author: KATZ, J.

text:
    RIZZO POOL COMPANY v. DANIEL DEL GROSSO ET AL.
    (15511)
    Borden, Berdon, Katz, Palmer and Peters, Js.
    Argued December 5, 1996
    officially released February 18, 1997

      David L. Gussak, for the appellant (plaintiff).

      Shelley M. Weiss, for the appellees (defendants).
   Opinion

KATZ, J.

The sole issue in this appeal is whether, following this court’s order (1) reversing the judgment of the trial court in favor of the plaintiff on its complaint in the underlying action and (2) remanding the case with direction to render judgment thereon in favor of the defendants, the trial court properly awarded attorney’s fees to the defendants pursuant to General Statutes § 42-lSObb. We affirm the judgment of the trial court.

Because the scope of the issues on this appeal is limited, we need not repeat the extensive factual summary of the underlying action set forth in Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 657 A.2d 1087 (1995). In that decision, this court held that a contract between the plaintiff, Rizzo Pool Company, and the defendants, Daniel and Jo-Ann Del Grosso, to install a swimming pool at the defendants’ home was subject to the requirements of the Home Improvement Act (HIA) and the Home Solicitation Sales Act (HSSA). Accordingly, we concluded that the trial court had improperly precluded the defendants from establishing their special statutory defenses to the plaintiffs claim of breach of contract. We further concluded that, because the requirements of the HIA are mandatory and must be strictly construed, the plaintiffs undisputed violation of the HIA rendered the contracts unenforceable. Finally, we declared that because the plaintiff had not performed any of the home improvement services contemplated by the contract, the plaintiff could not establish bad faith repudiation of the contract by the defendants or claim restitutionary relief based on a theory of quasi-contract, quantum meruit or unjust enrichment. Accordingly, we concluded that the plaintiff could not recover and that the defendants were entitled to judgment on the complaint.

Following the order by this court that the case be “remanded with direction to render judgment thereon for the defendants,” the defendants moved in the trial court for attorney’s fees pursuant to § 42-150bb. The plaintiff objected, arguing that the defendants had not preserved the issue of attorney’s fees in their initial appeal. In addition, the plaintiff claimed that because we had not ordered further proceedings as part of the rescript, the trial court lacked authority to award attorney’s fees on remand. The plaintiff further argued that because the contract at issue did not fall within the definition of a consumer contract found in General Statutes § 42-151 (b), the defendants were not entitled to attorney’s fees under § 42-150bb. Finally, the plaintiff argued that, should the trial court nevertheless award attorney’s fees, those fees must be subject to the limitations on any such award under General Statutes § 42-150aa. The trial court rejected the plaintiffs arguments and, following an evidentiary hearing, awarded attorney’s fees of $6400 to Daniel Del Grosso and $7500 to Jo-Ann Del Grosso. This appeal followed. We affirm the judgment of the trial court.

I

Although the plaintiff made a number of claims before the trial court, the claims are, for all intents and purposes, simply subparts of a single issue — whether the trial court improperly awarded attorney’s fees to the defendants.

We begin with the plaintiffs argument that no procedural basis existed for the trial court’s award of attorney’s fees. Specifically, the plaintiff asserts that the defendants failed to preserve the claim for attorney’s fees at trial in accordance with Practice Book §§ 285A and 4185, and before this court as part of their original appeal. Furthermore, in the absence of any order for further proceedings by this court, the plaintiff claims that the trial court was limited to the remand order.

It is uncontested that the defendants had not requested attorney’s fees in the trial court. It is also undisputed that in their initial appeal the defendants requested only that the plaintiffs verdict be set aside and that this court either order a new trial or direct a verdict in their favor based upon the violation of the HLA. Although the defendants concede that the first time they made the request for attorney’s fees was following this court’s remand to the trial court, they nevertheless argue that the trial court properly entertained their motion. We agree with the defendants.

A

We first address the plaintiffs claim of waiver. Section 42-150bb provides for an award of attorney’s fees to a consumer who has successfully defended an action. Because in the original proceedings the defendants had been prohibited from presenting any evidence of the plaintiffs violations of the HIA and the HSSA, the statutes upon which they were relying to bring them within § 42-150bb, they never had the opportunity during the trial to seek attorney’s fees. Moreover, because the defendants had not been successful, they had neither reason nor opportunity to seek such an award at that time. We do not generally require parties to engage in futile conduct. See Vachon v. Tomascak, 155 Conn. 52, 57, 230 A.2d 5 (1967). Consequently, because the defendants were not in a position to raise the issue of attorney’s fees until they succeeded on appeal, we fail to see how they were in a position to have waived their claim. Similarly, there was no reason for the defendants to have raised the issue of an award of attorney’s fees before this court. This is not an instance of a party seeking to raise an issue after an appeal that could have been raised in the earlier appeal. See Hartford National Bank & Trust Co. v. Tucker, 195 Conn. 218, 222, 487 A.2d 528, cert. denied, 474 U.S. 845, 106 S. Ct. 135, 88 L. Ed. 2d 111 (1985). Moreover, because the defendants had no basis upon which to request an award by the trial court, there was no record upon which to seek review by this court.

Nevertheless, the plaintiff maintains that the defendants could have done one of two things: (1) prior to trial, the defendants could have notified the plaintiff that they would seek an award of attorney’s fees should they prevail in defending against the plaintiffs claim; or (2) on appeal, they could have asked this court, in the event they succeeded on appeal, to direct the trial court on remand to award attorney’s fees. The plaintiff cites no specific authority to support the assertion that either of these procedures is required, and we have found none. Indeed, unlike the plaintiffs claim or the defendants’ counterclaim, to which a request for relief properly attaches, there is no procedural mechanism by which the defendants could have alerted the trial court or the plaintiff to a future conditional request for fees.

As to the plaintiffs second proposal, although the defendants could have included a footnote in their brief alerting this court to their interest in obtaining attorney’s fees upon our remand, there is nothing to suggest that the rescript would have been any different. For the reasons set forth in part I B of this opinion, under the circumstances of this case the order to render judgment for the defendants properly left the issue of all postjudgment proceedings to the trial court, which had the evidence it needed to make the initial determination that attorney’s fees were proper. Cf. Jacobs v. Healey Ford-Subaru, Inc., 231 Conn. 707, 730-31, 652 A.2d 496 (1995) (holding trial court could not entertain request for attorney’s fees when consumer contract upon which claim was based had not been introduced into evidence).

B

The plaintiff next argues that the terms of our rescript deprived the trial court of the authority to award attorney’s fees, despite the fact that they are available as a matter of law. We are not persuaded.

“Well established principles govern further proceedings after a remand by this court. In carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. . . . This is the guiding principle that the trial court must observe. . . . Compliance means that the direction is not deviated from. The trial court cannot adjudicate rights and duties not within the scope of the remand. ... It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. No judgment other than that directed or permitted by the reviewing court may be rendered, even though it may be one that the appellate court might have directed. The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein.” (Emphasis in original; internal quotation marks omitted.) Halpern v. Board of Education, 231 Conn. 308, 311, 649 A.2d 534 (1994).

We have also cautioned, however, that our remand orders should not be construed “so narrowly as to prohibit a trial court from considering matters relevant to the issues upon which further proceedings are ordered that may not have been envisioned at the time of the remand. ... So long as these matters are not extraneous to the issues and purposes of the remand, they may be brought into the remand hearing.” (Citation omitted; internal quotation marks omitted.) Id., 313.

The relevant circumstances in this case necessarily include the fact that the attorney’s fees statute, § 42-150bb, became applicable to the defendants only after the trial court had rendered judgment in their favor, postappeal. Consequently, the trial court was required to look carefully at the words of the appellate mandate in conjunction with the language of the statute in question. Under § 42-150bb, the court has no latitude to deny such an award to a consumer who successfully defends an action brought against him by a commercial party. Therefore, despite the absence of a specific mandate in the remand order, attorney’s fees were available to the defendants by operation of law.

We expressly reject the plaintiffs implied suggestion that unless we specifically set forth, as part of the rescript, all statutorily mandated postjudgment awards, such awards are precluded. Indeed, adoption of the plaintiffs argument would have ramifications far beyond this case. In this regard, cases involving other postjudgment awards are instructive. For example, we note that costs are statutorily mandated as well; General Statutes § 52-257; and although the award of costs can be more ministerial than the award of attorney’s fees, for purposes of this issue, the guiding principles behind costs and attorney’s fees are sufficiently similar. The plaintiff has not pointed to any cases, and our research has revealed none, in which costs were specifically awarded to the prevailing party as part of the rescript. Indeed, despite the lack of a specific direction in the rescript, it is undisputed that, generally, costs have been available and have been awarded to the prevailing party by operation of such mandatory provisions for decades.

