text:
    STATE OF CONNECTICUT v. CHARLES WHITLEY
    (AC 16884)
    Lavery, Hennessy and Dupont, Js.

      Argued December 10, 1998
    officially released May 25, 1999

      Conrad Ost Seifert, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were James Thompson, state’s attorney, and Anne F. Mahoney, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Charles Whitley, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes (Rev. to 1991) § 53a-70 (a) (2), and one count of risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21. The defendant claims that the trial court improperly (1) admitted expert testimony and (2) mischaracterized expert testimony in the request to charge. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Between July 27 and November 13, 1992, the defendant lived with his girlfriend and her three sons in their apartment in Hartford. During this period, the boys’ mother paid the defendant, who was not the father of the children, to baby-sit her sons from 7 a.m. to 2 p.m. while she attended Church Academy School.

On more than one occasion when the defendant was baby-sitting the boys, the defendant sexually assaulted C, who was six years old at that time. According to C, the defendant would order C to lie down on his mother’s bed and pull his pants down. The defendant would then penetrate C anally. In addition, the defendant once forced C to perform fellatio on him. On one occasion, C’s brother, B, walked by his mother’s room while the door was open and witnessed the defendant assaulting C.

C did not report the abuse until one week after the defendant had moved out of the apartment and relocated to Florida. On November 30, 1992, C was interviewed by Diane Edell, a social worker at Saint Francis Hospital and Medical Center. During the interview, C disclosed to Edell both types of sexual abuse by the defendant. C was thereafter examined by Audrey Courtney, a pediatric nurse practitioner, in December, 1992. Courtney reported C’s anal and genital areas to be normal.

The defendant was charged and tried before a jury in October and November, 1996, and was subsequently convicted of two counts of sexual assault in the first degree in violation of § 53a-70 (a) (2) and one count of risk of injury to a child in violation of § 53-21. This appeal followed.

I

The defendant first claims that the trial court improperly admitted expert testimony. He specifically refers to the testimony of Courtney and Elaine Yordan, a nontreating physician who had reviewed C’s file. Each expert witness testified as to the relationship between physical injury and sexual abuse.

“[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. State v. Campbell, 225 Conn. 650, 654, 626 A.2d 287 (1993); State v. Kemp, [199 Conn. 473, 476, 507 A.2d 1387 (1986)]; State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985); Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); Coffin v. Laskau, 89 Conn. 325, 330, 94 A. 370 (1915). State v. Esposito, 235 Conn. 802, 834, 670 A.2d 301 (1996). Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 353-54, 696 A.2d 944 (1997).

The defendant attacks the admissibility of Courtney’s and Yordan’s testimony on four grounds: relevancy, impermissible bolstering of the victim’s credibility, the testimony was an expression of opinion on an ultimate issue and the testimony was more prejudicial than probative.

A

The defendant first claims that the trial court improperly admitted expert testimony that was irrelevant. We disagree. “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. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. ... A party is not required to offer such proof of a fact that it excludes all other hypotheses; it is sufficient if the evidence tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Citations omitted; internal quotation marks omitted.) State v. Kiser, 43 Conn. App. 339, 361-62, 683 A.2d 1021, cert. denied, 239 Conn. 945, 686 A.2d 122 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1478, 137 L. Ed. 2d 690 (1997).

The trial court properly admitted the testimony of Courtney and Yordan. Both experts possessed a special knowledge of the physiology of the rectal area and the consistency of physical injury to that area with sexual assault. While we agree with the defendant’s assertion that “[w]hen inferences or conclusions are so obvious that they could be as easily drawn by the jury as the expert from the evidence, expert testimony regarding such inferences [is] inadmissible”; State v. Apostle, 8 Conn. App. 216, 232, 512 A.2d 947 (1986), citing State v. George, 194 Conn. 361, 373, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985); this is not the case here. The physiology of the rectal area in the context of suspected sexual abuse is beyond the knowledge of an average juror. In addition, this testimony could have aided the jury in considering the issue of sexual assault and was therefore relevant.

B

The defendant next claims that Courtney’s and Yor-dan’s testimony impermissibly bolstered the victim’s credibility. This claim is without merit. “Trial courts have wide discretion with regard to evidentiary issues, and their rulings will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. . . . Every reasonable presumption will be made in favor of upholding the trial court’s ruling, and it will be overturned only for a manifest abuse of discretion. . . . Accordingly, we must determine whether the prejudicial effect of the testimony outweighed its probative value.” (Citations omitted.) State v. Gracia, 51 Conn. App. 4, 15-16, 719 A.2d 1196 (1998).

When considered in context, Courtney’s and Yordan’s testimony did not paint a blatantly one-sided picture that impermissibly bolstered the victim’s testimony. In his brief, the defendant claimed that when Courtney and Yordan testified on the basis of their reading of literature and their own expertise concerning the relationship between physical injury and sexual abuse, “it perforce bolstered the credibility of the alleged victim’s testimony.” A review of the relevant portion of the transcript reveals the following examination of Courtney by the assistant state’s attorney:

“Q. Again, based on the literature that you’re familiar with about findings in sexual abuse cases, would you expect to find injuries or abnormal examination if a child is sexually abused?
“A. Not necessarily.
“Q. And what are some of the explanations that you are aware of based on literature as to why you might not make a finding when you’re examining a child?
“A. One reason would be that the child wasn’t sexually abused. Another reason would be that an injury might have healed. Another reason would be that it was the type of contact that wouldn’t necessarily cause an injury, like oral sex or anal penetration might not cause an injury. An injury might be healed, did I say that?” (Emphasis added.)

The issue we must address is whether the experts’ testimony, entered over objection, improperly invaded the jury’s function solely to determine the credibility of witnesses. State v. Cintron, 21 Conn. App. 48, 54, 571 A.2d 139 (1990). We are not convinced that the experts’ testimony impermissibly bolstered the victim’s credibility. “In all but the most exceptional circumstances, the trial court should allow adversaries’ counsel, subject to the rules of evidence, to elicit from witnesses whatever responses may appropriately influence the jury’s judgments on credibility. ” State v. Smith, 200 Conn. 544, 550, 512 A.2d 884 (1986). Here, the testimony was properly determined to be relevant. Furthermore, while the defendant claims this testimony unfairly bolstered the victim’s credibility, the jury reasonably could have also considered this testimony to be exculpatory. Because of the ambivalent nature of this testimony, we cannot say that it improperly bolstered the credibility of the victim.

C

The defendant next claims that the trial court improperly allowed Courtney and Yordan to provide expert testimony to the effect that a finding of no physical injury is consistent with sexual assault. The defendant asserts that this testimony is an opinion on an ultimate issue in the case and, therefore, should not have been admitted. We are unpersuaded.

“An expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact. State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988); State v. Spigarolo, [210 Conn. 359, 372, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989)]; Kowalewski v. Mutual Loan Co., 159 Conn. 76, 80, 266 A.2d 379 (1970); In re Noel M., 23 Conn. App. 410, 422, 580 A.2d 996 (1990). An expert may, however, give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass .... State v. Rodgers, 207 Conn. 646, 652, 542 A.2d 1136 (1988); State v. Vilalastra, supra, 41. [EJvidence of the . . . medical effect upon the human system of the infliction of injuries, is generally not within the sphere of the common knowledge of a lay witness; Collette v. Collette, 177 Conn. 465, 471, 418 A.2d 891 (1979); and requires expert testimony. State v. McClary, 207 Conn. 233, 241, 541 A.2d 96 (1988); Sickmund v. Connecticut Co., 122 Conn. 375, 379, 189 A. 876 (1937). The trial court’s exercise of discretion in admitting expert testimony 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.) State v. Smith, 35 Conn. App. 51, 70, 644 A.2d 923 (1994).

Despite the defendant’s assertion to the contrary, the existence or absence of physical injury to a victim’s genital or anal area and its relation to a sexual assault is not necessarily an obvious matter within the common knowledge of the average person. In addition, Courtney’s and Yordan’s expert testimony assisted the jury in intelligently assessing the ultimate issue of whether a sexual assault had occurred. Furthermore, a review of relevant portions of the transcript reveals that while Courtney testified that physical injury would not necessarily be found in a case of sexual abuse and Yordan responded affirmatively to the state’s question of whether an absence of physical injury is consistent with sexual assault, they also testified that a lack of physical injury could indicate that an assault did not occur. We conclude, therefore, that the trial court did not abuse its discretion in allowing the state’s experts to testify about the consistency of a lack of physical injury with assault.

D

The defendant further argues that even if the expert testimony was relevant, the trial court improperly admitted Courtney’s and Yordan’s testimony because its prejudicial effect outweighed its probative value. We disagree.

“The trial court, however, should admit only that evidence where its probative value outweighs its prejudicial effect. State v. Maturo, 188 Conn. 591, 597-98, 452 A.2d 642 (1982).” State v. Middlebrook, 51 Conn. App. 711, 720, 725 A.2d 351, cert. denied, 248 Conn. 910, 731 A.2d 310 (1999). “Prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous.” State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982). The testimony at issue was not extraneous but, as we have held, was relevant and tended to prove an issue in the case— that the victim had been sexually assaulted. As we stated previously, however, the testimony at issue here also could tend to disprove that the victim had been assaulted. Because this evidence could be interpreted as either favorable or unfavorable to the defendant, the testimony clearly was not necessarily prejudicial. We, therefore, determine that the trial court properly admitted the testimony.

