author: PETERS, J.

text:
    WILLIAM BOYNTON, JR. v. CITY OF NEW HAVEN
    (AC 20388)
    Landau, Dranginis and Peters, Js.
    Argued March 23
    officially released June 19, 2001

      Shari A. Murphy, with whom, on the brief, was Benjamin Boutaugh, legal intern, for the appellant (plaintiff).

      Thomas W. Ude, Jr., deputy corporation counsel, for the appellee (defendant).
   Opinion

PETERS, J.

General Statutes (Rev. to 1993) § 38a-371 (c) requires Connecticut municipalities to provide underinsured motorist benefits for municipal employees who, in the course of the performance of their duties, sustain injuries while driving a municipal passenger vehicle. General Statutes (Rev. to 1993) § 14-129 and § 38a-371 (c) permit a municipality, after notifying the insurance commissioner, to fund such benefits by becoming a self-insurer. The dispositive question in this case is whether, for an accident that occurred in 1993, our statutes required a self-insured municipality to provide limitless underinsured motorist coverage. The municipality and the employee disagree about whether the municipality’s exposure exceeds the statutorily defined minimum of $20,000 per person and $40,000 per occurrence. General Statutes (Rev. to 1993) §§ 38a-371 (a) (l) and 14-112. Like the trial court, we are persuaded that, in 1993, a self-insured municipality was not obligated to provide more coverage than the statutory minimum.

The plaintiff, William Boynton, Jr., brought two actions to recover underinsured motorist benefits, which were consolidated for trial pursuant to Practice Book § 9-5. In one action, he sought to recover underin-sured motorist benefits allegedly included in an insurance policy issued to him by Nationwide Mutual Insurance Company. That action is not part of this appeal. In the other action, because he is a city employee, he sought similar benefits from the defendant city of New Haven (city).

In the plaintiffs complaint against the city, he alleged that, on December 9,1993, while driving a police motorcycle in New Haven in the course of his duty, he was involved in a collision resulting from the negligence of Shawn Lavoie. He further alleged that he had suffered severe personal injuries from the collision, for which he had recovered, in part, by his receipt of the maximum $25,000 available to him from Lavoie’s liability insurer. According to the complaint, the city’s duty to provide underinsured motorist benefits required it to cover the unpaid portion of the damages arising out of the collision.

The city filed a motion for summary judgment pursuant to Practice Book § 17-49. The court granted that motion on the ground that Lavoie’s vehicle was not underinsured with respect to the city’s liability as self-insurer. That conclusion was based on the court’s acceptance of the city’s position that its potential liability was limited to the statutory minimum of $20,000, which had been exceeded by the plaintiff’s receipt of $25,000 from Lavoie’s insurer. This appeal followed.

“The standard of review of a trial court’s decision to grant summary judgment is well established. [W]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Connecticut National Bank v. Rytman, 241 Conn. 24, 37, 694 A.2d 1246 (1997); Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 292, 596 A.2d 414 (1991); Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). Because neither party has claimed that this case concerns disputed material facts, we are concerned only with the city’s right to judgment as a matter of law. The only questions of law in this case are questions of statutoiy construction. Accordingly, our review is plenary. Coley v. Camden Associates, Inc., 243 Conn. 311, 318, 702 A.2d 1180 (1997).

The undisputed facts establish that, at all relevant times, the city had opted to provide the insurance coverage mandated by our statutes through self-insurance and had properly so notified the insurance commissioner in 1965. Unlike private owners of a fleet of motor vehicles, the city was not required to provide evidence of financial responsibility. General Statutes (Rev. to 1993) § 38a-371 (c). Not until June 8, 1998, years after the plaintiffs injury, did the city notify the insurance commissioner that its self-insured liability for uninsured and underinsured motorist coverage was limited to the statutory minimum of $20,000 per person and $40,000 per occurrence. Indeed, at the time of the accident, the city’s self-insurance plan had not been memorialized in a written document of any kind. See Willoughby v. New Haven, 254 Conn. 404, 409, 757 A.2d 1083 (2000) (another underinsured motorist insurance claim against city of New Haven). The court concluded that the city had no liability to the plaintiff because he had recovered more than the statutory minimum defined in § 14-112. Although General Statutes § 38a-336 (a) (2) now includes a special procedure for waiving underinsured motorist coverage in excess of the statutory minimum, the court held that that provision was inapplicable because it did not become effective until 1994, while the plaintiff’s accident occurred in 1993.

I

Before turning to the specific issues of statutory interpretation that we must address, we review the applicable underlying principles. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) Willoughby v. New Haven, supra, 254 Conn. 410. The parties in this case have cited no legislative history. Common-law principles do not inform the scope of the requirement of underinsured motorist coverage because such insurance is entirely a creature of statute presenting only issues of statutory interpretation. See id. Our focus, therefore, is on the words of the statutes and the policies they embody.

To state the obvious, no statute expressly directs a self-insurer to pay underinsured motorist benefits in excess of the minimum amount prescribed in § 14-112. On the other hand, no statute expressly permits the city, without notice or documentation, to limit its exposure to the statutory minimum. The parties are not tilting at windmills.

II

Our task is to glean what we can from three relevant statutory propositions. These propositions govern (1) the undisputed fiscal responsibility of the city as self-insurer, (2) the undisputed obligation of the city to provide underinsured motorist coverage, and (3) the disputed relationship between the city’s liability coverage and its underinsured motorist coverage.

A

We address the first proposition in two parts. First and foremost, §§ 14-129 and 38a-371 (c) authorize the city to become self-insured. Second, those authorizing statutes do not impose greater liability on a self-insurer than they impose on a commercial insurer. Willoughby v. New Haven, supra, 254 Conn. 437. As our Supreme Court has stated recently, the funding mechanism by which an owner of multiple vehicles decides to meet its fiscal obligations “is irrelevant to the obligation of that funding entity to comply with such requirements . . . . [S] elf-insurance is the functional equivalent of commercial insurance. Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 378 n.4, 713 A.2d 820 (1998); see also Conzo v. Aetna Ins. Co., 243 Conn. 677, 686, 705 A.2d 1020 (1998) ([t]he legislature intended to create a uniform scheme of uninsured motorist insurance coverage applicable to self-insurers as well as commercial insurance carriers).” (Internal quotation marks omitted.) Willoughby v. New Haven, supra, 437. The fiscal responsibility, therefore, is the same for a self-insurer as it is for a commercial insurer.

B

With regard to the second proposition, the city is required to provide underinsured motorist coverage on certain municipal motor vehicles, pursuant to General Statutes (Rev. to 1993) § 38a-336 (a), to protect city employees from the costs of accidental injuries that occur while the employee drives a covered vehicle in the course of his employment. “Although § 38a-336 (a) (1) states generally that automobile liability insurance policies must provide uninsured and underinsured motorist coverage, it provides that such coverage is governed by the regulations adopted pursuant to section 38a-334 . . . (Internal quotation marks omitted.) Willoughby v. New Haven, supra, 254 Conn. 414. “Section 38a-334-6 (a) of the Regulations of Connecticut State Agencies provides that the uninsured motorist coverage that it requires ‘shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies. . . .’ It is therefore necessary to refer to § 38a-334-5 of the Regulations of Connecticut State Agencies, which covers liability coverage. Section 38a-334-5 (a) of the regulations provides that its liability coverage requirements apply to ‘motor vehicle [s] owned or long-term leased by the named insured. . . .’ The term ‘[mjotor [vjehicle,’ as used in the regulations, is defined as: ‘private passenger motor vehicle . . . commercial motor vehicle . . . motorcycle . . . public service motor vehicles . . . motor vehicle in livery service . . . and vanpool vehicle . . . .’ Regs., Conn. State Agencies § 38a-334-2 (c).” Willoughby v. New Haven, supra, 415-19. Because a motorcycle is a covered vehicle, the plaintiff has a rightful claim for under-insured motorist coverage pursuant to § 38a-336 (a).

C

The relationship between the city’s liability coverage and its underinsured motorist coverage is indirectly addressed in General Statutes (Rev. to 1993) §§ 38a-335 (a) and 38a-336 (a) (2). The city, relying on the former, and the plaintiff, relying on the latter, look to these sections for answers to the thorny and disputed question of how much underinsured motorist coverage the city must provide. Section 38a-335 (a) permits the statutorily enumerated class of motor vehicle owners to limit their mandatory insurance coverage to the minimum of $20,000 per person and $40,000 per accident. See footnote 14. General Statutes (Rev. to 1993) § 38a-336 (a) (2) provided for parity between “uninsured” motorist coverage and liability coverage “imposed by law.” We turn now to a discussion of this contradiction.

In its memorandum of decision, the court concluded that the city was entitled to limit its underinsured motorist coverage in accordance with § 38a-336 (a). It relied on the absence of any statutory provision that “requires a self-insured entity to exceed the minimum coverage required by statute.” In support of its reasoning, it cited Orkney v. Hanover Ins. Co., 248 Conn. 195, 205, 727 A.2d 700 (1999). In a related context, that case stated that the underinsured motorist statute “merely requires that a certain minimum level of protection be provided . . . .” (Internal quotation marks omitted.) Id.

