author: FLYNN, J.

text:
    JOY HAMERNICK ET AL. v. GERARD E. BACH ET AL. JUDITH CARNEY ET AL. v. ROBERT SCHULTZ ET AL.
    (AC 19811)
    (AC 19812)
    Schaller, Flynn and O’Connell, Js.
    Argued March 30 —
    officially released July 3, 2001

      NoelR. Newman, for the appellant (defendant Gerard E. Bach in each case).

      Anthony A. Piazza, with whom, on the brief, was Michelle M. Napoli, for the appellee (named plaintiff in the first case).

      Vincent M. Musto, for the appellee (named plaintiff in the second case).
   Opinion

FLYNN, J.

The defendant Gerard E. Bach appeals from the judgments of the trial court rendered after the denial of his motions to set aside the verdicts in favor of plaintiffs Judith Carney and Joy Hamernick in these consolidated personal injury actions. The main issue in these appeals is whether General Statutes § 52-225d prohibits a court from listing on the verdict form more than the two specified categories of economic damages and noneconomic damages. The defendant also raises, but only as to the first of the two underlying actions, Hamernick v. Bach, the issue of whether the court improperly submitted the issue of future economic damages to the jury. We affirm the judgments of the trial court.

The following facts and procedural history are necessary to our resolution of these appeals. The plaintiffs brought an action for personal injuries sustained in a motor vehicle collision that occurred on May 12, 1992. The underlying matters, Hamernick v. Bach and Carney v. Schultz, were consolidated and thereafter tried to the jury. In Carney, the jury awarded $187,439.46 in damages to Judith Carney. The Carney verdict form divided the verdict into the following subcategories of past and future economic and noneconomic damages after which we have set out the respective amounts the jury awarded: (1) past medical and related expenses, $3939.46; (2) past pain and suffering, $83,500; (3) past loss of enjoyment of life’s activities, $25,000; (4) future pain and suffering, $50,000; and (5) future loss of enjoyment of life’s activities, $25,000. The same five categories were utilized for Christina Carney, to whom the jury awarded $14,122.89 in damages. The defendant does not challenge the judgment as to Christina Carney. In addition to the verdict forms, the jury completed interrogatories as to both Carneys in which it broke down the damages into the same five categories listed on the verdict forms. Of some significance to the issue on appeal is the fact that the jury awarded Christina Carney no damages for either future pain and suffering or for future loss of enjoyment of life’s activities, but awarded Judith Carney $75,000 in damages for them.

The Hamernick verdict form also was divided, but into eight subcategories, which included past medical and related expenses, past lost wages, past pain and suffering, past loss of enjoyment of life’s activities, future medical and related expenses, future pain and suffering, future loss of enjoyment of life’s activities and future permanent injury. The jury awarded Joy Hamernick nothing for future permanent injury, but did award various amounts for the other categories of damages in rendering a total damages award of $64,612.26.

The defendant timely filed two motions to set aside the verdicts. In each motion, the defendant maintained that the court “erred in allowing the Plaintiff to submit a verdict form to the jury which broke out damages into several categories, some of which are impermissible. This breakdown of damages has not been allowed by statute or [case law] since the enactment of [Public Acts 1987, No. 87-227 (P.A. 87-227), known as] Tort Reform II on October 1, 1987.” The defendant properly preserved the issue for appellate review by timely objecting to the forms, stating that there should not be a separate category on the verdict form for each type of damages claimed.

Our standard of review of a trial court’s denial of a motion to set aside a verdict is whether the court abused its discretion. Patchell v. Automobile Ins. Co. of Hartford, 63 Conn. App. 42, 46, 774 A.2d 1079 (2001). Our review is limited. Absent an abuse of discretion, we will uphold the denial of a motion to set aside the verdict. Preston v. Wellspeak, 62 Conn. App. 77, 80, 767 A.2d 1259 (2001). A trial court has the “inherent power to set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of the trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict. ” Munson v. Atwood, 108 Conn. 285, 288, 142 A. 737 (1928). “It is proper for a trial court, using due caution, and in the exercise of its discretion, to set aside a verdict when satisfied that ... its rulings on evidence were erroneous and that those erroneous . . . rulings were consequential enough to have had a substantial effect on the verdict.” Ardoline v. Keegan, 140 Conn. 552, 555-56, 102 A.2d 352 (1954). Our case law emphasizes, however, that this power vested in the trial court is to be exercised with caution. Munson v. Atwood, supra, 288.

We now consider the legislative history of § 52-225d. Prior to October 1, 1986, neither the jury in a jury trial nor the judge in a trial to the court was required to make special findings breaking down the amount of damages awarded into categories of economic and non-economic damages. That procedure changed with the enactment of Public Acts 1986, No. 86-338 (P.A. 86-338), often known as “Tort Reform I,” which became effective on October 1, 1986. That law required the fact finder to make separate findings as to both past and future economic damages, and also past and future noneconomic damages. In the following year, the legislature amended Tort Reform I by enacting P.A. 87-227, now § 52-225d. Section 52-225d reduced the four mandated categories of findings to only two categories, namely, economic and noneconomic damages.

As originally enacted by the General Assembly in 1986, P.A. 86-338 provided language that was to be codified in § 52-225d and indicated that the fact finder, in addition to determining the four categories of damages, should make “any other separate findings of damages directed by the court as necessary to cariy out the provisions of this section.” P.A. 86-338, § 2 (b) (1). In the 1987 amendment, effective October 1, 1987, P.A. 87-227 repealed the language concerning the making of other findings directed by the court.

The defendant maintains that under § 52-225d, as amended in 1987, the only categories of damages that should have been considered were economic and non-economic damages. He further asserts that in permitting more than two categories of damages on the verdict form, the court proceeded beyond the plain language of § 52-225d. He argues that in doing so, the court implicitly encouraged the jury to award additional damages to the plaintiffs. He contends that when the General Assembly repealed the express statutoiy authority to make any other “separate findings of damages [as] directed by the court,” trial courts lost the power to put more than the subtotals of economic and noneconomic damages and their grand total on the verdict form. He further claims that the departure from what he views as the statutory requirement, itself, prejudiced him. The defendant concludes that the court improperly refused to set aside the verdicts. We disagree.

We begin our analysis by reviewing the words of the operative statute, § 52-225d. That statute requires the fact finder, whether a judge in a trial to the court or a jury in a jury trial, to “make separate findings for each claimant specifying the amount of any economic damages and noneconomic damages . . . .” General Statutes § 52-225d (a) (1). Although the statute does not require that those findings be made on the verdict form, trial judges during the fourteen years since that statute was enacted have often used, in the interest of simplicity, such a form in jury cases. The statute does not prohibit those findings from being placed on the verdict form itself. It provides only that the fact finder shall make such findings, but does not indicate on what document they should appear. The defendant, nonetheless, claims that the court improperly permitted “a verdict form that included more categories of damages than what is provided for in the statute itself,” meaning that the verdict form should have been limited to the categories of economic and noneconomic damages as set out in the mandate of § 52-225d. We conclude that § 52-225d neither mandates nor prohibits the placement of the two categories of economic and noneconomic damages on the verdict form itself, and does not prohibit reasonable general, past and future, subcategories of each of those classes of damages about which there was evidence and about which the court instructed the jury.

The next step of our analysis leads us to the principle that § 52-225d must be read in light of our existing common law. The premise of the defendant’s argument is that the authority to render a verdict with subcategories of special findings can arise only from statutory authority and that when P.A. 87-227 repealed the requirement that the fact finder make separate findings as to both past and future economic and noneconomic damages, it terminated the court’s authority to have the jury render such a verdict. We find that argument to be without merit.

It is axiomatic under our common law that in civil trials, issues are not submitted to juries for determination unless warranted by the pleadings and evidence. Thus, even though § 52-225d provides that a jury, as the fact finder, shall make separate findings that specify the amount of economic and noneconomic damages, such a finding would not be mandated as to noneconomic damages if the plaintiff had not pleaded that he suffered them, or if pleaded, had not offered evidence in support of them. Similarly, if a court bifurcated the issues in a personal injury case so that liability issues were tried to a jury first, despite the statute, there could be no findings of either economic or noneconomic damages at that stage of the proceedings. Nonetheless, the fact finder still would have rendered a verdict.

