author: DALY, J. LAVER Y, J.,

text:
    OSWALD G. RAPIN v. CYNTHIA NETTLETON
    (AC 16989)
    Lavery, Landau and Daly, Js.

      Argued April 1
    officially released October 6, 1998

      Mami Smith Katz, with whom, on the brief, was Bernard, Green, for the appellant-appellee (defendant).

      William C. Franklin, for the appellee-appellant (plaintiff).
   Opinion

DALY, J.

This is an appeal from the trial court’s judgment for the plaintiff to recover a real estate commission. The defendant claims that the trial court improperly (1) disregarded the findings, conclusions and recommendations of the attorney trial referee, (2) ignored the provision of General Statutes § 20-325a (b) (7) requiring the owner’s signature, (3) found a ratification by the defendant of her husband’s conduct, (4) determined that the terms of the listing agreement extension were complied with and (5) failed to accept the report of the attorney trial referee to which the plaintiff had failed to file an objection. The plaintiff cross appeals claiming that the trial court failed to award him prejudgment interest pursuant to General Statutes § 37-3a.

The attorney trial referee made fifty-nine findings of fact, which are not in dispute and may be summarized as follows. On February 25,1992, the defendant entered into a written “Exclusive Right to Sell Listing” with the plaintiff, a real estate broker, with respect to the sale of the defendant’s house at 208 Tuttle Road in Wood-bury, at a price of $1,740,000, for a term of six months. Pursuant to that agreement, the defendant agreed to pay the plaintiff a commission of 6 percent if, during the term of the listing agreement, the property was sold or anyone found a buyer willing and able to buy the property at a price acceptable to the defendant or anyone obtained a binding enforceable agreement between the defendant and a buyer.

The defendant acquired the property jointly with her husband. Sometime after the purchase, the defendant’s husband conveyed his interest in the property to the defendant for no consideration. The defendant relied on her husband, an experienced real estate developer, in the negotiation, listing and sale of the property. The defendant’s husband negotiated the terms of the listing agreement directly with the plaintiff. The defendant’s husband freely used the equity in the property for his business purposes, including three separate mortgages to American Bank. During the term of the listing agreement, the plaintiff listed the property in the multiple fisting service, advertised it and showed it to several prospective purchasers. There were, however, no offers to purchase the property- accepted by the defendant during the original listing period.

Shortly before the expiration of the fisting period, the defendant’s husband told the plaintiff that the defendant would extend the fisting agreement. The defendant’s husband told the plaintiff to send the extension agreement to them for signature and also that they might reduce the asking price. The defendant’s husband received the change authorization, filled in the listing price to reflect a reduction from $1,740,000 to $1,470,000, signed his wife’s name to the listing agreement and mailed it back to the plaintiff. When he signed the defendant’s name on the change authorization, the defendant’s husband had her oral authorization to act on her behalf. The defendant agreed to extend the listing with the plaintiff and believed that her husband had effectively extended the listing by signing her name on the change authorization. The plaintiff, however, believed that the defendant had signed the change authorization. The change authorization extended the listing agreement until midnight, February 24, 1993. During the effective period of the change authorization, neither the defendant nor her husband attempted to repudiate the authority of the plaintiff to act as a broker on the defendant’s behalf.

In December, 1992, American Bank was foreclosing on one or more of the mortgages on the defendant’s property. That same month, the defendant’s husband called Arminda Murtha, who had previously expressed an interest in the property, to say that his wife would sell the property for $850,000. A contract was prepared in late December, 1992, that called for a closing on January 29, 1993, with occupancy to be given to Murtha on March 1, 1993. That contract was never signed by Murtha or the defendant. In early January, 1993, a second contract was prepared, which was identical to the first contract in all respects except that it called for a closing on March 1, 1993. Murtha signed the second contract on January 9, 1993, and sent a deposit check for $10,000. When the plaintiff heard about the possible sale to Murtha, he talked with the defendant’s husband and reminded him that the plaintiff would be owed a commission if the property was sold to Murtha. The defendant’s husband told the plaintiff that a sale at $850,000 would not be sufficient to pay the plaintiff a commission. Both parties agreed that they would need to talk about this issue further. On January 12, 1993, the plaintiff sent a letter to the defendant confirming that her husband had informed the plaintiff that the defendant was about to finalize a contract with Murtha. The letter also stated that he would “like to be assured that [his] commission will be taken into consideration, as per our listing agreement. Obviously, I would be willing to negotiate the amount of the commission.” The plaintiff did not speak to the defendant or her husband after mailing the letter.

The defendant would have signed the contract with Murtha in the middle of January, 1993, except for the receipt of the plaintiffs demand for a commission, which the defendant and her husband did not want to pay. They did not attempt to negotiate with the plaintiff to reduce his commission. In February, 1993, the defendant’s attorney returned the $10,000 deposit check to Murtha’s attorney. The plaintiff believed that the sale to Murtha had not taken place and that the property was still on the market. He continued his efforts to sell the property.

On March 1, 1993, the defendant sold the property to Murtha for $850,000, although the price shown on the conveyance tax forms was $1,050,000. Until the day of the closing, Murtha was unaware that the $10,000 deposit had been returned to her attorney. At the closing on March 1, Murtha signed a new contract that was identical to the original contract that she had signed on January 9,1993, except that the “Balance at Closing” was increased from $840,000 to $850,000 to reflect the $10,000 deposit that had been returned to her attorney.

On February 23, 1993, the plaintiff received a facsimile from another real estate agent indicating that he had a client who had agreed in principle to purchase the property for $1,025,000. Immediately upon receipt, the plaintiff sent by facsimile the “offer” to the defendant’s husband. The plaintiff attempted to telephone the defendant’s husband about the facsimile, but did not receive a reply. The defendant never became aware of the “offer.” To pay all of the closing expenses and to obtain releases of three mortgages to American Bank, the defendant and her husband provided additional funds at the closing in the amount of $11,088.15. On or about April 15, 1993, the plaintiff made demand on the defendant for payment of his commission of 6 percent of the purchase price of $850,000.

The attorney trial referee found that the change authorization extending the term of the listing agreement was not signed by the defendant pursuant to § 20-325a (b) (7). Although the referee found that it would be inequitable to deny the plaintiff recovery and that the defendant acted in bad faith in raising as a defense the statutory signature requirement of § 20-325a (b) (7), the attorney trial referee determined that the listing had not been signed by the owner for the purposes of § 20-325a and recommended judgment for the defendant unless the court recognized a bad faith exception to the statute. In view of our findings, we need not address the bad faith exception to the statute provided by § 20-325a (c).

The trial court rejected the attorney trial referee’s finding and concluded that the provisions of § 20-325a (b) (7) were satisfied because the defendant’s husband was acting as the defendant’s agent when he signed the change authorization, and the defendant subsequently ratified his actions. Judgment for $52,000, plus reasonable attorney’s fees in the amount of $12,500, was entered. This appeal ensued, and the plaintiff filed a cross appeal claiming prejudgment interest from March 1, 1993.

“[Wjhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Family Financial Services, Inc. v. Spencer, 41 Conn. App. 754, 759, 677 A.2d 479 (1996). “A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of either administrative agencies ... or attorney trial referees.” (Citations omitted.) Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990).

“The right of a real estate broker to recover a commission is dependent upon whether the listing agreement meets the requirements of § 20-325a (b). New England Land Co., Ltd. v. DeMarkey, 213 Conn. 612, 621, 569 A.2d 1098 (1990); Revere Real Estate, Inc. v. Ceralo, 186 Conn. 74, 77, 438 A.2d 1202 (1982). Section 20-325a (b) requires that the listing agreement: ‘(1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner only by a written document executed in the manner provided for conveyances in section 47-5, and by the real estate broker or his authorized agent.’ In addition, the broker ordinarily must prove that it has found a buyer that is ready, willing and able to purchase the property on terms agreed to by the seller. Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 242, 440 A.2d 306 (1982); Revere Real Estate, Inc. v. Cerato, supra, 77-78.” McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 519, 590 A.2d 438 (1991).

