text:
    New Haven Firebird Society et al. v. The Board of Fire Commissioners of the City of New Haven et al.
    (11505)
    O’Connell, Heiman and Freedman, Js.

      Argued June 9
    decision released August 17, 1993

      W. Paul Flynn, with whom were Lawrence S. Dressier and, on the brief, Howard A. Lawrence, for the appellant (defendant Local 825, International Association of Firefighters).

      Joseph D. Garrison, with whom, on the brief, was Robert A. Richardson, for the appellees (plaintiffs).
   O’Connell, J.

This is an appeal from the judgment of the trial court granting the plaintiffs’ application for a declaratory judgment and injunctive relief. The plaintiffs are the New Haven Firebird Society, an organization of African-American and Hispanic fire department personnel, and seven of its individual members who are New Haven fire fighters. The original defendants were the city of New Haven, the New Haven board of fire commissioners, the New Haven board of finance, five individual fire commissioners, a former New Haven fire chief and a former New Haven mayor. In addition, Firefighters for Fairness and Equality, Inc., a group comprised of fire fighters whose promotions were at risk, and Local 825 of the International Association of Firefighters, AFL-CIO (union) intervened as defendants. The union is the only defendant to appeal.

This case originally came before the trial court in the fall of 1989. On December 21, 1989, the court, Fracasse, J., granted the defendants’ motion for dismissal for failure to make out a prima facie case. Practice Book § 302. The trial court ruled that equitable relief was not warranted because the plaintiffs had an adequate remedy at law through a quo warranto or mandamus action. The Supreme Court disagreed and remanded the case for a determination on the merits. New Haven Firebird Society v. Board of Fire Commissioners, 219 Conn. 432, 593 A.2d 1383 (1991). On remand, the case was heard in full by the trial court, W. Sullivan, J.

The union claims that the trial court (1) improperly failed to find legal justification for making “promotions subject to assignment” and (2) lacked a legal basis for the declaratory and injunctive relief that it granted. We affirm the judgment.

Promotions to officer positions in the New Haven fire department are made from eligibility lists, prepared by the city’s civil service commission after competitive examination. Persons to be promoted are selected from among the top three eligible individuals. New Haven Charter, art. XII, § 191. The fire chief is charged with assigning all members of the department to duty. New Haven Charter, art. XXI, § 3.

This case arose out of the practice of the board of fire commissioners making promotions “subject to assignment.” This practice, also known as “stockpiling,” consists of promoting individuals to positions that are not yet vacant just prior to expiration of a promotion eligibility list. The individuals so promoted would not receive the pay or perform the duties of the higher position until a vacancy in fact occurred and the individual was assigned by the fire chief to fill the vacancy.

Rule IV, § 1, of the New Haven civil service rules requires the civil service board to prepare a list of eligible candidates for promotion. Rule VI provides that the board of fire commissioners may request that the civil service board furnish it with an eligibility list whenever a vacancy occurs or is anticipated. A vacancy is defined as a position existing or newly created that is not occupied and for which funds are available. Rule IV, § 2, provides that an eligibility list shall be in effect from the date it is promulgated and § 3 provides that such list shall be in effect for a period of not less than one year nor more than two years from the date of promulgation.

Specifically at issue are three eligibility lists involving promotions to lieutenant, captain and battalion chief, respectively. The plaintiffs allege and the union admits that the lieutenant and battalion chief lists expired on March 31, 1988, and the captain’s list expired on December 29, 1989. Notwithstanding the expiration of the list, the union maintains that promotions made subject to assignment before the expiration of the lists were valid.

The trial court rendered a declaratory judgment that all promotions from the lists, for which no vacancy existed on the expiration date, were null and void. In addition, the trial court enjoined the defendants from promoting any individuals from the expired lists.

The seminal case concerning the significance of the expiration of promotion eligibility lists is State ex rel. Chernesky v. Civil Service Commission, 141 Conn. 465, 106 A.2d 713 (1954). “One who could demonstrate his ability [at a specific time] to perform the duties of an office higher than that he then held, might, for a wide variety of reasons, be incompetent to do so a few years later. A limitation upon the time during which an eligibility list remains effective is in the public interest. That interest is fostered by requiring those remaining upon a list to resubmit themselves after a lapse of time to demonstrate anew their fitness for . . . promotional appointment. For the foregoing reasons, a limitation on the life of an eligibility list represents a well-established policy of the merit system.” Id., 469-70. In the present case, the practice of making promotions subject to assignment extends the two year limitation period indefinitely. This violates the principle enunciated in Chemesky that a person does not acquire permanency of eligibility on a promotion list merely because he once passed an examination. Id., 469.

Nevertheless, the union argues that because the board of fire commissioners has consistently interpreted the local charter and civil service rules to allow promotions subject to assignment, we must give deference to this interpretation. The union relies on the legal principle that requires courts to accord deference to the construction of a statute by the administrative agency charged with its enforcement. Local 1186 v. Board of Education, 182 Conn. 93, 105, 438 A.2d 12 (1980). This rule of deference, however, does not apply to the construction of a statute on an issue that has not previously been subjected to judicial scrutiny. Connecticut Light & Power Co. v. Department of Public Utility Control, 210 Conn. 349, 357, 554 A.2d 1089 (1989); Quinnipiac Council, Boy Scouts of America, Inc. v. Commission on Human Rights & Opportunities, 204 Conn. 287, 295, 528 A.2d 352 (1987). In such instances, the construction of the statute is a question of law for the court. Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987). The issue of stockpiling promotions has not previously been the subject of judicial scrutiny and, therefore, special deference to the interpretation of the board of fire commissioners is not warranted in this case. Moreover, where the judicial interpretation of a rule conflicts with the administrative interpretation, the judicial interpretation prevails. United States v. Was, 684 F. Sup. 350, 352 (D. Conn. 1988), aff’d, 869 F.2d 34 (2d Cir.), cert. denied, 490 U.S. 1068, 109 S. Ct. 2071, 104 L. Ed. 2d 636 (1989).

No member of the board of fire commissioners testified concerning any rationale or purpose for stockpiling. The testimony was only that it was a practice that has been followed by the board for a very long time. At trial, no attempt was made to reconcile the practice with the New Haven charter or civil service rules. “In the circumstances before us, the historical record cannot override the mandates of the charter. We cannot speculate as to why the board acquiesced for so many years in the [stockpiling practice].” Local 1186 v. Board of Education, supra. An agency’s interpretation of a rule that clearly violates the rule’s intent cannot become legal merely by the passage of time. Consequently, the union’s contention that the practice must be recognized because it has gone unchallenged for a long time is unpersuasive.

The union next reasons that because it can be expected that every position will eventually become vacant, stockpiling is in fact making promotions to fill expected vacancies. We agree that every lieutenant, captain or battalion chief will one day retire, resign, be promoted, die, be removed from his position or otherwise vacate it. Although these officers do not hold their positions for eternity, we do not agree that such an indefinite possibility of a future vacancy is a reasonable interpretation of the New Haven civil service rules. It is axiomatic that courts will not construe statutes, ordinances or regulations to achieve an absurd or irrational result. See Turner v. Turner, 219 Conn. 703, 712-13, 595 A.2d 297 (1991).

At oral argument before this court, the union also urged us to confirm the stockpiling process because requiring a new examination following the expiration of two year eligibility lists would impose an unnecessary financial burden on the city. We do not consider this argument for a number of reasons. First, the union did not set forth this argument in its brief. See State v. Marra, 222 Conn. 506, 536 n.16, 610 A.2d 1113 (1992); Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991). Second, in any event, the expense of complying with the city’s own rules is not an excuse for noncompliance. See, e.g., Derby v. Water Resources Commission, 148 Conn. 584, 590, 172 A.2d 907 (1961). Finally, we note that the defendants, presumably most interested in the financial impact of this judgment on the municipality, did not appeal.

Our conclusion is forged by the deeply rooted policies that support civil service examinations. “We have long recognized the purpose and importance of such examinations.” Cassella v. Civil Service Commission, 202 Conn. 28, 34, 519 A.2d 67 (1987). They “ ‘secure more efficient employees, promote better government, eliminate as far as practicable the element of partisanship and personal favoritism, protect the employees and the public from the spoils system and secure the appointment to public positions of those whose merit and fitness have been determined by proper examination.’ ” Id., quoting Ziomek v. Bartimole, 156 Conn. 604, 610, 244 A.2d 380 (1968).

“The civil service law provides for promotion in governmental employment according to merit and fitness ascertained by competitive examination. . . . The primary purpose of these laws is to guarantee that the meritorious secure jobs and to free public employees from the fear of personal and political reprisal. . . . These examinations not only protect the employees but also benefit the general public in that they tend to eradicate corruption as well as ensure that the persons with the necessary qualifications to discharge intelligently their duties pertaining to public office will do so.” (Citations omitted.) Cassella v. Civil Service Commission, supra, 34-35.

