author: NORCOTT, J.

text:
    CHARLES G. GIBSON ET AL. v. JOHN CAPANO ET AL.
    (SC 15514)
    Callahan, C. J., and Borden, Berdon, Norcott and Katz, Js.
    Argued March 20
    officially released July 22, 1997

      Edward J. Holahan, Jr., with whom, on the brief was Kevin J. Gumpper, for the appellants (plaintiffs).

      Alan R. Spirer, for the appellees (named defendant et al.).
   Opinion

NORCOTT, J.

This appeal arises from a claim of innocent misrepresentation by the plaintiffs, Charles G. Gibson and Lois Gibson, against the defendants, John Capano and Maria Capano, in connection with the purchase of certain real property located in Norwalk. The Appellate Court reversed the trial court’s judgment for the plaintiffs on the innocent misrepresentation claim and we granted the plaintiffs’ petition for certification limited to review of the following question: “In order to impose liability on a seller of real estate for innocent misrepresentation, is specialized knowledge by the seller required?” Gibson v. Capano, 239 Conn. 902, 682 A.2d 1000 (1996). We conclude that we need not address the certified question because we affirm the judgment of the Appellate Court upon alternate grounds.

The opinion of the Appellate Court sets forth the following relevant facts that the jury reasonably could have found. “The defendants owned and resided in a house in Norwalk from 1980 until January 17, 1987. While the defendants resided in the house, [John Capano] performed extensive remodeling and redecorating, which gave him access to the inside of many of the walls. On December 7, 1986, the plaintiffs entered into a binder agreement with the defendants for the purchase of the house. The agreement provided that the sale was conditioned on satisfactory building and termite inspections. By December 12, 1986, both the building and termite inspections had been performed. As a result of the termite inspection, the plaintiffs learned that the house had earlier been treated for termites. The plaintiffs then asked the defendants about the nature and extent of the earlier termite treatment and whether the chemical chlordane had been used to treat the premises for the termites. [John Capano] replied: ‘The only place that I saw any termite damage was in the area that I took the door out of that side wall of the dining room. There was slight damage in the area of the door sill. It started and stopped light there. It didn’t go any further, and we did lots of work here. And that is the only place that I saw any damage.’ With respect to the chlordane, the defendants told the plaintiffs that they did not have to worry about that because they had contacted the treating company and chlordane had not been used.” Gibson v. Capano, 41 Conn. App. 548, 549-50, 676 A.2d 896 (1996).

The parties signed a contract for the purchase of the property dated January 5, 1987, which provided in part: “The Buyer further agrees that he has examined the premises and that he is fully satisfied with the physical condition thereof and that neither the Seller, nor any representative of the Seller has made any representation upon which the Buyer relies with respect to the condition of the property covered by this agreement, except as hereinbefore expressly set forth.” The contract further provided: “This contract (including any schedules or any riders referred to in the body of this Contract and attached to and made a part of it) constitutes the entire Contract between the parties, and no oral statements or promises and no understanding not embodied in this Contract shall be of effect. Any modification shall be made only by an instrument signed by all parties.”

“The plaintiffs purchased the house and later discovered extensive termite damage and that chlordane had been used. The plaintiffs brought a two count complaint alleging fraudulent misrepresentation and innocent misrepresentation. The jury returned a verdict for the defendants on the fraudulent misrepresentation count and in favor of the plaintiffs on the innocent misrepresentation count. The jury answered the following interrogatories concerning the innocent misrepresentation issue in the affirmative: ‘Have the [plaintiffs] proven by a fair preponderance of the evidence all of the following: (1) The [defendants], in selling the property to the [plaintiffs], made a representation of material fact; (2) The representation was made for the purpose of inducing the [plaintiffs] to purchase the property; (3) The representation was not true; (4) The [plaintiffs] relied upon the misrepresentation; (5) The [plaintiffs] were justified in relying upon the representation?’ ” Id., 550-51.

The defendants appealed to the Appellate Court claiming, inter alia, that the trial court improperly had denied their motion for a directed verdict regarding the claim of innocent misrepresentation. Id., 549. The Appellate Court reversed the judgment of the trial court and held that the defendants’ motion for a directed verdict on the innocent misrepresentation claim should have been granted “because the plaintiffs failed to produce evidence that the defendants possessed a specialized knowledge of termite detection or determining termite damage or the use of pest control chemicals.” Id., 554. This certified appeal followed.

As a preliminary matter, we note that “[w]hile [t]he only issues we need consider [on appeal] are those squarely raised by the petition for certification, we have recognized that an appellee, in accordance with Practice Book § 3012 (a) (now § 4013 [a]), may present alternate] grounds upon which the judgment may be affirmed. . . .” (Citations omitted; internal quotation marks omitted.) State v. Hodge, 201 Conn. 379, 382-83, 517 A.2d 621 (1986); see Practice Book § 4140. Accordingly, “we are not limited to the issues presented in the petition if the judgment of the Appellate Court may be affirmed on some other ground. . . .” (Citations omitted; internal quotation marks omitted.) Rametta v. Stella, 214 Conn. 484, 491 n.6, 572 A.2d 978 (1990). The defendants submit as an alternate ground for affirmance that the contract for the sale of the real property specifically disclaimed any claim of reliance by the plaintiffs on representations made by the defendants that were not contained in the contract. Because we agree with the defendants that the contract language is dispositive of the plaintiffs’ claim, we refrain from reaching the certified question.

In Connecticut, a claim of “innocent misrepresentation ... is based on principles of warranty, and . . . is not confined to contracts for the sale of goods.” Johnson v. Healy, 176 Conn. 97, 102, 405 A.2d 54 (1978); see also Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 347, 232 A.2d 307 (1967); E. & F. Construction Co. v. Stamford, 114 Conn. 250, 259-60, 158 A. 551 (1932). A person is subject to liability for an innocent misrepresentation if “in a sale, rental or exchange transaction with another, [he or she] makes a representation of a material fact for the purpose of inducing the other to act or to refrain from acting in reliance upon it . . . even though it is not made fraudulently or negligently.” 3 Restatement (Second), Torts § 552C (1977). We have held that an innocent misrepresentation is “actionable, even though there [is] no allegation of fraud or bad faith, because it [is] false and misleading, in analogy to the right of a vendee to elect to retain goods which are not as warranted, and to recover damages for the breach of warranty. ...” (Citations omitted; internal quotation marks omitted.) Johnson v. Healy, supra, 101.

Our resolution of the plaintiffs’ innocent misrepresentation claim, however, is guided by the general principles governing the construction of contracts. “It is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree. This freedom includes the right to contract for the assumption of known or unknown hazards and risks that may arise as a consequence of the execution of the contract. Accordingly, in private disputes, a court must enforce the contract as drafted by the parties and may not relieve a contracting party from anticipated or actual difficulties undertaken pursuant to the contract, unless the contract is voidable on grounds such as mistake, fraud or unconscionability. See 1 Restatement (Second), Contracts §§ 154, 159, and vol. 2, § 208 (1981); cf. Warner v. Pandolfo, 143 Conn. 728, 122 A.2d 738 (1956).” Holly Hill Holdings v. Lowman, 226 Conn. 748, 755-56, 628 A.2d 1298 (1993).

Parties are free to bargain for disclaimer clauses in a contract for the sale of real property. Id. We have held that “Lj]ust as the parties to a contract for the sale of goods are free to disclaim warranties; see General Statutes § 42a-2-316; the parties to a contract for the sale of real property are free to disclaim responsibility for known environmental risks. Indeed, the agreed upon contract price for the property typically reflects an allocation of the known risks that attend the ownership of property.” Holly Hill Holdings v. Lowman, supra, 226 Conn. 756. In addition, in the absence of a claim of mistake, fraud or unconscionability, a clause disclaiming reliance by the buyer on the seller’s representations is a valid contract term. See 2 Restatement (Second), Contracts § 196, comment (a) (1981); 12 S. Williston, Contracts (3d Ed. 1970) § 1511, p. 467 (“[liability for innocent misrepresentation may be excluded by the express terms of the contract”).