In this regard, Cassidy v. Waterbury, 130 Conn. 237, 33 A.2d 142 (1943), is instructive. In Cassidy, this court ordered the trial court to set aside the judgment and to render judgment for the defendant. Id., 246. Thereafter, the plaintiff moved to reargue the appeal so as to request the court to amend its rescript to state specifically that no costs would be taxed in favor of the now prevailing party. Id. In declining to do so, the court relied upon the usual practice of allowing costs to be determined at the trial court level, concluding that certain costs were justified although they had not been mentioned in the original remand order. Id. In the absence of any suggestion by the plaintiff in Cassidy that the usual rules as to taxation of costs should not follow upon the disposition of the appeal, the court declined to amend the rescript, out of concern that inviting postappeal motions to reargue would have the deleterious effect of delaying the publication of our decisions. Id.

Similarly, in Mazzotta v. Bornstein, 105 Conn. 242, 244, 135 A. 38 (1926), the propriety of granting then mandatory statutory interest following an appeal was confirmed, despite the absence of any express mandate in the rescript. In that case, in which the amount of the plaintiffs judgment had been increased on appeal, the court found that the trial court had, by calculating the interest on that additional amount using an incorrect date, exceeded the scope of the remand. Id., 244-45. In the course of its decision, the court noted that, “[h]ad the judgment . . . been affirmed, interest would have run, as of course, from the date of that judgment .... While the rescript did not specify that the judgment as directed bore interest from the date of the judgment appealed from, it can bear no other interpretation . . . ,” (Citation omitted; emphasis added.) Id., 244. As both Cassidy and Mazzotta illustrate, when costs and interest are statutorily mandated, and the incident of a judgment operates as a matter of law, this court has not required either to be specifically awarded in the remand order for the prevailing party to claim and receive them.

We know of no reason why in this case it was improper for the trial court to follow standard operating procedure in connection with postjudgment awards generally, and § 42-150bb specifically, in light of the defendants’ successful defense. Moreover, the plaintiff has failed to furnish us with any reasonable explanation as to how, in this case, adherence to standard procedure following our disposition of the appeal has worked a surprise or an injustice. On the record before us, there is no sufficiently compelling reason for the trial court to have deviated from established procedure. Accordingly, we conclude that the trial court properly read the rescript in Rizzo Pool Co. v. Del Grosso, supra, 232 Conn. 689, and proceeded in conformity with our expressed intent.

II

In addition to the claims of preclusion, the plaintiff asserts that because the contract at issue was not a consumer contract under § 42-151 (b), the trial court improperly relied on § 42-150bb as a basis upon which to award attorney’s fees. The defendants argue that the plaintiffs reliance on § 42-151 is misplaced and that because the contract at issue satisfied the definition of consumer contract under § 42-150bb, the award of attorney’s fees as provided therein was proper. We agree with the defendants.

The plaintiff first asserts that by originally permitting the jury to award the plaintiff attorney’s fees well in excess of 15 percent of the amount of the judgment; see General Statutes § 42-150aa; the trial court implicitly had determined that the contract at issue was not a consumer contract, a finding that remained undisturbed on appeal. We disagree with this characterization of the record.

As one of their claims in the first appeal, the defendants challenged the award of attorney’s fees to the plaintiff because the amount awarded was greater than that authorized by § 42-150aa. Because we concluded that the defendants were entitled to a directed verdict on the plaintiffs breach of contract claim, we had no reason to address that claim. Nevertheless, we did determine that the contract at issue was governed by the HIA, which governs contracts between an “owner” and a “contractor” relating to “home improvements,” which are defined as work performed on any land or building that “is used or designed to be used as a private residence [or] dwelling place . . . .” General Statutes § 20-419 (4). “Owner” is defined as “a person who owns or resides in a private residence . . . .” General Statutes § 20-419 (6). We also held that the contract for the defendants’ swimming pool fell within the parameters of the HSSA, which defines a home solicitation sale as the sale of “consumer goods or services . . . .’’General Statutes § 42-134a (a). That statute further defines consumer goods and services as “goods or services purchased . . . primarily for personal, family, or household purposes . . . .” General Statutes § 42-134a (b). Because both of these acts deal exclusively with consumer contracts, the trial court, in awarding attorney’s fees, properly treated the contract as a consumer contract for purposes of the HIA and the HSSA.

The plaintiff further argues that, even if we assume that the contract at issue is a consumer contract for purposes of the HIA and the HSSA, it is not a consumer contract for purposes of an award under § 42-150bb. Rather, according to the plaintiff, the trial court should have confined itself to chapter 742 of the General Statutes and applied the definition of consumer contract contained in § 42-151. We disagree.

Chapter 741 d of the General Statutes, entitled “Attorneys’ Fee Clauses,” contains only two sections, §§ 42-150aa and 42-150bb, both of which are specifically designated as treating attorney’s fees in actions on consumer contracts. Both sections provide a definition of “consumer contract” as one in which “the money, property or service that is the subject of the transaction is primarily for personal, family or household purposes.” Notably, § 42-150bb contains no specific monetary limit on its applicability. Indeed, aside from the proviso that attorney’s fees should be based as far as practicable on the terms governing the commercial party’s fees, § 42-150bb contains no further qualification. Judging from its terms, the focus of chapter 741d is on the amount of attorney’s fees that may be awarded, depending upon whether the claimant is the consumer or the commercial party. See part III of this opinion.

Nevertheless, the plaintiff contends that the trial court should have disregarded the provision for attorney’s fees in this chapter in favor of chapter 742, which, despite its broad title, “Consumer Contracts,” deals solely with the scope and enforcement of the plain language standard for consumer contracts. Section 42-151 (b) provides a definition of a “consumer contract,” to be applied under that chapter, which the defendants in this case admittedly cannot satisfy, and does not mention the issue of attorney’s fees.

Section 42-150bb provides its own definition of the type of contract for which attorney’s fees may be recovered. It contains no reference to the following chapter and no suggestion that § 42-151 should apply. As indicated, the first sentence of § 42-151 expressly provides that the definitions provided “shall apply in this chapter,” and does not purport to provide a global definition of “consumer contracts.” (Emphasis added.) We find no reason under the facts and circumstances of this case to look beyond § 42-150bb to define its scope or to limit its application.

Ill

The plaintiffs last challenge in this appeal concerns the amount of attorney’s fees awarded by the trial court on remand pursuant to § 42-150bb. In particular, the plaintiff argues that the trial court ignored specific statutory restrictions on the amount of such an award. We disagree.

We begin with the basic principle behind the “American rule.” “The general rule of law known as the ‘American rule’ is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975); Fleischmann Distilling Corporation v. Maier Brewing Co., 386 U.S. 714, 717, 87 S. Ct. 1404, 18 L. Ed. 2d 475 (1967). This rule is generally followed throughout the country. See 20 Am. Jur. 2d, Costs § 72. Connecticut adheres to the American rule. See, e.g., Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 14, 513 A.2d 1218 (1986); Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 140, 475 A.2d 305 (1984); Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 297, 472 A.2d 306 (1984); Litton Industries Credit Corporation v. Catanuto, 175 Conn. 69, 75, 394 A.2d 191 (1978); Central New Haven Development Corporation v. Potpourri, Inc., 39 Conn. Sup. 132, 134, 471 A.2d 681 (1983).” Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 652, 529 A.2d 702 (1987). There are few exceptions. For example, a specific contractual term may provide for the recovery of attorney’s fees and costs; see, e.g., Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 245, 440 A.2d 306 (1982); or a statute may confer such rights. See, e.g., General Statutes § 52-240a (attorney’s fees may be awarded in product liability action).

In the present action, the statute pursuant to which the defendants asserted their claim for attorney’s fees is § 42-150bb. In considering this issue, the determinative question is the proper inteipretation of the provision of § 42-150bb limiting a consumer’s award of attorney’s fees to “the terms governing the size of the fee for the commercial party.” The plaintiff contends that this provision incorporates § 42-150aa by reference, and therefore limits attorney’s fees awarded to the holder of a contract to 15 percent of the amount of the judgment. The defendants, however, argue that a consumer’s award of attorney’s fees under § 42-150bb is limited not by the provisions of § 42-150aa, but by the terms of the consumer contract. We agree with the defendants.

“In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature. . . . It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation. . . . [W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.” (Citations omitted; internal quotation marks omitted.) Dos Santos v. F. D. Rich Construction Co., 233 Conn. 14, 20, 658 A.2d 83 (1995). “When the language of a statute is unclear, we may ascertain the intent of the legislature by looking beyond the language to the statute’s legislative history and the purpose that the statute was intended to serve.” Weinberg v. ARA Vending Co., 223 Conn. 336, 341, 612 A.2d 1203 (1992).

Looking to the plain language of § 42-150bb, we are persuaded that the phrase, “the terms governing the size of the fee for the commercial party,” relates to the parties’ contract, and not to § 42-150aa. Had the legislature intended to limit a consumer’s award of attorney’s fees to 15 percent, it would have incorporated the provisions of § 42-150aa by expressly providing “as provided in section 42-150aa.” Moreover, reading § 42-150bb in context, as we must, it is clear that the phrase, “the terms governing the size of the fee for the commercial party,” relates to “the contract or lease” as provided in the immediately preceding sentence in the statute.