“It is well established that the requirements of § 20-325a (b) are mandatory rather than permissive and that the statute is to be strictly construed. New England Land Co., Ltd. v. DeMarkey, supra, [213 Conn.] 623 (listing agreement must include sale price of property); Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 54, 453 A.2d 771 (1983) (listing agreement lacking addresses of both parties unenforceable); Thornton Real Estate, Inc. v. Lobdell, 184 Conn. 228, 230-31, 439 A.2d 946 (1981) (brokerage contract signed by owner’s agent unenforceable under the statute as then worded); Hossan v. Hudiakoff, 178 Conn. 381, 383, 423 A.2d 108 (1979) (failure to include broker’s address fatal to listing agreement); Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 305-307, 552 A.2d 827 (1989) (omission of rate of broker’s commission fatal); Howland v. Schweir, 7 Conn. App. 709, 713-15, 510 A.2d 215 (1986) (commission not recoverable where broker could not prove he produced a buyer during effective term of listing agreement); Arruda Realty, Inc. v. Doyon, 35 Conn. Sup. 617, 620, 401 A.2d 625, cert. denied, 176 Conn. 763, 394 A.2d 201 (1978) (owner’s address requirement not satisfied even though the listing agreement included the address of the subject property, which was the same as the owner’s address). ‘A broker who does not follow the mandate of [§ 20-325a (b)] does so at his peril.’ Thornton Real Estate, Inc. v. Lobdell, supra, 230-31.” McCutcheon & Burr, Inc. v. Berman, supra, 218 Conn 520.

The trial court determined that the plaintiff should have recovered on the theory of ratification. “Ratification requires acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances.” (Internal quotation marks omitted.) CMG Realty of Connecticut, Inc. v. Colonnade One Ltd. Partnership, 36 Conn. App. 653, 659, 653 A.2d 207 (1995). We affirm the judgment of the trial court, but not its reasoning, because we conclude that the requirements of § 20-325a are mandatory and because the defendant did not sign the agreement. The requirements of § 20-325a were not satisfied. The agreement is, nonetheless, valid because we conclude that the doctrine of equitable estoppel is applicable.

“Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed ... as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse.” (Internal quotation marks omitted.) Brock v. Cavanaugh, 1 Conn. App. 138, 141-42, 468 A.2d 1242 (1984).

Although this court has refused in the past to apply equitable estoppel in favor of real estate brokers seeking commissions and against homeowners seeking to avoid paying such commissions, the present case can be factually distinguished from those decisions. In New England Investment, Properties, Inc. v. Spire Realty & Development Corp., 31 Conn. App. 682, 687-88, 626 A.2d 1316 (1993), the real estate broker did not obtain a valid listing agreement that was signed by the homeowners prior to rendering his services. In concluding that the plaintiff could not invoke equitable estoppel in that case, this court relied on its decision in Currie v. Marano, 13 Conn. App. 527, 531-32, 537 A.2d 1036, cert. denied, 207 Conn. 809, 541 A.2d 1238 (1988) (real estate broker performed services after listing agreement had expired). This court stated that “[t]he Currie court refused to apply estoppel for two reasons. First, a broker is expected to know the laws regulating his profession and when ignorance of those laws is the primary cause of his need for relief, the doctrine of estoppel does not apply. . . . Second, the Currie court recognized that ‘General Statutes § 20-325a has been strictly construed and enforced. . . . The scenario arising most commonly in cases of real estate commission claims, when there has not been compliance with the listing statute, as here, presents a fact pattern in which a real estate owner allegedly reaps the benefits of a broker’s services without paying for them. To allow recovery on . . . the plaintiffs legal theories in the present case would nullify § 20-325a and emasculate the state’s real estate sales licensing system.’ . . . For the same reasons, we reject the plaintiffs attempt to employ equitable estoppel in this case.” (Emphasis added.) New England Investment Properties, Inc. v. Spire Realty & Development Corp., supra, 687-88.

In the present case, unlike in Currie and New England Investment Properties, Inc., the plaintiffs ignorance of the laws governing his profession is not the cause for his need for relief. The plaintiff obtained what he believed to be a valid extension of the listing agreement that was signed by the defendant. The plaintiff was unaware that it was actually the defendant’s husband that signed the extension agreement on behalf of and with the consent of the defendant. The plaintiff relied thereon to his detriment. Furthermore, permitting the plaintiff to prevail on an equitable estoppel theory in the present case would not emasculate this state’s real estate licensing system because the plaintiff believed that he was operating within the requirements of the law, and the defendant and her husband allowed the plaintiff to so believe. As a result, the plaintiffs claim in the present case is factually distinguishable from cases that have precluded real estate brokers from invoking the doctrine of equitable estoppel.

The plaintiff in his cross appeal claims that the trial court improperly failed to award prejudgment interest pursuant to § 37-3a. We agree.

“We begin our analysis with the appropriate standard of review with respect to the award of compensatory interest. The allowance of prejudgment interest as an element of damages is an equitable determination and a matter lying within the discretion of the trial court. . . . Before awarding interest, the trial court must ascertain whether the defendant has wrongfully detained money damages due the plaintiff. . . . Interest on such damages ordinarily begins to run from the time it is due and payable to the plaintiff. . . . The determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through the application of an arbitrary rule. . . . West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 321, 541 A.2d 858 (1988).

“A trial court must make two determinations when awarding compensatory interest under § 37~3a: (1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated. Metcalfe v. Talarski, 213 Conn. 145, 160, 567 A.2d 1148 (1989); West Haven Sound Development Corp. v. West Haven, supra, 207 Conn. 321.” (Internal quotation marks omitted.) Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 734-35, 687 A.2d 506 (1997).

It is obvious from the memorandum of decision that the trial court did not address whether the plaintiff was entitled to interest under § 37-3a, even though the plaintiff requested such relief in its motion for entry of judgment to the trial court.

On the cross appeal, the judgment is reversed only as to the failure to address the plaintiffs request for an award of prejudgment interest and the case is remanded for further proceedings on that claim.

In this opinion LANDAU, J., concurred.

LAVER Y, J.,

concurring. I agree with the result of the majority, but I believe this court, en banc, or the Supreme Court should revisit New England Investment Properties, Inc. v. Spire Realty & Development Corp., 31 Conn. App. 682, 687-88, 626 A.2d 1316 (1993), regarding its position on the applicability of the bad faith doctrine set forth in Habetz v. Condon, 224 Conn. 231, 618 A.2d 501 (1992), involving a section of the Home Improvement Act, General Statutes § 20-429 (a), which is analogous to General Statutes § 20-325a (b).

I believe the following language from Habetz v. Condon, supra, 224 Conn. 239-40, applies to the facts in this case. “In the absence of specific legislative indication, however, we do not read the act to override the general principle embodied in the bad faith exception: that an individual should not profit from his own deceptive and unscrupulous conduct. This court never intended to advance the cause of the unscrupulous. We can only presume that the legislature had a similar intent. The question is not whether the legislature specifically carved out this bad faith exception, as the plaintiff has argued, but whether, in the absence of specific legislative indication otherwise, a doctrine founded on public policy and containing a strong strain of estoppel can prevent a misbehaving party from invoking the benefits of a statute which is absolute on its face. To deny the contractor any opportunity of recovery after he has completed his end of the bargain if he has persuaded the trier of fact that a statutory remedy is being invoked by a homeowner in bad faith would be to countenance a gross injustice and indeed to encourage its perpetuation and to assure its success.” Id.

The attorney trial referee’s conclusions that it would be inequitable to deny the plaintiff a recovery and that it was bad faith on the defendant’s part in raising as a defense the statutory signature requirement contained in § 20-325a (b) (7) were consistent with the underlying facts found.

“Abad faith exception is designed to prevent a party’s disavowal of previous conduct if such repudiation would not be responsive to demands of justice and good conscience. The law does not permit the exercise of a right to repudiate a contract when the exercise of such a right in bad faith would work an injustice. Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.” Id., 238; Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, 38 Conn. App. 420, 431-32, 662 A.2d 129 (1995), aff'd, 237 Conn. 123, 676 A.2d 369 (1996).

I would apply the bad faith exception doctrine to this case rather than equitable estoppel.

       General Statutes § 20-325a (b) provides in relevant part: “No person, licensed under the provisions of this chapter, shall commence or bring any action in respect of any acts done or services rendered . . . pursuant to a contract or authorization .... To satisfy the requirements of this subsection any contract or authorization shall ... (7) be signed by the person or persons for whom the acts were done or services rendered or by an agent authorized to act on behalf of such person or persons, pursuant to a written document executed in the manner provided for conveyances in section 47-5, except, if the acts to be done or services rendered involve a listing contract for the sale of land containing any building or structure occupied or intended to be occupied by no more than four families, be signed by the owner of the real estate or by an agent authorized to act on behalf of such owner pursuant to a written document executed in the manner provided for conveyances in section 47-5.”
      We note that the attorney trial referee inadvertently applied the current version of § 20-325a (b) instead of the one in effect in 1992 and 1993, when the events at issue occurred. The language now contained in subdivision (7) of subsection (b) was in subdivision (5) prior to 1993 and, while the exact language differs from the current text, its operative effect remains unchanged. See General Statutes (Rev. to 1993) § 20-325a (b), as amended by Public Acts 1993, No. 93-355, and Public Acts 1994, No. 94-240, and subsequent revisions.

