text:
    Heritage Village Master Association, Inc. v. Heritage Village Water Company
    (10410)
    Lavery, Landau and Freedman, Js.
    Argued January 15 —
    decision released March 23, 1993

      Augustus R. Southworth III, with whom, on the brief, was Nancy P. Maxwell, for the appellant (plaintiff).

      DeanM. Cordiano, with whom, on the brief, was Ann McClure, for the appellee (defendant).
   Freedman, J.

The plaintiff, as managing agent for the Heritage Village Condominiums (Heritage Village), appeals from the judgment of the trial court rendered, after a jury trial, for the defendant in this action sounding in negligence, products liability and nuisance. The dispute between the parties centers around the quality of water supplied to the plaintiff by the defendant and the plaintiff’s contention that the water damaged pipes and plumbing fixtures in its condominium complex. In this appeal, the plaintiff sets forth challenges to (1) the trial court’s denial of its motion for partial summary judgment, (2) certain evidentiary rulings by the trial court, (3) the jury instructions, and (4) the trial court’s denial of its motion to set aside the verdict as against the weight of the evidence. We affirm the judgment of the trial court.

Heritage Village is a condominium community made up of twenty-four member condominiums in Southbury. Hie plaintiff, Heritage Village Master Association, Inc., is a corporation that manages the community on behalf of the residents. The defendant, Heritage Village Water Company, has been the exclusive provider of water to Heritage Village since it was constructed in the mid-1960s. The defendant’s water distribution system supplies water to the condominiums via water mains that connect to lateral piping and then to service lines that lead to couplings. Copper tubing then carries the water from the coupling outside each condominium unit and under the concrete slab on which the condominium is built and into the unit.

Beginning in approximately 1977, condominium residents began experiencing leaks in the copper pipes under the slab on which the condominiums were built. To repair the leaks, extensive work is necessary, including ripping up carpeting, jack hammering through the floors and slabs, removing and replacing the leaking pipe and repairing the concrete slabs and interior flooring of the condominiums.

The jury heard extensive and conflicting evidence regarding the cause of the leaks in the copper tubing. The plaintiff’s experts opined that the leaks were a result of the pH chemistry of the water. The defendant’s experts attributed the leaks to a combination of other factors.

The jury returned a verdict for the defendant. After the plaintiffs motion to set aside the verdict was denied by the trial court, this appeal followed.

I

Denial of Motion for Partial Summary Judgment

The plaintiff first contends that the trial court, McDonald, J., should not have denied its motion for partial summary judgment on the issue of the defendant’s liability. The plaintiff argues that the trial court improperly failed to give collateral estoppel effect to a prior determination of the Connecticut department of public utility control (DPUC) regarding the cause of the leaks in the pipes at Heritage Village. We disagree.

The following additional facts are relevant to the resolution of this issue. At an early stage in the proceedings in Superior Court, the trial court, O’Brien, J., issued an order directing the DPUC to consider the plaintiffs request for injunctive relief requiring an immediate change in the water supplied by the defendant to the residents of Heritage Village. In all other respects, the trial court retained jurisdiction of this action for damages. The DPUC is charged with responsibility for determining the adequacy and efficiency of service rendered by utilities in Connecticut. After a public hearing at which the plaintiff and the defendant, as well as other interested parties, were given an opportunity to present evidence and to cross-examine witnesses, the DPUC issued a decision concluding that “the majority of the pitting of the pipes located at Heritage Village is internal in nature, and the source of this internal corrosion is the chemical composition of the water. In addition, this internal corrosion perforates to the outside of the pipes and causes external corrosion. The amount of external corrosion present on these pipes is exacerbated by the under slab environment of the pipes, due to the improper manner in which the several pipes at Heritage Village were installed by the Developer, and the failure of the [defendant] to properly inspect these installations, in accordance with the Department’s regulations. Therefore, the [defendant] has unreasonably failed to provide adequate service to the residents of Heritage Village who have experienced [leaks] . . . .” Accordingly, the DPUC ordered the defendant, inter alia, to increase the alkalinity of the water, or its pH factor, to as near to 8.5 as possible.

The defendant unsuccessfully challenged the decision of the DPUC in an administrative appeal to the Superior Court. In that proceeding, the defendant argued that the DPUC was without authority to make a finding that the pH factor of the water was too low and that it was the cause of the pipe corrosion. The court, McDonald, J., noted that the DPUC had been ordered to hear and determine the issue of whether an immediate change in the water supplied to Heritage Village should be ordered. The court concluded that “[t]his is precisely what the DPUC did and the questioned finding was necessary before such an order could enter.”

Before considering the merits of the trial court’s ruling on the plaintiff’s motion for partial summary judgment, we must first determine whether the denial of that motion is reviewable on appeal. Our courts have held that the denial of a motion for summary judgment is generally not appealable where a full trial on the merits produces a verdict against the moving party. Gurliacci v. Mayer, 218 Conn. 531, 541 n.7, 590 A.2d 914 (1991); Greengarden v. Kuhn, 13 Conn. App. 550, 552, 537 A.2d 1043 (1988). The rationale for the rule adopted in Gurliacci and Greengarden is that a decision based on more evidence should preclude review of a decision based on less evidence. Gurliacci v. Mayer, supra. That rationale, however, is not applicable here where principles of collateral estoppel could bar the defendant from presenting evidence to dispute the issue of its liability and where the judgment after full trial may, in fact, be based on the same evidence presented in the prior proceeding that yielded a determination in favor of the plaintiff. To conclude otherwise, we believe, would frustrate the policy behind the doctrine of collateral estoppel which seeks to limit a party to a single opportunity to litigate a disputed issue. Convalescent Center of Bloomfield, Inc. v. Department of Income Maintenance, 208 Conn. 187, 194, 544 A.2d 604 (1988); In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983). This conclusion follows our recent determination that “the strict application of our rules of practice has yielded to a more common sense application when confronted with the implications of the doctrine of collateral estoppel.” Carnese v. Middleton, 27 Conn. App. 530, 537, 608 A.2d 700 (1992). We therefore consider the merits of the plaintiff’s claim.

