author: Borden, J.

text:
    Bank of Montreal v. Gary A. Gallo
    (2852)
    Dupont, C.P.J., Bokden and Daly, Js.
    Argued November 8, 1984
    decision released February 19, 1985

      Richard C. Stewart, for the appellant-appellee (plaintiff).

      Raymond F. Ross, for the appellee-appellant (defendant).
   Borden, J.

This is a creditor’s suit in which the plaintiff sought to enforce a guaranty which was given by the grantee of a power of attorney, executed by the defendant. The trial court rendered judgment for the plaintiff in an amount of principal and interest which was less than the plaintiff sought under the guaranty. The plaintiff appealed, claiming that the trial court erred in failing to render a judgment for the full amount of the guaranty. The defendant cross appealed, claiming that the judgment was contrary to the pleadings and relevant law, and that if the judgment is correct, the interest rate used was erroneous.

The facts are not in dispute. On October 15, 1973, the defendant executed a power of attorney authorizing Thomas G. Campbell to sign on the defendant’s behalf, as the guarantor on a mortgage, and on any interim financing prior to obtaining the mortgage, for a specific piece of property in Montreal, Canada. The power of attorney left the details of the financing to Campbell’s discretion, but limited the amount for which the defendant could act as guarantor to $70,000.

In November, 1973, the plaintiff bank loaned $15,000 to Placements G.M.O., Inc. (Placements), a Canadian corporation. This loan was made on the basis of a guaranty signed by Campbell on the defendant’s behalf and was for the purpose of renovating the designated property. The defendant was notified in advance, by mail, of this loan.

In the following months, the plaintiff made more loans to Placements. On January 29, 1974, Campbell signed a guaranty in the defendant’s name in the amount of $70,000, plus annual interest of IOV2 percent.* ** The defendant was not notified of these loans or of the January guaranty signed in his name. That guaranty made no reference to the power of attorney, the property mentioned in the power of attorney or the purpose of the financing. It did refer to Placements. See footnote 4, supra. Placements was not mentioned in the power of attorney although it was in existence when the power of attorney was established.

The defendant was neither a stockholder nor an officer of Placements; Campbell was its managing agent and secretary, and the signatory on its corporate checking account. The plaintiff had knowledge of these facts.

On January 24,1975, after Placements defaulted on its loan of $75,000; see footnote 3, supra; the plaintiff demanded payment of $70,000 from the defendant. When the defendant refused to pay, the plaintiff sued him on the $75,000 note, relying on both the power of attorney and the guaranty of January 29, 1974.

The trial court found that the defendant owed the plaintiff only for the loan of $15,000, which it converted into $15,040.50 in American dollars, plus interest at the rate of IOV2 percent, for a total judgment of $26,368.07. The court found that the power of attorney authorized Campbell, as the defendant’s agent, to make financial arrangements for the specific property mentioned in the power of attorney and that the plaintiff was bound by its limits. The court extended its analysis further, however, and found that the power of attorney was an invitation to unspecified lenders to extend credit up to a fixed amount and for a specified obligation and was an offer of guaranty. It viewed the January, 1974 guaranty as a continuing one, entitling the defendant to reasonable notice of loans given in reliance on it. Insufficient notice of the loans or the financial condition of Placements was given to the defendant, the court found, to hold him liable to the full extent of the loans. It declined to impute Campbell’s knowledge to his principal, the defendant, but found that the defendant was adequately notified of the initial $15,000 loan and was liable for that amount.

The plaintiff argues that the trial court erred in failing to give the proper legal effect to the power of attorney. We agree.

A written power of attorney constitutes a formal contract of agency and creates a principal-agent relationship. Long v. Schull, 184 Conn. 252, 256, 439 A.2d 975 (1981). The principal in such a relationship is “bound by, and liable for, the acts which his agent does with or within the actual or apparent authority from the principal, and within the scope of the agent’s employment . ...” 3 Am. Jur. 2d, Agency § 261. “ Tt is the general rule, settled by an unbroken current of authority, that notice to, or knowledge of, an agent while acting within the scope of his authority and in reference to a matter over which his authority extends, is notice to, or knowledge of, the principal.” ’ . . . This assumes, however, that the agent is acting within the scope of his authority.” West Haven v. United States Fidelity & Guaranty Co., 174 Conn. 392, 395, 389 A.2d 741 (1978).

The scope of Campbell’s authority was defined by the power of attorney. See Long v. Schull, supra, 256; see also Brassert v. Clark, 162 F.2d 967, 973 (2d Cir. 1947). The defendant, as principal, could limit the powers of his agent, and all parties who dealt with the agent knowing of the limitation were bound by its terms. Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 125, 374 A.2d 144 (1976).

The nature and extent of an agent’s authority is a question of fact for the trier. E. Paul Kovacs & Co. v. Alpert, 180 Conn. 120, 126, 429 A.2d 829 (1980); 3 Am. Jur. 2d, Agency § 360. The parties do not dispute that Campbell was the defendant’s agent pursuant to the power of attorney. Brassert v. Clark, supra, 973. The scope of Campbell’s agency depended on the construction of the terms of the power of attorney, the purpose of the agency and the circumstances existing at the time of its creation. 2A C.J.S., Agency § 151. Whether the loans made to cover Placements’ overdrafts came within the scope of the pre-mortgage interim financing contemplated by the power of attorney, and whether those loans were actually for the specific property mentioned in the instrument, are questions of fact which the trial court did not address but which will have to be addressed at the retrial.

The power of attorney authorized Campbell to guaranty a mortgage on the property or to guaranty “any interim financing required prior to finalization of . . . mortgage arrangements” or related financing. Discretion for such financing was left to Campbell. There was testimony from the defendant, that he knew of the existence of Placements when he signed the power of attorney, that he knew that Campbell managed Placements, and that one of the purposes of the formation of that corporation was to renovate the property mentioned in the power of attorney. He also testified that Campbell had indicated to him that Placements would be used as a vehicle to complete the renovation of that property. Additionally, there was evidence that the checks which created the overdrafts were payable to the contractors at the site mentioned in the power of attorney. This evidence would have supported a finding that the overdrafts which were covered by the plaintiff, the guaranty signed in the defendant’s name and the ultimate loan were all within the scope of Campbell’s agency, and that the defendant was therefore liable to the plaintiff. See E. Paul Kovacs & Co. v. Alpert, supra, 125.

The defendant urges us to find, as did the trial court, that he was relieved of liability because of lack of notice to him of the various loans and the guaranty. We decline to do so. As long as Campbell was acting within the scope of his authority from the defendant, notice to Campbell constituted notice to the defendant, and lack of notice to the defendant was immaterial. West Haven v. United States Fidelity & Guaranty Co., supra.

The knowledge of the agent is considered knowledge of the principal “unless the agent in reality is acting adversely to or in fraud of his principal or in circumstances where it is apparent for other reasons that it is not probable that he will communicate the facts to his principal.” (Emphasis added.) Reardon v. Mutual Life Ins. Co., 138 Conn. 510, 516, 86 A.2d 570 (1952). We find no evidence in this record to support a conclusion that Campbell acted adversely to or in fraud of the defendant, or that the plaintiff should have realized that he would not communicate with the defendant. The fact that Campbell created overdrafts on Placements’ account which the plaintiff covered is not, as the defendant suggests, sufficient, nor is the fact, in and of itself, that Campbell was in control of Placements, the principal debtor, since the defendant knew that Placements would be used to renovate the property on which the defendant was to guaranty debts.

The court also erred in reading the power of attorney as an invitation to lenders to extend credit and as an offer of guaranty. The patent terms of the power of attorney created an agency in Campbell to execute certain guaranties and to negotiate the terms of credit agreements. See footnote 2, supra. There is no evidence to support a reading of it as an invitation to lenders to extend credit. The fact that discretion was left to Campbell to arrange the credit and sign the guaranties is insufficient to show that the power of attorney was intended as anything other than a grant of agency. Thus, the trial court’s finding of the power of attorney as an invitation to lenders to extend credit or an offer of guaranty was, in this case, clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

We briefly address the plaintiff’s claim that the court erred in failing to find ratification of the agent’s acts, since this issue may recur at retrial. We disagree with the defendant that ratification was not sufficiently alleged to allow recovery on that theory. The allegations of the pleadings must apprise the opposing party of the issues and claims to be made. Board of Police Commissioners v. White, 171 Conn. 553, 557, 370 A.2d 1070 (1976). We recognize that the specific facts required to establish ratification are somewhat different from those required to establish actual authority. Botticello v. Stefanovicz, 177 Conn. 22, 28, 411 A.2d 16 (1979). The question, however, of whether an agent’s conduct was ratified by his principal is so closely intertwined with the question of whether his conduct was within the scope of his agency that alleging agency gives sufficient notice that the plaintiff may also rely on ratification of the agent’s conduct. See Schenck v. Pelkey, 176 Conn. 245, 252-55, 405 A.2d 665 (1978); Leabo v. Leninski, 2 Conn. App. 715, 720-21, 484 A.2d 239 (1984). Ratification is a question of fact; Botticello v. Stefanovicz, supra, 28-29; which the trial court did not reach.

