author: CALLAHAN, C. J.

text:
    CONNECTICUT LIGHT AND POWER COMPANY v. TEXAS-OHIO POWER, INC., ET AL.
    (SC 15794)
    Callahan, C. J., and Berdon, Norcott, Palmer and Peters, Js.

      Argued December 3, 1997
    officially released February 17, 1998

      Anthony M. Fitzgerald, with whom were Philip M. Small and, on the brief, Brian T. Henebry and William J. Quinlan, for the appellant (plaintiff).

      Paul R. McCary, with whom, on the brief, was Michael J. Donnelly, for the appellee (named defendant).

      Mark F. Kohler, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant department of utility control).

      Bruce C. Johnson, with whom, on the brief, was Guy R. Mazza, for the appellee (defendant office of consumer counsel).
   Opinion

CALLAHAN, C. J.

The plaintiff, the Connecticut Light and Power Company, appeals from a trial court judgment affirming a decision by the defendant department of public utility control (department), upon a request by the plaintiff for certain declaratory rulings. See General Statutes § 4-176(a). In its appeal, the plaintiff raises the following three issues: (1) whether the trial court employed the proper standard of review for a conclusion of law by an administrative agency; (2) whether the trial court properly concluded that Texas-Ohio Power, Inc. (Texas-Ohio), a Texas corporation, is not an “electric light company” under General Statutes (Rev. to 1995) § 33-286 (b) and, consequently, is not prohibited, pursuant to General Statutes (Rev. to 1995) § 33-395, from selling electricity to retail customers in Connecticut, despite the lack of legislative authorization; and (3) whether the trial court properly concluded that a Texas corporation authorized under the general incorporation laws of Texas to engage in any lawful business is not a “foreign electric company” under General Statutes § 16-246a (1) and, therefore, is not prohibited by General Statutes § 16-246c from selling electricity to retail customers in Connecticut. We conclude that the standard of review applied by the trial court was too deferential. We affirm the judgment of the trial court on the second issue on alternative grounds and reverse the decision of the trial court with respect to the third issue.

The facts and procedural history are undisputed. Texas-Ohio is a Texas corporation operating an energy cogeneration plant in Manchester. The cogeneration plant is located on land leased from the Central Connecticut Co-operative Farmers’ Association (Co-op). Texas-Ohio negotiated contracts to sell the electricity it generates at its plant to the Co-op, which is located on the same parcel of land as its plant, and to an adjacent landowner, the Rogers Coiporation (Rogers), both of which are former customers of the plaintiff. The contracts require Texas-Ohio to maintain poles and wires to transmit its electricity on private property only. No aspect of Texas-Ohio’s generation and transmission of electricity pursuant to its contracts with Rogers and the Co-op require it to utilize the public highways and streets.

The plaintiff, a Connecticut corporation, is a “public service company” and an “electric company” as defined by General Statutes § 16-1 (a) (4) and (8) respectively. As such, it is subject to regulation by the department, the state agency charged by § 16-1 et seq. with the regulation of public service companies, including electric companies. In return, it is legislatively protected from unauthorized competition. See Groton v. Yankee Gas Services Co., 224 Conn. 675, 685-86, 620 A.2d 771 (1993). The plaintiff is vested, by special acts of the General Assembly, with an exclusive franchise to sell electricity in Manchester.

On August 3, 1995, the plaintiff sought a declaratory ruling from the department that Texas-Ohio’s retail sale of electricity to the Co-op and Rogers violates Connecticut statutes. Specifically, the plaintiff claimed that Texas-Ohio is a foreign stock corporation and, as such, is prohibited under § § 33-395 and 33-286 (b) from selling electricity to retail customers in Connecticut without express legislative authorization. Additionally, the plaintiff asserted that Texas-Ohio is a “foreign electric company” under § 16-246a (1) and, therefore, is prohibited from selling electricity to retail customers in Connecticut pursuant to § 16-246c. The department ruled that Texas-Ohio is not an “electric company” as defined in § 16-1 (a) (8) and, therefore, is not an “electric light company” under § 33-286 (b), concluding that both terms have the same meaning. It further concluded that Texas-Ohio is not a “foreign electric company” pursuant to § 16-246a (1), again because it is not an “electric company” as defined in § 16-1 (a) (8). Accordingly, the department denied the plaintiffs request for declaratory rulings.

The plaintiff appealed from the decision of the department to the Superior Court. See General Statutes §§ 16-35 and 4-183. In its memorandum of decision, the trial court concluded that the plaintiff had failed to meet its burden of proving that “the agency, in light of the evidence, has acted arbitrarily, illegally or in abuse of its discretion.” It concluded that the department’s interpretation of the statutes at issue was “entirely reasonable” and affirmed the department’s decision without engaging in any independent statutory analysis. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

I

The first issue presented is whether the trial court employed the proper standard in reviewing the decision of the department. The standard of review of an agency decision is well established. “Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . [A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. State Employees’ Review Board, 239 Conn. 638, 645, 687 A.2d 134 (1997); see also Starr v. Commissioner of Environmental Protection, 236 Conn. 722, 735-36, 675 A.2d 430 (1996); Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 688, 674 A.2d 1300 (1996); SLI International Corp. v. Crystal, 236 Conn. 156, 170-71, 671 A.2d 813 (1996); Dept. of Administrative Services v. Employees’ Review Board, 226 Conn. 670, 678-79, 628 A.2d 957 (1993); Lieberman v. State Board of Labor Relations, 216 Conn. 253, 263, 579 A.2d 505 (1990); State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 718-19, 546 A.2d 830 (1988). “ ‘[I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law.’ ” (Emphasis added.) Connecticut Hospital Assn., Inc. v. Commission on Hospitals & Health Care, 200 Conn. 133, 140, 509 A.2d 1050 (1986); accord Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 521, 560 A.2d 403 (1989); Southington v. State Board of Labor Relations, 210 Conn. 549, 558, 556 A.2d 166 (1989); United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 385-86, 551 A.2d 724 (1988); State Medical Society v. Board of Examiners in Podiatry, supra, 717.

There were no disputed facts before the department. The resolution of the questions presented by the plaintiff for declaratory rulings rested entirely on the department’s interpretation of the applicable statutes and the legal meaning to be attributed to specific phrases in those statutes. The questions before the department were, therefore, purely questions of law. Moreover, these questions of law previously had not been subjected to judicial scrutiny. The trial court’s memorandum of decision indicates that the standard of review applied by the trial court was too deferential. In articulating the standard it employed, the trial court; stated that its “ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion,” (internal quotation marks omitted), quoting Connecticut Light & Power Co. v. Dept. of Public Utility Control, 219 Conn. 51, 58, 591 A.2d 1231 (1991). After summarizing the department’s analysis, the court concluded only that the department’s interpretation of the applicable statutes was “entirely reasonable.” As noted previously, it is well established that this deferential standard is not applicable to the court’s review of an agency’s construction of a statute, which is a pure question of law, particularly when the question has not been subjected to prior judicial review. We conclude that under the circumstances, the trial court applied a standard of review that was too deferential when it affirmed the department’s unfavorable response to the plaintiffs request for declaratory rulings. See SLI International Corp. v. Crystal, supra, 236 Conn. 170. Because appellate review of conclusions of law is plenary, we will review the substantive merits of the trial court’s conclusions.

II

The second issue raised by the plaintiff is whether the trial court properly concluded that a foreign stock corporation selling electricity at retail without utilizing the public highways is not an “electric light company” within the meaning of § 33-286 (b) and, therefore, is permitted to sell electricity to retail customers in Connecticut pursuant to § 33-395 without legislative authorization. The resolution of this issue rests upon an interpretation of the relevant statutes, which are §§ 33-395 and 33-286 (b). “When we engage in statutory interpretation, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. ...” (Citations omitted; internal quotation marks omitted.) State v. Spears, 234 Conn. 78, 86-87, 662 A.2d 80, cert. denied, 515 U.S. 1009, 116 S. Ct. 565, 133 L. Ed. 2d 490 (1995).

