author: Glass, J.

text:
    State of Connecticut v. Chester Eugene Tucker
    (14265)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.
    Argued June 4
    decision released July 30, 1991

      Leah A. Hawley, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Warren Murray and Robert Hall, assistant state’s attorneys, for the appellant (state).

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellee (defendant).
   Glass, J.

This is the state’s appeal from the trial court’s orders granting the application of the defendant, Chester Eugene Tucker, for accelerated rehabilitation (AR) pursuant to General Statutes § 54-56e, and thereafter dismissing the criminal charge that the state had lodged against him. We conclude that under the unique circumstances of this case, neither of the court’s orders were so unreasonable as to constitute an abuse of discretion. Accordingly, we affirm.

The material facts are undisputed. On May 1, 1990, the defendant was arrested and charged with the crime of sale of narcotics in violation of General Statutes § 21a-278 (b). The defendant subsequently filed an application for AR pursuant to § 54-56e. At the July 13, 1990 hearing on the application, the state described the circumstances attendant to the alleged crime, and defense counsel notified the court that approximately two weeks prior to his arrest, the defendant had enlisted in the United States Navy. The court, over the state’s objection, granted the defendant’s application and imposed a two year period of probation. After defense counsel explained that the Navy would not accept a recruit on probation, the court further ordered the defendant’s probation specially conditioned upon his appearance in court with his Navy recruiter five days later, ready to enter the Navy. The court notified the parties that it would at that time entertain a motion to dismiss the charge against the defendant if he complied with the special condition.

At the July 18,1990 hearing, the defendant appeared in court with his recruiter, ready, as both he and his recruiter informed the court, to enter the Navy. When the recruiter declared that the Navy would reject the defendant if the dismissal of the charge were conditioned upon his entering the Navy, the court explained that the special condition of the defendant’s probation was that he appear in court, with his recruiter, ready to enter the Navy. The court then found that the defendant had complied with the special condition and dismissed the charge. On July 27,1990, the defendant entered the Navy. The defendant was on active duty in the Middle East on the USS Guadalcanal at the time of oral argument in this case.

On the date of the dismissal of the charge against the defendant, the state moved for permission to appeal pursuant to General Statutes § 54-96. The trial court granted the motion on July 27, 1990, and the state appealed to the Appellate Court on August 8,1990. We transferred the appeal to this court in accordance with Practice Book § 4023.

On appeal, the state attacks the trial court’s orders:

(1) granting the defendant’s application for AR; and

(2) dismissing the charge against him.

I

In connection with its claim that the court should not have granted the defendant’s application for AR, the state advances two alternative contentions, each grounded on the following language of § 54-56e: “There shall be a pretrial program for accelerated rehabilitation of persons accused of a crime . . . not of a serious nature. ” (Emphasis added.) The state initially contends that because § 21a-278 (b), subject to certain exceptions inapplicable here, mandates the imposition of a nonsuspendable minimum sentence upon a defendant convicted under the statute, the unclassified felony of sale of narcotics is per se a crime “of a serious nature” within the meaning of § 54-56e, and therefore, that the legislature intended that a defendant charged with this crime be denied eligibility for AR. Alternatively, the state contends that a defendant accused of violating § 21a-278 (b) is automatically ineligible for AR unless the defendant sustains what the state considers a statutorily mandated burden to demonstrate that the crime, in light of its surrounding circumstances, was not “of a serious nature.” General Statutes § 54-56e. We are not persuaded by either of the state’s contentions.

While the nonsuspendable mandatory minimum sentence that may be imposed upon a defendant convicted under § 21a-278 (b) may indicate that the legislature considered the sale of narcotics a serious offense, § 54-56e itself is wholly devoid of any language suggesting that the legislature intended that such a defendant be per se denied the opportunity to apply for AR. Furthermore, § 54-56e specifically provides that “[t]his section shall not be applicable to any person charged with a violation of section 14-227a, 53a-56b or 53a-60d, or to any person accused of a family violence crime as defined in section 46b-38a who (1) is eligible for the pretrial family violence education program established under section 46b-38c, or (2) has previously had the pretrial family violence education program invoked in his behalf.” We infer from the express designation of the offenses to which § 54-56e does not apply that the legislature intended only defendants charged with the designated offenses to be excluded, per se, from the application of the statute. See White Oak Corporation v. Department of Transportation, 217 Conn. 281, 301, 585 A.2d 1199 (1991) (expressio unius est exclusio alterius). In view of the absence of a specific legislative directive to the contrary, therefore, we conclude that a defendant charged with the sale of narcotics under § 21a-278 (b) is not per se ineligible for AR under § 54-56e.

As for the state’s claim that the phrase “not of a serious nature” in § 54-56e renders the AR provisions inapplicable to a defendant charged with the unclassified felony of sale of narcotics under § 2 la-278 (b) unless the defendant demonstrates that the circumstances attendant to the crime were not of a serious nature, we reject the claim due to the irrational result that would follow from an adoption of the state’s construction of § 54-56e. In addition to the “not of a serious nature” language upon which the state isolatedly focuses, § 54-56e provides in pertinent part: “Unless good cause is shown, this section shall not be applicable to persons accused of a class A, class B, or class C felony . . . .” This provision logically implies its converse, that is, § 54-56e shall apply to alleged class A, B, or C felony offenders upon a showing of “good cause.” If a showing of “good cause” is sufficient to secure the application of § 54-56e to a defendant accused of a class A felony, it would hardly be rational, considering our felony classification and sentencing scheme, to hold a defendant charged with the unclassified felony of sale of narcotics to any other test. The purpose underlying the felony sentencing scheme embodied in General Statutes § 53a-35, which is substantially similar to that of General Statutes § 53a-35a, was “to eliminate the kind of irrationally disparate sentences which often existed in prior law between essentially similarly serious crimes, and irrationally similar sentences between crimes of greatly varying seriousness, and to substitute therefor a system which will, as nearly as possible, treat essentially the same similarly serious kinds of conduct.” Commentary, Commission to Revise the Criminal Statutes (1969) pp. 9-10. Consequently, the prime index of the gravity of a particular crime is the length of the statutorily authorized prison term that a defendant convicted of the crime may be required to serve.