“Where an issue of ultimate fact (1) was fully and fairly litigated in a prior [proceeding] between the parties, (2) was actually decided ... in that prior [proceeding], and (3) was necessary to the judgment rendered in the prior [proceeding], that factual determination may be given collateral estoppel effect in a subsequent action between the parties.” Id., 540-41. Although we afford appellate review to the plaintiff’s claim that the trial court should have granted its motion for partial summary judgment, we conclude that principles of collateral estoppel did not bar further litigation of the issues of the defendant’s liability for two reasons.

First, even if the DPUC decision is interpreted to have resolved the issue of the cause of the leaks in question, liability is predicated on more than a determination of cause in fact. In both a negligence claim and a product liability claim, a plaintiff must establish more than that the defendant’s conduct was a cause of the plaintiff’s injuries in order to establish the defendant’s liability. See generally D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed.) §§ 29, 32, 33, 34 (negligence) and §§ 81 A, 81E (product liability). One such element of liability is foreseeability as it relates to causation. Id. In its decision, however, the DPUC specifically and properly disavowed any determination of the issue of foreseeability as it relates to causation. Because not all of the issues necessary to establish the defendant’s liability in this proceeding were “actually decided” by the DPUC in the prior proceeding, the trial court properly refused to grant the plaintiff’s motion for partial summary judgment. See Carnese v. Middleton, supra.

Second, a determination of the issue of causation in the tort law sense was not necessary to the resolution of the issues before the DPUC. The question before the DPUC was whether the DPUC should order a change in the chemistry of the water supplied by the defendant to Heritage Village. While it was necessary for the DPUC to determine that the chemical makeup of the defendant’s water played some role in its customers’ problems, and hence that the water company was not fulfilling its statutory duty to provide adequate service, it was not required to determine that the defendant’s conduct was “a substantial factor in bringing about the plaintiff’s injuries”; (emphasis added)Hearl v. Waterbury YMCA, 187 Conn. 1, 4, 444 A.2d 211 (1982); in order to reach its conclusion. The plaintiff was not entitled to use the doctrine of collateral estoppel to prevent the defendant from contesting an issue of liability where the critical fact determined in the prior proceeding was not necessary to its conclusion. See Carnese v. Middleton, supra, 541-42.

“The doctrine of collateral estoppel is a limited one. Collateral estoppel can be applied only to bar relitigation of facts that were formally put in issue and ultimately determined by a valid, final judgment.” Id., 542. Because the DPUC decision did not foreclose the defendant from disputing any issues in this case, the trial court properly denied the plaintiff’s motion for partial summary judgment.

II

Evidentiaky Rulings

The plaintiff next challenges three evidentiary rulings of the trial court. Specifically, the plaintiff claims that (1) the entire DPUC decision should have been admitted as evidence, (2) a representative of the defendant should not have been permitted to testify concerning the lack of complaints about leaks from other customers, and (3) the defendant should not have been permitted to present the testimony of an expert witness, Hector Campbell, for the purpose of impeaching the credibility of a prior witness presented by the plaintiff. We are not persuaded.

Our analysis of these challenges to the evidentiary rulings of the trial court is guided by a well settled standard of review. “It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion.” Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990); Munson v. United Technologies Corporation, 28 Conn. App. 184, 189, 609 A.2d 1066 (1992).

A

The plaintiff argues that the entire thirty page decision of the DPUC should have been admitted by the trial court, notwithstanding its hearsay nature, pursuant to either the public records or the business records exceptions to the hearsay rule. We disagree.

As the trial court recognized, “[i]n the absence of testimony that the conclusion [reached in the DPUC decision] was based upon that agency’s own testing or examination of the pipes and water, the report was essentially the DPUC’s acceptance of the plaintiff’s expert testimony before it.” In order to be admissible as a public record or a business record, however, the information contained in the proffered document must be based on the personal knowledge of the declarant. Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 38, 404 A.2d 889 (1978); D’Amato v. Johnston, 140 Conn. 54, 59-60, 97 A.2d 893 (1953). Unless a prior adjudication satisfies the usual requirements of res judicata or collateral estoppel, a determination of a fact in one case is not admissible in another case to prove the same fact. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.15.4. The final administrative determination, therefore, was hearsay evidence that does not fall into any recognized exception. Id. Accordingly, the trial court properly excluded the admission of the DPUC decision.

B

The plaintiff next claims that the trial court should not have permitted Anthony Zibello, the defendant’s general manager, to testify that he had not received any complaints of leaks from customers outside of the Heritage Village complex who received the same water that the defendant supplied to Heritage Village. The defendant sought to admit the testimony on the issue of whether the defendant had notice of any danger associated with its product and to disprove the plaintiffs claim that the defendant’s product injured, or presented the danger of injury to, the plaintiff’s property. The plaintiff argues, however, that this evidence permitted the jury to consider nonverbal, assertive conduct which is inadmissible hearsay. We disagree.

Evidence of conduct may be hearsay. “If the conduct is assertive in nature, that is, meant to be a communication . . . it is treated as a statement, and the hearsay rule applies.” C. Tait & J. LaPlante, supra, § 11.2. Customer silence regarding the quality of water supplied by the defendant, however, is not assertive conduct. “Evidence of nonassertive conduct by persons not in privity with the parties is not violative of modern conceptions of the hearsay rule and, in the context of this case, had significant probative value and inherent guarantees of trustworthiness without attendant prejudice to the defendant.” State v. McCarthy, 197 Conn. 166, 173, 496 A.2d 190 (1985). Accordingly, the trial court did not abuse its discretion in admitting evidence of the lack of complaints by other customers regarding the defendant’s water supply.

