source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ANDRZEJ CZYZEWSKI
    (AC 20978)
    Mihalakos, Dranginis and Dupont, Js.
    Argued December 10, 2001
    officially released June 4, 2002

      Jon L. Schoenhom, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Vernon D. Oliver, assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Andrzej Czyzewski, appeals from the judgment of conviction, rendered after his conditional plea of nolo contendere, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a, failure to obey a stop sign in violation of General Statutes § 14-301, failure to drive in the proper lane in violation of General Statutes § 14-236 and failure to take a sobriety test in violation of General Statutes § 14-227b. The sole issue on appeal is whether the defendant’s motion to suppress evidence, which was based on federal and state constitutional grounds and a violation of General Statutes § 54-If, should have been granted.

The facts that follow were stipulated to by the parties and are found in the police report written by Officer Richard Riccardo of the Berlin police department. On July 25, 1999, at approximately 3:30 a.m., Newington police Sergeant Michael Tkac was on duty and in a marked Newington police cruiser at a stop sign in the town of Berlin. Tkac observed a vehicle, which was going eastbound, proceed through the intersection without stopping. The driver of the vehicle was later identified as the defendant. The defendant lost control of the vehicle, spun 180 degrees and narrowly missed Tkac’s police cruiser. The defendant then proceeded southbound with Tkac following him. Tkac observed the defendant cross the double yellow line on two occasions and enter the northbound lane of traffic. The defendant also struck the roadside shoulder of the northbound lane. Tkac initiated a motor vehicle stop by activating his overhead lights. The defendant stopped his vehicle on the right side of the road. Tkac approached the vehicle and detected a strong odor of alcohol emanating from the vehicle. Tkac requested the defendant’s license, registration and insurance information. The defendant had difficulty in handling the documents and fumbled while retrieving them. Tkac then requested assistance from the Berlin police department.

The Berlin police department dispatched Riccardo to the scene. Tkac gave all of his observations regarding the incident to Riccardo. Riccardo approached the vehicle and detected a strong odor of alcohol emanating from the vehicle. Riccardo asked the defendant if he had been drinking alcohol, and the defendant responded that he had consumed one beer. At that point, Riccardo detected a strong odor of alcohol on the defendant’s breath and person. Riccardo observed that the defendant’s eyes were bloodshot and glassy. Riccardo asked the defendant to exit the vehicle, and the defendant complied. The defendant had to brace himself against the driver’s door as he exited the vehicle. The defendant’s appearance was “disheveled” and he had difficulty maintaining his balance. Riccardo then asked the defendant to perform various sobriety tests, and the defendant complied. The defendant failed those tests and was placed under arrest by the Berlin officer. Following his arrest, the defendant refused to sign a statement acknowledging that he understood his rights and attempted to contact an attorney. The defendant then refused to submit to a breath test.

After the defendant’s plea of nolo contendere, the court sentenced the defendant to six months imprisonment, execution suspended, with eighteen months probation. The court also imposed a $500 fine and 100 hours of community service for operating a motor vehicle while under the influence of liquor. The court remitted fines totaling $135 for the two infractions and the violation.

The defendant asserts that the traffic stop by a municipal police officer outside his territorial jurisdiction was a violation of statutory authority and, therefore, violated his rights under the state constitution. The defendant claims that the evidence gathered against him as a result of the illegal stop should have been suppressed because the municipal police officer had no authority to perform an investigative stop, or a search and seizure outside of his municipality. Specifically, the defendant claims that the extraterritorial conduct of the police officer was a violation of his rights under article first, §§ 7 and 9, of the Connecticut constitution and General Statutes § 54-lf. We do not agree.

The standard of review for a trial court’s ruling on a motion to suppress is well settled. “A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Pierce, 67 Conn. App. 634, 638-39, 789 A.2d 496, cert. denied, 260 Conn. 904, 795 A.2d 546 (2002). The parties stipulated to the facts. Therefore, “our review is plenary and we must determine whether the trial court’s conclusions of law are legally and logically correct and find support in the stipulated facts.” (Internal quotation marks omitted.) Doucette v. Pomes, 247 Conn. 442, 453, 724 A.2d 481 (1999).

The defendant claims that the Newington police officer’s actions exceeded his authority because they were a violation of the statutory authority conferred to municipal police officers under § 54-lf. According to § 54-lf (a), municipal police officers may make a warrantless arrest for any offense within their own jurisdiction. Section 54-lf (b) allows a municipal officer to arrest a person without a warrant in any jurisdiction if there are reasonable grounds to believe a felony was committed or is being committed. Section 54-lf (c) additionally allows municipal officers to arrest a suspect without a warrant in another jurisdiction for any offense after immediately pursuing the suspect from their own jurisdiction into any other part of the state. The parties have stipulated to facts that do not apply to the situation of § 54-lf (b) or to the exception for an extraterritorial arrest under § 54-lf (c). The question is whether § 54-lf (a) applies to the facts.

The state argues that § 54-lf (a) did not prevent the arrest by the Berlin police officer, although it would prevent an arrest by the Newington police officer. The state relies on the facts that the Newington police officer did not make the arrest and that the Berlin police officer, within the town of Berlin, made the arrest. The state argues that the Newington police officer made an extraterritorial investigative stop or a Terry stop, rather than an arrest. See, e.g., State v. Kowal, 31 Conn. App. 669, 672-73, 626 A.2d 822, cert. denied, 227 Conn. 923, 632 A.2d 702 (1993). On the basis of prior Connecticut cases and our interpretation of § 54-lf, we agree with the state.

Our Supreme Court has stated that a defendant suspected of operating a motor vehicle while under the influence of intoxicating liquor can be detained briefly without a violation of the defendant’s due process rights. State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990). Our courts have clearly distinguished between an investigatory stop and an arrest. See Terry v. Ohio, 392 U.S. 1, 22-27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Lamme, supra, 184; see also State v. Oquendo, 223 Conn. 635, 656, 613 A.2d 1300 (1992). Our Supreme Court has acknowledged that “the police must enjoy a certain degree of latitude in making investigative stops. Nevertheless, the requirement of a reasonable and articulable factual basis for an investigative stop must be met.” State v. Oquendo, supra, 656.

The question becomes whether the term “arrest” in § 54-lf (a) means a full custodial arrest or is intended to limit municipal police officers from performing investigatory stops outside their jurisdiction. Section 54-lf has been amended several times since our courts have discussed the distinction between investigatory stops and arrests. The legislature has chosen not to alter the statute to reflect this distinction drawn by the courts. “Courts cannot, by the process of construction, abrogate a clear expression of legislative intent, especially when, as here, unambiguous language is fortified by the refusal of the legislature, in the light of judicial interpretation, to change it.” Buxton v. Ullman, 147 Conn. 48, 57, 156 A.2d 508 (1959), appeal dismissed sub nom. Poe v. Ullman, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961); see also State v. Guckian, 27 Conn. App. 225, 234-35, 605 A.2d 874 (1992), aff'd, 226 Conn. 191, 627 A.2d 407 (1993).

We must read § 54-lf in its entirety to decide if the defendant’s interpretation of the term arrest to include a Terry stop is reasonable. Section 54-lf (d) provides: “Any person arrested pursuant to this section shall be presented with reasonable promptness before proper authority.” Persons who have been the subject of a Terry stop have not yet been arrested and might not be arrested at all and, therefore, are not required to appear before any authority. The Newington officer in this case did not effect the arrest. Rather, it was the Berlin officer, who, after reviewing the facts himself and making his own appraisal of the situation, as well as giving the defendant field sobriety tests, effected the arrest. It is the Berlin authority before which the defendant must be presented. The Berlin police officer made an arrest on the facts he personally observed as to the defendant’s operation of the motor vehicle while under the influence of intoxicating liquor. He made an arrest as to the two infractions within his own municipality on the “speedy information of others” as provided in § 54-lf (a).

Even if the statute were interpreted to prohibit the type of investigatory stop conducted by the Newington officer in the present case, the defendant cannot prevail. Our Supreme Court has upheld the argument that “a seizure may be constitutionally reasonable even if it is not specifically authorized by statute.” State v. Miller, 227 Conn. 363, 375, 630 A.2d 1315 (1993). In Miller, the defendant was arrested for robbery and conspiracy to commit robbery in Hartford by three West Hartford police officers. Following the defendant’s arrest, the West Hartford police officers impounded the defendant’s car and took it to their police department garage. The police conducted a warrantless search and discovered a gun suspected of being used in the crimes for which the defendant was charged. The defendant appealed from the judgment of conviction and claimed that the West Hartford police officers had acted outside their jurisdiction and had performed an investigation, stakeout, Terry stop and warrantless seizure of the defendant’s automobile. Id., 368-69. The defendant claimed that the extraterritorial police action violated article tenth, § 1, article first, § 7, and article first, § 9, of the Connecticut constitution.

In Miller, our Supreme Court stated that it need not determine whether the Terry stop was invalid because “no evidence flowed from it and, therefore, the subsequent prosecution of the defendant was not tainted by [the Terry stop]. . . . Accordingly, any illegality in the stop would not require dismissal of the charges against the defendant or a reversal of his conviction.” (Citation omitted.) Id., 370, citing State v. Fleming, 198 Conn. 255, 262-63, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).

“Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. . . . All evidence is not, however, a fruit of the poisonous tree simply because it would not have been discovered but for the illegal action of law enforcement officials. . . . Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. . . . The initial determination is, therefore, whether the challenged evidence is in some sense the product of illegal government activity.” (Citations omitted; internal quotation marks omitted.) State v. Colvin, 241 Conn. 650, 656-57, 697 A.2d 1122 (1997).

In this case, the Newington police officer did not investigate beyond requesting the defendant’s license, registration and insurance information, and he then turned over the investigation to the correct municipal officers. The officer in the proper jurisdiction conducted the sobriety tests. The subsequent investigation by the officer from the correct jurisdiction was sufficiently removed from any taint that the initial investigatory stop may have had.

The only charges that stemmed from the Newington police officer’s observations were the minor infractions for which the trial court remitted the fines. These charges were based on the “speedy information” of the Newington police officer as given to the Berlin police officer who made the arrest.

Police officers arrest and charge suspects frequently based on hearsay evidence of victims and witnesses. See, e.g., Pizzo v. Commissioner of Motor Vehicles, 62 Conn. App. 571, 578-79, 771 A.2d 273 (2001). The Newington police officer would be able to testify at a trial as to his observations, as would any ordinary citizen.

The Miller court differentiated between the Terry stop and the investigation, stakeout and warrantless search of the automobile. State v. Miller, supra, 227 Conn. 370-71. The Miller court analyzed whether the extraterritorial conduct violated article first, § 7, of the Connecticut constitution, which prohibits unreasonable seizures and searches. “[W]e are not persuaded that the prohibition in article first, § 7, of unreasonable seizures encompasses the legislature’s territorial restrictions on police conduct. . . . Legislative enactments are expressions of this state’s public policy and do not necessarily define the outer boundaries of constitutional protections. Indeed, the legislature has the power to prohibit, as a matter of policy, that which we have held to be constitutional.” (Citations omitted.) Id., 375.

The Miller court also analyzed whether the extraterritorial conduct of the police officers violated article first, § 9, of the Connecticut constitution. “Although article first, § 9, constitutes one of our state constitutional provisions guaranteeing due process of law . . . our cases applying that provision have generally involved personal liberty. . . . The defendant provides no argument that the prohibition in article first, § 9, of restraints on personal liberty, such as arrests, detentions and punishment, that are not clearly warranted by law also includes a prohibition on illegal investigations, stakeouts and warrantless automobile seizures. Indeed, the crux of the defendant’s argument is that, because the [extraterritorial] police officers’ conduct violated statutory constraints on extraterritorial police activities, it thereby violated article first, § 9. Accordingly, we hold that the [extraterritorial] police officers’ investigation, stakeout and warrantless automobile seizure did not violate article first, § 9.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 376-77.

Although the Miller court did not determine whether the detention of the defendant, i.e., the Terry stop, was valid, it did determine that the extraterritorial officers’ investigation did not violate the provisions of the Connecticut constitution. Id., 370-77. We further note that the decision in Miller is consistent with other decisions by Connecticut courts that have found that an officer’s extraterritorial conduct did not violate the provisions of the United States constitution and the Connecticut constitution. See, e.g., State v. Kuskowski, 200 Conn. 82, 510 A.2d 172 (1986) (Brookfield police officer investigated parked car in neighboring town of Bridgewater and defendant was arrested by state police, after investigation by Brookfield police officers, for crimes of criminal possession of cocaine and possession of cocaine with intent to sell); see also State v. Stevens, 224 Conn. 730, 620 A.2d 789 (1993) (Connecticut police officer may obtain evidence outside this state after lawful arrest in Connecticut); State v. Pierce, supra, 67 Conn. App. 634; State v. Andrews, 33 Conn. App. 590, 637 A.2d 787, cert. denied, 229 Conn. 908, 640 A.2d 121 (1994).

The facts of Andrews are similar to those in the present case. In Andrews, the defendant was stopped in Derby by an off-duty Shelton police officer for suspicion of operating a motor vehicle while under the influence of intoxicating liquor. State v. Andrews, supra, 33 Conn. App. 593. The off-duty officer was out of his jurisdiction and also happened to be a member of a volunteer fire department. Id. He signaled the defendant to stop his vehicle by utilizing a blue flashing fire department light. Id. The officer took no action other than to ask the defendant to wait and called the Derby police department to respond to the scene. Id., 594. This court held that the stop did not violate the fourth amendment to the United States constitution. Id., 598. This court relied on the finding by the trial court that the Derby police had arrested the defendant, not the off-duty extraterritorial officer. Id., 599.

The defendant in the present case was not arrested by an off-duty extraterritorial police officer, but was stopped by an extraterritorial police officer who was on duty. The detention of the defendant in the present case did not violate the statutory provisions of § 54-lf because the detention was not an arrest. Furthermore, the subsequent prosecution of the defendant would not be prohibited even if the stop had been illegal. See State v. Miller, supra, 227 Conn. 370; State v. Fleming, supra, 198 Conn. 262-63. The extraterritorial officer’s investigation of the defendant’s driving behavior and the stop thereafter did not violate the Connecticut constitution. State v. Miller, supra, 377. The court’s denial of the defendant’s motion to suppress, on the basis of the facts of this case, was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       In a footnote contained in the defendant’s brief, he claims that refusal to submit to a breath test is not a violation for which the defendant can be charged and fined. This issue is not necessary to our disposition of this appeal, and we do not address its merits.

       Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       General Statutes § 54-lf is entitled “Arrest without warrant. Pursuit outside precincts” and provides in relevant part: “(a) . . . Peace officers, as defined in subdivision (9) of section 53a-3 [subdivision (9) includes local police officers], in their respective precincts, shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others ....
      “(b) Members of the Division of State Police within the Department of Public Safety or of any local police department or any chief inspector or inspector in the Division of Criminal Justice shall arrest, without previous complaint and warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony.
      “(c) Members of any local police department or the Office of State Capitol Police . . . who are certified under the provisions of sections 7-294a to 7-294e, inclusive, and who perform criminal law enforcement duties, when in immediate pursuit of one who may be arrested under the provisions of this section, are authorized to pursue the offender outside of their respective precincts into any part of the state in order to effect the arrest. Such person may then be returned in the custody of such officer to the precinct in which the offense was committed. . . .”

       In light of our decision, we do not need to determine whether the statute would grant municipal police officers the authority to arrest a suspect whom the officer has a reasonable suspicion may be about to commit a felony, such as misconduct with a motor vehicle in violation of General Statutes § 53a-57 or manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b. In addition, there is nothing in the record of this case to indicate whether the Newington police officer believed that a felony was about to be committed by the defendant, and, therefore, we do not need to determine whether that belief would have been reasonable or is included in the statutory language.

       Under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), an officer may forcibly stop a suspect and engage in a “stop and frisk” investigation if the officer has a reasonable and articulable suspicion that the suspect has committed or is about to commit a crime. “[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Id., 22.

       See footnote 5.

       The defendant has made no argument based on the distinction between the offenses for which the Berlin police officer had independent knowledge and the traffic violations for which he did not.

       As a practical matter, it is unlikely that a police officer would issue a citation to a driver for failure to stop at a stop sign or failure to stay in the proper lane based solely on an eyewitness if, after an investigation, there was no probable cause to make an arrest for operating a motor vehicle while under the influence.

       The Miller court found that the warrantless search of the defendant’s automobile did violate article first, § 7, of the Connecticut constitution. State v. Miller, supra, 227 Conn. 877. That issue is irrelevant to the present case because no evidence was obtained from the defendant’s vehicle.


author: PETERS, J.

text:
    ROBERT PITRUZELLO ET AL. v. ANTHONY L. MURO, JR. LOUIS R. PALIZZA ET AL. v. ANTHONY L. MURO, JR.
    (AC 22307)
    Lavery, C. J., and Schaller and Peters, Js.

      Argued April 2
    officially released June 4, 2002

      MarkR. Cramer, with whom, on the brief, was James M. Celentano, for the appellant (defendant-third party plaintiff).

      Joseph M. Pastore III, with whom were Pamela E. Woodside and, on the brief, Robert D. Gilbert and James

      Zucker, for the appellee (third party defendant PENSCO Pension Services, Inc.).
   Opinion

PETERS, J.

A foreign corporation may be haled into court in Connecticut only if a plaintiff alleges jurisdictional facts that, if proven, would satisfy one of the provisions of our long arm statute, General Statutes § 33-929 (f). The issue in this case is whether a complaint has alleged, with sufficient specificity, that a foreign corporation solicited business; General Statutes § 33-929 (f) (2); or engaged in tortious conduct; General Statutes § 33-929 (f) (4); that is actionable in this state. Holding that the jurisdictional facts alleged in the complaint were too conclusory to withstand a motion to dismiss, the trial court concluded that it had no personal jurisdiction over the foreign corporation. Accordingly, it rendered judgment in its favor. The defendant, third party plaintiff, Anthony L. Muro, Jr. (hereinafter plaintiff), has appealed from the judgment. We agree with the court and affirm the judgment.

