author: Foti, J.

text:
    State of Connecticut v. Paul Deptula
    (12093)
    Foti, Landau and Cretella, Js.
    Argued November 29, 1993
    decision released April 5, 1994

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were Mark S. Solak, state’s attorney, and Mark Stabile, supervisory assistant state’s attorney, for the appellant (state).

      Pamala J. Favreau, assistant public defender, for the appellee (defendant).
   Foti, J.

The state of Connecticut appeals from the. judgment rendered by the trial court granting the defendant’s motion to dismiss the information charging him with violation of probation under General Statutes § 53a-32. The state argues that the trial court improperly concluded that § 53a-32 does not authorize the revocation of probation for criminal acts committed after sentencing but prior to the commencement of the probationary period, even when the arrest warrant is issued after the commencement of probation. We affirm the judgment of the trial court.

The facts are not disputed. In May, 1990, the defendant was convicted of assault in the second degree in violation of General Statutes § 53a-60 (conviction one) and sentenced to a term of imprisonment of five years, execution suspended after two years, followed by three years of probation. On April 30, 1991, while serving the two year custodial portion of his sentence, the defendant was placed on supervised home release.

In July, 1991, the defendant was arrested for assault arising out of an incident that occurred in June, 1991, while the defendant was on home release. The defendant was returned to the confines of the correctional facility. He was tried and convicted on October 18, 1991, of assault in the second degree in violation of General Statutes § 53a-60 (a) (1) and pleaded nolo contendere to being a persistent felony offender in violation of General Statutes § 53a-40 (b) (conviction two). He was sentenced to ten years, execution suspended after six years followed by four years of probation, to run concurrent with the sentence on conviction one.

The custodial portion of the defendant’s sentence on conviction one expired on October 15,1991, and on that date probation commenced. An arrest warrant for violation of probation was issued on November 12,1991. The warrant was not executed, however, until October 20, 1992, while the defendant was in the custody of the department of correction on conviction two. The affidavit accompanying the warrant cited conviction two as the ground for the violation of probation and as demonstrating that the defendant was not worthy of having the opportunity of probation. A hearing was held on this matter on December 29,1992, and the trial court dismissed the warrant and information.

Conviction two was subsequently reversed by this court and the matter remanded for a new trial in State v. Deptula, 31 Conn. App. 140, 623 A.2d 525, cert. granted, 226 Conn. 911, 628 A.2d 984 (1993). Our Supreme Court granted the state’s petition for certification to appeal this court’s reversal of conviction two, and, while the present appeal from the dismissal of the revocation information was pending before this court, our Supreme Court dismissed the state’s appeal on conviction two. State v. Deptula, 228 Conn. 852, 635 A.2d 812 (1994). Consequently, our reversal of conviction two stands.

I

Before we reach the merits of the appeal, we must first consider whether this court has jurisdiction to render a decision in this case. At oral argument, the state conceded that, if the Supreme Court affirmed our ruling on conviction two, the present appeal would be moot because conviction two was the basis for the probation revocation in the present case. A finding of a violation of probation must be reversed if the underlying conviction, on which the probation violation was solely based, is reversed. State v. Martinez, 22 Conn. App. 808, 577 A.2d 1072 (1990); State v. Soltes, 20 Conn. App. 342, 347, 566 A.2d 1374 (1989), appeal dismissed, 215 Conn. 614, 577 A.2d 717 (1990); State v. Drouin, 12 Conn. App. 101, 102 n.1, 529 A.2d 740 (1987). In this case, the specific basis for the violation of probation was conviction two, which was set aside by this court. The violation of probation charge, therefore, must also be set aside.

“It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985). We have also held, however, that where the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, it may be capable of repetition, yet evading review. Id., 572. In deciding whether to invoke this mitigating principle, we have considered not only the practical difficulties of timely judicial review but also (1) the public importance of the question presented; (2) the potential effect of the ruling on an ongoing program of the state’s penal or civil system; and (3) the possibility of a similar effect on the plaintiff himself in the future. Shays v. Local Grievance Committee, supra, 572-73 .... Moshier v. Goodnow, 217 Conn. 303, 307, 586 A.2d 557 (1991).” (Internal quotation marks omitted.) Perry v. Perry, 222 Conn. 799, 803, 611 A.2d 400 (1992).

It is not necessary for the state to obtain a conviction in order to establish a violation of probation arising out of criminal conduct. See State v. Scott, 31 Conn. App. 660, 663, 626 A.2d 817 (1993). Therefore, regardless of the result of the new trial ordered by this court on remand, the state may again charge the defendant with a violation of probation based on the conduct that led to conviction two. The defendant’s probationary period on conviction one will expire on October 15, 1994, and the defendant may again be faced with a revocation of that probation. We conclude that the appeal is not moot because it is capable of repetition and evades review.

Our Supreme Court has reached the merits under similar circumstances. See Delevieleuse v. Manson, 184 Conn. 434, 437, 439 A.2d 1055 (1981) (reviewing whether plaintiff was entitled to credit toward separate sentences for time in presentence custody even though plaintiff had completed his sentence); Taylor v. Robinson, 171 Conn. 691, 694, 372 A.2d 102 (1976) (reviewing whether inmates were entitled to bail pending the outcome of parole proceedings even though they had been paroled before appeals were heard).

The issue raised in the present case is analogous to the one decided in Liistro v. Robinson, 170 Conn. 116, 121-22, 365 A.2d 109 (1976). There, our Supreme Court reached the merits of two companion cases concerning whether equal protection required allowing bail for alleged parole violators awaiting revocation hearings even though the parties were no longer aggrieved. Id.

As in Liistro, all of the required factors are present in this case. The public importance of a question concerning the constitutionality of a statute cannot be ignored. The state’s ongoing home release and probation programs will be affected by our decision, as well as, potentially, the current system of plea bargaining. Finally, this defendant can plausibly maintain that there is a distinct likelihood that he will find himself facing a similar violation of probation charge in the future. This appeal, therefore, is not moot.

II

The issue to be decided is whether the issuance of an arrest warrant during the probationary period of a sentence, based on conduct that occurred during the custodial portion of the sentence, can be the basis of proceedings under General Statutes § 53a-32. While the narrow issue presented is one of first impression in this state, there is guiding precedent on this general subject matter.

“Probation is the product of statute. See General Statutes § 53a-28 et seq.” State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988). It commences upon the termination of the custodial portion of the sentence by operation of law. General Statutes § 53a-31 (a); State v. Wright, 24 Conn. App. 575, 579, 590 A.2d 486 (1991). “There is no doubt that the court may order probation and take it away. General Statutes §§ 53a-29 through 53a-34.” State v. Carey, 222 Conn. 299, 306, 610 A.2d 1147 (1992); see footnote 2. “Revocation [of probation] is a continuing consequence of the original conviction from which probation was granted.” State v. Smith, supra, 178.

A defendant on probation is accorded certain rights. “No such revocation shall be ordered, except upon consideration of the whole record and unless such violation [of probation] is established by reliable and probative evidence.” General Statutes § 53a-32 (b). “ ‘The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation.’ ” State v. Davis, 29 Conn. App. 801, 805, 618 A.2d 557 (1993), rev’d on other grounds, 229 Conn. 285, 641 A.2d 370 (1994). The defendant must be given notice and a hearing. General Statutes § 53a-32 (a).

“A revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served.” State v. Davis, supra, 29 Conn. App. 805. The first step requires a factual finding and the second, the exercise of discretion. Id.

The state points to the federal system and asks that we look instead only to the general purposes of probation — to afford an opportunity for rehabilitation — when deciding whether probation should be revoked. The state argues that a defendant who commits another criminal offense after sentencing, but before the period of probation has commenced, demonstrates by his conduct that he may not be an appropriate candidate for probation. The original assessment that he is a “good risk” should be reviewed, in light of the fact that the possibility of rehabilitation may no longer exist.

