source: Caselaw Access Project

author: Katz, J.

license: Public Domain

text:
    Connecticut National Bank v. Norman J. Voog
    (15056)
    Peters, C. J., and Borden, Berdon, Norcott and Katz, Js.
    Argued January 11
    decision released May 30, 1995

      Paul R. Kraus, for the appellant (defendant).

      Darrell K. Fennell, with whom, on the brief, was Philip M. Chiappone, for the appellee (plaintiff).
   Katz, J.

The dispositive issue before the court is whether the trial court abused its discretion in concluding that the defendant’s proposed defenses and counterclaim were unrelated to the plaintiff’s complaint and could be raised in a separate cause of action and, consequently, in sustaining the plaintiff’s objection to the defendant’s request for leave to amend his response to include those defenses and the counterclaim. We conclude that it did abuse its discretion, and therefore reverse the trial court’s subsequent rendering of judgment in favor of the plaintiff.

The following facts are undisputed. The plaintiff, Connecticut National Bank (CNB), commenced this action by an application for a prejudgment remedy, dated August 8,1990, to secure, by attachment of real property, any judgment it might obtain against the defendant, Norman Voog, arising from his execution of two promissory notes. The prejudgment remedy was granted by agreement on September 10, 1990. On April 17,1991, pursuant to Practice § Book 251, this case was dismissed by the trial court for failure to prosecute with reasonable diligence because CNB had failed to return a signed writ of summons and complaint to the court. See General Statutes § 52-48. The court subsequently opened this judgment of dismissal, but the case again was dismissed for failure to prosecute with due diligence.

The judgment again was reopened by the court on June 27, 1991, and Voog filed his answer on October 22,1991. He denied the allegations in CNB’s complaint that he had defaulted under the terms and conditions of the two notes, and he asserted the special defense that CNB employees had misrepresented the financial viability of limited partnerships with Colonial Realty Company, Inc. (Colonial), to induce him to borrow the money from CNB and to permit him to purchase some of those limited partnership interests. See Practice Book § 164.

CNB filed a motion to strike the special defense on the ground that there is no duty for a lender to investigate a borrower’s motives or financial status. See Practice Book § 152 (5). In Yoog's absence, on December 24, 1991, the motion was granted. Immediately thereafter, Voog filed a motion to amend his response to which CNB objected. The trial court, Arena, J., heard argument and entered a scheduling order allowing Voog to file an amended answer and any special defenses on or before January 31, 1992, and ordering CNB to file any objection thereto by February 7,1992.

On January 29,1992, Voog filed a request for leave to amend his answer and special defenses, and attached thereto his amended answer, in which he set forth a general denial, four special defenses and a three count counterclaim. Voog claimed in his special defenses that: (1) CNB had conspired with employees of Colonial to offer financing in order to sell investments in a partnership that it knew to be valueless; (2) the notes that are the subject of the complaint were given without consideration; (3) CNB violated the Connecticut Unfair Trade Practices Act (CUTPA); and (4) CNB is equitably estopped from enforcing the notes that are the subject of this action. On the basis of the conduct alleged in his first special defense, Voog claimed that he had suffered damages as a result of CNB’s fraudulent misrepresentations, and that CNB’s activities constituted a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) and CUTPA.

CNB objected to the amendment, primarily on the grounds that the allegations were prejudicial and would unnecessarily delay the proceedings. On March 12, 1992, the trial court, Austin, J., sustained CNB’s objections, not on the grounds CNB had asserted, but on the basis that “[t]he issues attempted to be raised by [Voog] may be raised in a separate cause of action, unrelated to this case, as they are not proper in this cause of action.” On November 6, 1992, Voog filed a motion to stay the case pending a decision by the court regarding his request to transfer the case into the Colonial related litigation program. The court denied both requests.

Voog twice moved the trial court to reconsider its earlier ruling sustaining CNB’s objection to his request for leave to amend. In these motions for reconsideration, Yoog directed Judge Austin’s attention to the case of Connecticut National Bank v. Gerace, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 90-00442832 (October 15, 1992), which, like his case, involved collection of moneys that had been borrowed from CNB for the purchase of shares in the Great Rings Estate Limited Partnership in Newtown (Great Rings), one of the limited partnerships promoted by Colonial. Voog had testified in Ger-ace concerning the circumstances surrounding his purchase of an interest in Great Rings and the financing with CNB that enabled his purchase. As special defenses, Gerace had been permitted to assert violations of the Connecticut Uniform Securities Act (CUSA), General Statutes § 42a-3-407 and CUTPA. Gerace also had been permitted to assert that CNB had made fraudulent misrepresentations. In two of the three counts in his counterclaim, finally, Gerace had been permitted to allege violations of CUSA and CUTPA. Despite the similarity between Gerace and Voog’s case, Judge Austin denied Voog’s motions to reargue without opinion.

CNB then moved for summary judgment. Voog attached copies of the pleadings from Gerace to his memorandum of law in opposition to the motion, claiming that, because of the jury verdict against CNB in that case, CNB should be collaterally estopped from establishing the validity of the notes in this case. The trial court, Higgins, J., recognized that “the doctrine of collateral estoppel would bar the relitigation of issues decided in the other collection case even though [Voog] in the case presently before the court was not a party to that case. However, the issues decided in the earlier case are not being relitigated here. . . . Scalzo v. Danbury, [224 Conn. 124, 128, 617 A.2d 440 (1992)] .... [In that earlier case] the securities act violations and CUTPA violation, were properly before the jury. In this case, however, those claims were excluded when the court granted CNB’s motion to strike [Voog’s] special defense, sustained CNB’s objection to [Voog’s] request for leave to amend his answer, and denied his motion for reconsideration.” Because there was no material issue of fact regarding the existence of the notes and Voog’s nonpayment, Judge Higgins granted the motion for summary judgment.

Thereafter, Voog filed a notice of defense, as provided by Practice Book § 367, to contest liability. Because Voog properly, although unsuccessfully, had already advanced these arguments in opposition to the motion for summary judgment, the trial court, J. Walsh, J., determined that the plain language of § 367 precluded the notice of defense. Voog also asserted that CNB should be collaterally estopped in this case because of the trial court’s decision in Connecticut National Bank v. Giacomi, Superior Court, judicial district of Waterbury, Docket No. 91-0105860 (September 28,1993). Because the “Giacomi decision involved-allegations of fraudulent misrepresentations,” the issues in the two cases again were not identical, and Judge Walsh denied the motion. Thereafter, CNB filed an affidavit of debt upon which the court, Gaffney, J., rendered judgment in the amount of $139,449.33, principal and interest, together with attorney’s fees of $1307.45.

Voog appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). Voog raises essentially four issues on appeal. Voog claims that the trial court abused its discretion: (1) in sustaining CNB’s objection to his request for leave to amend; (2) in failing to disqualify CNB’s counsel; (3) in denying placement of this case in the Colonial related litigation program; and (4) in denying his request for leave to give notice of his intention to defend against issues of liability pursuant to Practice Book § 367. Because we agree with Voog that the trial court improperly denied him permission to amend his response to the complaint, which effectively required the trial court subsequently to grant CNB’s motion for summary judgment rather than permit Voog to assert collateral estoppel and prevent CNB from collecting on the notes, we reverse the judgment and remand the case for further proceedings.

The rules of practice state the guidelines to be used by the trial court in deciding whether to allow an amendment to a pleading. Practice Book § 176 provides in pertinent part: “Except as provided in Sec. 182, a party may amend his pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner: (a) By order of court; or (b) By written consent of the adverse party; or (c) By filing a request for leave to file such amendment, with the amendment appended .... If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall ... be filed with the clerk within the time specified above and placed upon the next short calendar list.

“The court may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial. If the amendment occasions delay in the trial or inconvenience to the other party, the court may award costs in its discretion in his favor. For the purposes of this rule, a substituted pleading shall be considered an amendment.”

“ ‘While our courts have been liberal in permitting amendments; Johnson v. Toscano, 144 Conn. 582, 587, 136 A.2d 341 (1957); this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. Cummings v. General Motors Corporation, 146 Conn. 443, 449-50, 151 A.2d 884 (1959). The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. Freccia v. Martin, 163 Conn. 160, 164,302 A.2d 280 (1972).’Beckman v. Jalich Homes, Inc., 190 Conn. 299, 302-303, 460 A.2d 448 (1983). . . . It is within the discretion of the trial court to grant or deny an amendment, and a decision to deny an amendment during a trial will not be disturbed unless there is a clear abuse of that discretion. Lawson v. Godfried, 181 Conn. 214, 216, 435 A.2d 15 (1980).” Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 561-62, 525 A.2d 954 (1987).