This case arises out of underlying actions for negligence brought by Robert Pitruzzello, Virginia Pitruzzello, Louis R. Palizza and Maria Palizza to recover damages for losses attributable to a misguided investment scheme that allegedly was recommended to them by Muro. The third party defendant, PENSCO Pension Services, Inc. (defendant), a foreign corporation and the custodian of the underlying plaintiffs’ investment accounts, was not named as a defendant in the underlying actions.

While those negligence actions were pending, the present plaintiff filed third party complaints charging the present defendant with dereliction in its performance of its custodial duties. Substantively, the third party complaints alleged that, as custodian, the defendant had negligently and fraudulently participated in the failed investment scheme by misrepresenting the nature of the investments and by failing to supervise the entities that participated therein. Jurisdictionaily, the third party complaints alleged, without factual detail, that the defendant had both solicited business and engaged in tortious conduct in this state.

The defendant filed motions to dismiss the third party complaints pursuant to Practice Book § 10-30. “A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts. ... A ruling on a motion to dismiss is neither a ruling on the merits of the action . . . nor a test of whether the complaint states a cause of action. . . . Motions to dismiss are granted solely on jurisdictional grounds.” (Citations omitted; internal quotation marks omitted.) Olson v. Accessory Controls & Equipment Corp., 54 Conn. App. 506, 515, 735 A.2d 881 (1999), aff'd, 254 Conn. 145, 757 A.2d 14 (2000). The defendant alleged that it is incorporated and has its place of business in California. It further alleged that it has no formal presence in Connecticut, has no offices or employees here, is not licensed as a foreign corporation or other-business entity here and owns no real property here. It denied the plaintiffs allegation that it had solicited business or had committed a tort in this state.

The trial court granted the motions to dismiss. It concluded that the plaintiffs allegations of jurisdictional facts were too conclusory to satisfy his burden of establishing that the court had personal jurisdiction over the defendant.

The plaintiff has appealed. On appeal, as at trial, “[i]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999); Tooley v. Metro-North Commuter Railroad Co., 58 Conn. App. 485, 491, 755 A.2d 270 (2000). A challenge to the jurisdiction of the court presents a question of law. State v. Welwood, 258 Conn. 425, 433, 780 A.2d 924 (2001). Our review of the court’s legal conclusion is, therefore, plenary. Id.

The plaintiff does not deny that the defendant is a foreign coiporation that has no formal presence in Connecticut. He contends, however, that the trial court had personal jurisdiction over the defendant because, in this state, it had solicited business; General Statutes § 33-929 (f) (2); and had engaged in tortious conduct. General Statutes § 33-929 (f) (4). Although his third party complaints referred to these bases for jurisdiction in general terms, he maintains that the affidavit that he filed in response to the motions to dismiss contained factual allegations that were sufficiently fact specific to allow his case to go forward.

The plaintiff appeals from the dismissal of his third party complaints on two grounds. First, he challenges the validity of the trial court’s assessment of the jurisdictional record in this case. Second, he maintains that the court’s judgment is inconsistent with other Connecticut case law.

I

In the trial court’s analysis of whether it had personal jurisdiction, it considered allegations contained in three documents: The plaintiffs third party complaint, the affidavit submitted by the defendant in support of its motions to dismiss and the plaintiffs counteraffidavit. The plaintiff does not suggest that there were other documents that the court should have taken into account.

The plaintiff takes issue, however, with the manner in which the court conducted its analysis. He recognizes that he bore the burden of proof of establishing facts pertaining to personal jurisdiction. See Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607, 674 A.2d 426 (1996); Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 53-54, 459 A.2d 503 (1983); Gaudio v. Gaudio, 23 Conn. App. 287, 298, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). He maintains, however, that the court improperly failed to consider the allegations of his complaints “in their most favorable light.” Reynolds v. Soffer, 183 Conn. 67, 68, 438 A.2d 1163 (1981); Olson v. Accessory Controls & Equipment Corp., supra, 54 Conn. App. 516.

The plaintiff argues that the court improperly made a factual determination of the merits of his third party complaints. He points to a sentence in the memorandum of decision in which the court stated that, even if the allegations of the third party complaints, standing alone, might have provided a basis for assuming personal jurisdiction, “they are not supported by [the plaintiffs] affidavit and they have been contradicted by [the defendant’s] affidavit.”

The plaintiff misreads the memorandum of decision and the governing law. The court determined that the defendant’s affidavit raised a question about the sufficiency of the plaintiffs allegations of jurisdictional facts. See Olson v. Accessory Controls & Equipment Corp., supra, 54 Conn. App. 514—15. The rule is that a trial court must accept all undisputed factual allegations for the purpose of determining whether a plaintiff has sustained his burden of proving that the court has personal jurisdiction over a defendant under the long arm statute. Knipple v. Viking Communications, Ltd., supra, 236 Conn. 608-609. Once the plaintiffs factual allegations were disputed, however, the trial court could not avoid scrutiny of the plaintiffs affidavit to determine whether it “could provide a sufficient basis for the court to assume in personam jurisdiction.” The court’s inquiry and statement were altogether appropriate.

Coming to the heart of the plaintiffs appeal, we must determine whether the trial court properly construed the documentary record that was before it. We conclude that it did.

The plaintiffs third party complaints contained only one allegation of jurisdictional fact. Paragraph twenty-five of count eighteen alleged that “at all relevant times, [the defendant] has been engaged in the trade or commerce of advertising, promoting, and administering the sale of products and services to consumers in Connecticut.” Although the third party complaint did not allege facts that would directly substantiate this broad allegation, the plaintiff claims that sufficient factual allegations should be inferred from other parts of the complaint. These paragraphs described the ways in which the defendant allegedly had engaged in misconduct to the detriment of the underlying plaintiffs in Connecticut.

In support of its motions to dismiss, the defendant submitted two affidavits by its president, which denied the jurisdictional allegations contained in the plaintiffs third party complaints. It alleged that it did not advertise, solicit or conduct business in this state, either as a general matter or with respect to the plaintiff and the underlying plaintiffs. It alleged a lack of knowledge of how its custodianship services had come to the attention of the plaintiff or the underlying plaintiffs. It alleged that it was its policy not to use mass mailings or direct marketing techniques to solicit applications for its services. Finally, in response to the plaintiffs affidavit, it alleged that none of the statements made in mailings concerning custodianship accounts constituted the solicitation of business in this state.

In response to the motions to dismiss, the plaintiff presented an affidavit to support his allegation of in personam jurisdiction. He relied, for jurisdictional facts, on statements made by the defendant in the various mailings that it sent to Connecticut, which the plaintiff had appended to his affidavit.

We can discern nothing in these mailings that, in any way, provides factual evidence of solicitation of business. Exhibit A is a packet of application forms, in which the defendant, inter aha, described its custodial role and the fees that it would charge. The application form contains nothing to indicate who had initiated the application process. Exhibits B and C contain accurate quarterly account statements that the defendant mailed to the underlying plaintiffs and to the third party plaintiff. The plaintiff has not explained how such mailings were solicitations of business of any kind. Exhibit D is a series of newsletters that the defendant enclosed in its mailing of quarterly reports on the investments of the underlying plaintiffs. As the trial court aptly observed, the newsletters do no more than tout the excellence of the defendant’s services. Exhibit E is a letter in which the defendant asked the third party plaintiff to provide an e-mail address and a fax number. Exhibit F is a letter informing the third party plaintiff of the defendant’s intent to file a proof of claim with respect to one of the investment accounts. Exhibit G is a letter sent by the plaintiff to the defendant concerning an accounting for payment of renewal fees.

We can find no way to connect these exhibits with any demonstration that the defendant solicited business in Connecticut. They seem to us, as they did to the trial court, to show nothing more than the proper administration of custodial investment accounts. Accordingly, we agree with the court’s conclusion that the plaintiffs exhibits contained no allegations of jurisdictional facts that would fill the gaps in the plaintiffs third party complaint. The plaintiff, therefore, has not proven that the court had personal jurisdiction over the defendant by virtue of § 33-929 (f) (2).

Neither the plaintiffs third party complaints nor his affidavit contains any factual allegations that the defendant engaged in conduct in this state that was tortious. It bears noting that the plaintiffs pleadings do not allege that any of the mailings sent by the defendant to Connecticut included statements that were untruthful or misleading. The trial court nonetheless might have concluded that it had personal jurisdiction with respect to the plaintiffs other claims of negligence and breach of duty, if the plaintiff had sufficiently alleged that, in other respects, the defendant had solicited business in this state. See Thomason v. Chemical Bank, 234 Conn. 281, 286, 661 A.2d 595 (1995); Frazer v. McGowan, 198 Conn. 243, 248-49, 502 A.2d 905 (1986). Having failed to establish this predicate, the plaintiff has not alleged jurisdictional facts sufficient to prove that the court had personal jurisdiction over the defendant by virtue of § 33-929 (f) (4).