Furthermore, even if there were ambiguity in the plain language of § 42-150bb, our conclusion that the phrase refers to the parties’ contract is buttressed by the statute’s legislative history. In 1979, the Connecticut legislature enacted. No. 79-453 of the 1979 Public Acts, entitled “An Act Concerning Attorney’s Fee Clauses in Consumer Contracts.” The original language of Substitute Senate Bill No. 1559, prior to its subsequent amendment, makes it clear that the phrase, “the terms governing the size of the fee for the commercial party,” relates to the attorney’s fee provisions of the consumer contract. That bill provided: “Except as hereinafter provided, the size of the attorney’s fee awarded to the consumer shall be based as far as practicable upon the terms governing the size of the fee for the commercial party, and any term in such contract or lease for recovery of a,n attorney’s fee by the consumer on terms less favorable than those for the commercial party shall be void and shall constitute an unfair or deceptive act or practice in violation of chapter 735a of the General Statutes.” (Emphasis added.) Indeed, speaking on behalf of the original bill, Senator Alfred Santaniello, Jr., remarked: “This bill makes attorney’s fee clauses reciprocal. For example, a clause for the benefit of the creditor will automatically allow the attorney’s fees to the prevailing debtor who successfully prosecutes or defends an action or counterclaim based upon the contract or lease.” 22 S. Proc., Pt. 8, 1979 Sess., p. 2542.

Representative Richard D. Tulisano proposed House Amendment A, which amended Substitute House Bill No. 1559 by deleting the language that provided for unfair or deceptive business practice liability, so that the statute would not require input from the department of consumer protection. 22 H.R. Proc., Pt. 22,1979 Sess., p. 7487. In the process, the amendment inadvertently deleted the clear reference that “the terms governing the size of the fee for the commercial party” related to the attorney’s fee provisions in the contract or lease. Nevertheless, Representative Tulisano expressly stated that the statute was now “self-enforcing” in that contractual attorney’s fee provisions would be reciprocal. He stated: “[T]he legislation before us today provides [for] the first time the ability for consumers in this state to obtain attorney’s fees, of reasonable amount, as a result of defending or prosecuting any action in which the commercial party has provided for attorney’s fees for their own behalf. What this does is give some equity to the situation. At the present time, many form contracts include attorney’s fees provisions for the commercial party, and even though . . . that party may be wrong and a consumer successfully defends an action against him, or her, they would not be entitled to receive attorney’s fees in defending that action. This will put some equity in the situation to the same extent that any commercial party will receive.” Id., pp. 7487, 7489-90.

Furthermore, during the subsequent consideration of Representative Tulisano’s amendment in the Senate, Senator Salvatore C. DePiano stated: “House Amendment Schedule ‘A’ would, in effect, eliminate a provision of the bill which would have made it an unfair or deceptive trade practice for a commercial party to have included a clause in a contract or lease which provides for the recovery of attorney’s fees by a consumer on terms less favorable than those for the commercial party. . . . This bill would require that in a specified situation attorney’s fees be awarded to a consumer who successfully brings or defends an action based upon a contract or lease whenever such contract or lease provides for the attorney’s fees of a commercial party . . . .” 22 S. Proc., Pt. 13, 1979 Sess., pp. 4274-75. Indeed, at no time during the debates with respect to § 42-150bb did the legislators make a single reference to § 42-150aa. Accordingly, we conclude that the legislature clearly intended the phrase, “the terms governing the size of the fee for the commercial party,” to refer to the attorney’s fees provisions in the parties’ contract, and not to § 42-150aa.

Having reached this conclusion, we turn to the language of the parties’ contract. The relevant provision in the agreement provides that in the event of cancellation of the contract by the defendants, the plaintiff would be entitled to liquidated damages in the amount of 20 percent of the contract price, plus costs of collection and reasonable attorney’s fees. Where a contract expressly provides for the recovery of attorney’s fees, an award under such a clause requires an evidentiary showing of reasonableness. Bizzoco v. Chinitz, 193 Conn. 304, 310, 476 A.2d 572 (1984); Appliances, Inc. v. Yost, 186 Conn. 673, 680, 443 A.2d 486 (1982). A trial court may rely on its own general knowledge of the trial itself to supply evidence in support of an award of attorney’s fees. Bizzoco v. Chinitz, supra, 310. Because the trial court is in a more advantageous position to evaluate the services of counsel than a reviewing court, “[t]he amount of attorney’s fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion.” Link v. Shelton, 186 Conn. 623, 629, 443 A.2d 902 (1982). After an evidentiary hearing, the trial court awarded the defendants reasonable attorney’s fees in the total amount of $13,900. Having carefully reviewed the record, we cannot conclude that the trial court abused its discretion in arriving at this figure.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 42-150bb provides: “Attorney's tees in action based on consumer contract or lease. Whenever any cont ract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides for the attorney’s fee of the commercial party to be paid by the consumer, an attorney's fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease. Except as hereinafter provided, the size of the attorney’s fee awarded to the consumer shall be based as far as practicable upon the terms governing the size of the fee for the commercial party. No attorney’s fee shall be awarded to a commercial party who is represented by its salaried employee. In any action in which the consumer is entitled to an attorney’s fee under this section and in which the commercial party is represented by its salaried employee, the attorney’s fee awarded to the consumer shall be in a reasonable amount regardless of the size of the fee provided in the contract or lease for either party. For the purposes of this section, ‘commercial party’ means the seller, creditor, lessor or assignee of any of them, and ‘consumer’ means the buyer, debtor, lessee or personal representative of any of them. The provisions of this section shall apply only to contracts or leases in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes.”

       General Statutes § 20-418 et seq.

       General Statutes § 42-134a et seq.

       The only request by the defendants for attorney’s fees was made in connection with their counterclaim alleging fraud and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., in which they asserted § 42-150bb in their prayer for relief.

       General Statutes § 42-151 (b) provides: "Consumer contract. A written agreement is a ‘consumer contract,’ if:
      “(1) A consumer enters into the agreement primarily for personal, family or household purposes; and
      “(2) The agreement is one in which the consumer: (A) Borrows up to twenty-five thousand dollars or receives up to twenty-five thousand dollars in credit from a person who lends money or extends credit in the ordinary course of business; or (B) agrees to pay up to twenty-five thousand dollars to buy or lease personal property or services from a person who is acting in the ordinary course of business; or (C) leases any residential dwelling.”

       General Statutes § 42-150aa provides: “Attorney’s fees limited in actions on consumer contracts or leases, (a) The holder of any contract or lease entered into on or after October 1, 1979, the subject of which is money, property or services intended to be used primarily for personal, family or household purposes and which contains a provision for payment of attorney’s fees of a creditor, seller or lessor, shall not receive, claim or collect any payment for attorney’s fees (1) for an attorney who is a salaried employee of such holder or (2) prior to the commencement of a lawsuit.
      “(b) If a lawsuit in which money damages are claimed is commenced by an attorney who is not a salaried employee of the holder of a contract or lease subject to the provisions of this section, such holder may receive or collect attorney’s fees, if not otherwise prohibited by law, of not more than fifteen per cent of the amount of any judgment which is entered.”

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). While the case was pending before the Appellate Court, the defendants moved to dismiss the appeal as untimely pursuant to Practice Book § 4009, claiming that the appeal should have been taken from the granting of the defendants’ motion for attorney’s fees on December 12, 1995, rather than from the determination of the amount of those fees on February 5, 1996. The Appellate Court denied the motion to dismiss without prejudice to raising the issue at oral argument. Although the parties briefed this issue, the defendants withdrew the claim at oral argument, based upon this court’s decision in Paranteau v. DeVita, 208 Conn. 515, 523, 544 A.2d 634 (1988).

       Practice Book § 285A provides: “The parties may, as of right, or shall, if the court so orders, file, at such time as the court shall determine, written trial briefs discussing the issues in the case and the factual or legal basis upon which they ought to be resolved.
      “If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the appellate court to decide the claim.”

       Practice Book § 4185, which has since been repealed, effective September 3, 1996, provided in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was raised distinctly at the trial or arose subsequent to the trial. . . .” This language has been incorporated into Practice Book § 4061.

       When this court held that the HIA was applicable to the contract at issue, it could have remanded the case for a new trial on whether the contract complied with the requirements of the HIA. That action would have allowed the defendants, after successfully defending against the action, to assert the protections afforded under the HIA and to request an award of attorney’s fees. This court chose, however, to examine the matter further and concluded as a matter of law that the contract did not comply with the HIA. Rizzo Pool Co. v. Del Grosso, supra, 232 Conn. 681-82. Thus, according to the plaintiff’s logic, by prevailing against the plaintiff on appeal, the defendants should get less despite having won more.

