author: Hennessy, J.

text:
    Robert L. Annecharico, Coadministrator (Estate of Lisa Annecharico) v. William J. Patterson et al.
    (12891)
    Foti, Landau and Hennessy, Js.
    Argued April 28
    decision released July 4, 1995

      Charles J. Goddard, for the appellant (plaintiff).

      Robert L. Trowbridge, with whom, on the brief, was Christopher C. Cobb, for the appellees (defendants).
   Hennessy, J.

The plaintiff appeals from the judgment of the trial court, rendered after a jury verdict, in this personal injury action. We conclude that the judgment of the trial court was not a final judgment and dismiss the appeal.

The plaintiff brought this action in four counts. The third and fourth counts were stricken by the trial court and the matter proceeded to trial. The jury returned the following verdict: “In this case, as to Count One, the jury finds in favor of the Defendants, William J. Patterson and James Alligood d/b/a J.M.A. Trucking.” The trial court accepted the verdict and rendered a partial judgment on the first count of the complaint. Thereafter, the plaintiff moved to set aside the verdict and for a new trial. The trial court denied this motion and the plaintiff filed this appeal.

Prior to oral argument, we noted the possibility that the appeal had not been taken from a final judgment because of the absence of any disposition of count two of the plaintiffs complaint. The parties were advised of the court’s concern and notified that the final judgment issue would be raised at oral argument. After receiving this notice, the plaintiff withdrew the second count of the complaint.

This case is controlled by C & P Excavating Contractors, Inc. v. Ardmare Construction Co., 37 Conn. App. 222, 655 A.2d 278 (1995), in which we held that the trial court’s failure to render judgment on one count of a complaint resulted in the lack of a final judgment for purposes of appeal. “ ' “The lack of a final judgment is a threshold question that implicates the subject matter jurisdiction of this court.” Schick v. Windsor Air-motive Division/Barnes Group, 31 Conn. App. 819, 822, 627 A.2d 478 (1993), citing Walton v. New Hartford, 223 Conn. 155, 162 n.9, 612 A.2d 1153 (1992). Where there is no final judgment, we cannot reach the merits of the appeal. General Statutes § 52-263; Practice Book § 4000; Smith v. Otis Elevator Co., 33 Conn. App. 99, 102, 633 A.2d 731 (1993).’ Akerson v. Bridgeport, 36 Conn. App. 158, 159, 649 A.2d 796 (1994).” C & P Excavating Contractors, Inc. v. Ardmare Construction Co., supra, 224-25. Because a final judgment is a con dition precedent to the taking of an appeal; E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 626-27, 356 A.2d 893 (1975); we do not ask if jurisdiction arose at some time during the appeal, but determine only whether we had jurisdiction over the appeal at the time it was taken.

The plaintiff does not dispute that there was no final judgment at the time he filed his appeal, because no judgment had been rendered on the second count of his complaint at that time. The plaintiff argues that because he withdrew the second count after learning of the possible final judgment problem, he conferred jurisdiction on this court. The plaintiff was unable to cite any case law in support of this proposition and we know of no authority to support his position. Because there was no final judgment at the time the plaintiff filed his appeal, the appeal must be dismissed.

The appeal is dismissed for lack of jurisdiction.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Ercole Cassella v. Beth A. Kleffke
    (13199)
    O’Connell, Landau and Schaller, Js.

      Argued January 9
    decision released July 4, 1995

      Robert G. Oliver, with whom, on the brief, was David J. Crotta, Jr., for the appellant (defendant).

      Dale W. Radcliffe, with whom was Samuel J. Lazinger, for the appellee (plaintiff).
   O’Connell, J.

The defendant appeals following the trial court’s granting of the plaintiff’s motion to open a judgment of dismissal that had been rendered under the dormant case program. The defendant claims that (1) the trial court lacked jurisdiction to open the judgment of dismissal, (2) transfer of the case from Bridgeport to New Haven did not operate to set aside the judgment of dismissal, and (3) the trial court improperly found that the defendant waived her right to object to opening the judgment of dismissal. We reverse the action of the trial court and direct reinstatement of the judgment of dismissal.

The following facts are necessary to a disposition of this appeal. The plaintiff instituted this action seeking damages for personal injuries suffered in an automobile accident. The writ, summons and complaint were returnable on October 16,1990, to the Superior Court in the judicial district of New Haven. Although New Haven was the correct venue, the writ, summons and complaint were mistakenly sent to the Superior Court in the judicial district of Fairfield at Bridgeport. There was no venue in Bridgeport.

Despite the lack of venue, the case was entered on the Bridgeport docket, and, on November 28,1990, the Bridgeport clerk notified the plaintiffs counsel that the case had been assigned docket number CV-90-0275541 S. Despite the institution of the action, the plaintiffs counsel and the defendant’s insurance carrier continued their efforts to settle the case without actual litigation until the fall of 1991, when the matter was referred to defense counsel.

The defendant’s counsel filed an appearance dated October 29,1991, in New Haven, followed on November 26,1991, by an appearance in Bridgeport. The latter bore the correct Bridgeport docket number. On December 3, 1991, the Bridgeport Superior Court issued a report of the appearance status of the case in that court. This status report, properly listing the names and addresses of counsel for both parties, was sent to both counsel.

In the meantime, on October 16,1991, the case had appeared on the Bridgeport dormancy calendar, and the plaintiff was notified that a Practice Book § 251 dismissal would enter on December 6,1991, unless the pleadings were closed by that date. The pleadings were never closed, and, on November 21,1991, the plaintiff filed a motion for exemption from dormancy, which was rejected by the court, Lewis, J., as untimely.

On November 25,1991, the plaintiff moved to transfer the matter to New Haven. The case was dismissed for dormancy in Bridgeport on December 6,1991, with notice issued on December 13, 1991. Meanwhile, on December 9,1991, the court, Hartmere, J., granted the motion to transfer, with notice issued on December 11, 1991. The file was not physically transferred to New Haven until December 27, 1991, where it was issued a new docket number — CV 90-0326473 S.

