text:
    City of Norwich, Department of Public Utilities v. Town of Lebanon City of Norwich v. Town of Lebanon
    (12685)
    (12762)
    Peters, C. J., Shea, Callahan, Novack and Hammer, Js.
    Argued May 7
    decision released August 5, 1986

      Jackson T. King, Jr., with whom was Mary E. Holzworth, for the appellant (defendant in each case).

      George C. Hastings, with whom was Charles B. Spadoni, for the appellee (plaintiff in each case).
   Shea, J.

This combined appeal involves a continuing dispute between the plaintiff city of Norwich and the defendant town of Lebanon over the taxability of water supply land owned by Norwich and located in Lebanon. The factual and procedural history underlying these cases is not in dispute.

Since 1971 the plaintiff city of Norwich has owned approximately thirty-eight acres of watershed land in Lebanon. In 1973 Norwich constructed on part of this land a water treatment facility and other related improvements. The plant was used to furnish water to residents of Norwich and Lebanon, as well as to certain firms and residents of the neighboring towns of Montville, Bozrah, Franklin and Preston. Until July, 1979, Norwich provided water to Lebanon users at a marginally higher rate than that charged to its own residents. After that date, however, Norwich equalized its rates.

In connection with the preparation of its 1973 assessment, the board of assessors for the town of Lebanon forwarded a blank form to Norwich on which Norwich was requested to list property which it owned in Lebanon. On October 31, 1973, Donald E. Williams, an employee of the Norwich Department of Public Utilities, estimated that the value of “buildings used for business, commercial, mercantile, and trading purposes, but not for manufacturing” was $2,000,000. Lebanon’s board of assessors accepted the form and assessed the property at 70 percent of the estimated value placed on the property by Williams, after a 10 percent reduction for depreciation. General Statutes § 12-62a (b). The assessed valuation of $1,260,000 was then entered upon Lebanon’s October 1, 1973 grand list.

In subsequent years, the defendant similarily assessed the subject property and imposed property taxes against Norwich accordingly. Norwich never appealed to the Lebanon board of tax review any of the assessments for the years 1973 through 1980. It did, however, in June, 1975, bring an action pursuant to General Statutes § 12-119 claiming that the 1973 and 1974 assessments were manifestly excessive and in violation of General Statutes §§ 12-81 (4) and 12-76. A demurrer to the first count involving the 1973 assessment was sustained in December, 1975, on the ground that the action was not instituted within one year after the assessment date of October 1,1973, as required by General, Statutes § 12-119. The remainder of the action challenging the 1974 assessment was dismissed in 1980 for failure to prosecute; Practice Book § 251; and Norwich did not appeal or move to open the judgment. Practice Book § 377; General Statutes § 52-212.

In October, 1980, Lebanon’s tax collector issued an alias warrant to collect $956,336.65 in taxes, interest and lien fees he claimed to be due from Norwich on the 1974 through 1979 grand lists. Norwich, in November, 1980, instituted an action against Lebanon seeking an injunction to prohibit Lebanon from collecting taxes on the subject property for the years 1974 through 1980. The trial court, Purtill, J., denied Norwich’s request for injunctive relief because Norwich had neglected to pursue the two statutory avenues available to challenge the tax, and, therefore, had failed to demonstrate that it had no adequate remedy at law. Norwich appealed from the judgment to this court, which affirmed the trial court’s decision with respect to the years 1974 through 1979, holding that Norwich’s claim that its water supply property had been “wrongfully or excessively assessed could have been appealed in one of two ways: (1) to the board of tax review and from there, within two months, to the Superior Court pursuant to [General Statutes] §§ 12-111 and 12-118; or (2) by direct action to the court within one year from the date when the property was last evaluated for purposes of taxation pursuant to [General Statutes] § 12-119.” Norwich v. Lebanon, 193 Conn. 342, 347-48, 477 A.2d 115 (1984). (Norwich I)

On February 18, 1976, Norwich paid Lebanon the 1973 tax bill, plus interest and certain costs. The payment was made under protest and Norwich specifically reserved its right to contest the validity of the tax assessment. Norwich filed with the Lebanon tax collector an application for repayment of the tax under General Statutes § 12-129. Lebanon refused to refund the tax.

The first appeal (Docket No. 12685) arises from this refusal of the Lebanon tax collector to refund the 1973 taxes paid by Norwich. On November 1,1982, Norwich instituted an action seeking in the first count damages, equitable relief and a writ of mandamus ordering the tax collector of the town of Lebanon to return the amount paid for the 1973 assessment and, in a second count, an injunction prohibiting the collection of taxes based on the October, 1981 assessment as well as those for later years. After a trial to the court, Tamborra, J., judgment was entered in favor of Norwich on both counts. The court concluded that the fair market value of the land in question should have been determined not as ordinary business property, but as if it were “improved farmland” under General Statutes § 12-76, and it ordered the defendant to refund the difference between the taxes paid and those that properly should have been assessed under the appropriate valuation standard. The court also concluded that because the property was used for a “public purpose” and because the residents of Lebanon were entitled to utilize the water supply at the same rate as residents of Norwich since July, 1979, General Statutes §§ 12-81 (4) and 12-76 provide tax exempt status. The court, therefore, entered an injunction prohibiting Lebanon from collecting any taxes on the disputed property based on the grand list of October 1,1982, and also upon any future assessments so long as the statutory exemption requirements remain satisfied.

The second action (Docket No. 12762), which Norwich instituted on September 4, 1981, is a similar action, although not in the form of a mandamus, seeking a refund of the taxes for the years 1974 through 1979. Norwich paid these taxes under protest on August 31, 1984, following our decision in Norwich I, but also sought a refund of the amount paid, pursuant to § 12-129, a demand which the Lebanon tax collector refused. After a trial to the court, Walsh, J., judgment was rendered in favor of Norwich. The court concurred with all of the findings of facts and legal conclusions of the court, Tamborra, J., in the action involving the 1973 refund and ordered Lebanon to refund the difference between the taxes paid by the plaintiff for the tax years 1974 through 1979 and the amount which should have been paid under the “improved farmland” valuation standard.

The defendant Lebanon appeals from each judgment, claiming that the trial court erred (1) in failing to conclude, in accordance with its special defense in each action, that General Statutes § 12-118 and 12-119 are the exclusive judicial remedies for contesting the illegal assessment of property; and (2) in concluding that as of the October 1, 1982 assessment, the water supply property was exempt from taxation under General Statutes §§ 12-81 (4) and 12-76. We agree with the trial court in respect to the tax exempt status of the plaintiffs property for the 1982 tax assessment. Because Norwich has failed to pursue the statutory remedies available to it, however, we find error in the judgments ordering Lebanon to refund a substantial portion of the 1973 through 1979 taxes paid by Norwich.

I

The trial court, Tamborra, J., concluded that all of the Norwich property assessed by Lebanon, the land, water treatment plant and related improvements, was owned by “a municipal corporation of this state and used for a public purpose.” The property was thus exempt from taxation by virtue of General Statutes § 12-81 (4), except that the water supply land was assessable pursuant to § 12-76 as “improved farm land” until Norwich in 1979 ceased to charge its Lebanon water customers at a higher rate than Norwich residents paid.

The first ground upon which Lebanon disputes this conclusion is that, because Norwich uses its water supply property in Lebanon to furnish water not only to Norwich customers but also to those in the towns of Bozrah, Montville, Preston and Franklin, the property is not being “used for a public purpose” and does not qualify for the exemption created by § 12-81 (4). Lebanon relies upon our decision in Sachem’s Head Property Owners’ Assn. v. Guilford, 112 Conn. 515, 519-20, 152 A. 877 (1931), where we held that water mains extending beyond the boundaries of a municipal corporation solely for the purpose of supplying inhabitants of another area outside its territorial limits were not tax exempt, because they were wholly devoted to the needs of another community and the corporation charter authorized the corporation to furnish water only to its residents. We also held, however, that mains extending beyond the boundaries of the municipality to the source of the water distributed to municipal residents, as well as, through the nonexempt mains, to the other community, were being used for a public purpose and thus tax exempt. Id., 519. None of the water supply property in Lebanon is used exclusively for the purpose of servicing customers outside Norwich, all of the water treated at the Lebanon plant being distributed alike to residents of Norwich and the surrounding towns. These circumstances are quite similar to those that induced us in Sachem’s Head to find that the water mains extending from the municipal boundary to the water source and used for supplying both municipal residents and those of another community were tax exempt by virtue of their use for a public purpose. It should also be noted that the Norwich charter, unlike that in Sachem’s Head, authorized the city to supply water to residents of the towns in the area that it serviced in addition to its own residents. We find no merit in Lebanon’s claim that, because the water supply property is used to furnish water to customers residing outside Norwich as well as within the city, the property is not used for a public purpose.

