Opinion
No. CV-99-0428209 S
December 12, 2003
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS' CROSS MOTION FOR SUMMARY JUDGMENT
This is an action brought by the state to collect on a bail bond. The state has filed a motion for summary judgment and the defendant bondsman has filed a cross motion for summary judgment.
The standards to be applied in deciding such a motion are well defined. Such motions cannot be granted if there is a material issue of fact which is disputed. If that is the case the parties are entitled to have a trial. If no material fact is in dispute, then the court can grant the motion. The court will first discuss the facts of the case and then attempt to address the legal issues raised.
As the defendant notes "in all material respects the facts appear to be undisputed" in this case. The court will adopt much of the factual narrative of the defendant. On June 26, 1996 Gabriel Gladstone was charged with a number of crimes. The court ordered a $10,000 bond on the previously mentioned date and a bail bondsman, Robert Sterling, issued an appearance bond for that amount; Gladstone was then released. On April 13, 1998 Gladstone was convicted of three felonies. The trial judge thereupon ordered Gladstone's bond increased to $150,000 and a second bail bondsman, the defendant Robert Jacobs, furnished a $140,000 appearance bond. This, added to Sterling's initial bond, made the total bond $150,000. Gladstone was then released from postconviction custody. At that point there were two separate bonds — Sterling's $10,000 bond and the defendant Jacobs' bond of $140,000. Gladstone was to be sentenced June 5, 1998 but did not appear. The court indicated it was prepared to sentence Gladstone in absentia but first indicated it would call the bond. The following transpired:
Clerk: Gabriel Gladstone, appear in court and save yourself from bail. Robert Sterling, appear in court and have this day with you Gabriel Gladstone whom you are bound to have or forfeit your recognizance in the amount of $150,000. The time is 10:10 A.M.
The Court: All right. Gabriel Gladstone is not present. That bond is ordered forfeit. A rearrest warrant will issue. Bond will be $1,000,000.
The court then proceeded to impose an effective sentence of twenty years on Gladstone and total fines in the amount of $45,000.00.
It should be noted that a re-arrest having been issued upon Gladstone's failure to appear and this failure which subjected Gladstone to being sentenced in absentia would have presumably permitted the State to charge him with a violation of § 53a-172 (Failure to Appear in the first degree) — a class D felony with a possible sentence of one to five years and fine of up to $5,000 which could have been imposed in addition to the sentence just mentioned.
Gladstone was eventually returned to custody on December 2, 1999 where he remains. His sentence was later reduced due to his cooperation in another criminal investigation.
The state brought this action against Mr. Jacobs, his business, Jacobs Bail Bonds, and against the insurance company that provided the bond certificate; judgment is sought in the amount of $140,000.
The court will now try to address the legal issues raised by the parties. In addition to the parties' briefs the court has relied on the article on "Bail and Recognizance" in 8 Am.Jur.2d, the volume on "Contracts" in 17A Am.Jur.2d and the article entitled "Pretrial Bail Bond — Duration of Liability" in 32 A.L.R.4th 504.
(1)
There is not much in the way of Connecticut law on the issues raised by these motions. One argument raised by the defendant which would obviate a need to address the questions of contract and statutory interpretation that have been raised is succinctly stated in his brief He argues that the state's action must fail because the bond . . . "was never effectively forfeited. In order to effect a bond forfeiture under the provisions of Connecticut General Statutes § 54-65a, a court must, in the first instance, actually order the forfeiture of the bond." That statute sets forth the procedures required "at the time of the ordering of the bond forfeited." Here the defendant Jacobs posted a $140,000 bond, this was added to the $10,000 bond of another bondsman, Robert Sterling. The court indicated it would call the bond before proceeding with sentencing. As noted, the clerk then misspoke by calling upon Sterling to produce Gladstone or in default thereof "your recognizance in the amount of $150,000" would be forfeited. The court then said "That bond is ordered forfeited . . ." Well there was no $150,000 bond as such, no such bond was put up by Mr. Sterling, and the Jacobs bond in its proper amount was not even alluded to nor was Mr. Jacobs called upon to produce the defendant Gladstone.