Because of our determination on the appeal, we address the issues raised by the defendant on the cross appeal only to the extent they are likely to recur at the new trial. The defendant’s claim that he cannot be held liable for $15,000 since the action is based only on the $75,000 note is without merit. The method used to compute the loans in this case indicates that, after an examination of the scope of Campbell’s agency, the defendant may be held liable for those acts which were within the scope of the agency, up to a total of $70,000, plus interest at the applicable rate; see footnote 4, supra; and not for other acts. The defendant’s liability, therefore, may be for the full amount of the guaranty or less, depending on whether all or only part of the advances covered by the ultimate note were within the scope of Campbell’s agency. It need not be all or nothing.

We cannot conclude, moreover, that because the trial court held the defendant liable for the $15,000 loan, it found that only that loan was within the scope of the agency relationship. The trial court held the defendant liable on that loan because he had notice of it; it did not find that this loan was within and the other loans were without the scope of the agency. Additionally, we do not agree with the defendant that the IOV2 percent interest rate is necessarily erroneous and that the applicable interest rate is the statutory rate. See footnote 4, supra. Nonetheless, because the cross appeal challenges the judgment for the plaintiff in the amount of $26,368.07, and because of our disposition of the appeal on the same issue, we are constrained to find error in part on the cross appeal.

There is error on both appeals, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       The pertinent portion of the document granting the power of attorney reads as follows: “I, Gary A. Gallo, M.D. ... do hereby make, nominate, constitute and appoint Thomas G. Campbell my true and lawful Attorney for me and in my name, place and stead and for my sole use and benefit to sign on my behalf as guarantor on a mortgage to be arranged on 3706-3710 St. Denise St., Montreal, Quebec, including any interim financing required prior to finalization of such mortgage arrangements. Details, rates and taxes of such mortgages and for related financing are to be arranged at Thomas Campbell’s discretion. Total financing on this particular project not to exceed $70,000 and for all and every of the purposes aforesaid I do hereby give and grant unto my said Attorney full and absolute power and authority to do and execute all acts, deeds, matters and things necessary to be done in and about the premises, also to commence, institute and prosecute all actions, suits and other proceedings which may be necessary or expedient in and about the premises, as fully and effectually to all intents and purposes as I myself could do if personally present and acting therein; also to appoint a substitute or substitutes and such substitution at pleasure to revoke, I hereby ratifying and confirming and agreeing to ratify and confirm and allow all and whatsoever my said Attorney or such substitute or substitutes shall lawfully do or cause to be done in the premises by virtue hereof.”

       The transcripts and exhibits indicate that, after the initial loan to Placements of $15,000, Placements’ account was overdrawn at various times during December, 1973, and January and February, 1974. The proceeds of the loans made to Placements, for which Campbell executed guaranties in the defendant’s name, were deposited into Placements’ checking account to cover the overdrafts. Each time one of the loans was made, the previous note was considered “paid off,” the prior notes and guaranty, if any, were destroyed or returned to Campbell, and a new note incorporating the unpaid principal due on the previous note was executed.
      Specifically, on January 11, 1974, Placements had $16,293.93 in overdrafts, which, together with a loan balance of $15,000, totalled $31,293.93. On January 14,1974, a loan for $32,000 was made by the plaintiff. On January 26, 1974, Placements had $21,221.66 in overdrafts, which, together with the loan of $32,000, totalled $53,221.66. On January 29,1974, a loan for $55,000 was made. On February 25,1974, Placements had $20,182.19 in overdrafts, which, together with the loan balance of $55,000, totalled $75,182.19. On February 26,1974, a loan for $75,000 was made, based on the guaranty executed by Campbell in the defendant’s name for all monies owed to the plaintiff by Placements up to $70,000. The defendant did not know of the overdrafts on Placements’ account.

       The pertinent portion of the guaranty reads as follows: “In consideration of the Bank of Montreal dealing with Placements G.M.O. Quebec Inc. herein referred to as the Customer, the undersigned hereby jointly and severally guarantee(s) payment to said Bank of all present and future debts and liabilities direct or indirect or otherwise, now or at any time and from time to time hereafter due or owing to said Bank from or by the Customer, and whether incurred by the Customer alone or jointly with any other Corporation, person or persons, or otherwise howsoever: provided, however, that the liability of the undersigned and of each of the undersigned herein is limited to Seventy thousand Dollars, with interest thereon at IOV2 per cent per annum from date of demand for payment of the same.”
      The defendant raises the question of the applicable interest rate on the cross appeal. This paragraph of the guaranty states that the interest rate is 10% percent per year. There is a discrepancy, unnoted by the parties, between this rate and the interest rate indicated on the $75,000 note, which is IOV4 percent per year. The defendant, a guarantor on the note, may only be held liable to the limits of the guaranty signed in his name. The power of attorney left the determination of the interest rate to Campbell’s discretion; see footnote 2, supra; and neither party argues that setting the interest rate on the guaranty was outside the scope of his agency. We leave it to the trial court to determine, in the first instance on the remand, whether the applicable interest rate on the defendant’s principal liability, if any, is the rate specified in the guaranty or the lesser rate specified in the obligation which is guarantied.
      In the same vein, the defendant’s argument that the date of demand for payment was inappropriately used to determine the date the interest began to run is meritless. The defendant’s liability depends on the guaranty, which specifies that the guarantor is liable for interest only from the date of demand for payment. The trial court did not err in using this date.

       Although this case involves a Canadian bank, a Connecticut resident, loans made in Montreal and a power of attorney signed in New York, we apply Connecticut law because that is the law on which the case was tried, and on which the appeal and cross appeal were based in this court. See Todd v. Malafronte, 3 Conn. App. 16, 18, 484 A.2d 463 (1984).

       The issue might recur, for instance, if the court determines that Campbell’s acts were outside the scope of his agency. The defendant would then only be liable if he ratified those acts. We do not suggest by reaching this issue that any of Campbell’s acts exceeded the scope of his agency.


source: Caselaw Access Project

author: Hull, J. Borden, J.,

license: Public Domain

text:
    Catherine M. Doran v. Richard S. Doran, Jr.
    (2465)
    Hull, Borden and Daly, Js.

      Argued November 14, 1984
    decision released February 19, 1985

      Gwen B. Dreilinger, with whom, on the brief, was Steven A. Torneo, for the appellant (plaintiff).

      Thomas B. Wilson, with whom, on the brief, was Basil T. Tsakonas, for the appellee (defendant).
   Hull, J.

This appeal raises the issue of whether the trial court’s refusal to decide a question of claimed support arrearages by the defendant constitutes a bar, under the doctrine of res judicata, to a later consideration of the matter. We conclude that it does not.

On March 24,1972, the trial court dissolved the marriage of the parties and the defendant was ordered to pay alimony and child support to the plaintiff. On August 19,1980, the plaintiff moved the court to find the defendant in contempt due to his failure to pay $20,986.63 in child support and $3026.67 in alimony. That motion was heard on May 5,1981, and on May 12, 1981, the court filed a memorandum of decision which stated in part: “On May 11, 1981 the defendant filed an affidavit indicating that the sum of $3,390.00 claimed by the plaintiff as the alimony arrearage had been paid on that date to the plaintiffs attorney. In addition, the defendant filed affidavits presenting evidence and claims not adduced at the original hearing. Because the defendant has made an effort to purge himself of contempt, no coercive punishment will be ordered in this proceeding. In view of the fact that the affidavits contain new evidence, no finding of support arrearage is made at this time. ” (Emphasis added.)

The plaintiff moved for clarification of this memorandum of decision asserting in part: “It is not clear from the Memorandum of Decision whether the Court is denying the arrearage or stating that the Plaintiff can have the issue of a support arrearage heard upon a reclaim.” That motion was denied without explanation on August 6, 1981.

On March 3,1982, the plaintiff again moved that the court find the defendant to be in contempt as to his child support obligation. A hearing was held on this motion on April 12, 1982, and on that same day the parties were notified, by card, that the motion was denied. On July 26,1982, pursuant to a motion for rectification of appeal, the court filed a decision on this second motion which read in toto: “Denied because in the guise of a motion for contempt, the plaintiff sought appellate review. In matters of this kind the trial court does not and cannot exercise appellate jurisdiction.”

The plaintiff appeals from the denial of her second motion for contempt, raising two major claims of error. We find one of these issues to be dispositive and decline to discuss the other.

Although the trial court never specifically stated that the basis for its decision was that the order as to the first motion was res judicata as to the second, neither party has raised any doubt that such was the court’s intent.

