provides in relevant part: “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages. . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper. ...”

“While CUTPA damages need not be proven with absolute precision, the failure to present any evidence concerning the nature and extent of the injury sustained precludes recovery under the statute.” A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 344, 576 A.2d 464 (1990). “We have stated that [t]he ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief. Hinchliffe v. American Motors Corp., 184 Conn. 607, 615, 440 A.2d 810 (1981). An ascertainable loss is a deprivation, detriment [or] injury that is capable of being discovered, observed or established. . . . Id., 613. [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known. . . . Under CUTPA, there is no need to allege or prove the amount of the ascertainable loss. Id., 614. A plaintiff need not prove a specific amount of actual damages in order to make out a prima facie case [under CUTPA], Id., 612-13.” (Internal quotation marks omitted.) Service Road Corp. v. Quinn, 241 Conn. 630, 638-39, 698 A.2d 258 (1997).

When a court grants the remedy of restitution, the defendant “is required to account for a benefit that has been conferred on him by the injured party. ... In contrast to cases in which the court grants specific performance or awards damages as a remedy for breach, the effort is ... to prevent unjust enrichment of the [defendant] ... by protecting the injured party’s restitution interest. ... E. A. Farnsworth, Contracts (1982) § 12.19, p. 905; 1 G. Palmer, The Law of Restitution (1978) § 4.1, p. 369; 3 Restatement (Second), Contracts §§ 344 (c) and 370 (1981); and see Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 665-67, 368 A.2d 6 (1976); Franks v. Lockwood, 146 Conn. 273, 278, 150 A.2d 215 (1959). When an injured party seeks an award of money to protect his restitutionary interest, any award may as justice requires be measured by either (a) the reasonable value to the other party of what he received ... or (b) the extent to which the other party’s property has been increased in value or his other interests advanced. 3 Restatement (Second), [supra, § 371].” (Internal quotation marks omitted.) Bernstein v. Nemeyer, 213 Conn. 665, 673-74, 570 A.2d 164 (1990).

In the present case, the trial court clearly had sufficient evidence to determine “(a) the reasonable value to the other party of what he received ... or (b) the extent to which the other party’s property has been increased in value or his other interests advanced.” 3 Restatement (Second), supra, § 371, p. 202. The court awarded $483,000 to the plaintiffs, which consisted of the return of the $453,000 paid as part of the purchase price and a $30,000 loan the plaintiffs had obtained because of cash flow problems caused by the car wash purchase. The defendant’s claim is without merit.

B

The defendant next asserts that the CUTPA claim could not be based on misrepresentations made by the defendant because the contract contained a specific disclaimer of any such representations. In addition, the defendant claims that the parol evidence rule barred the introduction of testimony regarding alleged misrepresentations as being in contravention of the express contractual provisions. We are unpersuaded.

We decline to review the defendant’s first argument regarding the specific disclaimer because it was not raised in the trial court in the defendant’s motion for a directed verdict. “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to trial. . . .” Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5. Accordingly, we decline to consider this claim raised for the first time on appeal.

Certain additional facts are necessary to our resolution of the defendant’s second claim. The purchase contract provided in relevant part that “[t]he Buyer hereby further represents that no representations of any kind whatsoever [have] been made to him by the Seller or any representative or agent of the Seller as to the income of the car wash business conducted by Raindance, Inc.; nor has the Seller or [the defendant] made any other warranties, promises, covenants or representations of any kind whatsoever to the Buyer, without limitation, except as may be specifically set forth herein.” The defendant claims that any evidence of misrepresentation should not have been admitted or relied on by the court because its admission was precluded by the parol evidence rule.

“The parol evidence rule prohibits the use of extrinsic evidence to vary or contradict the terms of an integrated written contract. Giorgio v. Nukem, Inc., 31 Conn. App. 169, 173-74, 624 A.2d 896 (1993); see also 2 Restatement (Second), [supra, § 213].” (Internal quotation marks omitted.) Foley v. Huntington Co., 42 Conn. App. 712, 733, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). “The defendant seems to claim that a party to a contract may, without liability, make such misrepresentations of fact as he chooses, provided the contract is afterwards reduced to writing and the misrepresentations are not included therein. This indicates a misconception of the parol evidence rule. The [plaintiffs are] not seeking to add to, subtract from, or alter, the terms of the written contract itself. Cohn v. Dunn, 111 Conn. 342, 345, 149 A. 851 [1930]; Nagel v. Modern Investment Corporation, 132 Conn. 698, 700, 46 A.2d 605 [1946]. [They are] claiming that [they were] induced to enter into the contract by misrepresentations of material facts. This action [was] concerned . . . with material misrepresentation in the inducement of the contract. Parol evidence is ordinarily admissible to prove such misrepresentation. McLaughlin v. Thomas, 86 Conn. 252, 256, 85 A. 370 [1912]; Kiss v. Kahm, 132 Conn. 593, 595, 46 A.2d 337 [1946].” Presta v. Monnier, 145 Conn. 694, 700, 146 A.2d 404 (1958). “Since the evidence in question was offered to prove such misrepresentations, it was properly admissible notwithstanding the objection of the defendants that it tended to change the terms of a written agreement.” Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 521, 271 A.2d 69 (1970).

The judgment is affirmed.

In this opinion DALY, J., concurred.

LAVERY, J.,

dissenting. I concur with part II of the majority opinion affirming the trial court’s judgment on the named defendant’s cross appeal. Because the facts of this case reveal manifest injustice and represent the very essence of what the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., was intended to redress, I respectfully dissent from part I of the majority opinion.

The jury found that the plaintiffs proved each material element of their claim that the defendant’s actions violated CUTPA. Because the interrogatories submitted to the jury were general in nature, I will “presume that the jury found every issue in favor of the prevailing party.” Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987). That is, the jury found that not only did the defendant’s actions regarding the sale of the Branford car wash violate CUTPA, but also that his actions with respect to the stipulated judgment were in violation of CUTPA.

More specifically, the jury reasonably could have found that on December 5, 1989, the plaintiffs purchased a car wash business located in Branford from the defendant for $903,000. The plaintiffs were required to pay the defendant $453,000 prior to or at the closing and to sign a $450,000 promissory note payable to the defendant. The car wash was located on property owned by the defendant, and the plaintiffs were required to enter into a twenty-five year lease of the property. The defendant also had a security interest in the various assets and equipment of the car wash. The purchase agreement, promissory note, lease and security agreement all contained cross default provisions.

The defendant made numerous representations with respect to the car wash as to the number of cars serviced per year, the gross annual income from the business and its profitability. The defendant knew that the representations were false and that the immigrant plaintiffs had no prior experience in the car wash business. The plaintiffs asked to see books and records of the car wash, but the defendant told them there were no such records because the car wash was a “cash business.”

After three months of operation, the plaintiffs reported to the defendant that the volume of business was much smaller than he had represented and generated too little income to pay the rent and promissory note installments. The defendant told the plaintiffs not to worry about the mortgage payments, and blamed the low volume of business on the weather and business conditions in general. When the plaintiffs fell behind on the rent and note, they demanded their money back. Because the defendant threatened them with eviction, which would trigger all of the cross defaults, the plaintiffs refinanced their home for $30,000 to pay the arrearage. The car wash continued to lose money. The plaintiffs once more fell behind in their payments and told the defendant they could no longer subsidize the car wash losses. The defendant then commenced a summary process action against the plaintiffs to evict them from the premises and for judgment on the promissory note.

While the summary process action was pending, the defendant offered to settle the suit. The defendant dictated the terms of the settlement. The plaintiffs were to return the car wash and to permit a stipulated judgment on the promissory note to enter against them. In return, the defendant promised to forgive the plaintiffs’ debts on the car wash, pay the plaintiffs’ attorney’s fees and transfer to the plaintiffs a car wash business he owned in Hamden. The defendant made numerous representations to the plaintiffs with respect to the profitability of the Hamden car wash. The defendant, however, insisted that, for “tax purposes,” no mention of the transfer of the Hamden car wash could be made as part of the stipulated judgment. The attorney’s fees and forgiveness of debt were also not incorporated in the stipulated judgment.