The plaintiff proffers two arguments to the contrary. First, the plaintiff maintains that, under the principle of parity between liability coverage and underinsured motorist coverage, the city was required to provide underinsured motorist coverage in the same amount as its unlimited liability coverage. See General Statutes § 38a-336 (a) (2). Second, he maintains that the city could not invoke the statutory minimum without having executed some kind of written waiver or notice. We are not persuaded.

1

The plaintiffs argument, which is based on the principle of parity under § 38a-336 (a) (2), is that, in 1993, the city’s exposure for liability coverage was unlimited. He relies on the text of the self-insurer statute, which does not specify the amount of the city’s exposure in its posture as self-insurer. General Statutes § 14-129. Because the city’s notification to the insurance commissioner did not specify the amount of the city’s exposure as self-insurer, he maintains that the city must be deemed to have agreed to assume unlimited liability coverage. Ergo, the city was required to provide unlimited underinsured motorist coverage. We disagree.

The flaw in the plaintiffs argument is its assumption of a linkage between §§ 14-129 and 38a-336. As our Supreme Court recently observed, “§ 14-129 was part of the legislative effort to impose minimum liability coverage. Nothing in its history suggests that it was ever intended to trump the subsequently enacted, and more specific, provision regarding uninsured and underinsured motorist coverage.” Willoughby v. New Haven, supra, 254 Conn. 434. Under Willoughby, although specific statutes after § 14-129 could place an additional insurance burden on the city, § 14-129 does not, and cannot, define the amount of coverage that the city agreed to provide when it became a self-insurer.

In the absence of linkage to § 14-129, the plaintiff is left with the text of § 38a-336. It is true that subsection (a) (2) requires parity between liability and underin-sured motorist coverage. It is equally true that the subsection does not mandate the amount of coverage to be provided. That gap is filled by the statutory minimum specified in § 14-112, which defines the limit of the city’s fiscal obligation. The applicability of the statutory minimum is reasonable because the exposure of commercial insurers is not unlimited. As noted earlier, self-insurers are entitled to the same protection as is afforded to commercial insurers.

Our conclusion finds support in numerous out-of-state authorities cited by the city. 1L. Russ & T. Segalla, Couch on Insurance (3d Ed. 1997) § 10:3, p. 10-9, states that “it is generally held that the self-insured must provide the minimum amount of coverage that is allowed by the [underinsured motorist] statute.” See generally Hartford Ins. Co. v. Hertz Corp., 410 Mass. 279, 287 n.10, 572 N.E.2d 1 (1991); Heavens v. Laclede Gas Co., 809 S.W.2d 162, 163 (Mo. App. 1991).

The argument based on parity, therefore, does not establish that the city was required to provide underin-sured motorist coverage in an amount greater than the statutory minimum of $20,000. Once it is determined that the statutory minimum is applicable, the plaintiffs receipt of $25,000 from Lavoie’s insurance carrier forecloses his access to further reimbursement from the city.

2

In the alternative, the plaintiff argues that the city could not avail itself of the statutory minimum because it had failed properly to document, in writing, its intention to do so. In 1993, § 38a-336 (a) (2) allowed commercial insurers to limit their liability, and thereby to reduce insurance premiums, upon the written request of the insured. It is undisputed that, in 1993, the city had not filed any such written request.

We disagree with the plaintiffs argument because, under the circumstances of this case, it would make no sense for us to apply the written request requirement literally. “[U]pon electing to become a self-insurer, [the city] not only became an insurer . . . but also, the functional equivalent of a ‘named insured’ . . . .” (Citation omitted.) Conzo v. Aetna Ins. Co., supra, 243 Conn. 683. A literal reading of the statute would have required the city, wearing its hat as insured, to file a written request with itself, wearing its hat as insurer. That reading is untenable.

As the city notes, its self-insurer status with respect to its fleet of passenger motor vehicles bears a closer resemblance to fleet insurance generally. “[F]leet insurance gives rise to a significantly different set of expectations and considerations than does personal automobile insurance.” Frantz v. United States Fleet Leasing, Inc., 245 Conn. 727, 741-42, 714 A.2d 1222 (1998).

“[T]he primary legislative purpose in requiring a written request for a reduction in uninsured motorist coverage is to ensure that one named insured not be bound, to his or her detriment, by the unilateral decision of another named insured to seek such a reduction. . . . Such a concern has little or no applicability in the context of a commercial fleet policy.” (Citation omitted.) Id, 739.

In light of this legislative purpose, we are persuaded that it would be an exercise in futility to require the city to file a written request to itself. We presume that the legislature did not intend such an outcome. See, e.g, Schreck v. Stamford, 250 Conn. 592, 597, 737 A.2d 916 (1999). The plaintiffs reliance on the written waiver requirement stated in § 38a-336 (a) (2) is, therefore, unfounded.

In summary, the plaintiff is entitled only to the statutory minimum amount of underinsured motorist coverage because the applicable statutes impose no greater obligation on the city.

In light of the city’s simultaneous roles as self-insurer and self-insured, the plaintiff can recover only the statutory minimum despite the fact that the city never submitted a written request for such coverage to itself.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1993) § 38a-371 (c) provides: “Subject to approval of the insurance commissioner the security required by sections 38a-363 to 38a-388, inclusive, may be provided by self-insurance by filing with the commissioner in satisfactory form: (1) A continuing undertaking by the owner or other appropriate person to pay basic reparations benefits and the liabilities covered by residual liability insurance and to perform all other obligations imposed by said sections; (2) evidence that appropriate provision exists for the prompt and efficient administration of all claims, benefits, and obligations provided by said sections; and (3) evidence that reliable financial arrangements, deposits or commitments exist providing assurance for payment of basic reparations benefits and the liabilities covered by residual liability insurance and all other obligations imposed by said sections substantially equivalent to those afforded by a policy of insurance that would comply with said sections. A person who provides security under this subsection is a self-insurer. A municipality may provide the security required under said sections by filing with the commissioner a notice that it is a self-insurer.”

       We refer to “underinsured” motorist coverage without intending a distinction between such coverage and “uninsured” motorist coverage.

       General Statutes (Rev. to 1993) § 14-129 provides: “(a) Any person in whose name more than twenty-five motor vehicles are registered may qualify as a self-insurer by obtaining a certificate of self-insurance issued by the commissioner as provided in subsection (b) of this section.
      “(b) The commissioner may, in his discretion, upon the application of such person, issue a certificate of self-insurance when he is satisfied that such person is possessed and will continue to be possessed of ability to pay judgments obtained against such person.
      “(c) Upon not less than five days’ notice and a hearing pursuant to such notice, the commissioner may, upon reasonable grounds, cancel a certificate of self-insurance. Failure to pay any judgment within thirty days after such judgment has become final shall constitute a reasonable ground for the cancellation of a certificate of self-insurance.”

       See footnote 1.

       General Statutes (Rev. to 1993) § 38a-371 (a) (1) provides in relevant pari,: “The owner of a private passenger motor vehicle required to be registered in this state shall provide and continuously maintain throughout the registration period security in accordance with sections 38a-363 to 38a-388, inclusive . . .

       General Statutes (Rev. to 1993) § 14-112 (a) provides in relevant part: “When commissioner shall require. Exception. To entitle any person to receive or retain a motor vehicle operator’s license or a certificate of registration of any motor vehicle when, in the opinion of the commissioner, such person has violated any of the provisions of section 14-222, section 14-224 or subsection (a) of section 14-227a or any similar provision of the laws of any other state or any territory, or who has been convicted of, or has forfeited any bond taken for appearance for, or has received a suspended judgment or sentence for, a violation of any of said provisions, or who has been held or found criminally responsible in connection with any motor vehicle accident resulting in the death of any person, or who has a record on file with the commissioner which is sufficient, in the opinion of the commissioner, to require evidence of financial responsibility for the reasonable protection of other persons, the commissioner shall require from such person proof of financial responsibility to satisfy any claim for damages by reason of personal injury to, or the death of, any one person, of twenty thousand dollars, or by reason of personal injury to, or the death of, more than one person on account of any accident, of at least forty thousand dollars, and for damage to property of at least ten thousand dollars, except that, for violations of section 14-222 or section 14-224 if there is no personal injury and the property damage is under one thousand dollars, the commissioner may, in his discretion, waive such requirements. . .