       The attorney trial referee also recommended that § 20-325a (c), which was enacted by Public Acts 1994, No. 94-240, § 3, be ruled inapplicable even if effective retroactively because that statute is limited to subdivisions (2) through (6) and does not affect the signature requirement of subdivision (7). General Statutes § 20-325a (c) provides: “Nothing in subsection (a) of this section or subdivisions (2) to (6), inclusive, of subsection (b) of this section shall prevent any licensee from recovering any commission, compensation or other payment in respect to any acts done or services rendered, if such person has substantially complied with subdivisions (2) to (6), inclusive, of subsection (b) of this section and it would be inequitable to deny such recovery.”

       General Statutes § 37-3a provides in relevant part: “[I]nterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. . . .”

       General Statutes § 20-429 (a) provides in relevant part: “No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. ...”

       I also note that in Fmin v. Colonnade One at Old Greenwich Ltd. Partnership, supra, 38 Conn. App. 431, we relied on Habetz v. Condon, supra, 224 Conn. 239-40, and applied the bad faith exception to a claim brought under the Common Interest Ownership Act (CIOA), General Statutes § 47-200 et seq. “Although the language of CIOA is not similar- to that in [the Home Improvement Act (HIA)], HIA is similar to CIOA in that its ‘objective . . . is to promote understanding by the consumer, to ensure his ability to make an informed decision and to protect him from substantial work by an unscrupulous contractor. See Habetz v. Condon, [supra, 239]. Both statutes, then, are essentially consumer protection statutes. We, therefore, turn to cases interpreting HIA to guide our resolution of the present case.” Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, supra, 430. “As in the HIA cases, allowing the plaintiff to use CIOA to shield his refusal to perform his contractual duties 'would not be responsive to demands of justice and good conscience.’ Habetz v. Condon, supra, [238]. We, therefore, incorporate the HIA’s ‘bad faith’ exception to apply to CIOA cases." Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, supra, 433.


source: Caselaw Access Project

author: LANDAU, J. SCPIALLER, J.,

license: Public Domain

text:
    JOSEPH FALCO v. INSTITUTE OF LIVING
    (AC 16979)
    Landau, Schaller and Sullivan, Js.
    Argued March 17
    officially released October 6, 1998

      Donna R. Zito, with whom, on the brief, was Lois B. Tanzer, for the appellant (defendant).

      Doreen J. Bonadies, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendant, the Institute of Living, appeals from the trial court’s granting of the bill of discovery filed by the plaintiff, Joseph Falco, as to the name, last known address and social security number of one of the defendant’s patients (John Doe). On appeal, the defendant claims that the trial court improperly ordered it to disclose John Doe’s name, last known address and social security number (1) in violation of General Statutes § 52-146e, (2) in violation of John Doe’s constitutional right of privacy and (3) without affording John Doe notice or an opportunity to be heard. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of this appeal. On or about March 10, 1995, the plaintiff was admitted as an inpatient at the defendant psychiatric hospital in Hartford. Shortly thereafter, while attending a group meeting at the hospital, the plaintiff was allegedly attacked without provocation by John Doe.

Following the denial of the plaintiffs insurance claim, the plaintiff filed a bill of discovery against the defendant to obtain identifying information from the defendant that would enable the plaintiff to bring suit against John Doe. The trial court granted the plaintiffs bill of discovery and ordered the defendant to disclose John Doe’s name, last known address and social security number. This appeal followed.

I

The defendant first claims that the trial court improperly ordered the defendant to disclose data on John Doe in violation of § 52-146e. We disagree.

In addressing this issue of first impression and determining whether the information sought by the plaintiff was protected by § 52-146e, we are initially guided by well defined principles of statutory interpretation. The court’s “fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Edelstein v. Dept. of Public Health & Addiction Services, 240 Conn. 658, 664, 692 A.2d 803 (1997), quoting State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994). Moreover, principles of statutory construction require the court to construe a statute in a manner that will not frustrate its intended purpose or lead to an absurd result. Turner v. Turner, 219 Conn. 703, 712, 595 A.2d 297 (1991). The court “must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve.” Id., 713.

While individuals enjoy a “ ‘broad privilege in the confidentiality of their psychiatric communications and records’ Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 195, 663 A.2d 1001 (1995), quoting State v. D'Ambrosio, 212 Conn. 50, 55, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990); the purpose of the statutory privilege is to protect the therapeutic relationship that exists between the psychiatrist and the patient. Bieluch v. Bieluch, 190 Conn. 813, 819, 462 A.2d 1060 (1983). Specifically, the purpose of the psychiatrist-patient privilege is to “ ‘give the patient an incentive to make full disclosure to a physician in order to obtain effective treatment free from the embarrassment and invasion of privacy which could result from a doctor’s testimony.’ ” Home Ins. Co. v. Aetna Life & Casualty Co., supra, 195, quoting State v. White, 169 Conn. 223, 234-35, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975). This statutory privilege ensures the patient that confidential communications that are necessary for effective treatment or diagnosis may be safely disclosed to a psychiatrist. Bieluch v. Bieluch, supra, 819. However, “[communications that bear no relationship to the purpose for which the privilege was enacted do not obtain shelter under the statute and are admissible subject to the normal rules of evidence.” Id.

The legislature drafted exceptions to the general rule of nondisclosure of psychiatrist-patient communications. These exceptions were drafted narrowly to protect the confidentiality of communications “unless important countervailing considerations require their disclosure.” Home Ins. Co. v. Aetna Life & Casualty Co., supra, 235 Com. 195. Furthermore, the exceptions to the privilege “are not limited to those found in General Statutes § 52-146Í.” (Internal quotation marks omitted.) Lieb v. Dept. of Health Services, 14 Com. App. 552, 559, 542 A.2d 741 (1988). Section 52-146e “defines the protected relationship carefully and at the same time recognizes the legitimate interest of society in intruding upon the relationship in certain limited situations . . . .” (Emphasis in original; internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., supra, 195-96, quoting 9 H.R. Proc., Pt. 8, 1961 Sess., p. 3945, remarks of Representative Nicholas B. Eddy.

The defendant cites Connecticut State Medical Society v. Commission on Hospitals & Health Care, 223 Com. 450, 612 A.2d 1217 (1992), in support of its argument that the information sought by the plaintiff identifies John Doe and, as such, should be protected from disclosure under § 52-146e. In that case, our Supreme Court withheld the disclosure of certain information under § 52-146e. The defendant’s reliance on Connecticut State Medical Society, however, is misplaced. In that case, the court held that a four digit zip code suffix should be excluded from the submission of data to a state agency disclosed pursuant to agency regulations because it was possible to ascertain a patient’s identity from that suffix and thus violated the confidentiality provisions of existing law, including § 52-146e. Id., 458-60. Connecticut State Medical Society, however, involved agency regulations that required the submission of patient data from “all of Comecticut’s general hospitals” at the agency’s discretion to enable the agency to develop and implement a payment system. Id., 453. That authorization to obtain information from all of Connecticut’s general hospitals could inhibit an individual from seeking assistance from a hospital. In this case, the plaintiff is seeking access to a single limited disclosure for the sole purpose of pursuing his constitutional right to seek redress for his injuries.

The defendant also cites Lieb v. Dept. of Health Services, supra, 14 Conn. App. 552, in support of its argument. In Lieb, this court held that despite the strong interests involved in the case, the court had no basis to establish an exception to § 52-146e. Id., 561. In that case, the defendant sought access to complete patient records. We held that the defendant did not provide the trial court with good cause for access to the complete patient records. Id., 560-61. In the present case, the plaintiff requests access only to limited information, not John Doe’s complete medical records. In addition, the plaintiff has provided a sufficient showing of good cause because he requires the information to institute a legal action against John Doe.

Interpreting the statute to preclude the plaintiff from having access to the information when his sole purpose is to bring an action against John Doe would lead to an absurd result that was not intended by the legislature. The plaintiffs need for the information to institute a claim against John Doe creates a compelling countervailing interest that requires disclosure. Because the exceptions are not limited to those found in § 52-146e and the compelling countervailing interest provides a basis on which to intrude upon the psychiatrist-patient relationship, we hold that under the narrow facts of this case, § 52-146e does not protect this type of information from disclosure. We therefore conclude that the trial court’s order of disclosure did not violate § 52-146e.

II

The defendant next claims that the trial court improperly ordered it to disclose the information in violation of John Doe’s constitutional right of privacy. We disagree.

The defendant argues that John Doe has federal and state constitutional rights to privacy. The defendant further argues that the trial court improperly concluded that if a constitutional right to privacy exists, it was outweighed by the plaintiffs economic interest to pursue a tort claim. Specifically, the defendant argues that the plaintiff would be reasonably restricted rather than denied access to the court.