The defendant argues that § 54-65a was not strictly complied with because the Jacobs bond was never actually forfeited by the court. A bail bond is a contract between the state on one hand and a principal (defendant in a criminal case) and a surety. Cf. State v. Garvin, 242 Conn. 296, 305 (1997); cf. State v. Johnson, 23 Conn. Sup. 318, 320 (1962). This contract must be interpreted in light of its language but also with reference to the statutory scheme which authorizes them, Ames v. Comm. of Motor Vehicles, 70 Conn. App. 790, 795 (2002); cf. State v. Spring, 176 S.W.2d 817 (Tenn. 1944); Western Surety Co. v. U.S., 72 F.2d 457, 459 (C.A. 9, 1934); People v. Allen, 33 Cal.Rptr.2d 669, 673 (1994) (surety's obligations under appeal bond), also see 8A Am.Jur.2d article on "Bail and Recognizance" at § 52, page 341. The defendant cites the case of Waslewski v. Barri, 146 Conn. 8 (1958), which involved an action against a surety. In upholding a judgment in favor of a surety brought by a private party under a statutory scheme authorizing such an action, the court cited a particular statute defining the surety's rights and obligations and said: "The provisions of § 8064 must be strictly construed." Id. p. 10. In Waslewski, these provisions were in favor of the surety and her right to be released from obligation under the bond. The Am.Jur. Article just referred to at the section and page number mentioned after indicating the bail contract is to be interpreted in light of its language and the applicable statutory scheme goes so far as to say that generally speaking ". . . the terms of a bail contract are to be strictly construed in the surety's favor."
But all of this does not require the court to hold that the Jacobs bond was not forfeited because the clerk and the court misspoke. It was the intent of the court to call both the Sterling and the Jacobs bond, the only bonds in the file, both of which totaled $150,000. In Waslewski, failure to give a strict reading to the statute increased the risk imposed on the surety by extending her liability on the bond after she presented her principal but he was not taken into custody as the statute provided but the matter was continued. Here, when Gladstone did not appear according to the terms of the bond, the surety breached his agreement with the state to produce him. When the agents of the state for these purposes did not use the exact wording necessary to memorialize that breach how can it be said that the party who suffered the breach is thereby barred from pursuing a contract remedy? In interpreting contract language the words used must be given "a fair and reasonable construction" in light of the parties' intent. Sturman v. Socha, 191 Conn. 1, 10 (1983). It should follow that when an obvious breach has occurred, pursuit of contractually authorized remedies should not be forestalled because of the use of incorrect language to claim the breach where no party can claim thereby that a breach in fact did not occur or that for example the party accused of the breach did not receive notice and thus could not mitigate damages or take steps to correct the breach. For example, say A agreed to buy 150 blue widgets from B, a contract was signed that said upon claimed breach the buyer must notify the seller of any failure to perform as agreed upon within ten days. In fact the widgets delivered were brown and on day ten A notifies B that we claim a breach because you delivered 150 widgets to us but they were not the agreed-upon color, they were purple. Would any rational contract regime deny the right to claim a breach under these circumstances when an obvious breach occurred?
The defendants' argument on this point elevates form over substance. The bail bond's language obligated the surety to produce Gladstone on sentencing day, he was not produced, in recognition of that fact the court intended to effect a bond forfeiture. It used the wrong language to do so but its intent was clear and the risk the surety assumed when it agreed to the terms of the bond if Gladstone was not produced was not increased. In other words any forfeiture and the state's right to move against the surety for the amount of the bond were created by the failure to produce breach of duty and should not be negated by failure to use certain magic words, the predicate breach having occurred.
(2)
Other aspects of the defendants' position, however, must be discussed. It is first necessary to set forth the nature of the contractual arrangement between the state as one party and the defendant and the surety as the other parties to the agreement. First the court will examine the bond signed by Gladstone, then Jacobs. The principal, Gladstone, as the defendant in the criminal case made the following representation on the Jacobs bond and signed his name after them:
I promise to appear before the above named court (Part A, New Haven) on the appearance date and time specified above (July 26, 1996) and at any other place and time to which the charges against me may be continued . . . I also understand that I am being released on a (surety bond) in the above amount of bond ($140,000), to insure my appearance as promised above until final judgment is rendered.
The surety, Mr. Jacobs, signed under the following representation in the portion of the bond labeled as the "surety bond."
I, the above named surety, understand that if the above-named defendant fails to appear, in accordance with the foregoing promises, I will be liable to the State of Connecticut for the above amount of bond ($150,000).
Oddly enough Mr. Jacobs signed as surety in this same section of the bond form which listed the amount of the bond as $150,000. This mistake on his part should not increase his liability beyond the amount of the bond he actually posted but then it also would seem fair that the state's claim is not barred merely for the incorrect calling of the bond.