Before the plaintiffs signed the settlement agreement, the defendant represented to them that he had signed the papers necessary to transfer the Hamden car wash and to release them from all liability and claims. The plaintiffs and the defendant agreed to transfer the car wash businesses simultaneously. The plaintiffs and the defendant agreed that the stipulated judgment would neither be filed nor take effect until the defendant transferred the Hamden car wash and signed the release.

The defendant not only failed to transfer the Hamden car wash to the plaintiffs, but also failed to release the plaintiffs and caused the stipulated judgment to enter on July 29, 1991. After the defendant locked the plaintiffs out of the Branford car wash, he operated it and the Hamden car wash until he filed a petition in bankruptcy with respect to the Hamden car wash on November 15, 1991. He also did not pay the plaintiffs’ attorney’s fees as promised.

The following procedural facts are also relevant. Paragraph forty-one of the fourth count of the complaint alleges that the “ [defendants’ conduct described above constituted unfair and deceptive acts and practices in the conduct of trade or commerce in violation of [CUTPA], the use and employment of which resulted in ascertainable loss of money to the [plaintiffs].” The amended complaint prays for the following relief: “compensatory damages; punitive damages; multiple damages; rescission; estoppel; constructive trust; disgorgement; accounting, costs, expenses, including attorney’s fees, and prejudgment interest; and such other and further relief as the court deems just and proper.”

The parties agreed that liability with respect to the first (fraud), fourth (CUTPA) and eighth (theft) counts would be decided by the jury, and that the court would decide liability with respect to the third (rescission) and fifth (unjust enrichment) counts, and the remedy with respect to any counts for which the defendant was found liable by the jury. Interrogatories were submitted to the jury, which found in favor of the plaintiffs on the CUTPA count, without interest, and for the defendant on the fraud and theft counts. The court directed a verdict with respect to the second, sixth, seventh, ninth, tenth, eleventh and twelfth counts of the amended complaint. The trial court rendered judgment in favor of the defendant on the rescission and unjust enrichment counts.

By memorandum of decision dated February 16,1996, the trial court awarded the plaintiffs restitution in the amount of $483,000 and attorney’s fees of $80,000 as their remedy for the defendant’s CUTPA violation. The trial court declined, however, to rescind the stipulated judgment because the plaintiffs failed to move to open it within four months.

In summary, although he must return some of the funds paid to him by the plaintiffs and pay their attorney’s fees, the defendant, who was found by the jury to have violated, CUTPA, still owns both the Branford and Hamden car wash businesses, has the $453,000 deposit and is the plaintiffs’ judgment creditor in the amount of $448,598.18 plus interest at 10 percent per annum since July 29, 1991, because the trial court refused to rescind the stipulated judgment.

The issue before this court is whether the trial court had the power to rescind the stipulated judgment on the basis of the jury’s finding that the procurement of the stipulated judgment by the defendant was in violation of CUTPA. Because I would find that the restitution awarded by the trial court is not equitable and results in an injustice, I respectfully dissent.

“In an equitable proceeding, the trial court may examine all relevant factors, to ensure that complete justice is done. Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982). The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981). Harbour Landing Development Corporation v. Herman, 27 Conn. App. 98, 101-102, 603 A.2d 779 (1992). Our review is quite limited, and is usually confined to a determination of whether the trial court’s decision to award the particular equitable relief was reasonable. Reynolds v. Ramos, supra, 321. ... On appellate review, the ultimate issue is whether, according to recognized principles of equity, abuse of discretion is manifest or an injustice appears to have been done. Thomas v. Thomas, 159 Conn. 477, 480, 271 A.2d 62 (1970).” (Citation omitted; internal quotation marks omitted.) Banthin v. Shoreline Plumbing & Heating Supply Corp., 30 Conn. App. 637, 640, 621 A.2d 769 (1993). Where the proceedings are equitable and the statute is remedial in nature, a trial court’s refusal to open a judgment must “be consistent with the authority conferred upon that court ‘to modify the terms of the judgment in order to achieve an outcome fairer to the parties than provided by the original judgment in light of conditions as they appear when the motion to open is decided. . . . [Ejither a forfeiture or a windfall should be avoided if possible.’ Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 352-54, 579 A.2d 1054 (1990) . . . .” (Citations omitted.) Society for Savings v. Stramaglia, 225 Conn. 105, 110, 621 A.2d 1317 (1993).

“CUTPA was first enacted in 1973. It was originally intended to be the state’s counterpart to the Federal Trade Commission Act. R. Langer & D. Ormstedt, ‘The Connecticut Unfair Trade Practices Act,’ 54 Conn. B. J. 388, 389 (1980). The purpose of the statute was to provide a meaningful avenue of redress for consumers who had been victims of unfair or deceptive trade practices by providing for private as well as public enforcement.” Gill v. Petrazzuoli Bros., Inc., 10 Conn. App. 22, 31-32, 521 A.2d 212 (1987).

Section 42-110b (d) provides: “It is the intention of the legislature that this chapter be remedial and be so construed.” “Remedial statutes are to be liberally construed in favor of those whom the legislature intended to benefit. Hartford Fire Ins. Co. v. Brown, 164 Conn. 497, 503, 325 A.2d 228 (1973).” Hinchliffe v. American Motors Corp., 184 Conn. 607, 615 n.4, 440 A.2d 810 (1981). “The importance of equitable remedies to the CUTPA scheme is underscored by the fact that equitable relief is expressly provided for in two separate parts of the statute. General Statutes § 42-1 lOg (a) and (d).” Hinchliffe v. American Motors Corp., supra, 618.

Section 42-1 lOg provides in relevant part: “(a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action .... The court may, in its discretion . . . provide such equitable relief as it deems necessary or proper. ... (d) ... In any action brought under this section, the court may, in its discretion, order, in addition to damages or in lieu of damages, injunctive or other equitable relief. . . (Emphasis added.)

Our Supreme Court addressed the nature of the equitable remedies applicable to CUTPA cases at some length in Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 645 A.2d 505 (1994). “Our conclusion that CUTPA does not give rise to a legal cause of action grounded in the common law comports with the essentially equitable character of the statutory scheme. Equity may be described as a system of positive jurisprudence founded upon established principles which can be adapted to new circumstances where a court of law is powerless to give relief. Harper v. Adametz, 142 Conn. 218, 223, 113 A.2d 136 (1955). A hallmark of equity is its capacity of expansion [beyond the common law], so as to keep abreast of each succeeding generation and age. 1J. Pomeroy, Equity Jurisprudence (5th Ed. 1941) § 67, p. 89. CUTPA, like equity, reaches beyond traditional common law precepts in establishing a fairness standard designed to grow and broaden and mold [itself] to meet circumstances as they arise . . . . M. Handler, The Jurisdiction of the Federal Trade Commission Over False Advertising, 31 Colum. L. Rev. 527, 535 (1931). The resolution of claims requiring the application of broadly defined and deeply rooted public values such as the statute’s elusive, but [legislatively] mandated standard of fairness; Federal Trade Commission v. Sperry & Hutchinson Co., [405 U.S. 233, 244, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972)]; has historically been the function of a court of equity. 1 J. Pomeroy, supra, §§ 59, 67.” (Internal quotation marks omitted.) Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 159.

