author: SPEAR, J.

text:
    WILLIAM J. WARREN v. COMMISSIONER OF MENTAL HEALTH ET AL.
    (14140)
    O’Connell, Spear and Hennessy, Js.
    Argued February 20
    officially released April 30, 1996

      John R. Williams, for the appellant (plaintiff).

      Patricia A. Gemer, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (named defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (defendant Michael Dearington).
   SPEAR, J.

The plaintiff in this declaratory judgment action appeals from the judgment of the trial court holding that General Statutes §§ 17a-580 through 17a-603, as applied to the plaintiff, do not violate the ex post facto clause of article one, § 10, of the United States constitution. The plaintiff claims that the trial court improperly found that the statutory modifications are procedural, rather than substantive, in nature, and thus do not constitute ex post facto laws. Because we remand this case to the trial court for further proceedings, we do not reach the issue raised by the plaintiff.

The record discloses the following relevant facts and procedural history. The plaintiff was arrested on July 5, 1971, and charged with the crime of murder. On February 27, 1974, a jury found the plaintiff not guilty by reason of insanity. The plaintiff, pursuant to General Statutes (Rev. to 1972) § 53a-47 (now §§ 17a-580 through 17a-603), was committed to the custody of the defendant commissioner of mental health for an indefinite period of time not to exceed twenty-five years. Section 53a-47, which took effect approximately three months after the commission of the criminal act, was the first statute that treated insanity “acquittees” differently from persons who were otherwise involuntarily committed because of mental illness.

The plaintiff brought this declaratory judgment action requesting that the trial court declare that §§ 17a-580 through 17a-603, as applied to him, are ex post facto laws in violation of the United States constitution. The plaintiff takes specific exception to the current statutory provisions that require acquittees seeking release to prove, by a preponderance of the evidence, that they are eligible for release from psychiatric confinement. The statute in effect on the date of the plaintiffs criminal act did not place such a burden on acquittees. The plaintiff also sought an injunction prohibiting the defendants from confining the plaintiff, or placing conditions on his release, pursuant to §§ 17a-580 through 17a-603.

The trial court rejected the arguments of the plaintiff and rendered judgment in favor of the defendants. The trial court found that the statutory changes were procedural rather than substantive and thus concluded that “neither the change of the standard [of proof] nor the shift in burden [constituted] an ex post facto law as applied to [the plaintiff].” This appeal by the plaintiff followed.

“ ‘The jurisdiction of the trial court over declaratory judgment actions depends upon compliance with the notice requirement of Practice Book § 390 (d).’ ” RichTaubman Associates v. Harwyn Stamford, Inc., 35 Conn. App. 296, 299, 645 A.2d 1039 (1994); see also Mannweiler v. LaFlamme, 232 Conn. 27, 32, 653 A.2d 168 (1995); Engelman v. Connecticut General Life Ins. Co., 38 Conn. App. 134, 137, 658 A.2d 983 (1995). Section 390 provides that “[t]he court will not render declaratory judgments upon the complaint of any person . . . (d) unless all persons having an interest in the subject matter of the complaint . . . have reasonable notice thereof.” “Failure to comply with § 390 (d) deprives the trial court of subject matter jurisdiction to render a declaratory judgment. . . . [Jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here.

. . . Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon.” (Citations omitted; internal quotation marks omitted.) Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993).

Having thoroughly examined the record, we are unable to determine whether there has been compliance with § 390 (d). “The determinations of who the persons having an interest in the subject matter are and whether they have reasonable notice are factual. Such factual determinations cannot be made by this court.” (Internal quotation marks omitted.) Rich-Taubman Associates v. Harwyn Stamford, Inc., supra, 35 Conn. App. 299. We, therefore, are precluded from reaching the merits of the plaintiffs claim until the trial court has determined that the plaintiff has complied with § 390 (d).

Pursuant to our supervisory authority under Practice Book § 4183, we remand this case to the trial court and order it to conduct a hearing to determine the persons having an interest in the subject matter and whether such persons had reasonable notice. Should the trial court determine that all persons having an interest in the subject matter had reasonable notice, this appeal should be returned to this court so that we may address the merits.

Should the trial court, however, determine that there are persons having an interest in the subject matter who were not properly notified pursuant to § 390 (d), the plaintiff shall be entitled to cure this jurisdictional defect. “The trial court’s lack of subject matter jurisdiction here . . . does not require a dismissal on remand. We have recently held that [u]nlike other jurisdictional defects impheating the trial court’s subject matter jurisdiction . . . the bringing of a declaratory judgment action is not itself precluded by a failure to comply with the notice requirement.” (Internal quotation marks omitted.) Engelman v. Connecticut General Life Ins. Co., supra, 38 Conn. App. 139; see also Serrani v. Board of Ethics, supra, 225 Conn. 309 n.5. “On remand, the plaintiff may pursue further procedural efforts to cure the jurisdictional defect regarding the notice requirement.” Mannweiler v. LaFlamme, supra, 232 Conn. 36.

The case is remanded for further proceedings consistent with this opinion. In the event that the trial court determines that reasonable notice has been afforded, the appeal will be returned to this court; in the event that reasonable notice has not been afforded, the judgment is reversed and the plaintiff may pursue efforts to cure the jurisdictional defect.

In this opinion the other judges concurred.

       General Statutes §§ 17a-580 through 17a-603 strictly govern the confinement of persons found not guilty by reason of insanity.

       General Statutes § 17a-580 (1) defines “acquittee” as “any person found not guilty by reason of mental illness or defect . . .

       Practice Book § 4183 provides in relevant part: “[This] court may, on its own motion . . . remand any pending matter to the trial court for the resolution of factual issues where necessary . . . .”


