author:
MIHALAKOS, J.
      SCHALLER, J.,

text:
    THOMAS MONTEROSE v. PAUL CROSS
    (AC 19185)
    Foli, Schaller and Mihalakos, Js.

      Argued February 17
    officially released November 14, 2000

      George E. Mendillo, for the appellant (plaintiff).

      Robert M. Brennan, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, Thomas Monterose, appeals from the judgment rendered, following a jury trial, in favor of the defendant, Paul Cross, in this action sounding in negligence. On appeal, the plaintiff claims that the trial court improperly (1) refused to charge the jury on the standard of care applicable to the defendant in his work as a rigger, (2) failed to charge the jury regarding the testimony of expert witnesses as to the standard of care applicable to riggers and (3) charged the jury as to comparative negligence. We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. The plaintiff went to the defendant’s house to borrow a large wooden spool approximately four feet in width and weighing about 400 pounds. The defendant was experienced as a rigger and in moving heavy objects. Together, the plaintiff and the defendant loaded the spool onto the plaintiffs truck. While the plaintiff and the defendant attempted to secure the spool, the spool slipped, fell out of the truck and landed on the plaintiffs leg. The defendant testified at trial that he never should have attempted to flip the spool over on its side and that by doing so, there was a substantial risk of injury to the plaintiff.

The plaintiff claims first that the court improperly failed to instruct the jury in accordance with his request to charge on the standard of care required of one who is a rigger and possesses a skill above that of an ordinary prudent person. The court refused to so charge on the grounds that the defendant was not an expert and that there was insufficient evidence to charge on the requested standard of care.

The plaintiff had alleged in his second amended complaint that the defendant was a rigger trained and experienced in equipment customarily used by riggers in moving things and, further, that the defendant failed to use the care and skill ordinarily used by riggers. The defendant admitted in his answer that he had experience as a rigger, but also stated that he was employed not as a rigger but as a welder.

At trial, there was testimony by the defendant that he had substantial experience in rigging and that he had been involved in moving all of his life. When asked to describe his qualifications as a rigger, the defendant testified that he had the ability to move equipment safely and to place it where people would not be injured.

There also was testimony from two expert witnesses, one of whom was Raymond Bedard. He testified that he had been employed as a rigger for thirty-eight years. In a hypothetical question posed to Bedard involving the facts previously discussed, he was asked, on the basis of his knowledge and experience as a rigger, if there had been a departure from the standard of care that would apply to a rigger, to which he responded in the affirmative. No objection to the hypothetical question was made, nor was an objection made to Bedard’s opinion as to the standard of care.

This case involved a claim of alleged negligence committed by a person who allegedly had a particular skill and training. The loading and setting of the spool required expertise that is beyond the ordinary knowledge and experience of the jurors. Therefore, to prove professional negligence, expert testimony is required. Here, expert testimony was offered.

“When a topic requiring special experience of an expert forms a main issue in the case, the evidence on that issue must contain expert testimony or it will not suffice.” (Internal quotation marks omitted.) Sickmund v. Connecticut Co., 122 Conn. 375, 379, 189 A. 876 (1937). For example, in a case involving alleged negligence by an engineer in connection with repairs to a refrigeration plant, our Supreme Court found that it was incumbent on the plaintiff to produce evidence from an expert. “The plaintiff held itself out to be a skilled engineer. . . . The jury should have been instructed that the plaintiff was bound to exercise that degree of care which a skilled engineer of ordinary prudence engaged in the same line of business would have exercised in the same or similar circumstances.” Goodrich Oil Burner Mfg. Co. v. Cooke, 126 Conn. 551, 553, 12 A.2d 833 (1940).

The conclusion of negligence is ordinarily one of mixed law and fact invoking the applicable standard of care, which is a question of law and its application to the facts of the case, which is a question of fact. The ultimate test of the existence of a duty to use care, the nonperformance of which constitutes negligence, is to be found in the reasonable foreseeability of harm resulting from a failure to use that care.

The defendant argues that the court was correct in charging that the standard of care was that of a reasonably prudent person. The plaintiff rejects that argument and claims that the court should have charged that the proper standard of care was that which a rigger would employ under the same circumstances. See Smith v. Leuthner, 156 Conn. 422, 424-25, 242 A.2d 728 (1968). The court in its charge defined the concept of negligence as involving the doing of something that a reasonably prudent person would not have done under similar circumstances or the failure to do something that a reasonably prudent person would have done under similar circumstances. At the conclusion of the court’s charge, the plaintiffs counsel asked the court to charge on the standard of care applicable to riggers. The court declined to do so.

The correctness of a charge is determined by the proof offered during the course of the trial. Here, the court had before it testimony from the defendant and from an expert witness as to the standard of care. “It is not the proper course for a judge to lay down the general principles applicable to a case and leave the jury to apply them, but it is his duty to inform the jury what the law is as applicable to the facts of the case.” (Internal quotation marks omitted.) Sisson v. Stoning ton, 73 Conn. 348, 354, 47 A. 662 (1900). We conclude that the court improperly failed to charge the jury on the appropriate standard of care applicable to the defendant, and therefore a new trial is required.

Because a new trial is necessary, the plaintiffs other claims need not be considered. We must, however, consider the defendant’s claim that the judgment can be affirmed on the basis of the general verdict rule. We do not agree that the general verdict rule applies in this case.

The defendant argues that the general verdict rule applies because there was no request for interrogatories and that this court, therefore, must presume that the jury found every issue in favor of the prevailing party.

“The general verdict rule operates to prevent an appellate court from disturbing a verdict that may have been reached under a cloud of error, but is nonetheless valid because the juiy may have taken an untainted route in reaching its verdict.” (Internal quotation marks omitted.) Kunst v. Vitale, 42 Conn. App. 528, 535 n.4, 680 A.2d 339 (1996).

In this case, there was a general denial and a special defense of contributory negligence. Even if we assume that the jury rejected the plaintiffs allegations of negligence and found him contributorily negligent, both of those determinations are undermined by the court’s failure to instruct the jury as to the proper standard of care. There is therefore no “untainted route” to the verdict. See id. We therefore conclude that the general verdict rule does not apply in this case.

The judgment is reversed and the case is remanded for a new trial.

In this opinion FOTI, J., concurred.

SCHALLER, J.,

dissenting. Because I conclude that the plaintiff was not entitled to an instruction on an expert’s duty of care, I would affirm the judgment of the trial court.

An examination of the record reveals that the operative complaint, the plaintiffs second amended complaint, is framed in terms of a theory of premises liability on the part of the defendant. The plaintiff, Thomas Monterose, alleges that the defendant, Paul Cross, was the owner of and in possession and control of premises in Watertown, and that the plaintiff was a social invitee on the premises for the purpose of picking up a large wooden spool to be used off the premises. The plaintiff further alleges that the defendant had exclusive control over the premises, and that it was his duty to render the premises reasonably safe for the loading and unloading of personal property. The complaint then asserts that while the plaintiff and the defendant were on the premises loading the spool onto the plaintiffs truck, the spool toppled over, falling onto the plaintiff. Among the allegations of negligence committed by the defendant on the basis of premises liability are several concerning the defendant’s status as a skilled rigger, and the standard of care and skill to be used by riggers engaged in moving heavy objects.

The defendant filed a special defense that contained various allegations of comparative negligence, including an allegation that “the plaintiff had exclusive control of the situation at the time the spool toppled over on his leg. ...” The defendant also alleged that the plaintiff “attempted to move the large wooden spool while under the influence of intoxicating alcoholic beverages,” he knew or should have known that “his sense of balance” and “his strength” had been impaired by excessive consumption of alcohol, and “he knew or should have known that he could not safely handle the weight of the spool after consuming a large amount of beer.”

The only legal relationship of the parties alleged in the second amended complaint that could generate a duty on the part of the defendant to the plaintiff, therefore, was based on an assertion of ownership and control of premises by the defendant. The sole duty of the defendant to the plaintiff, as alleged, was that of premises owner to social invitee. While it is true that the complaint contains several allegations concerning the defendant’s experience and skill as a trained rigger, the plaintiff failed to allege any relationship or transaction between the parties that would invoke the defendant’s experience or skill as a rigger. The defendant’s status as a rigger would have no bearing on the defendant’s duty as an owner of premises. “In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee.” (Internal quotation marks omitted.) Kurti v. Becker, 54 Conn. App. 335, 338, 733 A.2d 916, cert. denied, 251 Conn.6909, 739 A.2d 1248 (1999). On the basis of the complaint, therefore, the only applicable standard of care would be ordinary negligence, that is, a duty of reasonable care. See Cruz v. Drezek, 175 Conn. 230, 234, 397 A.2d 1335 (1978); Gulycz v. Stop & Shop Cos., 29 Conn. App. 519, 521, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992); see also General Statutes § 52-557a (“standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee”). The allegations as to the defendant’s skill as a rigger are gratuitous and irrelevant to the theory of premises liability alleged in the second amended complaint because, in premises liability actions, the standard of care depends on the status of the visitor once the ownership status is determined. The duty of care in this case—of owner to social invitee—would be as alleged by the plaintiff, the duty to keep the premises in a reasonably safe condition.