Our point is that courts have a necessary inherent power, independent of statutory authorization, to prescribe rules to regulate their proceedings and to facilitate the administration of justice as they deem necessary. In re Appeal of Dattilo, 136 Conn. 488, 492, 72 A.2d 50 (1950). With that same principle in mind, we turn next to the issue of whether the court impermissibly permitted subcategories of both economic and noneconomic damages to be listed on the verdict form. It is clear that between the initial adoption of Tort Reform I in 1986 and its amendment adopting Tort Reform II in 1987, the legislature removed the statutory mandate for a court to order “any other separate findings of damages . . . necessary to carry out the provisions of this section.” (Emphasis added.) P.A. 86-338, § 2 (b) (1). We do not conclude, however, that the General Assembly intended by that deletion to take from our courts the power they always have enjoyed under the common law to require a jury to render special verdicts or to answer interrogatories. See 2 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1971) § 199, p. 791 (right to render special verdict was common-law development); see Johnson v. Higgins, 53 Conn. 236, 240-41, 1 A. 616 (1885) (jury may be required to return a verdict on each separate issue). “The power of the trial court to submit proper interrogatories to the jury, to be answered when returning their verdict, does not depend upon the consent of the parties or the authority of statute law." (Emphasis added.) Freedman v. New York, N.H. & H.R. Co., 81 Conn. 601, 612, 71 A. 901 (1909); see also Practice Book § 16-18 (judicial authority may submit interrogatories to jury). Tort Reform I conferred on the fact finder the power only to carry out the purposes of § 52-225d. It did not address other concerns that a court or the parties might have to furnish the basis of a judgment being rendered or to test the correctness of a verdict being rendered by eliciting a determination of material fact. Those are the very concerns that special verdicts and interrogatories, respectively, address.

In this case, our examination of the verdict forms reveals that the plaintiffs requested both special verdicts and interrogatories. The court honored that request by requiring the jury to render an actual verdict on (1) whether any one of the acts of negligence pleaded by the plaintiffs had been proven, (2) whether the defendant’s negligence proximately caused the plaintiffs’ injuries, (3) the amount of damages according to various categories and subcategories, and (4) whether the defendant was operating the truck that was involved in the May 12,1992 collision as an agent of the defendant Robert Schultz. That information sufficiently instructed the trial judge concerning the jury’s findings so that the judge knew which defendants, if any, against whom judgment should be rendered. If error occurred in any evidentiary ruling or portion of the court’s instructions to the jury, the verdict form minimized the potential for the setting aside of the entire verdict and the necessary retrial of the whole case.

Last, we address the defendant’s concerns that the verdict form was prejudicial because it was contrary to § 52-225d and, as contended at oral argument, may have induced the jury to award more damages because of the expansion of the damages categories beyond the two listed and required by statute. We previously have determined that § 52-225d contains no such prohibition and that the court’s power is not dependent on the existence of such an express statutory authority. The jury was required to examine each category of damages, not merely because the verdict forms set them out separately, but also because the interrogatories required the jury to do so and the judge so charged the jury. Therefore, any alleged error was harmless. In other words, since the jury was required to consider each subcategory of damages listed in the interrogatories, whether it again entered those damages amounts on the verdict form and totaled them or did so only on a separate piece of paper is of no consequence. It would be required to perform the same calculation to render its verdict. Furthermore, it is telling that the jury had no apparent difficulty awarding Christina Carney no damages for future pain and suffering or for future loss of enjoyment of life’s activities under the very same procedures and forms of which the defendant disapproves. If the process somehow improperly increased damages, the same process used in Christina Carney’s case should have done so. The ciphers the jury awarded to her for future damages show that the process did not unfairly encourage awards of damages contrary to the evidence.

The defendant’s final issue is raised only in Hamernick v. Bach and addresses the sufficiency of the evidence as to future economic damages. We do not conclude that the court improperly submitted future economic damages to the jury. As a general principle, a jury’s determination of future economic damages should be based on “an estimate of reasonable probabilities, not possibilities.” (Internal quotation marks omitted.) Marchetti v. Ramirez, 240 Conn. 49, 54, 688 A.2d 1325 (1997). That standard allows the jury to derive an estimate of future medical expenses without speculating. Id. “Because . . . [fjuture medical expenses do not require the same degree of certainty as past medical expenses . . . [i]t is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date . . . when there is also a degree of medical certainty that future medical expenses will be necessary.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 54-55, citing Seymour v. Carcia, 221 Conn. 473, 478-79, 604 A.2d 1304 (1992).

In Hamernick v. Bach, sufficient evidence was presented to the jury to enable it to base its estimate of future medical expenses on a “probability.” For instance, the plaintiffs treating physician, Donald J. Lawlor, stated in his medical report of January 29,1996, that “[bjased on history, physical findings and radio-graphic findings, as well as alteration of life-style, I feel that Ms. Joy Hamemick has sustained an 8-10% [permanent partial disability] of her lumbar spine. She will most probably require symptomatic care for the rest of her natural life.” (Emphasis added.) Moreover, the plaintiff had incurred $6312.26 in medical expenses as of the date of trial. On the basis of that evidence, we conclude that the court properly submitted future economic damages to the jury.

For all of the previously discussed reasons, we conclude that the court did not abuse its discretion in denying the defendant’s motions to set aside the verdicts in each case.

The judgments are affirmed.

In this opinion the other judges concurred.

       In Hamernick v. Bach, the original defendants were Gerard E. Bach, Robert Schultz, Judith Carney and General Electric Capital Corporation. In Carney v. Schultz, the original defendants were Robert Schultz and Gerard E. Bach. In this opinion, we refer to Gerard E. Bach, the only defendant in these appeals, as the defendant.

       In Hamernick, the original plaintiffs were Joy Hamernick and Richard Hamernick. In Carney, the original plaintiffs were Judith Carney and Christina Carney. In this opinion, plaintiffs refer to Joy Hamernick and Judith Carney.

       The breakdown delineated in the verdict form was as follows: (1) past medical and related expenses, $6312.26; (2) past lost wages, $2000; (3) past pain and suffering, $20,700; (4) past loss of enjoyment of life’s activities, $6000; (5) future medical and related expenses, $9600; (6) future pain and suffering, $16,000; (7) future loss of enjoyment of life’s activities, $4000; and (8) future permanent injury, $0.

       Economic damages are defined as “compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages . . . .” General Statutes § 52-572h (a) (1).

       Noneconomic damages are defined as “compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering . . . .” General Statutes § 52-572h (a) (2).

       In a trial to the court, those findings presumably would be made in the court’s oral ruling or memorandum of decision.

       We use the term “special verdict" to encompass any return the jury makes that sets forth its opinions as to the existence or nonexistence of a fact or facts; G. Clementson, Special Verdicts and Special Findings by Juries (1905) p. 45; rather than in the statutory sense, in which the jury, in rendering a special verdict, states all the facts at issue and makes conditional conclusions. Pursuant to those conditional conclusions, if the court should favorably decide certain legal questions for the plaintiff, the jury’s finding then would be for the plaintiff and if not, then for the defendant. See General Statutes § 52-224 (a).


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    SHIRLEY WILLIAMS v. KRISTINE D. RAGAGLIA, COMMISSIONER OF CHILDREN AND FAMILIES
    (AC 21158)
    Mihalakos, Dranginis and Dupont, Js.
    Argued April 27 —
    officially released July 3, 2001

      Royal J. Stark, with whom, on the brief, were Eric V. McGrew and Jason L. Smith, certified legal interns, for the appellant (plaintiff).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, Shirley Williams, appeals from the judgment of the trial court rendered after the granting of the motion filed by the defendant commissioner of children and families (commissioner) to dismiss her administrative appeal as moot. On appeal the plaintiff claims that (1) the court improperly found that the appeal was moot even though the plaintiff presently is suffering and will continue to suffer harm and adverse consequences from the defendant’s final decision revoking her foster care license, and (2) the relief requested by the plaintiff on appeal is practical and within the jurisdictional authority of the Superior Court. We agree with the plaintiff and therefore reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. In 1993, the department of children and families (department) issued a limited “special study” foster care license to the plaintiff specifically for the care of two half-siblings, S and K, who are the children of the plaintiffs niece. In 1997, the department issued the plaintiff notice of its intent to revoke her foster care license. The department alleged that the plaintiff had failed to comply with foster care regulations. A hearing was conducted concerning the department’s proposed revocation. On November 26, 1997, the hearing officer issued a proposed final decision. In the proposed decision, the hearing officer ruled that the plaintiff could retain her special license under the following conditions: (1) that the plaintiff, at all times, maintain a list of at least three department-approved alternate caregivers; (2) that within sixty days of the decision, the plaintiff return to work and provide the department with sufficient proof of income; and (3) that the department perform unannounced visits at the plaintiffs home at least once a month for a period of six months.

