author: Peters, C. J.

text:
    Tomasso Brothers, Inc. v. October Twenty-Four, Inc., et al.
    (14249)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.
    Argued January 8
    decision released February 18, 1992

      Peter J. Zagorsky, for the appellants-appellees (defendants).

      John H. Fomiciari, with whom were James H. Throwe and, on the brief, Stephen J. Anderson, for the appellee-appellant (plaintiff).
   Peters, C. J.

The central issue in this appeal is the propriety of the terms of an injunction issued to protect a property owner from a nuisance arising out of the illegal use of neighboring property. The plaintiff, Tomasso Brothers, Inc., brought an action against the defendants, October Twenty-Four, Inc. (October Twenty-Four) and A. Aiudi and Sons (Aiudi), alleging that the defendants’ operation of a quarry on land abutting the plaintiff’s property violated applicable zoning regulations and constituted a nuisance rendering the plaintiff’s land unmarketable for its permitted use as a technology park zone under the zoning regulations of the town of Plainville. After the filing of responsive pleadings challenging the validity of the plaintiff’s allegations and raising a number of special defenses, the case was tried to the court. The court rendered a judgment for the plaintiff, awarding only nominal damages but enjoining the defendants’ operation of the quarry ten days after approval of the plaintiff’s plan for a technology park development by the town authorities. The defendants appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. We remand for further proceedings.

The memorandum of decision reveals the following facts. The plaintiff and the defendant October Twenty-Four are abutting landowners in Plainville. October Twenty-Four owns lot number 20-A-14, which is wholly situated in a residential zone. Three years before the plaintiff bought its property in 1988, the zone for that property had been changed from a quarry zone to a technology park zone.

The defendant Aiudi, with the consent of the defendant October Twenty-Four, has for many years been engaged in operating a trap rock quarry on lot number 20-A-14, and expects to continue in that endeavor for a significant period of time. The excavation of trap rock from the quarry involves drilling, blasting and loading. In 1989, 180,000 tons of trap rock were removed from this site. The removal of the trap rock involves blasting at two week intervals except during the winter months. The defendants’ quarrying operations can be heard and seen from the plaintiff’s property.

The trial court found that the defendants’ operation of the quarry was a common law nuisance, in large part because a quarry is not a permitted use in a single family residence zone. It did not pursue the extent to which various municipal rulings might have contributed to the defendants’ conduct of their business, but concluded that the defendants’ use of their property was both unlawful and unreasonable. Relying on the actual impact of the defendants’ operation on the plaintiff’s use of its property; see Herbert v. Smyth, 155 Conn. 78, 83, 230 A.2d 235 (1967); and taking into account the plaintiffs development plans for an office park with a hotel, the court determined that the plaintiff had been irreparably harmed and had no adequate remedy at law. The court therefore undertook to frame an appropriate order for equitable relief. From this judgment, the defendants have appealed.

The defendants’ appeal raises three issues. They challenge: (1) the determination that their activities constitute a nuisance; (2) the validity of an evidentiary ruling excluding certain testimony that the trial court found had arisen out of settlement negotiations; and (3) the granting of injunctive relief to the plaintiff and the terms of the injunctive order. The plaintiffs cross appeal also takes issue with one of the terms of the injunctive order.

I

There is no merit to the defendants’ challenge to the trial court’s determination that the quarry is a nuisance. In order to establish its claim of nuisance, the plaintiff had to prove the existence of the following four elements: “(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the [plaintiff’s] injuries and damages. Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978); Kostyal v. Cass, 163 Conn. 92, 99-100, 302 A.2d 121 (1972); Heilig v. LeQuire, 4 Conn. App. 125, 127, 492 A.2d 542 (1985).” (Internal quotation marks omitted.) State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987). The trial court concluded that the plaintiff had met its burden of proof.

“Whether the elements necessary to establish a claim of nuisance have been proven is . . . a question of fact which is ordinarily determined by the trier of fact. Filisko v. Bridgeport Hydraulic Co., [supra, 36].” Couture v. Board of Education, 6 Conn. App. 309, 314, 505 A.2d 432 (1986). In this appeal, the defendants have not contested the illegality of the operation of a quarry in a residential zone. We may thus take the third element of a nuisance action as essentially uncontroverted. With respect to the remaining elements, the defendants have failed to present any persuasive argument that the trial court’s findings of fact were clearly erroneous.

II

The defendants’ evidentiary claim challenges the propriety of the trial court’s granting of a motion in limine filed by the plaintiff. The plaintiff’s motion asked the court to exclude the testimony of certain witnesses regarding meetings held between principals for both parties and the Plainville planning and zoning commission. The plaintiff alleged that the conversations to which these witnesses might be called to testify had arisen in the context of settlement negotiations. Agreeing with this characterization of what had transpired, the trial court granted the plaintiff’s motion.

“The general rule that evidence of settlement negotiations is not admissible at trial is based upon the public policy of promoting the settlement of disputes.” Jutkowitz v. Department of Health Services, 220 Conn. 86, 97, 596 A.2d 374 (1991); Simone Corporation v. Connecticut Light & Power Co., 187 Conn. 487, 490, 446 A.2d 1071 (1982); Nearing v. Bridgeport, 137 Conn. 205, 209, 75 A.2d 505 (1950); Stranahan v. East Haddam, 11 Conn. 507, 512-19 (1836); Hartford Bridge Co. v. Granger, 4 Conn. 142, 148 (1822). An offsetting principle holds that an admission of fact is competent evidence, even though the admission was made in settlement negotiations, “where the statement was intended to state a fact . . . .” Simone Corporation v. Connecticut Light & Power Co., supra. “The test is whether the party making the admission intended to concede a fact hypothetically for the purpose of effecting a compromise, or to declare a fact really to exist.” Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 517, 391 A.2d 157 (1978). If it is unclear whether the statement of a declarant was intended to promote the negotiation of a settlement or to constitute a factual admission of liability, the statement is inadmissible. Simone Corporation v. Connecticut Light & Power Co., supra; Danahy v. Cuneo, 130 Conn. 213, 215-17, 33 A.2d 132 (1943); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.5.4 (b).

The defendants have not sustained their burden of showing impropriety in the trial court’s factual finding; Evans Products Co. v. Clinton Building Supply, Inc., supra, 518; that the disputed testimony arose in the context of settlement negotiations. The court permitted the defendants to introduce evidence in support of their contention that the statements constituted admissions of persons who were associates of the plaintiff as its agents or as joint venturers. The court was not required to find that testimony so credible and probative that it rebutted the settlement context in which these conversations apparently took place. At best, the defendants’ arguments demonstrate some doubt about the proper characterization of the disputed testimony. As we noted in Simone Corporation v. Connecticut Light & Power Co., supra, the public policy of promoting settlements requires such doubt to be resolved in favor of the inadmissibility of the relevant evidence.

Ill

The crux of the dispute between the parties on this appeal is the contention that the trial court abused its equitable discretion in granting injunctive relief to the plaintiff. The defendants maintain that the trial court should not have found that the plaintiff had suffered irreparable harm, should have assigned more weight to the hardship and harm that an injunction would impose upon the defendants, and should have framed any injunctive order with less onerous terms. The plaintiff urges us to amend the terms of the injunctive order so as to make it immediately effective. We have decided that we should not presently adjudicate these claims.

In its memorandum of decision describing the basis for its injunctive order, the trial court placed considerable emphasis on the fact that the plaintiffs plan for development of its property called for the construction of a hotel. The court analyzed the injury visited on the plaintiff by the defendants’ quarry operations by considering the potential impact of those operations on a residential hotel. Further, the terms of the court’s injunctive order require the defendants to cease their quarrying activity “within ten (10) days after the Plaintiff’s plan of development for a technology park development is approved” but not if the development plan is “approved for only industrial or light industrial development.”

We are now confronted by an intervening event that the trial court had no opportunity to consider. The defendants have submitted to this court information that the plaintiff has applied to the town of Plainville to make a “minor change in the original site plan application” by “the deletion of the originally proposed 100-room hotel and the addition of a four-story office building in its place.” The plaintiff has not directly contested the authenticity of this information, although it urges us to dismiss its implications as misleading and hearsay. At oral argument in this court, the plaintiff maintained that the contemplated change in its site plan casts no shadow on the merits of the trial court’s exercise of its equitable discretion. We disagree.