C

The plaintiff’s final evidentiary claim centers on the testimony of Hector Campbell. In its cross-examination of the plaintiff’s expert, James Meyers, the defendant asked Meyers about the “carbon film theory,” which postulates that in some manufacturing processes copper pipes are left with a residue of carbon film that in later use can lead to pitting of the interior of the pipes. Meyers stated that the theory had been repudiated by its originator, Hector Campbell, in a conversation between Meyers and Campbell two years before. The defendant later called Campbell as a witness to establish that he had never repudiated his carbon film theory and that he had never had such a conversation with Meyers.

At trial, the plaintiff objected to Campbell’s testimony on the ground that the defendant had failed to identify Campbell as an expert witness who was expected to testify at trial. On appeal, the plaintiff claims other grounds for its exclusion. We will not review the plaintiff’s claim, however, because these objections to the admissibility of the evidence were not raised in the trial court. Raino v. Supermarkets General Corporation, 28 Conn. App. 56, 59, 609 A.2d 1047, cert. denied, 223 Conn. 924, 614 A.2d 825 (1992); O & G Industries, Inc. v. Mizzoni, 23 Conn. App. 19, 23, 578 A.2d 672 (1990).

Ill

Jury Instructions

The plaintiff next raises three challenges to the trial court’s instructions to the jury. Specifically, the plaintiff claims that (1) the court should have instructed the jury on breach of statutory duty, as set forth in its written request to charge, (2) the court should have instructed the jury on the law of nuisance, as set forth in its written request to charge, and (3) the court should not have instructed the jury on the concept of intervening cause. We are not persuaded.

A

The plaintiff claims that the trial court should have instructed the jury on the concept of negligence per se based on the breach of statute and agency regulation in accordance with its request to charge. We disagree.

“The court is under no duty at any time to charge in the exact language requested. . . . Failure to charge precisely as proposed by a [party] is not error where the point is fairly covered in the charge. . . . Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues.” (Citations omitted.) Tomeczuk v. Alvarez, 184 Conn. 182, 190, 439 A.2d 935 (1981); State v. Commerford, 30 Conn. App. 26, 32, 618 A.2d 574, cert. denied, 225 Conn. 903, 610 A.2d 177 (1993). Under this standard of review, we conclude that the trial court properly discharged its duty to instruct the jury in a manner calculated to give a clear understanding of the issues presented for their consideration.

The plaintiff correctly points out that the violation of a valid administrative regulation constitutes negligence per se. Citerella v. United Illuminating Co., 158 Conn. 600, 608, 266 A.2d 382 (1969). The administrative regulation principally involved here required the defendant to “provide reasonably adequate and safe service to its customers.” The trial court, however, properly fulfilled its duty to instruct on this principle of law by instructing the jury as follows: “The regulations of the Department of Public Utility Control require that the water company exercise reasonable diligence to furnish an adequate supply of water to its customers. Thus, if you find that the Heritage Village Water Company water was corrosive and if you find that the water company did not take reasonable steps to furnish an adequate supply of water, you have found for the Master Association on the negligence theory of product liability.” The court’s instructions therefore fairly covered the points of law raised in the plaintiff’s request to charge.

B

The plaintiff next claims that the trial court should have instructed the jury on the law of nuisance in accordance with its request to charge. We disagree.

The third count of the plaintiff’s amended complaint sought recovery based on a claim of nuisance. “[T]he trial court’s withdrawal of the nuisance claim from the jury was tantamount to a directed verdict on that issue. For this reason, in reviewing the court’s refusal to charge the jury on the nuisance claim, and its subsequent denial of the plaintiff’s motion to set aside the verdict based on that refusal, this court considers all the evidence, including reasonable inferences, in the light most favorable to the plaintiff.” (Internal quotation marks omitted.) State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 182-83, 527 A.2d 688 (1987).

The plaintiff claims that the jury could have found the defendant liable in nuisance because its evidence showed that the defendant provided water to Heritage Village of a sufficiently low pH level that, in combination with dissolved carbon dioxide, was corrosive to the plaintiffs copper pipes, causing injury to the plaintiff’s use and enjoyment of its property. “Nuisance is a word often very loosely used; it has been not inaptly described as ‘a catch-all of ill-defined rights.’ ” Gonchar v. Kelson, 114 Conn. 262, 271, 158 A. 545 (1932). “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’ . . . There is general agreement that it is incapable of any exact or comprehensive definition.” W. Prosser & W. Keeton, Torts (5th Ed.) § 86. In order to prevail on a claim of nuisance, the plaintiff must establish that “(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the [defendant’s] land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the [plaintiffs] injuries and damages.” Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978); Green v. Ensign-Bickford Co., 25 Conn. App. 479, 490, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991). We conclude that the evidence, taken in the light most favorable to the plaintiff, was insufficient to meet the requirements of the first and third elements of a nuisance claim.

“A nuisance . . . describes an inherently dangerous condition that has a natural tendency to inflict injury upon persons or property.” Quinnett v. Newman, 213 Conn. 343, 348, 568 A.2d 786 (1990). “There must be some dangerous or noxious characteristic to the condition before it can be termed a nuisance.” D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed.) § 128; see Butzgy v. Glastonbury, 203 Conn. 109, 121, 523 A.2d 1258 (1987). Although the existence of a nuisance is generally a question of fact, we conclude that the condition complained of here did not constitute a nuisance as a matter of law. The water supplied to the plaintiff by the defendant was potable water, within generally accepted ranges of pH. There is no natural tendency of such water to create danger or inflict injury. It is undisputed that the water here met governing standards regarding its use for purposes of human consumption. It could not reasonably be concluded that the water supplied by the defendant had a natural tendency to create danger or inflict injury on person or property where the danger would exist only as a result of an unusual combination of circumstances contributing to the result. Hassett v. Palmer, 126 Conn. 468, 476, 12 A.2d 646 (1940).

The evidence was also deficient to permit a jury instruction on the law of nuisance in another respect. Our case law requires sufficient proof of a defendant’s connection to a particular parcel of property and the nature of the defendant’s use of his property, before nuisance liability can be imposed. State v. Tippetts-Abbett-McCarthy-Stratton, supra, 183-84. This case, however, was not about the defendant’s use of its property, but rather concerned its conduct in supplying water to the plaintiff.

