author: GRUENDEL, J.

text:
    SCOTT LEWIS v. CHRISTOPHER SLACK ET AL.
    (AC 29262)
    McLachlan, Gruendel and Harper, Js.
    Argued May 28—officially
    released September 30, 2008

      Scott Lewis, pro se, the appellant (plaintiff).

      Peregrine ZinnRowthom, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendants).
   Opinion

GRUENDEL, J.

The pro se plaintiff, Scott Lewis, appeals from the judgment of the Superior Court dismissing, for lack of subject matter jurisdiction, his appeal from a decision of the statewide grievance committee (committee). The dispositive issue is whether the plaintiff had standing to pursue that appeal. We affirm the judgment of the Superior Court.

On March 27,2007, the plaintiff filed with the committee a complaint concerning the conduct of the defendant Christopher Godialis, an assistant state’s attorney, in the plaintiffs direct appeal of his criminal conviction before our Supreme Court. See State v. Lewis, 245 Conn. 779, 717 A.2d 1140 (1998). On April 27, 2007, the New Britain judicial district grievance panel dismissed the complaint for lack of probable cause. The decision stated in relevant part: “[T]he panel finds no probable cause to conclude that [Godialis] violated any of the potentially applicable Rules of Professional Conduct in this matter .... Based on this determination, the panel has dismissed the complaint. This dismissal constitutes a final decision and there shall be no review of the matter by the [committee]. . . . [W]hile this decision is surely disappointing to the complainant, it must be understood that Connecticut law provides that this decision is not subject to any further review.” (Emphasis in original.) The plaintiff nevertheless requested further review of that decision by the committee. In a letter dated May 14, 2007, the committee informed the plaintiff that “the rules governing the attorney grievance process provide for no further review of your dismissed complaint.” Pursuant to Practice Book § 2-38, the plaintiff then filed a petition for judicial review with the Superior Court. That pleading named Christopher Slack, first assistant bar counsel to the committee, Beth Cvejanovich, counsel for the New Britain judicial district grievance panel, and Godiaiis as defendants. In response, the defendants filed a motion to dismiss for lack of subject matter jurisdiction, which the court granted following argument thereon. From that judgment, the plaintiff appeals.

On appeal, the plaintiff claims that the court improperly concluded that it lacked subject matter jurisdiction over his appeal. We disagree.

“[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . [Our Supreme Court] has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time. . . . [T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. . . . Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent. . . . Standing ... is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” (Citations omitted; internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002). “Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.” (Internal quotation marks omitted.) Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 574, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). Our review of the question of the plaintiffs standing is plenary. See West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 12, 901 A.2d 649 (2006).

“To be entitled to invoke the judicial process, a party must have suffered an aggrievement.” Kelly v. Dearington, 23 Conn. App. 657, 660, 583 A.2d 937 (1990). “Two broad yet distinct categories of aggrievement exist, classical and statutory. . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share. . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest. . . . Statutory aggrievement . . . exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.” (Internal quotation marks omitted.) McWeeny v. Hartford, 287 Conn. 56, 64-65, 946 A.2d 862 (2008). We address each in turn.

The plaintiff has presented no plausible statutory basis in support of his claim of aggrievement. The General Statutes do not provide for appellate review of a decision of the committee. Although he characterized his pleading as an “administrative appeal,” our Supreme Court has rejected attempts to appeal from a decision of the committee pursuant to the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., concluding that subject matter jurisdiction is lacking thereunder. Sobocinski v. Statewide Grievance Committee, 215 Conn. 517, 526-27, 576 A.2d 532 (1990). The plaintiffs contention that General Statutes § 51-197b (a) confers standing is equally untenable. That statute, titled “administrative appeals,” merely provides that “[ejxcept as provided in § 31-301b, all appeals that may be taken from administrative decisions of officers, boards, commissions or agencies of the state or any political subdivision thereof shall be taken to the Superior Court.” General Statutes § 51-197b (a). Put simply, § 51-197b (a) does not create any right of appeal.

By contrast, our rules of practice expressly permit appellate review of the committee’s decision in certain circumstances. Practice Book § 2-38 (a) provides in relevant part: “A respondent may appeal to the superior court a decision by the statewide grievance committee or a reviewing committee reprimanding the respondent . . . .” (Emphasis added.) As the defendants note in their brief, neither Practice Book § 2-38 nor any other section of the rules of practice permits an appeal by a complainant of the dismissal of a grievance complaint. In addition, when the grievance panel dismisses a given complaint due to lack of probable cause, our rules of practice provide that, absent an allegation in the complaint that the respondent committed a crime, “[sjuch dismissal shall be final and there shall be no review of this matter by the [committee] . . . .” Practice Book § 2-32 (i) (2). Those rules indicate that a complainant generally is not permitted to appeal from the committee’s dismissal of the complaint.

Relying on our recent decision in Brunswick v. Statewide Grievance Committee, 103 Conn. App. 601, 931 A.2d 319, cert. denied, 284 Conn. 929, 934 A.2d 244 (2007), the plaintiff posits that the inherent authority of the judges of this state to regulate attorney conduct and to discipline the members of the bar vests in the Superior Court the jurisdiction to review an appeal from a complainant whose grievance complaint is dismissed for lack of probable cause. The plaintiff misreads that precedent. In Brunswick, we emphasized the committee’s “unique status as an arm of the court”; it is not an administrative body. Id., 610. We explained that because our courts possess an inherent supervisory authority over attorney conduct, they necessarily retain jurisdiction to review an order of the committee disciplining an attorney. Id., 608; see also Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 232, 578 A.2d 1075 (1990). Brunswick did not address judicial review of the dismissal of a complaint by the committee or its local grievance panel. Furthermore, just as our judges exercised their inherent supervisory authority by “authorizing] grievance panels and reviewing committees to investigate allegations of attorney misconduct and to make determinations of probable cause”; Statewide Grievance Committee v. Presnick, 215 Conn. 162, 167, 575 A.2d 210 (1990); the judges of this state, in adopting Practice Book §§ 2-32 and 2-38, have circumscribed the right of appeal from committee decisions.

Neither the General Statutes nor our rules of practice confer standing on a complainant to appeal from the committee’s dismissal of a complaint to the Superior Court. As such, the plaintiff is not statutorily aggrieved.

We further conclude that the plaintiff has not established classical aggrievement. The plaintiff argues that his appeal is brought “on the basis that he shared a public interest in the matter . . . .” Our Supreme Court rejected a similar claim of aggrievement in Monroe v. Horwitch, 215 Conn. 469, 473, 576 A.2d 1280 (1990), holding that a party who was “simply a member of the general public who has not demonstrated how she was harmed in a unique fashion” by the conduct she had challenged had failed to establish “a colorable claim of direct injury,” and thus lacked standing to maintain the action. It is well settled that “the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole.” (Internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 638, 662 A.2d 1251 (1995); see also Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 538, 893 A.2d 389 (2006); Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 369-70, 880 A.2d 138 (2005). The plaintiff has not alleged or demonstrated a specific, personal and legal interest in the decision of the committee as to whether to discipline Godialis. Accordingly, the plaintiff has failed to establish either classical or statutory aggrievement in the present case. The court properly dismissed his appeal for lack of subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs pleading was titled “Appeal to Superior Court.” Although the plaintiff characterized the pleading as an “administrative appeal,” it expressly challenged the decision of the committee pursuant to Practice Book § 2-38.

       It is the responsibility of the appellant to provide this court with an adequate record for review. See Practice Book § 61-10; Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005). The plaintiffs grievance complaint is not contained in the record before us, which precludes a determination as to whether it involved allegations of criminal conduct. Furthermore, the grievance panel’s decision makes no mention of any allegation of criminal activity on the part of Godialis.

       The plaintiff also relies on dictum in Pinsky v. Statewide Grievance Committee, supra, 216 Conn. 228, to bolster his proposition that the court’s inherent supervisory power to regulate attorney conduct vests in it the jurisdiction to review his appeal. At issue in Pinsky was “whether an attorney has the right to appeal a reprimand issued by the defendant to the Superior Court . . . .” Id., 229. Answering that question affirmatively, the court held that although “there is no statutory right of appeal from a reprimand . . . the trial court has authority to review such an order by virtue of its inherent supervisory authority over attorney conduct.” Id., 232.
      In a footnote, the court observed: “It is not clear that the [complainant] plaintiff in Sobocinski [v. Statewide Grievance Committee, supra, 215 Conn. 517] could have used this equitable avenue to obtain judicial review of the decision of the defendant dismissing her complaint against her former attorney from which she had appealed pursuant to General Statutes § 4-183. As a complainant, her interest in that decision was not equivalent to the right of an attorney, such as this plaintiff, in preserving his professional reputation. There may be situations, however, where a decision of the defendant so affects the constitutionally protected interests of a complainant that an appeal to court may be warranted.” Pinsky v. Statewide Grievance Committee, supra, 216 Conn. 234 n.4. “It is well established that statements in prior cases that constitute dicta do not act as binding precedent."Remax Right Choice v. Aryeh, 100 Conn. App. 373, 378, 918 A.2d 976 (2007), and cases cited therein. Moreover, the plaintiff has asserted no constitutionally protected interest in the present case. Cf. Linda R. S. v. Richard D., 410 U.S. 614, 619, 93 S. Ct. 1146, 35 L. Ed. 2d 536 (1973) (“a private citizen lacles a judicially cognizable interest in the prosecution or nonprosecution of another”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    TIMOTHY GREENE v. ACES ACCESS ET AL.
    (AC 29007)
    DiPentima, Harper and West, Js.
    Argued May 21
    officially released September 30, 2008

      Steven J. DeFrank, for the appellant (plaintiff).