The doctrine of res judicata has been stated as follows: “A final judgment on the merits is conclusive on the parties in an action and their privies as to the cause of action involved.” (Emphasis added.) Corey v. Avco-Lyeoming Division, 163 Conn. 309, 317, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); In re Juvenile Appeal (83-DE), 190 Conn. 310, 313-14, 460 A.2d 1277 (1983); Gagne v. Norton, 189 Conn. 29, 32, 453 A.2d 1162 (1983); Telesco v. Telesco, 187 Conn. 715, 719, 447 A.2d 752 (1982). In the present case, the judgment on the prior motion was neither final nor on the merits. “This court has developed a number of standards delineating the requirement of finality. One test is whether the order or action terminates a separate and distinct proceeding. Dewart v. Northeastern Gas Transmission Co., 139 Conn. 512, 514, 95 A.2d 381 [1953]. Another test lies in the effect of an order ‘as concluding the rights of some or all of the parties’; Banca Commercials Italiana Trust Co. v. Westchester Artistic Works, Inc., 108 Conn. 304, 307, 142 A. 838 [1928]; Gores v. Rosenthal, 148 Conn. 218, 221, 169 A.2d 639 [1961]; and finally, if the rights of the parties are concluded so that further proceedings cannot affect them, then the judgment is final. State v. Fahey, 146 Conn. 55, 57, 147 A.2d 476 [1958]; Watson v. Howard, 138 Conn. 464, 467, 86 A.2d 67 [1952]; Northeastern Gas Transmission Co. v. Brush, 138 Conn. 370, 373, 84 A.2d 681 [1951].” Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973); E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 627, 356 A.2d 893 (1975). In determining the finality of an order, “[i]t is the effect rather than the nature of the order or judgment which is critical . . . .” Pascal v. Pascal, 2 Conn. App. 472, 476, 481 A.2d 68 (1984), citing Howarth v. Northcott, 152 Conn. 460, 462, 208 A.2d 540 (1965).

In this case, the plaintiff could not evaluate the effect of the order in question so as to plan her next step. By its failure expressly to grant or to deny the motion, the court left the plaintiff in a legal limbo. The plaintiff never received a trial court determination of the merits of her claim. Under the circumstances of this case, she is entitled, at the very least, to that much before she should be forced to appeal to this court. “It is the policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978); see also East Haven v. Paranto, 2 Conn. App. 449, 454, 479 A.2d 1225 (1984).

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance herewith.

In this opinion Daly, J., concurred.

Borden, J.,

dissenting. I disagree with the majority that the plaintiff could not evaluate the effect of the trial court’s decision on her first motion for contempt, and that she was thus left in legal limbo. Therefore, I dissent.

The parties agree that, because the defendant had fully paid the alimony arrearage, this case involves only the claimed arrearage for support of the children, the youngest of whom had reached majority on June 30, 1980, before the plaintiff’s first motion for contempt was filed. Since the arrearage at issue was frozen, this is not a case in which the plaintiff’s second motion for contempt, which is at issue here, could have produced any evidence which was not produced on her first motion.

While the first memorandum of decision of the trial court, Hon. William P. Barber, state referee, was less than a model of clarity, fairly read it indicates that the court considered the defendant to be in contempt for failure to pay the child support, but declined, in the exercise of its equitable powers, to impose punishment. That is the thrust of its reference to the defendant’s “effort to purge himself of contempt,” and of its statement that “no coercive punishment will be ordered in this proceeding.” Unless the trial court considered the defendant to be in contempt, it would have had no occasion to note his effort to purge himself and no occasion to withhold coercive punishment. This reading is buttressed by the transcript and by another part of the memorandum of decision, which indicate that the state trial referee continued the first hearing to May 12, 1981, “to have a deputy sheriff in attendance,” presumably to take the defendant into custody.

If, however, the plaintiff was in doubt, her remedy was to file a motion for articulation; see Practice Book § 3082; Vaiuso v. Vaiuso, 2 Conn. App. 141, 149, 477 A.2d 678 (1984); which she did, and, if dissatisfied with the trial court’s denial thereof, to move for appellate review of that denial under Practice Book § 3108, which she did not do. Her remedy was not to wait, as she did, eight months and refile the same motion for contempt, presenting precisely the same facts and same claim for relief, to a second judge.

Faced with this second motion, the trial court, Dannehy, J., was correct in reading it as an attempt simply to obtain the appellate review of the first decision which she did not seek when it was available. I would, therefore, find no error.

Nor is the plaintiff left without a remedy as a result of this procedural morass. She may yet sue the defendant for the amount of the arrearage, which clearly was not decided by the state trial referee. In that event, she will not be barred by either collateral estoppel or res judicata.

I note, first, that her failure to appeal the state trial referee’s final judgment in this case does not automatically mean that either of those two doctrines of preclusion will bar a second action. “[T]he standards for finality regarding appellate review and res judicata are not necessarily congruent; 1 Restatement (Second), Judgments § 13, comment b.” State v. Aillon, 189 Conn. 416, 425, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983).

Since the amount of the arrearage was not determined in this case, the doctrine of collateral estoppel, or issue preclusion, will not bar relitigation of that issue. Inre Juvenile Appeal (83-DE), 190 Conn. 310, 316, 460 A.2d 1277 (1983).

Likewise, the doctrine of res judicata, or claim preclusion; id., 313; will not bar relitigation of that issue. That doctrine precludes relitigation of a claim which resulted in a final judgment sufficiently firm and stable, and not tentative, so as to command conclusive effect. 1 Restatement (Second), Judgments § 13, comment a. It does not bar relitigation of a claim where an issue of fact has been reserved for future determination, where the court has left for future determination the amount of damages or the form or scope of other relief; id., § 13, comment b; or where it is clearly and convincingly shown that the prior litigation failed to yield a coherent disposition of the controversy. Id., § 26. Res judicata is not a bar to relitigation of an issue “ ‘where the [prior] judgment expressly reserves the question . . . .’ ” Brady v. Anderson, 110 Conn. 432, 437, 148 A. 365 (1930). Judged by these well settled standards, the referee's statement that “no finding of support arrearage is made at this time” would not bar litigation of the amount of the arrearage in a suit to determine and recover that amount.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       The plaintiff claims, first, that the court erred in failing to provide an explanation of its decision of April 12, 1982. Since the court rectified its decision on July 26,1982, that issue is moot. The second claim, which we find dispositive of this appeal in any event, is that the decision on the first motion was not res judicata as to the second. The plaintiff also claims that the court erred in denying her motion “for the reasons stated in its articulation.” This ground is duplicative of the second claim of error.


author: Daly, J.

text:
    Christopher Wilburn, Executor (Estate of Jean A. Gooch) v. Mount Sinai Medical Center Mount Sinai Medical Center v. Christopher Wilburn, Executor (Estate of Jean A. Gooch)
    (2851)
    Dupont, C.P.J., Spallone and Daly, Js.

      Argued November 14, 1984
    decision released February 19, 1985

      Scott F. Lewis, with whom, on the brief, was James T. Flaherty, for the appellant (defendant in the first case, plaintiff in the second case).

      William O. Riiska, for the appellee (plaintiff in the first case, defendant in the second case).
   Daly, J.

The plaintiff executor, Christopher Wilburn (hereinafter executor), appealed to the Superior Court from an order of the Litchfield Probate Court extending the time within which the defendant hospital, Mount Sinai Medical Center (hereinafter hospital), could present its claim against the estate. The hospital instituted a separate action against the executor in four counts for services rendered the executor’s decedent. The first two counts of the complaint in that action claim $13,824.45, while the last two counts claim $17,750.64. These cases were consolidated for trial. From the judgments rendered in favor of the executor in both cases, the hospital has filed a joint appeal.

The trial court found the following facts: The executor’s decedent was a patient at the hospital from June 15,1978, until December 14,1978. She was readmitted to the hospital on December 15, 1978, and remained there until her death on February 2, 1979. In March, 1979, the hospital mailed statements to the decedent’s New York address showing a balance of $17,750.64 for the first stay and $13,824.45 for the final stay at the hospital. The decedent’s son, Christopher Wilburn, received the statements.

On June 1, 1979, Wilburn became executor of the estate. The Litchfield Probate Court set the period of June 1, 1979, to September 1, 1979, for the filing of creditors’ claims. On September 24, 1979, a claim for $13,824.45 was received by the executor, who rejected the claim in writing because the claims period had expired.

In June, 1980, the hospital petitioned the Probate Court for an extension of the claim period. On June 16, 1980, the Probate Court retroactively extended the period for the presentation of claims to the estate from September 1 to November 1,1979. The executor again rejected the claim and appealed the Probate Court’s order granting the extension of time. Thereafter, on November 13, 1980, the hospital instituted its action to recover the $13,824.45 and $17,750.64 for services rendered. The trial court ruled adversely to the hospital in both instances. In its brief on appeal, the hospital limited its claim to challenge only that portion of the judgment pertaining to the third and fourth counts of its complaint relating to the first hospital stay amounting to $17,750.64.

The hospital claims in its appeal that the executor did not timely raise General Statutes § 45-213a as a special defense and, furthermore, that it was not applicable to the $17,750.64 charge. The trial court allowed the executor to amend his special defense during the trial, setting forth the hospital’s failure to comply with § 45-213a.

A trial court may allow, in its discretion, an amendment to pleadings before, during, or after trial to conform to the proof. Such a ruling can be reversed only on a clear showing of abuse of discretion. Saphir v. Neustadt, 177 Conn. 191, 206, 413 A.2d 843 (1979).