The evidence did not support an instruction on the nuisance count of the plaintiff’s complaint. The trial court, therefore, properly refused to instruct the jury as requested by the defendant.

C

The plaintiff’s last challenge to the court’s instruction to the jury concerns the jury instruction on intervening or superseding cause. The plaintiff does not challenge the content of the superseding cause instruction but instead argues that insufficient evidence was introduced to warrant such an instruction. We disagree.

“The function of the doctrine [of superseding cause] is to define the circumstances under which responsibility may be shifted entirely from the shoulders of one person, who is determined to be negligent, to the shoulders of another person, who may also be determined to be negligent, or to some other force.” D’Arcy v. Shugrue, 5 Conn. App. 12, 24, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985). The doctrine exonerates a negligent party from liability by shifting the causation element entirely elsewhere. Id., 25. “The circumstances under which this shifting may take place have been well-defined in our case law. Even if a plaintiff’s injuries are in fact caused by a defendant’s negligence, a superseding cause may break that causal connection if it ‘so entirely supersedes the operation of the defendant’s negligence that it alone, without his negligence contributing thereto in any degree, produces the injury . . . .’” Id., quoting Corey v. Phillips, 126 Conn. 246, 255, 10 A.2d 370 (1939).

Here, both parties presented extensive expert testimony regarding the causes of the leaks in the water pipes. The plaintiff’s experts linked the copper piping failures to the corrosive effects of the water, concluding that the low pH of the water, along with other chemicals present, caused the leaks. The defendant’s experts agreed that some pipes at Heritage Village showed evidence of interior corrosion, but they disputed that the water quality had initiated the corrosion responsible for the leaks or that it was ultimately responsible for the leaks in the pipes. Those experts identified factors other than the defendant’s water, including external corrosion, stress, crimps and bends, and the quality of the copper tubing, as the cause of the leaks. On the basis of the testimony presented, the jury was entitled to find that some, most or all of the leaks were due to causes other than corrosive water, notwithstanding any pitting to the interior of the pipes caused by the defendant’s water. Under these circumstances, the court properly instructed the jury to consider the principle of superseding cause.

IV

The plaintiff’s final claim is that the verdict was against the weight of the evidence. The plaintiffs entire argument on this point consists of two sentences: “The overwhelming weight of the evidence and testimony established beyond doubt the Water Company’s liability for a majority of the leaks. Even viewing the verdict in the light most favorable to the Water Company, it is clear the trial court erred in failing to grant the motion to set aside the verdict.” We do not agree.

“The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence. . . . The supervision which a judge has over the verdict is an essential part of the jury system. . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality. . . . The court has a duty to set aside the verdict where the jury’s action is so unreasonable as to suggest that it was the product of such improper influences. ... A verdict may be set aside even if the evidence was conflicting and there was direct evidence in favor of the party who prevailed with the jury.” (Citations omitted; internal quotation marks omitted.) Palomba v. Gray, 208 Conn. 21, 23-24, 543 A.2d 1331 (1988).

Here, the jury sifted through vast amounts of conflicting expert opinion. The parties presented different theories as to the causation and foreseeability of the leaks in the copper piping. The trial court chose not to upset the jury’s verdict. “Our review of the trial court’s action on a motion to set aside the verdict involves a determination of whether the trial court abused its discretion, according great weight to the action of the trial court and indulging every reasonable presumption in favor of its correctness . . . since the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence.” (Citations omitted.) Id., 24-25. We find no abuse of discretion in the trial court’s action.

The judgment is affirmed.

In this opinion the other judges concurred.

       In its decision, the DPUC noted: “There is a paucity of evidence in the record as to whether the [Heritage Village Water] Company could have reasonably foreseen that the water it was providing to its customers could, when combined with other factors, result in the pitting corrosion problems. However, it is the determination of the [DPUC] that the statutory mandate that a public utility company provide adequate service to its customers ... is not based upon a standard of whether or not the Company could have reasonably foreseen that its actions, or its failure to act, would not accomplish this mandate, but rather upon whether or not adequate service is in fact being provided.”

       In addition, the trial court supported its ruling on the admissibility of the DPUC report by noting that since the contest at trial between the experts was for the jury to resolve and since the report was not based on any independent investigation by the DPUC, “the likelihood of confusion was another factor leading the court to deny the report’s admissibility.” The trial court’s conclusion that the proffered evidence should be excluded because of its likelihood to confuse or mislead the jury was not an abuse of discretion. Hall v. Burns, 213 Conn. 446, 466, 569 A.2d 10 (1990).