      Andrew A. Cohen, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Timothy Greene, appeals from the decision of the workers’ compensation review board (board), which affirmed the decision of the workers’ compensation commissioner (commissioner), dismissing his claim for compensation from the defendant Aces Access. The dispositive issue is whether the evidence presented at the formal hearing and the subordinate facts found by the commissioner support the commissioner’s conclusion that the plaintiff had not suffered a compensable injury. We answer that question in the affirmative and, accordingly, affirm the decision of the board.

The commissioner found the following facts. The plaintiff has a history of back problems. As a student and varsity basketball player at Southern Connecticut State University, he periodically received care from the team’s trainer for back pain. After graduating from college in 1999, he continued to play basketball a few times per month.

On June 25,2002, the plaintiff was involved in a motor vehicle accident. On that day, he sought treatment from Joseph Quaranta, a medical internist, for soreness in his lower back. The plaintiff sought additional treatment from Quaranta on November 25 and December 13, 2002, for lower back pain, which was attended by pain radiating down his right leg. The medical reports from those visits indicate that the pain arose after the plaintiff had twisted his back while playing basketball. Quaranta prescribed medication for the plaintiff and scheduled him for a magnetic resonance imaging (MRI) scan on December 23, 2002. The MRI revealed a herniated disc and a disc protrusion in the plaintiffs lower back, both of which were consistent with the pain radiating down his right leg.

In the meantime, the plaintiff began working for the defendant on December 3, 2002, as a full-time job coach for adults with developmental disabilities. As part of his job duties, the plaintiff provided transportation for clients to job sites. The plaintiff testified that on December 18,2002, he felt a “pop” in his back and experienced pain from his back through his right leg after lifting an occupied wheelchair onto a ramp of a transportation van owned by the defendant. He reported this incident to a nurse and to his supervisor later that day.

The next day, the plaintiff sought medical attention from Gerard J. Girasole, an orthopedic physician, for his lower back pain. Rolando R. Lopez, a physician’s assistant to Girasole, conducted the initial examination of the plaintiff and wrote a report. Lopez’ report does not indicate that the plaintiffs symptoms were the result of a work-related injury. Instead, the report states in relevant part: “For the past month the [plaintiffs] back pain has been getting worse with radiation now of his symptoms down his right leg which is newer. He has never had radicular pain. . . . His medical internist has scheduled him for an MRI . . . .” Girasole testified that if the plaintiff had complained of a work-related injury, that fact would have been recorded in the report.

Following the December 23, 2002 MRI, Quaranta referred the plaintiff to James K. Sabshin, a neurosurgeon. Sabshin first examined the plaintiff on July 19, 2003, and found him to be totally disabled, diagnosing him with disc herniations in his lower back. During a subsequent visit, Sabshin opined that the plaintiff most likely had sustained his injuries as a result of the December 18, 2002 incident. He based this diagnosis on the fact that the plaintiff had reported to him “no previous history of significant injuries to his low back or sciatic pain” prior to the December 18, 2002 incident.

The plaintiff stopped working for the defendant in July, 2004, and began working full-time for a new employer. In performance of his duties in this new position, he was required to lift a minimum of fifty pounds. Since beginning his new job, the plaintiff has continued to experience occasional pain in his lower back but has worked in spite of it. He also has continued to play basketball.

The plaintiff filed a claim for workers’ compensation benefits as a result of the December 18, 2002 incident. After a formal hearing on April 11 and October 17, 2005, the commissioner dismissed the plaintiffs claim, determining that the plaintiff had failed to prove that he had suffered a compensable injury on December 18, 2002, which arose out of and in the course of his employment. The commissioner thereafter denied the plaintiffs motion to correct, and the board affirmed the commissioner’s decision. This appeal followed.

We apply a well settled standard of review in appeals from the board. In workers’ compensation cases, “the injured employee bears the burden of proof, not only with respect to whether an injury was causally connected to the workplace, but that such proof must be established by competent evidence.” (Internal quotation marks omitted.) Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 447, 774 A.2d 992 (2001). “[W]hen a decision of a commissioner is appealed to the review [board], the review [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. . . . It is the power and the duty of the commissioner, as the trier of fact, to determine the facts. . . . [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses .... The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . We will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. . . . Similarly, [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Samaoya v. Gallagher, 102 Conn. App. 670, 673-74, 926 A.2d 1052 (2007).

Our review of the record reveals that the evidence presented at the formal hearing adequately supported the commissioner’s findings. Contrary to the plaintiffs assertions in his brief, the parties submitted conflicting medical evidence as to the cause and timing of the plaintiffs lower back injuries. The plaintiffs claim ignores the deposition testimony of William H. Druckemiller, a neurosurgeon, who opined that on the basis of his independent examination of the plaintiff and the plaintiffs medical records, the plaintiff likely sustained a lower back injury prior to December 18, 2002, and that “the lifting incident is not likely to be a significant contributing factor to his need for treatment . . . .” The commissioner specifically credited Druckemiller’s testimony, which contradicted the opinions of Girasole and Sabshin that the plaintiffs back injuries occurred as a result of a December 18, 2002 work-related incident. We will not disturb the commissioner’s assessment of witness credibility. See Samaoya v. Gallagher, supra, 102 Conn. App. 673-74. Accordingly, we conclude that the commissioner properly found that the plaintiff had failed to sustain his burden of proving that his back injuries, i.e., the disc herniation and disc protrusion, were the result of, or were aggravated by, the December 18, 2002 incident. The board, in turn, properly left the commissioner’s findings undisturbed.

The decision of the workers’ compensation review board is affirmed.

       Connecticut Health Care Workers’ Compensation Trust, the workers’ compensation insurer for Aces Access, is also a defendant in this case. For convenience, we refer in this opinion to Aces Access as the defendant.

       The plaintiff further claims that the commissioner improperly failed to consider the degree to which his preexisting disability had exacerbated his compensable injury in accordance with General Statutes § 31-349 (a). Because we conclude that the commissioner properly determined that the plaintiff did not suffer a compensable iryury, we further conclude that § 31-349 is inapplicable, and, accordingly, the commissioner properly conducted no analysis pursuant to that statute.

       A subsequent computerized axial tomography scan on August 25, 2003, and MRIs on August 26, 2003, and April 4, 2005, yielded similar results.

       The report from a subsequent visit with Girasole on February 24, 2003, also does not mention the December 18, 2002 incident. The first time the December 18, 2002 incident is noted by Girasole is in a report following a March 25, 2003 visit with the plaintiff.

       The commissioner discredited the opinions of Girasole and Sabshin as to the cause of the plaintiffs ipjuries because they had formed their opinions on the basis of information provided by the plaintiff, whom the commissioner also found to be neither credible nor persuasive.


text:
    STATE OF CONNECTICUT v. TODD DELLACAMERA
    (AC 29115)
    Flynn, C. J., and McLachlan and Beach, Js.
    Argued June 11
    officially released September 30, 2008

      MarkR. Soboslai, with whom was Ross M. Kaufman, for the plaintiff in error.

      Harry Weller, senior assistant state’s attorney, for the defendant in error.
   Opinion

PER CURIAM.

The plaintiff in error, Todd Dellacamera, brought a writ of error challenging the constitutionality of General Statutes § 46b-38c. He claims in essence that the extension of a criminal protective order to prevent contact with his daughter violated his constitutionally protected rights to family integrity and due process. The state, the defendant in error, moved to dismiss the writ of error for lack of subject matter jurisdiction. We ordered supplemental briefs and oral argument on the issue of whether review of a family violence protection order issued pursuant to § 46b-38c can be brought by way of a writ of error when a plaintiff in error can, and did, seek expedited appellate review by way of a petition for review pursuant to General Statutes § 54-63g. We conclude that the writ of error is improper and, accordingly, dismiss the writ.

The record reveals the following relevant facts and procedural history. In May, 2007, following an alleged altercation with his wife at their home, the plaintiff in error was arrested and charged with disorderly conduct in violation of General Statutes § 53a-182, interfering with an emergency call in violation of General Statutes § 53a-183b and unlawful restraint in the second degree in violation of General Statutes § 53a-96. He subsequently was arraigned and released on bond. As a condition of release, the court, Reynolds, J., on May 7, 2007, issued a family violence protective order pursuant to § 46b-38c. The protective order prohibited the plaintiff in error from having any contact with his wife and was extended to include his minor daughter. The protective order was modified twice, first by the court, Beilis, J., on May 16, 2007, to allow the plaintiff in error to have limited telephone contact with his daughter, and later by the court, Hon. Jack C. Grogins, judge trial referee, on June 19, 2007, to permit the plaintiff in error to participate in therapy sessions with his daughter.

