text:
    Holly Hill Holdings v. George D. Lowman et al.
    (14707)
    Peters, C. J., Borden, Berdon, Norcott and Palmer, Js.

      Argued April 30
    decision released August 3, 1993

      Robert L. Trowbridge, with whom was Ronald W. Lindlauf, for the appellants (defendants).

      Harold B. Finn III, with whom were Donna Nelson Heller, Jennifer B. Rubin and, on the brief, Richard W. Painter and Edmund M. Remondino, for the appellee (plaintiff).
   Peters, C. J.

The principal issue in this certified appeal is whether, under the circumstances of this case, an “as is” clause in a contract conveying real property precludes a transferee from prevailing on either a private right of action or a special defense based on a transferor’s noncompliance with pretransfer disclosure regulations. The plaintiff, Holly Hill Holdings, brought this foreclosure action against the defendants, George D. Lowman, A1 Aydagul and Klaus W. H. Beckmann, grounded on Beckmann’s default on a note and mortgage securing property that the plaintiff had conveyed to the defendants. The defendants defended against the foreclosure action and counterclaimed for monetary damages, alleging a violation of § 22a-449 (d)-l of the-Regulations of Connecticut State Agencies because of the plaintiff’s nondisclosure of unused underground gasoline storage tanks that existed on the property. Accepting the findings and recommendation of an attorney trial referee, the trial court rendered judgment for the plaintiff on both the claim and counterclaims and ordered strict foreclosure. The defendants appealed to the Appellate Court, which subsequently affirmed the judgment of the trial court. We granted the defendants’ petition for certification to appeal from the judgment of the Appellate Court and now affirm.

The opinion of the Appellate Court; Holly Hill Holdings v. Lowman, 30 Conn. App. 204, 619 A.2d 853 (1993); includes the following relevant facts. The plaintiff sold to the defendants certain property that, prior to its conveyance, had been used as a service station. Id., 207. The contract for sale specified that the defendants were buying the property “as is.” Id., 206-207. Prior to agreeing to purchase the property, each of the defendants had actual knowledge of the existing underground gasoline storage tanks (tanks) that were associated with the service station. Id., 209-10. The plaintiff did not, however, give to either the defendants or the department of environmental protection the written notification contemplated by § 22a-449 (d)-l. See footnotes 2 and 5.

Following conveyances among the defendants, and the defendants’ subsequent default, the plaintiff initiated this foreclosure action. In their respective answers, the defendants asserted several special defenses as well as counterclaims against the plaintiff. The principal basis for the special defenses and counterclaims was the plaintiff’s alleged failure to disclose the existence of the tanks in accordance with § 22a-449 (d)-l (f) prior to the original property-transfer.

The Appellate Court upheld the trial court’s judgment in favor of the plaintiff on the ground that the underground storage tanks did not fall within the disclosure requirement for “existing facilities” contained in § 22a-449 (d)-l (f), because the existence of the tanks predated the effective date of the regulations. Id., 216-18. That court also concluded that the plaintiff’s failure to provide notice to the department of environmental protection pursuant to § 22a-449 (d)-l (d) did not establish a private cause of action for the defendants. Id., 218-21. We granted the defendants’ petition for certification to appeal from the Appellate Court judgment.

In accordance with the questions certified for appeal, the defendants maintain that the Appellate Court improperly determined that the disclosure requirement contained in § 22a-449 (d)-l (f) did not apply to the tanks in this case. They further argue that subsection (f) also affords a private right of action and that they should prevail on their special defenses and counterclaims because of the plaintiffs nondisclosure pursuant thereto. Although we agree with the defendants that subsection (f) applies to the tanks, we affirm the judgment of the Appellate Court because we agree with the plaintiff that a transferee who purchases property “as is” cannot thereafter maintain either a private right of action or a special defense based on an alleged nondisclosure of known facts.

I

We turn first to the defendants’ claim that the Appellate Court improperly concluded that § 22a-449 (d)-l (f) did not require the plaintiff to disclose the existence of the tanks prior to the property transfer. The Appellate Court determined that underground tanks that were temporarily out-of-service prior to the effective date of the regulations are not “existing facilities” for the purpose of subsection (f) of the regulation. Holly Hill Holdings v. Lowman, supra, 217. It concluded that such tanks were subject to the disclosure requirements only of § 22a-449 (d)-l (d). Id., 218.

The Appellate Court’s construction of the regulation cannot stand in light of our recent decision in Diamond v. Marcinek, 226 Conn. 737, 629 A.2d 350 (1993). In that case, which involved underground gasoline storage tanks unused since the mid-1940s, we held that even tanks that are “temporarily out-of-service” pursuant to § 22a-449 (d)-l (a) fall within the disclosure requirement for “existing” facilities contained in subsection (f). Id., 744-45. That holding is equally applicable to the present case, which also involves underground gasoline storage tanks, albeit unused since only 1985. Unless the parties have contracted to the contrary, therefore, the plaintiff was bound to disclose the existence of the storage tanks to the defendants prior to the conveyance of the property to them.

II

The principal issue in this appeal is, therefore, whether a transferor’s failure to give written notification to its transferee in accordance with the requirements of § 22a-449 (d)-l (f) gives rise to a private cause of action that can be asserted by the transferee who has bought property “as is,” with actual knowledge of a material part of the information encompassed within the regulation’s disclosure requirement. The defendants argue that, without proper disclosure, the transfer of real property containing underground storage facilities harms them as transferees and that they must, therefore, be allowed redress through a private right of action against the transferor. In response, the plaintiff contends that a private right of action would exist only if expressly so provided by the governing statutes and regulations and, furthermore, that, even if such a right were to be inferred, it should not be available here. We conclude that, in the circumstances of this case, the terms of the contract conveying the property preclude the defendants’ special defenses and counterclaim.

The dispositive inquiry is whether, assuming that we would recognize a private right of action, the transferee could prevail on that action in a case, such as this, where the transferee purchased the property “as is” with actual knowledge that it may contain the particular environmental hazard that is the focus of the regulation at issue. In the circumstances of this case, therefore, the proper focus is not on the meaning of the regulation, but on the terms of the contract to which the parties agreed. 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).

With this background in mind, we now consider the “as is” clause contained in the contract that provided for the property conveyance between the plaintiff and the defendants. Just 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. Accordingly, as a general matter, a clause for the sale of property “as is” is enforceable. See, e.g., Century Display Mfg. Corporation v. D. R. Wager Construction Co., 71 Ill. 2d 428, 435, 376 N.E.2d 993 (1978).

The “as is” clause in the contract between the plaintiff and the defendants in this case must be given effect. Far from being mere “boilerplate” language, it was explicitly added to a preprinted contract form during the negotiations for the sale of the property. Furthermore, the defendants agreed to the clause despite their actual knowledge of the property’s prior use as a service station. On this record, the defendants cannot argue that they were induced to agree to the clause because of misrepresentations on the part of the plaintiff.

The defendants contend, nonetheless, that the general contract rule should be set aside in this case because they were mistaken, not about the existence of a potential environmental hazard, but about its extent. They cannot prevail on this point, however, because the purpose and effect of an “as is” clause is to shift the burden of such a mistake to the accepting party. See Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 408, 456 A.2d 325 (1983) (“[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”); see also 1 Restatement (Second), Contracts § 154 (1981). The agreement to accept the property “as is,” in the circumstances of this case, precludes the defendants from relying on § 22a-449 (d)-l (f) in the present foreclosure action.

The judgment is affirmed.

In this opinion the other justices concurred.

       The original mortgagors were George D. Lowman and A1 Aydagul. Aydagul quitclaimed his one-half interest in the property to Klaus W. H. Beckmann; pursuant to their agreement, Beckmann explicitly assumed all of Aydagul’s obligations. Following the plaintiffs initiation of this action, Lowman conveyed his one-half interest in the property by way of quitclaim deed to Beckmann. Although all three are defendants in this action, Beckmann is the sole owner of the property.

       Section 22a-449 (d)-l of the Regulations of Connecticut State Agencies provides in relevant part: “control of the nonresidential underground STORAGE AND HANDLING OF OIL AND PETROLEUM LIQUIDS . . .
      “(f) TRANSFER OF FACILITIES
      “(1) No owner or operator shall transfer ownership, possession or control of any new or existing facility without full disclosure to the transferee of the status of the facility with respect to compliance with these regulations at least fifteen (15) days prior to the transfer. Such disclosure shall include an up-to-date copy of the information submitted to the commissioner pursuant to subsection (d).”