“It cannot be overemphasized that proper competitive examinations are the cornerstone upon which an effective civil service system is built. Any violation of the law enacted for preserving this system, therefore, ‘ “is fatal because it weakens the system of competitive selection which is the basis of civil service legislation.” ’ Ziomek v. Bartimole, supra, quoting Civil Service Board v. Warren, 74 Ariz. 88, 91, 244 P.2d 1157 (1952). Strict compliance is necessarily required to uphold the sanctity of the merit system . . . .’’(Citations omitted.) Cassella v. Civil Service Commission, supra, 35.

Accordingly, the trial court properly determined that the practice of promoting subject to assignment was illegal.

The union next argues that even if the civil service rules were violated, the trial court improperly issued a declaratory judgment. Practice Book § 389 provides in pertinent part that a court will “render declaratory judgments as to the existence or nonexistence (a) of any right, power, privilege or immunity . . . .’’Practice Book § 390 adds that “[t]he court will not render declaratory judgments upon the complaint of any person ... (a) unless he has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to his rights or other jural relations; or (b) unless there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties . . . .” The union, in an apparent but unarticulated challenge to the plaintiffs’ standing, maintains that the plaintiffs offered no proof that they were improperly denied the right to an examination or that it was unfairly or unlawfully administered. The union further contends that there is no right to the examination process unless and until it is called.

“The question of standing [to pursue a declaratory judgment] is essentially one of aggrievement.” Munhall v. Inland Wetlands Commission, 221 Conn. 46, 54, 602 A.2d 566 (1992). Whether the plaintiffs have been aggrieved is an issue of fact for the trial court to determine. Id., 50; Hickey v. New London, 153 Conn. 35, 38, 213 A.2d 308 (1965). The trial court found that the plaintiffs were entitled to the legal and equitable interest of seeking a promotion through examination and that the practice of stockpiling endangered that interest. Our review of the record satisfies us that the subordinate facts support the trial court’s finding that the plaintiffs satisfied the requirements of Practice Book §§ 389 and 390.

Similarly, the union also claims that the trial court improperly issued an injunction because “there was no right [of the plaintiffs] that was damaged or threatened to be damaged at the time the board of fire commissioners acted.” The party seeking injunctive relief must allege and prove irreparable harm and lack of an adequate remedy at law. Pet v. Department of Health Services, 207 Conn. 346, 370, 542 A.2d 672 (1988). The issuance of injunctive relief is within the discretion of the trial court. Id.

The trial court expressly found that the plaintiffs “have no adequate remedy at law and that they will suffer irreparable harm if an injunction does not issue.” The trial court did so because it agreed with the plaintiffs’ contention that they were deprived of the opportunity of seeking promotion as long as the illegal stockpiled lists remained in effect. Accordingly, the court did not abuse its discretion in permanently enjoining the defendants from promoting individuals from these illegal lists.

The judgment is affirmed.

In this opinion the other judges concurred.

       The individual plaintiffs are also members of the defendant union.

       The plaintiffs recognize that, in theory, some promotions made after a list has expired may be valid. This narrow exception, which does not apply in the present case, occurs when a selection for promotion is made for an existing vacancy. Before the promotion is actually made, however, the list expires because of the short delay caused by the paperwork involved in the process.

       The principles of statutory construction apply to municipal charters. Buonanno v. Merly, 4 Conn. App. 148, 149, 493 A.2d 245 (1985). They also apply to civil service rules and regulations; see Jones v. Civil Service Commission, 175 Conn. 504, 508-509, 400 A.2d 721 (1978); which have the force and effect of law. Gilbert v. Civil Service Commission, 158 Conn. 578, 582, 265 A.2d 67 (1969).


source: Caselaw Access Project

author: Foti, J. O’Connell, J., dissenting.

license: Public Domain

text:
    Maureen C. Tovish et al. v. Gerber Electronics et al.
    (11484)
    O’Connell, Foti and Freedman, Js.
    Argued May 6
    decision released August 17, 1993

      Scott Wilson Williams, for the appellants (defendants).

      Robert R. Sheldon, with whom, on the brief, was Gerard S. Spiegel, for the appellees (plaintiffs).

      Saranne P. Murray, Gregory T. D’Auria, Christine L. Chinni and Stephen Ostraeh filed a brief for Connecticut Business and Industry Association as amicus curiae.
   Foti, J.

The defendants, Gerber Electronics and Home Insurance Company, appeal from the decision of the workers’ compensation review board affirming the finding of the compensation commissioner that the named plaintiff’s deceased husband, Richard Tovish, suffered a compensable injury. The defendants claim that the review board improperly (1) failed to order the commissioner to add certain factual findings to his finding and award of March 7, 1991, pursuant to their motion to correct, (2) failed to determine that the commissioner’s conclusion that the decedent was shoveling snow to enable him to call on customers was unsupported by the evidence, and (3) failed to reverse the commissioner’s conclusion that the plaintiff had sustained her burden of proof that the decedent’s death arose out of and in the course of his employment. We affirm the review board’s decision.

The decedent, Richard Tovish, was employed by Gerber Electronics as an “outside salesman.” Gerber Electronics has no office or place of business in Con-nectieut; its principal place of business is in Norwood, Massachusetts. The decedent maintained an office in the basement of his house in Monroe, which he used exclusively for Gerber business. As a traveling salesman, he was responsible for customers in western Connecticut and part of New York. He called Gerber daily and used his own phone and car to call and visit his assigned accounts. Although he was expected to maintain these accounts and to visit them regularly, he was not under a strict regimen of work hours and did not follow an explicit itinerary.

On January 20, 1987, snow was falling in Monroe. The decedent’s wife, the plaintiff, was sick in bed, as was his eldest son. Local schools were closed. The decedent had breakfast and then went to his office to work, according to his usual routine. He told the plaintiff that he had to call on some customers and therefore was going to shovel the driveway. The plaintiff later observed the decedent shoveling snow. At the time, he was wearing the type of clothing he usually would wear when calling on customers. After shoveling, the decedent went into his bedroom and complained of chest pains. The plaintiff helped him get comfortable and called an ambulance. The decedent turned blue and was given cardiopulmonary resuscitation by ambulance personnel before being taken to the hospital, where he died later that day. The decedent’s physician testified that the decedent had a history of high blood pressure and that shoveling snow can lead to cardiac arrest in an individual with that condition.

On the basis of these facts, the commissioner determined that the decedent died of a cardiac arrest caused by shoveling snow. He also determined that the only reason the decedent had been shoveling snow was to enable him to drive his car out of the driveway to call on Gerber customers, and thus the decedent had suffered a compensable injury. The commissioner therefore awarded benefits to the plaintiff and her two minor children pursuant to General Statutes § 31-306.

The defendants appealed the commissioner’s decision to the compensation review board. They also filed a motion to correct the findings, which the commissioner denied. In a two to one decision, the review board upheld the commissioner’s finding and award and his denial of the motion to correct. This appeal followed.

I

The defendants first claim is the review board improperly failed to order the commissioner to correct his finding and award by adding certain factual findings. The defendants specifically sought to add to the commissioner’s finding what they contended was uncontradicted evidence to show (1) that the decedent was not required to make customer calls when it was snowing, (2) that the plaintiff could not have observed the decedent’s activities while he was downstairs in the house because she remained upstairs, (3) that the decedent or his son would shovel the driveway on snowy days even when he did not have to call on customers, and (4) that the decedent was going to wait until the snow let up before shoveling. The review board determined that these facts, even if added to the finding, would not alter the commissioner’s ultimate conclusion that the decedent had suffered a compensable injury. We agree.

“[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [0]n review of the commissioner’s findings, the [review board] does not retry the facts nor hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether or not the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. It cannot review the conclusions of the commissioner when these depend upon the weight of the evidence and the credibility of witnesses.” Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18, 411 A.2d 924 (1979).

The finding of the commissioner cannot be changed “unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed.” Wheat v. Red Star Express Lines, 156 Conn. 245, 248, 240 A.2d 859 (1968). “It [is] the commissioner’s function to find the facts and determine the credibility of witnesses . . . and a fact is not admitted or undisputed merely because it is uncontradicted.” (Citation omitted.) Id., 249. A material fact is one that will affect the outcome of the case. See Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 540, 612 A.2d 1222 (1992).

The defendants contend that the facts they sought to add to the commissioner’s finding are material facts that would have made a difference in the result of this case. We conclude that the review board properly refused to order that the finding be corrected because, even if the finding were corrected as the respondents had requested, the commissioner’s ultimate conclusion would not change.

The defendants first sought to add to the finding the fact that the decedent did not have to make customer calls when it was snowing. Although Robert Fox testified that the decedent was not required or expected to make sales calls during periods of inclement weather, he did not testify that the decedent was required or expected to stay home on stormy days. Rather, Fox testified that the decedent was responsible for setting his own sales itinerary and determining which customers he would see on each day. The fact that the decedent was not required to make a sales call on the date of his injury does not undermine the commissioner’s conclusion that the decedent was on his way to make a sales call on this particular snowy day.