The undisputed facts of this case demonstrate that the trial court, Arena, J., had set a scheduling order setting forth dates by which time Voog was required to file any requests to amend with the accompanying amendments, and by which time CNB was required to respond thereto. Both parties complied with that order and the trial court, Austin, J., acting on the request to amend, expressed no concern about the timeliness of the pleadings or the potential delay that Voog’s defenses and counterclaim might cause. Rather, the trial court denied the request solely because it concluded that the pleadings were unrelated to the complaint and, therefore, more properly the subject of some future separate cause of action. We disagree with that determination.

The special defenses Voog sought to raise can be distilled to the following assertions: (1) CNB conspired with Colonial to induce him through fraudulent misrepresentations to purchase, with funds borrowed from CNB, an interest in a valueless partnership; (2) there was no consideration for the notes he signed; (3) CNB’s actions constituted a violation of CUTPA; and (4) CNB should be equitably estopped from collecting on the notes. His counterclaim set forth three claims: one based on fraudulent misrepresentation, and two based on alleged violations of CUTPA and RICO.

We begin with the common law special defenses that Voog argues relate directly to the issue of whether CNB is legally entitled to collect on the notes. The complaint sets forth two counts, each alleging a breach of contract by the defendant for nonpayment of money due and owing under the terms and conditions of the two agreements in issue. To be enforceable, a contract must be supported by valuable consideration. Gruber v. Klein, 102 Conn. 34, 36-37, 127 A. 907 (1925). “The doctrine of consideration is fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable.” State National Bank v. Dick, 164 Conn. 523, 529, 325 A.2d 235 (1973). Therefore, Voog’s allegation that the notes in issue were not supported by requisite consideration directly undermines CNB’s ability to enforce them.

Voog also asserted the special defense of equitable estoppel. “In its traditional form the doctrine of equitable estoppel states that a party (1) who is guilty of a misrepresentation of existing fact including concealment, (2) upon which the other party justifiably relies, (3) to his injury, is estopped from denying his utterances or acts to the detriment of the other party.” J. Caiamari & J. Perillo, Contracts (3d Ed. 1987) § 11-29 (b), p. 489. “In considering the law of estoppel in Connecticut, we have stated: ‘ “Under our well-established law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. Bozzi v. Bozzi, 177 Conn. 232, 242, 413 A.2d 834 (1979); Dupuis v. Submarine Base Credit Union, Inc., [170 Conn. 344, 353, 365 A.2d 1093 (1976)]; Pet Car Products, Inc. v. Barnett, 150 Conn. 42, 53-54, 184 A.2d 797 (1962).” Zoning Commission v. Lescynski, [188 Conn. 724, 731, 453 A.2d 1144 (1982)].’ Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 148, 527 A.2d 679 (1987).” O’Sullivan v. Bergenty, 214 Conn. 641, 648, 573 A.2d 729 (1990). “It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge.” Spear -Newman, Inc. v. Modern Floors Corp., 149 Conn. 88, 91-92, 175 A.2d 565 (1961). This defense, upon which the defendant bears the burden of proof, also directly relates to CNB’s ability to prevail under the terms of the notes and, therefore, had been pleaded properly by Voog.

Voog also claimed as a special defense that CNB had conspired with employees of Colonial to misrepresent the value of the limited partnerships and to solicit investors based on these misrepresentations. In articulating this defense, Voog contended that “[t]hese representations were made for the purpose of inducing [him] to endorse the notes which are the subject of this action,” and he thereby ostensibly claimed that he had been “induced to enter into the contract [with CNB] by misrepresentations of material facts. [Thus, his special defense was concerned] with material misrepresentation in the inducement of the contract. Callahan v. Jursek, 100 Conn. 490, 495, 124 A. 31 [1924].” Warman v. Delaney, 148 Conn. 469, 474, 172 A.2d 188 (1961). Fraud in the inducement to enter a contract is a well established equitable defense. See Texaco, Inc. v. Golart, 206 Conn. 454, 459, 538 A.2d 1017 (1988). Consequently, Voog’s claim of fraud in the inducement certainly is properly part of CNB’s action on the notes. See Practice Book § 164 (“Facts which are consistent with [the plaintiff’s] statements but show, notwithstanding, that he has no cause of action, must be specially alleged. Thus . . . fraud . . . must be specially pleaded . . . .”).

In the first count of his counterclaim, Voog reiterated the allegations that CNB had conspired with and provided aid to Colonial to induce him, through fraudulent misrepresentation, to purchase an interest in a limited partnership CNB knew to be valueless. Practice Book § 168 permits a defendant to assert in law or in equity any counterclaim that he has “against-the plaintiffs demand,” provided that the counterclaim arose out of the same transaction that is the subject of the plaintiffs complaint. 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. Sup. 1982) § 129, p. 89. Because this counterclaim paralleled his special defense, it was also correctly pleaded in this case rather than as a separate action for damages. Based upon this same course of conduct, Voog also counterclaimed under CUTPA; see Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 646 A.2d 1289 (1994) (banking industry covered by CUTPA); and asserted CUTPA as a special defense to CNB’s enforcement of the notes. Thus, these allegations of a CUTPA violation, as well as his allegation of a RICO violation, were premised on the same course of conduct underlying Voog’s other special defenses and counts of his counterclaim and, therefore, are properly part of this case. See 1 E. Stephenson, supra, § 129, p. 89.

That these defenses and the counterclaim were relevant to CNB’s action on the notes is highlighted by events subsequent to the trial court’s denials of Voog’s motions for reconsideration. In particular, the trial court, Higgins, J., granted CNB’s motion for summary judgment against Voog specifically because Voog could not collaterally estop CNB from collecting on the notes. The trial court concluded that Voog could not assert collateral estoppel because there was no identity of issues between the cases. It noted that this lack of issue identity was caused because “those claims [necessary to create identity of issues] were excluded when the court granted CNB’s motion to strike [Voog’s] special defense, sustained CNB’s objection to [Voog’s] request for leave to amend his answer, and denied his motion for reconsideration.” Thus, this subsequent development makes clear that contrary to the determination of the trial court, Austin, J., the special defenses and the counterclaim were material to Voog’s defense of CNB’s action on the note.

“Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. . . . But unless there is some sound reason for denying permission to amend in order to remedy mispleading, [a request to do so] should be granted.” (Citations omitted; internal quotation marks omitted.) Falby v. Zarembski, 221 Conn. 14, 24, 602 A.2d 1 (1992). Because we conclude that Voog’s amended special defenses and counterclaim involved claims at issue in CNB’s action on the notes, we also conclude that the trial court’s denial of Voog’s request to amend his pleadings to include the special defenses and the counterclaim was not premised on a “sound reason.” “Although it is not our habit to disturb a trial court’s determination of whether an amendment should be permitted, we have done so on rare occasions when allowing the rule to stand would work an injustice to one of the parties. . . . For the reasons stated, we believe that this case presents one of those rare occasions.” (Citations omitted.) Id., 26.

The judgment is reversed and the case is remanded with direction to grant Voog’s motion for leave to amend his answer and special defenses, and for further proceedings according to law.

In this opinion the other justices concurred.

       See General Statutes § 52-278e et seq.

       Practice Book § 251 provides: “dismissal foe lack of diligence “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests.
      “If a case is printed on a dormancy calendar pursuant to the dormancy program administered under the direction of the chief court administrator, and a motion for default for failure to plead is filed pursuant to Sec. 128, only those papers which close the pleadings by joining issues, or raise a special defense, may be filed by any party, unless the court otherwise orders.”

       Voog’s counsel had previously been affiliated with another firm and, on December 16, 1991, had filed his individual appearance and a motion for extension of time through December 26, 1991, in order to respond to CNB’s motion to strike. CNB does not contest Voog’s allegation that his counsel had not received a copy of the December 24, 1991 short calendar upon which the motion to strike appeared. The trial court granted the motion to strike without considering Voog’s motion for an extension of time.

       The order by the court read as follows:
      “CONN. NATIONAL BANK VS.
      VOOG, NORMAN J. CV-91-0059201-S
      JANUARY 24,1992 COUNSEL & PARTIES OF RECORD LAW SHORT CALENDAR REPORT, JANUARY 21,1992 MOTION TO WITHDRAW APPEARANCE, = 127.00, ORDER OF THE COURT, RE: SCHEDULING ORDER = 127.00 - GRANTED. ORDER A SUBSTITUTED &/OR AMENDED ANSWER & SPECIAL DEFENSES IS TO BE FILED ON OR BEFORE 1-31-92, WITH ANY REVISION &/OR OBJECTION THERETO TO BE FILED BY 2-7-92. IF SAID SUBSTITUTED &/OR [AMENDED] ANSWER AND SPECIAL DEFENSES IS NOT FILED ON OR BEFORE 1-31-92, THEN PLAINTIFF MAY CLAIM THIS MATTER TO THE TRIAL LIST. (THE PRESENT AMENDED ANSWERS & SPECIAL DEFENSE IS WITHDRAWN BY THE DEFENDANT.)
      1-22-92 TAC MOORE
      SUPERIOR COURT DEKOVEN DRIVE

       General Statutes § 42-110a et seq.