While we might agree with the state’s argument, it applies only to the second part of a revocation hearing — the discretionary portion dealing with whether the beneficial aspects of probation are no longer effective. Before reaching that issue, the court is first required to find that a violation of probation has occurred. We cannot conclude that because a defendant may no longer seem receptive to the rehabilitative dimension of probation, as evidenced by the commission of a crime while in custody, that he has necessarily violated a condition of probation.

Consequently, we must address whether a violation of probation can occur under these circumstances— whether a violation of probation can occur before probation has begun. While we can turn to other states and to the federal system for guidance if needed, we must first look to our own statutory scheme. This area is governed by General Statutes § 53a-32 (a), which provides in pertinent part: “At any time during the period of probation . . . the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation . . . .”

The state concedes that the defendant was still serving the custodial portion of his sentence when the events on which the violation of probation is predicated occurred. The state argues, however, that since the warrant for violation of probation was issued on November 12, 1991, after the commencement of the probationary period, the state has complied with § 53a-32 (a), requiring that the warrant issue “during the period of probation.” We read the phrase “during the period of probation,” however, to modify both when a warrant may issue and when a violation of any of the conditions of probation must occur.

Our interpretation is supported not only by the plain language of the statute, but also by the differences in status between a probationer and a prisoner on home release. “[T]he rights of an individual on supervised home release are unique in that they lie somewhere between those of a [probationer] and those of an incarcerated inmate . . . .” State v. Whitfield, 26 Conn. App. 103, 107, 599 A.2d 21 (1991). “As our Supreme Court pointed out, supervision of the home release participant continues to be vested in the department of correction, as it is for someone who is incarcerated. [Asherman v. Meachum, 213 Conn. 38, 48, 566 A.2d 663 (1989)].” State v. Whitfield, supra, 108. Conversely, a probationer is subject to judicial control and the court has the freedom to modify or enlarge the conditions of probation if necessary. Liistro v. Robinson, supra, 170 Conn. 128. The person on supervised home release is subject to special conditions of the program and to penalties different from those of a probationer if he fails to comply. Clearly, the situations of a prisoner on home release and a person on probation are different. The legislature has set out separate schemes of treatment with different consequences of not complying with the established conditions. It is in keeping with these schemes that a violation of probation cannot occur until the probationary period has begun.

Although proof of conviction alone may be sufficient to sustain a revocation of probation; State v. Roberson, 165 Conn. 73, 80, 327 A.2d 556 (1973); that proof must necessarily show that the accused is the person referred to in the conviction, and that the acts that constituted the basis for that conviction occurred while that person was on probation. Our Supreme Court has commented, in affirming a trial court’s revocation of probation, that “[h]ere the defendant, afforded a hearing and represented by counsel, admitted having been convicted of a felony and the admitted evidence showed that the underlying act was committed by the defendant while on probation. ” (Emphasis added.) Id., 81. It is the probationer’s conduct during the period of probation which must conform to the prescribed standard.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state requested and was granted permission to file this appeal pursuant to General Statutes § 54-96, which provides: “Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       General Statutes § 53a-32 provides in pertinent part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. . . . [T]he court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.
      “(b) If such violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

       “A revocation of probation proceeding based upon a violation of a criminal law need not be deferred until after a disposition of the charges underlying the arrest because the purpose of a probation revocation hearing is to determine whether a defendant’s conduct constituted an act sufficient to support a revocation of probation; Payne v. Robinson, 10 Conn. App. 395, 523 A.2d 917 (1987) [aff’d, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988)] . . . .” State v. Smith, 18 Conn. App. 368, 370 n.1, 558 A.2d 257 (1989).

       A criminal conviction requires a standard of proof different from that required to prove a violation of probation. “The standard of proof to be applied by the trial court in deciding whether a probationer has violated a condition of probation is the reasonable satisfaction standard, wherein the trial court must have a rational belief that the ‘evidence is adequate or sufficient to prove a violation.’ State v. Davis, 29 Conn. App. 801, 811, 618 A.2d 557 [cert. granted, 225 Conn. 918, 623 A.2d 1024] (1993).” State v. Carey, 30 Conn. App. 346, 350, 620 A.2d 201, cert. granted, 225 Conn. 922, 625 A.2d 823 (1993).

       “Despite the fact that neither plaintiff has an immediate interest in the outcome, we have decided to consider the defendants’ appeals. The single issue involved is one which is capable of repetition, yet evading review. . . . It directly affects the ongoing parole program of the state’s penal system, and could very well affect the plaintiffs who are now reparoled. Hence, practical relief can follow directly from our decision and ‘the public importance of the question involved makes it desirable that we decide the point.’ . . .” (Citations omitted; internal quotation marks omitted.) Liistro v. Robinson, 170 Conn. 116, 121-22, 365 A.2d 109 (1976).
      The merits were reached even though it was the wardens, not the parolees, who brought the appeals. In so doing, the court focused on the possibility of repetition to the parolees, not the aggrieved parties, the wardens. This resembles the facts of the present case in which the state appeals.

       General Statutes § 53a-28 (c) provides in pertinent part: “A sentence to a period of probation or conditional discharge in accordance with sections 53a-29 to 53a-34, inclusive, shall be deemed a revocable disposition, in that such sentence shall be tentative to the extent that it may be altered or revoked in accordance with said sections . . .

       See footnote 2.

       A person on home release who flees supervision may be charged with the separate crime of escape. State v. Whitfield, supra, 26 Conn. App. 108.

       We also note that the sentencing court will generally take into consideration the fact that commission of a crime occurred while on supervised home release. See, e.g., State v. Adams, Superior Court, judicial district of New Haven, Docket No. CR6-324958 (March 1, 1993). The sentencing court in this case was apprised of the circumstances surrounding the crime leading to conviction two, but again sentenced the defendant to a period of probation as well as to a period of incarceration.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    Merrill Lynch and Company et al. v. City of Waterbury
    (12097)
    Dupont, C. J., Heiman and Freedman, Js.
    Argued December 7, 1993
    decision released April 5, 1994

      Michael P. Kaelin, with whom, on the brief, were Taggart D. Adams and George C. Springer, Jr., for the appellants (plaintiffs).

      Thomas K. McDonough,assistant corporation counsel, for the appellee (defendant).
   Freedman, J.

The plaintiffs, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith (MLPF & S), Merrill Lynch Asset Management, Inc., Frederick M. Genung, and Edmund C. Hyland, appeal from the decision of the trial court staying the arbitration of the claims ruled arbitrable until after the completion of the judicial proceedings involving the nonarbitrable claims. The sole issue presented is whether a trial court, after finding certain claims to be arbitrable and compelling arbitration as to those claims, may then stay the arbitration proceedings until the nonarbitrable claims have been resolved by the court.

This appeal stems from a dispute between the city of Waterbury and the plaintiffs regarding the purchase of Colonial Diversified Zero Coupon Bonds with funds from the city’s retirement account. The procedural history of this case is complicated. On April 16,1991, the city, the defendant herein, commenced an action against all of the plaintiffs in this case (first action). The amended complaint contained five counts. The first three counts were directed against the plaintiffs, while the two remaining counts concerned other parties not involved in this appeal. On May 30, 1991, in the first action, the plaintiffs herein filed a motion to stay the judicial proceedings pursuant to General Statutes § 52-409 and 9 U.S.C. § 3, and a motion to compel arbitration pursuant to General Statutes § 52-410 and 9 U.S.C. 5 4.