Section 33-395 provides in relevant part that “[n]o foreign corporation referred to in subsection (b) of section 33-286 . . . shall transact in this state the business authorized by its certificate of incorporation or by the laws of the state under which it was organized, unless empowered so to do by some general or special act of this state . . . .” Section 33-286 (b) provides that “[n]o corporation formed under this chapter [i.e., a domestic corporation] shall have power to transact in this state the business of a telegraph company, gas, electric light or water company, or cemetery corporation, or of any company, except a telephone company, requiring the right to take and condemn lands or to occupy the public highways of this state.” (Emphasis added.) When these two statutes are interpreted together, we recognize that a foreign stock corporation, like a domestic corporation, may be precluded from transacting in Connecticut “the business of [an] . . . electric light . . . company”; General Statutes § 33-286 (b); without express legislative authorization. The plaintiff argues, therefore, that § 33-395 prohibits Texas-Ohio, admittedly a foreign stock corporation, from selling electricity at retail in Connecticut without express authorization of the legislature because such sales constitute the business of an “electric light company.”

The defendants counter that Texas-Ohio is not an “electric hght company” and that the statutory prohibition in § 33-395 is inapplicable. “Electric fight company” is not explicitly defined in §§ 33-395 or 33-286. It is necessary, therefore, to establish its meaning relative to the statutes in issue. To that end, the department looked to the definition of an “electric company” in § 16-1 (a) (8). There, an “electric company” is defined, in pertinent part, as “every corporation . . . owning, leasing, maintaining, operating, managing or controlling poles, wires, conduits or other fixtures, along public highways or streets, for the transmission or distribution of electric current for sale for fight, heat or power within this state, or engaged in generating electricity to be so transmitted or distributed for such purpose . . . .” (Emphasis added.) The department determined that because the legislature is presumed to harmonize statutes; Tolly v. Dept. of Human Resources, 225 Conn. 13, 28, 621 A.2d 719 (1993); the terms “electric fight company” and “electric company” have the same meaning in both statutes. It concluded that because Texas-Ohio does not generate electricity to be transmitted or distributed on poles, wires, conduits or other fixtures, along public highways or streets, it is neither an “electric company” nor an “electric fight company” and, therefore, is not precluded by § 33-395 from selling its electricity at retail without legislative authorization in the limited circumstances of this case.

Although Texas-Ohio urges us to agree with the department and conclude that the terms “electric light company” and “electric company” have the same meaning, we are not inclined to go that far. The two terms are different and they appear in unrelated statutory schemes. Related terms appearing in different titles unrelated to the same subject do not give proper guidance in statutory interpretation. Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 422, 426 A.2d 1324 (1980). Moreover, an interpretation that the two terms at issue have different meanings would not necessarily create disharmony among the statutes. There is insufficient support in the text and legislative history of the statutes in question to justify a conclusion that the legislature intended that these terms be accorded the same meaning. Nonetheless, we agree with the department’s conclusion that Texas-Ohio is not precluded by § 33-395 from engaging in the sale of electricity at retail to the Co-op and to Rogers, an endeavor that does not require Texas-Ohio to utilize the public highways or streets.

We begin our statutory analysis by noting that both § 33-395 and § 33-286 are within the Business Corporation Act. They are not part of title 16 governing public service companies and vesting the department with authority to regulate those companies. Sections 33-395 and 33-286 were first enacted in 1901 in substantially the same form as they exist today. Public Acts 1901, c. 157, § 2, the predecessor to § 33-286, provided: “Any three or more persons may associate to form a corporation for the transaction of any lawful business, except that of a bank, a savings bank, a trust company, a building and loan association, an insurance company, a surety or indemnity company, a steam railroad or street railway company, a telegraph company, a gas, electric light, or water company, or any company which shall need to have the right to take and condemn lands or to occupy the public highways of this state. . . .” (Emphasis added.) In addition, § 51 of that act, the predecessor to § 33-395, provided that “no foreign corporation shall engage or continue in any kind of business in this state, the transaction of which is not permitted to domestic corporations [under § 2] by the laws of this state.” The language of § 51 was amended by Public Acts 1903, c. 194, § 81, to approximate the language as it currently appears in § 33-395.

We have interpreted the language of § 51 to permit “corporations established under the laws of other States to exercise in this State their appropriate corporate powers in the transaction of any kind of business permitted to a domestic corporation formed under the Corporation Act of 1901; and [to forbid] corporations of other States to engage in any kind of business in this State which is not permitted to domestic corporations formed under said Act.” Farmers’ Loan & Trust Co. of New York v. Smith, 74 Conn. 625, 628, 51 A. 609 (1902). We later affirmed that interpretation notwithstanding the textual change to the predecessor to § 33-395 in 1903. Equitable Trust Co. v. Plume, 92 Conn. 649, 654-56, 103 A. 940 (1918). “[W]e presume that the legislature has knowledge of this longstanding construction which this court has given to the objective and purpose of legislation in this field. . . . We also presume that the legislature is aware of the effect that its action or inaction will have on an existing statute, and to intend the effect that its action or inaction produces.” (Citations omitted; internal quotation marks omitted.) Fair Cadillac-Oldsmobile Isuzu Partnership v. Bailey, 229 Conn. 312, 321, 640 A.2d 101 (1994). Through numerous reenactments leading to the present §§ 33-395 and 33-286 (b), the legislature has made no textual change that would persuade us that it does not concur in our statutory interpretation.

With that historical perspective on the function and purpose of §§ 33-395 and 33-286 (b) in mind, we turn to the present case. Section 33-286 precludes domestic corporations from engaging in a variety of businesses without legislative authorization. Subsection (b) specifically prohibits a domestic corporation from “transact[ing] in this state the business of a[n] . . . electric light . . . company ... or of any company . . . requiring the right to take and condemn lands or to occupy the public highways of this state.” Admittedly, the phrase “requiring the right to condemn land or to occupy the public highways” grammatically does not relate back to modify, and thereby define, the term “electric light company.” It does, however, inform our consideration of what the legislature intended when enacting that section.

The legislative history of § 33-286, unfortunately, is sparse and generally uninformative as to the intended meaning of the term “electric light company.” We note, however, that the predecessor to § 33-286 enacted in 1901; Public Acts 1901, c. 157, § 2; contains the same catch-all phrase that prohibits any company that requires the right to use the public highway or condemn land from transacting business without further legislative authority. The only notable difference between the original act and the present § 33-286 is that the 1901 statute contained only one relevant section comprised of a comprehensive list of all of the businesses in which domestic corporations could not engage under the general incorporation provisions. That list included businesses such as banks and insurance companies as well as public service companies. The legislature later divided this original, comprehensive list into several subsections containing related businesses. At present, subsection (a) governs banks and related businesses including savings banks, building and loan associations, and trust companies. Subsection (c) of § 33-286 governs insurance companies and related businesses including surety and indemnity companies. Subsection (b) refers only to public service types of businesses including telegraph, telephone, gas, water and electric light companies, and to cemetery corporations. It includes the catch-all provision applicable to businesses that require use of the public streets or the right to condemn land. The only logical reason we can discern as to why the legislature left the catch-all phrase in the same subsection as electric light companies is that it considered electric light companies, as well as all of the other businesses named, as businesses similar to those included in the catch-all phrase and “requiring the right to take and condemn lands or to occupy the public highways of this state.” General Statutes § 33-286 (b). If the two are unrelated, we are persuaded that the legislature would have separated the various public utility types of businesses and the phrase “requiring the right to take and condemn lands or to occupy the public highways of this state” into separate subsections as it did with entities related to insurance and banking.

We conclude that for puiposes of § 33-286 (b), the legislature intended an “electric light company” to be a company that requires the right to occupy the public highways and streets and to condemn land to conduct its business. If Texas-Ohio were a domestic corporation incoiporated under the laws of the state of Connecticut to engage in any lawful business, we believe that it would be permitted, notwithstanding § 33-286 (b), to engage in the retail sale of electricity to the Co-op and Rogers because those sales do not require it either to utilize the public highways or streets or to condemn land. Consequently, Texas-Ohio is not transacting the business of an “electric light company” pursuant to § 33-286 (b).