Following the transfer, the parties continued to correspond for a time in an attempt to settle the case. These efforts proved unsuccessful, and, on March 4, 1993, the plaintiff filed a motion for default for failure of the defendant to plead. The New Haven clerk returned the motion to the plaintiff on April 20, 1993, with a letter explaining that, because of the December 6,1991 dismissal, the motion could not be recorded on the computer.

On May 3, 1993, the plaintiff filed a motion to open the judgment of dismissal, which was granted by the court, DeMayo, J., on December 22,1993. Additional facts are included in the course of our analysis.

I

Generally, the granting of a motion to open a prior judgment is not a final judgment and, therefore, not immediately appealable. State v. Phillips, 166 Conn. 642, 646, 353 A.2d 706 (1974). An exception to this rule, however, allows the appeal if it challenges the power of the trial court to open the judgment. Solomon v. Keiser, 212 Conn. 741, 747, 562 A.2d 524 (1989). Because the gravamen of the defendant’s claim here is that the trial court lacked jurisdiction to open a Practice Book § 251 judgment of dismissal nearly seventeen months after it was rendered, the judgment is immediately appealable.

II

Because the first two issues are closely related, we will analyze them together. The purpose of § 251 is to prevent inactive cases from clogging the docket. Nickerson v. Gachim, 183 Conn. 413, 415, 439 A.2d 379 (1981). All is not lost, however, for a party against whom a § 251 dismissal has been rendered. General Statutes § 52-212a and Practice Book § 326 both allow a trial court, in its discretion, to open any such judgment within four months of the date the judgment was rendered. During the four month period, while the case lies nominally “dismissed,” of necessity it actually remains on the court docket so that motions to open may be addressed to it. Lake Garda Co. v. Lake Garda Improvement Assn., 156 Conn. 61, 65, 238 A.2d 393 (1968).

The foregoing recitation of the chapter and verse of the case’s motion history is complete and accurate and superficially appears convoluted and confusing. For purposes of this decision, however, the following brief synopsis is helpful. The plaintiff had only one case captioned “Ercole Cassella v. Beth A. Kleffke” pending on the Bridgeport docket. The plaintiff was notified that this case was dismissed under the § 251 dormancy program. The plaintiff was also notified that the case was transferred to New Haven. The plaintiff made no effort to open the dismissal in either court until nearly seventeen months after the dismissal. Because the trial court’s jurisdiction to open a judgment is limited to motions filed within four months of the dismissal, the plaintiff’s motion was untimely, and the court lacked jurisdiction to grant it.

This case involves a limited question of notice. The plaintiff does not contest receipt of notice of the December 6, 1991 dismissal of the case bearing the Bridgeport docket number. Thus, the four month period for opening the judgment indisputably expired on April 6, 1992, unless that notice was ineffective because it did not contain the recently assigned New Haven docket number.

The plaintiff argues that he received notice of the dismissal only of a case with the proper name but bearing the Bridgeport case number, not the New Haven case number. Thus, he contends that he never received notice of dismissal of the New Haven case, and, therefore, the four months never started to run. We are not persuaded. There were never two cases with the same name but two different numbers — there was only one case, and the plaintiff received notice of its dismissal. Moreover, it was the plaintiff who sought transfer of that case from Bridgeport to New Haven. It is not realistic for the plaintiff to believe that the case dismissed in Bridgeport was anything other than the very same case that he caused to be transferred to New Haven. His tautological argument based on docket numbers is not convincing.

Practice Book § 215 provides the mechanics for transferring a case from one judicial district to another. The relevant portion of § 215 provides that “[u]pon the transfer of any action . . . such cause shall thereafter be proceeded with in the same manner as if it were originally brought to [the transferee] court.” When a case is transferred from one judicial district to another, it goes with all the baggage that it collected at the first location. Transfer does not eliminate, terminate, vitiate or invalidate prior orders entered in the case. The December 6, 1991 dismissal was transferred as part of the file when it went to New Haven. The sole effect of the transfer on the dismissal was to make New Haven, rather than Bridgeport, the place where a motion to open had to be filed before April 6, 1992.

We conclude that the irregular case history here did not excuse the plaintiff from moving to open the case within four months, and, therefore, the trial court lacked jurisdiction to grant the plaintiffs motion to open the dismissal.

Ill

The defendant’s final claim is that there is no basis in the record to support the trial court’s finding that the defendant had waived her right to object to the opening of the judgment. This claim arises out of the final sentences of General Statutes § 52-212a and Practice Book § 326, which both provide that “[t]he parties may waive the provisions of this [section or paragraph] or otherwise submit to the jurisdiction of the court.” “Waiver involves an intentional relinquishment of a known right. . . . There cannot be a finding of waiver unless the party has both knowledge of the existence of the right and intention to relinquish it. . . . Waiver may be inferred from the circumstances if it is reasonable so to do. . . . Whether conduct constitutes a waiver is a question of fact.” (Citations omitted; emphasis added; internal quotation marks omitted.) Fisette v. DiPietro, 28 Conn. App. 379, 385, 611 A.2d 417 (1992).

“When the trial court is required to make a finding that depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Internal quotation marks omitted.) Morelli v. Manpower, Inc., 34 Conn. App. 419, 423-24, 642 A.2d 9 (1994). In order to prevail at this trial-like hearing the movant must introduce evidence to establish his claim.

The record of the trial-like evidentiary hearing in the present case does not disclose any evidence that the defendant waived her right to challenge the opening of the dismissal. No evidence was introduced of conduct on the part of the defendant subsequent to a letter, dated January 25, 1992, from her counsel to the plaintiff indicating that the matter was being held in abeyance while the plaintiff negotiated with the insurance company.

