text:
    Regional School District Number 4 v. United Pacific Insurance Company
    Decided July 2, 1985

      James D. Reardon, in support of the petition.

      J. Paul Kane, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 4 Conn. App. 175, is denied.


source: Caselaw Access Project

license: Public Domain

text:
    Hope B. Rudewicz v. Walter K. Rudewicz
    Decided July 2, 1985

      Wesley W. Horton, in support of the petition.

      Sanford J. Plepler, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 704, is denied.


text:
    Society for Savings v. Robert H. Kalechman et al.
    Decided July 2, 1985

      Robert H. Kalechman, pro se, in support of the petition.

      Donald G. Rosenberg, in opposition.
   The named defendant’s petition for certification for appeal from the Appellate Court is dismissed.


text:
    Stanley V. Tucker v. Paul B. Crikelair et al.
    Decided July 2, 1985

      Stanley V. Tucker, pro se, in support of the petition.

      John Bullock, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 4 Conn. App. 150, is denied.


text:
    Ronnie Wright v. David Bourbeau et al.
    Decided July 2, 1985

      Thomas Ullmann, assistant public defender, in support of the petition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 3 Conn. App. 512, is denied.


text:
    Anthony Henderson v. Department of Motor Vehicles of the State of Connecticut
    Decided July 2, 1985

      Ernest F. Teitell, in support of the petition.

      John F. Gill, assistant attorney general, in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 4 Conn. App. 143, is granted with limitation.


author: Arthur H. Healey, J.

text:
    Mary Ann Leo v. Salvatore Leo, Jr.
    (11926)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued March 6
    decision released July 23, 1985

      Diane M. Andersen, with whom, on the brief, was Marcella Gereg, for the appellant (plaintiff).

      Andrew P. Nemiroff, with whom, on the brief, was Robert A. Epstein, for the appellee (defendant).
   Arthur H. Healey, J.

In this appeal from the judgment dissolving the marriage of the parties, the plaintiff wife claims an abuse of judicial discretion by the trial court in its determination of the awards of alimony and child support. Specifically, the plaintiff claims that the trial court: (1) misapplied the criteria of General Statutes § 46b-81 (c) to the sale of jointly held real property; (2) did not award alimony and support in accordance with the criteria set forth in General Statutes §§ 46b-82 and 46b-84 (a) and (b); and (3) did not accurately assess the defendant husband’s business income, benefits, and ownership interest in a corporation owned and controlled by his family. We find these claims to be without merit.

The parties were married on June 14,1970, and had one minor child who was born in 1973. The marriage was dissolved by the trial court on December 28,1982, on the ground of irretrievable breakdown. In its memorandum of decision, some twelve pages in length, the trial court awarded custody of the minor child to the plaintiff and reserved visitation rights to the defendant. The parties were not at issue on the matter of custody and visitation. The trial court ordered the defendant to pay $700 per month in unallocated alimony and child support until the child reached the age of eighteen years. In the event the plaintiff remarried, the support for the minor child was ordered to be $400 per month. The defendant was ordered to transfer title in a $6000 automobile to the plaintiff and he was to continue to maintain a $50,000 life insurance policy with their child as the beneficiary until she attained the age of eighteen years. The defendant was also ordered to continue to maintain a $25,000 life insurance policy, which named the plaintiff as beneficiary, as long as his obligation to pay alimony continued. In addition, the defendant was required to maintain major medical insurance on behalf of the child. With the exception of certain named items of personal property, the plaintiff was to receive the remaining furnishings and appliances within the family home.

The family home in Danbury was valued at approximately $95,000 according to the financial affidavits of the parties and carried a first mortgage of $38,288. The jointly owned home was purchased in 1974 for $57,000 with a $15,000 down payment. The court found the $15,000 down payment to be a loan from the defendant’s father. The trial court ordered that the family home in Danbury be sold and that the first mortgage as well as the loan from the defendant’s father and other specified costs be paid from the proceeds of the sale. The balance of the proceeds was to be apportioned between the parties. The trial court also ordered that the defendant retain sole ownership of his 17 percent interest in the family-owned business. Following the entry of judgment, the plaintiff filed this appeal seeking to have the judgment set aside and the case remanded for a new trial.

We first address the plaintiff’s claim that the trial court did not make reference to the relevant statutory criteria of §§ 46b-82 and 46b-84 in its award of alimony and support to the plaintiff and that it is therefore impossible to ascertain the basis upon which the monthly alimony and support was determined. It should be noted that, despite this claim, the plaintiff did not choose to exercise her right to seek an articulation of the trial court’s decision under Practice Book § 3082 with regard to the basis for the award of alimony and support. See Kaplan v. Kaplan, 186 Conn. 387, 388 n.1, 441 A.2d 629 (1982); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222 n.5, 435 A.2d 24 (1980).

The scope of our review “of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did.” Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984), quoting Beede v. Beede, 186 Conn. 191, 194, 440 A.2d 283 (1982). “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached.” Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 222. The trial court is “in a clearly advantageous position to assess all of the circumstances surrounding a dissolution action, in which personal factors such as the demeanor and the attitude of the parties are so significant.” (Citations omitted.) Tutalo v. Tutalo, 187 Conn. 249, 251, 445 A.2d 598 (1982); see also Holley v. Holley, supra; McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982). “It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” Smith v. Smith, 185 Conn. 491, 493, 441 A.2d 140 (1981); Beede v. Beede, supra, 195. Moreover, we do not retry the facts. See Carpenter v. Carpenter, 188 Conn. 736, 741-42, 453 A.2d 1151 (1982); Kaplan v. Kaplan, supra, 391. In determining whether the trial court could reasonably conclude as it did on the evidence before it, every reasonable presumption should be given in favor of the correctness of its action. Gallo v. Gallo, 184 Conn. 36, 44, 440 A.2d 782 (1981); Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 835 (1975). “The conclusions which we might reach, were we sitting as the trial court, are irrelevant. Gallo v. Gallo, [supra], 44-45; Koizim v. Koizim, 181 Conn. 492, 498, 435 A.2d 1030 (1980).” Carpenter v. Carpenter, supra, 741; see Kaplan v. Kaplan, supra, 391.

In awarding alimony, the trial court, under General Statutes § 46b-82, “shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the [property] award, if any [under § 46b-81], and . . . the desirability of [the custodial] parent’s securing employment.” Under General Statutes § 46b-84 (b), the child support provision, the criteria the trial court must consider are very similar to those listed in § 46b-82.

The memorandum of decision reflects a thoughtful consideration of the criteria for alimony, support and distribution of property set forth in General Statutes §§ 46b-81 (c), 46b-82 and 46b-84. The trial court was not required to make express findings on each of the statutory considerations. See, e.g., Dubicki v. Dubicki, 186 Conn. 709, 716, 443 A.2d 1268 (1982).

With respect to General Statutes § 46b-81 (c), the plaintiff argues that the trial court failed to perceive the “financial facts” and “incorrectly applied the statutory criteria to those facts.” The trial court was presented with detailed information by both parties, some of it conflicting, in their financial affidavits and trial testimony from which the court could make reasonable findings of fact leading logically to its determination. One main contention of the plaintiff is that the order to pay to the defendant’s father from the proceeds of the sale the $15,000 loaned for the down payment on the family home was an abuse of discretion. The trial court was in the optimum position to weigh the conflicting evidence as to whether the $15,000 payment was a loan or a gift. The court’s determination that such payment was a loan was a permissible exercise of its factfinding function. The trial court chose to believe the defendant’s evidence. “The trier is free to accept or reject, in whole or in part, the evidence offered by either party.” Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981); see also Hirst v. Hirst, 2 Conn. App. 348, 350, 478 A.2d 618 (1984).

The trial court’s finding that the plaintiff is solely responsible for the debts and liabilities listed on her financial affidavit does not, on a permissible view of the evidence, constitute an abuse of discretion. The court looked at, inter alia, the dates on which the bills had been incurred and found that the majority of them had been incurred since the 1980 separation. The court expressly determined that the sale of the property would enable the plaintiff to pay most of her debts and that the plaintiff could then relocate to a home in which she could manage her finances more efficiently than she had demonstrated in the past.

With respect to the plaintiffs claim that the trial court failed to conform its orders of alimony and support to the facts in evidence and the criteria set forth in General Statutes §§ 46b-82 and 46b-84 (a) and (b), we find no abuse of discretion in the trial court’s awards.

Our examination of the memorandum of decision reveals that the trial court considered the various statutory factors. The court found the plaintiff to be thirty-five years old, in good health, and presently employed at a weekly gross salary of $162. The plaintiff has an associate’s degree and has completed 120 semester hours toward a bachelor’s degree, with a major in graphics. She has previously been employed as a clerical worker doing accounts receivable. The trial court looked to the causes of the dissolution of the ten year marriage and found that the defendant went to great lengths to save his marriage and that none of the plaintiff’s allegations was the cause of the breakdown of the marriage.