In substance, although not in form, this appeal in its present posture resembles other cases in which supervening events have caused this court to decline, on grounds of mootness, to give an opinion that would be advisory rather than adjudicative. An analogous case is Kofkoff Egg Farms, Ltd. v. Johnson, 188 Conn. 141, 448 A.2d 826 (1982), in which this court was asked to consider the merits of a trial court’s decision denying an application for mandamus because of the pendency of a related administrative proceeding. By the time the appeal from that denial was heard in this court, the administrative appeal had been resolved in favor of the party seeking mandamus. We concluded that the merits of the trial court’s order had become unreviewable, even though "this is not the ordinary case of mootness in which the appeal is dismissed because the aggrieved party can derive no benefit from an order of this court. See, e.g., Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 250, 440 A.2d 310 (1982); Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 20, 411 A.2d 1 (1979); Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944). We understand that the plaintiffs continue to have a real and lively interest in the issuance of the building permit that they have sought since February, 1980. Nonetheless we are confronted with a situation in which their appeal is from a judgment based on a factual predicate that no longer exists. It would be pointless for us now to review whether the trial court was correct in denying the plaintiffs’ application for mandamus because of the pending administrative appeal. There is no longer any pending administrative appeal; instead we have a final judgment in the plaintiffs’ favor. This case is moot for the same reason as are cases involving an injunction that has expired; Connecticut Foundry Co. v. International Ladies Garment Workers Union, supra; a zoning regulation that has expired; Rosnick v. Zoning Commission, 172 Conn. 306, 308-309, 374 A.2d 245 (1977); or a statute that has been amended. DelMastro v. Liquor Control Commission, 146 Conn. 740, 741, 154 A.2d 241 (1959).” Kojkoff Egg Farms, Ltd. v. Johnson, supra, 144-45.

We recognize that, in this case as in KojkoffEgg Farms, Ltd., the plaintiff has not abandoned its claim to injunctive relief. It is equally incontrovertible that appellate review of the issuance of an injunction is ordinarily limited to a determination of whether the trial court abused its discretion in its assessment of the injury of which the plaintiff complains and the burden that an injunctive order will impose on the defendant. Anderson v. Latimer Point Management Corporation, 208 Conn. 256, 262-63, 545 A.2d 525 (1988); Cummings v. Tripp, 204 Conn. 67, 90-91, 527 A.2d 230 (1987).

Here, as in Kofkoff Egg Farms, Ltd., however, it would be pointless for us to undertake a review of the trial court’s balancing of the equities and its framing of an order for equitable relief when the predicate for the trial court’s fact-bound exercise of its equitable discretion may no longer exist. We have no way of ascertaining the extent to which the plaintiff’s proposal for a revised plan of development differs from that presented to the trial court. We conclude that the prudent course is to remand this case to the trial court to reexamine the equitable considerations relevant to the exercise of its discretion in light of this uncontemplated change in circumstances.

Without limiting the scope of the trial court’s authority upon remand, we deem it likely that the trial court will want to consider evidence about the impact of the defendants’ quarry operations on the plaintiff’s new plan of development. Taking into account whatever circumstances it deems relevant, the trial court should then exercise its equitable discretion to reexamine the plaintiff’s claim for injunctive relief and the obligations that an injunctive order imposes upon the defendants.

The judgment is set aside and the case is remanded to the trial court for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       The defendant A. Aiudi and Sons is a partnership whose members are Eugene Aiudi, Joseph Aiudi and Elmo Aiudi. The individual partners are officers and principal shareholders of the defendant October Twenty-Four, Inc.
      The plaintiffs original complaint also included a count charging that the defendant Plainville planning and zoning commission had failed to carry out its statutory duties. The plaintiff withdrew that count after a ruling by the trial court granting a motion by the planning and zoning commission to dismiss the action against it for lack of subject matter jurisdiction. Although the plaintiff gave notice of its intent to appeal the trial court’s ruling, that issue has been finally adjudicated. While the present appeal was still pending before the Appellate Court, that court dismissed, on procedural grounds, a cross appeal by the plaintiff insofar as it sought review of the trial court’s order concerning the planning and zoning commission.

       The defendants have not pursued on appeal their jurisdictional claim that the plaintiff was required to exhaust its administrative remedies before seeking injunctive relief. The trial court correctly rejected this contention. Cummings v. Tripp, 204 Conn. 67, 79-80, 527 A.2d 1230 (1987).

       Under the Federal Rules of Evidence, all statements made during settlement negotiations are inadmissible. Fed. R. Evid. 408. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.5.4 (b), p. 337, comments that the distinction, in the Connecticut cases, “between assumed or hypothetically stated facts and those not prefaced by such hedging phrases is tenuous, easy to state in theory but difficult to apply in practice. Extending the exclusionary rule to cover all statements would both remove a trap for the unwary and further the rule’s underlying policy favoring settlement.” In this case we need not reach the question whether such an extension is appropriate under Connecticut law.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    L. and L. Builders, Inc. v. Debra Parmelee
    (14358)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.
    Argued January 9
    decision released February 18, 1992

      Philip L. Steele, with whom, on the brief, was Debra Parmelee, pro se, for the appellant (defendant).

      George A. Law, for the appellee (plaintiff).
   Per Curiam.

In this action for damages for breach of a construction contract, the defendant, Debra Par-melee, appealed to the Appellate Court from a judgment rendered by the trial court in favor of the plaintiff, L. and L. Builders, Inc. This court granted the defendant’s petition for certification to review the Appellate Court’s per curiam affirmance of the trial court’s judgment. L. & L. Builders, Inc. v. Parmelee, 25 Conn. App. 806, 592 A.2d 432 (1991). The issue that we certified was the following: “Does the record support the trial court’s conclusion that the defendant had waived her right to a jury trial in this civil action?” L. & L. Builders, Inc. v. Parmelee, 220 Conn. 916, 597 A.2d 334 (1991). After examining the record on appeal and after considering the briefs and the arguments of the parties, we conclude that the appeal should be dismissed.

With respect to the issue on which we granted certification, the record unambiguously discloses only that the trial court, Budney, J., in granting the defendant’s motion to open a default judgment, noted “jury claim stricken—place on court trial list.” Although a partial indication of what may have transpired can be gleaned from the representations of counsel at a subsequent hearing, such representations have no evidentiary weight; see State v. Tillman, 220 Conn. 487, 496, 600 A.2d 738 (1991); and cannot fill the lacuna created by the absence of a transcript of the proceedings before Judge Budney that led him to enter this order. “ ‘The correctness of a judgment of a court of general jurisdiction is presumed in the absence of evidence to the contrary. We do not presume error. The burden is on the appellant to prove harmful error.’ Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 7, 513 A.2d 1218 (1986); DiBerardino v. DiBerardino, 213 Conn. 373, 385, 568 A.2d 431 (1990).” Carothers v. Capozziello, 215 Conn. 82, 105, 574 A.2d 1268 (1990). On the present record, we have no basis for full exploration of the certified issue.

At oral argument in this court, it became apparent that the underlying issue that the defendant is seeking to litigate does not relate primarily to the existence of a record of waiver. The underlying question is rather a consideration of the quantum of evidence that is required before a trial court can properly find that a litigant has waived the right to a jury trial when that right had previously been asserted in timely fashion. In the particular circumstances of this case, that question devolves into the relationship between a waiver of a right to a jury trial and a trial court’s exercise of its discretionary authority to set aside a default judgment. Either as a general matter, or as viewed in the present circumstances, the issue of the legitimacy of a waiver of a constitutional right always poses a significant question. This significant issue was not, however, presented in the defendant’s appeal to the Appellate Court and was not raised here by the defendant’s petition for certification. Neither party has addressed it in the briefs filed in response to the granting of certification to appeal. We therefore lack both a factual record and the serious consideration of the relevant arguments that we can expect to emerge from full briefing of contested constitutional issues. Discretionary prudential concerns counsel against adjudication of constitutional questions in a vacuum. “We are bound never to anticipate a question of constitutional law in advance of the necessity of deciding it [and] never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. United States v. Raines, 362 U.S. 17, 21, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960); Secretary of the State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 955, 104 S. Ct. 2839, 81 L. Ed. 2d 786 (1960); State v. Madera, [198 Conn. 92, 105, 503 A.2d 136 (1985)].” (Internal quotation marks omitted.) State v. Zach, 198 Conn. 168, 177, 502 A.2d 896 (1985); see also Lehrer v. Davis, 214 Conn. 232, 234-35, 571 A.2d 691 (1990); Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987). We therefore decline to address this issue on its merits.

The record, briefs and arguments in this appeal do not furnish us a full and reasoned opportunity to adjudicate either the issue that we certified or the underlying issue that first emerged in the presentation of the oral argument in this court. We conclude, therefore, that the appeal should be dismissed on the ground that certification was improvidently granted. See Booth v. Flanagan, 220 Conn. 453, 599 A.2d 380 (1991); Lawler v. Lawler, 212 Conn. 117, 561 A.2d 128 (1989).