       The plaintiff submitted the following request to charge on the issue of “breach of statutory grant”: “You must also find The Water Company liable if you find the violation of a statute, ordinance or administrative regulation. In this case, HVMA is claiming that The Water Company violated the statutory grant which states, in part, that The Heritage Village Water Company has ‘all powers and privileges granted by the general statutes to water companies and to corporations organized under the general statutes, for the purpose of supplying water for public, domestic and other uses within the territorial limits hereinafter designated.’ Connecticut law provides that a water company is regulated by The Department of Public Utility Control. HVMA claims that the Heritage Village Water Company violated the regulations of the DPUC. Specifically, HVMA claims that the following Regulations have been violated: ‘(1) Section 16-11-62 (5) — The utility shall, with the cooperation of the customer, make an adequate inspection of the customer’s service pipe in order to determine that it complies with company requirements.
      " '(2) Section 16-11-79 — The design and construction of the utility’s water plant shall conform to good standard engineering practice, including the minimum standards of the American Water Works Association. It shall be designed to make reasonable provisions for the company’s water supply requirements for a period of at least fifteen years and operated so as to provide reasonably adequate and safe service to its customers and shall conform to the requirements of the state department of health with reference to sanitation and potability of water.’
      “If you find that the Defendant has violated one or more of these regulations and that the residents of Heritage Village are within the class of people intended to be protected by the regulations then you must find that The Water Company has breached its statutory grant and you must find for HVMA. . . .” (Citations omitted.)
      The following supplemental request to charge on the issue was also submitted to the trial court: “A private water company such as the Heritage Village Water Company has a legal duty to provide water which is reasonably fit for its intended purposes. This means that the Water Company must furnish water to its customers which is not only potable, and safe for human consumption, but is also non-corrosive to the pipes, fixtures, and containers used to convey it. The water provided by the Water Company must pass safely through the service pipes, to the consumer. If the water provided by the Water Company is not fit to pass safely through the service pipes, then that water is not fit for its intended purposes. . . .
      “In order for water, as a product, to be defective and unreasonably dangerous, it is not necessary that the Plaintiff prove that the water was unreasonably dangerous to the person or health of the customer. It is also defective if it is unreasonably dangerous to the property of the customer, and causes injury or damage to the customer’s property. . . .
      “I charge you that while water may be safe for human consumption, the quality of the water is not adequate if it causes leaks which result in a loss of service, and damage to pipes and the personal property of the customers. . . .
      “It is the responsibility of a water company to take whatever steps are reasonably required to assure that the personal property of its customers, when exposed to its water, is not continually damaged. . . .
      “The regulations of the Department of Public Utility Control require that the Water Company exercise reasonable diligence to furnish an adequate supply of water to its customers. You have heard testimony from witnesses for both parties that water which corrodes the distribution system is not adequate. You have also heard testimony from experts for both the Water Company and the Master Association that the water supplied by the Water Company to the residents of Heritage Village corrodes the soft copper tubing at Heritage Village. If you conclude that the Heritage Village Water Company water is corroding the pipes at Heritage Village, then based on the testimony you must find that the Water Company is not supplying adequate water and has breached its statutory grant. You must, therefore, find for the Master Association and award damages accordingly. . . .” (Citations omitted.)

       The plaintiff submitted the following request to charge on the issue of “nuisance”: “In Count III of its complaint, HVMA claims that the corrosive water supplied to it and the resulting damage constitutes a nuisance. The question in this case of whether the water is a nuisance is a question of fact for you to decide. If the natural tendency of supplying corrosive water is to create danger and inflict damage upon property, it may properly be found a nuisance as a matter of fact. And in the case before us, you are to determine, as a matter of fact, whether or not the defendant supplied water of such a quality as would unnecessarily expose the residents of Heritage Village or their property to damage.
      “To establish a nuisance, the plaintiff must prove certain things. The first is that the condition was such that, in its very nature, it was likely to cause danger and inflict injury. A mere tendency to create danger is not enough. The danger must be actually appreciable, a danger which would strike the attention of an ordinarily prudent person because of facts which he knew or which, in the exercise of a reasonable observation and diligence, he should have known.
      “The second is that the condition was a continuing one. By that I mean that it must be more than a temporary condition springing from some particular act or failure to act on the part of the defendant, that it must have continued in existence for some appreciable length of time.
      “A third requirement which must be met is that the use made of the water by the defendant was unreasonable or unlawful. There is no doubt that the defendant was making a lawful use of the water, and you need give no thought to that requirement; but you must ask yourselves whether in supplying corrosive water, if you should determine that to be the case, the use they were making of it was a reasonable one. You must determine whether the harm which came to the plaintiff was one which the condition had a natural tendency to produce.
      “If the plaintiff has proved to you by a fair preponderance of the evidence the existence of all these circumstances: that the condition on the defendant’s property was such that, in its very nature, it was likely to cause danger to and inflict damage upon the property of the plaintiff; that the condition was a continuing one; that the use the defendant was making of his property was not a reasonable one; and that the harm which came to the plaintiff was one which the condition had a natural tendency to produce, the plaintiff has established the existence of a nuisance. On this phase of the case it does not matter whether the condition was one which in its natural state constituted such a nuisance or one which, originally not unsafe for persons coming near it, became a nuisance by the negligence of the defendant, that is, his failure to use the care of an ordinarily prudent person to maintain the safeguards he had placed about it.
      “If you find that The Water Company knew of the condition of the water and the damage it caused, but persisted in letting its water into the service pipes with knowledge of the nuisance thereby created and continued, you must find that The Water Company created a nuisance by supplying corrosive water and is liable for the injuries sustained.
      “If you find that there was a nuisance upon the defendant’s property for the creation or maintenance of which he was responsible, your final question will be, did that nuisance cause the damages suffered by the plaintiff; that is, in brief, was the nuisance a substantial factor in bringing them about.
      “If you conclude that there was a nuisance, that the defendant was responsible for its existence or maintenance, that the harm to the plaintiff was such as the nuisance was likely to produce, and that the nuisance was the cause of that harm, then you should render a verdict for the plaintiff.”


source: Caselaw Access Project

author: Cretella, J. O’Connell, J.,

license: Public Domain

text:
    State of Connecticut v. Daniel Rios State of Connecticut v. Gilberto Rios
    (10573)
    (10574)
    O’Connell, Heiman and Cretella, Js.
    Argued September 22, 1992 —
    decision released March 30, 1993

      BrianM. O’Connell, for the appellants (defendants).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Thomas Prior, assistant state’s attorney, for the appellee (state).
   Cretella, J.

The defendants, Daniel and Gilberto Rios, who are brothers, appeal from convictions arising out of the possession and sale of narcotics in contravention of General Statutes §§ 21a-278 (b), 21a-279 (a), 53a-48 and 53a-167. The defendants filed motions to suppress that were denied after a hearing by the trial court, Freed, J. Subsequently, the defendants entered pleas of nolo contendere, reserving the right pursuant to General Statutes § 54-94a to appeal from the denial of their motions to suppress. On a finding of guilty, the trial court, Damiani, J., sentenced each defendant.

The defendants appeal from the trial court’s denial of their motions to suppress claiming (1) that the warrantless search of the defendants’ residence was conducted in the absence of exigent circumstances, and (2) that the search and seizure was of a pretextual nature in violation of both the state and federal constitutions. Conn. Const., art. I, § 7; U.S. Const., amend. IY.