With these principles in mind, we proceed to analyze the plaintiffs’ innocent misrepresentation claim in light of the terms of the contract for the sale of the property. Paragraph six of the contract provides in part that “neither the Seller, nor any representative of the Seller has made any representation upon which the Buyer relies with respect to the condition of the property covered by this agreement, except as hereinbefore expressly set forth.” This clause allocates the risk of loss resulting from the plaintiffs’ reliance on the defendants’ representations to the plaintiffs. It is well established that “[w]here the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership. v. Beacon Industries, Inc., 239 Conn. 284, 295, 685 A.2d 305 (1996). The plaintiffs do not claim that there were any improprieties in the contract formation process. The parties were free to bargain for whatever warranties and terms they wished. The plaintiffs could have bargained for warranties or representations from the defendants to be included in the contract regarding the extent of termite damage and the nature of the treatment. We will not import terms into this agreement, however, that are not reflected in the contract. “It is axiomatic that courts do not rewrite contracts for the parties. ...” (Citations omitted.) Herbert S. Newman & Partners v. CFC Construction Ltd. Partnership, 236 Conn. 750, 760, 674 A.2d 1313 (1996). We conclude that the clear and unambiguous disclaimer of warranties in the contract between the plaintiffs and the defendants must be given effect and that the plaintiffs’ breach of warranty claim is precluded.

The plaintiffs nonetheless argue that they were induced into entering the contract by the defendants’ misrepresentations and that therefore the disclaimer clause in the contract does not preclude their claim of innocent misrepresentation. The plaintiffs concede that they were aware that the property previously had been infested with termites and had been chemically treated. They contend, however, that they were misled about the extent of the termite damage and the particular chemical used in the extermination treatment. We disagree.

The plaintiffs rely on Warman v. Delaney, 148 Conn. 469, 172 A.2d 188 (1961), as support for their claim that they were induced into agreeing to the contract. In Warman, the seller misrepresented the boundaries of certain real property to the buyer of the property. We concluded that a seller’s misrepresentations as to the boundaries of land to be sold, if made negligently or recklessly and relied upon by a buyer without conducting an independent survey, can support an award of damages even if the written contract constitutes the entire agreement of the parties, specifically disclaims any representations of the buyer as to the condition of the land, and contains a contrary description of the land. Id., 473-74. Because Warman involved a claim of fraudulent misrepresentation rather than innocent misrepresentation, however, we conclude that it is inapposite to the facts in the present case.

Rather, we agree with the defendants that our decision in Holly Hill Holdings v. Lowman, supra, 226 Conn. 753, governs our consideration of the plaintiffs’ claim of inducement. In Holly Hill Holdings, we held that a party who purchases property “as is” could not thereafter maintain a claim based on an alleged nondisclosure of known facts. Id. In that case, the buyers, prior to agreeing to purchase the property, had actual knowledge of the existing underground gasoline storage tanks that were associated with the property’s previous use as a service station. Id., 751. The buyers raised the seller’s alleged failure to disclose the underground storage tanks as required by statute as a special defense and counterclaim in a subsequent foreclosure action. Id., 751-52. Because the buyers were aware of the property’s prior use before entering into the contract, we rejected their argument that they were induced to agree to the clause because of the seller’s misrepresentations. Id., 756-57.

Similarly, the plaintiffs in the present case were well aware that the property previously had been infested by termites and had been chemically treated by professionals. The plaintiffs hired an independent professional termite extermination expert to inspect the property and were informed that the premises had been infested and chemically treated. Before entering into the contract, the plaintiffs asked the defendants about the termite situation and were told that the house previously had been infested, that there was some damage, and that the house had been professionally treated. Despite their actual knowledge of the property’s prior condition, the plaintiffs agreed to the clause in paragraph six of the contract that disclaimed their reliance on representations made by the defendants. “[WJhere a party realizes he has only limited information upon the subject of a contract, but treats that knowledge as sufficient in making the contract he is deemed to have assumed the risk of a mistake.” (Internal quotation marks omitted.) Id., 757; see 1 Restatement (Second), Contracts § 154 (1981). As in Holly Hill Holdings, the plaintiffs cannot now argue that they were induced to agree to the clause as a result of the defendants’ misrepresentation.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       “The plaintiffs filed actions against Home Maintenance, Inc., claiming negligence in its inspection of the premises, and Carl Fritz, doing business as A & A Exterminating, claiming negligence in conducting its termite inspection of the premises. The plaintiffs settled those actions in exchange for total payments of $104,000.” Gibson v. Capano, 41 Conn. App. 548, 550 n.1, 676 A.2d 896 (1996).

       The defendants also claimed that the trial court improperly: (1) denied their motion for judgment notwithstanding the verdict; (2) denied then-motion for remittitur; (3) denied their motion to set aside the verdict; and (4) rendered judgment on the jury’s verdict without deducting the amounts the plaintiffs received from settlement with the former defendants, Home Maintenance, Inc., and Carl Fritz. Gibson v. Capano, supra, 41 Conn. App. 549. Because the Appellate Court held that the trial court improperly denied the defendants’ motion for a directed verdict, it did not reach their remaining claims.

       We express no comment regarding the Appellate Court’s holding that the plaintiffs must demonstrate that the defendants possessed “specialized knowledge” in order to satisfy the justifiable reliance element of their innocent misrepresentation claim. We note, however, that, under the Restatement (Second) of Torts, the requirement of specialized knowledge is confined to representations of opinion rather than representations of fact. See 3 Restatement (Second), Torts § 542 (1977) (reliance on “the maker’s opinion is not justified . . . unless the fact to which the opinion relates is material, and the maker . . . purports to have special knowledge of the matter that the recipient does not have”).

       Section 196 of the Restatement (Second) of Contracts (1981), provides: “A term unreasonably exempting a party from the legal consequences of a misrepresentation is unenforceable on public policy grounds.” Comment (a) to § 196 clarifies that this rule does not “apply to language that prevents reliance by the recipient on a misrepresentation.”


source: Caselaw Access Project

author: BERDON, J.

license: Public Domain

text:
    WASHINGTON TRUST COMPANY v. MARIE D. SMITH
    (SC 15527)
    (SC 15529)
    Callahan, C. J., and Berdon, Norcott, McDonald and Peters, Js.

      Argued April 22
    officially released July 22, 1997

      Robert D. Tobin, with whom was Rita Provatas, for the appellant in Docket No. 15527 (proposed intervening defendant John Holstein).

      William F. Gallagher, with whom, on the brief, were Barbara L. Cox, S. Joel Suisman, Andrew J. Brand and Raymond L. Baribeault, Jr., for the appellant in Docket No. 15529 (proposed intervening defendant Spicer Plus, Inc.).

      Francis J. Pavetti, for the appellee (intervening defendant Hendel’s Investors Company).
   Opinion

BERDON, J.

The issues in this appeal are whether the proposed intervening defendants (proposed defendants) filed timely motions to intervene in this foreclosure action, after a court-ordered foreclosure sale had already been held, and, if timely, whether they adduced sufficient facts in support of their motions to intervene. The trial court denied the proposed defendants’ motions to intervene on the grounds that the motions were not timely and because the proposed defendants failed to prove that they had direct and substantial interests in the foreclosed property. The proposed defendants appealed to the Appellate Court, which affirmed the judgment of the trial court. Washington Trust Co. v. Smith, 42 Conn. App. 330, 339, 680 A.2d 988 (1996). We granted the proposed defendants’ petitions for certification to appeal from the Appellate Court. We reverse the judgment of the Appellate Court.

As the Appellate Court stated, “[t]his is the appeal of the proposed defendants Spicer Plus, Inc. (Spicer), and John Holstein, trustee of City Discount Oil Nominee Trust (Holstein), from the judgment rendered by the trial court denying their motions to be made parties as of right to the underlying foreclosure action, and confirming the foreclosure by sale. The appellees are the plaintiff, Washington Trust Company (Washington Trust), which is the holder of the mortgage being foreclosed, and the intervening defendant Hendel’s Investors Company (Hendel’s), the highest bidder at the foreclosure sale.