       Practice Book § 9-5 provides: “(a) Whenever there are two or more separate actions which should be tried together, the judicial authority may, upon the motion of any party or upon its own motion, order that the actions be consolidated for trial.
      “(b) If a party seeks consolidation, the motion to consolidate shall be filed in all of the court files proposed to be consolidated, shall include the docket number and judicial district of each of the cases, and shall contain a certification specifically stating that the motion was served in accordance with Sections 10-12 through 10-17 on all parties to such actions. The certification shall specifically recite the name and address of each counsel and pro se party served, the date of such service and the name and docket number of the case in which that person has appeared. The moving party shall give reasonable notice to all such parties of the date on which the motion will be heard on short calendar. The judicial authority shall not consider the motion unless it is satisfied that such notice was given.
      “(c) The court files in any actions consolidated pursuant to this section shall be maintained as separate files and all documents submitted by counsel or the parties shall bear only the docket number and case title of the file in which it is to be filed.”

       The plaintiffs claim against Nationwide Mutual Insurance Company, his own insurer, is based on underinsured motorist coverage contained in an insurance policy covering his own vehicle. The court denied a motion for summary judgment filed by Nationwide Mutual Insurance Company.

       The plaintiff is also receiving workers’ compensation payments.

       Practice Book § 17-49 provides: “The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

       A second defense based on General Statutes 8 52-557n (b) (6) was rejected by the court. The city has not pursued that on appeal.

       General Statutes § 38a-336 provides in relevant part: “(a) (1) Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage, in accordance with the regulations adopted pursuant to section 38a-334, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom. Each insurer licensed to write automobile liability insurance in this state shall provide uninsured and underinsured motorists coverage with limits requested by any named insured upon payment of the appropriate premium, provided each such insurer shall offer such coverage with limits that are twice the limits of the bodily injury coverage of the policy issued to the named insured. The insured’s selection of uninsured and underinsured motorist coverage shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured. No insurer shall be required to provide uninsured and underinsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as apedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured.
      “(2) Notwithstanding any provision of this section to the contrary, each automobile liability insurance policy issued or renewed on and after January 1, 1994, shall provide uninsured and underinsured motorist coverage with limils for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless any named insured requests in writing a lesser amount, but not less than the limits specified in subsection [a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured. No such written request for a lesser amount shall be effective unless any named insured has signed an informed consent form which shall contain: (A) An explanation of uninsured and underinsured motorist insurance approved by the commissioner; (B) a list of uninsured and underinsured motorist coverage options available from 1 he insurer; and (C) the premium cost for each of the coverage options available from the insurer. Such informed consent form shall contain a heading in twelve-point type and shall state: ‘WHEN YOU SIGN THIS FORM, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PURCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY. IF YOU ARE UNCERTAIN ABOUT HOW THIS DECISION WILL AFFECT YOU, YOU SHOULD GET ADVICE FROM YOUR INSURANCE AGENT OR ANOTHER QUALIFIED ADVISER.' . . .”

       In light of the. inapplicability of this version of § 38a-33(i to this case, we do not consider how the statute operates when a municipality decides to act. as self-insurer.

       General Statutes (Rev. to 1993) § 38a-336 provides in relevant part: “(a) (1) Each automobile liability insurance policy shall provide insurance, herein called uninsured motorist coverage, in accordance with the regulations adopted pursuant to section 38a-334, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom. Each insurer licensed to write automobile liability insurance in this state shall provide uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but the insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of the policy issued to the named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured.
      "(2) Notwithstanding any provision of this section to the contrary, each automobile liability insurance policy issued or renewed on and after January 1, 1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured. . . .”

       In Willoughby, the vehicle in question was not in the specified class of vehicles enumerated in § 38a-334.

       General Statutes (Rev. to 1993) § 38a-335 (a) provides: “Each automobile liability insurance policy shall provide insurance in accordance with the regulations adopted pursuant to section 38a-334 against loss resulting from the liability imposed by law, with limits not less than those specified in subsection (a) of section 14-112, for damages because of bodily injury or death of any person and injury to or destruction of property arising out of the ownership, maintenance or use of a specific motor vehicle or motor vehicles within any state, territory, or possession of the United States of America or Canada.”

       Our Supreme Court has held that coverage provided for injuries caused by vehicles that are “uninsured” automatically includes coverage for vehicles that are “underinsured.” See Hotkowski v. Aetna Life & Casualty Co., 224 Conn. 145, 151, 617 A.2d 451 (1992).

       See footnote 14.

       In Orkney, the issue was whether an employee could recover underinsured motorist benefits for injuries arising out of an accident caused by a self-insured motorist. The court held that there was no such coverage.

       The plaintiff cites Travelers Indemnity Co. v. Malec, 215 Conn. 399, 402, 576 A.2d 485 (1990), but that case is not helpful because it arose in the context of an arbitration award. In light of the limited scope of judicial review of arbitration awards; American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 185, 530 A.2d 171 (1987); the court’s analysis of the legislative history is dictum.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    RONALD OWENS v. COMMISSIONER OF CORRECTION
    (AC 20504)
    Spear, Mihalakos and Flynn, Js.
    Submitted on briefs April 26
    officially released June 19, 2001

      David B. Rozwaski, special public defender, filed a brief for the appellant (petitioner).

      James A. Thomas, state’s attorney, Timothy J. Sugrue, senior assistant state’s attorney, and George Ferko, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Ronald Owens, appeals from the habeas court’s denial of his petition for certification to appeal the denial of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) denied his petition for certification to appeal and (2) rejected his claim of ineffective assistance of counsel. Our examination of the record and briefs persuades us that the court properly denied the petition for certification to appeal, and we accordingly dismiss the appeal.

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” White v. Commissioner of Correction, 58 Conn. App. 169, 170, 752 A.2d 1159 (2000), citing Johnson v. Commissioner of Correction, 36 Conn. App. 695, 700, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits.” (Citation omitted; internal quotation marks omitted.) Petaway v. Commissioner of Correction, 49 Conn. App. 75, 77, 712 A.2d 992 (1998).

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Reddick v. Commissioner of Correction, 51 Conn. App. 474, 477, 722 A.2d 286 (1999). “For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” White v. Commissioner of Correction, supra, 58 Conn. App. 170, citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992). In the present case, the petitioner has not established that the court abused its discretion in denying the petition for certification to appeal.

The court’s dismissal of the petition for a writ of habeas corpus was based on a review of the petitioner’s claims and the court’s findings that he failed to sustain his burden of establishing that trial counsel rendered ineffective assistance. After a review of the record and briefs, we conclude that the petitioner failed to make a substantial showing that he was denied a state or federal constitutional right. Furthermore, the petitioner has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice was done. See Simms v. Warden, supra, 230 Conn. 612; Simms v. Warden, supra, 229 Conn. 189.

We conclude that the court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.


text:
    WILLOW FUNDING COMPANY, L.P. v. GRENCOM ASSOCIATES ET AL.
    (AC 20489)
    Foti, Flynn and Peters, Js.
    Argued April 2
    officially released June 19, 2001

      Richard L. Albrecht, with whom were Jonathan S. Bowman and, on the brief, Barbara M. Schellenberg, for the appellant (plaintiff).

      Matthew J. Forstadt, with whom was John A. Farn-sworth, for the appellees (defendants).
   Opinion

PETERS, J.

This is a foreclosure action to enforce a note and a second mortgage purchased, through sealed bid, from the Federal Deposit Insurance Corporation. In light of the mortgagor’s acknowledged default on the note and mortgage, the trial court granted the plaintiffs motion for foreclosure by sale. The court, however, reduced the amount of the loan secured by the mortgage so as to reflect, inter alia, the mortgagee’s conduct with respect to an oral executory refinancing agreement that never came to full fruition. The principal issue is whether the court, in deciding that the mortgagee had sought equitable relief with unclean hands, placed excessive emphasis on the refinancing agreement and improperly declined to apply the statute of frauds, General Statutes § 52-550. We are persuaded that the facts found by the court sustain the manner in which it exercised its equitable discretion over a foreclosure action.

I

PROCEDURAL HISTORY

This case is the second round of litigation concerning the efforts of the plaintiff, Willow Funding Company, L.P., as successor mortgagee, to foreclose a mortgage that secured a promissory note executed by the named defendant, Grencom Associates (Grencom). Grencom is a partnership. The note was guaranteed, in part, by the defendants Arthur Collins and Arthur Emil, who are the sole partners in the partnership.

The first round of litigation focused on whether the plaintiff had adduced sufficient evidence to prove the amount of the indebtedness for which the defendants could be held accountable. Our Supreme Court concluded “that the defendants’ admissions sufficed to satisfy the plaintiffs burden of proof with respect to the defendants’ indebtedness.” Willow Funding Co., L.P. v. Grencom Associates, 246 Conn. 615, 623, 717 A.2d 1211 (1998) (Willow Funding Co., L.P., I). That court remanded the case for a new trial to consider the merits of the defendants’ counterclaim and their special and affirmative defenses. Id., 625.

The second round of litigation deals solely with the viability of the defendants’ counterclaims and defenses. After a trial to the court, the court found that the plaintiff could not recover in full because of its violation of the clean hands doctrine. The court also found in favor of the defendants on their other defenses and counterclaims. As a result, the court exercised its equitable discretion to reduce the amount of the secured debt to $932,877.25 plus attorney’s fees.