As previously noted, we have interpreted § 33-395 to permit a foreign corporation to transact any business that a domestic corporation could transact pursuant to § 33-286 (b) and as prohibiting foreign corporations from engaging in only those businesses in which a domestic corporation would not be permitted to engage pursuant to § 33-286 (b). See Equitable Trust Co. v. Plume, supra, 92 Conn. 654-56; Farmers’ Loan & Trust Co. of New York v. Smith, supra, 74 Conn. 628. The purpose of § 33-395, as interpreted, would not be effectuated if Texas-Ohio, solely because it is a foreign corporation, were precluded, without further legislative authorization, from engaging in the same business in which a domestic corporation could engage without such authorization. Consequently, there is no basis in the Business Corporation Act, specifically §§ 33-395 and 33-286 (b), for precluding Texas-Ohio from engaging in the transactions complained of by the plaintiff. Accordingly, the trial court’s affirmance of the department’s ruling denying the plaintiffs request for a favorable declaratory ruling on the effect of §§ 33-395 and 33-286 (b) was correct.

Ill

The final issue presented by the plaintiff is whether the trial court correctly agreed with the department’s conclusion that a foreign corporation authorized under the general incorporation laws of the state wherein it is incorporated to engage in any lawful business, which, a fortiori, includes transmitting and generating electricity, is nonetheless not a “foreign electric company” pursuant to § 16-246a (1) and, consequently, is not prohibited by § 16-246c from selling electricity to retail customers in Connecticut. Section 16-246c (a) provides in relevant part: “Notwithstanding any limitations otherwise imposed by the general statutes on the transacting of an electric utility business in this state, any foreign electric company is authorized and empowered to generate and transmit electric energy, and to acquire utility facilities necessary or convenient for the purposes of its electric utility business or undivided interests therein and to operate the same, anywhere within this state; provided, unless otherwise authorized by the general statutes or any special act of this state, no such company shall have the power (1) to sell electric energy in this state to persons other than electric companies (Emphasis added.) The parties agree that if Texas-Ohio is a “foreign electric company,” the retail sale of electricity to the Co-op and Rogers would be a violation of § 16-246c. Texas-Ohio argues that it is not a “foreign electric company” because it is not an “electric company” pursuant to § 16-1 (a) (8) and because § 16-246a (1) is intended to apply only to foreign public utilities subject to regulation as such in their states of incorporation. Relying on this alleged intent of the legislature with respect to General Statutes §§ 16-246a through 16-246d, the department agreed with Texas-Ohio’s interpretation of the meaning of “foreign electric company.” We find no such limitation in the statute’s unambiguous text and, therefore, do not agree with the department’s interpretation or its conclusion.

The term “foreign electric company” is a statutorily defined term that appears in § 16-246a, a section containing definitions expressly applicable to § 16-246c. “ ‘[C]ourts are bound to accept the legislative definition of terms in a statute’; Toll Gate Farms, Inc. v. Milk Regulation Board, 148 Conn. 341, 347, 170 A.2d 883 (1961) . . . .” Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992). Section 16-246a (1) provides that a “ ‘[fjoreign electric company’ means a corporation . . . organized under the laws of a state other than this state . . . authorized under the laws of the state in which organized to generate or transmit electric energy . . . .” (Emphasis added.) Nowhere in § 16-246a or § 16-246c is there a reference to § 16-1 for aid in defining “foreign electric company”; indeed, the opposite is true. Section 16-246a (4) requires that “[ejxcept as otherwise provided in sections 16-246a to 16-246d, inclusive, terms which are defined in section 16-1 shall have the respective meanings specified therein.” (Emphasis added.) Because the definition of “foreign electric company” is “otherwise provided” in § 16-246a (1), § 16-246a (4) explicitly mandates that the definitions in § 16-1 do not control the interpretation of the meaning of that term as used in §§ 16-246a through 16-246d.

Furthermore, the term “electric company” appears nowhere in the text of the statutory definition of a “foreign electric company” in § 16-246a (1). By contrast, the definition of a “domestic electric company” contained in § 16-246a (2) is “an electric company organized under the laws of this state . . . .” This provision, in conjunction with § 16-246a (4), evinces a legislative intent to refer to § 16-1 (a) (8) for the definition of an “electric company” for purposes of § 16-246a (2), but not § 16-246a (1). If the legislature had intended the same definition to be applicable to a “foreign electric company,” it could have employed the same language in subdivision (1) as it employed in subdivision (2) of § 16-246a. In the absence of such language, it is reasonable to conclude that the legislature intended a different, broader definition of a “foreign electric company” than simply an “electric company,” as defined in § 16-1 (a) (8), incorporated in a foreign state.

The unambiguous definition in § 16-246a (1) raises two questions that, if answered in the affirmative, require a conclusion that a corporation is a “foreign electric company” for the purposes of § 16-246c. First, is the corporation organized under the laws of a state other than Connecticut? The answer to that question is obviously in the affirmative because it is undisputed that Texas-Ohio is organized under the laws of the state of Texas. Second, if a corporation is a foreign corporation, is the corporation authorized under the laws of the state in which it is incorporated to generate or transmit electric energy? Again, the answer is in the affirmative. Texas law authorizes corporations organized under its general incorporation laws to engage in any lawful business. See Tex. Bus. Corp. Act Ann. art. 3.02 (A) (3) (West 1998 Pocket Part). There is no limitation in Texas law prohibiting a domestic corporation from engaging in the business of generating or transmitting electric energy, which is a lawful activity. It would appear, then, that Texas-Ohio is a “foreign electric company” that is prohibited from selling electricity at retail in Connecticut to the ultimate consumer.

The defendants argue that this interpretation is overly broad and in conflict with the legislative purpose of the statutory scheme of §§ 16-246a through 16-246d. They contend that it is appropriate to look to the legislative purpose because the language of the statute is ambiguous. The ambiguity, they argue, stems from their assertion that the phrase, “authorized under the laws of the state in which organized to generate or transmit electric energy”; General Statutes § 16-246a (1); is not self-explanatory. They maintain that the phrase is meant to include only those corporations that are affirmatively chartered for that purpose. We find no such limitation in the statutory language. “We will not torture the words or sentence structure of a statute to import an ambiguity where the ordinary meaning of the language leaves no room for it.” Board of Education v. State Employees Retirement Commission, 210 Conn. 531, 543, 556 A.2d 572 (1989). Affirmative authorization is not the only means by which a corporation obtains authority to generate or transmit electric energy. A Texas corporation, for example, is vested with authority to generate and transmit electric energy by virtue of its statutory authorization to engage in any lawful business, without limitation. It cannot be said, as the defendants argue, that Texas-Ohio is not authorized to generate or transmit electric energy simply because the Texas legislature did not affirmatively charter it for that purpose. In Texas, an affirmative charter is not required. Section 16-246a (1) is necessarily broad in order to bring within its reach any foreign corporation that could generate or transmit electric energy.

We believe that the statute is plain and unambiguous on its face and that it is unnecessary to look beyond its text to the legislative purpose. Ordinarily, “when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.” Frillici v. Westport, 231 Conn. 418, 430, 650 A.2d 557 (1994); West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 508, 636 A.2d 1342 (1994). Moreover, even if we consider the legislative purpose, which was to allow foreign utility companies to engage in joint ventures with domestic utilities, it does not militate in favor of the defendants’ interpretation.

We conclude that Texas-Ohio is a “foreign electric company” as defined by § 16-246a (1) and, therefore, it is prohibited, unless otherwise authorized, from engaging in the retail sale of electricity by § 16-246c (a) (1). Consequently, the trial court improperly affirmed the department’s denial of the plaintiffs request for a declaratory ruling that Texas-Ohio is a foreign electric company and, as such, is not authorized to sell electricity at retail in Connecticut.

