Garofalo v. Squillante (concurring)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** LANDAU, J., concurring. Although I agree with the majority s result, I concur in the opinion because I do not think that we need to reach the issue raised in part I of the majority opinion and to do so renders a portion of this opinion advisory. A review of the procedural history of this case is necessary to support my position. In response to the defendant s counterclaim, the plaintiffs raised the special defense that the counterclaim was time barred by merely alleging that the counterclaimant s claims are barred by the applicable statute of limitations. The plaintiffs did not identify by number the statute on which they were basing their special defense.1 During trial and in their trial brief, the plaintiffs claimed that the defendant s counterclaim was barred by General Statutes § 52-576.2 Consequently, the court considered only § 52-576 in rendering its decision. In their brief to this court, the plaintiffs again based their statute of limitations argument on § 52-576. When the plaintiffs counsel argued before this court, he asserted General Statutes § 42a-3-118 as a defense for the first time. We unwittingly3 then gave the parties an opportunity to file supplemental briefs to address which statute applied to the 1978 note. Ordinarily, this court does not address questions not raised in the trial court. We have stated repeatedly that we ordinarily will not review an issue that has not been properly raised before the trial court. See, e.g., Santopietro v. New Haven, 239 Conn. 207, 219 20, 682 A.2d 106 (1996) (court not required to consider any claim that was not properly preserved in the trial court ); Yale University v. Blumenthal, 225 Conn. 32, 36 n.4, 621 A.2d 1304 (1993) (court declined to consider issues briefed on appeal but not raised at trial); see also Practice Book § 60-5 ( court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial ). Bell Atlantic Mobile, Inc. v. Dept. of Public Utility Control, 253 Conn. 453, 485, 754 A.2d 128 (2000). I do not believe we should address § 42a-3-118 because it was not before the trial court. The determinative issue in this case, however, is not whether § 52-576 or § 42a-3-118 applies. Both sections impose a six year limitation on claims. The decisive issue in this case is when the 1978 note was due and the defendant s claim accrued. For this reason, therefore, I do not think that it is necessary to determine which statute of limitations applies to resolve the appeal.4 Consequently, I concur in the result. 1 Practice Book § 10-3 (a) provides: When any claim made in a . . . special defense . . . is grounded on a statute, the statute shall be specifically identified by its number. 2 Counsel who signed the trial brief was the same counsel who argued before this court. 3 Prior to oral argument, this court only sees the record and the parties briefs. The plaintiffs brief was not written by the attorney who argued the case, which created confusion. 4 This case provides yet another example of the difficulties that arise when counsel fail to follow the directives of Practice Book § 10-3. The problem raised here does not fall entirely on the plaintiffs shoulders for the defendant may have waived his right to know the statute on which the plaintiffs intended to rely by failing to file a request to revise the special defense seeking a more definite statement or to bring the matter to our attention at oral argument. See Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 132, 523 A.2d 1266 (1987); Carnese v. Middleton, 27 Conn. App. 530, 537, 608 A.2d 700 (1992). Because both statutes have a six year limit, neither party is adversely affected. Under a different circumstance, however, it could have been detrimental to one of them.
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