On November 1, 1992, before the trial court made its decision in the first action, the plaintiffs commenced this action pursuant to § 52-410 seeking to compel the city to arbitrate certain claims. It is from this second action that the plaintiffs presently appeal. The trial court issued its memorandum of decision in the first action on November 30, 1992, finding that the plaintiffs had not filed a separate writ of summons and complaint as required by § 52-410. The trial court further found that KND Corp. v. Hartcom, Inc., 5 Conn. App. 333, 336-37, 497 A.2d 1038 (1985), sanctioned the use of a § 52-409 motion to compel arbitration when the issue of arbitration was injected into a case by a defendant. The trial court went on to find that the arbitration clause at issue applied only to the claims against MLPF & S and Genung, and, therefore, granted the motion to compel arbitration and the motion to stay the judicial proceedings as to those two parties only. The trial court, however, then went on to stay the arbitration of the claims ruled arbitrable until the completion of the judicial proceedings of the nonarbitrable claims. On December 18,1992, the plaintiffs appealed from the decision in the first action, and, on December 23, 1992, they filed a motion in the trial court to consolidate the two actions. The trial court granted the motion to consolidate the two actions and ordered that its decision issued in the first action apply as well to this action.

On January 26, 1993, the plaintiffs filed this appeal from the decision of the trial court as it applied to this action. The city filed motions to dismiss both appeals on December 24, 1992, and February 5, 1993, respectively. On March 17, 1993, we granted the motion to dismiss the appeal from the first action for lack of a final judgment and denied the motion to dismiss the appeal from this action.

The question now before us is whether the trial court, after granting the motions to compel arbitration and to stay the judicial proceedings with respect to MLPF & S and Genung, improperly stayed the arbitration pending the termination of the judicial proceedings involving the other parties. It is important to note at the outset the issues that the plaintiffs are not challenging, which are, therefore, not before this court. The plaintiffs do not challenge the trial court’s determination as to what claims are arbitrable and what claims are nonarbitrable, nor do they appeal the stay of judicial proceedings with respect to MLPF & S and Genung. They challenge only the propriety of the trial court’s decision to stay the arbitration proceedings.

We are concerned with only the second action, the action to compel arbitration pursuant to § 52-410. The trial court found that the parties had agreed that their dealings involved interstate commerce and, thus, that the Federal Arbitration Act (FAA); 9 U.S.C. §§ 1 through 14; was applicable. In Volt Information Sciences, Inc. v. Stanford University, 489 U.S. 468, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989), the United States Supreme Court held that while the FAA preempts the application of state laws that render arbitration agreements unenforceable, it does not preempt the application of state law in a case where the parties have chosen in their arbitration agreement to abide by the law of a particular state. Id., 472. “[B]ecause [t]he thrust of the federal law is that arbitration is strictly a matter of contract . . . the parties to an arbitration agreement should be at liberty to choose the terms under which they will arbitrate.” (Citations omitted; internal quotation marks omitted.) Id. Thus, in a situation where “the parties have chosen in their agreement to abide by the state rules of arbitration, application of the FAA to prevent enforcement of those rules would actually be inimical to the policies underlying state and federal arbitration law . . . because it would force the parties to arbitrate in a manner contrary to their agreement.” (Citations omitted; internal quotation marks omitted.) Id.

Here, the contract between the parties provided that it was to be governed by and construed in accordance with the laws of the state of New York. At trial neither party proceeded under the procedural laws of New York but chose instead the procedural laws of Connecticut. Where the parties try a case under a particular theory and the trial court decides the case under that theory, upon review, we will also apply that same theory. See Newington v. Mazzoccoli, 133 Conn. 146, 151-52, 48 A.2d 729 (1946); Brierley v. Johnson, 131 Conn. 675, 679, 42 A.2d 34 (1945); Freund v. Burns, 131 Conn. 380, 388, 40 A.2d 754 (1944); Ohlin v. Kowner, 96 Conn. 394, 401, 114 A. 117 (1921); New Haven Water Co. v. Russell, 86 Conn. 361, 364-65, 85 A. 636 (1912); Staub’s Appeal from Probate, 66 Conn. 127, 134, 33 A. 615 (1895); Gemme v. Goldberg, 31 Conn. App. 527, 534, 626 A.2d 318 (1993): W. Maltbie, Connecticut Appellate Procedure (2d Ed. 1957) § 42. The plaintiffs filed their motions to compel and stay, in the first action, pursuant to General Statutes §§ 52-409 and 52-410 as well as to 9 U.S.C. §§ 3 and 4. In the action that is the subject of this appeal, the plaintiffs proceeded under § 52-410 only. The trial court found that both parties “seemingly have agreed that their dealings affect interstate commerce and come under the . . . FAA” and the trial court decided the case under both the FAA and Connecticut law.

We, however, need not address the applicability of 9 U.S.C. §§ 3 and 4, as this action was brought pursuant to § 52-410.

Section 52-410 provides a mechanism by which a party to a contract containing an arbitration clause, who desires arbitration of a dispute, “may apply to the trial court . . . for an order directing the parties to proceed with arbitration.” (Emphasis in original.) Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 768, 613 A.2d 1320 (1992).

“[I]n granting or denying an order directing the parties to proceed with arbitration under § 52-410, the trial court must determine whether the contract between the parties provides for arbitration.” Id., 768-69. Once that determination is made, however, the statute requires that the trial court “either grant the order or deny the application according to the rights of the parties.” General Statutes § 52-410.

Here, the trial court did just that: it granted the order to proceed with arbitration. The trial court went further, however, and granted a stay of the claims ruled arbitrable until the completion of the judicial proceedings of the nonarbitrable claims. Nothing in the plain language of the statute authorizes the trial court to do more than grant the order or deny the application. In fact, staying the arbitration is contrary to the intent of the legislature in enacting the arbitration statutes. The language of § 52-410 “demonstrates that the legislature, like the courts, favor[s] arbitration as a means of settling differences and expediting the resolution of disputes.” (Internal quotation marks omitted.)Fishman v. Middlesex Mutual Assurance Co., 4 Conn. App. 339, 346, 494 A.2d 606, cert. denied, 197 Conn. 806, 499 A.2d 57 (1985). Thus, the decision by the trial court to stay the arbitration until the completion of the judicial proceeding of the nonarbitrable claims exceeded the trial court’s statutory authority.

That portion of the judgment staying the arbitration until the nonarbitrable claims are resolved is vacated.

In this opinion the other judges concurred.

       The trial court did the following three things: it granted the plaintiffs’ motion to compel arbitration as to the plaintiffs MLPF & S and Genung, it granted the plaintiffs’ motion to stay the judicial proceedings as to the plaintiffs MLPF & S and Genung, and it stayed the claims ruled arbitrable until the completion of the judicial proceedings involving the nonarbitrable claims.

       The plaintiffs in this case are the defendants in the first case. In this opinion we refer to them as the plaintiffs. The city of Waterbury is the plaintiff in the first case and the defendant in this case. We refer to it in this opinion as the city.

       General Statutes § 52-409 provides: “If any action for legal or equitable relief or other proceeding is brought by any party to a written agreement to arbitrate, the court in which the action or proceeding is pending, upon being satisfied that any issue involved in the action or proceeding is referable to arbitration under the agreement, shall, on motion of any party to the arbitration agreement, stay the action or proceeding until an arbitration has been had in compliance with the agreement, provided the person making application for the stay shall be ready and willing to proceed with the arbitration.”

       Section 3 of title 9 of the United States Code provides: “If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.”

       General Statutes § 52-410 provides in pertinent part: “(a) A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court . . . for an order directing the parties to proceed with the arbitration in compliance with their agreement. The application shall be by writ of summons and complaint, served in the manner provided by law. . . .
      “(c) The parties shall be considered as at issue on the allegations of the complaint unless the defendant files answer thereto within five days from the return day, and the court or judge shall hear the matter either at a short calendar session, or as a privileged case, or otherwise, in order to dispose of the case with the least possible delay, and shall either grant the order or deny the application, according to the rights of the parties.”