       Specifically, Voog made the following allegations:
      “As and For A First Special Defense
      “1. Connecticut National Bank, through its officers and agents, entered into a conspiracy with a certain Kenneth Zak and other officers or employees of Colonial Realty, Inc. to offer financing to purchase interests in limited partnerships which they knew to be valueless and to solicit people to purchase these interests.
      “2. Upon information and belief, officers or agents of Connecticut National Bank received unauthorized commissions for placement of financing to purchase these limited partnership interests.
      “3. Mr. Voog was solicited by Mr. Zak, officers or agents of Connecticut National Bank and officers or employees of Colonial Realty, Inc. to purchase these limited partnership interests and the notes on which plaintiff seeks recovery in this action were used to finance the purchase of these limited partnership interests.
      “4. Connecticut National Bank, acting through its officers or agents, and acting in furtherance of the conspiracy set forth in Paragraph 1 of defendant’s First Special Defense, made misrepresentations to Mr. Voog (i) overstating the assets of the limited partnership; (ii) understating the liabilities of the limited partnership; (iii) understating the risk of purchasing an interest in this limited partnership; (iv) inaccurately describing the nature of the limited partnership; and (v) misstating the use to which the funds would be put.
      “5. Connecticut National Bank knew or should have known, with reasonable diligence, of the activities of its officers or agents in connection with the offering of financing to purchase these limited partnership interests.
      “6. These representations were untrue and were known to be untrue at the time they were made.

        “7. These representations were made for the purpose of inducing Mr. Voog to endorse the notes which are the subject of this action.
      “8. Mr. Voog relied to his detriment on these misrepresentations made by Connecticut National Bank by signing the notes which are the subject of this action.
      “9. By reason of his reliance on the misrepresentations of Connecticut National Bank, Mr. Voog has suffered damages.
      “As and For A Second Special Defense
      “1. Because the limited partnership interests purchased by Mr. Voog had no value, the notes which are the subject of this action were given without consideration. ,
      “As and For A Third Special Defense
      “1. The activities of Connecticut National Bank, as described in Mr. Voog’s First Special Defense, constitute a violation of the Connecticut Unfair Trade Practices Act (‘CUTPA’), Conn. Gen. Stat. sections 42-110a et seq.
      “As and For A Fourth Special Defense
      “1. By reason of the activities of Connecticut National Bank, as outlined in Mr. Voog’s First Special Defense, Connecticut National Bank is equitably estopped from enforcing the notes which are the subject of this action.”

       18 U.S.C. § 1961 et seq. (1988).

       Voog made the following claims in his counterclaim:
      “1. Paragraphs 1 through 9 of defendant’s First Special Defense are incorporated by reference with the same force and effect as if fully set forth herein.
      “2. As a consequence of the actions of Connecticut National Bank, defendant has suffered damages.
      “Second Count
      “1. Paragraphs 1 through 9 of Mr. Voog’s First Special Defense are incorporated by reference with the same force and effect as if fully set forth herein.
      “2. The solicitation of Mr. Voog to purchase interests in these limited partnerships took place in interstate commerce.
      “3. Mr. Voog was solicited to purchase these limited partnership interests through the use of the mail and through the use of wire transmissions.
      “4. The activities of Connecticut National Bank, as described above, constitute a violation pf the Racketeer Influenced and Corrupt Organizations Act.
      “Third Count
      “1. The activities of Connecticut National Bank, as described in Mr. Voog’s First Special Defense, constitute a violation of the Connecticut Unfair Trade Practices Act (‘CUTPA’), Conn. Gen. Stat. sections 42-110a et seq.”

       The order by the trial court read as follows:
      “CONN. NATIONAL BANK VS.
      VOOG, NORMAN J. CV-91-0059201-S
      MARCH 13, 1992 COUNSEL & PARTIES OF RECORD LAW SHORT CALENDAR REPORT, MARCH 9,1992 OBJECTION TO REQUEST TO AMEND, = 133.00
      SUSTAINED, AS TO ALL OBJECTIONS. THE ISSUES ATTEMPTED TO BE RAISED BY THE DEFENDANT MAY BE RAISED IN A SEPARATE CAUSE OF ACTION, UNRELATED TO THIS CASE, AS THEY ARE NOT PROPER IN THIS CAUSE OF ACTION.

       The Colonial related litigation program was a case management plan established by the Judicial Branch for civil matters relating to Colonial litigation.

       Specifically, Gerace had alleged that CNB had violated General Statutes (Rev. to 1993) §§ 36-472, 36-473 and 36-474.
      General Statutes (Rev. to 1993) § 36-472 provides: “prohibited activities RE THE OFFER, SALE OR PURCHASE OF ANY SECURITY. No person shall, in connection with the offer, sale or purchase of any security, directly or indirectly: (1) Employ any device, scheme or artifice to defraud; (2) make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or (3) engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.”
      General Statutes (Rev. to 1993) § 36-473 provides in pertinent part: “prohibited ACTIVITIES OF INVESTMENT ADVISERS AND PERSONS WHO SOLICIT ADVISORY BUSINESS ON BEHALF OF INVESTMENT ADVISERS, (a) No person who directly or indirectly receives compensation or other remuneration for advising another person as to the value of securities or their purchase or sale, whether through the issuance of analyses or reports or otherwise, shall:

        (1) Employ any device, scheme or artifice to defraud the other person;
      (2) make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading; or (3) engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon such other person.
      * * *
      “(f) No person who directly or indirectly receives compensation or other remuneration for soliciting advisory business on behalf of a person subject to the prohibition contained in subsection (a) of this section shall, in connection with such solicitation: (1) Employ any device, scheme or artifice to defraud; (2) make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading; or
      (3) engage in any act, practice or course of business which operates or would operate as a fraud or deceit.”
      General Statutes (Rev. to 1993) § 36-474 provides in relevant part:
      “BROKER-DEALER, AGENT or INVESTMENT ADVISER REQUIRED TO REGISTER. NOTICE RE TERMINATION of business, (a) No person shall transact business in this state as a broker-dealer unless he is registered under this chapter. No individual shall transact business as an agent in this state unless he is registered as an agent of the broker-dealer or issuer whom he represents in transacting such business.
      “(b) No broker-dealer or issuer shall employ an agent unless such agent is registered under this chapter. The registration of an agent is not effective during any period when he is not associated with a particular broker-dealer registered under this chapter or a particular issuer. When an agent begins or terminates a connection with a broker-dealer or issuer, or begins or terminates those activities which make him an agent, both the agent and the broker-dealer or issuer shall promptly notify the commissioner.
      “(c) No person shall transact business as an investment adviser, within or from this state, unless registered as such by the commissioner as provided in this chapter. No individual shall transact business as an investment adviser agent, within or from this state, unless he is registered as an investment adviser agent of the investment adviser for whom he acts in transacting such business. No investment adviser shall engage an investment adviser agent unless such investment adviser agent is registered under this chapter. The registration of an investment adviser agent is not effective during any period when he is not associated with a particular investment adviser registered under this chapter. When an investment adviser agent begins or terminates a connection with an investment adviser, both the investment adviser agent and the investment adviser shall promptly notify the commissioner. If an investment adviser or investment adviser agent provides such notice, such investment adviser or investment adviser agent shall not be liable for the failure of the other to give such notice.
      “(d) No broker-dealer or investment adviser shall transact business from any place of business located within this state unless that place of business is registered as a branch office with the commissioner pursuant to this subsection. . . .”
      General Statutes § 42a-3-407 provides: “alteration, (a) ‘Alteration’ means (i) an unauthorized change in an instrument that purports to modify in any respect the obligation of a party, or (ii) an unauthorized addition of words or numbers or other change to an incomplete instrument relating to the obligation of a party.
      “(b) Except as provided in subsection (c), an alteration fraudulently made discharges a party whose obligation is affected by the alteration unless that party assents or is precluded from asserting the alteration. No other alteration discharges a party, and the instrument may be enforced according to its original terms.
      “(c) A payor bank or drawee paying a fraudulently altered instrument or a person taking it for value, in good faith and without notice of the alteration, may enforce rights with respect to the instrument (i) according to its original terms, or (ii) in the case of an incomplete instrument altered by unauthorized completion, according to its terms as completed.”

