author: FOTI, J.

text:
    IN RE SHONNA K.

    (AC 23107)
    Foti, Dranginis and Flynn, Js.

      Argued March 24
    officially released June 3, 2003

      Anne Louise Blanchard, with whom were Douglas M. Crockett and, on the brief, Catherine Holahan, for the appellant (respondent).

      John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

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

   Opinion

FOTI, J.

The respondent, Shonna K, appeals from the judgment of the trial court denying her application for a temporary injunction requiring the petitioner, the commissioner of children and families (commissioner), to provide her a clinically appropriate support placement. The respondent argues that the court improperly determined that it lacked subject matter jurisdiction because she had reached the age of eighteen. We agree and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are necessary for our resolution of the respondent’s appeal. The respondent was committed to the commissioner at a young age. She suffered from various mental illnesses that required therapeutic treatment. On July 6, 2001, as she approached the age of eighteen, she filed an application for a temporary injunction. She sought to prohibit the commissioner from transferring her to the department of public health until the commissioner secured an appropriate placement. The respondent requested that the commissioner provide her with a twenty-four hour supported, community based placement. She argued that the failure to obtain such a placement would place her mental health at risk of an irreparable injury.

A hearing on the respondent’s application was held on July 12,2001. The court heard testimony from Elizabeth D’Amico, an employee of the department of public health, who testified that the department could provide an appropriate placement for the respondent. The court also heard testimony from Antonio Tigeleiro, a social worker with the department of children and families. The hearing then was continued until July 19, 2001.

At the July 19, 2001 hearing, the parties entered into an agreement that was read into the record. The parties agreed to the following terms: “[The commissioner] will transition [the respondent] to . . . [the department of public health] for placement in accordance with the transition plan developed under the [commissioner’s] and [the department’s] interagency agreement. In the event [the department] is unable or unwilling to provide a clinically appropriate program for [the respondent], then [the commissioner] will provide or arrange for a clinically appropriate program for [the respondent], if she accepts [the commissioner’s] requirements for voluntary services, pursuant to the applicable statutes.” The attorney representing the commissioner then clarified the agreement by stating that “[i]n other words . . . the translation of it to plain language is [that] if [the respondent] blows the placement and [the department of public health] is unable to place her but provides other services, then [the commissioner] will find her placement as long as she is in compliance with their criterias for voluntary services.”

The respondent was sent to a placement provided by the department of public health. Shortly after she became eighteen years old, the placement failed. As a result, she was incarcerated for failing to comply with department regulations and was removed from the placement. The respondent then filed a second application for a temporary injunction requesting the court to order the commissioner to provide her with a therapeutic, twenty-four hour supported, community based residential placement. That application was filed with the Superior Court for juvenile matters. The court issued its memorandum of decision, holding that it lacked subject matter jurisdiction due to the respondent’s age and, therefore, it dismissed the application. This appeal followed. Additional facts will be set forth as necessary.

I

The respondent claims that the court improperly determined that it lacked subject matter jurisdiction over the second application for a temporary injunction. Specifically, she argues that the Superior Court for Juvenile Matters is a court of general jurisdiction and, therefore, as with any other division of the Superior Court, it maintained jurisdiction even after she became eighteen years old. We agree.

As an initial matter, we set forth the applicable legal principles and standard of review. “Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.” (Internal quotation marks omitted.) Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996).

“[0]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case. . . . Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver. . . . Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Olympia Mortgage Corp. v. Klein, 61 Conn. App. 305, 307, 763 A.2d 1055 (2001). “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Martinez v. Dept. of Public Safety, 263 Conn. 74, 81, 818 A.2d 758 (2003); see also Berlin Batting Cages, Inc. v. Planning & Zoning Commission, 76 Conn. App. 199, 204, 821 A.2d 269 (2003).

At this point, a brief review of the history of the Superior Court will facilitate the resolution of the respondent’s appeal. “In 1978, the General Assembly enacted General Statutes § 51-164s, which merged the Juvenile Court and the Superior Court in order to maximize the efficiency of scarce judicial resources. Under § 51-164s, \t\he superior court, shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute. All jurisdiction heretofore conferred upon and exercised by the court of common pleas and the juvenile court prior to July 1,1978shall be transferred to the superior court on July 1, 1978.’ By this enactment, the legislature vested in the Superior Court the jurisdiction that had until then resided in the Juvenile Court. All juvenile matters now come under the administrative umbrella of the family division of the Superior Court. Practice Book § 3 [now § 1-4]. The chief court administrator is empowered, by General Statutes § 51-5a, to assign any judge of the Superior Court at any time to any division of the Superior Court, even though the legislature has expressed its strong preference that judges assigned to juvenile matters have a special understanding ‘of all factors affecting the best interests of children’ and should, ‘[i]f practicable ... be assigned to hear juvenile matters for not less than eighteen months.’ General Statutes § 51-165 (d).” (Emphasis added.) State v. Kelley, 206 Conn. 323, 328-29, 537 A.2d 483 (1988).

Thus, “the legislature adopted a uniform court system, vesting in the Superior Court the power to entertain all actions except those in which the Probate Court had original jurisdiction . . . .” (Citations omitted; emphasis added.) Southington ’84 Associates v. Silver Dollar Stores, Inc., 237 Conn. 758, 762-63, 678 A.2d 968 (1996). To promote an efficient use of judicial resources, the Superior Court has been divided into four divisions: Family, civil, criminal and housing. Each division is further divided into parts. See General Statutes § 51-164t; Practice Book §§ 1-3 through 1-7, inclusive.

With the foregoing background in mind, we turn to the present case. The court, specifically the Superior Court for Juvenile Matters, stated in its memorandum of decision that it had jurisdiction only in juvenile matters involving children or youths. See General Statutes § 46b-121. The court concluded, therefore, that once the respondent had reached the age of eighteen, it no longer had jurisdiction over her application for a temporary restraining order and, accordingly, dismissed the application.

Subsequent to the enactment of § 51-164s, both our Supreme Court and this court have repeatedly stated that in this state’s unified court system, all “civil matters, including juvenile matters, fall within the subject matter jurisdiction of the Superior Court.” (Emphasis added.) State v. Ledbetter, 263 Conn. 1, 4 n.9, 818 A.2d 1 (2003); see also West Haven v. Norback, 263 Conn. 155, 166 n.12, 819 A.2d 235 (2003); State v. Angel C., 245 Conn. 93, 108 n.17, 715 A.2d 652 (1998); State v. Kelley, supra, 206 Conn. 331-32; Haigh v. Haigh, 50 Conn. App. 456, 458 n.1, 717 A.2d 837 (1998); Davis v. Naugatuck, 15 Conn. App. 185, 192, 543 A.2d 785 (1988), overruled in part on other grounds, Southington ’84 Associates v. Silver Dollar Stores, Inc., supra, 237 Conn. 769.

Our Supreme Court’s decision in State v. Kelley, supra, 206 Conn. 323, provides us with guidance on the issue of subject matter jurisdiction. In Kelley, the court held that the transfer of a child from the docket of juvenile matters to the regular criminal docket of the Superior Court did not implicate the court’s subject matter jurisdiction. Id., 332. Although the legislature preserved a separate system for the disposition of cases involving juveniles accused of criminal acts, the court stated that the juvenile docket was not vested with subject matter jurisdiction separate and distinct from that of the Superior Court. Id., 331. The court concluded that “\r\ather than implicating subject matter jurisdiction, issues relating to transfers between the juvenile and the regular criminal docket involve considerations that are analogous to those of the law of venue. It is a well established rule that, outside the area of administrative appeals, venue is not a jurisdictional but a procedural question; consequently, venue, unlike subject matter jurisdiction, can be waived by the parties.” (Emphasis added.) Id., 332; see also Haigh v. Haigh, supra, 50 Conn. App. 465.

