author: BERDON, J.

text:
    CRAIG E. EDWARDS, EXECUTOR (ESTATE OF AGATHA M. EDWARDS) v. DANIEL TARDIF ET AL.
    (15554)
    Borden, Berdon, Norcott, Katz and McDonald, Js.

      Argued January 14
    officially released April 29, 1997

      Andrew J. O’Keefe, with whom was KathrynM. Cunningham, for the appellants (defendant Jeffrey Ettinger et al.).

      Kathryn Calibey, with whom were David W. Cooney and Paul M. Iannaccone, for the appellee (plaintiff).
   Opinion

BERDON, J.

The plaintiff, Craig E. Edwards, as executor of the estate of Agatha M. Edwards, brought this medical malpractice action for damages resulting from the suicide of Agatha M. Edwards (Edwards) against the defendant physicians Daniel Tardif, Jeffrey Ettinger, and the defendant Tardif and Ettinger, P.C. (professional corporation). The jury rendered a verdict in favor of the plaintiff against Ettinger and the professional corporation in the amount of $504,750.07, and in favor of Tardif. Ettinger and the professional corporation subsequently moved to set aside the verdict and for judgment notwithstanding the verdict, both of which were denied by the trial court. Thereafter, Ettinger and the professional corporation filed this appeal. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. From 1981 to December, 1987, Edwards was treated by Tardif, an internist, for recurring clinical depression. Tardifs initial diagnosis in 1983 was mild depression, for which antidepressant medication was prescribed. In the years following the sudden death of Edwards’ husband in 1985, her depression continued and intensified. In June, 1987, she was admitted to Manchester Memorial Hospital due to severe depression and alcohol abuse. While admitted in the hospital, Edwards expressed thoughts of suicide. The discharge diagnosis for Edwards revealed major affective disorder with depression and episodic alcohol abuse disorder.

During the June, 1987 admission, Tardif served as a consultant with respect to Edwards’ illness and, subsequently, continued with her treatment. From the time of Edwards’ discharge through December, 1987, Tardifs treatment included prescribing the antidepressant medication Tofranil. On December 29, 1987, Tardif con-eluded that Edwards’ depression had resolved and, therefore, discontinued the Tofranil medication. Tardif instructed Edwards to contact his office immediately upon the recurrence of depression. During the following ten months, however, there was no contact between Edwards and Tardif s office.

On October 5, 1988, Edwards telephoned Tardifs office complaining of depression. Ettinger, an internist who practiced with Tardif, was covering for Tardif on that date and returned Edwards’ telephone call without first reviewing her medical chart. Ettinger had no prior knowledge of Edwards, had never treated her, and had never discussed her condition with Tardif. During the telephone conversation, Edwards informed Ettinger that she was depressed due to the approaching anniversary of her husband’s death and because of difficulties at work. Ettinger did not inquire into the details of the events precipitating Edwards’ depression, nor did he ascertain how many previous bouts of depression she had suffered. Rather than scheduling an appointment to evaluate Edwards, Ettinger determined as a result of the telephone conversation that she was depressed and prescribed 100 pills of Tofranil with two refills. Although Ettinger instructed her to contact Tardif in the next few weeks, no other follow-up measures were taken. Eight days later, on October 13, 1988, Edwards committed suicide by overdosing on the Tofranil pills prescribed by Ettinger. Edwards left behind a suicide note expressing her severe depression, torment and anguish.

At trial, the plaintiff presented the expert testimony of Douglas Berv, a psychiatrist and specialist in psycho-pharmacology. Berv stated that suicide is a known symptom and risk in individuals suffering from depression. He testified that Ettinger’s treatment of Edwards fell below the accepted standard of care for internists in several respects. First, he testified that Ettinger prescribed a large amount of Tofranil over the telephone to a patient he had never seen without first having Edwards come in for a psychiatric evaluation and suicide assessment. He further testified that Ettinger had also made an assumption with respect to Edwards’ condition and what her treatment should be when the ten month lapse in treatment required a full evaluation of her mental and physical status. Additionally, Berv testified that instead of arranging a psychiatric evaluation for Edwards within a few days after her telephone call, Ettinger suggested that she should call again to schedule an office visit. Berv opined that, had Ettinger conformed to the applicable standard of care, Edwards’ death would have been prevented.

The defendants argue that, as a matter of law, the trial court should have set aside the verdict and rendered judgment in their favor because Edwards’ suicide was unforeseeable and constituted an independent intervening cause. In response, the plaintiff asserts that there was sufficient evidence upon which the jury reasonably could find that Edwards’ suicidal death was a foreseeable result of the defendants’ failure to conform to the accepted standard of care for physicians in their line of practice. We agree with the plaintiff.

We begin with the premise that a physician is required by law to exercise the degree of skill, care and diligence that is customarily demonstrated by physicians in the same line of practice. Logan v. Greenwich Hospital Assn., 191 Conn. 282, 300-302, 465 A.2d 294 (1983). A physician must exercise such reasonable skill and diligence in all aspects of providing care and treatment to a patient. Allen v. Giuliano, 144 Conn. 573, 575, 135 A.2d 904 (1957). To prove that a physician has breached the legally required standard of care, a plaintiff must offer some evidence that the conduct of the physician was negligent. Snyder v. Pantaleo, 143 Conn. 290, 294, 122 A.2d 21 (1956). Except in the unusual case in which the want of care or skill is so gross that it presents an almost conclusive inference of want of care; Puro v. Henry, 188 Conn. 301, 305, 449 A.2d 176 (1982); the testimony of an expert witness is necessary to establish both the standard of proper professional skill or care on the part of a physician; Shelnitz v. Greenberg, 200 Conn. 58, 66, 509 A.2d 1023 (1986); “and that the defendant failed to conform to that standard of care.” Mather v. Griffin Hospital, 207 Conn. 125, 131, 540 A.2d 666 (1988). Furthermore, the plaintiff must establish a causal relationship between the physician’s negligent actions or failure to act and the resulting injury by showing that the action or omission constituted a substantial factor in producing the injury. Id., 130.

Our inquiry in this case focuses on whether Edwards’ suicide was an act that broke the chain of causation. “As a general rule, negligence actions seeking damages for the suicide of another will not lie because the act of suicide is considered a deliberate, intentional and inteivening act which precludes a finding that a given defendant, in fact, is responsible for the harm.” McLaughlin v. Sullivan, 123 N.H. 335, 337, 461 A.2d 123 (1983); see also annot., 11 A.L.R.2d 751, 756 (1950) (“[w]here an action is brought under a wrongful death statute the general rule is that suicide constitutes an intervening force which breaks the line of causation from the wrongful act to the death and therefore the wrongful act does not render [the] defendant civilly liable”). In other words, suicide generally is an unforeseeable result that selves to preclude civil liability. See, e.g., Tate v. Canonica, 180 Cal. App. 2d 898, 913-14, 5 Cal. Rptr. 28 (1960); Eidson v. Reproductive Health Services, 863 S.W.2d 621, 627 (Mo. App. 1993); McLaughlin v. Sullivan, supra, 337-38. This common law rule has been stated as follows: “[I]f one is sane, or if the suicide is during a lucid interval, when one is in full command of all faculties, but life has become unendurable by reason of the injury, it is agreed in negligence cases that the voluntary choice of suicide is an abnormal thing, which supersedes the defendant’s liability.” W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 44, p. 311.

Conversely, suicide will not break the chain of causation if it was a foreseeable result of the defendant’s tortious act. In Wozniak v. Lipoff, 242 Kan. 583, 584, 750 P.2d 971 (1988), for example, the plaintiffs brought a medical malpractice action against a physician for negligence in the treatment of their decedent. The decedent had suffered from Graves’ disease, a hormonal disorder, and depression. Id., 584-85. During his treatment of the decedent, the defendant prescribed sixty pills of the antidepressant Sinequan with three refills, on which the decedent overdosed. Id., 586-87. After a jury verdict for the plaintiffs, the defendant appealed, claiming that the decedent’s death resulted from an intervening act other than his negligence. Id., 599. The court recognized that the jury heard evidence that suicide is always a possibility in treating a depressed patient and that the appropriate standard of care in treating a depressed patient is to prescribe the lowest feasible amount of medication. Id. Accordingly, the court concluded, “there was competent evidence from which a rational factfinder could find [the defendant] should have reasonably foreseen the danger of [the decedent] committing suicide by an overdose of Sinequan.” Id.

Several other courts have concluded that liability will be imposed on a physician when suicide was one of the foreseeable risks that made the physician’s antecedent conduct negligent. See, e.g., Meier v. Ross General Hospital, 69 Cal. 2d 420, 427, 445 P.2d 519, 71 Cal. Rptr. 903 (1968) (“those charged with the care and treatment of a patient, who know of facts from which it might reasonably be concluded that a patient would be likely to harm himself in the absence of preclusive measures, must use reasonable care to prevent such harm”); Summit Bank v. Panos, 570 N.E.2d 960, 969 (Ind. App. 1991) (reversing summary judgment in favor of defendant because, “[gjiven [the decedent’s] history, and [the defendant’s] own testimony of his awareness of her emotional problems, there is a genuine issue of fact whether it was foreseeable that [the decedent] might abuse the drugs which he prescribed for her”); Fernandez v. Baruch, 52 N.J. 127, 132, 244 A.2d 109 (1968) (“[t]he controlling factor in determining whether there may be a recovery for a failure to prevent a suicide is whether the defendants reasonably should have anticipated the danger that the deceased would attempt to harm himself’); Champagne v. United States, 513 N.W.2d 75, 76-77 (N.D. 1994) (“[i]f the patient’s act of suicide is a foreseeable result of the medical provider’s breach of duty to treat the patient, the patient’s act of suicide cannot be deemed a superseding cause of the patient’s death that breaks the chain of causation between the medical provider and the patient, which absolves the medical provider of liability”).