       The jury found for the defendant, Gerace, on both counts of the complaint and on all three counts of his counterclaim.

       Practice Book § 367 provides: “—-notice of defenses
      “In any hearing in damages upon default suffered or after a denial of a motion to strike, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff’s complaint, except such as relate to the amount of damages, unless he has given notice to the plaintiff of his intention to contradict such allegations and of the subject matter which he intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall he be permitted to prove any matter of defense, unless he has given written notice to the plaintiff of his intention to deny such right or to prove such matter of defense.”

       Early in the litigation, Voog moved the court to disqualify the law firm of Pullman and Comley from representing CNB in this case because it had prepared the offering statement for Great Rings upon which Voog allegedly had relied in deciding to borrow money from CNB. Voog claims that the firm’s continued representation of CNB violated rule 1.7 (b) of the Rules of Professional Conduct, which provides in pertinent part: “A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless: (1) The lawyer reasonably believes the representation will not be adversely affected; and (2) The client consents after consultation. . . .”

       We therefore do not decide the scope of Practice Book § 367, and offer no opinion as to whether on remand the case should be joined with the Colonial related litigation program. We also note that because Pullman and Comley is no longer representing CNB, the issue of whether the firm should have been disqualified is moot. Sadlowski v. Manchester, 206 Conn. 579, 583-84, 538 A.2d 1052 (1988).

       We note that CNB has not argued that Voog was not required specially to plead any of his defenses in order to raise them at trial. Therefore, our discussion does not turn on any distinction between defenses that can be raised under a general denial and those that must be specially pleaded.

       Along with his motions for reconsideration, in which he highlighted Gerace’s reliance on CUSA as a defense to CNB’s suit for failure to comply with the terms of a promissory note; see Connecticut National Bank v. Gerace, supra, Superior Court, Docket No. 90-00442832; Voog also filed another proposed amendment in which he included special defenses and a counterclaim under the Securities Act of 1933.


author: Peters, C. J.

text:
    Donna Loisel v. Audrey Rowe, Commissioner of Income Maintenance et al.
    (15029)
    Peters, C. J., and Callahan, Borden, Berdon, Norcott, Katz and Palmer, Js.

      (Two justices dissenting)

    Argued January 10
    decision released June 6, 1995

      Jennifer C. Jaff assistant attorney general, with whom were Hugh Barber, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, Richard J. Lynch, assistant attorney general, and Daniel K. Lamont, for the appellants (defendants).

      Garrett H. Tuller, with whom were Shirley Bergert and, on the brief, Thomas R. Kasper, law student intern, for the appellee (plaintiff).
   Peters, C. J.

This case raises significant questions concerning the relationship between federal welfare benefits, the composition of assistance units and the eligibility criteria for the state general assistance program. The plaintiff, Donna Loisel, appealed to the Superior Court pursuant to General Statutes (Rev. to 1993) §§ 17-2b (b) and 4-183 from the administrative denial of her applications for general assistance benefits. The trial court reversed the administrative decisions, holding that social security benefits received by the plaintiffs children improperly had been included in calculating the plaintiffs income and that without the inclusion of those benefits the plaintiff was eligible for general assistance benefits under General Statutes (Rev. to 1993) § 17-273. The commissioner of income maintenance (commissioner) appealed from that judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). Since the rendering of the trial court’s judgment, however, intervening events have rendered the case moot. We therefore dismiss this appeal for lack of subject matter jurisdiction.

The facts are not in dispute. The plaintiff, a resident of the town of Mansfield, is the custodial parent of two minor children. The children receive federal social security survivors’ benefits totaling $1116 per month because of the death of their father. The plaintiff, who was not married to her children’s father, receives no survivor’s benefits of her own. She does, however, serve as the representative payee for her children’s benefits.

On November 19, 1992, the plaintiff filed an application for general assistance medical assistance with the town of Mansfield. The plaintiff recited in her application that, except for her children’s benefits, she had no income and that her assets were limited to a bank account containing $6. While acknowledging that her children live in her assistance unit and that they receive total monthly benefits of $1116, she repeatedly stated that she was applying for support only for herself. At the end of the application, she wrote that “My self, I’m not able to work due to panic disorders, I have no medical [coverage] and [I] need to see a doctor for my illness. I don’t feel it’s right to use my children’s benefits for my personal or medical needs.” Her application was denied the following day. In the explanation section of the denial form, the local welfare official wrote: “Your children receive Social Security in their own name but under General Assistance policy, since the three of you are a family, the income of all members is counted in determining family income. Thus the total income exceeds the medical assistance standards.”

The plaintiff subsequently filed an application for general assistance financial assistance with the town on November 30, 1992, which was identical in all material respects to her previous application. On December 1, 1992, this application too was denied.

Thereafter, at the plaintiff’s request, she was afforded a local level fair hearing pursuant to General Statutes (Rev. to 1993) § 17-292d (now § 17b-63), which resulted in an affirmance of the denials. The hearing officer rejected the plaintiff’s argument that, because the survivors’ benefits were for her children’s support only, the town ought to have treated her as an assistance unit of one in determining her need. The officer declined to rule on the plaintiff’s argument that state regulations, by requiring her to be grouped with her children for the eligibility determination, violated federal and state law. The plaintiff appealed from that decision to the commissioner pursuant to General Statutes (Rev. to 1993) § 17-292e (now § 17b-64). Following a state level hearing on January 28, 1993, the decisions denying the plaintiff’s applications once again were affirmed.

The trial court reversed the denial of the plaintiff’s general assistance applications after determining that federal law precludes the use of the children’s benefits for the plaintiff’s support. According to the court, because federal rules expressly permit survivors’ benefits to be expended to support a beneficiary’s entire Aid to Families with Dependent Children (AFDC) assistance unit, the rules necessarily imply that the benefits may not be used to support a family unit such as the plaintiff’s that is not receiving AFDC benefits. Moreover, although federal rules allow social security benefits to be expended for the support of a beneficiary’s legal dependents, the court determined that the benefits here could not be used for the plaintiff’s support because under state law a child is not legally responsible for the support of his or her parents. The court then held that the state regulations violated the plaintiff’s statutory right to support under § 17-273 because they rendered the plaintiff ineligible for general assistance benefits on the basis of income attributed to the plaintiff that was not legally available to her. As a result, the court concluded, the plaintiff was entitled to a redetermination of her eligibility for general assistance benefits.

The plaintiff has not claimed any constitutional right to receive general assistance benefits from the state. The plaintiff also does not contend that, if the social security benefits properly may be treated as income available to her as a member of an assistance unit with her children, she otherwise has a statutory entitlement to receive general assistance benefits. Finally, the plaintiff has not pressed her claim, argued in the trial court, that she should have been treated as an assistance unit of one for purposes of determining general assistance eligibility. See footnote 5. The plaintiffs claims on appeal essentially mirror, and are limited to, the arguments contained in the trial court’s memorandum of decision.

The commissioner’s response to the plaintiff’s contentions is not rooted in federal social security law or in state law pertaining to a child’s duty to support a parent. The commissioner’s basic argument is that, because of the statute’s explicit reference to the commissioner’s rule-making authority under General Statutes (Rev. to 1993) § 17-3a, § 17-273 creates only a qualified right to support, and thus permits the commissioner to determine who is in need of general assist-anee. According to the commissioner, the general assistance eligibility regulations rationally differentiate assistance units that contain individuals who receive social security benefits from assistance units that do not receive those benefits. The distinction is rational, the commissioner insists, because the former have less need of state aid than the latter, whether or not the federal benefits may be used for the support of non-beneficiary members of an assistance unit, even when the unit has no other income. The commissioner therefore maintains that the trial court’s decision must be reversed.

We do not reach the merits of these arguments because we determine that this court lacks subject matter jurisdiction to entertain this appeal. The commissioner asserted in oral argument before this court, and the plaintiff does not deny, that the plaintiff now receives federal supplemental security income (SSI). See 42 U.S.C. § 1381 et seq. The express terms of § 17-273 (a) render a recipient of SSI benefits ineligible for general assistance. The statute provides that “[a] person who is a recipient of . . . supplemental security income shall be considered to be provided for by the . . . federal government. On and after September 4, 1991, no such person shall be eligible to receive general assistance financial or medical aid.” The record also reflects that the plaintiff’s SSI application was pending in November, 1992, when she filed her general assistance applications. Under the relevant federal laws, the plaintiff’s SSI benefits would have been granted retroactive to the date her SSI application was filed, which predates her general assistance applications. See 42 U.S.C. § 1382 (c) (6) (1992); 20 C.F.R. §§ 416.335 and 416.501 (1994). Thus, she also would not be entitled to any unpaid “back benefits” from the general assistance program.