An additional claim of Lebanon is that in Norwich I the trial court made a finding that the Lebanon property was not tax exempt and that Norwich is precluded by collateral estoppel from a redetermination of this issue. The memorandum of decision of the trial court, Purtill, J., in that case plainly states that the paucity of evidence in respect to the nature of the water supply property and the applicability of §§ 12-76 and 12-81 (4) made it impossible to resolve the question of whether the property was tax exempt. On appeal, this court found error in the failure to resolve the tax exemption issue, and remanded the case for a determination thereof for the year 1980, the only tax year not subject to the one year limitation of § 12-119 as applicable to that action. Since it is apparent that the issue of exemption was never decided in Norwich I, Lebanon’s claim that collateral estoppel bars Norwich from relitigating the question borders on the frivolous.

Our agreement with the trial court, Tamborra, J., that the water supply property in Lebanon enjoyed tax exempt status since July, 1979, when Lebanon customers were charged for water at the same rates as Norwich customers as required by § 12-76 for the tax exemption, means that we find no error in the portion of the judgment enjoining Lebanon from collecting taxes on the Norwich property on the assessment list of October 1, 1982, and subsequent years.

II

The court, Tamborra, J., in Docket No. 12685 ordered that Lebanon refund the sum of $64,621.85 with interest to Norwich, representing the difference in taxes paid on February 18, 1976, under protest based upon the October 1, 1973 assessment as billed by Lebanon and the amount of such taxes as calculated on a proper assessment of the water supply land pursuant to § 12-76. In Docket No. 12762, the court, Walsh, J., awarded Norwich $1,357,113.46 with interest, representing the portion of the taxes billed by Lebanon on the assessment list of October 1, 1974 through 1979 that had been paid under protest on August 31,1984. We find error in both of these judgments.

In Norwich I, in which Norwich attempted to enjoin the collection of taxes based on the Lebanon grand lists of 1974 through 1979, this court held that the failure to follow the procedure established by § 12-119 for obtaining relief from an illegal or manifestly excessive assessment barred the grant of any of the relief requested. We had previously held that, “[a]s the statute was clearly intended to take the place of the remedy in equity based on an overvaluation of the property and as all the relief can be obtained under it which could be afforded by equity, it precludes a resort to equity generally in such a case as the one before us.” Cohn v. Hartford, 130 Conn. 699, 704, 37 A.2d 237 (1944). We held in Norwich I that § 12-119 effectively established a statute of limitations of one year from the valuation date within which an illegal or grossly excessive assessment can be challenged.

After our remand of Norwich I to the trial court for further proceedings, Norwich proceeded on August 31, 1984, to pay the taxes due for the years 1974 through 1979 under protest in order to avoid a threatened execution on its property by way of an alias tax warrant. The letter enclosing this payment to the Lebanon tax collector for taxes based on the disputed assessments also demanded that the disputed sum, $1,357,113.46 be refunded immediately pursuant to General Statutes § 12-129. When Lebanon refused this demand, Norwich commenced an action on September 4, 1984, almost ten years from the first assessment involved, seeking a refund of the taxes it had paid under protest.

This court declared in Norwich I that relief from an illegal or excessive assessment is obtainable only (1) by appeal to the board of tax review and then by a further appeal within two months, to the Superior Court pursuant to §§ 12-111 and 12-118 or (2) by an action in court pursuant to § 12-119 within one year from the last valuation date. Norwich maintains, nevertheless, that it may avoid these temporal limitations by paying under protest, at any time it chooses, the taxes computed upon the illegal or excessive assessment and then, after a request for refund under § 12-129 has been denied, commence a suit to recover the amount paid.

Prior to the enactment of § 12-119 in 1921, an action was permitted to obtain a refund of taxes paid under protest in the face of an attempt to collect them by the taxing authority. Underwood Typewriter Co. v. Chamberlain, 92 Conn. 199, 204-205, 102 A. 600 (1917); Shaw v. Hartford, 56 Conn. 351, 15 A. 742 (1888); Phelps v. Thurston, 47 Conn. 477, 486 (1880); First Ecclesiastical Society of Hartford v. Hartford, 38 Conn. 274, 290 (1871); Hubbard v. Brainard, 35 Conn. 563, 576 (1869). The action of indebitatus assumpsit for money had and received, is the appropriate remedy for recovery of money collected under an illegal assessment. Bailey v. Goshen, 32 Conn. 546, 548 (1865); Adam v. Litchfield, 10 Conn. 127, 131 (1834). “Originally an action for the recovery of debt, favored because more convenient and flexible than the common law action of debt, it has been gradually expanded as a medium for recovery upon every form of quasi-contractual obligation in which the duty to pay money is imposed by law, independently of contract, express or implied in fact.” Stone v. White, 301 U.S. 532, 534, 57 S. Ct. 851, 81 L. Ed. 1265, reh. denied, 302 U.S. 777, 58 S. Ct. 260, 82 L. Ed. 601 (1937); J. B. Ames, “The History of Assumpsit,” 2 Harv. L. Rev. 53, 68. Although such an action to recover illegal taxes paid under duress is one at law, it is governed by equitable principles. Id.; see Bailey v. Goshen, supra, 549 (characterizing the action of assumpsit to recover illegal taxes as “an equitable one”). “It lies whenever no other remedy is given . . . .”72 Am. Jur. 2d, State and Local Taxation § 1079.

We have frequently held that where a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure. LaCroix v. Board of Education, 199 Conn. 70, 78, 505 A.2d 1233 (1986); Laurel Park, Inc. v. Pac, 194 Conn. 677, 685, 485 A.2d 1272 (1984); Sullivan v. State, 189 Conn. 550, 559, 457 A.2d 304 (1983); Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979). Courts of other jurisdictions have applied this principle to bar suits in assumpsit where there existed adequate statutory remedies which the taxpayer had failed to employ. Hoffman v. Colorado State Board of Assessment, 683 P.2d 783, 785 (Colo. 1984); Stout Industries, Inc. v. Leachman, 699 S.W.2d 129, 131-32 (Mo. App. 1985); Jaroff v. Board of Assessment Review, 89 App. Div. 2d 617, 452 N.Y.S.2d 666 (1982); Sullivan v. Oklahoma Tax Commission, 283 P.2d 521, 523-24 (Okla. 1954); Columbia Developers, Inc. v. Elliott, 269 S.C. 486, 490, 238 S.E.2d 169 (1977). “Where the General Assembly has established complete, adequate and speedy statutory remedies for alleged tax irregularities, a taxpayer must exhaust them.” Hoffman v. Colorado State Board of Assessment, supra, 785. Where there is no statutory remedy or it is inapplicable under the circumstances, the action of assumpsit continues to survive for the purpose of obtaining a refund of illegal taxes paid under duress. Glendale Heights Ownership Assn. v. School District, 393 Pa. 485, 491-92,143 A.2d 386 (1958). With respect to taxes illegally imposed on exempt property as compared to taxes resulting from overvaluation, some courts have made an exception to the requirement of exhaustion of statutory remedies, but others have rejected this distinction. Yttrup Homes v. County of Sacramento, 73 Cal. App. 3d 279, 282 n.1, 140 Cal. Rptr. 680 (1977); cf. Reynolds Fasteners, Inc. v. Wright, 197 So. 2d 295 (Fla. 1967); see annot., 25 A.L.R.4th 186, 225-29.

Norwich points out that § 12-119 does not purport to be an exclusive remedy to correct illegal or excessive assessments, since the statute expressly declares the procedure it establishes to be “in addition to the other remedies provided by law.” It is claimed that this reference to “other remedies” pertains not only to the alternative procedure under §§ 12-111 and 12-118 of an appeal to the board of tax review and, if necessary, from the board to the court, but also to the established common law remedy of indebitatus assumpsit. In Connecticut Light & Power Co. v. Oxford, 101 Conn. 383, 391-92, 126 A. 1 (1924), this court did declare that the enactment of § 12-119 “merely added one more” to the “recognized remedies” of an appeal to the board of tax review and of assumpsit for “money illegally received and retained.” The court regarded the statute as “properly speaking, merely declaratory of existing legal and equitable rights; for can it be doubted that relief outside of that obtainable by appeal, would have been afforded as respects the two categories mentioned in the recent statute, that is, the absolute nontaxability of the property in the municipality where situated, and a manifest and flagrant disregard of statutory provisions.” Id.