After a hearing, the trial court apparently denied the motions to suppress, but diet not comply with Practice Book § 4059 in that the court did not issue a written memorandum or transcribe and sign its oral decision. While we do not condone the court’s failure to comply with § 4059, and would decline in most instances to search the transcript to ascertain the factual basis in support of the trial court’s ruling, we would not exalt form over substance if the deficiency were of a technical nature. In this particular case, however, it is not simply the failure of the trial court to sign the transcript that causes the dilemma.

In State v. MacNeil, 28 Conn. App. 508, 515, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), this court noted that we “may resort to the evidence produced in support of the court’s ruling on a suppression motion when, as here, the court does not make detailed factual findings to support its decision.” We are quick to note, however, that in MacNeil the court had issued a memorandum of decision in ruling on the suppression motion and on appeal the court simply resorted to evidence as set forth in the transcript to ascertain the factual findings to support the decision. In the present case, as noted, there was no written memorandum of decision.

Although the court concluded that the police did not unlawfully conduct a warrantless search but rather that the search was incident to the arrest and, therefore, did not require the obtaining of a search warrant, the only finding set forth in the transcript by the trial court was: “I will make a finding that this was not a pretextual advance by the police.” The transcript reveals no specific findings by the trial court that would support that conclusion.

The transcript further reveals that, notwithstanding the fact that both sides proceeded on the assumption that the trial court had denied the motion to suppress, the record is devoid of any such ruling by the trial court.

Despite the abundance of testimony adduced at the suppression hearing, we cannot review the merits of the defendants’ claim because we have no specific findings of fact to determine the basis of the court’s ruling. Although § 4059 requires that the trial court submit, within ten days of an appeal, a signed transcript of the factual issues and the factual basis of its decision, we recognize that in most instances, notwithstanding the provisions of Practice Book § 4012 that provide for notice of appeal, the trial court is usually not aware of the appeal until well after the ten day period has passed. It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § 4061; Walton v. New Hartford, 223 Conn. 155, 165-66, 612 A.2d 1153 (1992). Indeed, several rules of practice aim to facilitate the process by which an appealing party ensures the adequacy of the record. See Practice Book § 4051 (Rectification of Appeal, Articulation), § 4053 (Motion for Review — In General), § 4054 (Motion for Review — Review of Motion for Rectification of Appeal or Articulation). These rules foster the basic policy that an appellate tribunal cannot render a decision without first fully understanding the disposition being appealed. State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). It is not the function of this court to find facts. State v. Reagan, 209 Conn. 1, 8, 546 A.2d 839 (1988).

The judgments are affirmed.

In this opinion Heiman, J., concurred.

O’Connell, J.,

concurring. I concur with the result reached by the majority but write separately to express my opinion on the importance of compliance with Practice Book § 4059.

The significance of § 4059 can best be appreciated if considered in historical perspective. Shortly after the dawn of Connecticut appellate jurisprudence, a complicated system of establishing facts for appellate review began to evolve. The system ultimately grew to include requests to the trial court for a finding of facts, the appellant’s draft findings, the appellee’s counter draft findings, the court’s findings, motions to correct the findings, objections to the findings, and assignments of error based on the refusal of the court to make requested findings. See Practice Book (1963) §§ 3020 through 3060; W. Maltbie, Connecticut Appellate Procedure §§ 126-180. Although the factual findings of the court had obvious significance in the context of a trial to the court, the scope of the system, less obviously and less logically, also embraced jury trials.

Claims regarding the contents of the findings generated their own assignments of error and consumed inordinate amounts of judicial resources. This aspect of the findings system was the focus of a 1930 Connecticut Bar Journal article summarizing the results of an investigation of the system conducted at the request of the committee on appeals of the judicial council. The author wrote: “The problem of what should be set forth in the finding affords a fruitful source of controversy between the parties and the trial judge. This controversy may, under the rules for correcting the finding, be carried from the trial court into the court of review and all the time spent upon this controversy is so much time withdrawn from a consideration of the merits of the case. The amount of time so withdrawn from a consideration of the merits becomes a most important factor when considered in the light of the practice under which the appellant or appellee argues the correction of the finding as well as the merits of his appeal in his hearing before the Supreme Court. . . . The controversy occurs in the great majority of cases in which appeals are taken by means of a finding.” M. Tyler, “The Finding of Facts in Connecticut,” 4 Conn. B.J. 265, 274-75 (1930).

This quagmire gave birth to Practice Book § 3060B, the predecessor of current § 4059. Bench and bar alike applauded the abolition of the antiquated, complicated and confusing draft finding system. Effective July 1, 1979, forty Practice Book sections were repealed and replaced by what is now § 4059. As presently written, with a few exceptions not applicable to the present case, the trial court must prepare an oral or written memorandum of decision in virtually every civil or criminal trial to the court as well as in rulings on motions to dismiss criminal cases under § 814 and motions to suppress evidence under § 820.

The trial court is given the option of filing a written memorandum of decision or orally reciting its decision into the record. If the decision is rendered orally, the court must order that the decision be transcribed and must sign the transcript and file it with the trial court within ten days of the filing of an appeal. Whether oral or written, the contents of the decision are identical. The rule requires that the court state its decision on the issues of the case and if there are factual issues, the factual basis of its decision. See C. Tait, Connecticut Appellate Practice and Procedure (1989) § 4.4.