Considering the theory of premises liability set forth in the second amended complaint, even if the jury found that a duty existed on the part of the defendant to the plaintiff, no higher standard of care because of the alleged special status of the defendant as a rigger would be applicable. Only the defendant’s status as property owner and the plaintiffs status as an invitee would be relevant to the standard of care. Under any approach to this case, the trial court properly rejected the plaintiffs request for an instruction on a special standard of care to apply to the defendant.

In view of the foregoing analysis, we need not reach the difficult questions of whether, had the case been structured differently, the factual circumstances would warrant that the defendant should be held to a higher standard of care because of his past training and experience as a skilled rigger or whether the defendant’s volunteer status would have a bearing on that issue.

For the foregoing reasons, I respectfully disagree with the conclusion of the majority as to the trial court’s jury instructions. I would affirm the judgment of the trial court.

       Paragraph two of the plaintiffs second amended complaint alleges: “At all times hereinafter mentioned, the defendant, Paul Cross, was and still is a rigger trained and experienced in moving heavy things such as furniture, equipment, steel and other large objects, and trained and experienced in the use of forklifts, cranes and other equipment customarily used by riggers in moving things.”
      In his answer to paragraph two of the plaintiffs second amended complaint, the defendant stated: “The defendant admits to having experience as a rigger and in moving heavy objects, but is employed as a welder, not a rigger.”

       Bedard was questioned in part as follows:
      “Q. Now, if you assume the facts I’ve already given you, and you assume that the spool is where I’ve indicated [it] was positioned in the truck, and you further assume that there’s one person who is approximately six feet tall on the driver’s side of the truck and another person who is approximately six feet and six inches tall on the passenger side of the truck. Both of these individuals are standing on the ground, and the individual on the operator’s side of the truck lifts the spool from one of the wheels with the intention of tipping it toward the individual on the passenger’s side of the vehicle. Can you tell me, based on your knowledge and experience as a rigger, whether or not attempting to lay the spool down in that fashion would be a departure from the standard of care that would apply to a rigger?
      “A. Yes.”

       “The Court: So, therefore, I have to talk to you about 1he concept of negligence. In general, it may be defined as the doing of something which a reasonably prudent person would not have done under like and similar circumstances, or it may be an omission to do something which a reasonably prudent person would have done under similar circumstances or conditions. In other words, the law requhes that people use reasonable care under all circumstances. Reasonable care means the care of a reasonably prudent person. I emphasize that phrase reasonably prudent person. From that, it follows that in a situation of danger, the care must be proportionate to the danger. This involves two inquiries on your part. First, what was the conduct, of the parties, and what were the circumstances; second, what ought the defendant, as a reasonably prudent person, to have done under those circumstances. And when you’re considering the defendant’s claims, then you would say, ‘And what would the plaintiff, as a reasonably prudent person, have done under similar circumstances?’ The ultimate test of the existence of a duty to use reasonable care is to be found in the foreseeability that harm may result if the care is not exercised. By that, it is meant that one charged with negligence must be found to have foreseen the probability or that the particular injury would result was foreseeable. But the test that you should apply is this: Would the ordinary, reasonable, prudent person in the position of the defendant, knowing what he knew or should have known, anticipate that the harm of the same general nature as that actually suffered was likely to result?”

         “[Defense Counsel]: Thank you, Your Honor. Your Honor, I would ask that you further instruct the jury concerning the standard of care applicable to skilled persons in this case, in particular the standard of care applicable to riggers. The testimony of [the defendant] confirmed that he in fact was a rigger and that what he was doing with [the plaintiff] in loading the spool onto the truck was a rigging activity. So, I’d ask Your Honor to instruct the jury concerning that particular standard of care which would apply to [the defendant] as a rigger. And that’s under, Your Honor, number three in my request to charge.”

       In denying the plaintiffs request to charge, the court stated: “I thought that in my charge that I stopped and concentrated with the ordinary, reasonable person in the position of the defendant, knowing what he knew or should have known, anticipate that injury would have occurred. So, I think that without saying that he’s a rigger, I think that I’ve covered that. I don’t think that he was an expert or that he was hired as an expert or that he did something in that capacity, but I did, I think, charge that they should take into consideration what he knew or should have known. I think there’s some evidence as to what he knew or should have known. So, I’m going to deny your request.”

       When the trial court rejected the plaintiffs request for a jury instruction asserting a higher standard of care on the defendant’s part, the reason for rejection was not that premises liability governed, but rather that the matter had already been covered and, therefore, there was no need for a specific instruction of that nature.
      Viewing the case as a general negligence case, the jury could well have found no duty on the part of the defendant to the plaintiff, especially since none was alleged. See Waters v. Autuori, 236 Conn. 820, 826-28, 676 A.2d 357 (1996). “We have often observed that [t]he law does not recognize a duty in the air. . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. ... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.” (Citations omitted; internal quotation marks omitted.) Id.


source: Caselaw Access Project

author: LAVERY, C. J. PELLEGRINO, J.,

license: Public Domain

text:
    ELIZABETH BUNTING ET AL. v. PETER G. BUNTING, EXECUTOR (ESTATE OF JAMES E. BUNTING)
    (AC 19378)
    Lavery, C. J.; and Foti and Pellegrino, Js.

      Argued May 2
    officially released November 14, 2000

      Walter A. DeAndrade, for the appellant-appellee (defendant).

      Donald C. Lunt, for the appellees-appellants (plaintiffs).
   Opinion

LAVERY, C. J.

The defendant, Peter Bunting, executor of the estate of James E. Bunting, appeals from the judgment of the trial court ordering a proration of the tax burden of the estate of James Bunting in accordance with General Statutes § 12-401 and affirming, in part, the decisions of the Probate Court. The plaintiffs cross-appealed. On appeal, the defendant claims that the trial court improperly (1) permitted the introduction of evidence of the decedent’s intent as to the payment of federal estate and state succession taxes and (2) ordered the Probate Court to effect distribution of the estate after a proration of taxes. On their cross appeal, the plaintiffs claim that the trial court improperly (1) refused to include in the probate estate bank accounts transferred by the decedent into joint ownership with the defendant and (2) refused to order the defendant to transfer to the estate shares of stock from the Tompkins County Trust Company (Tompkins Trust) that he received from the estate for distribution to the residual legatees in the will. We affirm the judgment of the trial court in part and reverse it in part.

The following facts and procedural histoiy are relevant to this appeal. The defendant is the son of James Bunting, the decedent. The plaintiffs Mansfield Lyon and Daniel Lyon are children of the decedent’s wife from a prior marriage. The plaintiff Elizabeth Bunting is the defendant’s sister. The defendant is the executor of the decedent’s estate. In 1988, the decedent’s wife died, bequeathing her entire estate, including an interest in the Adaleen M. Winton Trust, to her husband.

The decedent created and operated a business named Bunting & Lyon, Inc. On August 31, 1988, the decedent transferred to the defendant, as a gift, all of the outstanding stock of Bunting & Lyon, Inc. (Bunting & Lyon stock), that previously had been held by the decedent and the building in which the business operated. No gift tax was paid at that time.

On October 30, 1989, the decedent executed a new will that was drafted by his attorney. Article I of that will provided in relevant part: “I direct that any estate, succession, inheritance, death or transfer tax arising by reason of or in any way in connection with my death, be paid out of my estate as an expense of administration thereof, without apportionment or contribution.” The will also provided that, after certain specific bequests, the residue of the decedent’s estate, including his interest in the Winton trust, be distributed to the defendant and the plaintiffs, per stirpes.

In 1991, the decedent moved into a retirement community and began transferring securities and bank accounts that he owned into joint ownership with the defendant. Following the decedent’s death in 1994, the estate was subject to a federal estate tax of approximately $370,000, and a state succession tax of approximately $90,000. The inventory of the estate, however, amounted to only $400,000, before deducting other estate expenses. The defendant used all of the assets of the estate and approximately $100,000 of his personal funds to pay the taxes, leaving nothing for distribution to the residual beneficiaries.

The plaintiffs objected to the final account filed by the defendant with the Probate Court. The plaintiffs claimed that the defendant improperly charged the estate with federal taxes attributable to the inter vivos gifts and failed to recover and include as assets of the estate bank accounts owned by the decedent jointly with the defendant. On September 30,1997, the Probate Court overruled these objections, and the plaintiffs appealed to the Superior Court. Thereafter, the defendant filed an amended final account, to which the plaintiffs also objected. After the Probate Court approved the amended final account, the plaintiffs appealed to the Superior Court. The appeals were consolidated and tried together as a single appeal from probate.

On February 22,1999, the trial court issued its memorandum of decision, holding that (1) Article I of the will did not use language sufficient to overcome the statutory presumption in favor of proration, (2) the j oint accounts created by the decedent with the defendant prior to the death of the decedent should not be returned to the estate and (3) the Tompkins Trust stock that the defendant transferred from the estate to himself should not be returned to the estate. Accordingly, the court remanded the matter to the Probate Court for a distribution with the tax burden prorated and dismissed the other grounds of appeal. This appeal and cross appeal followed.

I

The defendant first claims that the trial court improperly applied the law in ascertaining the decedent’s intent as to the payment of death taxes. Specifically, the defendant claims that the trial court improperly (1) admitted parol and extrinsic evidence of the decedent’s intent as to the payment of death taxes and (2) used a “whole will” and “surrounding circumstances” approach in determining the decedent’s intent when the will was clear and unambiguous. The defendant contends that the court, accordingly, improperly concluded that the language of the will was insufficient to overcome the presumption in favor of the proration of death taxes. We address each of these contentions in turn.