The court recognized that the defendant has a presently higher earning capacity than the plaintiff and that there was a disparity in the parties’ salaries. In recognition of this, the defendant, in addition to the $700 monthly alimony and support payment, was required, among other things, to maintain two insurance policies with the wife and child as beneficiaries as well as to maintain the child’s medical insurance coverage. In light of all the evidence before the trial court, what is left of the plaintiff’s argument is that the criteria were not weighed equitably, thus resulting in an impermissible award. See Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983). The trial court’s “determination of the weight to be assigned to the conceded discrepancy between the parties’ earning capacity is not independently reviewable.” Tutalo v. Tutalo, supra, 252. It would be an unwarranted excursion into the domain of the trier for this court to “vary either the weight placed upon specific statutory criteria or the weight placed upon documentary or testimonial evidence.” Carpenter v. Carpenter, supra, 741-42.

The final ground assigned as a basis for error is the trial court’s assessment of the value of the defendant’s income, benefits, and ownership interest in his family’s business. The plaintiff claims that these factual errors caused inequitable awards of property and support. A review of that portion of the trial court’s memorandum of decision that discusses in detail the family-owned corporation shows the plaintiff’s claim to be without merit. The court examined the type and nature of the business involved and found it to be a closely held corporation in which the defendant, his mother and father, and his brother are the officers. A bank loan agreement with the corporation sets a maximum figure for officers’ combined salaries of $105,000. The defendant’s gross annual salary for 1981 and 1982 was $39,000. The court made a finding, based on an independent appraisal by a company seeking to purchase the corporate property and on the defendant’s testimony, that the corporate property is worth $1,100,000. The trial court did not “ignor[e]” the evidence submitted evaluating the worth of the business of the corporation, excluding the property, as the plaintiff claims. Rather, the court chose, as it could, not to weigh heavily the evidence of the net worth of the business, as there was, at the time of the dissolution proceedings, pending litigation in New York between the defendant’s family corporation and the potential buyer concerning the option to purchase. The memorandum also reveals that the trial court was abundantly aware of the defendant’s percentage interest in the corporation. That the court did not translate the defendant’s 17 percent interest in this closely held family corporation into a dollar figure, in this case, does not demonstrate the court’s failure to consider this interest. Moreover, the court did make an express finding that there was no basis for the plaintiff’s claims that the defendant received certain moneys from this corporation that were not reported to the Internal Revenue Service. “When all of the financial factors are placed on the scale of equity and fairness we cannot say that the trial court, in reason, could not have concluded as it did.” Krause v. Krause, 189 Conn. 570, 572, 456 A.2d 1204 (1983).

There is no error.

In this opinion the other judges concurred.

       The plaintiff sold several of the items of the defendant’s personal property prior to trial. The plaintiff also claimed on appeal that the court’s transfer of this property to the defendant represents an abuse of discretion and constitutes error. The defendant in his brief indicated that he believed the issue to be moot and to have no bearing on the appeal. In any event, the defendant has abandoned any claim as to those items of his that were sold by the plaintiff and that issue is no longer viable on this appeal.

       General Statutes § 46b-84 (b) provides: “In determining -whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.”

       General Statutes § 46b-81 (c) requires the trial court to consider virtually the same criteria for the assignment of property and the transfer of title as for the award of alimony. Section 46b-81 (c) also includes as a factor “the opportunity of each for future acquisition of capital assets and income,” as well as “the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       The plaintiff testified that while she knew of the $15,000 when it was applied to the purchase of the family home, she “assum[ed]” the $15,000 payment was a gift from the defendant’s family corporation.

       In its memorandum of decision, the trial court expressly noted, prior to stating its orders and after thoroughly discussing the facts, that it reviewed “all of the facts found” and the “statutory provisions.”


author: Callahan, J.

text:
    Dominic J. Orticelli v. Suzanne Powers et al.
    (12198)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.

      Argued April 12
    decision released July 23, 1985

      Donald A. Mitchell, for the appellant-appellee (plaintiff).

      Richard A. Johnson, with whom was C. Harold Schwartz, for the appellees-appellants (defendants).
   Callahan, J.

The plaintiff, Dominic Orticelli, brought this action on July 6,1981, pursuant to the federal Civil Rights Act of 1871; 42 U.S.C. § 1983; against the defendants, the town of Bethel’s board of education and its members (hereinafter referred to as the board), seeking monetary damages and injunctive relief for the wrongful termination of his teaching contract, allegedly on July 1,1978. The trial court rendered summary judgment for the board on the grounds that there was no genuine issue of material fact as to when the plaintiff’s cause of action accrued and that his cause of action was barred by both the two year statute of limitations contained in General Statutes § 7-101a (d) and the three year statute of limitations contained in General Statutes § 52-577. The plaintiff appeals from that judgment and claims that the trial court erred in (1) finding that no genuine issue of material fact existed with respect to the running of the applicable statutes of limitation; (2) applying General Statutes § 7-101a (d) as a bar to his cause of action; and (3) applying General Statutes § 52-577 as a bar to his cause of action when it was not raised as a special defense by the defendants. The defendants in their cross appeal claim that the trial court erred in (1) failing to find, as a matter of law, that the plaintiff abandoned his position and was not terminated; and (2) failing to find, as a matter of law, that the plaintiffs cause of action, if any, accrued on or about February 15, 1978. Because we find error in the trial court’s application of General Statutes §§ 7-101a and 52-577 as barring the plaintiff’s cause of action, it is unnecessary to address the factual issues raised in the plaintiff’s first claim or in the defendants’ claims on their cross appeal.

I

The plaintiff claims that the trial court erred in applying the time limitations of General Statutes § 7-101a (d) as a bar to his cause of action. The trial court concluded that the applicability of General Statutes § 7-101a (d) to a cause of action under 42 U.S.C. § 1983 was “somewhat questionable.” It went on to find, however, that the limitation and notice provisions of § 7-101a (d) had not been complied with and that the plaintiff’s cause of action was therefore barred under § 7-101a (d). We find that General Statutes § 7-101a is an indemnification statute and that the notice and time limitation provisions contained in § 7-101a (d) have no application to the plaintiff’s 42 U.S.C. § 1983 action.

General Statutes § 7-101a (a) mandates that municipalities “protect and save harmless any municipal officer, whether elected or appointed, of any board . . . of such municipality from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence, or for alleged infringement of any person’s civil rights, on the part of such officer or such employee while acting in the discharge of his duties.” Subsection (b) provides that “[i]n the event such officer or employee has a judgment entered against him for [malicious, wanton or wilful or ultra vires acts] in a court of law, such municipality shall be reimbursed by such officer or employee for expenses it incurred in providing such defense . . . Subsection (d) contains a time limitation on such actions which states that “[n]o action shall be maintained under this section against such municipality or employee unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action . . . has been filed with the clerk of such municipality within six months after such cause of action has accrued.” (Emphasis added.)

The plaintiffs cause of action was not maintained under General Statutes § 7-101a. Rather it was a direct action against the board and its members pursuant to 42 U.S.C. § 1983. Although the defendants concede that General Statutes § 7-101a does not specifically authorize a civil rights action against a municipal employee, they argue that the limitation period is expressly made applicable to the plaintiffs action against the municipal employees by the phrase in General Statutes § 7-101a (d) which reads “[n]o action shall be maintained . . . against such . . . employee . . . .” (Emphasis added.) They reason that the legislature intended by the inclusion of this phrase that the coverage of the statute should be broader than the indemnification action, and that the two year period should apply both to the original claim against the municipal employee and any indemnification action by the municipal employee against the town. We disagree.

A primary rule of statutory construction is that if the language of the statute is clear, it is presumed that the words express the intent of the legislature. State v. Smith, 194 Conn. 213, 222, 479 A.2d 814 (1984); Gomeau v. Forrest, 176 Conn. 523, 526, 409 A.2d 1006 (1979). The court must interpret the statute as written; Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980); and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. Peck v. Jacquemin, 196 Conn. 53, 63, 491 A.2d 1043 (1985); Seaman v. Climate Control Corporation, 181 Conn. 592, 605, 436 A.2d 271 (1980). By its terms, General Statutes § 7-101a (a) is a provision in this indemnification statute which protects municipal officers and full-time municipal employees from financial loss and expenses arising out of damage suits, including civil rights suits. See Ahern v. New Haven, 190 Conn. 77, 79-81, 459 A.2d 118 (1983). Subsection (d) of General Statutes § 7-101a specifically limits its application to actions maintained under General Statutes § 7-101a. The phrase “or employee” in § 7-101a (d) does not broaden the application of the time limitation provision to the direct action brought against a municipal employee, because such an action is not one which is maintained under § 7-101a. Rather, it refers to and places a time limitation on the action a municipality can take against an employee for reimbursement of defense expenses pursuant to General Statutes § 7-101a (b) in cases involving malicious, wanton and wilful or ultra vires acts of municipal officers and employees. A plain reading of the whole statute indicates that the limitation and notice provisions of § 7-101a (d) are applicable only to actions for indemnification maintained under § 7-101a (a) and to an action for reimbursement of defense expenses pursuant to § 7-101a (b). We therefore find error in the trial court’s application of General Statutes § 7-101a (d) as a bar to the plaintiff's civil rights action.

II

The plaintiff’s second claim is that the trial court erred in concluding that General Statutes § 52-577 is a bar to his cause of action when the defendants had not specially pleaded that provision. The trial court indicated in its decision that General Statutes § 52-577 was more likely the operative statute of limitations in a 42 U.S.C. § 1983 action, and it concluded that the plaintiffs legal claim for damages and his equitable claims were barred by this provision. The court did not address the defendants’ failure to plead this statute as a special defense to the plaintiff’s cause of action.