This case requires that we interpret § 51-164s. We start by examining the language of § 51-164s, which, as we have stated, provides in relevant part that “[t]he Superior Court shall be the sole court of original jurisdiction .... All jurisdiction heretofore conferred upon and exercised by . . . the Juvenile Court prior to July 1,1978 shall be transferred to the Superior Court on July 1,1978.” Thus, the language, the most important factor in statutory interpretation; State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc); expressly confers to the Superior Court all jurisdiction that previously had been held by the Juvenile Court.

Furthermore, § 51-164t, which authorizes the Superior Court to be separated into divisions, in part to maximize efficiency and to provide the highest standard of justice, makes no mention of splitting jurisdiction among the various divisions. The chief court administrator is authorized to assign to each division as many judges as deemed advisable in the best interest of court business. General Statutes § 51-164t (b). General Statutes § 46b-l provides that “[mjatters within the jurisdiction of the Superior Court deemed to be family relation matters shall be matters affecting or involving . . . (11) juvenile matters as provided in section 46b-121 . . . .” (Emphasis added.) In those statutes, there is no indication that the legislature intended that the Juvenile Matters session would have a separate and distinct jurisdiction from that of the Superior Court.

Our review of the legislative history of § 51-164s similarly reveals that the goal of the legislature was “to combine the trial jurisdiction which is now spread between the Superior Court, the Court of Common Pleas and the Juvenile Court into one Court . . . the Superior Court.” 19 H.R. Proc., Pt. 7, 1976 Sess., p. 2862, remarks of Representative James T. Healey. This combination would result in the “more effective utilization of available manpower.” Id., p. 2863. “Although the bill provides for divisions, it in no way inhibits or limits the jurisdictional power of each of the Judges, and, therefore, if he ran out of one particular grouping of business, he could then shift gears into another group.” 19 H.R., Proc. Pt. 8, 1976 Sess., p. 3259, remarks of Representative Healey. Senator David H. Neiditz summarized the legislation by stating: “[T]he thrust of this bill, the reason for this bill, is to provide for the unification, simplification, flexibility and effective responsible control of the administration of the court of the State of Connecticut. . . . The main defect of the present system is the waste of judicial personnel .... This waste is caused by ill-defined jurisdictional lines causing duplication of efforts. Piecemeal handling of single controversies simultaneously in different courts compounds the problem.” 19 S. Proc., Pt. 7, 1976 Sess., p. 2652, remarks of Senator Neiditz.

The court held that it lacked subject matter jurisdiction because the respondent was eighteen years old. We conclude, on the basis of our review of the case law, applicable statutes and legislative history, that subject matter jurisdiction over juvenile cases in the Superior Court for Juvenile Matters, however, is not separate and distinct from the general subject matter jurisdiction of the Superior Court. Thus, the Superior Court for Juvenile Matters clearly maintained subject matter jurisdiction over the eighteen year old respondent and her application for a temporary injunction. Instead, the question of whether the Superior Court for Juvenile Matters was the proper forum was one of venue. See State v. Kelley, supra, 206 Conn. 332.

As we have stated, “[a] claim of improper venue may be waived by the parties, unlike subject matter jurisdiction, which cannot be conferred on the court by consent.” Neri v. Neri, 35 Conn. App. 812, 817, 647 A.2d 1, cert. denied, 231 Conn. 916, 648 A.2d 154 (1994). In State v. Orsini, 187 Conn. 264, 269, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982), our Supreme Court stated that “[v]enue requirements are created for the convenience of the litigants and may be waived by failure to assert the statutory privilege in timely fashion.” Venue simply concerns the location where the matter may be tried. Haigh v. Haigh, supra, 50 Conn. App. 465. Finally, we note that Practice Book § 10-32 provides in relevant part that “[a]ny claim of . . . improper venue ... is waived if not raised by a motion to dismiss filed . . . within the time provided

In the present case, the commissioner did not raise the issue of venue in her objection to the respondent’s application for a temporary injunction. Thus, we deem waived any claim regarding improper venue.

II

The commissioner claims that the respondent’s appeal should be dismissed on the ground of mootness. Specifically, the commissioner argues that (1) once the respondent became eighteen years old, the juvenile case became moot and (2) the respondent presently is in a suitable placement. We are not persuaded.

“Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties. . . . Since mootness implicates subject matter jurisdiction ... it can be raised at any stage of the proceedings. ... A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists. ... An issue is moot when the court can no longer grant any practical relief.” (Internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 71 Conn. App. 43, 46, 800 A.2d 641 (2002).

“The test for determining mootness of an appeal is whether there is any practical relief this court can grant the appellant. . . . [I]t 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. ... If no practical relief can be afforded to the parties, the appeal must be dismissed.” (Internal quotation marks omitted.) Id. “An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Schiavone v. Snyder, 73 Conn. App. 712, 716, 812 A.2d 26 (2002).

A

The commissioner first claims that the present case is moot as a result of the respondent’s age. Specifically, the commissioner argues that the court’s subject matter jurisdiction was lost or divested once the respondent became eighteen years old. We are not persuaded.

At the outset, we note that our Supreme Court has stated that “[a]s a general rule, jurisdiction once acquired is not lost or divested by subsequent events.” (Internal quotation marks omitted.) Loulis v. Parrott, 241 Conn. 180, 198, 695 A.2d 1040 (1997), overruled in part on other grounds, Munroe v. Zoning Board of Appeals, 261 Conn. 263, 272, 802 A.2d 55 (2002); Bailey v. Mars, 138 Conn. 593, 601, 87 A.2d 388 (1952); State v. One 1976 Chevrolet Van, 19 Conn. App. 195, 199, 562 A.2d 62 (1989). An exception to that rule, however, is that subsequent events that render a case moot will result in the loss of subject matter jurisdiction. Loulis v. Parrott, supra, 198 n.11.

The commissioner relies on In re Elisabeth H., 45 Conn. App. 508, 696 A.2d 1291, cert. denied, 243 Conn. 903, 701 A.2d 328 (1997), cert. denied, 523 U.S. 1137, 118 S. Ct. 1840, 140 L. Ed. 2d 1091 (1998), for its argument that the case is moot. The holding of In re Elisabeth H. is readily distinguishable. In that case, the respondent parents appealed from the judgment adjudicating their two minor daughters neglected, uncared for and abused. Id., 509. During the pendency of the appeal, one daughter reached the age of majority. Id. Six days after this court heard oral argument, the second daughter reached the age of majority. Id. We held that the case was moot because “the minors . . . have reached their majority and no order of this court can affect them . . . .’’Id., 510.

As we discussed in part I, the Superior Court is a court of general jurisdiction. The Juvenile Matters docket is a division of the Superior Court and has the same jurisdiction as that of any other division of the Superior Court. An order of that court still can reach the commissioner, unlike the situation of the respondent parents in In re Elisabeth H. The court may still provide practical relief due to the agreement between the parties. The mere fact that the respondent became eighteen years old does not render the case moot, nor does it somehow divest the court of jurisdiction. We conclude, therefore, that the commissioner’s argument is without merit.

B

The commissioner next claims that the respondent presently is in a clinically appropriate placement that meets the conditions of the oral agreement between the paities and that this court cannot, therefore, grant any practical relief. The respondent concedes that she currently is in a placement and is receiving treatment, but argues that such treatment does not satisfy the terms of the agreement. She further claims that even if she currently is in an acceptable placement, if such placement becomes unsuitable, there is no guarantee that the commissioner will provide for, or arrange for, another clinically appropriate program, which was one of the terms of the agreement. Finally, the respondent claims that even if the present case is moot, we should review the case under the “capable of repetition, yet evading review” exception. See Loisel v. Rowe, 233 Conn. 370, 385, 660 A.2d 323 (1995). We agree with the respondent that the present case is not moot.