The judgment is reversed in part and the case is remanded to the trial court with direction to render judgment determining that Texas-Ohio is a foreign electric company as defined in § 16-246a (1) and, consequently, is prohibited from engaging in the sale of electricity at retail to the ultimate consumer by § 16-246c (a) (1), thereby sustaining the appeal.

In this opinion the other justices concurred.

       There axe three defendants in this action: Texas-Ohio Power, Inc.; the department; and the office of consumer counsel, the state agency that serves as consumer advocate with respect to public service agencies. See General Statutes § 16-2a. Accordingly, the parties will be referred to by name when necessary for clarity.

       The plaintiff requested the following four declaratory rulings from the department: (1) Texas-Ohio Power, Inc., cannot lawfully sell electricity to the plaintiffs customers in Connecticut without a franchise granted by the General Assembly; (2) Texas-Ohio Power, Inc., is aforeign stock corporation, and is thereby prohibited by General Statutes §§ 33-286 (b) and 33-395 from selling electricity to retail customers in Connecticut; (3) Texas-Ohio Power, Inc., is aforeign electric company under General Statutes § 16-246a (1) and, therefore, cannot sell electricity to retail customers in Connecticut; and (4) Texas-Ohio Power, Inc., is a private power producer under General Statutes § 16-243b (a) (3) and, therefore, is not authorized to sell electricity to retail customers in Connecticut. The department ruled adversely to the plaintiff on all four issues. Only the second and third issues, however, were raised on appeal to this court.

       General Statutes § 4-176 (a) provides: “Any person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.”

       Texas law permits a Texas corporation to engage in any lawful business. Tex. Bus. Corp. Act Ann. art. 3.02 (West 1998 Pocket Part). There is no prohibition under Texas law that would preclude a Texas corporation from generating or transmitting electricity. Texas-Ohio is authorized under its articles of incorporation “to transact any and all lawful business for which corporations may be incorporated under the Texas Business Corporation Act.”

       The two special acts incorporating the Manchester Light and Power Company; 11 Spec. Acts 44 (1893); and incorporating the South Manchester Light, Power, and Tramway Company; 11 Spec. Acts 752 (1893); granted the exclusive franchise to predecessors in interest of the plaintiff.

       The plaintiff obtained an ex parte temporary restraining order against Texas-Ohio on August 15, 1995. The order was subsequently dissolved on September 18, 1995, and the plaintiffs request for a preliminary injunction was denied on October 17, 1995, pending a decision by the department.

       General Statutes (Rev. to 1995) § 33-395 provides: “No foreign corporation referred to in subsection (b) of section 33-286, and no foreign telephone company, shall transact in this state the business authorized by its certificate of incorporation or by the laws of the state under which it was organized, unless empowered so to do by some general or special act of this state, except for the purpose of carrying on and renewing contracts existing upon August 1, 1903.” Section 33-395 was repealed by Public Acts 1994, No. 94-186, § 214. The substance of § 33-395 is now found in General Statutes § 33-920.
      General Statutes (Rev. to 1995) § 33-286 (b) provides: “No corporation formed under this chapter shall have power to transact in this state the business of a telegraph company, gas, electric light or water company, or cemetery corporation, or of any company, except a telephone company, requiring the right to take and condemn lands or to occupy the public highways of this state.” Section 33-286 (b) was repealed by Public Acts 1994, No. 94-186, § 214. The substance of § 33-286 (b) is now found in General Statutes § 33-645 (b).
      Sections 33-286 (b) and 33-295 were renumbered effective January 1,1997. The substance of § 33-286 (b) was not changed except to reflect the new numbering scheme. Some language in § 33-395, although not the substance, did change. That statute now provides in relevant part: “No foreign corporation engaged in the business of a telegraph company, gas, electric light or water company, or cemetery corporation, or of any company requiring the right to take and condemn lands or to occupy the public highways of this state, and no foreign telephone company, shall transact . . . .” (Emphasis added.) General Statutes § 33-920. This change simply incorporates the exact language of § 33-286 (b) (now § 33-645 [b]) into the text of § 33-395, eliminating the need to refer to that separate section. We will employ the numbering scheme that was applicable when this action arose, which has been used throughout the prior proceedings.

       General Statutes § 16-246a provides in relevant part: “When used in sections 16-246a to 16-246d, inclusive, the following terms shall have the meanings herein specified, unless the context otherwise indicates:

        “(1) ‘Foreign electric company’ means a Corporation, company, association, joint stock association or trust organized under the laws of a state other than this state, as well as, a town, city, borough, or any municipal corporation, department or agency thereof, whether separately incorporated or not, of a state other than this state, authorized under the laws of the state in which organized to generate or transmit electric energy . . . .” (Emphasis added.)
      General Statutes § 16-246c (a) provides: “Notwithstanding any limitations otherwise imposed by the general statutes on the transacting of an electric utility business in this state, any foreign electric company is authorized and empowered to generate and transmit electric energy, and to acquire utility facilities necessary or convenient for the purposes of its electric utility business or undivided interests therein and to operate the same, anywhere within this state; provided, unless otherwise authorized by the general statutes or any special act of this state, no such company shall have the power (1) to sell electric energy in this state to persons other than electric companies, (2) to erect, lay or maintain utility facilities in, over or under the public highways, streets and grounds in this state or (3) to take property in this state by condemnation or the exercise of a right of eminent domain.” (Emphasis added.)

       General Statutes § 16-1 (a) (8) provides in relevant part: “ ‘Electric company’ includes every corporation, company, association, joint stock association, partnership or person, or lessee thereof, owning, leasing, maintaining, operating, managing or controlling poles, wires, conduits or other fixtures, along public highways or streets, for the transmission or distribution of electric current for sale for light, heat or power within this state, or engaged in generating electricity to be so transmitted or distributed for such purpose, but shall not include a private power producer, as defined in section 16-243b . . .

       Prior to the time of the department’s decision, the trial court ruled in this matter that the plaintiff was not entitled to a permanent injunction against Texas-Ohio because there was not sufficient evidence that one was warr anted. The trial court opined that a better interpretation of the statute is that an electric light company is the same as an electric company. The plaintiff argues that the decision rested on the conclusion that an injunction was not proper until the department issued its ruling, and the statutory interpretation language is mere dicta. We need not decide whether the injunction proceeding constituted a prior judicial interpretation affording this aspect of the department’s decision a right to special deference because we conclude that the department’s decision, if not its reasoning, was correct with respect to this issue. See part II of this opinion. The trial court’s affirmance was, therefore, also correct, regardless of the standard of review.
      As to the interpretation of the meaning of a “foreign electric company,” the trial court ruled in the injunction proceeding that because Texas-Ohio’s certificate of incorporation was not admitted into evidence, it was unable to conclude whether Texas-Ohio met the definition. This statute, therefore, was never subjected to judicial interpretation, and no special deference to the department’s decision was warranted.

       All the parties agree that Texas-Ohio would not qualify as an “electric company” as defined by § 16-1 (a) (8) because it does not occupy the public highways or streets.

       Public Acts 1903, c. 194, § 81, provided in relevant part: “[N]o foreign corporation belonging to any of the classes excepted in section 62 of this act shall engage in or continue, in this state, the business authorized by its charter or the laws of the state under which it was organized, unless empowered so to do by some general or special law of this state . . . .” This change did not effectuate any relevant substantive change. Section 62 of the 1903 act, which is identical to § 2 of the 1901 act, is the predecessor to § 33-286. The only significant change in the present statute is that the list of businesses that foreign corporations may not transact has been decreased from all of those appearing in § 2 to only those noted in § 33-286 (b), i.e., public service companies. That reduction does not affect our analysis of the function of § 33-395.

       It is appropriate that we view the entire statute, not merely subsection (b). “ ‘[A] statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. Thus, it is not proper to confine interpretation to the one section to be construed.’ 2A J. Sutherland, Statutory Construction (5th Ed. 1992) § 46.05, p. 103 . . . .” (Citation omitted.) State v. Spears, supra, 234 Conn. 91.