       Section 4 of title 9 of the United States Code provides in pertinent part: “A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court ... for an order directing that such arbitration proceed in the manner provided for in such agreement. . . . The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. . . .”

       The plaintiffs commenced this action as a result of our Supreme Court’s decision in Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 613 A.2d 1320 (1992), released on September 1, 1992, which held that a decision granting a stay of judicial proceedings in response to a motion filed pursuant to General Statutes § 52-409 is interlocutory and is not a final judgment for the purpose of an appeal. A decision in response to an action filed pursuant to General Statutes § 52-410, however, was held to be a final judgment from which either party may appeal.

       See footnote 5.

       The trial court, recognizing this, stated in a footnote that “ft]he parties appear to have forgotten that the cash management account agreement between the [city] and MLPF & S specifies that it ‘shall be governed by and construed in accordance with the laws of the State of New York.’ No analysis of New York law has been offered to the court.”


author: Per Curiam.

text:
    Peter H. Ertel v. Leslie Carothers, Commissioner of Environmental Protection et al.
    (11351)
    Dupont, C. J., Landau and Heiman, Js.
    Argued February 24
    decision released April 5, 1994

      Peter H. Ertel, pro se, the appellant (plaintiff).

      David H. Wrinn, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, and Joseph Rubin, assistant attorney general, for the appellee (named defendant).
   Per Curiam.

The plaintiff appeals from the judgment of the trial court dismissing the plaintiffs administrative appeal from the decision of the department of environmental protection. On appeal to the trial court, the plaintiff was obligated, by the provisions of General Statutes (Rev. to 1989 as in effect until July 1, 1989) § 4-183 (b), to serve the appeal petition on the agency and all parties of record. The record discloses that the agency permitted Oak Leaf Marina, Inc., Scott Masse and Sherry Masse to become parties to these proceedings as intervenors, and, as parties, were entities that the plaintiff was required to serve pursuant to the statute.

Our review of the record reveals that the deputy sheriff, in attempting to serve Oak Leaf Marina, Inc., made service, according to his return, as follows: “Also on the 2nd day of June, 1989, I left a true and attested copy of the within original writ, summons and complaint/petition/appeal, motion for stay and unsigned order with and in the hands of Stephen Richard, Esquire, of the law firm of Robinson & Cole, who is authorized to accept service for the within named defendant, Oak Leaf Marina, Inc., in the Town of Hartford.” The sheriff’s return also indicates that service of the appeal documents was purportedly made on Scott Masse and Sherry Masse by service on attorney Stephen Richard of the law firm of Robinson & Cole, “who is authorized to accept service for the within named defendants] Scott Masse . . . [and Sherry Masse] in the Town of Hartford.”

General Statutes § 52-57 (c) provides the method for service of process on private corporations, while subsection (a) of that statute provides the method of making service of process on individual defendants in civil cases. The trial court found that no effective service was made on the corporate defendant nor was any proper in hand or abode service made on either Scott Masse or Sherry Masse. Because of the deficiency in the service of process on both the corporate party and the named individual parties, the trial court found that it lacked subject matter jurisdiction and dismissed the plaintiff’s appeal. We agree.

Appeals from administrative agencies exist only under statutory authority; Rose v. Freedom of Information Commission, 221 Conn. 217, 223, 602 A.2d 1019 (1992); and, to exercise the statutorily granted right of appeal, the appellant must strictly comply with the statutory authority by which the right of appeal is created. Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 163-64, 561 A.2d 931 (1989). Only the agency qualified for service by certified mail, and it was therefore incumbent on the plaintiff to make in hand or abode service on the individual parties pursuant to § 52-57 (a) and by serving a proper corporate officer or listed employee as mandated by § 52-57 (c). The plaintiff failed to do so. Rather, he served the attorney for the parties. Thus, the service failed to comply with the statutes.

“The appeal provisions of the statute are jurisdictional in nature”; Basilicato v. Dept. of Public Utility Control, 197 Conn. 320, 324, 497 A.2d 48 (1985); thus, the failure of the plaintiff to comply strictly with the mandates of General Statutes (Rev. to 1989 as in effect until July 1, 1989) § 4-183 (b) and General Statutes § 52-57 (a) and (c) renders the appeal subject to dismissal for lack of subject matter jurisdiction in the trial court. Tarnopol v. Connecticut Siting Council, supra, 212 Conn. 163. Once the matter of lack of subject matter jurisdiction comes to the attention of the trial court, even if it results from a suggestion of the trial court suo motu, the trial court can proceed no further until the issue is resolved. Felletter v. Thompson, 133 Conn. 277, 280, 50 A.2d 81 (1946); see also Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 851, 633 A.2d 305 (1993) (setting forth right of trial court to raise issue of lack of subject matter jurisdiction sua sponte). “Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found . . . that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Practice Book § 145; see Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 557, 630 A.2d 1304 (1993).

We conclude that the trial court properly found a lack of subject matter jurisdiction over this administrative appeal and thus properly dismissed the action.

The judgment is affirmed.

       General Statutes (Rev. to 1989 as in effect until July 1,1989) § 4-183 (b) provides: “Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.”

       General Statutes § 52-57 (c) provides in pertinent part: “In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located . . . .”

       General Statutes § 52-57 (a) provides: “Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.”

       “ ‘Each agency proceeding commenced before July 1,1989, is governed by the law in effect when the proceeding was commenced.’ ” Vernon Village, Inc. v. Carothers, 217 Conn. 130, 138, 585 A.2d 76 (1991). General Statutes § 4-183 (b) as it existed at the time of the commencement of the proceeding herein required service of the petition on the agency and all parties of record.


author: O’Connell, J.

text:
    Harold Fischel et al. v. TKPK, Ltd., et al.
    (12176)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued January 12
    decision released April 5, 1994

      Theodore R. Tyma, for the appellants (defendant Michelle C. Minogue et al.).

      Michael J. Lawrence, for the appellees (plaintiffs).
   O’Connell, J.

The defendants Thomas E. Minogue and Michelle C. Minogue (hereinafter the defendants) appeal from the granting of a prejudgment remedy (PJR) of attachment of their real property. The defendants claim that the trial court improperly granted the PJR because (1) the plaintiff failed to show probable cause to sustain its claim, (2) the PJR statutes; General Statutes § 52-278a et seq.; are unconstitutional because they do not require the plaintiff to post a bond, and (3) the PJR statutes violate the due process clause of the United States constitution. We affirm the judgment of the trial court.

This action arose out of a commercial real estate lease. In 1988, the plaintiff leased commercial real estate located at 37 Unquowa Road in Fairfield to the named defendant, TKPK, Ltd. Payment and performance of the subject lease was guaranteed by the defendants Thomas E. Minogue and Michelle C. Minogue. In January, 1991, TKPK, Ltd., defaulted on the lease payment and subsequently abandoned the property. TKPK, Ltd., is no longer a party to this action. After a demand by the plaintiff, the Minogues, as guarantors, failed to make the required rent payments on behalf of TKPK, Ltd. On May 17, 1991, the plaintiff commenced this action to recover damages for nonpayment. After revising the complaint several times, the plaintiff filed a PJR application in June, 1992, seeking to secure $75,000. Following a probable cause hearing, the trial court granted the application for attachment of the defendants’ property in the amount of $60,000. This appeal followed.