“In February, 1990, the defendant, Marie D. Smith, executed a note to Washington Trust in the principal amount of $110,000. The note was secured by a mortgage on a parcel of land in North Stonington. Upon Smith’s default, Washington Trust sought to foreclose the mortgage. A judgment of foreclosure by sale was rendered on December 9, 1993. On February 10, 1994, Holstein acquired Smith’s equity of redemption by way of a quitclaim deed. A foreclosure sale was held on February 12, 1994. Hendel’s was the highest bidder at the foreclosure sale and was . . . made a party defendant on February 18, 1994. Spicer operated a gas station and convenience store on the North Stonington property at the time of the December 9, 1993 judgment and on the date of the sale pursuant to a lease dated April 1, 1988; it was not named a defendant in the original complaint, nor did it move to intervene as a defendant before the sale took place. Spicer did, however, actively bid at the sale.

“On February 16, 1994, Spicer attempted to redeem the property from Washington Trust. Likewise, on February 28, 1994, Holstein sought to exercise the equity of redemption; both attempts to redeem were rejected. On February 28, the trial court confirmed the foreclosure sale.” Id., 331-32.

Prior to the confirmation of the sale, but on that same day, Spicer and Holstein moved to be made defendants in the foreclosure action for the purpose of protecting their interests in the foreclosed property. The trial court denied the motions. Subsequent to their filing an appeal in the Appellate Court, Spicer and Holstein filed a motion for articulation with the trial court. After a hearing, the trial court issued an articulation with respect to its reasons for denying Spicer’s and Holstein’s motions to intervene. The trial court found that at the February 28, 1994 hearing on the motions to intervene, neither Spicer nor Holstein “made any attempt to introduce, nor did they introduce any testimony or evidence whatsoever, in support of their motions to intervene, to establish what interests, if any, they had in the premises foreclosed, or regarding their alleged tenders to Washington Trust, to redeem. There was no evidence from which this court could determine what interests, if any, the proposed intervenors had in the foreclosed premises.” The trial court also concluded that the motions to intervene, having been filed after the foreclosure sale, were made at an extremely late date and, consequently, that the motions were untimely. The Appellate Court upheld the trial court in both respects.

I

We first address the Appellate Court’s conclusion that the trial court properly determined that the motions for intervention filed by Spicer and Holstein were untimely. The Appellate Court stated that, under the circumstances, “[b]oth [Spicer and Holstein] voluntarily chose not to move to intervene until after the sale was completed, notwithstanding that their ‘interests’ must have been equally threatened at an earlier date.” Id., 336. Therefore, the Appellate Court held that “the trial court properly determined that their failure to intervene prior to the sale clearly shows that Spicer and Holstein did not move to protect their interests in a timely fashion.” Id. We disagree.

In determining whether the motions for intervention were timely filed, we first must determine whether they were motions for intervention as a matter of right or motions for permissive intervention. In Horton v. Meskill, 187 Conn. 187, 191, 445 A.2d 579 (1982), this court determined that intervention of right is permitted in Connecticut practice pursuant to Practice Book § 99, which provides in relevant part: “If a person not a party has an interest or title which the judgment will affect, the court, on his motion, shall direct him to be made a party.” “The distinction between intervention of right and permissive inteivention, such as is found in [r]ule 24 of the Federal Rules of Civil Procedure, has not been clearly made in Connecticut practice. See Practice Book §§ 99, 100. Most of our cases discuss the admission of new parties as coming within the ‘broad discretion’ of the trial court. [See, e.g.,] Manter v. Manter, 185 Conn. 502, 507, 441 A.2d 146 (1981); Jones v. Ricker, 172 Conn. 572, [575 n.3], 375 A.2d 1034 (1977); Nikitiuk v. Pishtey, 153 Conn. 545, 555, 219 A.2d 225 (1966). But there are also cases which make clear that intervention as of right exists in Connecticut practice. Ricard v. Stanadyne, Inc., 181 Conn. 321, [322 n.1], 435 A.2d 352 (1980); Greenwich Gas Co. v. Tuthill, 113 Conn. 684, 695, 155 A. 850 (1931); Bucky v. Zoning Board of Appeals, 33 Conn. Sup. 606, 608, 363 A.2d 1119 (1976); DeFelice v. Federal Grain Corporation, 12 Conn. Sup. 199, 201 (1943). The nature of the right to intervene in Connecticut, however, has not been fully articulated. Where state precedent is lacking, it is appropriate to look to authorities under the comparable federal rule, in this case [r]ule 24 of the Federal Rules of Civil Procedure.” Horton v. Meskill, supra, 191-92.

“An applicant for intervention has a right to intervene under Practice Book § 99 where the applicant’s interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment.” (Emphasis added; internal quotation marks omitted.) Id., 195. “[A] person or entity does not have a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him, her, or it. The judgment to be rendered must affect the proposed intervenor’s direct or personal rights, not those of another.” Id.

In their motions, both Spicer and Holstein alleged that they had interests in the foreclosed property and claimed that they sought to intervene in order to enforce their rights of redemption. Holstein alleged that Smith quitclaimed to him, on February 10,1994, all of her right, title and interest, including her equity of redemption, in the foreclosed property. He further alleged that the quitclaim deed was recorded on the land records of the town of North Stonington, and a photocopy of the deed was attached as an appendix to his motion. Holstein also alleged that prior to the court’s confirmation of the foreclosure sale, he tendered the amount necessary to Washington Trust in order to exercise his redemption rights. In support of this allegation, Holstein also attached to the motion a photocopy of the letter addressed to Washington Trust that disclosed his and Spicer’s interests and rights in the property, and purported to tender the amount necessary, by certified check, in order to redeem the property, which check was not accepted.

In its motion to intervene, Spicer had alleged that Smith leased the property to it by way of a written lease, notice of which was recorded on the land records of the town of North Stonington. The motion indicated the specific volume and page number of the notice of lease on the land records. Spicer alleged that the lease was in full force and effect through March 31, 1988, and that the lease gave Spicer rights of renewal and extension and rights of first refusal in the event of the sale or transfer of the property. Spicer also alleged that it tendered the amount necessary to Washington Trust in order to redeem the property, which also was not accepted.

At the hearing on the motions to intervene, Hendel’s and Washington Trust objected to the proposed intervention on the ground that there was no evidence presented by Spicer and Holstein to prove their rights to intervene. Furthermore, Hendel’s and Washington Trust disputed the validity of the interests of Spicer and Holstein.

The timeliness of the motions to intervene that were filed in this case depends upon the duration of rights of redemption. Under our cases, such rights survive the auction of the foreclosed property and may be exercised until such time as the judicial authority approves the foreclosure sale. “The [judicial] sale is not absolute until confirmed. The order of confirmation gives the judicial sanction of the court, and when made it relates back to the time of the sale . . . .” (Emphasis added; internal quotation marks omitted.) Raymond v. Gilman, 111 Conn. 605, 613-14, 151 A. 248 (1930). “[D]ecisional law has established that the right of redemption survives the auction and is not foreclosed out until the court approves the sale.” D. Caron, Connecticut Foreclosures (2d Ed. 1989 & Sup. 1995-96) § 9.02B, p. 150, citing Raymond v. Gilman, supra, 613; see also In the Matter of Loubier, 6 B.R. 298, 303 (D. Conn. 1980) (“[I]n Connecticut, the law is that the rights of a mortgagor in mortgaged property are terminated by confirmation of a foreclosure sale .... When the foreclosure sale . . . was confirmed by [the] superior court ... at that moment, [the mortgagor’s] equity of redemption in the property was terminated . . . .”). This is so because “[o]nly after a sale has been confirmed and ratified by the court does it become complete.” Citicorp Mortgage, Inc. v. Burgos, 227 Conn. 116, 120, 629 A.2d 410 (1993); see also Mariners Savings Bank v. Duca, 98 Conn. 147, 152-53, 118 A. 820 (1922) (“It has been generally held that an equitable judicial sale requires confirmation or ratification before it can become complete and create legal rights and liabilities between or among the parties legally interested therein. . . . For until confirmation, the bids are mere offers to purchase, the contract is not complete, and the purchaser cannot be in default thereunder. . . . [T]he ratification of the sale is in a way the focal point of the proceeding after the judgment therein.” [Citations omitted; internal quotation marks omitted.]); Hartford Federal Savings & Loan Assn. v. Tucker, 13 Conn. App. 239, 247, 536 A.2d 962, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988) (“[u]nder Connecticut law, a judicial sale becomes complete and creates a legal right to obligations among parties when it is confirmed and ratified by the court”).