The rules of practice in Connecticut require that all pleadings be closed before a party may move for summary judgment. Practice Book § 379. In deciding a motion for summary judgment, the trial court is limited to considering the pleadings, affidavits, and other documentary proof submitted by the parties. Practice Book § 384. Where the trial court wishes to raise a statute of limitations issue which has not been raised by the parties, the question becomes whether the limitation is considered procedural or jurisdictional. See L. G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 513, 356 A.2d 144 (1975); Hillier v. East Hartford, 167 Conn. 100, 355 A.2d 1 (1974); Diamond National Corporation v. Dwelle, 164 Conn. 540, 325 A.2d 259 (1973). The general rule is that where the right of action exists independently of the statute in which the limitation is found, such a statutory bar is considered personal and procedural, and it is deemed waived unless it is specially pleaded. See Practice Book §§ 164, 109A; L. G. DeFelice & Son, Inc. v. Wethersfield, supra, 511. This is so because it is considered that the limitation acts as a bar to a remedy otherwise available. Id. In these instances, a trial court may not raise the limitation on its own motion. Where, however, a specific limitation is contained in the statute which establishes the remedy, the remedy exists only during the prescribed period and not thereafter. In this situation, the court may properly raise the statute of limitations issue on its own motion because it is considered substantive or jurisdictional, and not subject to waiver. See Practice Book § 145; L.G. DeFelice & Son, Inc. v. Wethersfield, supra.

Applying this analysis to the present case leads to the conclusion that General Statutes § 52-577 is procedural, not jurisdictional, and thus may be waived. There is no limitation provision contained in 42 U.S.C. § 1983 setting forth a time period within which the right must be enforced. See Wilson v. Garcia, 471 U.S. 261, 266-67,105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985). Where Congress has not established a time limitation for a federal cause of action, the settled practice has been to adopt a local limitation if it is not inconsistent with federal law or policy to do so. The length of the limitations period, and related questions of tolling and application, are to be governed by state law. Id. The trial court stated in its memorandum of decision that the three year statute of limitations contained in General Statutes § 52-577 has been held as the operative statute of limitations in a § 1983 action. See Williams v. Walsh, 558 F.2d 667, 670-71 (2d Cir. 1977); Members of Bridgeport Housing Authority Police Force v. Bridgeport, 85 F.R.D. 624, 637 (D. Conn. 1980). While this is true, it does not obviate the need specially to plead the statute as a special defense. See Practice Book §§ 164,109A. The limitation contained in § 52-577 is a general limitation on actions founded upon tort. The statutory cause of action under 42 U.S.C. § 1983 and the limitation contained in General Statutes § 52-577 were created at different times by different authorities. See Diamond National Corporation v. Dwelle, supra, 544. Moreover, the limitation in § 52-577 does not contain words of condition, nor is it directed to the civil rights liability so specifically as to warrant holding that it qualifies the right of action under 42 U.S.C. § 1983. Id. We therefore find error in the trial court’s raising the issue sua sponte and applying it to bar the plaintiffs cause of action.

There is error, the judgment is set aside and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       Our mention of the defendants’ cross appeal should not be understood to sanction it, since the defendants were not aggrieved by the judgment of the trial court which was rendered in their favor. See Practice Book § 3003. Practice Book § 3012 (a) provides in relevant part: “If the appellee wishes to present for review alternate grounds upon which the judgment may be affirmed ... he may file a preliminary statement of issues within fourteen days from the filing of the appeal.” The defendants did file such a preliminary statement of issues, which included those claims raised in their cross appeal. This was the proper appellate procedure in this case, rather than the filing of a cross appeal.

       “[General Statutes] Sec. 7-101a. protection of municipal officers AND FULL-TIME MUNICIPAL EMPLOYEES FROM DAMAGE SUITS. REIMBURSEMENT OF DEFENSE EXPENSES. LIABILITY INSURANCE. TIME LIMIT FOR FILMS. NOTICE, (a) Each town, city, borough, consolidated town and city and consolidated town and borough shall protect and save harmless any municipal officer, whether elected or appointed, of any board, committee, council, agency or commission, or any full-time municipal employee, of such municipality from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence, or for alleged infringement of any person’s civil rights, on the part of such officer or such employee while acting in the discharge of his duties.
      “(b) In addition to the protection provided under subsection (a) of this section, each town, city, borough, consolidated town and city and consolidated town and borough shall protect and save harmless any such municipal officer or full-time municipal employee from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand or suit instituted against such officer or employee by reason of alleged malicious, wanton or wilful act or ultra vires act, on the part of such officer or employee while acting in the discharge of his duties. In the event such officer or employee has a judgment entered against him for such act in a court of law, such municipality shall be reimbursed by such officer or employee for expenses it incurred in providing such defense and shall not be held liable to such officer and employee for any financial loss or expense resulting from such act.
      “(c) Each such municipality may insure against the liability imposed by this section in any insurance company organized in this state or in any insurance company of another state authorized to write such insurance in this state or may elect to act as self-insurer of such liability.
      “(d) No action shall be maintained under this section against such municipality or employee unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued.”

       The Supreme Court held in Wilson v. Garcia, 471 U.S. 261, 276, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985), that 42 U.S.C. § 1983 actions are best characterized as personal injury actions for the purpose of determining the applicable statute of limitations.


author: Shea, J.

text:
    State of Connecticut v. Reginald Martin
    (12555)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued May 7
    decision released July 23, 1985

      Laurence S. Hopkins, assistant public defender, for the appellant (defendant).

      Robert A. Lacobelle, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Shea, J.

On May 9, 1984, the defendant entered a written plea of nolo contendere to the charge of larceny in the first degree as defined in General Statutes §§ 53a-119 and 53a-122 (a) (3). The plea was accepted by the court, Melville, J., and, following the defendant’s waiver of his right to a presentence investigation report, he was sentenced, pursuant to an earlier plea bargain, to a term of five years in prison, suspended after three years, with one year of probation. On May 24,1984, however, more than two weeks after he had been sentenced, the defendant filed a motion to withdraw his earlier plea of nolo contendere. The motion was denied by the court on May 30,1984. The defendant has appealed, claiming that the trial court erred in denying his motion to withdraw his plea of nolo contendere because the state’s failure to provide exculpatory evidence nullified the voluntary and intelligent character of his plea. We find no error in the trial court’s ruling.

On June 20, 1983, at approximately 3:40 a.m., an employee at the Stratford transfer station arrived at work and discovered that two Mack trucks, each valued at $27,500, had been stolen. The Stratford police were immediately notified and given a description of each vehicle. Later, at approximately 6:30 a.m., the Stratford police were informed by the state police that Trooper Joseph Froehlich and another trooper had stopped these vehicles at approximately 12:35 a.m. and had issued summonses for equipment violations to the operators. The operator of one of the trucks identified himself with a New Jersey operator’s license as the defendant, Reginald Martin, residing at 782 Ocean Avenue, Jersey City, New Jersey.

On June 21, 1983, the Stratford police obtained a “mugshot” of the defendant from the Jersey City police department. On June 27, 1983, Froehlich was shown a photographic array containing nine color photographs of black males. He “immediately and without hesitation” selected the defendant’s photograph as depicting the truck operator who had earlier identified himself as Reginald Martin, and to whom he had issued a summons. The defendant was arrested in New Jersey on a fugitive from justice warrant and subsequently waived extradition to Connecticut.

On September 22,1983, the defendant, through counsel, filed a discovery motion which, inter alia, contained a general request for disclosure of exculpatory information or materials, citing General Statutes § 54-86c, Practice Book § 741 (1), and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). This motion was granted by the court. After an arrest warrant for an alleged coparticipant in the truck thefts had been vacated because of a claimed incorrect police identification, the defendant filed a motion for supplemental disclosure to discover whether Froehlich had also identified the suspect who had been erroneously charged. This motion was denied without prejudice to its renewal at time of trial. The same ruling was made concerning the defendant’s motion to suppress Froehlich’s photographic identification of him. Follow ing denial of the defendant’s pro se motion to dismiss this case based on the state’s failure to disclose the previously requested information concerning Froehlich, the defendant entered his plea of nolo contendere. This plea was accepted after the court properly canvassed the defendant pursuant to Practice Book § 711.

We begin our analysis with Practice Book § 720, which specifically prohibits the withdrawal of a plea of guilty or nolo contendere “after the conclusion of the proceeding at which the sentence was imposed.” Practice Book § 720; State v. Kiss, 3 Conn. App. 400, 488 A.2d 845 (1985). This section, restricting the authority of a court to permit withdrawal of a plea, is applicable to the defendant’s May 24, 1984 motion to withdraw, which was filed fifteen days after the proceeding at which he was sentenced.

In spite of Practice Book § 720, the defendant asserts that our case law establishes an exception that permits a postsentencing attack on the “voluntary and intelligent character of his plea” and allows withdrawal thereof if constitutional standards were not met when the court accepted the plea. We do not agree that the cases cited support the defendant’s attempt to withdraw his plea in this case.