A dissolution action was commenced on May 17, 2007. In July, 2007, the court, Hon. Howard T. Owens, Jr., judge trial referee, conducted evidentiary hearings on a motion for pendente lite orders of joint custody and for a parenting plan. The court was aware of the protective order issued in connection with the criminal proceedings but nonetheless granted the plaintiff in error some visitation privileges with his daughter. Judge Owens stated on the record that he did not believe that his orders conflicted with the terms of the criminal protective order as modified.

After Judge Owens’ orders were issued, the state filed in the criminal case a “motion for determination of priority of orders.” On July 12,2007, following a hearing, Judge Grogins ruled that the criminal protective order took precedence over and overruled the civil order to the extent that the two orders were inconsistent.

The plaintiff in error subsequently filed in this court a petition for review of Judge Grogins’ ruling, pursuant to § 54-63g. On October 24, 2007, a panel of this court granted review of that petition but denied the relief requested, thereby allowing Judge Grogins’ ruling to stand. The plaintiff in error also brought a writ of error to the Supreme Court, which writ challenged Judge Grogins’ ruling that the protective order took precedence over the family court order. The matter was transferred to this court by the Supreme Court pursuant to Practice Book § 65-1. On February 15, 2008, the state filed a motion to dismiss the plaintiff in error’s writ of error for lack of subject matter jurisdiction. On April 29, 2008, we ordered the parties to file simultaneous supplemental briefs addressing the issue of whether review of a family violence protection order issued pursuant to § 46b-38c can be brought by way of a writ of error when a plaintiff in error can, and did, seek expedited appellate review by way of a petition for review pursuant to § 54-63g.

A writ of error is not available where the claimed error “might have been reviewed by process of appeal . . . .” Practice Book § 72-1 (b) (1). An interlocutory order concerning release may be reviewed by a petition for review pursuant to § 54-63g. State v. Ayala, 222 Conn. 331, 338-40, 610 A.2d 1162 (1992). For persons aggrieved by orders concerning release in criminal cases, the General Assembly has provided the exclusive remedy of the petition for review. The existence of the legislatively created remedy precludes the use of a writ of error to review an order concerning release.

The writ of error is dismissed.

       General Statutes § 46b-38c provides in relevant part: “(d) In all cases of family violence, a written or oral report and recommendation of the local family violence intervention unit shall be available to a judge at the first court date appearance to be presented at any time during the court session on that date. A judge of the Superior Court may consider and impose the following conditions to protect the parties, including, but not limited to: (1) Issuance of a protective order pursuant to subsection (e) of this section; (2) prohibition against subjecting the victim to further violence; (3) referral to a family violence education program for batterers; and (4) immediate referral for more extensive case assessment. Such protective order shall be an order of the court, and the clerk of the court shall cause (A) a certified copy of such order to be sent to the victim, and (B) a copy of such order, or the information contained in such order, to be sent by facsimile or other means within forty-eight hours of its issuance to the law enforcement agency for the town in which the victim resides and, if the defendant resides in a town different from the town in which the victim resides, to the law enforcement agency for the town in which the defendant resides. If the victim is employed in a town different from the town in which the victim resides, the clerk of the court shall, upon the request of the victim, send, by facsimile or other means, a copy of such order, or the information contained in such order, to the law enforcement agency for the town in which the victim is employed within forty-eight hours of the issuance of such order.
      “(e) A protective order issued under this section may include provisions necessary to protect the victim from threats, harassment, injury or intimidation by the defendant, including, but not limited to, an order enjoining the defendant from (1) imposing any restraint upon the person or liberty of the victim, (2) threatening, harassing, assaulting, molesting or sexually assaulting the victim, or (3) entering the family dwelling or the dwelling of the victim. Such order shall be made a condition of the bail or release of the defendant and shall contain the following language: ‘In accordance with section 53a-223 of the Connecticut general statutes, any violation of this order constitutes criminal violation of a protective order which is punishable by a term of imprisonment of not more than five years, a fine of not more than five thousand dollars, or both. Additionally, in accordance with section 53a-107 of the Connecticut general statutes, entering or remaining in a building or any other premises in violation of this order constitutes criminal trespass in the first degree which is punishable by a term of imprisonment of not more than one year, a fine of not more than two thousand dollars, or both. Violation of this order also violates a condition of your bail or release, and may result in raising the amount of bail or revoking release.’ Every order of the court made in accordance with this section after notice and hearing shall also contain the following language: ‘This court had jurisdiction over the parties and the subject matter when it issued this protection order. Respondent was afforded both notice and opportunity to be heard in the hearing that gave rise to this order. Pursuant to the Violence Against Women Act of 1994, 18 USC 2265, this order is valid and enforceable in all fifty states, any territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico and tribal lands.’ The information contained in and concerning the issuance of any protective order issued under this section shall be entered in the registry of protective orders pursuant to section 51-5c.”

       In its motion to dismiss, the state argued, inter alia, that the writ of error is moot because the trial court had dismissed all criminal charges against the plaintiff in error and that the criminal prosecution ended and the protective order dissolved as a matter of law. Because we conclude that the writ of error should be dismissed on our own motion, no action is necessary on the state’s motion to dismiss.

       General Statutes § 54-63g provides: “Any accused person or the state, aggrieved by an order of the Superior Court concerning release, may petition the Appellate Court for review of such order. Any such petition shall have precedence over any other matter before said Appellate Court and any hearing shall be heard expeditiously with reasonable notice.”


author: BISHOP, J. LAVERY, J.,

text:
    RICHARD READ v. TOWN OF PLYMOUTH ET AL.
    (AC 28523)
    Bishop, Harper and Lavery, Js.

      Argued May 22
    officially released October 7, 2008

      Paul E. Daddario, for the appellant (plaintiff).

      Joseph M. Busher, Jr., with whom, on the brief, was Andrew J. O’Keefe, for the appellees (defendants).
   Opinion

BISHOP, J.

The plaintiff, Richard Read, appeals from the judgment of the trial court rendered after the granting of a motion to strike certain counts of his complaint filed by the defendants, the town of Plymouth (town), Ralph J. Zombouski and Gary Belanger, and a motion for summary judgment filed by the town as to the remaining count. On appeal, the plaintiff claims that the court improperly (1) struck counts of his complaint on the basis that General Statutes § lSa-149 is the exclusive remedy for a highway defect claim and (2) rendered summary judgment on the remaining count on the basis of its conclusion that the location of his fall was not a public highway within the purview of § 13a-149. We reverse in part and affirm in part the judgment of the trial court.

The following procedural history is pertinent to the issues on appeal. The plaintiff filed this action against the town and the individual defendants in their capacities as department of public works employees, alleging that he sustained injuries when he fell into a moveable dumpster at the town waste transfer station while attempting to discard waste. The plaintiff alleged that he tripped and fell as a result of a broken or separated concrete block that formed a platform or wall above the dumpster. The first count of the plaintiffs second revised complaint was directed at the town and sounded in nuisance. The second count was brought against the town pursuant to the defective highway statute, § 13a-149. The third count was against the town and was based on General Statutes § 13a-152. The fourth and fifth counts were directed at Zombouski and Belanger and sounded in negligence. The sixth and seventh counts were against the town and Zombouski and claimed nuisance and negligence, respectively, pursuant to General Statutes § 52-557n. The eighth count was also against the town and Zombouski and was premised on §§ 13a-149 and 52-557n.

The defendants filed a motion to strike the first, third, fourth, fifth, sixth, seventh and eighth counts of the plaintiffs second revised complaint on the basis that the defective highway statute, § 13a-149, as alleged in the second count, was the exclusive remedy for the plaintiffs claim. The defendants also argued that the fourth and fifth counts were legally insufficient because the individual defendants were entitled to governmental immunity. The court granted the defendants’ motion to strike the first, third, fourth, fifth, sixth, seventh and eight counts of the complaint on the basis that the defective highway statute provided the exclusive remedy against the town. The court also granted the motion to strike the fourth and fifth counts on the additional ground of governmental immunity. The plaintiff did not file a substitute pleading, and judgment entered for the defendants on those counts.

Subsequently, the defendant town moved for summary judgment with respect to the second count of the second revised complaint on the basis that the plaintiffs injury did not occur on a public highway and that the claim, therefore, was not within the purview of § 13a-149. The court granted the motion for summary judgment, reasoning that because the transfer station was limited to residents of the town of Plymouth who had permits, the transfer station was not a public highway and, consequently, did not fall within § 13a-149. This appeal followed.

I

The plaintiff first claims that the court improperly granted the defendants’ motion to strike on the basis that the defective highway statute was the exclusive remedy available to him when he had, in one count, invoked its protection as an alternate theory. We agree.