II

Despite these infirmities in the plaintiffs jurisdictional allegations, he maintains that they are sufficient in light of the principles set forth in other Connecticut cases that have addressed the sufficiency of factual allegations of solicitation of business by foreign corporations. He cites Thomason v. Chemical Bank, supra, 234 Conn. 281, which held that “a cause of action may be said to aris[e] . . . out of . . . business solicited in this state pursuant to [General Statutes] § 33-411 (c) (2) [now § 33-929 (f) (2)] even if the business forming the basis of the cause of action . . . never was solicited in Connecticut.” (Internal quotation marks omitted.) Thomason v. Chemical Bank, supra, 286; see also Frazer v. McGowan, supra, 198 Conn. 249. Our long arm statute may apply even though there is “[no] causal connection between the plaintiffs cause of action and the defendant’s presence in this state.” Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 253-54, 460 A.2d 481 (1983).

The plaintiff is, therefore, right to remind us that, in deciding the question of personal jurisdiction, we must take into account the totality of business allegedly solicited by the defendant in this state, including but not limited to transactions between the defendant and the underlying plaintiffs. The applicability of this principle depends, however, on the factual circumstances under which the issue of jurisdiction has been raised. Thomason and Frazer are illustrative. They do not strengthen the plaintiffs position.

In Thomason v. Chemical Bank, supra, 234 Conn. 281, a foreign defendant bank was held to be subject to suit here because it had held meetings in Connecticut for eleven years, had advertised in national publications that are widely read in Connecticut, participated in mortgage transactions in Connecticut, and issued credit cards to Connecticut residents. Id., 284—85. In this case, by contrast, the plaintiff has not alleged that the defendant solicited custodial business from anyone in Connecticut other than his own twenty or so clients.

In Frazer v. McGowan, supra, 198 Conn. 243, a foreign defendant hospital was held to be subject to suit here because of its significant connections with residents of this state other than the plaintiff. Id., 253-54. The hospital had no structural linkage with Connecticut. It had no treatment facilities here, was not registered here as a foreign corporation and was not licensed to provide medical services here. Id., 245. Nonetheless, the hospital conferred admitting privileges upon Connecticut physicians, allowed its physicians to maintain Connecticut offices and provided services to Connecticut patients who made up approximately one third of its clientele. Id., 253. What has the plaintiff in the present case alleged that resembles that scenario? As previously noted, the plaintiff does not allege that the defendant undertook any custodial obligations in this state for anyone other than the underlying plaintiffs.

The Connecticut case that more closely resembles the circumstances of this case is Lombard Bros., Inc. v. General Asset Management Co., supra, 190 Conn. 245. There, the defendant was a securities dealer that did business only in New York. Id., 248. The dealer’s contacts with Connecticut were 145 accurate duplicate confirmations sent to this state in response to the plaintiffs transfer of funds to the dealer. Id., 255. In addition, the dealer had dealt with twelve other Connecticut customers, with whom it did $771,000,000 in trades representing less than 1 percent of the dealer’s total business. Id. Further, the defendant, in two instances, had placed advertisements in the New York Times and the Wall Street Journal that announced the names of persons joining the firm. Id., 255-56.

Lombard Bros., Inc., held that these facts did not suffice to permit a Connecticut court to exercise personal jurisdiction over the securities dealer. It found the two advertisements to be insufficient, by themselves, to constitute “repeated solicitation of business.” Id., 257. It noted that, “[a]part from these advertisements, there is neither allegation nor evidence that the defendant ever expressly solicited business from the plaintiff . . . or from anyone else.” Id.

There is a similar lack of allegation in this case. Even if the plaintiff were to have alleged, with specificity, how the defendant initiated contacts with himself and the underlying plaintiffs, he has not sufficiently alleged that the defendant repeatedly solicited in this state. To state the obvious, there is no allegation that the defendant ever solicited business from any other Connecticut residents to buttress the plaintiffs argument for jurisdiction. To state the obvious, the fact that the defendant had twenty rather than thirteen customers in Connecticut does not justify the plaintiffs failure to support his complaint with sufficiently specific jurisdictional allegations.

In sum, we conclude that the trial court properly dismissed the plaintiffs third party complaints against the defendant for lack of personal jurisdiction. In the absence of more extensive and more specific jurisdictional allegations, the plaintiffs complaints do not satisfy either of the requirements for long arm jurisdiction that are set out in § 33-929 (1) (2) or (4).

The parties are in agreement that, if we find the statute to be inapplicable, we should not address the constitutional question of whether assertion of personal jurisdiction in this case would comport with constitutional requirements of procedural due process. See, e.g., Lombard Bros., Inc. v. General Asset Management Co., supra, 190 Conn. 250; see also Knipple v. Viking Communications, Ltd., supra, 236 Conn. 609. We agree as well.

The judgment is affirmed.

In this opinion the other judges concurred.

       Compliance with our statute is necessary but not sufficient to establish personal jurisdiction. Even if the requirements of our statute are met, a plaintiff also must demonstrate that it would not violate constitutional norms of due process to asserl personal jurisdiction over the defendant in this state. See Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996).

       General Statutes § 33-929 (f) provides in relevant part: “Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this s1 ate and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows ... (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state ... or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.”

       The third party complaint named other defendants as well. None is a party to this appeal.

       In these affidavits, the defendant also disputed the substantive allegations of the third party complaint. It acknowledged its role as custodian of the underlying plaintiffs’ investment vehicles, but denied any responsibility for the losses that they had incurred. It pointed to language in the papers that prospective investors received in which it expressly informed them that the defendant was not a fiduciary and took no responsibility for investment results.

       The plaintiff argues that these newsletters solicited new business from the underlying plaintiffs because they invited investors to bring new business to the defendant. One paragraph in these newsletters defends the fees charged to clients and suggests that a client’s overall custodial fees might be reduced by consolidating other investment accounts with the existing account located with the defendant. Another paragraph describes on-line services that are not available in Connecticut. Elsewhere, the newsletters contain accurate information about the services that the defendant renders and the investment vehicles that the underlying plaintiffs had selected.


text:
    JOSEPH SALMERI v. DEPARTMENT OF PUBLIC SAFETY
    (AC 21106)
    Lavery, C. J., and Dranginis and Dupont, Js.

      Argued September 17, 2001
    officially released June 11, 2002

      Michelle D. Truglia, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant).

      Jeffrey L. Merit, with whom, on the brief, were Brenda M. Hamilton and Jayme E. Stamper, for the appellee (plaintiff).
   Opinion

DUPONT, J.

The defendant, the state department of public safety, appeals from the decision of the workers’ compensation review board (board) affirming the commissioner’s (commissioner) finding and award, which found that the plaintiffs heart condition described as atrial fibrillation was compensable under General Statutes § 5445a. The defendant claims that the board improperly determined that (1) there was medical evidence to support the finding that the plaintiffs condition resulted in partial disability, (2) the statutory presumption in § 5445a was not adequately rebutted and (3) the evidence was sufficient to support a conclusion that the plaintiff was entitled to compensation without the requisite period of incapacity under General Statutes § 31-295 (a). We affirm the decision of the board.

The following facts and procedural history are relevant to our disposition of this appeal. The plaintiff began his employment with the defendant as a state police trooper on May 27, 1994, after successfully passing a physical examination in which he was found to be free of hypertension and heart disease. On December 18, 1996, the plaintiff was seated in the roll call room of his police barracks when he was summoned over the public address system. Before answering the initial call, the plaintiff was summoned again and informed that another state trooper, who had been his classmate at the state police academy, needed assistance in the field. The plaintiff believed that this meant an emergency situation had developed. When the plaintiff rose from his chair, he experienced a cold feeling, sweating, pain in his arm, tightness in his chest and a rapid heartbeat. The plaintiff believed that he was experiencing the symptoms of a heart attack. The plaintiff was taken to a hospital and treated by Joseph Anthony, a cardiologist.

Anthony testified that he performed extensive tests on the plaintiff and found that his blood pressure was elevated, but that the tests for a heart attack were negative. Anthony’s diagnosis was that the plaintiff suffered from atrial fibrillation with rapid ventricular response. Anthony also testified that atrial fibrillation is a rhythm disturbance in the heart, creating rapid electrical activities in the upper part of the heart, which in turn creates an irregular rhythm in the lower part of the heart. Anthony classified atrial fibrillation as an intermittent cardiac condition and gave the plaintiff a 10 percent permanent partial disability rating. He also testified that the plaintiff was more susceptible to future attacks as the result of the episode on December 18, 1996.

The plaintiff was discharged from the hospital the next day without symptoms, and told to take aspirin and to follow-up with his cardiologist. The plaintiff was absent from work for fifteen days.

The plaintiff also was examined by his own physician, Stephen Doctoroff, who has a subspecialty in cardiovascular diseases. Doctoroff testified that he concurred with the diagnosis of paroxysmal atrial fibrillation. Doctoroff stated that atrial fibrillation is a significant abnormality of heart rhythm and although there was no discemable organic damage to the plaintiffs heart, he classified atrial fibrillation as a heart disease. Doctoroff concurred with the 10 percent disability rating given by Anthony.