We begin with an analysis of John Doe’s right to privacy as protected by our state constitution. “[A]ll rights derived by statute and the common law extant at the time of the adoption of article first, § 10, [of the Connecticut constitution of 1818] are incorporated in that provision by virtue of being established by law as rights the breach of which precipitates a recognized injury . . . .” Gentile v. Altermatt, 169 Conn. 267, 286, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976). These rights are referred to as “constitutionally incorporated common-law right[s].” (Internal quotation marks omitted.) Id. Nearly every state recognizes the right to privacy in the context of the tort of invasion of privacy. Perkins v. Freedom of Information Commission, 228 Conn. 158, 170 n.14, 635 A.2d 783 (1993) (discussing development of right to privacy). In Connecticut, the tort of invasion of privacy was first recognized in 1959. Id., 171-72 n.16, citing Korn v. Rennison, 21 Conn. Sup. 400, 156 A.2d 476 (1959). As such, the tort of invasion of privacy is not a constitutionally incorporated common-law right.

There appears to be no Connecticut case law that expressly states that there is a constitutional right to privacy in terms of a psychiatrist-patient relationship. Furthermore, in Connecticut, there is no common-law physician-patient privilege. Lieb v. Dept. of Health Services, supra, 14 Conn. App. 557, citing Zeiner v. Zeiner, 120 Conn. 161, 167, 179 A. 644 (1935). Under the narrow facts of this case, we conclude that John Doe does not possess a right to privacy protected by the state constitution.

We now turn to John Doe’s right to privacy as protected by the federal constitution. “While there is no ‘right of privacy’ found in any specific guarantee of the Constitution, the Court has recognized that ‘zones of privacy’ may be created by more specific constitutional guarantees and thereby impose limits upon government power. . . . [Aside from the unreasonable search and seizure privacy cases, the] other ‘right of privacy’ cases, while defying categorical description, deal generally with substantive aspects of the Fourteenth Amendment. In [Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973)], the Court pointed out that the personal rights found in this guarantee of personal privacy must be limited to those which are ‘fundamental’ or ‘implicit in the concept of ordered liberty’ as described in Palko v. Connecticut, 302 U.S. 319, 325 [58 S. Ct. 149, 82 L. Ed. 288] (1937). The activities detailed as being within this definition . . . [include] matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the States’ power to substantively regulate conduct.” (Citations omitted.) Paul v. Davis, 424 U.S. 693, 712-13, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976). “[T]he Supreme Court has extended their protection only to the most basic personal decisions. . . . Nor has the Supreme Court been quick to expand these rights to new fields.” (Citation omitted.) East Hartford Education Assn. v. Board of Education, 562 F.2d 838, 861 (2d Cir. 1977).

Although in Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977), the Supreme Court implicitly addressed the issue of whether certain medical information was protected by the right to privacy, there is no federal authority that expressly indicates that the psychiatrist-patient privilege is protected by the right to privacy. In Whalen, the Supreme Court failed to state explicitly that information in physician-patient records is within the zone of privacy. The Whalen court upheld a New York statutory scheme that required recording in a centralized computer file the names and addresses of all persons who had obtained with physicians’ prescriptions certain drugs for which there was also an illegal market. Id., 591. In response to a concern that certain drugs had legitimate and illegitimate uses, and that such drugs were being diverted into the unlawful market, the New York legislature created a special commission. Id. The commission drafted the statute in response to a finding that there were defects in the administration of drug prescriptions. Id., 592.

The Whalen court never addressed the issue of whether the right to privacy protected the information required by the statute. Instead, the court proceeded to balance the interests in upholding the statute, relying on the state’s “vital interest in controlling the distribution of dangerous drugs”; id., 598; and the insufficiency of any showing of an increased threat of public disclosure of the stored information. Id., 600-601. Whalen did not specifically address the issue of whether the right to privacy protects the type of information that the plaintiff seeks and is therefore not persuasive that John Doe has a constitutional right to privacy to protect that information.

We now address whether the plaintiff possesses a constitutionally incorporated common-law right to sue in tort for assault and battery. When article first, § 10, of the constitution of Connecticut was adopted in 1818, the common-law rights that existed were incorporated into that provision. See Gentile v. Altermatt, supra, 169 Conn. 286. An “action of trespass with force and arms, [is] commonly called Assault and Battery . ...” 2 Z. Swift, A System of the Laws of the State of Connecticut (1796), p. 29. The action for the plaintiffs assault and battery claim can be linked to the preconstitutional common-law action of trespass and, as such, we consider it to be a constitutionally incorporated common-law right. See Daily v. New Britain Machine Co., 200 Conn. 562, 585, 512 A.2d 893 (1986) (presenting similar argument regarding defective product injuries and their link to preconstitutional common-law action of trespass on the case).

We conclude that there is no state or federal constitutional right of privacy under the narrow facts of this case that protects the type of information that the plaintiff is attempting to secure, and that the plaintiff possesses a state constitutionally incorporated common-law right to pursue a cause of action for assault and battery. As such, we conclude that the trial court correctly ordered the defendant to disclose the information on John Doe to the plaintiff.

III

The defendant finally claims that the trial court improperly ordered the disclosure of the data without affording John Doe notice and an opportunity to be heard in violation of his state and federal rights to due process. We disagree.

As we concluded previously, the information sought by the plaintiff is not protected by § 52-146e. Furthermore, John Doe does not have a state or federal constitutional right of privacy that protects the type of information that the plaintiff seeks in this case. In claiming that John Doe has not been afforded notice and opportunity, the defendant relies on Sassone v. Lepore, 226 Conn. 773, 777, 629 A.2d 357 (1993). In Sassone, the court stated that “[depriving a party of a statutory right without an antecedent hearing that addresses the validity of the applicable statute violates the principles of due process . . . .” (Citation omitted; emphasis added.) Id. Because the information sought here is not protected by either a constitutional right or a statutory right, we conclude that the trial court did not violate John Doe’s due process rights.

The order granting the bill of discovery is affirmed.

In this opinion SULLIVAN, J., concurred.

SCPIALLER, J.,

dissenting. The majority upholds the trial court’s order granting the plaintiffs bill of discovery. The defendant is thereby compelled to disclose the identity of one of its patients, contrary to the prohibition of General Statutes § 52-146e, for the convenience of the plaintiff, who alleges that the information is necessary to investigate the patient’s culpability. Because I conclude that the record is inadequate to support a claim that the plaintiffs right of redress is implicated in this particular case and, therefore, fails to provide a basis for a judicial exception to the broad privilege of § 52-146e, I respectfully dissent.

My disagreement has its foundation in the principal flaw in the trial court’s analysis. That flaw is the equation, without explanation, of the plaintiffs belated assertion of the need for convenient and expedient discovery with the constitutionally incorporated common-law right to redress. There is no basis in this case for a judicially created exception to the broad statutory privilege of § 52-146e.

I take no issue with the majority’s formulation of the constitutionally incorporated common-law right to redress. That right is fundamental to our law; the method of analysis of a claim of constitutional violation by statutory enactment is well known. See Sanzone v. Board of Police Commissioners, 219 Conn. 179, 196-97, 592 A.2d 912 (1991); Daily v. New Britain Machine Co., 200 Conn. 562, 575-76, 512 A.2d 893 (1986); Gentile v. Altermatt, 169 Conn. 267, 284, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976); State v. Perkins, 88 Conn. 360, 368, 91 A. 265 (1914).

The inadequacy of the factual predicate produced by the plaintiff to establish that the right to redress attaches in this case is central to a resolution of the issues. The facts and procedural history are illuminating. The incident of which the plaintiff complains allegedly occurred at the Institute of Living on March 15, 1995. The plaintiff presented a claim to the Institute of Living at some unspecified time between that date and December 18,1996, at which time the claim was denied. The plaintiff has provided no evidence as to whether he took any action whatsoever during that twenty-one month period to investigate the incident or the identity of the participants. The plaintiff then waited more than two months before commencing suit against the Institute of Living and the patient, who was identified in the complaint not only as John Doe but also by what the plaintiff believed to be the patient’s real name. The plaintiff failed to provide any evidence as to how and when he learned the name, and what else he knew about the patient.

In the meantime, on January 7, 1997, nearly twenty-two months after the incident, the plaintiff brought a separate bill of discovery proceeding. The bill, which did not disclose that the plaintiff believed he knew the real name of the patient, alleged, inter alia, that “[t]he plaintiff needs to know the full name, last known address, social security number and date of birth of John Doe.” The plaintiff also sought “the medical and psychiatric records of John Doe while an inpatient at the defendant hospital during March, 1995.” The reason for the request, the plaintiff asserted, was: “This information is necessary to conduct a good faith investigation as to the culpability of John Doe and the defendant hospital in causing the plaintiffs injuries.” The plaintiff further alleged that he needed the information immediately, since he had left himself only two months in which to investigate and proceed against the patient before the running of the statute of limitations.