In Cohn v. Hartford, supra, 702, however, we recognized that §§ 12-118 and 12-119 “limit to a short period the time within which the property owner can seek relief under them, and the purpose of this is undoubtedly to prevent delays in the ultimate determination of the amounts a municipality can collect as taxes.” It is apparent that this legislative purpose would be thwarted if an action for refund of taxes paid upon a disputed assessment could be brought far beyond the time limits for contesting an assessment established by these statutes. We, therefore, reject the plaintiff’s contention that the indebitatus assumpsit remedy becomes available whenever a taxpayer of sufficient resources chooses to pay the taxes related thereto, even long after expiration of the period during which statutory remedies provided for relief from an erroneous assessment were available. In National CSS, Inc. v. Stamford, 195 Conn. 587, 597-98, 489 A.2d 1034 (1985), we held that the failure of a taxpayer to apply for a certificate of correction pursuant to General Statutes § 12-57 to correct an erroneous assessment of personal property within the period of one year allowed by the statute barred resort to the similar common law quasi-contractual action of unjust enrichment to recover the taxes paid upon the illegal assessment. “Public policy requires . . . that this court not permit taxes collected or paid to be the subject of perpetual litigation, at any time, to suit the convenience of the taxpayer.” Id., 597. Similarly in Hartford v. Faith Center, Inc., 196 Conn. 487, 490-92, 493 A.2d 883 (1985), the failure of the taxpayer to utilize the procedures for contesting an assessment established by §§ 12-118 and 12-119 was deemed to preclude an attempt to raise the illegality of the assessment as a special defense in an action to collect the taxes imposed as a result. “[W]e see no reason to allow a taxpayer who has failed to utilize the available statutory remedies to assert, in an action to collect a tax under General Statutes § 12-161, that the tax has not been ‘properly assessed.’ ” Id., 491.

The contention of the plaintiff Norwich that it can circumvent the time limitations of §§ 12-118 and 12-119 by resorting to the ancient writ of indebitatus assumpsit is incompatible with the conception that such an action is governed by equitable principles. Stone v. White, supra, 534-35; Bailey v. Goshen, supra, 549; 72 Am. Jur. 2d, State and Local Taxation § 1079. Norwich’s disregard of the statutory remedies for correcting an erroneous assessment cannot be reconciled with the familiar principle that resort to equity may be had only where legal relief is unavailable or inadequate. Laurel Park, Inc. v. Pac, supra, 691. The equitable doctrine of laches is similarly implicated by the inexcusable delay that transpired before Norwich commenced this action to enforce its claim and the prejudice that upholding such a tardy assessment challenge would cause to Lebanon, whose yearly budgets and tax rates have been premised upon the validity of its grand list, including the assessment of the water supply property. New York Annual Conference v. Fisher, 182 Conn. 272, 292, 438 A.2d 62 (1980). Although § 12-119 may have been enacted “in addition to the other remedies provided by law” and thus did not wholly remove indebitatus assumpsit as a vehicle for obtaining a tax refund; Connecticut Light & Power Co. v. Oxford, supra, 391-92; the statute did not exempt such an action from application of the equitable principles that have historically controlled its use. Stone v. White, supra. Where the evident purpose of the statute, “to prevent delays in the ultimate determination of the amounts a municipality can collect as taxes”; Cohn v. Hartford, supra, 702; will be defeated by such an extreme disregard of the statutory time limits for relief as appears in this case, we conclude that the legislative purpose of establishing a mechanism for prompt resolution of assessment disputes must prevail so that town taxes can be computed upon a reliable grand list.

Accordingly, we find error in the part of the judgment of the court, Tamborra, J., ordering a refund to Norwich with interest of the taxes paid under protest on the Lebanon assessment list of October 1, 1973. Similarly, we find error in the judgment of the court, Walsh, J., ordering that Norwich recover from Lebanon the taxes paid on the lists of October 1, 1974 through 1979.

In Docket No. 12685 there is error in the judgment on the first count of the complaint awarding a refund to Norwich of the taxes paid on the Lebanon assessment list of October 1,1973, the judgment is set aside, and the case is remanded with direction to render judgment for the defendant Lebanon on the first count. There is no error in the judgment on the second count enjoining Lebanon from collecting taxes on the water supply property based upon the lists of October 1,1982 and subsequent years.

In Docket No. 12762 there is error, the judgment is set aside, and the case is remanded with direction to render judgment for the defendant Lebanon.

In this opinion the other justices concurred.

       In Norwich I this court concluded that the plaintiffs claim for relief from the assessment of October 1, 1980, was not barred by the one year limitation of General Statutes § 12-119. Norwich v. Lebanon, 193 Conn. 342, 349, 477 A.2d 115 (1984). On remand the parties stipulated that the determinative tax exemption issue would be determined by the outcome of the appeal in Docket No. 12685, where we upheld the judgment of the trial court that the water supply property was tax exempt pursuant to General Statutes § 12-81 (4).

       “[General Statutes] Sec. 12-81. exemptions. The following-described property shall be exempt from taxation ... (4) Municipal property. Except as otherwise provided by law, property belonging to, or held in trust for, a municipal corporation of this state and used for a public purpose, including real and personal property used for cemetery purposes. . . .”

       “[General Statutes] Sec. 12-76. assessment of water supply land. PAYMENTS IN LIEU OF TAXES BY CERTAIN MUNICIPAL CORPORATIONS RE water supply land in another municipality, (a) Land owned or taken by any municipal corporation, including any metropolitan district established under provisions of the general statutes or any special act, for the purpose of creating or furnishing a supply of water for its use shall be exempt from taxation when the inhabitants of the town in which such land is situated have the right to use, and use, such water supply upon the same terms as the inhabitants of such municipal corporation; otherwise such land shall be liable to taxation and shall be assessed in the town in which such land is situated to the corporation owning or controlling such water supply at what would be its fair market value were it improved farm land, notwithstanding the provisions of section 12-63 or any special act. Any such municipal corporation shall, with respect to any such land acquired on or after January 1,1978, which is situated in a town other than that in which such municipal corporation is located, make annual payments to such town equal to the taxes which would otherwise be due if such land were assessed in accordance with section 12-63, exclusive of any taxes on improvements made on such land subsequent to acquisition by such corporation.”

       “[General Statutes] Sec. 12-119. remedy when property wrongfully assessed. When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose leas.e has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant. In all such actions, the superior court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court.”

       “[General Statutes] Sec. 12-129. refund of excess payments. Any person, firm or corporation who pays any property tax in excess of the principal of such tax as entered in the rate book of the tax collector and covered by his warrant therein, or in excess of the legal interest, penalty or fees pertaining to such tax, or who pays a tax from which the payor is by statute exempt and entitled to an abatement, or who, by reason of a clerical error on the part of the assessors, tax collector or any other town officer, pays a tax in excess of that which should have been assessed against his property, or who is entitled to a refund because of the issuance of a certificate of correction, may make application in writing to the collector of taxes for the refund of such amount. Such application shall be made within six years from the date of payment and shall contain a recital of the facts and shall state the amount of the refund requested. The collector shall, after examination of such application, refer the same, with his recommendations thereon, to the board of selectmen in a town or to the corresponding authority in any other municipality, and shall certify to the amount of refund, if any, to which the applicant is entitled. Upon receipt of such application and certification, the selectmen or such other authority shall draw an order upon the treasurer in favor of such applicant for the amount of refund so certified. Any action taken by such selectmen or such other authority shall be a matter of record, and the tax collector shall be notified in writing of such action. Upon receipt of notice of such action, the collector shall make in his rate book a notation which will date, describe and identify each such transaction. Each tax collector shall, at the end of each fiscal year, prepare a statement showing the amount of each such refund, to whom made and the reason therefor. Such statement shall be published in the annual report of the municipality or filed in the town clerk’s office within sixty days of the end of the fiscal year. Nothing in this section shall be construed to allow a refund based upon an error of judgment by the assessors, nor a refund as to which the procedure has, prior to October 1,1943, been determined by statute.”

        See National CSS, Inc. v. Stamford, 195 Conn. 587, 597 n.10, 489 A.2d 1034 (1985).

       General Statutes § 12-119 is applicable expressly as a remedy for both “property not taxable” and for “manifestly excessive” valuations. The circumstance that the statute is equally available to correct both kinds of assessment errors militates against our following those precedents excepting tax exempt property from the exhaustion requirement.


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    Richard C. Caulkins v. John P. Petrillo et al.
    (12691)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued April 3
    decision released August 5, 1986

      Kerin M. Woods, with whom, on the brief, was William R. Carapezzi, Jr., for the appellant (plaintiff).

      LeelandJ. Cole-Chu, for the appellees (defendants).
   Arthur H. Healey, J.

The dispositive issue on this appeal is whether the enforcement of an oral contract for home improvements is barred by the provisions of General Statutes § 20-429 requiring that home improvement contracts be in writing.

In April, 1981, the defendants, John P. Petrillo and Angelina Petrillo, entered into a signed ****8written agreement with the plaintiff, Richard C. Caulkins, whereby the plaintiff was to furnish materials and render services in connection with the remodeling and renovation of the defendants’ East Lyme home. The document outlined the work to be done, the materials to be provided, and estimated the cost of completion to be $84,687.41. The plaintiff undertook to provide services pursuant to this contract.