On August 14, 1998, the plaintiff underwent an independent medical examination by Steven Horowitz, a cardiologist. Horowitz testified that there was no permanent organic damage to the plaintiffs heart, but also gave the plaintiff a 10 percent permanent partial disability rating. After a hearing, the commissioner found that the plaintiff successfully had passed a physical examination upon entry to his employment with the defendant. The commissioner concluded that atrial fibrillation is a cardiac condition and is the equivalent of heart disease. The commissioner also concluded that the plaintiff is susceptible to future episodes of atrial fibrillation. The commissioner concluded that “[w]hile the [plaintiffs] employment did not cause his atrial fibrillation, it did produce sympt oms which lit up and permanently aggravated a preexisting condition, which produced a permanent impairment.” The commissioner also concluded that atrial fibrillation impairs the normal physiological functioning of the heart and that the plaintiff had a 10 percent permanent partial disability of his heart. Accordingly, the commissioner awarded benefits to the plaintiff.

On appeal to the board, the defendant claimed that the plaintiffs symptoms were too transitory to be considered a disease. On August 9,2000, the board affirmed the award granted by the commissioner. Citing the testimony of Doctoroff, who labeled atrial fibrillation as a heart disease, and various dictionary definitions, the board concluded that there was sufficient evidence to conclude that atrial fibrillation is a heart disease.

After oral argument in this court, we requested that the parties file simultaneous supplemental briefs addressing the following two issues:

“1. Is General Statutes § 29-4a the sole vehicle of relief for a state police officer within the department of public safety who claims compensation for hypertension or heart disease or may that officer elect to be covered under either General Statutes § 5-145a or General Statutes § 29-4a, and if so, under what authority?

“2. If General Statutes § 29-4a is determined to provide the sole relief, what action can this court take to remedy the fact that the claim should not have been brought and decided under General Statutes § 5-145a?”

Briefs were received on February 1, 2002. There is no case law determinative of the issue of the exclusivity of § 29-4a. The question requires an analysis of the interrelationship among chapter 568, the Workers’ Compensation Act, General Statutes §§ 31-275 through 31-355a; chapter 528 entitled “Department of Public Safety,” § 29-4a; and chapter 65 entitled “Disability Compensation and Death Benefits,” § 5-145a.

Both the plaintiff and the defendant claim that a state police officer, employed by the department of public safety as a state trooper, may file a claim under either § 5-145a or § 29-4a, and that § 29-4a is not the exclusive remedy for a state police officer who claims an impairment of health caused by hypertension or heart disease.

The plaintiff, as to the second issue posed by this court, states that he did not need to give notice to the workers’ compensation commission as to the particular statute under which he claimed to be eligible for compensation. The plaintiff asserts that notice as to the nature of his claim, that is, a description of the injury and how it happened, suffices. The failure to bring the action under § 29-4a, therefore, would not affect compensability. The defendant answered the second issue by stating that if the award were set aside, it is uncertain whether the plaintiff could refile his claim under § 29-da because of statute of limitation problems. The defendant also claims that even if § 29-4a applies exclusively, the plaintiff could have no remedy because his injury is not compensable under § 5-145a or any other statute.

We conclude that the plaintiff did not have an election of remedies as between § 5-145a or § 29-4a and that he should have pursued his claim under § 29-4a. We further conclude that given the facts of this case, the plaintiff’s award should be upheld despite his pursuit of recovery under the wrong statute.

The parties tried the case before the commissioner and argued the appeal before the board as though § 5-145a were the controlling statute. The commissioner made a finding that the plaintiff was employed by the department of public safety as a state trooper and falls within the class of employees set forth in § 5-145a. The commissioner’s conclusion of the applicability of § 5-145a apparently rested on the fact that the plaintiff was a state trooper. Section 5-145a, by its terms, applies to certain specified state employees, and particularly to members “of the security force or fire department of The University of Connecticut or the aeronautics operations of the Department of Transportation, or to a member of the Office of State Capitol Police or any person appointed under section 29-18 as a special policeman for the State Capitol building and grounds, the Legislative Office Building and parking garage and related structures and facilities, and other areas under the supervision and control of the Joint Committee on Legislative Management,” and to certain other state personnel. General Statutes § 5-145a.

The only category of state employee within § 5-145a that both the plaintiff and the defendant claim makes the statute an appropriate vehicle under which to proceed is that the plaintiff is “designated as a hazardous duty employee pursuant to an applicable collective bargaining agreement . . . .” General Statutes § 5-145a. In this case, there is nothing in the record to show that the plaintiff was a hazardous duty employee pursuant to an applicable collective bargaining agreement.

Section 5-145a was enacted in 1963 to cover security forces employed by the University of Connecticut. At that time, one of the proponents of the bill stated that this bill “is patterned after a similar one that we passed in 1959 in regards to state police.” 10 H.R. Proc., Pt. 12, 1963 Sess., p. 4705, remarks of Representative Andrew Repko; see also 10 H.R. Proc., Pt. 9, 1963 Sess., p. 3624. At the time § 5-145a was enacted, § 29-4a had existed since 1959. Section 5-145a later was amended in 1985 to add those state employees designated as hazardous duty employees pursuant to an applicable collective bargaining agreement.

It is unlikely that the legislature would have enacted redundant legislation in 1985 to cover state troopers who already were covered by § 29-4a and who already were beneficiaries of the same presumption. Section 29-4a applies exclusively to members of the division of state police within the department of public safety. Both § 5-145a and § 29-4a use the same language in providing compensability for those who had “successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condition,” by giving them the presumption that the condition was “suffered in the performance of [their] duty . . . .” See General Statutes §§ 5-145a and 29-4a.

The legislature is presumed to have knowledge of existing legislation. State v. Denson, 67 Conn. App. 803, 811, 789 A.2d 1075, cert. denied, 260 Conn. 915, 797 A.2d 514 (2002). It must be assumed that all wage loss statutes are coordinated to obtain one cohesive general system for the claims of employees. Middletown v. Local 1073, 1 Conn. App. 58, 63, 467 A.2d 1258 (1983), cert. dismissed, 192 Conn. 803, 471 A.2d 244 (1984). When there is an itemized list of persons or situations that bring a statute into play, it connotes a legislative intent to exclude those situations or persons not listed. McNulty v. Stamford, 37 Conn. App. 835, 840, 657 A.2d 1126 (1995). The state employees covered by § 5-145a are all members of groups that engage in hazardous duties and who are not the subject of other legislation specifically applicable to them. Section 29-4a was never amended to refer to § 5-145a. It unambiguously refers to a “member of the Division of State Police within the Department of Public Safety . . . .” General Statutes § 29-4a. Section 5-145a refers to other categories of state employees.

Section 29-4a is contained within title 29 entitled “Public Safety and State Police,” and within chapter 529 entitled “Division of State Police.” Section 5-145a, in contrast, is contained in title 5 entitled “State Employees,” and within chapter 65 entitled “Disability Compensation and Death Benefits.” Both the hazardous duty employees of § 5-145a and the state police employees of § 29-4a are granted a presumption that the hypertension or heart disease in question was suffered in the performance of duty if the employee successfully passed a physical examination that did not reveal hypertension or heart disease. In determining whether a state trooper may choose whether to bring a claim pursuant to § 5-145a or § 29-4a, we look to cases involving alternate routes of workers’ compensation benefits.

It is clear that a member of a municipal fire or police department hired before July 1, 1996, could choose to be covered under either chapter 568, the Workers’ Compensation Act, or General Statutes § 7-433c. See Hyatt v. Milford, 57 Conn. App. 472, 477, 749 A.2d 650, cert. denied, 254 Conn. 901, 755 A.2d 218 (2000). Section 29-4a specifically was enacted for the protection of state police officers who suffer hypertension or heart disease, and was intended to equal the benefits given to municipal police officers and municipal firefighters then existing. See 8 H.R. Proc., Pt. 7,1959 Sess., pp. 2668, 2679-80. Section 7-433c was not intended to provide its beneficiaries with dual dollar benefits, but to eliminate two of the basic requirements for coverage under the Workers’ Compensation Act, namely the causal connection between hypertension and heart disease and the employment, and the requirement that the illness was suffered during the course of employment. Middletown v. Local 1073, supra, 1 Conn. App. 63.

This case presents no issue as to the ability of the plaintiff to obtain a greater amount of compensation by framing his claim pursuant to § 5-145a rather than § 29-4a. The plaintiff does not dispute the amount of compensation that he was awarded. The defendant claims that no compensation at all should have been awarded. The defendant does not claim, in the alternative, that the monetary award should be altered or was calculated incorrectly. This lack of a dispute as to the amount of the award relates to our conclusion that given the facts of this case, the use of § 5-145a as the plaintiffs avenue of relief, instead of § 29-4a, makes little or no difference.