A

The defendant claims that the court improperly admitted parol and extrinsic evidence as to the decedent’s intent concerning the payment of death taxes. We disagree.

“Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Citations omitted; internal quotation marks omitted.) State v. Zollo, 36 Conn. App. 718, 723, 654 A.2d 359, cert. denied, 234 Conn. 906, 660 A.2d 859 (1995).

Our Supreme Court has stated that it is “the cardinal rule in the settlement of estates that where possible the testator’s expressed intention should be carried out . . . .” Waterbury National Bank v. Waterbury National Bank, 162 Conn. 129, 135, 291 A.2d 737 (1972). In interpreting the testator’s intent, “[w]e admit parol evidence of the meaning of the testator in the use of some term or word in a will when the meaning is equivocal or ambiguous.” Stearns v. Stearns, 103 Conn. 213, 221, 130 A. 112 (1925). “A court [however,] may not stray beyond the four comers of the will where the terms of the will are clear and unambiguous.” (Internal quotation marks omitted.) Canaan National Bank v. Peters, 217 Conn. 330, 337, 586 A.2d 562 (1991).

The decedent’s will provided that all estate and succession taxes should be treated as expenses of administering the decedent’s estate and should not be apportioned among the legatees. The question is whether this provision is ambiguous. The language used is not ambiguous. An evaluation of Article I of the will in light of prior and subsequent events, however, casts some doubt on what the decedent meant.

“The concept of latent ambiguity has been described as follows: A latent ambiguity arises from extraneous or collateral facts which make the meaning of a written instrument uncertain although the language thereof be clear and unambiguous. The usual instance of a latent ambiguity is one in which a writing refers to a particular person or thing and is thus apparently clear on its face, but upon application to external objects is found to fit two or more of them equally. ... In Connecticut, the vast majority of cases considering a claim of latent ambiguity have arisen in three limited contexts . . . (2) interpretation of wills or trusts . . . .” (Citations omitted; internal quotation marks omitted.) Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 782, 653 A.2d 122 (1995). “Where there is a latent ambiguity in a will . . . as to . . . the subject of a bequest, extrinsic evidence ... is taken to remove the ambiguity.” Beardsley v. Merry, 136 Conn. 573, 576, 72 A.2d 829 (1950).

Prior to the execution of his will, the decedent transferred stock and property valued at $467,000 to the defendant. Although a gift tax return was filed, in which over two thirds of the decedent’s unified estate and gift tax credit was used to avoid payment of tax on the gift at that time, testimony at trial indicated that, at the time of the gift, the decedent’s attorney did not believe that the gift was taxable. Accordingly, there was no discussion concerning how taxes on the decedent’s estate would be allocated in view of this rather large gift.

Thus, the evidence indicates that at the time the will was drafted, no one participating in that process envisioned the need to deal with this substantial gift when drafting the tax clause in Article I of the will. These facts create a latent ambiguity. The will provided that all estate and succession taxes were to be paid out of the estate as expenses of administration without apportionment or contribution. The language used, as in Heyman Associates No. 1, is clear on its face, but, when applied to the external objects referred to, has two possible meanings. The phrase “any estate, succession, inheritance, death or transfer tax arising by reason of or in any way in connection with my death,” could include the taxes related to the prior gift to the defendant, or it could not include those taxes. We do not know whether or how the decedent would have arranged his will differently with respect to estate taxes had he known that the substantial gift he made while alive would be part of the gross estate to be taxed.

Having discovered this latent ambiguity, the trial court utilized parol and extrinsic evidence to determine whether, when the will was drafted, the decedent or his attorney considered the effect of the prior gift of the building and stock on the calculation of the estate taxes at the time of his death. At trial, the attorney who drafted the will testified concerning his actions in drafting the decedent’s will and stated that he did not consider the gift to be substantial and did not believe that it was a taxable gift.

Our Supreme Court has previously held that it is appropriate to consider events outside of the execution of the will to resolve a latent ambiguity therein. “[T]o determine whether the testator intended to include his adopted grandchildren under the terms of his will, it was necessary to examine events occurring after the execution of the testator’s will. Such circumstances . . . are properly scrutinized where, as in this case, the information is necessary to resolve a latent ambiguity arising from the execution of a will . . . .” (Emphasis added.) Connecticut National Bank & Trust Co. v. Chadwick, 217 Conn. 260, 269-70, 585 A.2d 1189 (1991).

In view of this latent ambiguity as to the decedent’s intent with respect to Article I of the will, we conclude that the trial court did not abuse its discretion or commit clear error when it permitted the introduction of parol or extrinsic evidence to aid it in determining the decedent’s intent as to the allocation of death taxes.

B

The defendant next claims that the court improperly used a “whole will” and “surrounding circumstances” approach in determining the decedent’s intent when the will was clear and unambiguous. We disagree.

“[ T]he issue of the testator’s intent presents a question of law . . . .” Id., 266. “The construction of a will presents a question of law to be determined in the light of facts which are found by the trial court .... Spurr’s Appeal, 116 Conn. 108, 111, 163 A. 608 (1933). ... An erroneous conclusion is an error of law and not an error in an inference of fact.” (Citations omitted; internal quotation marks omitted.) Connecticut National Bank & Trust Co. v. Chadwick, supra, 217 Conn. 266. “When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct . . . .” (Internal quotation marks omitted.) Issler v. Issler, 250 Conn. 226, 236, 737 A.2d 383 (1999); see also Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995); Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992).

Our Supreme Court has stated: “We look to the will as an entirety and examine the particular words and language used in the light of the circumstances under which they were written.” (Emphasis added.) Union & New Haven Trust Co. v. Sullivan, 142 Conn. 685, 691, 116 A.2d 908 (1955). As noted previously, it is the testator’s intent that is the touchstone of will interpretation. See Waterbury National Bank v. Waterbury National Bank, supra, 162 Conn. 135.

The defendant is correct in his contention that the words “without apportionment or contribution,” as used in the will, are clear and unambiguous. The issue, however, is whether those words applied only to the decedent’s estate as it existed at the time he drafted his will or whether they also included the prior gift of the Bunting & Lyon stock and the building. As stated previously, the evidence at trial clearly indicated that the attorney who drafted the will believed that the gift was not taxable, and therefore the question of how taxes relative to that gift should be apportioned was never considered by the decedent. Accordingly, the will is ambiguous, indeed silent, on the question of what gifts the phrase “without apportionment or contribution” encompassed in its directive.

We cannot say that the court acted improperly in utilizing the will as an entirety and in looking to the surrounding circumstances in interpreting the will. We thus conclude that the court did not employ an improper approach to ascertain the decedent’s intent.

II

The defendant next claims that the trial court improperly ordered the Probate Court to distribute the decedent’s estate after proration of taxes despite the decedent’s will provision ordering otherwise. We agree in part and disagree in part.

Connecticut law provides for a “statutory presumption that federal estate and state succession taxes are to be prorated among the beneficiaries.” Cornell v. Cornell, 165 Conn. 376, 385-86, 334 A.2d 888 (1973). A person’s estate for tax purposes may include more property than just that which he owned at the time of death. The Internal Revenue Code (code), which includes the provisions governing the federal estate tax, provides in relevant part that “[t]he value of the gross estate of the decedent shall be determined by including . . . the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated.” 26 U.S.C. § 2031 (a). The code further provides that the sections setting forth the property and property interests that are included in a decedent’s gross estate “shall apply to the transfers . . . [set forth in those sections] whenever made, created, arising, existing, exercised, or relinquished.” (Emphasis added.) 26 U.S.C. § 2045. The code thus expressly provides that property included in a person’s gross estate includes property that person once owned but gave away. Because there also is a federal gift tax, the possible double taxation set up by this section is offset by another section, which provides in relevant part: “If a tax on a gift has been paid . . . and thereafter on the death of the donor any amount in respect of such gift is required to be included in the value of the gross estate of the decedent for purposes of [the federal estate tax], then there shall be credited against the [estate tax] the amount of the tax paid on the gift . . . .” 26 U.S.C. § 2012 (a). Applying these provisions to the facts in this case, we conclude that because no gift tax was paid when the decedent made the gift to the defendant, the gift of the Bunting & Lyon stock and the building was part of the decedent’s gross estate.

General Statutes §§ 12-376 and 12-401, the relevant statutes addressing the proration of succession and estate taxes, respectively, both require that taxes be prorated unless the testator directs otherwise. Both our Supreme Court and the United States District Court for the District of Connecticut have held that those provisions create a statutory presumption that taxes shall be prorated. See Mosher v. United States, 390 F. Sup. 1041, 1042-43 (D. Conn. 1975) (“[u]nder the statute . . . the failure of a provision in a will to speak on taxes creates a presumption that federal and state succession taxes are to be prorated among all the beneficiaries”); Cornell v. Cornell, supra, 165 Conn. 385-86 (“statutory presumption that federal estate and state succession taxes are to be prorated among the beneficiaries”).

The trial court stated that “[a] testamentary directive against proration must be clear and unambiguous.” This statement is no more than a summary of what our Supreme Court has said in the many cases in which it has considered various directives against proration in wills. Clauses directing the mechanism for the payment of taxes that are less specific than the one at issue here have been upheld by our Supreme Court. For example, in Cornell v. Cornell, supra, 165 Conn. 376, our Supreme Court found that a will direction stating, “I direct that all estate, succession, inheritance and transfer taxes [on the specific bequests in the will] (together with any interest and penalties thereon), be paid out of my residuary estate as an expense of the settlement of my estate”; id., 380 n.5; was a sufficient direction against proration. Id., 386.