Our courts have followed a liberal policy relative to permitting amendments to pleadings after the expiration of the time during which amendments may be filed as a matter of right. The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial. The record does not show that the hospital moved for either a postponement of the trial or a delay to permit evidence concerning notice to be made on behalf of the hospital. We cannot say that the court abused its discretion by the ruling. Practice Book § 6; Smith v. New Haven, 144 Conn. 126, 132-33, 127 A.2d 829 (1956).

The hospital contends that although the $13,824.45 claim was unequivocally denied, there was no denial of the $17,750.64 claim and it therefore was not obligated to follow the procedure outlined in General Statutes § 45-213a. The hospital further relies on the statutory language “may give written notice” (Emphasis added.) as the basis for its contention that the statute is inapplicable.

The general rule is that a time limitation on the enforcement of a right, created by statute and not existing at common law, is a part of the right and must be met in order to provide a court with jurisdiction to hear the cause of action. Karp v. Urban Redevelopment Commission, 162 Conn. 525, 529, 294 A.2d 633 (1972). “The word ‘may’ when used in a statute is to be interpreted as mandatory rather than directory if the context of the statute permits it and it is necessary to do so in order to make the statute effective to carry out the legislative intent.” Id., 530. The legislative intent is for the prompt settlement of estates. 2 Locke & Kohn, Connecticut Probate Practice § 504. Hence, “may” is mandatory for creditors within the context of General Statutes § 45-213a.

The written denial of the $13,824.45 claim required the hospital to comply with the provisions of General Statutes § 45-210 concerning the commencement of suit within a four month period following such a written denial. The inaction of the executor in response to the $17,750.64 claim required the hospital to comply with the provisions of General Statutes § 45-213a concerning notice of intent to sue and the commencement of suit within four months thereafter.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       General Statutes § 45-213a provides: “procedure when fiduciary IGNORES PRESENTED CLAIM. PERIOD of limitation. Any claimant who has presented his claim in accordance with sections 45-204b, 45-205 and 45-207 to 45-209, inclusive, who has not received written notice of the disallowance of his claim from the fiduciary, wholly or in part, within thirty days following the end of the limitation of time for presenting claims as set by the court of probate under section 45-205 or any extension thereof, may give written notice to the fiduciary that he intends to bring suit upon said claim within four months after the date of such notice. If such claimant fails to bring suit within four months from the date of such notice, such claimant shall be barred from commencing an action on his claim against the fiduciary. ...”


author: Hull, J.

text:
    State of Connecticut v. Jessie Munos Zayas
    (2685)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued December 6, 1984
    decision released February 19, 1985

      Joseph G. Bruckman, assistant public defender, with whom, on the brief, were Joette Katz, public defender, and Margaret Hayman, assistant public defender, for the appellant (defendant).

      Lawrence J. Tytla, deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, Martin Rader and John M. Massameno, assistant state’s attorneys, for the appellee (state).
   Hull, J.

The defendant, Jessie Munos Zayas, appeals from the judgment of the trial court upon his conviction, after a jury trial, on charges of threatening in violation of General Statutes § 53a-62, reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a) and carrying a pistol without a permit in violation of General Statutes § 29-35. Zayas raises four major claims of error: (1) the failure of the court to instruct the jury on self-defense as a justification for the offenses of threatening and reckless endangerment in the first degree; (2) the denial of the defendant’s motion to suppress; (3) the denial of his motion for a mistrial or, in the alternative, to strike testimony; and (4) the denial of his motion for judgment of acquittal on the charge of carrying a pistol without a permit. We conclude that the court did not err.

Late on the evening of October 31,1978, the defendant and his companion, Angela Novicky, were returning home from a halloween party. As they walked down Post Office Street in Danbury they came upon three men, in costume, walking down the street on the opposite sidewalk. One of the men was singing, and the defendant shouted to him to “shut up.” From that point, there are several widely different versions of what occurred. If the jury accepted the defendant’s trial testimony as credible, they could have found the following: The defendant and Novicky crossed the street and, while Novicky continued on her way, the defendant turned to confront the three men who had begun to shout at him. One of the men, later identified as Bassam Sabbagh, pulled out a gun and the defendant grabbed Sabbagh’s wrist so as to direct the gun at the ground. One of Sabbagh’s companions, Gary Goetz, then struck Zayas and the three men then beat him unconscious before leaving in a car.

Novicky had, in the interim, gone to a nearby shop where she called the police who arrived a short time later. When they arrived, the police found the defendant, unconscious, on the ground with a .25 caliber Colt automatic pistol between his legs. The gun was jammed when the police found it so that it would not fire.

The defendant was taken to Danbury Hospital and was subsequently charged with the offenses which are the subject of this appeal. The police also picked up Sabbagh, Goetz and Mark Neville, the third man, later that night.

On November 1,1978, Officers Vincent Pannozza and Robert Lollie questioned Zayas at the hospital. They asked him if he was willing to speak to them and, after he agreed to do so, Pannozza read him his rights as required by Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Zayas then stated that he understood his rights and he signed the card from which they had been read. Pannozza then asked the defendant what had happened the night before and Zayas narrated the entire incident. Zayas’ statement at that time, if Pannozza’s testimony is believed, directly contradicts Zayas’ trial testimony.

After Zayas was released from the hospital, he was taken to the Danbury police station where, while awaiting arraignment, he again spoke to police. This second statement was made on November 2, 1978, to Detective John Merullo. Zayas had asked Merullo what charges he faced. Merullo read the report on the incident and answered the defendant. He then asked Zayas about his injuries and the events of the night in question. Zayas responded with a narrative very similar to the one he had given Pannozza the day before.

Prior to his trial, the defendant filed a motion to suppress statements made by him to police officers after his arrest. That motion was denied and the case proceeded to trial.

After the direct testimony of Pannozza regarding his interview with Zayas, the defendant moved to compel production of Pannozza’s rough notes, made at the time of the interview, pursuant to Practice Book § 752. Those notes, which Pannozza claimed had been incorporated into his official report, had since been destroyed. Consequently, the defendant moved for a mistrial or, in the alternative, to strike Pannozza’s testimony pursuant to Practice Book § 755.® That motion was denied.

At the close of the trial, the court also denied the defendant’s motion for judgment of acquittal on the charge of carrying a pistol without a permit. That motion was premised on the defendant’s argument that such a charge requires that the pistol be operable and that the pistol in this case could not be fired.

The defendant requested that the court instruct the jury on self-defense as a justification for all of the crimes with which he was charged. The court denied that request and the jury returned verdicts of guilty on all charges. The defendant was sentenced to concurrent terms of 360 days imprisonment on the charges of threatening and reckless endangerment and to two to five years imprisonment on the charge of carrying a pistol without a permit. He has since served his sentence.

I

“Self-defense is not an affirmative defense under our statutes. It may, however, be asserted as a defense by way of justification pursuant to § 53a-16 of the General Statutes. The burden of proof applicable to the claimed defense is recited in § 53a-12 (a) of the General Statutes, which provides: ‘(a) When a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt.’ (Emphasis added.)” (Footnote omitted.) State v. Cassino, 188 Conn. 237, 241, 449 A.2d 154 (1982). “ ‘A defendant must, however, assert a recognized legal defense before such a charge will become obligatory.’ State v. Rosado, [178 Conn. 704, 707, 425 A.2d 108 (1979)]. Requests to charge have been denied where such admissions have been lacking. See State v. Hawkins, 173 Conn. 431, 436, 378 A.2d 534 (1977) (entrapment); State v. Avery, 152 Conn. 582, 584, 211 A.2d 165 (1965) (entrapment). We have held, with respect to affirmative defenses, ‘that only when evidence indicating the availability of one of the . . . legally recognized defenses is placed before a jury is a defendant entitled as a matter of law to a theory of defense instruction.’ (Emphasis in original.) State v. Rosado, supra, 708; State v. Hawkins, supra, 435-37. Although this case involves a nonaffirmative defense issue, similar reasoning nonetheless applies.” State v. Cassino, supra, 243; State v. Hardwick, 1 Conn. App. 609, 619, 475 A.2d 315, cert. denied, 193 Conn. 804, 476 A.2d 145 (1984).

In the present case, the defendant never raised the self-defense issue at trial. The issue was not expressly raised until the request to charge the jury on self-defense was made. Nor was the issue raised by the defendant’s testimony. In fact, such a charge would directly contradict the defendant’s trial testimony which was to the effect that he never possessed the gun and that, although he might have touched it, he “was holding [Sabbagh] where he would not be able to point the gun at me. He was pointing the gun at the ground.” (Emphasis added.)