       See footnote 6.

       The property consisted of an office building, a garage and an asphalt “island” on which gasoline pumps were formerly mounted. During attempted renovations of the property, the defendants removed four underground gasoline storage tanks associated with the service station. The parties do not dispute that the tanks have been the source of some expense because of their removal and accompanying waste cleanup costs. It is those tanks that are the subject of this appeal.

       Section 22a-449 (d)-l (d) of the Regulations of Connecticut State Agencies provides in relevant part: “reporting
      “(1) By May 8,1986, the owner or operator of each existing facility shall notify the commissioner and the office of the local fire marshal of the results of the life expectancy determination required by subsection (h).
      “(2) Within thirty days following completion of installation of a new facility an owner or operator shall notify the commissioner and the office of the local fire marshal of the results of the life expectancy determination required by subsection (h).
      “(3) The notification required by subdivisions (1) and (2) of this subsection shall include but not be limited to the following: facility location and capacity, date of installation, contents, type of facility, and type of monitoring systems, if any, results of life expectancy determinations, and any other information which the commissioner deems necessary.
      “(4) By May 8,1986, the owner or operator of an abandoned or temporarily out-of-service facility shall notify the commissioner of the location, type and capacity of such facility and the date it was abandoned or removed from service. . . .”

       We granted the petition for certification as to the following questions:
      “1. Does the Underground Storage Tank Regulation, General Statutes § 22a-449, apply to a temporarily out-of-service facility?
      “2. If the answer to the first question is yes, under the circumstances of this case did the failure of the plaintiff to comply with that regulation give rise to either a special defense or a private right of action in the defendants?” Holly Hill Holdings v. Lowman, 225 Conn. 912, 623 A.2d 1021 (1993).
      The Appellate Court neither decided nor discussed the particular issue presented in the second question, which pertains to § 22a-449 (d)-l (f) of the Regulations of Connecticut State Agencies, because, as discussed in the text, it answered the first question in the negative. Although it did address the question whether a violation of subsection (d) of § 22a-449 (d)-l affords a private right of action, that determination is not before us. Nevertheless, even if the Appellate Court determination regarding subsection (d) is within the scope of the certified questions, we need not address it for the same reason that we do not address the general issue of a private right of action as it pertains to subsection (f). See footnote 8 and accompanying text.

       Section 22a-449 (d)-l (a) of the Regulations of Connecticut State Agencies provides in relevant part: “definitions
      “ ‘Abandoned’ means rendered permanently unfit for use. . . .

        “ ‘Existing facility’ means a facility the construction or installation of which began prior to the effective date of these regulations.
      “ ‘Facility’ means a system of interconnected tanks, pipes, pumps, vaults, fixed containers and appurtenant structures, singly or in any combination, which are used or designed to be used for the storage, transmission or dispensing of oil or petroleum liquids, including any monitoring devices. As used in these regulations, the term ‘facility’ refers only to nonresidential underground facilities. . . .
      “ ‘New facility’ means a facility the construction or installation of which begins on or after the effective date of these regulations, including but not limited to facilities which replace existing facilities and facilities which are moved from one location to another. . . .
      “ ‘Temporarily out-of-service’ means not in use, in that no regular filling or drawing is occurring; or not established and maintained in accordance with these regulations; or not regularly attended and secured. . . .”

       We need not decide, therefore, whether a private right of action exists for a violation of § 22a-449 (d)-l (f) of the Regulations of Connecticut State Agencies. Our holding, properly understood in the circumstances of this case, is that, even if we were to interpret the regulation to provide a private right of action, the transferee cannot prevail thereon in a situation where the transferee contracted to accept property “as is.” This issue, we note, was not presented and, consequently, not addressed in Diamond v. Marcinek, 226 Conn. 737, 629 A.2d 350 (1993).


source: Caselaw Access Project

author:
Peters, C. J.
      Berdon, J., Katz, J.,

license: Public Domain

text:
    Joseph Ambroise et al. v. William Raveis Real Estate, Inc., et al.
    (14694)
    Peters, C. J., Borden, Berdon, Katz and Palmer, Js.
    Argued June 8
    decision released August 3, 1993

      Charles S. Harris, with whom was Arthur B. Harris, for the appellants (plaintiffs).

      Melvin J. Silverman, for the appellees (named defendant et al.).

      Catherine P. Whelan, for the appellees (defendant Stephen Melillo et al.).
   Peters, C. J.

The dispositive issue in this case is whether an appeal from the denial of a prejudgment remedy may be taken after the expiration of the seven day time period specified by General Statutes § 52-278l. The plaintiffs, Joseph Ambroise and Rosita Ambroise, made an application for a prejudgment remedy seeking an order, after a hearing, for the attachment of personal and real property owned by the defendants, William Raveis Real Estate, Inc., James Ero, Stephen Melillo and Marlene B. Melillo. The underlying cause of action claimed a right to damages arising out of the defendants’ alleged misrepresentations in connection with the plaintiffs’ purchase of residential real property. After hearing the arguments of counsel, but without making a finding with regard to probable cause, the trial court denied the plaintiffs’ application. The trial court concluded that the prejudgment remedy statutes; General Statutes § 52-278a et seq.; facially violate the requirements of due process under the Connecticut and the United States constitutions because the statutes do not require an applicant to post a bond before obtaining a prejudgment remedy. The plaintiffs appealed to this court pursuant to General Statutes § 51-199 (b) (2). We dismiss their appeal.

The procedural facts of the plaintiffs’ appeal are undisputed. The parties received notice of the trial court’s decision on January 26,1993. The plaintiffs filed their appeal on February 16, 1993. The defendants Stephen Melillo and Marlene Melillo filed a timely motion to dismiss the plaintiffs’ appeal, which we denied without prejudice to its reconsideration at the time of full argument. The statute governing the timeliness of the plaintiffs’ appeal is § 52-2781. Subsection (a) of the statute provides that an order “denying a prejudgment remedy following a hearing under section 52-278d . . . shall be deemed a final judgment for purposes of appeal.” Subsection (b) provides that “[n]o such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken.” Because the jurisdiction of this court is defined by statute; Grieco v. Zoning Commission, 226 Conn. 230, 231, 627 A.2d 432 (1993); State v. Ayala, 222 Conn. 331, 338-41, 610 A.2d 1162 (1992); State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983); noncompliance with § 52-2781 raises a challenge to this court’s subject matter jurisdiction. See Plasil v. Tableman, 223 Conn. 68, 72-73 n.8, 612 A.2d 763 (1992); City National Bank v. Davis, 181 Conn. 42, 45-46, 434 A.2d 310 (1980); cf. Iovieno v. Commissioner of Correction, 222 Conn. 254, 258-61, 608 A.2d 1174 (1992).

In the face of their noncompliance with the seven day time limit of § 52-278l, the plaintiffs proffer two arguments that their appeal is nonetheless timely. They contend, on the one hand, that their appeal is not governed by § 52-278l, and, on the other hand, that the defendants have waived any noncompliance by not pursuing the timeliness issue further in the briefs filed subsequent to our denial, without prejudice, of their motion to dismiss. Neither contention is tenable.

I

The plaintiffs’ principal contention is that their appeal is timely because it is governed by the twenty day period of Practice Book § 4009 rather than by the seven day period of § 52-278l. The linchpin of this argument is the claim that the denial of their prejudgment remedy did not fall within the terms of § 52-2781 (a), which speaks of a denial “following a hearing.” According to the plaintiffs, the hearing contemplated by § 52-2781 (a) is an evidentiary hearing, not a hearing at which counsel merely present arguments of law.

Even assuming that the plaintiffs are correct in asserting that § 52-2781 does not apply, the insurmountable difficulty with their argument is that it assumes the applicability of the twenty day period, as a default position, whenever § 52-2781 is inapplicable. The Practice Book provision does not, however, confer jurisdiction upon the appellate courts of this state. See General Statutes § 51-14. Appellate jurisdiction depends upon compliance with General Statutes § 52-263, which requires either an antecedent final judgment or a granting of a motion to set aside a verdict. In the context of prejudgment remedies, whatever the law might have been previously; see, e.g., E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 630, 356 A.2d 893 (1975); the applicable definition of an appealable final judgment on a prejudgment remedy application at the present time is that contained in § 52-278l.