But as the earlier discussion indicates the complete contractual relationship between the parties especially as it determines or defines the risk of nonperformance by the surety is further set forth in the statutes. Section 54-65a says that if the principal (the arrestee) fails to appear "as conditioned in such (surety) bond the court shall, at the time of ordering the bond forfeited order a stay of execution upon the forfeiture for six months." The statute, as amended (of which more later) goes on to say that if the arrestee is returned to custody within the six-month period "the bond shall be automatically terminated and the surety released." Subsection (b) goes on to provide the chance for a rebate if the principal is returned to the court's jurisdiction after the six-month stay period but within one year of the date the bond was forfeited. The reasons for these provisions, as the legislative history referred to by plaintiff's counsel indicates, was to give an incentive to the surety to locate the principal and assist in his/her return to custody. This is obviously a benefit to the state and it also ameliorates the risk of nonperformance by the surety in not having the principal present at the court hearing, as the bond requires, which provided the predicate for forfeiting the bond in the first place.
The surety's contractual obligations are further qualified from what can be gathered by simply reading the bond papers through § 54-66a of the general statutes. It says:
Sec. 54-66a. Automatic termination of bail bonds.
Any bail bond posted in any criminal proceeding in this state shall be automatically terminated and released whenever the defendant: (1) Is granted accelerated rehabilitation pursuant to section 54-56e; (2) is granted admission to the pretrial alcohol education system pursuant to section 54-56g; (3) is granted admission to the pretrial family violence education program pursuant to section 46b-38c; (4) is granted admission to the community service labor program pursuant to section 53a-39c; (5) is granted admission to the pretrial drug education program pursuant to section 54-56i; (6) has the complaint or information filed against such defendant dismissed; (7) is acquitted; (8) is sentenced by the court; (9) is granted admission to the pretrial school violence prevention program pursuant to section 54-56j; or (10) is charged with violation of section 29-33 and prosecution has been suspended pursuant to subsection (h) of section 29-33." (Emphasis added.)
The main thrust of the state's argument turns on how certain undisputed facts are interpreted in light of the agreement between the parties as affected by the language of the just referenced statutes. It is not disputed that Gladstone was not returned to custody until December 2, 1999. He had been sentenced on June 5, 1998 so that the return to custody occurred some twelve months after the expiration of the statutory stay period under § 54-65 because the bond, as noted, was forfeited on the same day of sentencing. In other words, Gladstone's recapture took place eighteen months after his failure to appear, bond forfeiture, and sentence in absentia.
Relying on the factual underpinning the state argues that § 54-65 gives a stay on the forfeiture of the bond of six months; it was never the intention of the legislature to permit a bond to be reinstated and the surety to be released after the expiration of the stay. For the court to rule in the defendant's favor here under these circumstances would thus violate well established principles that no part of a legislative enactment may be ignored. State v. DeLossantos, 211 Conn. 268, 274 (1989).
The court will now discuss the legal issues raised by the parties from the perspective of the bond signed by Gladstone and Jacobs and how it relates to the previously mentioned statutes in defining the contractual arrangements between the parties and the risks assumed by the surety in posting bond.
(a)
The state concedes as it must that when the bond was forfeited on June 5, 1998 the forfeiture was stayed pursuant to § 54-65a. There is also no dispute that Gladstone was sentenced within six months from the forfeiture. He was in fact sentenced the same day. There is no doubt that under appropriate circumstances a sentence in absentia is a valid procedure that finally disposes of criminal matters before the trial court subject to any right to appeal. Rodriguez v. Commissioner of Corrections, 57 Conn. App. 550, 551 (2000); Clarke v. Commissioner of Corrections, 249 Conn. 350, 352-53 (1999). The court cannot ascertain any reason why such a "sentence" would not meet the definition of "sentence" in subsection (8) of § 54-66a. Gladstone was not brought into state custody until December 2, 1999.
What is the implication of all of this for the purpose of defining the surety's contractual obligations to the state? The parties mainly analyze the problem from the perspective of the statutes, § 54-65a and § 54-66a(8). The court will take a slightly different approach and address the issue before it by looking at the agreement between the parties as reflected in the bond papers, then try to discuss the effect of the statutory language on the aspects of the agreement relevant to the question presented by these motions.