“The standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. Amotion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).

In objecting to the defendants’ motion to strike, the plaintiff conceded that if the location of his fall was a municipal highway, then the defective highway statute would be his exclusive remedy. He argued, however, that he was pleading in the alternative because the defendants were contesting that the area in question was a public highway.

“Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint.” Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985); DeVita v. Esposito, 13 Conn. App. 101, 105, 535 A.2d 364 (1987) (alternative pleading justified when pleader does not know all facts necessary to make election), cert. denied, 207 Conn. 807, 540 A.2d 375 (1988); see also Practice Book § 10-25.

In rejecting the plaintiffs claim that he was entitled to plead in the alternative, the court relied on Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2001). Ferreira is distinguishable from the case at hand, however, because, the court in Ferreira determined that the plaintiffs injuries had “resulted from conditions constituting a highway defect . . . .” Id., 354. Because, in this case, it was not clear when the court struck the subject counts that the plaintiffs claim was within the purview of the defective highway statute, his complaint properly contained alternative theories of recovery. Consequently, the court improperly struck the first, third, sixth, seventh and eighth counts of his second revised complaint on the basis of yet undetermined facts regarding the applicability of the defective highway statute.

II

The plaintiff also claims that the court improperly rendered summary judgment regarding the count in which he alleged that his fall had occurred on a public highway. He claims that the court incorrectly determined that there were no genuine issues of material fact regarding the location of his fall and its status as part of a public highway and that the court improperly concluded that as a matter of law he was not entitled to invoke the protections afforded by § 13a-149. We are unpersuaded.

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198, 931 A.2d 916 (2007). “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue.” (Citation omitted; internal quotation marks omitted.) Trotta v. Branford, 26 Conn. App. 407, 409-10, 601 A.2d 1036 (1992). “On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., supra, 199.

“Historically . . . municipalities enjoyed immunity for injuries caused by defective highways under common law, due in good part to the miles of streets and highways under their control.” Prato v. New Haven, 246 Conn. 638, 646, 717 A.2d 1216 (1998). The highway defect statute, § 13a-149, is a legislative exception to the immunity that municipalities enjoyed at common law and, as such, must be strictly construed. Id., 647. “Under § 13a-149, [a.]ny person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair .... We have construed § 52-557n ... to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiffs exclusive remedy.” (Internal quotation marks omitted.) Ferreira v. Pringle, supra, 255 Conn. 341.

“Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law . . . . [S]ee [Sanzone v. Board of Police Commissioners, 219 Conn. 179, 201, 592 A.2d 912 (1991)] (determining that [w]hether or not the accident was caused by the defective traffic light, the plaintiffs’ claim that it was caused by the defective traffic light is, as a matter of law, a claim based upon a defective road); see also Older v. Old Lyme, 124 Conn. 283, 285, 199 A. 434 (1938) ([t]he question whether a highway is defective, the answer to which may depend on a great variety of circumstances, is in general one of fact but determination whether or not the facts found warrant, in law, the conclusions reached therefrom is open on appeal),” (Citation omitted; internal quotation marks omitted.) Ferreira v. Pringle, supra, 255 Conn. 341-42.

“[A] highway is defective within the meaning of § 13a-149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel.” Novicki v. New Haven, 47 Conn. App. 734, 740, 709 A.2d 2 (1998). “If in the use of the traveled portion of the highway ... a condition exists which makes travel not reasonably safe for the public, the highway is defective.” (Internal quotation marks omitted.) Ferreira v. Pringle, supra, 255 Conn. 344.

The central question confronting the court in the motion for summary judgment was whether the situs of the plaintiffs fall was a public highway. According to General Statutes § 14-1 (37), a “highway” includes “any state or other public highway, road, street, avenue, alley, driveway, parkway or place, under the control of the state or any political subdivision of the state, dedicated, appropriated or opened to public travel or other use . . . .” Our Supreme Court has stated: “The plain meaning of the word highway is [a] main road or thoroughfare; hence, a road or way open to the use of the public. Webster’s New International Dictionary (2d Ed.) 1179. It is thus that this court has customarily understood the word. We have stated, for example, that the essential feature of a highway is that every traveler has an equal right in it with every other traveler. . . . [T]he term highway is ordinarily used in contradistinction to a private way, over which only a limited number of persons have the right to pass.” (Citation omitted; internal quotation marks omitted.) New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 785 (1975). Later, this court stated: “Public highway is not a term of art. . . . The plain meaning of the word highway is a main road or thoroughfare; hence, a road or way open to the use of the public. [T]he essential feature of a highway is that every traveler has an equal right in it with every other traveler. . . . Thus, it is a way over which the public at large has a right to pass.” (Citations omitted; internal quotation marks omitted.) State v. Harrison, 30 Conn. App. 108, 118-19, 618 A.2d 1381 (1993), aff'd, 228 Conn. 758, 638 A.2d 601 (1994); see also State v. Boucher, 207 Conn. 612, 615, 541 A.2d 865 (1988) (“The essential feature of a public use is that it is not confined to privileged individuals or groups whose fitness or eligibility is gauged by some predetermined criteria, but is open to the indefinite public. It is the indefiniteness or unrestricted quality of potential users that gives a use its public character.”).

In support of its motion, the town presented the affidavit of Zombouski, the former director of public works, which stated that at the time of the alleged incident, the transfer station was a restricted access facility, the use of which was limited to permit holding town residents who had registered their vehicles with the town. Furthermore, the transfer station was open during limited hours and, when it was closed, was restricted by means of a locked gate. The plaintiff presented no affidavit or evidence in opposition to the facts set forth in the Zombouski affidavit and, in his objection to the motion for summary judgment, stated that “although the facts were not in dispute,” he properly had alleged a legal claim pursuant to § 13a-149. Because there was no factual dispute that access to the transfer station was restricted and was, therefore, not open to the public, the court properly determined that the plaintiffs claim did not fall within the purview of the defective highway statute, § 13a-149. Accordingly, the court properly rendered summary judgment as to the second count of the second revised complaint.

The judgment is reversed as to the first, third, sixth, seventh and eighth counts of the plaintiffs second revised complaint and the case is remanded to the trial court for further proceedings on those counts. The judgment is affirmed in all other respects.

In this opinion HARPER, J., concurred.

LAVERY, J.,

dissenting. I agree with the majority on the first part of its opinion concerning the right of the plaintiff, Richard Read, to allege alternate theories of liability. I depart from the majority opinion on whether the defects at the town of Plymouth’s municipal waste disposal transfer site come within the ambit of General Statutes § 13a-149. The majority reasoned that because the transfer station was open only to residents of the plaintiffs municipality who acquired permits and that it was open only for limited hours, it was not always open to the public at large.

It is undisputed that the defendant town of Plymouth has designated the waste transfer station as the disposal location for the town’s solid waste. See General Statutes § 22a-220. The residents of the defendant town, therefore, must use the waste transfer station to dispose of their solid waste. It is incumbent on each town and city in Connecticut to designate an area for their residents to dispose of their solid waste. See General Statutes § 22a-220. The fact that the waste station has limited use and requires a local permit does not diminish its public use character. Every citizen of Connecticut has to have access to such a place.

In fact, walkways and sidewalks that lead to public buildings come within the confines of § 13a-149. “The word road or highway as used in the highway defect statute has usually been construed to include sidewalks. . . . The term sidewalk is meant to apply to those areas that the public uses for travel. . . . Furthermore, a highway is defective within the meaning of § 13a-149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel.” (Citations omitted.) Novicki v. New Haven, 47 Conn. App. 734, 740, 709 A.2d 2 (1998).

In Novicki, the court held that a walkway leading to a public school was covered by § 13a-149. In this case, the walkway at issue leads to the disposal bin at the town landfill that the plaintiff was required to use to dispose of his solid waste properly and, in my opinion, comes under the ambit of § lSa-149. Whether there is a defect was not an issue in either the trial court or in the majority opinion, and, for the purposes of this dissent, I assume the defect exists.

I respectfully dissent. I would reverse the judgment in its entirety and remand the case for further proceedings.

       General Statutes § 13a-149 provides in relevant part: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. . .

       Practice Book § 10-44 provides in relevant part that if a “party whose pleading or a count thereof has been . . . stricken fails to file a new pleading within [fifteen days after the granting of the motion to strike], the judicial authority may, upon motion, enter judgment against said party on such stricken [pleading] . . .

       Although the plaintiff nominally has challenged the court’s ruling on the motion to strike in its entirety, he has offered no argument in opposition to the court’s finding of governmental immunity as to the fourth and fifth counts. Therefore, we address the court’s ruling on the motion to strike only as to the first, third, sixth, seventh and eighth counts.

       Practice Book § 10-25 provides: “The plaintiff may claim alternative relief, based upon an alternative construction of the cause of action.”