In other words, if the plaintiffs are correct that the decision from which they seek to appeal does not fall within § 52-2781 (a), that decision is an interlocutory ruling that is not separately appealable. See City National Bank v. Davis, supra, 45-46. On the other hand, if the plaintiffs are incorrect and the trial court did deny the plaintiffs a prejudgment remedy under § 52-2781, the seven day filing requirement applies, and their appeal is untimely.

II

The plaintiffs likewise cannot succeed on their alternate contention that the defendants have waived the untimeliness of the plaintiffs’ appeal. The seven day statutory time period for taking an appeal pursuant to § 52-278l is subject matter jurisdictional, and thus was not waivable by the defendants. Plasil v. Tableman, supra, 72-73 n.8.

Our cases regarding appellate time limitations have generally followed one of three lines of analysis. The first line of cases holds that, because the twenty day time limitation on appeals imposed by Practice Book § 4009 is not subject matter jurisdictional, we have discretion to hear a late appeal. See, e.g., Kelley v. Bonney, 221 Conn. 549, 558-59, 606 A.2d 693 (1992); Connelly v. Doe, 213 Conn. 66, 69-70 n.4, 566 A.2d 426 (1989); but see DeTeves v. DeTeves, 202 Conn. 292, 520 A.2d 608 (1987) (Practice Book § 4040 limits power of trial court to one twenty day extension of time to appeal). The rationale for this rule is that the twenty day period established by § 4009 is not a “constitutionally or legislatively created condition precedent to the jurisdiction of this court. The source of the authority for the adoption of the rule lies in the inherent right of constitutional courts to make rules governing their procedure.”LaReau v. Reinke, 158 Conn. 486, 492, 264 A.2d 576 (1969). Such time constraints, which are created by the courts, can be waived by the courts.

The second line of cases holds that time limitations on the right to appeal that are contained in statutes, rather than in the provisions of the Practice Book, are subject matter jurisdictional. See, e.g., Plasil v. Tableman, supra, 72-75 (seven day time limit on appeal from prejudgment remedy order under § 52-2781); see also Iovieno v. Commissioner of Correction, supra (General Statutes § 52-470 limits discretion of habeas corpus court to consider petitions for certification to appeal filed within ten days of decision only). The rationale for this line of cases is that our appellate subject matter jurisdiction is created by statute, and we have no power to enlarge or circumscribe it. See, e.g., Grieco v. Zoning Commission, supra.

The third line of cases holds, contrary to cases in the second line of cases, that some statutory time limitations on the right to appeal are discretionary, rather than jurisdictional. See, e.g., Cardoza v. Zoning Commission, 211 Conn. 78, 81 n.4, 557 A.2d 545 (1989) (seven day time limitation on appeal to Appellate Court from trial court ruling on motion to dismiss zoning appeal; time period not jurisdictional); Giordano Construction Co. v. Ross, 182 Conn. 577, 579, 438 A.2d 772 (1980) (seven day time limitation for appeal from prejudgment remedy action under § 52-2781) time period not jurisdictional); see also State v. Ayala, 222 Conn. 331, 342, 610 A.2d 1162 (1992) (Chief Justice has discretion to waive noncompliance with two week requirement for appeal under General Statutes § 52-265a; time period not jurisdictional). We have not, however, articulated what principle differentiates these cases from those in the second line of cases.

On further reflection, we now conclude that the proper analysis of a statutory time limitation on the right to appeal devolves into a question of statutory construction: did the legislature, in imposing the time limitation, intend to impose a subject matter jurisdictional requirement on the right to appeal? “We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984). 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. Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987) . . . . Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987).

“Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. LeConche v. Elligers, 215 Conn. 701, 709, 579 A.2d 1 (1990), quoting Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981).” (Internal quotation marks omitted.) Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991). “The issue presented, therefore, is whether the legislature intended to make [§ 52-278l (b)] notice an additional requirement for [appellate] subject matter jurisdiction.” Id., 460. Furthermore, taking into account “the established principle that every presumption is to be indulged in favor of jurisdiction”; (internal quotation marks omitted) id.; Tolly v. Department of Human Resources, 225 Conn. 13, 29, 621 A.2d 719 (1993); we require a strong showing of a legislative intent to create a time limitation that, in the event of noncompliance, acts as a subject matter jurisdictional bar.

In our view, contrary to the normal presumption in favor of subject matter jurisdiction, the legislature, in imposing the time limitation contained in § 52-2781 (b), manifested its intent to make this time constraint mandatory and not waivable. Our conclusion finds support in the language, the historical background and the purpose of the statute.

The language of § 52-2781 (b) is clear and emphatic: “No such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken.” That language means what it says. Cf. General Statutes § 52-265a (a). The literal reading of § 52-2781 (b) is buttressed, moreover, by reference to § 52-2781 (c), which reverses the ordinary rules regarding automatic stays on appeal by mandating that the order is not stayed by an appeal unless the party appealing posts a sufficient surety bond.

It is significant, furthermore, that § 52-2781 contains a statutory time period for taking an appeal with regard to a statutory remedy that has no common law counterpart. The right to a prejudgment remedy of attachment is purely statutory. Farmers & Mechanics Savings Bank v. Garofalo, 219 Conn. 810, 813, 595 A.2d 341 (1991); Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 582-83, 376 A.2d 60 (1977); Carter v. Carter, 147 Conn. 238, 242, 159 A.2d 173 (1960); Munger v. Doolan, 75 Conn. 656, 659, 55 A. 169 (1903). “Where ... a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter. ... In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone. . . . [Ujnder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time, even by the court sua sponte, and may not be waived.” (Citations omitted.) Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987) (wrongful death action); Vecchio v. Sewer Authority, 176 Conn. 497, 504-505, 408 A.2d 254 (1979) (appeal from sewer assessment); Hillier v. East Hartford, 167 Conn. 100, 104-105, 355 A.2d 1 (1974) (tort action against municipalities pursuant to General Statutes § 13a-149); Diamond National Corporation v. Dwelle, 164 Conn. 540, 546-47, 325 A.2d 259 (1973) (enforcement of mechanic’s lien). It is reasonable to infer, therefore, that the legislature intended the limitation on the right to appeal contained in § 52-2781 to operate similarly to these statutory time limitations on the right to initiate a statutory action.

Finally, the manifest purpose of § 52-2781 (b) is to permit the parties to know within a very brief period of time whether the order is final or is going to be challenged on appeal. That purpose is particularly significant in a case, such as this, in which the trial court denies the application for prejudgment remedy. The seven day time period creates a narrow window of opportunity for appeal, after which the property owner, without regard to a possible attachment, can justifiably rely on the state of his property’s title to encumber it or to transfer it to a third person. A holding that the time period is discretionary and therefore can be waived would undermine that legislative purpose.

We therefore adhere to our holding in Plasil v. Tableman, supra. The failure to take an appeal within the time constraints of § 52-2781 results in an absence of subject matter jurisdiction that cannot be waived by the parties or by the court. Castro v. Viera, 207 Conn. 420, 429-30, 541 A.2d 1216 (1988).

The appeal is dismissed.

In this opinion Borden and Palmer, Js., concurred.

Berdon, J.,

with whom

Katz, J.,

joins, dissenting. All parties in this appeal invite us to decide the merits of the important issue raised in this case—whether our prejudgment remedy statute is unconstitutional because the party in whose favor it is granted is not required to post a bond or give other security. Although this issue has previously eluded us; Calfee v. Usman, 224 Conn. 29, 40, 616 A.2d 250 (1992); it has been raised in another case decided today. Accordingly, I write separately not on the merits of the bond issue, but to express my concerns about the majority’s expansive definition of subject matter jurisdiction.

The majority dismisses the appeal because it was not taken within the time period specified by General Statutes § 52-278l, believing that the failure to comply with the time limit implicates our subject matter jurisdiction. Although I agree with the general principle that subject matter jurisdiction cannot be waived; Castro v. Viera, 207 Conn. 420, 429-30, 541 A.2d 1216 (1988); I disagree with the result in this case because the failure to abide by the time limitation in a statute does not involve subject matter jurisdiction.

“Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong.” (Internal quotation marks omitted.) Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991). Surely, we have jurisdiction to hear an appeal from the denial of a prejudgment remedy. General Statutes § 52-2781. Of course, the appeal must be timely taken, but that involves only personal jurisdiction and therefore may be waived by the parties. See, e.g., Cardoza v. Zoning Commission, 211 Conn. 78, 81 n.4, 557 A.2d 545 (1989) (failure to appeal trial court’s order on motion to dismiss within seven days; General Statutes § 8-8 [d]; does not implicate subject matter jurisdiction and can be waived); see also C. Tait, Connecticut Appellate Practice and Procedure (1989) § 3.13.

Just last year we made it clear that time limitations implicate personal jurisdiction. In re Baby Girl B., 224 Conn. 263, 288, 618 A.2d 1 (1992) (implicit waiver of the time limitation on a motion to open a judgment under General Statutes § 52-212a). Indeed, in Giordano Construction Co. v. Ross, 182 Conn. 577, 579, 438 A.2d 772 (1980), which is overruled by the majority today, we specifically held that the time limitation in § 52-2781 did not involve subject matter jurisdiction. “The fact that the appeal statute specifies a time period in which to take an appeal does not mean that an appeal taken beyond the specified time is void. The untimely filing of an appeal is merely an irregularity and not a jurisdictional defect.” Id.

The majority, conceding that this court’s prior rulings have been inconsistent, now adopts a new rule. Under this new rule, we must focus on whether the legislature, in imposing the time limitation, intended to impose a subject matter jurisdictional requirement on the right to appeal. If the plain language of § 52-2781 specifically provided that this court does not have jurisdiction to hear such matters unless the time limitations are met, I would agree. To arrive at such a result by way of statutory construction, however, will lead to the same bizarre results that we have experienced in the past. For example, the majority states that § 52-2781 clearly and emphatically mandates that time limitations must be honored before we may exercise our jurisdiction. This construction is inconsistent with LeConche v. Elligers, 215 Conn. 701, 709, 579 A.2d 1 (1990), in which we held that the failure to file a good faith certificate in a medical malpractice case did not implicate subject matter jurisdiction, notwithstanding the statute’s unequivocal mandate that “[n]o action . . . shall be filed” without it. General Statutes (Rev. to 1987) § 52-190a. It seems to me that if a direct prohibition from entertaining a law suit does not implicate subject matter jurisdiction, a mere time limitation should not implicate subject matter jurisdiction.

The majority also argues that it is significant that the right to a prejudgment remedy of attachment does not have common law roots. The majority contends that because the time limitation is contained within a statute that creates a right of action that did not exist at common law, the remedy exists only during the prescribed period and not thereafter. The present prejudgment remedy statute is derived from the statutory attachment procedure. The antecedent to the statutory attachment procedure, in Connecticut, was the common law. Barber v. Morgan, 84 Conn. 618, 622, 80 A. 791 (1911). “The purpose of attachment in each case was to compel the defendant to appear and to answer to the action; and, as is apparent from the statutes, attachment on original process was designed chiefly to reach nonresidents and absconders. . . . This was its purpose at common law, of which our process by attachment is an offspring. ‘At common law an attachment, as part of the service of process in a civil suit, is a species of distress, in which the effects attached were the ancient vadii or pledges.’ . . . ‘The writ of attachment was a very ancient judicial process designed to coerce an appearance on pain of eventual outlawry.’ ” (Citations omitted; emphasis added.) Id. Accordingly, even under the rule crafted by the majority, the time limitations do not implicate subject matter jurisdiction.

In addition, the majority advances no policy reason for distinguishing between statutory time limitations grounded in actions whose antecedents have roots in the common law and time limitations contained within the statute that created the right. Indeed, this decision is contrary to “the well-established principle that every presumption favoring jurisdiction should be indulged.” Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 421 n.3, 426 A.2d 1324 (1980). “There is certainly nothing inherently unconstitutional or jurisdictional in time constraints. We ourselves have refused to hold jurisdictional the provision in Practice Book § 3007 [now § 4009] that imposes a twenty day limitation on appeals to this court.” Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 299, 441 A.2d 183 (1982) (Peters, J., concurring).

In the present case, the majority states that the “manifest purpose of § 52-2781 (b) is to permit the parties to know within a very brief period of time whether the order is final or is going to be challenged on appeal.” Surely, a litigant has the right to rely on such a time limitation and the matter can be dismissed on the ground that the court does not have personal jurisdiction. Nevertheless, if the parties wish to waive the time limitation they may do so. In re Baby Girl B., supra, 288. Why should the court be concerned if the parties wish to waive the time limitation?

Time limitations are always procedural and exist to protect the parties, unless the legislature specifically states that the court has no jurisdiction if the time limitation is not honored. I cannot recall an example of such a statute. The present case is especially compelling because the defendant in open court waived the time limitations in which an appeal must be filed.

In Baldwin Piano & Organ Co. v. Blake, supra, Chief Justice Peters opined that the time limitation in General Statutes § 52-278j, also a part of the prejudgment remedy statutory scheme, was not jurisdictional: ‘T am troubled by the apparent readiness of the majority opinion to grant procedural priority to any challenge to judicial action as long as that challenge is couched in terms of jurisdiction. I recognize that the position taken by the majority has strong roots in history and in our case law. I doubt, however, that the interests of efficient administration of justice are best served by attaching talismanic effect to the label ‘jurisdictional,’ especially when the issue is at most one of jurisdiction over the person.” Id., 298 (Peters, J., concurring).

Furthermore, a lack of subject matter jurisdiction can have very serious consequences even after the litigation terminates. A judgment rendered without subject matter jurisdiction is invalid. Trichilo v. Trichilo, 190 Conn. 774, 777-78, 462 A.2d 1048 (1983). In the wake of this opinion, every time one party waives a time limitation, the other party will be in the uncertain position of trying to determine whether it can rely on the waiver because no one can fully predict what this court will ultimately hold.

Today, the court’s casting of procedural defaults into defaults that implicate our subject matter jurisdiction results in “a mere exaltation of form over substance.” Simko v. Zoning Board of Appeals, 206 Conn. 374, 391, 538 A.2d 202 (1988) (Shea, J., dissenting). ‘Tt is the courts, the legal profession and the public generally, not just the [parties], who are the losers when serious cases like this one fail to be resolved on their merits because of some procedural deficiency.” Hughes v. Bemer, 200 Conn. 400, 405, 510 A.2d 992 (1986) (Shea, J., dissenting).

Since the defendants at oral argument waived the time requirements in § 52-278l, I would get to the merits of the case.

Accordingly, I respectfully dissent.

       General Statutes § 52-2781 provides: “appeal, (a) An order (1) granting or denying a prejudgment remedy following a hearing under section 52-278d or (2) granting or denying a motion to dissolve or modify a prejudgment remedy under section 52-278e or (3) granting or denying a motion to preserve an existing prejudgment remedy under section 52-278g shall be deemed a final judgment for purposes of appeal.
      “(b) No such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken.
      “(c) No such order shall be stayed by the taking of an appeal except upon the order of the judge who made such order, and any such stay shall be granted only if the party taking the appeal posts a bond, with surety, in a sum determined by such judge to be sufficient to indemnify the adverse party for any damages which may accrue as a result of such stay.
      “(d) If a motion to discharge such prejudgment remedy is brought by the defendant, the property affected by such remedy may be restored to the use of the defendant, if the defendant posts a bond with surety in an amount determined by such judge to be sufficient to indemnify the plaintiff for any damages which may accrue by the defendant’s continued use of such property, until such time as such motion is decided.”

       Unlike the litigants in Giordano Construction Co. v. Ross, 182 Conn. 577, 579, 438 A.2d 772 (1980), the plaintiffs in this ease did not file in the trial court a timely motion for extension of the time to take an appeal.

       Practice Book § 4009 provides in relevant part: “time to appeal
      “The party appealing shall, within twenty days, except where a different period is provided by statute, from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal in the manner prescribed by Sec. 4012; but if within the appeal period any motion is filed which, if granted, would render the judgment or decision ineffective, as, for example, a motion to open the judgment or to set aside the verdict or for judgment notwithstanding the verdict, the period of time for filing an appeal shall commence from the issuance of notice of the decision upon the motion or the expiration of the time within which a remittitur is ordered filed. . . ."