On August 1, 1981, the plaintiff submitted to the defendants a revised proposal which indicated that the actual cost of the work would exceed the original price. The revised proposal calculated the total cost to be $117,470.57. The plaintiff alleged that the higher cost resulted from oral requests by the defendants for extra items. He further claims that the defendants had orally consented to the revised proposal and had agreed to pay this higher amount.

After the defendants had paid in excess of $107,000 to the plaintiff, a dispute arose over the scope, quality, and cost of the plaintiffs work. On December 1, 1981, the plaintiff filed a mechanic’s lien on the defendants’ property claiming that, under the contract, the defendants still owed him $10,057.80. In November, 1982, the plaintiff filed a complaint requesting foreclosure of the lien, possession of the defendants’ premises, and damages. Later, the plaintiff filed a revised amended complaint. Thereafter, the defendants moved to strike the plaintiff’s revised amended complaint for failure to state a cause of action because, inter alia, to be valid, home improvement contracts under General Statutes § 20-429 must be in writing. On November 6, 1984, the trial court, Conway, J., granted the defendants’ motion on this ground. The court ruled that the August 1, 1981 document was not a valid contract because there was no written indication that the defendants had agreed to its submission by the plaintiff. The plaintiff did not thereafter amend his revised amended complaint and judgment was entered against him. The plaintiff filed this appeal from the judgment. We find no error.

On appeal, the plaintiff contends that the trial court erred in concluding that the enforcement of an oral home improvement contract that has been fully performed by the contractor and partially performed by the homeowner is barred by the provisions of General Statutes § 20-429. The plaintiff argues that § 20-429 is a special statute of frauds provision for home improvement contracts similar to the statute of frauds embodied in General Statutes § 52-550. The plaintiff claims that, because of this similarity, § 20-429 should be construed to apply the doctrine of full performance, which operates to take a contract out of the provisions of § 52-550.

“ Tt is a fundamental principle of statutory construction that statutes are to be construed so that they carry out the intent of the legislature.’ ” DeFonce Construction Corporation v. State, 198 Conn. 185, 187, 501 A.2d 745 (1985), quoting State v. Campbell, 180 Conn. 557, 561, 429 A.2d 960 (1980); 2A Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.05. “ ‘ “It has often been said that the legislative intent is to be found not in what the legislature meant to say, but in the meaning of what it did say.” ’ ” Hayes v. Smith, 194 Conn. 52, 57-58, 480 A.2d 425 (1984); Wiegand v. Heffernan, 170 Conn. 567, 581, 368 A.2d 103 (1976); Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975); Sillman v. Sillman, 168 Conn. 144, 148, 358 A.2d 150 (1975). “Where the language used is clear and unambiguous, we will not speculate as to some supposed intention.” Hayes v. Smith, supra, 158. “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . .” General Statutes § 1-1 (a).

The language of § 20-429 (a) is clear and unambiguous: “No home improvement contract shall be valid unless it is in writing . . . . ” The use of the word “no” in the statute is self-explanatory. The use of the word “shall” by the legislature connotes that the performance of the statutory requirements is mandatory rather than permissive. See, e.g., Hossan v. Hudiakoff, 178 Conn. 381, 383, 423 A.2d 108 (1979); Akin v. Norwalk, 163 Conn. 68, 74, 301 A.2d 258 (1972). We note that § 20-429 uses the terms “shall” in subsection (a) and “may” in subsection (c). “The words ‘shall’ and ‘may’ must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings. Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428-29, 226 A.2d 380 [1967]; Blake v. Meyer, 145 Conn. 612, 616, 145 A.2d 584 [1958].” Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978); Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 505, 503 A.2d 1161 (1986). “Valid” is defined by Webster’s New International Dictionary as, “having legal strength or force. . . . ” Read literally, then, it is clear that the plain language of the statute does not provide an exception to the requirement that home improvement contracts be in writing.

The plaintiff claims that this court should imply an exception to § 20-429 for agreements that have been fully performed by the contractor, arguing that this statute is a special statute of frauds provision for home improvement contracts. We do not agree.

The legislature is presumed to act in view of existing relevant statutes and with the intention of creating one consistent body of law. State v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984); Vartuli v. Sotire, 192 Conn. 353, 362, 472 A.2d 336 (1984); Thornton Real Estate, Inc. v. Lobdell, 184 Conn. 228, 230, 439 A.2d 946 (1981). The full and part performance doctrines of the statute of frauds are principles of common law liability well settled long before the enactment of § 20-429. See Harmonie Club, Inc. v. Smirnow, 106 Conn. 243, 249, 137 A. 769 (1927); Haussman v. Burnham, 59 Conn. 117, 133, 22 A. 1065 (1890). The legislature is presumed to have been mindful of these interpretations of the statute of frauds when it enacted § 20-429. See State v. West, supra.

It is true that, in some instances, a statute, general in its terms, may be construed to admit implied exceptions. New Haven Savings Bank v. Warner, 128 Conn. 662, 669, 25 A.2d 50 (1942). However, “this interpretation is made only when the intent of the legislature is clear notwithstanding the literal sense and precise letter of the statute.” Sienkiewicz v. Sienkiewicz, 178 Conn. 675, 687, 425 A.2d 116 (1979) (Loiselle, J., dissenting); Busko v. DeFelippo, 162 Conn. 462, 471, 294 A.2d 510 (1972). “ ‘[I]n the absence of ambiguity, courts cannot read into statutes, by construction, provisions which are not clearly stated . . . .’” Hayes v. Smith, supra; Point O’Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 366, 423 A.2d 90 (1979). Moreover, courts should not imply exceptions to a statute which the legislature did not prescribe by word or implication. Sienkiewicz v. Sienkiewicz, supra, 687-88. If the legislature had wanted the writing requirement for home improvement contracts to be subject to the same doctrines that apply to the statute of frauds, it could easily have added the appropriate provision to § 52-550 instead of enacting § 20-429, or, in the alternative, the legislature could have expressed an intent to apply these doctrines to § 20-429. That the legislature did neither supports our conclusion that it intended no exceptions.

The plaintiff argues that the legislature could not have intended the statute to create a bar to the enforcement of an oral home improvement contract which has been fully performed by the contractor. Even though the statute is unambiguous, we briefly will address the plaintiffs claim. The plaintiff, without referring us to any specific legislative comment, claims that the legislative history of General Statutes § 20-429 supports his position. The legislative history of the statute, however, does not reveal any intention on the part of the legislature to qualify or limit the effect of the statute as the plaintiff suggests. Quite the contrary, the legislator reporting the bill stated that “the act requires that every home improvement contracts [sic] as defined in this piece of legislation be in writing [and] contain the entire agreement between the owner and contractor . . . .” (Emphasis added.) 22 H. R. Proc., Pt. 33,1979 Sess., p. 11, 621, remarks of Representative William P. Candelori. Additionally, the same legislator, in commenting on the purposes of the bill, stated: “The purpose of the bill is to provide minimal, and I stress minimal, safeguards for the consumer who contracts for home improvement work to be done on or in the home.” Id., 11, 613. The problems the bill addresses include contractors’ workmanship, diligence, substitution of inferior materials, high costs, and extra charges. Id., 11, 614. The legislative history does not avail the plaintiff; it makes no express or implied mention of an exception to the writing requirement for contracts which have been partly or fully performed by the contractor. Consequently, in the absence of any legislative intent to qualify or limit the effect of the statute, this court will not “speculate upon any supposed intention not appropriately expressed in the act itself.” Colli v. Real Estate Commission, supra.

It is apparent that this law was passed for the protection of the public and that the remedial purposes of the statute would be undermined if this court were to permit a contractor to enforce an oral contract on the grounds claimed. For example, if a home improvement contractor could, without a written contract, perform certain work and then allege an oral agreement for precisely the same work alleged to have been fully performed, the purpose and clear intent of § 20-429 would be thwarted. We must presume, in the absence of any indication to the contrary, that the legislature intended the statute to be interpreted exactly as it is written; that is, “[n]o home improvement contract shall be valid unless it is in writing . . . .”

We conclude, therefore, that the trial court did not err in granting the motion to strike.

There is no error.

In this opinion the other justices concurred.

       Because of our disposition of this appeal, we need not address the plaintiff’s second claim that his revised amended complaint alleges full performance of the contract.

       General Statutes § 20-429 provides: “contract to be in writing, owner to receive copy, required provisions, (a) No home improvement contract shall be valid unless it is in writing and unless it contains the entire agreement between the owner and the contractor.
      “(b) The contractor shall provide and deliver to the owner, without charge, a completed copy of the home improvement contract at the time such contract is executed.
      “(c) The commissioner may, by regulation, require the inclusion of additional contractual provisions.”
      General Statutes § 20-429 took effect July 1, 1980, nine months before the written contract between the plaintiff and the defendants. Public Acts
      1979, No. 79-606, §§ 2, 14. The statute is part of chapter 400, the Home Improvement Act. General Statutes § 20-418.
      Section 20-419 (5) defines a “home improvement contract” as “an agreement between a contractor and an owner for the performance of a home improvement.” The Home Improvement Act contains restrictions on the definition of a “contractor” (§ 20-419 [3]), an “owner” (§ 20-419 [6]), and a “home improvement” (§ 20-419[4]) that are not pertinent to this case.