I

General Statutes § 52-278d (a) provides that a trial court may issue a PJR if it determines that there is “probable cause to sustain the validity of [the plaintiff’s] claim.” It is firmly established that the trial court’s hearing in probable cause is not intended to be a full scale trial on the merits of the plaintiff’s claim. “The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . . The court’s role in such a hearing is to determine probable success by weighing probabilities. . . .” (Internal quotation marks omitted.) Calfee v. Usman, 224 Conn. 29, 37, 616 A.2d 250 (1992). Probable cause for purposes of the PJR statutes is a flexible common sense standard that does not demand that a belief be correct or more likely true than false. Goodwin v. Pratt, 10 Conn. App. 618, 621, 524 A.2d 1168 (1987).

Appellate review of the granting of a PJR is extremely narrow and focused. In determining probable cause, the trial court is vested with wide discretion and our role in reviewing the trial court’s action is limited to determining whether the court’s conclusion was reasonable. Anderson v. Nedovich, 19 Conn. App. 85, 88, 561 A.2d 948 (1989). Accordingly, the trial court’s determination in a PJR proceeding should not be disturbed unless it is clearly erroneous. Mullai v. Mullai, 1 Conn. App. 93, 95-96, 468 A.2d 1240 (1983). Furthermore, we are “entitled to presume that the trial court acted properly and considered all the evidence. . . . There is, of course, no presumption of error.” (Citations omitted.) Solomon v. Aberman, 196 Conn. 359, 376, 493 A.2d 193 (1985).

“ ‘In the absence of clear error [the Appellate Court] should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility .. . of the witnesses.’ ” Three S. Development Co. v. Santore, 193 Conn. 174, 176, 474 A.2d 795 (1984); New England Land Co. v. DeMarkey, 213 Conn. 612, 621, 569 A.2d 1098 (1990).

Our review of the trial court’s conclusions of law is likewise severely limited. “Thus, we do not decide whether the legal conclusions reached by the trial court were correct or erroneous. We review the legal conclusions of the trial court only to the limited extent of determining whether its conclusion^] [were] reasonable. . . . This can only mean that if review of the record indicates that the trial court reached legal conclusions which have a reasonable basis, those conclusions must stand, even though a plenary review of them might well yield a different result. Any more complete process would lead us into the trap of determining the ultimate correctness of legal conclusions which the trial court has decided are only probably correct, and doing so on the basis of facts which the trial court has decided are only probably true, but which it has not found to be proven by a preponderance of the evidence.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 394, 480 A.2d 561 (1984).

In the present case, the trial court found that there is “a reasonable probability that [the plaintiff] will be able to prove [the validity of the transaction] at trial, so there is, consequently, the probability of validity of this action, this claim.” Nothing more is required. Questions raised by the defendants concerning the power of an undisclosed principal to enforce the guaranty agreement require further examination of the facts and law and must be reserved for the full trial. The $60,000 amount of the PJR is not in dispute.

The trial court properly determined that there was probable cause to support the plaintiffs application.

II

The defendants next complain that the Connecticut PJR statutes are unconstitutional because they do not require that a plaintiff seeking a PJR post a bond or other security. Our attention has not been directed to a trial court ruling on this issue. Examination of the transcript discloses that the defendant raised the issue in argument. Following a colloquy between the court and defense counsel on this issue, however, they went off on a tangent involving other matters. Consequently, the trial court never ruled on the bond issue. We cannot pass on the correctness of a trial court ruling that was never made. To be entitled to review, a claim must be both raised and decided in the trial court. Berry v. Loiseau, 223 Conn. 786, 828-29, 614 A.2d 414 (1992).

If the defendants intended to take up this issue on appeal, it was their obligation to move for articulation to create an adequate record for appellate review. Without such articulation the defendants have failed to furnish a proper record for review. Practice Book § 4061; Walton v. New Hartford, 223 Conn. 155, 164-65, 612 A.2d 1153 (1992).

Ill

The defendants next argue that the probable cause standard of our PJR statutes violates the due process clause of the fourteenth amendment to the constitution of the United States because it is vague, without standard, and permits a party unfair tactical advantage over an adversary.

This issue was not raised in the trial court. The rules of practice provide that the Appellate Court is not bound to consider a claim that was not distinctly raised at trial. Practice Book § 4185. “This rule applies to constitutional claims. . . . [OJnly in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court. . . . The [defendants have] pointed us to no such exceptional circumstances in the present case and, accordingly, we decline to review the merits of this claim.” (Citations omitted; emphasis added; internal quotation marks omitted.) Berry v. Loiseau, supra, 223 Conn. 828-29. In part II of this opinion, the issue was raised but not decided; in this part the issue was neither raised nor decided. State v. Brown, 199 Conn. 14, 29, 505 A.2d 690 (1986); State v. Robinson, 14 Conn. App. 146, 148, 539 A.2d 1037, cert. denied, 208 Conn. 805, 545 A.2d 1101 (1988).

The judgment is affirmed.

In this opinion the other judges concurred.

       The term plaintiff refers to the named plaintiff, Harold Fischel, individually, doing business as Fischel Management. There are, however, two other plaintiffs in this appeal, Harold Fischel as trustee for his daughters’ trusts and Trust Realty Corporation. Harold Fischel, as trustee for his daughters’ trust, originally owned the property in question and entered into the initial lease transaction with the defendants. Subsequent to the lease transaction, Harold Fishel, as trustee, conveyed the property by quitclaim deed, and thereafter assigned the lease to Trust Realty Corporation. During the entire lease period, the named plaintiff served as landlord and agent for Harold Fischel, trustee.

       The plaintiffs submitted this PJR application subsequent to the institution of the present action pursuant to General Statutes § 52-278h.


author: Schaller, J.

text:
    Katherine Maluszewski v. Allstate Insurance Company
    (12024)
    Landau, Freedman and Schaller, Js.

      Argued December 1, 1993
    decision released April 5, 1994

      Raymond T. DeMeo, with whom was Stephen E. Goldman, for the appellant-appellee (defendant).

      William J. Sweeney, Jr., for the appellee-appellant (plaintiff).
   Schaller, J.

The defendant, Allstate Insurance Company, appeals from the judgment of the trial court confirming an arbitration award in the amount of $130,000 in favor of the plaintiff, Katherine Maluszewski. The defendant claims that the trial court improperly confirmed the award by failing to apply (1) a de novo standard of review to matters of law, (2) a consent to settle provision, and (3) an offset for uninsured-underinsured motorist coverage from another insurer. The plaintiff filed a cross appeal from the court’s denial of her motion for supplemental judgment, claiming that the trial court improperly denied her request for interest from the date of the arbitration award. We affirm the judgment of the trial court.

The following facts are relevant to the appeal and cross appeal. On June 16,1989, the plaintiff was a passenger on a motorcycle driven by Carmen Gianni. A collision occurred between Gianni’s motorcycle and a motorcycle driven and owned by Julian Albrecht. The plaintiff was injured in the accident and sought to recover various insurance moneys.

At the time of the accident, the plaintiff’s parents had an insurance policy issued by the defendant that had uninsured-underinsured limits of $50,000 for each of three vehicles; the total available coverage was $150,000. Although the plaintiff was not the policyholder, she was an insured under the policy issued to her parents. Gianni’s policy with Progressive Casualty Insurance Company (Progressive) provided him with liability and uninsured motorist coverage limited to a total of $250,000. Albrecht had no liability insurance coverage.

The plaintiff sought to recover under Gianni’s policy with Progressive. Progressive, Gianni and the plaintiff settled the claim, whereby the plaintiff collected $20,000 from Gianni’s liability coverage and $230,000 from Gianni’s uninsured-underinsured motorist coverage. The plaintiff, however, neither requested nor received the defendant’s written consent before entering into the settlement with Gianni and Progressive.

The plaintiff also sought to recoup uninsuredunderinsured motorist coverage from the defendant. On the eve of trial, the plaintiff and the defendant entered into an “Arbitration Agreement” that provided the following: “Claimant Katherine Maluszewski and Respondent Allstate Insurance Company hereby agree to submit to arbitration the issues of uninsured/ underinsured motorist coverage and claimant’s right to receive any damages, or the amount of damages.