The court has previously referred to the language of the surety bond. Gladstone signed a portion of the bond that acknowledged he was being released on a surety bond which was "to insure my appearance . . . until final judgment is rendered." Jacobs signed in a box labeled "Surety Bond" under the following representation — he represented that he understood that if the defendant Gladstone failed to appear, "in accordance with the foregoing promises" (obviously of Gladstone and for the nature of which see above), he, the surety, would be liable for the amount of the bond. First we must discuss the meaning of the phrase "final judgment."
What is a final judgment. Black's Law Dictionary says the following:
final judgment. A court's last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorneys fees) and enforcement of the judgment. — Also termed final appealable judgment; final decision; final decree; definitive judgment; determinative judgment; final appealable order.
That is certainly the understanding in our rules of practice. In the section of the Practice Book entitled "Remedy By Appeal" it says the following:
§ 61-6. Appeal of Judgment or Ruling in Criminal Case
(a) Appeal by Defendant
(1) Appeal from Final Judgment. The defendant may appeal from a conviction for an offense when the conviction has become a final judgment. The conviction becomes a final judgment after imposition of sentence. In cases where a final judgment has been rendered on fewer than all counts in the information or complaint, the defendant may appeal from that judgment at the time it is rendered.
In our practice the word "final judgment" refers to the sentencing portion of a criminal proceeding. In the context of a criminal case it is difficult to see what else "final judgment" could mean other than sentencing. A surety agreement is a contract and in interpreting contracts words must be given their ordinary, natural, and common meanings. Marcus v. Marcus, 175 Conn. 138, 141-42 (1978). This meaning attached to words like "final judgment" or "final determination" is not a Connecticut creation. Referring to a prior case in a suit against a surety the court in State v. Vendrell, 484 A.2d 720, 722 (App.Div. 1984), said "it is well-settled that final judgment in the context of criminal proceedings is the judgment of conviction despite the pendency of an appeal." Also see discussion at § 8 of article in 32 A.L.R.4th at pp. 526 et seq., and 8A Am.Jur.2d "Bail and Recognizance," § 101 at page 388.
Keeping this discussion in mind we can return to the wording of the surety bond and try to give its language a common sense meaning. Gladstone promises to appear at any time and date to which the charges against him are continued. This would of course include his date of sentencing. He further indicates he understood he was being released on a surety bond to insure such appearance "until final judgment is rendered." "Final judgment" is the sentencing and the sentence is "rendered" when it is imposed — what else could "rendered" mean in this context. And Gladstone promised to appear in court "until" that sentence or final judgment was rendered. Jacobs in his turn signed a portion of the bond papers where he stated he understood that if Gladstone failed to appear in accordance with his promises he, Jacobs, would be liable for the amount of the bond.
If the analysis were to be stopped at this point it would seem clear that in light of the fact that Gladstone was sentenced in absentia he, by definition, did not appear, according to his promise, when that sentence was "rendered." Thus the surety Jacobs would seem to have to suffer the consequences of Gladstone's failure to live up to his promise which the surety had guaranteed.
It is true that where defendants have agreed to appear at all stages of the proceeding and until final determination, final judgment or sentencing and the surety has assumed the responsibility to produce the defendant and in fact the defendant has so appeared, appellate courts have held that judgments against the surety on the bond should not lie when the trial court after sentencing does not remand the defendant to custody but continues the case for disposition. These cases arrive at their position by simply analyzing the language of the agreement and concluding that by producing the defendant for sentencing the surety has fulfilled his/her obligation to have the defendant appear until final judgment. They also reason that if a trial court continues the surety's obligation beyond that point a surety cannot be held liable on the bond because the risk of nonperformance has been increased beyond what the surety bargained for when the defendant was taken out on bond. One court has reasoned that "a defendant who has already been found guilty and sentenced has a substantially greater motivation to fail to appear as required than one who has not been so adjudged." State v. Vendrell, 484 A.2d 720, 722 (N.J.Sup.A.D. 1984); cf. facts of Waslewski v. Barri, 146 Conn. 8, 9, 10 (1958); Suit v. State, CT Page 14001 207 S.W.2d 315, 317 (Ark. 1947); State v. Corl, 293 S.E.2d 264, 267 (N.C. 1982); Rice v. State, 488 So.2d 1351, 1352 (Ala. 1986). But these cases are not favorable to the defendant's position. They are not on point at least factually for the purposes of dealing with the problem before the court because in these cases the surety in fact did produce the defendant for actual sentencing, the defendants were not sentenced in absentia. To have a defendant sentenced in absentia is not exactly what the state bargained for with the defendant and the surety. The bargain was that the defendant would appear until final judgment was rendered whereupon he could be placed into custody or released on a new surety bond pending appeal.