Although there are fact specific cases in which a statutory election makes a monetary difference, this case is not one of them. See Jones v. Mansfield Training School, 220 Conn. 721, 601 A.2d 507 (1992). The typical conflict as to which statute to employ in the calculation of benefits is between the workers’ compensation benefits of chapter 568 and another statute that gives special enhanced benefits to certain employees who in the daily course of performing their duties work in an atmosphere of emotion and stress, statutes such as General Statutes §§ 29-4a, 7-433c, 5-142a, 5-144, 5-145a, 5-145b and 5-145c. Ordinarily, the statutes designed to give special enhanced benefits to some employees provide greater compensation than that available under chapter 568. If, however, they do not, the employees covered under the special benefit statutes may elect to receive benefits under chapter 568; Jones v. Mansfield Training School, supra, 721; and may also receive benefits arising from part-time employment elsewhere. See Trinkley v. Ella Grasso Regional Center, 220 Conn. 739, 747, 601 A.2d 515 (1992). The present case involves a conflict between two statutes, both of which give enhanced benefits, but does not involve a conflict in the amount of compensation due.

Although we conclude that the claim for compensation should have been brought pursuant to § 29-4a, we recognize that the parties, the compensation commissioner and the board all have assumed that the appropriate statute was § 5-145a. The plaintiff in this case advised the defendant that his claim was for compensation for an impairment of health caused by hypertension or heart disease. There is no requirement in General Statutes § 31-294c, entitled in part, “Notice of claim for compensation,” that notice of injury by an employee should include a statutory reference.

Section 31-294c (a) provides in relevant part: “Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee . . . .” Section 31-294c is a portion of the Workers’ Compensation Act, and it is that act that provides the procedural avenue for all workers’ compensation benefit statutes. Middletown v. Local 1073, supra, 1 Conn. App. 65-66.

Applying Tedesco v. Stamford, 215 Conn. 450, 576 A.2d 1273 (1990), on appeal after remand, 222 Conn. 233, 610 A.2d 574 (1992), and its progeny, such as Travelers Ins. Co. v. Namerow, 257 Conn. 812, 778 A.2d 168 (2001), and Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 715 A.2d 46 (1998), we conclude that any deficiency in the plaintiffs failure to claim or to argue for a right to recover under the applicable statute should be overlooked. The state employer-had sufficient notice of the facts and the issues to be tried, and neither it nor the plaintiff was prejudiced by the failure to proceed under § 29-4a.

The practical difference between § 29-4a and § 5-145a is not implicated in this case because neither party claims that the amount of compensation was incorrectly established. The dispute is over whether the plaintiff should collect anything at all, because, according to the defendant, there was no medical evidence to support a partial disability, the plaintiff had not been incapacitated for a sufficient time and the presumption that the condition was suffered in the performance of the plaintiffs duties was rebutted by the defendant. All of these items of dispute would exist regardless of whether § 5-145a or § 29-4a governed.

Although § 29-4a should have been the appropriate statutory basis for the plaintiffs claim, on the facts of this case, we will review the case as tried by the parties. We therefore turn to the issues as originally briefed by the parties.

Our standard of review for workers’ compensation appeals is well established. “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). “[Although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board.” Duni v. United Technologies Corp./Pratt & Whitney Aircraft Division, 239 Conn. 19, 24-25, 682 A.2d 99 (1996).

I

The defendant first claims that the board improperly affirmed the commissioner’s finding and award because the evidence did not support a finding that the plaintiff was protected by § 5-145a. Specifically, the defendant argues that the plaintiffs condition did not result in “total or partial disability or death” as required by § 5-145a. The defendant argues that there should not have been a finding of partial disability when the plaintiff was hospitalized for only one day and released as asymptomatic. The defendant also argues that the plaintiff could not be disabled when all three physicians testified that there was no organic damage to the plaintiffs heart. We are not persuaded by the defendant’s argument.

The defendant does not dispute the commissioner’s finding that the plaintiff successfully passed a physical examination upon entiy into employment, which examination failed to reveal any evidence of hypertension or heart disease. The plaintiff here suffered from u[a]ny condition of impairment of health caused by hypertension or heart disease”; (emphasis added) General Statutes § § 5-145a and 29-4a; because the medical testimony supports the conclusion that the plaintiffs atrial fibrillation is a heart disease. The question is whether that condition resulted in total or partial disability.

Our Supreme Court has stated that a defendant’s argument “that there must be distinct damage to the heart before compensation may be awarded is hairsplitting. Such arcane distinctions of possible medical consequences of a stressful impact on the human cardiovascular system would necessarily introduce legalistic criteria into the field of medicine.” McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 115, 527 A.2d 664 (1987).

The record demonstrates that all three physicians rated the plaintiff as having a 10 percent permanent partial disability rating due to his heart condition. The evidence presented was that the rating was based on guidelines set by the American Medical Association, and each physician attributed the 10 percent rating solely to the plaintiffs heart condition. The commissioner did not abuse his discretion by concluding that the 10 percent rating was compensable as a permanent partial disability of the plaintiffs heart.

II

The defendant’s second claim on appeal is that the statutory presumption in § 5-145a was rebutted. The defendant claims that the plaintiff did not prove that his employment caused his heart condition. The defendant also argues that the commissioner’s conclusion that the claimant’s employment “did not cause [the plaintiffs] atrial fibrillation, [but] it did produce symptoms which lit up and permanently aggravated a preexisting condition which produced a permanent impairment,” was sufficient to rebut the statutory presumption in § 5-145a. The defendant argues that because the statutory presumption was successfully rebutted, the plaintiff must, but did not, produce sufficient evidence to prove that his employment caused his condition or that he suffered from an occupational disease. We conclude that the commissioner correctly concluded that the statutory presumption in § 5-145a was not rebutted.

There is a paucity of Connecticut appellate cases of which we are aware that even hint at the parameters of the language, “shall be presumed to have been suffered in the performance of his duty” as used in either § 29-4a or § 5-145a. Section 5-145a provides a benefit for the heart disease of those employees who work in designated categories of employment legislatively determined to be especially stressful and who had a physical examination at the time employment commenced showing no evidence of heart disease. If these preconditions are met, “their combined effect is to create a presumption that subsequent heart disease has been suffered in the performance of his duty.” (Internal quotation marks omitted.) Phipps v. Niejadlik, 175 Conn. 424, 430, 399 A.2d 1256 (1978).

Cases arising under § 7-433c, which covers municipal police and firefighters, as opposed to the state police or those covered by § 5-145a, are instructive in this appeal. Although § 7-433c (b) no longer provides the benefit of § 7-433c (a), both § 29-4a and § 5-145a still provide such a presumption. We, therefore, discuss the presumption of §7-433c as it existed after Ducharme v. Putnam, 161 Conn. 135, 285 A.2d 318 (1971), and before the passage of §7-433c (b).

“General Statutes § 7-433c gives a special compensation to those who qualify, in the sense that they have no burden of proof that the disease resulted from the employee’s occupation or that it occurred in the course of employment. The mere fact that the employee has hypertension or heart disease and dies or is disabled because of it is all that is necessary. The employee does not need to prove that his heart disease is causally connected to his employment.” Middletown v. Local 1073, supra, 1 Conn. App. 62. If the employee successfully passed a physical examination upon entering employment, which examination failed to reveal any evidence of such condition, there need be no causal connection between the employment and the disease. Id.

The benefits of § 7-433c constitute a special compensation to qualifying employees in that they are not required to prove that the heart disease is causally connected to employment, which such employees would normally have to prove. Carriero v. Naugatuck, 243 Conn. 747, 754-55, 707 A.2d 706 (1998). It is assumed that regularly paid members of municipal police departments, who successfully passed a physical examination upon entering service, suffered any subsequent hypertension or heart disease in the line of duty. King v. Sultar, 253 Conn. 429, 440, 754 A.2d 782 (2000).

Section 7-433a as amended in 1969 established a conclusive presumption, which was declared unconstitutional as violative of the due process clauses of the state and federal constitutions in Ducharme v. Putnam, supra, 161 Conn. 135. The legislature promptly rewrote the statute as § 7-433c, after the case was decided, to do what the courts could not. The legislature “rewrote the statute by simply providing special compensation, or even an outright bonus, to qualifying policemen and firemen.” Grover v. Manchester, 168 Conn. 84, 88, 357 A.2d 922, appeal dismissed, 423 U.S. 805, 96 S. Ct. 14, 46 L. Ed. 2d 26 (1975). In other words, once the conditions of § 7-433c are met, benefits must be paid by the municipality in accordance with the Workers’ Compensation Act. King v. Sultar, supra, 253 Conn. 429. Section 7-433c requires the payment of compensation to municipal police officers who have successfully passed a physical examination that failed to reveal any evidence of hypertension or heart disease and who are subsequently disabled by either condition. Bakelaar v. West Haven, 193 Conn. 59, 68, 475 A.2d 283 (1984).

A presumption similar to the one contained in the now repealed! 7-433a is found in both! 5-145aand! 29-4a to cover state police officers and state employees in hazardous duty occupations such as department of correction officers. Both ! 5-145a and ! 29-4a, however, use the phrase “shall be presumed” and do not include the phrase “conclusively presumed” as was the case in ! 7-433a, which Ducharme declared unconstitutional.