“When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” In re Romance M., 229 Conn. 345, 357, 641 A.2d 378 (1994). Both parties nonetheless urge us to reach the merits of this case, relying on the exception to the mootness doctrine for issues that are “capable of repetition, yet evading review.” Having thoroughly reviewed this court’s cases applying that exception, we are persuaded that the present question does not satisfy the requirements of the exception.

The “capable of repetition, yet evading review” exception to the mootness doctrine operates within the general jurisdictional framework of the court. “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) Perry v. Perry, 222 Conn. 799, 803, 611 A.2d 400 (1992); Moshier v. Goodnow, 217 Conn. 303, 307, 586 A.2d 557 (1991); Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985).

The doctrine of mootness is rooted in the same policy interests as the doctrine of standing, namely, to assure the vigorous presentation of arguments concerning the matter at issue. See H. Monaghan, “Constitutional Adjudication: The Who and When,” 82 Yale L.J. 1363, 1384 (1973) (describing mootness as the “doctrine of standing in a time frame: The requisite personal interest that must exist at the commencement of the litigation [standing] must continue through its existence [mootness]”). This court recently reiterated that the standing doctrine is “designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . Rose v. Freedom of Information Commission, 221 Conn. 217, 223, 602 A.2d 1019 (1992); Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 649, 556 A.2d 1020 (1989); Maloney v. Pac, 183 Conn. 313, 320, 439 A.2d 349 (1981).” (Internal quotation marks omitted.) Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 571, 651 A.2d 1246 (1995).

Although the phrase “capable of repetition, yet evading review” comes from the United States Supreme Court case of Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S. Ct. 279, 55 L. Ed. 310 (1911), and was further developed by that court in Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975), we have historically exercised our authority to develop our own criteria for the application of this exception to mootness. Under federal law, the exception applies only where two elements combine: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration; and (2) in the absence of a class action, there was a reasonable expectation that the complaining party would be subjected to the same action again. See id. Under Delevieleuse v. Manson, 184 Conn. 434, 437 n.2, 439 A.2d 1055 (1981), however, this court held that a moot case that satisfied the first element could be reviewed, even in the absence of a “reasonable expectation” that the same complaining party again would be subject to the same action, if the issues arose under an ongoing governmental program that might affect the complaining party in the future. This court also noted that an important factor in mootness was whether the public importance of the issues made it desirable to decide them. Id., 437.

Other than by identifying the factors to be taken into account, we have never defined clearly what is meant by “capable of repetition, yet evading review.” Specifically, the cases are unclear with respect to whether a case will be moot unless the litigants satisfy all the factors or whether some factors are more significant than others in the determination of mootness.

In Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 253 n.5, 440 A.2d 310 (1982), for example, we explained that satisfaction of the first prong of Delevieleuse—that the case was “capable of repetition, yet evading review”—“was not, in and of itself, a justification for reviewing an admittedly moot case but was merely one factor to be considered when faced with a potentially moot matter.” We then listed other factors to be considered, including: “(1) the public importance of the question presented; (2) whether an ongoing program of the state’s penal or civil system is affected; and (3) whether the appellant himself could be similarly affected in the future.” Id.; see also Shays v. Local Grievance Committee, supra, 197 Conn. 572-73 (relying on Waterbury Hospital and Delevie-leuse). Because we determined in Waterbury Hospital that all four factors had been satisfied, we did not indicate whether a failure to meet any of them individually would have precluded review.

A series of cases after Waterbury Hospital similarly described the various factors first identified in Delevie-leuse without indicating whether the court was engaged in a balancing process. In Shays v. Local Grievance Committee, supra, 197 Conn. 574, we declined to review a moot question that was “capable of repetition, yet evading review” because the case failed to satisfy two of the Delevieleuse factors, specifically that “contempt proceedings against legislators are part of an ongoing penal or civil program” or that “this plaintiff will again be subject to the sanction of imprisonment for contempt of court during a legislative session.” In Sobocinski v. Freedom of Information Commission, 213 Conn. 126, 135-36, 566 A.2d 703 (1989), we cited the same multiple factors in declining to review a case that involved a single discrete automobile accident, rather than an ongoing penal or civil program, and a plaintiff who was not likely to encounter similar problems in the future.

In Goodson v. State, 228 Conn. 106, 115, 635 A.2d 285 (1993), we stated, for the first time, that the Delevieleuse factors were illustrative rather than dis-positive. “No one factor is controlling, nor must all of the . . . factors be present. To decide the applicability of the exception, we must instead review the circumstances of each case.” Id. The court found the exception applicable because the case involved an ongoing civil program in the form of a state employee bargaining agreement grievance procedure, an issue that might affect the plaintiffs union in the future, and a matter of public importance. In effect, the court found all of the Delevieleuse factors to have been satisfied.

In our decisions concerning whether we can afford practical relief to the litigants in a particular controversy, this court continues to rely on the factors identified in Delevieleuse: (1) Are the issues of such short duration that they will evade review? (2) Do the issues relate to an ongoing civil or penal program of the state? (3) Is the plaintiff, as part of a class or as an individual, likely to be affected in the same manner again? and (4) Do the issues raise matters of public importance? Our application of these various factors, however, has not always been consistent.

We take this opportunity to synthesize our prior case law in order to clarify the contours of the doctrine. This court’s application of the doctrine consistently has adhered to certain basic principles. Our cases reveal that for an otherwise moot question to qualify for review under the “capable of repetition, yet evading review” exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot. We discuss these three requirements in turn.

Evading Review:

The Inherently Limited Duration Requirement

The first element in the analysis pertains to the length of the challenged action. Although this court has not expressly addressed a time requirement in its previous cases, such a requirement is inherent in the overall statement of the doctrine itself. Most cases in which review has been undertaken despite a claim of mootness implicitly recognize the existence of functionally insurmountable time constraints. See, e.g., Goodson v. State, supra, 228 Conn. 106 (limited duration of orders pursuant to General Statutes § 52-422); Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 522 A.2d 264 (1987) (collective bargaining agreements likely to expire before dispute can be fully litigated); Board of Education v. Board of Labor Relations, 201 Conn. 685, 519 A.2d 41 (1986) (same). Even in instances in which the exception did not apply for some other reason, there was no doubt that the challenged action had an intrinsically limited lifespan. See Shays v. Local Grievance Committee, supra, 197 Conn. 566 (ten day contempt order); Waterbury Hospital v. Connecticut Health Care Associates, supra, 186 Conn. 251 (injunction against picketing during strike that subsequently ended; court notes that strike is “ ‘not of such a permanent character as to be substantially impervious to change’ ”). The basis for this element derives from the nature of the exception. If an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced. Thus, there is no reason to reach out to decide the issue as between parties who, by hypothesis, no longer have any present interest in the outcome.

Capable of Repetition:

The Recurrence Requirement and the Surrogacy Concept

The second and third factors from Delevieleuse (ongoing program and continuing involvement of the plaintiff) were designed to enable the court to determine whether the controversy is “capable of repetition” in a manner sufficiently related to the interests of the present litigants so that they have continued standing to contest the issues. This analysis entails two separate inquiries: (1) whether the question presented will recur at all; and (2) whether the interests of the people likely to be affected by the question presented are adequately represented in the current litigation.

A requirement of the likelihood that a question will recur is an integral component of the “capable of repetition, yet evading review” doctrine. In the absence of the possibility of such repetition, there would be no justification for reaching the issue, as a decision would neither provide relief in the present case nor prospectively resolve cases anticipated in the future. This concern properly may be understood as the gravamen of the “ongoing program” factor enunciated in Delevie-leuse. The Shays case demonstrates this same point in reverse, because, as the court observed, it was “highly improbable that this plaintiff will again be subject to the sanction of imprisonment for contempt of court.” Shays v. Local Grievance Committee, supra, 197 Conn. 574.

If the “ongoing program” factor were viewed as mandatory by itself, however, rather than as a proxy for the recurrence requirement, the doctrine would be underinclusive. To begin with, it would mean that a case equivalent to Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the paradigm of an issue capable of repetition, yet evading review, could never be heard in the absence of a class action. The mere fact of a single prosecution for abortion would not demonstrate an “ongoing penal or civil program,” any more than a single contempt citation demonstrates one. (Emphasis added.) Shays v. Local Grievance Committee, supra, 197 Conn. 574. Yet cases arising in this context certainly merit judicial review.

The policy concerns that animate this court’s jurisdictional rules also suggest that the doctrine must address not only the question of whether the mooted claim is likely to arise again, but also the question of to whom that claim is likely to apply. This supplemental requirement is necessary to ensure that “judicial decisions which may affect the rights of others are forged in hot controversy, with each side fairly and vigorously represented.” Golden Hill Paugusset Tribe of Indians v. Southbury, supra, 231 Conn. 571.