On June 3, 1998, the commissioner remanded the matter of the revocation for further hearing on (1) the extent to which the plaintiff had complied with the conditions of the proposed final decision, (2) the best interests of S and K, and (3) the extent to which the plaintiff had complied with the department licensing regulations since the conclusion of the previous hearing. On June 21, 1999, a final decision issued, revoking the plaintiffs special license due to noncompliance with licensing regulations. The department took action to remove S and K from the plaintiffs home. In response, the plaintiff filed a petition for a writ of habeas corpus to obtain the legal custody of S and K, and requested injunctive relief. On July 7, 1999, the plaintiff also filed a contemporaneous administrative appeal, and sought and obtained a stay of the decision revoking her license.

The department thereafter agreed to the sole custody and guardianship of S and K in the plaintiff, which resolved the petition for the writ of habeas corpus. After the transfer of custody of S and K to the plaintiff, the children no longer were committed to the department. As the children’s legal guardian, the plaintiff no longer required a special study foster care license. In light of that, on May 25, 2000, the commissioner filed a motion to dismiss the plaintiffs administrative appeal as moot. On June 27, 2000, after oral argument, the court dismissed the plaintiffs administrative appeal as moot. This appeal followed.

I

The plaintiff first claims that her administrative appeal is not moot in light of the fact that she suffers and will continue to suffer negative consequences resulting from the revocation of her special license. Specifically, the plaintiff asserts that simply because she currently is not caring for children classified as foster children does not mean that she will have no contact with the department in the future. The commissioner contends that there are no adverse consequences that can flow from the revocation of the plaintiffs special foster care license insofar as she is now the legal guardian, and future involvement with the department concerning those children is too remote to amount to an actual controversy. Although this court does not discount the commissioner’s argument, it cannot be said that the revocation of any license, and the permanent record of that revocation in the department files, will not be consequential to a person who has accepted the responsibility of the care of foster children in her home. We agree with the plaintiff.

“Mootness deprives this court of subject matter jurisdiction. . . . The test for determining mootness is not [wjhetherthe [respondent] would ultimately be granted relief .... The test, instead, is whether there is any practical relief this court can grant the appellant. . . . [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) In re Amelia W., 62 Conn. App. 500, 505, 772 A.2d 619 (2001). “In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way.” Hechtman v. Savitsky, 62 Conn. App. 654, 659, 772 A.2d 673 (2001).

We conclude that the plaintiff would benefit if the appeal is successful. Because she is the natural mother of minor children, and the legal guardian of S and K, who previously were wards of the department, she is a member of the class of persons that the department is specifically empowered to investigate and scrutinize. Furthermore, the plaintiff has a final judgment against her revoking her foster care license for cause. That information, of course, exists in the department’s files, and (we must assume) the department will retain that information for future reference. Clearly, the judgment of revocation may affect the plaintiff in the future, should she again come under the scrutiny of the department. We conclude that the matter is not moot.

II

The plaintiff next claims that the courts can provide her practical relief from the adverse affects of the final judgment revoking her license. We agree.

As previously discussed, we conclude that there is practical relief that can be granted to the plaintiff. Should the judgment of revocation be overturned, practical relief would be the benefit of having a clean record with the department should the plaintiff ever come under that agency’s scrutiny again in the future. It is the opinion of this court that such a situation is a possibility. While it is unclear that the plaintiff will prevail in light of the technical nature of regulation and the claimed violation, she is entitled to a review of that administrative determination.

The judgment is reversed and the case is remanded for an adjudication of the merits of the administrative appeal.

In this opinion the other judges concurred.

       A special study foster care license licenses the holder to provide foster care only for the children specifically identified in the license.

       The department specifically alleges that the plaintiff allowed her daughter, a convicted drug felon, to be in her home, in violation of § 17a-145-152 of the Regulations of Connecticut State Agencies.
      Section 17a-145-152 (a) of the Regulations of Connecticut State Agencies provides in relevant part: “The granting of a license or approval shall be denied if any member of the household of a foster family ... (4) has been convicted of the possession, use, or sale of controlled substances within the past five (5) years


author: SCHALLER, J.

text:
    JOSEPH R. KREVIS ET AL. v. CITY OF BRIDGEPORT
    (AC 19438)
    Schaller, Spear and O’Connell, Js.
    Argued January 23 —
    officially released July 10, 2001

      George C. Springer, Jr., for the appellant (named plaintiff).

      John R. Mitola, associate city attorney, with whom, on the brief, was John H. Barton, associate city attorney, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Joseph R. Krevis, appeals from the summary judgments rendered in favor of the defendant, the city of Bridgeport, in two cases that were consolidated for trial. Summary judgment was rendered in each case on the grounds that a municipality is not liable for punitive damages absent a statute or agreement providing for such damages and that the plaintiff failed to bring an action against an individual employee under General Statutes § 7-465. On appeal, the plaintiff claims that the trial court improperly (1) rendered judgments on the negligence counts asserted in the consolidated cases on the basis of § 7-465, (2) dismissed the cases on the basis of a defense contained in § 7-465 when such defense had not been pleaded by the defendant and (3) concluded that no private right of action exists for violation of the Freedom of Information Act, General Statutes § 1-200 et seq. We reverse the judgments without reaching the merits of the plaintiffs claims because we conclude that it was improper for the court to render the summary judgments as it did.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. The plaintiff, a former employee of the defendant, brought two separate actions against the defendant. In one complaint, the first count alleged invasion of privacy in connection with the alleged disclosure of medical and personnel file data to agents of the Internal Revenue Service. The second and third counts alleged intentional, wanton or reckless conduct on the part of the defendant in disclosing the same data. The fourth count alleged negligence. The fifth count alleged negligent infliction of emotional distress as a result of the disclosure. The court later consolidated that five count complaint with a second complaint alleging disclosure of medical and personnel information to Total Employee Case, Inc., a corporation charged by the defendant with administering certain medical claims, and to a witness for the defendant who testified about the records in a hearing before the workers’ compensation commission in which the plaintiff sought heart and hypertension benefits.

On the day jury selection was to commence, the court heard a motion in limine submitted by the defendant to prevent references to punitive damages and attorney’s fees during the trial. In the motion, the defendant discussed the nature of the governmental immunity of municipalities. The court granted the motion in limine, barring reference to punitive damages or attorney’s fees.

Immediately thereafter, counsel for the plaintiff questioned the nature of the ruling, stating that “my impression is [that the court is] making a ruling based upon the governmental immunity statute.” The court replied that “[the governmental immunity statute] applies — if you want me to expand that to the cause of action, I can very easily do that.” Counsel for the plaintiff responded, “I’m not exactly sure how I should take that,” to which the court replied, “[y]ou better take it very carefully, counselor . . . because if I do go into it, it may jeopardize this entire action.” Counsel for the plaintiff then asked for a recess to confer with his client.

After the recess, counsel for the plaintiff stated, “I will say for the record that I certainly do not want to go through the effort of a three, four, possibly five day trial only, at the end of the day, to have my case dismissed. If the court at this point is prepared to make a ruling on the applicability of the governmental immunity statute as to the claims in this case, we will accept the judgment of the court and take appropriate action.” The court acknowledged the irregularity of a summary judgment ruling under the circumstances.

Counsel for the defendant interjected that “an oral motion for summary judgment” might be an appropriate way to resolve questions on the application of governmental immunity. The court, after further discussion with counsel for the plaintiff over whether defense counsel had exceeded the scope of the motion in limine in his discussion of applicable law, found governmental immunity applicable to all counts and dismissed the actions. The plaintiff appealed from the judgments.

At oral argument, this court questioned the propriety of the trial court’s granting the motion for summary judgment as it did in the present case. This court thus ordered supplementary briefs as to why an oral motion for summary judgment was proper.

Prior to any discussion of the merits of the present appeal, we must address the preliminary issue of whether it was proper, under the circumstances of this case, for the trial court to hear and grant the motion for summary judgment. We conclude that it was improper for the court to do so and reverse the grant of summary judgment.