       The agreement was signed by Richard C. Caulkins and John P. Petrillo, individually and as agent for Angelina Petrillo.

       General Statutes § 52-550 provides: “statute of frauds; written agreement or memorandum, (a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; or (5) upon any agreement that is not to be performed within one year from the making thereof.
      “(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term.”

       Under Connecticut law, it has long been held that full performance by both parties to an oral contract and, in some circumstances, part performance by a party seeking to enforce a contract will operate to remoye a contract from the provisions of the statute of frauds, General Statutes § 52-550. See, e.g., Breen v. Phelps, 186 Conn. 86, 439 A.2d 1066 (1982); Rutt v. Roche, 138 Conn. 605, 87 A.2d 805 (1952); see 1 Restatement (Second), Contracts §§ 128 through 130, 145.


author: Callahan, J.

text:
    State of Connecticut v. David Sanchez
    (12225)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued April 29
    decision released August 5, 1986

      Kevin C. Connors, special public defender, with whom, on the brief, was Michael J. Whelton, special public defender, for the appellant (defendant).

      StevenM. Sellers, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Herbert Appleton, assistant state’s attorney, for the appellee (state).
   Callahan, J.

After a jury trial, the defendant, David Sanchez, a/k/a Cecilio DeLeon, was convicted of felony murder in violation of General Statutes §§ 53a-54c and 53a-54a (c). He was sentenced to a term of imprisonment of not less than twenty-five years to life. On appeal, he claims that the trial court erred in: (1) excluding the hearsay confession of a third party; and (2) denying the defendant’s motion to open his case after the close of evidence but prior to closing arguments. We find no error.

The jury could reasonably have found that on December 23, 1980, at about 5:30 p.m. two hispanic males entered Jack’s Pharmacy at 714 Albany Avenue in Hartford. The co-owners of the pharmacy, Joseph Gartrell and Robert Gentry, as well as an employee, Ruby McKnight, were working in the pharmacy that evening. No customers were in the pharmacy. Upon entering the pharmacy, the two men proceeded to the cooler, removed an eight-pack of beer, and placed it on the sales counter, behind which Gartrell, Gentry and McKnight were standing. One of the men then inquired as to the price of the beer, whereupon he took a ten dollar bill out of his wallet and placed it on the counter. McKnight opened the cash register to get change at which time the same man placed the barrel of a gun on the cash register, and told McKnight to “leave it as is.” McKnight complied with the man’s demand for her to lie face down on the floor behind the counter. Gentry and Gartrell remained standing. Gentry then said something in Spanish to one of the men, at which time the man fired a handgun at Gentry, fatally wounding him. McKnight later identified the defendant in a photo array as the person who shot Gentry. Gartrell also identified the defendant in a corporeal lineup as the person who shot Gentry. Other facts will be discussed as they become relevant to the specific claims raised.

I

The defendant’s first claim is that the trial court erred in excluding the hearsay confession of a third party. The defendant attempted to introduce a statement made out of court by a third party, one Jovino Solar. The statement was sought to be introduced through Maria Navarro, who had previously testified that the defendant had been with her on the night of the robbery and murder.

In the absence of the jury, the defendant offered Navarro’s testimony concerning the statement allegedly made by Solar, viz., that he had committed the robbery and murder at Jack’s Pharmacy on December 23,1980. Navarro, who had lived with the defendant for eight years at the time of the trial, testified that on December 23,1980, she was'with the defendant in their apartment all day until late that evening, when Solar’s brother visited them. She further testified that the three then left her apartment and went to an apartment where they met Solar. Navarro testified that Solar at that time told her that he had robbed and “killed the guy” at Jack’s Pharmacy. According to Navarro’s testimony, Solar told her that he had entered the pharmacy at about 5 p.m. and said, “Don’t move, anybody,” whereupon the owner of the pharmacy “fired the gun three times.” In response, Solar claimed he fired his gun three times “because he got upset.” The defendant’s counsel argued that, although this statement constituted hearsay, it should be admitted as a declaration against penal interest, an exception to the hearsay rule. The trial court refused to admit the statement.

In State v. DeFreitas, 179 Conn. 431, 426 A.2d 799 (1980), we held that third party statements against penal interest exculpatory to a defendant were no longer per se inadmissible. See also State v. Frye, 182 Conn. 476, 479, 438 A.2d 735 (1980); State v. Gold, 180 Conn. 619, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). The rule we adopted in DeFreitas is consistent with the United States Supreme Court decision in Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973), and is also in accord with rule 804 (b) (3) of the Federal Rules of Evidence providing that trustworthy third party statements against penal interest exculpatory to a defendant are admissible if the declarant is unavailable. “Courts have extracted from Chambers four general considerations relevant to an investigation of the trustworthiness of a third party confession: ‘(1) the time of the declaration and the party to whom the declaration was made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is really against the declarant’s penal interest; [and] (4) the availability of the declarant as a witness.’ ” State v. Frye, supra, 479. No single factor in the test for determining trustworthiness is necessarily conclusive; State v. Gold, supra, 633-34; the factors are reflective of the fact that there can be “ ‘no precise formulation of the proof which would constitute sufficient evidence of the trustworthiness’ ” of such declarations. State v. Frye, supra, 480.

In our review of a trial court’s ruling on the admissibility of the third party confession, the determination as to whether the third party declaration against penal interest is trustworthy is left to the sound discretion of the trial court. State v. DeFreitas, supra. In this case, the trial court excluded the proffered testimony on the ground that “the corroborating circumstances clearly indicate[d] that the alleged statement was untrustworthy.” The unavailability of the declarant was established, and it is undisputed that the alleged statement was against the declarant’s penal interest. Therefore, we will examine only the evidence concerning the time of the declaration, the party to whom it was made, and the evidence corroborating the statement. See State v. DeFreitas, supra, 449.

The defendant first argues that Solar’s statement. was made at a time and to a person that would tend to indicate trustworthiness. We disagree. Although the statement was allegedly made only hours after the crimes occurred; see State v. Gold, supra, 634; cf. United States v. Satterfield, 572 F.2d 687 (9th Cir.), cert. denied, 439 U.S. 840, 99 S. Ct. 128, 58 L. Ed. 2d 138 (1978) (confession made two years after crime); the record does not support the claim that it was made to a person which would indicate that it was trustworthy. Navarro testified that Solar had lived in an apartment above her and the defendant and that she had known him for “maybe one month.” The remainder of Navarro’s testimony concerned Solar’s request that Navarro and Sanchez assist him in leaving Hartford and the fact that Solar had spent the night at their apartment following the killing of Gentry. None of this testimony, however, was corroborated by independent evidence. We conclude, as did the trial court, that there was no close, confidential relationship between the declarant and the witness that would indicate the trustworthiness of the alleged declaration by Solar. See State v. Gold, supra, 634; cf. Lowery v. State, 401 F. Sup. 604 (D. Md. 1975), aff’d without opinion, 532 F.2d 750 (4th Cir.), cert. denied, 429 U.S. 919, 97 S. Ct. 312, 50 L. Ed. 2d 285 (1976) (affidavit sworn to before prison official). Additionally, the untrustworthiness of Navarro’s testimony was colored by her intimate relationship with the defendant with whom she. had lived for eight years preceding the robbery and murder at Jack’s Pharmacy. Cf. State v. Gold, supra, 634-35, 638; People v. Craven, 54 Ill. 2d 419, 429, 299 N.E.2d 1 (1973).

We now turn to the second factor, the corroboration of the statement. Unlike the situation in State v. Gold, supra, 634, where “a myriad of corroborating circumstances were present” to indicate reliability, here the record reveals few, if any, corroborating circumstances. The declarant in this case was not placed in the vicinity of the crime by another witness. Therefore, there was no independent evidence that Solar had an opportunity to commit the murder. Cf. State v. Gold, supra, 634-35. Moreover, the alleged statement by Solar was in direct conflict with the testimony of the two eyewitnesses to the robbery and murder of Gentry. According to Navarro, Solar said that he had entered the pharmacy and said, “Don’t move, anybody,” whereupon the owner of the pharmacy “fired the gun three times.” Both eyewitnesses testified that only one shot had been fired by the defendant. In addition, the police only found one spent bullet during their investigation at the pharmacy. Finally, there were discrepancies between Navarro’s testimony concerning Solar’s appearance at the time of the robbery and the eyewitness descriptions of the robbers. Navarro testified that Solar had a beard, mustache, and sideburns. The eyewitnesses testified that one of the robbers, later identified by them as the defendant, had only a “thin mustache” and that his younger accomplice was “clean shaven.” Navarro’s account of Solar’s confession made no reference to any accomplice in the crimes. We conclude that the trial court did not abuse its discretion when it excluded Navarro’s rendition of Solar’s alleged statement in the absence of any corroborating circumstances to indicate that it was trustworthy.