The defendants’ second requested finding was the plaintiffs statement that she could not be sure the decedent had engaged in work activities while he was downstairs because she was sick in bed upstairs at the time. The plaintiff testified that after the decedent got out of bed, showered and dressed, he told her that he was going downstairs to do some work. The fact that the plaintiff did not actually see the decedent engaged in work did not require the commissioner to disregard the plaintiff’s testimony and to determine that the decedent was not engaged in work related activities. The decedent’s statement of intent was competent evidence that he had, in fact, gone downstairs and worked. See State v. Santangelo, 205 Conn. 578, 592, 534 A.2d 1175 (1987) (hearsay statements of an unavailable declarant, made in good faith and not for a self-serving purpose, that express his intentions as to the immediate future are admissible and allow the trier of fact reasonably to infer that the declarant’s expressed intention was carried out); Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 295-96, 12 S. Ct. 909, 36 L. Ed. 706 (1892). The plaintiffs inability to see the decedent engaged in work does not, as the defendants contend, relegate her testimony to the realm of speculation and conjecture; at most, this inability goes to the weight of the evidence and to her credibility, both of which are committed to the commissioner’s discretion. Adzima v. UAC/Norden Division, supra.

The defendants’ third requested finding was the plaintiff’s statement that the decedent and his son would, as a matter of course, shovel the driveway after it snowed. This finding, too, was immaterial. Even if adopted, it would not require the commissioner to alter his finding and conclusion that on the particular day in question the decedent’s sole purpose in shoveling snow was to enable him to call on customers.

The defendants’ final requested finding was the plaintiff’s statement that the decedent had said that he was going to wait until the snow let up before shoveling the driveway. This finding is likewise immaterial to the commissioner’s conclusion that the decedent’s shoveling was done to permit him to call on customers. The evidence before the commissioner indicated that the decedent determined his own travel itinerary and that his work day had begun before he shoveled the driveway. The fact that the decedent had planned to wait until the snow let up but went out anyway to shovel the driveway is irrelevant to the commissioner’s decision.

The defendants’ claim as to the motion to correct “is essentially an attempt to get the [review board] and this court to retry the facts. This we will not do.” McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 119, 527 A.2d 664 (1987). The commissioner’s determination that the proffered testimony was not material to the ultimate conclusion that the decedent had suffered a work related injury, being one of fact, was committed to his discretion. Tutsky v. YMCA of Greenwich, supra, 545; Wheat v. Red Star Express Lines, supra. We conclude that the review board properly affirmed the commissioner’s denial of the motion to correct.

II

The defendants next claim that the review board improperly affirmed the commissioner’s conclusion that the decedent’s only reason for shoveling was to enable him to visit customers. The defendants contend that the review board should not have affirmed this conclusion because it was unsupported by the evidence.

We reiterate that “ ‘[t]he power and duty of determining the facts rests on the commissioner, the trier of facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Mathurin v. Putnam, 136 Conn. 361, 366, 71 A.2d 599 (1950).’ Adzima v. UAC/Norden Division, [supra]; Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 145, 291 A.2d 743 (1972).” Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988). “ ‘[I]n determining whether a particular injury arose out of and in the course of employment, the [commissioner] must necessarily draw an inference from what he has found to be the basic facts.’ ” Id. “If supported by evidence and not inconsistent with the law, the [commissioner’s] inference that an injury did or did not arise out of and in the course of employment is conclusive. [Neither the review board nor this court] can then set aside that inference because the opposite one is thought to be more reasonable; nor can the opposite inference be substituted . . . because of a belief that the one chosen by the [commissioner] is factually questionable. ... It matters not that the basic facts from which the [commissioner] draws this inference are undisputed rather than controverted. . . . It is likewise immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” (Citations omitted; internal quotation marks omitted.) Id., 539-40.

“[T]he compensation review [board] hear[s] the appeal on the record of the hearing before the commissioner unless it determines, under the statute, to take additional evidence or testimony. ... In making its final determination of an appeal, the compensation review [board] shall issue its decision, affirming, modifying or reversing the decision of the commissioner. . . . The decision of the compensation review [board] must stand unless it results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Adzima v. UAC/Norden Division, supra, 118 . . . .’’(Citations omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 440, 541 A.2d 1216 (1988).

The defendants rely heavily on D’Angelo v. Connecticut Light & Power Co., 146 Conn. 505, 152 A.2d 636 (1959), to support their assertion that “testimony by a surviving spouse regarding statements made by a decedent as to the cause of injury, which testimony is not independently substantiated or corroborated by other testimony or facts, is as a matter of law insufficient evidence upon which to support a Commissioner’s conclusions.” They argue that because in the present case the plaintiff’s testimony that the decedent intended to call on customers was uncorroborated by telephone logs or notes of the decedent or by testimony of any customers whom he planned to visit, the commissioner was not entitled to rely on her testimony to establish the fact that the sole reason the decedent was shoveling was to call on customers. We disagree.

D’Angelo is not like this case. In D’Angelo, our Supreme Court found that the commissioner’s finding merely “recite[d] the evidential statement by the [plaintiff] of her husband’s explanation of the cause of [his injury]. It [made] no attempt to determine whether the [injury] was inflicted by a fellow employee as the decedent first stated or was in fact a bump which he sustained at work. A finding should state the facts found and should not contain excerpts from evidence and purely evidential facts.” Id., 507. D'Angelo does not, as the defendants contend, stand for the broad proposition that the testimony of a decedent’s spouse on all matters must be independently corroborated or be otherwise insufficient as a matter of law.

In D'Angelo, the court was concerned that the finding “fails to indicate that the commissioner relied upon inference, and it does not purport to show the facts, rather than the evidence, from which an inference could be drawn.” Id., 508. Rather, the commissioner merely recited the testimony of the decedent’s wife as to the cause of injury and adopted that as his finding. Here, by contrast, the commissioner did not rely on the plaintiff’s testimony as to the cause of injury. Nor did he simply adopt her testimony as his finding. Rather, the commissioner considered her testimony as well as the other testimony in the case and drew from that evidence the factual inference that the decedent had shoveled snow on January 20, 1987, solely to be able to call on Gerber customers. As we pointed out earlier in this opinion, the fact that the plaintiff’s testimony was uncorroborated goes to its weight and to her credibility, not to its competence or sufficiency. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.30.1.

The defendants argue, however, that the subordinate facts do not permit the conclusion that the decedent’s sole purpose in shoveling his driveway was to permit him to call on customers. They contend that “there are other logical reasons why the decedent shoveled the snow in his driveway.” Their general contention is that “[s]hoveling snow is in the nature of an everyday personal preparatory activity such as taking out the garbage, showering, brushing teeth, and would not be done solely to enable the decedent to call on a customer.”

The question of whether an injury arose out of and in the course of the employment is factual in nature and is committed to the commissioner’s discretion. Tutsky v. YMCA of Greenwich, supra. “ ‘The discretion of a commissioner in a matter of this kind should not be lightly disturbed.’ Furlani v. Avery, 112 Conn. 333, 339, 152 A. 158 (1930).” Id.

The subordinate facts in this case indicated that, at the time he shoveled the driveway, the decedent already had begun his regular work day. Part of his regular work routine was to call on customers using his own vehicle. On the date of injury, the decedent told his wife that he was going to shovel the driveway so he could call on customers. These subordinate facts were sufficient to permit the commissioner’s conclusion that the sole purpose that the decedent had shoveled his driveway on the date of the injury was to call on customers. The fact that the decedent, on other occasions, may have shoveled his driveway for purely personal reasons, does not undermine this factual conclusion.

Because the commissioner’s determination was not based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from those facts, the review board properly upheld the commissioner’s finding and award. Fair v. People’s Savings Bank, supra, 546. We, as is the review board, are bound by the facts found by the commissioner. Id., 539-40. Because those facts are supported by the evidence and not inconsistent with the law, we will not disturb them.

Ill

The defendants’ final claim is that the review board improperly affirmed the commissioner’s determination that the plaintiff had sustained her burden of proof that the decedent’s injury arose out of and in the course of his employment with Gerber. The defendants again point to a lack of evidence independently to corroborate the plaintiffs testimony that the decedent had begun work related activities when he went downstairs. Because the plaintiff offered no phone logs, notes, or the like, they contend that she failed to establish that the decedent had even begun his regular work day at the time he shoveled his driveway. We disagree.

