author: Callahan, J. Borden, J.,

text:
    River Dock and Pile, Inc. v. O and G Industries, Inc., et al.
    (14222)
    Peters, C. J., Callahan, Glass, Borden and F. X. Hennessy, Js.
    Argued March 19
    decision released July 30, 1991

      Robert L. Trowbridge, for the appellant (named defendant).

      Charles A. Sherwood, for the appellee (plaintiff).
   Callahan, J.

The principal issue in this appeal is whether certain documents offered into evidence by the plaintiff were admissible under the business records exception to the hearsay rule, as set forth in General Statutes § 52-180. The trial court concluded that the requirements of § 52-180 had been satisfied and admitted the documents. The named defendant seeks a new trial on the ground that the documents in question should not have been admitted.

The facts relevant to this appeal are largely undisputed. The named defendant, O and G Industries, Inc., was the general contractor for the renovation of Union Station in New Haven, which is owned by the New Haven Parking Authority (NHPA). On August 25, 1983, the named defendant entered into a subcontract with the plaintiff, River Dock and Pile, Inc., in which the plaintiff agreed to provide all the labor, material and equipment necessary to design and install piling and a sheeting system required for the construction of platforms A and D and a passenger tunnel leading from the railroad station to the platforms. The contract provided that the plaintiff would receive $476,000 for performing this work. On April 15, 1985, the roof of one of the platforms and some of the catenary wires that provide electricity for the trains were damaged as a result of an accident involving the plaintiffs crane, which was being used for pile driving. The parties dispute whether, at this point, the named defendant wrongfully terminated the contract or whether the plaintiff simply refused to perform any more work under the contract. The named defendant subsequently hired another subcontractor to complete the work that the plaintiff originally had agreed to perform.

On May 13, 1986, the plaintiff filed this action, alleging that the named defendant had wrongfully terminated the contract before the plaintiff had the opportunity to complete performance. The plaintiff sought to recover damages in the amount of $72,063 for work for which it had not been paid, $33,200 resulting from cost increases caused by a delay in the date on which the plaintiff was able to commence performance of its contract, and $29,672 for lost profit, as well as interest. In its special defenses, the defendant claimed that: (1) the plaintiff had been paid in full for all the work that it had performed; and (2) the plaintiff had breached the contract. In addition, the defendant filed a counterclaim in two counts in which it alleged that: (1) the plaintiff had breached the contract by not complying with standard safety practices, by failing to staff the job properly and by not complying with contractual requirements, and that the plaintiffs breach of contract had caused the defendant to suffer damages because of downtime, additional supervision costs, and additional costs related to completion of the work and to property damage at the construction site caused by the crane accident; and (2) as a result of the plaintiffs negligence in connection with the crane accident, the defendant had been forced to repair its damaged property, repair damage at the job site, reimburse the NHPA and other parties for damage and incur costs related to downtime and delay. The defendant withdrew the negligence count of its counterclaim after its negligence claim was settled at the beginning of the trial.

The jury returned a verdict in favor of the plaintiff on its principal claim and awarded damages in the amount of $105,263 as well as interest in the amount of $40,566.24. The jury awarded the defendant damages of $6500 on its counterclaim. After the trial court denied its motions to set aside the verdict, the defendant appealed to the Appellate Court. We transferred the matter to this court pursuant to Practice Book § 4023.

In its appeal, the defendant claims that the trial court improperly: (1) admitted a series of documents under the business records exception to the hearsay rule; (2) admitted the contract between the parties although the plans and specifications, which allegedly were an integral part of that contract, were not included in the offer of admission; (3) denied its motion in limine to limit the testimony of the plaintiffs chief witness on the grounds that, at the deposition of that witness, no documentation was produced to support the calculation of the damage claims nor was the witness able to provide any support for those claims; and (4) denied the defendant’s attempt to prove that the named defendant was a dissolved corporation and, therefore, according to the defendant, did not have standing to sue. The plaintiff, on the other hand, contends that the trial court improperly denied its motion in limine to preclude the defendant from introducing any evidence concerning the damages caused by the accident involving the plaintiff’s crane. Because we hold that the trial court improperly admitted a document under the business records exception in § 52-180, and the defendant was prejudiced by the admission of that document, we conclude that a new trial is necessary.

I

The series of documents that the defendant claims were improperly admitted as business records concerned negotiations between the defendant and the NHPA over the resolution of two separate “delay claims” arising from the renovation of Union Station. The delay claims represented amounts that the defendant sought to recover from the NHPA to compensate it for increased construction costs arising from delays in the timetable of its work for which the defendant contends that it was not responsible.

The first delay claim involved the period from May 19, 1985, to November 30, 1986. It concerned work that was done on platform D and the main building. The plaintiff performed work on platform D during this period and, therefore, the defendant’s first delay claim included amounts related to delay costs incurred by the plaintiff. Greiner Engineering Sciences (Greiner) served as construction manager on the Union Station renovation for the NHPA during the period involved in the first delay claim. Greiner’s duties included inspecting the renovation work to verify that it conformed to the contract requirements and reviewing requisitions submitted by the named defendant. In addition, at the request of the NHPA, Greiner assisted the NHPA in evaluating the first delay claim submitted by the defendant.

The second delay claim involved delay costs related to the completion of work remaining on April 3,1987. As of that date, the plaintiff had ceased all work on the site, and therefore the defendant’s second delay claim did not involve work actually performed by the plaintiff. Hill International, Inc., served as construction manager for the NHPA for the period relevant to the second delay claim and therefore assisted the NHPA in negotiating the settlement of that claim of the defendant.

Before examining each of the documents that the defendant alleges were improperly admitted, it is necessary to review the general principles that govern the admissibility of business records. To admit evidence under the business record exception to the hearsay rule, “a trial court judge must find that the record satisfies each of the three conditions set forth in General Statutes § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter. See generally Hutchinson v. Plante, 175 Conn. 1, 4, 392 A.2d 488 (1978); Szela v. Johnson Motor Lines, Inc., 145 Conn. 714, 723, 146 A.2d 910 (1958). Once these criteria have been met by the party seeking to introduce the record, however, it does not necessarily follow that the record itself is generally admissible, nor does it mean that everything in it is required to be admitted into evidence. Hutchinson v. Plante, supra; Mucci v. LeMonte, 157 Conn. 566, 569, 254 A.2d 879 (1969); Maggi v. Mendillo, 147 Conn. 663, 667, 165 A.2d 603 (1960). For example, the information contained in the record must be relevant to the issues being tried. See Maggi v. Mendillo, supra. In addition, the information contained in the report must be based on the ‘entrant’s own observation or on information of others whose business duty it was to transmit it to the entrant .’Mucci v. LeMonte, supra. If the information does not have such a basis, it adds another level of hearsay to the report which necessitates a separate exception to the hearsay rule in order to justify its admission. Hutchinson v. Plante, supra, 5.” Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 383-85, 461 A.2d 422 (1983); Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 485-86, 586 A.2d 1157 (1991).

The witness whose testimony provides the foundation for the admission of a business record must testify to the three statutory requirements, but it is not necessary that the record sought to be admitted was made by that witness or even that the witness have been employed by the business at the time the record was made. State v. Damon, 214 Conn. 146, 157, 570 A.2d 700, cert. denied, U.S. , 111 S. Ct. 65, 112 L. Ed. 2d 40 (1990); Baumert-Moran Sales Co. v. Red Bird Truck Rental Corporation, 149 Conn. 42, 45, 175 A.2d 189 (1961). Section 52-180 does not require that a business record be prepared by an organization itself in order to be admissible as a business record of that organization. State v. Wilson-Bey, 21 Conn. App. 162, 168-69, 572 A.2d 372, cert. denied, 215 Conn. 806, 576 A.2d 537 (1990); Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468, 475, 531 A.2d 177 (1987). If, however, the organization does not prepare the document itself, then the entrant must have a duty to that organization to prepare the record in order for it to be admissible under § 52-180. See State v. Sharpe, 195 Conn. 651, 663, 491 A.2d 345 (1985); Mueci v. LeMonte, supra.

Section 52-180 should be liberally construed. Jefferson Garden Associates v. Greene, 202 Conn. 128, 141, 520 A.2d 173 (1987); Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., supra, 390. Appellate review of the admission of a document under § 52-180 is limited to determining whether the trial court abused its discretion. Jefferson Garden Associates v. Greene, supra.