On appeal, the plaintiff challenges each of the court’s adverse rulings. We need not, however, consider all of these claims if we conclude that the defendants have proven any of their special defenses or counterclaims. We have, therefore, focused our attention on the sustainability of the court’s ruling with respect to the issue of unclean hands. We affirm the judgment on that basis.

II

FINAL JUDGMENT

Before we discuss the merits of the plaintiffs appeal, we must determine whether the appeal is properly before us. As a matter of first impression, we must decide whether a judgment ordering a foreclosure by sale is appealable before the court has set a date for the foreclosure to take place.

Although the parties did not raise this question, we are required to consider it. “It is axiomatic that, except insofar as the constitution bestows upon [an appellate court] jurisdiction to hear certain cases; see Fonfara v. Reapportionment Commission, 222 Conn. 166, 610 A.2d 153 (1992); the subject matter jurisdiction of the Appellate Court and of [the Supreme Court] is governed by statute. Grieco v. Zoning Commission, 226 Conn. 230, 231, 627 A.2d 432 (1993). It is equally axiomatic that, except insofar as the legislature has specifically provided for an interlocutory appeal or other form of interlocutory appellate review; see, e.g., General Statutes § 52-278l (prejudgment remedies); General Statutes § 54-63g (petition for review of bail); General Statutes § 51-164x (court closure orders); State v. Ayala, 222 Conn. 331, 340, 610 A.2d 1162 (1992); appellate jurisdiction is limited to final judgments of the trial court.” (Internal quotation marks omitted.) Conetta v. Stamford, 246 Conn. 281, 289-90, 715 A.2d 756 (1998); Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 447, 645 A.2d 978 (1994).

We have found only a few analogous cases to guide our resolution of this issue. In Paranteau v. DeVita, 208 Conn. 515, 523, 544 A.2d 634 (1988), our Supreme Court held that “a judgment on the merits is final for purposes of appeal even though the recoverability or amount of attorney’s fees for the litigation remains to be determined.” The bright line rule articulated in Para-nteau was later extended to permit an immediate appeal from a judgment of strict foreclosure in which attorney’s fees remained to be determined. Benvenuto v. Mahajan, 245 Conn. 495, 501, 715 A.2d 743 (1998). In coming to that conclusion, the Benvenuto court exam ined and disagreed with a contrary result reached by this court in Connecticut National Bank v.L&R Realty, 40 Conn. App. 492, 494-95, 671 A.2d 1315 (1996). Benvenuto v. Mahajan, supra, 500.

To answer the final judgment question in this case, we must first consider whether any part of our jurisdictional rulings in Connecticut National Bank survives after Benvenuto. In our decision that a strict foreclosure judgment was not appealable before the setting of law dates, we acted on two independent grounds. We held that the appeal was premature, first because the judgment did not address attorney’s fees and second because the judgment did not set law days for redemption of the mortgage. Connecticut National Bank v. L&R Realty, supra, 40 Conn. App. 494-95. On the first, Benvenuto is dispositive. On the second, however, the Benvenuto decision does not give us clear instructions. Benvenuto v. Mahajan, supra, 245 Conn. 500-501.

Benvenuto thus leaves Connecticut National Bank under a cloud of uncertainty. At the least, however, Benvenuto counsels against an expansive reading of our case. If, as Benvenuto holds, piecemeal appeals are appropriate in strict foreclosure actions, they should be equally appropriate in cases of foreclosure by sale.

The conclusion, following Benvenuto, that foreclosure judgments are often appealable immediately is reinforced by a comparison of the function of law days in strict foreclosures with the function of dates for foreclosures by sale. Until law days are set, “the parties’ rights remain unconcluded . . . [and] a strict foreclosure judgment . . . cannot be final . . . Connecticut National Bank v. L & R Realty, supra, 40 Conn. App. 494. Such consequences do not attend the failure to set a date for the implementation of a judgment for a foreclosure by sale. Rights to redemption are not cut off by a foreclosure sale. “[S]uch rights survive the auction of the foreclosed property and may be exercised until such time as the judicial authority approves the foreclosure sale.” Washington Trust Co. v. Smith, 241 Conn. 734, 742, 699 A.2d 73 (1997); see Raymond v. Gilman, 111 Conn. 605, 613, 151 A. 248 (1930); see also In the Matter of Loubier, 6 B.R. 298, 303 (D. Conn. 1980); D. Caron, Connecticut Foreclosures (2d Ed. 1989 & Sup. 1995-96) § 9.02B, p. 150. As best we can ascertain, no Connecticut appellate case has held that appellate review of judgments of foreclosure must await the setting of a date for a foreclosure sale. We conclude, therefore, that this appeal is properly before this court.

Ill

MERITS OF THE APPEAL

Turning now to the merits of the plaintiffs appeal, we start with a statement of the essential facts described in Willow Funding Co., L.P., I. “This case arises out of successive assignments of a mortgage debt. On June 13, 1988 . . . Grencom . . . executed a note for $1,500,000, payable to Citytrust. The note was secured by a second mortgage on real estate in Greenwich. The defendants Arthur Collins and Arthur D. Emil became guarantors of Grencom’s debt. The defendants did not repay the loan when it matured on June 15,1991. Shortly afterward, Citytrust failed, and the Federal Deposit Insurance Corporation (FDIC) became its receiver. The FDIC hired Consolidated Asset Recovery Corporation [CARC] to service the Grencom loan. The plaintiff, Willow Funding Company, L.P., purchased the loan under sealed bid as part of a pool of loans. Accordingly, on December 6, 1994, the FDIC endorsed the note and assigned the mortgage to the plaintiff. On May 19,1995, the plaintiff commenced this foreclosure action.” Willow Funding Co., L.P., I, supra, 246 Conn. 617-18.

After a second trial to the court, the court concurred in the earlier finding of default on the Citytrust note and mortgage. Although the default established the plaintiffs right to foreclosure, further evidence at this trial persuaded the court, in the exercise of its equitable discretion, to reduce the amount of the defendants’ indebtedness and, correlatively, the plaintiffs recovery.

One ground for tire court’s conclusion was that the defendants had sustained their affirmative defense of unclean hands. “The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular’ controversy in issue. . . . Unless the plaintiffs conduct is of such a character as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean hands does not apply.” (Citation omitted.) Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 525, 686 A.2d 481 (1996).

The court concluded that the doctrine of unclean hands was applicable because of the plaintiffs conduct with respect to an oral agreement between the parties for renegotiation of the terms of the Citytrust note and mortgage. The court found that the plaintiff had bypassed the oral agreement to avail itself of the opportunity to obtain the Citytrust note and mortgage from CARC, an opportunity to which it was first alerted by the defendants. The plaintiffs purchase of the Citytrust note and mortgage from CARC was the basis for the plaintiffs claim that its foreclosure action should reflect the defendants’ original debt of $1,500,000 on the note and mortgage, rather than a debt of $865,000 to which the plaintiff had agreed orally on October 3, 1994.

The plaintiff does not take issue with the clean hands doctrine itself, but argues that the court misapplied the doctrine in this case. The plaintiff claims that the court improperly found that the parties had reached an oral agreement. If we disagree with that claim, the plaintiff asserts that the agreement was unenforceable because it was not sufficiently definite and because, in the absence of supporting documentation, it did not comply with the statute of frauds. General Statutes § 52-550. We disagree.

Standard rules of appellate procedure confine our review of the court’s findings of fact to a determination of whether they were clearly erroneous, but require us to undertake plenary review of claims of law. See, e.g., Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Lux v. Environmental Warranty, Inc., 59 Conn. App. 26, 31, 755 A.2d 936, cert. denied, 254 Conn. 949, 762 A.2d 902 (2000); see Practice Book § 60-5.

The court found the following undisputed facts. The FDIC, in order to dispose of mortgages originally owned by Citytrust, appointed CARC to conduct an auction of the mortgages on behalf of the FDIC. In 1994, Grencom arranged with CARC to reduce its indebtedness to $500,000 if Grencom could pay that amount in cash. CARC required Grencom to make this payment by October 31, 1994, or risk sale of the note and mortgage, at public auction, to an unknown third party who had submitted the most favorable sealed bid. To meet this deadline, Grencom, through the assistance of an intermediary, sought funding from the plaintiff.

The plaintiff and the defendants then entered into oral negotiations. The plaintiff disputes that those negotiations resulted in a refinancing agreement to which both parties subscribed on October 3, 1994. In support of its finding that there was such an agreement, the court noted that the plaintiff had made a site inspection and had received extensive documentation of Gren-com’s financial status. Some of these documents were not available to the general public. The court found that this documentation, supplemented by a site inspection, had given the plaintiff access to all that it needed to make an underwriting decision about whether to make a loan to Grencom.