The commissioner found that the decedent’s injury occurred in the course of and in the scope of his employment. The finding specifically refers to evidence on which the commissioner based this factual inference, including the plaintiffs testimony as to the decedent’s having eaten breakfast and gone downstairs to his office as he normally did in the morning, her testimony that the decedent had said he had to call on customers, her testimony that he was wearing business attire at the time he was shoveling, and Fox’s testimony that the decedent was expected to maintain his accounts and visit them regularly. On the basis of our review, we cannot conclude that the commissioner’s determination that the decedent had begun his regular work day and was in the course of his employment at the time of the injury was without a sufficient basis in the evidence presented.

The defendants and amici urge us, however, to conclude that, as a matter of law, shoveling snow is not an activity arising out of and in the course of his employment within the meaning of General Statutes § 31-275 of the Workers’ Compensation Act. They contend that we should use this case to define the limits of worker’s compensation liability in the context of home based employment. We decline to do so.

“It is an axiom of [worker’s] compensation law that awards are determined by a two-part test. The [claimant] has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment. ‘There must be a conjunction of the two requirements, “in the course of the employment” and “out of the employment” to permit compensation. The former relates to the time, place and circumstance of the accident, while the latter refers to the origin and cause of the accident.’ ” McNamara v. Hamden, 176 Conn. 547, 550, 398 A.2d 1161 (1979). “[A]n injury arises in the course of the employment when it takes place (a) within the period of the employment, (b) at a place where the employee may reasonably be and (c) while he is reasonably fulfilling the duties of the employment or doing something incidental to it. . . . An injury is said to arise out of the employment when (a) it occurs in the course of the employment and (b) is the result of a risk involved in the employment or incident to it or to the conditions under which it is required to be performed.” (Citations omitted.) Dombach v. Olkon Corporation, 163 Conn. 216, 221-22, 302 A.2d 270 (1972).

It is undisputed that, as an outside salesman, the decedent worked out of his house. He was thus at a place he could reasonably be on the date of the injury. The evidence also reveals that the injury occurred “within the period of employment.” While the decedent’s job enabled him to set his own itinerary and hours for customer visits, the evidence before the commissioner indicated that the decedent’s typical work day already had begun when he commenced shoveling the driveway: the decedent had risen, showered, dressed, and gone downstairs to his office to work.

In McNamara v. Hamden, supra, 553, the court stated that “[w]hen an employee is on the premises and is within the period of employment . . . the basic test should be remembered and applied: Is this activity incidental to the employment?” The sole question, therefore, is whether the act of shoveling snow on January 20,1987 was incidental to the decedent’s employment. “The meaning of the term ‘incidental’ need not be defined as compulsion by or benefit to the employer in all cases.” Id. Whether an activity is incidental to the employement is a fact bound issue to be resolved by the trier of fact. Pagani v. BT II, Ltd. Partnership, 24 Conn. App. 739, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991).

The facts found by the commissioner show that the decedent regularly used his own vehicle to perform the duty of calling on customers. The decedent’s snow shoveling, which the'commissioner found was directed solely toward the use of his vehicle for employment purposes, was sufficiently incidental to that use. The injury, therefore, occurred “in the course of” the decedent’s employment. McNamara v. Hamden, supra. The facts found also show that the decedent’s injury, which resulted from a risk incident to the conditions under which he regularly performed his job — using his own vehicle to call on customers — arose “out of the employment.” Dombach v. Olkon Corporation, supra, 222.

Because the decedent’s injury arose out of and in the course of his employment, we conclude that the review board properly affirmed the commissioner’s determination that the decedent suffered a compensable injury.

The judgment is affirmed.

In this opinion Freedman, J., concurred.

O’Connell, J., dissenting.

I do not agree with the majority that the decedent’s death occurred in the course of and arising out of his employment. The specific issue is whether the decedent had commenced work for his employer when he was shoveling his driveway. In its affirmance, the majority stresses deference to the facts as found by the commissioner. While I agree that the commissioner has the power and duty to determine the facts, it is fundamental that “the conclusions drawn by the commissioner cannot stand when they result from an incorrect application of the law.” Kinney v. State, 213 Conn. 54, 59, 566 A.2d 670 (1989).

It is my opinion that the decedent was not engaged in a work activity, but rather, in a preliminary activity in preparation for work. Such an activity, like showering, dressing or packing a lunch, is not covered by the Workers’ Compensation Act. The significance placed by the majority on the decedent’s stopping at his desk and doing paperwork before going to his car escapes me. If he had not done this office work first, would his death not have been covered by the act? Likewise, if he had gone downstairs to his office to do paperwork prior to showering and dressing for the day, would an injury he sustained in the shower or while shaving be within the scope of the act? The decision reached by the majority would appear logically to extend coverage to such situations.

A line must be drawn between preparation for work and the commencement of work. I suggest that under the facts of this case, the line must be fixed no earlier than when the decedent exited his driveway and headed down the road toward his first customer. The decedent’s act of shoveling the driveway was a common homeowner’s task performed in preparation for work. If the Workers’ Compensation Act is to be extended to cover such activities, the extension must be accomplished by legislation and not by a worker’s compensation commissioner. See id., 66.

I also do not agree with the majority’s affirmance of the review board’s conclusion concerning the addition of facts sought by the defendants. The majority opinion states, “The defendants specifically sought to add to the commissioner’s finding what they contended was uncontradicted evidence to show (1) that the decedent was not required to make customer calls when it was snowing, (2) that the plaintiff could not have observed the decedent’s activities while he was downstairs in the house because she remained upstairs, (3) that the decedent or his son would shovel the driveway on snowy days even when he did not have to call on customers, and (4) that the decedent was going to wait until the snow let up before shoveling.”

The majority agreed with the review board that even if these four facts were added to the commissioner’s finding they would not have affected the result of the case. These facts were material and undisputed. They go to the core of the defendants’ claim that the decedent was merely getting ready to go to work when he suffered the heart attack. “The finding in a compensation case should contain all the subordinate facts which are pertinent to the inquiry, and the conclusions of the commissioner therefrom. . . . If a finding does not conform to those requirements . . . neither [the compensation review board] nor this court is in a position to decide whether the award was correct and just or not. . . . To refuse to find the facts which a party seeks to have stated because the commissioner deems them unnecessary or immaterial is not ordinarily fair to the parties [or] the court . . . . It is not fair to the parties because they are entitled to have found such proven facts as they deem it necessary to present to the court upon the appeal. . . . Cases under the Workmen’s Compensation Act are upon a different basis from actions between ordinary litigants. No case under this Act should be finally determined when [the compensation review board], or this court, is of the opinion that, through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment.” (Citations omitted; internal quotation marks omitted.) McQuade v. Ashford, 130 Conn. 478, 482, 35 A.2d 842 (1944).

Accordingly, the review board should have ordered the commissioner to add those facts to the findings. I do not feel, however, that a remand to the commissioner is necessary because, upon correction of the findings, the commissioner could not legally reach any conclusion other than that the decedent’s death was not within the scope of the Workers’ Compensation Act. See Howe v. Watkins Bros., 107 Conn. 640, 648, 142 A. 69 (1928) (Wheeler, C. J., dissenting from rescript).

I would reverse the decision of the compensation review board.

       The claim was brought by the decedent’s widow, Maureen C. Tovish, on behalf of herself and her two minor children. We will refer to Maureen C. Tovish as the plaintiff.

       The defendants’ motion to correct actually requested five corrected findings. They have pursued only four of these on appeal.

       Separate amicus briefs were filed by the Insurance Association of Connecticut and American Insurance Association and by the Connecticut Business and Industry Association.


author: Landau, J.

text:
    Michael Halloran et al. v. Town of North Canaan
    (11695)
    Daly, Landau and Schaller, Js.
    Argued June 9
    decision released August 24, 1993

      H. James Stedronsky, for the appellants (plaintiffs).

      Judith Dixon, for the appellee (defendant).
   Landau, J.

The plaintiffs, Michael Halloran and George Jones, appeal from the judgment of the trial court denying their request for a declaratory judgment. On appeal, the plaintiffs claim that the trial court improperly concluded that (1) the town voted to purchase and negotiated a price to purchase the property prior to initiating condemnation proceedings, (2) the taking was not void because the town had voted to purchase and to negotiate a price for the property, and (3) the town had authorized the town attorney to negotiate the price of the easement. We affirm the judgment of the trial court.

The trial court found the following facts. The plaintiffs own property in the town of North Canaan on which they built two residential buildings. The plaintiffs planned to build two more residential buildings when 70 percent of the units in the first two buildings was sold. In September, 1989, the department of environmental protection (DEP) ordered the defendant town of North Canaan to construct facilities to provide a sewer connection from Patty Lane to the Canaan fire district sewage system. The town hired an engineer to prepare engineering plans for the sewer connection. The plans called for an easement across the plaintiffs’ property for a gravity feed sewer line. The DEP and the North Canaan inland wetlands commission approved these plans. On February 9, 1989, at a special town meeting, a resolution was passed authorizing the first selectman to secure funds for the sewer project and to expend appropriations to complete the project.