Neither party claims on appeal that the summary judgment procedure was improper. “[0]ur sua sponte invocation of plain error review is warranted when the following requirements are satisfied: (1) we discuss the rule and articulate why it is appropriate; and (2) we give the parties an opportunity to brief the issue.” State v. Washington, 39 Conn. App. 175, 179, 664 A.2d 1153 (1995). “Our Supreme Court has stated that a trial court’s failure to follow the mandatory provisions of a statute prescribing trial procedures or to follow a procedural rule constitutes plain error.” (Internal quotation marks omitted.) State v. Tinsley, 59 Conn. App. 4, 18, 755 A.2d 368, cert. denied, 254 Conn. 938, 761 A.2d 765 (2000). We announced our concerns as to the court’s granting an oral motion for summary judgment and ordered briefs on the matter, thereby complying with the requirements set forth in Washington. The question, therefore, is whether the summary judgment procedures are mandatory and, thus, whether the failure to adhere to the requisite procedures constitutes plain error.

At the outset, we acknowledge that “[t]he motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.” Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). This object is not to be obtained without limitation, however, and courts are bound by the relevant rules of practice.

“The rules of statutory construction apply with equal force to Practice Book rules. . . . Where the meaning of a statute [or rule] is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Its unequivocal meaning is not subject to modification by way of construction. ... A cardinal rule of statutory construction is that where the words of a statute [or rule] are plain and unambiguous the intent of the [drafters] in enacting the statute [or rule] is to be derived from the words used. . . . Where the court is provided with a clearly written rule, it need look no further for interpretive guidance.” (Citation omitted; internal quotation marks omitted.) Schiappa v. Ferrero, 61 Conn. App. 876, 882, 767 A.2d 785 (2001).

The following provisions of our rules of practice are relevant to our review of the summary judgment procedure in the present case. Practice Book § 11-10 requires that memoranda of law be filed in support of and in opposition to a summary judgment motion. Practice Book § 17-44 permits a court to hear a motion for summary judgment after the case has been assigned for trial. Practice Book § 17-45 provides the relevant procedures to be followed when filing a motion for summary judgment.

In the present case, there is no indication that either party filed a memorandum. The motion for summary judgment was raised and decided on the same day. Although the court is permitted to entertain such a motion after the case is assigned for trial; see Practice Book § 17-44; the court is not accorded the discretion to waive the memoranda requirement under § 11-10.

We further acknowledge that “we are directed to interpret liberally the rules of practice, [however] that liberal construction applies only to situations in which ‘a strict adherence to them [will] work surprise or injustice.’ Practice Book § 1-8 . . . .” Pitchell v. Hartford, 247 Conn. 422, 432, 722 A.2d 797 (1999). There is no evidence that declining to provide an immediate ruling would work a surprise or injustice. In fact, the evidence is to the contrary.

It is settled law that a court may not, sua sponte, raise and decide amotion for summary judgment. Miller v. Bourgoin, 28 Conn. App. 491, 500, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992); Cummings & Lockwood v. Gray, 26 Conn. App. 293, 300, 600 A.2d 1040 (1991); Booth v. Flanagan, 19 Conn. App. 413, 415, 562 A.2d 592 (1989). This court has stated that “a court may not grant summary judgment sua sponte, and that pursuant to Practice Book [§ 17-44], a person seeking summary judgment . . . must file an appropriate motion addressed to it.” (Emphasis added.) Hope’s Architectural Products, Inc. v. Fox Steel Co., 44 Conn. App. 759, 762-63 n.4, 692 A.2d 829, cert. denied, 241 Conn. 915, 696 A.2d 985 (1997). We also have stated that “[t]he issue first must be raised by the motion of a party and supported by affidavits, documents or other forms of proof.” (Emphasis added; internal quotation marks omitted.) Miller v. Bourgoin, supra, 500. In the present case, neither a motion nor supporting documents were filed in support of the summary judgment motion.

Under the circumstances of this case, the court improperly rendered summary judgment. Although the plaintiff stated that he would prefer not to proceed to trial only to have his case dismissed, efficiency alone is not an adequate basis for circumventing the rules of practice. No “surprise or injustice”; (internal quotation marks omitted) Pitchell v. Hartford, supra, 247 Conn. 432; was evident in this case that would afford this court a basis for construing the rules in a manner to preclude the requirements of filing a motion for summary judgment, memoranda in support of the motion and any other relevant supporting documents. See Practice Book §§ 11-10, 17-44 and 17-45; Hope’s Architectural Products, Inc. v. Fox Steel Co., supra, 44 Conn. App. 762-63 n.4; Miller v. Bourgoin, supra, 28 Conn. App. 500. The court was without authority to render summary judgments on the complaints as it did, and its action constitutes plain error.

The judgments are reversed and the cases are remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       Jean M. Krevis, the wife of Joseph R. Krevis, also was a plaintiff at trial. Only Joseph R. Krevis has appealed from the judgments of the trial court. We therefore refer in this opinion to Joseph R. Krevis as the plaintiff.

       The court stated: “I understood the remarks of plaintiffs counsel to invite a ruling on the issue of the viability of each and every count that has been alleged in this case. Ordinarily, from a procedural standpoint, that would not become a matter to be disposed of or to be considered until at the very earliest a motion — upon the completion of the plaintiffs case and a motion for a directed verdict; however, counsel has requested that such a ruling be made, and I will accommodate that request and allow all sides an opportunity to be heard on that subject . . . .”

       Practice Book § 11-10 provides in relevant part: “A memorandum of law briefly outlining tire claims of law and authority pertinent thereto shall be filed and served by the movant with ... (5) motions for summary judgment. ...”

       Practice Book § 17-44 provides in relevant part: “In any action . . . any party may move for a summary judgment at any time, except that the parly must obtain the judicial authority’s permission to file a motion for summary judgment after the case has been assigned for trial. . . . The pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge.”

       Practice Book § 17-45 provides: “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse parly shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.”

       Counsel for the plaintiff, prior to the court’s decision on the motion for summary judgment, stated, “I didn’t come here, Judge, to walk out of this courthouse. . . . [Y]our ruling was based upon the governmental immunity statute. That’s what it’s based on. . . . That was an issue that [the defendant] briefed wholly, separate and apart from the motion in limine. That was an appeal in effect on a motion for summary judgment to say that . . . we’re not entitled to compensatory damages.” Counsel further stated, “[T]he effect of your ruling is ... a motion for summary judgment. That’s what I’m getting at . . . .”

       Under the circumstances of this case, we need not consider whether a memorandum of law filed in support of a motion in limine suffices as a memorandum of law in support of a motion for summary judgment. In the present case, the court had ruled on the motion in limine. Thus, the motion in limine was not reviewed by the trial court as a motion for summary judgment. See, e.g., Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 32 n.17, 699 A.2d 964 (1997) (proceeding in which motion for summary judgment was reviewed as if it were motion to strike). The court rendered its ruling on the motion in limine prior to considering a summary judgment motion.


author: LAVERY, C. J.

text:
    GREGORY BELANGER ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF GUILFORD ET AL.
    (AC 20071)
    Lavery, C. J., and Dranginis and Dupont, Js.
    Argued January 17 —
    officially released July 10, 2001

      Matthew D. Newman, for the appellant (plaintiff Alan Zimmerman).

      Charles R. Andres, for the appellee (named defendant).

      Robert M. Ward, for the appellee (defendant R.C.K. Builders, Inc.).
   Opinion

LAVERY, C. J.

This is an appeal by the plaintiff Alan Zimmerman from the judgment of the trial court affirming the decision of the defendant planning and zoning commission of the town of Guilford (commission), granting sections one and two of the open space subdivision application of the defendant R.C.K. Builders, Inc. (R.C.K.). The principal issue is whether the commission, under the facts of this case, should have held a formal public hearing on the subdivision application, notice of which should have been published in a newspaper of general circulation. The court found that the commission was not required to conduct such a public hearing and that the meeting that the commission held on January 29, 1998, was a valid special meeting. We agree and, accordingly, affirm the judgment of the trial court.

The pertinent facts are as follows. On October 1, 1997, R.C.K. sought permission from the commission to apply for an open space subdivision. On October 15, 1997, the commission approved the concept of an open space subdivision and authorized R.C.K. to make an application for subdivision approval. On October 21, 1997, the commission received a petition from landowners requesting a public hearing on the proposed development. By application dated November 29, 1997, R.C.K. filed an application for the first section of the open space subdivision. On December 3,1997, the commission voted to receive that application and, on the recommendation of the town planner, to hold a public hearing on January 7, 1998, on the subdivision application. No public hearing was advertised for or held on January 7, 1998.