       General Statutes § 52-257 and Practice Book § 412 establish the general procedure for the taxation of costs in cases in which money damages have been awarded. The taxation of costs in civil cases begins with action by the court clerk and either party may appeal from such taxation to the court. The clerk in essence acts as an agent of the court, and the clerk’s action becomes part, of the trial court’s judgment in the matter when there has been no resulting appeal. This general procedure applies in any civil action in which there is a prevailing party in whose favor a decision or verdict is rendered, money damages awarded and a judgment rendered. Where equitable relief is demanded, the taxing of costs is solely within the discretion of the trial court,. See General Statutes § 52-257 (e) and Practice Book § 422.
      General Statutes § 52-81, which mandates the taxation of costs upon withdrawal of an action, has been interpreted so as to require the party against whom an action has been withdrawn to follow the procedures of Practice Book § 412. “While the clerk has no discretion to order the taxation of the costs, the amount of the costs might well be contested at a hearing before the clerk. An appeal from that decision would lie in the trial court. . . . Should the clerk refuse to tax any costs pursuant to ... § 52-81, the remedy is to petition to the court to order the clerk to perform an act as required by law.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Triangle Contractors, Inc. v. Young, 20 Conn. App. 218, 222, 565 A.2d 262 (1989).

       Prior to July of 1983, pursuant to statute, interest was an automatic incident of a judgment. General Statutes (Rev. to 1983) § 52-349 provided in pertinent part that after judgment was rendered upon a verdict, after denial of a motion to set aside, or upon affirmation of that ruling on appeal, “legal interest upon the amount of the verdict from the time it was rendered shall be collected on the execution upon the judgment.” That statute was repealed by No. 83-581 of the 1983 Public Acts, effective July 14, 1983.

       See footnote 6.

       “The jury returned a verdict for the plaintiff on its complaint in the total amount of $26,292.80, awarding the plaintiff $7562 in damages, $3250.80 in interest, and $15,480 in attorney’s fees.” Rizzo Pool Co. v. Del Grosso, supra, 232 Conn. 674-75.

       Speaking on behalf of No. 79-532 of the 1979 Public Acts, entitled “An Act Concerning' Plain Language in Consumer Contracts,” Representative Robert F. Frankel stated: “This bill that appears before you is the second component of the plain language package. As you may recall, two weeks ago we took the first component, the insurance section, and that has passed this House as well as the Senate. This component as I indicated at that time, deals with other consumer contracts other than insurance. It deals with consumer contracts, which are defined in the bill of amounts of $25,000 or less, consumers contracts defined to be those involving personal, family or household purposes.” 22 H.R. Proc., Pt. 23, 1979 Sess., p. 7943.

       Because the contract at issue was for $37,810, it could not be a “consumer contract” within the meaning of § 42-151 (b). See footnote 5.

         See footnote 6.

       We note that, were we to accept the plaintiffs argument that the award of attorney’s fees is limited by § 42-150aa to 15 percent of the judgment, the defendants would receive no attorney’s fees because they were not awarded a judgment. Surely, the legislature did not intend such an irrational result. “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) Ciarelli v. Commercial Union Ins. Cos., 234 Conn. 807, 812, 663 A.2d 377 (1995).
      Although we read the language in § 42-150bb to refer to the attorney’s fees provision in the parties’ contract, we are not unmindful that when contracts are limited by statutory provisions, those provisions are generally considered to be incorporated therein as a matter of law. See Sanghavi v. Paul Revere Life Ins. Co., 214 Conn. 303, 307, 572 A.2d 307 (1990); Nationwide Ins. Co. v. Gode, 187 Conn. 386, 399, 446 A.2d 1059 (1982), overruled in part on other grounds, Covenant Ins. Co. v. Coon, 220 Conn. 30, 36 n.6, 594 A.2d 977 (1991); Safeco Ins. Co. v. Vetre, 174 Conn. 329, 332-33, 387 A.2d 539 (1978). Thus, whenever there is an attorney’s fees clause in the commercial party's contract, that clause is subject to § 42-150aa, and the contract must be read as incorporating that provision’s 15 percent limitation. Therefore, when a consumer prevails on a counterclaim, his attorney’s fees, like those of the successful contractor, would be limited to the 15 percent provision of § 42-150aa. This reading wmuld be consistent with both the language of § 42-150bb (“the size of the attorney’s fee awarded to the consumer [would] be based as far as practicable upon the terms governing the size of the fee for the commercial party”) and the purpose of the statute, namely, to make the '“attorney’s fees clauses reciprocal.” 22 S. Proc., Pt. 8, 1979 Sess., p. 2542, remarks of Senator Alfred Santaniello, Jr.
      In the case in which the consumer prevails on a counterclaim and successfully defends against a claim by the contractor, the 15 percent provision of § 42-150aa will prevail to control the fees generated by the counterclaim, while “'reasonable” will be the operative term controlling attorney’s fees generated in connection with the defense to the contractor’s action. See footnote 19. How the trial court allocates the consumer’s attorney’s fees between those two aspects of the case will necessarily call for the exercise of the court’s sound discretion.

       We further recognize that, in some instances, the parties’ contract may provide.for attorney’s fees based upon 15 percent of the recovery. In these circumstances, should the consumer prevail in defending an action brought by the commercial party, the consumer would receive pursuant to the contractual terms 15 percent of nothing — which would, of course, be nothing. Accordingly, an award of attorney’s fees based upon the terms of the contract would not be practicable. See General Statutes § 42-150bb (“[e]xcept as hereinafter provided, the size of the attorney’s fee awarded to the consumer shall be based as far as practicable upon the terms governing the size of the fee for the commercialparty” [emphasis added]). Therefore, notwithstanding the contractual terms that would effectively provide the consumer with no attorney’s fees, the consumer nevertheless would be entitled to an award ofreasonable attorney’s fees. See Crest Plumbing & Heating Co. v.DiLoreto, 12 Conn. App. 468, 480, 531 A.2d 177 (1987) (construing contractual attorney’s fees provision as award for “reasonable attorney’s fees” because “reasonable” is implied by law even when absent in contractual provision).

       Because the decision to award appellate attorney’s fees “is discretionary and a matter appropriately determined by the trial court”; Neiditz v. Housing Authority, 42 Conn. App. 409, 413, 679 A.2d 987 (1996); we do not address the defendants’ claim for appellate attorney’s fees.


source: Caselaw Access Project

author:
MCDONALD, J.
      BORDEN, J., with whom KATZ, J.,

license: Public Domain

text:
    RIMIKO CAFFE v. BENEDICT CAFFE
    (15400)
    Callahan, C. J., and Borden, Katz, Palmer and McDonald, Js.
    Argued December 11, 1996
    officially released February 25, 1997

      William F. Gallagher, with whom, on the brief, were Barbara L. Cox and Althea S. Dinan, for the appellant (plaintiff).

      Gary Oberst, with whom were Michael Applebaum and, on the brief, Joshua Kammerman, for the appel-lee (defendant).
   Opinion

MCDONALD, J.

The sole issue raised by this certified appeal is whether, in this marriage dissolution action, the Appellate Court properly reversed the trial court’s judgment as to financial matters on the ground that the trial court failed to refer to the statutes governing such matters. Caffe v. Caffe, 236 Conn. 917, 673 A.2d 1144 (1996). Because we conclude that the trial court stated that it had considered the criteria enumerated in the relevant statutes and that the trial court need not have referred specifically to such statutes, we reverse the Appellate Court’s judgment.

The following facts are relevant. The plaintiff, Rimiko Caffe, commenced an action against the defendant, Benedict Caffe, for the dissolution of marriage, alimony, custody and support of the parties’ minor child, and allocation of the marital home and other property. After a trial lasting fourteen days, the trial court issued a lengthy memorandum of decision granting a dissolution of the marriage, resolving the various financial matters, and determining custody and visitation of the couple’s minor child. The defendant appealed from the trial court’s judgment to the Appellate Court and subsequently filed a motion for articulation asking the trial court whether it had considered, among other things, the parties’ financial affidavits when calculating its award. The trial court responded that it had considered these affidavits, which detailed the parties’ income, expenses, assets and liabilities. In its original memorandum of decision, the trial court had discussed the length of the marriage, the plaintiffs health problems and employability, and the defendant’s fault in the breakup of the marriage, and referred, in detail, to the defendant’s income and assets. Specifically, the trial court discussed child support, alimony, communications between the parties regarding the upbringing of then-child, the parties’ incomes, school tuition, health and life insurance, allocation of the marital property, allocation of the minor child’s tax deduction eligibility for puiposes of claiming income tax dependency, and payment of attorney’s fees.

The Appellate Court directed a new trial on the financial matters, concluding that the trial court should “make some reference to the statute or statutes involved so that appellate courts will have guidance as to whether a court’s discretion is being exercised properly.” Caffe v. Caffe, 40 Conn. App. 178, 179, 669 A.2d 629 (1996). We granted the plaintiffs petition for certification for review of the Appellate Court’s judgment.