Exhibit OO

Exhibit OO is a critical analysis of the defendant’s first delay claim. This document was prepared by Greiner, NHPA’s construction manager at the time, at the request of the NHPA in order to assist it in negotiating the settlement of the defendant’s claim. The exhibit includes an evaluation of the claims submitted by the plaintiff as well as claims submitted by numerous other subcontractors who have no connection to this case. Michael Robinson, a construction inspector who began working for the NHPA in October of 1988, testified that the exhibit was a copy of the original, which was kept in the NHPA’s files, and that the document was prepared in the ordinary course of business of the NHPA. Robinson did not testify as to whether it was in the regular course of the NHPA’s business to make such a record or whether the record was made at or within a reasonable time of the act described in the exhibit.

The plaintiff sought to introduce Greiner’s report into evidence in order to show Greiner’s analysis of its delay claim and for use during the testimony of the director of the NHPA and of Albert Landino, an employee of Greiner. The defendant objected to the admission of this exhibit on the grounds that: (1) there was insufficient testimony to support the conclusion that the three requirements of § 52-180 were satisfied; (2) the bulk of the information in the exhibit was irrelevant to this case; (3) the exhibit included several prejudicial references to the defendant; and (4) the exhibit contained opinion and analysis not subject to cross-examination and therefore it was not properly admissible under the business records exception.

With respect to the defendant’s first ground for objection, we note that there was no testimony as to whether it was the regular course of business to make such a record or whether the record was made at or near the time of the act described in the report. A brief examination of the document indicates that the latter requirement was satisfied by notations in the document itself, but we find nothing in the testimony of Robinson to indicate that it was in the regular course of business of the NHPA to prepare such a record. Although § 52-180 is to be liberally construed, we cannot allow any of the three statutory requirements for the admission of business records to be ignored completely. McCahill v. Town & Country Associates, Ltd., 185 Conn. 37, 40, 440 A.2d 801 (1981); Weller v. Fish Transport Co., 123 Conn. 49, 60, 192 A. 317 (1937); cf. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., supra, 388-89 (inability of witness to testify to the exact time a record was made did not render the record inadmissible because the witness stated that the report was completed at or near the time of the incident). We, therefore, conclude that the trial court improperly admitted exhibit OO as a business record. Because that report includes a statement that the plaintiff’s delay claim “is justified,” we cannot conclude that its admission constituted harmless error and therefore a new trial is necessary.

It is possible that on retrial the plaintiff may be able to provide sufficient testimony to demonstrate that exhibit OO satisfies the requirements set forth in § 52-180. We shall therefore address the other issues raised by the defendant concerning this exhibit because they are likely to arise again during the retrial.

We agree with the defendant’s contention that the bulk of the information in the exhibit, which is over 160 pages, is irrelevant to the plaintiff’s claim and was likely to have confused the jury. If on a retrial the trial court concludes that the exhibit is admissible under § 52-180, the court should admit only the portions of that report that summarize its purpose, namely, the cover letters and the introduction, and any pages that include references to the portion of the delay claim related to the work performed by the plaintiff. The analysis and documentation concerning work wholly unrelated to this case should not be admitted.

The defendant contends that it was prejudiced not only by the references in the report to the plaintiff’s delay claim as being “justified,” but also by statements in the report that the submission to the NHPA by the defendant of its subcontractors’ claims indicates that the defendant accepted those claims. It also claimed it was prejudiced by references to the defendant’s own delay claim as being overstated and unsupported by documentation. Assuming that on retrial the exhibit is qualified as a business record under § 52-180, the trial court must decide whether some or all of those references should be redacted. In making this determination, the factors to be considered by the trial court include, but are not limited to, the relevance of the statements to the issues in this case and their effect upon the jury. State v. Higgins, 201 Conn. 462, 469, 518 A.2d 631 (1986); State v. Periere, 186 Conn. 599, 608-609, 442 A.2d 1345 (1982).

The defendant also claims that the type of analysis contained in exhibit OO is equivalent to expert testimony and therefore the exhibit is not the type of record eligible for admission under § 52-180. Moreover, the defendant contends that, as a result of the admission of the exhibit, it was deprived of an opportunity to challenge through cross-examination the expert opinion included within that document. The defendant’s argument mischaracterizes the nature of the business records exception. The type of analysis contained in exhibit 00 lies somewhere on the continuum between fact and opinion. Even if it can be in part characterized as an opinion, that characterization does not automatically render it inadmissible under § 52-180. An opinion included within an otherwise admissible business record is admissible if the entrant would be qualified to give that opinion in oral testimony. Mucci v. LeMonte, supra, 569-70; D’Amato v. Johnson, 140 Conn. 54, 58, 97 A.2d 893 (1953); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 11.14.8. On remand, therefore, if the plaintiff is able to prove that exhibit 00 satisfies the three requirements of § 52-180, the trial court must consider this subsidiary issue relating to the admission of opinions included within business records.

Because some of the questions raised by the defendant in this appeal concerning the admissibility of other documents are likely to arise on retrial, we shall consider the defendant’s claims as to those documents as well. See, e.g., Rego v. Connecticut Insurance Placement Facility, 219 Conn. 339, 348, 593 A.2d 491 (1991).

Exhibit RR

Exhibit RR is a copy of a letter dated November 12, 1986, that was sent to the director of the NHPA by Greiner. The letter indicates that Greiner reviewed the delay claim submitted by the defendant dated June 17, 1986, and recommended an allowable compensation of $587,870 out of the total claim of $3,091,923. The letter states that the claim is “grossly exaggerated” and “flawed on several important counts.” The only reference in the letter to the plaintiff states that the claim for the plaintiff contains $123,067 in charges that were not related to the delay claim. Robinson testified that the document was included in the NHPA’s files and that it would have been received in the ordinary course of business. The defendant objected on the grounds that it was irrelevant and that it had not been qualified as a business record under § 52-180.

On retrial, the trial court should reconsider whether exhibit RR satisfies the requirements of § 52-180. Robinson testified that the document would have been received in the ordinary course of business, not that it would have been made in the ordinary course of business. The presumption that a business record is reliable is based in large part on the entrant having a business duty to report. D ’Amato v. Johnson, supra, 59-60; C. Tait & J. LaPlante, supra, § 11.14.5; see State v. Paulette, 158 Conn. 22, 29, 255 A.2d 855 (1969). The mere fact that the NHPA received this letter in the ordinary course of business and included the document in its files tells us nothing about the motivation of the maker of the record, and therefore would not ordinarily satisfy the requirements of § 52-180. White Industries v. Cessna Aircraft Co., 611 F. Sup. 1049, 1059 (W.D. Mo. 1985); Orzechowski v. Higgins, 146 Conn. 463, 466, 152 A.2d 510 (1959).

Exhibits PP and QQ

Exhibit PP is a copy of the second delay claim submitted by the defendant. Exhibit QQ is a series of letters concerning the second delay claim that were exchanged between Hill International, Inc. (Hill), which was the construction manager for the NHPA when the second delay claim was negotiated, the defendant, the NHPA, and state and federal administrative agencies. The letters indicate that as a result of the settlement of the second delay claim the contract price of the work performed by the defendant was to be increased by $2,564,293, resulting in a total adjusted contract price of $22,456,180.

As noted above, the second delay claim only involved work conducted during a period when the plaintiff had already ceased its operations at the construction site. The defendant objected to the admission of both exhibits PP and QQ on the ground that these exhibits concerned only the second delay claim, which did not involve any work done by the plaintiff, and were therefore irrelevant to the issues in this case. The plaintiff claimed, however, that the second delay claim was relevant because in its counterclaim the defendant sought to recover for its increased costs to complete the project resulting from the plaintiff’s alleged breach of contract. Because the second delay claim included amounts related to the work performed by the subcontractor hired to replace the plaintiff, the plaintiff argued that these letters were relevant to the issue of whether the defendant suffered damages as a result of having to hire another subcontractor to complete the work.

Although the plaintiff may be correct that the second delay claim was relevant to the defendant’s counterclaim, that claim is not at issue in this appeal. Because only the plaintiff’s claim will be retried, exhibits PP and QQ will not be relevant on retrial and therefore should not be admitted. We now turn to other issues raised by the defendant that are likely to arise on retrial and that merit our attention.