“The significance of the broad equitable remedies authorized under CUTPA is underscored by the express language of § 42-1 lOg (d), which in affording the court discretion to order injunctive and other equitable relief in lieu of damages, ‘contemplates plaintiffs’ judgments which do not include an award of money damages.’ [Hinchliffe v. American Motors Corp., supra, 184 Conn. 618].” (Emphasis in original.) Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 230 Conn. 160. In short, the expansive scheme of CUTPA provides “ ‘an action more flexible and a remedy more complete than did the common law’; Hinchliffe v. American Motors Corp., [supra, 617] . . . .” Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 156.

This court discussed the equitable remedy of rescission in the context of a misrepresentation in a land transaction in the case of Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 478 A.2d 257 (1984). “Rescission of a contract is an appropriate remedy if there has been a material misrepresentation of fact upon which a party relied and which caused it to enter the contract. State v. Hartford Accident & Indemnity Co., 136 Conn. 157, 167, 70 A.2d 109 (1949). The material misrepresentation, when made in connection with the sale of land, may be an innocent misrepresentation. Slocum v. Leffler, 272 Or. 700, 701, 538 P.2d 906 (1975); see Albany Motor Inn & Restaurant, Inc. v. Watkins, 85 App. Div. 2d 797, 798, 445 N.Y.S.2d 616 (1981). At the option of the defrauded party, where there has been fraud in the inducement of the contract, the contract is voidable or subjects the defrauding party to a suit for damages. A. Sangivanni & Sons v. F.M. Floryan & Co., 158 Conn. 467, 472, 262 A.2d 159 (1969). The party defrauded has the option of electing either to rescind the contract or to claim damages for the breach of the contract. Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 409-10, 456 A.2d 325 (1983). To seek rescission is to waive any claim for damages arising from a breach of the contract. Duksa v. Middletown, 192 Conn. 191, 197, 472 A.2d 1 (1984). The remedy of rescission and restitution is an alternative to damages in an action for breach of contract. 12 Williston, Contracts (3d Ed. Jaeger) § 1455, p. 14. Rescission, simply stated, is the unmaking of a contract. It is a renouncement of the contract and any property obtained pursuant to the contract, and places the parties, as nearly as possible, in the same situation as existed just prior to the execution of the contract. A condition precedent to rescission is the offer to restore the other party to its former condition as nearly as possible. Duksa v. Middletown, supra [197]; Keyes v. Brown, 155 Conn. 469, 476, 232 A. 2d 486 (1967).” Kavarco v. T.J.E., Inc., supra, 298-99.

Kavarco is particularly instructive with respect to the facts and the equities of the case now before this court. In Kavarco, the plaintiffs’ claim for relief was basically rescission. “Their complaint alleges that their purchase was induced by the representation of the defendants to them that the defendants would develop or allow to be developed the surrounding lots in the subdivision as single family residences. It is undisputed that at the time of the conveyance to the plaintiffs all of the lots, including the one conveyed to them, were actually located in a multiple family zone under existing zoning laws, and that the warranty deed conveying title to them stated that the premises were conveyed subject to the ‘limitations of use imposed by governmental authority.’ The offer to purchase signed by the parties stated that the buyers did not rely on any representations not contained in the document.” Id., 297. “After the conveyance to the plaintiffs, the defendants, in fact, constructed a multi-family dwelling within the subdivision and obtained permits to construct multi-family dwellings on other lots within the subdivision.” Id., 300.

“ ‘Fraud vitiates all contracts, written or verbal and sealed or unsealed.’ Feltz v. Walker, 49 Conn. 93, 98 (1881). This principle is certainly applicable to the stipulated judgment . . . relied upon by the defendant in this case.” Pacelli Bros. Transportation, Inc. v.Pacelli, supra, 189 Conn. 409. “The distinction between fraud in the form of an express misrepresentation and in the form of nondisclosure becomes significant where a damage award rather than avoidance of the contract is the remedy sought. Although a cause of action sounding in fraud was cognizable both at law and in equity, courts exercising equitable jurisdiction broadened the legal conception of fraud as an affirmative misrepresentation to include more subtle guises, such as nondisclosure. 37 Am. Jur. 2d, Fraud and Deceit § 326. That there may be a fraud in the view of a court of equity, which is not so at law, has long since been declared. Broome v. Beers, 6 Conn. 198, 211 (1826). Fraud, indeed, as known to equity jurisprudence, properly includes all acts, omissions and concealments, by which an undue and unconscientious advantage is taken of another. . . . Story v. Norwich & Worcester R. Co., 24 Conn. 94, 113-14 (1855).” (Internal quotation marks omitted.) Pacelli Bros. Transportation, Inc. v. Pacelli, supra, 410.

Such is the case now before this court where the defendant induced the plaintiffs to enter into the stipulated judgment, in part, with a promise to transfer ownership of the Hamden car wash to the plaintiffs, pay their attorney’s fees and forgive all debts related to the Branford car wash. The defendant never transferred ownership of the Hamden car wash to the plaintiffs but took it into bankruptcy. The defendant also never forgave the plaintiffs’ debts or paid their attorney. “A representation about a promise to do something in the future, when linked with a present intention not to do it, is a false representation. Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970).” Kavarco v. T.J.E., Inc., supra, 2 Conn. App. 300.

On the facts before it here, the trial court, sitting as a court of equity pursuant to CUTPA, had the authority to rescind the original contract for the sale of the Bran-ford car wash and the contract for the stipulated judgment in light of the jury’s finding that the defendant’s behavior was in violation of CUTPA. Instead, the trial court held that it would not rescind the stipulated judgment because the plaintiffs had failed to move to open the judgment within four months of the judgment’s having been entered. This holding permits the defendant further to exploit the plaintiffs to whom he said that he would transfer the Hamden car wash, only to put the business in bankruptcy two weeks before the end of the four month period in which to open the stipulated judgment.

“The recent weight of authority is that the right to rescind a contract for the sale of land, or a contract for the sale of a business, or a lease, is not necessarily destroyed because the buyer failed to make an independent investigation which would have revealed that the representation upon which he relied was false. See Pacelli Bros. Transportation, Inc. v. Pacelli, supra, [189 Conn.] 409; Besett v. Basnett, 389 So. 2d 995, 998 (Fla. 1980); National Conversion Corporation v. Cedar Building Corporation, 23 N.Y.2d 621, 627-28, 246 N.E.2d 351, 298 N.Y.S.2d 499 (1969); Slocum v. Leffler, supra, [272 Or. 704]; Wilson v. Zimmerman, 261 Or. 528, 532-33, 495 P.2d 713 (1972).

“To shield a seller with a buyer’s negligence in not finding out whether the representation was true or false would be to give a seller the fruit of his falsehood. The defendants’ argument raises the issue of whether the law should choose either to allow the person who fraudulently misrepresented a basic fact to use the armament of caveat emptor to escape liability, or not to require the person to whom the misrepresentation was made to conduct an independent investigation as to the truth of an ascertainable fact. The Restatement chooses the latter. 2 Restatement (Second), Torts § 540. This court does also.” Kavarco v. T.J.E., Inc., supra, 2 Conn. App. 301-302.

In this case, I would not permit the defendant, who did not disclose the records of the Branford car wash to the plaintiffs because it was a “cash business” and who, for “tax reasons,” did not want to include the transfer of the Hamden car wash in the stipulated judgment, to take advantage of the plaintiffs’ having neglected to open the stipulated judgment within four months. The trial court, acting within its equitable powers, could easily have granted the plaintiffs’ motion to consolidate its motion to open the stipulated judgment with the trial of this case and rescinded the stipulated judgment as partial remedy for the defendant’s CUTPA violation. Its failure to do so has granted the defendant a windfall.