       There are well reasoned Superior Court cases, with which I agree, that concern an issue substantially similar to the one in this case. See, e.g., Kelly v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV-02-0518091-S (December 10, 2004) (38 Conn. L. Rptr. 403); Pires v. Litchfield, Superior Court, judicial district of New Britain, Docket No. CV-00-0502703-S (April 4, 2003) (34 Conn. L. Rptr. 366); Hodge v. Old Saybrook, Superior Court, judicial district of Middlesex, Docket No. CV-99-0088746-S (December 20, 2001); Dunleavy v. Groton, Superior Court, judicial district of New London, Docket No. 545592 (November 23, 1998) (23 Conn. L. Rptr. 424).


author: ROBINSON, J.

text:
    MARICULTURE PRODUCTS LTD. v. THOSE CERTAIN UNDERWRITERS AT LLOYD’S OF LONDON INDIVIDUALLY SUBSCRIBING TO CERTIFICATE NO. 1395/91 ET AL.
    (AC 28206)
    Gruendel, Robinson and West, Js.

      Argued March 19
    officially released October 7, 2008

      James T. Hargrove, with whom were Steven D. Ecker and, on the brief, James T. Cowdery, pro hac vice, and Leonard H. Freiman, pro hac vice, for the appellants (named defendants).

      John W. Cannavino, with whom, on the brief, were James D. Poliquin, pro hac vice, and Rochelle Tedesco Chamin, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

In Mariculture Products Ltd. v. Certain Underwriters at Lloyd’s of London, 84 Conn. App. 688, 854 A.2d 1100, cert. denied, 272 Conn. 905, 863 A.2d 698 (2004) (Mariculture I), this court affirmed in part and reversed in part the judgment of the trial court. We reversed the judgment of the trial court on the claim of the defendant Underwriters at Lloyd’s of London Individually Subscribing to Certificate No. 1395/91 that the court improperly denied their motion for judgment notwithstanding the verdict with respect to the second count of the amended complaint and remanded the case to the trial court with direction to render judgment in favor of the defendants on that count. Id., 718. We affirmed the judgment in all other aspects. Id. In this appeal, the defendants claim that on remand, the court improperly awarded the plaintiff, Mariculture Products Ltd., interest under General Statutes § 37-3a. They claim that the court (1) exceeded the scope of this court’s remand in Mariculture I, (2) incorrectly interpreted the parties’ stipulation regarding interest to include interest under Connecticut law, (3) rendered supplemental judgment to award interest under § 37-3a even though the necessary predicate factual findings were never made by the jury and (4) improperly applied a substantive Connecticut law when Maine law governed. We conclude that the court improperly determined that the parties’ stipulation did not limit the issues of interest to Maine law and that the jury found the facts necessary for an award of interest under § 37-3a. We reverse the supplemental judgment awarding interest.

The following relevant facts and procedural history were set forth in Mariculture I. “The plaintiff owned and operated fish hatcheries at three separate locations in Maine. Gershon G. Navon served both as the president and sole shareholder of the plaintiff and its parent corporation, Mariculture Products Corporation. The plaintiff’s inventory of fish at each of its hatcheries was insured by the subject insurance policy that was issued by the defendants. The policy covered fish that were lost due to death, destruction or escape.

“The property insurance policy also included a clause naming Key Bank [of Maine (Key Bank)] as aloss payee. Key Bank had loaned to the plaintiff a total of $9 million to finance the establishment of the plaintiffs business. Key Bank initially loaned to the plaintiff $5 million for construction of the hatcheries and sites. This loan was disbursed in three installments from 1988 through 1991. Key Bank loaned an additional $4 million to the plaintiff in 1992. That loan was equally divided between a working capital loan and a term loan. The working capital funds operated as a revolving line of credit.

“The plaintiff entered into a series of security agreements with Key Bank to secure the loans. The plaintiffs machinery, cages and other assets related to the construction of the hatchery facilities served as collateral for the $5 million construction loan. The revolving line of credit associated with the $2 million of working capital was seemed by the plaintiffs inventory of fish.

“The plaintiff sustained a significant loss of fish at its Frenchboro farm on August, 19, 1991, as a result of Hurricane Bob. On March 3, 1992, the plaintiff submitted a formal claim to the defendants specifying losses of $744,070. The plaintiff later reduced this claim to $729,672. On April 2, 1992, the defendants denied the claim by letter, stating that the claim was ‘excessive’ and providing no further explanation.

“Meanwhile, between January and March, 1992, the plaintiff was engaged in negotiations with Key Bank regarding its inability to make its loan payments. Key Bank had sent a written notice of default and acceleration to the plaintiff on February 27,1992, outlining various defaults allegedly committed by the plaintiff. During the comse of these negotiations, on March 17, 1992, Key Bank physically seized the plaintiffs assets.

“On May 26,1993, allegedly on behalf of the plaintiff, Key Bank submitted a proof of loss form to the defendants, claiming $150,000 in losses. This proof of loss form purported to release the defendants from all further claims by the plaintiff. Subsequently, the defendants paid $150,000 to Key Bank pursuant to a settlement between the defendants and Key Bank.

“On February 9,1998, the plaintiff filed the underlying action against the defendants, seeking to recover damages for an alleged breach of the insurance contract. The complaint sounded in breach of contract and violations of the late payment and unfair claims settlement practices provisions of the Maine Insurance Code. Following trial, the jury returned a verdict in favor of the plaintiff on its breach of contract and late payment claims, awarding damages of $445,000. The jury returned a verdict in favor of the defendants on the unfair claims settlement practices claim. The court awarded the plaintiff attorney’s fees of $487,194 and interest of $768,515.” Mariculture I, supra, 84 Conn. App. 692-94.

“On appeal [to this court], the defendants claim[ed] that the trial court (1) improperly denied their motions for a directed verdict and for judgment notwithstanding the verdict, both premised on the issue of release, and improperly instructed the jury not to consider either their related settlement with Key Bank ... or their $150,000 payment to Key Bank as a result of the settlement, (2) failed to set off against the verdict the $150,000 payment to Key Bank and improperly instructed the jury not to consider the issue of setoff, and (3) failed to render judgment as a matter of law against the plaintiff on its claim under § 2436 of title 24-A of the Maine Revised Statutes and improperly instructed the jury to consider that claim.

“The plaintiff cross appealed], claiming that the court improperly (1) determined that the interest required under § 2436 should be simple rather than compound, (2) decided not to instruct the jury on the meaning of ‘reserving any appropriate defenses’ in response to the jury’s question regarding how that language should be interpreted and (3) denied the plaintiffs motion for a directed verdict on its claims under Maine’s Unfair Settlement Practices Act, Me. Rev. Stat. Ann. tit. 24-A, § 2436-A (West 2000).” Mariculture I, supra, 84 Conn. App. 691-92.

We reversed the judgment only as to the trial court’s denial of the defendants’ motion for judgment notwithstanding the verdict as to the plaintiffs claim in count two of the amended complaint, which alleged a violation of § 2436 of the Maine Revised Statutes. We remanded the case with direction to render judgment in favor of the defendants on that count. We affirmed the judgment in all other respects. Id., 718. The Supreme Court denied the plaintiff certification to appeal from our decision in Mariculture I on December 8, 2004.

Following our remand, the plaintiff moved, in January, 2005, for an award of prejudgment interest under § 37-3a on the damages found by the jury on the first count of the complaint and postjudgment interest. In a memorandum of decision filed August 1,2006, the court determined that “[t]here is nothing in the transcripts submitted by counsel to suggest that either party could have reasonably believed that the issue of interest reserved to the court was limited to interest under Maine law.” The court also concluded that “the answers to the special jury interrogatories dated November 2, 2001, make it clear that the defendants wrongfully withheld payment for the losses incurred by the plaintiff from April 2,1992. ” The court ordered that a supplemental judgment for the award of interest under § 37-3a be entered. This appeal followed.

I

The defendants claim on appeal that the court incorrectly interpreted the stipulation by which the parties agreed to submit the plaintiffs claim for interest under Maine law for determination by the court. Specifically, they argue that the court misconstrued their stipulation to permit a claim for interest under Connecticut law. They contend that the parties could not have contemplated or arrived at any agreement concerning interest under Connecticut law because the plaintiffs claim to interest before, during and after the trial had been under Maine law. We agree with the defendants.

“[A] stipulation of the parties is to be regarded and construed as a contract. ... In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties. . . . We review the court’s determination of the parties’ intent, when the language of the stipulation is ambiguous, as we would review a factual conclusion. . . . We will uphold the court’s factual findings unless those findings are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Sullivan v. Delisa, 101 Conn. App. 605, 621, 923 A.2d 760, cert. denied, 283 Conn. 908, 928 A.2d 540 (2007).

“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 . . . .” (Internal quotation marks omitted.) Putnam Park Associates v. Fahnestock & Co., 73 Conn. App. 1, 12, 807 A.2d 991 (2002).