At the outset, we note that the parties disagree as to whether the respondent is receiving appropriate treatment at her present placement. On the basis of the record before us, we cannot definitively conclude that the respondent is receiving clinically appropriate treatment. Thus, we cannot say the issue is moot. Moreover, the agreement reached by the parties provided that if the department of public health is unable or unwilling to provide an appropriate treatment, then the commissioner will provide or arrange for such treatment as long as the respondent accepts the commissioner’s requirements for voluntary services. Essentially, the respondent is guaranteed placement in an appropriate program by the commissioner if she complies wdth the commissioner’s requirements. The present circumstances do not provide any such guarantee. By remanding the matter for further proceedings, which could include the granting of a temporary injunction, which would require the commissioner, and not the department of public health, to provide the respondent with an appropriate placement, we conclude that this court could grant practical relief, and, accordingly, the issue is not moot.

The judgment dismissing the application for a temporary injunction for lack of subject matter jurisdiction is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       We acknowledge at the outset the general rule that “decisions either granting or denying temporary injunctions are not final judgments and are therefore not immediately appealable.” (Internal quotation mark omitted.) Brown v. Brown, 69 Conn. App. 209, 210 n.1, 794 A.2d 550 (2002). The facts and circumstances of this case, however, concluded the rights of the parties so that further proceedings could not affect them; see State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); therefore, the general rule does not apply.

       General Statutes § 46b-129 (j) provides in relevant part that “[u]pon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families. . . .”

       The record reveals that the respondent is mentally disabled with severe emotional problems stemming from childhood physical and sexual abuse. She has been diagnosed with bipolar disorder, oppositional defiant disorder and attention deficit disorder. As a result of her disability, she is prone to frequent episodes of aggressive, and sometimes violent, behavior.

       Although the respondent was eighteen at the time the second temporary injunction was filed on her behalf, she still sought to remain in the care and supervision of the commissioner. General Statutes § 17a-ll (g) provides that “[notwithstanding any provision of sections 17a-l to 17a-26, inclusive, and 17a-28 to 17a-49, inclusive, to the contrary, any person already under the care and supervision of the Commissioner of Children and Families who has passed such person’s eighteenth birthday but has not yet reached such person’s twenty-first birthday, may be permitted to remain voluntarily under the supervision of the commissioner, provided said commissioner, in said commissioner’s discretion, determines that such person would benefit from further care and support from the Department of Children and Families.” See also General Statutes § 46b-129 (j). Thus, it is clear that the legislature envisioned situations in which the commissioner would maintain care and supervision of persons older than eighteen.

       Our legislature has defined a “child” as “any person under sixteen years of age”; General Statutes § 17a-l (5); and a “youth” as “any person at least sixteen years of age and under nineteen years of age . . . .” General Statutes § 17a-l (6). General Statutes § 1-ldprovides in relevant part that “any person eighteen years of age or over shall be an adult for all purposes whatsoever and have the same legal capacity, rights, powers, privileges, duties, liabilities and responsibilities as persons heretofore had at twenty-one years of age, and ‘age of majority’ shall be deemed to be eighteen years.”

       The parlies also have briefed the issue of whether 1 he court had inherent authority to enforce the sel tlement as a matter of law. See Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 811, 626 A.2d 729 (1993). The respondent argues the terms of the agreement were clear and unambiguous, and, therefore, the court had the inherent authority to enforce the agreement. The commissioner claims that the terms of the agreement are not clear and unambiguous, and the parties dispute the terms of the settlement; therefore, the rule set forth in Audubon Parking Associates, Ltd. Partnership did not apply. Because we have concluded that the court retained subject matter jurisdiction, we need not address that issue.
      The commissioner also argues that the respondent was voluntarily admitted to the care of the commissioner and that such cases fall within the jurisdiction of the Probate Court. The record, however, reveals that the respondent was not entered into a voluntary services program, but accepted certain conditions in exchange for the commissioner’s guarantee to place the respondent in a clinically appropriate program. The commissioner’s argument, therefore, is without merit.

       That claim was not raised in Hie parties’ briefs, but was discussed a.t oral argument.

       Because we have determined that the issue is not moot, we need not reach the respondent’s argument that the present case falls within the “capable of repetition, yet evading review” exception to the mootness doctrine.


source: Caselaw Access Project

license: Public Domain

text:
    ABB AUTOMATION, INC. v. MOHAMED N. ZAHARNA
    (AC 23378)
    Lavery, C. J., and Foti and Peters, Js.

      Argued March 25
    officially released June 3, 2003

      Emanuel N. Psarakis, with whom, on the brief, were Erin K. O'Brien and Allison M. Daly, for the appellant (plaintiff).

      Gregg D. Adler, with whom, on the brief, were Alan Hirth and Debra J. Horn, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, ABB Automation, Inc., appeals from the judgment rendered by the trial court dismissing its complaint, which sought a declaratory judgment. The plaintiff claims that the court improperly concluded that it lacked subject matter jurisdiction. We agree and reverse the judgment of the trial court.

The plaintiff, in its November 19, 2001 complaint, alleged that it is an Ohio corporation with its principal place of business in Norwalk. The plaintiff alleged that it is a subsidiary of a Delaware corporation and is primarily engaged in “automation, instrumentation and robotics activities . . . .” The plaintiff further alleged that the defendant, Mohamed N. Zaharna, entered into an. employment contract with the plaintiff in which he agreed to serve as its president and chief executive officer, effective April 1, 1999, and served in that position until April 1, 2001. By the agreement’s terms, the defendant’s “principal office and location of employment will be located at Norwalk, Connecticut or such other place as shall be determined by the [plaintiff]

The plaintiff further alleged “on information and belief’ that the defendant disputes the validity and enforceability of some provisions of the employment agreement dealing with compensation, termination and benefits, and that the defendant denies that the agreement is enforceable with respect to all of the rights, benefits and obligations of the parties relating to his employment and termination. The plaintiff sought a judicial determination to settle the “actual bona fide and substantial questions and issues in dispute between the parties and substantive uncertainty of legal relations between them . . . .” The plaintiff’s complaint sought relief in the form of a declaratory judgment.

On January 11, 2002, the defendant filed a motion to dismiss, alleging lack of personal jurisdiction, lack of subject matter jurisdiction and improper venue. The record reflects that the defendant had filed a complaint against the plaintiff in an Ohio state court based on the same nucleus of operative facts that the plaintiff in its present complaint alleged were in dispute between the parties. The court, in granting the motion to dismiss on the basis of lack of subject matter jurisdiction only, concluded that the allegations made by the plaintiff “upon information and belief” were insufficient to support a claim that an actual dispute or controversy existed and were, therefore, nonjusticiable. The court found those allegations to be conclusory in nature and insufficient to establish the existence of an actual dispute between the parties. Because the court concluded that it lacked subject matter jurisdiction to adjudicate the action, it did not address the issues of personal jurisdiction or forum non conveniens.

The applicable standard of review is well established. “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998).

“Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. ... If a court lacks subject matter jurisdiction to hear and determine cases of the general class to which the proceedings in question belong, it is axiomatic that a court also lacks the authority to enter orders pursuant to such proceedings.” (Citations omitted; internal quotation marks omitted.) Speight v. Office of Victim Services, 61 Conn. App. 151, 154, 763 A.2d 25 (2000). We must determine whether the court had subject matter jurisdiction to entertain the plaintiffs complaint. We are mindful that “[a] court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . .” (Internal quotation marks omitted.) Id. “[W]here a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 221, 676 A.2d 844 (1996).