Indeed, we have recently “adopted the standard set forth in § 442B of the Restatement [(Second) of Torts] that [w]here the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.” (Internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 607-608, 662 A.2d 753 (1995).

Physicians have a duty to exercise the degree of care that physicians in that particular field would exercise in similar circumstances. If the physician’s treatment of a patient falls below the relevant standard of care, liability may be imposed if it is reasonably foreseeable that suicide will result if such care is not taken. Accordingly, we hold that a physician may be liable for a patient’s suicide when the physician knew or reasonably should have known of the risk of suicide and the physician’s failure to render adequate care and treatment proximately causes the patient’s suicide.

The defendants nevertheless argue that their motion to set aside the verdict should have been granted because the plaintiff failed to prove the allegations of the complaint based on the uncontrollable impulse rule. Section 455 of the Restatement (Second) of Torts recognizes an uncontrollable impulse exception to the rule for those cases in which suicide constitutes an independent intervening cause that precludes liability. This rule provides for liability when the defendant’s negligent conduct results in bringing about the tort victim’s delirium or insanity, which prevents the victim from realizing the nature of his act of self-destruction, or if the suicide is the result of irresistible impulse. 2 Restatement (Second), Torts § 455 (1965); see W. Prosser & W. Keeton, supra, § 44, pp. 310-11. In other words, “where the wrongful act produces such a rage or frenzy that the person injured by [a] defendant’s wrongful act destroys himself during such rage or frenzy, or in response to an uncontrollable impulse, the act is . . . considered as within and a part of the line of causation from [the] defendant’s wrongful act to the suicide and [the] defendant’s act is held to be the proximate cause of the death.” Annot., supra, 11 A.L.R.2d 756.

In support of this claim, the defendants focus on paragraph twelve of the second count of the plaintiffs amended complaint, a fair reading of which is predicated on common law negligence and invokes the uncontrollable impulse exception to the rule that suicide by a person during a lucid interval is an intervening cause. The defendants, however, take a narrow view of the complaint and disregard the theory upon which the plaintiff tried the case. In reading the complaint, we follow the modem trend, which “is to construe pleadings broadly and realistically, rather than narrowly and technically. ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient . . . .” (Citations omitted; internal quotation marks omitted.) Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496, 646 A.2d 1289 (1994).

The defendants fail to recognize paragraph eleven of the second count, which clearly raises several specifications of medical malpractice — including allegations that Ettinger: (1) failed to obtain a proper, accurate and complete medical history of Edwards prior to prescribing Tofranil; (2) failed to perform a physical examination or administer any tests prior to prescribing Tofranil; (3) prescribed Tofranil when such medication was contraindicated by Edwards’ alcohol abuse disorder; (4) prescribed an excessively large dosage of Tofranil for Edwards; (5) failed to supervise, monitor or otherwise follow up on Edwards’ health after prescribing Tofranil; and (6) failed to require that Edwards come in for an office visit prior to prescribing the medication.

Indeed, not only was the case presented to the jury as a medical malpractice case, but the defendants, in their argument to the trial court, and then in their request to charge, acknowledged that the plaintiffs claim included medical malpractice. Because the complaint in paragraph eleven alleged medical malpractice — the underlying theory of the plaintiffs case and the theory upon which we rest our conclusions — the negligence allegation in paragraph twelve, insofar as it pleaded the uncontrollable impulse rule, was mere surplusage. “It is not necessary for aplaintiff to prove all that he alleges; it suffices if he proves enough to sustain the judgment.” Preston v. Preston, 102 Conn. 96, 109, 128 A. 292 (1925).

Finally, the defendants argue that the trial court improperly denied the motion for judgment notwithstanding the verdict because the evidence was insufficient to support the jury’s verdict. We disagree.

The standard for reviewing the denial of a motion for judgment notwithstanding the verdict is clear. “Our review of the trial court’s refusal to [grant the motion] requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.” (Citations omitted; internal quotation marks omitted.) Mather v. Griffin Hospital, supra, 207 Conn. 130.

The evidence presented to the jury in this case was sufficient to establish malpractice. The plaintiff produced expert testimony that suicide is a known symptom and risk in individuals suffering from depression. There was testimony that Ettinger’s treatment of Edwards fell below the' accepted standard of care for internists. Specifically, Ettinger prescribed a large dosage of Tofranil over the telephone to a patient he had never seen without having Edwards come in for a psychiatric evaluation and suicide assessment. Further, instead of arranging a psychiatric evaluation for Edwards within a few days after her telephone call, Ettinger suggested that she should call again to schedule an office visit. Indeed, the jury heard expert testimony that, had Ettinger conformed to the applicable standard of care, Edwards’ death would have been prevented. Accordingly, we conclude that the trial court did not abuse its discretion in denying the defendants’ motion to set aside the verdict.

The judgment is affirmed.

In this opinion the other justices concurred.

       The jury, through interrogatories, found economic damages in the amount of $4750.07, and noneconomic damages in the amount of $500,000.

       Prior to the verdict, the defendants also moved for a directed verdict raising the same legal issues.

       For purposes of this appeal, Ettinger and the professional corporation do not distinguish their liability. Accordingly, we will refer to them jointly as the defendants.

         The plaintiff did not appeal from the verdict in favor of Tardif. The remaining defendants filed this appeal in the Appellate Court, which we transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       Tofranil is a brand name for the tricyclic antidepressant imipramine.

       In Stewart, the plaintiff’s decedent was murdered by a third party in a parking garage owned and operated by the defendant. Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 599. The defendant claimed that the trial court improperly refused to direct a verdict in its favor because the third party’s actions constituted a superseding intervening cause that broke the chain of causation. Id., 610. In light of the criminal activities that had previously occurred in the defendant’s garage, this court concluded that “the harm that befell [the plaintiffs decedent] had been reasonably foreseeable and within the scope of the risk created by the defendant’s negligence.” Id., 611-12.

         At oral argument, the defendants framed the issue in this case as whether a physician has a duty to prevent the suicide of a noncustodial patient. Although we conclude that there was sufficient evidence in this case that the defendants breached their duty owed to Edwards, we disagree with the defendants’ characterization with respect to whether a physician has a duty to prevent suicide. We merely recognize that “a cause of action may exist for professional malpractice when a [physician’s or other health care provider’s] treatment of a suicidal patient falls below the standard of care for the profession, thus giving rise to a traditional malpractice action.” (Emphasis in original.) Nally v. Grace Community Church of the Valley, 47 Cal. 3d 278, 295-96, 763 P.2d 948, 253 Cal. Rptr. 97 (1988). Indeed, were we to adopt the view that a physician has the duty to prevent a patient’s suicide, even though the physician’s treatment has conformed to or even surpassed the appropriate standard of care, imposition of liability in those circumstances would amount to strict liability. See id., 296 n.6 (“[i]f such were the case, psychiatrists could be held responsible whenever one of their patients made the unfortunate decision to take his own life”).
      The defendants further assert that because Edwards was not in their physical custody, the defendants cannot be liable unless the case falls within the uncontrollable impulse exception. See footnote 8. In our view, the circumstances in which a physician may be hable for a patient’s suicide are not limited only to when the patient is in the physician’s custody. Instead, the relevant inquiry is whether a defendant failed to provide reasonable treatment for the patient and that failure proximately resulted in the patient taking his or her life. See V. Schwartz, “Civil Liability for Causing Suicide: A Synthesis of Law and Psychiatry,” 24 Vand. L. Rev. 217, 246 (1971) (asserting physician’s liability for patient’s suicide resulting from failure to provide adequate treatment should not be limited to custodial care).

       Section 455 of the Restatement (Second) of Torts (1965) provides: “If the actor’s negligent conduct so brings about the delirium or insanity of another as to make the actor liable for it, the actor is also liable for harm done by the other to himself while delirious or insane, if his delirium or insanity
      “(a) prevents him from realizing the nature of his act and the certainty or risk of harm involved therein, or
      “(b) makes it impossible for him to resist an impulse caused by his insanity which deprives him of his capacity to govern his conduct in accordance with reason.”

         Paragraph twelve of the second count of the amended complaint provides: “As a result of the negligence of the defendant, Jeffrey Ettinger, the plaintiff s decedent, Agatha M. Edwards, was caused to become so severely depressed that, in a moment of uncontrollable impulse, she took an overdose of said Tofranil which caused imipramine poisoning and pulmonary edema of such severity as to result in her death.”