Under § 53a-35a (2), a defendant convicted of the class A felony of murder may be sentenced to a maximum term of “life imprisonment,” defined in pertinent part by General Statutes § 53a-35b as “a definite sentence of sixty years . . . .” The maximum prison sentence authorized under § 21a-278 (b), by comparison, is twenty years, the same maximum sentence that can be imposed upon a defendant convicted of a class B felony. See General Statutes § 53a-35a (4). From the disparity between these maximum sentences, it is evident that the legislature viewed the act criminalized under § 2 la-278 (b) to be as serious as the various acts punishable as class B felonies, and to be less serious than the act of murder punishable as a class A felony. An endorsement of the state’s interpretation of § 54-56e would therefore replicate in the AR context the “irrationally disparate” treatment of “similarly serious kinds of conduct” that the legislature sought to eliminate by streamlining the felony classification and sentencing scheme. Commentary, Commission to Revise the Criminal Statutes, supra. Our duty to reconcile the separate parts of a statute as far as possible; Statewide Griev anee Committee v. Rozbicki, 211 Conn. 232, 241, 558 A.2d 986 (1989); and to construe statutes in a manner that produces an overall reasonable interpretation; Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 443, 589 A.2d 1229 (1991); requires that we reject the state’s proposed interpretation of § 54-56e. We accordingly conclude that a defendant charged with the crime of sale of narcotics under § 21a-278 (b), an unclassified felony necessarily of a less “serious nature” than the class A felony of murder, need not demonstrate anything other than “good cause” in order to fall within the application of § 54-56e. In determining whether “good cause” has been satisfactorily shown, a court appropriately may consider the circumstances surrounding the particular crime with which the applicant has been charged.

Turning to the circumstances of the present case, we are unpersuaded by the state’s contention that the court abused its discretion in determining that “good cause” warranted the granting of the defendant’s application for AR. The defendant was a first time offender, and no evidence before the court suggested that his alleged sale of narcotics had been accompanied by violence or had resulted in harm to another. As for the defendant’s personal potential for rehabilitation, the court could reasonably have inferred from his voluntary act of enlisting in the Navy some two weeks before his arrest that he would not resist supervisory authority, and that diversionary measures would be likely to ensure that he would not offend again. The possibility that the defendant might have been destined for the supervision of the Navy, rather than the office of adult probation (OAP), does not, as the state claims, render the granting of the defendant’s application an abuse of discretion. The court was not required to ignore the practical reality that the Navy possessed the resources and personnel necessary to control the defendant’s environment and behavior to a degree that the OAP could not match. In these circumstances, we cannot say that the court abused its broad discretion in granting the defendant’s application for AR.

II

The state next claims that the court, by dismissing the charge against the defendant after the passage of five days of his two year period of probation, contravened the following provision in § 54-56e: “If such defendant satisfactorily completes his period of probation, he may apply for dismissal of the charges against him and the court, on finding such satisfactory completion, shall dismiss such charges.” Notwithstanding the fact that the court did not explicitly refer to this provision at the dismissal hearing, we presume that the court was aware of it, as well as its statutory authority under General Statutes § 53a-33, to terminate the defendant’s probation “at any time” for “good cause” shown. We therefore treat the court’s dismissal of the charge as accompanied by an implicit finding of good cause for a termination of the defendant’s probation, necessarily resulting in his completion of the modified period of probation and warranting dismissal of the charge under § 54-56e. In accordance with § 53a-33, our standard of review is whether the effective termination of the defendant’s probation constituted an abuse of discretion.

Irrespective of the fact that the defendant actually entered the Navy, the state attributes an abuse of discretion to the court’s alleged failure to appreciate the risk existing at the time of termination that the defendant, once his probation had been terminated and the charge against him dismissed, might have refused to enter the Navy. The circumstances before the court, however, provided sufficient objective support for a reasonable determination that the risk of such a refusal was minimal.

Under oath and subject to the penalties of perjury, the defendant represented to the court that he intended to enter the Navy if permitted to do so. The fact that the defendant voluntarily had enlisted in the Navy before his arrest lent credence to this representation, as did the recruiter’s statement that the defendant successfully had completed two training programs available to potential recruits. In addition, the recruiter substantiated the defendant’s representation by informing the court that the defendant had been scheduled for imminent departure to boot camp. Considering the objective indications supporting the defendant’s stated intention to carry out his previously devised plan to enter the Navy, the court could reasonably have concluded that there was little chance that he would refuse to do so.

Finally, we do not agree with the state that the termination of the defendant’s probation and the concomitant dismissal of the charge against him disserved the overarching rehabilitative purpose of our probation system. The court’s order enabled the defendant to implement what in effect was a self-imposed four year rehabilitative plan of service to this country, and therefore to this state, under the rigid supervision of the United States Navy. As the defendant’s recruiter informed the court, the Navy not only offered the defendant a strictly maintained drug free atmosphere, but also an opportunity for vocational training as a field engineer. In these circumstances, the court’s action, which permitted the defendant to exercise these suitable opportunities for rehabilitation and reform without jeopardizing the public interest, did not undermine the rehabilitative objective that our probation system is designed to achieve.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 54-56e. (Formerly Sec. 54-76p). accelerated pretrial rehabilitation. There shall be a pretrial program for accelerated rehabilitation of persons accused of a crime or a motor vehicle violation for which a sentence to a term of imprisonment may be imposed, which crime or violation is not of a serious nature. The court may, in its discretion, invoke such program on motion of the defendant or on motion of a state’s attorney or prosecuting attorney with respect to an accused who, the court believes, will probably not offend in the future and who has no previous record of conviction of a crime or of a violation of section 14-196, subsection (c) of section 14-215, section 14-222a, subsection (a) of section 14-224 or section 14-227a and who states under oath in open court under the penalties of perjury that he has never had such program invoked in his behalf, provided the defendant shall agree thereto and provided notice has been given by the accused, on a form approved by rule of court, to the victim or victims of such crime or motor vehicle violation, if any, by registered or certified mail and such victim or victims have an opportunity to be heard thereon. Any defendant who makes application for participation in such program shall pay to the court an application fee of twenty-five dollars. This section shall not be applicable to any person charged with a violation of section 14-227a, 53a-56b or 53a-60d, or to any person accused of a family violence crime as defined in section 46b-38a who (1) is eligible for the pretrial family violence education program established under section 46b-38c, or (2) has previously had the pretrial family violence education program invoked in his behalf. Unless good cause is shown, this section shall not be applicable to persons accused of a class A, class B, or class C felony or to any youth who has previously been adjudged a youthful offender under the provisions of sections 54-76b to 54-76n, inclusive. Any defendant who enters such program shall pay to the court a participation fee of one hundred dollars. Any defendant who enters such program shall agree to the tolling of any statute of limitations with respect to such crime and to a waiver of his right to a speedy trial. Any such defendant shall appear in court and shall be released to the custody of the office of adult probation for such period, not exceeding two years, and under such conditions as the court shall order. If the defendant refuses to accept, or, having accepted, violates such conditions, his case shall be brought to trial. If such defendant satisfactorily completes his period of probation, he may apply for dismissal of the charges against him and the court, on finding such satisfactory completion, shall dismiss such charges. If the defendant does not apply for dismissal of the charges against him after satisfactorily completing his period of probation, the court, upon receipt of a report submitted by the office of adult probation that the defendant satisfactorily completed his period of probation, may on its own motion make a finding of such satisfactory completion and dismiss such charges. Upon dismissal, all records of such charges shall be erased pursuant to section 54-142a. An order of the court denying a motion to dismiss the charges against a defendant who has completed his period of probation or terminating the participation of a defendant in such program shall be a final judgment for purposes of appeal.”