The defendant’s letter of January 25,1992, was well within the four month period with more than adequate time for the plaintiff to file the necessary motion. The defendant asserted, at oral argument, that although she may have been willing to continue to negotiate settlement of the case, at all times she assumed that the plaintiff would move to set aside the judgment within four months and never intended to waive the benefit of a dismissal should the plaintiff fail to move timely to set it aside.

In determining waiver, the conduct of the parties is of great importance. Our Supreme Court has held that “[tj]here can be no waiver . . . if the party being haled into court ‘[f]ar from consenting to or waiving objection to [the court’s] action . . . advancefs] strenuous opposition to it and steadfastly maintainfs] that position thereafter.” In re Baby Girl B., 224 Conn. 263, 292, 618 A.2d 1 (1992), quoting Lake Garda Co. v. Lake Garda Improvement Assn., supra, 156 Conn. 65. “Under these circumstances, the court was without power to grant . . . the [motion to restore to the docket].” Lake Garda Co. v. Lake Garda Improvement Assn., supra, 65.

In the present case, the defendant filed a vigorous and prompt objection to the plaintiff’s motion. The objection directly and unequivocally challenged the trial court’s jurisdiction to act. We agree with the defendant that there was no evidence from which the trial court could find waiver.

The judgment is reversed and the case is remanded with direction to reinstate the judgment of dismissal.

In this opinion the other judges concurred.

       No explanation was offered as to why the matter was not treated under Practice Book § 213, which expressly applies to this type of situation. Section 213 provides: “A clerk of the court of a judicial district or geographical area should not accept a civil cause which is made returnable to a judicial district or geographical area of which such person is not the clerk. If he does accept and enter such a civil cause, the clerk, upon discovery of the error, shall bring the matter to the attention of the court. The court shall then order the plaintiff to file a motion to transfer with such notice to the defendant as the court may direct. If the plaintiff complies, the motion to transfer shall be granted; but if the plaintiff fails to comply with the court order within a reasonable time, the court shall dismiss the action with costs."

         Practice Book § 251 provides in relevant part: “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests.”

       The letter from the New Haven clerk to Attorney Raymond Rubens states as follows: “The enclosed motion for default for failure to plead, filed with this Court on March 4, 1993, is being returned to you since this matter is no longer pending on our docket.
      “This case was transferred from Bridgeport Superior Court on December 9, 1991. However, a judgment of dismissal was entered on December 6, 1991, in connection with the Fall 1991 Dormant Cases Program. There is nothing in the file indicating that the transfer, which apparently was ordered after the dismissal was recorded on the computer, affected the dormant status of this case. Since the motion cannot be recorded on the computer in view of the entry of the dismissal, it is returned herewith."

       General Statutes § 52-212a provides in relevant part: “civil judgment OR DECREE REOPENED OR SET ASIDE WITHIN FOUR MONTHS ONLY. Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . . The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court . . . .”

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

       Practice Book § 215 provides in relevant part: “Upon the transfer of any action, the clerk of the court in which such action is pending shall transmit to the clerk of the court to which such cause is transferred the original files and papers in such cause with a certificate of such transfer, who shall enter such cause in the docket of the court to which it is so transferred; and such cause shall thereafter be proceeded with in the same manner as if it were originally brought to such court. ...”

       See footnote 6.

       The relevant part of the January 25,1992 letter states: “We [will] continue to hold the matter in abeyance under the agreement for an extension of time between you [the plaintiff] and the [insurance company], “It is understood that you will file no motions for default or other pleadings until you contact me first.”


author: Dupont, C. J.

text:
    Robert W. Denley v. Mary Ellen Denley
    (13297)
    Dupont, C. J., and Heiman and Schaller, Js.
    Argued May 2
    decision released July 4, 1995

      Robert W. Denley, pro se, the appellant (plaintiff).

      Kevin P. Thornton, with whom, on the brief, was Michele A. Caulfield, for the appellee (defendant).
   Dupont, C. J.

The plaintiff appeals from the judgment of the trial court denying his motion for modification of alimony and child support payments that had been awarded to the defendant upon the dissolution of the marriage of the parties. The plaintiff claims that the trial court improperly (1) allowed to be introduced and considered evidence of the plaintiffs income in 1991 and 1992, (2) characterized the plaintiffs automobile allowance as income, (3) included in the calculation of income money that the plaintiff had received from the exercise of stock options, awarded to him as part of the dissolution, and (4) rendered a decision that was contrary to the evidence presented at the hearing on the motion for modification. We affirm.

The marriage of the plaintiff and the defendant was dissolved on March 10, 1992. The dissolution decree required the plaintiff to pay to the defendant $300 a week in alimony and $375 a week in child support for the parties’ two children. The dissolution decree further provided that the plaintiff would retain certain stock options, not then exercisable, which the plaintiff had acquired as part of his employment compensation as a field salesman with Anthem Electronics.

On April 21, 1993, the plaintiff filed a motion for modification of alimony and support payments. In the motion and at the hearing on the motion, the plaintiff argued that there had been a substantial change in his financial circumstances since the entry of the decree. The plaintiff claimed that because he had lost an important client, his income had decreased substantially. In support of his argument, the plaintiff submitted an affidavit that reflected his average weekly income for part of 1993.

The trial court held a hearing on the motion for modification and allowed evidence to be introduced of the plaintiff’s income in 1991, 1992 and part of 1993, including the profit that the plaintiff had generated by exercising his stock options. The trial court found that the plaintiff had failed to satisfy his burden of proving a substantial change in his circumstances.

“General Statutes § 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment.” Borkowski v. Bor-kowski, 228 Conn. 729, 734, 638 A.2d 1060 (1994). The disputed order may be modified “upon a showing of a substantial change in the circumstances of either party . . . .” General Statutes § 46b-86 (a).