II

The defendant filed a motion in limine to preclude the plaintiff from offering documentary evidence to explain the basis for the damage claims set forth in the complaint. The defendant specifically sought to bar the plaintiff from offering proof that it incurred a cost of $550 per pile and that it suffered lost profits in the amount of $29,672 and delay damages in the amount of $33,200. The basis for this motion was the defendant’s assertion that the plaintiff had failed to comply with its notice of deposition. The plaintiff was served with the notice pursuant to Practice Book § 244 (g). That notice had commanded the plaintiff to appoint a person who could explain “the basis of the legal claims and claims for money damages set out in the complaint” and to bring any documentation supporting those claims. The plaintiff appointed Simeon Beer, its general manager at the time of the Union Station renovation, to appear at the deposition.

The defendant contends that the trial court should have granted its motion because at the deposition Beer did not provide support for the computation of the plaintiff’s claims for damages because either he lacked the supporting documentation or he could not remember how the particular figure had been calculated. The defendant argues that it would be inequitable and contrary to the Practice Book rules to allow the plaintiff to offer proof in support of its claims for damages when it neglected to provide the defendant with the basis for the calculation of those amounts at the deposition. In opposition, the plaintiff contends that the notice of deposition did not specify what documentation was needed. Moreover, the plaintiff notes that during the deposition its attorney offered to provide whatever documentation the defendant needed if the defendant would simply submit a specific request, but counsel for the defendant never submitted such a request nor were any interrogatories, requests for production or motions for sanctions ever filed by the defendant in relation to this issue. The plaintiff contends that the defendant had failed to follow up on the plaintiffs offer to provide the necessary documentation and attempted to use its motion in limine to ambush the plaintiff at trial.

“In the event of a party’s failure to answer any or all questions at a deposition the court may make such order as the ends of justice require. Practice Book § 231.” Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144, 470 A.2d 246 (1984). Our review of the transcript of the deposition confirms that the plaintiff offered to provide the documentation sought if the defendant followed up on its request, and the defendant does not deny that it did not take any subsequent action other than filing the motion in limine. On the basis of these facts, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion in limine.

Ill

The defendant’s final claim is that the trial court improperly denied its offer to introduce into evidence a certificate indicating that the plaintiff is a dissolved corporation. The defendant offered this certificate as the basis for its claim that the plaintiff lacked standing to maintain this action. The plaintiff concedes that it was dissolved by forfeiture pursuant to General Statutes § 33-387 in August, 1988, subsequent to the filing of this action, but contends that it did not lose its right to maintain this suit as a result of the dissolution. We agree.

General Statutes § 33-375 sets forth five ways in which a corporation may be dissolved, one of which is dissolution by forfeiture pursuant to § 33-387. General Statutes § 33-378 (d) provides that “[n]o action or proceeding, civil or criminal, to which a corporation is a party shall abate by reason of dissolution.” The defendant claims, however, that a corporation dissolved by forfeiture under § 33-387 should not be entitled to pursue a claim because, by definition, such a corporation has not complied with the provisions for winding up under General Statutes § 33-379 or with the provisions of General Statutes § 33-388 concerning reinstatement after dissolution.

This claim is without merit. Statutes are to be applied as their words direct. Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 141, 509 A.2d 1050 (1986). “[I]f the statutory language is clear and unambiguous, there is no room for construction.” New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 785 (1975); Kelemen v. Rimrock Corporation, 207 Conn. 599, 606, 542 A.2d 720 (1988). Section 33-378 (d) clearly preserves the right of a dissolved corporation to continue an action filed before dissolution, and none of the statutory provisions cited above makes this provision contingent on the particular method by which the corporation was dissolved. We therefore reject the defendant’s claim that the plaintiff lacked standing to pursue this action. Cf. Don Rich Corporation v. Rossini, 1 Conn. App. 120, 122-23, 468 A.2d 1273 (1983) (corporation allowed under General Statutes § 33-378 (e) to maintain action brought after dissolution).

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

In this opinion Peters, C. J., Glass and F. X. Hennessy, Js., concurred.

Borden, J.,

concurring in part and dissenting in part. I concur in the majority opinion, particularly in its conclusion that the trial court improperly admitted exhibit 00 into evidence. I disagree, however, with the majority’s ultimate disposition of that exhibit.

My sole disagreement with the majority opinion is with its conclusion “that on retrial the plaintiff may be able to provide sufficient testimony to demonstrate that exhibit 00 satisfies the requirements set forth in [General Statutes] § 52-180,” the business entry statute. In my view, that exhibit is so clearly outside the confines of a true business entry that, in the interests of judicial economy, we should not waste the trial court’s time and energy in ruling on its admissibility on the retrial. I reach this conclusion on the basis of two independent reasons: (1) the document does not comply with the fundamental business entry requirement “that it was made at the time of the act described in the report, or within a reasonable time thereafter”; Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 384, 461 A.2d 422 (1983); and (2) on its face, the document so manifestly demonstrates that it was prepared in anticipation of litigation that it would be an abuse of discretion for the trial court to admit it.

The exhibit in question consists of ninety pages of analysis of the defendant’s delay claim, plus approximately seventy pages of the component parts of the delay claim that the exhibit purports to analyze. The exhibit is dated February 5,1987, and purports to submit the delay claim to four “Analysis Levels,” which in turn purport to provide a “Correction of Claim For Flaws” and “Adjustment of Claim For Overstated Charges.”

In the language of the cover letter and introduction to the exhibit: “Analysis Level No. 1 simply removes flaws from the claim. These flaws consist of duplication of charges, items that do not warrant inclusion in the claim, and incorrectly computed charges. It is emphasized that this Analysis Level does not go to the merit of any portion of the claim. These corrections amount to more than $2,000,000.00. If settlement negotiations occur in the future, the beginning point of such negotiations should commence at a claim value of $3,360,230.00, rather than the amount submitted by O & G Industries.

“Analysis Level No. 2 takes the position that O & G Industries is responsible for 6 months of the 18.5 month late delivery of the project. As such, the assessed value of Analysis Level No. 1 is reduced by applying a factor equal to 12.5/18.5.

“Analysis Level No. 3 reviews the merit of each component of the claim and adjusts it accordingly.

“Analysis Level No. 4 reduces the assessed value of Analysis Level No. 3 by applying a factor equal to 12.5/18.5.” (Emphasis added.)

The report continues in the following vein: “Some [of the subcontractors’ claims] are completely lacking in supporting documentation .... Others make outlandish claims as illustrated by the Westinghouse claim for $23,537.00 in anticipation of repairs to the escalator, which no one knows at this time will ever be required.” In the portion of the report entitled “Method of Analysis,” it states: “This analysis of the claim without benefit of an ‘as built’ CPM, complies with your request for comments on the basis of a thorough review of the material submitted by O & G. The intent being that the comments emerging from such a review, may suffice as a basis to conclude a mutually acceptable settlement with O&G regarding the delay claim, thereby precluding the need to undertake a costly and time consuming ‘as built’ CPM. ” (Emphasis added.) The foregoing are just some of the indications of the nature of the document at issue.

When the plaintiff offered the document into evidence, the defendant objected on the basis, inter alia, that “[i]t isn’t a business entry in the sense that even if someone would vow that it was kept in the regular course of business, it is not a recordation of facts. ” (Emphasis added.) The plaintiff responded, inter alia, that it was “offering it to show the analysis of the delay claim . . . .” (Emphasis added.)

In order for a document to be admissible as a business entry, it must have been “made at the time of the act described in the report, or a reasonable time thereafter. ” Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., supra. The “act” referred to is not the claim of a party, which in this case was submitted some time in 1986, but the conduct or events that give rise to that claim. The “act described in the report” is what happens in the field, so to speak, that may have been recorded by someone in the regular course of business. It is the contemporaneous nature of the recording, together with its regularity, that gives a business entry its indicia of reliability and thus its admissibility. See Hutchinson v. Plante, 175 Conn. 1, 4, 392 A.2d 488 (1978). This document describes, not the conduct of any person or party, or any events that may have occurred in the course of the project, but the written claim of the defendant arising out of that conduct or events.

In this case, that conduct and those events occurred between August 25,1983, when the defendant entered into its subcontract with the plaintiff, and April 15, 1985, when the defendant ceased work. Exhibit 00 is dated February, 1987, nearly two years later. It simply is not a substantially contemporaneous recording of any acts or events. It is simply an analysis of the written claim of the defendant arising out of those events made two to four years after they occurred.