       General Statutes § 21a-278 provides in pertinent part: “(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       “[General Statutes] Sec. 54-96. appeals by the state prom superior court in criminal cases. Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       The defendant argues that this court lacks jurisdiction over the state’s appeal because the appeal was untimely under Practice Book § 4009. Prior to the transfer of the appeal, the defendant raised the identical jurisdictional issue in support of a motion to dismiss the state’s appeal in the Appellate Court. The Appellate Court resolved the issue against the defendant in State v. Tucker, 23 Conn. App. 559, 583 A.2d 139 (1990). Because we agree with both the reasoning of and the result reached by the Appellate Court, we also decide the defendant’s jurisdictional issue against him. The defendant further contends that in view of the trial court’s determination, in connection with its consideration of the state’s motion for permission to appeal, that the state failed to preserve these claims, we should not review the state’s claims that: (1) a defendant charged with the crime of sale of narcotics in violation of General Statutes § 21a-278 per se is ineligible for AR under General Statutes § 54-56e; and (2) the trial court improperly dismissed the charge against the defendant before he had completed his two year period of probation. Since our review of the record discloses that the state sufficiently articulated these claims at trial, we review them.

       See footnote 1, supra.

       See footnote 2, supra.

       The state directs our attention to the following remark made on the floor of the House of Representatives during the debate concerning the nonsuspendable mandatory minimum sentence now authorized under General Statutes § 21a-278 (b): “The man or woman [who is] on the street selling for profit, with no addiction, that person doesn’t need any understanding. He needs to go to jail . . . .” 17 H.R. Proc., Pt. 6, 1974 Sess., p. 3184. If the legislature as a collective body were to share the view of this particular representative, it certainly would be empowered expressly to exclude defendants charged with sale of narcotics under § 21a-278 (b) from the application of General Statutes § 54-56e.

       The legislative history of General Statutes § 54-56e supports our construction of the statute. In 1973, the legislature enacted No. 73-641 of the 1973 Public Acts (the 1973 act), the first precursor to § 54-56e. The 1973 act provided in pertinent part: “There shall be a pre-trial program for accelerated rehabilitation of persons accused of a crime, not of a serious nature. This act shall not [apply] to persons accused of a class A, class B, or class C felony.” In 1974, the legislature enacted No. 74-38 of the 1974 Public Acts (the 1974 act), which deleted the provision disqualifying alleged class A, B and C felony offenders outright, and substituted the following provision that currently remains unchanged in § 54-56e: “unless good cause is shown, this act shall not be applicable to persons accused of a class A, class B, or class C felony.” While the 1974 act did not specify the conditions under which it would apply to defendants accused of crimes other than class A, B and C felonies, Representative James F. Bingham, now Judge Bingham of the Superior Court, a proponent of the draft version of the 1974 act, Substitute House Bill 5481, explained during a debate on the floor of the House of Representatives: “In the last session we passed [the 1973 act] which permitted the diversion of certain people away from the Court system into probation .... [Although [the 197S act] excluded . . . Class A, B, or C felonies, we have provided [in this bill that] if there is good cause shown that any crime in the State of Connecticut might be susceptible to this diversionary treatment. ” (Emphasis added.) 17 H.R. Proc., Pt. 2, 1974 Sess., p. 627. Although ordinarily not decisive respecting questions of statutory interpretation, “statements made on the floor of the legislature . . . are strong indications of legislative intent.” Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 310-11, 592 A.2d 953 (1991).

       “[General Statutes] See. 53a-33. termination. The court or sentencing judge may at any time during the period of probation or conditional discharge, after hearing and for good cause shown, terminate probation or conditional discharge.”

       As for the state’s challenge to the court’s failure to conduct a hearing on “good cause” pursuant to General Statutes § 53a-33, we fail to see how the state was prejudiced by this omission. Both parties were before the court at the time that it effectively terminated the defendant’s probation, and the court “heard” both parties’ respective arguments concerning the possible disposition of the matter. The state does not claim that it was precluded from fully voicing its objections to the course of action taken, nor does the state claim that it would have voiced any additional objection if the court had conducted a termination hearing temporally distinct from the hearing held.


source: Caselaw Access Project

author: F. X. Hennessy, J.

license: Public Domain

text:
    Nationwide Mutual Insurance Company v. Christina Pasion
    (14205)
    Peters, C. J., Shea, Glass, Covello and P. X. Hennessy, Js.
    Argued April 24
    decision released July 30, 1991

      CarlE. Celia, with whom was Michael O’Conner, for the appellant (plaintiff).

      Morton W. Appleton, with whom was Peter M. Appleton, for the appellee (defendant).
   F. X. Hennessy, J.

The main issue in this appeal is whether a written request to reduce uninsured motorist coverage by one of two named insureds on an automobile liability insurance policy is sufficient to satisfy the writing required by General Statutes (Rev. to 1989) § 38-175c (a) (2). The plaintiff, Nationwide Mutual Insurance Company (Nationwide), appealed the judgment of the Superior Court confirming an uninsured motorist insurance award in favor of the defendant, Christina Pasión, to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023 and affirm the trial court’s judgment.

The facts are as follows. On January 4,1989, Pasión was injured in an automobile accident while a passenger in a car owned by Carlos and Alexis Londono and operated by Alexis Londono, whose negligence caused the accident. That car and another owned by the Londonos were insured under one policy applied for and purchased by Carlos Londono from Nationwide. Under the policy, which listed both Carlos and Alexis Londono as named insureds, the available liability coverage was $100,000. At the time he purchased the policy, Carlos Londono alone authorized in writing that the amount of uninsured motorist coverage be reduced to $50,000/100,000 on each car.