The “same party” factor was intended in part to address this concern. If the situation is one in which the litigating party actually may be affected by the court’s decision in the future, then obviously the required nexus is present. See, e.g., Taylor v. Robinson, supra, 171 Conn. 695 (issue presented “might well affect the [petitioners]” in the future).

This premise, however, does not mandate a strict rule that the identical party must be likely to be affected in the future. See, e.g., Goodson v. State, supra, 228 Conn. 115 (noting that “[n]o one factor [including the ‘same person’ factor] is controlling”). As Professor Tribe observes, “[t]he issue may repeat either in the sense that one individual will confront it more than once or in the sense that all the members of a group may each confront it.” L. Tribe, American Constitutional Law (2d Ed. 1988) § 3-11, p. 84 n.16.

There is, nonetheless, a need for some nexus between the litigating party and those people who may be affected by the court’s ruling in the future. It is this nexus that the “surrogacy” concept addresses. Class action lawsuits represent one manifestation of this broader view of the nexus requirement. By definition, the representative party has been determined by the court to be capable of litigating the interests of all the members of the certified class. See Practice Book § 87 (requiring as prerequisite a finding that “the representative parties will fairly and adequately protect the interests of the class”).

Formal class certification, however, has not been required historically. This court frequently has presumed that a party’s nexus to the group of potentially affected people was adequate, despite the lack of either formal class certification or any reasonable basis from which to assume that the same party would face the same situation in the future. The two most prominent lines of cases proceeding along this line involve prisoners; see, e.g., Delevieleuse v. Manson, supra, 184 Conn. 434; Taylor v. Robinson, supra, 171 Conn. 691; and union members. See, e.g., Goodson v. State, supra, 228 Conn. 106, and cases cited therein.

The precise contours of “surrogacy” in this context need not be defined here. Certainly they would exclude a public interest advocacy group purporting to litigate on behalf of, without actually representing, any of the affected parties. Further articulation of the appropriate middle ground between public interest advocacy completely divorced from the relevant parties, which presents too minimal a nexus, and class action litigation, which imposes an overly formal nexus requirement, must proceed on a case-by-case basis.

Public Importance

The requirement of public importance is largely self-explanatory. Since judicial resources are scarce, and typically reserved for cases that continue to be contested between the litigants, this court does not review every issue that satisfies the criteria of limited duration and likelihood of recurrence. Consideration of the importance of the issue represents a sound means for distinguishing those cases that should be reviewed and those that should not. Sheer public importance, however, cannot remedy a failure to satisfy the other components of the doctrine. Whether the court can review an otherwise moot claim “turns not only on the importance of the . . . issue that the plaintiff has raised but also on a determination that his [or her] case satisfies the overall test of ‘capable of repetition, yet evading review.’ ” Shays v. Local Grievance Committee, supra, 197 Conn. 573.

Applying these principles to the present case, we are persuaded that the question presented does not satisfy the criteria for application of the “capable of repetition, yet evading review” exception. The issue presented in this case is of public importance. Moreover, it is likely to recur, and the plaintiff certainly would qualify as a surrogate for other general assistance recipients. The parties have failed to establish, however, a strong likelihood that the substantial majority of cases challenging the action in question will become moot before they can be reviewed. It is likely that some plaintiffs who are denied general assistance benefits will not receive SSI; see, e.g., 20 C.F.R. § 416.202 (1994) (eligibility standards for SSI require disability, not simply lack of resources); and, even if other plaintiffs do receive SSI, many may not receive such benefits retroactive to a date preceding their general assistance applications. In this case it is not the plaintiffs receipt of SSI per se, but the fact that those benefits were retroactive to a point in time that predates her general assistance applications, that renders this case moot. Had her SSI application been filed subsequent to her general assistance applications, there would remain an ongoing controversy relating to eligibility for back benefits during the interim between the denial of her general assistance benefits and the commencement of SSI that would shield the case from dismissal. Similarly, if a plaintiff were to lose eligibility for any other reason, such as securing gainful employment, the claim for back benefits would still be justiciable. Here, however, because the parties have neither demonstrated the existence of such a live controversy nor satisfied the requirements of the “capable of repetition, yet evading review” exception, we must dismiss the case as moot.

The appeal is dismissed.

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

The majority decides that the plaintiffs claim is moot and, therefore, dismisses the case without determining whether social security benefits payable to a claimant’s children may properly be included in calculating that claimant’s income eligibility for general assistance benefits under General Statutes (Rev. to 1993) § 17-273. Because I believe that the case qualifies under this state’s version of the “capable of repetition, yet evading review” exception to the mootness doctrine, I conclude that the plaintiff’s case should not be dismissed on the basis of mootness. Accordingly, I respectfully dissent.

I must first emphasize that I concur with most of the majority’s reasoning and analysis. I agree that the plaintiff’s case is moot due to her receipt of supplemental security income (SSI) benefits that were retroactive to a point in time that predated her general assistance applications. I also agree that the application of the “capable of repetition, yet evading review” exception to the mootness doctrine in our prior case law has not always been particularly clear and that this case presents a good opportunity for clarification. I also concur that the court should take into account three factors in determining whether a moot case qualifies for review under the “capable of repetition, yet evading review” exception. I disagree with the majority, however, that our “capable of repetition, yet evading review” jurisprudence requires a case to satisfy all three factors. Instead, I believe that a moot case qualifies for this exception if consideration of the three factors strongly balances in favor of review. Moreover, I believe that the majority’s statement of the first element is overly restrictive. Because I believe that the plaintiff’s case satisfies this exception, I would reach the merits of the case.

I

In cases involving the “capable of repetition, yet evading review” exception to the mootness doctrine we consistently have avoided the use of a rigid test such as that now employed by the majority. Instead, we have utilized a more flexible approach that balances the three factors. In Goodson v. State, 228 Conn. 106, 115, 635 A.2d 285 (1993), we stated that “[n]o one factor is controlling, nor must all of the above factors be present. To decide the applicability of the exception, we must instead review the circumstances of each case.” Similarly, we recognized in In re Romance M., 229 Conn. 345; 358, 641 A.2d 123 (1994), that “[t]he availability of the [‘capable of repetition, yet evading review’] exception depends upon all the relevant circumstances of each case.” In fact, in Delevieleuse v. Manson, 184 Conn. 434, 437 n.2, 439 A.2d 1055 (1981), we expressly noted our disapproval of an earlier case that had failed to “discuss the extent to which the public importance of a question compensates for the reduced weight of other factors that militate against the mootness of the question.”

Furthermore, although the majority cites to some cases to state that “[m]ost cases in which review has been undertaken despite a claim of mootness implicitly recognize the existence of functionally insurmountable time constraints,” this citation of cases ignores other instances in which this court has undertaken review based on a balancing of all the relevant factors. In Delevieleuse v. Manson, supra, 184 Conn. 437 and n.2, this court determined that it could review the moot claim because the case satisfied the “capable of repetition, yet evading review” exception to mootness. It is significant that the Delevieleuse court reached this conclusion despite the faet that the nature of the plaintiff’s claim involved no “functionally insurmountable time constraints.” Indeed, Delevieleuse illustrates that a moot claim is reviewable under this exception if the public importance of its issues and other factors in favor of its review outweigh the fact that there technically is not, as stated by the majority, “a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded.”

The petitioner in Delevieleuse was an inmate who was serving a thirty month sentence in a state correctional facility for his conviction of seven larceny counts. The petitioner had pleaded guilty to all seven counts and had received a six month sentence on each count. The court had ordered that the first five sentences run consecutively to one another and that the other two sentences run concurrently with the first five. Thus, the total effective sentence was thirty months. Id., 435.

The petitioner had spent fifty-six days in presentence custody under a mittimus containing one docket number, and the respondent, the commissioner of correction, had credited him with fifty-six days of credit pursuant to General Statutes § 18-97. Believing that he was entitled to fifty-six days of credit for each of his five consecutive sentences, he applied for a writ of habeas corpus. The habeas court interpreted the statute as forbidding any multiple credit and rendered judgment for the respondent. Thereafter, the petitioner appealed to this court. Before this court issued its decision in the case, however, the petitioner had already finished serving his sentence. Consequently, the petitioner’s case was moot and we had to determine whether it satisfied the “capable of repetition, yet evading review” exception to the mootness doctrine.