As further evidence of a refinancing agreement, the court found that, in the refinancing agreement, the plaintiff had agreed to lend to Grencom $700,000, the sum that the defendants had requested, as well as an additional sum of $165,000. The new loan of $865,000 was to be secured by a new second mortgage in substitution for the Citytrust note and mortgage, and by personal guarantees from Collins and Emil. The parties had agreed that the guarantees were to take the form of springback guarantees, pursuant to which the guarantors would be discharged from liability if, upon default of the new loan, Grencom executed, in favor of the plaintiff, a deed that would obviate the need to pursue a foreclosure action.

In furtherance of finding that there was a refinancing agreement, the court found that Grencom had paid $5000 to the plaintiff. The plaintiff had received this sum so that it would prepare the required closing documents, the mortgage and the guarantees. With the exception of a proposed rider for the springback guarantees, the plaintiff failed to provide Grencom with any of the required papers.

The court also examined the circumstances surrounding the plaintiffs purchase of the Citytrust note and mortgage through a sealed bid tendered at the CARC public auction. The court found that the plaintiff had been unaware of the pending auction until the subject came up in a conversation with the defendant Collins. The plaintiff thereafter asked for and was granted permission to obtain further information from the CARC. Collins voiced no objection, reasonably expecting that the refinancing agreement would continue to be in effect even if the plaintiff acquired the Citytrust note and mortgage at the public auction.

Contrary to the defendants’ expectations, the plaintiff, after becoming the successful bidder, sought to hold the defendants liable for the full amount of the Citytrust note and mortgage. The plaintiff proposed, and the defendants rejected, a different and less favorable refinancing plan. This foreclosure action ensued.

A

The first issue raised in the plaintiffs appeal is a claim that the court’s findings of fact were clearly erroneous and the finding of unclean hands was thereby improper. This claim of error focuses on the court’s finding that, on October 3, 1994, the parties reached a binding agreement for the refinancing of the defendants’ obligations arising out of the Citytrust note and mortgage. The plaintiff concedes that “[a]t some point the parties negotiated [the] general terms of a loan.” That concession, according to the plaintiff, did not provide evidence of a binding contractual engagement because, in its view, the parties had not yet defined essential terms of the contemplated springback guarantees on which the contemplated refinancing depended.

Dealing with this issue as a question of fact, we note that the record supports the court’s finding that the parties had reached an oral agreement. The plaintiffs chief negotiator testified that the plaintiff had itself proposed the deal that the defendants had accepted. The deal included the promise of springback guarantees by Collins and Emil that were designed to conform to specifications set by the plaintiff. We are persuaded that the court’s finding of fact is not clearly erroneous.

Dealing with this issue as a question of law, we consider the plaintiffs argument that the agreed upon general terms could not have become a binding agreement because some aspects of these terms had not yet been agreed upon by October 3, 1994. The plaintiff attaches great significance to postagreement discussions about the springback guarantees. We do not doubt that acceptable guarantees were essential features of the refinancing agreement, but we disagree that these guarantees were too indefinite to be enforceable.

Our contract law is not as constricted as the plaintiff assumes it to be. The plaintiff assumes that a court is precluded from finding the existence of an enforceable agreement if (1) the parties engaged in further negotiations subsequent to the time of the agreement or (2) the essential terms of the agreement have not been fully spelled out at the time of the agreement. We are not persuaded.

The fact that parties engage in further negotiations to clarify the essential terms of their mutual undertakings does not establish the time at which their undertakings ripen into an enforceable agreement. The plaintiff cites no authority, and we have found none, that assigns so draconian a consequence to a continuing dialogue between parties that have agreed to work together. We know of no authority that precludes contracting parties from engaging in subsequent negotiations to clarify or to modify the agreement that they had earlier reached.

More important, we agree with the trial court that the general terms on which the parties indisputably had agreed by October 3, 1994, included all the terms that were essential to an enforceable agreement. Under the modem law of contract, if the parties so intend, they may reach a binding agreement even if some of the terms of that agreement are still indefinite. See Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 521, 735 A.2d 813 (1999); O’Sullivan v. Bergenty, 214 Conn. 641, 651-52, 573 A.2d 729 (1990). As Professor E. Allan Farnsworth has noted, courts increasingly have been willing to flesh out the intended meaning of indefinite contract language by recourse to trade custom, standard usage and past dealings. 1 E. Farnsworth, Contracts (2d Ed. 1998) § 3.28, p. 398; cf. General Statutes §§ 42a-2-204 and 42a-2-208. Section 42a-2-204 expressly recognizes that, if the parties so intend, they may reach a binding agreement “[e]ven though one or more terms are left open . . . .”

We do not mean to suggest that contemplated contractual undertakings are enforceable no matter how indefinite the agreement may be. As the plaintiff points out, numerous Connecticut cases require definite agreement on the essential terms of an enforceable agreement. We agree with the plaintiff that an agreement is too indefinite to be enforceable until the parties have decided the amount of a contemplated loan; Suffield Development Associates Ltd. Partnerships. Society for Savings, 243 Conn. 832, 843, 708 A.2d 1361 (1998); or the configuration of a subordination agreement. L&R Really v. Connecticut National Bank, 53 Conn. App. 524, 537-38, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999). Similar examples abound. They turn, however, on the particular circumstances of each case.

We must decide, therefore, whether, on October 3, 1994, there remained significant unresolved issues about the essential terms of the guarantees that Collins and Emil had agreed to provide to the plaintiff. Essential terms might well be deemed to have been missing in this case if the parties had not determined the identity of the guarantors, the amount of the debt to be underwritten, the time period for which the guarantees would be operative, or the overall form that the guarantees would take. These essential terms, however, had all been made definite by October 3, when the plaintiff, in return for the defendants’ payment of $5000, undertook to draft the documents needed to implement the agreement of the parties.

What remained indefinite, according to the plaintiff, were the details of the springback guarantees, to which the plaintiff concededly had agreed in concept. We disagree that the absence of such details made the agreement unenforceable. In our view, a failure of total definition does not import intolerable ambiguity even into terms that are essential to the formation of an enforceable agreement. The parties might, of course, have postponed the effective date of the agreement. The court found to the contrary.

The propriety of the court’s finding is not undercut by testimony that the defendant Emil, after October 3, 1994, refused to agree to certain aspects of the plaintiffs proposals with respect to the guarantees. It is not clear whether the plaintiff was belatedly asking for more extensive guarantees than previously contemplated or whether Emil’s conduct was in breach of the October 3 agreement. In either event, we are not persuaded that disagreement about some aspect of the performance contemplated by the October 3 agreement is inconsistent with a determination that the parties had come to such an agreement, in general terms, on October 3,1994.

We therefore affirm the court’s decision with respect to the parties’ mutual understandings on October 3, 1994. The court’s finding of fact in that regard was not clearly erroneous. The court’s conclusion that the agreement was sufficiently definite to permit it to have legal consequences was proper. Under common-law principles of contract formation, the plaintiff cannot prevail.

B

The plaintiff argues that even if the parties reached an agreement on the terms of their mutual undertaking on October 3,1994, the applicable provision of the statute of frauds bars enforcement of the agreement. The agreement was never memorialized in writing. General Statutes § 52-550 (a) provides in relevant part: “No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged ... (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.” In this case, the oral agreement contemplated a loan of more than $500,000.

The court concluded that the statute of frauds did not bar its consideration of the parties’ oral agreement as part of its overall assessment of whether the plaintiff was entitled to the equitable relief that it sought. First, the court noted that § 52-550 governs only a “civil action” to enforce the contract. In this case, the court held that the underlying action brought by the plaintiff was not a “civil action.” Second, the court held that the defendants did not premise their claims for reduction of their indebtedness on the enforceability of the October 3, 1994 agreement.

Without challenging the court’s factual findings, except as noted earlier in this opinion, the plaintiff renews its claim that the statute of frauds precludes the defendants from succeeding on any of their defenses. In the absence of case law construing subdivision (6) of subsection (a) of § 52-550, we will assume, as have the parties, that it is appropriate to apply this subdivision in accordance with the limitations and caveats that have been engrafted on other subdivisions of § 52-550 (a).

The plaintiff cites Simons v. New Britain Trust Co., 80 Conn. 263, 267, 67 A. 883 (1907), and DiBlasi v. DiBlasi, 114 Conn. 539, 543, 159 A. 477 (1932), in support of its argument. These cases hold, inter alia, that neither a plaintiff nor a defendant can maintain a claim that runs afoul of the statute of frauds. They hold that the statute of frauds disallows defenses that seek to enforce an otherwise valid oral agreement.

The defendants argue persuasively that these cases are inapplicable in light of the defendants’ pleadings. Although the defendants’ pleadings allege unfair conduct by the plaintiff, the defendants argue that those pleadings contain no claims whatsoever for enforcement of the oral agreement between the parties. The defendants did not file any claims for affirmative relief under the agreement, such as a request for specific performance or for damages for breach of contract. The court agreed with the defendants.