II

The defendant claims finally that the trial court mis-characterized Courtney’s expert testimony in the request to charge the jury and thereby bolstered the victim’s credibility. This claim is without merit.

“Our analysis begins with a well established standard of review. When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . [this court] will not view the instructions as improper. . . . State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995).” (Internal quotation marks omitted.) State v. Delgado, 247 Conn. 616, 625, 725 A.2d 306 (1999).

The defendant challenges the portion of the charge in which the trial court commented on Courtney’s expert testimony. The court stated: “[Courtney] went on, on the basis of her experience and training in this area, to indicate that, in her opinion, based on her experience, understanding of the literature, treatises on the subject and her training, that the absence of this visible trauma in the rectal area would not preclude rectal penetration. I believe she referred to the stretching, elastic character of the wall of the rectal cavities and she indicated that her examination, revealing no tear or trauma, neither confirmed or refuted the occurrence of anal penetration. She was, of course, cross-examined very closely by the defense and the defense [emphasized] that there exists no medical or physical confirmation or indication of any such anal intercourse with respect to either child.” Defense counsel thereafter excepted to that portion of the charge as follows: “I believe that Your Honor indicated that Audrey Courtney had testified about the elastic character of the wall of the anal cavity. My notes reflect, upon questioning by the state, she indicated that she could not say whether or not Hie two victims’ anal cavities were sufficiently elastic to have allowed penile penetration.” In response, the trial court stated: “Well, I think it’s their recollection of the evidence that controls and I told them anything I say was just my recollection and it was their recollection that controls.”

In response to further insistence by defense counsel, the trial court gave to the jury a supplemental charge, to which defense counsel did not except, in which it emphasized again that it is each juror’s recollection that controls, rather than the trial court’s recollection of the evidence. Upon examination of the entire jury charge, we conclude that the trial court properly instructed the jury regarding Courtney’s expert testimony. In addition, we disagree with the defendant’s claim that the trial court mischaracterized Courtney’s testimony, thereby bolstering the victim’s credibility. Moreover, the trial court’s supplemental charge reemphasized its original instruction that the jurors’ own recollections controlled. Consequently, our review of the trial court’s charge as a whole reveals that it was not reasonably possible that the jury was misled by any mischaracter-ization of Courtney’s testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1991) § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with a person under thirteen years of age.”

       General Statutes (Rev. to 1991) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       During oral argument, the defendant’s counsel informed the court that the defendant was abandoning his first issue on appeal, which had dealt with allegedly improperly voir dire questioning. We will address, therefore, only the remaining two issues on appeal.

       In his brief, the defendant also raises an issue with regard to the testimony of Diane Edell. During oral argument, however, the defendant’s counsel stated that Edell’s testimony was not being challenged here. We, therefore, limit our discussion to the testimony of Courtney and Yordan.

       During trial, the defendant had filed a motion in limine seeking to prevent any expert from testifying that the lack of physical evidence neither refuted nor confirmed the allegations of sexual abuse, arguing that such testimony is unreliable and concerned an ultimate issue in the case. The trial court denied that motion.

       The relevant portion of the trial court’s supplemental charge is as follows: “Now, also I did, toward—at the end of my charge, make certain comments to you and statements to you regarding some of the evidence in the case and that was for the purpose of clarifying the factual or credibility issues you are required to resolve in this particular case. And in that regard, as I told you at the time, with reference to any statements by the court regarding my recollection of what the evidence was, that is not controlling on you but rather it is your own recollections which control the evidence as you recollect it and, as I also indicated, you are, of course, entitled to have testimony, any of the evidence, reread by the court stenographer to you but, in any event, it is not my recollection of the evidence that controls, if my recollection differs from your recollection, then it’s your recollections that control.”


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    ANDREW BURNHAM v. JOHN CARR, JR.
    (AC 17694)
    O’Connell, C. J., and Lavery and Spallone, Js.
    Argued January 22
    officially released May 25, 1999

      William S. Palmieri, with whom, on the brief, was JohnF. Carr, Jr., pro se, for the appellant (defendant).

      Margaret F. Rattigan, for the appellee (plaintiff).
   Opinion

LAVERY, J.

The defendant, John Carr, Jr., doing business as Carr Homes, appeals from the judgment of the trial court holding him in contempt for failing to pay a garnishment order issued in a collection action. On appeal, the defendant claims, in essence, that (1) he was denied constitutional due process pursuant to General Statutes § 52-278h and (2) the trial court improperly found him to be in contempt. We disagree.

The following facts are relevant to this appeal. During the fall of 1994, the plaintiff, Andrew Burnham, and the defendant entered into a lump sum construction contract for excavation and site work for the construction of a house on real property in East Hampton. The contract was terminated after a dispute arose between the parties as to the value of the services rendered by the plaintiff. In August, 1995, the parties submitted their dispute to arbitration and proceedings were held in February and March, 1996. The arbitrator found in favor of the plaintiff, awarding him the balance due on the contract, interest, attorney’s fees and administrative fees. The defendant refused to pay the plaintiff the award. In April, 1996, the plaintiff filed an application to confirm the award and the defendant filed an application to vacate it. The trial court confirmed the award. The defendant again refused to pay the plaintiff and appealed to this court, where we affirmed the judgment of the trial court. The defendant petitioned for certification to appeal to our Supreme Court; certification was denied.

In October, 1996, while the defendant’s original appeal was before us, the plaintiff moved the trial court for a prejudgment remedy against the defendant pursuant to General Statutes § 52-278h. The trial court, DiPentima, J., granted the motion to the extent of the arbitrator’s award on December 19, 1996. Because the defendant’s counsel had filed a general appearance in the action, personal service of the motion and its accompanying documents on the defendant was not necessary in accordance with General Statutes § 52-278m. As part of the trial court’s order, the defendant was ordered to disclose assets sufficient to satisfy the prejudgment remedy within five days. The defendant failed to disclose assets within the time ordered, or ever. In early February, 1997, the plaintiff filed a motion to compel, seeking an order directing the defendant to disclose his assets. The trial court granted the motion to compel and awarded the plaintiff attorney’s fees. The defendant again failed to disclose his assets and did not pay the attorney’s fees.

By chance, the plaintiff saw a newspaper article concerning the defendant and his construction business. The defendant was building a house for Gary Shields pursuant to a contract. Although the trial court had ordered the defendant to disclose his assets, including any and all debts owing to the defendant, the defendant failed to disclose the existence of the Shields construction contract. Thereafter, on April 9, 1997, the plaintiff had a deputy sheriff serve a copy of the prejudgment order and direction for garnishment on Shields. When the deputy sheriff served the garnishment, he asked Shields the amount of money he owed the defendant, pursuant to General Statutes § 52-331. Shields told the deputy sheriff that he owed the defendant between $12,000 and $20,000. The deputy sheriff instructed Shields to hold those funds until he received further direction from the trial court. In response to the garnishment, the defendant executed a hold harmless letter indemnifying Shields from any liability imposed on Shields as a result of the garnishment or any violation of it. After the garnishment was served on Shields, the defendant incorporated his business as Carr Construction, Inc., and directed Shields to make all future payments to the corporation, despite the fact that Shields never signed a contract with the corporation.

The plaintiff filed another motion to compel. The trial couit held a hearing over a number of days. In the interim, the plaintiff filed a motion for contempt. The trial court, Gaffney, J., issued the following order on August 21, 1997: “Defendant, John Carr d/b/a Carr Homes is hereby ordered to refund $22,645 to garnishee Shields, to be held by Shields pending execution by plaintiff, Andrew Burnham. Payment to be made within seven days. If payment is not made, the court will entertain a motion for punitive damages. Attorney’s fees granted in the amount of $5436 (plus $840 once affidavit is submitted).”

The defendant did not comply with the August 21, 1997 order. Thereafter, a hearing was held on the plaintiffs motion for contempt and the trial court, Dunnell, J., issued the following order: “The defendant is found to be in contempt of the court’s order of August 21, 1997 (Gaffney, J.). The defendant has demonstrated no valid defense for failure to obey said orders. The defendant is ordered incarcerated. The defendant may be purged of his contempt upon his payment of $10,000 cash, and upon the execution of a promissory note in favor of the plaintiff in the amount of $18,120 payable within ninety days. Upon receipt of the $10,000, the clerk’s office shall turn said amount over to the plaintiffs attorney.” This appeal followed.

I

With respect to the defendant’s claims that his due process rights were violated by the plaintiffs filing a motion for a prejudgment remedy pursuant to § 52-278h, the defendant had seven days in which to file an appeal of the trial court’s order of December 19, 1996, granting the prejudgment remedy. See General Statutes § 52-2781 (b). The defendant filed his appeal on October 15, 1997, more than nine months after the order was granted. Therefore, those claims related to the prejudgment remedy, General Statutes § 52-278a et seq., are untimely and are hereby dismissed.

II

The defendant’s second claim is that the trial court improperly found him to be in contempt. This claim is totally without merit.

“This court’s role in reviewing an order of contempt is very limited. Adjudications of contempt are final and may be reviewed only on questions of jurisdiction such as whether the court had authority to impose the punishment inflicted or whether the act for which the penalty was imposed could constitute a contempt. Fox v. First Bank, 198 Conn. 34, 39, 501 A.2d 747 (1985); Friedlander v. Friedlander, 191 Conn. 81, 84, 463 A.2d 587 (1983).