       Specifically, paragraph eleven of the second count of the amended complaint provides: “The injuries, losses and subsequent death of the plaintiffs decedent, Agatha M. Edwards, were caused by the carelessness and negligence of the defendant, Jeffrey Ettinger, in one or more of the following ways:
      “a. in that he failed to obtain a proper, accurate and complete medical history of the plaintiffs decedent prior to prescribing said Tofranil;
      “b. in that he failed to perform a physical examination of the plaintiffs decedent prior to prescribing said Tofranil;
      “c. in that he failed to administer any tests or diagnostic studies to make a proper and accurate diagnosis of the decedent’s condition prior to prescribing said Tofranil;
      “d. in that he undertook to treat the plaintiffs decedent for an emotional and/or psychiatric condition which was outside his field of specialization;
      “e. in that he prescribed said Tofranil for the plaintiffs decedent, which medication was contraindicated by the decedent’s alcohol abuse disorder;
      “f. in that he prescribed a large dosage of Tofranil for the plaintiffs decedent despite the fact that her age and outpatient status contraindicated such a dosage;
      “g. in that he failed to supervise, monitor or otherwise follow up on the health of the plaintiffs decedent after prescribing said Tofranil;

        “h. in that he failed to require that the plaintiffs decedent come in for an office visit prior to prescribing said Tofranil, so that he could evaluate and assess both her physical condition as well as her emotional and psychological condition prior to the prescribing of said medication;
      “i. in that, he failed to refer the plaintiffs decedent, for psychiatric treatment and/or suicide intervention services; and
      “j. in that, he failed to fully and adequately inform the plaintiffs decedent of the risks associated with taking said Tofranil.”

       For example, the trial court, commenced the jury instructions as follows: “In a medical malpractice action, the plaintiff must prove by apreponderance of the evidence these three essential elements: First, is the existence of a physician/patient relationship; secondly, the physician departed from the standard of care owed to the plaintiff, and this departure was the proximate cause of the plaintiffs harm.”

       We summarily dispose of one additional claim made by the defendants. The defendants argue that their expert, Charles Shook, an internist, was improperly impeached on cross-examination with respect to: (1) the commonality of malpractice insurance between Shook and Ettinger; (2) Shook’s financial interest in Ettinger’s insurer; and (3) Shook’s past employment by the insurer. At the time of trial, the defendants objected solely on the basis of form and foundation, both of which they now abandon. Instead, the defendants now object because this cross-examination disclosed that Ettinger had malpractice insurance. The defendants did not raise this issue at trial; Heritage Village Master Assn., Inc. v. Heritage Village Water Co., 30 Conn. App. 693, 703, 622 A.2d 578 (1993); and, therefore, we do not decide whether the evidence was properly admitted.


source: Caselaw Access Project

author: PETERS, J. BERDON, J., with whom, NORCOTT, J.,

license: Public Domain

text:
    PRESIDENTIAL CAPITAL CORPORATION v. ANTONIO REALE
    (15406)
    Callahan, C. J., and Berdon, Norcott, McDonald and Peters, Js.

      Argued December 6, 1996
    officially released April 29, 1997

      Kerry M. Wisser, with whom, on the brief, were Richard P. Weinstein and Nathan A. Schatz, for the appellants (nonparty witnesses).

      Julia B. Morris, with whom was Michael D. O’Con-nell, for the appellee (plaintiff).
   Opinion

PETERS, J.

The general rule established by our case law is that an interlocutory order requiring a witness to submit to discovery is not a final judgment and, therefore, is not immediately appealable. The sole question in this certified appeal is whether General Statutes § 52-351b provides a different rule, authorizing immediate appellate review, in the event of a trial court’s denial of a protective order to shield a witness from discovery in statutory postjudgment proceedings.

In an action for breach of contract for failure to pay a commission, the plaintiff, Presidential Capital Corporation, obtained a judgment in the amount of $375,000 against the defendant, Antonio Reale. This court, in a previous appeal describing the controversy between these parties, sustained a jury verdict in the plaintiffs favor. Presidential Capital Corp. v. Reale, 231 Conn. 500, 652 A.2d 489 (1994). For present purposes, we note only that it is undisputed that the plaintiff has been unable to collect a significant portion of the judgment from the defendant.

The plaintiff has invoiced § 52-35lb in order to discover additional assets of the defendant. To facilitate such discovery, in September, 1995, it served postjudgment interrogatories pursuant to § 52-351b (a) upon the appellants, Nella Reale and Joseph Reale, the wife and the son of the defendant. In their answers to these interrogatories, the appellants indicated that neither of them was in possession of nonexempt personal property belonging to the defendant. Thereafter, pursuant to § 52-351b (c) (2), the plaintiff filed postjudgment discovery petitions with the trial court, in which it sought orders allowing it to examine the appellants before a judge of the Superior Court regarding the appellants’ knowledge of undisclosed assets of the defendant that might be available to satisfy the plaintiffs money judgment. Pursuant to § 52-35lb (d), the appellants then sought protective orders to preclude any such discovery proceedings. After a hearing on the appellants’ motions, the trial court sustained the plaintiffs objection thereto and ordered the appellants to submit to an examination by the plaintiff to be conducted before the court.

The appellants appealed to the Appellate Court from the trial court’s denial of their motions for protective orders. Concluding that the trial court had not rendered a final judgment, the Appellate Court dismissed the appeal. We granted the appellants’ petition for certification to review the merits of that conclusion 3and now affirm the judgment of the Appellate Court.

The principles that govern appellate jurisdiction are well established. “[T]he subject matter jurisdiction of the Appellate Court and of this court is governed by statute. Grieco v. Zoning Commission, 226 Conn. 230, 231, 627 A.2d 432 (1993). It is ... axiomatic that, except insofar as the legislature has specifically provided for an interlocutory appeal or other form of interlocutory appellate review; see, e.g., General Statutes § 52-2781 (prejudgment remedies); General Statutes § 54-63g (petition for review of bail); General Statutes § 51-164x (court closure orders); State v. Ayala, 222 Conn. 331, 340, 610 A.2d 1162 (1992); appellate jurisdiction is limited to final judgments of the trial court. General Statutes § 52-263 . . . .” Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 447, 645 A.2d 978 (1994).

To determine whether a trial court’s denial of protective orders pursuant to § 52-35lb (d) is a final judgment, we look to the standards established in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). In Curcio, we held that “[a]n otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id., 31. Because the appellants have raised no colorable claim that their appeal falls within the second prong of the Curcio test, the only issue properly before us is whether the decision rendered by the trial court “terminate[d] a separate and distinct proceeding.” We agree with the Appellate Court that it did not.

In the context of prejudgment orders, our case law firmly establishes that a witness in a trial court discovery proceeding is not entitled to immediate appellate review of a trial court’s denial of a motion for a protective order. This result follows from the numerous decisions in which we have held that there is no right to an immediate appeal from an order issued upon a motion related to discovery. See, e.g., Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 255, 520 A.2d 605 (1987); State v. Grotton, 180 Conn. 290, 292, 429 A.2d 871 (1980); Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 226, 429 A.2d 478 (1980).

The appellants do not challenge the merits of this established case law but seek instead, on three grounds, to persuade us that their case is different. First, they claim that they are entitled to an immediate appeal because they are nonparties to the underlying judgment and, therefore, will be deprived of the opportunity for later appellate review of allegedly improper discovery inquiries. Second, they claim that a trial court’s order denying a protective order is immediately appealable because a trial court order granting a nonparty’s motion for a protective order is immediately appealable. See Commissioner of Health Services v. Kadish, 17 Conn. App. 577, 554 A.2d 1097, cert. denied, 212 Conn. 806, 563 A.2d 1355 (1989) (reviewing order granting protective order). Third, they claim that, because § 52-351b expressly authorizes both postjudgment discovery and the issuance of a comprehensive protective order, the statute necessarily authorizes an immediate appeal, regardless of whether the trial court granted or denied the protective order. None of these arguments persuades us that the denial of a protective order with respect to postjudgment discovery, is, for appellate purposes, distinguishable from such an order with respect to prejudgment discovery. In Curcio terms, neither type of order “terminates” an ongoing judicial proceeding.

The appellants’ argument that, because they are non-party witnesses, they do not enjoy plenary appellate rights, articulates a concern that is shared by every witness who is reluctant to give testimony in a court of law. It is a given that, once disclosed through discovery, information cannot be retrieved. If that fact alone were sufficient to permit an immediate appeal of an order to comply with a discovery request or an order denying a protective order, every reluctant witness could delay trial court proceedings by taking an interlocutory appeal. That is not our law. See Melia v. Hartford Fire Ins. Co., supra, 202 Conn. 255; Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., supra, 180 Conn. 226.

Significantly, the rule disallowing an immediate appeal applies even if the witness invokes his or her constitutional right not to testify. See Barbato v. J. & M. Corp., 194 Conn. 245, 249, 478 A.2d 1020 (1984). In Barbato, we held that, if a witness asserts a privilege to withhold testimony to which the court and the parties may be entitled, and the court does not uphold that privilege, the witness’ only access to appellate review is to appeal a finding of contempt. Id., 250. The scope of appellate review of such a contempt finding would be “sufficiently broad to encompass many claims of error which may not appear on their face to be jurisdictional in nature.” (Internal quotation marks omitted.) Id., 250-51. Under Barbato, only a contempt finding, after refusal to respond to discovery, can properly be characterized as a final judgment. That path lies open to the appellants in this case.