The plaintiff argues that there was sufficient evidence before the court to demonstrate the existence of an actual dispute even if the complaint itself did not expressly reflect the existence of such controversy. Specifically, the plaintiff points out that the court had before it a disclosure by the defendant, in its memorandum of law in support of its motion to dismiss, of an action instituted by him in an Ohio court that was “based on the same nucleus of operative facts” on which the plaintiff based the present action. The defendant also had attached to his memorandum of law a copy of his Ohio complaint, which, the plaintiff argues, acts as an “admission” that an actual controversy existed between the parties, as reflected in the plaintiffs complaint. Although we agree that the court may have been free to consider the entire record before it, and not merely the pleadings as such, we find it unnecessary to address the issue as to whether the defendant admitted the existence of an actual dispute because we conclude that allegations pleaded on “information and belief’ in this case are sufficient to establish a cause of action for a declaratory judgment.

The interpretation of pleadings is an issue of law. As such, our review of the court’s decisions in that regard is plenary. Forte v. Citicorp Mortgage, Inc., 66 Conn. App. 475, 483-84, 784 A.2d 1024 (2001). In determining whether a complaint is subject to dismissal for lack of jurisdiction, “a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998).

“The modem trend, which is followed in Connecticut, is to constme pleadings broadly and realistically, rather than narrowly and technically. . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” (Internal quotation marks omitted.) Forte v. Citicorp Mortgage, Inc., supra, 66 Conn. App. 484-85.

Practice Book § 17-54 provides that the court may award declaratory relief “as to the existence or nonexistence (1) of any right, power, privilege or immunity; or (2) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future.” Practice Book § 17-55 permits a court to award such relief if the following conditions are met: “(1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party’s rights or other jural relations; (2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and (3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure.”

The issue presented is whether the plaintiffs complaint, which includes seven paragraphs pleaded “on information and belief,” is sufficient to satisfy the requirements of Practice Book § 17-55 (2). We conclude, in these circumstances, that it is sufficient to state a cause of action for declaratory judgment. The court must accept as true the facts alleged in the complaint. Waters v. Autuori, 236 Conn. 820, 822, 676 A.2d 357 (1996). The form of the allegations are not per se insufficient to demonstrate the existence of a substantial controversy. The substance of the allegations is an assertion that the agreement of employment is valid and enforceable, and that the defendant disputes that proposition. As a fact pleading state, we do not exalt form over substance, particularly when we indulge every presumption in favor of subject matter jurisdiction. We do not agree that the allegations are conclusory in nature because of the form employed by the plaintiff in its complaint.

Because the court did not lack subject matter jurisdiction to adjudicate the complaint, it improperly granted the defendant’s motion to dismiss. The matter must be remanded, however, for the court’s determination of whether personal jurisdiction over the defendant is lacking and whether the common-law doctrine of forum non conveniens should be applied.

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

In this opinion the other judges concurred.

       Specifically, the relief sought was a determination that: “(a) the supplemental p ension pro vision of the Employment Agreement is valid and enforceable; (b) the incentive compensation provision of the Employment Agreement is valid and enforceable; (c) the ‘Other Benefits’ provision of the Employment Agreement does not obligate that [the defendant] be provided with anotherposition; (d) the termination provision of the Employment Agreement is valid and enforceable; (e) the ‘zipper clause’ of the Employment Agreement [providing, inter alia, that the agreement constitutes the entire agreement between the parties with respect to the defendant’s employment] precludes any claims based on alleged oral or written prior understandings, representations, or agreements with respect to his Employment [Agreement;] (f) the ‘General Release’ provision of the Employment Agreement precludes any claims based on any actual or alleged act, omission, transaction, practice, conduct, occurrence or other matter up to and including the date [the defendant] executed his Employment [Agreement;] (g) the Employment Agreement is controlling with respect to all of the rights, benefits and obligations of the parties in connection with [the defendant’s] employment and termination from [the plaintiff].”

       The parties briefed both those grounds and requested that we address them either as “other grounds” to support the granting of the motion to dismiss, as the defendant asserts, or to conclude, as the plaintiff argues, that “no other grounds exist that support the granting of a motion to dismiss. ” Those issues were raised at trial, but the court resolved the matter solely on the basis of subject matter jurisdiction. Accordingly, we decline to comment on those alternate issues. See Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims neither addressed nor decided by trial court are not properly before appellate tribunal).

       The record reflects that the defendant filed the Ohio complaint subsequent to the commencement of the present action.

       Paragraphs twelve through eighteen alleged:
      “12. On information and belief, [the defendant] disputes the validity and enforceability of the supplemental pension provision of the Employment Agreement.
      “13. On information and belief, [the defendant] disputes the validity and enforceability of the incentive compensation provision of the Employment Agreement
      “14. On information and belief, [the defendant] believes the ‘Other Benefits’ provision of the Employment Agreement obligates that he be provided with another position upon his termination from [the plaintiff] as aperquisite or term and condition of his employment.
      “15. On information and belief, [the defendant] disputes the validity and enforceability of the termination provision of the Employment Agreement.
      “16. On information and belief, [the defendant] disputes the validity and enforceability of the ‘zipper clause’ of the Employment Agreement [providing, inter alia, that the agreement constitutes the entire agreement between the parties with respect to the defendant’s employment].
      “17. On information and belief, [the defendant] disputes the validity and enforceability of the ‘General Release’ provision of the Employment Agreement.
      “18. On information and belief, [the defendant] denies that the Employment Agreement is controlling with respect to all of the rights, benefits and obligations of the parties relating to his employment and termination.”


author: FLYNN, J.

text:
    JOHN SERRA v. CITY OF WEST HAVEN ET AL.
    (AC 22992)
    Flynn, Bishop and West, Js.

      Argued February 10
    officially released June 3, 2003

      Vincent R. Falcone, for the appellant (plaintiff).

      Kenneth J. Mastroni, for the appellee (named defendant).
   Opinion

FLYNN, J.

The plaintiff, John Serra, appeals from the summary judgment rendered by the trial court in favor of the defendant city of West Haven. On appeal, the plaintiff claims that the court improperly held that West Haven was obligated to provide only the statutory minimum $20,000 in uninsured-underinsured motorists coverage despite what he claims is evidence that West Haven had expressly agreed to provide $50,000 in such benefits. We affirm the judgment of the trial court because we conclude that West Haven, pursuant to our precedent in Boynton v. New Haven, 63 Conn. App. 815, 779 A.2d 186, cert. denied, 258 Conn. 905, 782 A.2d 136 (2001), was statutorily bound to provide only the $20,000 minimum underinsured motorists coverage and that such sum was obligated only if the tortfeasor lacked coverage for that minimum.

The following facts are not in dispute. On April 2, 1999, the plaintiff, a West Haven police officer, was injured in an automobile accident when his police vehicle was struck by another automobile. The plaintiffs police vehicle was owned by West Haven and used as a police emergency vehicle. The accident was due to the negligence of the other driver (tortfeasor) with whom the plaintiff settled his claim for $20,000, the full amount of insurance coverage available under the tortfeasor’s liability insurance policy.

The plaintiff then filed a claim with West Haven, claiming that his damages were in excess of the $20,000 policy limit of the tortfeasor. He sought coverage from West Haven claiming that by virtue of its purchase of an excess liability policy with a self-insured retention of $50,000, West Haven, by opting for that self-insured retention, had an obligation to provide the plaintiff with $50,000 of underinsured motorists coverage. Additionally, the plaintiff sought excess coverage from West Haven’s insurer, Coregis Insurance Company (Coregis), which provided the defendant an additional $950,000 in insurance coverage. After West Haven refused to settle the plaintiffs claim, the plaintiff commenced an action in the Superior Court.