The relevant clause here is even more specific and includes the phrase “without apportionment or contribution,” which the clause in Cornell lacked. If the less specific phrase has been held to be sufficient, it would make little sense to hold that the more specific one is not. Accordingly, we conclude that the language used by the decedent was sufficient to satisfy the requirements of the statute that there be an unambiguous expression of an intent that taxes not be apportioned or prorated.

While we accept the defendant’s claim that the language of the will sufficiently expressed an intention to avoid the statutory requirement of proration, we do not agree with the defendant’s contention that this intention applies to the prior gift to him. The uncontradicted evidence at trial was that neither the decedent nor his attorney believed there to be any tax consequences of that gift. The decedent and his attorney could not have intended that an anti-proration clause apply to the taxes on that gift, which they believed to be nonexistent. Because the intentions of the testator govern; Waterbury National Bank v. Waterbury National Bank, supra, 162 Conn. 135; we conclude that the direction in the will against proration, while valid, applies only to the property owned by the decedent at the time of the execution of the will and thereafter, and not to the gift of the Bunting & Lyon stock and the building.

Accordingly, we reverse the trial court’s finding that the language of Article I of the decedent’s will was not a sufficient direction against proration. We find, however, that while the will provision was a sufficient direction against proration, it did not apply to the prior gift that was thought not to be taxable. We therefore reverse the court’s decision ordering a proration of taxes with respect to all of the decedent’s taxable estate other than the gift to the defendant of the Bunting & Lyon stock and the building, affirm the order of pro-ration as to that gift alone and remand the matter to the Probate Court for administration in accordance with this determination.

Ill

On their cross appeal, the plaintiffs first claim that the trial court improperly excluded from the decedent’s estate money transferred by the decedent into joint accounts with the defendant. We disagree.

The court found that the plaintiffs failed to overcome the statutory presumption, by clear and convincing evidence, that the creation of a joint account was intended to be a gift to the survivor. In reaching this conclusion, the court made a factual finding that the other joint account holder, the defendant, was not a fiduciary or in a confidential relationship with the decedent.

“The standard of review this court applies to factual issues is the clearly erroneous standard.” Inversiones Lituanes, S.A. v. E.P. Co., 57 Conn. App. 369, 370, 748 A.2d 375 (2000). “A reviewing authority may not substitute its findings for those of the trier of the facts.” (Internal quotation marks omitted.) Post Road Iron Works, Inc. v. Lexington Development Group, Inc., 54 Conn. App. 534, 540, 736 A.2d 923 (1999). “The factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Farrell v. Farrell, 36 Conn. App. 305, 309, 650 A.2d 608 (1994).

Joint accounts in Connecticut are governed by General Statutes § 36a-290 (b). This statute creates a presumption, rebuttable only by clear and convincing evidence, that the creation of a joint account is evidence of the intent of the person creating the account to have the proceeds go, upon his or her death, to the other joint account holder.

In Cooper v. Cavallaro, 2 Conn. App. 622, 481 A.2d 101 (1984), this court considered a factual situation very similar to the one in the present case. In Cooper, as in this case, the decedent had bank accounts in joint name with her son, who was also the executor of her estate. Id., 624-25. As in this case, the claim made by the plaintiffs in Cooper, the residual beneficiaries in the will, was that a confidential relationship existed between the testatrix and the executor. Id., 625. Because of this confidential relationship, the plaintiffs in Cooper claimed that they did not have to prove the existence of fraud or undue influence, but instead that the defendant had to prove that the transfers were valid inter vivos gifts. Id. In Cooper, this court rejected the plaintiffs’ claims that there was a confidential or fiduciary relationship between the mother and her son; id., 626; and that the statute creating the presumption of an inter vivos gift was unconstitutional. Id., 627.

For the reasons stated in Cooper, we reject the plaintiffs’ claim here. “The relationship between a parent and a child does not per se give rise to the establishment of a fiduciary relationship. ... If, however, a confidential relationship is proved, then the burden of proving fair dealing or the burden of showing the absence of undue influence shifts to the defendant or the fiduciary, and that burden must be sustained by clear and convincing evidence. . . . Since such a fiduciary relationship was not established, the burden of proof . . . remained with the plaintiffs. . . . The plaintiffs were required to prove by clear and convincing evidence that the bank accounts . . . were not valid inter vivos gifts ... or that they were assets acquired by the defendant under circumstances which required equity to divest him of his beneficial interest and to convert him into a trustee in order to prevent his unjust enrichment.” (Citations omitted.) Id., 626.

The court’s conclusion in Cooper on this point is applicable to this case as well. “The intent of the legislature in enacting General Statutes § 36-3 [the predecessor to General Statutes § 36a-290] was to make the existence of a joint bank account prima facie evidence of ownership by the survivor which can only be rebutted by clear and convincing evidence to the contrary.” Id.

In an effort to meet the clear and convincing eviden-tiary standard set forth in the statute, the plaintiffs point to the lack of intent to vest title in the defendant and the defendant’s representations that the accounts were created by the decedent for convenience in accessing funds for expenses. Even if we assume that to be true, it is not inconsistent with an intent to vest title. The decedent may well have created a joint account with the defendant intending that the defendant use it to help pay the decedent’s expenses and that anything left upon his death would go to the defendant. This scenario is consistent with all of the evidence put forward by the plaintiffs for the opposite conclusion. We cannot conclude that the plaintiffs have shown by clear and convincing evidence that the decedent did not intend to vest the defendant with title to whatever funds remained.

Because there is no evidence to indicate that the trial court abused its discretion and because the court’s finding is not necessarily inconsistent with the evidence proffered by the plaintiffs to show a lack of intent to make a joint account, we decline to disturb the court’s finding in this regard. We therefore conclude that the trial court properly refused to order the defendant to turn the proceeds of that account over to the estate for distribution to the plaintiffs as residuary legatees.

IV

Finally, the plaintiffs claim on their cross appeal that the trial court improperly refused to order the defendant to turn over the shares of the Tompkins Trust stock that he received from the estate. We agree and reverse the trial court’s decision in this regard.

In its memorandum of decision, the trial court held that the defendant had the authority, under General Statutes § 45a-234, to transfer the shares of stock to anyone, including himself. This thus represented the trial court’s conclusion on the proper interpretation and application of the statutory provision.

There are two issues in this case regarding the defendant’s transfer to himself of common stock held by the estate. The first concerns the defendant’s reason for transferring the stock. The defendant stated that part of the reason for this transfer was to pay the estate and succession taxes for which insufficient cash was present in the estate. As discussed in part II of this opinion, however, a significant portion of those taxes was the responsibility of the defendant personally and not of the estate. It was inappropriate for the defendant to “reimburse” himself from the estate for his payment of taxes that were his personal responsibility to begin with.

The other issue concerns the fact that the stock was received from the Adaleen Winton Trust. Article III of the decedent’s will provided, specifically, that his interest in that trust should be distributed in accordance with the residuary distribution clause of the will, namely, equally to the plaintiffs and the defendant and to their children if deceased. Thus, under the terms of the will, even if the defendant had not transferred the stock to himself, he would have been entitled to 25 percent of it in any event.

The plaintiffs are correct that the properties over which the fiduciary has control are held by him in trust for the beneficiaries. Our Supreme Court has stated that the executor or trustee “holds [property] under a quasi trust for those entitled to it . . . subject, however, to diminution or destruction if necessary to pay claims on the estate or the expenses of administration.” Parlato v. McCarthy, 136 Conn. 126, 132-33, 69 A.2d 648 (1949). Thus, upon the death of the decedent, the plaintiffs and the defendant all had an interest in the stock that was part of his estate. In this case, the plaintiffs also specifically informed the defendant that they desired to have the actual shares transferred to them, rather than being paid the value.

The defendant, presumably in good faith, used those shares to reimburse himself for moneys he had expended out of his own funds to pay the estate and succession taxes, inflated as they were by the inclusion of the tax on the prior gift of the Bunting & Lyon stock and the building. As discussed previously in this opinion, the liability for the tax on the transfer of the Bunting & Lyon stock and the building was the defendant’s alone, and the tax on those gifts should not have been paid out of the estate. Evidence adduced at trial showed that had the estate paid only the taxes it was obliged to pay, there was enough ready cash in the estate to pay those taxes without liquidating securities. Thus, the defendant improperly used the stock to reimburse himself for expenses that were his, namely, the taxes on the prior gift.

Because the estate property was used to pay taxes it was not liable for, the property should be returned and the estate made whole. “Making the estate whole” in this case means returning the estate to the position it would be in had the original transfer not taken place. The only way that can truly be done is to return the shares to the estate. This is possible in this case because the defendant and his wife still hold the shares they obtained in this fashion.

In addition, returning the stock to the estate for distribution most closely matches the intent of the decedent because the will directs that the decedent’s “interest” in the trust be “distributed in accordance with the provisions of this Article III.” It does not provide that the proceeds of the trust be distributed, but that the decedent’s interest be distributed. That would mean that each of the four beneficiaries named in the residual clause would become an owner of an equal interest in the assets of that trust. As noted previously, the decedent’s intent is the touchstone of will interpretation, and here the intent to distribute the interest in the trust property, rather than to have the properly sold and the proceeds distributed, is clearly indicated.