Furthermore, it is manifestly clear to me that the document was prepared for purposes of litigation. That is clear from its stated intent of offering an analysis of the defendant’s claim for purposes of settlement, and its stated values for the starting point of settlement negotiations. Delay claims are as indigenous to the construction industry as malpractice claims are to the medical profession, or product liability claims are to the consumer products industry. In my view, this document is no more a business entry than an analysis, by an insurer’s claims adjuster or by an expert hired by the insurer, of a medical malpractice or product liability claim submitted by a potential claimant. Although a trial court has discretion to decide whether a document has been prepared for litigation purposes, this document is so clearly inadmissible under that exclusion to the business entry exception to the hearsay rule that I would save the trial court’s time by stating so now.

I therefore concur in part and dissent in part.

       “[General Statutes] Sec. 52-180. admissibility of business entries and photographic copies, (a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility.
      “(c) Except as provided in chapter 3, if any person in the regular course of business has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of them to be recorded, copied or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is otherwise required by statute. The reproduction, when satisfactorily identified, shall be as admissible in evidence as the original in any judicial or administrative proceeding, whether the orginal is in existence or not, and an enlargement or facsimile of the reproduction shall be likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement or facsimile shall not preclude admission of the original.
      “(d) The term ‘business’ shall include business, profession, occupation and calling of every kind.”

       In addition, the parties subsequently agreed that the plaintiff would perform certain extra work at the site.

       The complaint also named as a defendant The Hartford Fire Insurance Company (The Hartford), which had furnished a labor and material bond to the named defendant. The plaintiff subsequently withdrew its action against The Hartford, which is not a party to this appeal. Hereinafter we shall refer to O and G Industries, Inc., as the defendant.

       During the trial, the plaintiff reduced its delay claim to $14,566 to reflect the fact that this claim was based only on the portion of the contract it actually had performed.

       The plaintiff claimed that the defendant should not be allowed to recover for those damages via the first count of the counterclaim because those same damages were also included in the second count of the counterclaim, which had been settled at the beginning of the trial for $5000. The plaintiff argued, in the alternative, that it was at least entitled to offset the damages awarded on the counterclaim by the settlement amount.
      Although that issue was included in the plaintiffs preliminary statement of issues and briefed by both parties on appeal, we decline to address it because the plaintiff did not file a cross appeal. See Practice Book § 4005; Board of Police Commissioners v. White, 171 Conn. 553, 557, 370 A.2d 1070 (1976); Wesleyan University v. Rissil Construction Associates, Inc., 1 Conn. App. 351, 355, 472 A.2d 23, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). Moreover, even if the plaintiff had filed a cross appeal, the record is not adequate for review for two reasons. First, the record does not include a copy of the settlement agreement. In addition, because the first count of the counterclaim sought recovery for damages not included in the second count, and because we have no means for determining what portion, if any, of the damages awarded on the first count was attributable to amounts for which the defendant also sought recovery in the second count, we would not be able to determine whether any offset would be required as a result of the settlement payment. See Kilduff v. Adams, 219 Conn. 314, 334-35, 593 A.2d 478 (1991).

       The defendant objected to Robinson testifying that the document was made in the ordinary course of business on the ground that Robinson was not employed by the NHPA in February, 1987, when exhibit 00 was prepared. After the trial judge sustained this objection, he ordered a recess to give the defendant an opportunity to review the document. After the recess, the trial judge implicitly reversed its prior ruling since it admitted the exhibit on the basis of Robinson’s testimony that the exhibit was made in the ordinary course of business. We note that this result is consistent with the fact that the witness, whose testimony is used as the basis for admitting a business record, need not have been employed by the business at the time that the record was made. State v. Damon, 214 Conn. 146, 157, 570 A.2d 700, cert. denied, U.S. , 111 S. Ct. 65, 112 L. Ed. 2d 40 (1990).
      Albert Landino, an employee of Greiner who was involved in the preparation of the analysis of the first delay claim, testified that that analysis was prepared pursuant to Greiner’s duties as project manager. The trial court, however, relied solely on the testimony of Robinson in admitting the exhibit.

       The Greiner report states that the plaintiff’s claim that it was delayed in starting “is justified,” but it assigned a value of $7500 to the delay claim, which was significantly less than the $33,200 of delay damages claimed by the plaintiff.

       We note, however, that the record does not indicate that the trial court conducted an examination of the exhibit prior to admitting it.

       Our examination of the exhibit indicates that reference is made to the plaintiff on only five pages of the document.

       Two other issues concerning the admissibility of exhibit 00 should also be addressed during the retrial. First, the court should consider to what extent exhibit 00 was prepared in anticipation of litigation. See Jefferson Garden Associates v. Greene, 202 Conn. 128, 140-41, 520 A.2d 173 (1987), citing Palmer v. Hoffman, 318 U.S. 109, 111-15, 63 S. Ct. 477, 87 L. Ed. 645, reh. denied, 318 U.S. 800, 63 S. Ct. 757, 87 L. Ed. 1163 (1943); see generally annot., 61 A.L.R. Fed. 359. Although there is evidence in the record that exhibit 00 was prepared with the expectation that the delay claim might be the subject of settlement negotiations, we have stated that “documents prepared for litigation are excluded, not on a per se basis, but rather upon an inquiry into whether such documents bear circumstantial indicia of lack of trustworthiness. In the exercise of appropriate discretion, courts may exclude such records where they are self-serving and a motive for falsification can be demonstrated.” Jefferson Garden Associates v. Greene, supra. Although we have doubts about the trustworthiness of this exhibit, the record is insufficient to allow us to provide further guidance because the defendant never raised this particular issue at trial.
      Second, the portions of exhibit 00 pertaining to the claims of the plaintiff include figures that were obtained from a letter from the plaintiff’s counsel that was sent to the defendant. On retrial, consideration should be given to whether the incorporation of those figures in exhibit 00 added another level of hearsay to the exhibit, and, if so, whether that information was admissible under another exception to the hearsay rule. See Bonner v. Winter, 175 Conn. 41, 44, 392 A.2d 436 (1978).

       The defendant also claimed that exhibit TT was not qualified as a business record and was not relevant. Although we do not consider it necessary to address that claim specifically, the trial court should consider the principles outlined above when ruling on the admissibility of that document.

       Exhibit RR relates to an earlier version of the first delay claim. The delay claim submitted by the defendant on December 10, 1986, which was summarized and analyzed in exhibit OO, replaced the claim dated June 17,1986.

       Exhibit RR, like exhibit OO, notes that the delay claim for the plaintiff’s work includes charges unrelated to the delay. The charges were for unpaid billings ($72,063), lost profits ($29,672) and damage to the catenary wires ($21,332).

       In light of Robinson’s testimony concerning exhibit OO, it seems likely that on retrial he would be able to testify that exhibit RR was prepared in the ordinary course of business pursuant to Greiner’s duties as project manager for the NHPA. We emphasize, however, that the mere receipt of documents in the ordinary course of business, in the absence of any duty owed by the entrant to the business to prepare the record, would not ordinarily establish such documents as business records.
      We also note that, in light of some of the statements made in exhibit RR concerning the defendant’s delay claim, the trial court should consider whether the probative value of this document is outweighed by its prejudicial effect. See State v. Higgins, 201 Conn. 462, 469, 518 A.2d 631 (1986).

       See footnote 5, supra.

       Practice Book § 244 (g) provides: “A party may in the notice and in his subpoena name as the deponent a public or private corporation or a partnership or an association or a governmental agency or a state officer in an action arising out of the officer’s performance of employment and designate with reasonable particularity the matters on which examination is requested. The organization or state officer so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. The persons so designated shall testify as to matters known or reasonably available to the organization. This paragraph does not preclude the taking of a deposition by any other procedure authorized by the Practice Book.”

       For example, at the deposition Beer stated he could not remember how the amount of lost profits was calculated. Beer did not prepare the supporting documentation for the lost profit figure until after the trial had begun.

       We do not hold, however, that a party must show that it has exhausted all available procedural remedies to compel the production of information as a condition for the trial court, in the exercise of its discretion, to exclude the introduction of such information at trial.