The case in which the stipulated judgment entered was a summary process action. Our Supreme Court has held that equity applies in summary process actions. See Fellows v. Martin, 217 Conn. 57, 584 A.2d 458 (1991). “[E]quity abhors ... a forfeiture. Menzies v. Fisher, 165 Conn. 338, 357, 334 A.2d 452 (1973) [House, C. J., dissenting], quoting Pierce v. Staub, 78 Conn. 459, 466, 62 A. 760 (1906); Sheets v Selden, 74 U.S. (7 Wall.) 416, 421, 19 L. Ed. 166 (1868). It is well settled that equity will relieve against the forfeiture of a lease for nonpayment of rent. Kann v. King, 204 U.S. 43, 27 S. Ct. 213, 51 L. Ed. 360 (1907); Sheets v. Seldon, supra, 421; 1 Restatement (Second), Property, Landlord and Tenant § 12.1, comment (n); J. Eaton, Handbook of Equity Jurisprudence (2d Ed.) § 27; II. McClintock, Handbook of Equity § 31; 2 J. Pomeroy, Equity Jurisprudence as Administered in the United States of America (5th Ed.) § 453; 3 J. Story, Equity Jurisprudence (14th Ed.) § 1727; see Nicoli v. Frouge Corporation, 171 Conn. 245, 246, 368 A.2d 74 (1976); Thompson v. Coe, 96 Conn. 644, 115 A. 219 (1921). This ancient principle allows relief because [i]n reason, in conscience, in natural equity, there is no ground to say because a man has stipulated for a penalty in case of his omission to do a particular-act (the real object of the parties being the performance of the act), that if he omits to do the act he shall suffer an enormous loss wholly disproportionate to the injury to the other party. 3 J. Story, supra, § 1728. The penalty is the forfeiture of the leasehold, imposed for omission to do a particular act, that is, to pay rent; if the payment may be secured without a forfeiture, equity will not permit a forfeiture. J. Eaton, supra, § 34; 2 M. Friedman, Leases (2d Ed. 1983) § 16.2; H. McClintock, supra, § 31; J. Story, supra [§ 1728]; 2 J. Taylor, American Law of Landlord and Tenant (9th Ed.) § 495; 2 H. Tiffany, Law of Landlord and Tenant § 194 (3).” (Internal quotation marks omitted.) Fellows v. Martin, supra, 65-66.

In this case, the defendant’s position is much improved over that he was in before he sold the Bran-ford car wash to the plaintiffs. He has the $453,000 down payment. The Branford car wash was returned to him, as well as the personal property in which he had a security interest, and he is free to lease or operate the business. The defendant has a stipulated judgment of $448,598.18 with postjudgment interest. The amount due under the stipulated judgment exceeds the amount of the CUTPA award to the plaintiffs. The plaintiffs, however, are in a worse position than they were in before the sale. They have forfeited their deposit, they owe more on the stipulated judgment than was awarded them for the defendant’s CUTPA violation and they have no car wash business.

Therefore, I would find that under CUTPA the trial court had the authority to rescind the entire transaction, including the stipulated judgment, and to order restitution to make the plaintiffs whole. See Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 230 Conn. 148; Hinchliffe v. American Motors Corp., supra, 184 Conn. 607. I would reverse the judgment and remand this case to the trial court to give the plaintiffs a new hearing in damages consistent with this opinion.

Accordingly, I dissent.

         We refer in this opinion to the named defendant as the defendant.

       General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

       The total purchase price of $903,000 consisted of a $3000 security deposit, a $90,000 payment made upon signing of the purchase agreement, $360,000 paid at the closing and a $450,000 promissory note secured by a chattel mortgage and payable over ten years at a rate of 10 percent interest per year with successive monthly payments of $5946.80.

       General Statutes § 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

       The award of $483,000 consisted of the return of the $453,000 paid as part of the purchase price and a $30,000 loan the plaintiffs had obtained because of cash flow problems caused by the car wash purchase. The court also awarded $80,000 to the plaintiffs in attorney’s fees.

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .”

         Practice Book § 326 (a), now Practice Book (1998 Rev.) § 17-4 (a), provides : “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.”

       The jury found in favor of the defendant on the claim of fraud. The plaintiffs did not claim and the trial court did not find duress, mutual mistake or actual absence of consent.

       The defendant also claims that the plaintiffs failed to present evidence of damages necessary for their claims of unjust enrichment and rescission. The defendant is not aggrieved and has no standing to raise those claims because the trial court found for the defendant on the claim of unjust enrichment and denied rescission of the stipulated judgment. See Horton v. Hydra Systems International, Inc., 16 Conn. App. 420, 425, 547 A.2d 926 (1988). We decline to review these claims.

       The Branford car wash business was actually purchased from Raindance, Inc., a corporation owned and controlled by the defendant.

       The plaintiffs sued two additional parties but withdrew the complaint as to those individuals prior to trial.

       The interrogatories were general in nature and did not indicate which of the alleged actions by the defendant, if not all, the jury considered to be in violation of CUTPA.

         The plaintiffs did not ask the trial court to articulate its factual and legal basis for rendering judgment in favor of the defendant on the rescission and unjust enrichment counts. Therefore, we do not review the judgment on those counts.

       This court found that the trial court improperly failed to mention in its memorandum of decision the burden of proof it applied to the allegation of fraud and remanded the case for a new trial. Kavarco v. T.J.E., Inc., supra, 2 Conn. App. 296, 302.

       The plaintiffs in the present case actually returned the subject business and properly to the defendant prior to commencing suit.

       The stipulated judgment was entered July 29, 1991; the petition in bankruptcy was filed November 15, 1991. There is no evidence as to when the plaintiffs learned of the filing. I do note that the plaintiffs were not listed as creditors on the bankruptcy petition.

       The plaintiffs filed a motion to open the stipulated judgment on September 27, 1993.


source: Caselaw Access Project

author: LANDAU, J. HENNESSY, J.,

license: Public Domain

text:
    IN RE JESSICA M.

    (AC 16478)
    Landau, Spear and Hennessy, Js.
    Argued September 16, 1997
    officially released June 30, 1998

      Linda Pearce Prestley, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellant (petitioner).

      David Brian Carr, for the appellee (respondent mother).

      Eric Onore, for the appellee (respondent father).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book (1998 Rev.) § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LANDAU, J.

The petitioner, the commissioner of the department of children and families (department), appeals from the judgment of the trial court dismissing the petition to terminate the parental rights of the respondent parents pursuant to General Statutes (Rev. to 1995) § 17a-112 (b), titled “Termination of parental rights of child committed to commissioner.”

The department appealed from the dismissal of the petition, claiming that the trial court improperly found that the department had failed to prove, by clear and convincing evidence, sufficient grounds for an adjudication of termination of parental rights, specifically, failure to achieve rehabilitation and acts of commission and omission, and that it was not in the best interest of the child to terminate parental rights pursuant to § 17a-112 (b). After a review of the record and briefs, and after hearing from the parties at oral argument, we conclude that the trial court properly dismissed the petition to terminate the rights of Jessica’s parents.

The following facts are relevant to this appeal. Jessica was bom on October 29, 1990. One month later, Jessica’s pediatrician notified the department that Jessica had suffered injuries to her head and that her parents’ explanation was not consistent with the injury, a fractured skull with a small amount of brain swelling. Jessica’s mother later admitted having hit the child with her hand. Jessica’s father knew of the incident. In December, 1990, the department obtained temporary custody of Jessica and filed coterminous petitions of neglect and termination of parental rights as to Jessica’s parents.

On March 15, 1991, the department withdrew the termination petition, and Jessica was adjudicated neglected and committed into department custody and placed in foster care. Jessica was returned to her parents in October, 1991. From that time until the summer of 1992, the department provided protective services for Jessica in her family home. On June 5, 1992, the department petitioned to revoke Jessica’s commitment. The department closed its file on Jessica because its expectations concerning her parents were successfully met.

Three and one-half years later, Jessica came to the attention of the department again. In March, 1995, the mother took Jessica and left the marital home. The mother sought help atabattered women’s shelter, where she reported spousal abuse and that she had hit Jessica in the head again. She also reported that the father had beaten Jessica with a belt. The coordinator of the shelter reported suspected child abuse to the department. Upon investigation, a department employee noted bruises on Jessica’s back, buttocks and legs. The department again obtained custody of Jessica, placed her in foster care, and once more filed coterminous petitions of neglect and termination of parental rights.