Pasión, who was paid $100,000 by Nationwide under the liability portion of the policy, but whose injuries were in excess of that amount, sought arbitration to determine the amount of uninsured motorist coverage available under the policy. Pasión claimed that because Carlos and Alexis Londono were the named insureds on the policy, the written request by Carlos Londono alone to reduce the uninsured motorist limits was insufficient to reduce that coverage to an amount less than the liability coverage. She therefore claimed that she was entitled to an uninsured motorist award of $100,000 (because two cars at $100,000 equal $200,000, less the liability payment of $100,000). Nationwide claimed that the written request for reduced uninsured motorist limits was valid and that Pasión was therefore not entitled to any additional award (because two cars at $50,000 equal $100,000, less the liability payment of $100,000).

A majority of the arbitration panel found that the term “insured” as used in the language “unless the insured requests in writing a lesser amount” in § 38-175c (a) (2) means all named insureds, and that, absent the signature of Alexis Londono on the requested reduction of coverage, the writing requirement of that subdivision had not been satisfied. The panel therefore awarded Pasión $100,000.

Nationwide moved to correct or vacate the award and Pasión moved to confirm the award. The trial court, O’Neill, J., following a review of the law upon which the arbitrators based their decision, agreed with the interpretation of § 38-175c (a) (2) by the majority of the arbitrators and denied the motion to correct or vacate and granted the motion to confirm.

On appeal Nationwide raises two issues: (1) whether Pasión, as a third party to the insurance contract between Nationwide and the Londonos, has standing to raise the claim that the writing requirement of § 38-175c (a) (2) to reduce uninsured motorist coverage had not been satisfied because Alexis Londono failed to sign the request; and (2) whether the trial court incorrectly interpreted § 38-175c (a) (2) to require the signatures of all named insureds to request a reduction in uninsured coverage.

Nationwide’s first claim, that Pasión does not have standing to challenge the validity of the reduction in uninsured motorist coverage, was not raised before the trial court and is therefore raised for the first time on appeal. While, generally, we are not bound to consider a claim that was not raised before the trial court, a challenge to the subject matter jurisdiction of a court may be raised at any time. DiBerardino v. DiBerardino, 213 Conn. 373, 377, 568 A.2d 431 (1990). Because Nationwide’s claim that Pasión lacks standing is a challenge to the subject matter jurisdiction of the trial court and this court; see Ardmare Construction Co. v. Freedman, 191 Conn. 497, 498 and n.4, 467 A.2d 674 (1983); we will consider the merits of that claim.

“ ‘ “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” ’ Ardmare Construction Co. v. Freedman, [supra, 501], quoting Hiland v. Ives, 28 Conn. Sup. 243, 245, 257 A.2d 822 (1966).” State v. Pierson, 208 Conn. 683, 687, 546 A.2d 268 (1988), cert. denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989).

Nationwide does not dispute that Pasión, a passenger in the vehicle driven by Alexis Londono, was an insured under the terms of the policy. Pasión, therefore, as a third party beneficiary of the Nationwide policy purchased by Carlos Londono, had the necessary interest in the coverage available under that policy to challenge the validity of the reduction of uninsured motorist coverage.

Nationwide’s second claim is that the trial court incorrectly interpreted the term “insured” as used in the clause “unless the insured requests in writing a lesser amount” in § 38-175c (a) (2) to mean all named insureds. Nationwide contends that while the term “insured” as used in that clause does refer to a named insured, the statute unambiguously requires that only the initial purchaser or applicant for the policy, not all the named insureds, be required to request in writing a reduction in uninsured coverage. Pasión, however, argues that the signatures of all the named insureds on the policy are necessary to comply with the writing requirement of § 38-175c (a) (2). The trial court agreed with Pasión, and we agree with the trial court.

Statutes are to be construed to give effect to the apparent intention of the lawmaking body; Sanzone v. Board of Police Commissioners, 219 Conn. 179, 186, 592 A.2d 912 (1991); and where legislative intent is clear, there is no room for statutory construction. Kelemen v. Rimrock Corporation, 207 Conn. 599, 606, 542 A.2d 720 (1988). When, however, we are confronted with ambiguity in a statute, we look to “ ‘its legislative history, its language, the purpose it is to serve, and the circumstances surrounding its enactment’ ” to determine the legislative intent. Verrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982).

Nationwide contends that the term “insured” in the disputed clause is unambiguous and requires only the named insured who initially purchased or applied for the policy to request in writing a reduction in coverage. We disagree. The legislative intent of the requirement in § 38-175c (a) (2) that “the insured” request in writing a reduction in uninsured motorist coverage is not clear. That subdivision states that “[s]uch written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.” (Emphasis added.) Nationwide acknowledges that, since both the applicant for the policy and a named insured would be required to sign the application, the applicant would always become a named insured. The term “insured” as used in § 38-175c (a) (2), therefore, necessarily refers to a named insured. We are not convinced that because the legislature used the separate terms “insured” and “named insured” in § 38-175c (a) (2), its use of the term “insured” in the disputed clause is an unambiguous reference to the named insured purchasing or applying for the policy, for just as the legislature has not used the term “named insured,” it has not used the terms “applicant” or “purchaser.”

Because we conclude that § 38-175c (a) (2) is not unambiguous, it is appropriate to consider its legislative history. During the 1983 legislative session, the legislature passed Senate Bill 123, which added subdivision (2) to General Statutes § 38-175c (a). Senator Wayne Baker, cochairman of the Committee on Insurance and Real Estate, in moving for acceptance of that committee’s favorable report and passage of Senate Bill 123, stated that this provision “would require each insured who purchases more than the legally required amount of liability insurance would [sic] receive the same amount of uninsured motorist coverage. The insured would have an opportunity to waive in writing the additional uninsured motorist coverage. This change would increase the consumer’s awareness of the value of low-cost uninsured motorist coverage which protects the insured and his family members. Apparently many drivers purchase $100,000.00 or more of liability coverage but leave their uninsured motorist coverage at the minimum of $20,000-$40,000. Subsection 2 . . . gives such a driver an increased amount of uninsured motorist coverage, unless he makes a conscious decision not to purchase it.” 26 S. Proc., Pt. 9, 1983 Sess., p. 3055. In proceedings before the House of Representatives, Representative Gerald Noonan, in moving for passage of Senate Bill 123, stated: “Mr. Speaker, this bill . . . makes two changes in the uninsured motorists’ coverage. . . . [T]he second is that an individual who purchases a liability policy . . . would be given coverage in the same amount of the policy rather than automatically receive the minimum coverage.” 26 H.R. Proc., Pt. 21,1983 Sess., p. 7437.