This case law is consistent with the implicit assumption in a related statute, which recognizes that the foreclosed property may be redeemed at any time prior to the confirmation of the sale by the trial court. Specifically, General Statutes § 49-25 provides in pertinent part that “[u]pon motion of the owner of the equity of redemption, the court shall appoint a second appraiser in its decree. If the plaintiff is the purchaser at sale, or if the property is redeemed at any time prior to the approval of the sale, or if for any reason the sale does not take place, the expense of the sale and appraisal or appraisals shall be paid by the plaintiff and be taxed with the costs of the case. . . .” (Emphasis added.)

We conclude that the motions by Spicer and Holstein were motions for intervention as a matter of right because the rights of redemption in the foreclosed property that they sought to exercise implicated direct and immediate interests that will be jeopardized by the approval of the foreclosure sale.

This conclusion has important consequences for the timeliness of their motions to intervene. “[A]ny motion for intervention, whether permissive or of right, must be timely. See Fed. R. Civ. Proc. 24. The timeliness of a motion for intervention, however, must be judged by all of the circumstances of the case. See NAACP v. New York, 413 U.S. 345, 366, 93 S. Ct. 2591, 37 L. Ed. 2d 648 (1973); Hodgson v. United Mine Workers of America, 473 F.2d 118, 129 (D.C. Cir. 1972). In any event, an untimely motion for intervention of right is not transformed automatically thereby into a motion for permissive intervention. The right to intervene is lost, not merely weakened, if it is not exercised in a timely fashion. Ricard v. Stanadyne, Inc., supra, [181 Conn.] 323-24. See 7A Wright & Miller, Federal Practice and Procedure § 1916; 3B Moore, Federal Practice § 24.13 [1], As a general matter, the timeliness requirement is applied more leniently for intervention of right than for permissive intervention because of the greater likelihood that serious prejudice will result. See Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir.), cert. denied, 439 U.S. 837, 99 S. Ct. 123, 58 L. Ed. 2d 134 (1978); Diaz v. Southern Drilling Corporation, 427 F.2d 1118, 1126 (5th Cir. 1970).” (Emphasis added.) Horton v. Meskill, supra, 187 Conn. 193-94. “Timeliness of intervention is a matter for the sound discretion of the trial court . . . but a court should be more reluctant to refuse when intervention is sought of right . . . .” (Citation omitted.) Williams & Humbert Ltd. v. W. & H. Trade Marks (Jersey) Ltd., 840 F.2d 72, 74-75 (D.C. Cir. 1988). In making this determination of timeliness with respect to motions to intervene as a matter of right, courts must take into consideration the nature of the interest and for what purpose the intervenor is seeking to be brought into the action. So, for example, if the purpose of the intervention, under the facts of this case, was to challenge the validity of Washington Trust’s right to foreclose on the mortgage, when the intervening parties had timely notice of the foreclosure action, then the granting of the motions to intervene at the late date they were presented would be a significant factor for the trial court to consider when ruling on the motions. The dilatory nature of a motion to intervene is always a factor for a trial court to consider.

In the present case, Spicer and Holstein moved to intervene after the foreclosure sale, but before the confirmation of that sale by the trial court. By concluding that only motions to intervene filed before the foreclosure sale would have been timely, the trial court failed to take into account that the right of redemption can be exercised at any time prior to the confirmation of the sale. The date of the foreclosure sale does not operate as a talisman of timeliness when a trial court is considering a motion to intervene. Because the trial court in this case acted under a misapprehension with respect to the relevant law, we conclude that the trial court abused its discretion. The motions to intervene were timely because Spicer and Holstein moved to intervene for the purposes of protecting their alleged rights of redemption before the trial court confirmed the sale. We conclude that the Appellate Court improperly affirmed the trial court’s ruling that the motions to intervene were untimely.

II

After passing the threshold inquiry of timeliness, we address whether Spicer and Holstein made the requisite showing in support of their respective motions to intervene. The Appellate Court concluded that Spicer and Holstein had failed to meet their burden of demonstrating their interests in the foreclosed property. We disagree.

Although the seminal case of Horton establishes when a proposed intervenor can intervene as a matter of right; Horton v. Meskill, supra, 187 Conn. 195; neither our rules of practice nor Horton provide how the proposed intervenor carries the burden of demonstrating his or her interest in order to intervene as a matter of right. Accordingly, we look to federal law for guidance. See id., 192 (“[w]here state precedent is lacking, it is appropriate to look to authorities under the comparable federal rule”).

“For purposes of judging the satisfaction of [the] conditions [for intervention] we look to the pleadings, that is, to the motion for leave to intervene and to the proposed complaint or defense in intervention, and . . . we accept the allegations in those pleadings as true. The question on a petition to intervene is whether a well-pleaded defense or claim is asserted. Its merits are not to be determined. The defense or claim is assumed to be true on motion to intervene, at least in the absence of sham, frivolity, and other similar objections.” (Internal quotation marks omitted.) Kozak v. Wells, 278 F.2d 104, 109 (8th Cir. 1960); see also Williams & Humbert Ltd. v. W. &H. Trade Marks (Jersey) Ltd., supra, 840 F.2d 75 (“[a]n application to intervene should be viewed on the tendered pleadings — that is, whether those pleadings allege a legally sufficient claim or defense and not whether the applicant is likely to prevail on the merits”); Central States, Southeast & Southwest Areas Health & Welfare Fund v. Old Security Life Ins. Co., 600 F.2d 671, 672 (7th Cir. 1979) (“[a]ll nonconclusory allegations supporting amotion to intervene are taken as true, absent sham, frivolity, or other objections”).

“The decision whether to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court.” Lettieri v. American Savings Bank, 182 Conn. 1, 13, 437 A.2d 822 (1980); see also Horton v. Meskill, supra, 187 Conn. 192. It must be kept in mind, however, that the rules of intervention “should be liberally construed, in order to avoid multiplicity of suits and settle all related controversies in one action.” Kozak v. Wells, supra, 278 F.2d 112.

In this case, the trial court improperly concluded that Spicer and Holstein had the burden of proving their interests, by way of testimony or other evidence, in order to be allowed to intervene. The Appellate Court agreed. This is too high a hurdle for purposes of establishing a right to intervene. A proposed intervenor must allege sufficient facts, through the submitted motion and pleadings, if any, in order to make a showing of his or her right to intervene. The inquiry is whether the claims contained in the motion, if true, establish that the proposed intervenor has a direct and immediate interest that will be affected by the judgment. Because the trial court applied an incorrect standard to the motions filed by Spicer and Holstein, we conclude that the trial court abused its discretion. Therefore, the Appellate Court improperly affirmed the trial court’s application of this incorrect standard.

Nevertheless, we conclude that Spicer and Holstein established that they are entitled to intervene as of right because, if true, the allegations in the motions in this case would constitute the required showings of direct and substantial interests that would be impaired by the foreclosure action. Holstein’s motion alleged that he purchased the equity of redemption from the owner of the property subject to foreclosure and that he wanted to redeem the mortgage. Spicer’s motion alleged that it was the owner of a leasehold interest on the same property and that it wanted to redeem the mortgage. Spicer and Holstein were entitled to prove their interests, if any, as defendants in the foreclosure action before the foreclosure sale was confirmed, and at that time Hendel’s and Washington Trust would have been entitled to dispute the validity of Spicer’s and Holstein’s interests on the merits. Because we have concluded that Spicer and Holstein should have been permitted to intervene in the foreclosure action as defendants, the trial court’s confirmation of the sale must be reversed.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to the trial court with direction to grant Spicer’s and Holstein’s motions to intervene, and for further proceedings according to law.