At the time of trial, Jessica was living with a foster family, and her parents were separated. Trial was held on several days between September 29, 1995, and April 22, 1996. The trial court heard testimony from Jessica’s foster mothers, from the respondents and from other relatives, department caseworkers and two psychologists, whose reports were also admitted as evidence. The trial court also took judicial notice of the court files of both the 1990 and 1995 proceedings.

The trial court first considered the neglect petition and then considered whether either of the two statutory grounds alleged in the termination petition were proved by clear and convincing evidence. The trial court found by a fair preponderance of the evidence that Jessica was neglected for injuries the parents inflicted on her in March, 1995. The court ordered Jessica committed to the department for one year.

With respect to the termination petition, the court took judicial notice of the 1990 file and found that, as part of that proceeding, Jessica had been adjudicated neglected. See General Statutes (Rev. to 1995) § 17a-112 (b) (2). The trial court also found with respect to the 1995 proceeding that the department had not made reasonable efforts to reunite the family for a period of not less than one year. See General Statutes (Rev. to 1995) § 17a-112 (b), (c) and (d) (2). The trial court stated that because the parents had successfully achieved rehabilitation in the past, they would again benefit from the intensive services of the department. The court dismissed the termination petition on both grounds alleged, i.e., failure to achieve rehabilitation and parental acts of omission and commission. The trial court also ordered the department to provide the parents with intensive rehabilitation services and additional supervised visitation. See Practice Book § 1046.1, now Practice Book (Rev. 1998) § 33-12.

The department raises four issues on appeal: the trial court improperly (1) relied on dispositional evidence for adjudication, (2) concluded that the parents would benefit from rehabilitative services, (3) found that the allegations were not proven by clear and convincing evidence, and (4) concluded that termination of parental rights was not in the best interest of the child.

“ ‘Termination of parental rights’ means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and the child’s parent or parents . . . .” General Statutes § 45a-707 (8). “Termination of parental rights is ‘a most serious and sensitive judicial action.’ ” In re Barbara J., 215 Conn 31, 44, 574 A.2d 203 (1990). “Since termination of parental rights is the ultimate interference by the state with the natural rights of parents in their children, resulting in an everlasting severance of the legal relationship, and usually the permanent separation of parent and child as well, courts must require strict adherence to the statutory standards.” In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986).

On appeal, “[w]e will overturn such a finding of fact only if it is clearly erroneous in light of the evidence in the whole record.” In re Romance M., 229 Conn. 345, 353, 641 A.2d 378 (1994). “[G]reat weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence.” (Internal quotation marks omitted.) Rummel v. Rummel, 33 Conn. App. 214, 221, 635 A.2d 295 (1993). “ ‘We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.’ ” In re David E., 4 Conn. App. 653, 656, 496 A.2d 229 (1985). “[0]n review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Felicia D., 35 Conn. App. 490, 499, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994). Our review of the complete record reveals the trial court’s decision was factually supported and legally correct.

I

The department first claims that the trial court improperly considered dispositional evidence during the adjudicatory phase of the termination proceedings. This claim lacks merit.

A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). “In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interest of the child.” Id. “In the discretion of the court, evidence on adjudication and disposition may be heard in a nonbifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded.” Practice Book § 1042.1 (4), now Practice Book (1998 Rev.) § 33-3 (b); see also In re Jose C., 11 Conn. App. 507, 508-509, 527 A.2d 1239 (1987).

In this case, the trial court properly conducted a nonbifurcated trial and rendered a decision on the adjudicatory phase of the termination proceeding. The trial court wrote two memoranda of decision, one dismissing the petition and one in response to the department’s motion for articulation, which indicate that the court’s adjudicatory decisions were based on events that took place prior to the department’s March, 1995 petition to terminate the rights of Jessica’s parents. Specifically, the trial court found that the department did not prove nor did it request the trial court to waive the requirement that it made reasonable efforts to reunite the family for a period of not less than one year. The department’s ability to rehabilitate the parents following Jessica’s commitment in 1991 also militated against termination of their parental rights in 1996. The trial court stated in response to the motion for articulation: “If their past behavior is the best predictor of the parents’ future behavior, these parents would find intensive rehabilitative services as [the department] provided them in 1991 beneficial to rehabilitation now.” The parents’ prior successful rehabilitation and the mutual love and bonds between Jessica and her parents are the basis on which the trial court dismissed the termination petition. Those facts occurred and were documented prior to March 29, 1995, and were properly considered by the trial court.

The department cites two sets of facts as the basis of its claim on appeal. The first concerns the department’s having provided the mother with individual therapy and supervised visitation, which occurred after the 1995 termination petition was filed. The court found the mother to be in compliance with the therapy and visitation requirements. The trial court is required “to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. There may be instances in which the evidence does not establish that parental rights should be terminated under this section, despite the fact that continuing supportprograms for the parent may be suitable or even necessary. . . . Moreover, the court must also consider the six factors listed in General Statutes [Rev. to 1995 § 17a-112 (d)] when determining whether a parent has failed to rehabilitate himself or herself.” (Citation omitted; internal quotation marks omitted.) In re Sarah M., 19 Conn. App. 371, 376-77, 562 A.2d 566 (1989).

General Statutes (Rev. to 1995) § 17a-112 (d) provides in relevant part: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the department of children and families has made reasonable efforts to reunite the family pursuant to the federal Child Welfare Act of 1980, as amended ... (6) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future . . . .” The mother’s compliance with the therapy and visitation requirements initiated, by the department is in keeping with the mandate of the statute and supports the trial court’s order that the department provide the parents with intensive rehabilitative services and supervised visitation for one year.

The second set of facts at issue concern the father. At trial, the father testified as to his employment and living arrangements. In its memoranda, the trial court wrote that “he is presently separated from his wife and living with his mother.” The department takes exception to the phrase “is presently.” Our review of the father’s testimony discloses that the status of his employment, marriage and residence preexisted the department’s filing of the termination petition and continued until the time of trial. The trial court’s memoranda of decision merely state the status quo. These facts, too, were found pursuant to § 17a-112 (d) and further support the trial court’s order for continued intensive rehabilitative services. Thus, the trial court did not improperly consider dispositional evidence during the termination proceedings.

II

The department’s second claim is that the trial court improperly concluded that Jessica’s parents would benefit from rehabilitative services. We disagree.

The department’s petition to terminate was partially based on § 17a-112 (b) (2), which provides in relevant part that “the parent . . . has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .” (Emphasis added.) We cannot say that the facts found are clearly erroneous in light of the evidence in the whole record.

This court previously addressed the standard of “personal rehabilitation” in the case of In re Migdalia M., supra, 6 Conn. App. 194, which is instructive here. Migdalia was a child with severe medical problems. Her parents could not provide the child with the care needed to treat her medical problems. Migdalia was found to be neglected, and was committed to the department and placed in foster care. Migdalia’s parents loved her and visited with her regularly. This court examined the statutory requirements of “personal rehabilitation” and reversed the trial court’s judgment terminating parental rights for failure to achieve rehabilitation.

“ ‘Personal rehabilitation’ as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent.” Id., 203. The statute does not “define the degree of personal rehabilitation required or the meaning of a ‘responsible position in the life of the child.’ ” Id., 206. The statute also does not require parents to “be able to assume full responsibility for [a] child, unaided by available support systems.” In re Juvenile Appeal (84-3), 1 Conn. App. 463, 477, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). The fact that both parents still need counseling does not mean they have not sufficiently achieved rehabilitation. See In re Luis C., 210 Conn. 157, 167, 554 A.2d 722 (1989).