The trial court provided a hearing within twenty days, on January 27, 1997, and then continued the case for additional briefing and hearing, until March 10, 1997. At the first hearing, the plaintiff withdrew his request for the patient’s psychiatric records, with counsel stating: “It is my contention that that information is privileged.” At neither hearing did the plaintiff provide evidence as to why the abrogation of the statutory privilege was necessary to secure the information. There were no representations of counsel as to what, if any, efforts were made to investigate the claim.

The trial court was understandably troubled by the implications of its decision. It specifically acknowledged the breadth of the psychiatric shield law as applied to the facts of this case and the absence of any statutory exceptions for this matter. The issue of representation of the patient’s interest was disposed of on the basis that the court was not certain that the patient could be located at all or, in any event, before the statute of limitations was to run. The trial court offered no explanation as to why the right to redress was invoked by the plaintiffs late claim that a bill of discovery was now the most convenient method of securing information to further its investigation of the liability of the defendant and the patient.

The plaintiff asserted that “[t]here are no other adequate means in securing the information conveniently, effectively and completely.” (Emphasis added.) The plaintiff failed to submit any evidence as to why no other means existed, such as investigation based on leads derived from the plaintiffs knowledge concerning the patient’s real name. The essence of the plaintiffs claim is that the bill of discovery is preferable because it is convenient, effective and complete. Such a representation falls far short of a representation sufficient to override the statutory privilege. To override the privilege under circumstances such as those presented in this case, it would be reasonable to require, at least, that the plaintiff establish a factual predicate that no other adequate means of securing the information exists. See generally Kelley v. Bonney, 221 Conn. 549, 573, 606 A.2d 693 (1992); State v. Williams, 30 Conn. App. 654, 658, 621 A.2d 1365 (1993). To allow the privilege to be overcome based on mere convenience or expediency renders the privilege superfluous. It can hardly be seriously contended that failing to provide the most convenient way to obtain information about a putative defendant deprives a plaintiff of his constitutionally incorporated right to maintain an action. Sanborn v. Greenwald, 39 Conn. App. 289, 304, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). The right of redress is a vital, protected right that would, under appropriate circumstances, provide a basis for a judicial exception to the statutory privilege. The right of redress, however, should not be allowed to be trivialized by virtue of the plaintiffs manner of employing it in this case.

Our Supreme Court stated in Gentile v. Altermatt, supra, 169 Conn. 284, that General Statutes § 38-323, the statute being challenged in that case, “does not restrict the right to redress for an actionable injury but, rather, redefines the injury or the class of persons injured to which this constitutional right of redress attaches. What is of constitutional dimensions, then, is the right of redress and not the nature of the particular injury for which redress is sought. Stated differently, the right to redress in the courts must remain inviolate but it does not attach unless one suffers a recognized injury.”

Section 52-146e neither alters nor limits the nature of the cause of action that is constitutionally incorporated. Neither does it remove the particular injury from the realm of protection. Even in the case of limitations that directly affect or limit the particular action, we have determined that “ [reasonable conditions on a cause of action do not amount to a violation of the constitution. ... A strict and inflexible interpretation of article first, § 10, could affect the legislature’s ability to pass, enact and repeal laws.” (Citation omitted.) Sanborn v. Greenwald, supra, 39 Conn. App. 304. The court in Sanborn concluded that General Statutes § 52-577 “restricts the right only to the extent that it restricts the time for bringing the action. By analogy, if the § 13a-149 bar of an action against a municipality for injuries arising out of highway defects if notice is not given within ninety days, an action that existed at common law . . . can survive an attack on its constitutionality, we conclude that § 52-577 can also survive such an attack.” (Citation omitted.) Sanborn v. Greenwald, supra, 305.

The statute in question restricts in one respect the gathering of information that can lead to further investigation. In that capacity, it does not differ from the other statutory and common-law privileges. The plaintiff provided neither evidence nor authority to support the proposition that the right to redress was implicated or infringed in this case; neither the trial court nor the majority provided any analysis of why that principle commands the bypassing of § 52-146e in this case.

The trial court viewed this case as involving a clash of constitutional and statutory rights and privileges. While serious questions concerning important rights and privileges are suggested by the issues in this case, we are not engaged in resolving the conflict among them in the abstract. At the core of the matter, the factual record produced by the plaintiff fails to support his general claim that he is deprived of his right to redress. Under the circumstances, the extraordinary relief sought by the plaintiff is not appropriate.

It is important to note that under the statute, the patient is not protected from liability nor from proper means of discovery. The patient, however, should be protected from the disclosure of his identity and confidential communications with his psychiatrist, except as required by a valid exception to the statute. Accordingly, I would reverse the judgment of the trial court.

For the foregoing reasons, I respectfully dissent.

       General Statutes § 52-146e (a) provides: “All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146Í to 52-146Í, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.”

       The plaintiffs original request contained in the bill of discovery requested the full name, last known address, social security number and date of birth, the medical and psychiatric records of John Doe while he was an inpatient at the hospital during March, 1995, and all incident reports made by the defendant regarding the incident that occurred on or about March 15, 1995. At oral argument on the bill of discovery, the plaintiff withdrew his request for the psychiatric records of the patient in question, conceding that it was privileged information, and his request for the incident reports, as that information could be obtained through discovery. The trial court did not grant the plaintiffs request for John Doe’s date of birth.

       Although General Statutes §§ 52-146Í through 52-146Í enumerate exceptions to § 52-146e, the plaintiffs counsel agreed with the trial court at oral argument that none of the enumerated exceptions applies to this case.

       See footnote 3.

       See part II A of this opinion for a discussion of the plaintiff’s constitutional right.

       The defendant also relies on State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984). The defendant’s reliance on Esposito is, however, also misplaced. Esposito involved the defendant’s right to cross-examine a witness. While the Esposito court did indicate that the broad sweep of § 52-146e “covers not only disclosure to a defendant or his counsel, but also disclosure to a court even for the limited purpose of an in camera examination”; id., 178; this veil of secrecy is not absolute. Our Supreme Court noted that the trial court does have discretion in the material to be discovered if it is sought for impeachment purposes. Id., 179. The court discussed the procedure to be used to determine whether the claimed information is relevant for impeachment purposes. Id., 179-80. In the present case, the information is not only relevant, but necessary for the plaintiff to be able to file a claim against John Doe for the injuries that he alleges were sustained as a result of the assault.

       The defendant also argues that it has a duty to treat patients in confidence. Specifically, the defendant argues that publicizing John Doe’s identity will subject it to potential sanctions and civil liability. However, “[o]ur role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Lowe v. Lowe, 47 Conn. App. 354, 362, 704 A.2d 236 (1997). “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . . It is the responsibility of the appellant to provide an adequate record for review as provided in Section 61-10 [formerly § 4007].” Practice Book § 60-5, formerly § 4061; see also Lowe v. Lowe, supra, 362-63. The claim presented here by the defendant was not raised at trial. As such, we decline to review the merits of this claim.

       The defendant also argues that the trial court ordered the disclosure of the information “knowing that no Connecticut court had ever before released psychiatric information without a patient’s consent in response to a claimed constitutional challenge.” The cases cited involve the defendant’s right to confront a witness and attaining access to their psychiatric records in order to impeach a witness. See State v. McMurray, 217 Conn. 243, 258-59, 585 A.2d 677 (1991); State v. Bruno, 197 Conn. 326, 331-32, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986); In re Christopher G., 20 Conn. App. 101, 112, 564 A.2d 619 (1989), cert. denied, 213 Conn. 814, 569 A.2d 549 (1990). The defendant’s reliance on the authorities cited in support, of this assertion is misplaced. In those cases, the court, in its discretion, determined that the information requested was not relevant to the impeachment of the witness.

       Article first, § 10, of the constitution of Connecticut provides that “[a]ll courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” We note that an identical provision was contained in the 1818 constitution of Connecticut in article first, § 12.

       The Perkins court noted that the “definition [of the right to privacy in Black’s Law Dictionary (6th Ed. 1990)] clearly implicates the tort of invasion of privacy stated in the Restatement. 3 Restatement (Second), Torts § 652A (2) (1977).” Perkins v. Freedom of Information Commission, supra, 228 Conn. 171 n.15.

       The United States Supreme Court has expressed the opinion that the right of privacy is founded in the fourteenth amendment concept of personal liberty. See Whalen v. Roe, 429 U.S. 589, 598-99 n.23, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977), citing Roe v. Wade, 410 U.S. 113, 152-53, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).