In this opinion the other justices concurred.

       We granted the proposed defendants’ separate petitions for certification limited to the following questions: “Did the Appellate Court properly conclude that movants Spicer Plus, Inc., and John Holstein were not entitled to intervene because (1) they had not met their burden of proving their interests in the property, and (2) they had not filed their motion to intervene in a timely manner?” Washington Trust Co. v. Smith, 239 Conn. 919, 920, 682 A.2d 1014 (1996).

       “The test for determining whether an order denying a motion to intervene constitutes a final judgment is whether the would-be intervenor can make a colorable claim to intervene as a matter of right. Winslow v. Lewis-Shepard, 216 Conn. 533, 536, 582 A.2d 1174 (1990).” (Internal quotation marks omitted.) Washington Trust Co. v. Smith, supra, 42 Conn. App. 331 n.1. The Appellate Court implicitly concluded, and we agree, that Spicer and Holstein have met this “jurisdictional threshold of appealability.” Id., 338.

       The sale has been ordered stayed pending the resolution of all appeals.

       The Appellate Court opinion refers to motions made by Spicer and Holstein requesting that they be made parties for purposes of taking an appeal. Although the trial court originally granted these motions, it subsequently vacated its orders on the ground that such an order was not required in order for Spicer and Holstein to take this appeal.

       General Statutes § 52-107, containing nearly identical language, provides in relevant part: “If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party.”

       Rule 24 of the Federal Rules of Civil Procedure provides in relevant part: “Intervention
      “(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
      “(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
      “(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. . . .”

       The merits of Spicer’s alleged right to redeem based on the leasehold interest and upon principles of equitable subrogation are not in dispute in this appeal and we do not decide this issue. See generally annot., Lessee’s Right of Subrogation in Respect of Lien Superior to His Lease, 1 A.L.R.2d 286 (1948).

       This standard is consistent with the practice in Connecticut courts. See, e.g., Greenwich Gas Co. v. Tuthill, 113 Conn. 684, 695, 155 A. 850 (1931) (upholding trial court and stating that “[t]he court properly permitted the intervention, as parties defendant, of persons asserting such a special interest in the matter under determination,” where several property owners applied to trial court for intervention by claiming that their property would be damaged by erection of gas tank on proposed site); Bucky v. Zoning Board of Appeals, supra, 33 Conn. Sup. 608 (Appellate Session of Superior Court reversing trial court after concluding that representations in motion were sufficient so that proposed intervenor should have been allowed to intervene as of right); Plamondon v. Enfield, 26 Conn. Sup. 488, 489-90, 227 A.2d 434 (1966) (granting motion to intervene as of right based upon representations in motion); Yale University v. New Haven, 22 Conn. Sup. 61, 63, 160 A.2d 493 (1960) (stating, with respect to motion to intervene, that “the matter must be determined on the basis of the facts alleged in the [motion] itself,” although denying taxpayer’s motion to intervene); DeFelice v. Federal Grain Corp., supra, 12 Conn. Sup. 200-201 (in case similar to present case, granting motion to intervene as of right based upon allegations in motion that proposed intervenors acquired ownership, from trustee in bankruptcy, of property subject to plaintiffs suit).

       In addition, although unnecessary, but prudent, Holstein’s motion was supported by documentation corroborating his interest in the foreclosed property, and part of that documentation also corroborated Spicer’s interest in the property. See part I of this opinion.


author:
PETERS, J.
      MCDONALD, J.,

text:
    SEARS, ROEBUCK AND COMPANY v. BOARD OF TAX REVIEW OF THE TOWN OF WEST HARTFORD
    (SC 15492)
    Callahan, C. J., and Berdon, Norcott, McDonald and Peters, Js.
    Argued April 22
    officially released July 22, 1997

      Marjorie Wilder, corporation counsel, for the appellant (defendant).

      I. Milton Widem, for the appellee (plaintiff).
   Opinion

PETERS, J.

The principal issue in this tax appeal is

the extent of a trial court’s discretion, under General Statutes § 12-117a, to award prejudgment interest to an aggrieved taxpayer upon finding that a municipality has overassessed the value of the taxpayer’s real property. The plaintiff, Sears, Roebuck and Company, appealed to the trial court from the refusal of the defendant, the board of tax review of the town of West Hartford (board), to reduce the assessed value of the plaintiff’s property. The trial court determined that the property in question had been overassessed and, in a subsequent decision, awarded the plaintiff interest on its tax overpayment. The town of West Hartford (town) 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). We affirm in part and reverse in part.

The relevant facts are undisputed. The plaintiff owns property in the town consisting of a thirteen acre parcel of land improved with two buildings, an automobile service center and a department store. As a result of the town’s decennial revaluation of real property; see General Statutes § 12-62 (a); the town assessor (assessor) determined that, as of the assessment year commencing October 1, 1989, the true and actual value of the plaintiffs property was $13,045,000 and assessed the property at 70 percent of this value. See General Statutes § 12-62a (b) (municipality shall assess all property at “seventy per cent of present true and actual value”). Disputing the valuation, the plaintiff appealed to the board seeking a reduction in the property assessment. See General Statutes § 12-111 (providing for appeal to board). After the board declined to alter the assessment, the plaintiff appealed from the board’s decision to the trial court. See General Statutes § 12-117a. While this matter was on appeal in the trial court, the town continued to assess the plaintiffs property at its 1989 valuation, and the plaintiff amended its appeal to include the assessment years 1990 through 1995. See General Statutes § 12-177a.

The only substantive issue on which the trial court heard evidence in the de novo proceedings pursuant to § 12-117a was whether the 1989 assessment was excessive. The principal witness for the plaintiff was William Kane, a professional appraiser who had conducted an appraisal of the plaintiffs property. Kane testified that, based on the capitalization approach to property valuation, the fair market value of the plaintiffs property, in 1989, was $11,700,000. The principal witness for the town was William French, also a professional appraiser. French testified that he had performed two valuation studies of the plaintiffs property, one using the cost approach to property valuation and the other using the capitalization approach advocated by the plaintiff. He testified that, in 1989, the property had a fair market value of $12,346,000 under the cost approach and $12,106,000 under the capitalization approach. No one associated with the 1989 reassessment testified at trial, and the town submitted no evidence that would support its original $13,045,000 valuation of the plaintiffs property.

In an October 18, 1995 memorandum of decision (October, 1995 decision), the trial court determined that “the plaintiff [had] met its burden [of proving] that the assessor’s [$13,045,000] valuation was not the true and accurate value of the property.” The court found that the capitalization approach advocated by the plaintiff was the more appropriate method of valuation under the circumstances of this case. It also found, however, that Kane’s appraisal suffered from a “number of factual inaccuracies” that rendered Kane a less “careful, thorough and credible” witness than French and undermined the court’s confidence in his testimony. Accordingly, the court concluded that the fair market value of the property was $12,106,000, the valuation reached by French using the capitalization approach.

Thereafter, the plaintiff filed a motion with the trial court pursuant to § 12-117a, seeking, as a remedial matter, to recover prejudgment interest on the taxes overpaid between 1989 and 1995 as a result of the overassessment. A hearing was held in March, 1996, at which time both parties presented evidence regarding the plaintiffs right to interest and the applicable interest rate. In an April 9, 1996 memorandum of decision (April, 1996 decision), the trial court opened its judgment and granted the plaintiff the relief it had requested. The court concluded that, as an aggrieved taxpayer, the plaintiff had a mandatory right to prejudgment interest under § 12-117a and that, under General Statutes § 37-3a, the rate of such interest was mandatorily fixed at 10 percent. After permitting the parties to submit proposed calculations consistent with this decision, the trial court awarded the plaintiff $27,795.77 in interest on its tax overpayment.

On appeal, the town challenges both the trial court’s October, 1995 decision substantively reducing the assessment and its April, 1996 decision awarding prejudgment interest to the plaintiff. With respect to the October, 1995 decision, the town claims that the assessment reduction was improper because the plaintiff failed to satisfy its burden of proving overvaluation. With respect to the April, 1996 decision, the town claims that, in awarding mandatory interest at 10 percent, the trial court failed to exercise proper discretion under § 12-117a. We disagree with the town’s first claim but agree with its second claim. We will address each claim in turn.