In the event the trial court fails to perform its mandated duty, the appellant should make a motion to this court under either Practice Book § 4183 (l), seeking an order to compel the trial court to file a memorandum, or under Practice Book § 4051, seeking an articulation. Absent a presentation of the factual basis of the court’s decision, the appellant has failed to provide an adequate record for review. Practice Book § 4061; Walton v. New Hartford, 223 Conn. 155, 164-65, 612 A.2d 1153 (1992). In that situation, we have held that the appellant’s claim will not be reviewed. “[W]e cannot undertake to exercise even the limited review normally given this type of a claim because the trial court did not file a memorandum of decision . . . and the defendant did not request an articulation from the trial court. . . . Without a written memorandum of decision or an oral recitation on the record of the court’s findings, we cannot determine if the court’s conclusions were reasonable. It is the duty of the appellant to present us with an adequate appellate record. ... We therefore have no basis on which to find error in the ruling of the trial court.” (Citations omitted.) Zak v. Weisman, 18 Conn. App. 16, 20, 556 A.2d 181 (1989); see Manchester v. Zoning Board of Appeals, 18 Conn. App. 69, 70 n.1, 556 A.2d 1026, cert. denied, 212 Conn. 804, 561 A.2d 946 (1989).

A remand, resulting from an appropriate motion filed during the early stages of an appeal, is a proper alternative and certainly a less drastic step to correct the absence of a written memorandum or signed transcript of an oral decision. A remand, however, is untimely and impractical at the point that the appellant’s preliminary statement of issues has been filed, transcripts have been ordered, briefs of both parties have been filed, and oral argument has taken place in the Appellate Court. A remand for compliance at this juncture potentially has the deleterious effect of returning the appeal to square one because new issues may arise from the heretofore undisclosed basis of the trial court’s decision.

I concur with the majority that the judgment of the trial court must be affirmed.

       Practice Book § 4059 provides in pertinent part: “[I]n criminal cases, in ruling upon . . . motions to suppress under Sec. 820, the court shall, either orally or in writing, state its decision on the issues in the case and, if there are factual issues, the factual basis of its decision. ... If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court within ten days of the filing of the appeal. . . .”

       Practice Book § 4059 provides: “Except in small claims actions and as provided in Sec. 4060, when rendering judgments in trials to the court and in criminal cases, in ruling upon motions to dismiss under Sec. 814 and motions to suppress under Sec. 820, the court shall, either orally or in writing, state its decision on the issues in the case and, if there are factual issues, the factual basis of its decision. The court shall include in its decision its conclusion as to each claim of law raised by the parties. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court within ten days of the filing of the appeal. If written, the decision shall be stated in a memorandum of decision, which shall be filed with the clerk.”

       In jury cases, “the finding does not purport to be a finding of facts by the court from the evidence. It does not establish any of these facts. . . . It is simply a statement of the facts which the parties claimed had been proved, with their claims thereon, and the rulings and charge of the court, made with sufficient fullness to present the questions sought to be raised by the appeal.” Elliott v. New York, N.H. & H. R. Co., 83 Conn. 320, 327, 76 A. 298 (1910).

       Practice Book § 4059 does not apply to small claims actions and to matters set forth in § 4060. Section 4060 provides: “(a) At the time the court renders a decision in any uncontested matter where no aspect of the matter is in dispute, in any pendente lite family relations matter whether contested or uncontested, or in any dismissal under Sec. 251, the oral or written decision as provided in Sec. 4059 is not required.
      “(b) Within fourteen days from the filing of an appeal from a dismissal under Sec. 251 or a contested pendente lite order in which an oral or written decision has not been made pursuant to paragraph (a), each party to the appeal shall file a brief with the court discussing the legal and factual issues in the matter. The court shall file a written memorandum of decision stating its decision on the issues in the matter and the factual basis of its decision within fourteen days after briefs have been filed by the parties. The court shall include in its decision its conclusion as to each claim of law raised by the parties.”

       Practice Book § 4183 provides in relevant part: “The court may, on its own motion, modify or vacate any order made by the trial court, or a judge thereof, in relation to the prosecution of the appeal. It may also, for example, on its own motion or upon motion of any party, (1) order a judge to take any action necessary to complete the trial court record for the proper presentation of the appeal. . . .”

       Practice Book § 4051 provides: “An original and three copies of a motion for rectification or articulation shall be filed with the appellate clerk and forwarded by such clerk to the trial judge. The trial judge shall file the ruling on the motion with the appellate clerk.
      “Any motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues or for the proper presentation of questions reserved; or the trial court may approve a stipulation of counsel that such a correction or addition be made, provided the motion or stipulation is presented before the appeal is ready to be assigned for hearing and only by leave of the supreme court or the appellate court thereafter. The action of the trial judge as regards such a correction or addition may be reviewed by the court in which the appeal is pending under Sec. 4054. Nothing herein is intended to affect the existing practice with respect to opening and correcting judgments and the records on which they are based.
      “Corrections made before the record is prepared shall be included in it. If the record has been prepared, the appellate clerk may prepare a supplemental record, to be distributed in the same way as the original record.”


author: Daly, J.

text:
    Board of Education of the Town of Bozrah v. State Board of Education et al.
    (11277)
    Daly, Foti and Lavery, Js.

      Argued January 19 —
    decision released March 30, 1993

      William R. Connon, for the appellant (plaintiff).

      NinaF. Elgo, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (named defendant et al.).

      Gregory T. DAuria, with whom, on the brief, were Saranne P. Murray and Linda L. Yoder, for the appellee (defendant Norwich board of education).
   Daly, J.

The plaintiff Bozrah board of education (Bozrah) challenges the trial court’s decision to dismiss its appeal from the decision of the defendant state board of education’s impartial hearing board requiring Bozrah to provide funding for the education of W.

The facts are not in dispute. W, who was born on July 26,1973, resided with his mother in Norwich until 1979. W’s mother developed cancer and made arrangements with Loretta Gagnon of Norwich to care for W. W’s mother died in February, 1980. Gagnon continued to care for W, and W’s father agreed to pay her. When W’s father failed to make the expected payments, Gag-non successfully sought payments for W’s care from his mother’s social security benefits. On September 13, 1983, W was committed to the custody of the department of children and youth services (DCYS) and was placed with Gagnon, who had become a duly licensed foster parent. At this time, Gagnon began receiving payments from DCYS for the care of W. W’s father’s parental rights have never been terminated.