As did Migdalia’s parents, Jessica’s parents have intellectual and psychological hmitations that prohibit them from successfully parenting her without support. The trial court found that Jessica was bonded to her parents and that they love her. Therefore, to the extent the parents can demonstrate to Jessica that they care about and love her, they have a responsible position in her life.

The trial court’s factual findings and legal conclusions are supported by the record. Because the parents had achieved rehabilitation in the past, the trial court found that they deserved a second chance and ordered the department to provide rehabilitative services for one year, which is a reasonable time. The department failed to prove, by clear and convincing evidence, that parental rights should be terminated for failure to achieve rehabilitation.

III

The department also claims that the trial court improperly dismissed its petition to terminate the parental rights of Jessica’s parents on the ground of acts of commission and omission pursuant to § 17a-112 (b) (3), finding that the department failed to meet its burden of proof by clear and convincing evidence. This claim also lacks merit.

General Statutes (Rev. to 1995) § 17a-112 (b) (3) provides, “the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights . . . .” Under this subdivision, parental rights can be terminated for one or numerous acts or omissions that affect a child’s well-being. The department’s petition focuses on the physical injuries Jessica suffered.

As we construe the statute, where the termination is based on a claim of serious physical injury, two criteria must be met to establish prima facie evidence for termination of parental rights: the physical injury must be serious and it must be nonaccidental or inadequately explained. The trial court found that in March, 1995, Jessica had bruises on her back, legs and buttocks most probably caused by her father’s beating her with a belt. Jessica’s mother struck the child’s head. The injuries were nonaccidental because her parents intended to strike her. Because X rays and a computerized axial tomography (CAT) scan taken at the time did not reveal any broken bones, the trial court did not find Jessica’s injuries to be serious enough to warrant termination of parental rights for acts of parental commission or omission. The trial court also noted that Jessica suffered developmental delays and psychological trauma as a result of her injuries.

Although certain terms and words are defined in the child welfare act, “serious physical injury” is not defined. “Under our rules of statutory construction, we are guided by the words of the statute itself, the legislative history and circumstances surrounding its enactment, the legislative policy the statute was designed to implement, and its relationship to existing legislation and common-law principles governing the same subject matter. State v. Ledbetter, 240 Conn. 317, 327-28, 692 A.2d 713 (1997).” Thompson & Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370, 375, 696 A.2d 326 (1997). “[Tjhere is a presumption that the legislature, in enacting a law, did so in view of existing relevant statutes and intended it to be read with them so as to make one consistent body of law. Citrano v. Berkshire Mutual Ins. Co., 171 Conn. 248, 255, 368 A.2d 54 (1976).” (Internal quotation marks omitted.) Cagiva North America, Inc. v. Schenk, 239 Conn. 1, 8, 680 A.2d 964 (1996). Therefore, we look to existing legislation on the same subject matter.

“The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect . . . .” General Statutes § 17a-101 (a); In re Juvenile Appeal (83-CD), 189 Conn. 276, 283, 455 A.2d 1313 (1983). A child is “ ‘neglected’ who . . . (B) is being denied proper care and attention, physically ... or (C) is being permitted to live under conditions, circumstances or associations injurious to his well-being or (D) has been abused . . . .” General Statutes § 46b-120 (8). “ ‘[A]bused’ means that a child or youth (A) has had physical injury or injuries inflicted upon him other than by accidental means, or (B) has injuries which are at variance with the history given of them, or (C) is in a condition which is the result of maltreatment such as, but not limited to . . . cruel punishment . . . .” General Statutes § 46b-120 (3).

We note that the statutes defining neglect and abuse use only the words physical injury or injuries not serious physical injury. This does not present a problem. “While that standard itself does not have a precise meaning, it does not lack metes and bounds. Our case law has defined and circumscribed that standard over the years ... in child neglect cases.” State v. Anonymous, 179 Conn. 155, 165, 425 A.2d 939 (1979).

The trial court concluded that Jessica’s injuries were not so serious as to warrant termination of her parents’ parental rights. The trial court’s decision is consistent with decisions of our Supreme Court and this court in interpreting § 17a-112 (b) and the comparable General Statutes (Rev. to 1995) § 45a-717, titled “Termination of parental lights. Conduct of hearing. Investigation and report. Grounds for termination,” which controls in the Probate Court. See In re Valerie D., 223 Conn. 492, 510, 613 A.2d 748 (1992) (mother’s use of cocaine prior to delivery causing baby to be drug addicted not serious physical injury as is injecting cocaine into child’s bloodstream immediately after birth); In re Theresa S., 196 Conn. 18, 19-20, 491 A. 2d 355 (1985) (severing arteries with knife serious physical injury); In re Juvenile Appeal (84-AB), 192 Conn. 254, 255-56, 471 A.2d 1380 (1984) (series of unexplained injuries resulting in bleeding mouth at six weeks old, multiple facial bruises at ten weeks old, ten fractures in different parts of body at four months old serious physical injuries); In re Sean H., 24 Conn. App. 135, 137-38, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991) (serious emotional injury requiring hospitalization sufficient to terminate parental rights).

The trial court’s decision is also consistent with the opinions rendered by the courts of several of our sister states on the question of serious physical injury in the context of child abuse and neglect. See In re Ethan H., 135 N.H. 681, 609 A.2d 1222 (1992) (bruises on buttock caused by spanking with belt not threat to child’s life, health or welfare); Matter of C. Children, 183 App. Div. 2d 767, 583 N.Y.S.2d 499 (1992) (repeated beatings about face and eye with belt buckle created substantial risk of serious injury); D.P. v. Commonwealth Dept. of Public Welfare, 104 Pa. Commw. 642, 523 A.2d 408 (1987) (multiple lacerations on back, side, leg and face caused by beating with extension cord serious physical injuries); Appeal of E.S., 82 Pa. Commw. 168, 474 A.2d 432 (1984) (one slightly raised welt on child’s back caused by one hit with belt not serious physical injury).

In light of the evidence before the trial court concerning the injuries Jessica suffered in March, 1995, we cannot say, as a matter of law, that the trial court improperly found that her injuries were not serious or that the department did not prove, by clear and convincing evidence, that the parents’ parental rights should be terminated due to acts of commission or omission that denied Jessica “the care, guidance or control necessary for [her] physical, educational, moral or emotional well-being.”

The judgment is affirmed.

In this opinion SPEAR, J., concurred.

HENNESSY, J.,

concurring. I concur in the result reached by the majority but write separately to address concerns I have about the interpretation of General Statutes (Rev. to 1995) § 17a-112 as set forth in the majority opinion.

Initially, it is important to note that there are two ways in which the department of children and families (department) may petition for the termination of parental rights in accordance with § 17a-112: (1) by filing coterminous petitions or (2) by filing a petition for termination of the parental rights in a child presently committed to the department. These methods are set forth in the statutes and rules of practice as well as on the form that the department files when it initiates a coterminous proceeding.

In this appeal, the petitions praying for the termination of parental rights were filed as coterminous petitions as authorized by General Statutes (Rev. to 1995) § 17a-112 (e). The filing of coterminous petitions requires that one petition allege that the child is neglected, and that the accompanying petition request, if neglect is found, that the parental rights in the child be terminated. In order to be a coterminous proceeding, these petitions must be filed simultaneously or in close proximity in time. The other manner of petitioning for the termination of parental rights under § 17a-112 (b) is to request the termination of parental rights in a child who is currently committed to the department as a result of a previous adjudication of neglect.

The following facts must be emphasized. On March 10, 1995, an order of temporary custody was granted by the trial court, Keller, J. The accompanying neglect petition alleged that Jessica M. was neglected because “on 3/9/95, the Department of Children and Families received a referral from a battered Women’s Shelter. Referral stated that mother came to the shelter the day before because of spousal abuse. Child Jessica, age four years, had bruises on back, buttocks, hip and back of legs. Mother told caller she had fractured the child’s skull previously and she was placed in the department’s care. Caller further reported that mother disclosed hitting the child on the head on Monday.”