After the DEP approved the project, North Canaan town attorney Catherine Roraback was instructed to obtain the necessary easements from the plaintiffs. She sent a letter to Jones, which he forwarded to his attorney, Herbert Isaacson, who was acting on the plaintiffs’ behalf. Jones told Isaacson that he did not agree with the location of the easement, he was concerned about the effect that this easement would have on the plaintiffs’ plans to construct the two additional buildings on the property, and he wanted reimbursement from the town for “additional expenses.” Isaacson contacted Roraback and conveyed the plaintiffs’ concerns. Specifically, he told Roraback that the plaintiffs wanted to change the location of the easement and $5000, and they wanted an assurance from the town that the easement would not affect the plaintiffs’ future construction plans. Roraback told Isaacson that a change in location was not possible and she would need documentation to support the demand for $5000. Isaacson did not supply the documentation to justify the $5000 demand. Roraback, however, informed Isaacson that if the plaintiffs would accept $2500, she would obtain authority from the first selectman to offer that amount. In May and June of 1989, Roraback told Isaacson that if the plaintiffs accepted the $2500, the town would not initiate condemnation proceedings. Isaacson never indicated to Roraback whether the plaintiffs would accept that offer.

At a special town meeting on June 21,1989, the electors and citizens of North Canaan authorized the selectmen “to institute such proceedings (including condemnation) as may be necessary against Michael Halloran and George W. Jones . . . required for the purpose of acquiring temporary and permanent easements . . . for the installation [and] maintenance of a sewer line to service houses on Patty Lane . . . .” Condemnation proceedings were commenced resulting in the taking of the plaintiffs’ property. This appeal ensued.

The plaintiffs first claim that the trial court improperly concluded that the town voted to purchase the property prior to initiating condemnation proceedings. We disagree.

Where the legal conclusions of the trial court are challenged on appeal, those conclusions are subject only to the test of abuse of discretion. State v. Arbour, 29 Conn. App. 744, 747, 618 A.2d 60 (1992). “Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . The salient inquiry is whether the court could have reasonably concluded as it did. . . .It goes without saying that the term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds.” (Citations omitted; internal quotation marks omitted.) Id., 748. “In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959). Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did. Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985).

General Statutes § 48-6 (a), which governs municipal condemnation proceedings, provides that “[a]ny municipal corporation having the right to purchase real property for its municipal purposes which has, in accordance with its charter or the general statutes, voted to purchase the same shall have power to take or acquire such real property, within the corporate limits of such municipal corporation, and if such municipal corporation cannot agree with any owner upon the amount to be paid for any real property thus taken, it shall proceed in the manner provided by section 48-12 within six months after such vote or such vote shall be void.” “Section 48-12 of the General Statutes authorizes the condemnation of land if those desiring to take such property cannot agree with the owner upon the amount to be paid him for any property thus taken. Thus, inability to agree with the owner of property sought to be condemned is a condition precedent to condemnation under the statute. West Hartford v. Talcott, 138 Conn. 82, 89, 82 A.2d 351 [1951]. Inability to agree may be shown by any testimony evincive of the fact. Williams v. Hartford & N.H.R. Co., 13 Conn. 397, 409 [1840]. The condemnor must exhaust all reasonable efforts to obtain the land by agreement. West Hartford v. Talcott, supra. But the law does not require the performance of a useless and futile act. 6 Nichols, Eminent Domain (3d Ed.) § 24.62[1], p. 58; see Trinity College v. Hartford, 32 Conn. 452, 481 [1865]; West Hartford v. Talcott, supra. In seeking to prevent condemnation, the owner of property demonstrates his inability to agree within the meaning of the statute. Trinity College v. Hartford, supra; 6 Nichols, op. cit. § 24.622.” Darien v. Kavookjian, 151 Conn. 659, 661, 202 A.2d 147, cert. denied, 379 U.S. 840, 85 S. Ct. 77, 13 L. Ed. 2d 46 (1964).

The trial court concluded that the resolution passed at the June 21, 1989 special town meeting “directed and authorized the board of selectmen to institute such proceedings as may be necessary to acquire easements across plaintiffs’ property” and “clearly encom-passe[d]” both purchase, if possible, and condemnation, if necessary. Therefore, the trial court concluded that the town did, in fact, vote to purchase the property. Our review of the record indicates that Roraback had discussions with members of the board of selectmen, prior to the vote, regarding negotiations with the plaintiffs. Further, she had been given the authority to offer the plaintiffs $2500 for the easement. Applying the appropriate standard of review, we conclude that the trial court did not abuse its discretion in determining, on the basis of the evidence before it, that the town’s resolution authorizing “such proceedings as may be necessary to acquire easements across plaintiffs’ property” was a vote to purchase the property and, if that was not possible, to institute condemnation proceedings.

The plaintiffs next claim that the trial court improperly concluded that the town had authorized the town attorney to negotiate the price of the easement. We disagree.

The trial court concluded, and the record supports, that Roraback was given the authority to offer the plaintiffs $2500 for the easement. Again, our review of the record indicates that Roraback had discussions with members of the board of selectmen, prior to the vote, regarding negotiations with the plaintiffs. She had been instructed by the selectmen to contact the plaintiffs in order to obtain the necessary easements. She had numerous discussions with the plaintiffs’ attorney in an attempt to obtain these easements. Further, the record clearly indicates that Roraback had been given the authority to offer the plaintiffs $2500 for the easement. Thus, there is evidence to support the trial court’s conclusion that Roraback had, in fact, been authorized to negotiate with the plaintiffs in order to obtain the easements. Applying the same abuse of discretion standard, we conclude that the trial court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       This claim is also dispositive of the plaintiffs’ second claim. Therefore, we do not address that claim.


author: Landau, J. Lavery, J., dissenting.

text:
    John Bennett et al. v. Automobile Insurance Company of Hartford
    (11636)
    Lavery, Landau and Schaller, Js.
    Argued April 29
    decision released August 24, 1993

      David N. Rosen, for the appellant (plaintiff Lori Misura).

      Peter T. Fay, for the appellee (defendant).
   Landau, J.

This is an appeal from the judgment of the trial court challenging that court’s granting of the defendant Automobile Insurance Company of Hartford’s motion to open the judgment and for remittitur. On appeal, the plaintiff Lori Misura claims that the trial court improperly (1) opened the judgment, and (2) ordered a remittitur in the amount of the jury verdict. We reverse the judgment of the trial court on the second claim.

The following facts are pertinent to this appeal. The plaintiffs, John Bennett and Lori Misura, were injured in an automobile accident with an unidentified hit-and-run driver. The plaintiffs brought an action against the insurer for uninsured motorist benefits pursuant to Mis-ura’ s insurance policy with the defendant. The insurance policy’s uninsured motorist clause provided for a total coverage of $100,000. Prior to trial, Bennett signed a “Release of all Claims” and filed a withdrawal of his claim in the trial court in consideration of payment of $37,115. Misura elected to go to trial on her claim.

The plaintiffs’ initial complaint identified the insurance policy and the policy limit of $100,000 for uninsured motorist coverage. The defendant filed a request to revise, requesting that the reference to the $100,000 policy limit be deleted from the complaint so as not to prejudice the jury. Misura complied with this request. The jury returned a verdict for Misura in the amount of $92,000. The verdict was accepted by the court on May 6,1992, and a judgment was rendered at that time. On May 28, 1992, pursuant to Practice Book §§ 325 and 326 and General Statutes § 52-228, the defendant filed motions to open the judgment and for remittitur. The court heard and granted those motions on July 7,1992. The trial court held that because the total of the defendant’s payment to Bennett and Misura’s verdict of $92,000 was greater than the amount of coverage provided by the policy, the defendant was entitled to a remittitur to bring the total award within the policy limit. This appeal ensued.

The gravamen of Misura’s claim is that the absence of any reference to the $100,000 policy limit in the complaint and the defendant’s failure to plead the policy limit as a special defense result in the policy limit’s not being an issue before the jury and precludes the defendant from later complaining that the verdict exceeded that limit. We agree.

“A complaint must fairly put the defendant on notice of the claims . . . against him. . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. . . . Only those issues raised by the plaintiffs in the latest complaint can be tried before the jury.” (Citations omitted.) Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557-58, 525 A.2d 954 (1987). In the original complaint, the plaintiffs pleaded the $100,000 policy limit. In accordance with the defendant’s request to revise, however, Misura amended the complaint to delete all references to the policy limit. “The filing of [an] amended pleading is a withdrawal of the original pleading.” Royce v. Westport, 183 Conn. 177, 179, 439 A.2d 298 (1981). In the amended complaint that was properly before the court and the jury, there was no reference to the policy limit and, that issue not being before the court or jury, the plaintiff is not constrained by that fact. The original complaint is merely a part of the history of the case. Pope v. Watertown, 136 Conn. 437, 438, 72 A.2d 235 (1951). Therefore, the complaint, by itself, will not limit the damages to $100,000.