“The penalties that may be imposed arise from the inherent common law power of the court to coerce compliance with its orders. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737, 444 A.2d 196 (1982). The court has power to fine one who has been found in contempt; Friedlander v. Friedlander, supra, [191 Conn. 86]; and to enforce compliance through appropriate sanctions. Blaydes v. Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982).” Tufano v. Tufano, 18 Conn. App. 119, 125, 556 A.2d 1036 (1989).

The facts of this case demonstrate that the defendant was indebted to the plaintiff for services provided and failed to pay the plaintiff pursuant to a contract that provided for attorney’s fees if the plaintiff had to resort to legal assistance. These facts were determined by an arbitrator and confirmed in a judgment by the trial court. That judgment was affirmed by this court and certification to appeal the affirmation was denied by our Supreme Court.

The plaintiff rightfully sought a prejudgment remedy when the defendant appealed from the trial court’s judgment. The defendant refused to disclose his assets and defied the court’s order compelling him to do so. By chance, the plaintiff discovered that the defendant was building a house for Shields. The moneys Shields owed the defendant were properly garnished. The defendant subverted the garnishment order by forming a corporation and directing Shields to pay the corporation in exchange for a hold harmless agreement. Although the Supreme Court denied certification in early July, 1997, the defendant persisted in refusing to pay over the money due the plaintiff until September, 1997, when the trial court found him to be in contempt of multiple court orders and incarcerated him until he paid his debt. The defendant’s blatant disregard of the plaintiffs rights and the authority of our judicial system will not be tolerated. We find all the other claims of the defendant are subsumed in the two issues discussed and without merit. We, therefore, decline further review.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant set forth the following claims in his brief: (1) whether failure to comply with the essential requirements of the Connecticutprejudgment remedy statute deprives a court of jurisdiction to schedule, hear or issue an application for a prejudgment remedy, (2) whether an application for a prejudgment remedy should be dismissed if the plaintiff fails to serve the defendant properly, (3) whether the Connecticut prejudgment remedy statute is unconstitutional as applied if it is used to deprive a nonparty of due process, (4) whether a direction for garnishment served by the plaintiffs attorney without a predeprivation hearing and without a showing of exigency violates the due process rights of the defendant and the nonparties against whom it is ultimately enforced, (5) whether the trial court improperly failed to hold a hearing on a motion to vacate, or to dismiss or to open and set aside and then sua sponte denied the motions and (6) whether a finding of civil contempt is improper when there has been no hearing, no evidence taken, no sworn testimony given, and where the court required nonparties to sign over assets to the plaintiff to allow the defendant to avoid jail time.

       See Burnham v. Carr, 45 Conn. App. 914, 694 A.2d 840 (1997).

       See Burnham v. Carr, 242 Conn. 906, 697 A.2d 687 (1997).

       General Statutes § 52-278h provides: “The provisions of this chapter shall apply to any application for prejudgment remedy filed by the plaintiff at any time after the institution of the action, and the forms and procedures provided therein shall be adapted accordingly.”

       General Statutes § 52-278m provides: “Whenever a prejudgment remedy is sought under the provision of sections 52-278h or 52-278Í against a party who has previously filed a general appearance in such action, personal service of any application or order upon such party shall not be required, unless ordered by the court, but any such application or order may be served in the same manner as any motion in such action.”

       General Statutes § 52-331 provides: “The officer serving process upon any person or corporation named as garnishee shall, at the time of service, make inquiry as to the amount then owed by such garnishee to the defendant in such action; and, if such garnishee thereupon discloses to such officer whether anything is then owed to such defendant, and if so how much, such officer shall then and there endorse such disclosure on such process as part of his return thereon; and such disclosure shall excuse such garnishee from appearing, unless thereafter summoned as a witness, before the court to which such process is returnable, and such court may, without further proof, find the fact to be as shown by such disclosure.”

       Furthermore, the defendant’s appeal of the judgment granting the plaintiffs application to confirm the arbitrator’s award was denied certification by our Supreme Court on July 3, 1997. When certification was denied, the judgment became final and the prejudgment remedy merged into that judgment. See Samrov v. Samrov, 6 Conn. App. 591, 506 A.2d 1077 (1986). The issue is moot as there is no effective relief that we can grant the defendant.


author: DALY, J.

text:
    MIDDLETOWN COMMERCIAL ASSOCIATES LIMITED PARTNERSHIP ET AL. v. CITY OF MIDDLETOWN ET AL.
    (AC 17078)
    O’Connell, C. J., and Lavery and Daly, Js.
    Argued December 11, 1998
    officially released May 25, 1999

      Thomas W. Witherington, with whom was Wesley W. Horton, for the appellant (plaintiff).

      Robert M. Barrack, with whom, on the brief, was Daniel P. Scapellati, for the appellees (defendants).
   Opinion

DALY, J.

This appeal arises from proceedings following our remand in Middletown Commercial Associates Ltd. Partnership v. Middletown, 42 Conn. App. 426, 680 A.2d 1350, cert. denied, 239 Conn. 939, 684 A.2d 711 (1996) (Middletown T). In Middletown I, we addressed issues related to whether the plaintiffs, then owners of the River View Shopping Center Mall (River View Center) in Middletown, had any rights in a 1965 parking agreement between the original mall developer and the city of Middletown. We reversed the judgment of the trial court, determining that the plaintiffs could, in fact, enforce the parking agreement as successors in interest to the original developer. We then remanded the case for further proceedings and directed the trial court to determine whether the city breached the parking agreement and, if so, the damages to which the plaintiffs were entitled. Additionally, we instructed the trial court on remand to address whether the defendants had breached the implied covenant of good faith and fair dealing. On remand, the trial court rendered judgment in favor of the defendants and this appeal followed. The plaintiffs now claim that the trial court improperly concluded that, for various reasons, the defendants did not (1) breach the parking agreement and (2) violate the duty of good faith and fair dealing implicit in all contractual agreements. We disagree and affirm the judgment of the trial court.

The underlying facts of the present case are set forth in Middletown I, supra, 42 Conn. App. 428-30, and do not warrant repetition here. Additional facts will be set forth as necessary for the resolution of this appeal.

I

The plaintiffs first claim that the trial court improperly concluded that the defendants did not breach the parking agreement. We disagree.

A

The plaintiffs contend that the interpretation of the parking agreement is a question of law, over which we must exercise plenary review. In addressing this issue in Middletown I, we determined that “[t]he parking agreement does not state how many spaces must be made available for the plaintiffs’ tenants and customers. The interpretation of a contract term that is not so clear as to render its inteipretation a matter of law is a question of fact, subject to the clearly erroneous standard of review.” (Internal quotation marks omitted.) Middletown I, supra, 42 Conn. App. 437. Accordingly, the plaintiffs’ first claim concerns a question of fact and is not subject to plenary review.

B

The plaintiffs next contend that our determination in Middletown I that the parking agreement did not guarantee the plaintiffs any particular number of parking spaces was mere dictum, which was not binding on the trial court. We disagree.

“[I]t is a well-recognized principle of law that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory upon the parties to the action and upon the trial court. Laurel, Inc. v. Commissioner of Transportation, 173 Conn. 220, 222, 377 A.2d 296 (1977); Gray v. Mossman, 91 Conn. 430, 434, 99 A. 1062 (1917); 5 Am. Jur. 2d, Appeal and Error § 744.” Dacey v. Connecticut Bar Assn., 184 Conn 21, 23, 441 A.2d 49 (1981). This principle, however, “applies only to those matters essential to the appellate court’s determination [and] not to mere dictum.” (Emphasis added.) Id., 24. Dictum includes those discussions that are “merely passing commentary”; id.; those that go “beyond the facts” at issue; Sharkiewicz v. Smith, 142 Conn. 410, 412, 114 A.2d 691 (1955); and those that are unnecessary to the holding in the case. Diamond National Corp. v. Dwelle, 164 Conn. 540, 544, 325 A.2d 259 (1973). As we have previously recognized, however, it is not dictum “when a court of [appeal] intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy . . . .” (Internal quotation marks omitted.) Zoning Commission v. Fairfield Resources Management, Inc., 41 Conn. App. 89, 109-10, 674 A.2d 1335 (1996). Rather, such action constitutes an “act of the court which it will thereafter recognize as a binding decision.” (Internal quotation marks omitted.) Id.

Our discussion in Middletown I concerning the parking agreement and our determination that the agreement required the defendants to make available to the plaintiffs a “reasonable number” of parking spaces consistent with their needs as opposed to a “particular number” of spaces; Middletown I, supra, 42 Conn. App. 436-38; was not merely passing commentary that was unnecessary to the holding of the case. Rather, this court could not determine whether the trial court’s determination that there was not a breach of the parking agreement was correct without first interpreting that agreement. Thus, the interpretation of the parking agreement was critical to an analysis of whether a breach occurred and, therefore, clearly was not dictum.