The appeal is dismissed.


author: Berdon, J.

text:
    General Accident Insurance Company v. Matthew Wheeler et al.
    (14314)
    Shea, Glass, Covello, Borden and Berdon, Js.
    Argued October 30, 1991
    decision released February 18, 1992

      J. Kevin Golger, with whom, on the brief, was George L. Holmes, for the appellant (plaintiff).

      Stephen A. Finn, for the appellees (defendants).
   Berdon, J.

The sole issue raised in this appeal is whether an insured, where there is more than one tortfeasor responsible for the accident, may recover under his or her underinsured motorist policy before first exhausting the liability insurance policies of all the tortfeasors. We conclude that an insured is required to exhaust the liability insurance coverage of only one tortfeasor in order to recover underinsured benefits.

The parties presented their claims on the basis of the following stipulated facts. The defendant, Matthew Wheeler (insured), a resident of the household of his father, James Wheeler, was insured by the plaintiff, General Accident Insurance Company, under an automobile liability policy covering two vehicles owned by James Wheeler. Because the limits for the underinsured coverage on each vehicle were $300,000, the insurance policy provided the insured with total effective underinsured coverage of $600,000.

On September 6,1985, the insured sustained personal injuries when he was pinned between a parked vehicle and a moving vehicle owned and operated by Michael Norkowski. At the time of the accident, Norkowski was insured under an automobile liability policy in the amount of $20,000, which was paid in full to the insured pursuant to a settlement.

As a result of the accident, the insured instituted a civil suit against the city of Danbury and two of its police officers, which was still pending at the time of this appeal. The insured alleges that the police officers’ negligence was a proximate cause of his injuries because they positioned their unattended police vehicle in such a manner that its headlights blinded the vision of drivers coming in the opposite direction. In the police report, Norkowski stated that he had been blinded by the headlights of the police vehicle. In the Danbury action, the defendants have insurance available to them under an automobile liability insurance policy and a general municipal liability policy, each of which provides coverage limits of one million dollars. The defendants in that action indicate that some of the allegations made by the insured are being defended under the automobile liability policy and the others under the municipal liability policy.

After the settlement with Norkowski, the insured made a demand to the plaintiff for underinsured motorist arbitration. Pursuant to the terms of the insurance policy, all the issues of coverage and damages were submitted to a three member arbitration panel. After reviewing evidence and hearing argument, the majority of the panel found in favor of the insured as follows: (1) It is only necessary to exhaust the policy or policies of one tortfeasor before proceeding with arbitration; (2) the insured had exhausted Norkowski’s insurance policy; (3) the insured sustained damages in the amount of $395,000; (4) the plaintiff shall receive a credit of $20,000 paid to the insured under Norkowski’s insurance policy; (5) the plaintiff shall pay to the insured the net sum of $375,000; and (6) “[a]n insurer may require the insured to hold in trust all rights against any defendants in the Danbury action pursuant to § [38-175a-6 (e) of the Regulations of Connecticut State Agencies] for the payment it shall make.”

The plaintiff filed an application in Superior Court to set aside the arbitration award pursuant to General Statutes § 52-418 on the ground that the insured must first exhaust the limits of the liability policies of all the tortfeasors. The insured filed a cross application to confirm the award pursuant to General Statutes § 52-417. The trial court denied the plaintiffs application to vacate the award and granted the insured’s cross application to confirm the award. The plaintiff appealed to the Appellate Court and we transferred the appeal to this court in accordance with Practice Book § 4023.

General Statutes (Rev. to 1987) § 38-175c (b) (1) and (2), now reorganized and recodified as General Statutes § 38a-336 (b) and (d), obligates insurance companies to pay the underinsured motorist coverage “after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted.” General Statutes (Rev. to 1987) § 38-175c (b) (1). An underinsured motor vehicle is defined as “a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.” General Statutes (Rev. to 1987) § 38-175c (b) (2). On the basis of § 38-175c (b) (1), the plaintiff claims that the insured, prior to his right to recover for underinsured coverage, was not only required to exhaust the liability policy of Norkowski, but also the liability policies of the city of Danbury and the police officers to the extent that they were liable as joint tortfeasors.

Section 38-175c (b) (1) is ambiguous as to the question of whether the insured must exhaust all of the underlying liability policies pertaining to one or all tortfeasors. In construing the statute, we approach this question according to “well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature.” Texas Refining & Mfg. Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987).

Our analysis begins with the relationship between uninsured and underinsured motorist coverage. The underinsured coverage was adopted as a piggyback provision to the uninsured coverage in 1979. Public Acts 1979, No. 79-235. “Since underinsured motorist coverage, as defined in General Statutes § 38-175c, can be determined only by reference to and in comparison with the insured’s uninsured motorist coverages, and Since claim is made against an insured’s uninsured motorist coverage after it is determined that the at-fault party is underinsured, the regulations which apply to uninsured motorist coverage must equally apply to underinsured motorist coverage” Nationwide Ins. Co. v. Gode, 187 Conn. 386, 399-400, 446 A.2d 1059 (1982).

Our conclusion that the insured merely needs to exhaust the liability policies of one tortfeasor is supported by the regulations of the insurance commissioner. Not only is the commissioner obligated to adopt regulations with respect to the minimum provisions to be included in the policy of insurance issued in this state; General Statutes § 38a-334; we presume that these regulations are “an accurate reflection of the legislative intent articulated in the statute’s more general language.” AFSCME v. New Britain, 206 Conn. 465, 470, 538 A.2d 1022 (1988). This presumption is further underscored by the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., which provides for legislative oversight through the legislative regulation review committee prior to approval of the regulations. General Statutes § 4-170.

Section 38-175a-6 (a) of the Regulations of Connecticut State Agencies provides in pertinent part that the “insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured [or underinsured] motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured [or underinsured] motor vehicle.” (Emphasis added.) The regulations envisioned the requirement that the insurance coverage of only one tortfeasor be exhausted. This conclusion is further confirmed by § 38-175a-6 (e), which authorizes that the insurer may, in its policy, “require the insured to hold in trust all rights against third parties or to exercise such rights after the insurer has paid any claim, provided that the insurer shall not acquire by assignment, prior to settlement or judgment, its insured’s right of action to recover for bodily injury from any third party.” If the insured were required to exhaust the liability policies of all tortfeasors before resorting to the underinsured provision of the policy, this regulation would be superfluous.

In McAllaster v. Bruton, 655 F. Sup. 1371 (D. Me. 1987), the federal District Court, in construing § 38-175c (b) (1), held that the plaintiff was only required to exhaust the policies of one of two joint tortfeasors, in order to trigger the right to proceed under the underinsured motorist provisions of his policy. The court based its decision in part on the insurance regulation, § 38-175a-6 (e), which grants the insurer permission to include in its policy the right to be reimbursed if the insured recovers from the joint tortfeasor. Id., 1379. Although the interpretation of our state statute by a federal court is not binding upon us, it may be persuasive authority. See Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 305, 472 A.2d 316 (1984).

Likewise, other jurisdictions have held that under similar statutes, the insured was not required to exhaust the policies of all joint tortfeasors. See, e.g., Mulholland v. State Farm Mutual Automobile Ins. Co., 171 Ill. App. 3d 600, 617, 527 N.E.2d 29 (1988); Motorist Mutual Ins. Co. v. Tomanski, 27 Ohio St. 2d 222, 223, 271 N.E.2d 924 (1971).

Public policy also supports our conclusion that an insured needs to exhaust the liability policies of only one tortfeasor before he may recover under his underinsured motorist policy. If the plaintiffs claim were carried out in practice, the insured could be required to pursue claims of weak liability against third parties, thereby fostering marginal and costly litigation in our courts. See Mulholland v. State Farm Mutual Automobile Ins. Co., supra. This would further exacerbate the problems envisioned by the dissenters in Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 214-16, 571 A.2d 104 (1990). “The effect of the majority’s holding is to require a victim who has uninsured motorist coverage exceeding the limit of the tortfeasor’s liability insurance to obtain the last dollar of that insurance under the penalty of losing the entire benefit of his uninsured motorist coverage. By requiring the victim to obtain the full amount of the tortfeasor’s liability coverage before proceeding against the uninsured motorist carrier, the majority has erected a barrier to the settlement of liability claims that is likely to have a serious impact upon our overburdened jury trial docket.” Id., 214 (Shea, J., dissenting). Thus, substantial delays would result when the party primarily liable has paid the full proceeds of the liability insurance and the insured is still compelled to pursue costly litigation through our courts against marginal, or in some cases phantom, tortfeasors.