The only evidence supportive of the defendant’s self-defense claim was the prosecution’s own evidence, contradicting the defendant’s version of the incident, to the effect that Zayas pulled the gun and threatened Sabbagh and his companions with it. The defendant expressly denied having the gun. When the jury instruction has the effect of contradicting the defendant’s own evidence, he is not entitled to it. United States v. Crowder, 543 F.2d 312, 317 (D.C. Cir. 1976), cert. denied, 429 U.S. 1062, 97 S. Ct. 788, 50 L. Ed. 2d 779 (1977); State v. Cassino, supra, 244. While the defendant is entitled to have the state disprove that he acted in self-defense once that issue is raised, the defendant is not entitled to ambush the state with such a claim after the state no longer has the ability to provide evidence rebutting that claim.

II

The defendant next claims that the court erred in refusing to declare a mistrial or to strike the testimony of Pannozza pursuant to Practice Book § 755 as a sanction for his failure to produce his rough notes as required by Practice Book § 752. We conclude that the court did not err in denying that motion.

“ ‘Whether or not sanctions for nondisclosure should be imposed depends in large measure upon the extent of the Government’s culpability for failure to make disclosable material available to the defense, on the one hand, weighed against the amount of prejudice to the defense which resulted, on the other.’ United States v. Miranda, 526 F.2d 1319, 1324 (2d Cir. 1975), cert. denied, 429 U.S. 821, 97 S. Ct. 69, 50 L. Ed. 2d 82 (1976). Applying a balancing test, the United States Court of Appeals for the Second Circuit held that the trial court’s ruling denying the defendant’s motion to suppress the testimony of a witness because a tape recording of a conversation between her and the defendant had been lost was not reversible error, for that would be a heavy sanction to the government for loss of a piece of evidence on which there was other primary evidence. Id. In United States v. Perry, 471 F.2d 1057 (D.C. Cir. 1972), the court recognized that this balancing approach gives broad discretion to the trial court.” (Emphasis added.) State v. Shaw, 185 Conn. 372, 386, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982); State v. Meyers, 193 Conn. 457, 467, 479 A.2d 199 (1984).

In State v. Meyers, supra, the court held that “[tjhere is absolutely nothing in the record from which we can infer that the tape recorded statement might have contained any inconsistency. While we repeat that we do not countenance the destruction of verbatim statements, in the particular circumstances of this case, we find no error in the trial court’s denial of the defendant’s motion to strike the victim’s testimony.” Id., 469. The same result is called for in this case. Although Pannozza’s actions cannot be condoned, neither should they be sanctioned where it is a reasonable conclusion, from his testimony, that the substance of the lost notes was incorporated into his official report only a short time later.

Ill

The defendant’s third claim of error relates to the court’s denial of his motion to suppress Zayas’ statements to Pannozza, Lollie and Merullo. We conclude that the court was correct in allowing those statements into evidence.

Zayas claims that the statements which he made on November 1,1978, and November 2,1978, were made without an effective waiver of his fifth amendment constitutional right to remain silent. “The admissibility of the defendant’s confession under these circumstances is governed by well-established principles. In order to prove that the defendant has effectively waived his privilege against self-incrimination, the state must prove, by a preponderance of the evidence; Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Wilson, 183 Conn. 280, 286-87, 439 A.2d 330 (1981); State v. Derrico, 181 Conn. 151, 162, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); that the defendant knowingly and intelligently waived his constitutional right to remain silent. North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Waiver is not conclusively established by demonstrating that Miranda warnings were given and understood. State v. Wilson, supra, 284; see United States ex rel. Abubake v. Redman, 521 F. Sup. 963, 975 (D. Del. 1981). Nor is it conclusively rebutted by refusal to sign a form waiving Miranda rights; North Carolina v. Butler, supra, 373; State v. Derrico, supra, 163-64; nor by refusal to sign a written statement in the absence of legal counsel. State v. Frazier, 185 Conn. 211, 225, 440 A.2d 916 (1981). In the absence of an express waiver, the state bears the heavy burden of demonstrating, as a matter of fact, that ‘waiver can be clearly inferred from the actions and words of the person interrogated.’ North Carolina v. Butler, supra, 373. Although the issue is therefore ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence. State v. Frazier, supra, 219.” State v. Harris, 188 Conn. 574, 579-80, 452 A.2d 634 (1982).

In State v. Harris, supra, the defendant, upon being advised of his rights, agreed to make an oral, although not a written statement. This, the court found, was sufficient to constitute a waiver. Similarly, Zayas was asked to make an oral statement on November 1, and he agreed to do so. He was immediately read his rights thereafter. We conclude that this constituted a valid waiver. Zayas easily could have recanted his agreement to make a statement upon being told of his rights. His course of conduct was more than the mere silence presented to the court in State v. Wilson, 183 Conn. 280, 439 A.2d 330 (1981), wherein the court found no valid waiver.

Similarly, Zayas’ statement to Merullo on November 2 was covered by the waiver he made the day before. See Biddy v. Diamond, 516 F.2d 118, 122 (5th Cir. 1975), cert. denied, 425 U.S. 950, 96 S. Ct. 1724, 48 L. Ed. 2d 194 (1976). Thus, the defendant’s right to remain silent was not violated in this case.*

IV

The defendant’s final claim of error relates to the court’s denial of his motion for judgment of acquittal on the charge of carrying a pistol without a permit. That motion was predicated on the defendant’s claim that because it was jammed, the gun found with Zayas was not a “firearm” as defined by General Statutes § 53a-3 (19) and, therefore, could not be a “pistol” within the meaning of General Statutes § 29-35.

The defendant asserts that the definition of “pistol” or “revolver,” as the term is used in General Statutes § 29-35, is provided by General Statutes § 29-27 which refers to a pistol as a “firearm.” “Firearm” is, in turn, defined in General Statutes § 53a-3 (19) as a “weapon, whether loaded or unloaded from which a shot may be discharged.” Thus, the defendant claims that because the gun was jammed when found by police it was not a weapon “from which a shot may be discharged,” and, therefore, he should have been acquitted of carrying a pistol without a permit.

Officer Andrew Woods, who had extensive experience with firearms and who had inspected and test-fired the gun found with Zayas, testified that the gun could have jammed when Zayas attempted to cock it or when it fell to the ground. The jury could reasonably have concluded that the gun was operable when Zayas held it. Thus, the court was correct in refusing to grant the defendant’s motion for acquittal. “ ‘[T]he issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.’ ” State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979); State v. Payne, 186 Conn. 179, 181-82, 440 A.2d 280 (1982); State v. Stankowski, 184 Conn. 121, 126, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980); State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980); State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980); State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978).

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       The defendant raised a total of eight claims of error in this appeal. In addition to the claims discussed in the text herein, the defendant raises three claims of error as to the court’s instructions to the jury. One of those claims was withdrawn at oral argument. We find the remaining two to be without merit. The court’s instructions were fair overall. State v. Storlazzi, 191 Conn. 453, 466, 464 A.2d 829 (1983).
      The remaining claim of error relates to the trial court’s refusal to admit six photographs into evidence. That decision was well within the court’s broad discretion in such matters. State v. Asherman, 193 Conn. 695, 722, 478 A.2d 227 (1984); State v. Piskorski, 177 Conn. 677, 699, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).

       General Statutes § 53a-19 (a) states: “Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”

       Zayas told Pannozza that he had found the gun on the street earlier, that he had picked it up and that he did not remember pulling it out during the incident. At trial, he expressly denied that he had found the gun earlier.

       Practice Book § 752 states: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

       Practice Book § 755 states: “If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in his discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared.”

       The defendant has since withdrawn his claim to such an instruction as to the charge of carrying a pistol without a permit.

       See footnote 6, supra.

       See footnote 5, supra.

       The defendant also claims that his sixth amendment constitutional right to counsel was violated by this second conversation he had with police because an information had been lodged against him by the time that second conversation occurred. We do not consider this claim as there is nothing in the record to substantiate the defendant’s assertion regarding when the information was filed.

       The defendant also raises, as a second argument concerning his Miranda rights, the claim that the trial court improperly placed the burden of proving a violation of those rights upon him rather than placing the burden of compliance with Miranda, upon the state. We conclude that this argument is without merit.
      The testimony of Officers Pannozza, Lollie and Merullo at the hearing on the defendant’s motion to suppress was uncontroverted. The defendant did not, in any way, dispute the officers’ claims as to their compliance with Miranda and the officers testified that they fully complied therewith.
      The court stated that “the defendant has [failed] to make a prima facie showing that there is any merit to his motion . . . and therefore the state has no burden to go forth and show and justify the motion.” The defendant took exception to this comment but he did not take the witness stand, nor did he make an offer of proof or offer any other evidence on the subject. Under these circumstances, we conclude that the court’s statement did not shift the burden of proof to the defendant with the result that he was not prejudiced thereby. “When the court rules on a motion to suppress without detailing the facts supporting its decision, an appellate court may look to the evidence produced in support of the ruling. See, e.g., State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984).” State v. Martin, 2 Conn. App. 605, 614, 482 A.2d 70 (1984). We hold that the court was correct in concluding that the state did not have to go any further; not because the defendant had failed to make a “prima facie” case, but because there was sufficient credible testimony before the court for it to find by direct testimony and inference from Zayas’ course of conduct that the state had met its burden of proving compliance with the Miranda requirements.


author: Per Curiam.

text:
    American Frozen Foods, Inc. v. International Brotherhood of Teamsters, Local 145, et al.
    (2645)
    Hull, Borden and Spallone, Js.
    Argued December 6, 1984
    decision released February 19, 1985

      Paul E. Knag, with whom was William J. Torres, for the appellant (plaintiff).