The apparent intent of the legislature in adopting subsection (2), as evidenced by the legislative history of Senate Bill 123, was to assure that consumers purchasing automobile liability insurance would be made aware of the low cost of equal amounts of uninsured coverage by requiring any reduction in that coverage to be in writing. Despite the reference in the statements of the legislators to the purchaser, insured, consumer, driver and individual who purchases a liability policy, we conclude that to construe the term “insured” in that provision of § 38-175c (a) (2) as Nationwide urges would thwart the intent of the legislature. Although the named insureds on the policy involved in this case are husband and wife and by virtue of that personal relationship it could be assumed that Alexis Londono was both made aware of the availability of low-cost uninsured motorist coverage and acquiesced in the reduction sought by her husband, such an assumption is far from a certainty. We are even less certain that in situations where the joint owners of an automobile and named insureds on an automobile liability insurance policy are, for example, brother and sister, roommates, or friends, all of whom would be consumers, a conscious choice to reduce uninsured motorist coverage would have been made by all consumers when only one owner/named insured had signed the authorization for reduction in coverage. To permit the signature of one named insured to bind other, possibly uninformed, named insureds would circumvent the legislature’s intent that the decision to reduce uninsured motorist coverage by consumers be an informed one. See Travelers Indemnity Co. v. Malec, 215 Conn. 399, 402-403, 576 A.2d 485 (1990).

We conclude therefore that the trial court’s interpretation of § 38-175c (a) (2) to require the signature of all named insureds on a written request to reduce uninsured motorist coverage was correct.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1989) § 38-175c (a) (2) provides in pertinent part: “Notwithstanding any provision of this section to the contrary, each [automobile liability insurance] policy issued or renewed on and after July 1, 1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount .... Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.”
      This section has been transferred to General Statutes § 38a-336 (a) (2). We refer to the 1989 revision throughout this opinion.

       Although the record discloses that the car involved in the accident is owned by Alexis and Carlos Londono, it is not clear whether the second car is jointly owned.

       “[Sjtatutory provisions relating expressly to uninsured motorist coverage apply also to underinsured motorists.” Arnerican Motorists Ins. Co. v. Gould, 213 Conn. 625, 628, 569 A.2d 1105 (1990).

       The statement of the legislator reporting a bill out of committee “carries particular weight and deserves careful consideration.” Manchester Sand & Gravel Co. v. South Windsor, 203 Conn. 267, 275, 524 A.2d 621 (1987).


author: Peters, C. J.

text:
    Connecticut Bank and Trust Company v. Carriage Lane Associates et al.
    (14232)
    Peters, C. J., Glass, Covello, Borden and F. X. Hennessy, Js.
    Argued June 4
    decision released July 30, 1991

      Robert P. Hanahan, with whom was Brian A. Barnes, for the appellant (defendant John F. Hychko).

      James J. Tancredi, with whom were Rhoda L. Rudniek and, on the brief, Katherine A. Burroughs, for the appellees (plaintiff and F.P., Inc.).
   Peters, C. J.

The primary issue in this appeal is whether, in the absence of an express agreement or a showing of bad faith, a senior mortgagee owes a duty to a junior mortgagee to advance the proceeds of a loan to the mortgagor in accordance with the terms of the senior mortgage. The named plaintiff, Connecticut Bank and Trust Company, N.A. (CBT), initiated this action to foreclose on a mortgage that it held on real property owned by the named defendant, Carriage Lane Associates (Carriage Lane). Another defendant, John Hychko, who held a purchase money mortgage on the property, filed an answer, special defense and counterclaim against CBT. Subsequently, F.P., Inc. (F.P.), which had been substituted as party plaintiff after taking an assignment of the mortgage and note held by CBT, moved for partial summary judgment on its foreclosure complaint. CBT, which remained the defendant on Hychko’s counterclaim, also moved for summary judgment thereon. The trial court, McWeeny J., granted the motions in favor of F.P. and CBT. Thereafter the trial court, Byrne, J., granted F.P.’s motion for strict foreclosure and rendered judgment thereon. Hychko took a timely appeal from that judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. We affirm the judgment of the trial court.

I

The record discloses the following facts. On September 17,1987, Carriage Lane entered into two financial arrangements. In order to finance the construction of a condominium development in Waterbury, Carriage Lane gave CBT a first mortgage in the form of a $6,500,000 commercial revolving credit mortgage note secured by an open-end mortgage and security agreement. In order to finance the acquisition of the Waterbury property from its owner, John Hychko, Carriage Lane gave Hychko a second mortgage in the form of a purchase money mortgage and note securing $2,340,000. Both mortgages were recorded the following day.

Prior to the formal execution of these documents, Hychko had originally agreed with Carriage Lane that his loan would be secured by a first mortgage. When he subsequently learned, however, that CBT would only provide construction financing for Carriage Lane if CBT’s mortgage had first priority, he acquiesced in that arrangement. Hychko sought, however, to have the purchase money mortgage provide: “The Seller agrees that he shall subordinate this mortgage to a ‘Construction Type’ mortgage to be obtained by the Buyer providing the Seller is assured that the funds obtained •from the construction mortgage shall be applied to the construction of the condominium unit[s] contemplated by this agreement.” Because CBT refused to finalize its financing arrangement with Carriage Lane if this language were included as part of Hychko’s agreement with Carriage Lane, the language was excluded.

Faced with CBT’s refusal to agree to the subordination clause, Hychko nonetheless agreed to proceed with the sale of his property to Carriage Lane and to accept junior mortgagee status. He did so at least in part in reliance on the assurances of Carriage Lane’s counsel that CBT’s construction mortgage with Carriage Lane would specify that its proceeds would, in fact, go into the development project. The construction mortgage did provide, in relevant part, that CBT would “make the balance from time to time of the loan herein described to [Carriage Lane] in installments as the work progresses, provided the Mortgagor is not in default hereunder . . . .” The agreement also provided, however, that “the time and amount of each advancement [would] be at the sole discretion and upon the estimate of the Mortgagee . . . .” Hychko was not a party to CBT’s construction mortgage with Carriage Lane.