C

The plaintiffs next contend that the trial court improperly concluded that the defendants did not breach the parking agreement because the court applied an “unreasonable and illogical” standard to assess the plaintiffs’ reasonable parking needs. Specifically, the plaintiffs claim that the trial court used a flawed method of analysis that addressed the actual usage of the parking facility. They argue that the intent of the parking agreement was to provide them, as owners of the shopping center, with a fixed number of parking spaces (no fewer than 600) to meet their parking needs. They contend that their parking needs must be measured against the potential demand for parking that would be created by a fully leased property. We disagree.

“[T]he determination of the intent of the parties to a contract ... is a question of fact subject to review under the clearly erroneous standard.” Village Linc Corp. v. Children’s Store, Inc., 31 Conn. App. 652, 656, 626 A.2d 813 (1993). Here, the plaintiffs, in arguing that the parking agreement intended to provide the owner of River View Center with a particular number of parking spaces on the basis of a ratio of parking spaces to gross leasable area, are simply reasserting their interpretation of the intent of the parking agreement—to provide the plaintiffs with a fixed number of parking spaces, in an amount no fewer than 600. The intent of the parking agreement has already been determined by the trial court, however, and this court has already declined to reverse that determination.

D

The plaintiffs next claim that the trial court’s determination that the defendants did not breach the parking agreement was clearly erroneous. The plaintiffs claim is predicated on a determination that the trial court improperly considered actual usage in assessing the plaintiffs reasonable parking needs. For the reasons detailed in part IA of this opinion, this claim is without merit and we decline to address it further.

II

The plaintiffs finally claim that the trial court improperly concluded that the defendants did not breach the implied covenant of good faith and fair dealing under the parking agreement. We disagree.

“Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. Habetz v. Condon, 224 Conn. 231, 238, 618 A.2d 501 (1992).” (Internal quotation marks omitted.) Gupta v. New Britain General Hospital, 239 Conn. 574, 598, 687 A.2d 111 (1996). “Essentially it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended.” Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 567, 479 A.2d 781 (1984). Conversely, “[b]ad faith means more than mere negligence; it involves a dishonest purpose. [Habetz v. Condon, supra, 237.]” (Internal quotation marks omitted.) Gupta v. New Britain General Hospital, supra, 598.

We have already determined in Middletown I that the parking agreement reasonably could be interpreted to mean that the parties intended that the plaintiffs be provided only with a reasonable number of parking spaces consistent with their needs. Our direction to the trial court on remand, however, was to consider whether the parking garage itself provided the plaintiffs with a sufficient number of parking spaces pursuant to the parking agreement and not whether such parking was available to the plaintiffs in the areas surrounding the parking garage. Middletown I, supra, 42 Conn. App. 437-38. Our review of the record reveals that on remand the trial court properly considered only whether the parking garage itself provided the plaintiffs with sufficient parking spaces to meet their needs. Specifically, in its memorandum of decision the trial court found that “the city always provided a reasonable number of spaces consistent with the needs of the tenants . . . ,” Because we do not disturb the findings of a trial court absent a determination of clear error; Giordano v. Giordano 39 Conn. App. 183, 206, 664 A.2d 1136 (1995); we conclude that there was no injury done by the defendants to the plaintiffs’ right to receive the benefits of the agreement, which injury would be requisite to a breach of the implied covenant of good faith and fair dealing. As the plaintiffs received the benefits of the parking agreement to which they were entitled by law, we conclude that this claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The agreement provides in relevant part that “the city of Middletown shall provide a multilevel parking facility to accommodate not less than 600 cars.” We previously agreed with the trial court’s interpretation that the agreement required the city to “make available to the plaintiffs a reasonable number of spaces consistent with their needs.” Middletown Commercial Associates Ltd. Partnership v. Middletown, supra, 42 Conn. App. 438.

       As the trial court on remand properly found that there was no breach of the parking agreement, we need not address the issue of damages here.

       See footnote 1. Moreover, the parking agreement includes no reference to the concepts of either ratios or gross leasable area as a means of determining parking needs.

       See footnote 1 and our discussion in part I B of this opinion.

       The trial court also found, however, that the plaintiffs had presented insufficient evidence for the court to conclude that their parking requirements were not being reasonably met under the agreement. As the plaintiffs have not adequately briefed a challenge to this sufficiency determination, we will not address that issue on appeal. See Practice Book § 67-4; State v. Pompei, 52 Conn. App. 303, 309, 726 A.2d 644 (1999) (this court not required to review issues improperly presented through inadequate brief).


author: SULLIVAN, J.

text:
    COMMISSIONER OF PUBLIC WORKS v. CITY OF MIDDLETOWN ET AL.
    (AC 18141)
    Landau, Sullivan and Dupont, Js.

      Argued February 19
    officially released May 25, 1999

      Trina A. Solecki, city attorney, for the appellants (defendants).

      PaulK. Pemerewski, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (plaintiff).
   Opinion

SULLIVAN, J.

The defendants, the city of Middletown and its tax collector, appeal from the judgment rendered in favor of the plaintiff, the state commissioner of public works. The trial court found the property on which the Middletown courthouse was built to be tax exempt, discharged tax liens on the property as invalid and ordered their release. The defendants claim that the trial court (1) lacked subject matter jurisdiction to adjudicate the matter, (2) improperly determined that the subject property was tax exempt, (3) improperly found that the defendants’ first, second, third and fifth special defenses were irrelevant and failed to rule on their seventh special defense and (4) improperly determined that the statutes invoked by the plaintiff were constitutional. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On December 15, 1991, the plaintiff entered into a lease-purchase agreement with One Court Street, Inc. (developer), for the construction and use of a courthouse in Middletown. Certificates of participation, similar to a bond issue, provided the financing for the construction of the project. The holders of the certificates of participation were afterwards entitled to proportionate interests in the base rental payments made by the plaintiff. The lease agreement provides that, in addition to the rental payments, the plaintiff is responsible for all property taxes or assessments.

In 1993, the state legislature enacted General Statutes § 4b-46, which exempts from municipal property taxation any property that is subject to a long-term financing agreement entered into by the commissioner of public works. The defendants assessed taxes on the property for the grand lists of 1994, 1995 and 1996. The plaintiff paid none of those taxes. The defendants placed liens on the property for the grand lists of 1994 and 1995.

I

The defendants first claim that the trial court lacked subject matter jurisdiction over this action. Specifically, the defendant argues that the trial court improperly concluded that the plaintiff had standing to bring an action under General Statutes § 49-51, adjudicated the defendants’ tax liens invalid and ordered all of those tax liens discharged. We disagree.

A

Section 49-51 (a) authorizes an action for the discharge of an invalid lien by “[a]ny person having an interest in any real or personal property described in any certificate of lien, which lien is invalid but not discharged of record . . . .” “ ‘[W]here a statute or court rule sets prerequisites to suit by a particular plaintiff, a plaintiff not meeting the statutory criteria lacks standing and the court is said to lack jurisdiction over the case.’ ” Gill v. Diorio, 51 Conn. App. 140, 145, 720 A.2d 526 (1998). “Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. Steeneck v. University of Bridgeport, 235 Conn. 572, 579, 668 A.2d 688 (1995). Where a plaintiff lacks standing to sue, the court is without subject matter jurisdiction. Id., 580. Standing concerns the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute .... United Cable Television Services Corp. v. Dept. of Public Utility Control, 235 Conn. 334, 345, 663 A.2d 1011 (1995).” (Internal quotation marks omitted.) Gill v. Diorio, supra, 145.

The liened property is the subject of a lease-purchase agreement entered into by the plaintiff. Because § 4b-46 exempts from taxation property that is the subject of a long-term financing agreement entered into by the commissioner of public works, it follows that the plaintiff must necessarily have an “interest” sufficient to contest a tax lien on that very property by asserting protection under the statute. Courts must construe statutes in a manner that avoids absurd results. See State v. DeFrancesco, 235 Conn. 427, 437, 668 A.2d 348 (1995). It would be nonsensical to suggest that the legislature would exempt such a property from taxation under § 4b-46 while prohibiting the discharge of an invalid lien on such tax exempt property. We conclude that the trial court properly determined that the plaintiff had standing to bring this action.

B

The defendants next contend that the plaintiffs failure to prove that it had complied with the statutory notice requirements of § 49-51 divested the court of subject matter jurisdiction, and, therefore, that the court improperly adjudicated the liens invalid.

Section 49-51 allows a person seeking a discharge to “give written notice to the lienor sent to him at his last-known address by registered mail or by certified mail, postage prepaid, return receipt requested, to discharge the lien. ... If the lien is not discharged within thirty days of the notice, that person may apply to the Superior Court for such a discharge, and the court may adjudge the validity or invalidity of the lien . . . .”

“Not unlike the dissolution of an attachment, the discharge of a lien is a statutory proceeding .... The statute confers a definite jurisdiction upon a judge and it defines the conditions under which such relief may be given .... In such a situation jurisdiction is only acquired if the essential conditions prescribed by [the] statute are met. If they are not met, the lack of jurisdiction is [one] over the subject-matter and not over the parties. D’Andrea v. Rende, 123 Conn. 377, 380, 195 A. 741 (1937). The essential condition of an action under General Statutes 49-51 is written notice to the lienor sent to him at his last-known address by registered mail or by certified mail, postage prepaid, return receipt requested, to discharge the lien in the office where recorded.” (Internal quotation marks omitted.) Guil-ford Yacht Club Assn., Inc. v. Northeast Dredging, Inc., 192 Conn. 10, 13, 468 A.2d 1235 (1984).