II

The defendant next claims that the trial court erred in denying his motion to open his case for the purpose of calling an additional alibi witness, Hector Rodriguez. Specifically, he challenges the trial court’s ruling on four grounds: (1) he was in compliance with the applicable Practice Book sections; (2) the trial court improperly relied upon the “stipulation” of the defendant that Rodriguez would not be called as a witness; (3) the trial court’s ruling denied him due process of law under the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution; and (4) the trial court abused its discretion in denying the motion to open. We disagree and find that, under the circumstances of this case, the trial court acted properly in excluding the alibi testimony.

As we recently stated in State v. Boucino, 199 Conn. 207, 209, 506 A.2d 125 (1986), “our state’s notice of alibi discovery rules are similar in scope and wording to those used in the federal system and most states. See Fed. R. Crim. Proc., rule 12.1; see generally LaFave & Israel, Criminal Procedure (1985) § 19.4 (b).” Practice Book § 763 provides that “[u]pon written demand filed by the prosecuting authority ... the defendant shall file within ten days, or at such other time as the judicial authority may direct, a written notice of his intention to offer a defense of alibi.” Pursuant to § 763 the notice must state “the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.” Once this notice is filed by the defendant, the state “within ten days after filing of the notice, but in no event less than ten days before the trial unless the judicial authority otherwise directs, shall file a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant’s presence at the scene of the alleged offense and any other witnesses to be relied upon to rebut testimony of any of the defendant’s alibi witnesses.” Practice Book § 764. Upon failure of the defendant or the state to comply with these provisions, the trial court “may exclude the testimony of any undisclosed witness . . . . ” Practice Book § 766. “For good cause shown, the judicial authority may grant an exception to any of the requirements of [§§] 763 through 766.” Practice Book § 767; State v. Boucino, supra, 210.

On July 15,1982, the state filed a demand for notice of alibi pursuant to Practice Book § 763. The defendant filed a notice of alibi defense on July 19,1982, naming only Maria Navarro as an alibi witness. Pursuant to Practice Book § 764, the state filed a notice stating the names and addresses of the witnesses it would call to establish the defendant’s presence at the scene of the alleged offense. After both the state and the defendant had rested their respective cases, the defendant moved to open his case to permit Rodriguez to testify as an alibi witness.

The trial court conducted a thorough examination of the defendant and his counsel to determine the merits of the defendant’s motion. The court asked why Rodriguez’ name had not been included in the original notice of alibi. The trial court also noted that defense counsel had “stipulated” earlier in the trial that Rodriguez would not be called as a witness. Defense counsel indicated that he had “no idea” that Rodriguez could offer alibi testimony, and that the defendant had never mentioned that such testimony was available. The trial court then tried to ascertain whether the defendant had known of the potential alibi testimony prior to the filing of his motion to open. The defendant responded that he “knew [all the time] about it.” According to the defendant, however, he had not told his attorney about Rodriguez’ alibi testimony until that day. The defendant claimed that Rodriguez was selling drugs for him outside his apartment on the evening of the alleged crimes, and he had not wanted to reveal such drug involvement in his trial for murder.

The trial court stated that the defendant’s failure to make a timely disclosure of a proffered alibi witness permitted exclusion of the testimony under Practice Book § 766. The court added, however, that Practice Book § 767 indicates that for good cause shown, the judicial authority may grant an exception to the requirements of §§ 763 through 766, and allow the testimony. It concluded, however, that the failure of the defendant to comply with the Practice Book requirements was not excused because the defendant had not shown good cause. It also noted that the defendant had “stipulated” during the trial that he would not call Rodriguez as a witness. The defendant duly excepted.

The defendant claims that under the circumstances he complied with § 763 in a timely fashion and that the trial court failed to consider Practice Book § 765 in rendering its decision. Practice Book § 765 requires that, “[i]f prior to or during the trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under Secs. 763 or 764, the party shall promptly notify the other party or his counsel of the existence and identity of such additional witness.” (Emphasis added.) The defendant contends that, as soon as defense counsel knew of Rodriguez’ potential testimony, counsel notified the trial court and the state and thereby complied with the applicable Practice Book provisions. We disagree.

As the state argues, Practice Book § 765 requires that, upon learning of the identity of an additional alibi witness, “the party shall promptly notify the other party or his counsel... of such additional witness.” (Emphasis added.) It is a fundamental rule of statutory construction that where the language of a statute is clear, “ ‘it is assumed that the words themselves express the intent of the legislature . . . and thus there is no need to construe the statute.’ ” State v. Smith, 194 Conn. 213, 221, 479 A.2d 814 (1984). This rule applies with equal force to Practice Book provisions. See State v. Gethers, 193 Conn. 526, 551, 480 A.2d 435 (1984) (Healey, J., dissenting). The language of Practice Book § 765 requires a “party” to disclose the identity of witnesses. Although there is no indication on the record that defense counsel knew of Rodriguez’ alibi testimony prior to filing the defendant’s motion to open, the defendant acknowledged that he knew as early as December 23,1980, the day of the alleged crimes, that Rodriguez could offer alibi testimony. The defendant, a “party,” therefore had a duty to disclose this information prior to trial. We agree with the trial court that the defendant did not comply with either §§ 763 or 765 of the Practice Book and failed to show “good cause” for noncompliance. We conclude therefore that the trial court did not abuse its discretion conferred upon it by the Practice Book when it excluded the testimony of the undisclosed alibi witness Rodriguez.

The defendant next claims that the trial court erred in rendering its decision on the testimony because it relied on a “stipulation”* **** by the defendant and his counsel that Rodriguez would not be called as a witness during trial. He argues that the decision as to which witnesses will be called, and in what order, is generally regarded as a matter of trial tactics within the province of defense counsel. Further, he argues that the decision not to allow Rodriguez’ alibi testimony denied him his right to present a defense in violation of the sixth amendment to the United States constitution, applicable to the states through the due process clause of the fourteenth amendment.

We do not disagree with the defendant’s characterization of defense counsel’s role with respect to trial strategy. It is established that “[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, supra, 302; State v. Boucino, supra, 214. However, in presenting a defense, the accused, as well as the state, is required to comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. Chambers v. Mississippi, supra; see State v. McKnight, 191 Conn. 564, 469 A.2d 397 (1983). We recognized these principles in State v. Boucino, supra, 213, when we held that “[t]he sixth amendment ‘does not confer the right to present testimony free from the legitimate demands of the adversary system.’ United States v. Nobles, 422 U.S. 225, 241, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975).” We further held, however, that the “exclusion of alibi witnesses may not be justified in all cases where the defendant has failed to comply with the discovery rules. The trial court must weigh the need for exclusion against the defendant’s right to present a defense. See note, ‘The Preclusion Sanction—A Violation of the Constitutional Right to Present a Defense,’ 81 Yale L.J. 1342, 1353-56 (1972). The decision is within the sound discretion of the trial court and will turn on the facts of the particular case. Factors which the trial court must consider include: ‘whether the disclosure violation was technical or substantial, the timing of the ultimate disclosure, the reason, if any, for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.’ Taliaferro v. State, [295 Md. 376, 390-91, 456 A.2d 29 (1983)]; see also United States v. Myers, 550 F.2d 1036, 1043 (5th Cir. 1977); Commonwealth v. LaFrennie, 13 Mass. App. 977, 979, 432 N.E.2d 535 (1982); People v. Merritt, 396 Mich. 67, 82-83, 238 N.W.2d 31 (1976); State v. Smith, 17 Ohio St. 3d 98, 104, 477 N.E.2d 1128 (1985).” State v. Boucino, supra, 213-14. Applying these factors in this case, we conclude that the sanction of exclusion was justified and therefore did not violate the defendant’s constitutional rights.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”
      “[General Statutes (Rev. to 1979)] Sec. 53a-54a. MURDER defined. AFFIRMATIVE DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION. (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony unless it is a capital felony and the death penalty is imposed as provided by section 53a-46a.”

       “[Practice Book] Sec. 766.--FAILURE to comply
      “Upon the failure of either party to comply with the requirements of Sec. 762, the judicial authority may exclude the testimony of any undisclosed witness offered by such party as to the defendant’s absence from or presence at the scene of the alleged offense. Sec. 762 shall not limit the right of the defendant to testify in his own behalf.”