       In its decision, the department relied heavily on an 1893 statute and a 1909 amendment regarding limitations on the sale of electricity, which was repealed in 1915; Public Ads 1915, c. 228; in determining the meaning of an “electric light company.” The 1893 statute authorized private generation of energy by a landowner and the sale of electricity to a tenant on the same property. The 1909 amendment to that statute more broadly granted permission to sell electricity as long as it was not done over or along the public streets. Public Acts 1909, c. 254. The statute at issue here, § 33-286, was first adopted in 1901 in a separate statute, wholly independent of the 1893 and 1909 statutes.
      In its brief, the department contends that its analysis of the 1893 and 1909 statutes nonetheless was appropriate. It looked to those statutes not as controlling or determinative of the intent of the 1901 legislature, but as helpful in informing its understanding of what the legislature might have considered the definition of an “electric light company" in 1901 when it adopted the predecessor to § 33-286. Because of the dearth of legislative history on § 33-286 and its predecessors, it is reasonable to look to any piece of the legislative history that may aid the understanding of the meaning of the statute. The 1893 and 1909 statutes are roughly contemporaneous with the 1901 statute. They are more helpful in understanding how t,urn-of-the-century lawmakers viewed the sale of electricity than is any current provision. It was not unreasonable, therefore, to seek guidance in their language. Their key concern seemed to be directed only at regulating electricity sales that required occupying the public streets. Such an understanding comports with our interpretation of §§ 33-286 (b) and 33-395.

       We emphasize that the conclusion we reach today is limited by the specific facts presented. Texas-Ohio, in the transactions complained of, delivers electricity over private property only and makes no use of the public streets for its generation or transmission of electricity. If, for example, Texas-Ohio delivered electricity to a neighbor across a public street, the conclusion would be different under §§ 33-395 and 33-286 (b).

       The department conceded at oral argument that this interpretation of the statute would allow a foreign corporation like Texas-Ohio to engage in the business of an electric company without authorization by our legislature, by avoiding public streets, and not be subject to regulation simply because it is not expressly chartered as an electric company. This would enable such a corporation to set up a network for electricity distribution over private ways, for example in a private subdivision, and be free from all regulation by the department, including rate regulation and other consumer protection. We do not believe the legislature intended such a result.
      The defendants assert that public policy in this state regarding electric companies and competition is changing in favor of such an interpretation and they anticipate that the legislature will act accordingly in its next session. The defendants maybe correct, but the legislature has given us no indication of this policy change. The legislature is free to modify or clarify the policy as it desires. Until it does so, however, we are limited to an interpretation of the statutes as presently written.

       The purpose of these statutory provisions, as articulated by the sponsor of the bill, was to allow foreign electric companies to engage in joint ventures with domestic utility companies in this state in order to create generating plants to meet the growing need for electricity. 11 H.R. Proc., Pt. 2, 1965 Sess., p. 883, remarks of Representative Ralph Brown. The legislature was aware of a proposed plan for such generating plants that included participation by a foreign corporation and enacted this legislation to implement that plan. Id. Notwithstanding, the legislature apparently did not want foreign corporations to have the same status as domestic electric companies. Thus, prohibition of the retail sale of electricity and the right to occupy the public streets or condemn lands was included in the legislation. Nothing in this stated purpose is inconsistent with our interpretation. To the contrary, our interpretation prevents all foreign corporations that could sell electricity at retail, including those affirmatively chartered for that purpose, from achieving the privileged status enjoyed by legislatively authorized domestic electric companies, namely, the right to sell electricity at retail and the right to condemn land and occupy the public streets.


source: Caselaw Access Project

author: NORCOTT, J.

license: Public Domain

text:
    EILEEN COPPOLA v. PAUL J. COPPOLA
    (SC 15715)
    Callahan, C. J., and Norcott, Katz, Palmer and McDonald, Js.

      Argued December 4, 1997
    officially released February 17, 1998

      Pat Labbadia III, for the appellant (plaintiff).

      Gerald H. Cohen, for the appellee (defendant).
   Opinion

NORCOTT, J.

The dispositive issue in this certified appeal is whether, pursuant to General Statutes § 52-72, the return date of civil process can be amended to correct the plaintiffs failure to return the process at least six days before the return date as required by General Statutes § 52-46a. The plaintiff, Eileen Coppola, appeals from the judgment of the Appellate Court affirming the trial court’s judgment granting the defendant’s motion to dismiss. The plaintiff claims that the trial court improperly concluded that: (1) § 52-72 does not permit the amendment of the return date to correct a late return of process; and (2) the defendant did not waive the defect, despite having filed his motion to dismiss more than thirty days after the filing of an appearance, in violation of Practice Book § 142 et seq. We agree with the plaintiff that § 52-72 permits the amendment of the return date and, accordingly, we reverse the judgment of the Appellate Court.

The facts relevant to this appeal are undisputed. The plaintiff brought an action against the defendant, Paul J. Coppola, for injuries arising out of a July 4, 1993 automobile accident. The writ of summons and complaint were dated June 25, 1995, with a return day of August 15, 1995. The defendant was served on June 28, 1995, and he filed an appearance on July 19, 1995. The plaintiff returned the process to the Superior Court on August 15,1995, which was the return date. Thereafter, on September 8, 1995, the defendant, pursuant to Practice Book § 142, filed a motion to dismiss on the ground that the process was not returned at least six days prior to the return date as required by § 52-46a. On September 14,1995, the plaintiff, pursuant to Practice Book § 175, filed an amendment to revise the return day from August 15, 1995, to August 22, 1995, in order to satisfy the six day requirement of § 52-46a.The trial court denied the plaintiffs request to amend the return date because it concluded that a late return of process was not the type of defect that could be amended pursuant to § 52-72. The court further stated that the plaintiffs reliance on Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 642 A.2d 1186 (1994), was “misplaced” and that “no case has been found that supports the plaintiffs argument that . . . she can correct a late return of process by an amendment filed on September 14, 1995, which simply changes the return day from August 15, 1995 to August 22,1995, and then claim that the original process, which was returned on August 15, 1995, was returned at least six days before the new return day of August 22, 1995.” The court, in light of its finding that the defendant’s motion to dismiss was timely, dismissed the plaintiffs action. The Appellate Court summarily affirmed the trial court’s judgment of dismissal. Coppola v. Coppola, 44 Conn. App. 930, 691 A.2d 1128 (1997). This certified appeal follows.

The plaintiff claims that § 52-72 permits the amendment of the return date to correct a failure to return civil process at least six days prior to the return day as required by § 52-46a. She relies on our analysis of § 52-72 in Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 623-25, as authority for her construction of the statute. The defendant, in support of the contrary view, argues that a late return of process is a defect of service that cannot be amended. He further contends that Concept Associates, Ltd., is inapplicable to the facts in the present case because it dealt with the amendment of an improper return date rather than the amendment of a proper return date to remedy a late return of process.

As a preliminary matter, we note that the requirement of § 52-46a to return process in civil actions to the clerk of the Superior Court at least six days before the return date is mandatory and failure to comply with its requirements renders the proceeding voidable, rather than void, and subject to abatement. Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 433, 559 A.2d 1110 (1989). “[0]nce an action has been brought by service of process on the defendant, a trial court may thereafter dismiss the action for failure to return the service of process within the mandated time period.” Rana v. Ritacco, 236 Conn. 330, 339, 672 A.2d 946 (1996).

Our resolution of the plaintiffs claim requires an analysis of § 52-72, in which “we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case .... In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to Its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742. (1997).

Section 52-72 (a) provides in relevant part that “[a]ny court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective . . . .” The defendant argues that the phrase “for any other reason defective” does not encompass a late return of process. Section 52-72 does not define the term defective. “ ‘If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.’ ” State v. Payne, 240 Conn. 766, 771, 695 A.2d 525 (1997). The term “defective” is defined as “[packing in some particular which is essential to the completeness, legal sufficiency, or security of the object spoken of; as a ‘defective’service of process or return of service. . . .” Black’s Law Dictionary (6th Ed. 1990). In construing the meaning of defective as used in the statute, we find the analysis of the legislative intent and purpose of § 52-72 set forth in Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 623-25, more instructive than the dictionary definition.