This court in State v. Childree, 189 Conn. 114, 454 A.2d 1274 (1983), allowed a defendant to withdraw his guilty plea after sentence had been imposed. In Childree, the defendant pleaded guilty to, inter alia, larceny in the first degree. Id., 115. Because the court failed to apprise the defendant of an element critical to the larceny offense and the record did not indicate that the defendant’s counsel had adequately explained the larceny charge to him, however, we held that his plea was not “knowingly and voluntarily” made, in the sense that it did not constitute an intelligent admission that he had received “ ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’ ” Id., 121, quoting Henderson v. Morgan, 426 U.S. 637, 645, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976); Smith v. O’Grady, 312 U.S. 329, 334, 61 S. Ct. 572, 85 L. Ed. 859 (1941).

The defendant also relies on State v. Anonymous (1980-9), 36 Conn. Sup. 578, 421 A.2d 557 (1980), in which the Appellate Session of the Superior Court allowed the postsentencing withdrawal of a guilty plea that the trial court had accepted without explaining to the defendant that his plea operated as a waiver of his right to trial by jury and his right to confront witnesses. Again, as in Childree, it was clear from the record that the trial court had failed to advise the defendant that his plea constituted a waiver of some of his constitutionally protected rights. It was also significant in Anonymous that the state neither contested the fact that the taking of the plea was defective, nor objected to the defendant’s postsentencing withdrawal. Id., 579.

In both Childree and Anonymous a defendant was allowed to withdraw his plea after sentence had been imposed. Superficially these cases appear to conflict with Practice Book § 720. In each case, however, it was clear on the record that the defendant's constitutional rights were violated by an improper canvass and a failure to advise the defendant of the consequences of his plea.

The acceptance of a plea of guilty or nolo contendere is governed by federal constitutional standards as well as state rules of practice. “Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination .... [s]econd, is the right to trial by jury . . . [t]hird, is the right to confront one’s accusers.” Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Further, under the Connecticut rules of practice, a trial judge must not accept a plea of nolo contendere without first addressing the defendant personally and determining that the plea is voluntarily made under Practice Book § 712 and that the defendant fully understands the items enumerated in Practice Book § 711. State v. Godek, 182 Conn. 353, 357, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981); State v. Battle, 170 Conn. 469, 473, 365 A.2d 1100 (1976); State v. Bugbee, 161 Conn. 531, 533, 290 A.2d 332 (1971). The record clearly indicates that the defendant, Reginald Martin, was properly canvassed and completely understood his waiver of constitutional rights.

The defendant does not claim that the trial court failed to comply substantially with the provisions of Practice Book § 711 or that the record fails to satisfy constitutional requirements for the acceptance of his plea. See Boykin v. Alabama, supra, 243. Indeed, he concedes that the canvass was proper. The defendant indicated that he had discussed his plea with his attorney and understood its ramifications. He was aware that a plea of nolo contendere was tantamount to a plea of guilty, and was cognizant of the agreed upon sentencing recommendation, which the court ultimately followed. Upon inquiry, the defendant’s counsel said he knew of no reason why the court should not accept the plea. The trial court properly ruled, at the close of the canvass, that the defendant’s plea was voluntary, made with full knowledge of the consequences and made with effective assistance of counsel.

It is in this fashion that Childree and Anonymous differ from the instant case. The records in those cases evidenced a clear constitutional deficiency in the trial court’s acceptance of the plea. The defendant in this case merely raises an unsubstantiated claim that another suspect in the crime was misidentified by the same police officer who identified the defendant. He contends that the disclosure of such misidentification by the police officer who had identified him not only would be exculpatory, but would negate the voluntary nature of his plea.

It is important to note that the defendant could have acquired this claimed exculpatory evidence had he pursued his earlier motions for disclosure of this information and to suppress Froehlich’s identification of him. He chose, however, not to pursue these avenues and instead entered a plea of nolo contendere. The defendant clearly understood his right to renew his motions for further disclosure and for a suppression hearing. His “intentional relinquishment” of these rights functioned as a waiver. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); State v. Shockley, 188 Conn. 697, 706, 453 A.2d 441 (1982); Talton v. Warden, 171 Conn. 378, 385-86, 370 A.2d 965 (1976). A plea of nolo contendere is a waiver of all nonjurisdictional defects, including federal constitutional claims, which might otherwise be raised by way of defense, appeal or collateral attack. United States v. Warden of Attica State Prison, 381 F.2d 209, 212 (2d Cir. 1967); Dukes v. Warden, 161 Conn. 337, 343, 288 A.2d 58 (1971), aff'd, 406 U.S. 250, 92 S. Ct. 1551, 32 L. Ed. 2d 45, reh. denied, 407 U.S. 934, 92 S. Ct. 2464, 32 L. Ed. 2d 817 (1972); Consiglio v. Warden, 160 Conn. 151, 166, 276 A.2d 773 (1970).

We affirm the lower court’s denial of the defendant’s motion to withdraw his plea because of its lack of timeliness, as provided by Practice Book § 720, and because his plea, on the record, was knowing and voluntary. We do not reach the question whether evidence of the information concerning the claimed misidentification of an accomplice by Froehlich would vitiate the defendant’s plea on the ground that his plea was not sufficiently knowledgeable in the absence of such disclosure. In order to determine whether or not the information sought was truly exculpatory, evidence would be required as to the claimed erroneous identification. Additional evidence would be required concerning the defendant’s decision to forego renewal of his motions and to enter a nolo contendere plea. Such inquiries are better pursued, as we have recently held in cases concerning inadequacy of counsel, by habeas corpus proceedings. State v. Rivera, 196 Conn. 567, 494 A.2d 570 (1985); Myers v. Manson, 192 Conn. 383, 393, 472 A.2d 759 (1984); State v. Lasher, 190 Conn. 259, 460 A.2d 970 (1983); State v. Mason, 186 Conn. 574, 442 A.2d 1335 (1982).

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-U9. larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       “[General Statutes] Sec. 53a-122. larceny in the first degree: class b felony, (a) A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and: (1) the property or service, regardless of its nature and value, is obtained by extortion, (2) the value of the property or service exceeds ten thousand dollars, (3) the property consists of a motor vehicle having a value exceeding two thousand dollars, or (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars. ...”

       The defendant also filed a motion to reargue the motion to withdraw his plea and requested a hearing on the same. The motion to reargue was denied by the court and the defendant included that ruling in this appeal, claiming that he was entitled to a hearing on the withdrawal of his plea. This claim is controlled by our disposition of the underlying issue.

       A judgment “without prejudice” may be rendered in those situations where there is some reasonable ground for a conclusion that the issues should not be finally decided in the existing situation. Bright v. Zoning Board of Appeals, 149 Conn. 698, 704, 183 A.2d 603 (1962). “The effect of a denial of a motion or application ‘without prejudice’ will often prevent that ruling from becoming res judicata upon its merits and leave the matter open for further presentation and consideration in the same or another proceeding.” Varanelli v. Luddy, 130 Conn. 74, 80, 32 A.2d 61 (1943).

       “[Practice Book] Sec. 711.--advice to dependant
      “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”

       “[Practice Book] Sec. 720. —when allowed
      “A defendant may withdraw his plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”

       A plea of nolo contendere has the same legal effect as a plea of guilty on all further proceedings within the indictment. North Carolina v. Alford, 400 U.S. 25, 35-36 n.8, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); Lawrence v. Kozlowski, 171 Conn. 705, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977); see State v. Godek, 182 Conn. 353, 363-64, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981). The only practical difference is that the plea of nolo contendere may not be used against the defendant as an admission in a subsequent criminal or civil case. 4 Wigmore, Evidence (Chadbourn Rev. 1972) § 1066 (2), p. 81; Lenvin & Meyers, “Nolo Contendere: Its Nature and Implications,” 51 Yale L.J. 1255 (1942).

       We point out that if the defendant had sought to withdraw his plea before sentencing, his claim would be evaluated on the basis of the requirements of Practice Book § 721. See State v. Torres, 182 Conn. 176, 185, 438 A.2d 46 (1980); State v. Slater, 169 Conn. 38, 362 A.2d 499 (1975); Szarwak v. Warden, 167 Conn. 10, 355 A.2d 49 (1974).

       “[Practice Book] Sec. 712.--insuring that the plea is VOLUNTARY
      “The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting authority and the defendant or his counsel.”

       “The Court: All right. The crime of Larceny in the First Degree involving a motor vehicle requires that the State establish an intent to steal that vehicle as to deprive the owner of his property personally and that the value of the vehicle be in excess of two thousand dollars.
      “Mr. Fawcett: They were valued, your Honor, in excess of twenty-seven thousand dollars, each vehicle.
      “The Court: I understand that. And those are the things that the State would have to prove to prove the crime of Larceny in the First Degree, as charged here.
      “Do you understand my explanation of that offense to you?
      “The Defendant: I understand.”

       “The Court: Do you understand by entering a plea of nolo contendere I am required to make a finding of guilty? This, in all respects, except for civil litigation, amounts to a plea of guilty.
      “Do you understand that?
      “The Defendant: Yes.
      “The Court: You further understand by entering such a plea you are giving up your right to a jury trial?
      “The Defendant: Yes.
      “The Court: Giving up your right to confront witnesses against you?
      “The Defendant: Yes
      “The Court: Giving up your right against self-incrimination?
      “The Defendant: Yes.”

       This broad waiver of rights has been altered slightly by statute. General Statutes § 54-94a provides that a defendant may enter a plea of nolo contendere, conditional on the right to take an appeal from the trial court’s denial of the defendant’s motion to suppress or motion to dismiss when based on an unreasonable search and seizure. A plea of nolo contendere under this section does not constitute a waiver of all nonjurisdictional defects. See State v. Ross, 189 Conn. 42, 50 n.4, 454 A.2d 266 (1983). This statute, of course, is not applicable to the present case.