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    SHADHALI, INC. v. SIRVART K. HINTLIAN ET AL.
    (14360)
    Dupont, C. J., and Lavery and Spear, Js.
    Submitted on briefs January 9
    officially released April 30, 1996

      Richard P. Weinstein and Peter B. Rustin filed a brief for the appellants (defendants).

      Timothy Sheehan filed a brief for the appellee (plaintiff).
   LAVERY, J.

This is an action to foreclose a mortgage brought by the plaintiff who is the assignee of a promissory note executed by the defendants. The defendants, Sirvart K. Hintlian and John Hintlian, appeal from the judgment of strict foreclosure rendered in favor of the plaintiff. On appeal, the defendants claim that the trial court improperly (1) relied solely on hearsay evidence concerning the amount of the debt, (2) found that the plaintiff had accelerated the note, (3) allowed late charges for a period after the note was accelerated, in calculating the amount of the debt, and (4) admitted an appraisal offered by the plaintiff that does not comport with the requirements of § 20-328-29 of the Regulations of Connecticut State Agencies. We agree with the defendants that the trial court improperly awarded late charges for a period after the note was accelerated. We, therefore, reverse the judgment of the trial court and remand for further proceedings.

The trial court found the following facts. On February 16, 1989, the defendants executed a $450,000 promissory note payable to Northeast Savings, F.A. (Northeast). The note was secured by a mortgage on property in Wethersfield. On May 14, 1993, Northeast assigned the note to the plaintiff for a payment of $446,570.26. As of that date, the principal balance due on the note was $435,620 and the defendants’ total obligation was $446,570.26. Since the date of assignment, the defendants have made no payments on the note and have failed to pay real estate taxes due to the town of Wethersfield.

The trial court rendered judgment of strict foreclosure and found that the fair market value of the property was $415,000. The trial court also found that the total amount of the debt on the note was $559,341.59. As part of that debt, the trial court awarded $3831.68 to the plaintiff representing late fees from May, 1993, to the date of trial.

I

The defendants claim that the trial court did not have sufficient evidence to determine the principal amount due on the note. The defendants argue that the trial court relied solely on two documents, an adjustment sheet and a computer printout, to determine the amount due on the note, both of which were inadmissible hearsay. We conclude that the trial court did not abuse its discretion by admitting the adjustment sheet and the computer printout as evidence of the principal due on the note.

Unless the adjustment sheet and computer printout come within an exception to the hearsay rule, the documents are inadmissible because they are out-of-court statements offered to establish the truth of the facts contained in the statements. State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985); Central Bank v. Colonial Romanelli Associates, 38 Conn. App. 575, 580, 662 A.2d 157 (1995). The trial court admitted both documents under the business records exception to the hearsay rule. See General Statutes § 52-180 (a). “General Statutes § 52-180 permits hearsay evidence to be admitted if (1) [the] writing was made in the regular course of business, (2) it was the regular coruse of the business to make such a writing, and (3) the writing was made at the time of the transaction or occurrence or within a reasonable time thereof. State v. Scott, 31 Conn. App. 660, 665, 626 A.2d 817 (1993). To qualify a document as a business record, the party offering it must present a witness who testifies that these three requirements have been met. State v. Lawler, 30 Conn. App. 827, 831-32, 622 A.2d 1040 (1993). The trial corut has discretion to determine whether the statute is satisfied and appellate courts must construe the statute liberally when reviewing abuse of discretion. State v. Scott, supra [665]; State v. Lawler, supra [832].” Connecticut Bank & Trust Co., N.A. v. Reckert, 33 Conn. App. 702, 709-10, 638 A.2d 44 (1994).

“The witness whose testimony provides the foundation for the admission of a business record must testify to the three statutory requirements, but it is not necessary that the record sought to be admitted was made by that witness or even that the witness have been employed by the business at the time the record was made. . . . Section 52-180 does not require that a business record be prepared by an organization itself in order to be admissible as a business record of that organization. ... If, however, the organization does not prepare the document itself, then the entrant must have a duty to that organization to prepare the record in order for it to be admissible under § 52-180.” (Citations omitted.) River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 794-95, 595 A.2d 839 (1991).

We hold that the trial court did not abuse its discretion by admitting the adjustment sheet and the computer printout pursuant to the business records exception to the hearsay rule. At trial, Raj Shah, vice president of the plaintiff corporation, testified that it was the business of the plaintiff corporation to invest in properties. Shah stated that an adjustment sheet is a document customarily prepared for a real estate closing and that the adjustment sheet here was prepared in the regular course of the closing between Northeast and the plaintiff contemporaneously with the transaction. Stephen Henderson, vice president of Northeast, testified that the computer printout was made in the regular course of business, that it was the regular course of business for Northeast to keep such records, and that the records were made contemporaneously with payments made by the defendants. Henderson’s testimony also indicated that he was familiar with the procedures by which Northeast enters data into its computer system. See Shawmut Bank Connecticut, N.A. v. Connecticut Limousine Service, Inc., 40 Conn. App. 268, 276-77, 670 A.2d 880 (1996). We conclude that it was not an abuse of discretion for the trial court to admit the adjustment sheet and the computer printout pursuant to § 52-180.

II

The defendants also claim that the trial court should not have assessed late charges against them through the date of trial. They claim that late charges could be assessed only until the day on which the notes were accelerated. We agree.

The applicable language of the note states that “[t]he maker agrees to pay a late charge equal to five percent (5%) of any monthly installment of principal and interest not received by the holder hereof within fifteen days of the monthly installment due date.” The trial court concluded that the plaintiff is entitled to late charges accruing after acceleration because the amount requested by the plaintiff is within a commercially reasonable range. The court awarded the plaintiff $3831.68, which represented the late fees from May, 1993, until the date of trial.