Carriage Lane began construction of the condominium development in timely fashion. By the late summer of 1989, however, although one hundred sixty-two condominium units had been approved, only thirty-two had actually been constructed. In August and September, 1989, Carriage Lane defaulted on interest and principal payments required under its agreement with CBT. By that time, CBT had advanced approximately $5,000,000 against only $2,000,000 of actual construction.

CBT opted to declare the entire balance on the Carriage Lane note due and payable, and to foreclose its mortgage. In addition to naming Carriage Lane as a defendant in the foreclosure suit, CBT also named as defendants all junior encumbrancers on the development. Of these, only Hychko filed responsive pleadings. In his pleadings, Hychko raised a special defense that CBT had violated the terms of its agreement with Carriage Lane by advancing money to Carriage Lane in excess of the amount due in view of the amount of construction that had actually been completed at the construction site. Consequently, Hychko asserted, CBT should be estopped from claiming any debt in excess of the amount that would have been paid out to Carriage Lane had CBT advanced money in accordance with that agreement. In a counterclaim, Hychko further alleged that he had relied upon CBT “to act in a commercially reasonable manner and to abide by the terms and conditions of its own loan documents” and, also, that in violating the terms of its agreement with Carriage Lane, CBT “knew or should have known that it would impair the security of [Hychko’s] mortgage from Carriage Lane Associates.” CBT denied Hychko’s special defense and counterclaim.

Subsequent to CBT’s initiation of this litigation, CBT assigned its interest in the note, agreement and mortgage with Carriage Lane to F.P., its wholly owned subsidiary. Accordingly, CBT moved to substitute F.P. as the party plaintiff in its foreclosure action. The trial court, Santos, J., granted this motion on March 26, 1990.

On May 11, 1990, F.P. moved for partial summary judgment on its foreclosure complaint. On that same date, CBT moved for summary judgment against Hychko on his counterclaim. Both motions were filed with supporting affidavits and legal memoranda. Hychko, in turn, filed both affidavits and a memorandum of law in opposition to CBT’s motion. In these and subsequent memoranda, Hychko reiterated his claim that CBT owed him a duty to advance loan proceeds to Carriage Lane only in accordance with the terms of CBT’s agreement with Carriage Lane and that CBT had violated the terms of that agreement by overadvancing approximately $3,000,000. For the purposes of its summary judgment motion on Hychko’s counterclaim, CBT conceded that it had overadvanced funds but denied the existence under Connecticut law of any duty to Hychko, absent an express agreement between the senior and junior mortgagees or collusion between the senior mortgagee and the mortgagor. Hychko then asserted in a subsequent memorandum, without any supporting affidavits, that CBT had colluded with Carriage Lane in over advancing the loan proceeds.

On July 27,1990, the trial court, McWeeny, J., issued a memorandum of decision granting F.P.’s motion for partial summary judgment and CBT’s motion for summary judgment on Hychko’s counterclaim. Focusing on the counterclaim, the court ruled that, absent bad faith, collusion with Carriage Lane, or an express agreement with Hychko, CBT had no legal duty to Hychko, a stranger to its construction mortgage, to police the manner in which it advanced loan proceeds to Carriage Lane. The court noted that Hychko’s pleadings did not allege any of the preconditions that might have been sufficient to impose such a duty. Although Hychko, despite the absence of an appropriate pleading, had raised the issue of collusion in his memorandum of law, the court held that the allegation was wholly unsupported and would not, therefore, raise a genuine issue of material fact capable of defeating CBT’s motion. Without further discussion, the court also granted F.P.’s motion for summary judgment.

Hychko then unsuccessfully sought a further articulation of the court’s decision and was denied permission to revise his counterclaim. Hychko has appealed the judgment rendered by the court on F.P.’s motion for strict foreclosure.

II

Hychko’s main argument on appeal is that the trial court improperly granted F.P.’s motion for partial summary judgment because it incorrectly concluded that CBT was under no duty to Hychko to advance funds to Carriage Lane in accordance with its agreement with Carriage Lane. He contends that Connecticut imposes such a legal duty on a first mortgagee and, further, that an allegation of breach of that duty raised a question of fact, which cannot appropriately be resolved by a summary judgment. F.P. counters that the trial court correctly decided the duty issue. We agree with F.P.

A

Before discussing the merits of Hychko’s argument as a matter of state law, we first consider, as F.P. now argues for the first time on appeal, whether federal law bars Hychko’s assertion of his special defense. This argument arises out of the recent appointment of the Federal Deposit Insurance Corporation (FDIC) as receiver of CBT. This appointment followed the determination by the Comptroller of the Currency of the United States, on January 6, 1991, that CBT had become insolvent. On that date, the FDIC as receiver established The New Connecticut Bank and Trust Company, National Association (New CBT) as a bridge bank. New CBT purchased certain assets and assumed certain liabilities of the insolvent CBT, while the FDIC as receiver retained the remaining assets and liabilities. F.P., formerly a wholly owned subsidiary of CBT, was purchased by New CBT and is now a wholly owned subsidiary of that bridge bank.

As a consequence of the change in corporate structure triggered by CBT’s insolvency, F.P. now argues that the provisions of 12 U.S.C.A. § 1821 (n) (4) (I) and the United States Supreme Court’s decision in D’Oench, Duhme & Co. v. F.D.I.C., 315 U.S. 447, 62 S. Ct. 676, 86 L. Ed. 956, reh. denied, 315 U.S. 830, 62 S. Ct. 910, 86 L. Ed. 1224 (1942), bar Hychko’s assertion of his special defense. Specifically, F.P. asserts that these statutory and decisional rules of law provide it with a defense against any claim that is not based upon a written agreement to which it is a party. Relying on the absence of any such written agreement to support Hychko’s claim, F.P. urges us to conclude that Hychko’s claim is barred as a matter of federal law.

Hychko counters, however, that federal law protects bridge banks only from secret agreements between an insolvent bank and a borrower, not from claims brought by innocent third parties such as himself. See Yankee Bank for Finance & Savings v. Task Associates, Inc., 731 F. Sup. 64 (N.D.N.Y. 1990). He argues, therefore, that his special defense remains viable despite F.P.’s status as the subsidiary of a bridge bank.