Misura also argues that the defendant had the opportunity to claim the benefit of the $100,000 policy limit by pleading it as a special defense and its failure to do so precludes it from claiming the benefit of the policy limits posttrial. We agree.

Practice Book § 164 provides: “No facts may be proved under either a general or special denial except such as show that the plaintiff’s statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that he has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be his own.” Decisions of the courts of this state have held that this list is not exhaustive. In DuBose v. Carabetta, 161 Conn. 254, 260, 287 A.2d 357 (1971), our Supreme Court stated that “[t]he inherent difficulty in drawing the line between what can be shown under a general denial and what must be specially pleaded is recognized by 1 Stephenson, Conn. Civ. Proc. (2d Ed.) § 126 (g). The rules specify certain matters which must be specially pleaded and the annotations provide further aid [Practice Book § 164 and annotations]. The pleader must be as familiar with the scope of denials of today as his [or her] grandfather was with the scope of the general issue at common law. The problem is not one peculiar to Connecticut procedure but exists even under procedures which have deliberately reduced the significance of pleading.” (Internal quotation marks omitted.)

Thus, in the context of insurance litigation, our courts have held that certain defenses must be specially pleaded. See, e.g., Fogarty v. Fidelity & Casualty Co., 120 Conn. 296, 299-300, 180 A. 458 (1935) (exceptions or exclusions in policy); Sortito v. Prudential Ins. Co., 108 Conn. 163, 168, 142 A. 808 (1928) (breaches of condition). In Fogarty v. Fidelity & Casualty Co., supra, 298, the plaintiff was driving his truck “when a sheet of flame burst out of the cab without warning,” causing the plaintiff to lose control of the vehicle and crash. The trial court held that the accident was caused by the fire. Therefore, because loss by fire was excluded in the policy, the defendant was not liable to the plaintiff for damages under the policy. On appeal, our Supreme Court noted that the “complaint alleged that the truck was insured against loss or damage arising out of accidental collision or upset ‘however caused’ . . . .’’Id., 299. The Fogarty court held that “[i]f the defendant [insurance company] intended to claim that the loss was within the provision excluding damage by fire, it should have specially pleaded to that effect . . . it did not do so and, a claim having been made to the trial court that thereby it was precluded from taking advantage of the limitation contained in the clause, the effect of the clause may be eliminated from our consideration.” (Citations omitted.) Id., 299-300.

The same rationale applies here. The operative complaint alleges that the defendant provided an insurance policy to Misura entitling her to “payment of any sums she was legally entitled to recover, on account of personal injuries sustained while occupying this automobile, from any motor vehicle operated by a hit-and-run driver whose identity cannot be [ascertained].” All references to the policy limit were deleted from the complaint, and, if the defendant wanted to take advantage of the $100,000 limit in the policy, it should have pleaded it as a special defense. Its failure to do so precludes it from “taking advantage of the limitation contained in the [policy.]” Id.

The defendant argues that the'trial court properly reduced the damages award to reflect the release signed by Bennett in consideration of $37,115 and, further, that General Statutes § 38a-336 limits the total amount of the recovery to the limit of the insured’s uninsured motorist coverage. These arguments are inapplicable in this case.

At the hearing on the motion to open and for remit-titur, the defendant alleged, for the first time, that it was entitled to a limitation on the award to the plaintiff reflecting the payment of $37,115 to Bennett in exchange for his release of all claims against the defendant. The court heard evidence, oyer the objection of Misura, and granted these motions. Misura argues that the question of whether payment was made is a question of fact to be determined by the jury and, because payment was disputed, the trial court invaded the province of the jury by hearing posttrial evidence regarding the defendant’s claim of payment to Bennett.

It is the province of the jury to decide questions of fact. Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 127, 412 A.2d 311 (1979). It may accept or reject the testimony of witnesses and determine the weight to be given the evidence. Eagar v. Barron, 2 Conn. App. 468, 471, 480 A.2d 576 (1984). The assessment of damages is peculiarly within the province of the jury. Further, “a defense of payment, even though nonpayment is alleged by the plaintiff, must be specially pleaded. Practice Book § 164. To the extent that the defendant’s claim of payment was a defense, it properly should have been pleaded as such.” Elis v. Rogers, 15 Conn. App. 362, 366, 544 A.2d 633 (1988). “[T]he failure to raise a special defense is waived [however] when evidence comes in without objection.” Thomp son & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 132, 523 A.2d 1266 (1987).

Here, Misura properly objected to the introduction of evidence of the payment to Bennett at the hearing on the motion to open and for remittitur. Nevertheless, the trial court relied on the representations of counsel, which carry no evidentiary weight; State v. Patterson, 31 Conn. App. 278, 292, 624 A.2d 1146 (1993); that Bennett had in fact been paid, and reduced the award to reflect that amount. The defendant’s failure to raise the claim of payment as a special defense, allowing the jury to decide this question of fact, results in a waiver of that claim. See Bernier v. National Fence Co., 176 Conn. 622, 629, 410 A.2d 1007 (1979).

The judgment ordering a remittitur is reversed and the case is remanded with direction to render judgment reinstating the verdict in full, subject only to the collateral source payments made to or on behalf of the plaintiff Lori Misura, as agreed upon by the parties and the trial court.

In this opinion Schaller, J., concurred.

Lavery, J., dissenting.

Because an insurer’s liability in an uninsured motorist action is statutorily restricted to the limits of the policy, I respectfully dissent.

The plaintiff Lori Misura’s recovery under her uninsured motorist insurance is governed by General Statutes § SSa-SSe. That statute requires that every automobile insurance policy provide uninsured motorist insurance at an amount chosen by the insured. The purpose of that statute is to compensate an insured to the same extent as the insured would have been had the tortfeasor carried liability insurance equal to the uninsured coverage carried by the insured. Mass v. United States Fidelity & Guaranty Co., 222 Conn. 631, 647, 610 A.2 1185 (1992); Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982). Section 38a-336 (b) specifically provides that the insured cannot recover more than as specified in the policy. General Statutes § 38a-336 (b). This limitation prevents the “anomalous situation” in which an injured party is better off if the tortfeasor was uninsured than insured to the statutory minimum. Reddy v. New Hampshire Ins. Co., 28 Conn. App. 145, 149-50, 612 A.2d 64 (1992). Thus, our Supreme Court has invoked § 38a-336 (b) to restrict an insured’s recovery to the limits of the uninsured motorist policy. Mass v. United States Fidelity & Guaranty Co., supra, 649-50; Covenant Ins. Co. v. Coon, 220 Conn. 30, 37-38, 594 A.2d 977 (1991). Requiring the defendant to pay more than the limits of Misura’s uninsured motorist coverage violates § 38a-336 (b).

The majority maintains that the defendant waived the benefit of the policy limits by failing to prove them as an affirmative defense. Evidence of the policy limits were, however, entered as a full exhibit by the defendant. Further, in the context of this case, the policy limits were irrelevant. The amount of coverage was undisputed: the plaintiffs pleaded the limitations in the first complaint; Misura’s motion for summary judgment included the insurance policy declarations page containing the limits. The jury’s only task was to assign the appropriate level of damages arising from the uninsured motorist’s tort. Because the contractual limits did not prove or disprove the plaintiffs’ damages, they were irrelevant.

The majority creates a situation in which plaintiffs that pay for minimum coverage can recover millions for which they never contracted. This decision recreates the anomalous situation in which an injured party is better off if struck by an uninsured motorist than by a motorist carrying the statutory minimum insurance. See Reddy v. New Hampshire Ins. Co., supra, 149-50. Section 38a-336 (b) was enacted specifically to prevent that result. Nationwide Ins. Co. v. Gode, 187 Conn. 386, 391-92, 392-93 n.6, 446 A.2d 1059 (1982). Courts should accept the jury’s untainted evaluation of the damages and reduce them to comply with § 38a-336 (b). I would affirm the trial court.

Accordingly, I respectfully dissent.

       Because the decision concerning the remittitur is dispositive of this appeal, we do not address Misura’s claims regarding the trial court’s decision to open the judgment.

       Practice Book § 325 provides: “If any judgment is rendered, by mistake or clerical error, for a larger sum than is due, the excess may be remitted by the party recovering the judgment, at any time, reasonable notice being first given to the adverse party or his attorney; and the court may thereupon order the record of such judgment to be corrected, and affirm the same for the amount to which it has been remitted.”

       Practice Book S 326 provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.
      “Upon the filing of a motion to open or set aside a civil judgment, except a judgment in a small claims or juvenile matter, the moving party shall pay to the clerk the filing fee prescribed by statute unless such fee has been waived by the court.”

       General Statutes § 52-228 provides: “If any judgment is rendered, by mistake or clerical error, for a larger sum than is due, the party recovering the judgment may have the amount of the judgment decreased by remittitur to the amount which is due, provided reasonable notice has been given to the adverse party or his attorney. The court may thereupon order the record of the judgment to be corrected, and affirm the judgment for the amount to which it has been decreased.”