“ ‘A trial court is endowed with broad discretion in domestic relations cases. Our review of such decisions is confined to two questions: (1) whether the court correctly applied the law, and (2) whether it could reasonably have concluded as it did.’ ” Glinski v. Glinski, 26 Conn. App. 617, 620, 602 A.2d 1070 (1992).

The plaintiff claims that the trial court should not have allowed evidence of the plaintiff’s income from 1991 and 1992 to be introduced and considered. The plaintiff asserts that the trial court should have considered only the plaintiff’s most recent financial information that was contained in his latest financial affidavit. The plaintiff contends that any other financial information, such as his income in 1991 and 1992, was not current information and, thus, was irrelevant to the trial court’s decision. We disagree.

“Section 46b-86 reflects the legislative judgment that continuing . . . payments should be based on current conditions. . . . Thus, [t]o avoid re-litigation of matters already settled, courts in modification proceedings allow the parties only to present evidence going back to the latest petition for modification. . . . [D]ecrees may only be modified upon proof that relevant circumstances have changed since the original decree was granted.” (Citations omitted; internal quotation marks omitted.) Borkowski v. Borkowski, supra, 228 Conn. 735-36. This limitation, however, does not prevent a trial court from considering relevant evidence of a party’s circumstances prior to and subsequent to the last applicable court order if needed for purposes of a reasonable comparison. It is within the trial court’s discretion to ascertain what financial information is relevant.

“The rules for determining the admissibility of evidence are well settled. The trial court has broad discretion to determine both the relevancy and remoteness of evidence. . . . Only upon a showing of a clear abuse of discretion will this court set aside on appeal rulings on evidentiary matters. ... In considering the relevancy of evidence, we ask whether it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. . . . Because there is no precise and universal test of relevancy, however, the question must ultimately be addressed on a case-by-case basis in accordance with the teachings of reason and judicial experience.” (Citations omitted; internal quotation marks omitted.) Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987).

Here, the original alimony and support payments were based on the plaintiff’s financial condition in 1991 and up to March 10,1992, the date of dissolution. The trial court compared that financial condition with the plaintiff’s “current” circumstances to determine if there had been a substantial change in circumstances. The trial court indicated that it contrasted the plaintiff’s financial information from the last full calendar year prior to the dissolution judgment with the first full calendar year postjudgment.

The plaintiff is a commissioned salesman whose income varies from month to month. Therefore, it was not an abuse of discretion for the trial court to have reviewed a block of time exceeding that included in the plaintiffs latest financial affidavit to obtain an accurate picture of the plaintiffs financial circumstances. The trial court did not abuse its discretion by comparing the plaintiff’s financial condition as it did.

The plaintiff also claims that the trial court mis-characterized the plaintiff’s automobile allowance as income, and considered the allowance in its determination of whether there had been a substantial change in circumstances. Neither the trial court’s memorandum of decision nor its subsequent articulation contain any discussion about the plaintiff’s automobile allowance, and we cannot know to what extent, if any, the court did consider it. The plaintiff’s W-2 statement for 1992, however, includes an automobile allowance as income, as did his financial affidavit at the time of the dissolution. The amount of the car allowance did not vary from the date of the plaintiff’s affidavit at the time of the dissolution to the date of the plaintiff’s latest affidavit. We cannot, therefore, conclude that the car allowance affected the trial court’s determination.

The plaintiff next contends that the trial court improperly considered as income the profit that he had received through the redemption of stock options that had been awarded to him at the time of the dissolution. The plaintiff contends that because he was awarded the stock options as property in the dissolution decree, any money that he received from the exercise of those stock options was simply a conversion of an asset and should not have been considered income by the trial court for purposes of assessing whether there had been a substantial change in circumstances. We agree.

The mere exchange of an asset awarded as property in a dissolution decree, for cash, the liquid form of the asset, does not transform the property into income. Simms v. Simms, 25 Conn. App. 231, 234, 593 A.2d 161, cert. denied, 220 Conn. 911, 597 A.2d 335 (1991). The fact that the asset, when converted to cash, produced a profit is irrelevant because “[o]nly in cases of fraud can a modification be based on an increase in the value of assets.” Id. The trial court should not have included the profit that the plaintiff generated by exercising the stock options in its determination of whether there had been a substantial change in the circumstances of the parties. Our inquiry, however, does not end with that conclusion.

The question becomes whether, exclusive of the profit, there was a substantial change in circumstances since the judgment of dissolution. In other words, the question becomes whether the trial court was correct despite its improper determination that the profits from the stock were includable income. “ ‘As an appellate court, we do not review the evidence to determine whether a conclusion different from the one reached could have been reached. . . . The goal of our analysis is simply to decide whether the trial court’s conclusion was reasonable.’ ” (Citations omitted.) Glinski v. Glinski, supra, 26 Conn. App. 620. After carefully examining the relevant facts concerning the financial circumstances of the parties, we conclude that even if the profit from the options was disregarded, the trial court exercised its discretion properly in concluding that there was no substantial change in circumstances of either party warranting a modification of the plaintiff’s obligation of support and alimony.

Finally, the plaintiff claims that the trial court’s finding, that the plaintiff had failed to sustain his burden of proving a substantial change in circumstances, was not supported by other evidence in the record. The plaintiff directs our attention to specific testimony that indicated a decrease in income because of the loss of a substantial client.

The trial court’s memorandum of decision, however, indicates that the court did consider this information, as well as the new assignment to him of another substantial account, in its determination of whether the plaintiff had sustained his burden. The plaintiff failed to meet his burden to show that this new account would not produce income equivalent to that of the lost account. The plaintiff had the burden of proving a substantial change in circumstances. Bunche v. Bundle, 180 Conn. 285, 290, 429 A.2d 874 (1980). He did not.