       General Statutes § 51-14 provides in relevant part: “rules of COURT. DISAPPROVAL OF BY GENERAL ASSEMBLY. HEARINGS, (a) The judges of the supreme court, the judges of the appellate court, and the judges of the superior court shall adopt and promulgate and may from time to time modify or repeal rules and forms regulating pleading, practice and procedure in judicial proceedings in courts in which they have the constitutional authority to make rules, for the purpose of simplifying proceedings in the courts and of promoting the speedy and efficient determination of litigation upon its merits. The rules of the appellate court shall be as consistent as feasible with the rules of the supreme court to promote uniformity in the procedure for the taking of appeals and may dispense, so far as justice to the parties will permit while affording a fair review, with the necessity of printing of records and briefs. Such rules shall not abridge, enlarge or modify any substantive right nor the jurisdiction of any of the marts. ...” (Emphasis added.)

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

       We note that this particular time limitation is no longer applicable. A trial court ruling on a motion to dismiss a zoning appeal is now reviewable, not by way of an appeal, but by a petition for certification for review addressed to the Appellate Court, pursuant to the rules of practice governing such petitions. See General Statutes § 8-8 (j) and (o).

        Giordano Construction Co. v. Ross, 182 Conn. 577, 579, 438 A.2d 772 (1980), cannot be squared with Plasil v. Tableman, 223 Conn. 68, 612 A.2d 763 (1992). We, therefore, overrule Giordano Construction Co. to the extent that it holds that the time limitation for appeal contained in General Statutes § 52-2781 does not implicate subject matter jurisdiction.

       General Statutes § 52-265a (a) provides: “Notwithstanding the provisions of sections 52-264 and 52-265, any party to an action who is aggrieved by an order or decision of the superior court in an action which involves a matter of substantial public interest and in which delay may work a substantial injustice, may appeal under this section from the order or decision to the supreme court within two weeks from the date of the issuance of the order or decision. The appeal shall state the question of law on which it is based.”

       General Statutes § 52-2781 (c) provides: “No such order shall be stayed by the taking of an appeal except upon the order of the judge who made such order, and any such stay shall be granted only if the party taking the appeal posts a bond, with surety, in a sum determined by such judge to be sufficient to indemnify the adverse party for any damages which may accrue as a result of such stay.”

       “The original purpose of an attachment was not to secure the satisfaction of a judgment in favor of the plaintiff, should one be obtained, but to secure the appearance of the defendant. Barber v. Morgan, 84 Conn. 618, 622, 80 Atl. 791 [1911].” Coit v. Sistare, 85 Conn. 573, 577, 84 A. 119 (1912). Coit explains why, despite the common law antecedents of an attachment, we have consistently held the statutory right to obtain an attachment of property to provide an exclusive remedy. “Being in derogation of both common right and common law, it is one to be strictly interpreted and pursued.” Munger v. Doolan, 75 Conn. 656, 659, 55 A. 169 (1903).

        Sassone v. Lepore, 226 Conn. 773, 629 A.2d 357 (1993).

       The statement in Plasil v. Tableman, 223 Conn. 68, 72-73 n.8, 612 A.2d 763 (1992), that the time limitation in General Statutes § 52-278l implicated subject matter jurisdiction was mere dicta and was made in reference to an order that was not before the court. The court predicated its decision on another order which was timely taken.

       General Statutes § 52-278j provides: “(a) If an application for a prejudgment remedy is granted but the plaintiff, within thirty days thereof, does not serve and return to court the writ, summons and complaint for which the prejudgment remedy was allowed, the court shall dismiss the prejudgment remedy.
      “(b) If an application for a prejudgment remedy is denied and the plaintiff, within thirty days thereof, does not serve and return to court the writ of summons and complaint for which the prejudgment remedy was requested, or if a date for a hearing upon a prejudgment remedy is scheduled by the clerk and such hearing is not commenced within thirty days thereof, except as provided in section 52-278e, the court shall order the application to be considered as having been withdrawn.
      “(c) An application for a prejudgment remedy or a prejudgment remedy which is granted but not served may be withdrawn in the same manner as a civil cause of action.”


author: Peters, C. J. Berdon, J., Katz, J.,

text:
    Robert Sassone et al. v. Richard Lepore et al.
    (14693)
    Peters, C. J., Callahan, Borden, Berdon, Katz, Palmer and Santaniello, Js.

      Argued June 8
    decision released August 3, 1993

      Donald W. Celotto, Jr., with whom, on the brief, were John A. Keyes and Martin M. Looney, for the appellants (plaintiffs).

      Ellery E. Plotkin, with whom was Vincent J. Freccia III, for the appellees (defendants).

      Catherine P. Whelan and Melvin J. Silverman filed a brief for William Raveis Real Estate, Inc., et al. as amici curiae.

       This case was orally argued on June 8, 1993, before a court of five justices consisting of Chief Justice Peters and Justices Borden, Berdon, Katz and Palmer. The court subsequently determined that the case should be considered en banc. Pursuant to Practice Book § 4112, Justices Callahan and Santaniello were added to the court and considered the case upon full review of the record, briefs and transcript of the oral argument.

   Peters, C. J.

The dispositive issue in this appeal is whether the prejudgment remedy statutes, General Statutes §§ 52-278c and 52-278d, are unconstitutional on their face because they permit a prejudgment attachment without expressly requiring the applicant to post a bond or other security. The plaintiffs, Robert Sassone and Total Home Inspection Associates, Inc., applied for a prejudgment remedy in conjunction with their complaint that the defendants, Richard Lepore and Total Home Inspection, Inc., had failed to honor a covenant not to compete. Without holding an evidentiary hearing, the trial court denied the plaintiffs’ application on the ground that the absence of a bonding requirement made the prejudgment remedy statutes facially unconstitutional. The plaintiffs have appealed to this court pursuant to General Statutes §§ 51-199 (b) (2) and 52-278l, We reverse and remand for further proceedings.

I

Before considering the substantive merits of the plaintiffs’ appeal, we must address the plaintiffs’ legitimate grievance about the procedural manner in which the trial court disposed of their application for a prejudgment remedy. On the date specified for a hearing on their application, the plaintiffs appeared in the trial court, prepared to present evidence and witnesses in support of their application. The defendants had interposed no objection, constitutional or otherwise, to the conduct of an evidentiary hearing on the merits of the plaintiffs’ application. Nonetheless, the trial court, on its own initiative, summarily summoned counsel to chambers. Without affording the parties the opportunity to be heard on either the evidentiary or the constitutional merits of the pending application, the court informed them that it would undertake an inquiry into the constitutionality of the prejudgment remedy statutes. In this apparently brief encounter, the trial court alerted counsel to its uncertainty about the constitutional validity of the prejudgment remedy statutes in the absence of a statutory requirement that an applicant post a security bond to protect against a wrongful attachment. In response, the plaintiffs thereafter offered to tender a bond in whatever amount and form the court would deem acceptable. The court took no action on that proffer.

It is understandable that the trial court would not have wanted to hold an evidentiary hearing on the plaintiffs’ application for a prejudgment remedy if the court thought that such a hearing would be pointless in the face of perceived constitutional obstacles. Once the court came to that decision, which, so far as the record shows, was not prompted by anything that transpired in this case, the court should, however, have made reasonable efforts to inform the plaintiffs, in advance of their appearance in court with their witnesses, that no evidentiary hearing would be held.

It is not understandable that the court would have undertaken to rule on the constitutionality of a state statute without affording the parties the opportunity to present argument. The constitutionally guaranteed right of access to our courts; Conn. Const., art. I, § 10; expressly includes the right to “have remedy by due course of law.” A “remedy by due course of law” necessarily encompasses the right to be heard. Depriving a party of a statutory right without an antecedent hearing that addresses the validity of the applicable statute violates the principles of due process; Brein v. State Eclectic Examining Board, 103 Conn. 65, 85, 130 A. 289 (1925), appeal dismissed, 273 U.S. 640, 47 S. Ct. 97, 71 L. Ed. 817 (1926); as well as this court’s repeated injunction that every statute carries with it a strong presumption of constitutionality. Calfee v. Usman, 224 Conn. 29, 33, 616 A.2d 250 (1992); Bartholomew v. Schweizer, 217 Conn. 671, 675, 587 A.2d 1014 (1991).