In one exceptional case, as the appellants observe, we have nonetheless permitted an immediate appeal from the denial of a protective order relating to discovery. See Lougee v. Grinnell, 216 Conn. 483, 582 A.2d 456 (1990). In Lougee, a former employee of a party to a Texas lawsuit moved, in the trial court, to quash a subpoena to appear at a deposition in Connecticut. Id., 485. Without a plenary discussion of conflicting precedents, we concluded that the trial court’s denial of the former employee’s motion constituted an appealable final judgment. Id., 487. Lougee reflected the court’s concern for the burdens potentially imposed on a non-party witness called to respond to a discovery order arising out of a civil action that not only originated outside of Connecticut but could finally be resolved only outside of Connecticut. No such concerns are present in this case.

The appellants similarly cannot prevail on the ground that their rights are properly measured by the appellate consequences that would follow if the order of the trial court had been to grant, rather than to deny, their motion for a protective order. A trial court order that quashes an investigative subpoena indubitably “terminates” the discovery proceeding that is at issue. See Commissioner of Health Services v. Kadish, supra, 17 Conn. App. 578 n.1. We have, accordingly, regularly undertaken appellate review of such an order. See, e.g., Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938 (1983); In re Application of Ajello v. Moffie, 179 Conn. 324, 426 A.2d 295 (1979). The finality that attaches to the quashing of a subpoena is not, however, transferable to an order that authorizes discovery to go forward. The opposite conclusion would be inconsistent with our final judgment decisions in related areas. We have never held, for example, that, because the granting of a motion for summary judgment is immediately appealable, the denial of such a motion is equally appealable. See Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 295 n.12, 596 A.2d 414 (1991) (denial of summary judgment motion not immediately appealable).

The appellants’ argument finally comes down to a question of statutory construction. The inclusion in § 52-35 lb (d) of an opportunity to request a protective order prior to submitting to discovery does not signal a legislative intent that the denial of such an order constitutes a final judgment. When the legislature has intended such a consequence in the context of postjudgment remedies, it has expressly so specified in the relevant text. See General Statutes §§ 52-362 (e) and 52-367b (i). It is reasonable to interpret the reference to a protective order in § 52-35lb (d) as a manifestation of legislative intent to provide for a witness in a post-judgment discovery proceeding the same opportunity to bypass discovery as is available to a witness in a prejudgment discovery proceeding. In the latter case, although protective orders may be sought, their denial is not immediately appealable. See Barbato v. J. & M. Corp., supra, 194 Conn. 249; see also North Carolina Assn. of Black Lawyers v. North Carolina Board of Law Examiners, 538 F.2d 547, 548 (4th Cir. 1976) (refusal of district court to issue a protective order under Federal Rule of Civil Procedure 26 [c] not an appealable final judgment).

Considerations of policy support this construction of the statute. We recognize that all nonparty witnesses would prefer to appeal immediately rather than to run the risk of being found in contempt of court for failure to provide information to which the court and the parties arguably may not be entitled. There is no reason to believe, however, that the legislature intended § 52-35lb (d) to afford nonparty witnesses, such as the appellants, more rights to appellate review than is normally afforded to others similarly situated. The primary purpose of § 52-35lb is, after all, to assist creditors in obtaining information concerning assets concealed by their judgment debtors. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3, 1983 Sess., p. 1171, remarks of Raphael Podolsky (“[This bill] sets up some new systems for . . . gathering information from third parties. I think those systems are good. They are desirable.”). That primary purpose would not be advanced by interposing into postjudgment discovery proceedings the expense and the delay inevitably associated with the appellate process. More generally, we may presume that the legislature is cognizant of the limited resources available to the judicial branch and of the legislative role in the allocation of trial and appellate resources within the judicial branch. Without express provision for an immediate right of appeal, the legislature presumably did not intend to impose upon Connecticut’s courts the significant burden that would be associated with unlimited appellate review of trial court orders denying protective orders to nonparty witnesses.

We conclude, therefore, that although § 52-351b creates a proceeding that is separate and distinct from the prior adjudication leading to the judgment debt, the denial of a protective order pursuant to § 52-35lb (d) does not terminate this statutory proceeding. The trial court has yet to consider what requests for information, if any, it will direct the appellants to answer. The appellants have yet to decide what information, if any, they are unwilling or unable to provide. At this juncture, appellate review of the controversy between the plaintiff and the appellants is premature.

The judgment of the Appellate Court is affirmed.

In this opinion CALLAHAN, C. J., and MCDONALD, J., concurred.

BERDON, J., with whom, NORCOTT, J.,

joins, dissenting. I disagree with the majority’s dismissal of this appeal for lack of a final judgment, where the appellants seek appellate review of what they argue was the trial court’s improper denial of their statutory right to a protective order from an intrusive, and potentially abusive, examination by the plaintiff. Pursuant to General Statutes § 52-351b, and General Statutes § 52~400a (a), a specific postjudgment statutory scheme, the appellants, Nella Reale and Joseph Reale, each sought protective orders to prevent them from having to shoulder the burden of being haled into court for an examination with respect to the assets of the defendant Antonio Reale, the judgment debtor. Although the appellants are the wife and son of the defendant, neither are parties to the underlying action nor are they indebted to the plaintiff.

In this case, the examination of the appellants was not a matter of right, but, rather, was subject to a separate and distinct proceeding in which the trial court was required to determine whether the appellants should be subject to an examination by the plaintiff or were entitled to have an order issued to protect them from “annoyance, embarrassment, oppression or undue burden or expense.” General Statutes § 52-400a (a). For purposes of an appeal from an order such as the trial court entered in this case denying the appellant’s motions for protective orders, State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), provides the standard to determine whether it constituted a final judgment. In Curcio, we held that “[a]n otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id., 31. In my opinion this case meets the test of the first prong of Curcio. The trial court’s denial of the motions for protective orders, which resulted in requiring the appellants to submit to the examinations, constituted a final judgment under Curcio because it was instigated solely to test the propriety of their examination by the plaintiff in a proceeding independent of the central action against the defendant. Even the majority concludes that the statutory proceeding “is separate and distinct from the prior adjudication leading to the judgment debt . . . .”

I agree that this court has long held that a pretrial order directed to a party pertaining to discovery is generally not appealable. See, e.g., Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 226, 429 A.2d 478 (1980) (“[a]n order issued upon a motion for discovery is ordinarily not appealable because it does not constitute a final judgment”). This court pointed out in Chrysler Credit Corp. that if the trial court in such cases improperly orders discovery, then the issue “is reviewable upon appeal . . . after a trial on the merits has been concluded and a final judgment has been rendered.” Id., 228.

The order challenged in this case differs from such pretrial orders as in Chrysler Credit Corp. in at least one important respect. The discovery authorized in the present case was predicated upon a special statutory proceeding that enabled the appellants, who were not parties to the underlying action, to challenge the appropriateness of allowing the plaintiff to obtain discovery from them in a proceeding that would not result in a later judgment from which the appellants could then appeal. Accordingly, we are not bound by the precedent of Chrysler Credit Corp., and the trial court’s order of discovery comes within the first prong of Curcio.

The case of Lougee v. Grinnell, 216 Conn. 483, 582 A.2d 456 (1990), is indistinguishable from the case now before us. In Lougee, the Superior Court denied the petitioner’s motion to quash a subpoena and his application for a protective order with respect to a deposition the respondent sought of the petitioner pertaining to a civil action pending in Texas, in which the respondent was the plaintiff. Id., 484-86. In holding that the discovery order was appealable under the first prong of Cur-do, this court stated that the “judicial proceeding instituted in Connecticut concerned the propriety of [the respondent’s] deposition subpoena, a proceeding that will not result in a later judgment from which [the petitioner] can then appeal.” (Internal quotation marks omitted.) Id., 487. The court concluded that “[b]ecause the separate and distinct judicial proceeding concerning [the respondent’s] deposition subpoena terminated when the trial court issued the orders appealed, [the petitioner] has appealed from a final judgment . . . Id. This court then reviewed the merits of the petitioner’s claims that the Superior Court improperly denied his motion to quash the subpoena and motion for protective order. Id., 487-91. The majority, labeling Lougee as an “exceptional” case, is quick to dismiss this court’s precedent.

I make three preliminary observations with respect to Lougee and the present case: (1) the petitioner in Lougee was a nonparty witness, and the appellants in this case were also nonparty witnesses; (2) the petitioner in Lougee was called to respond to discovery, and the appellants in this case were also called to respond to discovery; (3) the litigation was initiated outside of Connecticut in Lougee, but, as the majority points out, this case involves Connecticut litigation. The majority relies on the latter distinction to distinguish Lougee from the present case, but its relevancy eludes me. The concerns that the majority claims were present in Lougee are no different than the concerns in this case. The appellants in this case, as well as the petitioner in Lougee, were subject to discovery proceedings in Connecticut. More importantly, the legislature has clearly drawn the lines of a distinct proceeding by providing a statutory framework applicable in this case in which the appellants can initiate a separate proceeding in order to challenge the propriety of subjecting them to a probing examination. No such legislative framework was provided in Lougee. Because the majority embraces Lougee and rejects jurisdiction in this case, I can only conclude that the majority’s decision is result-oriented.

Like the denial of the motion to quash in Lougee, the denial of the motions for protective orders in this case determined whether the appellants were required to submit to the discovery, and this concluded the rights of the parties. In other words, the denial of the motions for protective orders was determinative of whether the discovery would annoy, embarrass, oppress or cause undue burden or expense to the appellants. General Statutes § 52-400a (a). The majority suggests that if the appellants wish to test the propriety of the trial court’s decision, they must subject themselves to a finding of contempt of court and punishment for that contempt by refusing to answer. The legislature never intended that parties such as the appellants place themselves in a position of being held in contempt of court and punished with the possibility of imprisonment. The contempt route is a callous suggestion to the appellants in order for them to vindicate their privacy rights.