West Haven moved for summary judgment on the basis of two alternate arguments. First, West Haven argued that summary judgment should be granted on the ground that it does not have an obligation to provide underinsured motorists benefits for an “authorized emergency vehicle.” This issue is not before us on appeal. Second, West Haven argued that summary judgment should be granted on the ground that the coverage available from the other driver’s policy is equal to or greater than the coverage that West Haven is statutorily required to provide.

The court held in relevant part, relying on Boynton v. New Haven, supra, 63 Conn. App. 815, that although West Haven was required to provide at least the minimum underinsured motorists benefits, the plaintiff, already having recovered that amount from the tortfeasor, was foreclosed from further recovery from West Haven. This appeal followed.

The standard employed in reviewing a trial court’s decision to render summary judgment is well established. When material facts are not in dispute, we must determine whether the moving party was entitled to judgment as a matter of law. Id., 819. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Preston v. O’Rourke, 74 Conn. App. 301, 306, 811 A.2d 753 (2002). Where, as here, neither party has claimed that this case concerns disputed material facts, we are concerned only with West Haven’s right to judgment as a matter of law. The only questions of law in this case concern statutory construction. Accordingly our review is plenary. See Boynton v. New Haven, supra, 63 Conn. App. 819.

We first address the plaintiffs claim that the court improperly concluded, as a matter of law, that West Haven was obligated to provide no more than the statutory minimum benefits for underinsured motorist coverage. The plaintiff argues that, although West Haven may not have been obligated to provide more than the statutory minimum benefits, the “overwhelming evidence [demonstrated] that . . . [West Haven] provided [underinsured motorist] coverage in the amount of $50,000 on the date the [p]laintiff sustained his injuries” in addition to maintaining an excess insurance policy in the amount of $950,000. Further, the plaintiff contends that the insurance policy between West Haven and Coregis “shows that the policy has a self-insured retention of $50,000, which applied to both the general liability limits and the uninsured motorist benefits provided by the policy. . . . [This policy] is clear evidence that [West Haven] intended to and did provide its employees with $50,000 in [underinsured motorist] benefits on the date of the accident.” The plaintiff cites as further evidence that West Haven did provide more than the statutory minimum underinsured motorists benefits to its employees the fact that he is personally aware that benefit payments in excess of the statutory minimum were previously paid by West Haven on underinsured motorists claims involving police vehicles, and he was led to believe that he was entitled to receive these benefits.

West Haven counters that because it is a self-insured entity, it does not have to provide more than the statutory $20,000 minimum underinsured motorists coverage, and, accordingly, it was entitled to judgment as a matter of law. We agree that the policy references to the $50,000 self-insured retention did not create a legal liability in excess of the statutory minimum of $20,000 for underinsured motorists coverage.

As we held in Boynton v. New Haven, supra, 63 Conn. App. 829, where a municipality simultaneously plays the role of self-insurer and self-insured, a plaintiff can recover only “the statutory minimum amount of under-insured motorist coverage because the applicable statutes impose no greater obligation on the city.” In Boynton, the city of New Haven was a fully self-insured municipality that had not filed with the insurance commissioner’s office any notice of its limitations of under-insured motorists coverage, as is also true in the present case. We explained that self-insurers are treated no differently than commercial insurers, and General Statutes §§ 14-129 and 38a-371 (c) “do not impose greater liability on a self-insurer than they impose on a commercial insurer. . . . The fiscal responsibility, therefore, is the same for a sell-insurer as it is for a commercial insurer.” Boynton v. New Haven, supra, 822-23. Where a fully self-insured municipality had not defined its limits of underinsured motorists coverage, we refused to find the city’s liability to be unlimited, and, instead, held that “[t]he applicability of the statutory minimum is reasonable because the exposure of commercial insurers is not unlimited.” Id., 827. We see no reason to depart from that precedent in this case. West Haven was no less a self-insurer than New Haven merely because it purchased excess coverage where, apparently, New Haven had not.

Although the present case is distinguishable because West Haven is not a fully self-insured municipality and, therefore, its liability would not be unlimited, we conclude that this difference is not controlling and the reasoning of Boynton applies. The fact that West Haven has a $50,000 self-insured retention policy does not remove the presumption that a self-insured municipality elects the statutory minimum amount of coverage in the absence of a writing to the commissioner stating otherwise. See generally id., 827. A self-insured retention does not create a legal obligation to third parties. It means only that if a legal obligation otherwise exists arising out of a statute or contract, for example, the party retaining that risk must bear the loss without indemnity.

The plaintiff also argues that because West Haven never filed a notice with the commissioner that it was self-insured and never received a certificate of self-insurance, in accordance with §§ 14-129 and 38a-371, it was not legally self-insured. The plaintiff, although mentioning this in his appellate brief and at oral argument, provides no legal analysis as to what effect, if any, this would have on his claim if true, and, therefore, we do not address it because it is inadequately briefed.

In this case, the plaintiff has cited nothing in the documentation before the trial court or in the record provided on appeal that created any legal obligation on the part of West Haven to pay more than the $20,000 minimum coverage required by § 14-112. He cites no collective labor contract that would require such a payment, nor does he cite any individual contract of employment that would do likewise. He cites no statutes that would create such an obligation. Although he recites an “expectancy” that he had by virtue of the fact that West Haven had paid claims in the past, and although West Haven admits that it did provide such payments prior to our holding in Boynton v. New Haven, supra, 63 Conn. App. 815, the plaintiff provides no legal authority or analysis on a claim relating to expectancy or estoppel, nor do we construe his complaint to make such a claim.

The plaintiff also argues that the fact that the Coregis insurance policy would provide coverage for underinsured motorist claims in excess of $50,000 would create “an absurd result” and would result in a “reductio ad absurdum” were we to affirm the trial court’s judgment that the $50,000 self-insured retention provision did not provide a legal obligation for West Haven to provide that amount in underinsured motorists coverage. Underlying that argument is a contention that if the court’s decision were to be affirmed, an insured, like the plaintiff, could never access the underinsured motorists coverage provided where the tortfeasor maintained only the statutory minimum liability insurance of $20,000. Such a result is not mandated, however.

We illustrate two scenarios in which an insured, like the plaintiff, might reach the excess coverage for under-insured motorists claims after looking to the policy itself. The language of the commercial automobile “Connecticut Uninsured and Underinsured Motorists Coverage” endorsement page of the Coregis excess policy provides in relevant part that Coregis “will pay all sums the insured is legally entitled to recover as compensatory damages from the owner or driver of an uninsured motor vehicle. The damages must result from bodily injury sustained by the insured caused by an accident. The owner’s or driver’s liability for these damages must result from the ownership, maintenance or use of [an] uninsured motor vehicle or underinsured motor vehicle.” (Internal quotation marks omitted.) Therefore, even if only $20,000 is available from a tortfeasor’s insurance or from a self-insured municipality that does not elect to self-insure for more than the $20,000 minimum underinsured motorists coverage mandated by statute, nothing prevents a claimant from litigating and establishing the tortfeasor’s liability to him in an amount greater than his insurance coverage. As long as the liability of the tortfeasor exceeds the $50,000 liability that triggers the excess policy, the insurance company, in this case Coregis, appears to be obligated by the language of the policy to provide benefits once that floor is reached even if the tortfeasor maintained only $20,000 in liability insurance coverage.

The second way to reach the excess policy, as was conceded by the plaintiff at oral argument, may be where the tortfeasor’s liability policy meets or exceeds the $50,000 threshold, and the claimant exhausts that policy and then seeks the excess insurance coverage.