       A CPM is, apparently, a “critical path method” that compares the schedule of how the project was actually built to the original schedule in the contract documents.


source: Caselaw Access Project

author: Peters, C. J. Shea, J., with whom Borden, J.,

license: Public Domain

text:
    Farmers and Mechanics Savings Bank v. Vincent A. Garofalo III et al.
    (14236)
    Peters, C. J., Shea, Callahan, Covello and Borden, Js.
    Argued May 28
    decision released July 30, 1991

      David L. Gussak, for the appellant (defendant the Money Store/Connecticut, Inc.).

      Jeffrey M. Krupnikoff, for the appellee (defendant Lyon and Billard Company).
   Peters, C. J.

The principal issue in this appeal is whether, under General Statutes § 52-285, an attachment lien on real property accrues and becomes effective as of the date it is signed by the issuing authority or as of the date it is lodged in the town clerk’s office. In a foreclosure action brought by the plaintiff, Farmers and Mechanics Savings Bank, the proceeds of the sale of property in East Hampton owned by the named defendant, Vincent A. Garofalo III, generated insufficient funds to pay remaining junior lienholders in full. The trial court determined that the claim of the defendant Lyon and Billard Company (Lyon & Billard), a judicial lien creditor, should take priority over the claim of the defendant the Money Store/Connecticut, Inc. (the Money Store), a junior mortgagee. The Money Store appealed this adverse judgment to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023. We reverse.

The relevant facts are undisputed. The foreclosure proceedings initiated by the plaintiff generated the sum of $16,270.31 to be disbursed following payment of the named defendant’s debt to the plaintiff. The Money Store relied on its recorded mortgage deed for its claim to the remaining sale proceeds, while Lyon & Billard relied on its attachment and the subsequent judgment lien relating back to the attachment for its claim of priority.

The parties perfected their respective liens in the following sequence. Lyon & Billard’s prejudgment remedy attachment order was signed by a judge on April 21, 1988, and delivered to a sheriff on April 28, 1988. The Money Store’s mortgage was executed on April 29, 1988. Lyon & Billard’s certificate of attachment was recorded on the East Hampton land records on May 2,1988. Finally, the Money Store’s mortgage deed was recorded on the East Hampton land records on May 4, 1988.

The trial court accepted Lyon & Billard’s contention that an attaching creditor’s rights accrue upon a judge’s signing of an attachment, and therefore did not consider Lyon & Billard’s alternate claim that its rights accrued upon delivery of the writ of attachment to the sheriff. In an articulation of its supplemental judgment, the court stated that attachments accrue “from the date a Judge signs the prejudgment remedy, provided the attaching creditor delivers it to the sheriff within a reasonable time and the sheriff records and serves within a reasonable time.” The court found that Lyon & Billard’s attachment order had been signed before execution of the Money Store’s mortgage deed and that delivery and recording of the attachment order had occurred within a reasonable time. Because it concluded that Lyon & Billard’s judgment lien related back to the date of its attachment and, therefore, took priority over the mortgage lien of the Money Store, the court awarded the remaining sale proceeds to Lyon & Billard. Since it rejected the argument of the Money Store that the priority of an attachment lien dates only from the date of its recording, the trial court did not rule on the question whether the Money Store had recorded its mortgage deed within a reasonable time.

On appeal, the Money Store renews its claim that an attachment lien does not accrue, at least as against innocent third party claimants, until the lien is recorded upon the land records. If we agree with this contention, the Money Store urges us also to resolve in its favor the question of the timeliness of its recording of its mortgage deed. We agree with the Money Store’s first claim, but remand the case for an evidentiary hearing to determine whether the Money Store recorded its mortgage within a reasonable time.

I

The right to attach property is purely statutory. Connecticut v. Doehr, U.S. , 111 S. Ct. 2105, 2115, 115 L. Ed. 2d 1 (1991). General Statutes § 52-285 identifies the requirements for attaching real property in this state and is controlling on the issue of when an attachment begins to accrue. That statute provides in relevant part: “Real estate shall be attached by the officer by leaving in the office of the town clerk of the town in which it is situated a certificate that he has made such attachment, which shall be endorsed by the town clerk with a note of the precise time of its reception and recorded at length in the land records of such town; and such attachment, if completed as hereinafter provided, shall be considered as made when such certificate has been so lodged.” Because attachments did not exist at common law and because tying up a debtor’s property prior to litigation of the validity of the creditor’s claim is a “harsh remedy”; 1 R. Shinn, Attachment and Garnishment (1896) § 402, p. 743; see also Connecticut v. Doehr, supra, 2112-13; we have construed our attachment statutes strictly. Atlas Garage & Custom Builders, Inc. v. Hurley, 167 Conn. 248, 257-58, 355 A.2d 286 (1974); Hubbell v. Kingman, 52 Conn. 17, 19 (1884).

The text of § 52-285 is silent on whether an attachment recorded within a reasonable time of its execution relates back to that earlier date as the effective date of its accrual. This court has never considered whether the legislature impliedly incorporated a relation-back principle therein.

The Money Store urges us not to interpolate a provision for pre-recordation accrual into § 52-285. It relies on our oft-stated rule that, absent statutory ambiguity, we ordinarily assume that we need not elaborate on the intention of the legislature because its intention is presumed to have been expressed in the words of the statute. Furstein v. Hill, 218 Conn. 610, 622, 590 A.2d 939 (1991); Anderson v. Ludgin, 175 Conn. 545, 552, 400 A.2d 712 (1978). “ ‘Where the language of the statute is clear and unambiguous, the courts cannot, by construction, read into statutes provisions which are not clearly stated.’ ” Harlow v. Planning & Zoning Commission, 194 Conn. 187, 193, 479 A.2d 808 (1984), quoting Point O’Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 366, 423 A.2d 90 (1979).

The Money Store’s contention that we should construe § 52-285 to preclude an accrual period for attachment liens finds support not only in the text of the statute but also in the established policy of protecting the integrity of our land records. Statutory requirements for the recording of certificates of attachment in the town clerk’s office, like other recording requirements, serve to protect bona fide purchasers and mortgagees from secret encumbrances on real property. Allowing relation back to some time prior to the moment of recording of an attachment would inevitably encroach upon the reliability of this system. No search of the record title, no matter how painstaking and accurate, could protect a potential purchaser or mortgagee from an attachment that had been issued, but not yet recorded. “The policy of [the recording] system, which is rigidly adhered to, requires that the record shall disclose, as nearly as may be, the true state of the title and the nature and extent of the incumbrance upon it.” Hubbell v. Kingman, supra, 20.

To counter these persuasive arguments for construction of § 52-285 to preclude an accrual period for attachment liens, Lyon & Billard urges us to look beyond the confines of that statute itself. Lyon & Billard maintains that § 52-285 should be interpreted to afford to judicial liens the same treatment as that afforded to recorded mortgage deeds pursuant to General Statutes § 47-10 and to recorded mechanic’s liens pursuant to General Statutes §§ 49-34 and 49-33 (b). These statutes have been held to allow for a period of accrual prior to the actual recording of the instrument, so long as recordation occurs within a reasonable time. We find these analogies unpersuasive.

Our recordation statute, now § 47-10, has consistently been interpreted as providing for a reasonable period within which to record a deed of conveyance. That construction finds support in its provision that no conveyance can be effective against subsequent innocent parties “unless recorded on the records of the town in which the land lies.” (Emphasis added.) Id. The use of the word “unless” as opposed to “until” connotes legislative recognition of the proposition that rights conveyed by a deed may effectively accrue a reasonable time prior to its actual recordation. Since Beers v. Hawley, 2 Conn. 467, 469 (1818), construing predecessor statutes with similar texts, this court has permitted a mortgage deed, if recorded within a reasonable time of its execution, to take priority from the date of its delivery, even as to liens recorded prior to the recording of the deed but subsequent to its execution. Apstein v. Sprow, 91 Conn. 421, 99 A. 1045 (1917); Hartford Building & Loan Assn. v. Goldreyer, 71 Conn. 95, 99-100, 41 A. 659 (1898); Goodsell v. Sullivan, 40 Conn. 83, 85 (1873); see 1 Z. Swift, A System of the Laws of the State of Connecticut (1795) p. 308 (“every purchaser of land shall have a reasonable time to procure his deed to be recorded”).