We need not resolve this issue of federal law. Even if we were to assume that federal law permits Hychko’s assertion of his special defense, his defense must still fail if, as a matter of state law, CBT owed him no duty to monitor the manner or the amount of its disbursal of funds to Carriage Lane pursuant to the construction mortgage. We therefore turn to a discussion of the relevant state law.

B

The trial court, in granting F.P.’s motion for partial summary judgment, rejected Hychko’s special defense that CBT owed him a duty to monitor its disbursements to Carriage Lane even though he had been unsuccessful in his attempt to bargain for such protection contractually. We agree.

The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Pursuant to Practice Book § 384, summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” “ ‘Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. Practice Book §§ 380, 381; Burns v. Hartford Hospital, [192 Conn. 451, 455, 472 A.2d 1257 (1984)]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978).’ Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). ‘The test is whether a party would be entitled to a directed verdict on the same facts.’ Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).” Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990).

At the outset, we note two fundamental flaws in Hychko’s special defense. First, the language in CBT’s agreement with Carriage Lane linking advances to actual construction was adopted for CBT’s own benefit. Second, additional language in the agreement expressly provided that the time and amount of each advancement would be within the sole discretion of CBT. No reasonable construction of this language would permit a junior lienor, such as Hychko, to infer that CBT had made a contractual commitment to advance funds to Carriage Lane only as construction progressed.

More fundamentally, however, F.P. maintains, as it did in the trial court, that even if CBT could be said to have violated the terms of the construction mortgage by overadvancing funds to Carriage Lane, such a default would not have constituted a breach of duty to Hychko. The trial court granted partial summary judgment on the basis of that argument.

In support of its argument that it had no duty to Hychko, F.P. relies on First Connecticut Small Business Investment Co. v. Arba, Inc., 170 Conn. 168, 365 A.2d 100 (1976). In that case, the defendant held a purchase money mortgage on land that he had sold to Arba, Inc. That mortgage contained a clause subordinating it to another mortgage that First Connecticut, an institutional lender, had also placed on the land to secure money it had loaned to Arba, Inc., to develop the property as a mobile home park. When Arba, Inc., defaulted on the loan, the trial court granted First Connecticut’s request for strict foreclosure. In granting that request, the trial court held, inter alia, that First Connecticut was under no duty to see that the funds loaned to Arba, Inc., were actually used to develop a mobile home park. On appeal, this court affirmed, holding that “[i]n the absence of . . . collusion, or an express agreement, [a senior mortgagee] is under no obligation to see that moneys it advances are employed by the borrower in the manner contemplated by the subordinated purchase money mortgagee.” Id., 177.

Cases in other jurisdictions have come to the same conclusion. For example, in National Bank of Washington v. Equity Investors, 81 Wash. 2d 886, 920, 506 P.2d 20 (1973), the court stated that “[o]utside the contract, the major duty which a construction lender owes to any other party is the duty of good faith; though a loan may be inefficiently managed and with adverse consequences, neither inferior lienors nor absolute guarantors have any recourse against the lender unless it is alleged and proved that the lender acted in bad faith.” See also Rockhill v. United States, 288 Md. 237, 418 A.2d 197 (1980), and cases cited therein; Brooklyn Trust Co. v. Fairfield Gardens, Inc., 260 N.Y. 16, 182 N.E. 231 (1932). The rationale for refusing to impose on a first mortgagee a duty, other than one of good faith, in the absence of an express agreement, “is that it is within the power of the subordinator to refuse to subordinate if the terms of the subordination are not acceptable to him. ... To find the existence of a legal duty where none is expressed in the contract has much the same effect as judicially rewriting the contract for the parties.” Rockhill v. United States, supra, 252.

If an institutional lender owes only a duty of good faith to a subordinated purchase money mortgagee, no greater duty can logically be imposed in the present case in which Hychko, as purchase money mortgagee, voluntarily assumes junior mortgagee status after unsuccessfully bargaining for a subordination agreement. We conclude, therefore, that the only duty that CBT owed Hychko was one of good faith.

Hychko argues, however, that he raised factual issues of collusion and fraud, which are tantamount to allegations of lack of good faith, and that summary judgment was therefore inappropriate. We disagree. The pleadings contain no such allegations. Similarly, allegations in Hychko’s affidavit that James Griffin, a former employee ■of CBT who had participated in making the loan to Carriage Lane, subsequently left CBT to work for Carriage Lane, that materials from the Waterbury project site were used elsewhere, including building a chalet for Griffin and another Carriage Lane principal, or that CBT’s bank inspector failed to make construction progress inspections, even when viewed in a light most favorable to Hychko, cannot be construed as alleging collusion or bad faith on CBT’s part. The only express allegation of collusion, then, is the one that appears in a memorandum of law in opposition to F.P.’s motion for partial summary judgment. This bald assertion, without more, is insufficient to raise a genuine issue of material fact capable of defeating summary judgment and the trial court properly rejected it.

Hychko’s final contention is that this case is governed not by First Connecticut Small Business Investment Co. but by a line of cases in which senior mortgagees intending to secure future advances were held to have undertaken certain duties to junior mortgagees. See Sadd v. Heim, 143 Conn. 582, 124 A.2d 522 (1956); Matz v. Arick, 76 Conn. 388, 56 A. 630 (1904).

These cases are, however, inapposite, because they concern the form of mortgages securing future advances, and not the performance obligations that such mortgages entail.

As a matter of form, the validity of future advance mortgages at common law depended on whether they provided a subsequent individual purchaser, incumbrancer or creditor with “reasonable notice of the nature and amount of the incumbrance which the mortgagor intends to place upon the land.” Sadd v. Heim, supra, 585. Where such notice was lacking, such individuals could challenge the priority of the debt of which the future advance mortgage failed to give reasonable notice. In the instant case, however, F.P.’s mortgage complied with General Statutes §§ 49-2 and 49-3. These sections codify the requirements for open-end mortgages securing future advances. Mortgages executed in conformance with these sections are afforded a “safe harbor” that protects them from the type of challenges at issue in Sadd v. Heim, and Matz v. Arick. Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 572-74, 522 A.2d 763 (1987).

Hychko concedes that the CBT construction mortgage with Carriage Lane complied fully with the relevant statutory sections. He nonetheless contends that F.P.’s failure to perform in accordance with the terms of that mortgage constituted a breach of a common law duty that F.P. owed him. Hychko relies heavily upon Stein v. Davidson, 110 Conn. 4, 147 A. 1 (1929), for support of this proposition.