Nevertheless, despite these apparent methods of reaching the excess policy, a claimant also has a right to settle the legal liability of the tortfeasor for a sum less than his sustained damages, which might be in excess of $50,000, thereby limiting the liability of the tortfeasor to the claimant to less than the threshold that triggers the coverage under the excess policy. It appears that the plaintiff, here, chose to exercise such a right in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant West Haven’s insurance carrier, Coregis Insurance Company, also was named as a defendant in this action. This appeal, however, concerns only the summary judgment rendered in favor of West Haven.

       For convenience we will refer to underinsured motorist coverage as encompassing both uninsured and underinsured motorists See Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 21 n.4, 699 A.2d 964 (1997).

       The public entity excess automobile liability declaration page of West Haven’s policy with its insurance earlier, Coregis Insurance Company, indicates that West Haven has a self-insured retention of $50,000 per occurrence. The “Schedule of Coverages” section on this form indicates that. West, Haven is covered in the amount of $950,000 each for automobile liability and uninsured motorists and underinsured motorists protection.
      The commercial automobile “Connecticut Uninsured and Underinsured Motorists Coverage” endorsement indicates that the endorsement is effective July 1, 1997, and sets forth a $950,000 limit of insurance for each accident. The policy indicates, below the statement, “If indicated by an ‘X’ in the box to the left or in the Declarations, Underinsured Motorists Conversion Coverage applies.” However, no “X” has been placed in this box to indicate that this conversion coverage applies. Underinsured motorists conversion coverage is authorized under General Statutes § 38a-336a. “This option, which is available for an additional premium to consumers who wish to purchase it in lieu of standard, underinsured motorist coverage under § 38a-336, provides enhanced protection to victims of underinsured motorists because, in contrast to coverage under § 38a-336, it is activated when the sum of all payments received by or on behalf of the covered person from or on behalf of the tortfeasor are less than the fair, just and reasonable damages of the covered person." (Emphasis in original; internal quotation marks omitted.) Florestal v. Government Employees Ins. Co., 236 Conn. 299, 307, 673 A.2d 474 (1996).
      We conclude that the court properly determined that West Haven is a self-insured entity required to provide only $20,000 minimum coverage, and because the plaintiff already has recovered that amount, this recovery forecloses further recovery from West Haven.

         In its memorandum of decision, the court concluded that although the Ford Crown Victoria police vehicle, which the plaintiff was driving at the time of the accident, was an “authorized emergency vehicle” pursuant to General Statutes § 14-1 (a) (4), it was also a private passenger motor vehicle as provided in General Statutes § 38a-363 (e), and West Haven, therefore, was obligated to provide at least the minimum underinsured motorists benefits on that vehicle. Whether underinsured motorists coverage must be provided for an “authorized emergency vehicle” is not at issue here because the court found against West Haven on that issue and West Haven did not file a cross appeal.


author: DRANGINIS, J.

text:
    DONALD J. GHENT v. MEADOWHAVEN CONDOMINIUM, INC., ET AL. DONALD J. GHENT, JR., ET AL. v. MEADOWHAVEN CONDOMINIUM, INC., ET AL. NORTHERN HOMES DISTRIBUTORS, INC., ET AL. v. MEADOWHAVEN CONDOMINIUM, INC., ET AL. ROBERT E. GHENT ET AL. v. MEADOWHAVEN CONDOMINIUM, INC., ET AL. LAURINE H. GHENT v. MEADOWHAVEN CONDOMINIUM, INC., ET AL.
    (AC 22076)
    Dranginis, Bishop and Dupont, Js.

      Argued January 9
    officially released June 10, 2003

      Robert E. Ghent, for the appellants (plaintiffs).

      Eugene S. Melchionne, pro se, the appellee (defendant).
   Opinion

DRANGINIS, J.

These cases are before this court because the plaintiffs persist in seeking a remedy for a harm that they have not suffered and because the defendant attorney continues to refuse to provide the plaintiffs with releases of notices of lis pendens that, although it may not have been necessary for him to provide under the facts of this case, he should have provided as a matter of professional courtesy.

The plaintiffs in these cases, Donald J. Ghent, Donald J. Ghent, Jr., Elizabeth Ghent, Northern Homes Distributors, Inc., Robert E. Ghent, Arlene V. Ghent and Laurine H. Ghent, are condominium unit owners in a condominium association known as Meadowhaven Condominium, Inc. (Meadowhaven). The defendant is Eugene S. Melchionne, the attorney who represented Meadowhaven in underlying foreclosure actions that Meadowhaven brought against the plaintiffs.

The relevant facts are as follows. On June 19, 1996, Melchionne filed foreclosure actions against the plaintiffs to recover overdue condominium expense assessments owed by the plaintiffs to Meadowhaven, Melchionne’s then client. Melchionne also filed notices of lis pendens on the plaintiffs’ properties in the Waterbury land records. On August 25, 1997, the court rendered judgments of strict foreclosure in favor of Meadowhaven and against the plaintiffs. The court set October 14, 1997, as the plaintiffs’ law day. Late in the afternoon of October 14, 1997, the plaintiffs paid to Melchionne the sum of $23,176, which fully satisfied the foreclosure judgments against them. Thereafter, Melchionne issued certificates of satisfaction of the judgments of foreclosure in favor of the plaintiffs. He sent duplicate originals to the plaintiffs and filed the originals with the clerk of the court.

Although the plaintiffs received the certificates of satisfaction of judgment, they did not file the certificates on the Waterbury land records. Instead, on October 20, 1997, the plaintiffs’ attorney sent a letter to Melchionne. In that letter, the plaintiffs’ attorney acknowledged receipt of the certificates of satisfaction of judgment. Additionally, the plaintiffs’ attorney stated that he believed that it also was necessary for Melchionne to provide the plaintiffs with releases of the notices of lis pendens. Melchionne declined to do so.

Thereafter, on November 21, 2000, the plaintiffs filed petitions for the discharge of each lis pendens pursuant to General Statutes §§ 49-13 and 49-8. In then petitions, the plaintiffs sought, pursuant to § 49-13 (c), to have the court render judgment declaring invalid each notice of lis pendens that Melchionne had placed on the land records in connection with the foreclosure actions. They also sought damages and attorney’s fees pursuant to § 49-8 (c).

On January 29, 2001, Melchionne filed motions for summary judgment in which he contended that there were no genuine issues of material fact in dispute and that he was entitled to judgments as a matter of law. He argued that the plaintiffs were not entitled to relief under § 49-13 (c) or damages under § 49-8 (c) because the lis pendens had not become “of no effect” as required by § 49-13 (c).

The plaintiffs, in turn, filed objections to Melchionne’s summary judgment motions and filed cross motions for summary judgment in which they argued that there were no genuine issues of material fact in dispute and that they were entitled to judgments as a matter of law. They maintained that by satisfying the foreclosure judgments on the underlying liens, which were the subject of the notices of lis pendens, the lis pendens were rendered “of no effect” and, therefore, they were entitled to judgments as a matter of law. They further maintained that in addition to orders discharging the lis pendens, they were entitled to damages under § 49-8 (c) because Melchionne had failed to release the lis pendens within sixty days of the date of their request to do so as set forth in § 49-13 (a). Finally, the plaintiffs argued that they did not file the certificates of satisfaction of judgment provided to them by Melchionne because he had issued that certificate pursuant to General Statutes § 49-21, which authorizes the filing of a certificate of satisfaction of judgment by a subsequent encumbrancer who redeems by his assigned law day. According to the plaintiffs, § 49-21 is inapplicable in situations in which, as is the case here, the owner of the property has redeemed by his assigned law day.