Primarily, the plaintiff relied on the loss of a major account and on a comparison of his weekly income for a portion of 1993 with his weekly income at the date of dissolution to establish a substantial change in circumstances. We conclude that the trial court was correct in its conclusion that there was no substantial change in the financial circumstances of the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-86 provides in pertinent part: “(a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . .


text:
    Rosina Gambardella et al. v. Randy Kaoud et al.
    (13219)
    Dupont, C. J., and Spear and Hennessy, Js.
    Argued February 9
    decision released July 4, 1995

      Paul M. Sabetta, for the appellants (plaintiffs).

      Michael G. Durham, with whom, was Delaney Zeme-tis and, on the brief, was Thomas J. Flanagan, for the appellees (defendants).
   Hennessy, J.

The plaintiffs appeal following the trial court’s entry of summary judgment on behalf of the defendants in this personal injury action. The plaintiffs claim that the trial court improperly concluded that there were no material facts in dispute and that the defendants were entitled to judgment as a matter of law. We agree.

The following facts are taken from the trial court’s memorandum of decision on the defendants’ motion for summary judgment. The plaintiff Rosina Gambardella allegedly sustained injuries as the result of a fall on a defective sidewalk. Her husband, James Gambardella, allegedly suffered a loss of consortium as a result of his wife’s injuries. The plaintiffs fled a complaint against the defendants, Randy Kaoud, Abraham Kaoud, Fred Kaoud and Carpet Galleries, Ltd. The three Kaoud brothers were the owners of the property abutting the sidewalk where the plaintiff wife’s injuries occurred and Carpet Galleries, Ltd., was the lessee.

The first three counts of the complaint allege causes of action against the three Kaoud brothers. The first count alleges that the plaintiff wife’s injuries resulted from the Kaoud brothers’ negligence. The second count alleges that the defective condition of the sidewalk constituted a public nuisance. The third count of the complaint alleges that the plaintiff husband suffered financial loss and a loss of consortium as a result of the injuries to his wife. The fourth, fifth and sixth counts of the complaint allege the same causes of action as counts one, two and three, respectively, against Carpet Galleries, Ltd.

Following discovery, and after the pleadings were closed, the defendants moved for summary judgment on the first six counts of the complaint. In support of this motion, the defendants argued that the plaintiffs had failed to allege that the defendants had created any defects in the sidewalk and that as abutting landowners the defendants had no duty to the plaintiffs for injuries caused by defects they had not created in the town’s sidewalk. The trial court, in its memorandum of decision, agreed with the defendants. The trial court found that the plaintiffs’ revised amended complaint failed to allege any affirmative acts by the defendants that created the unsafe condition of the sidewalk and granted summary judgment on the negligence counts. In addition, the trial court granted summary judgment on the nuisance counts on the basis of its conclusion that the allegations of the plaintiffs’ complaint were insufficient for failure to allege a positive act.

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 380; Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316-17, 477 A.2d 1005 (1984).” Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). “The party moving for summary judgment has the burden of showing the absence of any genuine issues as to all the material facts, which under applicable principles of substantive law, entitle him to judgment as a matter of law. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971). It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required “to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings” to show the absence of any material dispute. (Emphasis in original; internal quotation marks omitted.) Na-Mor, Inc. v. Roballey, 24 Conn. App. 215, 217, 587 A.2d 427 (1991); see also Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984); Town Bank & Trust Co. v. Benson, Conn. 304, 306-307, 407 A.2d 971 (1978).

The plaintiffs concede that as a general matter the defendants had no duty to the plaintiffs to maintain the sidewalk in a safe condition, and that the ordinance does not impose such a duty. See Wilson v. New Haven, supra, 213 Conn. 280. The plaintiffs argue, however, that the allegations of their complaint satisfy an exception to the general rule, in that abutting property owners can be held liable in negligence or public nuisance for injuries resulting from an unsafe condition of a public sidewalk caused by positive acts of the defendant. See Perkins v. Weibel, 132 Conn. 50, 52, 42 A.2d 360 (1945) (public nuisance); Hanlon v. Waterbury, 108 Conn. 197, 200, 142 A. 681 (1928) (negligence).

In their complaint, the plaintiffs alleged, inter alia, that their injuries were caused by the defendants “in that said defendants caused and/or did allow sand, sticks, and debris to accumulate on said walkway, thereby covering and concealing from view the cracked surface thereof. . . .” This allegation is of a positive act by the defendants, which, if proved at trial, could form the basis for the defendants’ liability in negligence or public nuisance. Perkins v. Weibel, supra, 132 Conn. 52; Hanlon v. Waterbury, supra, 108 Conn. 200. The defendants failed to adduce evidence in support of their motion for summary judgment to establish the absence of a factual dispute in connection with this allegation, so summary judgment was inappropriate. Town Bank & Trust Co. v. Benson, supra, 176 Conn. 307-308.

The only evidence produced in connection with the plaintiffs’ allegations that the defendants’ had actively caused the unsafe condition of the sidewalk was in the form of affidavits submitted by the defendants. In these affidavits it was averred that none of the defendants had created any condition on the sidewalk that was unsafe, nor had any of the defendants created or maintained any situation that caused the sidewalk to become multi-angled, uneven, cracked, and in a state of disrepair. These averments are little more than denials of the facts alleged in the plaintiffs’ complaint. Denials of the allegations in the complaint are an insufficient basis for the rendition of summary judgment. See Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 488-89, 280 A.2d 359 (1971) (“defendants’ affidavits did not attempt to show that there was no genuine issue of fact arising from the contested common-law negligence and nuisance allegations”). Thus, the defendants have not met their burden of providing evidence to establish the absence of a material factual dispute.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The town of Hamden, where the sidewalk on which the plaintiff wife fell was located, is also a defendant in this action. The motion for summary-judgment was filed only by the Kaoud brothers and Carpet Galleries, Ltd., and we refer to them as the defendants in this appeal.

       The remaining counts of the complaint were directed against the town of Hamden and are not at issue in this appeal.