Nevertheless, the insurer is protected by the regulations, which permit it to require in the policy that if the insured recovers against a third party joint tortfeasor, the insured must hold the proceeds in trust for the insurer and pay it to the same. Indeed, the insurance policy in the present case requires this of the insured if he recovers from another.

Accordingly, we hold that under the provisions of § 38-175c (b) (1) and (2), now recodified as § 38a-336 (b) and (d), the insured need only exhaust the “liability bond or insurance policies” of one tortfeasor in order for the insured to be eligible to pursue underinsured benefits.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 52-418 provides in pertinent part: “(a) Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects . . . (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       General Statutes § 52-417 provides in pertinent part: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court ... for an order confirming the award.”

       General Statutes (Rev. to 1987) § 38-175c provides in pertinent part: “(a) (1) Every [automobile liability insurance] policy shall provide insurance, herein called uninsured motorist coverage ....
      “(b) (1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgment or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.
      “(2) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.”

       Public Acts 1990, No. 90-243, § 127.

       “The regulations, however, must carry into effect the purpose and intent of the statute pursuant to which they are enacted.” American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 196, 530 A.2d 171 (1987).

       In none of our prior decisions have we implied that the underinsured coverage can be triggered only after exhaustion of the policies of all the joint tortfeasors. See Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 571 A.2d 104 (1990) (General Statutes § 38-175c requires that an insured may not access his underinsured motorist insurance before the underinsured person responsible for the accident pays the limit of his liability policy); American Motorists Ins. Co. v. Gould, 213 Conn. 625, 569 A.2d 1105 (1990) (a tortfeasor’s vehicle is not “underinsured” pursuant to § 38-175c (b) (2) when the aggregate limits of the tortfeasor’s liability insurance coverage applicable at the time of the accident exceeds the uninsured motorist coverage available to the insured); Nicolletta v. Nationwide Ins. Co., 211 Conn. 640, 560 A.2d 964 (1989) (§ 38-175c (a) (2) does not furnish a statutory basis for imposing a limitation on the stacking of uninsured and underinsured motorist coverage in an automobile liability insurance policy); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 530 A.2d 171 (1987) (the insurer is not entitled to a set off from “a dram shop” policy because it is not a “bodily injury liability bond or insurance policy” for purposes of § 38-175a-6 (e) of the Regulations of the Connecticut State Agencies).

        Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 213, 571 A.2d 104 (1990), held that General Statutes § 38-175c (b) (1) requires that before the underinsured clause is triggered, the underinsured must pay the entire limits of the liability policies on the tortfeasor vehicle instead of merely giving a credit for the entire policy.

       The insured’s Personal Auto Policy, Endorsement PP 00 01, provides in relevant part: “A. If we [the insurer] make a payment under this policy and the person to or for whom payment was made has a right to recover damages from another we shall be subrogated to that right. That person shall do:
      “1. Whatever is necessary to enable us to exercise our rights; and
      “2. Nothing after loss to prejudice them. . . .
      “B. If we make a payment under this policy and the person to or for whom payment is made recovers damages from another, that person shall:
      “1. Hold in trust for us the proceeds of the recovery; and
      “2. Reimburse us to the extent of our payment.”


text:
    Board of Education of the City of New Haven et al. v. City of New Haven et al.
    (14334)
    Peters, C. J., Shea, Callahan, Covello and Berdon, Js.
    Argued December 12, 1991
    decision released February 18, 1992

      Lubbie Harper, Jr., with whom was Linda D. Babcock, for the appellants (plaintiffs).

      Martin S. Echter, deputy corporation counsel, for the appellees (named defendant et al.).

      Janet Bond Arterton, for the appellee (defendant New Haven board of aldermen).
   Per Curiam.

The trial court, sua sponte, dismissed this action for a declaratory judgment and for injunctive relief on the ground that a corporation having an interest in the subject matter had not been made a party, notwithstanding that there was pending before the court a motion to make it a party to the action. The subject matter of the requested declaratory judgment was whether the plaintiff New Haven board of education had the authority to enter into multiple one year contracts without the approval of the defendant New Haven board of aldermen. The plaintiffs appealed to the Appellate Court and we transferred the appeal to this court in accordance with Practice Book § 4023.

At oral argument, all parties to this appeal agreed that the judgment of dismissal should be reversed, and the matter remanded for further proceedings. It is puzzling to us why, after the trial court rendered the judgment of dismissal, none of the parties ever sought to reargue the dismissal before the trial court in order to call to its attention the pending motion to make the corporation a party.

Notwithstanding this unanimity regarding the necessity for further proceedings, we must address the issue of mootness. The parties advised us at oral argument that the particular contract that is the subject of this litigation was actually approved by the defendant board of aldermen subsequent to the time this action for declaratory judgment had been instituted. Since mootness implicates subject matter jurisdiction; Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988); it can be raised at any stage of the proceedings. See Sobocinski v. Freedom of Information Commission, 213 Conn. 126, 134-35, 566 A.2d 703 (1989). “We have consistently held that we do not render advisory opinions. E there is no longer an actual controversy in which we can afford practical relief to the parties, we must dismiss the appeal.” Sadlowski v. Manchester, supra.

Nevertheless, there are exceptions to the mootness rule and all the parties argue that the doctrine of being “capable of repetition, yet evading review” is applicable to this case. We have held that “ ‘in the absence of a class action, the “capable of repetition, yet evading review” doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was reasonable expectation that the same complaining party would be subjected to the same action again.’ ” Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 498-99, 522 A.2d 264 (1987), quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975).

The present case satisfies both prongs of the doctrine. Contracts that are entered into for two or three years would probably expire before any claims could be fully litigated. E was made clear to us that whether the plaintiff board of education has authority to enter into multiple one year contracts is an ongoing dispute among the parties. In these circumstances, public interest requires that the issues should be determined.

Accordingly, the judgment is reversed and the case is remanded to the trial court for further proceedings.


text:
    Carol Rose et al. v. Freedom of Information Commission et al.
    (14256)
    Peters, C. J., Shea, Callahan, Covello and Berdon, Js.
    Argued December 6, 1991
    decision released February 18, 1992

      Martin A. Gould, with whom was Alfred J. Garofolo, for the appellants (plaintiffs).

      Constance L. Chambers, assistant general counsel, for the appellee (named defendant).
   Peters, C. J.

The principal issue in this appeal is the relationship between the interest in the open conduct of government codified in General Statutes § 1-21 of the Freedom of Information Act (FOIA) and the interest in confidentiality for “records of teacher performance and evaluation” expressed by the legislature in General Statutes § 10-151c. The underlying controversy between the plaintiffs, Carol Rose and Vera Rozarie, and the defendant freedom of information commission (FOIC) concerns the validity of an FOIC order to the defendant board of education of the town of Stratford (board) to disclose the substance of the board’s action approving a recommendation to take disciplinary action against the plaintiffs. The Superior Court dismissed the plaintiffs’ appeal of the FOIC’s order for want of subject matter jurisdiction after concluding that the plaintiffs were not “parties aggrieved” by a decision of the FOIC within the meaning of General Statutes § 1-2 li (d) and therefore lacked standing to appeal. After the plaintiffs appealed the judgment of dismissal to the Appellate Court, we transferred the appeal to this court pursuant to Practice Book § 4023. We disagree with the trial court’s procedural ruling, but conclude that, on the merits, the plaintiffs’ appeal was properly dismissed.

The material facts are undisputed. On April 28,1989, teachers and administrators at the Flood Intermediate School in Stratford staged a mock arrest of a teacher as a prelude to teaching students about the Scopes Monkey Trial. The students were led to believe that the arrest was genuine and were released from school, over a weekend, unaware of the true circumstances of the arrest. The mock arrest upset both students and parents.

In response to this incident, the Stratford superintendent of schools recommended to the board that it take disciplinary action against the teachers and administrators involved in the incident, including the plaintiffs, who were the principal and assistant principal of the school. By notice dated May 5, 1989, the board called a special meeting with the following agenda: “Review of incident at Flood Intermediate School on and after April 28, 1989, discussion of appropriate action concerning the incident, and action to resolve the issue relating to the incident.” At the special meeting, on May 15, 1989, the board voted to enter executive session to discuss the incident and the recommended disciplinary action. Following its discussion in executive session, the board reconvened in public and voted by a four to three margin to “accept the recommendations of the Superintendent of Schools concerning disciplinary action to be taken to remedy the incident which occurred at Flood Intermediate School.” Before adjourning the meeting, the board chairperson announced that it would be “inappropriate” to disclose the specific action voted on because the discussion had taken place in executive session.