In Federal Deposit Ins. Corp. v. Napert-Boyer Partnership, 40 Conn. App. 434, 443, 671 A.2d 1303 (1996), this court held that a plaintiff may not recover late charges once the note has been accelerated and demand for payment has been made on the defendants. In that case, this court adopted the reasoning of the United States District Court for the District of Connecticut, which stated that “while a note may provide for a lender to collect late charges when an installment is not received by a due date, those installments are no longer ‘due’ after the lender has accelerated the note and made demand upon the borrower. ” Federal Deposit Ins. Corp. v. M.F.P. Realty Associates, 870 F. Sup. 451, 455 (D. Conn. 1994). We find that reasoning equally applicable to the facts of this case.

Although there is not a finding by the trial court of the date of acceleration, it had to be, at the very latest, in June, 1993, when this action was commenced. We conclude, therefore, that the trial court improperly assessed late charges against the defendants after demand for full payment was made on the note. On remand, the plaintiff is entitled to late fees only up to the date of acceleration, if proven. If the date of acceleration cannot be proven, the plaintiff is entitled to late fees up to the date on which the defendants were served with the complaint, as that is notice of acceleration.

We have carefully reviewed the remaining claims raised by the defendants and conclude that they are without merit.

The judgment is reversed only as to the use of late charges in calculating the debt and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Section 20-328-29 of the Regulations of Connecticut State Agencies was repealed on May 18, 1994.

       The trial court included the following amounts when calculating the debt: $446,570.25 (debt a.t time of assignment), $65,610.05 (interest), $3831.68 (late charges) and $43,329.60 (taxes).

       General Statutes § 52-180 (a) provides: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter. ”


text:
    PAUL WRIGHT v. UNITED TECHNOLOGIES CORPORATION/PRATT AND WHITNEY AIRCRAFT DIVISION ET AL.
    (14795)
    Dupont, C. J., and Spear and Healey, Js.
    Argued January 22
    officially released April 30, 1996

      Michael J. Belzer, assistant attorney general, with whom, on the brief, were Richard, Blumenthal, attorney general, and William J. McCullough, assistant attorney-general, for the appellant (defendant second injury fund).

      Jason M. Dodge, with whom, on the brief, was Stephen G. Ekem, for the appellees (named defendant et al).
   SPEAR, J.

The defendant second injury fund (fund) appeals from the decision of the workers’ compensation review board (board) that ordered the immediate transfer to the fund of liability for the work related injury of an employee who had a previous physical condition. The dispositive issue is whether the fund is immediately liable for such injury, or liable only after the employer pays the first 104 weeks of compensation. The resolution of this issue turns on the interplay of General Statutes §§ 31-325 and 31-349.

The board reversed the decision of the workers’ compensation commissioner for the first district (commissioner) who had transferred liability to the fund pursuant solely to § 31-349 (a) and (b). On appeal, the fund claims that the board (1) improperly engaged in fact-finding in reversing the commissioner’s decision and (2) erroneously interpreted the language of § 31-325 that entitles an employer to transfer liability immediately to the fund where a work related injury is “attributable in a material degree” to an acknowledged preexisting condition. We reverse the judgment of the board.

The record discloses the following relevant facts and procedural history. On September 17,1991, the plaintiff sustained a compensable injury to his left knee while in the course of his employment with the Pratt and Whitney Aircraft Division of United Technologies Corporation (employer). Prior to sustaining that injury, the plaintiff had executed an acknowledgment of physical defect that noted that he suffered from left knee osteoarthritis. The employer and its insurer, CIGNA (insurer), sought to transfer liability to the fund pursuant to § 31-325 or § 31-349.

On October 5,1993, the commissioner found that the plaintiffs “pre-existing condition caused the compensa-ble injury to be worse than it would have been without said condition,” and thus ordered that “liability is trans-ferrable subject to [§] 31-349,” thereby making the employer liable for the first 104 weeks of compensation. The commissioner made no finding with respect to the immediate transfer of liability to the fund pursuant to § 31-325. The employer and insurer filed a motion to correct seeking to replace the language transferring liability pursuant to § 31-349 with the following: “Based on the foregoing, I find that the claimant had a significant pre-existing left knee osteoarthritis which was the subject of an acknowledged defect . . . and that the claimant’s [present] disability ... is materially related to said defect; therefore, I find the case is transferrable to [§] 31-325.” The commissioner denied that portion of the motion to correct.

The employer and insurer then appealed from the decision of the commissioner to the board. The board sustained the appeal and ordered the fund to assume liability for the first 104 weeks of the plaintiffs disability pursuant to § 31-325. The fund now appeals from the decision of the board.

The fund first claims that the board exceeded its authority when it reversed the decision of the commissioner who ordered the transfer of liability pursuant to § 31-349 (a) and (b).

The appropriate standard applicable to the board when reviewing a decision of a compensation commissioner is well established. “[T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is obligated] to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . [T]he conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Muldoon v. Homestead Insulation Co., 231 Conn. 469, 475-76, 650 A.2d 1240 (1994); Crochiere v. Board of Education, 227 Conn. 333, 347, 630 A.2d 1027 (1993). “The commissioner’s conclusions are accorded ‘the same deference as that given to similar conclusions of a trial judge or jury on the issue of proximate cause.’ ” Muldoon v. Homestead Insulation Co., supra, 477; Fair v. People’s Savings Bank, 207 Conn. 535, 541, 542 A.2d 1118 (1988).

The requisite finding for transferring liability to the fund pursuant to § 31-349 (a) and (b) does not mirror the finding required to transfer liability pursuant to § 31-325. Section 31-349 (a) addresses situations where a permanent disability results from the combinations of the first and second injuries and the resulting disability is “materially and substantially greater than the disability that would have resulted from the second injury alone.” Section 31-349 (b) requires the employer to pay the first 104 weeks of compensation. After that time, § 31-349 (b) allows the employer to transfer liability to the fund.