On appeal, the plaintiff argues that the trial court’s judgment should not have been reversed because the court was not required to cite the statutory criteria upon which its decision was based. Conversely, the defendant argues that the trial court was required to cite the statutory criteria it had considered and to make explicit findings as to each criteria. We are not persuaded by the defendant’s argument.

General Statutes §§ 46b-81, 46b-82 and 46b-84 set forth the criteria that a trial court must consider when resolving property and alimony disputes in a dissolution of marriage action. The court must consider all of these criteria. Siracusa v. Siracusa, 30 Conn. App. 560, 566, 621 A.2d 309 (1993). It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express findings as to each statutory factor. “A ritualistic rendition of each and every statutory element would serve no useful purpose.” Carpenter v. Carpenter, 188 Conn. 736, 740, 453 A.2d 1151 (1982). Further, the trial court is vested with wide discretion and broad powers in resolving such matters. Rostain v. Rostain, 213 Conn. 686, 689, 569 A.2d 1126 (1990). Therefore, the “trial court is free to weigh the relevant statutory criteria without having to detail what importance it has assigned to the various statutory factors.” (Internal quotation marks omitted.) Collucci v. Collucci, 33 Conn. App. 536, 539, 636 A.2d 1364 (1994); see also Rummel v. Rummel, 33 Conn. App. 214, 222, 635 A.2d 295 (1993); Savage v. Savage, 25 Conn. App. 693, 701, 596 A.2d 23 (1991).

Appellate courts look at the record, and determine whether “the [trial] court either incorrectly applied the law or could not reasonably conclude as it did.” Weiman v. Weiman, 188 Conn. 232, 234-35, 449 A.2d 151 (1982). Our review of the trial court’s memorandum of decision and its articulation convinces us that the trial court made sufficient reference, perhaps not in form but in substance, to the factors it considered so that an appellate court would have guidance as to whether the trial court’s discretion was properly exercised. Accordingly, the fact that the trial court did not explicitly refer to the statutes governing its analysis in no way suggests that its analysis was incomplete.

The judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to consider the defendant’s remaining claims on appeal.

In this opinion the other justices concurred.

BORDEN, J., with whom KATZ, J.,

joins, concurring. I agree with the majority and join its opinion. I write separately to elaborate on several points that are implicit in the majority’s reasoning.

We granted the plaintiffs petition for certification to appeal from the judgment of the Appellate Court, limited to the following issue: “Under the circumstances of this dissolution of marriage case, did the Appellate Court properly reverse the judgment of the trial court as to financial matters on the ground that the trial court did not refer to the statutes governing such matters?” Caffe v. Caffe, 236 Conn. 917, 673 A.2d 1144 (1996). The Appellate Court had reversed the trial court’s judgment on the basis of the following rationale: “The [trial] court’s only relevant conclusion was that the fault for the irretrievable breakdown of the marriage was that of the defendant. Although a court need not make express findings on each of the statutory criteria, or give equal weight to each of them, it should, at least, make some reference to the statute or statutes involved so that appellate courts will have guidance as to whether a court’s discretion is being exercised properly.” (Emphasis added.) Caffe v. Caffe, 40 Conn. App. 178, 179, 669 A.2d 629 (1996). In my view, this misreads the record, and is inconsistent with the usual role of an appellate court in reviewing a trial court’s judgment.

This statement by the Appellate Court misreads the record in this case because the reason for the breakdown of the marriage was not the only statutory factor that the trial court specifically mentioned in its memorandum of decision. It also specifically referred to the plaintiffs health and employability. The trial court specifically stated: “The court notes that the plaintiff claims she has limitations in her ability to find work. She shall forthwith apply for social security disability benefits.” Furthermore, the trial court, in its articulation filed in response to the Appellate Court’s order, specifically stated that the parties’ financial affidavits “were in fact reviewed by the court and used in making the rulings on the financial matters as set out in its memorandum of decision.” This statement clearly indicates that the trial court considered the statutory criteria of the parties’ income, expenses, assets and liabilities, because those are the factors disclosed by their affidavits.

The rationale of the Appellate Court is inconsistent with our jurisprudence regarding the role of an appellate court in reviewing a trial court’s judgment because the usual rule is that the trial court is presumed to have applied the law correctly, and it is the burden of the appellant to show to the contrary. See DiBerardino v. DiBerardino, 213 Conn. 373, 385, 568 A.2d 431 (1990). Indeed, even if the trial court record is ambiguous, we read the record to support, rather than to undermine, the judgment. State v. Crumpton, 202 Conn. 224, 232, 520 A.2d 226 (1987). Reversing the trial court solely because, in issuing its decision, it did not specifically “make some reference to the statute or statutes involved,” is inconsistent with that body of jurisprudence, and elevates the form of what the trial court did over its substance.

In this case, the trial court heard evidence for fourteen days, during which time it took seventy-seven pages of notes. The court issued an eleven page written memorandum of decision detailing its findings as to the cause of the marital breakdown, as well as its orders on the following items: alimony; custody and visitation; child support; consultation between the parties regarding the upbringing of the minor child; allocation of assets and liabilities; the plaintiffs health and ability to work; health and life insurance; school tuition for the child; attorney’s fees; and allocation of the child for purposes of claiming an income tax dependency. There is no reason to believe, and the defendant did not establish, that in undertaking this task the trial court did so without taking into account the applicable law. Although it is preferable that the trial court refer to the relevant statutes, the fact that the court did not refer to the statutes that governed its task does not establish that it disregarded them.

Finally, the reason given by the Appellate Court for its apparent requirement that the trial court refer to the applicable statutes — “so that appellate courts will have guidance as to whether a court’s discretion is being exercised properly” — is unpersuasive. Appellate courts routinely decide cases involving the exercise of discretion by trial courts without the benefit of the trial court having specifically cited the statute, case law or legal criteria governing that exercise. There is no reason to impose a greater burden of appellate review in cases involving marital dissolution. Our task is to examine the record and to determine whether “the court either incorrectly applied the law or could not reasonably conclude as it did.” Weiman v. Weiman, 188 Conn. 232, 234-35, 449 A.2d 151 (1982).

       Unfortunately, the judge trial referee, Hon. Thomas J. O’Sullivan, died during the pendency of this appeal.

       The defendant raised the following issues before the Appellate Court: (1) “Did the court fail to consider the appropriate statutory criteria and grant an unreasonable distribution of assets and inequitable awards of alimony and child support, thereby abusing its discretion?” (2) “Was the trial court’s inference of adultery based on erroneous findings of fact that are contradicted by the testimony of witnesses and statements made by the court during the trial?” and (3) “Was the defendant denied a fair trial when the court continuously allowed [the] plaintiffs counsel to coach her witnesses through the use of leading questions and improper objections despite defense counsel’s repeated objections and motions for mistrial?”

       General Statutes § 46b-81 provides in relevant part: “Assignment of property and transfer of title ....
      “(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”
      General Statutes § 46b-82 provides in relevant part: “Alimony. At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other .... In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may malee pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”
      General Statutes § 46b-84 provides in relevant part: “Parents’ obligation for maintenance of minor child. Order for health insurance coverage, (a) Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance. . . .
      “(c) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.

       The defendant may not be entitled to appellate review, however, if he has displayed defiance of court orders. It is within the Appellate Court’s discretion to dismiss the defendant’s appeal under such circumstances. Greenwood v. Greenwood, 191 Conn. 309, 313, 464 A.2d 771 (1983).

       The trial court was asked by the defendant, in his motion for articulation, to respond to the following question: “Can the Court articulate the proper statutory and common law criteria applied in its decision after weighing the evidence presented?” The court declined to do so because it considered the question “too vague and general.”


author: NORCOTT, J.

text:
    JOHN MAJERNICEK, SR., ET AL. v. HARTFORD CASUALTY INSURANCE COMPANY
    (15461)
    Callahan, C. J., and Borden, Norcott, Katz and Palmer, Js.

      Argued November 7, 1996
    officially released February 25, 1997

      Frank A. Bailey, with whom was Jason E. Tremont, for the appellants-appellees (plaintiffs).

      Philip F. von Kuhn, for the appellee-appellant (defendant).
   Opinion

NORCOTT, J.

The principal issue in this appeal is whether General Statutes § 38a-343 (a) requires an insurer to provide written notice of cancellation of an automobile insurance policy when an insured triggers the policy’s automatic termination clause by procuring other similar insurance. The plaintiffs, Georgetta Majer-nicek, John Majernicek, Sr., and John Majernicek, Jr., appeal from the judgment of the trial court, which determined that the automobile insurance policy (policy) issued by the defendant, Hartford Casualty Insurance Company, was not in effect at the time that John Majer-nicek, Jr., was injured in a motor vehicle accident because the automatic termination clause rendered the policy inoperative. We affirm the judgment of the trial court.