The majority has relegated the shield provided by the statutory scheme to an unreviewable decision of the trial court. The trial court’s decision is insulated from review because once the appellants are compelled to submit to the discovery proceedings — being forced to enter the door of the courthouse, take the witness stand, and relinquish their right to privacy — any subsequent appeal to contest the propriety of that examination would be moot.

Accordingly, I dissent.

       General Statutes § 52-35lb provides in relevant part: “Discovery by judgment creditor, (a) A judgment creditor may obtain discovery from the judgment debtor, or from any third person he reasonably believes, in good faith, may have assets of the judgment debtor, or from any financial institution to the extent provided by this section, of any matters relevant to satisfaction of the money judgment. The judgment creditor shall commence any discovery proceeding by serving an initial set of interrogatories, in a prescribed form containing such questions as to the assets and employment of the judgment debtor as may be approved by the judges of the Superior Court or their designee, on the person from whom discovery is sought.. . .Questions contained in the interrogatory form shall be in clear and simple language and shall be placed on the page in such manner as to leave space under each question for the person served to insert his answer. Such person shall answer the interrogatories and return them to the judgment creditor within thirty days of the date of service. . . . With respect to assets, the person served is required to reveal information concerning the amount, nature and location of the judgment debtor’s nonexempt assets up to an amount clearly sufficient in value to ensure full satisfaction of the judgment with interest and costs, provided disclosure shall be first required as to assets subject to levy or foreclosure within the state. . . .
      “(c) On failure of a person served with interrogatories to, within the thirty days, return a sufficient answer or disclose sufficient assets for execution, or on objection by such person to the interrogatories, the judgment creditor may move the court for such supplemental discovery orders as may be necessary to ensure disclosure including (1) an order for compliance with the interrogatories or authorizing additional interrogatories and (2) an order for production or for examination of the judgment debtor or third person, provided any such examination shall be conducted before the court. The court may order such discovery as justice requires provided the order shall contain a notice that failure to comply therewith may subject the person served to being held in contempt of court.
      “(d) Any party from whom discovery is sought may seek a protective order pursuant to section 52-400a.”
      General Statutes § 52-400a, in turn, provides in relevant part: “Protective order by court. ... (a) On motion of a . . . third person from whom discovery is sought, and for good cause shown, or on its own motion, the court may make any order which justice requires to protect such debtor or third person from annoyance, embarrassment, oppression or undue burden or expense. . . .”

       We granted certification, limited to the following issue: “If, in postjudgmcnt proceedings, a judgment creditor seeks to examine nonparties to discover undisclosed assets of its judgment debtor, must an appeal by the nonparties from a trial court order denying their motions for protective orders be dismissed for lack of a final judgment?” Presidential Capital Corp. v. Reale, 237 Conn. 901, 902, 674 A.2d 1331 (1996).

       General Statutes § 52-263 provides: “Appeals from Superior Court. Exceptions. Upon the trial of all matters of fact in any cause or action m the Superior Court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.”

       The appellants do make a belated attempt to invoke the second prong of the Curcio test in their reply brief. We have, however, on a number of occasions observed “that arguments cannot be raised for the first time in a reply brief.” Saturn Construction Co. v. Premium Roofing Co., 238 Conn. 293, 312 n.14, 680 A.2d 1274 (1996). Application of this rule in the present case does no injustice to the appellants, whose eonclusory arguments under the second prong of Curcio substantially replicate their lengthier arguments under the first prong. Under these circumstances, it is unnecessary for us to undertake a separate and distinct analysis where the appellants themselves have chosen not to do so.

       In their briefs in this court, the appellants have consistently referred to themselves as nonparties. Although they were not parties to the underlying civil action, it is altogether possible that, for some purposes, they may be considered parties to the § 52-351b postjudgment proceeding. Because nothing in the present appeal turns on a choice of nomenclature, we have adopted the appellants’ own usage throughout this opinion.

       At oral argument, the appellants contended that they were entitled, under § 52-351b, to an evidentiary hearing prior to the trial court’s decision on their motion for a protective order. Under tire circumstances of this case, we need not decide whether the text of § 52-35lb can support this argument. As a procedural matter, the appellants conceded that they had failed to request such a hearing before the trial court. As a substantive matter, our resolution of the certified issue in this case does not turn on the amount of information the trial court considered before denying the motion for a protective order. The evidentiary basis for the trial court’s decision goes to its propriety, not to its finality.

       The trial court offered no reasons for its refusal to grant the motions for protective orders.

       General Statutes § 52-351b provides: “Discovery by judgment creditor, (a) A judgment creditor may obtain discovery from the judgment debtor, or from any third person he reasonably believes, in good faith, may have assets of the judgment debtor, or from any financial institution to the extent provided by this section, of any matters relevant to satisfaction of the money judgment. The judgment creditor shall commence any discovery proceeding by serving an initial set of interrogatories, in a prescribed form containing such questions as to the assets and employment of the judgment debtor as may be approved by the judges of the Superior Court or their designee, on the person from whom discovery is sought. Service of an initial set of interrogatories relevant to obtaining satisfaction of a money judgment of a small claims session of the Superior Court may be made, upon request of the judgment creditor, by the clerk of the court sending such interrogatories by certified mail, return receipt requested, to the person from whom discovery is sought, provided the judgment creditor pays to such clerk a fee of five dollars for each mailing requested. Questions contained in the interrogatory form shall be in clear and simple language and shall be placed on the page in such manner as to leave space under each question for the person served to insert his answer. Such person shall answer the interrogatories and return them to the judgment creditor within thirty days of the date of service. Interrogatories served on a judgment debtor shall be signed by such debtor under penalty of false statement. With respect to ass'ets, the person served is required to reveal information concerning the amount, nature and location of the judgment debtor’s nonexempt assets up to an amount clearly sufficient in value to ensure full satisfaction of the judgment with interest and costs, provided disclosure shall be first required as to assets subject to levy or foreclosure within the state. If interrogatories are served on a financial institution, the financial institution shall disclose only whether it holds funds of the judgment debtor on account and the balance of such funds, up to the amount necessary to satisfy the judgment.
      “(b) The interrogatory form shall specify the names and last-known addresses of the judgment creditor and the judgment debtor, the court in which and the date on which the judgment was rendered, and the original amount of the judgment and the amount due thereon. The interrogatory form shall contain a notice of rights with respect to postjudgment interrogatories as prescribed by section 52-361b.
      “(c) On failure of aperson served with interrogatories to, within the thirty days, return a sufficient answer or disclose sufficient assets for execution, or on objection by such person to the interrogatories, the judgment creditor may move the court for such supplemental discovery orders as may be necessary to ensure disclosure including (1) an order for compliance with the interrogatories or authorizing additional interrogatories and (2) an order for production or for examination of the judgment debtor or third person, provided any such examination shall be conducted before the court. The court may order such discovery as justice requires provided the order shall contain a notice that failure to comply therewith may subject the person served to being held in contempt of court.
      “(d) Any party from whom discovery is sought may seek a protective order pursuant to section 52-400a." (Emphasis added.)

       Section 52-351b, the statute pursuant to which the discovery order was authorized; see footnote 2; specifically provides, in subsection (d), for a separate proceeding in which the person from whom discovery is sought can obtain a protective order pursuant to General Statutes § 52-400a.
      General Statutes § 52-400a (a) provides: “On motion of a judgment debtor or th i rd person from whom discovery is sought, and for good cause shown, or on its own motion, the court may make any order which justice requires to protect such debtor or third person from annoyance, embarrassment, oppression or undue burden or expense.” (Emphasis added.)
      Practice Book § 236A contains a combination of General Statutes §§ 52-400a (a) and 52-351b (a) and (c), with practically the same language.

       As the majority concludes, the appellants did not adequately brief the second prong of the Curcio test because it was raised for the first time in their reply brief. See footnote 4 of the majority opinion.

       I am not sure what the majority means by an “exceptional” case. If by that the majority means that the 1990 precedent of Lougee is overruled, it should be candid about it and say so.

       Furthermore, Barbato v. J. & M. Corp., 194 Conn. 245, 478 A.2d 1020 (1984), is distinguishable from the present case. In Barbato, in the context of a tax investigation proceeding against a corporation, the court held that the denial of a motion to quash the state’s application for a subpoena was not a final judgment under Curcio. Id., 248. The subpoena was directed to the president of the corporate taxpayer in order to have him testify before the Superior Court. Id., 246. Of course, a corporation cannot directly testify — it does so only through its corporate officers. In Barbato, the propriety of the tax investigation proceeding against the corporation was not challenged, nor had it reached a point where the proceeding was terminated. In the present case, neither of the appellants are parties to the action nor do they share any relationship with the defendant other than a marital or familial association.


author: KATZ, J.

text:
    STATE OF CONNECTICUT v. MARC PIEGER
    (15546)
    Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, Js.

      Argued March 25
    officially released April 29, 1997

      Earle Giovanniello, with whom, on the brief, was Frank J. Riccio, for the appellant (defendant).