“The parties agree that the Allstate Insurance Policy AU106-1 and endorsement AU1697-2 are hereby modified by this Agreement to include this arbitration clause pursuant to and in accordance with Connecticut General Statutes § 38a-336.

“The parties, in agreeing to submit this matter to arbitration pursuant to Connecticut General Statutes § 38a-336 specifically reserve their rights to proceed under Connecticut General Statutes § 52-408 through § 52-424. The parties also reserve their right to court review of any award pursuant to American Universal Insurance Company v. DelGreco, 205 Conn. 178 [530 A.2d 171] (1987).”

A panel of three arbitrators heard the case, and, by a two-to-one decision, issued the following award: “The arbitrators award the Claimant the sum of $130,000.00 against Allstate in full and final resolution of all the claims submitted to them.” The $130,000 represented the $150,000 available under the plaintiff’s parents’ policy minus the $20,000 from Gianni’s liability coverage paid by Progressive. The arbitrators found that Albrecht was 100 percent responsible for the accident, and that the plaintiff’s damages totaled $875,000 “net of all collateral source payments.” (Emphasis added.) At the arbitration proceeding, the defendant attempted to raise the defense that the plaintiff, by failing to obtain the defendant’s written consent to enter a settlement agreement with Gianni and Progressive, had breached a provision of the defendant’s policy. The arbitrators concluded, however, that the defendant had waived this defense because it was not raised in a timely manner.

The plaintiff applied to the Superior Court to confirm the arbitrators’ award pursuant to General Statutes § 52-417. The defendant filed an application seeking that the court vacate, modify, or correct the arbitrators’ award pursuant to General Statutes § 52-418. The trial court determined that the parties had voluntarily submitted the issues of coverage and damage to the arbitrators, and, as a result, the court’s review was limited to the question of whether the award conformed to the submission. The court held that the award did conform to the submission, and rendered judgment confirming the award. The defendant now claims that the trial court improperly confirmed the award because the arbitrators’ determination that coverage was available under the defendant’s policy was incorrect.

I

The Defendant’s Appeal

A

We must first determine the standard of review that the trial court was required to apply in reviewing the decision of the arbitrators. This inquiry hinges on whether the arbitration was voluntary or compulsory, and, if voluntary, whether the submission was restricted or unrestricted.

If the parties engaged in voluntary arbitration, the trial court’s standard of review, provided that the submission was unrestricted, would be limited to whether the award conformed to the submission. Bridgeport v. Connecticut Police Dept. Employees Local 1159, 32 Conn. App. 289, 292-94, 628 A.2d 1336, cert. denied, 227 Conn. 925, 632 A.2d 703 (1993). If the parties engaged in voluntary, but restricted, arbitration, the trial court’s standard of review would be broader depending on the specific restriction. For example, a typical restriction is that the arbitrators’ award must conform to the law. “Had the parties restricted the authority of the arbitrators by including in their arbitration agreement a proviso that the arbitrators’ award must not be contrary to law, the court would have been bound to enforce the restriction. See Board of Trustees v. Federation of Technical College Teachers, [179 Conn. 184, 187, 425 A.2d 1247 (1979)]; Chase Brass & Copper Co. v. Chase Brass & Copper Workers Union, [139 Conn. 591, 594-96, 96 A.2d 209 (1953)].” Bodner v. United Services Automobile Assn., 222 Conn. 480, 490, 610 A.2d 1212 (1992).

If the parties engaged in compulsory arbitration, “[u]pon judicial review of compulsory arbitration proceedings pursuant to § 38a-336 (c), ‘the reviewing court must conduct a de novo review of the interpretation and application of the law by the arbitrators.’ American Universal Ins. Co. v. DelGreco, [supra, 205 Conn. 191].” Stephan v. Pennsylvania General Ins. Co., 224 Conn. 758, 763, 621 A.2d 258 (1993).

The defendant presents two arguments. In its brief and at oral argument, the defendant contended that the arbitration agreement modified the insurance policy to provide for compulsory arbitration. At oral argument, however, the defendant conceded that the parties had voluntarily entered into the arbitration agreement, and suggested that the agreement contained restrictions mandating that the trial court treat the arbitration as compulsory and exercise de novo review of the arbitrators’ conclusions of law. We disagree with both contentions and conclude that the parties submitted their claims to voluntary, unrestricted arbitration.

As set forth above, the arbitration agreement contains three paragraphs. The first paragraph contains the submission, whereby the plaintiff and the defendant framed the issues for arbitration as those of coverage and damages, if any, without explicitly restricting the power of the arbitrator or expanding the review of the award by the court. As such, the first paragraph provides for voluntary, unrestricted arbitration. The defendant argues, however, that the second and third paragraphs either incorporate compulsory arbitration into the policy or restrict the voluntary submission by providing for de novo review of the arbitrators’ conclusions of law. Paragraph two provides that the parties “modified” the insurance policy to incorporate “this arbitration clause pursuant to and in accordance with Connecticut General Statutes § 38a-336 . . . .” Paragraph three states that the parties “submit this matter to arbitration pursuant to ... § 38a-336 If

We first address the defendant’s argument that the parties modified the insurance policy to provide for compulsory arbitration. We note at the outset that the plaintiff was not a party to the original policy, but rather an insured who benefited under the policy. “The relations of the parties to an insurance policy are contractual and when the proceeds of the policy are made payable to a third person, it is properly characterized as a third party beneficiary contract. 1 Williston, Contracts, §§ 357, 369.” Shaw v. John Hancock Mutual Life Ins. Co., 120 Conn. 633, 638, 182 A. 472 (1936). The plaintiff’s parents and the defendant, as parties to the contract, retained the rights to modify the contract. “For a valid modification, there must be mutual assent to the meaning and conditions of the modification and the parties must assent to the same thing in the same sense . . . if they are to vary the contract in any way. Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 402, 365 A.2d 1086 (1976).” (Emphasis added; internal quotation marks omitted.) Manzin v. United Bank & Trust Co., 6 Conn. App. 513, 516, 506 A.2d 169 (1986). Because the plaintiff was not a party to the policy, therefore, she and the defendant lacked the power to modify the policy to incorporate a compulsory arbitration clause.

We next address the defendant’s second argument that the second and third paragraphs restricted the submission by providing for de novo review by the trial court. A basic contradiction exists between the voluntary, unrestricted submission in paragraph one, and the statements regarding § 38a-336 in paragraphs two and three. The defendant concedes that the arbitration agreement was voluntary because the two parties agreed to submit the claim for arbitration, yet it argues that, by invoking § 38a-336, the arbitration is subject to the standard of review for compulsory arbitration. Section 38a-336 (c) has been characterized as a compulsory arbitration provision; see Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 657, 591 A.2d 101 (1991); and has been construed to provide a de novo standard of review for questions of law decided in compulsory arbitration proceedings. Stephan v. Pennsylvania General Ins. Co., supra, 224 Conn. 763. Because we have determined that the parties voluntarily agreed to submit the issues to arbitration, the only issue remaining is whether the submission was restricted to provide for de novo review. The standard of review derived specifically from § 38a-336 (c) is implicated only where the arbitration was compulsory. We conclude, accordingly, that the second paragraph does not alter the voluntary agreement and unrestricted submission set forth in the first paragraph.