Accordingly, we reverse the judgment of the trial court and remand the case to the Superior Court with direction to remand the case to the Probate Court to administer distribution of the stock itself, including all dividends and split shares received since the death of the decedent, as long as there are sufficient funds to pay the costs of administration and estate taxes in accordance with this opinion.

Any funds in the estate should first be used to pay administration costs and those federal and state taxes that are the estate’s responsibility as explained previously. The defendant should be reimbursed to the extent he has used his personal funds to pay estate taxes, but he should reimburse the estate for the taxes related to the inter vivos transfer to him. Once that is done, the remaining shares of stock should be distributed to the plaintiffs and the defendant according to the terms of the will.

V

On the defendant’s appeal, the judgment is reversed only insofar as it orders a proration of the estate and succession taxes on assets other than the building and the Bunting & Lyon stock, and the case is remanded to the Superior Court with direction to remand it to the Probate Court with direction to treat the taxes on the assets other than the building and the Bunting & Lyon stock as expenses of administration and to charge the defendant individually the taxes attributable to the transfer of the building and the Bunting & Lyon stock. On the plaintiffs’ cross appeal, the judgment is reversed with respect to the Tompkins Trust stock and the case is remanded to the Superior Court with direction to remand it to the Probate Court with direction to effect the return of the shares of the Tompkins Trust stock, including all dividends and split shares received subsequent to the transfer of the shares to the defendant, and to distribute the same in accordance with this opinion. In all other respects, the judgment is affirmed.

In this opinion FOTI, J., concurred.

PELLEGRINO, J.,

dissenting. I agree with parts III and IV of the majority opinion. I respectfully disagree, however, with the majority’s decision in parts I and II as it relates to the taxation of the inter vivos gifts of the Bunting & Lyon stock and real estate.

I cannot agree with the majority’s conclusion that the portion of the tax clause in the will that provides that “any estate, succession, inheritance, death or transfer tax arising by reason of or in connection with my death” is confusing and is “latently ambiguous.” I fail to see any ambiguity in that provision of the will and therefore I think that the trial court improperly permitted extrinsic or parol evidence to determine the decedent’s intent as to that clause. I believe that the majority improperly affirmed the trial court’s finding that the decedent’s intent as to the allocation of taxes in connection with the inter vivos transfers was contrary to his intent expressed in his will.

My disagreement with the majority stems from the fact that before the court can consider any extrinsic evidence to vary the terms of a will, it must determine that there exists either a latent or patent ambiguity. Hoenig v. Lubetkin, 137 Conn. 516, 519, 79 A.2d 278 (1951). Our review of this issue is plenary. Issler v. Issler, 250 Conn. 226, 235-36, 737 A.2d 383 (1999).

The majority agrees that the language of the tax clause in the will standing alone is not ambiguous. The majority contends, nevertheless, that Article I of the will contains a latent ambiguity, which it defines as an ambiguity arising from “ ‘extraneous or collateral facts which make the meaning of a written instrument uncertain although the language thereof be clear and unambiguous.’ ” The majority concludes that because no person who participated in the drafting of the will envisioned the need to deal with the gift of stock and property given by the testator to the defendant prior to the execution of the will, a latent ambiguity was created.

The majority relies on Connecticut National Bank & Trust Co. v. Chadwick, 217 Conn. 260, 585 A.2d 1189 (1991), in support of its conclusion that the phrase in the tax clause previously mentioned is latently ambiguous. That case, however, is easily distinguished from the present one. In Connecticut National Bank & Trust Co., the word in the will that was found to be ambiguous was the reference to “grandchild,” and the problem and uncertainty in that case was whether “grandchild” included the adopted children of the testator’s son. Id., 261-62. With this uncertainty existing, the trial court was permitted to consider extrinsic evidence to resolve the latent ambiguity. Id., 270. The majority relies on Stearns v. Stearns, 103 Conn. 213, 221, 130 A.2d 112 (1925), for the proposition that “[w]e admit parol evidence of the meaning of the testator in the use of some term or word in a will when the meaning is equivocal or ambiguous.” (Emphasis added.) There is nothing ambiguous or uncertain in the phrase “any estate, succession, inheritance, death or transfer tax arising by reason of or in connection with my death . . . .” Only after considering extrinsic evidence that at the time the will was drafted there was no discussion about the taxability of the inter vivos gifts did the majority conclude that the tax clause was capable of two meanings and was, therefore, latently ambiguous. In my estimation, this reasoning puts the cart before the horse. I believe that the majority should have concluded not only that the language was not patently ambiguous, but also that it was not latently ambiguous, and that it should have reversed the judgment of the trial court for those reasons.

The majority did, however, find that the portion of the tax clause that provides “without apportionment or contribution” is clear and unambiguous as to the assets passing under the will, and I agree. Because the language was not ambiguous, the majority reverses the trial court’s decision, but only as to those assets passing under the will. I find the language of the entire tax clause to be clear and unambiguous and, therefore, I would reverse the decision of the trial court, and order that all the taxes be paid as an expense of administration as provided by the decedent in his will.

Accordingly, I respectfully dissent.

       The plaintiffs, the beneficiaries of the residuary estate under the will of James E. Bunting, are Elizabeth Bunting, Mansfield A. Lyon and Daniel W. Lyon, the daughter and stepchildren, respectively, of the decedent.

       Ordinarily, an estate of this size would not be subject to federal estate taxation. Because no gift tax was paid on the prior gift to the defendant of the Bunting & Lyon stock and the building, however, the tax applicable to that gift utilized a substantial portion of the unified estate and gift tax credit, thus exposing the estate to taxation.

       This amount was reported both on the gift tax return filed in 1988 and on the estate tax return of the decedent.

       The defendant’s contention in this regard is based on his belief that the trial court erred in determining that the will, and specifically the tax clause, was ambiguous. We have addressed and rejected this contention in part I A of this opinion and concluded that the court did not abuse its discretion or commit clear error when it concluded that the will was in fact ambiguous.

       General Statutes § 12-376 provides, with respect to the succession tax, in relevant part: “Except as provided by the provisions of a will, such tax shall be paid from property passing to the donee, beneficiary or distributee unless such recipient pays to the fiduciary or transferee the amount thereof. Each donee, beneficiary or distributee of the same class shall pay such percentage of the tax on property passing to such class as his share is of such property. . . .”

       General Statutes § 12-401 (a) provides, with respect to the estate tax, in relevant part: “When it appears from any administration account or in any appropriate proceeding in the Probate Court that an executor . . . has paid a death tax levied or assessed under the provisions of chapter 217, hereinafter called the Connecticut estate tax, or under the provisions of the . . . federal estate tax, upon or with respect to any property required to be included in the gross estate of a decedent under the provisions of any such law, the amount of the tax so paid, except when a testator otherwise directs in his will . . . shall ... be equitably prorated among the persons interested in the estate to whom such property is or may be transferred or to whom any benefit accrues. Such proration shall be made in the proportion, as near as may be, that the value of the property, interest or benefit of each such person bears to the total value of the property, interests and benefits received by all such persons interested in the estate . . . .”

       General Statutes § 36a-290 (b) provides in relevant part: “The establishment of a deposit account . . . which is a joint account ... is, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, prima facie evidence of the intention of all of the named owners thereof to vest title to such account, including all subsequent deposits and additions made thereto, in such survivor or survivors . . . .”

       The will itself refers to the estate of Adaleen Winton. Because the only interest the decedent had was in the Adaleen Winton Trust, which belonged to his wife and passed to him at her death, the trial court referred throughout its opinion to the Adaleen Winton Trust and the parties have not taken issue with that reference.


author: LAVERY, C. J. LANDAU, J.,

text:
    SALVATORE GAROFALO ET AL. v. ANGELO SQUILLANTE ET AL.
    (AC 19241)
    Lavery, C. J., and Foti and Landau, Js.

      Argued June 6
    officially released November 14, 2000

      James H. Throwe, with whom, on the brief, was Jlelen M. Kemp, for the appellants (plaintiffs).

      Charles D. Houlihan, Jr., for the appellee (named defendant).
   Opinion

LAVERY, C. J.

The plaintiffs appeal from the judgment of the trial court rendered in favor of the named defendant, Angelo Squillante, on his counterclaim to collect an unpaid balance of a debt evidenced by a promissory note. The plaintiffs claim that the court improperly (1) concluded that the defendant’s claim was not barred by the statute of limitations and (2) made certain findings of fact relating to the payment of the debt. We reverse the judgment of the trial court.

The trial court found the following facts, which are relevant to this appeal. “In 1978, General Sanitation, a company owned by Nunzio [Squillante] and Angelo Squillante, sold certain assets to S & R Sanitation, a company owned by Salvatore [Garofalo] and Jacqueline Garofalo. The debt was secured with a promissoiy note in the amount of $145,914.12, with General Sanitation and the Connecticut Bank and Trust Company (CBT) named as payees. CBT was a joint payee under the 1978 note as a security device for indebtedness owed by General Sanitation. CBT released its interest in the 1978 note in February, 1983, leaving General Sanitation as the sole payee. Since General Sanitation ceased operations after the 1978 sale, payments on the 1978 debt were made by the Garofalos to Angelo [Squillante] and/or Nunzio Squillante. It is undisputed that the amount remaining on the 1978 note on Januaiy 31, 1983, after CBT was paid, was $80,869.60.