The relevant facts are as follows. On June 29, 1990, John Majernicek, Jr., was severely injured when an automobile struck the motorcycle on which he was a passenger. He brought an action against the driver of the car, which he ultimately settled for the full amount of the driver’s liability coverage. At the time of the accident, he resided with his parents. After reaching a settlement with the driver, he sought underinsured motorist benefits under a policy that the defendant had issued to his parents. The defendant initially accepted the claim and made a settlement offer to him, which he rejected.

Thereafter, the defendant denied coverage, and the plaintiffs filed this application with the Superior Court seeking an order to require the defendant to proceed with arbitration in accordance with provisions of the policy. The defendant opposed the motion to proceed with arbitration claiming that the arbitration provision of the policy was inapplicable because the policy was not in effect at the time of the accident. In support of its position, the defendant noted that the policy provided for automatic termination in the event that the insureds obtained other similar coverage, and that Georgetta and John Majernicek, Sr., had, in fact, procured such other coverage with the Allstate Insurance Company (Allstate), prior to the accident. The defendant also claimed that Georgetta Majernicek had sent the defendant a written request to cancel the policy on behalf of both herself and her husband, who was out of the country at the time.

The plaintiffs responded with four reasons why the court should enforce the policy. First, they claimed that the policy’s automatic termination clause was invalid because itviolated General Statutes §§ 38a-341 (3), 38a-342 4and 38a-343 (a), and, accordingly, the defendant was bound by a written notice that it earlier had sent to Georgetta and John Majernicek, Sr., indicating that their policy would not be canceled until July 5, 1990. Second, even though Georgetta did sign and send a written cancellation request to the defendant, the plaintiffs claimed that the cancellation request was ineffectual because it was signed only by Georgetta, who did not act as her husband’s agent, and because the cancellation document contained fatal defects and omissions. Third, according to the plaintiffs, the defendant’s act of sending written notice to Georgetta and John Majer-nicek, Sr., that their insurance would be canceled only as of July 5, 1990, led them reasonably to believe that the policy was still in effect on the date of the accident. Finally, the plaintiffs asserted that the defendant had waived its right to disclaim coverage by sending notice of a July 5,1990 cancellation date, by initially accepting the claim and appointing an arbitrator, and by offering to settle the case.

After a hearing on the merits, the trial court concluded that the policy was not in effect at the time of the accident because the purchase of other insurance coverage from Allstate triggered the automatic termination clause in the policy, terminating the coverage of the defendant’s policy. In its memorandum of decision, the trial court stated that “[t]he Allstate policy was effective as of June 1, 1990, therefore, the defendant’s policy terminated as of that same date. . . . [T]he doctrine of waiver does not apply in the circumstances of this case . . . [and therefore] discussion of the plaintiffs’ cancellation claims [is] unnecessary.” Accordingly, the trial court denied the plaintiffs’ application for an order to proceed with arbitration. The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

On appeal, the plaintiffs contend that the trial court improperly concluded that: (1) the enforcement of the automatic termination clause in the policy did not violate § 38a-343 (a), which required written notice of intent to cancel the policy; and (2) the defendant had not waived its right to refuse coverage. We are not persuaded by either of these claims. Accordingly, we affirm the judgment of the trial court.

I

The plaintiffs first challenge the trial court’s conclusion that the purchase of an automobile insurance policy from Allstate triggered the policy’s automatic termination of coverage clause and thereby precluded John Majernicek, Jr., from recovering under the uninsured motorist provision of the policy. The plaintiffs contend that the automatic termination clause in the policy is invalid because it violates the requirement in § 38a-343 (a) that an insurer provide written notice before canceling an automobile insurance policy. We disagree.

This court has never considered whether a clause automatically terminating an insurance policy upon the procurement of other insurance conflicts with the written notice requirement of § 38a-343 (a). We find guidance, however, in an analysis of § 38a-343 and in the precedents from other jurisdictions with similar statutory notice requirements. We begin our analysis of this issue by considering the text of § 38a-343 (a), noting at the onset that our analysis is “guided by settled principles of statutory construction that assist us in ascertaining the intent of the legislature. . . . The legislative intent is to be discerned by reference to the language of the statute, its legislative history and surrounding circumstances, the policy the [statute] was designed to implement, and the statute’s relationship to the existing legislation and common law principles governing the same subject matter. . . . Hunte v. Blumenthal, 238 Conn. 146, 152, 680 A.2d 1231 (1996).” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 101, 680 A.2d 1321 (1996).

General Statutes §§ 38a-341 through 38a-344 govern the procedures for the cancellation of an automobile insurance policy by an insurer. Under § 38a-342, an insurer can choose to cancel a policy due to the insured’s failure to pay the premium, or because of the revocation of the insured’s driver’s license or motor vehicle registration or that belonging to any operator living with the insured. Section 38a-343 (a) provides that “[n]o notice of cancellation of policy to which section 38a-342 applies may be effective unless sent, by registered or certified mail or by mail evidenced by a certificate of mailing, or delivered by the insurer to the named insured at least forty-five days before the effective date of cancellation, provided where cancellation is for nonpayment of premium at least ten days’ notice of cancellation accompanied by the reason therefor shall be given. . . .”

The plaintiffs argue that, even though Georgetta and John Majemicek, Sr., purchased similar insurance from Allstate, § 38a-343 (a) obligated the defendant to send written notice of cancellation to them. We find no support for the plaintiffs’ view either in the plain language or in the legislative history of § 38a-343 (a). Rather, in enacting § 38a-343 (a), the legislature appears to have intended to eliminate the potentially harsh consequences to an insured of driving without knowing that his or her policy was inoperative. See 13 H.R. Proc., Pt. 10, 1969 Sess., p. 4437, remarks of Representative Gerald Stevens (“[i]f . . . someone has his insurance policy canceled and is driving under the mistaken impression that he has insurance and subsequently is involved in an accident, the consequences can be rather severe”); see also Johnston v. American Employers Ins. Co., 25 Conn. App. 95, 97-98, 592 A.2d 975 (1991) (“purpose of General Statutes § 38a-343 ... is to assure that before an automobile insurance policy is cancelled the insured has a clear and unambiguous notice of the cancellation”). Thus, the requirement that an insurer provide an insured with notice of its decision to cancel an automobile insurance policy was a legislative effort that focused on affording an insured an adequate opportunity to procure other insurance.

In the present case, the purchase of the Allstate policy was an affirmative act by Georgetta and John Majemi-cek, Sr., unilaterally terminating the defendant’s policy, rather than a basis for a decision by the defendant whether to cancel the policy. Written notice of cancellation obviously was not necessary in order for Georgetta and John Majemicek, Sr., to have had an adequate opportunity to procure other insurance. Indeed, their purchase of similar insurance from Allstate was the means by which they triggered the policy’s automatic termination clause. Consequently, requiring the defendant to provide a written cancellation notice to them after they had triggered the automatic termination clause by procuring other similar insurance would not have furthered the legislative purpose of § 38a-343 (a). We can discern no public policy reason for extending the reach of § 38a-343 (a) to allow an insured to terminate apolicy by his or her own action, and yet retain coverage under the insurer’s policy solely because the insurer did not send written notice of cancellation. Accordingly, we conclude that, when an insured triggers an automatic termination clause by obtaining other insurance, the insurer is not obligated by § 38a-343 (a) to send the insured notice of cancellation.

Decisions of other jurisdictions with similar statutory notice requirements support this conclusion. In Taxter v. Safeco Ins. Co. of America, 44 Wash. App. 121, 126-27, 721 P.2d 972 (1986), the Washington Court of Appeals upheld an automatic termination clause against a claim by an insured that the clause violated a statute requiring an insurer to provide twenty days written notice before canceling an insurance policy. The court reasoned that “[t]he term ‘cancellation’ refers to a unilateral act of the insurer terminating coverage during the policy term. . . . The purpose of the ‘notice’ statutes is to provide the insured the opportunity to obtain other insurance prior to cancellation. . . . Courts have held [that this notice statute] is not applicable when it is the insured’s act which brings about the termination of the policy and have refused to apply it. . . . Here, it was the act of the insured . . . that resulted in the termination. That termination did not leave [the insured] without coverage because of the [other] policy; hence, the purpose of the notice statutes remains unimpaired.” (Citations omitted.) Id. Similarly, in Stith v. Milwaukee Guardian Ins., Inc., 44 Ohio App. 3d 147, 148-49, 541 N.E.2d 1071 (1988), the Ohio Court of Appeals followed the Taxter rationale in upholding an automatic termination clause against the claim that the clause violated the statutory notice requirement. The court stated that “[w]e do not agree that [the notice statute] governs the method of cancellation in all situations. It is apparent that the purpose of this statute is to provide the insured with adequate notice of an impending cancellation, thus affording the opportunity to obtain other automobile insurance. However, when the automobile insurance cancellation is predicated upon the insured’s purchase of other insurance, the purpose of the statute remains unimpaired. . . . We hold, therefore, that such an automatic termination provision is valid.” (Citation omitted.) Id., citing Taxter v. Safeco Ins. Co. of America, supra, 126-27. We are persuaded by the reasoning of these decisions.