On January 5, 1998, the secretary of the commission posted a notice that the commission would hold a special meeting that would be open to the public on January 29, 1998, to discuss the first section of the R.C.K. open space subdivision. On January 7,1998, the commission held a meeting, but R.C.K’s application was neither on the agenda nor discussed. On January 29, 1998, the special meeting was held on R.C.K.’s application. The chairman of the commission told those in attendance at the meeting that a subdivision approval does not require a public hearing, but that the commission would hear comments from the public. Twenty-one members of the public spoke about the proposed subdivision at the meeting. On February 4, 1998, the commission approved a forty-five day extension to decide the application. At the commission’s February 18,1998 meeting, the commission voted to receive section two of R.C.K’s open space subdivision application. The commission discussed R.C.K.’s application at its meetings of February 4, 1998, February 10, 1998, February 18, 1998, and April 9, 1998. It conducted site visits on October 11, 1997, and February 10,1998. At its April 9,1998 meeting, the commission approved sections one and two of the subdivision with a modification reducing the number of lots from thirty-five to thirty. The plaintiff appealed to the trial court from the commission’s decision.

The plaintiff claimed in the trial court that once the commission voted to hold a public hearing, it was required to meet the notice requirements of General Statutes § 8-26 and § 272-15 C of the subdivision regulations of the town of Guilford, which it failed to do. The plaintiff argued that the January 29, 1998 session was, in fact, a public hearing that was not properly noticed, which made the commission’s subsequent approval void as a matter of law. The plaintiff also claimed that the vote taken at the December 3, 1997 meeting to hold a public hearing on the subdivision application was never rescinded officially by the commission.

The court found that the commission was not required by statute or regulation to hold a public hearing. The court further found that the commission was free to abandon its vote to hold a public hearing and that the decision not to hold the public hearing was an internal administrative act to which the members of the commission had not objected. The court finally found that the January 29, 1998 meeting was a valid special meeting and not an improperly noticed public hearing. The court dismissed the plaintiffs appeal and this appeal ensued.

I

The plaintiff first argues that the court improperly determined that the special meeting of the commission held on January 29,1998, was not actually an improperly noticed public hearing in light of the commission’s December 3, 1997, decision to hold a public hearing. We disagree.

“The commission, pursuant to General Statutes § 8-26, is not required to hold a public hearing in every case regarding a subdivision proposal presented to it. The statutory requirement provides that the commission may hold such a hearing if, in its judgment, the specific circumstances require such action. ... A municipal planning commission, in exercising its function of approving or disapproving any particular subdivision plan, is acting in an administrative capacity and does not function as a legislative, judicial or quasi-judicial agency, which would require it to observe the safeguards, ordinarily guaranteed to the applicants and the public, of a fair opportunity to cross-examine witnesses, to inspect documents presented, and to offer evidence in explanation or rebuttal and of the right to be fully apprised of the facts upon which action is to be taken .... The planning commission, acting in its administrative capacity herein, has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance. ... If it does not conform as required, the plan may be disapproved.” (Citations omitted.) Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 674-75, 236 A.2d 917 (1967).

The proper characterization of the January 29, 1998 meeting as a formal public hearing or a special meeting is a question of fact for the trial court. Shapero v. Zoning Board, 192 Conn. 367, 375, 472 A.2d 345 (1984). To the extent that the court has made findings of fact, our review is limited to deciding whether such findings are clearly erroneous. See Practice Book § 60-5; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). The court’s finding that the January 29, 1998 meeting was a special meeting and not a public hearing is supported by the record. The meeting notice for the January 29, 1998 meeting describes the meeting as a special meeting and not a public hearing. Similarly, the minutes of the January 29,1998 meeting describe the meeting as a special meeting and not a public hearing. The chairman, when calling the meeting to order, stated that the subdivision application did not require a public hearing, but that the commission had scheduled a special meeting to receive public input because of the public interest in the proposal. At various times during the meeting, the chairman repeated that it was not a public hearing but an opportunity to listen to public concerns about the subdivision. In addition, the town planner, George J. Krai, Jr., described the meeting as a public input session rather than a formal public hearing. Additionally, the chairman informed those present that in a public hearing, the commission asks for those who are for the application and for those who are against it, and that he was not going to do that. He also stated that there were certain issues on which he did not want to hear comment. That would not happen at a public hearing.

In addition, on February 4, 1998, the commission approved a forty-five day extension to decide the application. The extension was required only because there was not a public hearing on the application. General Statutes § 8-26d (b) provides that if there is no public hearing, the commission shall render its decision within sixty-five days after the receipt of the application. If a public hearing is held, § 8-26d (a) gives the commission sixty-five days after the public hearing to act. The application in the present case was received on December 3, 1997. Thus, if the January 29, 1998 hearing had been a public hearing, there would have been no need for an extension.

On the basis of our review of the record, we cannot say that the court’s conclusion that the January 29,1998 meeting was a special meeting rather than a public hearing was clearly erroneous.

II

The plaintiff next claims that the court improperly determined that the commission was not required to formally rescind its decision to hold a public hearing in as public a manner as its decision to hold said hearing. The claim is that because the minutes of the December 3, 1997 meeting show a vote to hold a public hearing, the commission was obligated to hold a statutory public hearing rather than a special meeting with public input because there was no official rescission of the December 3, 1997 vote. We agree with the court’s analysis of that claim: “Whether the commission used the phrase ‘public hearing’ as a term of ait in its December 3, 1997 minutes or whether the phrase was employed as convenient shorthand for ‘special meeting at which public comment will be invited,’ certain facts are constant: The commission was not required to hold a public hearing on the subject application; no notice was given for a January 7,1998 public hearing, nor was such a hearing held; the session of January 29th was duly noticed as a special meeting and the commission in its discretion utilized the meeting to receive public comment.”

The court further went on to find that the commission, having voted to hold a public hearing on January 7, 1998, was free to abandon its decision and that the commission decision not to go forward with a public hearing was an internal administrative act requiring neither formal vote nor notice in the absence of objection from members.

We presume regularity in the proceedings of a municipal public body. See Foran v. Zoning Board of Appeals, 158 Conn. 331, 336, 260 A.2d 609 (1969). There is nothing in the plaintiffs claim that rebuts that presumption. We give to lay administrative boards wide discretion on the inner workings of their bodies as long as no regulation or statute is violated. The Supreme Court in Forest Construction Co. v. Planning & Zoning Commission, supra, 155 Conn. 676, in a similar situation, stated: “A commission, operating at the administrative level under the circumstances of the present case, has a wide latitude in the mode permitted to parties in presenting their views before it. The implication is that it may use any procedure which is reasonable in attaining the end in view.”

We will not superfluously examine the inner workings of the commission to find an irregularity when there is no claim that any regulation or statute has been violated and when no member of the commission has objected. In Couch v. Zoning Commission, 141 Conn. 349, 358, 106 A.2d 173 (1954), our Supreme Court stated that “[cjourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions.”

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs in the action before the trial court were Gregory Belanger, Lynda Kaminskas, Ivan Lansberg, Jane Tracy and Alan Zimmerman. Only Zimmerman has appealed from the judgment of that court. We refer in this opinion to Zimmerman as the plaintiff.

       The commission’s final approval was on section one and section two, while only section one was the subject of the December 3,1997 and January 29, 1998 meetings.

       General Statutes § 8-26 provides in relevant part: “The commission may hold a public hearing regarding any subdivision proposal if, in its judgment, the specific circumstances require such action. No plan of resubdivision shall be acted upon by the commission without a public hearing. Notice of the public hearing shall be given by publication in a newspaper of general circulation in the municipality at least twice at intervals of not less than two days, the first not more than fifteen days, nor less than ten days, and the last not less than two days prior to the date of such hearing, and by sending a copy thereof by registered or certified mail to the applicant. . . .”

       Guilford Subdivision Regs., § 272-15 C provides: “Hearing. A public hearing regarding an application for approval of a subdivision may be held by the Commission if, in its judgment, the circumstances require such action or if required by law. Notice of any public hearing shall be given as required by law. Whether or not a public hearing is held, every applicant shall be afforded the opportunity to appear before the Commission to discuss the application before final action by the Commission.”