“In 1983, S & R Sanitation sold its assets to several buyers. The Squillantes created Admiral Trucking, a new corporation, to acquire a portion of those assets. Admiral Trucking gave its promissory note dated February 1, 1983, in the amount of $770,664.62 [1983 note] for those assets. This note was guaranteed by Edward J. Halloran and Angelo Squillante.

“The 1978 note for $145,914.12 was owned by Angelo [Squillante] and Nunzio Squillante, as successors to General Sanitation. Since Halloran had an interest in Admiral Trucking but no interest in the 1978 note, it was not feasible to offset the two obligations. Halloran would have had his potential liabilities reduced by an asset of the Squillantes. To address these differing ownership interests, the remaining payments due under the 1978 note were to be held in escrow by the Garofalos.

“In 1987, the [1983 note] was amended to reflect a reduction in principal. By its terms, the amended note was to be paid in full by March 20, 1993.

“The 1978 note required monthly payments of $2310.56. Until CBT was paid for its debt in 1983, regular monthly payments were made by S & R Sanitation as reflected in the business records maintained before S & R [Sanitation] sold its assets. The parties agree that the remaining principal balance of the 1978 note was $80,869.60 as of January 31, 1983. The instant dispute concerns the payments made thereafter.

“With the sale of S & R Sanitation to Admiral Trucking resulting in the [1983 note], the Garofalos suspended payments to the Squillantes under the 1978 note. An interest bearing escrow account was opened by Salvatore Garofalo into which he was to deposit the $2310.56 monthly payments which were due the Squillantes under the 1978 note. This escrow account was to stand as collateral for the [1983 note] until the 1983 note was paid, that is, until March 20, 1993.

“As of May 7, 1985, with regular monthly deposits the Garofalos would have escrowed $60,074.56 (26 months at $2310.56). As of that date, the escrow account showed a balance of $10,338.16.

“On July 26, 1994, suit was brought by the Garofalos to collect the balance owed by the Squillantes on the [1983 note]. The instant counterclaim was filed in that action. A decision was rendered in the case in chief on October 16, 1995, in which the fact finder found $17,236.93 still due the Garofalos on the [1983 note]. That amount plus interest and costs were awarded the plaintiffs, Salvatore [Garofalo] and Jacqueline Garofalo. Angelo Squillante now counterclaims for the balance due on the 1978 note.”

On October 7, 1998, the trial court concluded that the plaintiffs owed the defendant the remaining balance on the 1978 note. Accordingly, it rendered judgment in favor of the defendant in the amount of $66,248.48, with unspecified amounts in interest and attorney’s fees. On October 21, 1998, the plaintiffs filed a notice of intent to file an appeal. On January 11, 1999, after a hearing, the court ordered the plaintiffs to pay the defendant $49,400.18 in interest and $13,347.30 in attorney’s fees. This appeal followed.

“As an appellate court, our review of trial court decisions is limited to determining whether their legal conclusions are legally and logically correct, supported by facts set out in the memorandum of decision.” (Internal quotation marks omitted.) Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 605, 749 A.2d 1219, cert. denied, 254 Conn. 903, 755 A.2d 881 (2000). “If the factual basis of the court’s decision is challenged, our review includes determining 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.) Id., 606; see also New England Rock Services, Inc. v. Empire Paving, Inc., 53 Conn. App. 771, 775, 731 A.2d 784, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999). “When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Powers v. Olson, 252 Conn. 98, 105, 742 A.2d 799 (2000).

I

We first determine which is the appropriate statute of limitations that governs the defendant’s claim.

General Statutes § 52-576 governs the statute of limitations under simple or implied contract actions and requires that all such actions be filed “within six years after the right of action accrues.” General Statutes § 42a-3-118 (a) specifically discusses promissory notes and requires that an action to enforce a note payable at a definite time be commenced “within six years after the due date or dates stated in the note . . . .” Section 42a-3-118 was revised in 1991 to provide for this six year statute of limitations.

The Supreme Court stated in Roberts v. Caton, 224 Conn. 483, 619 A.2d 844 (1993), that “[although substantive legislation is not generally applied retroactively absent a clearly expressed legislative intent, legislation that affects only matters of procedure is presumed to [be] applicable to all actions, whether pending or not, in the absence of any expressed intention to the contrary. . . . Statutes of limitation are generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action .... Therefore, unless specifically tied to a statutory right of action or unless a contrary legislative intent is expressed, the statute of limitations in effect at the time an action is filed governs the timeliness of the claim.” (Citations omitted; internal quotation marks omitted.) Id., 488-89. The action in the present case was brought in 1994. Because § 42a-3-118 (a) was in effect at the time this action was commenced, it governs in this case. See Miller v. Kirshner, 225 Conn. 185, 203, 621 A.2d 1326 (1993).

II

We next determine whether, as the plaintiffs contend, the statute of limitations contained in § 42a-3-118 (a) bars the defendant’s claim. We agree with the plaintiffs that it does.

Section 42a-3-118 (a) provides for a six year statute of limitations for the enforcement of promissory notes such as the one in the present case. The last payment on the 1978 note that is the subject of the defendant’s counterclaim was due on December 25, 1985. This action was commenced on May 31, 1994, more than six years subsequent to that date.

The court concluded that the six year statute of limitations had not yet begun to run on the 1978 note as of the date of the commencement of this action. The court stated that until the 1983 note was paid in full, the defendant could not claim the payment of the remaining balance of the 1978 note, which served as collateral for the 1983 note. The court reasoned: “The [plaintiffs] contend that the six year statute of limitations, [General Statutes] § 52-576, started running on the 1978 note in February, 1983, when the last payment was claimed to have been paid or December 25, 1985, when the final payment was due. As to the December 25, 1985 due date, since the 1978 note stood as collateral against the payment of the [1983 note, the defendant] could make no claim for payment of the balance remaining on the 1978 note until the [1983 note] was paid in full. As of October 16, 1995, $17,236.93 was still found to be outstanding on the 1983 note. Accordingly, the [plaintiffs] cannot prevail on their first special defense premised on the statute of limitations claim.”

“The statute of limitations creates a defense to an action. It does not erase the debt. Hence, the defense can be lost by an unequivocal acknowledgement of the debt, such as a new promise, an unqualified recognition of the debt, or a payment on account.” (Internal quotation marks omitted.) Zaplosky v. Sacks, 191 Conn. 194, 198, 464 A.2d 30 (1983). No such acknowledgement exists here. The 1978 note was not referenced beyond the 1983 note and guaranty and emerged only as a live issue over ten years later.

The true test for determining the appropriate date when a statute of limitations begins to run is to “establish the time when the plaintiff first could have successfully maintained an action. That is, an action cannot be maintained until a right of action is complete and hence, the statute of limitations cannot run before that time.” Gaylord Hospital v. Massaro, 5 Conn. App. 465, 467, 499 A.2d 1162 (1986). A guaranty is merely a species of contract. Regency Savings Bank v. Westmark Partners, 59 Conn. App. 160, 164, 756 A.2d 299 (2000), citing AALCO Plumbing Supply Co. v. John L. Henson Plumbing Co., 464 S.W.2d 10, 12 (Mo. 1971). “In an action for breach of contract, the cause of action is complete upon the occurrence of the breach, that is, when the injury has been inflicted.” Gaylord Hospital v. Massaro, supra, 467.

We do not agree with the defendant’s contention that this action was premature until the 1983 note payments were satisfied. The defendant could first maintain this action, at the latest, on December 25, 1985, when the 1978 note was due in full, but remained unpaid. At that time, the escrow account should have contained all moneys due on the 1978 note, and it did not. Indeed, the defendant may have been able to maintain an action well before this date, as the plaintiffs suspended payments in 1983.

This is not an action to obtain collateral stated in the 1983 note. Rather, this is an action on the 1978 note itself. The 1978 note was not modified by the 1983 agreement. All that changed was that the payments on the 1978 note were to be placed in escrow. The collateral contract did not excuse payment on the note in any fashion.

Next, we must consider whether, as the defendant claims, the statute of limitations was tolled or delayed in some manner. A review of the relevant documents in this case leads us to conclude that the statute of limitations was not tolled. The original promissory note, dated December 27,1978, requires eighty-four consecutive monthly payments of $2310.56 each until the note is paid in full. The promissory note for $770,664.62, dated February 1, 1983, was guaranteed by the defendant. This 1983 note states that any property held by the defendant may be treated as collateral for the guaranty and specifically references the 1978 note. The 1983 note and guaranty were amended by an amended promissory note dated May 20, 1987.

In reviewing these documents, we glean no indication that the payments arising from the 1978 note were excused, delayed or modified in any fashion. There was nothing in any of the above writings that stated that the payments on the 1978 note were to be suspended. The plain reading of the guaranty reveals that the 1978 note was just one of the many possible assets covered under the broad blanket of available collateral to secure payment of the 1983 note. The only difference between the 1978 note and the myriad of other assets designated as collateral is that the 1978 note is mentioned with specificity. Simply put, the 1978 payments were to be made monthly and placed into an escrow account and held until the later 1983 note for $770,664.62 was paid in full.

The 1978 note payments were held in escrow, presumably gaining interest that could have offset the action on the 1983 note. The 1978 note payments merely served as collateral on the 1983 note, and this action is based on the 1978 note, not on obtaining collateral as a security for the 1983 note. Accordingly, the statute of limitations was not tolled and expired before this action was commenced.