       A common-law trespass provides a remedy for “all forcible, direct and immediate injuries, whether to a person or to property—or in other words, for the kind of conduct likely to lead to a breach of the peace by provoking immediate retaliation.” (Internal quotation marks omitted.) Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 52 n.2, 578 A.2d 1054 (1990). Trespass on the case provides a remedy for “obviously wrongful conduct resulting in injuries which were not forcible or not direct.” (Internal quotation marks omitted.) Id.

       The defendant’s reliance on the additional authority cited in support of this claim is also misplaced. See Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 954, 104 S. Ct. 2839, 81 L. Ed. 2d 786 (1984) (discussing doctrine of standing); Connecticut State Medical Society v. Commission on Hospitals & Health Care, supra, 223 Conn. 460 (discussing federal rule of jus tertii); Rockwell v. Bradshaw, 67 Conn. 8, 14, 34 A. 758 (1895) (involving action to determine construction of will and discussing what would have been claimed had trustees been made parties to action).

       It is not necessary for my purposes to reach the issue of whether a federal or state right of privacy exists to protect the patient. Significantly, my approach does not require the creation of a questionable exception to the broad dictates of § 52-146e based on judicial fiat. I assume, without deciding, for the purposes of this discussion, that a separate bill of discovery proceeding was an appropriate method of obtaining the information.

       When counsel for the Institute of Living requested that the trial court provide notice to the patient or at least have an attorney appointed to represent him, that request was ignored. The majority states that no representation is necessary because this court has upheld the trial court’s decision that the patient has no statutory right to protection under Sassone v. Lepore, 226 Conn. 773, 629 A.2d 357 (1993). I disagree. Representation is necessary under Sassone precisely because the patient’s statutory right was at issue in the trial court. The obligation to see that the patient was represented was urgent before, not after, the determination of whether the patient had a right.

       It should be noted that there are more than forty different statutory privileges in Connecticut. In addition, there are numerous common-law privileges, including the spousal, attorney-client and doctor-patient privileges, recognized under Connecticut law that restrict the dissemination and, therefore, the gathering of information.


author: SPEAR, J. SPALLONE, J.,

text:
    ANNE C. BEERS v. WESTPORT BANK AND TRUST COMPANY
    (AC 17097)
    Spear, Dupont and Spallone, Js.
    Argued February 20
    officially released October 6, 1998

      Charles W. Fleischmann, for the appellant (defendant).

      Peter J. Ottomano, for the appellee (plaintiff).
   Opinion

SPEAR, J.

The defendant appeals from the judgment of the trial court quieting title to certain real property in favor of the plaintiff. The defendant claims that the trial court improperly concluded that the defendant’s prejudgment attachment was invalid because the certificate of attachment incorrectly recited that the Superior Court in the judicial district of Danbury, rather than the Superior Court in the judicial district of Fairfield at Bridgeport, had issued the prejudgment remedy. We reverse the trial court’s judgment because we conclude that the prejudgment attachment was valid.

The following facts are relevant to this appeal. The plaintiff conveyed a three-quarter interest in the subject property in Westport to Mark Heirtzler on June 11,1985, and, on December 14, 1989, Heirtzler reconveyed his interest in the property to the plaintiff. The deed was not recorded at that time. On January 11, 1990, the defendant obtained a prejudgment remedy against Heir-tzler in the judicial district of Fairfield at Bridgeport, attaching a three-quarter interest in the property. The certificate of attachment was filed on January 16, 1990, in the Westport land records. The certificate, however, as well as the sheriffs return, incorrectly stated that the prejudgment remedy was ordered by and the process was returnable to the Superior Court in the judicial district of Danbury. The plaintiff recorded her deed to the property on July 26, 1990. Heirtzler and the defendant entered into a stipulated judgment, and a judgment lien was recorded on July 12, 1991. Because the judgment lien was recorded within four months of the judgment, the lien related back to January 16,1990, the date of the attachment. See General Statutes § 52-380a (b).

The plaintiff, after learning of the defendant’s judgment lien, commenced this quiet title action, claiming that the defendant’s 1990 attachment was invalid. Specifically, the plaintiff asserted that the certificate of attachment was fatally defective because it incorrectly identified the court that issued the attachment and to which process was returnable. The parties submitted their claims to an attorney trial referee. In a corrected report, the referee determined that the defect in the certificate of attachment did not render it invalid and recommended that judgment enter in favor of the defendant. The trial court rejected the report, concluding that the defect in the certificate of attachment was fatal and, therefore, there was no valid judgment lien. The trial court rendered judgment for the plaintiff, and this appeal followed.

The prejudgment remedy order issued from and the process was returnable to the judicial district of Fair-field at Bridgeport. The plaintiff claims that the error in referring to the judicial district of Danbury rendered the certificate of attachment invalid because General Statutes § 52-285 must be strictly followed in order to obtain a valid attachment. The defendant asserts that the defect is inconsequential and should not invalidate the certificate of attachment.

“In Connecticut, a prejudgment attachment is a provisional remedy afforded to a claimant to secure satisfaction of a judgment in the future. See Connecticut National Bank v. Voog, 233 Conn. 352, 659 A.2d 172 (1995). The right to a prejudgment attachment in Connecticut is statutory. General Statutes § 52-285; Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766, 628 A.2d 1303 (1993). The requirements for an attachment of real property include recordation of the certificate of attachment on the land records. General Statutes § 52-285. Upon recordation, a claimant obtains an inchoate hen until the time of the judgment. State v. Bucchieri, 176 Conn. 339, 348, 407 A.2d 990 (1978).” Shawmut Bank v. Brooks Development Corp., 46 Conn. App. 399, 410, 699 A.2d 283 (1997). “The statute is interpreted strictly because the right to attach property on mesne process, before the debt or claim has been established by judgment, is an extraordinary power given by statute against common right.” Anderson v. Briggs, 17 Conn. Sup. 437, 439 (1952), citing Ahern v. Purnell, 62 Conn. 21, 24, 25 A. 393 (1892).

In support of its claim that the defect is inconsequential, the defendant relies on the case of Joseph v. Donovan, 114 Conn. 79, 157 A. 638 (1931). In that case, the certificate of attachment was written on a preprinted form that could be used in either the Superior Court or the Court of Common Pleas for New Haven County. Id., 83. The party drafting the certificate failed to strike out the reference to the Court of Common Pleas so that the certificate indicated that it was returnable to the “Superior Court of Common Pleas” for the county of New Haven. Id. Our Supreme Court concluded that the defect was inconsequential, and the certificate, therefore, was valid, because “[a]ny person having occasion to examine the certificate could readily have ascertained in which of the two courts the action was pending, either from the recitals of the certificate itself or by enquiry . . . .’’Id.

The trial court distinguished the error here from that in Joseph by noting that inquiiy as to the correct court was far easier in Joseph because the certificate indicated that the action was pending in one of only two possible New Haven County courts. Here, the trial court reasoned that “contacting the Danbury court would not have led one to the Bridgeport court,” and “the success of this investigation might have required, as indicated by the referee, knowledge about the venue rules governing court filings.” We disagree with the trial court’s conclusion that the inquiry required here is so much more burdensome than in Joseph as to make the error in the present case fatal.

We first note that much has changed with respect to attachments of real estate since Joseph v. Donovan, supra, 114 Conn. 79. Most important is that a plaintiff now cannot simply attach a defendant’s interest in real estate as part of commencing a lawsuit, as was true prior to 1973. A court must first find probable cause before a prejudgment remedy of attachment of real property may issue. With certain exceptions, none of which would apply here, our law requires a hearing, where a prospective defendant may challenge in an adversarial proceeding, whether there is probable cause for an attachment to issue. See General Statutes § 52-278a et seq. The attachment by mesne process against common right discussed in Ahem v. Purnell, supra, 62 Conn. 21, is athing of the past. Although a determination of probable cause by a court is not a final decision as to liability of the property owner, it is a sufficient judicial protection to lessen the need for the kind of strict construction of the attachment statute as is advocated by the plaintiff here.

We next take notice of the fact that our court system today is centralized and under the administration of a chief court administrator. General Statutes § 51-5a. With our computerized systems, it seems highly unlikely that a person armed with the correct names and addresses of the parties as they appear in the certificate of attachment would encounter any significant difficulty in determining in which court such action was or is pending. Our Supreme Court has recognized that computerized records reflect “the revolution in data processing that is part of modern reality. ’ ’ American Oil Co. v. Valenti, 179 Conn. 349, 356, 426 A.2d 305 (1979).