       We note that in federal practice a defendant who desires to withdraw his plea after sentence has been imposed must seek relief under 28 U.S.C. § 2255, while withdrawal prior to sentencing is permitted for “any fair and just reason.” Fed. R. Crim. P. 32 (d). Under the statute referred to by the rule, the defendant must show that the trial court’s acceptance of his plea constituted “a fundamental defect which inherently results in a complete miscarriage of justice,” or “an omission inconsistent with the rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424, 426, 82 S. Ct. 468, 7 L. Ed. 2d 417, reh. denied, 369 U.S. 808, 82 S. Ct. 640, 7 L. Ed. 2d 556 (1962). A hearing analogous to that required for a habeas corpus petition is ordinarily required where a motion for relief under § 2255 is filed.


author: Peters, C. J.

text:
    Carol Daginella, Administratrix (Estate of George Daginella) v. Foremost Insurance Company et al.
    (12476)
    (12477)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.

      Argued May 8
    decision released July 23, 1985

      Joseph T. Sweeney, for the appellant (named defendant).

      James O. Shea, for the appellant (defendant Massachusetts Bay Insurance Company).

      Daniel J. Mahaney, for the appellee (plaintiff).
   Peters, C. J.

The principal issue on these appeals is whether a Superior Court decision providing advice to an arbitrator pursuant to General Statutes § 52-415 is a final judgment appealable to this court. The plaintiff Carol Daginella, administratrix of the estate of George Daginella, entered into arbitration with the defendants, Massachusetts Bay Insurance Company and Foremost Insurance Company, to determine the amount of insurance owed to the plaintiff as a result of the decedent’s death in a motorcycle accident. In their written submission of arbitration, the parties stipulated that the arbitrator would apply to the Superior Court for advice on the resolution of two questions of law, pursuant to General Statutes § 52-415, and that the court’s resolution of these questions would be final and would bind the arbitrator in making his award. Upon the arbitrator’s motion for advice, the court, J. Healey, J., rendered judgment and filed a memorandum of decision. The arbitrator subsequently made an award that conformed to the court’s advice. Both defendants filed appeals from the Superior Court’s judgment.

The relevant facts are undisputed. George Daginella was killed when the motorcycle he was operating collided with a motor vehicle operated by Nathaniel Ecklin. The parties stipulated that Ecklin was liable to the plaintiff for the death of Daginella for damages in excess of $60,000 but had insurance coverage of only $25,000. This sum was paid to the plaintiff and the parties agreed that it would be credited towards any coverage available to the plaintiff through the decedent’s motor vehicle insurance policies.

The decedent was insured by Foremost Insurance Company and Massachusetts Bay Insurance Company. The Foremost policy provided $20,000 uninsured motorist coverage on the motorcycle, but by its terms did not provide underinsured motorist coverage. The Massachusetts Bay policy provided $20,000 in both uninsured and underinsured motorist coverage on two of the decedent’s vehicles other than the motorcycle.

Having found the above facts, the arbitrator submitted two questions to the court for resolution: “(1) Whether or not the Foremost insurance policy, either by virtue of its own contract language or by virtue of § 38-175c of the General Statutes, provides underinsured, as distinct from uninsured, motorist coverage applicable to this Daginella claim? (2) To how much credit is either or each insurance carrier entitled by virtue of the above identified $25,000 payment as a set-off against any payment which either or each of those carriers might be required to make on this Daginella claim?” In response to this submission, the court found that “Section 38-175a of the General Statutes mandates the inclusion of underinsured coverage in the Foremost policy.” It also found that each insurance policy contains a “pro-rata” provision. In accord with this provision, each company is entitled to a share of the $25,000 credit “proportionate to the limit of underinsured motorist coverage which it provides.”

The two defendants raise different claims of error on appeal. Foremost asserts that the trial court erred in interpreting General Statutes § 38-175c to apply to a motorcycle liability policy. Massachusetts Bay claims that the trial court erred in applying the pro rata provision of its policy. We do not reach either of these issues because we conclude, as the plaintiff has argued, that the appeals were not taken from a final judgment and accordingly must be dismissed for lack of subject matter jurisdiction.

As prescribed by statute, appeals to this court may be taken only from final judgments of the Superior Court. General Statutes § 52-263; State v. Southard, 191 Conn. 506, 508, 467 A.2d 920 (1983); State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). The final judgment in an arbitration proceeding is ordinarily an order of the court vacating, modifying or confirming the arbitrator’s award. General Statutes § 52-423. A judgment providing advice to the arbitrator is made before an arbitral award is rendered and thus before a final judgment on that award can be obtained. Because it occurs in the midst of the arbitration process, such advice is necessarily interlocutory in nature.

The conclusion that an order is interlocutory does not, however, definitively resolve the question whether that order is immediately appealable. We have 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.” State v. Curcio, supra, 31. Therefore, we must determine whether the court’s judgment pursuant to General Statutes § 52-415 fits within either of these two exceptions.

The trial court’s ruling in this case does not fall within the exception of an order that “ ‘terminates a separate and distinct proceeding.’ ” As we held in State v. Parker, 194 Conn. 650, 653, 485 A.2d 139 (1984), rulings that directly affect the merits of a controversy do not pass this part of the Curcio test. Applying Parker here, we conclude that the trial judge’s rulings were determinative of the amount owed by the insurance companies to the plaintiff. The arbitrator was bound to make his award based on the court’s advisory judgment. Thus, the judgment of the court was not a separate and distinct proceeding but “merely a step along the road to final judgment.” State v. Parker, supra, 653.

Nor does the trial court’s ruling meet the requirements of the second Curcio exception. Our focus in this part of the inquiry is “not on the proceeding involved, but on the potential harm to the appellant’s rights.” State v. Curcio, supra, 33. An otherwise interlocutory order will be reviewable if immediate appellate review is necessary to prevent the irreparable loss of a cognizable legal right. State v. Parker, supra, 656; State v. Curcio, supra, 34. An essential predicate to the applicability of this test is the identification of jeopardy to a statutory or constitutional right that the interlocutory appeal seeks to vindicate. State v. Curcio, supra, 34. The defendants have not established that they have such a right that must be vindicated presently.

In general, parties who have entered into arbitration have a right to an award that conforms to the submission. Naugatuck v. AFSCME, 190 Conn. 323, 325, 460 A.2d 1285 (1983); Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983); Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 21, 453 A.2d 1158 (1983). If the arbitrator has abused his authority and rendered a nonconforming award, a party can apply to the Superior Court for vacation or modification of the award; General Statutes §§ 52-418, 52-419; and for subsequent appellate review. General Statutes § 52-423. The question here is whether § 52-415 creates any additional rights that cannot be vindicated by this process. We conclude that it does not.

By its terms, § 52-415 gives the parties the right to an award that conforms to the advice of the court. Whether or not this right has been violated is a matter that cannot be determined until there has been an award. Cf. Conte v. Norwalk, 173 Conn. 77, 80, 376 A.2d 412 (1977). Intermediate review of the trial court’s ruling prior to an award would, therefore, not serve to protect this right.

The defendants appear to argue, however, that § 52-415 also confers upon them the right to an award that conforms not just to the advice of the court on certain questions, but to the law of this state applicable to those questions. Since it is possible that the trial court’s advice may have been in error, they claim that vindication of such a right implicates immediate access to appellate review. According to the defendants, § 52-415 must be construed to create an exception to the general rule that “[i]f a submission is unrestricted, the arbitrators are not required to decide the issues according to law and the award cannot be reviewed for errors of law or fact.” Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 106, 438 A.2d 1171 (1981).

There are several answers to this argument. First, the language of the statute militates against the availability of any appellate review. The statute expressly provides, in relevant part, that the advice of the court shall be “final as to the question determined and that it shall bind the arbitrators in rendering their award.” If the legislature had intended to create a statutory exception to the rules generally governing arbitration, it is unlikely that the advice of the court would have been characterized as “final.” Second, and even more significant, however, is the lack of a necessary connection between a right to an award that conforms to the law and immediate appealability of § 52-415 advice. Even if we were to assume, arguendo, that General Statutes § 52-415 creates a right to appellate review of legal conclusions that is broader than that normally afforded in arbitration pursuant to General Statutes § 52-418, such a right can readily be vindicated on appeal from a final judgment following the arbitral award. For these reasons, the judgment of advice rendered pursuant to General Statutes § 52-415 falls outside the second as well as the first Curcio exception and is not an appealable final judgment.

Our conclusion that the judgment of the court is not immediately appealable comports with the policies underlying arbitration. “Arbitration affords a contractual remedy with a view toward expediting disputes.” Naugatuck v. AFSCME, supra, 326. Arbitration is favored because it “is intended to avoid the formalities, delay, expense and vexation of ordinary litigation.” Bridgeport v. Bridgeport Police Local 1159, supra, 107; see generally note, “Arbitration in Connecticut: Issues in Judicial Intervention Under the Connecticut Arbitration Statutes,” 17 Conn. L. Rev. 387 (1985). General Statutes § 52-415 offers parties to arbitration the unusual opportunity of seeking expert legal assistance; see Domke, Commercial Arbitration (Rev. Ed. Wilner 1985) § 25:06; but it is designed to enhance, not to frustrate, the process of rapid, informal dispute resolution. Prohibiting interlocutory appellate review limits disruption and delay and prevents the arbitration process from being overtaken by litigation.