Because the wording of § 47-10 has remained in essentially the same form since the 1800s, we may presume legislative acquiescence in our interpretation of the mortgage lien statute. “[I]ts subsequent nonaction may be understood as a validation of that interpretation.” Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987), quoting Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987). In contrast, no cases have interpreted § 52-285 as providing a reasonable time within which to record an attachment.

The mechanic’s lien statute offers an even less compelling analogy for the construction of § 52-285. Although General Statutes § 49-34 allows a mechanic’s lienor a ninety day grace period within which to file a claim in the town clerk’s office, General Statutes § 49-33 (b) expressly provides that the priority of the lien relates back to the date the work commenced or material was brought to the work site. The priority of such a lien over an intervening encumbrance has thus resulted, since 1836, from direct statutory fiat. See Statute Laws of Conn., tit. LIX, § 1 (1839); see also Hartford Building & Loan Assn. v. Goldreyer, supra, 99. While mechanic’s liens and attachment liens are both nonconsensual, the legislature’s express allowance for an accrual period in § 49-33 and its failure to provide for a similar period in § 52-285 is determinative of the legislature’s intent on this issue.

Despite the dearth of Connecticut support for its contention that judicial liens relate back to accrue prior to the moment of their recordation, Lyon & Billard urges us to consider analogous rules of law in other jurisdictions. Specifically, it calls to our attention Massachusetts General Laws, c. 223, § 66 (1985), which provides that an attachment will take effect from the time when it was made if a copy of the attachment order is recorded “within three days after the day when the attachment was made.” We find this reference unpersuasive for three reasons. First, the Massachusetts legislature expressly provided for an accrual period in its attachment statute, while, as previously noted, the Connecticut legislature did not. Second, the Massachusetts statute specifically states that an attachment is “made” at some earlier point in time, apparently upon the sheriff’s return, while § 52-285 provides that an attachment “shall be considered as made” when a certificate of attachment is left at the office of the town clerk where the property is located and not a moment earlier. Third, under chapter 223, § 66, an attachment takes effect within three days after the day the attachment is made “but attachments of land shall not be valid against purchasers in good faith and for value ‘except from the time when the copy is deposited [in the registry of deeds].’ ” Hendricks v. Shaw, 262 Mass. 284, 286, 159 N.E. 620 (1928). The latter section is consistent with § 52-285, which provides that only as of the moment the certificate of attachment is recorded upon the land records is the attachment sufficient to hold the estate attached against subsequent bona fide purchasers. See Butchers’ Ice & Supply Co. v. Bascom, 109 Conn. 433, 436, 146 A. 843 (1929); see also Me. Rev. Stat. Ann. tit. 14 § 4454 (attacher has five days within which to record attachment, but “[a]ll recorded deeds take precedence over unrecorded attachments”).

We therefore conclude that, under § 52-285, an attachment that is subsequently transformed into a judicial lien following a judgment on the underlying cause of action relates back, for purposes of determining priority, only to the moment, when the certificate of attachment is left at the town clerk’s office of the town where the property is located. Accordingly, Lyon & Billard’s attachment took effect on May 2,1988, and its judicial lien relates back to that date.

II

Disposition of the issue of the effective date of Lyon & Billard’s attachment does not suffice to establish the date when the Money Store’s mortgage became effective against third parties. As noted above, the trial court found that the Money Store’s mortgage was executed on April 29,1988, and recorded on May 4,1988, while Lyon & Billard’s attachment was lodged at the town clerk’s office on May 2, 1988. “[A] conveyance which is not recorded until after an attachment of the property conveyed is not good against the attaching creditor ... if the delay in recording was unreasonable and is unexplained. Pond v. Skidmore, 40 Conn. 213, 222 [1873]; Newtown Savings Bank v. Lawrence, 71 Conn. 358, 364, 41 Atl. 1054, 42 id. 225 [1898]. But a deed recorded in a reasonable time after delivery prevails over an attachment made after the delivery of the deed but prior to the recording of it; and what is a reasonable time is a question of fact for the trial court, and its finding is conclusive. Goodsell v. Sullivan, 40 Conn. 83, 85 [1873].” Apstein v. Sprow, supra, 423. Thus, in order to establish priority for its subsequently recorded mortgage, the Money Store must show that it recorded its deed within a reasonable time of its execution. The trial court, having ruled that the effective date of the Lyon & Billard attachment antedated the execution of the mortgage, did not reach this issue.

The Money Store acknowledges that it had the burden of proving that it recorded its mortgage deed within the reasonable time period required under § 47-10. It urges this court to hold that it satisfied this burden, as a matter of law, by recording on Wednesday, May 4, a mortgage deed, executed and delivered on Friday, April 29. Lyon & Billard contends, to the contrary, that the Money Store’s failure to present evidence on this issue before the trial court automatically vests priority in favor of Lyon & Billard. We are unpersuaded that the Money Store should be penalized for the trial court’s decision not to make a factual finding on the issue of reasonableness, when the record indicates that the Money Store apprised that court of the need for testimony in its motion for supplemental judgment.

Pond v. Skidmore, supra, makes it clear that an unexplained delay in recording is unreasonable. The Money Store offered the following explanation for its delayed recording. Because the closing on the mortgage took place late in the afternoon on Friday, April 29, 1988, recording on that day was impossible. It alleged that it sent the mortgage deed to the town clerk of East Hampton by ordinary mail by placing the deed in a mailbox sometime on Saturday, April 30. The record does not disclose why the deed did not arrive at the town clerk’s office until Wednesday, May 4. In the interval, on May 2, Lyon & Billard had recorded its attachment.

Numerous cases have addressed the issue of what constitutes a reasonable time period for recordation of a real property deed so as to give a mortgagee or purchaser priority over intervening lienholders. Short delays ranging from thirty-one hours; Goodsell v. Sullivan, supra, 85; to one day; Hartford Building & Loan Assn. v. Goldreyer, supra; or to two days; Apstein v. Sprow, supra, 424; have been held to be reasonable. By contrast, delays measured in months and years have been held to be unreasonable. Pond v. Skidmore, supra (eight months); Rees v. Hemisphere Publishing Corporation, 11 Conn. Sup. 403, 407 (1943) (four and one-half months); Burgey v. Bochinski, 16 Conn. Sup. 427, 428 (1950) (twelve years). These cases do not provide guidance, as a matter of law, about the reasonableness of a five day delay in recordation. “ ‘[T]he length of time that is to be considered reasonable, has never been ascertained, and perhaps cannot be, and must be left according to the special circumstances of each case.’ ” Beers v. Hawley, supra, 471, quoting 1 Z. Swift, supra, p. 308.

The question of whether the Money Store’s mortgage deed was recorded within a reasonable period of time must therefore be remanded for an evidentiary hearing. In undertaking its factual inquiry into reasonableness, the trial court should consider, inter alia, the appropriateness of a mortgagee’s reliance on delivery of a deed to a recording office by ordinary mail when next-day guaranteed delivery service is now routinely available either through the postal service or through private delivery services. The trial court should also be mindful that delays in the recordation of deeds necessarily impair the integrity of our recording system. Subsequent purchasers and creditors should be able to rely upon the accuracy of a title search without having to escrow funds in anticipation of delayed recordings.

The judgment is reversed and the case is remanded to the trial court for an evidentiary hearing in accordance with this opinion.

In this opinion Callahan and Covello, Js., concurred.

Shea, J., with whom Borden, J.,

joins, concurring. I agree wholly with Part I of the majority opinion, which holds that an attachment of real estate does not take effect until a certifícate of attachment has been filed in the land records, as provided by General Statutes § 52-285.1 also agree with the holding in Part II that the case must be remanded to the trial court for a determination of whether the delay in recording the Money Store’s mortgage deed was reasonable, because that factual issue must be decided by the trial court rather than by this court.

I disagree, however, that this court, in remanding the case for trial of such a factual issue, should point to certain factors that may be relevant to that determination, such as the availability of mail or delivery services more expeditious than ordinary mail, without mentioning others, such as the increased cost of such services and the customary practices followed by attorneys in the locality. The selective inclusion of such signposts accompanying the remand of a factual issue for decision by the trial court is likely to be viewed as indicating a predetermination of that issue by this court. We ought not thus to leave the appellate finger on the scales when we purport to remand for an impartial resolution of a factual issue the trial court has not previously determined.