       In a memorandum dated January 29,1998, to the commission, Krai stated, in relevant part:
      “Here are some thoughts regarding process and the principal issues before the Commission:
      “1. A special meeting is being held in order to solicit public comment on these plans. This was requested by a petition from the neighbors. It is the intention of the Chairman to conduct this meeting according to the normal form of a public hearing.
      “2. It is proper to consider at this hearing discussion regarding the open space concept approval, the density or number of lots to be allowed as an open space subdivision, the details of the subdivision applications, or any other issue related to the proposed development and subdivision of this land.”

       General Statutes § 8-26d (b) provides: “A decision on an application for subdivision approval, on which no hearing is held, shall be rendered within sixty-five days after receipt of such application. The applicant may consent to one or more extensions of such period, provided the total period of any such extension or extensions shall not exceed sixty-five days.”

       General Statutes § 8-26d (a) provides: “In all matters wherein a formal application, request or appeal is submitted to a planning commission under this chapter and a hearing is held on such application, request or appeal, such hearing shall commence within sixty-five days after receipt of such application, request or appeal and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. The applicant may consent to one or more extensions of any period specified in this subsection, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection, or may withdraw such application, request or appeal.”

       General Statutes § 8-26d (c) provides in relevant part: “For purposes of subsection (a) or (b) of this section, the receipt of an application, request or appeal shall be the day of the next regularly scheduled meeting of such commission or board, immediately following the day of submission to such board or commission or its agent of such application, request or appeal or thirty-five days after such submission, whichever is sooner. . . .”

       In so holding, we note that the cases cited by the plaintiff, Cocivi v. Plan & Zoning Commission, 20 Conn. App. 705, 707, 570 A.2d 226, cert. denied, 214 Conn. 808, 573 A.2d 319 (1990), and Nazarko v. Zoning Commis

        sion, 50 Conn. App. 517, 717 A.2d 853, cert. denied, 247 Conn. 940, 941, 723 A.2d 318 (1998), are distinguishable from the present case because they involve special permits and zone changes in which public hearings are mandated.


author: FOTI, J.

text:
    SUFFIELD DEVELOPMENT ASSOCIATES LIMITED PARTNERSHIP v. NATIONAL LOAN INVESTORS, L.P., ET AL.
    (AC 21253)
    Foti, Mihalakos and Peters, Js.

      Argued April 2 —
    officially released July 10, 2001

      Richard P. Weinstein, with whom, on the brief, was Nathan A. Schatz, for the appellant (plaintiff).

      Kerry R. Callahan, with whom, on the brief, were Donald C. Mahoney and DrewS. Graham, for the appellees (defendant Berman and Sable et al.).
   Opinion

FOTI, J.

The plaintiff, Suffield Development Associates Limited Partnership, appeals from the judgment of the trial court in favor of the defendants, National Loan Investors, L.P. (National Loan), the law firm of Berman and Sable, and attorney James W. Oliver, rendered after the court granted the defendants’ motions to strike the plaintiffs original and amended complaints. On appeal, the plaintiff claims that the trial court improperly granted the motions to strike (1) the first count of the complaint, which alleged abuse of process based on the defendants’ misrepresentations to the Superior Court when the defendants obtained and carried out an execution on a judgment in an amount in excess of that authorized by the judgment, (2) the second count of the complaint, which alleged a cause of action based on the defendants’ fraudulent misrepresentations to the Superior Court regarding their entitlement to an execution on a judgment and the amount thereof, thereby causing damage to the plaintiff, (3) the third count of the amended complaint, which alleged tortious interference with a settlement agreement between the plaintiff and BankBoston, thereby depriving the plaintiff of its right to the enjoyment and the benefit of that contract, (4) the fourth count of the amended complaint, which alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., based on the defendants’ misrepresentations and fraud on the court when the defendants obtained and carried out an execution on a judgment in an amount in excess of that authorized by the judgment and (5) the prayer for relief, which sought common-law punitive and exemplary damages, statutory punitive damages and attorney’s fees. We affirm the judgment of the trial court.

The following facts as alleged in the plaintiffs original and amended complaints are necessary for our resolution of this appeal. The plaintiff entered into a stipulated judgment with National Loan. The law firm of Berman and Sable and attorney James W. Oliver represented National Loan.

On April 22,1999, the plaintiff resolved a dispute with Society for Savings when it settled with BankBoston, the successor to Society for Savings, by agreeing to pay Richard Weinstein, Trustee, the sum of $1.5 million in settlement of the plaintiffs claims. The stipulation between the plaintiff and National Loan provided, inter alia, that National Loan would be given a sum or percentage of the proceeds received by the plaintiff from a “certain lender liability judgment” against Society for Savings. That judgment, however, was reversed by our Supreme Court; Suffield Development Associates Ltd. Partnership v. Society for Savings, 243 Conn. 832, 846, 708 A.2d 1361 (1998); and a new trial was ordered on an alternate cause of action.

After reaching a settlement with BankBoston, the plaintiff notified National Loan’s counsel of the settlement. The plaintiff further expressed to National Loan’s counsel that under the terms of its stipulation with National Loan, because there were no proceeds from the “certain lender liability judgment,” no moneys were due and owing. Nevertheless, the plaintiff offered to escrow an amount of money until a judicial determination could be made as to whether the stipulation applied to the settlement.

The defendants demanded payment and threatened to undo the stipulation if payment was not made, even though the dispute existed. Further, the plaintiff alleged that, in an effort to pressure the plaintiff, the defendant attorneys, acting on behalf of National Loan and on their own behalf, wrongfully applied to the Superior Court for an execution of judgment in an attempt to seize part of the settlement proceeds from Bank-Boston.

The execution application allegedly misrepresented National Loan’s right as a matter of law to the amounts due and further misrepresented the amount of any such claim. The complaint further alleged that the defendants wrongfully directed a sheriff to execute on the settlement and that the defendants have continued to attempt to enforce the execution, fully aware that the application for execution was false, that the amount of the execution was inflated and that National Loan’s right to the execution was disputed. Finally, the defendants’ actions were claimed to be malicious.

The first count of the complaint alleged a cause of action for abuse of process. The second count alleged fraud. The third count of the amended complaint alleged tortious interference with the contractual rights of the plaintiff. The fourth count of the amended complaint alleged a violation of CUTPA. Additional facts will be provided as needed.

“We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on the [defendants’ motion] is plenary. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996) [cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997)]. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); see also Mingachos v. CBS, Inc., 196 Conn. 91, 108-109, 491 A.2d 368 (1985). Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996). Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. Clohessy v. Bachelor, 237 Conn. 31, 33 n.4, 675 A.2d 852 (1996). ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . Amodio v. Cunningham, 182 Conn. 80, 83, 438 A.2d 6 (1980). Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically. . . . Edwards v. Tardif 240 Conn. 610, 620, 692 A.2d 1266 (1997).” (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260-61, 765 A.2d 505 (2001).

I

The plaintiff first claims that the court improperly granted the motions to strike the first count of its original complaint because that count alleged sufficient facts to support a cause of action for abuse of process. Specifically, the plaintiff argues that the defendants made misrepresentations to the Superior Court when they obtained and carried out the execution in an amount in excess of that authorized by the judgment. Thus, the plaintiff argues that the defendants misused process in an attempt to seize property in excess of that to which they were entitled. In response, the defendants argue that the first count of the complaint fails to state a cause of action for abuse of process because it does not allege that the defendants used the legal process in a manner for which it was not intended. We agree with the defendants.

“An action for abuse of process lies against any person using ‘a legal process against another in an improper manner or to accomplish a purpose for which it was not designed.’ Varga v. Pareles, [137 Conn. 663, 667, 81 A.2d 112 (1951)]; Schaefer v. O. K. Tool Co., 110 Conn. 528, 532-33, 148 A. 330 (1930). Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of ‘a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . . .’ Comment b to § 682 explains that the addition of ‘primarily’ is meant to exclude liability ‘when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant.’ See also 1 F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 4.9; R. Mallen & V. Levit, Legal Malpractice (2d Ed. 1981) § 61; W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 121. . . .