Even without considering computerization, contacting the Danbury court and providing the names and Westport addresses of both parties could have been fruitful. Although the party inquiring might not have knowledge of the venue statutes, personnel in the clerk’s office in the Danbury court undoubtedly would be aware, or able to ascertain easily, that when all parties reside in Westport, civil process would be returnable to either the judicial district of StamfordNorwalk or the judicial district of Fairfield at Bridgeport.

Further, the purpose of § 52-285, which is to notify third parties of the prejudgment remedy on the property, is not undermined in any way by the defect in the certificate of attachment. Reciting an incorrect court location has little or no effect on a prospective purchaser or encumbrancer. The location of a pending action has little importance because the title owner is usually obligated to deliver title free of encumbrances to a purchaser and thus is responsible for removing the lien. A prospective mortgagee either already knows all the details of the underlying action or can readily ascertain the name of the correct court from the owner. An attaching creditor, to whom the owner might not be forthcoming, could, nevertheless, ascertain the correct court location by way of inquiry as previously discussed. In sum, all of the parties who would be put on notice by a certificate of attachment that names the wrong court could ascertain the name of the correct court, if necessary, by way of an inquiry that is not unduly burdensome.

Moreover, it is difficult to discern any prejudice to any third party because the wrong court was named in the certificate of attachment. The certificate here was sufficient to notify the plaintiff and any other third party of the overriding fact that the property was subject to a potential judgment lien that could relate back to the date that the certificate was filed. To invalidate the certificate here would be to exalt form over substance.

For all of the reasons stated, we conclude that the defect is inconsequential. The inquiry necessary to determine the correct court location is not so burdensome as to preclude applying the rationale of Joseph v. Donovan, supra, 114 Conn. 79.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion DUPONT, J., concurred.

SPALLONE, J.,

dissenting. I respectfully disagree with the majority and would sustain the judgment of the trial court.

The certificate of attachment dated January 16,1990, specified the wrong court—-judicial district of Danbury instead of judicial district of Fairfield at Bridgeport— as the authority granting the order of attachment and to which the process was returnable. The certificate of attachment in this case differs from that in Joseph v. Donovan, 114 Conn. 79, 83, 157 A. 638 (1931), where the defect was apparent on the face of the certificate (returnable to the nonexistent Superior Court of Common Pleas). In this case, there is not a patent defect in the certificate mandating inquiry.

“The right to attach property on mesne process, before the debt or claim has been established by judgment, is an extraordinary power, given by statute against common right, and in order to make a valid attachment officers must strictly observe the requirements of the laws relating to such attachments.” State v. Hartley, 75 Conn. 104, 107, 52 A. 615 (1902). The right to attach property is purely statutory. Farmers & Mechanics Savings Bank v. Garofalo, 219 Conn. 810, 813, 595 A.2d 341 (1991). General Statutes § 52-285 identifies the requirements for attaching real property in this state. Attachments did not exist at common law, and tying up a debtor’s property prior to the litigation of a creditor’s claim is a harsh remedy. Farmers & Mechanics Savings Bank v. Garofalo, supra, 814. Statutes regulating such attachment must be strictly construed. Id.

Section 52-285 mandates that to encumber the property effectively, a certificate of attachment “if completed as hereinafter provided . . . shall be signed by such officer, shall describe the land attached with reasonable certainty and shall specify the parties to the suit, the authority issuing the writ, the court to which the process is returnable and the amount of damages claimed; and, unless the service is so completed, such estate shall not be held against any other creditor or bona fide purchaser. . . .” (Emphasis added.)

Here, the certificate of attachment was facially correct. It did not, within its four comers, invite further inquiry. The inquiry anticipated in Joseph is immediately obvious and easily resolved. The trial court properly concluded, as a matter of law, that the defects in the certificate in this case rendered the certificate invalid.

The quoted portion of § 52-285 uses the mandatory “shall” four times and concludes that “unless the service is so completed, such estate shall not be held against any other creditor or bona fide purchaser.” The majority opinion does not strictly constme § 52-285.

The language of § 52-285 is plain and unambiguous. Where the wording is plain, as here, statutes should be interpreted to give efficacy to the policy that the legislation seeks to serve. Chrysler Corp. v. Maiocco, 209 Conn. 579, 591-92, 552 A.2d 1207 (1989); Aaron v. Conservation Commission, 183 Conn. 532, 538, 441 A.2d 30 (1981). The obvious legislative intent expressed in § 52-285 is that creditors or bona fide purchasers are not bound by attachments that are not filed in accordance with the mandates of § 52-285. The opinion of the majority defeats the legislative intent.

The other claims of error alleged by the plaintiff are without merit.

I would sustain the judgment of the trial court.

       The defendant also claims that the plaintiff had no right to challenge the defendant’s certificate of attachment because she received the warranty deed to the property on December 14, 1989, and failed to record it until after the certificate of attachment was filed. Moreover, the defendant claims that such a delay constituted laches. In view of our reversal of the judgment, it is not necessary for us to address these issues.

       General Statutes § 52-285 provides in relevant part: “Real estate shall be attached by the officer by leaving in the office of the town clerk of the town in which it is situated a certificate that he has made such attachment, which shall be endorsed by the town clerk with a note of the precise time of its reception and recorded at length in the land records of such town; and such attachment, if completed as hereinafter provided, shall be considered as made when such certificate has been so lodged. The certificate shall be signed by such officer, shall describe the land attached with reasonable certainty and shall specify the parties to the suit, the authority issuing the writ, the court to which the process is returnable and the amount of damages claimed; and, unless the service is so completed, such estate shall not be held against any other creditor or bona fide purchaser. . . .” (Emphasis added.)

       In its brief, the defendant frames this issue as challenging the trial court’s rejection of the referee’s finding of facts. The defendant’s brief makes clear, however, that the question presented is a legal one, challenging the trial court’s conclusion that the certificate of attachment was invalid. It is a well established rule in Connecticut that a trial court is not bound by the legal conclusions of a referee. CMG Realty of Connecticut, Inc. v. Colonnade One Ltd. Partnership, 36 Conn. App. 653, 664, 653 A.2d 207 (1995); see also Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 510, 508 A.2d 415 (1986). The referee’s conclusion that the certificate was valid, therefore, is irrelevant to our consideration of this issue.

         The trial court, in reviewing the referee’s report, was not engaged in fact-finding, and its statements regarding the burden of inquiry are not findings of fact that would be subject to a clearly erroneous standard of review. We view these statements as part of the trial court’s legal analysis of the reach of our Supreme Court’s holding in Joseph v. Donovan, supra, 114 Conn. 79.

       General Statutes § 51-9 provides in relevant part: “Under the supervision and direction of the Chief Court Administrator, the executive secretary and other members of the staff of the Office of Chief Court Administrator shall . . . (17) Design, implement and maintain, as deemed feasible by the Chief Court Administrator, computerized automatic data processing systems for use in the Supreme Court, Appellate Court and Superior Court or divisions of the Superior Court . . . .”

        General Statutes § 51-5a (b) provides in relevant part: “The Chief Court Administrator may establish reasonable fees for conducting searches of court records. . . .”

       General Statutes § 51-345 (a) (3) (E) provides in relevant part: “If either the plaintiff or defendant resides in the town of . . . Westport ... the action may be made returnable at the option of the plaintiff to either the judicial district of Stamford-Norwalk or the judicial district of Fairfield.”

         See footnote 2.

       Such an exaltation would be particularly egregious here where the parties both state in their briefs that the plaintiff is an experienced real estate agent and Heirtzler is her son-in-law. The plaintiff, in lieu of inquiring of the court, very likely could have ascertained the correct court from her son-in-law or from the defendant if she, in fact, wanted such information.


author: SCHALLER, J.

text:
    STEPHEN TIROZZI v. SHELBY INSURANCE COMPANY
    (AC 17498)
    Lavery, Schaller and Dupont, Js.

      Argued May 26
    officially released October 13, 1998

      Dominie J. Caciopoli, with whom, on the brief, was Rocco J. Tirozzi, for the appellant (plaintiff).

      Patrick M. Mullins, with whom was Ann Grunbeck Monaghan, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Stephen Tirozzi, appeals from the summary judgment rendered by the trial court in favor of the defendant, Shelby Insurance Company. On appeal, the plaintiff claims that the trial court improperly determined that res judicata bars this second action when both the Connecticut legislature and the Supreme Court have changed and clarified the law that denied him recovery in the first action to enable him now to recover against his employer’s motor vehicle insurer. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On September 21,1991, the plaintiff, while in the course of his employment for Brewmaster Services, Inc., (Brewmaster) was injured in an automobile accident. Brewmaster maintained uninsured-under-insured motorist coverage with the defendant. The plaintiff settled his claim against the driver of the other automobile involved in the accident for $50,000, the policy limit of the other driver’s coverage. Having exhausted the limits of the tortfeasor’s policy, the plaintiff claimed additional underinsured motorist coverage from the defendant. The claim was denied, and in 1993 the plaintiff brought an action (first action) against the defendant seeking his employer’s underinsured motorist benefits. In that proceeding, the trial court struck the plaintiff’s complaint on the basis of CNA Ins. Co. v. Colman, 222 Conn. 769, 774, 610 A.2d 1257 (1992), which held that the Workers’ Compensation Act prohibits an injured employee from collecting uninsured motorist benefits from his employer’s insurer. The plaintiff failed to replead pursuant to Practice Book § 157, now § 10-44, and, as a result, judgment entered in the defendant’s favor on April 11, 1994. The plaintiff took no appeal from that judgment.