Section 31-325 provides for the transfer of liability to the fund commencing with the date of the compensable injury. That statute first provides that “it shall be permissible for [an employee] to execute ... an acknowledgment of [a] physical condition . . . .” Section 31-325 further provides that the execution of such an acknowledgment “shall [not] be a bar to a claim . . . for compensation for any injury arising out of and in the course of his employment . . . .” The injury, however, “shall not be found to be attributable in a material degree to the particular condition described in the acknowledgment. The rights and liabilities of the parties to the acknowledgment as to injuries arising out of and in the course of the employment and within the terms of the acknowledgment shall be as provided by section 31-349. ...” (Emphasis added.) Last, § 31-349 (d) notes that “the compensation specified in this chapter which would be payable except for the execution of the acknowledgment shall be paid entirely out of the Second Injury Fund. . . .” (Emphasis added.) Accordingly, the employer is liable for compensating an injured employee with a preexisting condition from the date of the subsequent injury where the injury is “not . . . found to be attributable in a material degree” to that condition. General Statutes § 31-325. Where, however, the injury is attributable in a material degree to the condition described in the acknowledgment, liability for the injury is immediately transferrable to the fund.

The commissioner determined that the plaintiffs “pre-existing condition caused the compensable injury to be worse than it would have been without said condition,” and ordered that “liability is transferrable subject to [§] 31-349 . . . .” The board did not dispute this finding. The board, however, questioned whether this finding supported the transfer of liability pursuant to § 31-325, instead of the transfer of liability pursuant to § 31-349 (a) and (b). In its written opinion, the board emphasized that “[t]he crux of this uncontested finding is that the [preexisting condition] contributed not only to the claimant’s disability, but to the actual injury as well.” The board consequently determined that the work related injury was attributable in a material degree to the condition described in the acknowledgment, and, “[therefore, the claimant’s injury itself was within the scope of the acknowledgment, and the commissioner should have applied § 31-325 and § 31-349 (d) . . . .”

The determination of whether the plaintiffs injury was attributable in a material degree to the preexisting condition is a question of fact reserved for the commissioner. The commissioner, however, made no finding with respect to this question. The commissioner, in fact, made no causal connection between the preexisting condition and the resulting injury. Instead, the commissioner simply found that the preexisting condition caused the work related injury to be worse than it would have been without said condition. This finding, according to the board, supported a determination that the plaintiffs injury was attributable in a material degree to the preexisting condition. The commissoner’s finding did not support that determination, and it is well settled law that the board may not substitute its factual judgment for the judgment of the commissioner. See Muldoon v. Homestead Insulation Co., supra, 231 Conn. 475-76. We, therefore, conclude that the board exceeded its authority in reversing the decision of the commissioner and transferring liability pursuant to §§ 31-325 and 31-349 (d).

Because we conclude that the board exceeded its authority, we need not address the fund’s remaining claim that the board erroneously interpreted the language of § 31-325 that entitles the employer immediately to transfer liability to the fund where the work related injury is “attributable in a material degree to the particular’ condition described in the acknowledgment.”

The decision of the compensation review board is reversed and the case is remanded with direction to affirm the decision of the compensation commissioner.

In this opinion the other judges concurred.

       General Statutes § 31-325 provides in pertinent part: “Acknowledgment by employees having certain physical conditions. Whenever any person having a contract of employment, or desiring to enter into a contract of employment, has any physical condition which imposes upon his employer or prospective employer a further or unusual hazard, it shall be permissible for the person to execute in writing for himself or his dependents, or both, an acknowledgment of the physical condition. ... No acknowledgment shall be a bar to a claim by the person signing it, or his dependents, for compensation for any injury arising out of and in the coruse of his employment, or death resulting from the injury, which injury shall not be found to be attributable in a material degree to the particular condition described in the acknowledgment. The rights and liabilities of the parties to the acknowledgment as to injuries arising out of and in the course of the employment and within the terms of the acknowledgment shall be as provided by section 31-349. . . .”

       General Statutes § 31-349 provides in pertinent part: “(a) The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. For purposes of this subsection, ‘compensation payable or paid with respect to the previous disability’ includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation.
      “(b) . . . The employer by whom the employee is employed at the time of the second injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. . . . After the employer or its insurer has completed payment for the one-hundred-four-week period, he shall file with the commissioner having jurisdiction, and with the custodian of the Second Injury Fund, a form indicating that all compensation and medical bills have been paid for the one-hundred-four-week period, and indicating the date the custodian was notified of the pending case. The employer shall file the form with the commissioner having jurisdiction and the custodian of the Second Injury Fund no later than one year after the expiration of the one-hundred-four-week period, and thereafter, all responsibility for compensation and medical treatment shall be with the custodian of the Second Injury Fund.

      “(d) . . . [T]he compensation specified in this chapter which would be payable except for the execution of the acknowledgment shall be paid entirely out of the Second Injury Fund. . . .” (Emphasis added.)

       See footnote 1.

       See footnote 2.


text:
    MARTA SZOT v. TADEUSZ SZOT
    (14251)
    Dupont, C. J., and Schaller and Spear, Js.
    Argued February 23
    officially released April 30, 1996

      Helen Z. Pearl, with whom, on the brief, was Linda Clough, for the appellant (plaintiff).

      Tadeusz Szot, pro se, the appellee (defendant).
   SPEAR, J.

The plaintiff appeals from the judgment of the trial court converting a decree of legal separation into a decree of dissolution with attendant financial, visitation and custody orders. We agree with her claim that the trial court violated her right to due process by prematurely terminating the hearing and, therefore, we reverse the judgment, except as to the decree of dissolution.

We glean the following history from the transcript, the trial court file, the record and the plaintiffs brief. The plaintiff obtained a decree of legal separation in 1993. The parties agreed on custody of the minor child, child support, alimony, a division of property and maintenance of health insurance by the defendant for the plaintiff. In 1994, the defendant petitioned for a decree dissolving the marriage.