       “Mr. Connor: I could put on the record at this time there is one witness that we are unable to locate. And it turns out my client does not want him called anyway. I can put that on the record.
      “The Court: Who is that?
      “Mr. Connor: Hector Rodriguez. I had indicated at one time we might call a Hector Rodriguez, your Honor. We have been unable to locate him. And I have gone over this with Mr. Sanchez this morning with the aid of our investigator who speaks Spanish, Mr. Amaldo Nieves. And Mr. Sanchez has indicated to me that he doesn’t want him called anyway. So I wouldn’t ask for a continuance to try to locate him. Is that correct, Mr. Sanchez?
      “The Court: Mr. Sanchez, is that a correct statement just made by Mr. Connor?
      “The Defendant: Yes.”

       “The Court: Well, did you, Mr. Sanchez, did you know about this before last night?
      “The Interpreter: About what?
      “The Court: About the fact that Mr. Rodriguez had this information, or did you know it before?
      “The Interpreter: All the time I knew about it.”

       The record indicates that the defendant argued that he had not called Hector Rodriguez as a witness because he did not know where Rodriguez was at the time of trial.
      “The Court: Well, what I’m saying is that when he made that statement he said that he did not want to call—he didn’t say he wasn’t able to get a hold of him. He said he did not want to call him. And he said that after discussing it with Mr. O’Connor [sic]. And I’m trying to determine why that Mr. Rodriguez might be helpful to him with regard to his alibi, defense.
      “The Interpreter: All the time I knew he could help me, but I didn’t know where he was.”
      We note that even if the defendant had not known of Rodriguez’ whereabouts until the day of the motion to open, this did not relieve the defendant of his duty to disclose under Practice Book § 765. Trial counsel could have sought a continuance pursuant to Practice Book § 981 to enable him to locate Rodriguez.

       The defendant does not challenge the trial court’s characterization of the defendant’s statement on the record as a “stipulation.” We do not consider the statements of the defendant or defense counsel to be formal stipulations.


author: Santaniello, J.

text:
    State of Connecticut v. Robert Lizotte
    (12442)
    Peters, C. J., Healey, Santaniello, Callahan and M. Hennessey, Js.
    Argued April 29
    decision released August 5, 1986

      Kevin C. Connors, special public defender, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, were Warren Maxwell, assistant state’s attorney, and James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Santaniello, J.

On November 23,1983, the defendant, Robert Lizotte, was convicted of sexual assault

in the second degree in violation of General Statutes § 53a-71 (a) (1), sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), and risk of injury to a minor in violation of General Statutes § 53-21. He subsequently was sentenced to a total effective prison term of ten years, suspended after six years and five years probation. He claims on appeal that the trial court erred in allowing a battered women’s counselor to testify as to certain communications between his wife and the counselor because such communications were privileged against disclosure by Public Acts 1983, No. 83-429, subsequently codified as General Statutes § 52-146k. He also claims that the trial court erred in refusing to allow into evidence various school records relating to the credibility of one of the state’s witnesses. We find no error.

The jury could reasonably have found the following facts. On December 18, 1982, the ten year old victim and her mother went to the defendant’s home in Hartford. At the time, the defendant resided with his wife, Nicole Lizotte, and their six year old daughter, Lisa, on the first floor of his three family home. The victim’s mother left the victim with the Lizottes while she visited a friend. That evening, the defendant attended a small party in the basement apartment, rented by Robert and Lynn Willard. During the party, the victim stayed in the Lizottes’ apartment with Lisa Lizotte and Stephen Willard, Robert Willard’s younger brother. At some point during the evening, the defendant went upstairs and directed the victim to go into his daughter’s bedroom, where he sexually assaulted her. As the assault was taking place, Stephen Willard walked by the bedroom and observed what the defendant was doing to the victim. Later that night, the defendant went into his daughter’s bedroom where the victim was sleeping, removed her from bed, and took her into the kitchen, where he again sexually assaulted her.

Sometime after the first incident in the bedroom, Stephen Willard told his sister-in-law, Lynn Willard, and Nicole Lizotte what he had seen. The next day, the victim’s mother had a conversation with both Lynn Willard and Nicole Lizotte and, upon returning home with the victim, discussed the incident with her. On January 7, 1983, the victim gave a statement to the Hartford police concerning the defendant’s actions on the night in question.

I

The defendant first claims that the trial court erred in admitting the testimony of his wife’s caseworker. At trial, the defendant called his wife to testify as an alibi witness. Nicole Lizotte testified that on December 18, 1982, the defendant was out of the house during the early evening and did not return home until 10 p.m. After his return, according to Nicole Lizotte, they went out to dinner, then to a bar, and did not come back to their apartment until late that night. On cross-examination, Nicole Lizotte testified that she had learned about the victim’s claim approximately one week after the alleged incident and had discussed the claim only with the victim’s mother and Lynn Willard. She further testified that at one time she had been afraid of her husband and that he had physically beaten her. On redirect examination, however, she stated that as of December 18, 1982, she had been getting along well with the defendant and was no longer afraid of him.

In its rebuttal case, the state offered the testimony of a counselor at a crisis intervention support unit to impeach Nicole Lizotte’s credibility. Prior to the counselor’s testimony, Nicole Lizotte objected to the introduction of the testimony on the ground that any communications made to the counselor were privileged under Géneral Statutes § 52-146k. On voir dire examination, the counselor stated that she had been Nicole Lizotte’s caseworker from September, 1982, until the date of the trial. She testified that between September, 1982, and January, 1983, Nicole Lizotte had expressed fear that her husband would physically beat her and had inquired about the possibilities of being placed in a shelter. She further testified that at some point between December 25, 1982, and January 4, 1983, Nicole Lizotte had told her about an incident involving the defendant and the victim. The trial court ruled that the statute did not apply to communications made prior to the statute’s effective date, October 1, 1983, and because the statements were made prior to this date, allowed the counselor to testify.

The defendant claims that § 52-146k was applicable at the time of the trial and that the trial court should have refused to allow the counselor to testify. Section 52-146k (b) provides in part that “[a] battered women’s counselor or a sexual assault counselor shall not disclose any confidential communications made to such counselor by a victim in any civil or criminal case or proceeding or in any legislative or administrative proceeding unless the victim making the confidential communications waives the privilege . . . .” The defendant reasons that because § 52-146k (b) prohibits a battered women’s counselor from disclosing communications, the critical time for determining the applicability of the statute is when the communications are sought to be disclosed, not when the communications are originally made. Because the communications made by Nicole Lizotte were sought to be disclosed at trial, on November 18,1983, the defendant claims the statute was applicable, and thus should have prevented the counselor from testifying.

We cannot agree with the defendant’s interpretation of § 52-146k (b) that the legislative intent was to prohibit the disclosure of protected communications regardless of when they were made. The legislature, in enacting § 52-146k, sought to create a privilege, and in so doing, focused on the communications themselves, not when they were sought to be disclosed. Prior to the statute, communications between a battered women’s counselor and a victim were not privileged. As we stated in In re Robert H., 199 Conn. 693, 703, 509 A.2d 475 (1986), “[t]he obvious intent and dominant purpose of this statute is to grant a privilege to confidential communications between a sexual assault counselor or a battered women’s counselor and a victim.” A close examination of the legislative history supports this view of the statute’s purpose. In the House debate over the enactment of § 52-146k, Representative Pauline Kezer stated that “this bill extends the privilege that now exists to psychiatrists, clergy, to very narrowly defined counselors who work in battered [women’s] shelters and rape crisis centers .... [T]he bill has been carefully enough drafted, and tightly enough drawn so that we are extending a privilege.” (Emphasis added.) 26 H. R. Proc., Pt. 15, 1983 Sess., pp. 5284-85. If the focus of the statute is on the underlying communications and not, as the defendant contends, on the ultimate disclosure of the communications, then the statute only protects communications made after its effective date, October 1, 1983. To exclude communications made prior to this date, would be, in effect, to apply the statute retroactively.

General Statutes § 55-3 states: “No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.” While we have noted the continued vitality and utility of the principle that procedural statutes will be applied retroactively absent contrary legislative intent; State v. Paradise, 189 Conn. 346, 351, 456 A.2d 305 (1983); we consistently have expressed reluctance to construe statutes retroactively where the statutes affect substantial changes in the law, unless the legislative intent clearly and unequivocally appears otherwise. State v. Paradise, supra, 350-51; Hunter v. Hunter, 177 Conn. 327, 331, 416 A.2d 1201 (1979); American Masons’ Supply Co. v. F. W. Brown Co., 174 Conn. 219, 222-23, 384 A.2d 378 (1978); East Village Associates, Inc. v. Monroe, 173 Conn. 328, 332, 377 A.2d 1092 (1977); State ex rel. Rundbaken v. Watrous, 135 Conn. 638, 648, 68 A.2d 289 (1949). “The test of whether a statute is to apply retroactively, absent an express legislative intent, ‘is not a purely mechanical one’ and even if it is a procedural statute, which ordinarily will be applied retroactively without a legislative imperative to the contrary, ‘it will not be applied retroactively if considerations of good sense and justice dictate that it not be so applied. ’ . . . Carvette v. Marion Power Shovel Co., 157 Conn. 92, 96, 249 A.2d 58 [1968].” (Citations omitted.) Americal Masons’ Supply Co. v. F. W. Brown Co., supra, 223. In Sherry H. v. Probate Court, 177 Conn. 93, 411 A.2d 931 (1979), this court considered whether a statute that forbids the release of information about a genetic parent without that parent’s consent applied retroactively to an action in which an adopted person sought the identity of her genetic mother. We reasoned that when a statute effected “a substantial change in the law” and created a completely different scheme, the rule precluding retroactive application applies, even if the statute is characterized as “merely procedural.” Id., 101-102.