       “[General Statutes] Sec. 52-285. attachment of real estate. Real estate shall be attached by the officer by leaving in the office of the town clerk of the town in which it is situated a certificate that he has made such attachment, which shall be endorsed by the town clerk with a note of the precise time of its reception and recorded at length in the land records of such town; and such attachment, if completed as hereinafter provided, shall be considered as made when such certificate has been so lodged. The certificate shall be signed by such officer, shall describe the land attached with reasonable certainty and shall specify the parties to the suit, the authority issuing the writ, the court to which the process is returnable and the amount of damages claimed; and, unless the service is so completed, such estate shall not be held against any other creditor or bona fide purchaser. No such certificate left in the town clerk’s office for record shall have the effect of the notice of action pending provided for in section 52-325.”

       The claims of the competing lienholders each exceed the moneys held on deposit by the court.

       Lyon & Billard subsequently obtained a judgment on its separate action against Garofalo on May 15, 1989.

       General Statutes § 52-380a (b) provides in relevant part: “From the time of the recording of the judgment lien certificate, the money judgment shall be a lien on the judgment debtor’s interest in the real property described. If, within four months of judgment, the lien is placed on real property which was previously attached in the action, the lien on that property shall hold from the date of attachment (Emphasis added.)

       “[General Statutes] Sec. 47-10. deeds to be recorded. No conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies. When a conveyance is executed by a power of attorney, the power of attorney shall be recorded with the deed, unless it has already been recorded in the records of the town in which the land lies and reference to the power of attorney is made in the deed.”

       General Statutes § 49-34 provides in relevant part: “certificate of LIEN TO BE RECORDED AND NOTICE GIVEN TO OWNER. . . . A mechanic’s lien is not valid, unless the person performing the services or furnishing the materials, (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing . . . .”

       General Statutes § 49-33 provides in relevant part: “mechanic’s LIEN. PRECEDENCE. RIGHTS OF SUBCONTRACTORS. . . .
      “(b) The claim is a lien on the land, building and appurtenances or lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then on the plot of land and the claim takes precedence over any other encumbrance originating after the commencement of the services, or the furnishing of any such materials . . . .”

       A mortgage is considered a “conveyance” of land. Second National Bank v. Dyer, 121 Conn. 263, 267, 184 A. 386 (1936).

       This is in contrast to many states that automatically give priority to the party that records first and without notice of a prior unrecorded conveyance or lien. See, e.g., Cal. Civ. Code § 1214 (Deering 1990); N.Y. Real Prop. Law § 291 (McKinney 1989).

       A mechanic’s lienor has ninety days after the last services or materials have been furnished within which to lodge his claim at the town clerk’s office. General Statutes § 49-34 (1).

       Such an accrual period for mechanic’s liens is also recognized in numerous other jurisdictions. See, e.g., Del. Code Ann. tit. 25, § 2718 (1989); Minn. Stat. Ann. § 514.05 (West 1990); Pa. Stat. Ann. tit. 49, § 1508 (Purdon 1973).

       The Money Store’s motion for supplemental judgment apprised the trial court that testimony would be required. At oral argument before this court, counsel for the Money Store informed us that he told the trial judge at short calendar that he would provide additional testimony if the court considered it necessary. The trial court did not ask for further evidence, but decided the case “on the papers.”

       Although the Money Store cites Apstein v. Sprow, 91 Conn. 421, 99 A. 1045 (1917), for the proposition that an eleven day delay has been called reasonable, the trial court therein determined that the relevant time period for prompt recordation dated not from the date of a deed’s execution but from the date of its delivery to the grantee. Thus the relevant time frame was the two days between delivery and recordation. Id., 424.

       A procedural bulletin issued by the Connecticut Attorneys Title Insurance Company states that instruments should be recorded “immediately after delivery. Where unusual circumstances preclude same day recording, however, the . . . instruments should be recorded on the first business day following the date of the . . . transaction.” (Emphasis added.) It further warns that “[f]rom the foregoing it is obvious that members may not mail . . . instruments to the town clerks’ offices for recording.” (Emphasis added.)


text:
    Stanley V. Tucker v. Connecticut National Bank et al.

      Stanley V. Tucker, pro se, in support of the petition.

      Karen P. Blado, in opposition.
    Decided May 17, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Eddie Dennison

      Suzanne Zitser, assistant public defender, in support of the petition.

      James M. Ralls, assistant state’s attorney, in opposition.
    Decided May 17, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 27, is granted, limited to the following issues:

“1. Did the Appellate Court properly conclude that the defendant’s claim that the trial court was incorrect in permitting defense witness Richard Clark to invoke his fifth amendment privilege in front of the jury was not adequately preserved and thus did not warrant review on appeal?

“2. Did the Appellate Court properly conclude that even if it were to consider the defendant’s claim based upon the trial court’s ruling, the claim was without merit?

“3. If the trial court’s ruling was incorrect, was the error harmless?”


text:
    Mary Ellen Trella v. Donald Trella

      Hugh F. Keefe and Mary Beattie Schairer, in support of the petition.

      Robert A. Casale, in opposition.
    Decided May 17, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 219, is denied.


text:
    Dorothy Gagnon v. Planning Commission of the City of Bristol et al.

      JoAnn Paul, in support of the petition.

      Ann T. Baldwin, assistant corporation counsel, and Alfred F. Morrocco, Jr., in opposition.
    Decided May 17, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 413, is granted, limited to the following issues:

“1. Did the Appellate Court correctly hold that the defendant City Planning Commission had authority to consider and approve a resubdivision application of a parcel of land where the original subdivision application concerning that parcel had not been recorded on the land records and was presently under appeal at the time the resubdivision application was considered?

“2. Did the Appellate Court correctly hold that the approval of a resubdivision application of a parcel of land which had been previously subdivided and which subdivision was under appeal, rendered the subdivision appeal moot?”


text:
    State of Connecticut v. Keith Jenkins

      Jon L. Schoenhorn, in support of the petition.

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, in opposition.
    Decided May 17, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 330, is denied.


text:
    State of Connecticut v. Phillip Anderson

      Brian M. O’Connell, in support of the petition.

      Judith Rossi, assistant state’s attorney, in opposition.
    Decided May 17, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 438, is denied.


text:
    Richard DiBonaventura, Sr., et al. v. Zoning Board of Appeals of the Town of Thompson

      John D. Boland, in support of the petition.

      Michael A. Zizka, in opposition.
    Decided May 17, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 369, is denied.


text:
    Deann K. Seymour v. Lynne M. Carcia
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 446, is granted, limited to the following issue:

Philip J. O’Connor, in support of the petition.

Kathryn Calibey, in opposition.

Decided May 17, 1991

“Was the Appellate Court correct in determining that the plaintiff introduced sufficient evidence to support the jury’s award of future economic loss?”


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    Elinor Marino, Administratrix (Estate of Leonard Marino) v. Hartford Casualty Insurance Company Hartford Casualty Insurance Company v. Elinor Marino, Administratrix (Estate of Leonard Marino)

      Michael G. Tansley, in support of the petition.

      Philip F. von Kuhn, in opposition.
    Decided May 17, 1991
   The administratrix Elinor Marino’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 822, is denied.


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    Barbara Schrader v. United Services Automobile Association

      Mary-Margaret Dalton, in support of the petition.

      Earl F. Dewey II, in opposition.
    Decided May 17, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 826, is denied.


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    State of Connecticut v. Edward Gilchrist

      Suzanne Zitser, assistant public defender, and G. Douglas Nash, public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided May 17, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 624, is denied.


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    State of Connecticut v. Robert Cooley

      Roger J. Frechette, in support of the petition.

      Mary H. Lesser, assistant state’s attorney, in opposition.
    Decided May 17, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 489, is denied.


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    In re Robert C.

      Kent Drager, assistant public defender, in support of the petition.
    Decided May 17, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 813, is denied.


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    In re Judicial Inquiry
   The applicants Frank D’Amico and Paul Reid’s petition for certification for appeal from the Appellate Court is granted, limited to the following issues:

Henri Alexandre, assistant attorney general, in support of the petition.