         There was some dispute as to whether the defendant had actually paid Bennett’s claim. Misura argues in her brief that the defendant’s representations that it had paid Bennett’s claim were inaccurate. At oral argument before this court, counsel for the defendant represented that Bennett had been paid the $37,115. It is unclear from the record whether Bennett has in fact been paid.

       Recently, this court held that “[a] limitation of liability, whether contractual or statutory, is, in substance and effect, a partial release of liability and, as such, is properly the subject of a special defense.” New England Savings Bank v. FTN Properties Ltd. Partnership, 32 Conn. App. 143, 146, 628 A.2d 30 (1993).

       General Statutes § 38a-336 (b) provides: “An insurance company shall be obligated to make payment to its insured up to the limits of the policy's uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.”

        Covenant Ins. Co. v. Coon, 220 Conn. 30, 594 A.2d 977 (1991), on which the dissent relies, is inapposite. In Covenant, our Supreme Court ordered that the recovery from the insurer Covenant had to be reduced by the amount “already paid” to the victim under another policy. Here, however, the record clearly indicates, even though the defendant represented otherwise to the trial court, that the defendant had not paid anything to Bennett at the time the verdict was rendered for the plaintiff in this case. Indeed, it seems as though the defendant was delaying payment to Bennett to see if the very problem that arose in this case would, in fact, arise. Regardless, the defendant is not excused from following our established rules of practice. “The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial is under way . . . .” DuBose v. Carabetta, 161 Conn. 254, 261, 287 A.2d 357 (1971).
      Furthermore, because of the defendant’s failure to allege payment, General Statutes § 38a-336 is not available to limit the amount of recovery in this case. “Courts, of course, have judicial knowledge of the statutes, but they may not take judicial notice of the facts of a particular case that make them applicable when these are not alleged.” Rusch v. Cox, 130 Conn. 26, 33, 31 A.2d 457 (1943). Here, the defendant alleged no facts that would entitle it to a limitation on the jury award. The dissent’s position that an insured can contract for $100,000 of uninsured motorist coverage and recover “millions” is unfounded. In this case, the coverage was $100,000 and the verdict was $92,000. An unlimited recovery may be prevented by properly pleading and presenting the issues to the jury.

       General Statutes § 38a-336 (b) provides: “An insurance company shall be obligated to make payments to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.”

       While an amended complaint withdraws the prior complaint, “statements in withdrawn or superseded pleadings, including complaints, may be considered as evidential admissions against the party making them.” Dreier v. Upjohn Co., 196 Conn. 242, 244, 492 A.2d 164 (1985); Belanger v. Village Pub I, Inc., 26 Conn. App. 509, 518, 603 A.2d 1173 (1992); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 6.5. As an evidential admission of the plaintiffs and as the defendant’s exhibit one, the policy limits were properly before the court.

       The majority’s reliance on Fogarty v. Fidelity & Casualty Co., 120 Conn. 296, 180 A. 458 (1935), is misplaced. In that case the parties disputed the coverage of the policy. Id., 298-300. Resolution of the coverage issue required a finding of fact based on evidence. See id. Because the defendant entered no coverage evidence, its postverdict protests were no more than a request for a new finding of fact. Id., 299-300.
      In this case, however, the coverage is undisputed. The majority implies a coverage dispute by emphasizing the words “any sums” in the complaint. The sentence reads: “This policy of insurance included insurance which entitled plaintiffs to payment of any sums they were legally entitled to recover.” Thus, Misura was not attempting to recover sums outside of the policy. This statement cannot reasonably be construed as disputing the legally binding effect of the policy. In fact, in the original complaint the sentence ended by reciting the policy limits. The absence of the policy limits should not change the construction of the entire sentence from “any sums legally entitled to under the policy” to “any sums imaginable.” Thus, because no finding of fact regarding coverage was necessary, no evidence of the policy limits was required.

       Our statute conforms to the majority case law rule set forth in the Maryland case of Allstate Ins. Co. v. Miller, 315 Md. 182, 553 A.2d 1268 (1989), that the admission of uninsured motorist coverage should not be a tactical decision left to the parties’ discretion. The fact of the limits of the uninsured motorist coverage is irrelevant to the issue of tort damages and, since both parties and the court were aware of the policy limits, the court should reduce the verdict if it exceeds the policy to comply with the policy limits, upon proper postverdict motion of the defendant.


author: Lavery, J.

text:
    Alfred Corsino v. Anthony Telesca et al.
    (11657)
    Foti, Lavery and Freedman, Js.

      Argued June 1
    decision released August 24, 1993

      Mark V. Oppenheimer, for the appellant (defendant Stanley M. Lessler).

      James P. Brennan, for the appellee (plaintiff).
   Lavery, J.

The defendant Stanley M. Lessler, trustee, appeals from the denial by the trial court of his motion to discharge a notice of lis pendens. The defendant claims that the trial court improperly (1) ruled that the lis pendens secured by the plaintiff without a hearing should not be discharged, (2) found that notice of the lis pendens was given in accordance with the appropriate statute, (3) found that there was probable cause to sustain the validity of the plaintiff’s claim to support the maintenance of the lis pendens, (4) found that the plaintiff’s complaint alleges an interest that affects real property, (5) failed to find that the institution and maintenance of the lis pendens on property belonging to the defendant is an improper attempt on the part of the plaintiff to attach property and funds belonging to the defendant, and (6) found that the transfer from Tel Mat Realty Corporation to Lessler was a fraudulent conveyance. We affirm the judgment of the trial court.

The following procedural history is relevant to the disposition of this appeal. The plaintiff, Alfred Corsino, brought a ten count complaint seeking money damages against Tel Mat Realty Corporation and others for the contamination of the soil of the property he acquired at a foreclosure sale. The tenth count of the complaint alleges fraudulent conveyance against Lessler. The plaintiff alleged that after Tel Mat, its agents, servants and employees committed the statutory and common law torts set forth in the complaint, Tel Mat learned that an action would soon be commenced against it, so it conveyed the property and assigned a related mortgage to Lessler for no consideration. The plaintiff alleged that Tel Mat conveyed the property and assigned the mortgage to Lessler “to avoid any debt it may owe or may owe in the future or duty it may have or which may arise in the future to other parties and/or to avoid the payment of any judgment entered against it as a result of said actions.” The plaintiff placed a lis pendens on the property in anticipation of litigation in accordance with General Statutes § 52-325. The defendant moved to remove the lis pen-dens. A hearing on the defendant’s motion was held, and the trial court denied his motion.

We note at the outset that the sole purpose of the hearing that gave rise to the trial court order resulting in this appeal was to determine whether there was probable cause to sustain the lis pendens. The merits of the case were not argued by counsel or decided by the trial court, but, rather, the hearing was conducted within the parameters of General Statutes § 52-325b. Because the defendant’s third claim is the only claim that directly addresses the dispositive issue of probable cause, we turn to it first.

Our rules regarding the standard of proof for establishing probable cause are well settled. It is important to remember that the plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. Village Line Corporations. Children’s Store, Inc., 31 Conn. App. 652, 657, 626 A.2d 813 (1993), citing Dow & Condon, Inc. v. Anderson, 203 Conn. 475, 479, 525 A.2d 935 (1987). “The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. Wall v. Toomey, 52 Conn. 35, 36 (1884). Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).” (Internal quotation marks omitted.) Village Line Corporation v. Children’s Store, Inc., supra, 657-58, citing Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984), and Goodwin v. Pratt, 10 Conn. App. 618, 623, 524 A.2d 1168 (1987). Thus, we must determine whether the trial court’s determination that probable cause exists to sustain the plaintiff’s claim was clearly erroneous. Village Line Corporation v. Children’s Store, Inc., supra, 658.

The trial court’s determination of probable cause is based on certain factual findings. “[WJhere the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

A notice of lis pendens is appropriate in any case where the outcome of the case will in some way, either directly or indirectly, affect the title to or an interest in real property. Garcia v. Brooks Street Associates, 209 Conn. 15, 22, 546 A.2d 275 (1988). “As [General Statutes] § 52-325 (a) provides, the purpose of [notice of lis pendens] is to bind any subsequent purchaser or encumbrancer ‘as if he were made a party to the action’ described in the lis pendens. ‘[A] notice of lis pendens ensures that the [litigant’s] claim cannot be defeated by a prejudgment transfer of the property. . . . [T]he lis pendens procedure provides security for payment of the claim pending final resolution of the case.’ Williams v. Bartlett, 189 Conn. 471, 479-80, 457 A.2d 290, appeal dismissed, 464 U.S. 801, 104 S. Ct. 46, 78 L. Ed. 2d 67 (1983).” Dunham v. Dunham, 217 Conn. 24, 34, 584 A.2d 445 (1991). The governing statutes contemplate that a property owner burdened by a notice of lis pendens may rightfully challenge its validity on two independent grounds: (1) the absence of probable cause to sustain the lis pendens claim; or (2) noncompliance with the procedural requirement of an effective lis pendens notice. Id., 35. In the present case, the defendant challenged the notice of lis pendens on the former ground, and a hearing on the issue was held in accordance with the applicable statutes.