The court held a hearing on the petition on November 7, 1994. At the close of proceedings on that day, the court declared the marriage dissolved and further decreed that “all orders entered by the court remain in full force and effect subject to review and modification on November 21, 1994 . . . .” On November 21, 1994, the court conducted a further hearing to consider additional financial and other information bearing on the issue of whether the financial status of the parties was substantially different from that at the time of the legal separation. At that hearing, the trial court determined that the plaintiff had the burden of going forward and the ultimate burden of proof on her claim that the financial status of the parties had changed substantially from the time of the separation decree.

During the plaintiffs wide ranging cross-examination of the defendant, she touched on many areas. Her last question was: “[N]ow have you ever taken your son to an ‘R’ rated movie?” At that point, the court abruptly ended the questioning and the hearing. After the court ruled that there had been no substantial financial change since the legal separation, counsel for the plaintiff indicated that she had not had an opportunity to prove that there had been such a change. The court then entered the same financial, custody and visitation orders as had been entered at the time of the separation decree. This appeal followed.

In a similar case where a party petitioned to convert a legal separation decree to a dissolution decree, this court stated that “although we hold that the trial court properly granted the defendant’s petition converting the parties’ legal separation into a dissolution of marriage, the trial court’s incorporation of the prior orders entered in the decree of legal separation into the decree of dissolution of marriage without a finding that the orders were ‘fair and equitable’ at the time of the dissolution was improper.” Mignosa v. Mignosa, 25 Conn. App. 210, 216, 594 A.2d 15 (1991). The plaintiff correctly pointed out that the question of whether the separation decree orders were still fair and equitable was properly before the court.

In order to determine whether such orders were fair and equitable, the parties were entitled to an opportunity to present evidence in a hearing. “The fact that the agreement was presumably found fair and equitable at the time of the legal separation does not excuse the failure of the court to make such a determination in the light of the situation of the parties at the time of dissolution and to afford an opportunity for a hearing on the issues involved.” (Internal quotation marks omitted.) Id., 215-16. “A fundamental premise of due process is that a court cannot adjudicate any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved . . . .” (Citations omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205, 658 A.2d 559 (1995). “Generally, when the exercise of the court’s discretion 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 quotations marks omitted.) Roberts v. Roberts, 32 Conn. App. 465, 475, 629 A.2d 1160 (1993). “It is a fundamental tenet of due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution that persons whose property rights will be affected by a court’s decision are entitled to be heard at a meaningful time and in a meaningful manner. . . . Where a party is not afforded an opportunity to subject the factual determinations underlying the trial court’s decision to the crucible of meaningful adversarial testing, an order cannot be sustained.” (Citation omitted; internal quotation marks omitted.) Castro v. Castro, 31 Conn. App. 761, 770, 627 A.2d 452 (1993).

The court may have been annoyed by the plaintiffs counsel and her insistence on conducting a rather slow moving cross-examination that often did not deal directly with the matters at issue. We also appreciate the court’s irritation when counsel repeated questions to which objections had been sustained. The plaintiff, nevertheless, had a due process right to be heard. The trial court had the power to control the plaintiffs cross-examination by confining the questions to relevant matters. In addition, the court had the power to sanction counsel if the court’s instructions were disobeyed. The court, however, did not have the right to terminate the hearing before the plaintiff had a fair opportunity to present evidence on the contested issues.

The judgment is reversed except as to the decree of dissolution and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The plaintiff does not challenge the dissolution of the marriage and specifically requested that the decree of the dissolution remain in force.

       The pro se defendant did not file a brief but, with permission of the court, was allowed to present oral argument.

       The defendant filed the petition pro se. Although the petition did not contain a prayer for relief, the plaintiff agreed on the record that the petition should be treated as requesting a dissolution of the marriage. The court and the parties thereafter treated it as such and we will do likewise. The plaintiffs claim that the trial court should not have proceeded on the petition flies in the face of her agreement and her request that the dissolution decree not be disturbed.

       Before the defendant could answer the question, the court stated: “Oh, my God. Now that’s enough. You are so far out of line what you’re trying to prove here that I’m not going to sit here and listen to anything more.”

       After the court stopped the questions, the plaintiffs counsel stated the child’s age, ten, and her claim that “custody and visitation, and all that, the matters are before the court as to whether this is fair and equitable.” The court responded: “I’ll tell you what’s before the court. The court finds that the financial status of the parties is not substantially different, and the orders entered at the time of the dissolution, at the time of the separation shall remain the orders of the court as of this dissolution.”

       After the court ruled, the following coEoquy took place:
      “Mrs. Pearl [Plaintiffs Counsel]: Your Honor please, I have not had—
      “The Court: No.
      “Mrs. Pearl: — an opportunity — my chent is on social security disabihty. That is a substantial change.
      “The Court: Mrs. Pearl, anything that has happened here today has been through your own doing. You have deEberately strayed from the path you tried to put before the court, you put extraneous matters before the corut, you have delayed, and I’m sorry, ma’am.
      “Mrs. Pearl: Your Honor, I was here on time.
      “The Court: I’m sorry, ma’am, you have wandered much too far off your course. This hearing is terminated.”

       The plaintiff raises several issues that we do not review. The eight issues that concern matters of alimony, support, custody and visitation, and insurance are urdikely to arise in the same fashion in the new trial, and, therefore, we wiE not discuss them. The plaintiffs claim that the trial court improperly placed on her the burden of going forward and the burden of proof was not raised at trial. We decline to review this unpreserved claim. See National Associated Properties v. Planning & Zoning Commission, 37 Conn. App. 788, 800-801, 658 A.2d 114, cert. denied, 234 Conn. 915, 660 A.2d 356 (1995); Baker v. Cordisco, 37 Conn. App. 515, 522, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995).