Decided May 22, 1991

“1. Did the grand jury panel err in concluding that it is not ‘in the public interest,’ pursuant to Connecticut General Statutes § 54-47g, to release grand jury transcripts and records to public officials, who are sued in their official and individual capacities, for actions taken in the course of their official duties in assisting in the grand jury investigations, but only in the ‘private interest’ of such officials, whether or not such transcripts and records are necessary for their defense in the suit?

“2. Did the grand jury panel apply the proper analysis of the ‘public interest’ standard in denying the petitioners’ applications for release of the grand jury transcripts and records of Judicial Inquiry No. 85-01?

“3. Does the ‘public interest’ standard mandate a more liberal approach to disclosure of grand jury transcripts and records than the ‘particularized need’ standard?

“4. Should the Appellate Court have dismissed the appeals of the applicants by petitions for review for lack of jurisdiction because Connecticut General Statutes § 54-47g (a) and Practice Book § 2037 may not be applied retroactively to the grand jury proceeding and the report of the grand jury for which disclosure is sought?

“5. If Connecticut General Statutes § 54-47g (a) and Practice Book § 2037 are not applicable, are the applicants entitled to the disclosure requested on any other basis?”


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    Leon Chiaia v. Pepperidge Farm, Inc. Ronald Lee v. Pepperidge Farm, Inc.

      Tracy Alan Saxe, in support of the petition.

      Christopher M. Hodgson, in opposition.
    Decided May 30, 1991
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 24 Conn. App. 362, is denied.


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    Farmers and Mechanics Bank v. Nicholas C. Arbucci et al.

      Dale H. King, in support of the petition.

      Harry B. Heller, in opposition.
    Decided May 30, 1991
   The defendant Nicholas C. Arbucci’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 486, is denied.


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    State of Connecticut v. John J. Brosnan
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 473, is granted, limited to the following issues:

“1. Did the Appellate Court correctly hold that a person has a common law privilege to use force to resist an illegal entry into a place that is not his home if he has a reasonable expectation of privacy under the fourth amendment in that place?

“2. If the fourth amendment controls who has the common law privilege, was the Appellate Court correct in finding that the defendant was an overnight houseguest, thereby failing to defer to the trial court finding of fact to the contrary?

Marjorie Allen Dauster, in support of the petition.

Jacques J. Parenteau, in opposition.

Decided May 30, 1991

“3. If the defendant was entitled to a jury instruction on a privilege to resist an illegal entry, did the Appellate Court correctly hold, when the record was inadequate, that the arrest of the defendant was unlawful instead of remanding the matter for further evidentiary proceedings?

“4. Was the Appellate Court correct in using plain error to remand for further proceedings with respect to the destruction of a videotape when the exculpatory value of the lost videotape and actual prejudice to the defendant was wholly speculative?”


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    Edward Fenn v. Planning and Zoning Commission of the Town of Seymour

      Joseph E. Sakai, in support of the petition.

      Richard P. Gilardi, in opposition.
    Decided May 30, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 430, is denied.


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    Barbara Ann Berg v. Kenneth W. Berg

      Richard G. Kent, in support of the petition.

      David N. Feliu, in opposition.
    Decided June 6, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 509, is denied.


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    State of Connecticut v. Daryl Ober

      Carolyn K. Longstreth, assistant state’s attorney, in support of the petition.

      Kent Drager, assistant public defender, and G. Douglas Nash, public defender, in opposition.
    Decided June 6, 1991
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 347, is denied.


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    State of Connecticut v. Daryl Ober

      Kent Drager, assistant public defender, and G. Douglas Nash, public defender, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
    Decided June 6, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 347, is denied.


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    State of Connecticut v. Norman Theriault

      Susan M. Hankins, assistant public defender, in support of the petition.

      Harry Weller, assistant state’s attorney, in opposition.
    Decided June 6, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 502, is denied.


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    Benjamin I. Tedesco v. City of Stamford et al.

      James V. Minor, assistant corporation counsel, in support of the petition.

      Thomas M. Cassone, in opposition.
    Decided June 12, 1991
   The defendants’ petition for certification for appeal from the Appellate Court, 24 Conn. App. 377, is granted, limited to the following issues:

“Did the Appellate Court properly determine that the union grievance process and decision of the board of mediation and arbitration was ‘constitutionally deficient’ and direct that the plaintiff be awarded nominal damages?”


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    State of Connecticut v. Jennifer Clarke

      William F. Gallagher, in support of the petition.

      MaryH. Lesser, assistant state’s attorney, in opposition.
    Decided June 12, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 541, is denied.


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    State of Connecticut v. Renwrick Mierez

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, in support of the petition.

      Dennis F. O’Toole, assistant public defender, in opposition.
    Decided June 12, 1991
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 543, is denied.


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    Benjamin I. Tedesco v. City of Stamford et al.

      Christopher R. Bello, in support of the petition.
    Decided June 12, 1991
   The plaintiffs petition for certification for appeal from the Appellate Court, 24 Conn. App. 377, is granted, limited to the following issues:

“1. Did the Appellate Court properly reverse the trial court’s award of attorney’s fees based on an absence of contemporaneoous time records?

“2. Did the Appellate Court properly reverse the award of compensatory damages?”


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    State of Connecticut v. Renwrick Mierez

      Dennis F. O’Toole, assistant public defender, in support of the petition.

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, in opposition.
    Decided June 12, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 543, is denied.


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    State of Connecticut v. Kenneth Gelormino, Sr.

      Timothy Moynahan, in support of the petition.

      Judith Rossi, assistant state’s attorney, in opposition.
    Decided June 12, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 563, is denied.


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    Mark Paradiso et al. v. William V. Gambardella, Executor (Estate of Frances L. Paradiso), et al.

      Jerome N. Goldstein, in support of the petition.

      William V. Gambardella, in opposition.
    Decided June 12, 1991
   The plaintiffs petition for certification for appeal from the Appellate Court, 24 Conn. App. 582, is denied.


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    State of Connecticut v. Joseph E. King, Jr.

      Marjorie Allen Dauster, deputy assistant state’s attorney, in support of the petition.

      Albert J. McGrail, in opposition.
    Decided June 12, 1991
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 586, is denied.


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    State of Connecticut v. Edward A. Peruta

      Steven R. Dembo, in support of the petition.

      Jack W. Fischer, deputy assistant state’s attorney, in opposition.
    Decided June 12, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 598, is denied.


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    Mary M. Skibeck, Executrix (Estate of Chester J. Skibeck) v. Barbara R. Avon

      John J. Kennedy, Jr., in support of the petition.
    Decided June 20, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 239, is denied.


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    State of Connecticut v. Kenneth Gelormino, Jr.

      Judith Rossi, assistant state’s attorney, in support of the petition.

      Vicki H. Hutchinson, special public defender, in opposition.
    Decided June 20, 1991
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 556, is denied.


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    Bruce Williams, Jr. v. George D. Bronson, Warden, State Prison Arthur Hyde v. George D. Bronson, Warden, State Prison Dominic Vincenzo v. George D. Bronson, Warden, State Prison

      David L. Kent, in support of the petition.

      Richard T. Biggar, assistant attorney general, in opposition.
    Decided June 20, 1991
   Bruce Williams, Jr., Arthur Hyde and Dominic Vincenzo’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 612, is denied.


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    Joseph Ancona v. Board of Television and Radio Examiners

      Donald E. Wasik, assistant attorney general, in support of the petition.

      Donald L. MacKie, in opposition.
    Decided June 20, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 832, is denied.


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    Claire Friedlander v. Henry Friedlander

      Henry Friedlander, pro se, in support of the petition.
    Decided June 20, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 833, is denied.


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    Keith T. Manning et al. v. Harold J. Barenz et al.

      David W. Cooney and Kathryn Calibey, in support of the petition.

      Andrew J. O’Keefe and Maureen Sullivan Dinnan, in opposition.
    Decided June 21, 1991
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 24 Conn. App. 592, is granted, limited to the following issues:

“1. Do the recreational land use statutes, General Statutes § 52-557Í et seq., apply to (a) municipalities, and (b) employees of municipalities?

“2. If the statutes do so apply, do they apply to the conduct of the defendants involved in this case?”


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    State of Connecticut v. Guillermo Rivera

      Joseph G. Bruckmann, assistant public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided June 25, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 670, is denied.


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    Lori Monnier v. Dwight Monnier

      Louis Kiefer, in support of the petition.

      Marcia Tannenbaum, in opposition.
    Decided June 25, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 833, is denied.