In paragraph three, the parties reserved their rights pursuant to §§ 52-408 through 52-424, as well as their right to “court review” of the award pursuant to American Universal Ins. Co. v. DelGreco, supra, 205 Conn. 191. The defendant again argues that the inclusion of these provisions implies that the standard for reviewing an award obtained in compulsory arbitration must be applied to this case. Section 52-418 (a) (4), the provision at issue, concerns the trial court’s powers to vacate an arbitration award. Because the term “court review” referred to in this section applies to both compulsory or voluntary proceedings, the inclusion of that term does not mandate that the trial court exercise de novo review of the arbitrators’ legal conclusions. Id., 184-91, discusses court review of both compulsory and voluntary arbitration. There is no specific language in paragraph three that limits the powers of the arbitrators or expands judicial review of the voluntary, unrestricted submission set forth in paragraph one.

Moreover, the parties easily could have provided that the arbitrators’ conclusions of law would be subject to de novo review. The failure explicitly to do so in this case leaves the submission unrestricted. As a result, the trial court applied the proper standard of review, namely, whether the award conformed to the submission.

B

Having determined that the trial court applied the proper standard of review, we must examine the trial court’s determination that the award did conform to the submission. Our Supreme Court recently explained in Garrity v. McCaskey, 223 Conn. 1, 7-11, 612 A.2d 742 (1992), that review of an award pursuant to § 52-418 (a) (4) can include an inquiry into whether the arbitrators exhibited a manifest disregard for the law when issuing the award. The court stated that “[i]n order to prevail, the defendant must demonstrate that the award reflects an egregious or patently irrational rejection of clearly controlling legal principles.” Id., II. The court noted, however, that “[bjecause we do not review an arbitrator’s decision merely for errors of law, in the present case we do not decide the merits of the defendant’s argument .... Even if the arbitrators were to have misapplied the law . . . such a misconstruction of the law would not demonstrate the arbitrators’ egregious or patently irrational rejection of clearly controlling legal principles.” Id., 11-12.

In its motion to vacate the award, the defendant alleged, pursuant to § 52-418 (a) (4), that the arbitrators “exceeded their powers or so imperfectly executed them that a mutual, final and definite award . . . was not made.” On appeal, the defendant contends that the arbitrators exceeded their powers and exhibited a manifest disregard of the law by failing to consider the merits of the defendant’s substantive argument concerning an offset of the insurance. The defendant argues that moneys available under the defendant’s policy should have been offset by $250,000, the amount provided to the plaintiff by Progressive. Contrary to the defendant’s contentions, the arbitrators did consider whether an amount, if any, should be offset by the $250,000 settlement with Progressive. The arbitrators concluded that despite the defendant’s waiver of the defense that the plaintiff had breached a consent to settle clause, the defendant still would not be able to recover from Gianni or Progressive because Albrecht was totally at fault for the accident. The arbitrators then determined that the defendant’s $150,000 coverage could be offset by only $20,000, the amount of Progressive’s liability coverage. The arbitrators’ decision to reduce the $150,000 by $20,000 indicates that they considered the matter of offsetting. We conclude that § 52-418 does not encompass the defendant’s claims. The terms of the award are clear, and the award conforms to the issues submitted. Accordingly, we affirm the judgment of the trial court confirming the award.

II

The Plaintiff’s Cross Appeal

The plaintiff has filed a cross appeal in which she claims that the trial court improperly denied her motion for supplemental judgment, in which she requested prejudgment interest from the date of the arbitration award to the date of judgment pursuant to General Statutes § 37-3a. The trial court denied the motion, stating from the bench that it would “give the insurance company the benefit of the doubt in this matter and accept the claim that [Allstate] had made [its] arguments in good faith, and the court will not award interest in this matter.” The trial court did not file a memorandum of decision on the motion.

An award of interest is primarily an equitable determination within the discretion of the trial court. Stephan v. Pennsylvania General Ins. Co., supra, 224 Conn. 765; Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 701-702, 590 A.2d 957 (1991). “The salient inquiry is whether the court could have reasonably concluded as it did. ... It goes without saying that the term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds. . . . [State v. Arbour, 29 Conn. App. 744, 748, 618 A.2d 60 (1992)].” (Citations omitted; internal quotation marks omitted.) Halloran v. North Canaan, 32 Conn. App. 611, 614, 630 A.2d 145 (1993). “In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959).” (Internal quotation marks omitted.) Id.

The court’s determination regarding the award of interest “should be made in view of the demands of justice rather than through the application of any arbitrary rule. . . . [Middlesex Mutual Assurance Co. v. Walsh, supra, 218 Conn. 702.] Whether interest may be awarded depends on whether the money involved is payable; General Statutes § 37-3a; see White Oak Corporation v. Department of Transportation, 217 Conn. 281, 302, 585 A.2d 1199 (1991); and whether the detention of the money is or is not wrongful under the circumstances. . . . Middlesex Mutual Assurance Co. v. Walsh, [supra, 218 Conn. 702].” (Internal quotation marks omitted.) Stephan v. Pennsylvania General Ins. Co., supra, 224 Conn. 765.

In this case, both parties presented arguments to the trial court about the propriety of an award of prejudgment interest. The defendant contended that it had made good faith legal arguments in its motion to vacate, focusing on the point that the trial court should have applied a de novo standard of review to the legal conclusions made by the arbitrators. The court determined that the defendant had made good faith arguments in moving to vacate the arbitration award, implying that the detention of moneys prior to judgment by the defendant was not wrongful. Upon review of the record before us, we conclude that the trial court did not abuse its discretion in refusing to award prejudgment interest to the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-417 provides in pertinent part: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court ... for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       General Statutes § 52-418 provides in pertinent part: “(a) Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects . . . (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       We note that the defendant does not dispute the arbitrators’ determination that the plaintiff suffered damages or the amount of those damages, but rather contends that the arbitrators improperly determined the amount of coverage, if any, that was authorized for those damages.

       General Statutes § 38a-336 (e) provides: “Each automobile liability insurance policy issued on or after October 1,1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1, 1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.”

       See generally Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992) (discussing voluntary, unrestricted submission that is subject to review pursuant to General Statutes § 52-418); Bodner v. United Services Automobile Assn., supra, 222 Conn. 486-87 (discussing judicial review of compulsory arbitration pursuant to § 52-418); Lawrence v. New Hampshire Ins. Co., 29 Conn. App. 484, 494-95, 616 A.2d 806, cert. denied, 224 Conn. 923, 618 A.2d 528 (1992) (discussing judicial review of compulsory arbitration pursuant to General Statutes §§ 52-418 and 52-419).

       On the basis of our determination that our standard of review is limited to a determination of whether the award conformed to the submission, we will not review the legal bases of the defendant’s claim regarding the consent to settle provision. The defendant has made no claim under Garrity v. McCaskey, supra, 223 Conn. 1, that the arbitrators exhibited a manifest disregard of the law concerning the consent to settle provision when issuing the award.

       See footnote 2.

       We note that the defendant did not allege on appeal that the arbitrator’s determination with regard to the consent to settle provision amounted to a manifest disregard of law pursuant to Garrity v. McCaskey, supra, 223 Conn. 1. Because we have concluded that the award conformed to the submission, and that the trial court properly confirmed the award, we need not address the merits of the defendant’s claim that the arbitrator improperly applied the consent to settle provision.

       General Statutes § 37-3a provides in pertinent part: “Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909 . . . .”


author: Landau, J.

text:
    DeWitt Boyce v. State Farm Insurance Company
    (12280)
    Landau, Freedman and Schaller, Js.
    Argued December 1, 1993
    decision released April 5, 1994

      Bruce D. Jacobs, with whom was Irene P. Jacobs, for the appellant (plaintiff).

      Daniel P. Scapellati, with whom, on the brief, were John W. Lemega and Elizabeth A. Curtis, for the appellee (defendant).
   Landau, J.

The plaintiff appeals from the judgment of the trial court confirming the decision of an arbitration panel to prohibit “stacking” the plaintiffs three insurance policies. The plaintiff claims that the trial court improperly (1) applied the substantial evidence standard of review to a legal question, and (2) upheld the arbitrators’ finding that the three policies were separate and distinct under Covenant Ins. Co. v. Coon, 220 Conn. 30, 594 A.2d 977 (1991).