In concluding that the case satisfied the exception, we stated: “In Liistro v. Robinson, 170 Conn. 116, 365 A.2d 109 (1976), and Taylor v. Robinson, 171 Conn. 691, 372 A.2d 102 (1976), we reached the merits of claims that inmates were entitled to bail pending the outcome of parole proceedings and that the Uniform Administrative Procedure Act (UAPA); General Statutes §§ 4-166 through 4-189; applied to parole release hearings, even though the plaintiffs had been granted parole before we considered the appeals. Those cases could afford practical relief because the issues involved (1) were capable of repetition, yet evading review; (2) affected an ongoing program of the state’s penal system; and (3) could very well affect the plaintiffs should they be convicted in the future. Taylor v. Robinson, supra, 694-95. We also noted that (4) the public importance of the questions made it desirable to decide the points. Id., 694, citing Winnick v. Reilly, 100 Conn. 291, 296, 123 A. 440 (1924). Those four considerations control the present appeal.” Delevieleuse v. Manson, supra, 184 Conn. 437.

It is clear that the petitioner’s claim in Delevieleuse was not “of inherently limited duration” as formulated by the majority in this case. Although we recognized that “the issue . . . affects approximately 200 inmates”; id., 436; and thus was capable of repetition, there was nothing to indicate that such a claim would “evade review” in future cases. Nothing in that opinion indicates that all of the other “approximately 200 inmates” affected by the decision, had they filed similar applications for writs of habeas corpus, also would have finished serving their sentences before completing the appellate process. Rather, because there likely were, at the time of our decision in Delevieleuse, other prison inmates who had spent a number of days in pre-sentence custody and were serving, on the basis of a number of smaller consecutive sentences, total effective sentences in excess of the few years ordinarily necessary to litigate an appeal fully, there was not a “strong likelihood that the substantial majority” of other such claims would evade review in the future.

Furthermore, our reliance in Delevieleuse on Taylor v. Robinson, supra, 171 Conn. 691, is instructive because that case also involved a claim that was not likely to evade review in future cases. In that case, a prison inmate who had been denied parole at least four times challenged the legality of the prison’s parole proceedings under the UAPA. Id., 692. The inmate finally had been paroled by the time we heard his appeal, and we recognized that his case was therefore moot. Id., 694. Nevertheless, we decided to consider the merits of his claim. Id., 695. In doing so, we expressly noted the “considerable public interest” involved, including the fact that the parole board at that time conducted 1700 parole hearings each year. Id. Again, however, there is no indication in that decision that we ever considered whether it is more likely than not that, whenever a prison inmate challenges parole proceedings, he invariably will have been paroled by the time his appeal is heard by this court. Indeed, it seems likely that this claim was capable of being brought by other aggrieved inmates who were serving lengthy sentences and who, therefore, could have litigated the issue fully without it becoming moot.

These cases demonstrate that the majority misinterprets the “capable of repetition, yet evading review” exception to the mootness doctrine. This court decided Delevieleuse and Taylor on their merits, even though it must have been clear that such claims undoubtedly would not evade review in the future. Thus, Delevie-leuse and Taylor unquestionably demonstrate that certain moot claims involve issues of such importance that they deserve immediate review. In other words, these cases reflect that certain moot claims involve issues, like criminal sentencing and parole procedures, that are of such widespread application and profound importance that they are reviewable on the basis of this exception, even though future litigants eventually may be able to bring similar claims.

The majority’s decision to disregard our prior balancing test is troubling, especially when one considers the practical implications of that decision. It is clear that, under the new approach, the court would not be able to decide a claim like that at issue in Delevieleuse or Taylor. Indeed, we would have no choice but to ignore a claim, as in Delevieleuse, the outcome of which would immediately affect 200 other similarly situated inmates. Similarly, we would have no choice but to ignore a claim, as in Taylor, that the parole board, which conducted some 1700 parole release hearings each year, was operating illegally. This would be the result no matter how great the public importance of the case, no matter how fervent the advocacy and no matter how late in the appellate process the case became moot. As was the case for the hundreds of inmates who were immediately affected by our decisions in these cases, the prospect that some future litigant may complete the appeal does not “significantly reduce” the urgency of deciding the pending case for the others who will be immediately impacted by the ruling.

II

This court’s approach in Delevieleuse also indicates that the first element of the majority’s test, that the claim must be subject to inherently limited time constraints such that “there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded,” is much more narrow than previously utilized by this court. Indeed, this court’s approach in Delevieleuse demonstrates that the oft-quoted “capable of repetition, yet evading review” element requires only that the claim be capable of repetition, yet evading meaningful review.

In Delevieleuse, the decision’s focus on the approximately 200 inmates who were affected by the claim shows that this court did not require the claim to have avoided review in the substantial majority of future cases. Instead, we implicitly recognized that, although some future petitioners would likely be able to bring similar claims that would not become moot, certainly a significant number of such inmates would unnecessarily be subjected to prison were we to postpone our decision. Consequently, our decision in Delevieleuse recognized that, although these inmates would complete appellate litigation, the outcome of the litigation would be ineffective if they were to be released from prison only after serving an excessive number of days.

Additionally, this court’s formulation of the first element in Delevieleuse also factored in a concern for other inmates whose claims would become moot, but only after such inmates had first served illegally lengthy prison sentences. Because these inmates could be eligible for release immediately upon or soon after the issuance of the decision, we reviewed the claim even though some other inmates could have completed the appellate process at a later date. Put differently, because there were individuals who could benefit from the decision and receive immediate release from incarceration, we did not blindly ignore their predicament merely because other inmates would eventually be able to complete the appellate process.

This concept of meaningful review informs the present case. The plaintiff’s claim satisfies the first element not because a substantial majority of similar such claims will become moot before the completion of appellate litigation, but because future such litigants will be denied an effective outcome. There surely are many potential litigants who currently could bring a claim similar to that of the plaintiff and complete the appellate process prior to the claim becoming moot. The reality of appellate litigation, however, is that it takes several months from the time an appeal is filed for it to be decided. For the indigent person who has been denied general assistance benefits, that period could represent a lifetime. The term “indigent person” itself makes clear that these persons have no alternative sources of income to which to turn to preserve themselves during the course of appellate litigation. Consequently, even if we assume that such litigants will be entitled to general assistance benefits retroactive to the filing of their original applications, these individuals will have been denied the assistance during the period of time in which they needed it the most. These ultimately successful litigants will first have to endure prolonged and possibly life-threatening periods of deprivation, and their “victory” will come at a quite high and needless cost.

Ill

Despite the clear intent of these cases, the majority now concludes that a claim, regardless of its public importance and potential for sweeping impact, will fail to meet the “capable of repetition, yet evading review” exception merely because it is likely that some future litigant will be able to bring the same claim. To be sure, a moot claim should not be reviewed under this exception if there is not a minimum assurance that the parties have “hotly litigated” the case. Moreover, there is little reason to apply the exception to consider the merits of a claim that is unlikely to arise again or that does not involve an ongoing government program. See, e.g., Sobocinski v. Freedom of Information Commission, 213 Conn. 126,135-36, 566 A.2d 703 (1989). When the weighing of all these factors demonstrates that the claim is worthy of review, however, it is misguided to deny such review merely because another party may eventually bring a similar claim.

In this case, the weighing of all the relevant factors indicates that the plaintiffs claim is reviewable under the “capable of repetition, yet evading review” exception to the mootness doctrine. As stated previously, the plaintiff satisfies the first element because the claim likely will avoid meaningful review in future cases. Additionally, the combined magnitude of the other two factors compensates for any “reduced weight” of the first factor. See Delevieleuse v. Manson, supra, 184 Conn. 437 n.2.

The second element strongly weighs in favor of review because this claim involves an ongoing government program that involves thousands of individuals. Of those individuals who are denied benefits under the general assistance program, surely many, like the plaintiff, are denied them solely because of the SSI benefits received by their dependent children. Thus, the present case likely will repeat in the future. Further, as the majority concedes, “the plaintiff certainly would qualify as a surrogate for other general assistance recipients.”

Likewise, the third element strongly weighs in favor of review. As stated above, the general assistance program involves thousands of people in this state. Many individuals are able to procure the basic necessities of life from such benefits. Other persons are disqualified from this program, however, because, like the plaintiff in this case, their children receive SSI benefits from the federal government. Thus, this case involves a public concern of the highest order: the ability of individuals to receive the most rudimentary levels of assistance. Accordingly, I would reach the merits of this appeal.

       “General assistance is a state run program designed to aid individuals and their families who have insufficient income or assets to meet their essential needs.” Barannikova v. Greenwich, 229 Conn. 664, 672, 643 A.2d 251 (1994).