Stephen J. Winters, Constance K. Davis, and the Bridgeport Post-Telegram (complainants) filed a complaint with the FOIC alleging that the board’s failure to specify the nature of the disciplinary action that it was approving had violated the open meeting provisions of § 1-21. On October 26, 1989, the FOIC conducted a full hearing on the complaint. The board responded that §§ l-18a (e),1-19 (b) (2), and 10-151c authorized the manner in which it had proceeded at the public meeting. The plaintiffs moved to intervene as parties before the FOIC pursuant to General Statutes § l-21i (b). The FOIC denied the plaintiffs party status, but allowed them to participate in the hearing as intervenors pursuant to § l-21j-28 of the Regulations of Connecticut State Agencies.

The FOIC concluded: (1) that §§ 1-21 (a) and 1-18 (e) (1) “require that votes of agencies with respect to personnel matters be taken in public”; (2) that §§ 1-19 (b) (2) and 10-151c “do not authorize or permit the non-disclosure of the substance of a vote of a board of education concerning the discipline of school teachers or administrators”; and (3) that the board had “failed to comply with the open meeting provisions of § 1-21 (a) . . . when it failed to state in public the substance of the motion upon which it voted at the May 15, 1989 special meeting.” It ordered the board to “provide the complainants] with a record containing the recommendation for disciplinary action it approved.”

The plaintiffs appealed the decision of the FOIC to the Superior Court pursuant to § l-21i (d). They alleged that, procedurally, the FOIC had improperly denied them party status and that, substantively, its order of disclosure had violated § 10-151c. The Superior Court granted the FOIC’s motion to dismiss the appeal upon concluding that the plaintiffs were not “parties” within the meaning of § l-21i (d) of the FOIA and § l-21j-12 (g) of the FOIC regulations and thus lacked standing to appeal from the FOIC decision. In its memorandum of decision the court also discussed, however, and found unpersuasive, the merits of the plaintiffs’ appeal.

The plaintiffs renew in this court the issues that they raised in their administrative appeal to the Superior Court. They maintain that because the substance of the recommended disciplinary action was part of the plaintiffs’ “personnel or medical ... or similar file[s]” within the meaning of § l-21i (b), the FOIC improperly: (1) denied them party status; and (2) failed to give effect to the protection from disclosure afforded to them by § 10-151c. We agree with the plaintiffs that they had standing to appeal the FOIC order to the Superior Court, but we disagree with their conception of the relationship between §§ 1-21 and 10-151c.

I

We first address the propriety of the trial court’s decision on the procedural issue of whether the plaintiffs have standing to challenge the order of the FOIC. Administrative appeals depend upon statutory authorization. Farricielli v. Personnel Appeal Board, 186 Conn. 198, 201, 440 A.2d 286 (1982); Nader v. Altermatt, 166 Conn. 43, 53, 347 A.2d 89 (1974). For FOIC orders, such authority is to be found in § l-21i (d), which provides that “[a]ny party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183.” (Emphasis added.)

“It is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has . . . some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 647 (1983) . . . .” (Internal quotation marks omitted.) Unisys Corporation v. Department of Labor, 220 Conn. 689, 693, 600 A.2d 1019 (1991). “ ‘Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. See, e.g., Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Stern v. Stern, 165 Conn. 190, 192, 332 A.2d 78 (1973). These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of [a] direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a “personal stake in the outcome of the controversy”; Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975); Baker v. Carr, supra, 204; provides the requisite assurance of “concrete adverseness” and diligent advocacy.’ ” Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 648-49, 556 A.2d 1020 (1989), quoting Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981).

A

The trial court, adhering to the Appellate Court’s interpretation of § l-21i (d) in Stanchem, Inc. v. Freedom of Information Commission, 13 Conn. App. 315, 536 A.2d 592 (1988), and relying upon the FOIC regulations defining “party,” concluded that only one who had been granted party status in the proceedings before the FOIC, or had properly sought and was “entitled as of right to be admitted as a party,” has standing to appeal to the Superior Court from an FOIC decision. It determined that the plaintiffs lacked standing because (1) the FOIC had denied them party status, and (2) they had failed to demonstrate that they had been improperly denied party status.

The plaintiffs claim they were entitled to party status because § l-21i (b), which provides that “[a] public employee whose personnel or medical file or similar file is the subject of an appeal under this subsection may intervene as a party in the proceedings on the matter before the commission,” and § 10-151c, which exempts “records of teacher performance and evaluation” from the FOIA, conferred such a right. Although there may be merit to the plaintiffs’ contention that the FOIC incorrectly denied them party status, we need not reach that question, because careful examination of § l-21i (d) discloses that it authorizes an appeal to the Superior Court upon a showing of classical aggrievement.

The legislature in § 1-2 li (d) permits an appeal by “[a]ny party aggrieved” by a decision of the FOIC. The trial court assumed that, in using this language, the legislature intended to make standing to appeal dependent upon party status in the underlying agency proceeding. Its assumption involves an issue of statutory interpretation, which presents a question of law for this court. Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 692, 595 A.2d 313 (1991).

“ ‘The objective of statutory construction is to give effect to the intended purpose of the legislature.’ State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981). It is axiomatic that, where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary. Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1184 (1990). That axiom only applies in full force, however, ‘[wjhere ... the language of a statute is . . . absolutely clear’ on its face and where no ambiguity is raised in applying the statute in a particular case. (Emphasis in original.) Anderson v. Ludgin, 175 Conn. 545, 554, 400 A.2d 712 (1978). . . .” Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, supra.

Although “[cjourts are bound to accept the legislative definition of terms in a statute”; Toll Gate Farms, Inc. v. Milk Regulation Board, 148 Conn. 341, 347,170 A.2d 883 (1961); the legislature has not defined “party” within the FOIA. We recently stated that “[ojrdinarily, the word ‘party’ has a technical legal meaning, referring ‘to those by or against whom a legal suit is brought . . . the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons.’ Black’s Law Dictionary, citing Golatte v. Mathews, 394 F. Sup. 1203,1207 (D.C. Ala. 1975) . . . .” Liebermanv. Reliable Refuse Co., 212 Conn. 661, 669, 563 A.2d 1013 (1989). However, “[w]e interpret statutory terms by reading them in context and not in isolation.” Id.

We conclude that the trial court’s construction of the word “party” in § 1-2 li (d), which is in essence the “technical” use of the word described in Lieberman, leads to unacceptable results. Construing party status in court as equivalent to party status before the FOIC would vest with the agency’s presiding officer, in accordance with its regulations; Regs., Conn. State Agencies § l-21j-27; the authority to decide not only who could appear before the agency but also who could challenge an adverse decision of the agency. Indeed, at oral argument before this court, counsel for the FOIC conceded that the agency was inclined to limit party status in order to limit the number of appeals it must defend. We are doubtful that the legislature’s use of the word “party” in § l-21i (d) was intended to grant unfettered discretion to the FOIC to decide who can appeal the merits of its decisions. In some circumstances, denial of party status so as to limit appellate review might violate the due process rights of a person aggrieved by an FOIC decision. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985); Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).

While “party” has an ordinary technical usage, we noted in Lieberman that it has a “commonly approved usage” as well. Lieberman v. Reliable Refuse Co., supra. Where a word in a statute has more than one possible meaning, and one meaning might lead to practical difficulties or constitutional infirmities, we should consider whether the legislature intended to adopt the other meaning. Black’s Law Dictionary defines “party” as “[a] person concerned or having or taking part in any affair, matter, transaction, or proceeding, considered individually” and further notes that “ ‘party’ is not restricted to strict meaning of plaintiff or defendant in a lawsuit.” Interpreting “party” in this broad manner avoids any possible encroachment on the due process rights of persons who, although not technically “parties” to the underlying FOIC proceeding, are nevertheless aggrieved by the decision.

“When application of the statute to a particular situation reveals a latent ambiguity in seemingly unambiguous language ... we turn for guidance to the purpose of the statute and its legislative history to resolve that ambiguity.” University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991). We particularly look to the history, the purpose, the objective and the underlying policy of the statute. Anderson v. Ludgin, supra. “These aids to legislative interpretation apply with equal force to amendatory acts which effectuate changes in existing statutes.” Sherry H. v. Probate Court, 177 Conn. 93, 101, 411 A.2d 931 (1979).