During the original trial, the parties entered into oral stipulations regarding, among other issues, the plaintiff’s claim for interest and attorney’s fees. With respect to the stipulation on interest, the court, on remand, found that “[n]othing in the language of the stipulation entered into by the parties in open court suggests an intent to limit the issues reserved to the court to those arising under Maine statutory law. . . . There is nothing in the transcripts submitted by counsel to suggest that either party could have reasonably believed that the issue of interest reserved to the court was limited to interest under Maine law.”

After a complete review of the record before us, we conclude that the court’s finding is clearly erroneous. There is ample evidence from the record to suggest that the parties intended to limit the issue of interest to Maine law. All three of the plaintiffs claims in the amended complaint, including the claim for interest and attorney’s fees, were brought under Maine law. The trial was governed by Maine law, and the record reveals that all of the parties’ discussions regarding interest were within the parameters of the plaintiffs claims under Maine law. After the trial, in a memorandum of decision on the award of prejudgment interest and attorney’s fees, filed June, 4, 2002, the trial court stated that “[t]he plaintiff alleged violations of various Maine statutes, and these issues were submitted to the jury. The parties agreed that Maine law was to be applied as to the issues involving the calculation and determination of prejudgment interest as well as attorney’s fees. . . . Counsel agreed that the trial court, not the jury, would decide the amount and calculation of interest and attorney’s fees. There was no reference in that counsel’s agreement that Connecticut law was applicable. . . . The parties stipulated, that if such a violation [under 24-A M.R.S.A. § 2436] was found by the jury, an award of prejudgment interest and attorney’s fees would be appropriate. The parties further stipulated that the claim for prejudgment interest and attorney’s fees under § 2436 including the method of calculation and the amount would be determined by the trial court.” (Emphasis added.) The record supports the stipulation as summarized by the trial court, specifically, that neither party mentioned interest under § 37-3a or under any other state law. Therefore, the court’s finding on remand that there is nothing in the transcripts to suggest that either party reasonably could have believed that the issue of interest reserved to the court was limited to interest under Maine law is clearly erroneous.

II

The defendants also claim that the court improperly rendered supplemental judgment to award interest under § 37-3a even though the jury never made the necessary predicate factual findings. They emphasize that, at trial, the parties agreed that the jury must decide the factual underpinning to the plaintiffs claim for interest and attorney’s fees, brought under Maine law. Therefore, the jury could not have found the facts directed to the specific issues necessary to adjudicate the plaintiffs claim for interest under § 37-3a. We agree with the defendants.

“A . . . court must make two determinations when awarding compensatory interest under § 37-3a: (1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated. . . . Factual findings, such as those determinations, are reviewed under the clearly erroneous standard of review. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Citations omitted; internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn. App. 22, 31-32, 830 A.2d 240 (2003).

Here, the trial court had ruled that the factual underpinning to the plaintiffs claim for interest and attorney’s fees would be decided by the jury. Consistent with the trial court’s ruling, the court on remand relied on the jury’s answers to the interrogatories submitted during trial. The court on remand determined that “the answers to the special jury interrogatories dated November 2, 2001, make it clear that the defendants wrongfully withheld payment for the losses incurred by the plaintiff from April 2, 1992, until the date of judgment, June 4, 2002.”

In its interrogatories, the jury found that (1) the plaintiff did not violate the false and fraudulent claims clause by submitting a claim knowing that it was false or fraudulent, (2) the defendants breached the insurance contract with the plaintiff by failing to pay the plaintiff for the loss of fish, (3) the defendants breached their duty of good faith and fair dealing in their investigation, adjustment or settlement of the plaintiffs claim, (4) the plaintiff submitted a proof of loss to the defendants, (5) the defendants disputed or paid the plaintiffs claim within thirty days of receipt of the proof of loss, (6) the defendants’ written statement disputing the claim was not based on a reasonable investigation and did not include sufficient detail to permit the plaintiff to understand and to respond to the defendants’ position, (7) the defendants did not knowingly misrepresent pertinent facts or policy provisions relating to the coverage at issue, (8) the defendants did not fail to affirm or deny coverage within a reasonable time after receiving the proof of loss and (9) any breach of contract by the defendants was not a proximate cause of damage to the plaintiff other than the loss of fish.

We conclude that the jury’s answers to the interrogatories do not support the court’s determination on remand. The interrogatories directed the jury to make specific findings on the plaintiffs claims under Maine law. The jury did not make any findings concerning § 37-3a. Specifically, the jury did not find that the defendants wrongfully withheld money from the plaintiff beginning on March 2,1991. Therefore, the court’s factual determination on remand that the jury’s answers to the interrogatories set forth the requisite factual underpinning for an award of interest under § 37-3a is clearly erroneous.

The judgment is reversed as to the order of interest under General Statutes § 37-3a and the case is remanded with direction to vacate that order.

In this opinion the other judges concurred.

       The original complaint also named as a defendant Aquacultural Insurance Service Ltd., a broker for Those Certain Underwriters at Lloyd’s of London Individually Subscribing to Certificate No. 1395/91. The plaintiff later withdrew its action against Aquacultural Insurance Service Ltd. We therefore refer in this opinion to Those Certain Underwriters at Lloyd’s of London Individually Subscribing to Certificate No. 1395/91 as the defendants.

       General Statutes § 37-3a provides in relevant part: “(a) Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable. Judgment may be given for the recovery of taxes assessed and paid upon the loan, and the insurance upon the estate mortgaged to secure the loan, whenever the borrower has agreed in writing to pay such taxes or insurance or both. Whenever the maker of any contract is a resident of another state or the mortgage security is located in another state, any obligee or holder of such contract, residing in this state, may lawfully recover any agreed rate of interest or damages on such contract until it is fully performed, not exceeding the legal rate of interest in the state where such contract purports to have been made or such mortgage security is located.”

       Because the resolution of these issues is dispositive of the appeal, we do not reach the remaining claims.

       “Section 2436 allows for an award of interest and reasonable attorney’s fees in favor of the insured if the insurer violates the statute.” Mariculture I, supra, 84 Conn. App. 708.

       After the trial, the jury returned a verdict supported by answers to interrogatories, and one of its findings was that the defendants violated § 2436. According to the trial court’s memorandum of decision postverdict, the parties stipulated that if a violation of § 2436 was found by the jury, an award of prejudgment interest and attorney’s fees would be appropriate. The parties further stipulated that the claim for prejudgment interest and attorney’s fees under § 2436, including the method of calculation and the amount, would be determined by the trial court. The court awarded interest under § 2436, and we reversed that award of interest in Mariculture I when we determined that § 2436 did not apply. Mariculture I, supra, 84 Conn. App. 710.

       The court, in its memorandum of decision, wrote, “[t]he issue nowbefore the court is whether and to what extent the plaintiff is entitled to prejudgment interest pursuant to ... § 37-3a (a) on the damages found by the jury on the first count of the complaint,” which was affirmed by this court in Mariculture I. “The court finds that interest at the rate of 10 percent per annum authorized by ... § 37-3a is both reasonable and appropriate. Interest at that rate from April 2, 1992, to June 4, 2002, amounts to $452,924.66. A supplemental judgment may enter in accordance with this memorandum of decision. Postjudgment interest at the rate of 10 percent per annum will run from the date of judgment until payment.”

       See footnote 5.


author: BEACH, J.

text:
    EDWARD ROSENFIELD v. I. DAVID MARDER AND ASSOCIATES, LLC, ET AL.
    (AC 28208)
    Flynn, C. J., and Harper and Beach, Js.

      Argued April 28
    officially released October 7, 2008

      A. Alan Sheffy, for the appellant (plaintiff).

      Linda D. DAlbis, for the appellees (defendants).
   Opinion

BEACH, J.

In this breach of contract action, the plaintiff, Edward Rosenfield, appeals from the summary judgment rendered by the trial court in favor of the defendants, I. David Marder & Associates, LLC, and Marder & Kallet. On appeal, the plaintiff claims that the court improperly granted the defendants’ motion for summary judgment on the ground that the action was commenced beyond the applicable statute of limitations, General Statutes § 52-581. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. This appeal involves three successive legal malpractice actions. In Rosenfield v. Rogin, Nassau, Coplan, Lassman & Hirtle, LLC, 69 Conn. App. 151, 795 A.2d 572 (2002), we set forth the following facts with respect to the initial malpractice action. “The initial legal malpractice action arose out of a foreclosure matter in which Levy & Droney, P.C. (Levy), represented the plaintiff. See Rosenfield v. Cymbala, Superior Court, judicial district of Middlesex, Docket No. CV-90-0060180-S (December 18, 1992). In that foreclosure action, the court, Higgins, J., orally rendered a judgment of dismissal on December 1,1992, and issued a written memorandum of decision on December 18, 1992. Levy appealed from the judgment of dismissal on behalf of the plaintiff, and we affirmed the judgment in a per curiam opinion. Rosenfield v. Cymbala, 33 Conn. App. 931, 636 A.2d 881 (1994).