       The plaintiffs argue that the trial court improperly granted summary judgment on their public nuisance claims because, by ruling on the sufficiency of the complaint, it treated the defendants’ motion for summary judgment as a motion to strike. We commend both parties for briefing this issue fully. We determine, however, that we need not reach the issue of whether the defendants’ motion for summary judgment was in reality a cloak for a motion to strike; a motion to strike would not lie in this case since the allegations in the complaint were sufficient to allege a public nuisance.

       In paragraph three of each count of their complaint the plaintiffs alleged: “The injuries and losses were caused by the negligence of the defendants in one or more of the following ways: A. in that the area was multi-angled, uneven, cracked, and in a state of disrepair so that it rendered pedestrian traffic hazardous and dangerous; B. in that said defendants caused and/or did allow sand, sticks, and debris to accumulate on said walkway, thereby covering and concealing from view the cracked surface thereof; C. in that said conditions had existed for an unreasonable period of time, yet no measures had been taken to remedy and correct the same; D. in that defendants in the exercise of reasonable care and inspection should have known of these conditions and should have remedied the same yet this they failed to do; E. in that said defendants failed to maintain said walkway in a safe and convenient condition for the use of the public in violation of § 96.04 of the Hamden Code of Ordinances . . . .”
      We note, as conceded by the plaintiffs, that the only positive act alleged is that of subparagraph (B). Thus, our opinion addresses the claimed impropriety of summary judgment only in connection with this allegation.


text:
    Jane Doe v. Doris Marselle et al.
    (13338)
    O’Connell, Poti and La very, Js.

      Argued March 17
    decision released July 4, 1995

      Susan Garten, with whom was Eileen McGann and, on the brief, Vaughan Finn, for the appellant (plaintiff).

      Andrew J. O’Keefe, with whom was Maureen Sullivan Dinnan, for the appellee (defendant Dionisio Flores).
   O’Connell, J.

The plaintiff appeals from the judgment rendered following the trial court’s granting of the defendant Dionisio Flores’ motion to strike the plaintiff’s second amended complaint. The plaintiff claims that the trial court (1) improperly construed the “wilful” requirement of General Statutes § Wa-SiX), (2) improperly held that General Statutes § 19a-581 et seq. is the exclusive remedy for unauthorized disclosure of confidential HIV-related information so as to exclude, inter alia, the plaintiff’s negligence claims, and (3) improperly held that the Connecticut Unfair Trade Practices Act (CUTPA) did not apply to the alleged unauthorized disclosure in this case. We affirm the judgment of the trial court.

The plaintiff, Jane Doe, who is pursuing this case under a fictitious name with the court’s permission, was a patient of the defendant Flores, a surgeon. The named defendant, Doris Marselle, was a surgical assistant in Flores’ employ. In connection with gallbladder surgery, the plaintiff disclosed to Flores that she was infected with the human immunodeficiency virus (HIV).

After commencing the action, the plaintiff filed an amended complaint alleging that Flores and Marselle disclosed, in violation of the confidentiality requirements of General Statutes §§ 19a-581 through 19a-592, her status as a person infected with the HIV virus. Flores moved to strike the counts pertaining to him on the ground that the complaint did not allege a wilful violation of the statute on his part. This motion to strike was granted by agreement of the parties.

The plaintiff then repleaded by filing a second amended complaint to which Flores objected on the grounds that the plaintiff still had not pleaded wilful conduct by Flores. The court granted the objection on the ground that the deficiency of the first amended complaint, i.e., failure to plead wilful conduct, had not been corrected. The plaintiff did not replead but instead moved for judgment in Flores’s favor so that she could appeal. The counts against Marselle are not involved in this appeal. We affirm the trial court’s judgment.

I

As a threshold matter we must determine the effect of the “objection” filed by Flores. “When the allegations of an amended complaint appear to be the same in substance as those of an earlier complaint that was stricken, the defendant may challenge the amended complaint by filing a request to revise; Royce v. Westport, [183 Conn. 177, 180-81, 439 A.2d 298 (1981)]; or a second motion to strike. See Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 263-64, 259 A.2d 598 (1969) . ‘The request to revise is a [request] for an order directing the opposing party to revise his pleading in the manner specified.’ Royce v. Westport, supra, 180. Although the request to revise may not ordinarily be used to substantively challenge a pleading, it may be used to delete ‘ “otherwise improper allegations” ’ from a complaint. Id. The motion to strike, on the other hand, challenges the legal sufficiency of the pleading by testing whether the complaint states a cause of action on which relief can be granted. Amore v. Frankel, 228 Conn. 358, 372, 636 A.2d 786 (1994).

“Although [a motion to strike and a request to revise] generally serve different functions, either may be used when the amended complaint merely restates the original cause of action that was previously stricken. See Royce v. Westport, supra, 183 Conn. 180; Good Humor Corp. v. Ricciuti, [160 Conn. 133, 135, 273 A.2d 886 (1970)]; Jensen v. Nationwide Mutual Ins. Co., [158 Conn. 251, 264, 259 A.2d 598 (1969)]. If the plaintiff here has in fact merely restated the original cause of action, the defendant would prevail on either pleading.” P & L Properties, Inc. v. Schnip Development Corp., 35 Conn. App. 46, 50, 643 A. 2d 1302, cert. denied, 231 Conn. 913, 648 A.2d 155 (1994).

Here, however, the defendant did not file either a request to revise or a motion to strike but instead filed an “objection.” An objection to a complaint is not a pleading allowed in our rule of practice. See Practice Book § 112. The trial court stated that it would be treated as a request to revise or a motion to strike. The parties have treated the objection as a motion to strike, and we will do likewise. See Crozier v. Zaboori, 14 Conn. App. 457, 463, 541 A.2d 531 (1988).