The reason for the legislature’s reference to “party” in § l-21i (d) is illuminated by its legislative history. Prior to 1977, the subsection provided: “Any person aggrieved by the decision of said commission may appeal therefrom . . . .” (Emphasis added.) General Statutes (Rev. to 1977) § l-21i (d). In 1977, the legislature, by enacting Public Acts 1977, No. 77-403, repealed that language and replaced it with the text presently applicable. The amended subsection was identical to its precursor in all respects except for the substitution of the word “party” for “person” in two places. The stated purpose of the proposed amendment to § l-21i (d) in House Bill No. 8080 was “[t]o correct a deficiency in the present statute and thus allow not only individuals but also state agencies who are aggrieved by a decision to appeal.” Presumably, the legislature deemed the change necessary because the word “person” as defined in the FOIA at § l-18a (c) is limited to a “natural person, partnership, corporation, association or society.” The statement of Senator DePiano, the only legislator who spoke on behalf of the bill on the floor of the Senate, directly supports the stated purpose. He informed the Senate that “[t]his bill merely changes one word in the existing statute from person to party which would then allow the attorney general to file appeals on behalf of the state agencies in regard to decisions of the Freedom of Information Commission.” 20 S. Proc., Pt. 7, 1977 Sess., p. 2798, remarks of Senator Salvatore C. DePiano. “Although statements made on the floor of the legislature are not controlling on statutory interpretation, we may take judicial notice of those statements, which are strong indications of legislative intent. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 195 n.8, 530 A.2d 171 (1987); Manchester Sand & Gravel Co. v. South Windsor, 203 Conn. 267, 276, 524 A.2d 621 (1987) . . . .” Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 310-11, 592 A.2d 953 (1991). This legislative history definitively establishes that “party” was inserted into § l-21i (d) to broaden, and not to limit, access to judicial review.

Prior to its 1977 amendment, § 1-2 li (d) required nothing more than a showing of aggrievement as a condition for standing to appeal. “ ‘An amendatory act is presumed not to change the existing law further than is expressly declared or necessarily implied.’ State v. Fahy, 149 Conn. 577, 582, 183 A.2d 256 [(1962), rev’d, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963)].” Doe v. Institute of Living, Inc., 175 Conn. 49, 63, 392 A.2d 491 (1978); see also Grodis v. Burns, 190 Conn. 39, 47 n.5, 459 A.2d 994 (1983); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 21 n.6, 434 A.2d 293 (1980). In light of the unequivocal statement of purpose and legislative history surrounding the amendment, the use of “party” in § 1-2 li (d) does not now require party status in an FOIC proceeding as a precondition for standing to appeal the decision.

The FOIC regulation defining “party” appears to be in conflict with the legislature’s use of the word. A regulation that conflicts with a statute, however, has no validity. Austin v. Housing Authority, 143 Conn. 338, 348-49, 122 A.2d 399 (1956); see also Salmon Brook Convalescent Home v. Commission on Hospitals & Health Care, 177 Conn. 356, 363, 417 A.2d 358 (1979); Breen v. Department of Liquor Control, 2 Conn. App. 628, 635, 481 A.2d 755 (1984). The term “party” in the FOIC’s regulation appropriately defines the commission’s rules with respect to who can participate as a party in an FOIC proceeding. The FOIC’s restrictive definition of “party” cannot, however, be used to deny standing to appeal to those whose interests have been injuriously affected by its proceedings.

B

Accordingly, the plaintiffs are not required, in order to have standing to appeal the FOIC’s decision in the present case pursuant to § 1-2 li (d), to show that they were actually granted party status or that they were “entitled as of right” to be made parties to the FOIC hearing. They need show only that they have been aggrieved by a decision of the FOIC. See Board of Pardons v. Freedom of Information Commission, supra, 648-49. “The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party . . . must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978); Nader v. Altermatt, [166 Conn. 43, 51, 347 A.2d 89 (1974)].” (Internal quotation marks omitted.) Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984).

We conclude that the plaintiffs have satisfied both prongs of this test. “Aggrievement is established if ‘there is some possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.’ ” Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980); O’Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953).

The plaintiffs’ personal interest follows from their specific factual allegations of aggrievement, which include that they were directly involved in the incident that led to the board’s investigation, executive session and vote. The FOIC’s own finding establishes that the board had taken action “with regard to Rose and Ro[z]arie.” (Emphasis added.) The FOIC cannot dispute that the plaintiffs’ interest in an order to disclose the substance of a board action taken “with regard to” them satisfies the requirement of a personal and legal interest in the subject matter.

The plaintiffs further alleged that their rights were substantially impaired by the FOIC’s order to the board to provide to the complainants “a record containing the recommendation for disciplinary action it approved.” The FOIC’s order to disclose the substance of that action unquestionably had an injurious effect on the plaintiffs’ interest in keeping the substance of the disciplinary action from the public. As such, we conclude that the plaintiffs were aggrieved by the decision of the FOIC and accordingly that their appeal pursuant to § l-21i (d) was properly before the Superior Court.

II

The disposition of the substantive merits of the plaintiffs’ appeal depends upon whether, as the plaintiffs contend, § 10-151c authorized the board, in approving the recommendation of its superintendent, to act upon that recommendation without publicly revealing its content. “The interpretation of statutes presents a question of law. Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 139-40, 509 A.2d 1050 (1986).” Board of Education v. Freedom of Information Commission, 217 Conn. 153, 158, 585 A.2d 82 (1991). Because the statutory construction issues were raised, briefed and argued before the trial court and before this court, and in recognition of the need for judicial economy; see Connecticut Light & Power Co. v. Department of Public Utility Control, 216 Conn. 627, 639, 583 A.2d 906 (1990); we will decide whether the open meeting provisions of § 1-21 require disclosure of the nature of the disciplinary action taken in this case.

The burden of proving the applicability of an exception to the FOIA rests upon the party claiming it. Hartford v. Freedom of Information Commission, 201 Conn. 421, 431, 518 A.2d 49 (1986); Maher v. Freedom of Information Commission, 192 Conn. 310, 315, 472 A.2d 321 (1984). The plaintiffs assert that in executive session the board considered matters involving the performance of the plaintiffs, and that the meeting and the record generated pursuant thereto would reflect matters of teacher performance. Accordingly, they maintain that the record containing the recommendation for disciplinary action, which the FOIC ordered the board to provide to the complainants, is not a “public record” for purposes of the FOIA because § 10-151c exempts such “records of teacher performance and evaluation” from disclosure. They liken disclosure of the substance of the motion to disclosure of letters of reprimand, censure or caution. We disagree.

The board is a public agency within the meaning of § l-18a (a). Section 1-21 (a) explicitly states that “[t]he votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection . . . .” (Emphasis added.) “Although we have perceived a legislative intention reflected in the Freedom of Information Act ‘to balance the public’s right to know what its agencies are doing with the governmental and private needs for confidentiality,’ we have also recognized that the general rule is disclosure and that exceptions will be narrowly construed. Wilson v. Freedom of Information Commission, 181 Conn. 324, 328-29, 435 A.2d 353 (1980).” Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 188, 470 A.2d 1209 (1984).

In adopting the FOIA in 1975, the legislature gave voice to a strong legislative policy in favor of the open conduct of government: “The Legislature finds and declares that . . . the people do not yield their sovereignty to the agencies which serve them. That the people in delegating authority do not give their public servants the right to decide what is good for them to know and that it is the intent of this Law that actions taken by public agencies be taken openly and their deliberations be conducted openly and that the records of all public agencies be open to the public except in those instances where superior public interest requires confidentiality.” (Emphasis added.) 18 H.R. Proc., Pt. 8, 1975 Sess., p. 3911, remarks of Representative Martin B. Burke; see also 18 S. Proc., Pt. 5, 1975 Sess., pp. 2323-24, remarks of Senator Robert L. Julianelle. The purpose of the statutory requirements for records of votes and minutes is thus to guarantee that the actions of government agencies will be taken in public so that the public can monitor the performance of its public officials. “Because of the tremendous increases in governmental agencies and the great impact that their actions have on the individual, it is important that individuals have knowledge of the doings of these bodies. The provisions of § 1-21 accomplish a salutary objective in this regard by requiring specific and full disclosure of their doings.” Pape v. McKinney, 170 Conn. 588, 600, 368 A.2d 28 (1976) (Bogdanski, J., dissenting).

We are unpersuaded that § 10-151c was intended to prevent the public disclosure of the substance of votes of a public agency that happen to concern matters of personnel, teacher performance or evaluation. In enacting § 10-151c, the legislature was apparently responding to an FOIC decision interpreting the § 1-19 (b) (2) exemption for personnel files as not including an exemption for teacher evaluation files. See 27 H.R. Proc., Pt. 7,1984 Sess., pp. 2547-48, remarks of Representative Michael Helfgott. We reviewed the enactment of § 10-151c in Board of Education v. Freedom of Information Commission, 210 Conn. 590, 594, 556 A.2d 592 (1989), and concluded that “the purpose of Public Acts 1984, No. 84-276 was to clarify the earlier legislative intent of § 1-19 (b) (2).” In exempting “records of teacher performance and evaluation,” the legislature intended to preserve such files from unrestricted public access, in the same manner as otherwise provided in § 1-19 (b) (2). Nothing in this legislative history suggests that the legislature intended to supersede the voting provisions of § 1-21.