In Concept Associates, Ltd., the defendant filed a motion to dismiss on the basis that the return date was a Thursday rather than a Tuesday as required by General Statutes § 52-48 (a). Id., 620. After the return date had passed, the plaintiff sought to amend the return date pursuant to § 52-72 from May 28, 1992, a Thursday, to May 26, 1992, a Tuesday. The issue presented was whether § 52-72 “permits the amendment of an improper return date in civil process after the return date has passed.” Id., 619-20.

Our resolution of this issue necessarily required a thorough process of statutory interpretation. In so doing, we determined that “[§] 52-72 was originally adopted in 1917. Public Acts 1917, c. 164. Although there is no legislative history available, it appears that the statute was enacted in response to decisions of this court holding that an improper return date was a jurisdictional defect that could not be corrected. See, e.g., Hoxie v. Payne, 41 Conn. 539 (1874). Indeed, this court has stated that the purpose of § 52-72 ‘is to provide for amendment of otherwise incurable defects that go to the court’s jurisdiction.’ Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 478-79, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1079, 63 L. Ed. 2d 319 (1980). The apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date.” Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 623.

With these principles in mind, we review the plaintiffs claim. The plaintiff argues that the term “defective” as used in § 52-72 encompasses a failure to return the process at least six days prior to the return date, thus rendering the return date amendable pursuant to the statute. The defendant claims, however, that the return date in this case was proper and that the plaintiff was simply late in returning the process, a flaw which § 52-72 was not intended to amend. We reject, as we did in Concept Associates, Ltd., so narrow a construction of the statute.

Section 52-72 is a remedial statute that must be liberally construed in favor of those whom the legislature intended to benefit. Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 623. “[Statutes such as § 52-72 were intended to take the sharp edges off the common law . . . .” Id. “Centuries ago the common law courts of England . . . insisted upon rigid adherence to the prescribed forms of action, resulting in the defeat of many suits for technical faults rather than upon their merits. Some of that ancient jurisprudence migrated to this country . . . and has affected the development of procedural law in this state. . . . [Hjowever, our legislature enacted numerous procedural reforms applicable to ordinary civil actions that are designed to ameliorate the consequences of many deviations from the prescribed norm, which result largely from the fallibility of the legal profession, in order generally to provide errant parties with an opportunity for cases to be resolved on their merits rather than dismissed for some technical flaw.” Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 75-76, 540 A.2d 59 (1988) (Shea, J., concurring). The legislature, in enacting § 52-72, expressed an intent to reject the draconian result of dismissal of the plaintiffs cause of action because of a defect involving the return date. The “principles of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results.” (Internal quotation marks omitted.) Concept Associates, Ltd. v. Board of Tax Review, supra, 624. The construction of the term defective to permit an amendment of the return date to correct the plaintiffs failure to return process six days prior to the return day effectuates the statute’s remedial purpose and statutory policy of “ ‘amending] . . . otherwise incurable defects that go to the court’s jurisdiction.’ ” Id., 623.

Furthermore, such an interpretation is consistent with our expressed policy preference “to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978). “The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice. . . . Rules are a means to justice, and not an end in themselves . . . .” (Citations omitted; internal quotation marks omitted.) In re Dodson, 214 Conn. 334, 363, 572 A.2d 328, cert. denied, 498 U.S. 896, 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990). “Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure.” Johnson v. Zoning Board of Appeals, 166 Conn. 102, 111, 347 A.2d 53 (1974). The plaintiff s motion to amend would not deprive the defendant of any substantive rights and would simply correct the return date so that the return of process met the statutory six day period required by § 52-46a. It is undisputed that the defendant received actual notice of the cause of action within the statutory time frame, suffered no prejudice as a result of the late return of process, and already had filed an appearance and had served the plaintiff with interrogatories. We “[refuse] to permit the recurrence of the inequities inherent in eighteenth century common law that denied a plaintiffs cause of action if the pleadings were technically imperfect.” Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 399, 655 A.2d 759 (1995).

The defendant contends that the plaintiffs construction of § 52-72 undermines § 52-46a and his ability to file a motion to dismiss pursuant to Practice Book § 143. The trial court agreed and reasoned that “ ‘[i]f the plaintiffs interpretation is adopted there is practically no limit short of due process considerations to a court’s power to correct defects in service of process o[r] failure to comply with rules on return of process.’ ” Quoting Shelansky v. Roivisto, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV930533137 (February 27, 1995) (13 Conn. L. Rep. 532). We are not persuaded.

Allowing an amendment of the return date under the circumstances of the present case does not render § 52-46a meaningless. A return date may be amended but it still must comply with the time limitations set forth in § 52-48 (b). Section 52-48 (b) requires that “[a]ll process shall be made returnable not later than two months after the date of the process . . . .” Section 52-48 (b), therefore, with its two month limit, circumscribes the extent to which a return date may be amended.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court with direction to grant the plaintiffs motion to amend the complaint and for further proceedings.

In this opinion the other justices concurred.

       General Statutes § 52-72 provides in relevant part: “Amendment of process. (a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement. ...”

       General Statutes § 52-46a provides in relevant part: “Return of process. Process in civil actions . . . shall be returned ... if returnable to the Superior Court ... at least six days before the return day.”

       We granted the plaintiffs petition for certification limited to review of the following issue: “Did the Appellate Court properly affirm the trial court’s judgment of dismissal?” Coppola v. Coppola, 241 Conn. 923, 696 A.2d 1264 (1997).

       Practice Book § 142 provides in relevant part: “Motion To Dismiss
      “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . . .” Practice Book § 143 provides in relevant part: “[Motion To Dismiss] — Grounds
      “The motion to dismiss shall be used to assert . . . insufficiency of process, and . . . insufficiency of service of process. . . .”
      Practice Book § 144 provides: “[Motion To Dismiss] — Waiver Based on Certain Grounds
      “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Secs. 112 and 113 and within the time provided by Sec. 142.”

       Because this issue is dispositive of the appeal, we do not reach the plaintiffs second claim alleging that the defendant’s motion to dismiss was untimely.

       Practice Book § 175 provides: “[Amendments] — Amendment as of Right by Plaintiff
      “The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day.”

       Although the plaintiff cited Practice Book § 175 in her motion to amend the return date, she relied on § 52-72 and our analysis of that statute in Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 623-25, as authority for her motion to amend the return date. Accordingly, we will analyze her statutory claim.

       The return date historically was the day that the defendant actually was required to appear in court to answer the summons. W. Moller & W. Horton, 1 Connecticut Practice Series: Practice Book Annotated (3d Ed. 1989) § 49, p. 215, comment. “From an early time in Connecticut, however, the return of process has been required prior to ‘the day of sitting of the court.’ ” (Emphasis added.) E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997) § 16, p. 31; see General Statutes (1821 Rev.), tit. 2, § 10 (“[o]fficers serving writs shall return them, or cause them to be returned, to the clerks of the courts to which they are made returnable, at least forty-eight hours prior to the day of the session of the court”).
      Today, the return date determines how to compute the time for service of process; General Statutes § 52-46; the time for filing the writ with the court; General Statutes § 52-46a; the time for the defendant to file an appearance with the court; General Statutes § 52-84; and the time for the defendant to respond to the complaint. Practice Book § 114. W. Moller & W. Horton, 1 Connecticut Practice Series: Practice Book Annotated, supra, p. 215.

       General Statutes § 52-48 (a) provides: “Process in civil actions, including transfers and applications for relief or removal, but not including summary process actions, brought to the Superior Court may be made returnable on any Tuesday in any month. The return day in any summary process action may be any week day, Monday through Saturday, except a holiday.”

       In Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 626, we concluded that the language of § 52-72 that “ ‘[a]ny court shall allow a proper amendment to civil process which has been made returnable to the wrong return day’ ” is mandatory.

       Amended process must still comply with § 52-46a and be returned at least six days before the return date.