“Following our decision, Levy brought a second foreclosure action on the plaintiffs behalf, which resulted in a summary judgment in favor of the foreclosure defendant based on the doctrine of res judicata. Rosenfield v. Cymbala, Superior Court, judicial district of Middlesex, Docket No. CV-94-0072816-S (August 23, 1995). Levy again filed an appeal, but before we decided the case, the plaintiff retained the [services of the law firm of Rogin, Nassau, Caplan, Lassman & Hirtle, LLC (Rogin Nassau)] to bring a malpractice action against Levy for negligence in handling the foreclosure action. We subsequently affirmed the court’s judgment. Rosenfield v. Cymbala, 43 Conn. App. 83, 681 A.2d 999 (1996).

“[Rogin Nassau] served a complaint on Levy on December 15, 1995. In September, 1996, the [defendants] filed an appearance on the plaintiffs behalf in lieu of [Rogin Nassau]. Levy subsequently filed a motion for summary judgment, alleging that the action was barred by the statute of limitations set forth in General Statutes § 52-577. Levy claimed that the complaint served on December 15, 1995, was untimely because the three year statute of limitations had begun to run on the date of the court’s oral decision on December 1, 1992. [The defendants] argued that the filing was timely because the statute of limitations had begun to run when the memorandum of decision was issued on December 18, 1992. The court, Wagner, J., agreed with Levy and rendered a summary judgment in its favor. Rosenfield v. Levy & Droney, P. C., Superior Court, judicial district of Hartford, Docket No. CV-96-0556791-S (April 16, 1997). No appeal was taken from Judge Wagner’s decision.” Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, supra, 69 Conn. App. 152-53.

The defendants continued to represent the plaintiff and initiated a second legal malpractice action, this time against Rogin Nassau. In this second malpractice action, it was alleged that Rogin Nassau was professionally negligent by failing to commence the legal malpractice action against Levy within the limitations period set forth in § 52-577. See Rosenfield v. Rogin Nassau, Superior Court, judicial district of Hartford, Docket No. CV-97-0568522-S (April 12, 2000). Rogin Nassau filed a motion for summary judgment, claiming that notwithstanding Judge Wagner’s ruling, it had filed the complaint on the plaintiffs behalf against Levy in a timely manner. Rogin Nassau claimed that Levy’s legal representation of the plaintiff continued through the first appeal of the foreclosure action, which representation tolled the statute of limitations until at least February 1, 1994, the date this court affirmed the first judgment of dismissal of the foreclosure action in Rosenfield v. Cymbala, supra, 33 Conn. App. 931-32. Rogin Nassau further contended that the complaint served on December 15, 1995, therefore, was timely. On August 9, 1999, argument was heard on Rogin Nassau’s motion for summary judgment.

On November 9, 1999, the plaintiffs present counsel filed an appearance in lieu of the defendants, and the defendants no longer represented the plaintiff. On April 12, 2000, the court, Peck, J., rendered summary judgment in favor of Rogin Nassau. The plaintiff appealed from the court’s judgment. On April 16, 2002, this court affirmed the judgment of the trial court. See Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, supra, 69 Conn. App. 151.

Following that appeal, the plaintiff brought a third legal malpractice action, this time against the present defendants. On September 16, 2003, the defendants were served with a writ of summons and complaint. On January 13, 2006, the plaintiff filed an amended complaint for breach of contract. He alleged, inter alia, that the defendants “expressly or impliedly promised the [p]laintiff a specific result: that the [p]laintiff, through the efforts of the [defendants, would be successful in recovering on his claim, against Rogin Nassau.” The defendants filed a motion for summary judgment. They asserted that there were no genuine issues of material fact relative to the applicable statute of hmitations and that as a matter of law, the plaintiffs claims were barred by the statute of limitations, specifically §§ 52-577 and 52-581. The court, R. Robinson, J., granted the defendants’ motion for summary judgment. It reasoned that the plaintiffs claims in his amended complaint were barred by § 52-581. This appeal followed.

We first set forth the applicable standard of review. “[T]he scope of our review of the granting of a motion for summary judgment is plenary. . . . In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” (Internal quotation marks omitted.) Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, supra, 69 Conn. App. 156-57; see also Practice Book § 17-49. “Summary judgment may be granted where the claim is barred by the statute of limitations.” Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).

The plaintiff claims that the court improperly granted the defendants’ motion for summary judgment on the ground that his action was barred by § 52-581. The plaintiff notes that the complaint alleged that the defendants made an express oral contract promising the plaintiff the specific result of a successful resolution in the malpractice action against Rogin Nassau. He argues that the statute of limitations began to run on April 16, 2002, the date on which this court affirmed the decision of Judge Peck rendering summary judgment in favor of Rogin Nassau. We disagree.

Because it is agreed that the complaint in this action was served on September 16,2003, and that the applicable limitations period is three years, the question to be resolved is whether the cause of action in contract accrued prior to September 16, 2000. “[I]n an action for breach of contract . . . the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted. . . . Although the application of this rule may result in occasional hardship, [i]t is well established that ignorance of the fact that damage has been done does not prevent the running of the statute, except where there is something tantamount to a fraudulent concealment of a cause of action. . . . While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued.” (Citation omitted; internal quotation marks omitted.) Amoco Oil Co. v. Liberty Auto & Electric Co., 262 Conn. 142, 153, 810 A.2d 259 (2002). “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 successfully could have 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.” (Internal quotation marks omitted.) Garofalo v. Squillante, 60 Conn. App. 687, 694, 760 A.2d 1271 (2000), cert. denied, 255 Conn. 929, 767 A.2d 101 (2001). “A cause of action does not accrue for the purposes of a statute of limitations until all elements are present, including damages, however trivial. However, the occurrence of an act or omission—whether it is a breach of contract or of duty—that causes a direct injury, however slight, may start the statute of limitations running against the right to maintain an action even if the plaintiff is not aware of the injury, and even if all resulting damages have not yet occurred; it is sufficient if nominal damages are recoverable for the breach or for the wrong, and where that is the case, it is unimportant that the actual or substantial damage is not discovered or does not occur until later. The fact that the extent of the damages cannot be determined at the time of the wrongful act does not postpone the running of the statute of limitations.” 51 Am. Jur. 2d 548-49, Limitation of Actions § 151 (2000).

When, then, would the plaintiff first have been able to maintain a cause of action alleging breach of contract against the defendants? There are three possible dates: November 9,1999, the latest date the defendants represented the plaintiff; April 12, 2000, the date on which Judge Peck rendered summary judgment in favor of Rogin Nassau; and April 16, 2002, the date on which Judge Peck’s ruling was affirmed on appeal.

Any alleged breach of contractual duty on the defendants’ part triggering the three year statute of limitations would have occurred, at the latest, by April 12, 2000. By that date, the defendants no longer were representing the plaintiff and, as such, could no longer fulfill their alleged promise to him that through the efforts of the defendants, he would be successful in his action against Rogin Nassau. Also, by that date, the court had granted summary judgment in favor of Rogin Nassau. Both November 9, 1999, the date on which the defendants were replaced by other counsel, and April 12, 2000, the date on which Judge Peck rendered summary judgment in favor of Rogin Nassau, are earlier than September 16, 2000, which date is three years prior to the commencement of the action, which occurred on September 16, 2003. We need not determine, for purposes of this appeal, whether the statute of limitations began to run on November 9, 1999, or April 12, 2000.

Moreover, we determine that the statute of limitations did not begin to run, as the plaintiff contends, on April 16, 2002, when Judge Peck’s decision rendering summary judgment in favor of Rogin Nassau was affirmed on appeal. Weiner v. Clinton, 100 Conn. App. 753, 919 A.2d 1038, cert. denied, 282 Conn. 928, 926 A.2d 669 (2007), is instructive on this issue. In that case, the plaintiffs sought to recover damages for legal malpractice and alleged that the defendant law firm and one if its partners had failed to represent them adequately in prior litigation brought against the plaintiffs. Id., 755. The centerpiece of the complaint was the plaintiffs’ allegation that the defendants had caused the entry of a default judgment against them by negligently fading to respond to discovery requests. Id. The plaintiffs further claimed that the court had refused to set aside the default judgment because of the defendants’ false representation that they were not late in filing the discovery responses and the defendants’ failure to file a timely notice of defenses. Id. At the time the plaintiffs brought the legal malpractice action, they still were appealing from the trial court’s denial of their motion to set aside the default judgment in the underlying litigation. Id. In that appeal, the plaintiffs raised claims attacking the court’s subject matter jurisdiction, the propriety of the default and the damages awarded. See Lawton v. Weiner, 91 Conn. App. 698, 701, 882 A.2d 151 (2005).

This court in Weiner v. Clinton, supra, 100 Conn. App. 759, held that the plaintiffs’ claims were ripe for adjudication even though the plaintiffs still were appealing from the judgment in the underlying litigation. In explaining its reasoning, the court stated: “A claim’s justiciability is wholly separate from its merits. . . . As such, an inability to establish the exact amount of damages is indicative of a defect in a plaintiffs capacity to prove his or her case, not of a deficiency in the court’s subject matter jurisdiction. Here, the injury—the entry of the default judgment—already had occurred, as had the loss of the plaintiffs’ arbitration award and legal fees paid to the defendants. . . . [T]he viability of the plaintiffs’ legal malpractice claim was not contingent upon some event that ha[d] not . . . transpire[d].” (Citation omitted; internal quotation marks omitted.) Id., 760.