“[A] cause of action [for abuse of process arising out of an attorney’s professional representation of his or her clients’ interests] must be reconciled with our responsibility to assure unfettered access to our courts. Because litigants cannot have such access without being assured of the unrestricted and undivided loyalty of their own attorneys, we have afforded to attorneys, as officers of the court, absolute immunity from liability for allegedly defamatory communications in the course of judicial proceedings. Petyan v. Ellis, 200 Conn. 243, 245-46, 510 A.2d 1337 (1986); see 2 F. Harper, F. James & O. Gray, supra, § 5.22, esp. pp. 191-92; 3 Restatement (Second), Torts § 586 (1977); R. Mallen & V. Levit, supra, § 65; W. Prosser & W. Keeton, supra, § 114. For other causes of action, however, the exigencies of the adversary system have not been deemed to require absolute immunity for attorneys. We have assumed, without discussion, that an attorney may be sued in an action for vexatious litigation, arguably because that cause of action has built-in restraints that minimize the risk of inappropriate litigation. Vandersluis v. Weil, [176 Conn. 353, 361, 407 A.2d 982 (1978)]. Other courts have held that immunity from libel actions should not carry over to provide an attorney with an absolute defense to liability for abuse of process. See, e.g., Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 42 Cal. 3d 1157, 1169, 728 P.2d 1202, 232 Cal. Rptr. 567 (1986); Hoppe v. Klapperich, 224 Minn. 224, 243, 28 N.W.2d 780 (1947); Peerman v. Sidicane, 605 S.W.2d 242, 245 (Tenn. App. 1980). Accordingly, we conclude that an attorney may be sued for misconduct by those who have sustained a special injury because of an unauthorized use of legal process. In permitting such a cause of action, we must, however, take care ‘not to adopt rules which will have a chilling and inhibitory effect on would-be litigants of justiciable issues.’ Morowitz v. Marvel, 423 A.2d 196, 197-98 (D.C. App. 1980); Brody v. Ruby, 267 N.W.2d 902, 905 (Iowa 1978); Spencer v. Burglass, 337 So. 2d 596, 601 (La. App. 1976), writ of review denied, 340 So. 2d 990 (La. 1977).

“State courts in other jurisdictions have undertaken the process of balancing these competing interests, principally in cases arising out of medical malpractice litigation. The factual setting of these cases is a suit by a physician seeking vindication from an attorney after a malpractice claim brought on behalf of the physician’s patient has ended in withdrawal, dismissal or settlement. Courts have struggled to determine under what circumstances such a complaint states a cause of action for abuse of process. The existing case law demonstrates that there is no bright line that clearly distinguishes between the ends ordinarily associated with litigation and the ulterior purpose that the tort of abuse of process is intended to sanction. Much turns on the specificity of the pleadings. In many of the cases, the complaints have alleged generally that a physician has incurred costs to defend against the underlying malpractice suit, or that the malpractice suit has injured his professional reputation, or that the malpractice suit was initiated in the hopes of procuring a favorable settlement. Ruling in favor of the attorney defendants, courts have held such complaints to be legally insufficient because they do not allege conduct showing the use of process to accomplish a puipose for which it was not designed. Morowitz v. Marvel, supra [423 A.2d 197-98]; Brody v. Ruby, supra, [267 N.W.2d] 905-906; Friedman v. Dozorc, 412 Mich. 1, 30-31, 312 N.W.2d 585 (1981); Drago v. Buonagurio, 61 App. Div. 2d 282, 285, 402 N.Y.S.2d 250, rev’d on other grounds, 46 N.Y.2d 778, 386 N.E.2d 821, 413 N.Y.S.2d 910 (1978); Martin v. Trevino, 578 S.W.2d 763, 769 (Tex. Civ. App. 1978). When, however, such allegations are buttressed by specific claims of egregious misconduct, such as utter failure to investigate the validity of the underlying action, or unwarranted pursuit of inappropriate motions, some courts have sustained liability for abuse of process. Nienstedt v. Wetzel, 133 Ariz. 348, 353-54, 651 P.2d 876 (1982); Bull v. McCuskey, 96 Nev. 706, 709, 615 P.2d 957 (1980); Peerman v. Sidicane, supra, [605 S.W.2d] 243-45; see S. Birnbaum, ‘Physicians Counterattack: Liability of Lawyers for Instituting Unjustified Medical Malpractice Actions,’ 45 Fordham L. Rev. 1003, 1014-20, 1033-42 (1977); note, ‘Abuse of Process,’ 33 S.C.L. Rev. 331 (1981).

“Accordingly . . . although attorneys have a duty to their clients and to the judicial system not to pursue litigation that is utterly groundless, that duty does not give rise to a third party action for abuse of process unless the third party can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation. Any other rule would ineluctably interfere with the attorney’s primary duty of robust representation of the interests of his or her client.” (Emphasis in original.) Mozzochi v. Beck, 204 Conn. 490, 494-97, 529 A.2d 171 (1987).

Here, the complaint fails to allege misconduct intended to cause injury that is outside the normal contemplation of private litigation. The complaint alleged that the defendants were seeking to enforce the terms of a judgment. The plaintiffs complaint does not allege any facts that could establish that the defendants used the process in an improper manner or to accomplish a purpose for which it was not designed. Accordingly, we conclude that the court properly granted the motions to strike the first count of the plaintiffs complaint.

II

The plaintiff next claims that the court improperly struck the second count of the complaint, which alleged a cause of action for fraud. Specifically, the plaintiff argues that the second count was legally sufficient because it alleged that the defendants’ misrepresentations to the court and its officers were relied on by the court and its officers to the plaintiffs detriment. In response, the defendants argue that there is no authority in this state to support a cause of action for fraud where the basis of the action is “fraud upon the court.” We agree with the defendants.

“The essential elements of an action in common law fraud, as we have repeatedly held, are that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury. Billington v. Billington, 220 Conn. 212, 217, 595 A.2d 1377 (1991); Kilduff v. Adams, Inc., 219 Conn. 314, 329, 593 A.2d 478 (1991); Maturo v. Gerard, 196 Conn. 584, 587, 494 A.2d 1199 (1985). The party asserting such a cause of action must prove the existence of the first three of these elements by a standard higher than the usual fair preponderance of the evidence, which higher standard we have described as ‘clear and satisfactory’ or ‘clear, precise and unequivocal.’ Rego v. Connecticut Ins. Placement Facility, 219 Conn. 339, 343, 593 A.2d 491 (1991); Kilduff v. Adams, Inc., supra, 327.” Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 539-40, 661 A.2d 530 (1995).

Here, the plaintiffs complaint failed to allege a legally sufficient claim for common-law fraud. The plaintiffs claims fail for two reasons. First, as the plaintiff concedes, the statements allegedly made by the defendants were not made to induce the plaintiff to rely on them. Indeed, the complaint alleges that the court and its officers relied on the defendants’ statements. Second, the complaint is devoid of any allegations that the plaintiff acted on the defendants’ false representations to its injury. Therefore, we conclude that the court correctly held that the second count of the plaintiffs complaint failed to state a legally sufficient claim for common-law fraud.

Ill

The plaintiff next claims that the court improperly granted the motions to strike the third count of its amended complaint, which purported to state a cause of action for tortious interference with a contract. We disagree.

The third count of the plaintiffs amended complaint alleged that the defendants knew about its contractual relationship with BankBoston, which entitled the plaintiff to settlement proceeds. The amended complaint further alleged that the defendants intentionally interfered with that contractual relationship by seeking an execution of the stipulated judgment in an amount far in excess of that to which they were entitled. Thus, the amended complaint alleged that, as a result of the defendants’ actions, the plaintiff has incurred actual loss, including, but not limited to, the costs of litigating the validity of the bank execution and seeking a declaratory judgment as to the parties’ respective rights to the settlement proceeds. Finally, the third count of the amended complaint asserted that the defendants’ actions constituted a tortious interference with the contractual rights of the plaintiff to settlement funds from BankBoston, thereby depriving the plaintiff of the full benefit of its contract with BankBoston.

“It is well established that the elements of a claim for tortious interference with business expectancies are: (1) a business relationship between the plaintiff and another party; (2) the defendant’s intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss. Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985); Herman v. Endriss, 187 Conn. 374, 377, 446 A.2d 9 (1982); Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 415, 363 A.2d 86 (1975).” Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27, 761 A.2d 1268 (2000).

“An action for tortious interference with a business expectancy is well established in Connecticut. The plaintiff need not prove that the defendant caused the breach of an actual contract; proof of interference with even an unenforceable promise is enough. ... A cause of action for tortious interference with a business expectancy requires proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously. . . . Jones v. O’Connell, 189 Conn. 648, 660, 458 A.2d 355 (1983). It is also true, however, that not every act that disturbs a contract or business expectancy is actionable. Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983). A defendant is guilty of tortious interference if he has engaged in improper conduct. Id., 261; see 4 Restatement (Second), Torts §§ 766, 766B, 767 (1979). [T]he plaintiff [is required] to plead and prove at least some improper motive or improper means. Kakadelis v. DeFabritis, 191 Conn. 276, 279, 464 A.2d 57 (1983); Blake v. Levy, supra, 262. . . .