The statute of frauds cannot be avoided by verbal manipulation. That is not the case here. After the public auction, there was no further opportunity for refinancing, so that a claim for specific performance, if available, would have been futile. A claim for damages would have required a quantification of injury that the defendants would have been hard pressed to make. There were, therefore, substantive reasons for the defendants to seek a remedy only through equitable reduction of their debt. These reasons equally refute the plaintiffs claim that the court’s decision was premised on enforcement of the oral agreement between the parties, in violation of the statute of frauds.

The plaintiff appears also to argue that, in the absence of enforcement of the oral agreement, the court had no authority to consider the conduct of the parties with respect to that agreement. Whatever the force of that argument may be under other circumstances, we know of no authority that makes such conduct irrelevant to a court’s exercise of its equitable discretion in a foreclosure proceeding. Our review of the record persuades us that it was proper for the court to consider the conduct of the plaintiff with respect to the oral agreement for evidentiary purposes.

Speaking more broadly, we are persuaded that the court’s invocation of equitable principles in this case is sustainable even if we were to take the plaintiffs view of the statute of frauds issue, premised on the wording of that statute. Our courts have been assiduous to prevent the statute of frauds from becoming an instrument of fraud. See, e.g., Blakeslee v. Water Commissioners, 121 Conn. 163, 186, 183 A. 887 (1936); Milazzo v. Schwartz, 44 Conn. App. 402, 406, 690 A.2d 401, cert. denied, 240 Conn. 926, 692 A.2d 1282 (1997).

Although this case has no allegation or finding of fraud, the record contains adequate findings of misconduct to support the court’s conclusion that equitable principles warrant a reduction in the defendants’ debt. A party that invokes a court’s equitable jurisdiction by filing an action for foreclosure necessarily invites the court to undertake such an inquiry. See Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982); Southbridge Associates, LLC v. Garofalo, 53 Conn. App. 11, 15, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).

The record discloses that the plaintiff not only failed to honor the parties’ oral agreement, but it did not inform the defendants of its decision in a timely fashion. It never prepared the documentation that it had been paid to produce. As a result of the plaintiffs inaction, the defendants were foreclosed, for all practical purposes, from complying with the CARC’s deadline for favorable refinancing. The plaintiff, on the other hand, availed itself of a more profitable public auction, an opportunity of which it would not had known but for information received from one of the defendants. Relying on its successful bid at that auction, the plaintiff succeeded in escalating its financial demands on the defendants. This record supports the court’s conclusion that, in this case, equitable principles warranted a reduction in the amount that the plaintiff was entitled to recover. See Olean v. Treglia, 190 Conn. 756, 771, 463 A.2d 242 (1983); Rutt v. Roche, 138 Conn. 605, 609-10, 87 A.2d 805 (1952).

Just as a party’s invocation of the statute of limitations may be converted, in equity, into the more flexible doctrine of laches; see, e.g., Dunham v. Dunham, 204 Conn. 303, 326-27, 528 A.2d 1123 (1987); so we hold that the statute of frauds, in equity, may in proper circumstances be converted into a more flexible inquiry into an equitable remedy that reflects a weighing of the rights of the parties. What makes this case an appropriate candidate for flexibility is that the plaintiff does not deny that the parties had agreed on the general terms of their undertaking. The statute of frauds was principally designed to prevent imposition of liability on the basis of swearing contests about the alleged relationship between the parties. That simply is not the case here.

Our conclusion is consistent with generally acknowledged doctrines that have justified noncompliance with the statute of frauds. In O’Sullivan v. Bergenty, supra, 214 Conn. 648-51, our Supreme Court held that the doctrine of equitable estoppel could excuse such noncompliance. We see no persuasive distinction between that case and this case, in which a plaintiff invokes equitable jurisdiction, and equitable discretion, when the plaintiff itself was responsible for the absence of the documentation that it now claims to have been essential.

We conclude that the statute of frauds furnishes no relief to the plaintiff under the circumstances of this case. The court properly so ruled.

IV

CONCLUSION

We affirm the court’s overall conclusion that the plaintiff came to the court with unclean hands and therefore was not entitled to full enforcement of the Citytrust note and mortgage. The plaintiff does not challenge the basic proposition that the court, in light of its equitable jurisdiction over foreclosure actions, had the authority to take into account the totality of the evidence presented to it. It does not question the validity of the court’s exercise of its equitable discretion except to question the propriety of the court’s reliance on an oral agreement between the parties and its disregard of the statute of frauds. At the end of the day, the court’s judgment in favor of the defendants was primarily based on a fact-bound balancing of the equities. We do not lightly set such a judgment aside.

The judgment is affirmed.

In this opinion the other judges concurred.

       The mortgagor originally sought a strict foreclosure, but subsequently agreed to a foreclosure by sale.

       In its judgment, the court held, on three independent grounds, that the mortgagee was not entitled to enforce its mortgage in full. It concluded that the mortgagee had (1) violated the fiduciary duty that it owed to the mortgagor, (2) violated the clean hands doctrine and (3) usurped a business opportunity that belonged to the mortgagor. Our affirmance rests only on the clean hands doctrine.

       General Statutes § 52-550 provides: “(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; (5) upon any agreement that is not to be performed within one year from the making thereof; or (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.
      “(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term.”

       Pursuant to General Statutes § 51-183e, Judge Tierney heard the case on remand. He had no prior exposure to this case.

       As special defenses and counterclaims, the defendants claimed, inter alia, that (1) the plaintiff should be denied a remedy dire to its unclean hands, (2) tire plaintiff breached its fiduciary duty, (3) the plaintiff usurped Grencom’s business opportunity and (4) the plaintiff breached its implied covenant of good faith and fair dealing with Grencom.

       The defendants also sought, belatedly, to amend their counterclaims to include a claim under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The court denied them permission to do so. The defendants have not pursued this issue in this court.

       In furtherance of the court’s order of foreclosure by sale, it also awarded $4700 to the plaintiff as an appraisal fee.

       The plaintiff does not challenge the computation of the reduction of the indebtedness.

       It is possible that all of the issues on appeal can be reached as part of the judgment upholding the defendants’ counterclaims. Pursuant to Practice Book § 61-2, a judgment rendered on an entire counterclaim is a final judgment. Going that route would, however, require us to determine the extent to which the defendants’ defenses and counterclaims raise the same issues. We prefer to reach the merits directly.

       That sum represented the $500,000 that Grencom would pay to CARC, as well as an additional amount of $200,000 for building improvements.

       The plaintiff maintains that this payment was for unpaid interest. The parties characterized it as “vig.”

       The plaintiff paid $382,658.26 to acquire the mortgage. The court properly noted that it was irrelevant to the present inquiry that there was a considerable discrepancy between that sum and the amount that the plaintiff sought to receive as assignee of the Citytrust note and mortgage.
      The court further found that the plaintiffs bid was improper because the plaintiffs receipt of private information from the defendants, before the auction, violated a confidentiality agreement to which the plaintiff had subscribed as a condition to receiving the bid package from CARC. That finding, too, is irrelevant because the defendants have not claimed a right to enforce the confidentiality agreement.

       Similarly, we are unaware of any binding authority that would support the plaintiffs argument that it could not have entered into an enforceable agreement prior to completing its financial investigation of Grencom. Had that investigation led the plaintiff to determine that the financing agreement was not financially feasible, the plaintiff might well have been excused from further performance of the parties’ agreement. See 2 Restatement (Second), Contracts §§ 224 and 237 (1981). Such an excuse would have been relevant to an assessment of the remedial rights of the parties, but it is irrelevant to an inquiry into whether the parties previously had entered into a binding contractual agreement.

       The plaintiff does not contest his receipt of $5000 from the defendants for this purpose.

       The court’s finding may well have reflected its understanding of the time pressure for an early refinancing agreement that was created by the October 31, 1994 deadline set by CARC.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. LEONARD TALTON
    (AC 20160)
    Schaller, Dranginis and Dupont, Js.
    Argued April 4
    officially released June 19, 2001

      Richard E. Condon, Jr., special deputy assistant public defender, for the appellant (defendant).

      Eileen McCarthy Geel, assistant state’s attorney, with whom were James G. Clark, senior assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, and Roger Dobris, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Leonard Taitón, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation General Statutes § 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48 (a), criminal possession of a firearm in violation of General Statutes § 53a-217 (a) and carrying a pistol without a permit in violation of General Statutes (Rev. to 1997) § 29-35. On appeal, the defendant claims that the trial court improperly (1) admitted testimony that the victim, the defendant’s brother and the state’s key witness were gang members in the business of selling drugs, (2) admitted testimony of the state’s key witness that since the victim’s death, the witness’ brother had been shot and killed, and that the person who killed the brother also had been shot and killed, and (3) allowed uniformed correction officers to be present during jury selection, thereby violating the defendant’s right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 22, 1997, at approximately 8:30 p.m., a shooting occurred at the Quinnipiac Terrace Housing Complex (housing complex) in New Haven. As a result, the victim, Tyrone Belton, died after receiving a single gunshot wound to the chest. A friend of the victim, Tacumah Grear, witnessed the shooting and the events that had led to the shooting.