The plaintiffs further contend that their position is supported by the principle that strict compliance by an insurer with statutory mandates and policy provisions concerning notice is essential to effect a policy cancellation, and that any uncertainty as to the meaning of a notice from an insurer to its insured must be resolved against the insurer in favor of the insured. See Travelers Ins. Co. v. Hendrickson, 1 Conn. App. 409, 412-13, 472 A.2d 356 (1984). We do not disavow the principle that when written notice of cancellation is required, an insurer must comply strictly with policy provisions and statutory mandates. In the present case, the defendant did not cancel the policy. Rather, Georgetta and John Majernicek, Sr., terminated the policy of their own accord. Because the triggering of the automatic termination clause eliminates the necessity of compliance with the notice requirement of § 38a-343 (a), strict compliance with statutory and policy notice provisions is not relevant to the resolution of plaintiffs’ claim.

II

The plaintiffs also contend that the trial court improperly concluded that the defendant did not waive its right to refuse coverage for John Majernicek, Jr. We are not persuaded.

“Waiver is the intentional relinquishment of a known right. Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 251, 618 A.2d 506 (1992); Olean v. Treglia, 190 Conn. 756, 772, 463 A.2d 242 (1983); Multiplastics, Inc. v. Arch Industries, Inc., 166 Conn. 280, 286, 348 A.2d 618 (1974); Brauer v. Freccia, 159 Conn. 289, 295, 268 A.2d 645 (1970). ” Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 777, 653 A.2d 122 (1995). “Our review of the trial court’s determination is guided by the principle that, because waiver ... [is a question] of fact; New York Annual Conference v. Fisher, 182 Conn. 272, 300, 438 A.2d 62 (1980); we will not disturb the trial court’s findings unless they are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Hanover Ins. Co. v. Fireman’s Fund Ins. Co., 217 Conn. 340, 350, 586 A.2d 567 (1991).

Before the trial court, the plaintiffs argued that even if the policy issued by the defendant did terminate on June 1, 1990, the effective date of the Allstate policy, the defendant waived its right to disclaim coverage by sending notice of a July 5, 1990 cancellation date, by initially accepting the claim, by appointing an administrator, and by offering to settle the case. The trial court concluded that the plaintiffs had not sustained their burden of proving waiver by the defendant because they had failed to demonstrate that the defendant knew that Georgetta and John Majemicek, Sr., had terminated the policy by purchasing the Allstate policy.

Our review of the record supports the trial court’s finding that, at the time of the defendant’s conduct on which the plaintiffs rely, the defendant lacked any knowledge that a similar- policy had been obtained from Allstate. “[W]here one lacks knowledge of a right there is no basis upon which a waiver of it can rest. . . .” (Citations omitted; internal quotation marks omitted.) Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 562, 316 A.2d 394 (1972). We conclude that the trial court’s finding was not clearly erroneous.

The judgment is affirmed.

In this opinion the other justices concurred.

       The automatic termination clause in the defendant’s policy provides: “If you obtain other insurance on your covered auto, any similar insurance provided by this policy will terminate as to that auto on the effective date of the other insurance.”

       General Statutes § 38a-341 (3) provides: “ 'Nonpayment of premium’ means failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums on the policy, or any instalment of such premium, whether the premium is payable directly to the insurer or its agent or indirectly under any premium finance plan or extension of credit . . . .”

       General Statutes § 38a-342 provides: “(a) A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons: (1) Nonpayment of premium; (2) the driver’s license or motor vehicle registration of either the named insured or any operator either resident in the same household or who customarily operates an automobile insured under the policy has been revoked during the policy period or, if the policy is a renewal, during its policy period or the one hundred eighty days next preceding its effective date.
      “(b) This section shall not apply to any policy issued under an automobile residual market mechanism or to any policy or coverage which has been in effect less than sixty days at the time notice of cancellation is mailed or delivered by the insurer unless it is a renewal policy or t,o nonrenewal.”

       General Statutes § 38a.-343 (a) provides: “No notice of cancellation of policy to which section 38a-342 applies may be effective unless sent, by registered or certified mail or by mail evidenced by a certificate of mailing, or delivered by the insurer to the named insured at least forty-five days before the effective date of cancellation, provided where cancellation is for nonpayment of premium at least ten days' notice of cancellation accompanied by the reason therefor shall be given. No notice of cancellation of a policy which has been in effect for less than sixty days may be effective unless mailed or delivered by the insurer at least forty-five days before the effective date of cancellation, provided that at least ten days’ notice shall be given where cancellation is for nonpayment of premium or material misrepresentation. The notice of cancellation shall state or be accompanied by a statement specifying the reason for such cancellation.”

         The plaintiffs’ two other claims on appeal are that the trial court should have construed the automatic termination clause in their favor because it was ambiguous, and that the automatic termination clause was invalid because it conflicts with the “other insurance” clause in the policy. Practice Book § 4061 provides that “[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” Because the plaintiffs did not raise these claims at trial, we will not consider them.

       Pursuant to Practice Book § 4013 (a) (1) (A), the defendant submitted the following claim as an alternate ground for affirming the judgment of the trial court, namely, whether the judgment should be affirmed because Georgetta Maj emicek acted as her husband’s agent when she signed a written request to cancel the policy. Because we affirm the trial court’s judgment on the claims raised by the plaintiffs, we need not consider the alternate ground for affirmance proffered by the defendant.

       With regard to this claim, the plaintiffs also argue that the trial court, improperly found that both Georgetta and John Majernicek, Sr., had purchased the Allstate policy because Georgetta was the sole purchaser of the policy. On June 4, 1992, John Majernicek, Sr., commenced a separate proceeding in Bridgeport Superior Court against Allstate to recover uninsured motorist benefits for his son. His complaint alleged, inter alia, that the “plaintiff, John Majernicek, Sr., had purchased a contract of insurance from the defendant, Allstate Insurance Company, providing automobile coverage for himself and his family.” In light of this representation, we conclude that the trial court did not abuse its discretion in finding that both Georgetta and John Majernicek, Sr., had purchased the Allstate policy.

       Wash. Rev. Code Ann. § 48.18.291 (West 1984) provides in relevant part: “(1) No contact of insurance predicated upon the use of aprivate passenger automobile shall be terminated by cancellation by the insurer until at least twenty days after mailing written notice of cancellation to the named insured at the latest address filed with the insurer by or on behalf of the named insured, accompanied by the reason therefor . . . .”


author: BERDON, J.

text:
    STATE OF CONNECTICUT v. JOAQUIN SANTIAGO
    (15442)
    Borden, Berdon, Katz, Palmer and McDonald, Js.

      Argued January 15
    officially released February 25, 1997

      Vicki H. Hutchinson, with whom was Cynthia Hart-well-Russell, for the appellant (defendant).

      Denise B. Smoker, deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Kevin Black, deputy assistant state’s attorney, for the appellee (state).
   Opinion

BERDON, J.

The two issues presented in this appeal are: (1) whether the trial court improperly denied the defendant’s motion to dismiss in which he claimed that his criminal prosecution violated his constitutional right to not be placed in double jeopardy because he had already been administratively disciplined by prison officials; and (2) whether the trial court improperly allowed the jury to decide whether Garner Correctional Institution (Garner) was a “correctional institution” within the meaning of General Statutes § 53a-174a (a). The defendant, Joaquin Santiago, was convicted after a jury trial of one count of possession of a weapon or dangerous instrument in a correctional institution in violation of § 53a-174a (a). At the time of the incident in question, the defendant was incarcerated at Garner. Prior to his criminal trial, prison officials had imposed certain administrative sanctions against the defendant stemming from the same conduct for which he was subsequently prosecuted. After the jury returned its verdict of guilty, the trial court sentenced the defendant to fifteen years imprisonment to be served consecutively to the sentence he was already serving. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On March 22,1995, while the defendant was incarcerated at Garner, a maximum security prison, correction officers conducted a surprise inspection of the defendant’s cell in search of weapons or other contraband. As a result of the search, the officers found a homemade metal weapon, known as a metal shank, inside a pillow on the bed used by the defendant. The officers also found a second metal shank inside the mattress of the bed used by the defendant’s cellmate. The defendant was immediately moved to Gamer’s restrictive housing unit. Administrative proceedings were instituted by prison officials against the defendant based upon his possession of a weapon in violation of prison regulations. The defendant admitted to the misconduct and received administrative sanctions, namely, ten days punitive segregation, thirty days loss of telephone and mail privileges, and the loss of forty-five days of credit that he had earned for good behavior in prison.

Thereafter, an arrest warrant was secured by the state police, and the defendant, on the basis of the same conduct for which he received administrative sanctions, was charged with one count of possession of a weapon or dangerous instrument in a correctional institution in violation of § 53a-174a (a). Subsequently, the defendant was charged in an information with two counts of possession of a weapon or dangerous instrument in a correctional institution. The defendant pleaded not guilty and elected a jury trial. The jury returned a verdict of guilty on count one and not guilty on count two. This appeal followed.