In reviewing a trial court’s ruling on a motion to strike, we accept as true all facts that are well pleaded and construe the complaint in the manner most favorable to sustaining its legal sufficiency. Sassone v. Lepore, 226 Conn. 773, 779-80, 629 A.2d 357 (1993). Both parties ask us to rely on Flores’ deposition in determining whether he was aware of the provisions of § 19a-590. We are limited, however, to a consideration of the facts alleged in the complaint. A “speaking” motion to strike (one imparting facts outside the pleadings) will not be granted. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Bulkley v. Norwich & W. R. Co., 81 Conn. 284, 286, 70 A. 1021 (1908). Thus, we will not consult Flores’ deposition.

We must next determine whether the second amended complaint materially changed the plaintiff’s allegations or merely reiterated claims previously disposed of by the trial court. If the second amended complaint is not materially different from the first amended complaint, the plaintiff will have waived her right to appeal the granting of the second motion to strike. P & L Properties, Inc. v. Schnip Development Corp., supra, 35 Conn. App. 51. The defendant argues that because both complaints were stricken for the reason that they failed to allege wilful conduct on Flores’ part, the rule of P & L Properties, Inc. v. Schnip Development Corp., supra, 51, applies, and we should decline appellate review.

The trial court is correct that the claimed deficiency in each complaint is a failure to allege wilful conduct. The complaints are not, however, otherwise identical. The plaintiff has not refiled the same or substantially similar allegations as those that have already been stricken. Here, the first amended complaint was bereft of any allegations that by any stretch of legal imagination could be construed as alleging wilful conduct. The absence of such allegations was so obvious that the plaintiff stipulated that her complaint could be stricken.

Despite having been alerted to the defect in her complaint, the plaintiff inexplicably failed to include the word “wilful” in her next complaint. Despite this inexplicable continued absence of the word wilful, her next pleading contained additional language with which she argues that wilful conduct may be inferred.

We are persuaded that the plaintiff has not waived her right to appeal but has made a good faith effort to file a complaint that states a cause of action. P & L Properties, Inc. v. Schnip Development Corp., supra, 35 Conn. App. 46, is inapposite. Thus, we must consider the merits of the plaintiffs argument that she has pleaded wilful conduct by Flores.

II

This is a case of first impression, in which we are asked to construe Public Acts 1989, No. 89-246, the “Act Concerning AIDS Related Testing, Medical Information and Confidentiality.” General Statutes §§ 19a-581 through 19a-592. We focus on the statute that creates a cause of action against “any person . . . who wil-fully violates any provision of this chapter.” (Emphasis added.) General Statutes § 19a-590. The first issue before us is whether the plaintiff has alleged that Flores wilfully violated § 19a-583, which, with exceptions not relevant here, prohibits disclosure of HIV-related information.

Section 19a-590 does not create a cause of action for all violations of the statute. It expressly creates a claim solely for wilful violations. The first amended complaint was stricken by agreement because it lacked an allegation of wilfulness and, therefore, did not state a cause of action. Although neither complaint expressly used the word wilful, the plaintiff claims that the second amended complaint contains allegations from which the trial court should have concluded that she was pleading wilful conduct on Flores’ part. The plaintiff specifically relies on paragraph sixteen of the second amended complaint for her claim that she has alleged wilful conduct. Paragraph sixteen states: “After her conversation with Ms. Doe, Ms. Marselle consulted Dr. Flores concerning her intention to disclose Ms. Doe’s HIV status to Ms. Marselle’s sons whom she knew to be illegal drug users and acquaintánces of friends of Ms. Doe.”

The plaintiff also relies, albeit to a lesser extent, on paragraph seventeen, which states: “At no time did Dr. Flores inform defendant Marselle of the statutory prohibition against releasing any information which would identify Ms. Doe as HIV positive. In fact, Dr. Flores affirmatively authorized Ms. Marselle’s illegal disclosure, with the sole proviso that Ms. Doe’s actual name not be used in identifying her.”

The relevant portion of § 19a-590 provides: “Any person . . . who wilfully violates any provision of this chapter shall be liable in a private cause of action . . . .’’The plaintiff argues that “wilful” is a word of many meanings and urges that we accept the definition “intentionally” as opposed to “accidentally.” She cites cases from other jurisdictions and three Connecticut criminal cases in support of this view.

The three Connecticut criminal cases limit the definitions of wilful therein to the criminal statutes being construed. State v. Candito, 4 Conn. App. 154, 157, 493 A.2d 250 (1985) (limited to wilful failure to appear statute); State v. Hoskins, 35 Conn. Sup. 587, 596, 401 A.2d 619 (1978) (limited to wilful failure to appear statute); State v. White, 2 Conn. Cir. Ct. 1, 3, 193 A.2d 175 (1963) (limited to statute prohibiting wilful evasion of payment of bridge toll).

In the world of torts, “wilful” is a term of art, and the Connecticut tort cases have uniformly defined wilful differently from the meaning in criminal law. In Connecticut, wilful misconduct is conduct that displays a reckless disregard for the safety and rights of others and the consequences of one’s actions. Brown v. Branford, 12 Conn. App. 106, 108, 529 A.2d 743 (1987); see also Menzie v. Kalmonowitz, 107 Conn. 197, 199,139 A. 698 (1928). “Wilful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse. . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. . . . Not only the action producing the injury but the resulting injury also must be intentional.” (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988).

Dubay v. Irish, supra, 207 Conn. 533, summarizes the role “wilful” plays in this state’s case law. “While [our Supreme Court has] attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that ‘willful,’ ‘wanton,’ or ‘reckless’ conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention . . . . W. Prosser & W. Keeton, Torts (5th Ed.) § 34, p. 214.” (Internal quotation marks omitted.) Id.; see also 2 D. Pope, Connecticut Actions and Remedies, Tort Law (1993) § 25:04; D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 61.