       We note that, in the present ease, the plaintiffs amended return date does not violate the provisions of § 52-48 (b). The writ of summons and complaint were dated June 25,1995, and the plaintiffs amended return date was August 22,1995, thus complying with the two month limitation of § 52-48 (b).


author: PER CURIAM. BERDON, J., with whom, MCDONALD, J.,

text:
    CADLE COMPANY OF CONNECTICUT, INC. v. C.F.D. DEVELOPMENT CORPORATION ET AL.
    (SC 15678)
    Berdon, Norcott, Palmer, McDonald and Peters, Js.
    Argued November 6, 1997
    officially released February 17, 1998

      Steven M. Bache, for the appellant (plaintiff).

      Bruce L. Elstein, with whom were Stephen P. Wright and, on the brief, Henry Elstein, for the appellees (defendant Jan E. Cohen et al.).
   Opinion

PER CURIAM.

The only issue in this certified civil appeal is the validity of a judgment that, with respect to the same financial transaction, simultaneously: (1) exonerates a debtor of liability; and (2) orders payment by the guarantors of that debt. The plaintiff, Cadle Company of Connecticut, Inc., brought an action for payment of a defaulted note against the promisor of the note, the named defendant, C.F.D. Development Corporation (debtor), and the note’s guarantors, the defendants Arnold H. Foster, Jan E. Cohen and Mario DiRienzo III (guarantors). The jury returned a plaintiff s general verdict form but also, in response to interrogatories, found that the debtor owed the plaintiff zero and that the guarantors owed the plaintiff $1,539,114.32. Thereafter, on the debtor’s motion, the trial court, Gray, J., set aside, in part, the jury verdict for the plaintiff and rendered judgment thereon for the debtor. The court denied the guarantors’ motions to set aside the verdict.

The guarantors appealed to the Appellate Court and the plaintiff cross appealed. The Appellate Court dismissed the plaintiffs cross appeal as untimely. The validity of that dismissal is not before us. The court did, however, consider the merits of the guarantors’ appeal, and directed that judgment be rendered in their favor. Cadle Co. of Connecticut, Inc. v. C.F.D. Development Corp., 44 Conn. App. 409, 415, 689 A.2d 1166 (1997). We then granted the plaintiffs petition for certification to appeal, limited to the following issue: “Under the circumstances of this case, did the Appellate Court properly conclude that the guarantors on the note held by the plaintiff were not liable on their guarantee?” Cadle Co. of Connecticut, Inc. v. C.F.D. Development Corp., 241 Conn. 901, 693 A.2d 303 (1997).

Having examined the record on appeal and studied the briefs and the arguments of the parties, we have concluded that our grant of certification was improvident. Because of procedural irregularities at trial, the present proceeding does not afford us a proper opportunity to reexamine the thorny relationship between a guarantor’s broadly phrased undertaking to ensure payment of a debt and such a guarantor’s access to surety-ship defenses. See, e.g., Restatement (Third), Suretyship and Guaranty pp. 156-57 and §§ 37-49 and 67 (1995); see generally Packtor v. Seppala & AHO Construction Co., 231 Conn. 367, 370, 650 A.2d 534 (1994); Shaham v. Capparelli, 219 Conn. 133, 135, 591 A.2d 1269 (1991); Lawler v. Lawler, 212 Conn. 117, 119, 561 A.2d 128 (1989).

The appeal is dismissed.

BERDON, J., with whom, MCDONALD, J.,

joins, dissenting. I disagree with the majority’s conclusion that certification to appeal was improvidently granted. Rather, I would reverse the judgment of the Appellate Court because of its faulty analysis of the jury’s verdict, and order that judgment in favor of the plaintiff, Cadle Co. of Connecticut, Inc., against the defendant guarantors in the amount of $1,539,114.32 be reinstated.

The majority dismisses the appeal “[bjecause of procedural irregularities at trial,” but fails specifically to identify those procedural irregularities that allegedly prevent it from examining “the thorny relationship between a guarantor’s broadly phrased undertaking to ensure payment of a debt and such a guarantor’s access to suretyship defenses.”

The following facts relied upon by the Appellate Court are not in dispute. “The pleadings establish that by a note dated October 19,1987, the named defendant, C.F.D. Development Corporation (CFD), promised to pay $1,900,000 plus interest and costs of collection to the order of Shawmut Home Bank (Shawmut). The defendants Arnold H. Foster, Jan E. Cohen and Mario DiRienzo III (guarantors) guaranteed payment and performance of the note by an instrument also dated October 19, 1987. The note fell into default. The plaintiff, Cadle Company of Connecticut, Inc., alleged that the note was assigned to it, that it became the actual bona fide owner of the note and beneficiary of the guarantee, and that at the time it instituted action against CFD and the guarantors, there was due and owing the sum of $1,461,017.67 plus interest, reasonable attorney’s fees and costs.

“The defendants denied that the amount claimed was due and that the plaintiff was the beneficiary of the guarantee. They alleged that they had no knowledge that Shawmut had exercised its option to declare all sums immediately due and payable and that the note and guarantee had been assigned to the plaintiff. The defendants also filed several special defenses, including a claim that Connecticut National Bank (CNB), a former holder, had impaired the value of the collateral by taking no action for an unreasonable time and allowed the value of the collateral to decrease significantly, and a claim that CNB, by refusing to accept title to the collateral when its appraised value was in excess of $2,000,000, had breached its covenant of good faith and fair dealing. None of the other special defenses went to the jury.

“At the conclusion of the trial, the jury returned a plaintiffs general verdict form, showing a recovery for the plaintiff from each of the defendants in the amount of $1,539,114.32. In addition, the following interrogatories were answered as indicated and returned by the jury: T. Do you find that Connecticut National Bank, after commencing its foreclosure action against the defendants and during the term of a Receiver appointed by the Court, took actual or constructive possession of the subject property (Phoenix Landing Condominiums)? Yes.

“ ‘2. Do you find that the bank acted unreasonably or failed to act reasonably in prosecuting the foreclosure action which it initiated in November, 1989? Yes.

“ ‘If your answer to question No. 2 is affirmative, please proceed to question No. 3. If your answer is “No,” then you are to proceed to question 5.

“ ‘3. Do you find that the bank’s conduct after bringing the foreclosure action was a proximate cause of a decline in value of the subject property (Phoenix Landing Condominiums)? No. . . .

“ ‘5. What is the total amount, including interest, that you find is due and owed to the plaintiff?:

“ ‘By Defendant C.F.D. Development Corporation, Inc., $0.

“ ‘By Guarantor Defendants (Cohen, Foster and DiRienzo) $1,539,114.32.’ ” Cadle Co. of Connecticut, Inc. v. C.F.D. Development Corp., 44 Conn. App. 409, 410-12, 689 A.2d 1166 (1997).

Notwithstanding the inconsistency between the answers to the interrogatories, which found that CFD was not liable for any damages, and the general jury verdict, which, by entering judgment in favor of the plaintiff against all the defendants, found that both CFD and the guarantors owed the plaintiff $1,539,114.32, the trial court accepted the interrogatories and the general verdict in favor of the plaintiff and dismissed the jury. The defendants jointly filed a motion to set aside the verdict, for entry of judgment and in arrest of judgment. “In addition, CFD filed a separate motion to set aside the verdict and for judgment. The trial court granted the motion to set aside the verdict as against CFD, corrected the general verdict and rendered judgment for CFD. No appeal was timely taken from this judgment in favor of CFD. The motion of the [guarantors] to set aside the verdict was denied and judgment was rendered against them on the verdict.” Id., 412-13. The guarantors appealed to the Appellate Court, which reversed the judgment of the trial court. Id., 415. We granted certification to appeal on the following issue: “Under the circumstances of this case, did the Appellate Court properly conclude that the guarantors on the note held by the plaintiff were not liable on their guarantee?” Cadle Co. of Connecticut, Inc. v. C.F.D. Development Corp., 241 Conn. 901, 693 A.2d 303 (1997).