Viewing the procedure employed by the trial court in its totality, we agree with the plaintiffs that the court improperly deprived them of their right to be heard. Basic principles of courtesy and fairness govern the conduct of courts as well as that of litigants and their counsel. The trial court’s conduct did not comport with these principles.

II

Although the improper manner in which the trial court disposed of the plaintiffs’ prejudgment remedy application would itself be a ground for reversal of its decision, we will consider the validity of the court’s constitutional ruling. The trial court’s decision has cast a serious constitutional shadow over the validity of our prejudgment remedy statutes. We will, therefore, exercise our appellate discretion to review that decision because a matter of substantial public interest is at stake and because the substantive merits of the issue have been fully briefed and argued in this court. Cf. State v. Ayala, 222 Conn. 331, 341, 610 A.2d 1162 (1992).

Our consideration of the merits of the trial court’s ruling is governed by three well established principles that delimit constitutional challenges to validly enacted statutes. “Because a statute carries with it a strong presumption of constitutionality, a challenger must establish its unconstitutionality beyond a reasonable doubt. Bartholomew v. Schweizer, [supra, 675]; State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991); Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988). In the absence of weighty countervailing circumstances, it is improvident for the court to invalidate a statute on its face. Lehrer v. Davis, 214 Conn. 232, 234-35, 571 A.2d 691 (1990); Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987); State v. Zach, 198 Conn. 168, 176-78, 502 A.2d 896 (1985). In construing a statute, the court must search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent. Bartholomew v. Schweizer, supra, 675-76; State v. Floyd, supra; McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 705-706, 553 A.2d 596 (1989).” Calfee v. Usman, supra, 33.

Analysis of the constitutional validity of the prejudgment remedy statutes cannot proceed in the abstract. A claim that a statute fails, on its face, to comport with the constitutional requirements of procedural due process reflects a fundamental misunderstanding of the law of due process. Due process is inherently fact-bound because “due process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). “The constitutional requirement of procedural due process thus invokes a balancing process that cannot take place in a factual vacuum.” Lehrer v. Davis, supra, 238; see also Shawmut Bank, N.A. v. Valley Farms, 222 Conn. 361, 368-69, 610 A.2d 652, cert. dismissed, U.S. , 113 S. Ct. 28, 120 L. Ed. 2d 952 (1992). In the absence of a constitutional challenge implicating the defendants’ rights to freedom of speech, the only constitutional issue before the trial court was, therefore, whether the prejudgment remedy statutes deprived the defendants of their rights to procedural due process in the particular circumstances of their case, and not merely under some possible or hypothetical set of facts not proven to exist. DiBerardino v. DiBerardino, 213 Conn. 373, 383, 568 A.2d 431 (1990); Husti v. Zuckerman Property Enterprises, Ltd., 199 Conn. 575, 589, 508 A.2d 735, appeal dismissed, 479 U.S. 802, 107 S. Ct. 43, 93 L. Ed. 2d 373 (1986) (same rule under article first, §§ 4 and 5, of the Connecticut constitution).

In light of the truncated nature of the proceedings in the trial court, we have no factual record against which to test the validity of the trial court’s constitutional ruling. We will, therefore, treat the plaintiffs’ appeal as if it were an appeal from a judgment following the granting of a motion to strike a complaint. In reviewing such a judgment, we take the facts to be those alleged in the complaint, and construe the complaint in the manner most favorable to sustaining its legal sufficiency. Kelly v. Figueiredo, 223 Conn. 31, 32, 610 A.2d 1296 (1992); Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738 (1988).

Accordingly, we assume the following facts as alleged in the plaintiffs’ complaint. In 1991, the individual plaintiff entered into a written agreement with the defendants to purchase the assets and the business of the defendant corporation, which was engaged in conducting home inspections. The asset purchase agreement expressly allocated $33,000 of the $73,000 contract price to a covenant not to compete. Although the defendants received full payment at the time of the closing, they never executed a written covenant not to compete. In 1992, the defendants resumed their solicitation of home inspection business in competition with the plaintiffs’ business.

The plaintiffs’ complaint sought a variety of remedies. They claimed that they were entitled: (1) to an injunction to enforce the defendants’ covenant not to compete; (2) to damages for breach of the defendants’ contractual obligation to deliver a written covenant not to compete and for misrepresentations on the part of the defendants; and (3) to damages and counsel fees because of the defendants’ violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b.

The issue that we must address is whether, if a trial court were to find probable cause to order a prejudgment remedy in light of these alleged facts, such an order would violate the defendants’ rights to procedural due process. Connecticut v. Doehr, U.S. , 111 S. Ct. 2105, 2112, 115 L. Ed. 2d 1 (1991), instructs us to address this issue by using the tripartite test of Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). That test requires a consideration of “the private interest that will be affected by the official action,” “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards . . . and . . . the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id., 335. Because increased procedural safeguards in disputes between private litigants will rarely impose a substantial fiscal or administrative burden on the government, the court in Doehr supplemented the Mathews test by requiring consideration as well of the interest of the party seeking the prejudgment remedy.

We have already acknowledged, in Calfee v. Usman, supra, 36, that an attachment in accordance with our prejudgment remedy statutes significantly affects the private interest of the owner of the attached property because, as Doehr held, the attachment is a cloud on the title. Connecticut v. Doehr, supra, 2113. In Calfee v. Usman, supra, 36-38, we concluded that a judicial finding of probable cause in a tort action, after an adversarial hearing pursuant to § 52-278d, provides constitutionally significant protection against an erroneous deprivation of the owner’s property interests. We assumed there, and assume now, however, that further safeguards in our prejudgment remedy statutes, if constitutionally required, would not impose administrative costs that would substantially burden the operation of government.

The focus of the inquiry, therefore, is whether the absence of an express bonding requirement makes our prejudgment remedy statutes unconstitutional on their face because they deprive the property owner of a constitutionally mandated “additional or substitute procedural safeguard” under the second part of the Mathews test. In answering this question in the affirmative, the trial court did not engage in any balancing test. The court assigned no weight to the safeguards that stem from a judicial finding of probable cause after an adversarial hearing in accordance with § 52-278d. The court did not consider whether the facts alleged by the plaintiffs, if satisfactorily established, would substantially diminish the risk of an attachment that would subsequently be determined to have been wrongful. The court did not address the plaintiffs’ interest in procuring a prejudgment remedy. The court concluded instead that, in the absence of a security bond provision, any attachment under the present statutes, regardless of the circumstances, would necessarily and unconstitutionally create a significant risk of an erroneous deprivation of the property owner’s interest. We disagree with the trial court’s method of analysis and with its conclusion.

Just as the requirements of procedural due process are fact-bound, as a general matter, so they are fact-bound with respect to the requirements for a constitutionally acceptable order of attachment. In voicing their constitutional concerns in Doehr about the absence of a bonding requirement in our statutes, Justices White, Marshall, Stevens and O’Connor were in fact considering the need for a bond in the case of an ex parte attachment in connection with a tort claim that they characterized as sufficiently doubtful so as to make “any accurate prediction [of its outcome] elusive.” Connecticut v. Doehr, supra, 2117. That description does not fit all the cases in which an attachment may be ordered by the court.

In the factual circumstances of the present case, for example, the trial court, after an adversarial hearing, might find probable cause to sustain the plaintiffs’ count for breach of contract because of the defendants’ failure to execute and to honor their covenant not to compete. Taking into account the financial circumstances of the parties, and relying on the value that the parties placed on the covenant in their purchase contract, the court might determine that an appropriately limited attachment would require no additional procedural safeguard to protect these defendants from an unconstitutional risk of injury. Finally, the court might find that the plaintiffs had a need for immediate security to protect them against the defendants’ impairment of the value of the property bought only recently from the individual defendant. The constitutional requirements of due process, as applied, might therefore not require the posting of a security bond if the trial court makes the appropriate factual findings. The trial court might, however, conclude to the contrary, determining that a security bond was appropriate to protect the defendants’ property interest in light of all the circumstances including the plaintiffs’ offer to post such a bond.