The lienee normally bears the burden of establishing compliance with the notice requirement. Id. Nonetheless, where a lienee’s complaint alleges compliance and a lienor’s answer so admits, that answer constitutes a judicial admission, removes the issue from dispute and makes the lienee’s proof unnecessary. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199, 286 A.2d 308 (1971) (defendant’s admission in answer to allegation in complaint of due notice of intention to claim lien was judicial admission and made plaintiffs proof unnecessary).

The plaintiff alleged in paragraph six of its application for discharge that “[b]y letter dated March 7, 1996, the Applicant, in accordance with Conn. Gen. Stat. § 49-51, gave notice, by certified mail, to the defendants that the Lien was invalid and made demand that the defendants have the Lien discharged. . . .” Paragraph six of the defendants’ answer “denies so much of that portion of paragraph 6. that reads as follows: ‘that the lien was invalid’ and admits the remainder of the allegations contained in paragraph 6. of the plaintiffs Application.” By admitting the statutory compliance alleged in the application, the defendants made a judicial admission that removed that issue from dispute. The plaintiff did not need to make any further proof.

C

The defendants further claim that the trial court improperly discharged all of the hens on the subject property. The defendants argue that, because the plaintiffs application addressed only the lien for taxes on the 1994 grand list, the trial court had the authority under § 49-51 to discharge the lien only for the 1994 taxes. We disagree.

“Levying a tax on property exempt from taxation would be an illegal exaction.” Faith Center, Inc. v. Hartford, 192 Conn. 434, 437, 472 A.2d 16, cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984). In addition to the statutory procedure for the discharge of an invalid lien, courts have an equitable power to invalidate and discharge liens in special, limited instances. See Fourth New London NSB Quarters, Inc. v. Wyoming Valley Contractors, Inc., 22 Conn. Sup. 293, 296, 170 A.2d 737 (1961).

The trial court properly adjudged the property tax exempt after July 1, 1995, under § 4b-46. Because the property was tax exempt, the defendants could not levy a tax on the property, and the attempt to do so was an illegal exaction. It follows, therefore, that any lien placed on the property to enforce such an illegal exaction is invalid and subject to discharge. To allow such a lien to stand would fly in the face of logic and common sense. The adjudication of one of these liens involves the identical issues and the same considerations as would the adjudication of another. Therefore, in the interests of fairness and judicial economy, we will not require further proceedings for the discharge of other invalid liens.

II

The defendants next claim that the trial court improperly determined, as a matter of law, that the Middletown courthouse project was structured as a long-term financing agreement exempted from taxation under § 4b-46. The defendants argue that the agreement is merely a lease with an option to purchase that is not exempted by the statute. We disagree.

Section 4b-46 exempts from property taxation any property that is the subject of a long-term financing agreement entered into by the commissioner of public works. The resolution of this issue hinges on the determination of the nature of the plaintiffs agreement. Whether a particular arrangement constitutes a lease agreement or a long-term financing agreement depends on the entire circumstances and purpose of the instruments in question rather than the form or title given to a document. See E-Z Livin’ Mobile Sales, Inc. v. Van Zanen, 26 Ariz. App. 363, 548 P.2d 1175 (1976); Bolling v. Hawthorne Coal & Coke Co., 197 Va. 554, 90 S.E.2d 159 (1955). The understanding of the parties, the length of the lease term, the party made responsible for taxes and other assessments, and the amount required to exercise the “option” are relevant to this determination. See E-Z Livin’ Mobile Sales, Inc. v. Van Zanen, supra, 365.

Our examination of the structure of the project discloses that the arrangement was a long-term financing agreement. The lessee state issued certificates of participation, similar to a bond issue, the proceeds of which financed the lessor developer’s construction of the courthouse. The developer, which assigned its interest to State Street Bank & Trust Co., as trustee, would then lease the courthouse to the state with the base rental payments going to a trustee account held for the benefit of the investors who had purchased certificates of participation.

During the term of the lease, the state was responsible for all tax payments. Although the trustee held title during the term of the lease, title transfers to the state at the end of the lease term with the nominal payment of $100 and sixty days written notification by the state. The $100 dollar payment is certainly not reflective of value of the project, which would be the case in a typical option purchase. See id., 365; see also 7 P. Rohan, Current Leasing Law and Techniques (1998) § 4C.01[2], p. 4C-26 (option price typically reflects fair market value). The plaintiffs statement in its application for discharge, which stated that it possessed a leasehold interest and an option to purchase, is accurate, but in no way does it conflict with the conclusion that the project is also a long-term financing agreement. The lease is merely part of that larger agreement.

The legislative history of § 4b-46 further supports this interpretation of the agreement by specifically mentioning the applicability of the statute to the Middletown courthouse. The comments in the legislature indicate that the proponents of the legislation were aware of the Middletown courthouse project, considered it to be a long-term financing contract and specifically intended that it and similarly financed projects be exempted from municipal taxation. Because the arrangement was a long-term financing agreement, we conclude that the trial court properly applied § 4b-46.

Ill

The defendants next claim that the trial court improperly found as a matter of law that the defendants’ first, second, third and fifth special defenses were irrelevant and inapplicable to the facts of the case and did not address the seventh special defense. We disagree.

The first special defense asserts that § 4b-46 provides no relief for the plaintiff because there was no long-term financing agreement. For the reasons we discussed in part II of this opinion, we disagree with the defendants and conclude that the trial court properly determined that the first special defense is inapplicable here.

The second special defense alleges that the plaintiff is estopped from claiming tax exemption because, when the city conveyed a parcel of land for the project to the developer, it believed that that parcel would henceforth be fully taxable. The promissory estoppel argument fails for several reasons. As an element of estoppel, “the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief . . . (Internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn. App. 152, 162, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998). Even if we assume that some representations were made to the city, the plaintiff in this case was a third party to whatever understanding the developer and the city may have reached. “ ‘In addition, estoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency.’ Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 148, 527 A.2d 679 (1987). Finally, a claim for promissory estoppel will not lie against the state unless ‘the party claiming estoppel would be subjected to substantial loss if the public agency were permitted to negate the acts of its agents.’ Id.” Chotkowski v. State, 240 Conn. 246, 268-69, 690 A.2d 368 (1997).

The third special defense argues that the plaintiff cannot claim exemption pursuant to General Statutes § 12-81 (2). The plaintiff does not make such a claim. Section 4b-46 provides the basis for the plaintiffs claim of tax exemption. We, therefore, conclude that the trial court properly determined that the third special defense is inapplicable and irrelevant.

The fifth special defense argues that General Statutes § 12-111 statutorily bars the plaintiffs application for discharge as untimely. Because this action is not an appeal brought under § 12-111 but instead an action for discharge under § 49-51, we conclude that the trial court properly determined that the fifth special defense is irrelevant.

The seventh special defense was not specifically addressed by the trial court’s memorandum of decision. The defendants failed to move for articulation, and the posttrial brief alluded to by the defendants is nowhere in the record. We therefore conclude that the record is inadequate for review on this point.

IV

The defendants finally claim that the trial court improperly determined that § 4b-46 was lawfully enacted and constitutional. First, the defendants claim that the statute violates the prohibition on special privileges contained in article first, § 1, of the Connecticut constitution. Second, the defendants claim that the statute violates the takings clause of the state constitution. We disagree.

A

“Article first, § 1, of the Connecticut constitution provides that ‘no man or set of men are entitled to exclusive public emoluments or privileges from the community.’ A state statute is invalid under this clause only if it ‘directs the granting of an emolument or privilege to an individual or class without any purpose, expressed or apparent, to serve the public welfare thereby . . . .’ Warner v. Gabb, 139 Conn. 310, 313, 93 A.2d 487 (1952) . . . .” (Citations omitted.) Shelton v. Commissioner, 193 Conn. 506, 519, 479 A.2d 208 (1984). “[I]f enacted [to further a public purpose] legislation can be sustained even though it may incidentally confer a direct benefit upon an individual or a class.” State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 106, 90 A.2d 862 (1952).

Our Supreme Court has “taken a broad view of the legislative goals that may constitute a public purpose. . . . [A]n act serves a public purpose under article first, § 1, when it promote [s] the welfare of the state; Tough v. Ives, [162 Conn. 274, 292, 294 A.2d 67 (1972)]; or when the principal reason for the appropriation is to benefit the public. Roan v. Connecticut Industrial Building Commission, 150 Conn. 333, 339, 189 A.2d 399 [1963].” (Internal quotation marks omitted.) Beccia v. Waterbury, 192 Conn. 127, 134, 470 A.2d 1202 (1984).

Section 4b-46 serves a public purpose in that it benefits the taxpayers of Connecticut. Absent the tax exemption, the state would be liable for any municipal tax assessments against the property. Contrary to the defendant’s assertion, the relevant test is not whether a statute adversely affects some persons, such as the taxpayers of Middletown, but rather whether it promotes a public purpose more generally.

B

The defendants challenge the constitutionality of the statute under article first, § 11, of the state constitution. We decline to review that claim because it was not timely raised and because there is an insufficient record.

C

The defendants finally claim that the trial court improperly applied § 4b-46 retroactively rather than prospectively. We disagree.