      BurtonS. Rosenberg, for the appellees (defendants).
   Per Curiam.

The plaintiff, American Frozen Foods, Inc., and the defendant International Brotherhood of Teamsters, Local 145 (hereinafter union), entered into a collective bargaining agreement on April 1,1981. The defendant Thomas Hanrahan was a member of the collective bargaining unit represented by the union. On April 6, 1982, the plaintiff discharged Hanrahan, citing a customer complaint received on March 23,1982, and verbal warnings which Hanrahan had previously been given for incomplete or poor quality work.

Hanrahan filed a grievance pursuant to the collective bargaining agreement and the matter was submitted for arbitration to the state board of mediation and arbitration, which found that Hanrahan had not been discharged for just cause. The plaintiff thereupon filed an application in the Superior Court to vacate the award, and the defendants filed a cross application to confirm it. On September 29, 1983, the trial court denied the plaintiffs application to vacate and granted the defendants’ cross application. On appeal, the plaintiff claims that the trial court erred in confirming the award.

The plaintiff has briefed five claims of error, all of which attack the factual findings of the trial court. “The Supreme Court has repeatedly criticized and attempted, apparently in vain, to discourage this misuse of the appellate process. Baker v. Baker, 166 Conn. 476, 478, 352 A.2d 277 (1974); Southern New England Contracting Co. v. State, 165 Conn. 644, 646, 345 A.2d 550 (1974); Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 3, 327 A.2d 583 (1973). Questions of fact are to be determined solely by the trial court. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982). The weight given the evidence and the credibility of the witnesses are likewise within the province of that court. Dubicki v. Dubicki, 186 Conn. 709, 713, 443 A.2d 1268 (1982); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 281, 471 A.2d 651 (1984). Our review of the record in this case indicates that there was ample evidence to support the court’s findings and conclusions. Frumento v. Mezzanotte, 192 Conn. 606, 617-18, 473 A.2d 1193 (1984); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Connecticut National Bank v. Nagy, 2 Conn. App. 448, 448-49, 479 A.2d 1224 (1984). We will not retry this case on appeal.

There is no error.

       Article Fourteen of the collective bargaining agreement provided as follows: “It is agreed that should any change [sic] of violation of this Agreement or any charge of discrimination or any other grievance or dispute arise between the parties hereto growing out of the interpretation or application of the Agreement, an attempt shall be made between the parties to settle such controversy amicably. Grievances must be submitted within five (5) days of the time they occur. In the event that such controversy cannot be settled amicably within ten (10) days of the time they have been considered by the parties, same shall be referred to the State Board of Mediation and Arbitration at the request of either party. The decision of said Board shall be final and binding upon both parties. Time limits may be extended by mutual agreement of the parties, and such extension shall not be unreasonable [sic] withheld.”


text:
    Stanley V. Tucker v. Connecticut Natural Gas Company et al.
    (2562)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued December 12, 1984
    decision released February 19, 1985

      Stanley V. Tucker, pro se, the appellant (plaintiff).

      Phyllis E. Lemell, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert S. Golden, Jr., assistant attorney general, for the appellee (defendant department of public utility control).
   Daly, J.

This action, originally commenced on the small claims docket, was transferred to the regular civil docket where the plaintiff filed a three count complaint. In the first count, the plaintiff alleged that the defendant Connecticut Natural Gas Company (CNG) failed to put the gas service in the names of the individual tenants of the plaintiff’s property and that the defendant department of public utility control (DPUC) did not provide consumer assistance in this regard. The second count alleged a failure to provide adequate gas pressure on the part of CNG, while the third count alleged that CNG attempted to collect gas bills from the plaintiff, which bills were handled by a rent receiver. The plaintiff sought damages, punitive damages and a declaratory judgment as relief. DPUC moved to dismiss the complaint on the grounds of sovereign immunity, failure to exhaust administrative remedies and failure to comply with the notice requirements of a declaratory judgment. The trial court dismissed the first and third counts of the complaint on the ground that the court lacked jurisdiction to render a declaratory judgment because all interested parties were not given reasonable notice of the action. The motion to dismiss the second count was denied. The plaintiff has appealed from the dismissal of the first and third counts.

The plaintiff claims on appeal (1) that the defendants waived all jurisdictional defenses by not filing a motion to dismiss within thirty days of filing their appearance, (2) that the defendants submitted to the jurisdiction of the court by having the matter transferred from the small claims docket, (3) that the tenants of the subject premises are not necessary parties, and (4) that the former rent receiver of the subject premises is not a necessary party.

Although the plaintiff has claimed that the defendants have waived any jurisdictional defects, Practice Book § 145 provides that “[a]ny claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” It has been repeatedly held that the question of subject matter jurisdiction can be raised at any time and the lack thereof cannot be waived. LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976).

“An action for declaratory judgment is a special proceeding under General Statutes § 52-29, implemented by Practice Book §§ 389 and 391. . . . Section 390 (d) requires that all persons having an interest in the subject matter of the complaint be parties to the action or have reasonable notice thereof. . . . This court has consistently required strict adherence to this rule. . . . ‘A failure to comply with § 309 (d) [now § 390 (d)] is a jurisdictional defect and, as such, can be raised even on appeal by the court itself.’ ” (Citations omitted.) Russo v. Watertown, 184 Conn. 30, 33, 441 A.2d 56 (1981).

Practice Book § 390 provides, in pertinent part, that “[t]he court will not render declaratory judgments upon the complaint of any person . . . (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.” Section 390 (d) is more than a mere procedural regulation. It recognizes and implements the basic principle that due process of law requires that the rights of no man shall be judicially determined without affording him a day in court and an opportunity to be heard. Russo v. Watertown, supra, 34; Benz v. Walker, 154 Conn. 74, 77, 221 A.2d 841 (1966). It is clear that the tenants and the former rent receiver of the subject property, in addition to other utility companies, who are not parties to the action, may have a legitimate interest in the outcome of the present case and they are entitled to notice. Whether those persons or entities support the plaintiff’s or the defendants’ position, they are entitled to reasonable notice and an opportunity to be heard because they have an interest in the subject matter. Russo v. Watertown, supra, 35.

The plaintiff also sought, along with his prayer for declaratory relief, an injunction and damages. These claims, however, must fall with the claim for declaratory judgment because they were merely ancillary to it. See Pinnix v. LaMorte, 182 Conn. 342, 343, 438 A.2d 102 (1980).

Since the record does not indicate that all persons having a legitimate interest in the subject matter are parties to the action or were given reasonable notice thereof, the trial court was without jurisdiction and properly granted the motion to dismiss.

There is no error.

In this opinion the other judges concurred.

       The defendant CNG did not participate in this appeal. The defendant DPUC has defended against the appeal even though it is only mentioned in the first count.


text:
    Stelco Industries, Inc. v. Peter R. E. Zander, Trustee, et al.
    (2179)
    Hull, Borden and Daly, Js.
    Argued December 12, 1984
    decision released February 19, 1985

      Charles A. Sherwood, for the appellant (named defendant).

      Joel Z. Green, for the appellee (plaintiff).
   Daly, J.

The plaintiff instituted this action to recover for building materials and supplies sold and delivered to the defendant under an application for credit. The defendant filed a special defense claiming usury. Both parties filed motions for summary judgment. From the granting of the plaintiffs motion for summary judgment and the denial of the defendant’s motion, the defendant has appealed.

The credit agreement between the parties provided, inter alia, that “[a] service charge (designated a ‘finance’ charge) accrues on amounts outstanding over 30 days after their payment due date. Amounts over 30 days past their payment due date accrue a service (finance) charge of 1V2% per month, AN ANNUAL PERCENTAGE RATE OF 18%, until paid. Service (finance) charges accrued but not billed will be charged on the next statement rendered if not previously paid with the past due balance. The monthly charge of 1V2% will continue after a court judgment on an action to collect amounts due, foreclose a mechanic’s lien or mortgage or otherwise obtain payment, until any amounts due are paid in full.” The trial court held that the usury statute did not apply in this instance since it did not involve the loan of money.

There is no question that the amount of interest being charged is 18 percent. General Statutes § 37-8 provides that “[n]o action shall be brought to recover principal or interest, or any part thereof, on any loan prohibited by sections 37-4 ... or upon any cause arising from the negotiation of such loan.” The sole issue on appeal is whether the transactions in question come within the ambit of General Statutes § 37-4.

The plaintiff contends that the usury statute has no application to the transactions between it and the defendant because in no instance out of which the defendant’s indebtedness to the plaintiff arose did the plaintiff “loan money” to him. The defendant points out, on the other hand, that since the plaintiff is seeking interest in excess of 12 percent per annum on the amount due it on the sales price for goods sold and delivered, which was unpaid for more than thirty days after delivery, the interest being sought is for the forbearance of the debt created by their delivery and acceptance. The defendant contends that the usury statute is applicable to such a transaction.