Thus, it is readily apparent that in Connecticut tort law “wilful” means far more egregious conduct than the simple definition that the plaintiff extracts from criminal cases and urges upon us. Nevertheless, the plaintiff argues that in drafting § 19a-590 the legislature intended wilful to have a meaning substantially different from its usual meaning in Connecticut tort law. The fallacies in this argument are many.

First, we will look to the legislative history of a statute only if it is ambiguous; Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991); and a statute does not become ambiguous merely because the parties contend for different meanings. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 63, 578 A.2d 1054 (1990). Because wilful has been interpreted by our courts on so many occasions, it has acquired a settled meaning and cannot be said to be ambiguous. Therefore, we have no reason to consider the statute’s legislative history.

Second, General Statutes § 1-1 (a) prescribes that “[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” Wilful has acquired a “peculiar and appropriate” meaning in the law of this state. Dubay v. Irish, supra, 207 Conn. 533. Words with fixed legal or judicially settled meanings are presumed to have been used by the legislature in that sense. Perkins v. Freedom of Information Commission, 228 Conn. 158, 169, 635 A.2d 783 (1993). Wilful has a fixed legal and judicially settled meaning as discussed previously, and, accordingly, we presume it was used in that sense.

Third, when the legislature enacts a law, it is presumed to know the state of the law and the interpretation that the courts have given to the words and phrases it uses. Id., 169-70. Accordingly, there is a presumption that when the legislature used wilful in § 19a-590 it was aware of the interpretation and judicial gloss that the courts had put on the word.

Fourth, we must presume that there is a purpose behind every word, clause or phrase in a legislative enactment. Frillici v. Westport, 231 Conn. 418, 432, 650 A.2d 557 (1994). If we delete wilful, § 19a-590 provides in pertinent part: “Any person . . . who . . . violates any provision of this chapter shall be liable in a private cause of action” which is a perfectly sensible sentence that comes closer to the interpretation put forward by the plaintiff without the deletion. In the plaintiffs definition, the word wilful would be redundant and would serve no purpose nor add anything. A statute should, however, be construed so that no word is treated as superfluous or insignificant. Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 16, 615 A.2d 1032 (1992).

Fifth, although it is true that statutes are to be construed to give effect to legislative intent: State v. Johnson, 227 Conn. 534, 541, 630 A.2d 1059 (1993); the intent of the legislature is to be found, not in what it intended to say, but in the meaning of what it did say. Lees v. Middlesex Ins. Co., 219 Conn. 644, 652, 594 A.2d 952 (1991); State v. Guckian, 27 Conn. App. 225, 243, 605 A.2d 874 (1992), aff'd, 226 Conn. 191, 627 A.2d 407 (1993). Our courts have repeatedly held that the question before the court is never what the legislature intended but what intention it expressed. Kilduff v. Adams, Inc., 219 Conn. 314, 336, 593 A.2d 478 (1991).

Sixth, this court must construe a statute without reference to whether we feel that it might be improved by interpreting it differently. Emergency Medical Services Commission v. Freedom of Information Commission, 19 Conn. App. 352, 355, 561 A.2d 981 (1989). It is our duty to apply the law, not to make it. Murray v. Lopes, 205 Conn. 27, 34, 529 A.2d 1302 (1987); 20 Am. Jur. 2d, Courts § 64 (1995).

In view of our case law’s clear definition of wilful, together with our application of the canons of statutory construction, we are not persuaded that paragraphs sixteen and seventeen of the second amended complaint can be construed as alleging wilful conduct by Flores. Accordingly, we agree with the trial court that the second amended complaint does not allege that Flores wilfully violated § 19a-583 (a).

Ill

The plaintiff phrases her second claim, “Did the trial court err in deciding that the plaintiff Jane Doe is precluded from alleging negligence and negligent infliction of emotional distress against defendant Flores on the grounds that Connecticut General Statutes § 19a-581 et seq. is the exclusive remedy for a physician’s unauthorized disclosure of confidential HIV-related information?”

The general question of whether § 19a-581 et seq. is the exclusive remedy for an unauthorized disclosure of confidential HIV-related information is too broad to allow a definitive answer. We will not presume the omniscience to conceive of the infinite and varied actions that the fertile minds of the plaintiffs’ bar might divine. Rather, we will limit our analysis to the narrower, yet more practical, issue of whether the plaintiff in the present case has pleaded any other cause of action that should have withstood Flores’ motion to strike.

The plaintiff modified the negligence, negligent infliction of emotional distress, and the CUTPA counts in the second amended complaint. As she had in the first amended complaint, however, the plaintiff incorporated count one, based on § 19a-581 et seq., by reference into all of these counts. Because the first count failed, as discussed previously, the counts into which it was incorporated must also fail.

IV

We agree with the trial court that the defendant’s motion to strike should be granted, but we do not adopt the trial court’s reasoning that the second amended complaint merely repeats the allegations of the first amended complaint. We may affirm the trial court’s action, however, if the result it reached can be supported for a different reason. Herrmann v. Summer Plaza Corp., 201 Conn. 263, 274, 513 A.2d 1211 (1986); Polymer Resources, Ltd. v. Keeney, 32 Conn App. 340, 349, 629 A.2d 447 (1993). This doctrine is frequently referred to by the shorthand phrase, “Right result, wrong reason.” This is one of those cases.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 19a-590 provides. “Any person, except as otherwise provided in this chapter, who wilfully violates any provision of this chapter shall be liable in a private cause of action for injuries suffered as a result of such violation. Upon a finding that an individual has been injured as a result of such violation, damages shall be assessed in the amount sufficient to compensate said individual for such injury.” (Emphasis added.)

       The complaint does not allege that Flores is liable for Marselle’s conduct under the doctrine of respondeat superior.

       General Statutes § 19a-583 (a) provides in relevant part: “No person who obtains confidential HIV-related information may disclose . . . such information . . . .”