Again, the foregoing cases provide no added reason to rule in the defendant's favor and in fact if that were all that was involved judgment could enter for the state. The problem is not quite so easy, however, because sections 54-65a and 54-66a(8) must be incorporated into any understanding of the entire contractual agreement between state and surety in light of the fact that Gladstone was sentenced in absentia. The court could find no case from other jurisdictions referring to statutory language governing surety bonds similar to ours let alone dealing with the effect of a sentence in absentia on a surety's obligations.
(b)
Sections 54-65a and 54-66a must be read together and one complication that must first be addressed is the change in language in § 54-65a. The bond was written in June of 1996. At that time the statute provided that upon forfeiture there should be a stay of forfeiture for six months just as in the present language of the section but it then went on to say that when the arrested person whose bond has been forfeited "is returned to custody within six months of the forfeiture) "the bond shall be automatically reinstated and the surety released." Effective October 1, 1996 the statutory language was changed. It now reads when the principal (the arrested person) is returned to custody within the six-month period "the bond shall be automatically terminated and the surety released and the court shall order new conditions of release for the defendant in accordance with § 54-64a."
It could be argued that a bond written under the statute as it existed on June 1996, once forfeited, could not be terminated under the language of § 54a-66 which on the just mentioned date and as now reads in relevant part as follows: "Any bail bond posted in any criminal proceeding in this state shall be automatically terminated and released whenever the defendant . . . (8) is sentenced by the court." The old language of § 54-65a implies that once a bond is forfeited it does not continue to have ongoing legal existence and therefore if a defendant is returned to custody within the six-month period it must be reinstated and thus legally resurrected. That is, if a bond upon forfeiture has to be reinstated for the surety to be released under § 54-65a the provision in subsection (8) of § 54-66a would not seem applicable, since its language seems to imply the existence of a legally effective bond at the time of automatic termination under subsection (8) of § 54-66a. The present language of § 54-65a would not be a problem for the defendant surety here because § 54-65a now reads that if an arrestee is returned to custody within six months the surety is released, not after the bond is "automatically reinstated," but after it is "automatically terminated." This latter language implies that the bond continues to have a legal existence, at least for the purposes of defining the sureties' risks and obligations, and the diktat of subsection (8) of § 54-66a therefore would operate to have terminated the bond immediately upon sentencing of Gladstone in absentia. Here, sentencing took place on June 5, 1998, many months after the effective date of the amendment to § 54-65a which was October 1, 1996. The question arises, was the bondsman bound by the language of § 54-65a as it existed when the bond was written or does the automatic termination language of § 54-66a(8) apply because the date of sentencing occurred after the change in statutory language.
The first question that should probably be asked revolves around the reasons for the change in the statute in 1996 and whether they had anything to do with the problem now before the court. We are not dealing with a problem where a "plain meaning" reading of the statute will resolve the difficulties presented — the preceding convoluted discussion is not the stuff of "plain meaning." This is especially so since we have a situation where the writing of the bond and its calling predated and postdated the statutory change.
The court has examined the legislative history of P.A. 96-96 which led to the change in the language in § 54-65a just discussed. Oddly enough the present foes in this case, generically speaking, joined forces in 1996 to effect the change in language. Under the old language some trial judges were simply reinstating bonds leaving sureties on them and not adding new conditions on the bond — the sureties objected to being left on a bond where the defendant had already failed to appear even though the defendant was returned to custody. The office of the chief state's attorney wanted the statute to underline the fact that the old bond was to be terminated. And in addition to the present language indicating the bond was to be terminated when a defendant was returned to custody within the six-month period the prosecutors got added language in § 54-65a to the effect that after the termination of that first bond: "the court shall order new conditions of release for the defendant in accordance with § 54-64a." It is clear that none of the reasons for the 1996 change in language of § 54-65a had anything to do with the problem now before the court and the legislature gave no indication that when enacted in 1996 to change § 54-65a it had in mind the interplay of that statute with subsection (8) of § 54-66a — let alone the situation presented thereunder when a sentence in absentia had taken place.