A statutory presumption requires a rational connection between the fact proved and the ultimate fact presumed. See H. Ashford & D. Risinger, “Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview,” 79 Yale L.J. 165, 166 (1989). A presumption is equivalent to prima facie proof that something is true. It may be rebutted by sufficient and persuasive contrary evidence. A presumption in favor of one party shifts the burden of persuasion to the proponent of the invalidity of the presumed fact. That burden is met when it is more probable than not that the fact presumed is not true. Anderson v. Litchfield, 4 Conn. App. 24, 28, 492 A.2d 210 (1985).

In this case, the defendant has not met its burden by showing that the presumption was rebutted. The board has stated that “the initial burden of persuasion is shifted by the presumption, thereby requiring the employer to present evidence to contest compensability. The trial commissioner must, of course, find this evidence sufficiently credible to meet that burden of persuasion before the statutory presumption can be said to have been successfully rebutted. Insubstantial or suspect evidence cannot perform the same function. . . . [I]t is not our goal to render § 5-145a ‘virtually worthless’ by vitiating the force of its presumption.” Horn v. State, 4177 CRB-3-00-1 (February 22, 2001).

The burden is on the employer to demonstrate that the plaintiffs condition or disease was caused by factors outside his employment. The defendant did not present evidence that the plaintiffs condition was caused by conditions other than those of his employment.

Ill

The defendant’s final claim is that the evidence did not support a conclusion that the plaintiff was entitled to compensation under the workers’ compensation statutes for a period of incapacity because the plaintiff was hospitalized only for one day. The defendant states that under § 31-295 (a), workers’ compensation should not be awarded if the plaintiff was not incapacitated for more than three days.

The defendant incorrectly applies § 31-295 (a) to the present case. The commissioner’s award was not based on “total or partial incapacity(emphasis added) General Statutes § 31-295 (a); but was based on a condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability. See General Statutes §§ 5-145a and 29-4a. Incapacity is a separate and distinct concept apart from disability or loss of a member or organ. Dombrozzi v. Gross & Co., 112 Conn. 627, 628-29, 153 A. 780 (1931).

The incapacity to work is different from the loss of the use of a part of a body. Panico v. Sperry Engineering Co., 113 Conn. 707, 710, 156 A. 802 (1931). A permanent partial incapacity lessens earning power, whereas a permanent partial disability is a handicap throughout life. Id., 710-11. We therefore do not agree with the defendant.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 5-145a provides in relevant part: “Any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death ... to any state employee designated as a hazardous duty employee pursuant to an applicable collective bargaining agreement who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condiUon, shall be presumed to have been suffered in the performance of his duty and shall be compensable in accordance with the provisions of chapter 568, except that for the first three months of compensability the employee shall continue to receive the full salary which he was receiving at the time of injury in the manner provided by the provisions of section 5-142. . . .”

       General Statutes § 31-295 (a) provides in relevant part: “No compensation shall be payable for total or partial incapacity under the provisions of this chapter on account of any injury which does not incapacitate the injured employee for a period of more than three days from earning full wages at his customary employment. . . .” (Emphasis added.)

       Merriam-Wobster’s Collegiate Dictionary (10th Ed. 1999) defines disease as “a condition of the living animal or plant body or of one of its parts that impairs normal functioning.”
      Taber’s Cyclopedic Medical Dictionary (16th Ed. 1989) defines disease as “a pathological condition of the body that presents a group of clinical signs and symptoms and laboratory findings peculiar to it and that sets the condition apart as an abnormal entity differing from other normal or pathological body states.”

       General Statutes § 29-4a provides: “Any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death to a member of the Division of State Police within the Department of Public Safety who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be presumed to have been suffered in the performance of his duty and shall be compensable in accordance with the provisions of section 5-142 for a period of three months. If, at the end of that period, the administrator of the state’s workers’ compensation claims wishes to contest whether the disability occurred in the actual performance of police duty as defined in subsection (a) of section 5-142, he shall notify the member of his decision. The member or the employee organization may then bring the matter before the workers’ compensation commissioner of the appropriate district to determine if the disability is compensable under chapter 568 or subsection (a) of section 5-142. A member who has suffered such total or partial disability shall have the right to elect to receive either (1) the compensation indicated in section 5-142, or (2) the benefits produced under chapter 568 and the state employees retirement system, but not both. The provisions of subsection (a) of section 5-142 shall apply with regard to the timing of such election.”

       The language establishing the presumption in General Statutes § 5-145a mirrors that of General Statutes § 29-4a. We express no view, however, as to whether the presumptions are the same in terms of the procedure for contesting compensation after the first three months.

       Ordinarily, questions not raised at trial are not reviewed on appeal except that the improper interpretation or application of statutes may be reviewed under the plain error doctrine. State v. Velasco, 253 Conn. 210, 218 n.9, 751 A.2d 800 (2000).

       General Statutes § 7433c provides in relevant part: “(a) Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary orpermanent, total orpartial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of Ms employment, and was suffered in the line of duty and within the scope of his employment. . . .
      “(b) Notwithstanding the provisions of subsection (a) of tMs section, those persons who began employment on or after July 1, 1996, shall not be eligible for any benefits pursuant to this section.”

       We are not concerned in this case with whether the presumption of suffering the condition in the performance of the plaintiffs duties is irrebuttable for a given period of time under either General Statutes §§ 29-4a or 6-145a. If it were read as giving the plaintiff an irrebutable presumption, it would be unconstitutional under Ducharme v. Putnam, 161 Conn. 135, 285 A.2d 318 (1971). The board has stated that the presumption of both statutes is not a conclusive one. DiBenedetto v. State, 9 Conn. Workers’ Comp. Rev. Op. 1 (1991).

       The board, in discussing General Statutes § 5-145a within the context of a claim brought by apolice officer employed at the University of Connecticut Health Center, stated that § 5-145a parallels General Statutes § 29-4a, “which gives the same presumption to state policemen.” DiBenedetto v. State, 9 Conn. Workers’ Comp. Rev. Op. 1, 3 (1991). Impliedly, the board has thus interpreted § 29-4a as the avenue of recovery for state police officers not specifically enumerated in § 5-145a.

       Both General Statutes §§ 29-4a and 5-145a require a “total or partial disability or death . . . .”
      For the purposes of our discussion, we treat the plaintiff as though he were a hazardous duty state employee pursuant to § 5-145a, except where noted.

       The language of General Statutes §§ 5-145a and 29-4a is exactly the same as to the presumption, namely, “shall be presumed to have been suffered in the performance of his duty . . . .”

       Temporary total disability benefits for cardiovascular disease, in accordance with General Statutes § 5-145a, have been ordered by a workers’ compensation commissioner; see Gartrett v. Dept. of Correction, 259 Conn. 29, 787 A.2d 541 (2002); but there was no discussion in the appeal from the compensation review board of the word “presumes” as used in § 5-145a. Gartrett involved a correctional officer in the department of correction who clearly was covered by § 5-145a. Tremblay v. Connecticut State Employees' Retirement Commission, 170 Conn. 410, 365 A.2d 1125 (1976), involved a fire and security officer at Bradley International Airport who, by virtue of his employment, specifically was covered by § 5-145a. The court noted that § 5-145a contains a presumption that an impairment of health caused by hypertension or heart disease was suffered in the performance of duty. Id., 414. Tremblay, without defining the presumption, held that under § 5-145a, the benefit of the presumption can only be extended to those who successfully passed a physical examination and whose examination did not reveal any evidence of hypertension or heart disease.

       See footnote 7.

       General Statutes (Rev. to 1972) § 7-433a provides in relevant part: “Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance, for the purpose of the adjudication of claims for the payment of benefits under the provisions of chapter 568 and the contributory or noncontributory retirement systems of any municipality or the state, any condition or impairment of health occurring on duly or off duty, caused by hypertension or heart disease resulting in death or temporary or permanent, total or partial disability to a uniformed member of a paid fire department or a regular member of a paid police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be conclusively presumed to be a personal injury which arose out of and in the course of his employment, and which was suffered in the line of duty and within the scope of his employment . . . .” (Emphasis added.)

       See footnote 2.


author: FOTI, J.

text:
    REGENCY SAVINGS BANK v. WESTMARK PARTNERS ET AL.
    (AC 21898)
    Foti, Mihalakos and Peters, Js.
    Argued February 19
    officially released June 11, 2002

      Thomas L. Kanasky, Jr., for the appellants (defendant Monroe Markovitz et al.).

      Scott D. Rosen, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant guarantors in this foreclosure action, Monroe Markovitz, in his individual capacity, and Markovitz and Gloria Weissberg as executors of the estate of Jesse S. Weissberg, appeal from the deficiency judgment rendered by the trial court in favor of the plaintiff, Regency Savings Bank, in the amount of $369,000. The defendants claim that the court improperly (1) rendered a deficiency judgment, (2) determined the amount of liability and (3) rendered judgment separately against them despite contractual language that expressly provided for joint and several liability. We affirm the judgment of the trial court as to the defendants’ first and second claims, and reverse the judgment as to the defendants’ third claim.