I

The parties do not dispute the principles that govern a trial court’s decision whether to reduce a property valuation. “Whether a property has been overvalued for tax assessment purposes is a question of fact for the trier. . . . Mere overvaluation is sufficient to justify redress under [§ 12-117a], and the court is not limited to a review of whether an assessment has been unreasonable or discriminatory or has resulted in substantial overvaluation.” (Citations omitted; internal quotation marks omitted.) Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 103-104, 626 A.2d 1292 (1993). The trial court tries a § 12-117a appeal de novo. Id., 104; see also Xerox Corp. v. Board of Tax Review, 240 Conn. 192, 204, 690 A.2d 389 (1997); New Haven Water Co. v. Board of Tax Review, 166 Conn. 232, 234, 348 A.2d 641 (1974). Although the ultimate question at this de novo proceeding “is the ascertainment of the true and actual value of the taxpayer’s property”; (internal quotation marks omitted) Newbury Commons Ltd. Partnership v. Stamford, supra, 104; the taxpayer bears the burden of establishing the impropriety of the assessor’s valuation. Xerox Corp. v. Board of Tax Review, supra, 204.

In this case, the town urges us to conclude that, as a matter of law, the plaintiff failed to meet its burden. The town contends that, because the trial court did not credit Kane’s testimony and because Kane was the plaintiffs principal witness, the plaintiff “utterly failed” to present evidence establishing an overassessment. Although the town concedes that the testimony of its own expert, French, supported the valuation reached by the trial court, it contends that the court should not have considered French’s testimony once the court had rejected Kane’s testimony. We are unpersuaded.

Because a tax appeal is heard de novo, a trial court judge “is privileged to adopt whatever testimony he reasonably believes to be credible.” (Internal quotation marks omitted.) Newbury Commons Ltd. Partnership v. Stamford, supra, 226 Conn. 99; cf. Eichman v. J & J Building Co., 216 Conn. 443, 452, 582 A.2d 182 (1990) (in deficiency judgment hearing, trier of fact “is privileged to adopt whatever testimony he reasonably believes to be credible” [internal quotation marks omitted]). This principle applies not only to the trial court’s determination of the true and actual value of taxable property, but also to its determination of whether the plaintiff has satisfied the burden of establishing overvaluation. See Midway Green Corp. v. Board of Tax Review, 8 Conn. App. 440, 442, 512 A.2d 984 (1986) (“[t]he ultimate decision for the court is whether, considering all of the evidence. . . the plaintiff has proved by a fair preponderance of the evidence that any of the assessments on its property were illegal or excessive” [emphasis added]).

The fact that, in this case, the testimony that the trial court found credible was presented by the town’s own expert does not undermine the applicability of this principle. Because the burden of proving overvaluation rested on the plaintiff, the town was under no obligation to submit expert evidence in support of its valuation. Having submitted such evidence, however, the town cannot circumscribe its significance or prevent the trial court from relying on it for substantive purposes. See CTB Ventures 55, Inc. v. Rubenstein, 39 Conn. App. 684, 692-94, 667 A.2d 1272 (1995), cert. denied, 235 Conn. 940, 669 A.2d 577 (1996) (in deficiency judgment hearing, trial court may rely on defendant’s expert in finding that plaintiff has satisfied burden of proof).

The propriety of the trial court’s reliance on the town’s expert witness finds support in the “waiver rule.” Under this rule, when a trial court denies a defendant’s motion for a directed verdict at the close of the plaintiffs case, the defendant, by opting to introduce evidence in his or her own behalf, waives the right to appeal the trial court’s ruling. See Dindo v. Grand, Union Co., 331 F.2d 138, 141 (2d Cir. 1964); State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984). The rationale for this rule is that, by introducing evidence, the defendant undertakes a “risk that the testimony of defense witnesses will fill an evidentiary gap in the [plaintiffs] case.” State v. Rutan, supra, 440. On appeal in such cases, the “question becomes whether . . . there is evidence in the entire record” to justify submitting the matter to a trier of fact. (Emphasis added.) Warner v. Kewanee Machinery & Conveyor Co., 411 F.2d 1060, 1063 (6th Cir. 1969), cert. denied, 398 U.S. 906, 90 S. Ct. 1685, 26 L. Ed. 2d 65 (1970); see also 9 J. Wigmore, Evidence (4th Ed. 1981) § 2496, pp. 402-403. Although we have questioned the continuing viability of the waiver rule in the criminal context; see State v. Rutan, supra, 441; we have never questioned its applicability in the civil context. Id. The town has articulated no persuasive reason why the rationale underlying the waiver rule should not operate in a tax appeal to allow a trial court to render judgment for a taxpayer on the basis of the testimony of the town’s own, admittedly sufficient, expert evidence.

Accordingly, we conclude, in light of the record at the trial as a whole, that the plaintiff satisfied its burden of establishing an overassessment. The town cannot succeed in its appeal from the trial court’s judgment rendered in conformance with the court’s October 18, 1995 memorandum of decision.

II

We next consider the town’s claim that the trial court improperly awarded prejudgment interest to the plaintiff. The trial court based the interest award on two underlying determinations: (1) that § 12-117a creates a mandatory right to prejudgment interest once a taxpayer establishes that his property has been overassessed; and (2) that § 37-3a fixes that rate of interest at 10 percent. The town takes issue with both of these determinations, claiming that neither the award of interest nor the rate at which such interest should be calculated is statutorily mandated. We agree with the town.

A

In determining whether the award of interest under § 12-117a is mandatory or discretionary, we are guided by settled principles of statutory construction. “Our 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. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994).

At the time the plaintiff filed its action in this case, § 12-117a provided in relevant part that “[t]he court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable . . . and, upon all . . . applications, costs may be taxed at the discretion of the court. If the assessment made by the board of tax review is reduced by said court, the [taxpayer] shall be reimbursed by the town or city for any overpayment of taxes, together with interest and costs, or, at the [taxpayer’s] option, shall be granted a tax credit for such overpayment, interest and costs. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such [taxpayer] and against such city or town for the whole amount of such overpayment, together with interest and costs.”

In its April, 1996 decision, the trial court construed this language to provide a mandatory right to prejudgment interest. The court acknowledged that “[t]he award of prejudgment interest has traditionally been considered as a discretionary judicial function,” but inferred from use of the word “shall” a legislative intent that the interest provisions of § 12-117a fall outside this traditional function. We do not agree with the trial court.

We begin by recognizing that, as used in § 12-117a, the term “shall” does not carry a fixed connotation. Under the statute, “shall” applies to three forms of relief: reimbursement, interest and costs. See General Statutes § 12-117a (aggrieved taxpayer “shall be reimbursed . . . together with interest and costs”). There is no dispute that the trial court is required to order a municipality to reimburse an aggrieved taxpayer for overpayments resulting from overassessment. Thus, with respect to reimbursement, the term “shall” carries a mandatory connotation. There is also no dispute, however, that a trial court is not statutorily required to award costs to an aggrieved taxpayer. See General Statutes § 12-117a (“costs may be taxed at the discretion of the court”). Thus, with respect to costs, the term “shall” does not carry a mandatory connotation. The question presented in this case is whether the term “shall,” as it applies to interest, carries the mandatory connotation associated with reimbursement or the directory connotation associated with costs.