“Stated simply, to substantiate a claim of tortious interference with a business expectancy, there must be evidence that the interference resulted from the defendant’s commission of a tort. . . . Golembeski v. Metichewan Grange No. 190, 20 Conn. App. 699, 702-703, 569 A.2d 1157, cert. denied, 214 Conn. 809, 573 A.2d 320 (1990).” (Internal quotation marks omitted.) Biro v. Hirsch, 62 Conn. App. 11, 21-22, 771 A.2d 129, cert. denied, 256 Conn. 908, 772 A.2d 601 (2001).

In the present case, the plaintiffs amended complaint failed to state a cause of action for tortious interference with contractual relations because it did not allege any facts that support its theory that the defendants tortiously interfered with the plaintiffs contract with BankBoston. Moreover, the plaintiff failed to allege any loss other than the costs associated with proving that it is entitled to the money that it received from Bank-Boston. The plaintiff simply asserted a legal conclusion that the defendants’ actions interfered with its contract with BankBoston. The plaintiffs legal conclusion that the defendants interfered with its ability to realize the full benefit of its contract with BankBoston is insufficient to support its cause of action for tortious interference. In other words, the plaintiff is essentially complaining that it is not able to keep all of the money that it thought that it was going to be able to keep from its contract with BankBoston due to the defendants’ actions in executing on the stipulated judgment proceeds that the plaintiff had received. Although this may have harmed the plaintiff financially, it does not amount to a tortious interference with contractual relations. Indeed, “it is well-settled that the tort of interference with contractual relations only lies when a third party adversely affects the contractual relations of two other parties.” (Emphasis in original; internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn. App. 152, 168, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998). Accordingly, we conclude that the court properly granted the motions to strike the third count of the plaintiffs amended complaint, as it fails to state a claim on which relief can be granted.

IV

The plaintiff next claims that the court improperly struck the fourth count of its amended complaint, which alleged a violation of CUTPA. The plaintiff claims that the defendants violated CUTPA in obtaining and using a bank execution in an amount far in excess of that to which they were entitled, in making material misrepresentations of fact to the Superior Court to obtain the bank execution and by intentionally and maliciously interfering with the contractual relationship between the plaintiff and BankBoston. In response, the defendants argue that the court properly granted the motions to strike the fourth count of the amended complaint because it is well settled law in Connecticut that a party may not sue his opponent’s attorney under CUTPA. We agree with the defendants.

Our Supreme Court “has stated that, in general, CUTPA applies to the conduct of attorneys. Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 521, 461 A.2d 938 (1983). The statute’s regulation of the conduct of any trade or commerce does not totally exclude all conduct of the profession of law. ... Id. Nevertheless, we have declined to hold that every provision of CUTPA permits regulation of every aspect of the practice of law .... Id., 520. We have stated, instead, that, only the entrepreneurial aspects of the practice of law are covered by CUTPA. Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997).” (Internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 79, 717 A.2d 724 (1998). “The noncommercial aspects of lawyering — that is, therepresentation of the client in a legal capacity — should be excluded for public policy reasons.” (Internal quotation marks omitted.) Haynes v. Yale-New Haven Hospital, supra, 35.

Here, the allegations in the fourth count of the amended complaint seek to impose liability under CUTPA on the defendant attorneys on the basis of their representation of their client, National Loan. We conclude that the allegations of the complaint relate to the noncommercial practice of law by the defendants, and, thus, there could be no liability on the part of the defendants for violating CUTPA. See Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 729, 627 A.2d 374 (1993). Accordingly, we conclude that the court properly struck the fourth count of the amended complaint.

V

Finally, the plaintiff claims that the court improperly granted the motions to strike its prayer for relief, which sought common-law punitive and exemplary damages, as well as statutory punitive damages and attorney’s fees. Because we conclude that the court properly struck each count of the plaintiffs complaint, we need not address whether the court properly struck the plaintiffs prayer for relief.

The judgment is affirmed.

In this opinion the other judges concurred.

       On December 18,2000, the plaintiff withdrew its appeal against National Loan, and, thus, the only remaining defendants are Berman and Sable, and attorney James W. Oliver.

       After the court granted the defendants’ motions to strike all four counts the plaintiffs original complaint, the plaintiff filed a timely amended complaint. See Practice Book § 10-14. In its amended complaint, the plaintiff sought to preserve its appellate rights as to the first and second counts, and thus it did not replead those counts. In its amended complaint, the plaintiff did, however, allege additional facts relating to the third and fourth counts.

       After the defendants applied for the execution, the plaintiff brought a declaratory judgment action against National Loan, seeking a determination as to whether the stipulation with National Loan extended to the proceeds of the plaintiffs settlement with BankBoston. The trial court found that the settlement amount constituted proceeds for purposes of the stipulation and that, therefore, the defendant was entitled to payment of $200,000 from the settlement proceeds. This court affirmed the trial court’s judgment. See Suffield Development Associated Ltd. Partnership v. National Loan Investors, L.P., 60 Conn. App. 842, 763 A.2d 1049 (2000).

         The plaintiff reasserted paragraphs one through thirteen of the third count of its original complaint in its amended complaint and added the following allegations:
      “14. The defendants were aware of the plaintiffs contractual relationship with BankBoston which entitled the plaintiff to the settlement proceeds.
      “15. The defendants intentionally interfered with that contractual relationship by seeking execution upon said settlement obligation in an amount far in excess of that to which they were entitled.
      “16. As a result of the defendants’ conduct, the plaintiff has incurred actual loss, including but not limited to the cost of litigating the validity of the bank execution sought by the defendants and the cost of seeking a declaratory judgment as to the defendants’ entitlement to the settlement proceeds.
      “17. The actions of the defendants constitute a tortious interference with the contractual rights of the plaintiff to settlement funds from BankBoston, causing the plaintiff to not be able to realize the full benefit of its contract with BankBoston, all to the plaintiff’s actual and special loss and damage.”

       The plaintiff added the following additional allegations to the fourth count of its amended complaint:
      “14. The actions of the defendants constitute an abuse of process, causing damages to the plaintiff herein.
      “15. The actions taken by the defendants in concert misrepresented the status of the stipulation to the Court and its officers, and the use of the execution secured thereby constituted a further misrepresentation to the Court and its officers, and the continued attempt to enforce said execution further continues the wrongful actions of the defendants herein, all of which constitute a fraud upon the Court, resulting in damages to the plaintiff herein.
      “16. The defendants were aware of the plaintiffs contractual relationship with BankBoston which entitled the plaintiff to the settlement proceeds.
      “17. The defendants intentionally interfered with that contractual relationship by seeking execution upon said settlement obligation in an amount far in excess of that to which they were entitled.
      “18. As a result of the defendants’ conduct, the plaintiff has incurred actual loss, including but not limited to the cost of litigating the validity of the bank execution sought by the defendants and the cost of seeking a declaratory judgment as to the defendants’ entitlement to the settlement proceeds.
      “19. The actions of the defendants constitute a tortious interference with the contractual rights of the plaintiff to settlement funds from BankBoston, causing the plaintiff to not be able to realize the full benefit of its contract with BankBoston, all to the plaintiffs actual and special loss and damage.
      “20. At all times relevant hereto, and in undertaking the acts and conduct referenced in the preceding paragraphs, the defendants were engaged in the conduct of a trade or commerce.
      “21. At all times relevant hereto, the defendants acted in an immoral, oppressive, unethical, unscrupulous manner, and caused substantial injury to consumers, competitors and other businessmen, in the following respects:
      “a. the defendants intentionally obtained and used a bank execution in an amount far in excess of that to which they were entitled;
      “b. the defendants made material misrepresentations of fact to the Court which were relied upon by the Court and its officers in order to obtain a bank execution in an amount far in excess of that to which they were entitled;
      “c. the defendants intentionally and maliciously interfered with the performance of contractual obligations between the plaintiff and BankBoston, all of which conduct violated the Connecticut Unfair Trade Practices Act ('CUTPA’) C.G.S. § 42-110a, et seq., as made and provided, resulting in ascertainable losses to the plaintiff.”