There is no doubt that the defendant’s indebtedness to the plaintiff arose out of credit sales transactions, and not out of the loan of money to him. This, the defendant does not dispute. Nor does he dispute the terms on which the goods were sold. “A seller’s extension of credit by demanding a premium (a time-price differential) in the amount representing the difference between a cash and credit price is not considered to be a loan of money for usury purposes.” DeSimon v. Ogden Associates, 88 App. Div. 472, 479, 454 N.Y.S.2d 721 (1982).

A case similar to this arose in the United States District Court for the District of Connecticut, in Scientific Products v. Cyto Medical Laboratory, Inc., 457 F. Sup. 1373 (D. Conn. 1978), wherein the court, after a thorough analysis of this state’s usury statute, concluded that “Connecticut’s courts have never expanded the usury statute to include any transaction which was not a loan of money, and, on the basis of what has been considered above, I do not believe that they would do so in this case if it was before them for decision. Furthermore, the fact that the Connecticut statute provides a particularly severe penalty—lenders who violate the statute shall forfeit not only all interest but also all the principal . . .—is an additional reason for not reading the usury statute more broadly than it is written.” Id., 1377-78.

“Both the judicial and legislative treatment of debts arising from the sale of goods on credit clearly indicate that Connecticut adheres to the traditional, historical and analytical views that sales on credit are not equated with loans and that the prohibition of usurious interest applies only to loans of money. Although Connecticut’s legislature has enacted a great amount of legislation to regulate the interest charges made by sellers of goods to consumers, it has not amended its long-standing statute prohibiting usurious interest charges on the loan of money. In the face of such long silence by the legislature, for this court to decide that the prohibition of Connecticut’s usury statute should extend to debts arising out of other kinds of transactions than from a loan of money would be presumptuous. Such a decision calls for a policy judgment. Unless the courts are to become super-legislators, the elected legislators must be permitted to make that judgment.” Id., 1380.

We adopt the rationale of the District Court.

There is no error.

In this opinion the other judges concurred.

       The action was brought against the defendant in his capacity as trustee and in his ¡individual capacity. In this opinion, he will be referred to as the defendant.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       General Statutes § 37-4 provides: “No person . . . shall, as guarantor or otherwise, directly or indirectly, loan money to any person and, directly or indirectly, charge, demand, accept or make any agreement to receive therefor interest at a rate greater than twelve per cent per annum.”


text:
    Ricardo C. DeSantis et al. v. Piccadilly Land Corporation et al.
    (2653)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued December 12, 1984
    decision released February 26, 1985

      Edward J. Markosky, Jr., for the appellant (defendant Julian Spiro).

      Gordon A. Evans, with whom, on the brief, was Richard H. Lamere, for the appellees (plaintiffs).
   Daly, J.

The plaintiffs, Ricardo C. and Sandra DeSantis, instituted an action against the defendant Piccadilly Land Corporation (hereinafter Piccadilly), and two individual defendants, Julian Spiro and Abram Spiro, claiming breach of contract, fraudulent misrepresentation and wrongful disbursement of funds. From a judgment rendered against Piccadilly and against the defendant Julian Spiro (hereinafter Spiro), Spiro has appealed.

The trial court found the following facts: The defendant Julian A. Spiro was the president, treasurer, director and majority shareholder of Piccadilly. Prior to December 2, 1974, Spiro represented that Piccadilly was actively engaged in the construction of homes and that its financial status was sound. Relying on these representations, which proved to be false, the plaintiffs entered into a written agreement with Piccadilly on December 2, 1974, which provided that Piccadilly would build a home for the plaintiffs according to certain plans and specifications. The home was to be ready by mid-April, 1975. Pursuant to the agreement, the plaintiffs made an $8000 downpayment. After performing some site work and putting in the footings, Piccadilly ceased work on the home.

The court further found the following facts: Spiro made statements concerning Piccadilly’s finances which he knew were untrue. Additionally, Piccadilly was not busy with the construction of homes as represented and was in financial straits at the time the agreement was signed. The agreement provided for the return of the $8000 if a satisfactory mortgage was not obtained by February 1, 1975. Spiro indicated that he had mortgage money available and would provide the necessary money to the plaintiffs as well as to any purchaser of the plaintiffs’ residence.

Spiro maintained to the plaintiffs as late as May, 1975, that he was in good financial shape. At no time was it indicated that there were mortgages and liens against the property, even though the plaintiffs inquired about financial conditions. Most of Piccadilly’s records were never produced. Spiro and Piccadilly were not solvent at the time of the signing of the agreement, despite Spiro’s assertions to the contrary.

On May 13,1983, the trial court rendered judgment for the plaintiffs against Spiro individually and against Piccadilly in the amount of $8000. It also awarded punitive damages to the plaintiffs, which were to be determined at a future hearing.

The court noted in its memorandum of decision that, although a claim for piercing the corporate veil was not made, the evidence offered at trial would support such a claim and it therefore permitted the plaintiffs to file an additional count to their complaint, alleging Spiro to be the dominator and alter ego of the corporation. The trial court found in favor of the plaintiffs against Spiro on this count in a supplemental memorandum of decision dated July 12,1983. Spiro was ordered to pay interest on the $8000 awarded to the plaintiffs in the sum of $4396.44 as of May 13,1983, plus punitive damages of $4132.15, office costs of $322.07 and court costs.

Spiro claims that the court erred in the following respects: (1) in concluding that Spiro was liable on the basis of fraud; (2) in concluding that Spiro was the alter ego of Piccadilly; (3) in granting punitive damages; (4) in permitting the plaintiffs to amend their amended and substituted complaint many months after trial and after the memorandum of decision had been filed; and (5) in permitting the plaintiffs to introduce evidence of damages, costs and the expenses of litigation many months after the trial and subsequent to the filing of the memorandum of decision.

The proper standard for establishing fraud, employed by the trial court in this case, is by “clear and satisfactory evidence.” We have held that such an enhanced civil standard means that the facts asserted are highly probably true, or that the probability of their truth is substantially greater than the probability of their falsity. Clark v. Drska, 1 Conn. App. 481, 487, 473 A.2d 325 (1984).

In determining liability on the basis of fraud, the court had to assess the credibility of the witnesses appearing before it. “Since the trier of fact is the ultimate judge of the credibility of witnesses, we may not pass upon the credibility of the witnesses.” State v. DeForge, 194 Conn. 392, 398, 480 A.2d 547 (1984).

The trial court specifically found that Spiro was not a credible witness. There was clear and satisfactory evidence for the trial court to have concluded that Spiro continually misrepresented that he was financially solvent, that the corporation was solvent when it only had as assets a $10,000 checking account, that the corporation was building homes when others were not, that he failed to disclose numerous preexisting encumbrances and liens, and that he failed to produce vital corporate records.

We turn now to the claim that the court erred in concluding that Piccadilly and Spiro were alter egos. “Generally, a corporation is a distinct legal entity and the stockholders are not personally liable for the acts and obligations of the corporation. . . . Courts will, however, disregard the fiction of a separate legal entity to pierce the shield of immunity afforded by the corporate structure in a situation in which the corporate entity has been so controlled and dominated that justice requires liability to be imposed on the real actor. . . . We have affirmed judgments disregarding the corporate entity and imposing individual stockholder liability when a corporation is a mere instrumentality or agent of another corporation or individual owning all or most of its stock.” (Citations omitted.) Saphir v. Neustadt, 177 Conn. 191, 209, 413 A.2d 843 (1979).

The record before us reasonably supports the court’s findings that Piccadilly was a corporation in name only and that it was operated as the instrumentality or alter ego of Spiro, subject to his sole control. As such, Piccadilly’s activity was not indicative of corporate activity, but was symptomatic of the business operations of an individual. Spiro was the president, treasurer, director and majority shareholder of Piccadilly. He ran the business, fully controlled it, and alone made all its decisions.

In view of those facts, the court could reasonably conclude that Spiro completely dominated the corporation to the point where Piccadilly had no separate existence. Moreover, the court could conclude that there existed a unity of interest and ownership between Piccadilly and Spiro such that the purposes of justice would be served by disregarding the shield of Piccadilly’s corporate structure. In short, we find no error in the court’s conclusions imposing liability on Piccadilly and on Spiro individually. Saphir v. Neustadt, supra, 211. Additionally, we cannot disturb a finding based on a determination of the credibility of witnesses. Zapolsky v. Sacks, 191 Conn. 194, 201, 464 A.2d 30 (1983).

In an action for fraud, the plaintiffs are entitled to punitive damages, in addition to general and special damages. Brower v. Perkins, 135 Conn. 675, 680-81, 68 A.2d 146 (1949). The purposes of awarding punitive damages is not to punish the defendant for his offense, but to compensate the plaintiff for his injuries. Doroszka v. Lavine, 111 Conn. 575, 577-78, 150 A. 692 (1930). The rule in this state as to torts is that punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights. Collens v. New Canaan Water Co., 155 Conn. 477, 489, 234 A.2d 825 (1967).