The shooting arose from a dispute involving a motorbike that had occurred on the day before the shooting. On the morning of March 21, 1997, the victim and Grear were taking turns riding the victim’s motorbike at the housing complex. While the victim was passing the motorbike to Grear, Richard Snowden, the defendant’s brother, approached them and asked if he could also ride the motorbike. The victim responded in the negative. Nevertheless, Snowden took the motorbike and rode off on it. When Snowden returned with the motorbike, the victim punched Snowden in the face, knocking him unconscious. Snowden subsequently reported the incident to his friend, Sean Bethea. Later that day, Bethea confronted the victim about the incident and the two engaged in a fistfight. After the fight, tire parties discussed the matter, and the victim was under the impression that they had resolved the dispute involving the motorbike.

The victim’s impression, however, would prove to be wrong. On the following evening, the victim and Grear were standing in a parking lot located in the housing complex. While waiting there, two men approached them; one was wearing a camouflage mask, and the other was wearing a hood pulled tightly over his head. Despite their disguises, Grear recognized the two men as the defendant and Snowden because he had known both of them before the night in question. One of the assailants told Grear to leave so that he could “handle [his] business.” Grear understood that to mean that the assailants wanted to shoot the victim. Grear stepped between the assailants and the victim, and told them that he would not leave. A struggle ensued during which the hooded man, the defendant, brandished a gun and prepared to fire it. The victim saw the gun and, in response, pushed Grear to the ground to prevent him from being shot. After falling to the ground, Grear saw the hooded man point the gun at the victim and fire it. The victim fell to the ground, and the assailants fled the scene.

Thereafter, the police arrived. They questioned Grear on that night, but he chose not to identify the assailants. A few days later, however, Grear had a change of heart and informed the police that he could identify the assailants. The police met with Grear and tape-recorded his statement, in which he identified the defendant as the shooter and Snowden as the accomplice. At trial, Grear was the state’s principal witness. The jury found the defendant guilty as charged. This appeal followed. Additional facts will be set forth as they become relevant to the defendant’s claims.

I

The defendant first claims that the court improperly admitted testimony that the victim, Snowden and Grear were gang members in the business of selling drugs. Specifically, he claims that the court improperly admitted such testimony because it was irrelevant and prejudicial. We disagree.

The following additional facts pertain to the defendant’s claim. Grear testified at trial about the events that gave rise to the shooting and the shooting itself. Grear’s testimony was, for the most part, consistent with the statement that he had given to the police a few days after the shooting, with one exception. Contrary to his statement to the police, Grear testified at trial that he was unable to identify the assailants because one was wearing a mask and the second was wearing a hood. Grear, at trial, therefore refused to identify the defendant as the shooter. Pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), the state introduced for substantive purposes the prior inconsistent statement that Grear had made to the police.

To rehabilitate Grear’s credibility and to explain his prior inconsistent statement, the state asked Grear why he was reluctant to testify as to the identity of the shooter. Grear responded that he feared retaliation against himself or his family because, along with the victim and Snowden, he was in “the game,” implying that the three of them were members of a gang in the business of selling drugs. The court overruled the defendant’s objection to such testimony, which objection was based on the grounds of relevance and prejudice.

Before addressing the merits of the defendant’s claim, we note the proper standard of review applicable to a court’s ruling on evidentiary matters. “Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) Bunting v. Bunting, 60 Conn. App. 665, 670, 760 A.2d 989 (2000).

A

The defendant initially claims that the court improperly admitted testimony that the victim, Snowden and Grear were gang members in the business of selling drugs because such testimony was irrelevant. We are unpersuaded.

“Evidence is admissible only if it is relevant. Tomlinson v. Board of Education, 226 Conn. 704, 728, 629 A.2d 333 (1993). Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . State v. Cosby, 44 Conn. App. 26, 31, 687 A.2d 895 (1996), cert. denied, 240 Conn. 910, 689 A.2d 474 (1997). It is well settled that questions of relevance are committed to the sound discretion of the trial court. State v. Weidenhof 205 Conn. 262, 277, 533 A.2d 545 (1987). State v. Lyons, 43 Conn. App. 704, 707, 686 A.2d 128 (1996), cert. denied, 240 Conn. 906, 688 A.2d 335 (1997).” (Internal quotation marks omitted.) First Federal Bank, FSB v. Gallup, 51 Conn. App. 39, 41-42, 719 A.2d 923 (1998). With those principles in mind, we must determine whether the testimony concerning the potential threat from gang activity was relevant to explaining Grear’s prior inconsistent statement.

“The general rule is that threats against witnesses are not relevant and are thus inadmissible as evidence unless the defendant is linked in some way to the making of the threats.” State v. Walker, 214 Conn. 122, 129, 571 A.2d 686 (1990). “An exception to the general rule concerning the admissibility of evidence of threats exists, however, where the evidence of threats is offered not to prove the guilt of the accused but rather to explain a witness’ prior inconsistent statement.” Id.

In the present case, we cannot conclude that the court abused its discretion in determining that the testimony regarding the gang activity was relevant to the issue of credibility. The record reveals that the state offered the testimony solely for the purpose of explaining Grear’s prior inconsistent statement. As such, the testimony came within the purview of the exception to the general rule. We conclude, therefore, that the court properly admitted the testimony regarding the gang activity.

B

Despite the relevancy of the challenged testimony, the defendant also argues that the court nevertheless should have excluded it as being unduly prejudicial. We disagree.

“Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... Of course, [a] 11 adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury. . . . The trial court . . . must determine whether the adverse impact of the challenged evidence outweighs its probative value. . . . Finally, [t]he trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown. . . . [B]ecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 141-42, 763 A.2d 1 (2000).

Under the circumstances of this case, the court did not abuse its discretion in concluding that the probative value of Grear’s testimony concerning the gang activity outweighed any prejudicial effect that it may have had. As we have indicated, the state offered the testimony solely for the purpose of explaining Grear’s prior inconsistent statement. We also note that nowhere in his testimony did Grear indicate that the defendant had engaged in gang activity. Rather, Grear indicated only that he and the victim and Snowden had been involved in gang activity. In light of that limitation, we cannot see how Grear’s testimony had a prejudicial effect on the defendant. Accordingly, the court properly admitted the testimony regarding the gang activity.

II

The defendant next claims that the court improperly admitted Grear’s testimony that since the victim’s death, Grear’s brother had been shot and killed, and that the person who killed his brother also had been shot and killed. As with his first claim, the defendant supports it with a two-pronged argument. He argues that such testimony was irrelevant and prejudicial. We are not persuaded.

The following additional facts are necessary for our resolution of the defendant’s claim. After the court admitted Grear’s prior inconsistent statement into evidence, the state asked Grear about his brother’s death. Grear testified that since the victim died, Grear’s brother had been shot and killed, and that the person who killed his brother also had been shot and killed. The defendant objected to such testimony on the basis of relevance and prejudicial effect. The state, in response, argued that it was merely attempting to rehabilitate Grear’s credibility by explaining his prior inconsistent statement. According to the state, the testimony was an additional reason as to why Grear was fearful of testifying. The court agreed with the state and admitted the testimony into evidence. In doing so, however, the court issued a limiting instruction to the jury in which it specifically emphasized that the state was in no way claiming that the defendant had a part in the aforementioned deaths.

A

The defendant first claims that the court improperly admitted Grear’s testimony regarding the death of his brother because such testimony was irrelevant. We disagree.

Because the defendant’s claim is substantially similar to his first claim, we need not embark on the same detailed discussion of the law. See part I A. We reiterate, however, that appellate review of a court’s determination regarding evidentiary matters is conducted under an abuse of discretion standard. Bunting v. Bunting, supra, 60 Conn. App. 670. We also reiterate that, although not generally relevant, evidence of threats is relevant “where the evidence ... is offered not to prove the guilt of the accused but rather to explain a witness’ prior inconsistent statement.” State v. Walker, supra, 214 Conn. 129. As was the case with the defendant’s first claim, the state offered the testimony solely for the purpose of explaining Grear’s prior inconsistent statement. The court therefore did not abuse its discretion in admitting as relevant the testimony regarding the death of Grear’s brother.

B

The defendant also claims that, notwithstanding the relevancy of the challenged testimony, the court should have excluded it as being unfairly prejudicial. We are unpersuaded.

Once again, a thorough discussion of the law is not warranted as the defendant’s claim is substantially similar to his first claim. See part IB. We nonetheless restate that “[t]he trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown.” (Internal quotation marks omitted.) State v. Wargo, supra, 255 Conn. 141.