On March 29, 1995, the department alleged that the respondents’ parental rights should be terminated because (1) Jessica had been found in a prior proceeding to be neglected and her parents had failed to achieve such degree of personal rehabilitation or, in the alternative, (2) Jessicahad been denied by an act of commission or omission the care, guidance or control necessary for her physical and emotional well-being.

In the present case, the child was not committed to the department as a neglected child when the petitions were filed. Jessica was in the care of the department by way of an order for temporary custody, the request for which was filed simultaneously with the petition alleging neglect. The neglect petition alleged that the child was neglected because she was permitted to live under conditions, circumstances or associations injurious to her well-being and, as a result, was being denied proper care and attention, both physically and emotionally. The trial court found the child neglected, by a fair preponderance of evidence, as a result of injuries inflicted on her on March 9, 1995, by her parents. Thereafter, in its written decision, the trial court proceeded to commit the child to the department for a period of one year.

Under the statutory scheme, the commitment of Jessica for one year would deprive the trial court of jurisdiction to render any further disposition regarding the termination of parental rights. Section § 17a-112 (e) authorizes the Superior Court in lieu of granting the neglect petition and committing the child to the custody of the department, to grant the petition for termination. Despite this, the trial court considered the petition to terminate parental rights. We must assume that the commitment of Jessica by the court was in anticipation and a rejection of the request for termination of parental rights and, therefore, that the trial court properly considered both grounds alleged by the department.

The first ground for termination considered by the court was failure to achieve rehabilitation. For a court to order termination on that ground pursuant to § 17a-112 (b) (2), the child must have been found to be neglected in a prior proceeding and the parents must have failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child.

The majority assumes that the requirement that the child must have been found neglected in a prior proceeding means that the child was found neglected any time in the past. Common sense and case law suggest that the phrase “in a prior proceeding” means the proceeding that immediately precedes and results in the filing of the petition to terminate parental rights. See footnote 6.

Failure to achieve rehabilitation should not be considered as a ground for termination in a coterminous proceeding because there is no “prior proceeding” to mark the beginning of the period in which the parent must achieve rehabilitation. General Statutes (Rev. to 1995) § 17a-112 (b) provides that the parental rights of a non-consenting parent may be terminated if after “an extended period of time ... (2) the parent of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation . . . .” (Emphasis added.) Failure to rehabilitate is defined as the failure of a parent to achieve expectations following the adjudication and disposition of the prior neglect petition. See In re Michael M., 29 Conn. App. 112, 125-26, 614 A.2d 832 (1992); In re Migdalia M., 6 Conn. App. 194, 206, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986).

The grounds for termination set forth in subsection (b) must be alleged after an “extended period of time” unless subsection (c) has been satisfied. A plain reading of the statute reveals that the phrase “prior proceeding” refers to the determination of neglect that immediately precedes the filing of the termination petition. “In practice, a parent’s rehabilitation is often measured against the expectations established by the court following adjudication and disposition of the prior neglect petition.” P. Chill, The Law of Child Abuse and Neglect in Connecticut (1997), p. 147. In a coterminous proceeding, there is no period of time to observe the parents and determine if they have or have not achieved expectations following the adjudication of the neglect petition.

“It is well settled that a statute must be applied as its words direct. . . . All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 194, 567 A.2d 1156 (1989).” (Internal quotation marks omitted.) Pascarelli v. Moliterno Stone Sales, Inc., 44 Conn. App. 397, 400, 689 A.2d 1132, cert. denied, 240 Conn. 926, 692 A.2d 1282 (1997). Statutes should be given their plain meaning. In a coterminous proceeding an insufficient amount of time passes in which to evaluate the parents’ attempt to achieve rehabilitation and, therefore, I conclude that the ground of failure to achieve rehabilitation is inapplicable.

A search of the case law of our state did not uncover any termination of parental rights judgment in which coterminous petitions were granted on the ground of failure to achieve rehabilitation. Failure to achieve rehabilitation, by its very terms, suggests that there are problems affecting the child that have been identified and that over a period of time have not been corrected so as to restore the parent to his or her prior constructive and useful role as a parent. Stating it simply, the statutory scheme requires that the occurrence of events or pattern of behavior that bring about state intervention be followed by a period of corrective action. If the parent fails in this endeavor, the failure is ground for the permanent removal of the child from the parent.

In the present case, if the department was successful in its goal to terminate parental rights on the basis of failure to achieve rehabilitation, the respondents would have been denied the opportunity to achieve rehabilitation provided by statute. When coterminous petitions are filed, the department is requesting that the court waive any time constraints so that the parental rights can be terminated without taking action to reunite parent and child. To allow failure to achieve rehabilitation to be relied on in a coterminous situation would not allow sufficient time to pass between the finding of neglect and the termination of parental rights so that the court could make a reasonable determination of the parent’s success or failure at attempted rehabilitation.

The prior proceeding on which the department relied to invoke the jurisdiction of the trial court was the finding of neglect four years earlier, that proceeding having resulted in a six month commitment to the department. It is undisputed that during the three and one-half years since that commitment ended, there has been no state involvement with this family and no complaints made to the department. If the requirement of being found neglected in a prior proceeding is not tied to the petition to terminate parental rights when considering failure to achieve rehabilitation, the parents will be denied the statutory opportunity to achieve rehabilitation. Further, after neglect has been found upon the occurrence of an event requiring state intervention, the state’s filing of coterminous petitions and the event that brought about the finding of neglect years before can be used as evidence of failure to achieve rehabilitation. This does not make sense nor does it comport with the statutoiy scheme in that it ignores the meaning of rehabilitation.

For these reasons, I would exclude the ground of failure to achieve rehabilitation from § 17a-112 (b) (2) as far as it applies to the filing of coterminous petitions. I agree with the majority in upholding the judgment of the trial court that the petitioner failed to prove by clear and convincing evidence that Jessica had been denied by an act of omission or commission the care, guidance or control necessary for her physical and emotional well-being.

       General Statutes (Rev. to 1995) § 17a-112 (b) provides: “The superior court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that, with respect to any consenting parent, such parent has voluntarily and knowingly consented to termination of his parental rights with respect to such child or that, with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; or (2) the parent of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child; or (3) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical ipjury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for 1he termination of parental rights; or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for 1he establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child. If the court denies a petition for consent termination of parental rights, it may refer the matter to an agency to assess the needs of the child, the care the child is receiving, and the plan of the parent for the child.” The statute is now General Statutes § 17a-112 (c).

       In its articulation, the trial court quoted from the department’s summary of reasons given to revoke commitment. “Jessica was returned to her parents’ care in October, 1991, after they had demonstrated, over a period of time, a willingness and commitment to participating in services which enhanced their parenting skills and involved individual and family counseling. Their ability to care for Jessica in a safe and loving way became noticeably greater during this period, and they showed a high degree of personal stability.
      “Since Jessica has been home, she has been cared for in a safe and conscientious manner by both Mr. and Mrs. M. She is a happy, healthy and active child who obviously is closely bonded to her parents, and she is very comfortable in their presence. The Ms have demonstrated their ability to provide day-to-day care for Jessica and to recognize her needs. They have continued to be cooperative with [the department] and other community service providers, have maintained a stable household and clearly love their daughter.”