The judgment is reversed and the case is remanded with direction to render judgment for the plaintiffs on the named defendant’s counterclaim.

In this opinion FOTI, J., concurred.

LANDAU, J.,

concurring. Although I agree with the majority’s result, I concur in the opinion because I do not think that we need to reach the issue raised in part I of the majority opinion and to do so renders a portion of this opinion advisory.

A review of the procedural history of this case is necessary to support my position. In response to the defendant’s counterclaim, the plaintiffs raised the special defense that the counterclaim was time barred by merely alleging that the “counterclaimant’s claims are barred by the applicable statute of limitations.” The plaintiffs did not identify by number the statute on which they were basing their special defense. During trial and in their trial brief, the plaintiffs claimed that the defendant’s counterclaim was barred by General Statutes § 52-576. Consequently, the court considered only § 52-576 in rendering its decision.

In their brief to this court, the plaintiffs again based their statute of limitations argument on § 52-576. When the plaintiffs’ counsel argued before this court, he asserted General Statutes § 42a-3-118 as a defense for the first time. We unwittingly then gave the parties an opportunity to file supplemental briefs to address which statute applied to the 1978 note. Ordinarily, this court does not address questions not raised in the trial court. “We have stated repeatedly that we ordinarily will not review an issue that has not been properly raised before the trial court. See, e.g., Santopietro v. New Haven, 239 Conn. 207, 219-20, 682 A.2d 106 (1996) (court ‘not required to consider any claim that was not properly preserved in the trial court’); Yale University v. Blumenthal, 225 Conn. 32, 36 n.4, 621 A.2d 1304 (1993) (court declined to consider issues briefed on appeal but not raised at trial); see also Practice Book § 60-5 (‘court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial’). ”Bell Atlantic Mobile, Inc. v.Dept. of Public Utility Control, 253 Conn. 453, 485, 754 A.2d 128 (2000). I do not believe we should address § 42a-3-118 because it was not before the trial court.

The determinative issue in this case, however, is not whether § 52-576 or § 42a-3-118 applies. Both sections impose a six year limitation on claims. The decisive issue in this case is when the 1978 note was due and the defendant’s claim accrued. For this reason, therefore, I do not think that it is necessary to determine which statute of limitations applies to resolve the appeal.

Consequently, I concur in the result.

       The plaintiffs are Salvatore Garofalo and Jacqueline Garofalo.

       The defendants at trial were Michael Botticello, Sanitary Services Corporation and Angelo Squillante. Only Angelo Squillante is a party to this appeal. In this opinion, we refer to the defendant Angelo Squillante as the defendant.

       We note that even if we were to apply § 52-576 as the applicable statute of limitations, our result would not change, as § 52-576 contains the same time limit of six years.

       The guaranty states in relevant part: “Any deposits, securities or other property of the undersigned which at any time are within your possession or control may be held and treated as collateral security for the payment of the liabilities, and you shall have a lien thereon and right to set off the same against matured liabilities or against any other sums due hereunder, including, but not limited to, payments due the undersigned under a promissory note from you to the undersigned in the original principal amount of $145,914.72 and dated December 27, [1978].”

       The purpose of the amended note was to reflect a substantial reduction in principal caused by payment by another debtor.

       Accordingly, because we find that the applicable statute of limitations has expired in this case and the plaintiffs are therefore not liable for the unpaid payments on the 1978 note, we need not consider the plaintiffs’ challenges to the trial court’s findings of fact.

       Practice Book § 10-3 (a) provides: “When any claim made in a . . . special defense ... is grounded on a statute, the statute shall be specifically identified by its number.”

       Counsel who signed the trial brief was the same counsel who argued before this court.

       Prior to oral argument, this court only sees the record and the parties’ briefs. The plaintiffs’ brief was not written by the attorney who argued the case, which created confusion.

       This case provides yet another example of the difficulties that arise when counsel fail to follow the directives of Practice Book § 10-3. The problem raised here does not fall entirely on the plaintiffs’ shoulders for the defendant may have waived Ms right to know the statute on which the plaintiffs intended to rely by failing to file a request to revise the special defense seeking a more definite statement or to bring the matter to our attention at oral argument. See Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 132, 523 A.2d 1266 (1987); Carnese v. Middleton, 27 Conn. App. 530, 537, 608 A.2d 700 (1992). Because both statutes have a six year limit, neither party is adversely affected. Under a different circumstance, however, it could have been detrimental to one of them.


author: SCHALLER, J.

text:
    NANCY BURTON v. STATEWIDE GRIEVANCE COMMITTEE
    (AC 19067)
    Schaller, Hennessy and Shea, Js.
    Argued February 24
    officially released November 14, 2000

      Nancy Burton, pro se, the appellant (plaintiff).

      Christopher G. Blanchard, assistant bar counsel, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Nancy Burton, appeals from the judgment of the trial court dismissing her appeal from the decision of the defendant, the statewide grievance committee, reprimanding her for violating rules 8.2 (a) and 8.4 (4) of the Rules of Professional Conduct. Although the plaintiff raises other issues on appeal, we address only one because it is dispositive. The plaintiff claims that the court improperly concluded that the defendant’s procedures were proper and that the defendant afforded the plaintiff due process. We reverse the judgment of the trial court and remand the case for further proceedings.

The following facts and procedural history are relevant to our disposition of this appeal. The background of this proceeding began when the plaintiff, an attorney, wrote a letter dated December 12, 1995, to the chief justice of the Supreme Court, with copies to the other justices, requesting that the court exercise its authority pursuant to General Statutes § 51-51j to investigate the conduct of Superior Court Judges Moraghan, Stodolink and Mihalakos, and to hold a hearing thereon. On January 16, 1996, the plaintiff sent another letter to the chief justice renewing her request for a Supreme Court investigation. In a letter dated February 5, 1996, the chief justice informed the plaintiff that the Supreme Court had reviewed the materials that the plaintiff sent in support of the allegations of misconduct she made in her letter of December 12, 1995, and had decided not to invoke its statutory investigatory function. The chief justice sent copies of this letter to each of the judges whom the plaintiff accused of judicial misconduct.

On June 11, 1996, Judge Moraghan filed a grievance complaint against the plaintiff claiming that the allegations in her letter were absolutely false. On June 20, 1996, Judge Mihalakos also filed a grievance complaint against the plaintiff on the basis that the allegations in her letter were absolutely false. Thereafter, Judge Mihalakos, acting as administrative judge, assigned all cases involving the plaintiff, except for one, to Judge Stodolink.

Pursuant to Practice Book § 27F, now § 2-32, the complaints of Judges Moraghan and Mihalakos were referred to a grievance panel for the judicial district of Stamford-Norwalk on July 9, 1996, for a determination of whether there was probable cause to find that the plaintiff had violated the Rules of Professional Conduct. The plaintiff filed several responses to the grievance complaints with the grievance panel. When the panel requested documentation of her allegations of “judicial corruption, ” however, she provided only her own affidavit asserting that the statements in her letter to the Supreme Court were true. She did, however, write a letter dated August 19, 1996, indicating her intention to dispute the charges against her and to provide support for her claims against the judges.

On or about October 8, 1996, the panel determined that there was probable cause to believe that the plaintiff had violated rules 8.2 (a) and 8.4 (4) of the Rules of Professional Conduct and notified the statewide grievance committee of its finding. Pursuant to Practice Book § 27J, now § 2-35 (a), the statewide grievance committee assigned the grievances to a reviewing committee for a hearing. The reviewing committee scheduled a hearing on the grievance complaints for February 5, 1997, and sent notice of the hearing to the parties on January 2, 1997. The notice contained two caveats: (1) “You are expected to appear at the hearing at the time and date set forth above. A request for an alternative date or time will only be considered if received in writing within seven days of the date of this letter. Said request will be granted only under extreme circumstances”; and (2) “In the event that a party does not appear, the hearing will be held and a determination will be made on the evidence and argument presented at the hearing and the record of the grievance panel.” The defendant makes no claim that the caveats in the January 2, 1997 notice were grounded in any rule or regulation that the defendant has promulgated.

The plaintiff did not submit a written request for a continuance. In the week before the hearing date of February 5,1997, however, she left a voice mail message with the office of the statewide grievance committee requesting a continuance because she was engaged in a civil jury trial before Judge Stodolink. In her message, however, the plaintiff referred to a hearing date of February 7, 1997, rather than February 5, 1997, the date specified in the notice that she had received. The attorney for the reviewing committee contacted the plaintiffs office and left a message on her office answering machine explaining that the hearing was scheduled for February 5, not February 7. On the day of the hearing, before any proceedings began, one of the complainant judges informed the reviewing committee that the plaintiff was then involved in closing arguments in a jury trial before Judge Stodolink at the Superior Court in Danbury. Nonetheless, the reviewing committee proceeded with the hearing as scheduled in the absence of the plaintiff because, as it stated in its proposed decision, she had not complied with the direction in the notice of hearing that a request for a continuance be in writing and did not communicate her telephone request accurately, resulting in inconvenience to the Superior Court judges who appeared as witnesses. At the hearing, each of the complainant judges testified that the allegations made by the plaintiff in her letter to the chief justice were false and groundless.