On January 1, 1994, No. 93-297 of the 1993 Public Acts (P.A. 93-297) became effective. That act, which amended General Statutes § 38a-336, allows an injured employee to collect uninsured motorist benefits despite having received workers’ compensation benefits. In Reliance Ins. Co. v. American Casualty Co. of Reading, Pennsylvania, 238 Conn. 285, 291, 679 A.2d 925 (1996), our Supreme Court held that P.A. 93-297, § 1 (f), was to be given retroactive effect. The Reliance Ins. Co. court based its decision on the theory that that statute clarified existing law and was a “declaration of the legislature’s original intent regarding the interplay of the exclusivity provision of the workers’ compensation laws and the uninsured motorist laws.” Id., 289.

On the basis of Reliance Ins. Co., the plaintiff brought the present action (second action) in December, 1996. The defendant filed a motion for summary judgment on the ground that the plaintiffs second action was barred by the doctrine of res judicata. Thereafter, the plaintiff filed an amended complaint alleging, in the first count, the claim for underinsured motorist benefits and, in the second count, a claim under the accidental failure of suit statute, General Statutes § 52-592. The plaintiff filed an opposition to the summary judgment motion. The trial court granted the defendant’s motion for summary judgment, concluding that the second action was barred by res judicata and that the accidental failure of suit statute is inapplicable because the first action was not terminated for any of the reasons designated in the statute.

Before turning to the merits of this appeal, we note that our standard of review of a trial court’s grant of summary judgment is well established and is set forth in Practice Book § 17-49. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 5, 698 A.2d 795 (1997); Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). “The test is whether a party would be entitled to a directed verdict on the same facts. Connell v. Colwell, 214 Conn. 242, [247], 571 A.2d 116 (1990).” (Internal quotation marks omitted.) Beebe v. East Haddam, 48 Conn. App. 60, 64, 708 A.2d 231 (1998).

“A motion for summary judgment ‘is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.’ Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985).” Beebe v. East Haddam, supra, 48 Conn. App. 64. As this appeal involves questions regarding the applicability of res judicata, it presents a question of law, which we review de novo. Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 58, 588 A.2d 138 (1991); Schratwieser v. Hartford Casualty Ins. Co., 44 Conn. App. 754, 757, 692 A.2d 1283, cert. denied, 241 Conn. 915, 696 A.2d 340 (1997).

The plaintiff concedes that the trial court in the first action correctly decided the motion to strike against the plaintiff based on CNA Ins. Co. v. Colman, supra, 222 Conn. 769, which was the existing authority at that time. The plaintiff acknowledges, however, that had he waited until after the Reliance Ins. Co. decision, he might have prevailed on his claim. The plaintiff argues that because Reliance Ins. Co. declared that P.A. 93-297, § 1 (f), clarified existing law, he should have the benefit of what was deemed to be existing law, despite the adverse decision in the first action. The plaintiff argues in essence for an exception to the doctrine of res judicata for a situation where a change in the law occurs by virtue of a clarifying act of the legislature. In support of his position, the plaintiff cites primarily federal and sibling state case law and Miles v. Strong, 68 Conn. 273, 36 A. 55 (1896). The defendant argues that no such exception to the doctrine of res judicata exists under our law and that the accidental failure of suit statute is inapplicable.

“ ‘[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. Cromwell v. County of Sac, 94 U.S. 351, 352-53, 24 L. Ed. 195 (1876); 1 Restatement (Second), [Judgments] §§ 19, 25 [1982]; James & Hazard, Civil Procedure (2d Ed.) § 11.3.’ State v. Aillon, 189 Conn. 416, 423-24, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983). The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.” Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589, 674 A.2d 1290 (1996). Furthermore, “[t]he judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest. . . . The conservation of judicial resources is of paramount importance as our trial dockets are deluged with new cases daily. We further emphasize that where a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding. But the scope of matters precluded necessarily depends on what has occurred in the former adjudication.” (Citation omitted; internal quotation marks omitted.) State v. Ellis, 197 Conn. 436, 466-67, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990).

“The fact that a prior judicial determination may be flawed ... is ordinarily insufficient, in and of itself, to overcome a claim that otherwise applicable principles of res judicata preclude it from being collaterally attacked. ... If the judgment [in the prior action] is erroneous, the unsuccessful party’s remedy is to have it set aside or reversed in the original proceedings.” (Citations omitted; internal quotation marks omitted.) CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 395, 685 A.2d 1108 (1996); see also Deposit Bank v. Frankfort, 191 U.S. 499, 24 S. Ct. 154, 48 L. Ed. 276 (1903); Ellentuck v. Klein, 570 F.2d 414 (2d Cir. 1978); 1 Restatement (Second), supra, § 17, comment (d), p. 150.

Each of the elements of res judicata is satisfied in this case. The identity of the parties to the actions are the same: Tirozzi was the sole plaintiff, and Shelby Insurance Company was the sole defendant in both actions. The same claim, demand or cause of action is at issue: In both actions the plaintiff sought damages under his employer’s underinsured motorist coverage. The judgment in the first action was rendered “on the merits” by a court of competent jurisdiction. The motion to strike required the trial court to decide the merits of the plaintiffs claim. The parties had the opportunity to fully litigate the matter. The motion to strike was contested, and both parties participated in oral argument. The plaintiff argued to the trial court that P.A. 93-297, which had been adopted at the time of argument, overruled the decision in Colman and, therefore, he should be allowed to recover underinsured motorist benefits from his employer’s insurer for his accident, which occurred prior to the effective date of the public act. After the trial court granted the motion to strike, the plaintiff neither repleaded pursuant to Practice Book § 10-44 nor took an appeal. The plaintiff, therefore, had an adequate opportunity to litigate the matter in the first action and to seek appellate review.

Connecticut law provides no exception to res judicata for erroneous decisions. CFM of Connecticut, Inc. v. Chowdhury, supra, 239 Conn. 395. We recognize, further, that in this case the trial court’s decision complied with the then existing law and that any error in its application of Colman to this situation resulted solely from a recognition by our Supreme Court that the law had been changed by virtue of legislative clarification in P.A. 93-297. Nonetheless, neither this court nor our Supreme Court has recognized an exception to res judi-cata for situations where there is a change in the law by clarification. To the contrary, although not binding on this court, the United States Supreme Court has held that “the res judicata consequences of a final, unap-pealed judgment on the merits [are not] altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.” Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S. Ct. 2424, 69 L. Ed. 2d 103 (1981). We conclude that the plaintiff is barred from relitigating the claims in this second action.

“Our rules of res judicata are based on the public policy that a party should not be allowed to relitigate a matter which it already has had an opportunity to litigate.” (Internal quotation marks omitted.) Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 363-64, 511 A.2d 333 (1986). The trial court correctly determined that the judgment in the first action was preclusive and, by failing to replead or take an appeal, the plaintiff abandoned his opportunities to avoid res judicata.

The plaintiff also argues that the accidental failure of suit statute, § 52-592, saves his cause of action. That statute “is designed to prevent a miscarriage of justice if the plaintiffs fail to get a proper day in court due to the various enumerated procedural problems. It is not a device for avoiding our well-settled rules of res judi-cata.” Legassey v. Shulansky, 28 Conn. App. 653, 659, 611 A.2d 930 (1992). The first action was decided on the merits, not on any of the categories enumerated in § 52-592, and therefore that statute is not applicable here. In addition, we note that the second action was not brought within the one year time period prescribed by the accidental failure of suit statute. For those reasons, the plaintiff cannot prevail on this theory.

The judgment is affirmed.

In this opinion the other judges concurred.

       Public Act 93-297, § 1 (f), which is currently codified at General Statutes § 38a-336 (f), provides: “Notwithstanding subsection (a) of section 31-284, an employee of a named insured injured while occupying a covered motor vehicle in the course of employment shall be covered by such insured’s otherwise applicable uninsured and underinsured motorist coverage.”

       General Statutes § 52-592 (a) provides: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.

       Practice Book § 17-49 provides: “The judgment sought 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.”