The appeals are dismissed.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 52-415. arbitrators may ask advice of courts. At any time during an arbitration, upon request of all the parties to the arbitration, the arbitrators or an umpire shall make application to any designated court, or to any designated judge, for a decision on any question arising in the course of the hearing, provided such parties shall agree in writing that the decision of such court or judge shall be final as to the question determined and that it shall bind the arbitrators in rendering their award. An application under tMs section may be heard in the manner provided by law for the hearing of written motions at a short calendar session, or otherwise as the court or judge may direct.”

       The “Agreement for Submission of Issues to Arbitrator and for Judicial Review and Resolution of Legal Issues” contained the following stipulation: “That said Arbitator will make appropriate findings of underlying facts, but will, pursuant to Section 52-415 of the Connecticut General Statutes, apply to the Connecticut State Superior Court for advice on the resolution of the following stated issues of law, and the advice of the Court on those issues shall be binding on the Arbitrator and shall control the outcome of this claim . . . . ” The issues of law submitted to the Superior Court can be found at p. 29 of this opinion.

       The defendants did not appeal from the award itself by filing a motion to vacate or to modify the award in the Superior Court within the statutorily required period of thirty days from notice of the award. General Statutes § 52-420 (b).

       The plaintiff originally raised the jurisdictional issue by filing a motion to dismiss the appeal, a motion that we denied without prejudice to its renewal at the time of full argument. The issue was, in accordance with our order, further discussed in the parties’ appeal briefs.

       “[General Statutes] Sec. 52-423. appeal. An appeal maybe taken from an order confirming, vacating, modifying or correcting an award, or from a judgment or decree upon an award, as in ordinary civil actions.”

       We have held that a court order directing the parties to proceed to arbitration “terminates a separate and distinct proceeding” and is therefore appealable. Dewart v. Northeastern Gas Transmission Co., 139 Conn. 512, 514, 95 A.2d 381 (1953). Such an order is not ancillary to arbitration but preliminary to it.

       At oral argument, counsel for Massachusetts Bay argued that the submission invoking General Statutes § 52-415 was a restrictive submission like that at issue in Chase Brass & Copper Co. v. Chase Brass & Copper Workers Union, 139 Conn. 591, 595-96, 96 A.2d 209 (1953), in which “ ‘the parties agreed to accept the award as final and binding “providing it is not contrary to law.” ’ ” Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20 n.6, 453 A.2d 1158 (1983), quoting Chase Brass & Copper Co. v. Chase Brass & Copper Workers Union, supra, 594-95. Even if we were to assume, arguendo, that the invocation of General Statutes § 52-415 in effect created a restricted submission, thereby permitting appellate review of questions of law, such review would be available following the rendering of the arbitral award and would not require interlocutory review of the § 52-415 judgment.

       We have previously indicated that General Statutes § 52-415 is available to parties who wish “to raise novel and complex questions of law and fact.” Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 23 n.9, 453 A.2d 1158 (1983); see Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 216, 470 A.2d 1219 (1984). We do not decide today whether advice rendered pursuant to General Statutes § 52-415 is ultimately reviewable through the normal process of appeal from an arbitrator’s award.


text:
    United States Trust Company v. James T. Bohart, Sr., et al.
    (12234)
    Peters, C. J., Healey, Shea, Dannehy and Stoughton, Js.

      Argued May 7
    decision released July 30, 1985

      Leo Nevas, with whom, on the brief, were Laurence Sarezky, Jamie K. Gerard, Lisa M. Lopez and Tom James, for the appellants (defendants).

      Gary A. MacMillan, with whom were John F. Spindler and, on the brief, Cynthia C. George, for the appellee (plaintiff).
   Peters, C. J.

The principal issue raised by this appeal is whether personal jurisdiction was properly exercised over Texas beneficiaries of a trust created by Connecticut residents. The plaintiff United States Trust Company brought suit for approval of its account as trustee for a terminated inter vivos trust. The defendants, minor beneficiaries of that trust and their guardian, filed a counterclaim in which they sought immediate disbursement of the trust assets and damages for the plaintiffs alleged breach of its fiduciary duties in managing the trust. The trial court held for the plaintiff on both the complaint and the counterclaim, and the defendants appealed. We find no error.

The facts underlying this appeal are not disputed. In 1943, Richard P. and Elsie Ettinger established a trust for the benefit of Jean Prentice Bohart, their granddaughter. Mr. Ettinger was the founder, president and major shareholder of Prentice-Hall, Inc., a publishing corporation, and Prentice-Hall stock was the principal asset of the trust. Mr. Ettinger served as trustee until 1965, when he resigned and appointed the plaintiff, a New York corporation, as successor trustee. Under the terms of the trust, Jean Bohart was an income beneficiary until she reached the age of thirty-five. On that date she would have become entitled to one half of the trust principal, and would have retained her income interest in the remaining assets. Upon her death, the trust assets were to be distributed to her issue. Because Jean Bohart died on June 17, 1974, before she had attained the age of thirty-five, the entire trust principal became payable to the minor defendants, her children. On August 20,1974, the named defendant, Jean’s husband, was appointed guardian of their children’s estates.

The plaintiff’s complaint was filed on April 21,1975. The case, however, did not come to trial until November, 1982. Meanwhile, on November 14, 1975, the defendants filed a suit in federal district court in Texas, making the same claims raised in their counterclaim. The Texas court dismissed this suit on December 8, 1976, on the ground that the Connecticut court had properly taken jurisdiction of the dispute between the parties. The defendants’ appeal of the dismissal to the United States Court of Appeals for the Fifth Circuit was itself dismissed on March 29, 1977, for failure to file a brief.

On July 19,1978, three-quarters of the principal and accumulated income of the trust was ordered distributed pursuant to the parties’ joint stipulation. On May 27, 1983, the trial court accepted the plaintiff’s final account for the period ending June 17,1974, and, with certain disallowances of expenses, accepted the plaintiff’s supplemental account for the period ending August 31,1982. Accordingly, the trial court rendered judgment for the plaintiff on the defendants’ counterclaim.

The defendants’ claims of error fall into three categories. First, the defendants argue that the trial court lacked personal jurisdiction over them. Second, the defendants contend that the trial court erred in striking their counterclaim from the jury docket. Third, the defendants challenge numerous findings and rulings of the trial court relating to the merits of their allegations of breach of fiduciary duty. We are persuaded by none of these claims.

I

The defendants base their jurisdictional claim on the due process requirement that a defendant “not present within the territory of the forum . . . have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945); see Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 51-52, 459 A.2d 503 (1983). The defendants argue that because they are domiciliaries and residents of Texas and because the trust property has at all relevant times been held and administered in New York by a New York corporation, the trial court lacked personal jurisdiction over them. The plaintiff contends that such jurisdiction obtains because the trust agreement was executed by Connecticut residents, and because the jurisdiction of the trial court was invoked in reliance on the nineteenth paragraph of the agreement, which provides: “This Agreement shall be construed and regulated by the laws of the State of Connecticut and the Trustee shall not be required to account in any Court other than one of the Courts of that State.”

As we recently explained in Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 250, 460 A.2d 481 (1983), analysis of a due process challenge to personal jurisdiction is a two-step process. First, we must inquire into the foundation, under state law, of the trial court’s assertion of jurisdiction over the defendants. Only if personal jurisdiction has attached under state law do we reach the constitutional question of whether due process is offended thereby. The plaintiff ordinarily bears the burden of establishing an adequate factual basis for personal jurisdiction over a defendant. Standard Tallow Corporation v. Jowdy, supra, 53-54. Unlike subject matter jurisdiction, however, personal jurisdiction may be created through consent or waiver. See Insurance Corporation of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 703-704,102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982); Lake Garda Co. v. Lake Garda Improvement Assn., 156 Conn. 61, 65, 238 A.2d 393 (1968); Reed v. Reincke, 155 Conn. 591, 598-99, 236 A.2d 909 (1967).

A

Our inquiry into the state law basis for jurisdiction over the defendants is guided by the unusual nature of this action. The plaintiff did not seek to establish an affirmative claim against the defendants. Instead, it requested judicial approval of its account as trustee as a preliminary step in the distribution of the trust assets to the defendants. The trial court’s exercise of jurisdiction was thus limited to deciding the propriety of the plaintiff’s proposed accounting and the defendants’ challenge thereto.

The record before us reveals an adequate basis for such a limited assertion of jurisdiction. The Superior Court is vested with the equitable power to approve an inter vivos trust accounting. Preston v. Preston, 102 Conn. 96, 121, 128 A. 292 (1925); Second National Bank of New Haven v. Harris Trust & Savings Bank, 29 Conn. Sup. 275, 288, 283 A.2 226 (1971). The settlors were residents of Connecticut at the time the trust was created. The trust agreement specifically provided that the trust was to be administered pursuant to Connecticut law and that an accounting action would be litigated in Connecticut. The defendants, through their interest in the trust, thus had a significant relation to Connecticut for the purposes of this lawsuit. Cf. 1 Restatement (Second), Conflict of Laws (1971) § 39; 1 Restatement (Second), Judgments (1982) § 5.