The defendant first claims that the trial court improperly denied his motion to dismiss, the basis of which was that the criminal prosecution subsequent to the imposition of administrative sanctions violated the constitutional prohibition against placing him in double jeopardy. After the jury verdict, the trial court denied this motion. On appeal, the defendant renews his claim that he is being punished twice for the exact same offense. See Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); see also State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989) (citing Brown for proposition that double jeopardy clause of United States constitution “prohibits not only multiple trials for the same offense but also multiple punishments for the same offense”). We disagree.

This court, as well as numerous federal courts, has squarely held that administrative sanctions, like those meted out to the defendant in this case, serve the purpose of maintaining institutional order and security and do not give rise to a double jeopardy clause violation. See State v. Mead, 130 Conn. 106, 112, 32 A.2d 273 (1943) (solitary confinement imposed as administrative discipline and not as punishment for purposes of double jeopardy analysis); see also United States v. Hernandez-Fundora, 58 F.3d 802, 807 (2d Cir. 1995) (primary purpose of prison disciplinary proceedings is not to punish but to determine whether prison rules have been broken and to encourage good conduct and order in prison); United States v. Newby, 11 F.3d 1143, 1146 (3d Cir. 1993) (“[i]n considering what is necessary and proper to preserve institutional order and discipline, and to encourage good conduct, [the judiciary should] defer to the judgment of the prison authorities”).

Nevertheless, “subsequent prosecutions will be barred ... in those exceedingly rare circumstances where the disciplinary sanction imposed is grossly disproportionate to the government’s interest in maintaining prison order and discipline.” United States v. Hernandez-Fundora, supra, 58 F.3d 807. Upon review of the record, we find nothing so harsh about the administrative sanctions imposed against the defendant that would cause us to conclude that they were disproportionate to the state’s legitimate interest in maintaining prison order and discipline. Our Appellate Court was recently confronted with the same type of administrative sanctions, and it aptly stated that “[t]he sanction of fifteen days of punitive segregation and thirty days of confinement to quarters was not disproportionate to the serious offense of assault on a correction employee. . . . Correction authorities must be allowed to take appropriate action to ensure the safety of inmates and correction employees; they must be permitted promptly to sanction misconduct within the institution so as to preserve order and discipline.” State v. Walker, 35 Conn. App. 431, 436-37, 646 A.2d 209, cert. denied, 231 Conn. 916, 648 A.2d 159 (1994); see also United States v. Halper, 490 U.S. 435, 448-49, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989) (“[w]e . . . hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution” [emphasis added]); State v. Hickam, 235 Conn. 614, 623, 668 A.2d 1321 (1995), cert. denied, U.S. , 116 S. Ct. 1851, 134 L. Ed. 2d 951 (1996) (“[W]e conclude that Halper stands for the proposition that a civil or administrative sanction that serves a legitimate remedial purpose and is related rationally to that purpose does not give rise to a double jeopardy violation even if the sanction has some deterrent effect. Conversely, no matter what its label, a sanction or portion thereof that seeks only to punish triggers the protection of the double jeopardy clause.”). The sanctions imposed on the defendant were rationally related to the legitimate remedial purpose of allowing the prison officials to maintain order and discipline. Accordingly, we hold that the trial court properly denied the defendant’s double jeopardy motion to dismiss.

The defendant’s second claim is that the trial court improperly allowed the jury to decide whether Garner was a state correctional institution within the meaning of § 53a-174a (a). After the state had presented its case, the defendant again moved for dismissal of the charges against him claiming that the institution in which he was confined was not a correctional institution as defined in General Statutes § 1-1 (w). The court reserved decision on the motion, and instead instructed the jury that the state had to prove, as an element of the offense, that Gamer was a correctional institution. The trial court did not instmct the jury regarding the list of state correctional institutions in § 1-1 (w). The defendant and the state both objected to the trial court’s instruction on this matter. Following the jury verdict of guilty, the trial court denied the defendant’s motion to dismiss based on the defendant’s argument regarding Gamer’s status.

The defendant argues that the trial court, as a matter of law, was required to dismiss the charges against him because Gamer was not included as a state correctional institution within the statutory definition of § 1-1 (w). Although the defendant is correct that § 1-1 (w) does not list Gamer as a correctional institution, § 53a-174a does not purport to incorporate by reference the list of correctional institutions listed in § 1-1 (w). Compare General Statutes § 53a-168. In State v. Faust, 237 Conn. 454, 469-71, 678 A.2d 910 (1996), a case involving a conviction for rioting at a correctional institution in violation of General Statutes § 53a-179b, we reviewed a claim that the trial judge had removed a necessary element of the offense, that the state had the burden of proving, from the jury’s consideration by instructing the jury, as a matter of law, that Garner was a correctional institution. Although we assumed, without deciding, that the instruction in Faust was improper, we were nonetheless persuaded that the state had satisfied its burden of proving that the trial court’s instruction was harmless beyond a reasonable doubt because there was overwhelming and uncontradicted evidence adduced at trial establishing that Garner was a correctional institution. Id., 470. We believe that it was clear in Faust that the proper course of action was for the jury to have been allowed to consider, as an element of the offense, whether the alleged rioting occurred at a correctional institution. In the present case, the trial court did adequately instruct the jury that it had to find, as an element of the offense, that Garner was a correctional institution. In its instructions, the trial court reminded the jury of the evidence regarding the layout and description of the facility, as well as the testimony of correction officers and inmates. The jury could reasonably have found that Gamer was a correctional institution based on that testimony. The trial court, therefore, properly denied the defendant’s motion to dismiss and allowed the jury to decide whether Garner was a correctional institution as a necessary element of the offense under § 53a-174a.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-174a (a) provides: “Apersonis guilty ofpossession of a weapon or dangerous instrument in a correctional institution when, being an inmate of such institution, he knowingly makes, conveys from place to place or has in his possession or under his control any firearm, weapon, dangerous instrument, explosive, or any other substance or thing designed to kill, injure or disable.”

       The first count of the information charged the defendant with possession of a weapon or dangerous instrument approximately ten inches in length and the second count charged him with possession of another weapon or dangerous instrument, approximately seven inches in length, of the same type as the first. The second, smaller metal shank was the one found inside the mattress of the bed of the defendant’s cellmate.

       The double jeopardy clause of the fifth amendment to the United States constitution provides in relevant part: “(N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” The fifth amendment is made applicable to the states through the fourteenth amendment. See Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).
      The defendant also malees his claim of double jeopardy under article first, § 8, of the Connecticut constitution. “Connecticut does not have an express double jeopardy clause, but we have interpreted our due process guarantees as including protection against double jeopardy.” State v. Anderson, 211 Conn. 18, 25 n.8, 557 A.2d 917 (1989). Because the defendant has failed to provide a separate analysis of his state constitutional claim, we decline to review it. See State v. Faust, 237 Conn. 454, 465 n.10, 678 A.2d 910 (1996); State v. Wilkes, 236 Conn. 176, 183 n.9, 671 A.2d 1296 (1996).

       See footnote 1.

       General Statutes § 1-1 (w) provides: “ ‘Correctional institutions’ means the Connecticut Correctional Institution, Somers; the Connecticut, Correctional Institution, Enfield-Medium; the Carl Robinson Correctional Institution, Enfield; the Connecticut Correctional Institution, Niantic; the John R. Manson Youth Institution, Cheshire; the Connecticut Correctional Center, Cheshire; the Northeast Correctional Center, Mansfield; the Community Correctional Centers at Bridgeport, Brooklyn, Haddam, Hartford, Litchfield, New Haven and Montville; the Eddy/DWI Correctional Unit, Middletown; the Hartell/DWI Correctional Unit, Windsor Locks; the J.B. Gates Correctional Unit, Niantic; the Jennings Road Detention Center, Hartford; the Morgan Street Detention Center, Hartford; the Union Avenue Detention Center, New Haven; the Western Substance Abuse Treatment Unit, New-town. . . .”
      Section 1-1 (w) was amended in 1990, two years before Garner was placed into operation, by No. 90-24 of the 1990 Public Acts (P.A. 90-24), which deleted a reference to one previously named institution and added seven new ones Also, other prisons currently in existence are not mentioned in the current definition of correctional institution in § 1-1 (w) because they too became operational after the enactment of P.A. 90-24, the last amendment that added new institutions to that statute.

       General Statutes § 53a-168 provides in pertinent part: “Escape: Definitions. For purposes of sections 53a-169 to 53a-171, inclusive:
      “(1) ‘Correctional institution’ means the facilities defined in section 1-1 and any other comctional facility established by the commissioner of correction. . . .” (Emphasis added.)

       General Statutes § 53a-179b provides in pertinentpart: “Rioting at correctional institution: Class B felony, (a) A person is guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aids, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution. . . .”