After a hearing at which both parties presented evidence, the trial court, on August 14, 1992, issued a memorandum of decision in which it concluded as follows: “The evidence at the hearing established probable cause that the defendant Tel Mat caused damages of about $25,000. Tel Mat owned the property when the debris was buried at the request of Dewey Telesca, an agent of Tel Mat. That the mortgage owned by Tel Mat was an interest in land transferred to Lessler without consideration and as a favor to a third party without asking any questions. Further, that at the time of the transfer the defendant Tel Mat’s only asset was the mortgage that was transferred. At the time of the transfer the transferor was unable to pay the debts.

“This court may infer that at the time of the transfer of the mortgage it was with the intent to avoid any debt or duty and that it was made without substantial consideration by a person who is or will be rendered insolvent.”

Our review of the record reveals that the trial court’s findings of fact are supported by the evidence adduced at trial, and are not clearly erroneous. Further, the trial court’s findings support its determination of probable cause that the property was fraudulently conveyed. “ ‘In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesseses. . . .’ (Citations omitted; internal quotation marks omitted.) Sweet v. Sumnerbrook Mill Development Corporation, 21 Conn. App. 191, 193, 572 A.2d 385 (1990).” Village Line Corporation v. Children’s Store, Inc., supra, 657.

We turn now to the defendant’s remaining claims, which, to one degree or another, all are linked to the defendant’s third, dispositive claim.

The defendant claims that the trial court improperly ruled that the lis pendens secured by the plaintiff without a hearing should not be discharged. Through this claim, the defendant broadly restates his claim that the trial court should have discharged the lis pendens. The defendant has not briefed this issue separately, nor has he set forth any argument regarding a lack of hearing or due process as implied by the claim. Claims mentioned but not adequately briefed are deemed abandoned. State v. Rumore, 28 Conn. App. 402, 410-11, 613 A.2d. 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992). We therefore decline to review this claim.

The defendant claims that the trial court improperly found that the notice of the lis pendens was given in accordance with the appropriate statute. With respect to the issue of notice, the trial court found as follows: “There was evidence in this case to establish probable cause that the service of the notice of lis pendens was properly performed. The sheriff testified that he made due service of the complaint and the notice of lis pen-dens.” Applying the well settled clearly erroneous standard we earlier stated, we conclude, in light of our review of the record, that the trial court’s finding that proper notice of lis pendens was given was not clearly erroneous. We further note, as we did previously, that a challenge to the procedural requirements of effective lis pendens notice is an independent ground, distinct from a probable cause challenge and governed by a different section of the General Statutes. We repeat that the sole purpose of the hearing in the trial court was to determine if probable cause existed to sustain the notice of lis pendens.

The defendant claims that the trial court improperly found that the plaintiff’s complaint alleges an interest that affects real property. The trial court specifically concluded, with respect to this issue, that “the relief the plaintiff seeks here, the setting aside of the transfers of Tel Mat Realty, Inc., of its real estate interests to Stanley Lessler, Trustee, ‘affect[s] the title to or an interest in real property.’ [Garcia v. Brooks Street Associates, 209 Conn. 15, 22, 546 A.2d 275 (1988)].” After reviewing the record, we again conclude, in light of the clearly erroneous standard, that the trial court properly concluded that the relief requested would affect the title to or interest in real property.

The defendant claims that the trial court improperly failed to find that the institution and maintenance of the lis pendens on property belonging to the defendant is an improper attempt on the part of the plaintiff to attach property and funds belonging to the defendant. This fact based claim does not challenge a decision the trial court made but, rather, asserts what the defendant believes the trial court should have found. We repeat that the purpose of the hearing in the trial court was to determine whether there was probable cause sufficient to sustain the plaintiff’s application for lis pendens. The trial court found that there was. This claim was not within the scope of the hearing, it was not properly raised in the trial court, and it was not adequately briefed by the defendant. We decline to review it.

The defendant’s final claim is that the trial court improperly found that the transfer from Tel Mat Realty Corporation to the defendant was a fraudulent conveyance. This claim is without merit because it rests on a faulty premise. The trial court did not find that the transfer from Tel Mat to the defendant was a fraudulent conveyance but, rather, it found probable cause to sustain the plaintiff’s claim that the transfer was a fraudulent conveyance. The burden of proof for a finding of probable cause is less than the normal burden of proof required in a civil matter — a preponderance of the evidence. If this case goes to trial, then the trier of fact will determine whether a fraudulent conveyance occurred.

The judgment is affirmed.

In this opinion the other judges concurred.

       The appellant in this appeal is Stanley M. Lessler, trustee. We will refer to him as the defendant.

       General Statutes § 52-325 provides: “(a) In any action in a court of this state or in a court of the United States (1) the plaintiff or his attorney, at the time the action is commenced or afterwards, or (2) a defendant, when he sets up an affirmative cause of action in his answer and demands substantive relief at the time the answer is filed, if the action is intended to affect real property, may cause to be recorded in the office of the town clerk of each town in which the property is situated a notice of lis pendens, containing the names of the parties, the nature and object of the action, the court to which it is returnable and the term, session or return day thereof, the date of the process and the description of the property. Such notice shall, from the time of the recording only, be notice to any person thereafter acquiring any interest in such property of the pendency of the action; and each person whose conveyance or encumbrance is subsequently executed or subsequently recorded or whose interest is thereafter obtained, by descent or otherwise, shall be deemed to be a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the recording of such notice, to the same extent as if he were made a party to the action. For the purpose of this section an action shall be deemed to be pending from the time of the recording of such notice; provided such notice shall be of no avail unless service of the process is completed within the time provided by law. This section shall be construed to apply to mechanics’ liens and all other inchoate liens, certificates of which are recorded subsequent to the recording of the notice of the pendency of the action; and, in suits to foreclose mortgages or other liens, the persons whose conveyances or encumbrances are subsequently executed or subsequently recorded shall forfeit their rights thereunder, unless they apply to the court in which such action is brought to be made parties thereto, prior to the date when the judgment or decree in such action is rendered.
      “(b) As used in this section, actions ‘intended to affect real property’ means (1) actions whose object and purpose is to determine the title or rights of the parties in, to, under or over some particular real property; (2) actions whose object and purpose is to establish or enforce previously acquired interests in real property; (3) actions which may affect in any manner the title to or interest in real property, notwithstanding the main purpose of the action may be other than to affect the title of such real property.
      “(c) Notwithstanding the provisions of subsection (a) of this section, no recorded notice of lis pendens shall be valid or constitute constructive notice thereof unless the party recording such notice, not later than thirty days after such recording, serves a true and attested copy of the recorded notice of lis pendens upon the owner of record of the property affected thereby. The notice shall be served upon the owner, if he resides in the same town in which the real property is located, by any indifferent person, by leaving a true and attested copy of such recorded notice with him or at his usual place of abode. If the property owner does not reside in such town, such copy may be served by any indifferent person, by mailing such copy, by registered or certified mail, to the owner at the place where he resides. If such copy is returned unclaimed, notice to such property owner shall be given by publication in accordance with the provisions of section 1-2. If the property owner is a nonresident individual, or foreign partnership, or his or its executor or administrator, the notice may be served upon the secretary of the state as provided in subsection (c) of section 52-59b and if the property owner is a foreign corporation, the notice may be served as provided in section 33-411 or 33-519. When there are two or more property owners of record, a true and attested copy of such recorded notice shall be so served on each property owner. A certified copy of the recorded notice of lis pendens, with the return of the person who served it, endorsed thereon, shall be returned to the party who recorded such notice.”

       At the outset of the proceedings on July 10, 1992, the trial court said: “I’d like to point out to you gentlemen before we start, this is a hearing in probable cause. It is not a hearing to determine the merits of the case or the count .... And I’m going to make this observation for the parties so that they can guide themselves accordingly. Hearing is limited to determination of existence of probable cause to sustain the validity of the plaintiff’s claims. If the court finds probable cause, the [lis pendens] shall be granted as requested or as modified by the court.”

       General Statutes § 52-325b provides: “(a) Upon the hearing held on the application or motion set forth in section 52-325a, the plaintiff shall first be required to establish that there is probable cause to sustain the validity of his claim. Any property owner entitled to notice under subsection (c) of section 52-325 may appear and be heard on the issue.
      “(b) Upon consideration of the facts before it, the court or judge may: (1) Deny the application or motion if probable cause to sustain the validity of the claim is established, or (2) order such notice of lis pendens discharged of record if probable cause to sustain the validity of the plaintiff’s claim is not established.”