Section 4b-46 provides in relevant part that “[o]n and after July 1, 1995, any property which is subject to an agreement entered into by the Commissioner of Public Works for the purchase of such property through a long-term financing contract shall be exempt from taxation by the municipality in which such property is located, during the term of such contract. ...”

Although we agree with the defendants that the plain language of the statute is dispositive, we conclude that the defendants’ reading of the statute is incorrect. The statute plainly exempts a class of property—property subject to a long-term financing agreement by the commissioner of public works—from municipal taxation on or after July 1, 1995. The statute specifically does not qualify that class of property by requiring that the agreement be entered into on or by July 1, 1995, as the defendants assert.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 4b-46 provides: “On and after .July 1,1995, any property which is subject to an agreement entered into by the Commissioner of Public Works for the purchase of such property through a long-term financing contract shall be exempt from taxation by the municipality in which such property is located, during the term of such contract. The assessed valuation of such property shall be included with the assessed valuation of state-owned land and buildings for purposes of determining the state grant in lieu of taxes under the provisions of section 12-19a.”

       General Statutes § 49-51 (a) provides: “Any person having an interest, in any real or personal property described in any certificate of lien, which lien is invalid but not discharged of record, may give written notice to the lienor sent to him at his last-known address by registered mail or by certified mail, postage prepaid, return receipt requested, to discharge the lien. Upon receipt of such notice, the lienor shall discharge the lien by sending a release sufficient under section 52-380d, by first class mail, postage prepaid, to the person requesting the discharge. If the lien is not discharged within thirty days of the notice, that person may apply to the Superior Court for such a discharge, and the court may adjudge the validity or invalidity of the lien and may award the plaintiff damages for the failure of the defendant to make discharge upon request. If the court is of the opinion that such certificate of lien was filed without just cause, it may allow, in its discretion, damages to any person aggrieved by such failure to discharge, at the rate of one hundred dollars for each week alter the expiration of such thirty days, but not exceeding in the whole the sum of five thousand dollars or an amount, equal to the loss sustained by such aggrieved person as a result of such failure to discharge the lien, which loss shall include, but not be limited to, a reasonable attorney’s fee, whichever is greater.”

       “Rep. [Richard T.] Mulready . . . This amendment has to do with certain properties that the state essentially enters into agreements for what amounts to as an installment sale, but a long term sale leaseback and it just provides that in those cases where there are agreements that are not already in effect, that the pilot payment will kick in after July, 1, 1995 so that these municipalities are not negatively impacted in the next two budget years.
      “Rep. [Richard O.] Belden . . . Thank you, Mr. Speaker. I rise to support this amendment. Since the state has now entered into a new approach on how to acquire some of the facilities through a long term purchase contract and this would essentially put the balance regarding taxes and tax payments correctly. Thank you.
      “Rep. Mulready . . . Through you, Mr. Speaker, under any circumstances, under any cases that fit under this bill, such as the Middletown Courthouse, the municipality would be able to collect its full tax for the next few years. Otherwise, under a normal type of pilot arrangement, they’d only be subject to the pilot for the next couple of years, so it benefits the municipalities that would—it would benefit those municipalities that have this type of arrangement.
      “Rep. [Claudia M.[ Powers . . . Through you, Mr. Speaker, then you’re saying this is a net positive gain for the town until 1995?
      “Rep. Mulready . . . Through you, Mr Speaker, yes, although I’m not aware of any other circumstances at the moment besides the Middletown Courthouse." (Emphasis added.) 36 H.R. Proc., Pt. 33, 1993 Sess., pp. 11,965-67.

       General Statutes § 12-81 provides in relevant part: “The following-described property shall be exempt from taxation ... (2) State property and reservation land. Property belonging to, or held in trust for, this state and reservation land held in trust by the state for an Indian tribe . . . .”

       The defendants offer nothing to support their claim of detriment to Middletown or its residents. There are, in fact, indications to the contrary. In the House debate, the proponents of the legislation stated that there would be no negative impact on the town. The statute itself provides for the state to make payments in lieu of taxes (PILOT). In response to a question at oral argument, the state indicated that the PILOT payment would be nearly equivalent to the tax assessment.

       The constitution of Connecticut, article first, § 11, provides: “The property of no person shall be taken for public use, without just compensation therefor.”

       The defendants concede that the issue was not raised at trial but claim that the issue was raised in a January 9, 1998 posttrial brief filed with the trial court before it issued its memorandum of decision. The record before us contains no such brief nor does the memorandum of decision allude to such a brief or to the issues allegedly raised therein.


text:
    JOSEPH MATTEO v. JORGE ALVAREZ ET AL.
    (AC 18177)
    Foti, Sehaller and Sullivan, Js.
    Argued February 18
    officially released May 25, 1999

      Audrey C. Kramer, assistant corporation counsel, for the appellant (intervening plaintiff).

      Stephen G. Murphy, Jr., with whom, on the brief, was Mark Milano, for the appellee (defendant Aetna Insurance Company.)
   Opinion

SULLIVAN, J.

The intervening plaintiff city of New Haven appeals the judgment of the trial court rendered following the granting of the motion to strike filed by the defendant Aetna Insurance Company (Aetna). The sole issue on appeal is whether General Statutes (Rev. to 1995) § 31-293, which authorizes an employer who has made workers’ compensation payments to an employee injured by a third party to take action to recover those payments from that third party, entitles an employer to make such a claim against any recovery an employee may be due under the uninsured motorist provision of the employer’s policy. We conclude that it does not.

The following relevant facts are undisputed. On August 22, 1995, the plaintiff, Joseph Matteo, was a passenger in a car owned by his employer, the city of New Haven water pollution control authority. Matteo was acting in the scope of his employment. The named defendant, Jorge Alvarez, injured Matteo when his car struck the car in which Matteo was riding. Matteo recovered workers’ compensation benefits for his medical expenses, permanent partial disability and lost wages.

Matteo brought an action against Alvarez; Matteo’s own uninsured motorist carrier, Liberty Mutual; and the city’s carrier, Aetna. After the city intervened pursuant to § 31-293, Aetna filed a motion to dismiss with respect to the city, which the trial court granted.

As previously stated, the sole issue on this appeal is whether the reach of § 31-293 extends to any amounts that an employee may receive from his employer’s uninsured motorist coverage. Although this issue is one of first impression, our Supreme Court has held in Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 698 A.2d 859 (1997), that any amounts that an employee may receive from his own uninsured motorist coverage are beyond the reach of § 31-293. Because the identity of the insured—whether employer or employee—does not affect the analysis of Dodd, we conclude that Dodd controls.

Section 31-293 (a) is a statutory grant of right that deviates from the common law and must therefore be strictly construed. Dodd v. Middlesex Mutual Assurance Co., supra, 242 Conn. 383. Our Supreme Court interprets the terms “third party” and “third person,” as used in the statute, as referring to the “actual tortfea-sor.” Id. “Section 31-293 (a), properly construed, applies only to third party tort actions between an injured party and a wrongdoer . . . .” Id., 388-89. The rationale is that, “as in an action in tort, the ultimate loss [should fall] upon the wrongdoer.” Id., 384.

The relationship between an injured employee and an uninsured motorist insurance carrier is not one of victim and surrogate tortfeasor but is a contractual one, and “the mere fact that the insurer’s obligation ... is measured by the damages caused by the tortfeasor does not, of itself, transform the insurer into a surrogate for the tortfeasor for the purposes of § 31-293 (a).” Id., 385. The insurer simply is not a “wrongdoer” in any sense of the statute.

Nothing in the Supreme Court’s analysis in Dodd relies on the fact that the employee rather than the employer is the insured. Instead, the rationale of the statute and the nature of the insurance policy as contractual are dispositive. We find that Dodd controls and conclude that the trial court properly relied on that case in granting Aetna’s motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 31-293 (a) provides in relevant part: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a third person other than the employer a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against the third person, but the injured employee may proceed at law against the third person to recover damages for the injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against the third person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. . .


text:
    BRUNSWICK SCHOOL, INC. v. GERHARD P. HUTTER
    (AC 17738)
    Spear, Sullivan and Daly, Js.

      Argued January 19
    officially released May 25, 1999

      Philip M. French, with whom, on the brief, was Ger-hard P. Hutter, pro se, for the appellant (defendant).

      W. I. Haslun II, with whom, on the brief, was Cristin L. Rothfuss, for the appellee (plaintiff).
   Opinion

DALY, J.

The defendant, Gerhard P. Hutter, appeals from a default judgment, rendered by the trial court, in favor of the plaintiff, Brunswick School, Inc. The defendant claims that the trial court improperly (1) rendered judgment in accordance with the attorney trial referee’s report and (2) awarded interest in violation of public policy, specifically General Statutes § 37-4, and (3) deprived the defendant of his right to “a day in court.” We affirm the judgment of the trial court in part and reverse it in part.

The following facts are relevant to the resolution of this appeal. The plaintiff commenced the present action by atwo count complaint, dated March 15,1996, alleging (1) breach of contract and (2) unjust enrichment in connection with the defendant’s alleged failure to pay to the plaintiff tuition and related expenses for his three sons who had been students at the plaintiff school during the 1993-94 academic year. The defendant filed an answer dated June 6, 1996, in which he did not deny any of the allegations, but left the plaintiff to its proof.