Our conclusion that any due process requirement for a security bond must be assessed in light of the facts of the particular case finds support in the recent case of Shaumyan v. O’Neill, 987 F.2d 122 (2d Cir. 1993). In that case, the court upheld an ex parte attachment without a security bond in the circumstances of a claim for breach of contract seeking to recover the unpaid portion of the price for goods and services that had been used to improve the defendant landowner’s property. As do we, the court emphasized that the risk of a wrongful deprivation of the landowner’s property depends upon the facts of the case. Id., 128-29. In other federal cases examining similar constitutional concerns, the absence or presence of a security bond has similarly not been held to be a dispositive factor, by itself, in the finding of a constitutional deprivation of procedural due process. See Reardon v. United States, 947 F.2d 1509, 1519-23 (1st Cir. 1991); Watertown Equipment Co. v. Norwest Bank Watertown, N.A., 830 F.2d 1487, 1491-93 (8th Cir. 1987), cert. denied sub nom. Green v. Watertown Equipment Co., 486 U.S. 1001, 108 S. Ct. 1723, 100 L. Ed. 2d 188 (1988); Jones v. Preuit & Mauldin, 822 F.2d, 998, 1005-1006 (1987), aff'd, 851 F.2d 1321 (11th Cir. 1988), vacated on other grounds, 489 U.S. 1002, 109 S. Ct. 1105, 103 L. Ed. 2d 170 (1989); United States v. Vertol H21C Registration No. N8540, 545 F.2d 648, 651-52 (9th Cir. 1976); Jonnet v. Dollar Savings Bank of the City of New York, 530 F.2d 1123, 1129-30 (3d Cir. 1976).

In light of the record presently before us, we might well postpone further consideration of a bonding requirement to another day. It is ordinarily imprudent to venture into constitutional waters until we are compelled to do so. “We are bound never to anticipate a question of constitutional law in advance of the necessity of deciding it [and] never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” (Internal quotation marks omitted.) State v. Zach, 198 Conn. 168, 177, 502 A.2d 896 (1985). It would therefore be preferable to await a case in which the trial court determined, factually, that it could not constitutionally grant an application for an attachment, despite the presence of probable cause, without the additional procedural safeguard of a security bond. Continuing doubts about the availability of this course of action will, however, prolong uncertainty about the constitutionality of prejudgment remedies until newly enacted legislation fills the field. We will therefore address the underlying question of the authority of the trial court, in proper circumstances, to require the posting of a security bond as a condition of an attachment order.

Because the right to a prejudgment remedy of attachment is purely statutory; Farmers & Mechanics Savings Bank v. Garofalo, 219 Conn. 810, 813, 595 A.2d 341 (1991); Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 582-83, 376 A.2d 60 (1977); Carter v. Carter, 147 Conn. 238, 242, 159 A.2d 173 (1960); Munger v. Doolan, 75 Conn. 656, 659, 55 A. 169 (1903); the authority of a trial court to require a security bond or other security for the protection of the property owner whose property is being attached is a question of statutory construction. The crucial language is to be found in § 52-278d (a): “If the court, upon consideration of the facts before it, finds that the plaintiff has shown probable cause to sustain the validity of his claim, then the prejudgment remedy applied for shall be granted as requested or as modified by the court . . . .” (Emphasis added.)

In the absence of any explicit statutory limitation on the power of the trial court to “modify” an application for a prejudgment remedy in whatever manner the court in its discretion deems appropriate, we hold that the court’s authority encompasses the power to require whatever security is constitutionally necessary. If literal construction of a statute raises serious constitutional questions, we are obligated to search for a construction that will accomplish the legislature’s purpose without risking the statute’s invalidity. State v. Floyd, supra, 79; State v. Champagne, 206 Conn. 421, 437, 538 A.2d 193 (1988); Murray v. Lopes, 205 Conn. 27, 36, 529 A.2d 1302 (1987). It is not an unreasonable constitutional stretch to construe “modify” to include judicial authority that, in the appropriate circumstances, extends beyond setting the amount of the attachment and defining the property to be attached. The additional authority that we recognize today includes the court’s responsibility to require the attaching party, in appropriate circumstances, to post security against undue risks from an attachment that may subsequently be found to have been wrongful. We have often undertaken similarly expansive statutory construction to save statutes from constitutional jeopardy. See, e.g., Shawmut Bank, N.A. v. Valley Farms, supra, 372-73 (advancing the time to challenge an order for replevin); State v. Floyd, supra, 89-95 (limiting mandated assistance to police to circumstances where assistance is both necessary and reasonable); Wright v. Commissioner of Correction, 216 Conn. 220, 224-26, 578 A.2d 1071 (1990) (requiring good conduct credits in accordance with requirements of double jeopardy protection); McConnell v. Beverly Enterprises-Connecticut, Inc., supra, 705-706 (preserving personal autonomy in withdrawal of life support systems); State v. Champagne, supra, 434-37 (limiting the scope of seizures under state Corrupt Organizations and Racketeering Activity Act); Kron v. Thelen, 178 Conn. 189, 197, 423 A.2d 857 (1979) (requiring notice of decision before statutory appeal time could begin to run).

We recognize that our construction of the authority conferred by § 52-278d may be criticized on two grounds. One source of criticism is the absence of statutory guidance about the terms or conditions for a security bond, if the trial court deems such a bond to be constitutionally required. The other source of criticism is the presence, in the statute as currently drafted, of a bonding option for property owners seeking relief from a previously ordered prejudgment remedy. We find neither criticism persuasive.

The defendants first contend that a prejudgment remedy statute that confers discretion on a trial court to determine the terms of a security bond violates the requirements of procedural due process. We disagree. Statutes in other states that include express bonding requirements do not universally spell out either the amount of the bond or the obligation that the bond secures. See, e.g., Neb. Rev. Stat. § 25-1003 (1989); N.J. Stat. Ann. § 2A:26-7 (1987); Ore. Rules of Civ. Proc. Ann. 82 A (3) (a) (1993); Wyo. Stat. Ann. § 1-15-104 (1977). The defendants have cited no authority for the proposition that due process requires express statutory standards to guide the exercise of judicial discretion to protect a property owner from an undue risk of erroneous deprivation of his property interest. We would be surprised to discover any such authority, because judicial discretion to protect the procedural rights of the parties is consistent with the fact-bound flexibility that inheres in due process protections. Morrissey v. Brewer, supra. We, therefore, reject this contention.

The defendants maintain, however, that the legislature has spoken definitively about the role of bonds elsewhere in § 52-278d, and that its definitive statement necessarily precludes our construction of § 52-278d (a). The subsection to which they point is subsection (c), which provides: “If a prejudgment remedy is issued and the defendant moves the court for a stay, the court may, if it determines justice so requires, stay such order if the defendant posts a bond, with surety, in a sum determined by such judge to be sufficient to indemnify the adverse party for any damage which may accrue as a result of such stay.” According to the defendants, the legislature, having expressly required a bond to protect the interest of the attaching party, could not have intended impliedly to require a bond to protect the interest of the property owner.

The defendants are correct that “[a] statute must be considered ... as a whole, with a view toward reconciling its separate parts in order to render an overall reasonable interpretation.” Mahoney v. Lensink, 213 Conn. 548, 556, 569 A.2d 518 (1990), and cases therein cited. Bearing in mind, however, the constitutional reasons for an expansive construction of the discretion conferred on the trial court by § 52-278d (a), we are unpersuaded that the legislature intended the bonding provision in § 52-278d (c) to preclude recourse to bonding under other circumstances. The legislature did not characterize § 52-278d (c) as providing an exclusive bonding remedy, and we decline to add such a characterization. Cf. Jones v. Mansfield Training School, 220 Conn. 721, 726-31, 601 A.2d 507 (1992). It might well be inappropriate, in light of § 52-278d (c), to infer the existence of an additional bonding requirement that would impose greater burdens on properly owners than the statute expressly authorizes. Such an inference would be inconsistent with the understanding that attachment statutes are ordinarily to be strictly construed. Union Trust Co. v. Heggelund, 219 Conn. 620, 626, 594 A.2d 464 (1991). It is not inappropriate, by contrast, to infer the existence of an additional bonding requirement that diminishes the property owner’s exposure to the risk of injury from a wrongful attachment. In the absence of an inconsistency, either expressed or implied, between these two bonding requirements, we are not persuaded that the rules of statutory construction compel the drawing of a negative inference from the text of § 52-278d (c) for the text of § 52-278d (a).

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion Callahan, Borden, Palmer and Santaniello, Js., concurred.