After reviewing the record, we conclude that the court did not abuse its discretion in determining that the probative value of Grear’s testimony regarding the death of his brother outweighed any prejudicial effect that it may have had. The state used the testimony solely for the purpose of explaining Grear’s prior inconsistent statement. Furthermore, the court issued a limiting instruction to the jury with respect to the challenged testimony. “Unless there is a clear indication to the contrary, a jury is presumed to follow the court’s instructions.” (Internal quotation marks omitted.) State v. Coughlin, 61 Conn. App. 90, 96, 762 A.2d 1 (2000), cert. denied, 255 Conn. 934, 767 A.2d 105 (2001). We conclude, therefore, that the court did not abuse its discretion in admitting as more probative than prejudicial the testimony regarding the deaths of Grear’s brother and the brother’s killer.

III

Finally, the defendant claims that the court improperly allowed uniformed correction officers to be present during jury selection, thereby violating his right to a fair trial. We decline to address the merits of the defendant’s claim.

The record reveals that two or three uniformed correction officers were present during jury selection. It does not, however, reveal the correction officers’ proximity to the defendant. Furthermore, the record is devoid of any detail with regard to the correction officers’ behavior. As such, we cannot discern whether a colorable claim exists. “It is up to the appellant to provide a record adequate to review his claims. Practice Book § 61-10.” Rosenblit v. Williams, 57 Conn. App. 788, 796, 750 A.2d 1131, cert. denied, 254 Conn. 906, 755 A.2d 882 (2000). “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) State v. Lewis, 60 Conn. App. 219, 251, 759 A.2d 518, cert. denied, 255 Conn. 906, 762 A.2d 911 (2000). In light of the inadequate record, we decline to review the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when such person possesses a firearm . . . and (1) has been convicted of a felony . . . .”

       General Statutes (Rev. to 1997) § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       Grear had attended school with Snowden since middle school. Through Snowden, Grear also became acquainted with Snowden’s brother, the defendant.

       The limiting instruction concerning Grear’s testimony was as follows: “Now, ladies and gentlemen, it is not the position or claim of the state that the shooting of this witness’ brother or the person who shot his brother, that this defendant or anybody connected with him or his family had anything to do with those shootings. That is not the state’s claim.”


author: Per Curiam.

text:
    IN RE LEONARD N. ET AL.

    (AC 21062)
    Lavery, C. J., and Landau and Flynn, Js.
    Argued March 27
    officially released May 8, 2001

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

The judgment is affirmed.


text:
    IN RE MOENISHA B. ET AL.*
    (AC 20977)
    Landau, Mihalakos and Daly, Js.
    Argued March 19
    officially released May 8, 2001
   Per Curiam.

The judgment is affirmed.


text:
    NEW COUNTRY MOTOR CARS, INC. v. CLIFFORD CODDINGTON
    (AC 20741)
    Foti, Mihalakos and Daly, Js.
    Argued March 30
    officially released May 8, 2001
   Per Curiam.

The judgment is affirmed.


text:
    RUPERTO VINCENTE v. COMMISSIONER OF CORRECTION
    (AC 20318)
    Landau, Mihalakos and O’Connell, Js.
    Submitted on briefs April 6
    officially released May 8, 2001
   Per Curiam.

The appeal is dismissed.


text:
    KEITH HIGHSMITH v. COMMISSIONER OF CORRECTION
    (AC 19766)
    Landau, Mihalakos and O’Connell, Js.
    Submitted on briefs April 6
    officially released May 8, 2001
   Per Curiam.

The appeal is dismissed.


text:
    SONDRA G. STOLLAK v. JAY STEVEN STOLLAK
    (AC 20589)
    Foti, Schaller and Flynn, Js.
    Submitted on briefs April 6
    officially released May 8, 2001
   Per Curiam.

The judgment is affirmed.


text:
    REGINALD POWELL v. COMMISSIONER OF MOTOR VEHICLES
    (AC 20920)
    Lavery, C. J., and Spear and Dranginis, Js.
    Submitted on briefs April 6
    officially released May 8, 2001
   Per Curiam.

The judgment is affirmed.


text:
    THOMAS NICOULIN v. JEANNE GARDNER ET AL.
    (AC 20895)
    Lavery, C. J., and Spear and Dranginis, Js.
    Submitted on briefs April 6
    officially released May 8, 2001
   Per Curiam.

The judgment is affirmed.


text:
    PERRY FORGIONE v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (AC 20645)
    Lavery, C. J., and Spear and Peters, Js.
    Argued April 5
    officially released May 8, 2001
   Per Curiam.

The judgment is affirmed.


text:
    JEFFREY J. DONTIGNEY v. DEPARTMENT OF CORRECTION
    (AC 20563)
    Foti, Schaller and Flynn, Js.
    Submitted on briefs April 6
    officially released May 8, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STEPHEN J. LANDA v. DEPARTMENT OF MOTOR VEHICLES
    (AC 20685)
    Foti, Schaller and Flynn, Js.
    Submitted on briefs April 6
    officially released May 8, 2001
   Per Curiam.

The judgment is affirmed.


text:
    IN RE JOHN D. ET AL.

    (AC 21087)
    Lavery, C. X, and Flynn and Shea, Js.
    Argued May 2
    officially released May 22, 2001

         In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal axe not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

The judgment is affirmed.


text:
    IN RE JORDAN G.

    (AC 21082)
    Lavery, C. J., and Dranginis and Hennessy, Js.
    Argued April 30
    officially released May 22, 2001

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. DONNA M. LEWIS
    (AC 20387)
    Foti, Spear and Freedman, Js.
    officially released May 22, 2001
   Per Curiam.

The judgment is affirmed.


text:
    JOSEPH GAYMON v. COMMISSIONER OF CORRECTION
    (AC 21044)
    Schaller, Dranginis and O’Connell, Js.
    Submitted on briefs April 26
    officially released May 22, 2001
   Per Curiam.

The appeal is dismissed.


text:
    AVITT J. ROBERTSON v. ADREANNE GOOD
    (AC 21213)
    Schaller, Dranginis and O’Connell, Js.
    Submitted on briefs April 26
    officially released May 22, 2001
   Per Curiam.

The judgment is affirmed.


text:
    PATRICK NEMHARD v. COMMISSIONER OF CORRECTION
    (AC 21095)
    Schaller, Dranginis and O’Connell, Js.
    Submitted on briefs April 26
    officially released May 22, 2001
   Per Curiam.

The appeal is dismissed.


text:
    JAMES CORNEAU v. COMMISSIONER OF MOTOR VEHICLES
    (AC 20040)
    Schaller, Dranginis and Stoughton, Js.
    Argued April 24
    officially released May 22, 2001
   Per Curiam.

The judgment is affirmed.


text:
    RADHA R.M. NARUMANCHI ET AL. v. CITY OF NEW HAVEN ET AL.
    (AC 21277)
    Spear, Mihalakos and Flynn, Js.
    Submitted on briefs April 26
    officially released May 22, 2001
   Per Curiam.

The judgment is affirmed.


text:
    RADHA R.M. NARUMANCHI ET AL. v. NATIONWIDE MUTUAL INSURANCE COMPANY
    (AC 21324)
    Spear, Mihalakos and Flynn, Js.
    Submitted on briefs April 26
    officially released May 22, 2001
   Per Curiam.

The judgment is affirmed.


text:
    ANTONIO FARINHA v. COMMISSIONER OF CORRECTION
    (AC 20702)
    Lavery, C. J., and Dranginis and Hennessy, Js.
    Argued April 30
    officially released May 22, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. CLERMONT DOUGLAS
    (AC 19916)
    Mihalakos, Flynn and Daly, Js.
    Argued May 1
    officially released May 22, 2001
   Per Curiam.

The judgment is affirmed.


text:
    MARC R. PAGE v. COMMISSIONER OF CORRECTION
    (AC 20770)
    Lavery, C. J., and Foti and Hennessy, Js.
    Submitted on briefs April 26
    officially released May 22, 2001
   Per Curiam.

The judgment is affirmed.


text:
    PETER GONDA v. COMMISSIONER OF CORRECTION
    (AC 21215)
    Lavery, C. J., and Foti and Hennessy, Js.
    Submitted on briefs April 26
    officially released May 22, 2001
   Per Curiam.

The judgment is affirmed.


text:
    JOHN J. PITCHELL v. CITY OF HARTFORD ET AL.
    (AC 20539)
    Foti, Spear and Dupont, Js.
    Argued May 1
    officially released May 22, 2001
   Per Curiam.

The judgment is affirmed.


text:
    OLWEN M. FALKENSTEIN v. MICHAEL FALKENSTEIN
    (AC 20143)
    Schaller, Spear and Daly, Js.
    Argued May 9
    officially released June 5, 2001
   Per Curiam.

The judgments are affirmed.


text:
    ZANE CAMERON PETERSON v. VERNA J. PETERSON
    (AC 20879)
    Mihalakos, Dranginis and Daly, Js.
    Argued May 4
    officially released June 5, 2001
   Per Curiam.

The judgment is affirmed.


text:
    SCOTT CIAK v. COMMISSIONER OF CORRECTION
    (AC 19544)
    Spear, Mihalakos and Dranginis, Js.
    Argued May 8
    officially released June 5, 2001
   Per Curiam.

The judgment is affirmed.