       General Statutes § 51-84 provides: “Attorneys subject to rules, (a) Attorneys admitted by the superior court shall be attorneys of all courts and shall be subject to the rules and order of the courts before which they act.
      “(b) Any such court may fine an attorney for transgressing its rules and orders an amount not exceeding one hundred dollars for any offense, and may suspend or displace an attorney for just cause.”


author: SCHALLER, J.

text:
    PETER G. CONRAD ET AL. v. RONALD K. ERICKSON ET AL.
    (13841)
    Foti, Lavery and Schaller, Js.
    Argued November 29, 1995
    officially released May 7, 1996

      Charlotte Croman, for the appellant (named defendant).

      Jeffrey L. Ment, with whom was Joseph J. Cassidy, for the appellees (plaintiffs).
   SCHALLER, J.

Peter G. Conrad and Sobstad Sailmak-ers, Inc., instituted a three count complaint against Ronald K. Erickson and Dorothy A. Erickson claiming constructive eviction, a violation of the Connecticut Unfair Trade Practices Act (CUTPA) and intentional tortious interference with business relations. The defendants filed a counterclaim alleging unpaid rent and breach of a sales clause in a real estate contract. The juiy found in favor of the plaintiff against only the named defendant on all three counts of the complaint and in favor of the plaintiff on the defendants’ counterclaims. The jury awarded the plaintiff $15,000.

The named defendant claims that the trial court improperly (1) failed to charge the jury that constructive eviction is a special defense and not a cause of action, (2) failed to charge the jury that contractual consent to reentry is a defense to constructive eviction, (3) failed to set aside the verdict on the CUTPA count, (4) failed to set aside the verdict on the intentional tortious interference with business relations count, (5) failed to set aside the damages as excessive, (6) failed to set aside the verdict as to the defendants’ claim for unpaid rent, and (7) improperly instructed the jury on all counts. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 11, 1989, the plaintiff sold a parcel of commercial property located at 175-2 Elm Street, Old Saybrook, to the defendants. The plaintiff then leased back a portion of the building from the defendants for producing, selling and repairing sails. The named defendant occupied the remaining portion of the building. In August, 1991, problems developed between the plaintiff and the named defendant. On August 15, 1991, the named defendant had the locks on the premises changed. The plaintiff complained of a lockout and applied for a show cause order. The plaintiff regained possession of the premises on August 22,1991. On various occasions subsequent to August 22,1991, the named defendant turned off the plaintiffs water, electric and telephone services. As a result of these utility interruptions, the plaintiff was forced to move to a new location.

I

We first address the named defendant’s claim that the trial court improperly failed to set aside the verdict on the count of tortious interference with business relations. He claims that, as a matter of law, a cause of action in tortious interference with business relations requires proof of interference with a competitor’s business. We find no such requirement.

Connecticut has long recognized a cause of action for tortious interference with business relations. See Blake v. Levy, 191 Conn. 257, 464 A.2d 52 (1983); Herman v. Endriss, 187 Conn. 374, 446 A.2d 9 (1982); Skene v. Carayanis, 103 Conn. 708, 131 A. 497 (1926); Bulkley v. Storer, 2 Day (Conn.) 531 (1807). The necessary elements of a cause of action in tortious interference with business relations are the existence of a business relationship, an intentional and improper interference with that relationship and a resulting loss of benefits of the relationship. Blake v. Levy, supra, 262. While cases of tortious interference with business relations usually arise between competitors, a competitive relationship is not a necessary element of the cause of action.

To hold a defendant who has tortiously interfered with another’s business relations free from liability solely because the defendant has not injured a competitor is contrary to the law. “No man can justify an interference with another’s business through fraud or misrepresentation, nor by intimidation, obstruction or molestation.” Skene v. Carayanis, supra, 103 Conn. 714. The lack of a competitive relationship can in no way justify unwarranted interference with another’s business relations. Furthermore, a plaintiff s injuries in such a situation are no less real because they are caused by a noncompetitor. We conclude, therefore, that the trial court did not act improperly in failing to set aside the verdict on the tortious interference with business relations count.

II

The named defendant’s next claim is that the damage award was excessive. Actual loss is an essential element of the tort of intentional interference with business relations. Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 415, 363 A.2d 86 (1975); Taylor v. Sugar Hollow Park, Inc., 1 Conn. App. 38, 39, 467 A.2d 935 (1983), citing Herman v. Endriss, 187 Conn. 374, 377, 446 A.2d 9 (1982). The named defendant argues that damages should be limited to the invoices introduced into evidence totaling approximately $8000 in damages. The jury was also presented with an affidavit of the plaintiff, however, that detailed his experience and knowledge of the sail making and repair business. On the basis of his experience, the plaintiff estimated that the actions of the defendants cost him approximately $20,000 in business losses.

“The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury.” Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988), citing Herb v. Kerr, 190 Conn. 136, 139, 459 A.2d 521 (1983). “The trial court’s refusal to set aside the verdict is entitled to great weight and eveiy reasonable presumption should be indulged in favor of its correctness.” Mather v. Griffin Hospital, supra, 139. The trial court denied the defendants’ motion to set aside the verdict as to damages. Our function is to determine whether the trial court abused its discretion in denying the motion to set aside the verdict. Id. Our review of the record shows that the plaintiff estimated losses in business relations of $20,000 on the basis of his professional experience. These losses were in addition to the $8000 of documented damages. We conclude that the trial court did not abuse its discretion in refusing to set aside the $15,000 damage award as excessive.