      Lisa Herskowitz, deputy assistant state’s attorney, with whom, on the brief, -were Donald A. Browne, state’s attorney, and Nicholas J. Bove, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

KATZ, J.

The sole issue in this certified appeal is whether the Appellate Court properly concluded that the trial court acted within its discretion when, as part of the defendant’s sentence, it imposed as a condition of probation that the defendant make a charitable donation to the hospital where the victim had been treated after being struck and seriously injured by the defendant’s motor vehicle. We conclude that the trial court acted within its discretion when it imposed the condition.

The following facts, as found by the trial court following a bench trial, are relevant to our decision. “[0]n March 29, 1992, at approximately 9 p.m., the defendant [Marc Pieger] was the owner and operator of a motor vehicle that struck and seriously injured Tammy Sheldon as she crossed Noble Avenue in Bridgeport. . . . [T]he defendant left the scene of the accident without stopping to render assistance or to give his name and address to the police officer or a witness. . . . [T]he defendant knew he was involved in an accident based on [the fact] that the defendant drove his vehicle around Sheldon as she lay in the highway.” State v. Pieger, 42 Conn. App. 460, 462, 680 A.2d 1001 (1996). Thereafter, the trial court found the defendant guilty of evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (a), but acquitted him of reckless driving.

Following the defendant’s conviction of evading responsibility, the office of adult probation (office) prepared a presentence investigation report in accordance with its responsibilities pursuant to Practice Book § 910 et seq., which indicated that the victim had sustained very serious injuries resulting in more than $1,000,000 in medical bills, and that the defendant’s motor vehicle insurance company had paid its policy limit of $50,000. The office concluded that the victim would incur out-of-pocket expenses, but the exact amount could not be determined because she was continuing to receive treatment. In addition to the imposition of a sentence, followed by a period of probation, the office recommended that the court impose community service and a charitable contribution as conditions of probation.

The court sentenced the defendant to a five year term of imprisonment, execution suspended after eighteen months, and placed him on probation for five years subject to the following conditions: (1) that his privilege to operate a motor vehicle be suspended for thirty months; (2) that he perform 500 hours of community service; and (3) that he “make a charity donation of $2500 to New Britain Hospital,” where, as a result of the accident, the victim had been hospitalized for more than one year. See General Statutes (Rev. to 1995) § 53a-30. The defendant thereafter appealed from the trial court’s judgment to the Appellate Court, raising, inter alia, the propriety of the charitable donation condition. The Appellate Court affirmed the judgment, concluding that the trial court had acted within its discretion in imposing the condition of probation because it was “reasonably related to the defendant’s rehabilitation.” State v. Pieger, supra, 42 Conn. App. 468. This court subsequently granted the defendant’s petition for certification, limited to the following issue: “Did the Appellate Court properly conclude that the trial court, in sentencing the defendant, could impose as part of the sentence or as a condition of probation the payment of a $2500 charitable ‘contribution’ to New Britain Hospital?” State v. Pieger, 239 Conn. 927, 683 A.2d 398 (1996).

The defendant claims that the trial court lacked authority to order the charitable donation as part of his sentence. He farther argues that the trial court was similarly without the authority to order him to pay money to a third party as a condition of probation. The state does not defend the ordering of the charitable donation as a criminal sentence; rather, it argues in response that because the payment was reasonably related to the defendant’s rehabilitation and, consequently, authorized under General Statutes (Rev. to 1995) § 53a-30 (a) (12), the trial court acted within its discretion in imposing the charitable donation as one condition of probation. We agree with the state.

Relying on § 53a-30 (a), which provides in relevant part that “[w]hen imposing sentence of probation . . . the court may . . . order that the defendant . . . (12) satisfy any other conditions reasonably related to his rehabilitation,” the state contends that by ordering the donation to the hospital, the court imposed on the defendant a consequence that had a direct relationship to his criminal conduct. The defendant argues in response that the state may not rely on § 53a-30 (a) (12) as “a device for trial courts to redirect fines from the state coffers to third parties.” The defendant further argues that “there is no added rehabilitative effect from being ordered to pay a third party than there would be to pay a fine,” and that the statutory provisions authorizing restitution; General Statutes (Rev. to 1995) § 53a-30 (a) (4); and the payment of fines; General Statutes § 53a-28; adequately provide whatever rehabilitative effect that being required to pay money would have. Finally, the defendant argues that if we were to interpret § 53a-30 (a) (12) to include monetary payments to third parties, trial courts effectively would be able to impose fines in excess of the statutory amount authorized by § 14-224 (f). See footnote 1. We conclude that the trial court reasonably could have determined that ordering the defendant to make a charitable donation of $2500 to the hospital where the victim of his crime had been treated for more than one year was an appropriate vehicle by which to help the defendant accept responsibility for the consequences of his conduct.

In order to determine whether the legislature intended to allow charitable contributions as a condition of probation, we begin with familiar principles of statutory construction. “It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation. ...” (Citation omitted; internal quotation marks omitted.) Murchison v. Civil Service Commission, 234 Conn. 35, 45, 660 A.2d 850 (1995). We first look to the language of the statute and to the general goals of probation in order to discern the intent of the legislature in enacting subdivision (12) of § 53a-30 (a).

Pursuant to § 53a-30 (a), a sentencing court may impose a variety of conditions to a sentence of probation, all of which are aimed at rehabilitating the defendant. Within the permitted statutory conditions, the court may direct medical or psychiatric treatment, impose support obligations, require suitable employment, set housing restrictions, and order restitution. See footnote 2. Unlike these specific provisions of § 53a-30 (a), the terms of subdivision (12) are very broad. By allowing the trial court to impose “any other conditions reasonably related to [the defendant’s] rehabilitation”; (emphasis added) General Statutes (Rev. to 1995) § 53a-30 (a) (12); the legislature authorized the court to impose any condition that would help to secure the defendant’s reformation. This broad power is consistent with the general goals of probation.

“Probation is the product of statute. See General Statutes § 53a-28 et seq. Statutes authorizing probation, while setting parameters for doing so, have been very often construed to give the court broad discretion in imposing conditions. United States v. Tolla, 781 F.2d 29, 32 (2d Cir. 1986); see, e.g., United States v. Torrez-Flores, 624 F.2d 776, 784 (7th Cir. 1980); United States v. Weber, 437 F.2d 1218, 1220 (7th Cir.), cert. denied, 402 U.S. 1008, 91 S. Ct. 2189, 29 L. Ed. 2d 430 (1971); State v. Pilch, 35 Conn. Sup. 536, 539, 394 A.2d 1364 (1977); People v. Walmsley, 168 Cal. App. 3d 636, 639, 214 Cal. Rptr. 170 (1985); State v. Ripperger, 284 N.W.2d 884, 885 (S.D. 1979); State v. Blight, 89 Wash. 2d 38, 41, 569 P.2d 1129 (1977).” State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988).

Additionally, because “probation is, first and foremost, a penal alternative to incarceration — its objectives are to foster the offender’s reformation and to preserve the public’s safety — a sentencing court must have the discretion to fashion those conditions of probation it deems necessary to ensure that the individual successfully completes the terms of probation. United States v. Williams, 787 F.2d 1182, 1185 (7th Cir. 1986).” State v. Smith, supra, 207 Conn. 168-69.

“[I]n determining whether a condition of probation [is proper] ... a reviewing court should evaluate the condition imposed under our Adult Probation Act in the following context: The conditions must be reasonably related to the purposes of the [Probation] Act. Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement. United States v. Williams, supra, [787 F.2d] 1185; United States v. Pierce, 561 F.2d 735, 739 (9th Cir. 1977), cert. denied, 435 U.S. 923, 98 S. Ct. 1486, 55 L. Ed. 2d 516 (1978); see also United States v. Consuelo-Gonzalez, [521 F.2d 259, 264-65 n.14 (9th Cir. 1975)].” (Internal quotation marks omitted.) State v. Smith, supra, 207 Conn. 170.

In deciding the issue before us, we recognize the ongoing authority of the court in overseeing the probation process. “The success of probation as a correctional tool is in large part tied to the flexibility within which it is permitted to operate. ABA Standards Relating to Probation § 3.3 commentary (Approved Draft 1970). Buckley v. Quincy Division of District Court Department, 395 Mass. 815, 818, 482 N.E.2d 511 (1985).” (Internal quotation marks omitted.) State v. Smith, supra, 207 Conn. 171. To ensure this success, “the trial judge has an exceptional degree of flexibility in determining whether to grant . . . probation and on what terms.” (Internal quotation marks omitted.) Id., 164.

On appeal, the standard of review of an order of probation is whether the trial court abused its discretion. If it appears that the trial court reasonably was satisfied that the terms of probation had a beneficial purpose consistent with the defendant’s reformation and rehabilitation, then the order must stand. Id., 167. “In reviewing the issue of discretion, we do so according it every reasonable presumption in favor of the trial court’s ruling. State v. Amarillo, 198 Conn. 285, 313-14, 503 A.2d 146 (1986). [Finally, a] defendant who seeks to reverse the exercise of judicial discretion assumes a heavy burden. State v. Tirado, 194 Conn. 89, 95, 478 A.2d 606 (1984).” State v. Smith, supra, 207 Conn. 167.