On February 7,1997, upon the conclusion of the civil jury trial in which she had been engaged, the plaintiff requested in writing that the reviewing committee open the grievance hearing so that she would have an opportunity to cross-examine the two judges who had testified against her and to present her defense. The reviewing committee prepared a proposed decision in which it stated that it denied the plaintiffs request for a continuance because of her “failure ... to appropriately request a continuance in writing, or to communicate an accurate verbal request in spite of having the opportunity to do so, with the resulting inconvenience to the Superior Court judges appearing as witnesses in this matter, as well as the Complainant’s request to go forward with the hearing . . . .” In its proposed decision, the reviewing committee found that the plaintiffs allegations against the judges were untrue.

On August 22, 1997, the statewide grievance committee notified the plaintiff by letter that it had decided to adopt the proposed decision of the reviewing committee and, accordingly, reprimanded the plaintiff. On August 27, 1997, the plaintiff wrote a letter to the statewide grievance committee formally requesting the committee to open the record of the grievance proceeding instituted by the two judges who had filed complaints against her because she had not had an opportunity to cross-examine them or to present contrary evidence because of her involvement in a civil jury trial at the time of the hearing. On September 19, 1997, the statewide grievance committee informed the plaintiff in a letter that it had denied her request to open the record.

Subsequently, the plaintiff appealed to the Superior Court, claiming that the committee had wrongfully deprived her of her rights to a hearing on the complaint, to confront her accusers, to cross-examine her accusers and to present evidence as a result of the denial of her request for a continuance. The court concluded that there was substantial evidence to support the conclusion of the statewide grievance committee that the plaintiff had violated rules 8.2 (a) and 8.4 (4) of the Rules of Professional Conduct by making accusations against the judges involved that she knew were false or with reckless disregard as to their truth or falsity. The trial court further found that the caveats in the hearing notice were reasonable and did not deprive the plaintiff of due process of law. The court dismissed the appeal, and the plaintiff filed an appeal with this court. The plaintiff claims that the reviewing committee violated her due process rights to a fair hearing when it conducted the hearing in her absence.

“Because a license to practice law is a vested property interest, an attorney subject to discipline is entitled to due process of law. . . . Accordingly, [b]efore discipline may be imposed, an attorney is entitled to notice of the charges, a fair hearing and an appeal to court for a determination of whether he or she has been deprived of these rights in some substantial manner.” (Citations omitted; internal quotation marks omitted.) Lewis v. Statewide Grievance Committee, 235 Conn. 693, 705, 669 A.2d 1202 (1996). Although both our federal and state constitutional provisions establishing the right of confrontation refer only to criminal trials, the United States Supreme Court has also recognized that right, with its intrinsic right of cross-examination, “in all types of cases where administrative and regulatory actions were under scrutiny.” Greene v. McElroy, 360 U.S. 474, 497, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959).

In Connecticut, the right of a party to be present during the proceedings related to the trial has long been recognized. See Anderson v. Snyder, 91 Conn. 404, 408-409, 99 A. 1032 (1917). Furthermore, in In re Flanagan, 240 Conn. 157, 690 A.2d 865, cert. denied, 522 U.S. 865, 118 S. Ct. 172, 139 L. Ed. 2d 114 (1997), our Supreme Court held that an attorney is afforded due process protection in disciplinary proceedings if “the review council brings formal charges akin to the presentment to the Superior Court in attorney discipline proceedings.” Id., 176. In the present case, the formal hearing and presentment took place in front of the reviewing committee, and therefore it follows that the plaintiff had a right to be present at the hearing on February 5, 1997.

In the present case, the plaintiff, during the week preceding the hearing, left a telephone voice mail message at the defendant’s office requesting a continuance because she was to be engaged in a jury trial on February 7. In response, counsel for the statewide grievance committee left a message at the plaintiffs office informing her that February 7 was not the correct date and that the correct date was February 5.

The defendant claims that after its counsel left a message on the plaintiffs answering machine informing her of the correct date of the hearing and the plaintiff never called him back, it reasonably could assume that she would be available on February 5 and that everything was ready to proceed. At the outset of the hearing, however, the reviewing committee was fully made aware that the plaintiff was engaged in closing arguments before Judge Stodolink in a civil jury case. One of the judges who testified at the hearing so informed the reviewing committee prior to the start of the hearing. Although before the hearing began the reviewing committee knew that the plaintiff could not attend, it conducted the proceeding anyway. The defendant claims that it was reasonable to assume that the plaintiff did not want to be involved in the proceedings. Given the context of the situation, however, in view of the exchange of requests for investigations, the statements in the August 19,1996 letter and the fact that the plaintiff orally requested a continuance because she was engaged in a jury trial, and regardless of whether the plaintiff had referred to the correct date in her request, it was not reasonable to conclude that the plaintiff declined to participate.

Furthermore, at oral argument before this court, the defendant conceded that if the plaintiff had stated the correct date in the voice mail in which she requested a continuance, it would have continued the proceeding. Moreover, in its proposed decision, the reviewing committee stated that it proceeded with the hearing in light of the circumstances, including the plaintiffs failure to make a written request for a continuance or accurately to communicate orally such a request, and the fact that if the hearing were postponed, there would be resulting inconvenience to the Superior Court judges appearing as witnesses in this matter. If the reviewing committee would have been willing to accept the plaintiffs oral request had it been accurate, obviously it did not need the request in writing as recited in the caveat of the notice of hearing letter. Although the plaintiff may have stated the wrong dates, it is undisputed that prior to the hearing one of the Superior Court judges who was a witness made the reviewing committee aware that the plaintiff was engaged in closing arguments in a jury trial.

The reviewing committee had the responsibility of determining whether the plaintiff made statements that she knew were false or with a reckless disregard for the truth. It could not properly perform its duty without providing the plaintiff with a fair and adequate opportunity to cross-examine the witnesses against her and to testify in support of her allegations.

We note that the plaintiff neglected to request a continuance in a timely manner or to include accurate information in the request that she did make, and failed to request Judge Stodolink’s permission to be excused from her jury trial so that she could attend the hearing. Despite these omissions, under the particular facts of this case, once the reviewing committee became aware of the plaintiffs predicament prior to the commencement of the hearing it should have postponed the hearing so that a proper hearing could be conducted.

We conclude that the judgment of the trial court affirming the decision of the statewide grievance committee and dismissing the appeal must be reversed, and further proceedings before the defendant are necessary.

The judgment is reversed and the case is remanded with direction to render judgment reversing the defendant’s reprimand of the plaintiff and remanding the matter to the defendant for further proceedings.

In this opinion the other judges concurred.

       Rule 8.2 (a) of the Rules of Professional Conduct provides in relevant part: "‘A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office. ...”

       Rule 8.4 of the Rules of Professional Conduct provides in relevant part: “It is professional misconduct for a lawyer to . . . (4) Engage in conduct that is prejudicial to the administration of justice. . . .”

       On appeal, the plaintiff also claims that the court improperly (1) determined that the defendant’s imposition of a reprimand against the plaintiff for violating rules 8.2 (a) and 8.4 (4) of the Rules of Professional Conduct was adequately supported by the record before the defendant and (2) refused to disqualify itself from hearing the plaintiffs appeal.

       General Statutes § 51-51j (a) provides in relevant part: “The Supreme Court may remove or suspend any judge . . . upon recommendation of the Judicial Review Council ... or on its own motion. Upon receipt of such recommendation or on its own motion, the Supreme Court shall make an investigation of the conduct complained of and hold a hearing thereon, unless such an investigation and hearing has been held by the Judicial Review Council.”

       Judge Mihalakos is now a member of this court, but did not participate in any discussions or deliberations in connection with this opinion.

       Judge Stodolink did not file a grievance complaint against the plaintiff.

       The plaintiff sent the letter to Stephen Conover, an attorney for the grievance panel. The letter stated in relevant part,: “I am fully prepared to establish the truth of the statements presented in the December 12, 1995 letter to [the chief justice]; moreover, numerous witnesses are available to testify under oath as to the truth of the statements; moreover, transcripts of various of the referenced proceedings are available to establish the truth of the statements.”

       The reviewing committee found that “[t]here was no evidence by which a reasonable person in the [plaintiffs] position could have inferred that the judges in question acted in a manner ‘presenting the stark appearance of judicial corruption,’ ” as stated in the plaintiffs December 12, 1995 letter to the chief justice. In its proposed decision, the reviewing committee concluded: “[W]e find by clear and convincing evidence that the [plaintiff] made statements, which she either knew were false or with reckless disregard as to their truth or falsity, concerning the integrity of judges of the Superior Court, in violation of Rule 8.2 (a) of the Rules of Professional Conduct. The [plaintiffs] conduct also violated Rule 8.4 [4] of the Rules of Professional Conduct, which prohibits an attorney from engaging in conduct prejudicial to the administration of justice. We recommend that the Statewide Grievance Committee reprimand the [plaintiff].”

       The action at the Superior Court, level was a review of what took place in front of the review committee. The Superior Court acted as an appeals court by not finding facts. In its memorandum of decision, the court stated: “In reviewing the decision of the committee, the trial court does not take on the function of a fact finder. ‘Rather, our role is limited to reviewing the record to determine if the facts as found are supported by the evidence and whether the conclusions are legally and logically correct.’ ”

       At oral argument, defense counsel stated that if in the plaintiffs “original telephone message she said ... ‘I have the dates wrong I am actually going to a trial on this date,’ I don’t think the grievance committee could have reasonably expected her to be in two places at once.”