The plaintiffs alleged that wanton, wilful and false representations had been made by Spiro, and the court found that the evidence adduced substantiated this allegation. The trial court was made aware that the plaintiffs’ case was being handled on a contingency fee basis (33V3 percent) and permitted the plaintiffs to offer evidence before it assessed the amount of punitive damages. Once again, this presented a factual situation for the trial court, and the court’s conclusion does not merit reversal.

“The policy of our courts in allowing amendments to pleadings is liberal, but ordinarily whether or not one will be allowed rests in the discretion of the trial court.” Benson v. Morey, 129 Conn. 390, 391, 28 A.2d 843 (1942). In response to Spiro’s argument that the amendment was improper, we note “that a trial court may allow, in its discretion, an amendment to pleadings before, during, or, as here, after trial to conform to the proof.” Saphir v. Neustadt, supra, 206.

Judicial discretion is always legal discretion exercised according to recognized principles of equity. “ ‘While its exercise will not ordinarily be interfered with on appeal to this court, reversal is required where the abuse is manifest or where injustice appears to have been done.’ ” Sturman v. Socha, 191 Conn. 1, 7, 463 A.2d 527 (1983). “To require reversal, the error committed must be harmful. ... To be harmful, an error must be so fundamental and material that it may work injustice.” Bell v. Bihary, 168 Conn. 269, 273, 362 A.2d 963 (1975). The test is whether the variance misled or prejudiced Spiro on the merits of the case. Antonofsky v. Goldberg, 144 Conn. 594, 599, 136 A.2d 338 (1957).

There was sufficient evidence already before the trial court when it permitted the “alter ego” amendment concerning Spiro’s control of Piccadilly. Hence, Spiro was not surprised by new evidence. Under the second count, Spiro had already been found to come within the provisions of Scribner v. O’Brien, Inc., 169 Conn. 389, 404, 363 A.2d 160 (1975), which provides: “It is also true that an officer of a corporation does not incur personal liability for its torts merely because of his official position. Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby.”

We find no abuse of discretion in the court’s action and, thus, the court did not err in allowing the amendment.

When we review the exercise of discretion by the trial court, every reasonable presumption will be given in favor of the correctness of its ruling. On appellate review, therefore, the ultimate issue is whether the court could reasonably conclude as it did, or whether, according to recognized principles of equity, abuse or discretion is manifest or an injustice appears to have been done. Reynolds v. Ramos, 188 Conn. 316, 320-21, 449 A.2d 182 (1982). Inasmuch as the trial court, in its original memorandum of decision, specifically provided that “punitive damages [are] to be hereafter determined at a further hearing limited to such damages,” we find no error in the presentation of such evidence thereafter.

There is no error.

In this opinion the other judges concurred.

       As the defendant Abram Spiro is not involved in this appeal, all further references in this opinion to “Spiro” will indicate Julian Spiro.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).


text:
    Alice Davis v. Board of Education of the City of Hartford
    (2911)
    Dupont, C.P.J., Hull and Borden, Js.
    Submitted on briefs December 5, 1984
    decision released February 26, 1985

      William S. Zeman, Joel M. Ellis and Raynald B. Cantin filed a brief for the appellant (plaintiff).

      Richard H. Goldstein, corporation counsel, and H. Maria Cone, assistant corporation counsel, filed a brief for the appellee (defendant).
   Borden, J.

The plaintiff, employed by the defendant board of education as an elementary school principal, was charged with misconduct and inefficiency and was reassigned to a position as an elementary school teacher after a series of hearings. She sued the defendant, and now appeals from the judgment of the trial court dismissing her complaint on the ground of lack of subject matter jurisdiction.

The complaint was in four counts and sought declaratory, injunctive and monetary relief. It alleged as follows: The plaintiff was employed by the defendant as a regularly appointed and tenured teacher, pursuant to the Hartford Teacher Tenure Act. 24 Spec. Acts 683, No. 277; 25 Spec. Acts 444, No. 319; 33 Spec. Acts 444, No. 368. The plaintiff was notified by letter on July 15, 1977, that she was being formally charged with misconduct and inefficiency. A hearing was held concerning these charges on July 22, 1977, even though the plaintiff was unable to obtain representation from the Hartford Principals and Supervisors Association, Local 22, AFSA, AFL-CIO, her collective bargaining representative. The plaintiff was informed by letter of August 5, 1977, that the charges were substantiated at the hearing and that she was being removed from her position as principal and was being assigned to a teaching position effective September 1, 1977. The state board of labor relations later decided that the July 22,1977 hearing violated the plaintiff’s rights and ordered a new hearing or reinstatement of the plaintiff to her position. A new hearing was held and all but one of the charges were upheld on November 19,1979. The decision to remove the plaintiff as principal and to reassign her to a teaching position was also upheld.

On December 4,1979, the plaintiff appealed this decision to the board. Hearings were held on this appeal from April 9, 1980, through March 11, 1981. A decision rendered by the board on April 30, 1981, upheld the prior decision to reassign the plaintiff. She was removed from her position as principal at that time and sustained a loss of wages because the teaching position salary is substantially less than the principal’s salary.

We must read the complaint most favorably to the plaintiff. Reitzer v. Board of Trustees of State Colleges, 2 Conn. App. 196, 201, 477 A.2d 129 (1984). The first count of the complaint essentially states a breach of contract claim. It alleges that the administrative manual, which contains terms and conditions of the plaintiff’s employment, was part of the employment contract between the plaintiff and the defendant, but that the procedure described in that manual governing charges of substandard conduct was not followed. The second count alleges that the defendant’s state and federal constitutional rights were violated by the defendant’s failure to accord her the process due under the administrative manual. In the fourth count, the plaintiff alleges that the Hartford Teacher Tenure Act entitled her to certain procedures which were not followed and that she, therefore, should be reinstated as a principal.

The defendant moved to dismiss the complaint on the basis of lack of subject matter jurisdiction. The trial court agreed and granted the motion. The plaintiff appeals, arguing that the court looked beyond the question of subject matter jurisdiction and improperly dismissed the case on its merits. We agree.

“Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981). In determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction shall be indulged. Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 420 n.3, 426 A.2d 1324 (1980).” Diaz v. Board of Directors, 2 Conn. App. 43, 45, 476 A.2d 146 (1984). “The question of [subject matter jurisdiction] does not involve an inquiry into the merits of the case.” Reitzer v. Board of Trustees of State Colleges, supra, 200.

The trial court, concluding that no contract was alleged in the first count, granted the motion to dismiss because no breach of contract claim could succeed; without an allegation of a contract, the first count was essentially an administrative appeal over which the court did not have jurisdiction; because the plaintiff had no constitutionally protected right to her job as a principal, her second count could not succeed; and, under the fourth count, the plaintiff was not protected by the Hartford Teacher Tenure Act because she was reassigned, not dismissed. The court reached the merits of the plaintiffs claims in granting this motion and erred in doing so.

The plaintiffs complaint, for purposes of subject matter jurisdiction, is sufficient. It alleges breach of contract, raises constitutional claims of due process, and claims that statutory procedures were not followed. Whether there is a contract and what its terms are, whether the plaintiffs right to her principalship is constitutionally protected, and whether there are applicable statutory procedures, are issues outside the scope of a motion to dismiss based on lack of subject matter jurisdiction. The court’s characterization of the action as an administrative appeal which it cannot review was erroneous. Diaz v. Board of Directors, supra, 48.

The plaintiff is required to allege facts amounting to a colorable claim of injury; see Reitzer v. Board of Trustees of State Colleges, supra; which the court is competent to entertain. Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 112, 438 A.2d 834 (1981). The Superior Court has broad subject matter jurisdiction over legal and equitable rights. General Statutes § 52-1. The plaintiff’s claims were within the scope of the court’s subject matter jurisdiction and were properly pleaded. Whether they could withstand a motion to strike for failure to state a claim upon which relief could be granted is another issue, on which we do not express an opinion. See England v. Coventry, 183 Conn. 362, 365, 439 A.2d 372 (1981); Reitzer v. Board of Trustees of State Colleges, supra, 199; Diaz v. Board of Directors, supra, 48. The issue before the court was not whether the plaintiff’s claims would be successful, but whether the court could properly hear those claims. Reitzer v. Board of Trustees of State Colleges, supra, 201. We conclude that it could, under the facts alleged in the plaintiff’s complaint.

There is error, the judgment is set aside and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       Although the trial court found that the plaintiff was not seeking a declaratory judgment, we read the plaintiff’s requests for “findings” defining her rights as claims for a declaratory judgment and consequential relief. See Milford Education Assn. v. Board of Education, 167 Conn. 513, 520, 356 A.2d 109 (1975); see also Practice Book § 389.

       The plaintiff is not pursuing the third count on appeal.

       The cases cited by the defendant similarly go to the merits of the case and are inapposite. Reitzer v. Board of Trustees of State Colleges, 2 Conn. App. 196, 201, 477 A.2d 129 (1984).