In addition, while the defendants have consistently-questioned the constitutionality of Connecticut jurisdiction, they have never directly challenged the trial court’s state law authority to render judgment. In their brief, the defendants claimed that they had not been properly served with process, but their claim assumed that there was a valid statutory basis for the assertion of jurisdiction. The defendants’ actions regarding the suit they initiated in Texas further support the conclusion that they waived the issue of the state law basis for jurisdiction. In that suit, the defendants made the same allegations contained in their counterclaim. The Texas court dismissed the action because it found that the Connecticut Superior Court had properly taken jurisdiction over the parties and their dispute. Although the plaintiff did not raise the defense of collateral estoppel below; see Practice Book § 164; the defendants’ failure to pursue their appeal from the judgment of the Texas court militates against any effort to relitigate the question here. See Baldwin v. Iowa State Travelling Men’s Assn., 283 U.S. 522, 51 S. Ct. 517, 75 L. Ed. 1244 (1931); cf. Morabito v. Wachsman, 191 Conn. 92, 96-97, 463 A.2d 593 (1983); Hendrix v. Hendrix, 160 Conn. 98, 104-105, 273 A.2d 890 (1970). The trial court did not err in asserting jurisdiction over the defendants.

B

We now turn to the question of whether this exercise of jurisdiction met with the constitutional requirements of the due process clause. The twin touchstones of due process analysis under the minimum contacts doctrine are foreseeability and fairness. “[T]he foreseeability that is critical to due process analysis . . . is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). This basic tenet of foreseeability has given rise to the specific corollary that “parties to a contract may agree in advance to submit to the jurisdiction of a given court . . . .” National Rental v. Szukhent, 375 U.S. 311, 315-16, 84 S. Ct. 411, 11 L. Ed. 2d 354 (1964). Absent a showing of fraud or overreaching, such forum clauses will be enforced by the courts. The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10-12, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972). At the same time, jurisdiction may not be asserted “in such a way as to make litigation ‘so gravely difficult and inconvenient’ that a party unfairly is at a ‘severe disadvantage’ in comparison to his opponent.” Burger King Corporation v. Rudzewicz, 471 U.S. 462, 478, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). The specific facts of each case necessarily determine the outcome of a minimum contacts analysis. See Kulko v. California Superior Court, 436 U.S. 84, 92, 98 S. Ct. 1690, 56 L. Ed. 2d 132, reh. denied, 438 U.S. 908, 98 S. Ct. 3127, 57 L. Ed. 2d 1150 (1978).

These principles compel the conclusion that the trial court properly exercised jurisdiction over this suit. The defendants should reasonably have foreseen being haled into the Superior Court to defend this case. They held their interest in the trust under the terms of a trust agreement that had been executed by Connecticut residents. The agreement contained a Connecticut choice of laws provision, a factor which the United States Supreme Court has recently held to be relevant when weighing a defendant’s contacts with a forum. See Burger King Corporation v. Rudzewicz, supra, 2187. The defendants do not contend that the trust agreement was the product of fraud. Indeed, given the necessary uncertainty of the location of the remaindermen at the termination of the trust, it was reasonable for the settlors to designate a forum and for the plaintiff to honor that choice. The forum selection portion of paragraph nineteen thus gave the defendants specific notice that any accounting action would be litigated in Connecticut. Nor have the defendants shown that defending this case in Connecticut was gravely and unfairly inconvenient. The defendants were represented by able local counsel and their claims were fully litigated. In sum, in light of all of the circumstances, we conclude that traditional notions of fair play and substantial justice were not violated by the adjudication of this suit in Connecticut.

II

Although the plaintiff addressed its complaint to the court, the defendants claimed their counterclaim for the jury docket. The amended substituted counterclaim is in six counts. The first count charges the plaintiff with having wrongfully refused to distribute the trust assets. The sixth count adds the allegation that this refusal was aimed at forcing the defendants to abandon their claims against the plaintiff. The second count challenges certain expenses claimed by the plaintiff on the ground that they were incurred only because of the failure to effect distribution. The third, fourth and fifth counts allege that the plaintiff mismanaged the trust in breach of its fiduciary duties. The defendants asked for delivery of all trust principal and income, damages, interest, costs and attorney’s fees. The trial court granted the plaintiffs motion to strike the claim for a jury and the defendants duly excepted. The defendants maintain that the trial court’s action violated their rights to a jury trial under article first, § 19, of our Connecticut constitution, as amended, and General Statutes § 52-215.

The defendants’ contention is defeated by the essentially equitable nature of the counterclaim. There is no right to a jury trial in an equitable action. Franchi v. Farmholme, Inc., 191 Conn. 201, 209-10, 464 A.2d 35 (1983); Meriden Savings Bank v. McCormack, 79 Conn. 260, 262, 64 A. 338 (1906). The defendants, however, claim to have raised in their counterclaim issues of law that require determination by a jury. When legal and equitable issues are combined in a single action, whether the right to a jury trial attaches depends upon the relative importance of the two types of claims. “Where incidental issues of fact are presented in an action essentially equitable, the court may determine them without a jury in the exercise of its equitable powers. Doris v. McFarland, 113 Conn. 594, 608, 156 Atl. 52 [1931]. Where, however, the essential basis of the action is such that the issues presented would be properly cognizable in an action of law, either party has a right to have the legal issues tried to the jury, even though equitable relief is asked in order to give full effect to the legal rights claimed; Berry v. Hartford National Bank & Trust Co., 125 Conn. 615, 618, 7 Atl. (2d) 847 [1939]; LaFrance v. LaFrance, 127 Conn. 149, 152, 14 Atl. (2d) 739 [1940] National Bank of Commerce v. Howland, 128 Conn. 307, 310, 22 A.2d 773 (1941). Because a counterclaim is an independent action; see Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985); the question presented is whether the defendants’ counterclaim is essentially legal or essentially equitable. See Franchi v. Farmholme, Inc., supra, 211; Flanigan v. Foley, 20 Conn. Sup. 12, 13, 119 A.2d 741 (1955). This analysis must be performed in the context of the pleadings when read as a whole. Franchi v. Farmholme, Inc., supra. The form of the relief demanded is not dispositive. Fitzgerald v. Sullivan, 12 Conn. Sup. 206, 206-207 (1943).

Applying these principles to the counterclaim, we conclude that it is in essence a challenge to a proposed trust account and is therefore equitable. See Parsons v. Lyman, 18 F. Cas. 1263, 1266, 32 Conn. 566, 575 (C.C.D. Conn. 1863) (No. 10780); Phillips v. Moeller, 147 Conn. 482, 488, 163 A.2d 95 (1960); Second National Bank of New Haven v. Harris Trust & Savings Bank, supra; Bogert, Law of Trusts (5th Ed. 1973) § 142. Count two relates directly to specific items claimed in the plaintiffs account. Counts one and six, because they seek enforcement of the terms of the trust agreement concerning distribution, are likewise based in equity. See Berry v. Hartford National Bank & Trust Co., supra, 618; 3 Scott, Trusts (3d Ed. 1967) § 199.1. The remaining counts presumably provide the most plausible basis for the jury claim because they are couched in tort language, alleging negligence, gross negligence and intentional wrongdoing in the plaintiffs mangement of the trust. Yet the effect of even these counts is to challenge the proposed account for having understated the amount that should have been available to the beneficiaries upon distribution. The defendants do not demand immediate payment of a sum certain that is unconditionally due them, a demand that is cognizable at law. See 3 Scott, Trusts (3d Ed. 1967) §§ 198, 198.1; 1 Restatement (Second), Trusts (1959) §§ 197, 198. Rather, alleging misconduct during the course of the plaintiffs stewardship, they seek restoration of funds to the trust corpus. Such a request is addressed to equity. Cf. Kaitz v. District Court, Second Judicial District, 650 P.2d 553, 554-55 (Colo. 1982); Allard v. Pacific National Bank, 99 Wash. 2d 394, 400-401, 663 P.2d 104 (1983). In short, although the counterclaim contains a claim of damages for negligence, its overall tenor is equitable. The counterclaim was properly stricken from the jury docket.

Ill

The defendants raise three claims concerning the merits of their counterclaim. Their main contention is that the trial court erred in not holding the plaintiff liable for its failure to diversify the trust assets. The defendants also fault the trial court’s determination that the plaintiff did not unduly delay distribution of the trust assets. Finally, the defendants challenge several rulings of the trial court relating to the discovery and admission of evidence.

A

The defendants’ diversification claim stems from the volatile nature of the trust holdings. From the inception of the trust until its termination, Prentice-Hall stock was by far its single largest asset. During the plaintiff’s tenure as trustee, the value of this stock, and the corresponding value of the trust, underwent significant change. In January, 1966, when the plaintiff became trustee, a share of Prentice-Hall stock was worth $18.50. By January, 1970, the price of the stock had climbed to $52. Over the next few years the price fluctuated widely, dropping sharply in 1972 and 1973. Upon distribution of the trust in 1979, the stock was worth approximately $24 a share. During the period from 1966 to 1979, the value of the trust increased by $302,608.

The gravamen of the defendants’ claim is that the plaintiff was negligent in failing to diversify the trust assets by selling Prentice-Hall stock before its 1972-1973 decline. The trial court refused “to charge [the plaintiff] for possible fluctuations of the market that from hindsight might have resulted in the sale of stock at its highest peak” and held that the plaintiff had not acted improperly in retaining the stock.