The court denied the plaintiffs’ motions for summary judgment. It concluded that, if properly recorded on the land records, the certificates of satisfaction of judgment that Melchionne had provided to the plaintiffs would relate back to the filing of the notices of lis pendenses and, in and of themselves, provide adequate notice that the properties are free of the underlying liens that were the subject of the lis pendens. The court reasoned that the purpose of § 49-21, which is to provide a method of establishing the status of claims relating to the subject property, would have been served had the plaintiffs filed the certificates of satisfaction of judgment on the land records as set forth in § 49-21. Consequently, the court concluded that the plaintiffs were not entitled to discharge of the notices of lis pendens pursuant to § 49-13 (c) or damages pursuant to § 49-8 (c) because to hold otherwise would promote form over substance. The court then rendered summary judgments in favor of Melchionne and denied the plaintiffs’ motions for summary judgment. The plaintiffs appeal from those judgments.

“Our standard of review of a court’s decision to grant a motion for summary judgment is well established. Practice Book § 17-49 provides in relevant part that summary judgment shall be rendered forthwith if the 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. . . .

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” (Internal quotation marks omitted.) Brzezinek v. Covenant Ins. Co., 74 Conn. App. 1, 4, 810 A.2d 306 (2002), cert. denied, 262 Conn. 946, 815 A.2d 674 (2003).

The plaintiffs claim that the court improperly granted Melchionne’s motions for summary judgment and failed to grant their motions for summary judgment. Specifically, they claim that the court improperly (1) failed to apply General Statutes § 52-322, which expressly required Melchionne to execute and deliver releases of lis pendens once the plaintiffs satisfied the judgments against them, (2) applied § 49-21, where the statutory predicate to the application of § 49-21 had not been met and (3) rendered the provisions of General Statutes § § 52-326,52-322,49-13 and 49-8 (b) superfluous in holding that after the owner of the equity of redemption redeems by paying the debt, he is then required to record a certified copy of both the certificate of satisfaction of judgment and the judgment of foreclosure in accordance with § 49-21. We address each of those claims in turn.

I

The plaintiffs first claim that the court improperly failed to apply § 52-322 to the facts of this case. We disagree.

The plaintiffs did not bring their petitions for discharge pursuant to § 52-322. Their petitions refer, instead, to § 49-13. Additionally, the plaintiffs seem to argue that because they satisfied the judgments and because Melchionne did not provide a release of lis pendens after they requested him to do so pursuant to § 52-322, the court was required to grant their petitions for discharge of lis pendens as a matter of law. We disagree that § 49-13 (c) requires any such result.

Section 49-13 (c) provides in relevant part that “if the court finds the . . . lis pendens . . . has become of no effect, the court may render a judgment reciting the facts and its findings in relation thereto and declaring the ... lis pendens . . . invalid as a lien against the real estate . . . .” (Emphasis added.) We find no language in § 49-13 (c) that fairly could be interpreted to require the court to render judgment in favor of the plaintiffs under any set of circumstances. The statute provides that the court may render a judgment declaring the lis pendens invalid; our Supreme Court consistently has held that may is discretionary rather than mandatory. See Waterbury v. Washington, 260 Conn. 506, 531, 800 A.2d 1102 (2002); Seals v. Hickey, 186 Conn. 337, 345-47, 441 A.2d 604 (1982). Moreover, our Supreme Court has concluded that if the petitioner can bring himself within the confines of the statute, the trial court’s authority to grant relief under § 49-13 is discretionary rather than mandatory. See Lesser v. Lesser, 134 Conn. 418, 425, 58 A.2d 512 (1948); Arnold v. Hollister, 131 Conn. 34, 38-39, 37 A.2d 695 (1944).

We conclude that the plaintiffs in the present cases have not brought themselves within the confines of the statute and, therefore, the court correctly determined that Melchionne was entitled to judgments as a matter of law.

Section “49-13 authorizes an action in which affirmative relief may be granted if, and only if, the requirements of the statute are met.” Simonelli v. Fitzgerald, 156 Conn. 49, 53, 238 A.2d 418 (1968). It provides in relevant part: “When the record title to real property is encumbered ... (3) by [a] . . . lis pendens or other lien which has become of no effect, the person owning the property . . . may bring a petition to the superior court within the judicial district in which the property is situated, setting forth the facts and claiming a judgment as hereinafter provided. . . .” (Emphasis added.) General Statutes § 49-13 (a).

Generally, a notice of lis pendens is simply a notice that, when properly recorded, warns third parties, such as prospective purchasers, that the title to the property is in litigation; “[t]he doctrine underlying lis pendens is that a person who deals with property while it is in litigation does so at his peril . . . .” (Internal quotation marks omitted.) Williams v. Bartlett, 189 Conn. 471, 480, 457 A.2d 290, appeal dismissed, 464 U.S. 801, 104 S. Ct. 46, 78 L. Ed. 2d 67 (1983). An encumbrance is a burden on the title and, as such, impedes its transfer. Ballentine’s Law Dictionary (3d Ed. 1969).

“In certain types of actions, such as a quiet title action brought by a person claiming by adverse possession, a lis pendens rises to the level of an independent encumbrance in favor of that person, who otherwise has no record interest in the subject property. In a foreclosure of a . . . lien . . . the lis pendens does not create an interest that is separate and distinct from the underlying interest being foreclosed. The sole purpose of the lis pendens in such an action is to give constructive notice to persons who may subsequently acquire an interest in the property, and cause them to be bound by the proceedings. Consequently, if the underlying . . . lien has been released, the continued presence of an unreleased lis pendens noticing a foreclosure of that encumbrance is inconsequential and does not impair marketability.” Connecticut Bar Association, Connecticut Standards of Title (1999) standard 18.6, comment four. In other words, in such circumstances, the lis pendens is not an encumbrance or burden on the record title of the subject property. “Failure to release a lis pendens, which gives notice of the pendency of an action to foreclose a mortgage or lien, does not impair marketability if the underlying mortgage or hen has itself been released or if there has been a final judgment in the foreclosure action . . . .” Id., standard 18.6.

In the present case, the sole purpose of the notices of lis pendens was to provide notice of the foreclosure proceedings regarding the condominium fees; they did not rise to the level of independent encumbrances on the plaintiffs’ properties. Furthermore, once the foreclosure judgments entered and the plaintiffs satisfied the judgments and Melchionne provided the plaintiffs with certificates of satisfaction of judgment evidencing that the judgments had been satisfied, any unreleased lis pendens would have become of no consequence. Moreover, the plaintiffs failed to offer any proof that their properties were encumbered by the unreleased lis pen-dens such that it has impaired the marketability of title. On the contrary, the plaintiffs conceded at oral argument that since the time of judgment, they have sold at least one of their six condominium units, providing the buyer with good title. Accordingly, we conclude that because the plaintiffs’ properties were not encumbered by the notices of lis pendens, they could not properly invoke the court’s authority under § 49-13 (c) to discharge the lis pendens as liens against the properties.

Our holding is in keeping with the court’s reasoning that it should not declare the lis pendens invalid as a hen because in doing so it would be performing an unnecessary act. We agree with the court that the law does not require the performance of an unnecessary or useless act. Barrett-Nonpareil, Inc. v. Stoll, 168 Conn. 79, 83, 357 A.2d 481 (1975). The court noted that the statutory purpose of providing notice of the status of claims relating to the subject property would have been served had the plaintiffs filed a certified copy of the certificates of the satisfaction of judgment on the land records, as provided by § 49-21. In so doing, the court recognized that once the foreclosure judgments entered and subsequently were satisfied, the unreleased lis pen-dens, which simply noticed the foreclosure proceedings, was of no consequence and, therefore, it was unnecessary for the court to declare the lis pendens invalid as hens against the property.