In answering this question, we are guided by past cases construing the legislature’s use of the term “shall.” “In determining whether the use of the word ‘shall’ is mandatory or directory, the test is whether the prescribed mode of action is of the essence of the thing to be accomplished. . . . That test must be applied with reference to the purpose of the statute.” (Citations omitted; internal quotation marks omitted.) Eichman v. J & J Building Co., supra, 216 Conn. 450; see also LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990). Contrary to the trial court’s opinion, we do not agree that the allowance of interest is the “essence of the thing to be accomplished” by § 12-117a. The primary purpose of that statute is to afford an aggrieved taxpayer a forum for challenging and, if appropriate, correcting a property assessment. See Pauker v. Roig, 232 Conn. 335, 340, 654 A.2d 1233 (1995) (§ 12-117a “allows a taxpayer to challenge the assessor’s valuation of his property”). The right to interest, like the right to costs, is ancillary to this primary purpose. Although the statutory predecessor to § 12-117a was first enacted in 1878; Public Acts 1878, c. 32, § 1; the legislature did not adopt the interest provisions until 1933. Public Acts 1933, c. 217, § 1. We decline to hold that the allowance of interest is the “essence of the thing to be accomplished” by § 12-117a when the statute did not explicitly provide for this form of relief until over fifty years after its enactment.

Our conclusion that the use of the term “shall” was intended to be directory is supported by a contextual reading of § 12-117a. Immediately precedent to the language concerning interest, § 12-117a provides that “[t]he court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable . . . .” (Emphasis added.) The trial court did not address this language in its memorandum of decision. We deem it inappropriate, however, to interpret the interest provision in § 12-117a without also considering the discretionary language to which that provision is adjoined. “[E]ach part or section [of a statute] 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 [part] to be construed.” (Internal quotation marks omitted.) State v. Spears, 234 Conn. 78, 91, 662 A.2d 80, cert. denied, 516 U.S. 1009, 116 S. Ct. 565, 133 L. Ed. 2d 490 (1995).

Interpreting the interest provision of § 12-117a as discretionary also harmonizes the right to interest under § 12-117a with the right to interest under General Statutes § 12-119. Section 12-119 provides in relevant part that a taxpayer may obtain judicial relief where its property assessment was “manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property . . . .” As a substantive matter, therefore, the taxpayer bears a heavier burden under § 12-119 than under § 12-117a and must establish something more egregious than mere overvaluation in order to prevail under § 12-119. See Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 340, 597 A.2d 326 (1991) (under § 12-119, taxpayer must prove either absolute nontaxability of property or manifest and flagrant disregard of statutes). Despite this demanding substantive requirement, we have construed § 12-119 to afford only a discretionary, rather than mandatory, right to interest. See Loomis Institute v. Windsor, 234 Conn. 169, 181-82, 661 A.2d 1001 (1995). It would be inconsistent for the legislature to have provided a more limited, discretionary, right to interest for a taxpayer who establishes a greater injury under § 12-119 than for a taxpayer who demonstrates a lesser injury under § 12-117a. In concluding that § 12-117a does not entitle a taxpayer to interest as a matter of right, we interpret the statutory language to avoid such inconsistency. See Powers v. Ulichny, 185 Conn. 145, 149, 440 A.2d 885 (1981).

Accordingly, we conclude that the trial court improperly determined that the plaintiff was afforded a nondiscretionary statutory right to interest under § 12-117a. The trial court, on remand, will have to decide, as a matter of judicial discretion, whether to provide this form of relief to the plaintiff.

B

If, on remand, the trial court determines that a discretionary award of interest is appropriate in light of the facts of record, the trial court will have to decide what the appropriate rate of interest for any such award should be. Recognizing that § 12-117a does not supply an applicable rate, the trial court in this case relied on § 37-3a and concluded that, under that statute, the legislature has fixed the rate of prejudgment interest at 10 percent. The town disagrees and contends that § 37-3a sets only a maximum interest rate and that a trial court may exercise its equitable powers under § 12-117a to award interest at any level up to this maximum. We agree with the town.

As a preliminary matter, we recognize that the trial court relied on § 37-3a without addressing the procedural requirements of that statute. Section 37-3a provides in relevant part that prejudgment interest “may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable.” (Emphasis added.) We have construed this statute to give rise to two procedural requirements, pursuant to which a trial court must determine: “(1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated.” Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 735, 687 A.2d 506 (1997); see also Metcalfe v. Talarski, 213 Conn. 145, 160, 567 A.2d 1148 (1989). As the town points out, because the plaintiff voluntarily paid more in taxes than was required under § 12-117a; see footnote 3 of this opinion; it may be problematic either to hold that the town “wrongfully detained” the plaintiffs money or to attempt to ascertain exactly when this “wrongful detention began.”

That this action does not fit squarely within the parameters of § 37-3a, however, neither renders interest unavailable under § 12-117a nor renders § 37-3a irrelevant to the present dispute. The plaintiffs right to interest derives from the text of § 12-117a and, to the extent that the interest provisions of that statute are self-activating, a trial court may award prejudgment interest without finding that the procedural requirements of another interest statute, including § 37-3a, have been satisfied. A trial court, however, should not ignore the text of § 37-3a when awarding interest under § 12-117a. To the extent that § 37-3a reflects a legislative determination that the rate of prejudgment interest must fall within certain limits, a trial court awarding prejudgment interest under § 12-117a should look to § 37-3a for guidance in setting an appropriate rate. We turn, therefore, to determining what guidance properly can be derived from § 37-3a.

Section 37-3a provides in relevant part that “interest at a rate of ten per cent, and no more, may be recovered and allowed in civil actions . . . .” (Emphasis added.) Although the trial court recognized that the phrase “and no more” suggests arate ceiling, it concluded, primarily on the basis of legislative history, that this figure actually represents an absolute amount and is, therefore, not subject to downward variation. The court reasoned that if the legislature had actually intended to set a rate ceiling, § 37-3a would provide for “interest at a rate of no more than ten per cent a year” and that, in the absence of this or similar syntax, the legislature probably included the phrase “and no more” only “out of abundant caution.” We disagree with this analysis.

“It is a basic tenet of statutory construction that the legislature did not intend to enact meaningless provisions. . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous.” (Citations omitted; internal quotation marks omitted.) Castagno v. Wholean, 239 Conn. 336, 346, 684 A.2d 1181 (1996). The trial court’s interpretation of § 37-3a fails to accord proper weight to these principles. It is true that the language now codified at § 37-3a has undergone numerous revisions and that, at an earlier point, this language arguably was phrased in more emphatic terms. See Public Acts 1873, c. 87, § 2 (“no greater rate of interest than seven per cent, per annum shall be recovered or allowed”). Over the course of these revisions, however, the legislature has seen fit neither to delete “and no more” nor to include language barring the judiciary from awarding interest below the stated rate. Under these circumstances, we decline to negate, judicially, the significance of the phrase “and no more” by holding that § 37-3a fixes the rate of prejudgment interest at 10 percent. We conclude instead that, consistent with its plain language, § 37-3a establishes a maximum rate above which a trial court should not venture in the absence of specific legislative direction. See White Oak Corp. v. Dept. of Transportation, 217 Conn. 281, 297, 585 A.2d 1199 (1991) (§ 37-3a “permits recovery of interest ... at a maximum rate of 10 percent” [emphasis added]).

A trial court acting pursuant to § 12-117a has broad discretion to award interest up to this maximum rate. See General Statutes § 12-117a (trial court may grant relief “upon such terms and in such manner and form as appear equitable”). In exercising this equitable authority, a trial court may consider all relevant information and should allow the parties, if appropriate, to submit evidence relative to the rate of interest available during the period of overassessment. Although the trial court in this case heard evidence from both parties tending to show that interest was available at a rate less than 10 percent; see footnote 9; it improperly disregarded this evidence upon concluding that the rate of interest under § 37-3a was not subject to variation.

The judgment is affirmed with respect to the reduction of the plaintiffs tax assessment. The judgment is reversed with respect to the award of prejudgment interest to the plaintiff, and the case is remanded for a determination of the amount of prejudgment interest, if any, to which the plaintiff is entitled.

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

MCDONALD, J.,

with whom BERDON, J., joins, concurring and dissenting. I concur in parts I and II B of the majority opinion. I dissent as to part II A.

In part II A, the majority defines “shall” with respect to prejudgment interest payable to the taxpayer under General Statutes § 12-117a as meaning “may.” “In other words, according to the majority, ‘shall’ means shall when the court wants it to mean shall, but ‘shall’ does not mean shall when the court is of another mind.” Doe v. Statewide Grievance Committee, 240 Conn. 671, 688, 694 A.2d 1218 (1997) (Berdon, J., dissenting). Only in Wonderland does shall mean may. See id., 688 n.5.