The exemption contained in § 1-19 (b) (2), by its own terms, does not prevent disclosure of the substance of a public agency vote on a motion that concerns a personnel matter. We agree with the trial court that “[w]hile it is quite possible that the vote of the Board to approve the superintendent’s recommendation might generate disciplinary actions, such as the issuance of letters of reprimand, suspensions, or terminations, which in turn might produce records which would become part of the plaintiff’s personnel files, the vote itself is not such a record. The vote is a record of the Board’s activity. To hold otherwise would deprive the public of its ability intelligently to assess whether the Board members, elected officials, are doing their work properly.”

Although §§ l-18a (e) and 1-21 (a) authorize public agencies to meet in executive session to discuss matters concerning the employment, performance and evaluation of a public employee, such meetings conducted outside of the public eye are reserved for agendas that the legislature has permitted to be conducted in private. Executive sessions cannot be used to shield a public employee from disclosure of the substance of board votes taken as a result of nonpublic discussions. The potential for abuse is simply too great.

In this case, rather than comply with the requirements of § 1-21, the board adopted a formal motion whose contents were purposely withheld from the public. The plaintiffs contend that it was sufficient that the public was aware that a disciplinary action had been recommended by the superintendent and approved by the board. The public, however, had no way of knowing whether the disciplinary action approved by the board was severe or nominal. The board’s formal action was too equivocal to satisfy the requirements of the open meeting provisions of the FOIA.

Neither § 10-151c nor § 1-19 (b) (2) warranted the action by the board of education in failing to disclose the specific content of the disciplinary actions recommended by the school superintendent. The FOIC was therefore acting within the scope of its authority in ordering the board to furnish the complainants “with a record containing the recommendation for disciplinary action it approved.” “‘The . . . judgment will be affirmed, though based on erroneous grounds, if the same result is required by law.’ A & H Corporation v. Bridgeport, 180 Conn. 453, 443, 430 A.2d 25 (1980); Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978).” Henderson v. Department of Motor Vehicles, 202 Conn. 435, 461, 521 A.2d 1040 (1987). Accordingly, the trial court was correct in dismissing the plaintiffs’ administrative appeal on the merits.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 1-21 provides in pertinent part: “(a) The meetings of all public agencies, except executive sessions as defined in subsection (e) of section l-18a, shall be open to the public. The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer.”
      The Freedom of Information Act in its entirety is found in General Statutes §§ 1-15, l-18a, 1-19 through l-19b, l-20a through l-21a, and l-21c through l-21k.

       General Statutes § 10-151c provides in pertinent part: “Any records maintained or kept on file by any local or regional board of education which are records of teacher performance and evaluation shall not be deemed to be public records and shall not be subject to the provisions of section 1-19, provided that any teacher may consent in writing to the release of his records by a board of education.”

       General Statutes § 1-2 li (d) provides in pertinent part: “Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183.” (Emphasis added.)

       General Statutes § l-18a (e) defines “executive session” as a “meeting of a public agency at which the public is excluded for one of the following purposes: (1) Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting; (2) strategy and negotiations with respect to pending claims and litigation to which the public agency or a member thereof, because of his conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled; (3) matters concerning security strategy or the deployment of security personnel, or devices affecting public security; (4) discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and (5) discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-19.”

       See footnote 4, supra.

       General Statutes § 1-19 (b) (2) exempts from the purview of the FOIA “personnel or medical files and similar files the disclosure of which would constitute an invasion of privacy.”

       General Statutes § l-21i (b) provides in pertinent part: “A public employee whose personnel or medical file or similar file is the subject of an appeal under this subsection may intervene as a party in the proceedings on the matter before the commission.”

       Section l-21j-28 (a) of the Regulations of Connecticut State Agencies provides in pertinent part: “At any time prior to the commencement of oral testimony in any hearing on a contested case any person may request that the presiding officer permit that person to participate in the hearing. Any person not a party that is so permitted to participate in the hearing will be identified an intervenor in these regulations and will participate in those portions of the contested case that the presiding officer shall expressly allow.” “Intervenor” is defined in § l-21j-12 (g) of the Regulations of Connecticut State Agencies as “each person admitted by the presiding officer as a participant in a contested case who is not a party.”

       The plaintiffs did not pursue on appeal to the Superior Court the claims raised at the FOIC proceeding that the manner in which the motion was voted upon was proper pursuant to General Statutes §§ l-18a (e) and 1-19 (b)(2).

       Section l-21j-12 (f) of the Regulations of Connecticut State Agencies defines “party” as “each person or agency named or admitted by the commission as a party, or properly seeking and entitled as of right to be admitted as a party.”

       General Statutes § 4-183, which is part of the Uniform Administrative Procedure Act, details the procedures for appealing an agency decision to the Superior Court.

       We do not review the plaintiffs’ claim on appeal that the FOIC improperly denied them party status. The plaintiffs participated fully in the FOIC proeeedings as intervenors. They do not allege that their rights at the proceeding were impaired by the denial of party status. Rather, the claim that they were improperly denied party status was added to their complaint only after the trial court raised, sua sponte, the issue of the plaintiffs’ status as intervenors. The plaintiffs apparently added the claim in order to circumvent the holding of Stanchem, Inc. v. Freedom of Information Commission, 13 Conn. App. 315, 536 A.2d 592 (1988). To the extent that Stanchem, Inc., is inconsistent with this case, it is overruled.

       Apparently, the FOIC is more liberal in granting intervenor status because, under the FOIC’s definition of “party,” an intervenor has no right of appeal.

       In addition to changing “person aggrieved” to “party aggrieved,” Public Acts 1977, No. 77-403 substituted the word “party” for “person” in the following sentence: “Nothing in this section shall deprive any [person] PARTY of any rights he may have had at common law prior to January 1, 1958.”

       Section l-21j-12 (h) of the Regulations of Connecticut State Agencies defines “person” to “include any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character to which these rules of practice may apply where appropriate to the context of the regulations herein set forth.” (Emphasis added.) Although the FOIC regulations define the term “person” to include state agencies, the legislature’s narrower definition of “person” within the FOIA is controlling. Accordingly, prior to the 1977 amendment, state agencies were not authorized to appeal from FOIA decisions pursuant to General Statutes § l-21i (d).

       General Statutes § l-18a (a) provides in pertinent part: “ ‘Public agency’ or ‘agency’ means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official or body or committee thereof but only in respect to its or their administrative functions.”

       See footnote 6, supra.


author: Covello, J.

text:
    Bershtein, Bershtein and Bershtein, P.C. v. Deborah Nemeth
    (14348)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued October 31, 1991
    decision released February 25, 1992

      Mark Rademacher, for the appellant (plaintiff).

      Deborah L. Nemeth, pro se, the appellee (defendant).
   Covello, J.

This is an action for breach of contract that involves a successor attorney’s alleged agreement to pay the reasonable value of prior counsel’s legal services. The issues presented on appeal are: (1) whether there was any evidence of an express agreement by successor counsel to pay the reasonable value of prior counsel’s services; and (2) whether successor counsel’s acceptance of a case creates an implied in law contract to pay the reasonable value of prior counsel’s services. We agree with the trial court that there was no evidence of an express agreement to pay for prior counsel’s services and we conclude that no implied in law contract existed. We, therefore, affirm the judgment of the trial court.

The following facts are undisputed. On September 30, 1985, Anthony Falcigno was injured in an automobile accident. Shortly thereafter, Falcigno engaged the plaintiff law firm (law firm) in connection with his negligence claim for damages and personal injuries arising out of the accident. The law firm agreed to represent Falcigno on a contingent fee basis to the end that the firm would receive as compensation one third of any recovery obtained. In early April, 1987, Falcigno terminated his relationship with the law firm and retained the defendant, attorney Deborah Nemeth, to pursue his negligence claim. The defendant and Falcigno agreed to a similar contingent fee arrangement whereby the defendant would receive as her compensation one third of any recovery.

Later that month, the defendant requested that the law firm give her a copy of Falcigno’s file and an accounting of the work performed to date so that she might propose an agreement as to how the law firm would be compensated for the time spent on the case. The law firm never sent the defendant either the file or the accounting. There was never any written agreement between the parties as to how the law firm would be compensated for the services, and oral discussions on the subject broke down after the law firm failed to furnish the defendant with the requested copy of the file and the accounting of the services. Several months later, the defendant settled the case and disbursed the net proceeds to Falcigno. In November, 1987, after the defendant had informed the law firm of the settlement, the firm sent her an accounting of the time spent on the file totaling 117.5 hours, together with a bill to her in the amount of $14,564.90. The defendant refused to pay.