We conclude that the trial court acted within its discretion in setting the charitable donation as a condition of probation in an attempt to foster the defendant’s reformation. The defendant had been convicted of evading responsibility for his role in an accident that had caused serious physical injury to the victim. Furthermore, despite the trial court’s findings the defendant continued to deny any involvement in the accident up to and including the time of his sentencing. The trial court was therefore justified in its attempt to make the defendant recognize his role in causing the physical injury suffered by the victim and the expenses the victim incurred as a consequence.

Indeed, the trial court imposed a realistic method of making the defendant aware of his conduct and its consequences. By encouraging the defendant to accept his responsibility in the victim’s tragedy, the court acted to ensure that the probation would “[serve] as a period of genuine rehabilitation . . . .” (Internal quotation marks omitted.) State v. Graham, 33 Conn. App. 432, 448, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994). “By seeking to force the defendant to accept the responsibility he attempted to evade by leaving the scene of the accident without identifying himself, the . . . condition acts both as a deterrent to future attempts to evade his legal and financial duties as a motorist and as a rehabilitative measure tailored to correct the behavior leading to his conviction.” People v. Carbajal, 10 Cal. 4th 1114, 1124, 899 P.2d 67, 43 Cal. Rptr. 2d 681 (1995) (en banc). Although the order at issue in Carbajal was an order for restitution for property damage, we are persuaded that this reasoning is equally applicable to an appropriately limited order to make a charitable donation.

The defendant does not dispute that requiring the payment of money for his crime might be rehabilitative, or that he could have been fined as much as $5000. He argues, nevertheless, that the beneficial purpose of a financial contribution could have been achieved by the imposition of a fine, and that the payment to the hospital would have no more of a rehabilitative effect than payment to the state. We disagree. The condition of a charitable contribution “is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will [a]ffect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity .... [T]he direct relation between the harm and the punishment gives [the condition] a more precise deterrent effect than a traditional fine.” (Internal quotation marks omitted.) Id.

In this case, requiring the defendant to make a donation to the hospital that had provided most of the victim’s treatment was more rehabilitative than requiring the defendant to pay a fine because the donation had a direct relationship to the accident and the injuries, thereby advancing the rehabilitative purpose of making the defendant accept his responsibility for the accident. Other jurisdictions have upheld conditions requiring monetary payments that were not explicitly authorized by statute when those conditions shared a nexus with the defendant’s crime. See United States v. Daddato, 996 F.2d 903 (7th Cir. 1993) (trial court had discretion to order defendant convicted of selling hallucinogenic mushrooms, as condition of supervised release, to repay $3650 he received from law enforcement officers during undercover drug sale); People v. Burleigh, 727 P.2d 873 (Colo. App. 1986) (trial court properly imposed as condition of probation that doctor, convicted of unlawfully dispensing controlled substance, donate $5000 to drug treatment center); Hafner v. Leapley, 520 N.W.2d 252 (S.D. 1994) (trial court could order defendant convicted of sexual assault, as condition of probation, to pay $5000 to county as compensation for county victim assistant); State v. Brown, 174 Wis. 2d 550, 497 N.W.2d 463 (1993) (trial court reasonably imposed condition that defendant convicted of sexual assault pay $7000 tuition cost of sending victim to another school because she was being harassed at current school as result of assault). We conclude that as long as the condition requiring monetary payment shares a nexus with the defendant’s crime, as in this case, it is reasonably related to rehabilitation.

Having determined that a charitable donation is authorized by § 53a-30 (a) (12), we next address the issue of whether the trial court acted properly in setting the amount of the required donation. We conclude that the defendant cannot demonstrate that the trial court abused its discretion in imposing the charitable donation that it did.

The condition imposed by the trial court was based upon the recommendation of the office, whose function it was to present, through its presentence investigation report, a thorough picture of the offense at issue and, in particular, the defendant’s participation in the offense, his criminal record, social history and present condition, as well as the victim’s attitude and her damages, including such costs as her medical expenses and loss of earnings. See Practice Book § 911. The office had suggested that the donation to the hospital be paid “within one year of probation.” The office had also recommended that restitution be imposed. The trial court declined to impose restitution and failed to set a specific time period within which the money had to be paid to the hospital. Therefore, the defendant will have five years — the time he will be on probation — within which to satisfy the condition of payment. At the sentencing, the defendant informed the court that his insurance company had paid the policy limits within weeks of the accident and that he believed such payment had been in exchange for a release of all claims. He did not claim that he was financially incapable of paying the donation. Although the trial court never expressly found that he was financially capable of paying the donation, we can assume, based upon its recommendation, that the office, as part of its investigation, had concluded that the defendant was capable of paying the money within one year of probation along with the restitution it had also recommended. Therefore, we conclude that the trial court did not abuse its discretion by imposing a charitable donation outside the defendant’s financial reach.

We emphasize that although a charitable donation may be a valid term of probation, as in this case, a trial court should not use § 53a-30 (a) (12) as a pretext to impose a fine in excess of the statutory maximum, or to circumvent making the requisite findings for determining restitution pursuant to § 53a-30 (a) (4). In this case, however, the donation equalled only one half of the amount of a fine that the court could have imposed pursuant to § 14-224 (f), and a mere 0.25 percent of the $1,000,000 in medical expenses that the victim had incurred as a result of her injuries caused by the defendant.

Under these circumstances, we conclude that the trial court acted within its discretion in imposing the $2500 charitable donation as a condition of the defendant’s probation because it was reasonably related to the defendant’s rehabilitation and to the goals of probation.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 14-224 provides: “Evasion of responsibility in operation of motor vehicles. Racing. Required removal of motor vehicle from traveled portion of highway, (a.) Each person operating a motor vehicle who is knowingly involved in an accident which causes serious physical injury, as defined in section 53a-3, to or results in the death of any other person shall at once stop and render such assistance as may be needed and shall give his name, address and operator’s license number and registration number to the person injured or to any officer or witness to the death or serious physical injury of any person, and if such operator of the motor vehicle causing the death or serious physical injury of any person is unable to give his name, address and operator’s license number and registration number to the person injured or to any witness or officer, for any reason or cause, such operator shall immediately report such death or serious physical injury of any person to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the death or serious physical injury of any person and his name, address, operator’s license number and registration number.
      “(b) Each person operating a motor vehicle who is knowingly involved in an accident which causes physical injury, as defined in section 53a-3, to any other person or injury or damage to property shall at once stop and render such assistance as may be needed and shall give his name, address and operator’s license number and registration number to the person injured or to the owner of the injured or damaged property, or to any officer or witness to the physical injury to person or injury or damage to property, and if such operator of the motor vehicle causing the physical injury of any person or injury or damage to any property is unable to give his name, address and operator’s license number and registration number to the person injured or the owner of the property injured or damaged, or to any witness or officer, for any reason or cause, such operator shall immediately report such physical injury of any person or injury or damage to property to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the physical injury of any person or the injury or damage to property and his name, address, operator’s license number and registration number.
      “(c) No person shall operate a motor vehicle upon any public highway for a wager or for any race or for the purpose of making a speed record.
      “(d) Each person operating a motor vehicle who is knowingly involved in an accident on a limited access highway which causes damage to property only shall immediately move or cause his motor vehicle to be moved from the traveled portion of the highway to an untraveled area which is adjacent to the accident site if it is possible to move the motor vehicle without risk of further damage to property or injury to any person.
      “(e) No person who acts in accordance with the provisions of subsection (d) of this section may be considered to have violated subsection (b) of this section.
      “(f) Any person who violates the provisions of subsection (a) of this section shall be fined not more than five thousand dollars or be imprisoned not less than one year nor more than five years or be both fined and imprisoned.
      “(g) Any person who violates the provisions of subsection (b) or (c) of this section shall be fined not less than seventy-five dollars nor more than six hundred dollars or be imprisoned not more than one year or be both fined and imprisoned, and for any subsequent offense shall be fined not less than one hundred dollars nor more than one thousand dollars or imprisoned not more than one year or be both fined and imprisoned.”

       General Statutes (Rev. to 1995) § 53a-30 provides: “Conditions of probation and conditional discharge, (a) When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant: (1) Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that will equip him for suitable employment; (2) undergo medical or psychiatric treatment and remain in a specified institution, when required for that purpose; (3) support his dependents and meet other family obligations; (4) make restitution of the fruits of his offense or make restitution, in an amount he can afford to pay or provide in a suitable manner, for the loss or damage caused thereby and the court may fix the amount thereof and the manner of performance; (5) if a minor, (A) reside with his parents or in a suitable foster home, (B) attend school, and (C) contribute to his own support in any home or foster home; (6) post a bond or other security for the performance of any or all conditions imposed; (7) refrain from violating any criminal law of the United States, this state or any other state; (8) if convicted of a misdemeanor or a felony, other than a capital felony, a class A felony or a violation of section 21a-278, 21a-278a, 53a-55, 53a-56, 53a-56b, 53a-57, 53a-58 or 53a-70b or any offense for which there is a mandatory minimum sentence which may not be suspended or reduced by the court, and any sentence of imprisonment is suspended, participate in an alternate incarceration program; (9) reside in a residential community center or halfway house approved by the commissioner of correction, and contribute to the cost incident to such residence; (10) participate in a program of community service labor in accordance with section 53a-39c; (11) if convicted of a violation of section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b and (A) the conviction is of a second or subsequent violation of any of said sections or (B) at the time of the offense, the defendant was eighteen years of age or older and the victim was under thirteen years of age, undergo specialized sexual offender treatment; (12) satisfy any other conditions reasonably related to his rehabilitation. The court shall cause a copy of any such order to be delivered to the defendant and to the probation officer, if any.
      “(b) When a defendant has been sentenced to a period of probation, the Office of Adult Probation may require that the defendant comply with any or all conditions which the court could have imposed under subsection (a) which are not inconsistent with any condition actually imposed by the court.
      “(c) At any time during the period of probation or conditional discharge, after hearing and for good cause shown, the court may modify or enlarge the conditions, whether originally imposed by the court under this section or otherwise, and may extend the period, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29. The court shall cause a copy of any such order to be delivered to the defendant and to the probation officer, if any.
      “(d) The period of participation in an alternate incarceration program, unless terminated sooner, shall not exceed the period of probation authorized by section 53a-29 or two years, whichever is less.”