       The concurrence asserts that “[f]ailure to achieve rehabilitation should not be considered as a ground for termination in a coterminous proceeding because there is no ‘prior proceeding’ to mark the beginning of the period in which the parent must achieve rehabilitation.” The concurrence argues that the phrase “prior proceeding”; see § 17a-112 (b) (2); refers to the determination of neglect that immediately precedes the filing of the termination petition. We acknowledge that the phrase “prior proceeding” may mean that the neglect proceeding must form the predicate facts on which the termination petition is based. We also acknowledge that the phrase may mean that there must be an adjudication of neglect at any time prior to the termination petition. Nevertheless, we decline to review this issue as it was not raised by the parties.
      “[T]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. This court follows the [long-standing] rule that absent certain exceptional circumstances . . . claims not distinctly raised at trial will not be reviewed on appeal. Biggs v. Warden, 26 Conn. App. 52, 57, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991).” (Internal quotation marks omitted.) In re Michael A., 47 Conn. App. 105, 110, 703 A.2d 1146 (1997). “Reversal for plain error is generally reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Jones, 29 Conn. App. 304, 317, 615 A.2d 149 (1992) (Norcott, J., dissenting in part,, concurring in the result only). As we have previously stated, the phrase “prior proceeding” can be read two ways. Therefore, the trial court may not have erred at all. As a result, it certainly cannot be said that the trial court’s reading was an obvious error.

       Other witnesses included the coordinator of the battered women’s shelter and a police officer.

       General Statutes (Rev. to 1995) § 17a-112 (b) requires that the grounds for termination exist “with respect to any nonconsenting parent, over an extended period of time, which, except as provided by subsection (c) of this section shall not be less than one year . . . .” Subsection (c) provides in relevant part: “The court may waive the requirement that one year expire prior to the termination of parental rights if it finds from the totality of the circumstances surrounding the child that such a waiver is necessary to promote the best interest of the child. . . .” Subsection (d) provides in relevant part: “[T]he court shall consider and shall make written findings regarding ... (2) whether the department of children and families has made reasonable efforts to reunite the family pursuant to the federal Child Welfare Act of 1980, as amended . . . .”

       Practice Book § 1046.1, now Practice Book (1998 Rev.) § 33-12, provides in relevant part: “If the judicial authority determines that termination grounds do not exist . . . then the judicial authority may consider any of the dispositional alternatives available under the neglect . . . petition by a fair preponderance of the evidence.”

       Because we hold that, the trial court properly reviewed the evidence and concluded that the parents would benefit from rehabilitative services and that the department did not prove the allegations by clear and convincing evidence, we need not reach the issue of the best interest of the child.

       We note the contradiction in the department’s having provided the mother with rehabilitative services and supervised visitation at the time of its filing the termination petition.

       The facts support the trial court’s conclusion. The fact that the mother removed herself and Jessica from the marital home and reported the injuries to the child demonstrates her awareness of the problems and her need for help, which is a responsible position for a parent to take. In essence, the department’s filing a petition to terminate parental rights seeks to punish the mother for seeking help and entering counseling. We cannot condone such action on the part of the department.

       See 42 U.S.C. § 619.

       General Statutes (Rev. to 1995) § 45a-717 (f) (2) provides: “[T]he child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights . . . .” (Emphasis added.)

       Because the trial court determined that no statutory ground for termination of the respondents’ parental rights existed by clear and convincing evidence, we need not reach the department’s final claim concerning the best interest of the child. See In re Tabitha P., supra, 39 Conn. App. 360.

       The form for the termination of parental rights is created pursuant to the authority under General Statutes §§ 17a-112, 45a-715 and 45a-717. The portion of the form that invokes the jurisdiction of the trial court so that it may consider the termination petition states:
      “Jurisdiction based on:
      _Child committed to the custody of the Commissioner of the Department of Children and Youth Services. (Gen. Stat. 17a-112)
      _Neglect Petition accompanied by Petition for Termination of Parental Rights (Coterminous Petitions'). (Gen. Stat. 17a-112).”

       General Statutes (Rev. 1995) § 17a-112 (e), now § 17a-112 (f), provides:
      “Any petition brought by the commissioner of children and families to the superior court, pursuant to subsection (a) of section 46b-129, may be accompanied by ... a petition for termination of parental rights filed in accordance with this section with respect to such child, notwithstanding that such child has not been committed to the commissioner of children and families. . . . The superior court, after hearing, in accordance with the provisions of subsection (b) of this section, may, in lieu of granting the petition filed pursuant to section 46b-129, grant the petition for termination of parental rights as provided in section 45a-717.”

       The petition alleges that the reasons for termination have existed for “not less than one year.” The facts included in the record, which were before the trial court, fail to support the conclusion that the conditions leading up to the filing of the neglect petition had existed for more than one year. This issue was not raised by either party and, therefore, for purposes of this discussion, I will limit my remarks to the facts of this case, specifically that the termination petition was based on the facts as found by the department on March 10, 1995.

       Practice Book (1998 Rev.) § 33-12, formerly § 1046.1, sets forth the procedures as follows: “When coterminous petitions are filed, the judicial authority first determines whether the child is neglected, uncared for or dependent by a fair preponderance of the evidence; if so, then the judicial authority determines whether statutory grounds exist to terminate parental rights by clear and convincing evidence; if so, then the judicial authority determines whether termination is in the best interest of the child by clear and convincing evidence. If the judicial authority determines that termination grounds do not exist or that termination is not in the best interest of the child, then the judicial authority may consider any of the dispositional alternatives available under the neglect, uncared for or dependent petition by a fair preponderance of the evidence.”

       General Statutes (Rev. to 1995) § 17a-112 (c) provides that “[t]he court may waive the requirement that one year expire prior to the termination of parental rights if it finds from the totality of the circumstances surrounding the child that such a waiver is necessary to promote the best interest of the child. ...”

       See, e.g., In re Baby Girl B., 224 Conn. 263, 618 A.2d 1 (1992) (coterminous petition alleging abandonment); In re Valerie D., 223 Conn. 492, 613 A.2d 748 (1992) (coterminous petition alleging abuse); In re Felicia D., 35 Conn. App. 490, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994) (termination petition filed after continuous supervision of child over period of five years, Appellate Court construed petition as coterminous); In re Romance M., 30 Conn. App. 839, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994) (no indication of whether trial court waived one year requirement); In re Wayne A., 25 Conn. App. 536, 595 A.2d 373 (1991) (coterminous petition alleging consent); In re Emmanuel M., 43 Conn. Sup. 108, 648 A.2d 904 (1993) (coterminous petition alleging act of omission or commission and that there was no ongoing relationship); In re Raymond W., Superior Court, judicial district of Windham, Juvenile Matters at Willimantic (October 22,1990) (“[o]n September 17,1990, the day of trial, [the department] orally moved to delete the ground of failure to rehabilitate, indicating that it was inapplicable to a coterminous petition and that it had been alleged in error”). In re Ammy F., Superior Court, judicial district of New London, Juvenile Matters at MontviUe (October 6,1994), in facts almost identical to those in this case, the trial court stated: “In the instant case, there has been no neglect adjudication in a prior proceeding. Here, [the department] filed a separate neglect petition and termination petition for Ammy and then requested the court to proceed as on a coterminous petition .... In fact, there has been no neglect adjudication until this court reached that determination earlier in this memorandum of decision.” In footnote 3, the trial court stated that the adjudication of Ammy as neglected on January 14, 1988, could not qualify as the “prior proceeding” and therefore had no bearing on the neglect petition before the court because it had been previously disposed of. Therefore, failure to achieve rehabilitation could not qualify as a ground for termination. Id.

       This interpretation is borne out by a recent amendment to General Statutes § 17a-112, No. 96-246, § 18, of the 1996 Public Acts, effective October 1, 1996, which provides that if a parent “of a child, under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation” their rights may be terminated. The use of the phrase “is unable or is unwilling to” indicates that the parent will fail in the future, not that the parent has failed based on past actions. “This ground essentially allows the court to apply the existing ground of failure to rehabilitate, in certain circumstances, to parents without affording them any opportunity for rehabilitation.” (Emphasis added.) P. Chill, supra, § 24 (E), p. 155.