In January, 1990, the law firm commenced this breach of contract action alleging in the complaint that the defendant “agreed ... to pay the plaintiff the reasonable value of [the] legal services performed on behalf of Mr. Falcigno.” The defendant denied that this was the case. The matter proceeded to trial. At the close of the law firm’s case, the defendant moved for a dismissal pursuant to Practice Book § 302 for failure to make out a prima facie case. The trial court granted the motion and rendered judgment for the defendant concluding that there was no evidence “of any agreement of any kind that was reached” between the parties. The law firm appealed to the Appellate Court and we thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

I

The law firm first claims that, contrary to the trial court’s finding, there was evidence that the defendant expressly agreed to compensate the firm for the reasonable value of the legal services performed on behalf of Falcigno. The law firm argues that “[t]he evidence offered by the plaintiff [was] to be taken as true and interpreted in the light most favorable to the firm and every reasonable inference [was] to be drawn in [its] favor.” Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 548, 447 A.2d 406 (1982). While we agree that this is the standard to be applied in considering a motion to dismiss pursuant to Practice Book § 302, we disagree with the law firm’s contention that there was evidence of an express agreement to pay for the services at issue. The law firm is unable to point to any evidence in the record supporting the contention that an express contract existed and our examination of the record indicates that none exists. When, as here, the trial court’s conclusion that there was “no evidence ... of any agreement of any kind” between the parties is borne out by the record, it will not be disturbed on appeal. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

II

The law firm next claims that even if there was no evidence of an express undertaking by the defendant to pay the reasonable value of the services, the circumstances present give rise to an implied in law contract to do so. The law firm argues that the Connecticut Bar Association Committee on Professional Ethics, Formal Opinion No. 31 (1978), 6requires that a successor attorney provide prior counsel with: (1) an agreement establishing the method of division of the ultimate fee; or (2) a letter stating that he or she will hold the amount of the contingency fee until arrangements for its disposition between the attorneys are made either by agreement, arbitration or court order. Since the defendant did neither of these things, the law firm argues that an implied in law contract has arisen to pay the reasonable value of their services. We do not agree.

“ ‘A true implied [in fact] contract can only exist where there is no express one. It is one which is inferred from the conduct of the parties though not expressed in words. Such a contract arises where a plaintiff, without being requested to do so, renders services under circumstances indicating that he expects to be paid therefor, and the defendant, knowing such circumstances, avails himself of the benefit of those services. In such a case, the law implies from the circumstances, a promise by the defendant to pay the plaintiff what those services are reasonably worth.’ Collins v. Lewis, 111 Conn. 299, 304, 149 A. 668 [1930]; Gustave Fischer Co. v. Morrison, 137 Conn. 399, 403, 78 A.2d 242 [1951]; Automobile Ins. Co. v. Model Family Laundries, Inc., 133 Conn. 433, 439, 52 A.2d 137 [1947].” Freda v. Smith, 142 Conn. 126, 134, 111 A.2d 679 (1955). Both express contracts and contracts implied in fact are based on consent. 17A Am. Jur. 2d, Contracts § 13 n.13.

“In distinction to an implied [in fact] contract, a quasi [or implied in law] contract is not a contract, but an obligation which the law creates out of the circumstances present, even though a party did not assume the obligation, and may not have intended but in fact actually dissented from it. . . . It is based on equitable principles to operate whenever justice requires compensation to be made.” (Citations omitted; emphasis added.) Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 407, 356 A.2d 181 (1974). “With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed to examine the circumstances and the conduct of the parties and apply this standard.” Cedo Bros., Inc. v. Greenwich, 156 Conn. 561, 564-65, 244 A.2d 404 (1968).

In examining the circumstances and conduct of the parties in the present instance, we perceive from the record that the defendant requested, in addition to the file, an accounting of the law firm’s time spent on the case to date in order that an agreement pursuant to Opinion No. 31 could be formulated. The law firm refused to comply with either request. The defendant, without the benefit of the file, had to proceed with the case based upon her own initiative in what was obviously a duplication of the previously rendered legal services. It was only after she notified the law firm of the settlement that the firm sent her the previously requested accounting along with a bill for $14,564.90. “The plaintiff seeks equity only for himself, but this he may not do. One who seeks equity must also do equity and expect that equity will be done for all.” LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983). Where, as here, there was neither delivery of the requested accounting nor the case file, thereby forcing a duplication of legal effort in order to dispose of the litigant’s case, we are not inclined to say that equitable principles dictate that successor counsel pay prior counsel the reasonable value of their services.

The judgment is affirmed.

In this opinion the other justices concurred.

       There is nothing in the record concerning the extent of Falcigno’s injuries and damages or the amount of the settlement with the tortfeasor.

       Practice Book § 302 provides: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”

       The trial court also concluded that the statute of frauds, General Statutes § 52-550 (a) (2), barred the law firm’s claim because there was no writing evidencing an agreement to pay the debt of another, i.e., Falcigno’s debt to the plaintiffs. General Statutes § 52-550 (a) (2) provides: “statute OF FRAUDS; WRITTEN AGREEMENT OR MEMORANDUM, (a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged ... (2) against any person upon any special promise to answer for the debt, default or miscarriage of another
      Because we affirm the judgment on alternate grounds, we do not discuss this issue.

       On the contrary, on two occasions, the law firm’s only witness conceded that there was no express agreement, oral or written, between the parties as to any fee arrangement. The relevant colloquies occurred as follows:
      “[Defense Counsel:] Okay. And was any fee arrangement ever made with Attorney Nemeth?
      “A. No, it wasn’t.
      * * * *
      “[Q.] Just to get this straight, is it your testimony that your office has nothing signed by Attorney Nemeth agreeing to pay a specific fee to your office after settlement or trial of the case?
      “A. I don’t believe there was any agreement.
      “Q. Does that mean no, there’s no agreement?
      “A. Again I don’t know what went on after I left. No, as far as I know
      “Q. Okay. And in your file, after having reviewed the file is there any agreement signed by Attorney Nemeth?
      “A. No, there isn’t.”

       Formal Opinion No. 31 (1978) provided in pertinent part: “We conclude that when a client seeks new counsel and is met with the insistence of initial counsel that an arrangement be made to protect his fee and to honor obligations he has made to physicians, the new attorney may not accept the case unless he provides to the initial counsel one of the following:
      “a) An agreement signed by both the initial attorney and the new attorney establishing the method for division of the ultimate fee. As suggested by our Supreme Court this might be through the payment of compensation for the number of hours the initial attorney has spent or perhaps through the proration of the contingency fee between the two lawyers based upon the hours each spends: or

        “b) A letter stating that upon the conclusion of the client’s matter, he will hold in his clients’ funds account the amount required under the initial lawyer’s contingency fee arrangement until its disposition has been determined by agreement, voluntary fee dispute arbitration proceedings, or a court. . . .”
      The Connecticut Bar Association Committee on Professional Ethics, Revised Formal Opinion No. 31 (1988), replaced Formal Opinion No. 31 (1978). The commission explained that it was issuing the revised opinion because of new developments in the law and the adoption of the Model Rules of Professional Conduct in 1983. One important change in the revised opinion is the omission of language from the prior opinion that required successor counsel, when representing the same client on the same matter, to reach an agreement with prior counsel concerning fee reimbursement before accepting the case. The revised opinion is cast, instead, in terms of the discharged lawyer’s duties with respect to the former client’s file.
      Revised Formal Opinion No. 31 provides in pertinent part: “We hold that a discharged lawyer on a contingency fee violates Rule 1.16 (d) when he retains the file after demand for its surrender if (a) there is an agreement with the client or successor counsel concerning payment of fees and expenses or (b) successor counsel provides the discharged lawyer with a letter that he will hold in his clients’ funds sufficient proceeds from the settlement to pay the discharged lawyer what he would have been entitled to under his contingency fee agreement . . . until the fee dispute is resolved by a court or otherwise.”
      Rule 1.16 (d) of the American Bar Association Model Rules of Professional Conduct (1983) provides in pertinent part: “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as . . . surrendering papers and property to which the client is entitled .... The lawyer may retain papers relating to the client to the extent permitted by other law.”

       In so holding we do not intend to disavow the well established proposition that an attorney has a retaining or possessory lien on a client’s papers and files that the attorney may hold until his fee has been paid. Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 643, 529 A.2d 702 (1987). The exercise of this lien right, however, has classically arisen in the context of an attorney’s claim against the former client. In determining the rights and obligations as between prior and successor counsel, however, unwarranted retention of the file and failure to, in any manner, cooperate with successor counsel can raise equitable considerations that could operate to prior counsel’s detriment, as is the case in the present instance.