In its holding, the majority renders the words of commandment entirely permissive. This distortion of plain language would confound philologists, should disturb the trial bench, and makes light of the authority of the General Assembly.

Accordingly, I respectfully dissent, with the hope that the majority does not read dissent as agreement.

       At the time the plaintiff filed this action, the provisions that constitute General Statutes § 12-117a were codified at General Statutes (Rev. to 1989) § 12-118. That section provided in relevant part: “Any person . . . claiming to be aggrieved by the action of the board of tax review in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated .... [T]he pendency of such application shall not suspend an action by such town or city to collect not more than seventy-five per cent of the tax so assessed or not more than ninety per cent of such tax with respect to any real property for which the assessed value is five hundred thousand dollars or more, and upon which such appeal is taken. If, during the pendency of such appeal, a new assessment year begins, the applicant may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year and such applicant need not appear before the board of tax review to make such amendment effective. The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such maimer and form as appear equitable, and, if the application appears to have been made without probable cause, may tax double or triple costs, as the case appears to demand; and, upon all such applications, costs may be taxed at the discretion of the court. If the assessment made by the board of tax review is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and costs, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and costs. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and costs. The amount to which the assessment is so reduced shall be the assessed value of such property on the grand lists for succeeding years until the tax assessor finds that the value of the applicant’s property has increased or decreased.”

       Although the board is the named defendant, the town of West Hartford has prosecuted this appeal and, as the entity responsible for reimbursing the plaintiff for tax oveipayment and any interest thereon, is the real party in interest.

       While this matter was on appeal in the trial court, the plaintiff continued to pay 100 percent of its taxes in accordance with the 1989 assessment, despite the fact that, under § 12-117a, it could have withheld up to 10 percent of its tax obligation during the pendency of the assessment appeal. See footnote 1 of this opinion. The plaintiff, moreover, frequently paid this full amount in advance of the tax due dates.

       The plaintiff originally alleged that the assessment was “grossly excessive, disproportionate and unlawful.” In response to this court’s opinion in Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 626 A.2d 1292 (1993), the plaintiff sought and was granted leave to amend its allegations to state that the assessment was only “excessive or illegal.”

       The “capitalization approach to value consists of methods, techniques, and mathematical procedures that an appraiser uses to analyze a property’s capacity to generate benefits (i.e., usually the monetary benefits of income and reversion) and convert these benefits into an indication of present value.” (Internal quotation marks omitted.) First Bethel Associates v. Bethel, 231 Conn. 731, 739, 651 A.2d 1279 (1995).

       Following Kane’s testimony and after the plaintiff had rested, the town moved for judgment, contending that, due to oversights in Kane’s appraisal report and trial testimony, the plaintiff had failed to establish that the assessment was excessive. The trial court denied this motion, stating that the evidence, if viewed “in the light most favorable to the plaintiff, [was] certainly enough to go to the trier of fact.” For purposes of procedural clarification, we construe this motion for judgment as a motion for dismissal under § 302 of the rules of practice.

       “The cost approach estimates the cost to reproduce the building as it exists, minus applicable depreciation, plus the value of the land.” New Haven Savings Bank v. West Haven Sound Development, 190 Conn. 60, 65 n.8, 459 Conn. 999 (1983).

       These inaccuracies flowed primarily from Kane’s decision to omit from his appraisal report approximately 8000 square feet of floor space located on the third floor of the plaintiffs department store. Kane reasoned that, because this floor space contained only mechanical equipment and did not contribute directly to the plaintiffs income, it did not factor into a valuation based on the capitalization approach. The trial court rejected this reasoning.

       The plaintiffs evidence tended to show that interest was available at a rate of 9.35 percent during the period of overassessment. The town presented evidence placing that figure at 5.15 percent.

       General Statutes § 37-3a provides in relevant part: “Except as provided in sections 37-3b, 37-3c and 52-192a, interest at a rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable. . . .”

       The town erroneously assumes that, by upholding the trial court’s assessment reduction, we are inviting taxpayers “to appeal assessments, offer some scintilla of evidence, no matter how lacking, that the town’s valuation may be high, and [thereby] require a town to devote resources to justify its [assessment].” There are three flaws in this argument. First, as a factual matter, the plaintiff in this case offered much more than a “scintilla of evidence” supporting overvaluation. The plaintiffs expert,, Kane, was a qualified professional appraiser who had conducted a detailed study on the value of the plaintiffs property. That the Irial court ultimately rejected Kane’s appraisal after weighing and considering all of the evidence does not render his testimony entirely lacking. Second, as a legal matter, a town is never “require[d] ... to devote resources to justify” the accuracy of its assessment. The burden of proof remains on the taxpayer throughout the proceeding, and the town may, at its discretion, rest its case without submitting countervailing' evidence. Finally, as a practical matter, if a taxpayer has offered patently insufficient evidence tending to show overvaluation, a town may conserve its resources by moving for dismissal under § 302 of the rules of practice at the close of the plaintiffs case. In this case, the town’s motion for dismissal was denied; see footnote 6 of this opinion; prompting it to proceed with its own case and to call French to testify. In so doing, the town concedes that it took a calculated risk that French’s testimony would undermine, rather than support, the 1989 assessment. See State v. Rutan, supra, 194 Conn. 440. Contrary to the town’s position, this risk, inherent in all civil litigation, does not serve to shift the burden of proof from the taxpayer to the town.

       At the time, § 12-117a was codified at § 12-118. See footnote 1 of this opinion.

       In 1996, the legislature amended the relevant portion of § 12-117a to provide that, as of the assessment year commencing October 1, 1995, an aggrieved taxpayer “shall be reimbursed by the town or city for any overpayment of taxes, together with interest, and ANY costs AWARDED BY THE COURT, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and ANY costs AWARDED BY THE COURT. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and ANY costs AWARDED BY THE COURT.” Public Acts 1996, No. 96-1, § 3. Neither party has suggested that these amendments have any bearing on the present appeal or on a taxpayer’s right to interest arising out of overassessments in years prior to the applicable date of the act. We have discovered no legislative history indicative of a legislative purpose that these amendments were to have a clarifying or retroactive effect. For these reasons we decline to consider the applicability of Public Acts 1996, No. 96-1, § 3, to this appeal and express no opinion on the significance of this amendment in any future appeal arising under § 12-117a.

       Contrary to the town’s position, the fact that the plaintiff tendered its tax payments prior to their due dates or paid 100 percent of its assessment when it was not required to do so; see footnote 3 of this opinion; does not automatically preclude the plaintiff from receiving interest. In exercising its authority to award interest, the trial court may take into account these and all other circumstances related to the plaintiffs tax payments.

       It is useful in this regard to contrast the right to interest under § 12-119. Because that statute gives the trial court no explicit textual authority to award interest, an aggrieved taxpayer may seek interest under the provisions of another statute. See Loomis Institute v. Windsor, supra, 234 Conn. 181-82 (taxpayer invoked § 37-3a).

       This holding is not inconsistent with our opinion in Neiditz v. Morton S. Fine & Associates, Inc., 199 Conn. 683, 690-93, 508 A.2d 438 (1986). The issue in Neiditz was whether, by increasing the rate of interest in § 37-3a from 6 to 8 percent; see Public Acts 1979, No. 79-364, § 2; the legislature had intended to effect a retroactive change in the law. The trial court, in Neiditz had applied the interest increase to events arising before the effective date of the amendment. We concluded that this was improper. In the course of our discussion, we held that a trial court does not have “discretion with regard to the applicable rate of interest” and that “§ 37-3a presumably reflects the legislature’s view of the rate of interest. . . obtainable while the money was being wrongfully withheld.” Neiditz v. Morton S. Fine & Associates, Inc., supra, 691-92. We made these statements, however, in connection with the trial court’s improper decision to adopt the 1979 interest rate and thereby to award interest at a rate greater than that allowed in the applicable version of § 37-3a. In Neiditz, we had no occasion, therefore, to consider whether a trial court may award interest at a rate less than that specified in § 37-3a.