In this case, as in Sherry H. v. Probate Court, supra, the legislature has effected a substantial change in the law by establishing a privilege as to communications between a battered women’s counselor and a victim. Absent clear and unequivocal legislative intent, § 52-146k should not be applied retroactively. Nowhere in the statute is there mention that the privilege extends to communications made prior to the effective date of the statute. See State v. Paradise, supra, 353. Moreover, an examination of the legislative history does not reveal any intent that the statute have.retroactive effect. We, therefore, will not apply this statute retroactively.

In the present case, communications between Nicole Lizotte and her counselor were made between September, 1982, and January, 1983. General Statutes § 52-146k, however, did not become effective until October 1,1983. Because these communications made prior to the statute’s effective date were not privileged, and because the statute does not apply retroactively to encompass them, we hold that the trial court did not err in permitting the counselor to testify.

II

The defendant next claims that the trial court erred in refusing to allow into evidence certain school records of Stephen Willard. At trial, the state called Willard as a witness to testify on what he had observed on December 18,1982. In an attempt to impeach his credibility, the defendant subpoenaed Willard’s school records and offered into evidence four documents relating to his school performance. After examining these documents, the trial court ruled that three of the documents had little probative value and were cumulative, and refused to admit them into evidence. The trial court, however, allowed one document, with the exception of its last sentence, into evidence.

Our rules of practice make it clear that counsel must object to a ruling of evidence, state the grounds upon which objection is made, and take exception to the ruling to preserve the grounds for appeal. Practice Book § 288. These requirements are not simply formalities. State v. Rogers, 199 Conn. 453, 461, 508 A.2d 11 (1986). We consistently have stated that we will not consider evidentiary rulings where counsel did not properly preserve a claim of error by objection and exception. State v. Braman, 191 Conn. 670, 684, 469 A.2d 760 (1983), quoting State v. Hoffler, 174 Conn. 452, 461, 389 A.2d 1257 (1978); see State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973).

In examining the record, we find that after the trial court made its ruling as to the admissibility of the documents, the defendant did not take exception. Because of this failure to comply with the rules of practice, the defendant did not properly preserve his claim for appeal; nor has he asserted that the claim is reviewable under Evans. Therefore, we decline to address the merits of the claim. Practice Book § 3063; see State v. Miller, 186 Conn. 654, 672, 443 A.2d 906 (1982).

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-146k. privileged communications BETWEEN BATTERED WOMEN’S OR SEXUAL ASSAULT COUNSELOR AND VICTIM. (a) As used in this section:
      “(1) ‘Battered women’s center’ means any office, shelter, host home or center offering assistance to battered women through crisis intervention, emergency shelter referral and medical and legal advocacy, and which meets the department of human resources criteria of service provision for such centers.
      “(2) ‘Battered women’s counselor’ means any person engaged in a battered women’s center (A) who has undergone a minimum of twenty hours of training which shall include, but not be limited to, the dynamics of battering, crisis intervention, communication skills, working with diverse populations, an overview of the state criminal justice system and information about state and community resources for battered women, (B) who is certified as a counselor by the battered women’s center which provided such training, (C) who is under the control of a direct service supervisor of a battered women’s center, and (D) whose primary purpose is the rendering of advice, counsel and assistance to, and the advocacy of the cause of, battered women.
      “(3) ‘Confidential communication’ means information transmitted between a victim of a battering or a sexual assault and a battered women’s counselor or sexual assault counselor in the course of that relationship and in confidence by a means which, so far as the victim is aware, does not disclose the information to a third person other than any person who is present to further the interests of the victim in the consultation or any person to whom disclosure is reasonably necessary for the transmission of the information or for the accomplishment of the purposes for which such counselor is consulted, and includes all information received by, and any advice, report or working paper given or made by, such counselor in the course of the relationship with the victim.

        “(4) ‘Rape crisis center’ means any office, institution or center offering assistance to victims of sexual assault and their families through crisis intervention, medical and legal advocacy and follow-up counseling and which meets the department of health services criteria of service provision for such centers.
      “(5) ‘Sexual assault counselor’ means any person engaged in a rape crisis center who (A) has undergone a minimum of twenty hours of training which shall include, but not be limited to, the dynamics of sexual assault and incest, crisis intervention, communication skills, working with diverse populations, an overview of the state criminal justice system, information about hospital and medical systems and information about state and community resources for sexual assault victims, (B) is certified as a counselor by the sexual assault center which has provided such training, (C) is under the control of a direct services supervisor of a rape crisis center, and (D) whose primary purpose is the rendering of advice, counseling and assistance to, and the advocacy of the cause of, victims of sexual assault.
      “(6) ‘Victim’ means any person who consults a battered women’s counselor or a sexual assault counselor for the purpose of securing advice, counseling or assistance concerning a mental, physical or emotional condition caused by a battering or a sexual assault.
      “(b) A battered women’s counselor or a sexual assault counselor shall not disclose any confidential communications made to such counselor by a victim in any civil or criminal case or proceeding or in any legislative or administrative proceeding unless the victim making the confidential communications waives the privilege, provided under no circumstances shall the location of the battered women’s center or rape crisis center or the identity of the battered women’s counselor or sexual assault counselor be disclosed in any civil or criminal proceeding. ...”

       The state argues that the defendant does not have standing to raise this issue on appeal, because the privilege, if it existed, belonged to his wife. Because we find that the privilege does not extend to the communications in this case, we do not address this issue.

       We recognize that subsequent to the trial court’s decision, the legislature enacted Public Acts 1985, No. 85-112, effective October 1,1985, amending General Statutes § 52-146k. Public Acts 1985, No. 85-112, states in part that “ON OR AFTER OCTOBER 1,1983, A battered women’s counselor or a sexual assault counselor shall not disclose any confidential communications made to such counselor AT ANY TIME by a victim in any civil or criminal case . . . . ANY REQUEST MADE ON OR AFTER OCTOBER 1,1983, BY THE DEFENDANT OR STATE FOR SUCH CONFIDENTIAL COMMUNICATIONS SHALL BE SUBJECT TO PROVISIONS-OF THIS SUBSECTION.”
      Although it is possible for the legislature to enact retroactive legislation affecting a trial court’s judgment, provided an appeal to a higher court is pending; Enfield Federal Savings & Loan Assn. v. Bissell, 184 Conn. 569, 572-73, 440 A.2d 220 (1981); we have consistently held that where the enactment effects substantive, rather than procedural changes, the trial court’s decision is final, notwithstanding the amendment. Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 309-10, 472 A.2d 316 (1984); Schenck v. Pelkey, 176 Conn. 245, 251, 405 A.2d 665 (1978); cf. Enfield Federal Savings & Loan Assn. v. Bissell, supra, 573 n.2.
      Public Acts 1985, No. 85-112, substantially expanded the battered women’s counselor/sexual assault counselor-client privilege to apply-to all communications between a counselor and a client whenever made. In enacting Public Acts 1985, No. 85-112, the legislature effected a substantive, rather than procedural, change in the law. The amendment thus does not affect the trial court’s ruling and we apply the law as it was in existence at the time the trial court made its determination.

       We recognize that some jurisdictions have considered privileged communication statutes to be procedural rules of evidence and have applied them retroactively. See Rom v. Calhoun, 227 Minn. 143, 145-46, 34 N.W.2d 359 (1948); Mattison v. Poulen, 134 Vt. 158, 160-61, 353 A.2d 327 (1976); cf. State ex rel. Leas in Interest of O’Neil, 303 N.W.2d 414, 419 (Iowa 1981); see generally Sutherland, Statutory Construction (4th Ed. Sands) §§ 41.09, 67.07. Other jurisdictions have held that statutes relating to privileged communications affect the substantive rights of the parties and have not applied them retroactively. See Davison v. St. Paul Fire & Marine Ins. Co., 75 Wis. 2d 190, 200, 248 N.W.2d 433 (1977); cf. Woelfling v. Great-West Life Assurance Co., 30 Ohio App. 2d 211, 220, 285 N.E.2d 61 (1972). Because of the reasoning articulated in our decision, we need not draw a distinction in this case.

       Practice Book § 3063 provides: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.”