After the pleadings were closed, the trial court scheduled a settlement conference for September 24, 1996, at which the defendant failed to appear. A trial date was then scheduled for December 11, 1996. The trial court, Karazin, J., granted the defendant’s request for a continuance of the December 11, 1996 trial date because of the defendant’s alleged poor health and the case was continued to January 24,1997. The defendant failed to appear for trial on January 24, 1997, and the trial court, Ryan, J., rendered a default against him. Thereafter, an attorney trial referee conducted a hearing in damages. The attorney trial referee filed his report on January 29,1997, recommending that judgment enter in favor of the plaintiff on its breach of contract claim in the amount of $68,819.66, in addition to interest in the amount of $26.11 per day commencing January 31, 1997, if the defendant had failed to pay the entire amount of $68,819.66 by that date.

The defendant filed a motion to open the default and a motion objecting to the attorney trial referee’s report, dated February 5 and February 8, 1997, respectively. The trial court, D’Andrea, J., denied both motions on June 17,1997. On August 29,1997, the trial court, Lewis, J., rendered judgment in accordance with the attorney trial referee’s report, and the defendant filed a motion for reconsideration, dated September 16, 1997, which was denied by the court on October 6,1997. This appeal followed.

I

The defendant first claims that the trial court improperly (1) rendered judgment in accordance with the attorney trial referee’s report and (2) denied his motion for reconsideration. We address each of these claims in turn.

A

The defendant contends that after he failed to appear at trial on January 24, 1997, the trial court improperly rendered a default against him. Specifically, the defendant contends that the trial court should not have rendered a default against him because health problems had prevented him from appearing in court. Relying on that same reasoning, he also contends that the trial court improperly denied his motion to open the default and, thus, improperly rendered judgment in accordance with the attorney trial referee’s report. We disagree.

Pursuant to Practice Book § 17-19, a trial court has the authority to render a nonsuit or default against a party that fails to comply with a judicial order to appear either in person or by counsel. Furthermore, “[w]hen a case is regularly assigned for trial, the plaintiff appears with his witnesses, and the defendant fails to appear, no statute or rule of court prevents a trial court from proceeding forthwith to hear the case.” New England Floor Covering Co. v. Architectural Interiors, Inc., 159 Conn. 352, 356, 269 A.2d 267 (1970).

Additionally, “[t]he decision to grant or deny amotion to open a judgment is within the trial court’s discretion and this decision will not be disturbed on appeal unless it was unreasonable and a clear abuse of discretion. [Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn. App. 634, 640, 626 A.2d 804 (1993)].” (Internal quotation marks omitted.) Charbonneau v. Charbonneau, 51 Conn. App. 311, 313, 721 A.2d 565 (1998), cert. denied, 247 Conn. 964, 724 A.2d 1125 (1999). “In determining whether the trial court abused its discretion, [we] must make every reasonable presumption in favor of its action. Walton v. New Hartford, 223 Conn. 155, 169, 612 A.2d 1153 (1992).” Charbonneau v. Charbonneau, supra, 313.

In the present case, we are asked to decide whether the trial court abused its discretion in both rendering a default against the defendant for failing to appear at trial on January 24, 1997, and denying his motion to open the default. At various times throughout the proceedings, several trial courts reviewed the defendant’s stated reason of poor health as the basis for his request for a continuance, failure to appear at trial and motion to set aside the default entered against him.

The trial court, Karazin, J., considered the defendant’s alleged poor health as the basis for his request for a continuance and granted the request on December 11, 1996. On January 24, 1997, however, the trial court, Ryan, J., rendered a default against the defendant for failure to appear at trial. Our review of the record reveals that the defendant wrote a letter to the trial court, Karazin, J., which was filed on January 24,1997, the day of trial, indicating that he was requesting another continuance to “bring his medical condition under control.” Significantly, however, the defendant had been diagnosed with hypertension three weeks prior to January 24, 1997, the date of trial, but he did not inform the trial court of his continuing ill health until the day of trial.

Finally, on June 17, 1997, the trial court, D’Andrea, J., denied the defendant’s request to open the default. Practice Book § 17-42 provides that “[a] motion to set aside a default where no judgment has been rendered may be granted by the judicial authority for good cause shown upon such terms as it may impose. . . .” (Emphasis added.) In its February 20,1998 articulation, the trial court, Lewis, J., noted that the defendant had provided outdated medical documentation in support of his motion to open the default, including a hospital record of admission on October 6, 1996, three months prior to the trial, and a letter from a physician indicating that the defendant had hypertension. In articulating its basis for denying the defendant’s motion for reconsideration, the trial court found it significant that the defendant did not provide any reference to a more current report from a physician. In making “every reasonable presumption in favor of [the court’s] action”; Walton v. New Hartford, supra, 223 Conn. 169; we conclude that the trial court did not abuse its discretion in rendering the default against the defendant and in denying the defendant’s motion to open the default.

B

The defendant next contends that the trial court improperly denied his motion for reconsideration. We agree.

The trial court’s February 20, 1998 response to the defendant’s motion for articulation stated: “The [attorney trial referee] found as a fact that the defendant’s three sons attended the plaintiff, the Brunswick School . . . during the academic years 1992-1993 and 1993-1994, and had incurred expenses for tuition and related expenses totaling $59,288.96. This amount was for three sons over the course of two years. The referee also added interest of $9347.38 from February 1, 1996, to the date of trial at the rate of 16.075 [percent] per year as authorized by the contract between the parties. . . . The referee’s recommendation that judgment should enter in favor of the plaintiff for $68,819.66, plus per diem interest of $26.11 . . . followed legally and logically from his factual findings. There was no basis for the [trial] court to ‘reconsider’ the entiy of judgment as requested by the defendant.”

Practice Book § 60-5 provides in relevant part that “[this] court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . . The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

In the present case, the attorney trial referee’s findings and recommendation that judgment enter for the plaintiff for tuition, related expenses and interest for two years conflicts with the allegations in the plaintiffs complaint, which seek recovery for only one year, 1993-94. The plaintiff seeks to enforce three enrollment agreements between the parties, each of which provides for payment terms regarding tuition and related expenses for each of the defendant’s three sons for the 1993-94 academic year. Pursuant to each agreement, charges that remained unpaid after thirty days would “incur a penalty of 1-1/4 percent per month (15 percent annual rate),” not the 16.075 percent annual rate found by the attorney trial referee and recommended in his report.

“A plaintiffs right to recover has traditionally been based on the allegations made in his complaint. A plaintiff may not allege one cause of action and recover upon another. . . . While this principle still remains in force today, courts now follow a more liberal policy in passing on claims of variance between the pleadings and the proof offered. ... A court will overlook a variance between the pleadings and proof unless that variance is so material as to prejudice the other party in the presentation of its case. Practice Book § 178 [now § 10-62] . . . .” (Citations omitted; internal quotation marks omitted.) Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 359-60, 525 A.2d 57, following remand, 205 Conn. 479, 533 A.2d 1211 (1987).

Our review of the record reveals that the variance in the amount of damages between those alleged in the complaint and those recommended in the attorney trial referee’s report was so material as to prejudice the defendant. We conclude, therefore, that the attorney trial referee’s findings of fact and recommendations concerning the amount of damages to be awarded was improper. The trial court thus improperly rendered judgment in accordance with those findings and recommendations. Accordingly, we remand the case to the trial court for reconsideration of the issue of damages.

II

The defendant next claims that the trial court’s award of interest as an element of damages violates public policy and, specifically, General Statutes § 37-4. We disagree.

In making this claim, the defendant contends that § 37-4 and public policy together provide that loans at a rate greater than 12 percent are prohibited, except for those loans made by pawnbrokers as provided for by statute. In relying on that statute, the defendant characterizes the plaintiffs delay in collecting the unpaid account balance as a loan of the tuition money for the period of time that the balance remained unpaid. The defendant’s reliance on § 37-4 is misplaced, however, and his characterization of the transaction in this case as a loan is misguided.

In Stelco Industries, Inc. v. Zander, 3 Conn. App. 306, 487 A.2d 574 (1985), we rejected the defendant’s assertions that § 37-4 applied to credit sales transactions. Specifically, the defendant in Stelco Industries, Inc., argued that the terms of a credit agreement that provided for the accrual of finance charges on amounts outstanding over thirty days after their payment due date at an annual percentage rate of 18 percent were subject to § 37-4. Id., 307-308. The defendant in Stelco Industries, Inc., contended that “since the plaintiff is seeking interest in excess of 12 percent per annum on the amount due it on the sales price for goods sold and delivered, which was unpaid for more than thirty days after delivery, the interest ... is for the forbearance of the debt created by their delivery and acceptance.” Id., 308. We noted, however, that the “indebtedness to the plaintiff arose out of credit sales transactions, and not out of the loan of money . . . .’’Id. (Emphasis added.) Moreover, we adopted the rationale that “[b]oth the judicial and legislative treatment of debts arising from the sale of goods on credit clearly indicate that Connecticut adheres to the . . . [view] that sales on credit are not equated with loans and that the prohibition of usurious interest applies only to loans of money. Although Connecticut’s legislature has enacted a great amount of legislation to regulate the interest charges made by sellers of goods to consumers, it has not amended . . . [the] statute prohibiting usurious interest charges on the loan of money. . . . [F]or this court to decide that the prohibition of Connecticut’s usury statute should extend to debts arising out of other kinds of transactions than from a loan of money would be presumptuous.” (Emphasis added; internal quotation marks omitted.) Id., 309, quoting Scientific Products v. Cyto Medical Laboratory, Inc., 457 F. Sup. 1373, 1380 (D. Conn. 1978).