Ill

The named defendant next claims that the trial court improperly instructed the jury on all counts by “insinuating the court’s personal bias into the charges.” When error of this type is claimed in the charge to the jury, the appellant must include in his brief or appendix all relevant exceptions to the charge. See Practice Book § 4065 (d) (2). The named defendant’s brief does not identify any exceptions to the charge challenged on appeal. Our independent review of the record reveals no exceptions to the charge. The issue, therefore, is not properly briefed or preserved to warrant our consideration. See Donner v. Kearse, 234 Conn. 660, 680, 662 A.2d 1269 (1995); State v. Krzywicki, 39 Conn. App. 832, 835, 668 A.2d 387 (1995).

Because we conclude that the verdict on the count alleging tortious interference with business relations is not contrary to law, that the total damage award is supported by this count, and that there is no other error on this count, we need not reach the other issues in this appeal. In declining to reach the other issues presented on appeal, we look to the general verdict rule. “[I]t has ever been considered to be the rule, that if any of the counts are good, it shall be presumed the damages were assessed on those counts, and the verdict shall stand.” Curry v. Burns, 225 Conn. 782, 789, 626 A.2d 719 (1993). Because the jury found for the plaintiff on all counts, and no interrogatories were served on the jury with regard to damages, it is impossible to determine how the damage award was derived. Moreover, because the jury award is supportable on the single count of tortious interference with business relations, our resolution of the remaining issues on appeal in favor of the defendant would be of no consequence.

The judgment is affirmed.

In this opinion the other judges concurred.

       By agreement of the parties, the trial court charged the jury that it should treat Conrad and Sobstad Sailmakers, Inc., as one plaintiff. We will refer to them as the plaintiff for purposes of this opinion.

       See General Statutes §§ 42-110a through 42-110q.

       Only the named defendant, Robert Erickson, has appealed.

       We requested the parties to address at oral argument whether a CUTPA claim may be tried to a jury. In view of our conclusion as to the tortious interference count, we need not decide this issue. But see Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 161-62, 645 A.2d 505 (1994) (no right to jury trial on CUTPA claim); Meyers v. Cornwell Quality Tools, Inc., 41 Conn. App. 19, 674 A.2d 444 (1996) (while no right to jury trial on CUTPA claim, trial court did not abuse discretion by allowing case to be tried to jury).

       The Restatement (Second) of Torts, § 766 (1979) provides: “One who intentionally and improperly interferes with another’s prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from the loss of the benefits of the relation, whether the interference consists of: (a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or (b) preventing the other from acquiring or continuing the prospective relation.”

       In fact our Supreme Court has stated it “can discern no reason not to allow the tort of intentional interference with business expectancy to be maintained against public officials as well.” Kelly Property Development, Inc. v. Lebanon, 226 Conn. 314, 340 n.30, 627 A.2d 426 (1993).

       The Restatement (Second) of Torts, § 774A (1979), provides: “(1) One who is liable to another for interference with a contract or prospective contractual relation is liable for damages for (a) the pecuniary loss of the benefits of the contract or the prospective relation; (b) consequential losses for which the interference is a legal cause; and (c) emotional distress or actual harm to reputation, if they are reasonably to be expected to result from the interference.”

       The trial court gave the following instruction to which the defendant objects: “Now, that you’re going to come out, you’re going to have two verdict forms when you come out. Now, you can find, in this case — you can find in favor of the plaintiff on the complaint and maybe find in favor of the defendant on their counterclaim.”


text:
    BEACON HILL CONDOMINIUM ASSOCIATION, INC. v. TOWN OF BEACON FALLS BEACON HILL CONDOMINIUM ASSOCIATION, INC., ET AL. v. TOWN OF BEACON FALLS
    (13788)
    Heiman, Schaller and Spear, Js.
    Argued January 19
    officially released May 7, 1996

      Donna Civitello, with whom, on the brief, was Robert F. Carter, for the appellant (defendant).

      Robert P. Hanahan, with whom, on the brief, was Joseph Sakai, for the appellees (plaintiffs).
   SCHALLER, J.

The defendant town of Beacon Falls appeals from the judgments of the trial court sustaining the plaintiffs’ tax appeals. The plaintiffs are the Beacon Hill Condominium Association (association) and 160 owners of Beacon Hill condominium units. The disposi-tive issue in this appeal is whether the trial court improperly ordered a reduction in the tax bills of the condominium unit owners equivalent to the costs of municipal services not provided to the owners by the defendant. We reverse the judgments of the trial court.

The following facts are relevant to our disposition of this appeal. The association was established in 1982. In 1990, the association brought a mandamus action on behalf of all Beacon Hill condominium unit owners to compel the town to provide garbage services, a tax rebate in lieu of such services or a reimbursement to the association for the expense of private garbage collection. On January 13, 1992, the parties entered into a stipulated judgment. The judgment provided that the defendant’s 1982 assessment of the individual condominium units, which was still operative, included a “2 [percent] functional depreciation ... to reflect the absence of some municipal services including trash collection, snow removal, and road maintenance on the market value of the condominium units. In the 1992 reassessment . . . the fair market value assigned to the condominium units will continue to reflect that effect of the absence of these municipal services.” (Emphasis added.)

In 1991, the town of Beacon Falls grand list reflected the 2 percent functional depreciation of each condominium unit for the absence of trash removal, snow removal and street maintenance services. Because the depreciation, however, did not reduce the taxes on each condominium unit by an amount equal to the cost to each unit owner of procuring the services, the association appealed to the Beacon Falls board of tax review (board). By a decision dated April 15, 1992, the board made no changes in the assessments of the condominium units. On May 28,1992, the association commenced an appeal of the board’s decision pursuant to General Statutes § 12-117a.