The law governing the duties of a trustee respecting investment of trust assets is well settled. Generally, a trustee must act with the care of a prudent investor. Jackson v. Conland, 178 Conn. 52, 55, 420 A.2d 898 (1979); 1 Restatement (Second), Trusts (1959) § 174. A trust agreement may, however, “specifically permit trustees to invest in speculative or otherwise hazardous investments.” Jackson v. Conland, supra; see 1 Restatement (Second), Trusts (1959) § 174, comment d. When a trustee has been vested with such discretion, liability attaches only if the discretion is abused. McCarthy v. Tierney, 116 Conn. 588, 591-92, 165 A. 807 (1933); see Conway v. Emeny, 139 Conn. 612, 619, 96 A.2d 221 (1953).

The record in this case reveals that the plaintiff was accorded the discretion to act as it did. The second paragraph of the trust agreement provides in relevant part: “The Trustee is specifically authorized to continue to hold the property as received from the Settlors . . . .” As the trial court found, one of the settlors’ motivations for creating a trust composed almost exclusively of Prentice-Hall stock was to preserve family control of the company. Moreover, Mr. Ettinger saw no need to diversify the trust portfolio during the twenty-two years he served as trustee. While, in retrospect, the value of the trust could have been maximized had the plaintiff divined the downward course of the stock market in the 1970’s, we cannot say that it abused the discretion specifically granted it in continuing to hold Prentice-Hall stock. “A trustee is neither the insurer nor the guarantor of the value of a trust’s assets. A trustee’s performance is not judged by success or failure, and while negligence may result in liability, a mere error in judgment will not.” Hartford National Bank & Trust Co. v. Donahue, 35 Conn. Sup. 194, 198, 402 A.2d 1195 (1979).

B

The defendants fault the plaintiff for delaying the distribution of the trust. The defendants note that the plaintiff did not file its account until sixteen months after the death of Jean Bohart and that partial distribution was not effected until March, 1979. The defendants claim that the plaintiff had no legitimate reason for seeking judicial approval of its account and that it should be held liable for the resulting delay in disbursement.

The defendants’ claim is refuted by the factual findings of the trial court. The court found that the actions of the plaintiff were properly motivated and that the defendants, by initiating litigation in Texas, were themselves chiefly responsible for the delay in distribution. The plaintiff was entitled to ask for court approval of its account. See 1 Restatement (Second), Trusts (1959) § 260; 4 Scott, Trusts (3d Ed. 1967) § 451.1. Given the complex pattern of litigation that resulted from this request, we cannot say that the trial court erred in refusing to hold the plaintiff liable for the delay in distribution.

c

The defendants’ remaining contention requires little discussion. The defendants argue that the trial court erred in quashing their eve-of-trial subpoena duces tecum and in admitting evidence related to the named defendant’s financial circumstances. Such matters are entrusted to the discretion of the trial court. See, e.g., Turgeon v. Turgeon, 190 Conn. 269, 273, 460 A.2d 1260 (1983) (evidence); Standard Tallow Corporation v. Jowdy, supra, 57 (discovery); State v. Moye, 177 Conn. 487, 501, 418 A.2d 870, vacated on other grounds, 444 U.S. 893, 100 S. Ct. 199, 62 L. Ed. 2d 129, on remand, 179 Conn. 761, 409 A.2d 149 (1979) (evidence). The defendants have shown neither abuse of that discretion nor prejudice resulting from the alleged errors. They therefore cannot prevail on this claim.

There is no error.

In this opinion the other judges concurred.

       On October 15, 1976, the defendant Ernest L. Josem was appointed guardian ad litem of the minor defendants. On November 16, 1978, the American National Bank of Austin, Texas, succeeded the named defendant as guardian of the children’s estates and as a defendant in this case. For ease of reference, the named defendant, Josem, and the American National Bank are referred to collectively as the children’s guardian.

       Mr. Ettinger resigned on December 30,1965, and the plaintiff assumed its duties as trustee on January 20, 1966.

       The trial court also ordered the plaintiff to file a supplemental account for the period September 1, 1982, through the date of judgment and to distribute any assets remaining thereafter pursuant to the terms of the July 19, 1978 stipulation.

       The defendants raised the jurisdictional issue in a motion to erase and a plea in abatement, which were filed on May 21, 1975, and heard on August 1, 1975. On August 4, 1975, the trial court granted the motions as to the named defendant in his individual capacity and otherwise denied the requested relief.

       The American National Bank is a Texas corporation that does no business in Connecticut. It is not claimed that any of the other defendants do business or have other contacts with Connecticut except as beneficiaries of the trust involved in this litigation.

       The trial court specifically found that the Ettingers were residents of Connecticut, and the defendants conceded the finding in their brief. We therefore do not consider the defendants’ attempt, at oral argument, to challenge this fact. The preamble to the trust agreement states: “This Agreement [is] made in the City of East Norwalk, County of Fairfield, State of Connecticut . . . .” The signature page, however, gives no indication of where the document was actually executed.

       The defendants challenged the service of process because it had not been made on the secretary of the state as provided for in General Statutes § 52-59b (c). The defendants thus assumed that the trial court was exercising jurisdiction pursuant to General Statutes § 52-59b (a). Section 52-59b, however, does not apply to this suit as it governs only actions against “any nonresident individual . . . who ... (1) Transacts any business within the state; or (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or (3) commits a tortious act outside the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or (4) owns, uses or possesses any real property situated within the state.” General Statutes § 52-59b (a).

       “[Practice Book]
      “Sec. 164. —DENIALS; SPECIAL DEFENSES
      “No facts may be proved under either a general or special denial except such as show that the plantiff’s statements of fact are untrue. Pacts which are consistent with such statements but show, notwithstanding, that he has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be his own.”

       The plaintiff argues that because the trial court had quasi in rem jurisdiction over the trust assets, the minimum contacts test is inapplicable. The distinction between quasi in rem and in personam jurisdiction, however, is no longer relevant to due process minimum contacts analysis. “[A]ll assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe [Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945)] and its progeny.” Shaffer v. Heitner, 433 U.S. 186, 212, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977); see Hodge v. Hodge, 178 Conn. 308, 317-19, 422 A.2d 280 (1979).

       See footnote 6, supra.

       These connections between the trust and Connecticut distinguish the instant case from the situation presented in Hanson v. Denckla, 357 U.S. 235, 252-54, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958), where there were no substantial contacts between the forum state and the trust at issue.

       Article first, § 19, of the Connecticut constitution, as amended, provides: “The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent. In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.”

       “[General Statutes] Sec. 52-215. dockets, jury cases, court cases. In the superior court a docket shall be kept of all cases. In such docket immediately following the names of the parties and their attorneys in all jury cases shall be entered the word ‘jury.’ The following-named classes of cases shall be entered in the docket as jury cases upon the written request of either party made to the clerk within thirty days after the return day: Appeals from probate involving the validity of a will or paper purporting to be such, appeals from the actions of commissioners on insolvent estates, and, except as hereinafter provided, civil actions involving such an issue of fact as, prior to January 1,1880, would not present a question properly cognizable in equity, except that there shall be no right to trial by jury in civil actions in which the amount, legal interest or property in demand does not exceed two hundred fifty dollars or in a summary process case. When, in any of the above-named cases an issue of fact is joined, the case may, within ten days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party made to the clerk; and any such case may at any time be entered in the docket as a jury case by the clerk, upon written consent of all parties or by order of court. All issues of fact in any such case shall be tried by the jury, provided the issues agreed by the parties to be tried by the court may be so tried. All cases not entered in the docket as jury cases under the foregoing provisions, including actions in which an account is demanded and judgment rendered that the defendant shall account, writs of habeas corpus and ne exeat, complaints for dissolution of marriage and all other special statutory proceedings which, prior to January 1,1880, were not triable by jury, shall be entered on the docket as court eases, and shall, with all issues of law and issues of fact, other than those hereinbefore specified, which may be joined in actions entered on the docket as jury cases, be disposed of as court cases.”

       Because the defendants’ allegations of breach of fiduciary duty are made in the context of a challenge to a proposed account, this case is closer to the facts of Berry v. Hartford National Bank & Trust Co., 125 Conn. 615, 7 A.2d 847 (1939), than to those presented in Dettenborn v. Hartford-National Bank & Trust Co., 121 Conn. 388, 185 A. 82 (1936), or in Barlow Brothers Co. v. Gager, 113 Conn. 429, 155 A. 628 (1931).

       The defendants also argue that even if they were not entitled to a jury trial as a matter of right, the trial court had the discretion to “order any issue or issues of facts in any action demanding equitable relief to be tried by a jury of six.” General Statutes § 52-218. The defendants, however, have not carried their burden of proving abuse of that discretion.

       The trust portfolio also contained stock from three publishing companies that had been spun off from Prentice-Hall. As the trial court noted, the defendants pursued no claim relating to the plaintiff’s retention of these stocks.

       In their counterclaim, the defendants charged that the plaintiff’s failure to diversify stemmed from gross negligence and intentional wrongdoing as well as simple negligence. The trial court found that the defendants had not substantiated these allegations and the defendants have not pursued the issue on appeal.

       In addition to the suit filed in October, 1976, in federal district court, the named defendant had also initiated proceedings against the plaintiff in Dallas Probate Court in August, 1976.