Here, the defendant’s indebtedness to the plaintiff arose from the purchase of educational and related services, not from a loan of money. Moreover, the defendant’s argument that the plaintiffs delay in collecting the unpaid tuition balance constituted a loan is analogous to the argument advanced by the defendant in Stelco Industries, Inc., that was rejected by this court. Accordingly, we conclude that the interest awarded by the trial court as an element of damages did not violate § 37-4.

Ill

The defendant finally claims that by rendering a default against him, the trial court improperly deprived him of his right to a “day in court.” We disagree for the reasons set forth in part I A of this opinion and we conclude that the trial court did not deprive the defendant of his day in court.

The judgment is reversed only with respect to damages and the case is remanded for further proceedings to reconsider the amount of damages and to apply the contract rate of interest, 15 percent per annum.

In this opinion the other judges concurred.

       The defendant, appeared pro se at all times and in all proceedings mentioned.

       Prior to the settlement conference, the trial court had sent, notice to the parties indicating (1) the date of the conference, (2) that appearance was mandatory under penalty of default or dismissal and an immediate hearing in damages and (3) that a trial date would be selected at the settlement conference.

       In granting the defendant's request for a continuance, the trial court notified the parties that (1) the new date was final, (2) no further continuances would be granted and (3) failure to appear would result in an entry of dismissal or default and an immediate hearing in damages.

         The report also recommended that judgment enter in favor of the plaintiff on its unjust enrichment claim in the amount of $1.

       Subsequent to filing this appeal, the defendant filed a motion for articulation requesting that the trial court articulate and clarify the basis for its rulings and orders. The trial court filed an articulation dated February 20, 1998.

       Practice Book § 17-19 provides: “If a party fails to comply with an order of a judicial authority or a citation to appear or fails without proper excuse to appear in person or by counsel for trial, the party may be nonsuited or defaulted by the judicial authority.”

       We note that in denying the defendant’s motion for reconsideration, the trial court, Lewis, J., indicated that the motion was denied because the defendant did not file either a motion to correct, exceptions or objections to the attorney trial referee’s report. The record, however, indicates that the defendant did, in fact, file an objection to the attorney trial referee’s report. It is, thus, unclear whether the trial court actually considered the defendant’s objection in denying his motion for reconsideration because the court’s response to the defendant’s motion for articulation and its order rendering judgment accordingly conflict on this point We need not, however, address this issue further because the defendant’s only claim is that the amount of damages is improper and we are ordering a reconsideration of the damages.

       We note that while 1-1/4 percent per month may equal an annual percentage rate of 16.075 percent, because the agreements are ambiguous in stating both a monthly and an annual rate, we resolve the ambiguity in favor of the lower rate because the plaintiff drafted the agreements. See Imperial Casualty & Indemnity Co. v. State, 246 Conn. 313, 329, 714 A.2d 1230 (1998) (general rule that ambiguous provisions construed against drafter).

       We note that the defendant has not briefed the public policy aspect of this claim. The defendant asserts that the plaintiffs claim for interest violates public policy and General Statutes § 37-4 but addresses only the applicability of the statute. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citation omitted; internal quotation marks omitted.). Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 586, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). We therefore review this claim only as to whether the interest awarded violates General Statutes § 37-4.

       General Statutes § 37-4 provides: “No person and no firm or corporation or agent thereof, other than a pawnbroker as provided in section 21-44, shall, as guarantor or otherwise, directly or indirectly, loan money to any person and, directly or indirectly, charge, demand, accept or make any agreement to receive therefor interest at a rate greater than twelve per cent per annum.”


text:
    JUDITH SANDVIG ET AL. v. A. DEBREUIL AND SONS, INC.
    (AC 17555)
    O’Connell, C. J., and Landau and Daly, Js.
    Argued November 30, 1998
    officially released May 25, 1999

      Donald R. Beebe, with whom was Susan B. Carr, for the appellants (plaintiffs).

      Michael S. Burvell, with whom, on the brief, was Ruth A. Tower, for the appellee (defendant).
   Opinion

DALY, J.

The plaintiffs, Judith Sandvig and Karl Sand-vig, appeal from the trial court’s judgment dismissing their complaint against the defendant, A. Debreuil & Sons, Inc. The court based its dismissal on the prior pending action doctrine. On appeal, the issues are whether the trial court improperly (1) applied the prior pending action doctrine, (2) dismissed the present contract action instead of consolidating it with the prior negligence action, (3) found that the bankruptcy action did not toll the statute of limitations for the new causes of action previously dismissed by the trial court and (4) failed to apply the effect of the third relief from stay in bankruptcy. We affirm the judgment.

The following background and procedural history are relevant to the resolution of this appeal. The plaintiffs commenced their prior action by complaint alleging negligence dated September 24, 1993, for injuries and damages that Judith Sandvig allegedly sustained in a fall that occurred in September, 1991, during the course of her employment as a teacher’s aide for the Jennings School in New London.

The plaintiffs’ original negligence complaint alleged injuries and damages due to the defendant’s negligence in performing renovations at the Jennings School. By requests dated January 10 and March 7, 1997, the plaintiffs sought to amend the negligence complaint to include two additional counts—breach of contract and res ipsa loquitur. The trial court denied both of those requests.

In its April 30,1997 memorandum of decision, the trial court held that the plaintiffs’ proposed amendments to their negligence complaint constituted new causes of action, which were barred by the applicable statute of limitations. The plaintiffs have challenged that determination in a separate appeal.

By complaint dated April 15,1997, the plaintiffs commenced a second action alleging breach of contract, which is the subject of the present appeal. On May 15, 1997, the plaintiffs filed a motion to consolidate the contract and negligence actions. The trial court denied that motion on May 27, 1997.

On June 12, 1997, the defendant filed a motion to dismiss the contract action, relying on the prior pending action doctrine and arguing that the allegations that the plaintiffs raised in their contract action were virtually identical to those that the trial court had denied them leave to add to the prior pending negligence action. On June 20 and July 10, 1997, the plaintiffs filed amendments as of right to the contract action. On July 21, 1997, the trial court granted the defendant’s motion to dismiss the contract action on the basis of the prior pending action doctrine. The plaintiffs now appeal from that decision.

The dispositive issue on appeal, therefore, is whether the prior pending action doctrine was properly applied by the trial court. The plaintiffs claim that the trial court improperly applied the prior pending action doctrine in dismissing their contract action. We disagree.

“The prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction. . . . Halpern v. Board of Education, 196 Conn. 647, 652-53, 495 A.2d 264 (1985). We must examine the pleadings to ascertain whether the actions are virtually alike-, id., 653; and whether they are brought to adjudicate the same underlying rights. Id., 655; Beaudoin v. Town Oil Co., 207 Conn. 575, 584, 542 A.2d 1124 (1988).” (Emphasis added; internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998).

As is the case here, the court in Beaudoin evaluated whether the prior pending action doctrine should apply as between two causes of action that appeared to allege separate actions because the theories of liability did not contain identical language in the respective allegations. The Beaudoin court determined that “ [o]n closer examination, however, the pleadings in each case request the same relief on the same underlying facts. The only difference is the precise wording of the theories of liability under which the defendant would be liable to the plaintiff . . . .” Beaudoin v. Town Oil Co., supra, 207 Conn. 587. The court further stated that “[t]he variations in the allegations of the theories of liability are merely different ways to characterize how the defendant’s actions resulted in liability to the plaintiff. The modern trend, which is followed in Connecticut, is to construe ‘pleadings broadly and realistically, rather than narrowly and technically.’ ” Id., 587-88.

Here, the plaintiffs’ negligence and contract actions requested relief based on injuries and damages allegedly sustained by the plaintiffs as a result of a defective condition for which the defendant was allegedly responsible. The plaintiffs seek money damages and other equitable relief in both actions, and both requests for relief are based on the same facts.

Because our review of the record reveals that the pleadings in the contract action are virtually identical to those raised by the complaint in the plaintiffs’ negligence action, we conclude that the trial court properly applied the prior pending action doctrine in dismissing the contract action.

The judgment is affirmed.

In this opinion the other judges concurred.

       Our review of the record reveals that, at the time the trial court, dismissed the plaintiffs’ contract action, the plaintiffs had already filed an intent to appeal from the trial court’s judgment in their prior negligence action, which was based on the same underlying facts as the contract action.

       The plaintiffs’ brief does not conform to the requirements of the rules of practice. Specifically, the brief lists a statement of fourteen “issues,” many of which are merely principles or statements of law.
      Practice Book § 67-4 provides in relevant part:
      “The appellant’s brief shall contain the following:
      “(a) A concise statement setting forth . . . the principal issue or issues involved in the appeal . . . .”
      “ ‘We are not required to review issues that have been improperly presented to this court through an inadequate brief. Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997).’ ” Raymond v. Rock Acquisition Ltd. Partnership, 50 Conn. App. 411, 420, 717 A.2d 824 (1998).

       The plaintiff Karl Sandvig brought a loss consortium claim within his wife’s complaint.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       Because we affirm the dispositive action of the trial court, we decline to review the plaintiffs’ other claims.