       We note that in the present case, there is no useful legislative history to guide our analysis.

       The defendant points out that the trial court acquitted him of reckless driving. That decision, however, did not undermine the trial court’s findings that the defendant was the owner and operator of a motor vehicle that had struck and seriously injured the victim and that the defendant knew he had been involved in the accident. The defendant, may not have been driving at such a rate of speed so as to endanger the life of another, but he was nevertheless knowingly involved in an accident causing serious physical injury and failed to stop.

       In the present case the nexus shared by the defendant’s crime and the imposed condition of making a donation is clear — the donation is to be made to the hospital where the victim of the crime was treated. In future eases, however, express findings supporting the requisite nexus would alleviate any concerns on the part of a reviewing court.

       Practice Book § 911 provides: “[Presentenee Investigation and Report; Alternate Incarceration Assessment and Plan] — Scope of Investigation or Assessment

        “Whenever an investigation is required or an assessment is ordered or both, the probation officer shall promptly inquire into the attitude of the complainant or the victim, or of the immediate family where possible in cases of homicide, and the criminal record, social history and present condition of the defendant. Such investigation shall include an inquiry into the circumstances of the offense and any damages suffered by the victim, including medical expenses, loss of earnings and property loss. Such assessment shall include an inquiry into the defendant’s prior participation in any release programs and the defendant’s attitude about participation in an alternate incarceration program. When it is desirable in the opinion of the judicial authority or the investigating authority, such investigation or assessment shall include a physical and mental examination of the defendant.
      “If an assessment includes a recommendation for placement in an alternate incarceration program, it shall include, as an attachment, a proposed alternate incarceration plan. A current or updated presentence investigation report may be used in lieu of an alternate incarceration assessment report provided attached thereto is a statement by the investigating authority recommending whether or not the defendant should participate in an alternate incarceration program and any recommendation that the defendant participate includes a proposed alternate incarceration plan.”

         Indeed, it is well settled that the defendant’s probation could not be revoked based upon his nonpayment of the donation unless the trial court first determined that he was able to pay the money and that his nonpayment was wilful. See Bearden v. Georgia, 461 U.S. 660, 672, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983); State v. Cooley, 3 Conn. App. 410, 414, 488 A.2d 1283, cert. denied, 196 Conn. 805, 492 A.2d 1240 (1985); see also General Statutes § 53a-32; Practice Book § 928 et seq.

       We note that, before imposing the charitable donation, the trial court was not required to find that the hospital had not been fully reimbursed by the victim. Our review of the record indicates that the trial court considered the payment to be symbolic; it was intended not to make the hospital whole, but, rather, to cause 1he defendant to accept responsibility for his conduct.


author: PER CURIAM.

text:
    JACQUES ALL TRADES CORPORATION v. LAVERNE BROWN ET AL.
    (15530)
    Callahan, C. J., and Norcott, Katz, Palmer and Peters, Js.
    Argued March 19
    officially released April 29, 1997

      Joseph C. Morelli, for the appellant (plaintiff).

      George M. Purtill, with whom, on the brief, was Seth Jacoby, for the appellee (named defendant).

      Evans Jacobs, Jr., senior assistant corporation counsel, with whom were JohnP. Shea, Jr., special counsel, and, on the brief, Kevin G. Dubay, corporation counsel, for the appellee (defendant city of Hartford).

      Richard Blumenthal, attorney general, and Roger Reynolds, assistant attorney general, filed a brief for the state of Connecticut as amicus curiae.
   Opinion

PER CURIAM.

In the spring of 1988, the defendant, Laverne Brown, applied for a residential rehabilitation mortgage through the federally funded housing preservation loan program operated by the city of Hartford. Hartford accepted the defendant’s application, and wrote specifications and solicited bids for improvements to the defendant’s home. The bid of the plaintiff, Jacques All Trades Corporation, was accepted and the plaintiff and the defendant subsequently contracted for improvements to cost $20,150, which amount was entirely funded by the preservation loan obtained by the defendant from Hartford. The contract price included the improvements for which bids originally had been solicited as well as other work that had been agreed to by the plaintiff and the defendant and subsequently approved by Hartford. Hartford was not a signatory to the contracts. Among other things, however, it furnished the contract forms, approved the contracts and administered the project as construction manager.

When the plaintiff was not paid upon completion of the work contracted for, it brought a two count complaint in the Superior Court. The first count alleged a breach of contract against the defendant. The second count sought release of the mortgage funds in the amount of $20,150 held by Hartford. The defendant filed special defenses and a counterclaim asserting, inter alia, that the contracts were invalid because they did not comply with the Home Improvement Act, General Statutes § 20-418 et seq. (act). Following a second trial, the court rendered judgment against the defendant on the first count of the plaintiffs complaint in the amount of $20,150 and against Hartford on the second count and ordered Hartford to pay to the plaintiff the $20,150 it was holding as a stakeholder. The trial court found that the contracts between the plaintiff and the defendant did not comply with the act because they failed to contain the required notice of cancellation. The court concluded, however, that the plaintiff could enforce the contracts because they fell within the municipal exemption of General Statutes § 20-428 (l), which provides in pertinent part that the act does not apply to “[t]he government of the state, municipalities of the state or any department or agency of the state or such municipalities . . . ,”

The basis of the trial court’s decision was that “for all practical purposes [Hartford] was a functional and essential party to [the contract]” and that “such substantial municipal involvement” rendered the transaction exempt from the act. The defendant appealed from the trial court’s judgment and the plaintiff cross appealed.

The Appellate Court reversed the trial court’s judgment against the defendant and Hartford, concluding, inter aha, that the trial court improperly had found that the municipal exemption contained in § 20-428 (1) applied to the contracts between the plaintiff and the defendant. Jacques All Trades Corp. v. Brown, 42 Conn. App. 124, 679 A.2d 27 (1996). The Appellate Court determined that, because Hartford had not been a signatory or a party to the contracts, the municipal exemption did not apply, despite Hartford’s substantial involvement in the transactions. Id., 128-29. The Appellate Court concluded that the plaintiff could not prevail because the contracts were neither exempt from nor in compliance with the act.

We granted the plaintiff certification to appeal limited to the following issue: “Whether the Appellate Court properly concluded, under the facts and circumstances of this case, that the municipal exemption contained in General Statutes § 20-428 did not apply to the contract in issue?” Jacques All Trades Corp. v. Brown, 240 Conn. 903, 688 A.2d 332 (1996).

After examining the record on appeal and after considering the briefs and arguments of the parties, we conclude that the judgment of the Appellate Court should be affirmed. The issue on which we granted certification was properly resolved in the Appellate Court’s thoughtful and comprehensive unanimous opinion. It would serve no useful purpose for us to repeat the discussion contained therein. See Gajewski v. Pavelo, 236 Conn. 27, 30, 670 A.2d 318 (1996); Sharp v. Wyatt, Inc., 230 Conn. 12, 16, 644 A.2d 871 (1994); Whisper Wind Development Corp. v. Planning & Zoning Commission, 229 Conn. 176, 177, 640 A.2d 100 (1994).

The judgment of the Appellate Court is affirmed.

       Although the city of Hartford is also a defendant in this action, the named defendant Laverne Brown will be referred to as the defendant throughout.

       The first trial resulted in an appeal on issues not related to the present appeal. The Appellate Court reversed the judgment of the trial court and remanded the case for a new trial. See Jacques All Trades Corp. v. Brown, 33 Conn. App. 294, 635 A.2d 839 (1993).

       General Statutes § 20-428 provides in relevant part: “Exemptions. This chapter shall not apply to any of the following persons or organizations: (1) The government of the state, municipalities of the state or any department or agency of the state or such municipalities . . . .”

       In the first count of its complaint, the plaintiff also claimed damages as a result of another separate contract for extra work entered into by the plaintiff and the defendant. The trial court found, however, that that contract did not comply with the act and was not exempt from the act pursuant to § 20-428 (1) because Hartford was not involved in that contract. The Appellate Court affirmed that aspect of the trial court’s judgment. Jacques All Trades Corp. v. Brown, 42 Conn. App. 124, 129, 679 A.2d 27 (1996).

       As part of its judgment, the Appellate Court ordered a remand for an evidentiary hearing on the issue of whether the defendant was entitled to attorney’s fees pursuant to the Connecticut Unfair Trade Practices Act, General Statutes § 42-110g (d). Jacques All Trades Corp. v. Brown, supra, 42 Conn. App. 132.