Berdon, J.,

with whom

Katz, J.,

joins dissenting. The majority concedes and I agree that the prejudgment remedy statutes, General Statutes §§ 52-278c and 52-278d, would be constitutionally deficient absent a provision allowing the trial judge to condition a prejudgment remedy on the furnishing of a security bond. Calfee v. Usman, 224 Conn. 29, 39-43, 616 A.2d 250 (1992) (Berdon, J., dissenting). The majority refers to No. 93-431 of the 1993 Public Acts, which grants to the trial court the discretionary authority to provide for such a bond. This newly enacted legislation, however, will not be effective until January 1, 1994. Through statutory construction, the majority attempts to repair the current §§ 52-278c and 52-278d by incorporating a bond provision. Unfortunately, the prejudgment remedy statutes simply do not permit such a construction.

In order to reach its conclusion that the current statutes give the trial court authority to require a security bond or other security, the majority focuses on the trial court’s current right to modify the plaintiffs’ request for the prejudgment remedy. Section 52-278d (a) provides in part: “If the court, upon consideration of the facts before it, finds that the plaintiff has shown probable cause to sustain the validity of his claim, then the prejudgment remedy applied for shall be granted as requested or as modified by the court.” (Emphasis added.) The court’s authority to require a “security bond” simply cannot be read, either explicitly or implicitly, into the term “modify.” This court is “ ‘bound to interpret legislative intent by referring to what the legislative text contains, not by what it might have contained.’ . . . Nor can we engraft language not clearly intended by its enactment onto legislation.” (Citation omitted.) Local 218 Steamfitters Welfare Fund v. Cobra Pipe Supply & Coil Co., 207 Conn. 639, 645, 541 A.2d 869 (1988).

If the legislature intended to authorize the court to condition a prejudgment remedy on the posting of a bond, it would have specified that authority in the statutory language. In § 52-278d (c), for instance, the legislature specifically authorized the trial court to order a stay following an order of prejudgment remedy “if the defendant posts a bond.” See also General Statutes § 52-278e (b) (2). “Although this court has the final word on the interpretation of our state statutes, there is a ‘higher authority’—that is, the constitution of the state of Connecticut. Article second of the Connecticut constitution provides in part: ‘The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.’ By placing a construction on this statute that is contrary to its plain and unambiguous text, the majority encroaches on that which is solely reserved to the legislative branch of our government. ‘In the field of legislation, the legislature is supreme. Courts must apply legislative enactments according to their plain terms.’ State v. Malm, 143 Conn. 462, 467, 123 A.2d 276 (1956).” Jones v. Mansfield Training School, 220 Conn. 721, 737-38, 601 A.2d 507 (1992) (Berdon, J., dissenting).

Furthermore, the majority acknowledges that it is sending the matter back to the trial court with the expectation that the trial court will act in accordance with its conclusion that the trial court has the authority to require a bond; nevertheless, this court has not articulated any standard upon which the trial court is to predicate its decision as to whether a bond should be required, the amount of the bond, and the condition of the bond. Rather than making order out of a difficult situation, the majority’s opinion will necessarily cause confusion and conflicting rulings in the trial court.

I would affirm the decision of the trial court. Accordingly, I respectfully dissent.

       General Statutes § 52-278c lists the documents that must be provided by a person desiring to secure a prejudgment remedy.
      General Statutes § 52-278d provides: “hearing on pre judgment remedy APPLICATION. DETERMINATION BY THE COURT. SERVICE OF PROCESS, (a) The defendant shall have the right to appear and be heard at the hearing. The hearing shall be limited to a determination of whether or not there is probable cause to sustain the validity of the plaintiff’s claim. If the court, upon consideration of the facts before it, finds that the plaintiff has shown probable cause to sustain the validity of his claim, then the prejudgment remedy applied for shall be granted as requested or as modified by the court unless the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j.
      “(b) The clerk, upon the granting of the application for prejudgment remedy, shall deliver to the applicant’s attorney the proposed writ, summons and complaint for service of process. If the court does not grant the application for any reason, including the failure of the plaintiff to serve the defendant, only a summons and complaint may be issued and served. In either event, the plaintiff may alter the return date of the writ, summons and complaint or the summons and complaint, as the case may be. No additional entry fee shall be collected upon the return of such action to court unless the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j.
      “(c) If a prejudgment remedy is issued and the defendant moves the court for a stay, the court may, if it determines justice so requires, stay such order if the defendant posts a bond, with surety, in a sum determined by such judge to be sufficient to indemnify the adverse party for any damage which may accrue as a result of such stay.”

       According to the complaint, the named plaintiff, Robert Sassone, is the president and the sole stockholder of the corporate plaintiff, Total Home Inspection Associates, Inc.

       According to the complaint, the named defendant, Richard Lepore, is the president and sole stockholder of the corporate defendant, Total Home Inspection, Inc.

       General Statutes § 51-199 (b) (2) provides in relevant part: “The following matters shall be taken directly to the supreme court ... (2) an appeal in any matter where the superior court declares invalid a state statute or a provision of the state constitution.”
      General Statutes § 52-2781 provides in relevant part: “(a) An order (1) granting or denying a prejudgment remedy following a hearing under section 52-278d or (2) granting or denying a motion to dissolve or modify a prejudgment remedy under section 52-278e or (3) granting or denying a motion to preserve an existing prejudgment remedy under section 52-278g shall be deemed a final judgment for purposes of appeal.
      “(b) No such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken.”

       The constitution of Connecticut, article first, § 10, provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

       We reject the defendants’ contention that the inadequacy of the record is the responsibility of the plaintiffs in the circumstances of this case. The plaintiffs had no reason to anticipate the trial court’s decision to abort the scheduled probable cause hearing. We may take judicial notice of the fact that court stenographers do not ordinarily attend chamber conferences called by a trial judge.

       Effective January 1, 1994, Public Acts 1993, No. 93-431, will expressly confer upon the trial court the discretionary authority to require a security bond as a condition for the issuance or the continued validity of an attachment.

       See footnote 2 of the majority opinion.

       Whether No. 93-431 of the 1993 Public Acts passes constitutional muster is not currently before this court.

       Public Acts 1993, No. 93-431, § 1 (g) provides: “A defendant may request a hearing to contest the application for a prejudgment remedy, assert any exemption or make a request concerning the posting or substitution of a bond. The hearing may be requested by any proper motion or by return to the Superior Court of a signed claim form that indicates, by the checking of the appropriate box on the claim form, whether the claim is an assertion of a defense, counterclaim, set-off or exemption, an assertion that any judgment that may be rendered is adequately secured by insurance, an assertion that the amount sought in the application for the prejudgment remedy is unreasonably high, a request that the plaintiff be required to post a bond to secure the defendant against any damages that may result from the prejudgment remedy or a request that the defendant be allowed to substitute a bond for the prejudgment remedy.” See also Public Acts 1993, No. 93-431, §§ 1 (e) and 2 (a).

       In No. 93-431, § 2, of the 1993 Public Acts, the legislature addressed these issues as follows: “(d) At any hearing on an application for a prejudgment remedy held pursuant to this section or upon motion of the defendant at any time after the granting of such application, the defendant may request that the plaintiff post a bond, with surety, in an amount determined by the court to be sufficient to reasonably protect the defendant’s interest in the property that is subject to the prejudgment remedy against damages that may be caused by the prejudgment remedy. If the court grants the defendant’s request, the bond shall provide that if judgment in the matter is rendered for the defendant or if the prejudgment remedy is dismissed or dissolved, the plaintiff will pay to the defendant damages directly caused by the prejudgment remedy.
      “(e) In determining whether to grant a request for a bond and, if granted, the amount of the bond to be set, the court shall consider the nature of the property subject to the prejudgment remedy, the methods of retention or storage of the property and the potential harm to the defendant’s interest in the property that the prejudgment remedy might cause.
      “(1) Notwithstanding the provisions of subsections (d) and (e) of this section, the court shall waive any bond or lower the amount of any bond ordered pursuant to subsection (e) of this section, upon request for such a waiver by an indigent plaintiff, if, after hearing and a consideration of the probability that a judgment will be rendered in the matter in favor of the plaintiff, the potential harm to the defendant’s interest in the property that the prejudgment remedy might cause, and the likelihood that the defendant will dissipate such property prior to judgment, the court finds that the plaintiff should be entitled to the protections of a prejudgment remedy.”