Further ambiguities are presented, however. As said in Ames v. Commissioner of Motor Vehicles, supra, and, as noted in other jurisdictions that have addressed the issue, statutory provisions must be read into the contractual arrangements between defendant, surety, and the state. But what if during the course of the running of the bond statutory provisions change which might affect the defendant's obligations, the rights of the surety or claims the state might make against either? In this context does the notion of a new consideration for a contract modification apply let alone make any sense? If the change in the statutory language of § 54-65a was passed with the support of the chief state's attorney and sureties as a class for recissions having nothing to do with the problem now before the court can either the state or a surety involved in a dispute on a pre-October 1, 1996 bond argue that the new statutory language does not apply in a post-October 1, 1996 context when either the obligation of the surety is being decided and/or the rights of the state? When the bond was forfeited in June of 1998 the amended post-1996 language of § 54-65a would certainly have applied and certainly the state would have strenuously objected if the trial judge simply reinstated the bond without reference to the conditions set forth in § 54-64a. Myriad complexities are presented if the post-1996 statutory changes do not apply to a bond written before October 1, 1996 but forfeited after that date. Also in the 73 Am.Jur.2d article on "Statutes" at § 241, page 422, it states "Ordinarily where an amendment has been adopted to a comprehensive legislative act covering a particular subject, in construing the act thereafter it will be read as if the amendment had been in it from the beginning." See State ex. rel. McGraw v. Combs Services, 526 S.E.2d 34 (1999). If § 54-65a as amended governs the interpretation the court should give to the legal obligations of the parties at the time the bond was forfeited it is difficult to understand how it could be said that § 54-66a(8) would not apply to automatically terminate the bond — why and on what basis can the court conclude that an automatic termination upon sentencing under § 54-66a(8) is any different from an automatic termination under § 54-65a when the defendant is returned to custody within six months of the forfeiture?
The surety would also have objected but for different reasons — why am I still on the bond? But could the defendant have said you took my money for a bond that I thought the judge at least had the option of reinstating, now I have to post a new bond, and what are all of these conditions, whoever heard of § 54-64a?
But even leaving § 54-66a(8) aside there is a further problem with the state's position. Under any reading of § 54-65a both pre- and post-October 1, 1996 when the bond was forfeited on June 5, 1998, if the defendant had been returned to custody within six months the surety would have been released. That was clearly part of the contractual understanding of the parties and in part defined the ambit of the bondsman's risk. The trial court was under no obligation to sentence Gladstone. It could have simply ordered his re-arrest. Prior to actually sentencing Gladstone in absentia the court said it had a right to do so as long as the defendant had notice of the sentencing date and it would be found that he had intentionally waived his right to be present. Both Gladstone's lawyer and the state's attorney addressed these issues, the latter indicating the efforts that had been made to locate Gladstone. The court then proceeded to sentence Gladstone in absentia to twenty years in jail and a $45,000 fine. As the defendant points out in his brief: "Any acts by the trial court which materially increase the known and understood risk of a surety have the effect of terminating the surety's obligation on the bond." 8A Am.Jur.2d "Bail and Recognizance" § 90, State v. Vendrell, supra. Under any reading of § 54-65a, with its pre- or post-October 1, 1996 language, the statute gave a six-month window of opportunity to the surety to escape liability and the trial court's sentencing of Gladstone — which it had a perfect right to do — materially increased the probability that that event would not be as likely to occur within the six-month period. Given the severity of the sentence it does not require an extensive citation to case law to underline the fact that the six-month provision was thereby rendered illusory. See State v. Vendrell supra.
At the least what the foregoing discussion shows is that the language of the surety bond and these two statutes read together is ambiguous on the question of resolving the question now before the court. The court can take judicial notice of the fact that the operative bond paper in this case is a form issued by the state. The statutes which under Ames are incorporated into any contractual understanding between the parties are of course instruments of the state passed by the legislature. The court said in Cameron v. Avonridge Inc., 3 Conn. App. 230, 233 (1985); "When there is ambiguity, we must construe contractual terms against the drafter." Rund v. Mellilo, 63 Conn. App. 216, 222 (2001); Simses v. North American Co. for Life and Health Ins., 175 Conn. 135, 138 (1984). If the issue of sovereign immunity is removed from consideration or, for example, once it is determined special statutory provisions requiring a certain type of notice to the state before a contract action can be brought against it do not apply, the state subjects itself to the same rules of contract interpretation and risks of ambiguity as any other litigant. Relying at the very least on this principle the court concludes that the surety bond and the accompanying statutes must be interpreted so as to require that the state's summary judgment motion be denied. Furthermore, based on the foregoing the defendant's motion for summary judgment is granted.
CORRADINO, JUDGE.