The standard of review with respect to setting aside a jury verdict is clear. “In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict. Campbell v. Gould, 194 Conn. 35, 41, 478 A.2d 596 (1984). The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness. Herb v. Kerr, [190 Conn. 136, 139, 459 A.2d 521 (1983)]; Katsetos v. Nolan, [170 Conn. 637, 656, 368 A.2d 172 (1976)]. This is so because ‘[f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury.’ Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972) . . . .” (Citation omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666 (1988).

After reviewing three possible bases on which CFD could have prevailed at trial, the Appellate Court concluded that the verdict against the guarantors could not be reconciled with the verdict for CFD and the responses to the interrogatories. Applying flawed reasoning, the Appellate Court concluded: (1) that the jury could have found that CFD had paid the note; and (2) that the special defense that CNB had violated the covenant of good faith and fair dealing by acting unreasonably or failed to act reasonably in prosecuting the foreclosure action was proven by the jury’s answer to interrogatory two. Cadle Co. of Connecticut, Inc. v. C.F.D. Development Corp., supra, 44 Conn. App. 413-15. The Appellate Court then concluded that because both of these defenses would also apply to the guarantors, the judgment against the guarantors could not stand. Id., 415.

I reject the Appellate Court’s conclusions. First, the guarantors failed to allege or introduce any evidence at trial that the note was paid. Practice Book § 164; Connecticut Bank & Trust Co. v. Dadi, 182 Conn. 530, 438 A.2d 733 (1980). Indeed, at oral argument before this court, counsel for the guarantors conceded it was not paid. Second, proof of the special defense of the covenant of good faith and fair dealing in prosecuting the foreclosure action must be rejected because the jury found in the third interrogatory that CNB’s conduct after bringing the foreclosure was not the proximate cause of the decline of the value of the security. Indeed, the instructions for the second interrogatory specifically led the jury to the third interrogatory in which it concluded that CNB’s conduct was harmless.

It is fundamental that the specific contract provisions between the parties control the extent of the guarantee. Restatement (Third), Suretyship and Guaranty § 6 (1996) (“[e]ach rule in this Restatement stating the effect of suretyship status may be varied by contract between the parties subject to it”). Indeed, in American Oil Co. v. Valenti, 179 Conn. 349, 426 A.2d 305 (1979), this court, in a unanimous decision, held that a judgment of nonsuit rendered for the principal debtor did not discharge the liability of one who undertook by contract to guarantee absolutely the payment of the outstanding debt. As a result of the disciplinary nonsuit, judgment was rendered in favor of the principal debtor, which, like this case, was not appealed by the plaintiff. In American Oil Co., Justice Peters, relying upon her own bar journal article, wrote: “The mere fact that a suit against the principal debtor resulted in a nonsuit cannot be a defense to a surety who has agreed to pay regardless of whether and when demand for payment is made upon another. See Peters, A Negotiable Instruments Primer 64-65 (1974).” American Oil Co. v. Valenti, supra, 352.

The guarantor in American Oil Co., James Valenti, undertook “[o]n the contract of guaranty . . .as a‘primary obligation,’ to guarantee ‘absolutely and unconditionally . . . the prompt payment of all sums of money . . . unpaid by the principal debtor . . . .’ The contract expressly waived, inter alia, ‘failure upon the part of the Obligee ... to make demand or use diligence.’ On both documents [the note and the guarantee], therefore, James Valenti agreed to be a surety, a person who would be primarily hable for payment without regard to any prior demand for payment from [the principal debtor].” Id.

In my view, the language of the guarantee in this case is at least as extensive as that in American Oil Co. The guarantee here provided in relevant part that “each of the undersigned Guarantors . . . unconditionally guarantee [d] by [the Guaranty] the payment and performance from or by the Borrower of any and all obligations from the Borrower to the Lender (the ‘Obligations’).” Moreover, the guarantors also agreed to be primarily liable for payment: “[T]he liability of the Guarantor[s] hereunder is direct and unconditional and may be enforced without requiring the Lender first to resort to any other right, remedy or security . . . .” Finally, the guarantors agreed that their obligation did not terminate until the lender had been paid in full: “[T]his Guaranty is, and shall be as to the Guarantor continuing, and shall not terminate unless and until all of the Obligations have been paid in full; and that if there is more than one Guarantor, the liability of the Guarantors hereunder shall be joint and several.”

In light of the guarantors’ concession that the note was not paid, the flawed analysis of the second and third jury interrogatories, and the broad and unconditional language of the guarantee, I would reverse the Appellate Court and direct that the judgment of the trial court awarding the plaintiff damages in the amount of $1,539,114.32 be affirmed.

Accordingly, I dissent.

       We express no opinion about the propriety of the trial court’s decision to render judgment for the debtor.

       The guarantee, in the form of a letter to Shawmut provided in relevant part: “[1] To induce Shawmut Home Bank (hereinafter referred to as the ‘Lender’) to make a loan in the amount of ONE MILLION NINE HUNDRED THOUSAND ($1,900,000.00) DOLLARS (the ‘Loan’) to CFD DEVELOPMENT CORP. (hereinafter referred to as the ‘Borrower’) which Loan is evidenced by a Promissory Note (the ‘Note’) bearing the effective date of October , 1987 and, in consideration thereof and of any loans, advances or financial accommodations heretofore or hereafter granted by the Lender to or for the account of the Borrower pursuant to said Note, each of the undersigned, Guarantors (hereinafter, and collectively if more than one, referred to as the ‘Guarantor’) unconditionally guarantees by this agreement (the ‘Guaranty) the payment and performance from or by the Borrower of any and all obligations from the Borrower to the Lender (the ‘Obligations’). . . . [2] [T]hat the liability of the Guarantor hereunder is direct and unconditional and may be enforced without requiring the Lender first to resort to any other right, remedy or security . . . and [3] this Guaranty is, and shall be as to the Guarantor continuing, and shall not terminate unless and until all of the Obligations have been paid in full . . . .” (Emphasis added.)

       The trial court incorrectly accepted the inconsistent interrogatory and general verdict forms, regardless of whether any party raised an objection. The correct procedure is to point out the inconsistency to the jury, reinstruct the jury on the law to the extent necessary and return the jury for further deliberations with anew set of interrogatories and verdict forms. See General Statutes § 53-223 (“The court may, if it judges the jury has mistaken the evidence in the action and has brought in a verdict contrary to the evidence, or has brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for the same reason may return them to a third consideration. The jury shall not be returned for further consideration after a third consideration.”).

       Because the trial court’s granting of the motion to set aside the verdict as against CFD and its rendering judgment in favor of CFD has not been appealed, that judgment must stand. Skut v. Hartford Accident & Indemnity Co., 142 Conn. 388, 114 A.2d 681 (1955).

         The Appellate Court correctly rejected another hypothesis — that the special defense of impairment of collateral was proven by the jury’s answer to interrogatory number one. Cadle Co. of Connecticut, Inc. v. C.F.D. Development Corp., supra, 44 Conn. App. 414. I agree with the Appellate Court that this was not a possible finding because of the jury’s answer to interrogatory number three, which stated the jury did not “find that the bank’s conduct after bringing the foreclosure action was a cause of the decline in the value of the” collateral.

       Practice Book § 164 provides in relevant part: “No facts may be proved under either a general or special denial except such as show that the plaintiffs statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that he has no cause of action, must be specially alleged. Thus . . . payment (even though nonpayment is alleged by the plaintiff) . . . must be specially pleaded . . . .”

       The interrogatories relevant to the covenant of good faith and fair dealing, the interrogatory instructions and the jury’s answers were as follows:
      “2. Do you find that the bank acted unreasonably or failed to act reasonably in prosecuting the foreclosure action which it initiated in November, 1989? [Answer] Yes.
      “If your answer to question No. 2 is affirmative, please proceed to question No. 3. . . .
      “3. Do you find that the bank’s conduct after bringing the foreclosure action was a proximate cause of a decline in value of the subject property (Phoenix Landing Condominiums)? [Answer] No. . . .”

       See footnote 1 of this dissent.