In Stein, which was decided before the legislature enacted §§ 49-2 and 49-3, the defendant had purchased property subject to a first mortgage at a foreclosure sale. Although the first mortgage explicitly provided that money would be advanced only at specific stages of construction, funds were nonetheless advanced even though the predicate construction had not been completed. When the first mortgagee subsequently sought to foreclose on the property, the defendant challenged the validity of the debt that had been incurred in contravention of the terms of the first mortgage. This court upheld the defendant’s challenge. The court based its decision, however, on the same concern manifested in Matz and Sadd, namely that “a mortgage to secure future advances [display] such reasonable certainty as will enable subsequent purchasers, incumbrancers or creditors to ascertain by its terms or such reasonable inquiry as is suggested by them the amount actually secured by it.” Stein v. Davidson, supra, 11.

The purpose of the “reasonable certainty” requirement was not, however, the protection of the reliance interest of junior incumbrancers but the protection of the integrity of the recording system, which, “in its spirit, requires that the record should disclose, with as much certainty as the nature of the case will admit of, the real state of the incumbrance upon the property.” Id., 11-12. That requirement is satisfied when a mortgage securing future advances complies with § 49-3. Notably, § 49-3 expressly permits the mortgagee to make advances at its sole and absolute discretion, provided that the face amount of the note secured by the mortgage is not exceeded. Because F.P.’s mortgage agreement with Carriage Lane complied with § 49-3, Hychko’s reliance on Stein is unavailing.

We conclude, therefore, that the trial court properly granted F.P.’s motion for partial summary judgment. For all of the reasons advanced above, Hychico’s special defense must fail.

The judgment is affirmed.

In this opinion the other justices concurred.

       The agreement complies with General Statutes §§ 49-2 and 49-3, which govern “open-end” mortgages securing future advances.

       Hychko’s special defense and counterclaim did not allege that CBT had acted in bad faith in overadvancing funds to, or had colluded with, Carriage Lane.

       Although F.P. is the appellee in this case, for purposes of accuracy and clarity, our opinion refers to either F.P. or CBT as circumstances dictate.

       F.P. moved for partial summary judgment only because it did not seek judgment as to the form of foreclosure, i.e., strict foreclosure or foreclosure by sale, or as to the value of the property or appropriate fees and expenses. It reserved these issues for a later hearing.

       After the substitution of F.P. for CBT in the foreclosure action, CBT remained a party to the litigation only as defendant to Hychko’s counterclaim.

       Because Hychko has appealed solely from the judgment of strict foreclosure, and not from the unfavorable judgment on his counterclaim, his appeal is necessarily limited to challenging the trial court’s rejection of his special defense to the foreclosure action. In its memorandum of decision, however, the trial court appears to have treated the legal theories presented in Hychko’s special defense and his counterclaim as essentially identical. The record and briefs filed in this case reflect that the parties have viewed those theories in that same manner. For the purposes of this appeal, therefore, we characterize the special defense as did the parties and the trial court.
      We also note that because F.P. was substituted as the plaintiff in the foreclosure action, while CBT remained in the litigation only as a party defendant to Hychko’s counterclaim, F.P. is the appellee in this appeal.

       Because the events that give rise to this claim transpired after the trial court had rendered judgment on F.P.’s motion for summary judgment, the federal law argument could not have been presented to that court. Although we generally do not consider arguments presented for the first time on appeal, the circumstances of this case dictate a departure from that prudential rule.

       Title 12 of the United States Code Annotated, § 1821 (n) (4) (I) provides: “powers of bridge banks . . . [N]o agreement which tends to diminish or defeat the right, title or interest of a bridge bank in any asset of an insured bank in default acquired by it shall be valid against the bridge bank unless such agreement—(i) is in writing, (ii) was executed by such insured bank in default and the person or persons claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by such insured bank in default, (iii) was approved by the board of directors of such insured bank in default or its loan committee, which approval shall be reflected in the minutes of said board or committee, and (iv) has been, continuously from the time of its execution, an official record of such insured bank in default.”

       We also reject the proposition advanced in F.P.’s brief on appeal that, under the circumstances of this case, 12 U.S.C.A. § 1821 (d) (13) (D) deprives this court of subject matter jurisdiction to review Hychko’s special defense.

       In addition to his collusion claim, Hychko also asserts that he had put into issue the mortgage debt on which F.P. sought to foreclose by asserting that the debt was substantially less than that claimed by F.P. According to Hychko, the amount of the mortgage debt claimed by F.P. should have been reduced by the amount of money overadvanced to Carriage Lane because the overadvancement represented the breach of a duty that the plaintiff owed him. This is a legal argument and, as such, was appropriately decided on F.P.’s motion for partial summary judgment.
      Hychko also generally attacks the trial court’s decision to grant F.P.’s motion for partial summary judgment by arguing that F.P. failed to follow the summary judgment procedures set forth in Practice Book § 378 et seq. In particular, he alleges that the grounds on which F.P. was seeking partial summary judgment were unclear and, therefore, that summary judgment should not have been granted. We are unpersuaded.
      Our review of the record discloses that F.P.’s motion was filed with supporting affidavits and a memorandum of law, all in conformance with relevant practice book requirements. Although the grounds on which F.P. sought summary judgment were initially somewhat unclear, subsequent memoranda crystallized those grounds so that the precise nature of the motion was before the trial court when it ruled thereon.

       General Statutes § 49-3 provides in relevant part: “(a) Any mortgage to secure future advancements of money for construction or repair of buildings or improvements on land in this state, including site improvements of every kind with or without the construction or repair of any buildings, is sufficiently definite and certain and valid to secure all money actually advanced under and in accordance with its provisions, up to but not exceeding the amount of the full loan therein authorized, with the same priority as if it had been advanced at the time the mortgage was delivered, (1) if the mortgage contains a description of the loan in substantially the following form: ‘Whereas buildings or improvements on said premises are in process of construction or repair, or to be erected or repaired; and whereas the said grantee has agreed to make the loan herein described to be paid over to said grantor in instalments as the work progresses, the time and amount of each advancement to be at the sole discretion and upon the estimate of said grantee . . . .' ” (Emphasis added.)

       Hychko also cites a number of other cases in support of his special defense. See Fidelity Trust Co. v. Irick, 206 Conn. 484, 538 A.2d 1027 (1988); Beach v.Isacs, 105 Conn. 169, 134 A. 787 (1926); Essex Savings Bank v. Leeker, 2 Conn. App. 98, 476 A.2d 1071 (1984). We have reviewed these cases and find none of them on point.