The following facts underlie the claims before us. On June 30,1987, CGI Danbury Associates Limited Partnership (CGI) executed a $3.5 million promissory note to Society for Savings (Society) and secured the note with a mortgage deed on a parcel of land in Danbury. With Society’s permission, CGI conveyed the property to Westmark Partners (Westmark), which agreed to assume all of CGI’s obligations under the note. Markovitz and Jesse Weissberg, both partners of Westmark, agreed to guarantee Westmark’s payment and performance under the note. In 1996, Society assigned its interest in the note to the plaintiff. The plaintiff commenced an action of foreclosure after installment payments on the note ceased in 1997. On August 31, 1998, the court rendered a judgment of strict foreclosure in the plaintiff’s favor.

The plaintiff thereafter filed a motion for a deficiency judgment against Westmark and its guarantors as permitted under General Statutes § 49-14 (a). The court, Stodolink, J., sustained the defendants’ objection to the motion, concluding that Westmark was not obligated to pay a deficiency judgment under the terms of the note and that the guarantors also were not obligated to do so because they were required to satisfy only the obligations of the borrower, Westmark. The plaintiff appealed from that decision to this court. Regency Savings Bank v. Westmark Partners, 59 Conn. App. 160, 756 A.2d 299 (2000). We reversed the trial court’s judgment and noted that by agreeing to guarantee the note, the defendant guarantors specifically limited the amount of their liability and that their guarantee allowed the property to be conveyed to Westmark without acceleration of the note. We concluded that the guarantors should not be allowed to escape the risk of their bargain while receiving the benefit thereof. Id., 167.

On remand, the court, Hiller, J., noted that the terms of the guarantee limited the liability of the defendant guarantors to “an amount equal to the cumulative total of the last twelve (12) monthly installments of principal and interest due on the loan prior to the lender’s acceleration thereof.” The court calculated that amount to be $369,000. The defendants claim that the court improperly rendered a deficiency judgment pursuant to § 49-14 and that it improperly interpreted the terms of the limited guarantee as to the amount of liability.

We afford the issues before us, involving both statutory and contract interpretation, plenary review. “Statutory construction . . . presents a question of law over which our review is plenary. . . . According to our long-standing principles of statutory construction, our fundamental objective is to ascertain and give effect to the intent of the legislature. ... In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) King v. Sullar, 253 Conn. 429, 437-38, 754 A.2d 782 (2000). “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987).

At the outset, we note the well settled principles of contract interpretation. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . When only one interpretation of a contract is possible, the court need not look outside the four comers of the contract.” (Internal quotation marks omitted.) Bentz v. Halsey, 54 Conn. App. 609, 616, 736 A.2d 931 (1999). On the other hand, “[w]hen an ambiguous term is at issue, the trial court can examine the extrinsic evidence to resolve the question of the parties’ intent.” (Internal quotation marks omitted.) Larson v. Jacobson, 38 Conn. App. 186, 190, 659 A.2d 753 (1995). Because we find definitive contract language, leaving no room for interpretation, our review of the court’s interpretation of the relevant contract language at issue in this dispute is plenaiy. See Days Inn of America, Inc. v. 161 Hotel Group, Inc., 55 Conn. App. 118, 124, 739 A.2d 280 (1999).

I

The defendants first claim that the plaintiff is not entitled to a deficiency judgment pursuant to § 49-14. They argue that the court lacked the authority to render a deficiency judgment under the guarantee because the amount that the plaintiff claims actually is due under the guarantee is less than the actual deficiency. We disagree.

Essentially, the defendants argue that § 49-14 sets forth a clear method by which to determine the amount of liability in a deficiency judgment. The defendants argue that because the guarantee limited their liability under a different formula, the different and lesser amount of liability prescribed by the guarantee cannot be awarded as a deficiency judgment. They posit that “[t]he only deficiency judgment remedy available to a plaintiff is under § 49-14. The legislature did not intend that the amount of the judgment could be based on the agreement of the parties or as otherwise found by the court. The statute does not give the court any discretion nor does any case law.”

Our duty to construe § 49-14 strictly does not preclude its application where, as here, a foreclosing mortgagee has complied with the statute’s provisions and seeks to recover by means of a deficiency judgment against a guarantor who is obligated pursuant to a limited guarantee, even where the amount recoverable under that limited guarantee is less than the amount of the actual deficiency. In two prior decisions, this court has upheld deficiency judgments, in amounts agreed to by the parties by virtue of a contractual limitation on a guarantor’s liability, despite the fact that the amounts were less than the awards that would have been awarded by operation of the statute. New England Sav ings Bank v. FTN Properties Ltd. Partnership, 32 Conn. App. 143, 628 A.2d 30 (1993); People’s Bank v. Moscowitz, 31 Conn. App. 266, 624 A.2d 907, cert. denied, 226 Conn. 915, 628 A.2d 987 (1993). Under the present circumstances, our interpretation of § 49-14 permits the statute to achieve a reasonable and rational result, one that is not disallowed by the statute’s plain language. The plaintiffs legal right to seek a deficiency judgment against the defendant guarantors coexisted with its clear contractual right to enforce the guarantee once payment on the note had ceased. We see no reason to interpret § 49-14 so as to preclude recovery of some or all of a plaintiff s entitlement to relief under that section just because a defendant has limited his or her liability by means of a limited guarantee.

The court properly concluded that the plaintiff was entitled to a deficiency judgment in accordance with the terms set forth in the guarantee.

II

The defendants next argue that even if the plaintiff is entitled to a deficiency judgment, the court improperly calculated the amount of their liability under the terms of the limited guarantee. We disagree.

The relevant provision in the guarantee states: “Notwithstanding any other provision contained in this Guaranty, the Guarantor’s guaranty hereunder shall be limited to an amount equal to the cumulative total of the last twelve (12) monthly installments of the principal and interest due on the Loan prior to the Lender’s acceleration thereof.” The defendants claim that the word “due” in the guarantee limits the plaintiffs recovery to the amount in arrears at the time of acceleration. The court was not persuaded by that argument and concluded that “[although it is true that ‘due’ can mean unpaid, in the context of this agreement, ‘due’ is used in a formula to describe the total amount of payments there were owing, paid or unpaid, in the one year period before acceleration. This language defines by a formula a limit to damages, subject to fluctuations in the interest rate, and does not provide for recoupment of unpaid installments.” We agree.

The use of the word “cumulative” and the phrase “prior to the Lender’s acceleration” in the guarantee can be interpreted only as meaning that all twelve immediately preceding installments are to be used in calculating the deficiency. Because the note called for an adjustable interest rate and monthly payments to be recalculated according to that adjusted rate, the guarantors’ limited liability had to be set by means of a formula and could not be satisfied by a specific amount. The cumulative amount of any single year’s payment could not be determined in advance. Although the word “due” might, at first glance, appear to mean “unpaid” or “owing,” in the context of its use within the sentence, as part of a formula, it does not refer to arrearages at the time of acceleration. Accordingly, we conclude that the court properly calculated liability in accordance with the formula set forth in the guarantee.

The form of the judgment is improper, the judgment is reversed and the case is remanded with direction to render judgment jointly and severally against the defendant guarantors.

In this opinion the other judges concurred.

       The other defendants, who are not parties to this appeal, are Westmark Partners, Eleom Company, Inc., and Ford Motor Credit Company. We therefore refer in this opinion to Markovitz and Gloria Weissberg as the defendants.

       The court rendered a deficiency judgment against Markovitz, in his individual capacity, in the amount of $369,000 and against Markovitz and Weissberg, as executors of the estate of Jesse S. Weissberg, in the amount of $369,000. The guarantee at issue expressly provided for joint and several liability- The parties to this appeal agree that the court should have rendered the deficiency judgment in the amount of $369,000, if at all, jointly and severally against the defendant guarantors. We concur and hold that the judgment should be modified to reflect the fact that the defendants are jointly and severally liable for that amount.

       After Jesse Weissberg died on July 6,1996, Gloria Weissberg and Markovitz were appointed executors of his estate.

       General Statutes § 49-14 (a) provides: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment."
      This court has noted that “[a] deficiency proceeding has a very limited purpose. . . . [T]he court, after hearing the party’s appraisers, determines the value of the property and calculates any deficiency. This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property. . . . The deficiency hearing concerns the fair market value of the subject property as of the date title vests in the foreclosing plaintiff under § 49-14.” (Internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Weinstein, 52 Conn. App. 348, 352, 727 A.2d 720 (1999). At the time of the foreclosure judgment, the court found that the mortgage debt was $3,573,731.83 and that the subject property carried a value of $2.3 million. Regency Savings Bank v. Westmark Partners, 59 Conn. App. 160, 162, 756 A.2d 299 (2000). The plaintiff claims an actual deficiency of $1,141,362.06. The defendants argue that the deficiency is $1,273,731.83.

       According 1,o their interpretation of the provision, the defendants would be liable for three unpaid installments.

       See footnote 2.