In the case at hand, the viability of the plaintiffs legal malpractice claim by at least April 12, 2000, was not contingent on an event that had not transpired; that is, it did not depend on whether a successful result eventually was obtained on appeal by someone other than the defendants. As in Weiner v. Clinton, supra, 100 Conn. App. 753, the later progress of the case may have had some affect on the case, but the pendency of the appeal in the Rogin Nassau action did not delay the ability of the plaintiff to bring a claim for legal malpractice against the defendants.

The plaintiff argues, in the alternative, that if the statute of limitations was determined to have begun to run prior to April 16, 2002, the date on which the matter against Rogin Nassau was resolved on appeal, then it was tolled pending the outcome of that appeal. In making this argument, the plaintiff cites Fontanella v. Marcucci, 89 Conn. App. 690, 877 A.2d 828, cert. granted, 275 Conn. 907, 882 A.2d 670 (2005) (appeal withdrawn March 8, 2006), for the proposition that “if the prior action does prevent enforcement of the remedy sought in the later action, then the pendency of the prior action can toll the statute of limitations in the later action.” Id., 700. The plaintiff argues that he was not able to bring his action against the defendants until the appeal in the underlying action against Rogin Nassau was resolved. The plaintiffs argument and reliance on Fontanella is misplaced.

In Fontanella, the plaintiffs, Michael Fontanella, a minor, and his mother, Rose Fontanella, sought to recover damages for legal malpractice and breach of contract from the defendant attorneys, who had represented the plaintiffs in a prior product liability action. The plaintiffs had brought that action against the manufacturer of a car owned by Rose Fontanella that was involved in a single automobile collision: Michael Fontanella drove off the road and struck a tree. Id., 694. The plaintiffs claimed, in the legal malpractice action, that the defendants had been negligent in advising Rose Fontanella to destroy the vehicle rather than advising her to preserve it for inspection and evidence in the underlying product liability action. Id. The plaintiffs brought the legal malpractice action after two prior actions for legal malpractice had been dismissed as premature and nonjusticiable due to the pendency of the product liability action and an appeal relating thereto. Id., 695. In the plaintiffs’ third attempt to maintain a legal malpractice action, the trial court granted the defendants’ motion for summary judgment. It concluded that the legal malpractice action was barred by the three year statute of limitations for tort and the six year statute of limitations for breach of contract claims. Id., 696-97. A panel of this court reversed the judgment of the trial court and held that the pendency of the underlying product liability action tolled the statutes of limitation for the legal malpractice action. The panel reasoned that the viability of the plaintiffs’ legal malpractice and contract claims were contingent on the outcome of the underlying product liability action. Id., 701. The Fontanella court narrowly concluded that “because of the complexity of the legal and factual issues arising out of the spoliation of evidence relating to the product liability claim, the legal malpractice claim was not capable of being adjudicated by the judicial power until the underlying product liability claim was resolved by final judgment.” Id., 692.

In the case at hand, the plaintiffs malpractice claim was viable, at the latest, on the date Judge Peck rendered summary judgment in favor of Rogin Nassau. The accrual of the claim was not contingent on the outcome of the appeal from Judge Peck’s decision. Instead, that outcome would pertain, if at all, to the remedy. “Fontanella [cannot] properly be read as requiring dismissal of a legal malpractice action if damages [are] contingent upon other matters. Grafting such a requirement onto the ripeness doctrine would, in effect, nullify the general rule that in most cases, there is no need to wait until the conclusion of the underlying litigation to initiate a legal malpractice action.” (Internal quotation marks omitted.) Weiner v. Clinton, supra, 100 Conn. App. 762-63. The underlying product liability action m. Fontanella involved whether a seat belt was defective, which is a question of fact. Fontanella v. Marcucci, supra, 89 Conn. App. 703-704. The Fontanella court expressly distinguished the facts of that case from situations, such as this case, involving questions of law, such as the question of whether a statute of limitations had run. Id.

Here, the matter was brought beyond the applicable statute of limitations. The statute of limitations began to run no later than April 12, 2000, and the action was commenced when the defendants were served with a writ of summons and complaint on September 16, 2003, more than three years later. Therefore, the court properly granted the defendants’ motion for summary judgment on the ground that it was brought beyond the statutory period set forth in § 52-581.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-581 (a) provides: “No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues.”

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       In the amended complaint, the plaintiff also alleged that “[t]he [defendants expressly and impliedly promised the plaintiff a specific result: that the plaintiff, through the efforts of the [d]efendants, would be successful in recovering on his claim against [Levy].” On appeal, the plaintiff makes no claim with respect to this allegation.

       The plaintiff did not allege in his complaint that the agreement to obtain a successful result was anything other than an executory contract and made no claim that General Statutes § 52-576 is applicable in the present case. The plaintiff, in fact, conceded at oral argument before this court that the applicable period of limitations was three years. See Bagoly v. Riccio, 102 Conn. App. 792, 799, 927 A.2d 950 (§ 52-581 applies to executory contracts; § 52-576 applies to executed oral contracts), cert. denied, 284 Conn. 931, 934 A.2d 245, 246 (2007).
      The complaint alleged breach of an agreement to obtain a specific result and, as such, properly stated a claim for breach of contract. “It is well settled that an attorney may be subject to a claim for breach of contract arising from an agreement to perform professional services.” Celentano v. Grudberg, 76 Conn. App. 119, 124, 818 A.2d 841, cert. denied, 264 Conn. 904, 823 A.2d 1220 (2003). A claim in which aplaintiff asserts that a defendant who is a professional breached an agreement to obtain a specific result states a true contract claim. Caffery v. Stillman, 79 Conn. App. 192, 197, 829 A.2d 881 (2003).

       “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.” (Internal quotation marks omitted.) Rosato v. Mascardo, 82 Conn. App. 396, 411, 844 A.2d 893 (2004).

        Weiner v. Clinton, supra, 100 Conn. App. 753, concerned the issue of whether a legal malpractice claim remained unripe until the final resolution of an underlying action. Id., 757. The issue of ripeness in that case can help us understand when the cause of action in the present case accrued. There is, at least in this case, a relationship between ripeness and accrual. “The basic rationale [of the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” (Internal quotation marks omitted.) Forcier v. Sunnydale Developers, LLC, 84 Conn. App. 858, 865, 856 A.2d 416 (2004).

        “The justiciability of a claim is related to its ripeness.” (Internal quotation marks omitted.) Id. “Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. . . . The general rule is that a case is justiciable if it is capable of resolution on the merits by judicial action.” (Internal quotation marks omitted.) Id. Similarly, a breach of contract action accrues when the cause of action is complete, that is, when an injury has been inflicted. See Amoco Oil Co. v. Liberty Auto & Electric Co., supra, 262 Conn. 153.

       For the requirements of justiciability, see footnote 6.

        Weiner v. Clinton, supra, 100 Conn. App. 753, involved a tort claim and this case is premised in breach of contract. The analysis in that case as to when the harm occurs is, however, highly analogous to the present case.

       As stated by the United States Supreme Court in a different context, a trial on the merits should be the “main event . . . .” (Internal quotation marks omitted.) Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 895, 111 S. Ct. 2631, 115 L. Ed. 2d 764 (1991), citing Wainwright v. Sykes, 433 U.S. 72, 90, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). There may not be an appeal, and if there is an appeal, there, nonetheless, may be posljudgment matters and petitions for new trials. Some finality is essential.

        Fontanella v. Marucci, supra, 89 Conn. App. 690, is distinct from the case at bar because in that case, the very existence of legal malpractice was contingent on whether the seat belt that allegedly caused injury had been manufactured defectively or, alternatively, whether the belt and all such belts had been designed defectively. The gist of the plaintiffs malpractice complaint was that the plaintiffs former attorney had been negligent in failing to preserve the belt for expert inspection and use at trial. If the belt had been defective simply because of its design, however, that defect would have been common to all such belts.
      Consequently, in that instance, the belt from any other vehicle could have been used to prove the case, and no legal malpractice would have occurred from failing to preserve the particular belt from the defendant’s automobile. As Fontanella noted, citing Mayer v. Biafore, Florek & O’Neill, 245 Conn. 88, 713 A.2d 1267 (1998), the first prong of justiciability requires that there be an actual controversy between the parties to the dispute. If there were no consequence or significance to the lack of preservation, there could be no controversy between the plaintiff and the former attorney. Because of that prong, the Appellate Court in FontaneUa held that the legal malpractice claim was tolled until that issue was resolved.

       “Legal actions in Connecticut are commenced by service of process.” (Internal quotation marks omitted.) Rios v. CCMC Corp., 106 Conn. App. 810, 820, 943 A.2d 544 (2008).