The relevant facts are undisputed. On June 10,1988, the plaintiff, DeWitt Boyce, was injured in an automobile collision. At the time of the accident, the plaintiff was a passenger in a car owned by him and his wife, and operated by his wife. The vehicle was insured under a policy issued by the defendant, State Farm Insurance Company. The plaintiff owned two other vehicles that were also insured by the defendant. Each of the three insurance policies had its own policy number, but were identical in all other respects. The coverage amounts for uninsured and underinsured motorist limits on each vehicle were $250,000 per person, $500,000 per accident.

The plaintiff commenced an action against Ernest Petersen and Ann Petersen, the owners of the other vehicle involved in the accident, claiming personal injuries. The Petersens’ personal liability coverage totaled $300,000. After settling his claim with them for the face amount of the policy, the plaintiff made a claim for underinsured motorist benefits under his own insurance policies. State Farm denied coverage asserting that the three policies issued to the plaintiff were separate and distinct, and that under Covenant Ins. Co., which prohibited stacking of such policies, the tortfeasor’s vehicle was not underinsured. Under the terms of the plaintiff’s policy, and pursuant to General Statutes § 38a-336, the parties submitted their dispute to a three member arbitration panel.

On August 11, 1992, a majority of the arbitrators found that the plaintiff was not entitled to stack the underinsured motorist coverage for the purpose of determining if the vehicle was underinsured. The panel found that the policies were separate and distinct, that, under Covenant Ins. Co., stacking such policies was prohibited, and therefore, under § 38a-336, the tortfeasor was not underinsured.

The plaintiff filed an application to vacate the arbitration award and the defendant sought confirmation of the award. After a hearing, the trial court denied the plaintiff’s application to vacate and rendered judgment confirming the award. This appeal followed.

The plaintiff’s first claim is that the trial court improperly applied the “substantial evidence” standard of review when it considered the issue whether the three underinsured motorist coverages within the plaintiff’s three policies could be stacked for the purpose of determining underinsurance. He contends that the issue before the trial court was a contract construction question, which is a question of law, and, therefore, subject to de novo review.

Prior to the hearing, the parties agreed that the sole issue before the arbitration panel was whether the underinsured motorist coverage of the plaintiff’s three insured vehicles could be stacked under the holding of Covenant Ins. Co. v. Coon, supra, 220 Conn. 30. In determining whether a vehicle is underinsured, “§ 38a-336 [(d)] clearly states that the aggregate of the liability limits under all of the tortfeasor’s policies are to be compared with the uninsured motorist coverage limit of the policy against which a claim is made.” (Emphasis in original.) Id., 35. The statute “refers to the . . . uninsured motorist provisions in the singular.” Id., 35-36. This reading required the arbitration panel to determine, as a matter of fact, whether the three insurance coverages issued to the plaintiff by the defendant could be deemed a singular policy or three separate and distinct policies.

“ ‘When reviewing an arbitration panel’s factual findings considering underinsured motorist coverage, our courts’ standard of review is whether the arbitrators’ findings are supported by substantial evidence.’ Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 21, 615 A.2d 1032 (1992); Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 660-61, 591 A.2d 101 (1991).” Allstate Ins. Co. v. Howe, 31 Conn. App. 132, 135, 623 A.2d 1031, cert. denied, 226 Conn. 911, 628 A.2d 983 (1993). “In determining whether there was substantial evidence to support the arbitrators’ findings, ‘[t]he trial court’s role was not to draw inferences from [the] evidence presented to the arbitrators, but rather to discover whether the arbitrators’ findings of fact were reasonable.’ D’Addio v. Connecticut Ins. Guaranty Assn., [30 Conn. App. 729, 735, 622 A.2d 609 (1993)]. The trial court should not determine whether it would have found as the arbitrators did, but whether the arbitrators’ finding was supported by substantial evidence.” Allstate Ins. Co. v. Howe, supra, 137.

The trial court found that the arbitrators’ factual finding that the State Farm policies were separate and distinct policies was supported by substantial evidence. We conclude that the trial court applied the appropriate standard of review.

The plaintiff next argues that the trial court improperly upheld the arbitrators’ finding that the policies were “separate and distinct” because the evidence presented was not sufficient to support such a finding. We will not disturb the panel’s factual findings unless such a finding was unreasonable. Id. Our review of the record persuades us that there was substantial evidence to support the factual determination that the plaintiff’s three policies issued by the defendant were separate and distinct. In obtaining the insurance on each of the vehicles, the plaintiff was required to complete and sign three separate applications for each of his vehicles. Two applications were completed on the same date providing insurance coverage for a six month period from December 20,1987, through June 20,1988; a third was completed on another date providing coverage for December 3,1987, through June 3,1988. State Farm has issued policies to insureds on an individually separate basis as a business practice since 1922. Each of the policies issued to the plaintiff is identified by its own separate policy number. While the policies’ language and liability limits are identical in all three cases, the plaintiff could have chosen to vary any of the classifications.

The plaintiff argues that because the policies were billed in one monthly account statement and paid together, the three policies are transformed into one. State Farm claims that this billing procedure was adopted for its customers as a convenience for budgeting their insurance payments. While there was testimony that nonpayment of the monthly amounts would result in cancellation of all three policies, this does not suggest that the policies were in essence one policy covering all three cars. Cancellation of all three policies for failure to pay the monthly statement is not different from cancellation of all three policies for failure to pay separate and distinct billing statements. In either instance, the policyholder has not paid the amounts due for insurance coverage, and he runs the risk of cancellation.

We conclude that the factual finding of the arbitration panel that the policies were three separate and distinct policies was not unreasonable, and was supported by substantial evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Stacking refers to the ability of the insured, when covered by more than one insurance policy, to obtain benefits from a second policy on the same claim when recovery from the first policy alone would be inadequate. Nationwide Ins. Co. v. Gode, 187 Conn. 386, 388 n.2, 446 A.2d 1059 (1982).” (Internal quotation marks omitted.) Covenant Ins. Co. v. Coon, 220 Conn. 30, 31 n.2, 594 A.2d 977 (1991).

       The defendant’s third claim, that the trial court improperly applied the legal analysis of Covenant Ins. Co. v. Coon, supra, 220 Conn. 30, to a distinguishable factual situation, is identical to the defendant’s second claim.
      We will not consider the plaintiffs fourth claim, that the trial court improperly declined to address the issue of whether the policy language permitted stacking the policies despite the holding of Covenant Ins. Co., because the plaintiff failed to raise it before the arbitration panel. “[W]e do not review this . . . claim raised for the first time on appeal.” Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 10 n.1, 615 A.2d 1032 (1992).

       General Statutes § 38a-336 (d) provides: “For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section.”

       Statutes and regulations that apply to uninsured motorist coverage equally apply to underinsured motorist coverage. Buell v. American Universal Ins. Co., 224 Conn. 766, 769 n.1, 621 A.2d 262 (1993); Lumbermens Mutual Casualty Co. v. Huntley, 223 Conn. 22, 28 n.9, 610 A.2d 1292 (1992); General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 210-11, 603 A.2d 385 (1992); Nationwide Ins. Co. v. Gode, 187 Conn. 386, 399-400, 446 A.2d 1059 (1982).

       “[F]or the purpose of determining whether a tortfeasor’s vehicle is underinsured, the uninsured motorist insurance statute, General Statutes § 38a-336, limits consideration of underinsured motorist coverage to each individual policy available to the claimant separately.” (Emphasis added.) Forsberg v. New Hampshire Ins. Co., 26 Conn. App. 793, 794, 602 A.2d 45 (1992).