       General Statutes (Rev. to 1993) § 17-273 provides in relevant part: “liability of TOWN FOE SUPPORT. REGULATIONS, (a) Each person who has not estate sufficient for his support, and has no relatives of sufficient ability who are obliged by law to support him, shall be provided for and supported to the extent required under the provisions of this chapter and section 17-3a at the expense of the town in which he resides, except as otherwise provided in this section, or, if he has no residence, of the town in which he becomes in need of aid, subject to the provisions of section 17-273b, subsection (a) of section 17-281a, and in accordance with section 17-292g except that in making a determination of liability for support under this section the income of a stepparent living in the same home as a dependent child or dependent children shall be considered in the same manner and to the same extent as under the aid to families with dependent children program pursuant to section 17-85. ... A person who is a recipient of financial aid under chapter 302 or of social security disability or supplemental security income shall be considered to be provided for by the state or federal government. On and after September 4,1991, no such person shall be eligible to receive general assistance financial or medical aid. No town shall be liable to supplement a recipient of financial aid under chapter 302 whose award has been reduced or suspended or who has been penalized with a period of ineligibility, during such period of ineligibility. A person who is a recipient of medical aid under chapter 302 shall be considered to have his medical needs provided for by the state and no such person shall be eligible to receive general assistance medical aid.....
      “(c) Except as provided in sections 17-280 and 17-281, a person whose assets exceed two hundred fifty dollars shall not be eligible for assistance pursuant to this section or section 17-274. The commissioner of income maintenance may adopt regulations, in accordance with chapter 54, to implement the provisions of this subsection. ...”
      This section has been recodified at General Statutes (Rev. to 1995) § 17b-116.

       See 42 U.S.C. § 401 et seq., Old-Age, Survivors, and Disability Insurance.

       The written opinion issued following the state level hearing contains a section entitled “rationale for decision,” which states: “After reviewing the evidence and testimony presented at this hearing, I can find no error with the Town’s actions. The [plaintiff’s] representative has presented an interesting argument. However, I do not find that there is any ambiguity in policy in the determination of the composition of this assistance unit. This is a household consisting of a single adult living with her two dependent children. The fact that her children are receiving [social security survivors’] benefits does not change the household composition. These children are still the [plaintiff’s] dependents, and are a part of the assistance unit. The assistance unit’s income has to be counted in determining eligibility. Social Security benefits are not identified as excluded income in the General Assistance Policy Manual. Therefore, the benefits have to be counted in determining eligibility for General Assistance and are found to be sufficient to meet the needs of the assistance unit.”

       The trial court, however, rejected the plaintiff’s argument that the town was required to treat her as an assistance unit of one in making its support evaluation. The court reasoned that the defect in the general assistance regulations resided in the attribution to the plaintiff of funds the court believed not to be available to her, which it held to be a violation of federal and state law. The court therefore ruled that the town could continue to treat the plaintiff and her children as a single assistance unit, provided that in making its eligibility redetermination the town did not credit the plaintiff with resources not actually available to her.

       The question whether the state constitution obligates the state to provide a minimum level of assistance to the needy is currently before the court in separate proceedings. See Moore v. Ganim, Supreme Court Docket No. 14923, and Hilton v. New Haven, Supreme Court Docket No. 14925.

       The plaintiff and her children have an income, including the social security benefits, of at least $1116 per month. State regulations establish a ceiling for medical assistance eligibility for an assistance unit of three living in Region B, which includes Mansfield, of $772.73 per month. Regs., Conn. State Agencies § 17-3a-28 (H) (2) (General Assistance Policy Manual, c. II, § XVIII [¶] [2], p. 319 [Medical Aid]). The regulations also cap eligibility for financial assistance for an assistance unit of three living in Region B at $581 per month. Regs., Conn. State Agencies § 17-3a-20 (D) (a) (General Assistance Policy Manual, c. I, § X [D] [1] [a], p. 153 [Standards of Assistance]). The plaintiff does not argue that these eligibility requirements on their face violate § 17-273.

       General Statutes (Rev. to 1993) § 17-3a provides in relevant part: “standards FOR GRANTING OF GENERAL ASSISTANCE AND MEDICAL ASSISTANCE. AUDITS. RECOVERY OF REIMBURSEMENTS. SANCTIONS, (a) The commissioner of income maintenance shall adopt regulations in accordance with the provisions of chapter 54 establishing mandatory standards for the granting of general assistance financial and medical assistance, including the level of financial assistance to be provided at the expense of the town in such cases, which shall be three hundred fourteen dollars per month for a single employable person and three hundred fifty-six dollars per month for a single unemployable person upon determination of his unemployability, subject to the provisions of subsection (b) of section 17-2 and section 17-82n, including the payment of medical bills for persons not receiving general assistance financial aid who are unable to pay such bills over a two-year period, by towns, including standards for investigation and eligibility and extent of need and procedures for record-keeping, including uniform application and billing forms to be used by medical providers as well as towns, and other office practices, and establishing time limits for the determination of eligibility for financial assistance and for the payment of medical bills for persons not receiving general assistance financial aid and for the payment of all medical assistance bills, all with the intent of aiding the towns and any districts established under section 17-273a in the efficient administration of the laws relating to granting of general assistance financial and medical assistance. The commissioner shall inform the towns and such districts of the standards so established and shall advise and assist them in their application thereof. The commissioner may recommend regional areas within which he considers it reasonable for towns to join in the establishment of such districts, and may advise the towns therein of such recommendations and his reasons therefor.”
      This section has been recodified at General Statutes (Rev. to 1995) § 17b-78.

       Federal regulations also permit, prior to a full determination of eligibility for federal benefits, “a one-time emergency advance payment to an individual who is presumptively eligible for SSI benefits and who has a financial emergency.” See 20 C.F.R. § 416.520 (a) (1994).

       In an apparent departure from Delevieleuse, the court announced in Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 498-99, 522 A.2d 264 (1987), that a moot case would not be reviewed unless there was a reasonable expectation that the same complaining party again would be subject to the same action. For this proposition, it relied on the very language in Weinstein that had been quoted in Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 21, 411 A.2d 1 (1979), but disapproved in Delevieleuse. Hartford Principals’ & Supervisors’ Assn. v. Shedd, supra, 498-99; see also Delevieleuse v. Manson, supra, 184 Conn. 437 n.2. In practice, however, the court did not apply a test any more stringent than the one discussed in Delevieleuse, noting that the possibility that similar disputes between the parties “are likely to arise again is not an unreasonable assumption.” Hartford Principals’ & Supervisors’ Assn. v. Shedd, supra, 499. Thus, it does not appear that the dictum in Shedd was meant to overrule Delevieleuse or to resurrect Connecticut Foundry Co. and the Weinstein language. After Shedd, moreover, the court returned to the Delevieleuse formulation.

       This court subsequently dismissed the plaintiffs claim for relief on the ground that the trial court lacked jurisdiction to entertain it. Goodson v. State, supra, 228 Conn. 115.

       Our analysis is intended to provide guidance for a complex jurisdictional matter by establishing specific guidelines just as in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), we established guidelines for the perplexing question of what constitutes a final judgment for purposes of appellate review.

       We note that the federal courts follow this rule. See, e.g., E. Chemerinsky, Federal Jurisdiction (1989) § 2.5.3, pp. 115-16.

       The discussion of class action lawsuits in this context is purely illustrative. Class action lawsuits themselves involve a separate exception to the mootness doctrine. See, e.g., Dukes v. Durante, 192 Conn. 207,227-28, 471 A.2d 1368 (1984) (suggesting that in proper circumstances class action suit would not be subject to mootness rule); see generally E. Chemerinsky, Federal Jurisdiction (1989) § 2.5.5, pp. 121-24 (discussing federal rule).

       Although we also stated that “[t]he time dimension that the name of the exception implies is necessary but not itself sufficient to invoke our appellate jurisdiction”; Goodson v. State, supra, 228 Conn. 115; this was merely dictum because we found that the issue involved, whether a trial court may reinstate a discharged state employee pending the operation of a contractual grievance procedure, would evade review in the future due to the limited duration of such reinstatements.

        Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 411 A.2d 1 (1979).

       General Statutes § 18-97 provides in relevant part: “Any person receiving ... a sentence to a correctional institution or a community correctional center . . . shall receive credit towards . . . any portion of such sentence as to which execution is not suspended for any days spent in custody under a mittimus as a result of any court proceeding for the offense or acts for which such . . . sentence is imposed . . . .”

       Indeed, both parties urge us to decide the issue. The state, in advising this court that the case had become moot, wrote that the “Department of Social Services recognizes the importance of this case, and the fact that it is easily capable of repetition. Especially due to the breadth of the trial court’s ruling, the Department would like to proceed to a consideration of the merits of this appeal.” The legal aid organization representing the plaintiff, Connecticut Legal Services, Inc., similarly agreed during oral argument that the issues presented by the appeal were important and should be decided by this court.