II

The plaintiffs next claim that the certificates of satisfaction of judgment that Melchionne issued to them pursuant to § 49-21 could not properly be filed on the land records because § 49-21 is inapplicable to the facts of this case. That claim is without merit.

Section 49-21 provides: “When, in any action of foreclosure, any defendant has paid the debt and costs and the title to the mortgaged premises has become absolute in such defendant, or any person claiming under him, in accordance with the provisions of sections 49-19 and 49-20, the plaintiff or person receiving such payment, either in person or by his agent or attorney, shall sign and deliver to the defendant a certificate of satisfaction of the judgment of foreclosure stating the name and residence of the defendant. The certificate shall be filed by him forthwith with the clerk of the court in which the judgment was rendered. A certified copy of the certificate of satisfaction of judgment, and of the judgment, or of a certificate of judgment of strict foreclosure or a certificate of judgment of foreclosure by sale shall be forthwith filed by the defendant for record in the land records of the town where such premises are situated.”

The plaintiffs claim that § 49-21 is inapplicable because the statutoiy predicate to the application of § 49-21 had not been met. Specifically, they claim that § 49-21 is inapplicable because in the underlying foreclosure actions, title never vested absolutely in any defendant, which vesting is a condition precedent to the applicability of § 49-21. We disagree.

Comment one of standard 19.7 of the standards of title proves helpful in resolving the plaintiffs’ claim. It provides in relevant part that § 49-21 “requires that a plaintiff in a foreclosure action provide a redeeming defendant with a certificate of satisfaction of judgment, stating the name and residence of the redeeming party. That person is then required to file the satisfaction of judgment with the clerk of the court in which the judgment was rendered. The redeeming defendant must then obtain from the clerk of the court, and record on the land records, both a certified copy of the satisfaction of judgment and the original certificate of judgment of strict foreclosure or certificate of judgment of foreclosure by sale.

“When a defendant owner redeems, whether it be in a strict foreclosure or in aforeclosure by sale, no transfer of title occurs. All that occurs is that the owner has satisfied the judgment and has thereby avoided what otherwise would have been the effect of the decree, viz. an extinguishment of the equity of redemption.” (Emphasis added.) Connecticut Bar Association, Standards of Title, supra, standard 19.7, comment one; see also D. Caron, Connecticut Foreclosures (3d Ed. 1997) § 9.02C, p. 239.

Accordingly, we conclude that where, as here, a defendant owner redeems, title need not become absolute in the defendant owner as a condition precedent to the applicability of § 49-21.

Furthermore, the plaintiffs seem to argue that it would be inappropriate for them to file the certificates of satisfaction of judgment on the land records because the certificates will indicate to a title searcher that title has, in fact, vested in the plaintiffs and, therefore, the certificates will cloud title to the property further. That argument is without merit because, as we have stated, when a defendant owner redeems, no transfer of title occurs. See Connecticut Bar Association, Standards of Title, supra, standard 19.7. We also note that even when a subsequent encumbrancer redeems, the effect of redemption is determined not by the satisfaction of judgment, but rather by the terms of the foreclosure decree. See id., standard 19.7 (c). “The satisfaction of judgment and the certificate of judgment of strict foreclosure are not the muniments of title.” Id.

Ill

Finally, the plaintiffs claim that the court improperly rendered the provisions of §§ 52-326, 52-322, 49-13 and 49-8 superfluous in holding that when the owner of the equity of redemption redeems by paying the debt, he or she is required to record a certified copy of both the certificate of satisfaction of judgment and the judgment of foreclosure on the land records in accordance with § 49-21.

Specifically, the plaintiffs assert that the court “erred in ruling that the plaintiffs are required to file a certified copy of the certificate of satisfaction and of the judgment on the land records pursuant to § 49-21 because the court’s ruling conflicts with the statutory procedures set forth in §§ 52-322, 52-326, 49-8 and 49-13 of the General Statutes.” The plaintiffs have failed, however, to provide this court with any analysis supporting that assertion. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis.” (Internal quotation marks omitted.) Wachter v. UDV North America, Inc., 75 Conn. App. 538, 545-46, 816 A.2d 668 (2003).

The judgment is affirmed.

In this opinion the other judges concurred.

       The named defendant, Meadowhaven Condominium, Inc., is no longer a defendant in this action. In a memorandum of decision dated November 6, 2001, the trial court granted Meadowhaven’s motion to dismiss on the ground that the court lacked subject matter jurisdiction because the plaintiffs had failed to comply strictly with General Statutes §§ 49-8 and 49-13. On November 26, 2001, the plaintiff Richard E. Ghent appealed from that judgment. On January 10, 2002, this court dismissed that appeal for failure to prosecute.
      We conclude that §§ 49-8 and 49-13 act as a limitation on the trial court’s general authority to grant relief, but do not involve its subject matter jurisdiction and, therefore, that the court had jurisdiction to render summary judgment in this case. See generally Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999) (“[although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. ‘The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute’ ”); see also Gordon v. Tufano, 188 Conn. 477, 486-87, 450 A.2d 852 (1982) (Shea, J., concurring); Ratick v. Scalo, 165 Conn. 675, 345 A.2d 26 (1974); Ravitch v. Stollman Poultry Farms, Inc., 162 Conn. 26, 291 A.2d 213 (1971); Simonelli v. Fitzgerald, 156 Conn. 49, 238 A.2d 418 (1968); but see Gordon v. Tufano, supra, 483-86.

       General Statutes § 49-13 provides in relevant part: “(a) When the record title to real property is encumbered ... (3) by [a] . . . lis pendens or other lien which has become of no effect, the person owning the property . . . may bring a petition to the superior court within the judicial district in which the property is situated .... The plaintiff may also claim in the petition damages as set forth in section 49-8, if the plaintiff is aggrieved by the failure of the defendant to execute the release therein prescribed. . . .
      “(c) Such notice having been given . . . the court; may proceed to a hearing . . . and ... if the court finds the . . . lis pendens or other lien has become of no effect, the court may render a judgment reciting the facts and its findings in relation thereto and declaring the ... lis pendens or other lien invalid as a lien against the real estate . . . .”

       General Statutes § 49-8 (c) provides in relevant part: “The mortgagee or plaintiff or the plaintiffs attorney . . . shall execute and deliver a release within sixty days from the date a written request for a release of such encumbrance (1) was sent to such mortgagee, plaintiff or plaintiff’s attorney at the person’s last-known address .... The mortgagee or plaintiff shall be liable for damages to any person aggrieved . . . .”

       See footnote 2.

       General Statutes § 52-322 provides: “When the estate of any person has been attached in any proceeding wherein a certificate of such attachment or a copy of the writ or proceeding is required by law to be filed in the office of the town clerk, and the plaintiff therein has received satisfaction for his claim, or final judgment has been rendered against him thereon, or when for any reason such attachment has become of no effect, such plaintiff or his attorney, at the request of any person interested in the estate attached or in having the attachment lien removed, shall lodge a certificate with such town clerk that such attachment is dissolved and such hen removed. Each such certificate shall be recorded at length in a book kept for that purpose by such clerk as a part of the land records of the town wherein the property affected by the release is located or wherein the certificate of attachment was filed.”
      General Statutes § 52-326 provides in relevant part: “The provisions of 52-322 . . . shall apply, mutatis mutandis, to any lis pendens recorded according to the provisions of section 52-325 . . . .” In the present case, Melchionne filed the notice of lis pendens pursuant to § 52-325.

       In their prayers for relief, the plaintiffs expressly sought “[e]ntry of a judgment pursuant to Section 49-13 (c) declaring the lis Pendens . . . invalid

       See footnote 5.