In 1992, the Beacon Falls grand list reflected a 4 percent functional depreciation of fair market value for each condominium unit. The association and 160 condominium unit owners again appealed to the board, but by a decision dated April 15, 1993, the board made no changes in the assessments. On June 1, 1993, the association and the condominium unit owners appealed the April 15, 1993 decision of the board. By amended complaint dated March 21, 1994, the association and condominium unit owners also appealed the tax assessment from the 1993 grand lists of Beacon Falls. The trial court consolidated the appeal of the 1991 tax assessments with the appeal of the 1992 and 1993 tax assessments.

The trial court found that the 2 percent depreciation rate for each unit provided a $30 per condominium unit tax reduction. The trial court further found that the total cost of the services was $50,000 per year. The services, therefore, cost each condominium owner $241.54 per year. 6In a memorandum of decision dated June 21, 1994, the trial court concluded as follows: “Judgment may enter in both cases in accord with the above ruling requiring the town to reduce the assessment on the individual units in the condo complex so that the taxes on each unit is $200 less than the amount each unit owner is presently paying.” From the judgments rendered in accordance therewith, the defendant appeals.

The defendant claims that the trial court improperly ordered it to reduce the assessments on the condominium units so as to grant the condominium unit owners a tax credit of $200 per year. The defendant argues that because the owners conceded that their properties were properly assessed, there was no relief available pursuant to General Statutes § 12-117a. We agree.

In an appeal from a board of tax review pursuant to § 12-117a, “[t]he function of the trial court is to determine the true and actual value of the plaintiffs property. Dickau v. Glastonbury, 156 Conn. 437, 441, 444, 242 A.2d 777 [1968]; Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 673, 154 A.2d 608 [1959]. . . . Executive Square Ltd. Partnership v. Board of Tax Review, 11 Conn. App. 566, 570, 528 A.2d 409 (1987).” (Internal quotation marks omitted.) Heather Lyn Ltd. Partnership v. Griswold, 38 Conn. App. 158, 164, 659 A.2d 740 (1995). “ ‘The conclusions reached by the trial court must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law.’ ” Rey-naud v. Winchester, 35 Conn. App. 269, 274, 644 A.2d 976 (1994), quoting Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 100, 626 A.2d 1292 (1993) .

“In an appeal . . . from a board of tax review, the court performs a double function. The court must first determine whether the plaintiff has met his burden of establishing that he is, in fact, aggrieved by the action of the board. Only when the court finds that the action of the board will result in the payment of an unjust and, therefore, illegal tax, can the court proceed to exercise its broad discretionary power to grant such relief as is appropriate.” Gorin’s, Inc. v. Board of Tax Review, 178 Conn. 606, 608, 424 A.2d 282 (1979); Grossomanides v. Wethersfield, 33 Conn. App. 511, 515, 636 A.2d 867 (1994) .

The plaintiffs attempt to characterize the judgments in this case as determinations by the trial court that the defendant overassessed the condominium units. The plaintiffs argue that the stipulated judgment in the prior mandamus action required the trial court to find that the defendant overassessed the condominiums. The trial court, in fact, concluded that because the 2 percent functional depreciation provided only a $30 tax reduction for each condominium owner, yet each owner paid $241.54 in additional condominium fees due to the absence of municipal services, each condominium owner was entitled to a further reduction in taxes of $200 per year.

We conclude that this result does not comport with our Supreme Court’s holding in Moore v. Stamford, 134 Conn. 65, 54 A.2d 588 (1947). The plaintiffs in that case argued that property not benefited by public services should not be taxed. Id., 68. Our Supreme Court concluded that the “[ajbsence of special benefit does not prevent taxation for public purposes authorized by law.” Id. Recourse for such a claim must be had, not from the courts, but from the General Assembly. Id., 69. The trial court may grant the plaintiffs relief under § 12-117a only if the defendant’s assessment of the plaintiffs’ property was unjust, not merely because the plaintiffs did not benefit from public services. The plaintiffs have not challenged the assessments of their condominium units other than to seek a credit for the expense of procuring services not provided by the defendant.

The judgments are reversed and the cases are remanded with direction to render judgments dismissing the plaintiffs’ tax appeals.

In this opinion the other judges concurred.

       The defendant first challenges the standing of the association to bring suit on behalf of the condominium owners. The association stated in the complaint that it was bringing the action pursuant to General Statutes § 47-244 (a) (4). The defendant correctly observes that the Common Interest Ownership Act, General Statutes §§47-200 through 47-295, applies only to condominium associations declared after January 1, 1984. See General Statutes § 47-214. The association in this case was established in 1982. Nevertheless, we note that pursuant to General Statutes § 47-80a of the Condominium Act, General Statutes §§ 47-68a through 47-90c, the association has the power to “appear on behalf of all unit owners before any officer, agency, board, commission or department of the state or any political subdivision thereof and appeal from any judgments, orders, decisions or decrees rendered by the same . . . See also General Statutes § 47-90c (a) (§ 47-80a applies to condominium associations declared after January 1, 1977).

       General Statutes § 12-117a provides in pertinent part: “Appeals from decisions of boards of tax review concerning assessment lists for assessment years commencing October 1, 1989, to October 1, 1992. Notwithstanding the provisions of sections 12-118,12-121aa and 12-121bb, any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review in any town or city with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, October 1, 1992, October 1, 1993, or October 1, 1994, may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. . . .” While we note that the plaintiff’s complaint cited General Statutes § 12-118, it properly falls within § 12-117a.

       The term functional depreciation was changed to personal property service, but we continue to use the term functional depreciation for purposes of this opinion.

       General Statutes § 12-117a provides in pertinent part: “If, during the pendency of such appeal, a new assessment year begins, the applicant may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year and such applicant need not appear before the board of tax review to make such amendment effective. ...”

       Although only 160 condominium unit owners appealed, there were 207 owner members of the association.

       General Statutes § 12-63 provides in pertinent part: “The present true and actual value of . . . property shall be deemed by all assessors and boards of tax review to be the fair market value thereof and not its value at a forced or auction sale.”