W has been a special education student since 1987. In February, 1988, he was placed in Mount St. John residential facility in Deep River and resided there until June, 1990. W’s father lived in the Crestwood Retirement Home in Norwich until June 6,1989, when, upon his release from Backus Hospital, he was placed in the Fitchville Home, a nursing care facility in Bozrah. The Norwich board of education (Norwich) had provided educational services to W through January, 1990. On March 12,1990, it denied school accommodations to W because his father no longer resided in Norwich. Norwich also sought credit for services retroactively to June, 1989, when the father moved to Bozrah. On June 18,1990, Bozrah refused to enroll W in its school system. On October 29,1990, W was placed in Covenant House Shelter in Norwich.

In August, 1990, W, through his appointed surrogate, petitioned both Bozrah and Norwich for residency hearings pursuant to General Statutes § 10-186. The parties agreed to waive their rights to local hearings pursuant to General Statutes § 10-186 (b) (1) and proceeded directly before the state board of education’s impartial hearing board pursuant to General Statutes § 10-186 (b) (2). That board found that Bozrah was responsible for providing for W’s education because W’s father had resided in Bozrah since June, 1989. Bozrah appealed to the trial court, which dismissed the appeal after determining that the hearing board’s decision was not unreasonable, arbitrary, illegal or an abuse of discretion.

Bozrah appeals from the dismissal claiming that General Statutes §§ 10-253 and 10-76d do not require Bozrah to educate W. Bozrah also claims that the impartial hearing board improperly placed the burden of proof on both Bozrah and Norwich to establish W’s ineligibility for school accommodations in their school systems. We affirm the judgment of the trial court.

I

Bozrah first claims that the impartial hearing board should have found that Norwich is responsible for funding W’s education because General Statutes § 10-253 governs W’s placement. We disagree and conclude that the hearing board properly determined that General Statutes § 10-76d (e) (2) governs W’s placement.

Bozrah’s appeal is controlled by the Uniform Administrative Procedure Act, General Statutes § 4-183 et seq. Our scope of review on administrative appeals is limited; Buckley v. Muzio, 200 Conn. 1, 3, 509 A.2d 489 (1986); and it is not our function “to retry the case or to substitute [our] judgment for that of the administrative agency.” Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). We may disturb the hearing board’s factual findings only if they are clearly erroneous. Practice Book § 4185. Our “ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of discretion. . . . Conclusions of law reached by the administrative agency must stand if [we determine] that they result from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Internal quotation marks omitted.) Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, 212 Conn. 100, 104, 561 A.2d 429 (1989); Board of Education v. State Board of Labor Relations, 217 Conn. 110, 120, 584 A.2d 1172 (1991).

“Upon appeal the function of the court is to examine the record of the hearing before the board to determine whether the conclusions reached are supported by the evidence that was before it. The question is not whether the trial court would have reached the same conclusions but whether the record before the board supports the board’s action.” O’Donnell v. Police Commission, 174 Conn. 422, 426, 389 A.2d 739 (1978). We agree with the state board of education, DCYS, and Norwich that General Statutes § 10-253 (d) is inapplicable because the statute does not apply to special education students like W, and because Gagnon was paid and expected to be paid for her services.

Because W has been a special education student since 1987, this case is not governed by § 10-253. The pertinent part of § 10-253 (d) provides “children not requiring special education who are residing in any facility or home as a result of a placement by a public agency, other than a local or regional board of education . . . shall be entitled to all free school privileges accorded to resident children of the school district in which they then reside.” There is no question that when W was placed in Mt. St. John in 1988 he was a special education student. The outcome of this case is, therefore, not controlled by § 10-253.

Furthermore, § 10-253 (d) governs the placement of children who are “residing with relatives or nonrelatives, when it is the intention of such relatives or non-relatives and of the children or their parents or guardians that such residence is to be permanent, provided without pay and not for the sole purpose of obtaining school accommodations . . . .” (Emphasis added.) The hearing board properly determined that this section was not satisfied because Gagnon clearly intended to be paid for W’s care, and was paid for it by DCYS when she became a foster parent. The statute requires that the people with whom the child is residing and the child’s parents or guardians intend the residence to be provided without pay. Thus, the fact that W’s father did not intend to pay for W’s care is not determinative because Gagnon did intend to be paid. For these reasons, Bozrah’s reliance on § 10-253 is unwarranted.

Therefore, the trial court properly applied General Statutes § 10-76d to this case. This statute provides that where, as here, “such child requires special education, the local or regional board of education under whose jurisdiction the child would otherwise be attending school” shall be financially responsible for the child’s education. General Statutes § 10-76d (e) (2).

“Generally speaking, the presumption is that the words of a statute are used in their ordinary sense. Nonetheless, there should be inquiry as to the legislative intent, involving a consideration of the language used, its context, pertinent antecedent legislative history, related subject matters with which the language deals, its operation as it may be interpreted, the conditions and circumstances under which it was enacted, and all other matters calculated to throw light on the subject.” 1 B. Holden & J. Daly, Connecticut Evidence (1988) § 50. According to the history of § 10-76d (e) (2), the legislature intended that the funding of special education programs for children under the care of a state agency should be the responsibility of the board of education of the school district where the parents of the child live. 24 H.R. Proc., Pt. 21, 1981 Sess., pp. 7101, 7109; 24 S. Proc., Pt. 17, 1981 Sess., p. 5376; 25 H.R. Proc., Pt. 15, 1982 Sess., pp. 5502, 5503.

The policy behind this clause was discussed in both chambers of our legislature. Subdivisions (e) (2) and (e) (3) did not exist under the version of § 10-76d in effect before the 1981 amendments. Without these subdivisions, the statute provided that “children who live in a state facility were the educational responsibility of the town in which they are living” and so “districts in which there are large state facilities are obliged to front large amounts for the education of the children in that facility attending their schools in the town, receiving reimbursements the following year.” 24 S. Proc., Pt. 17, 1981 Sess., p. 5376, remarks by Senator Cornelius P. O’Leary; see 24 H.R. Proc., Pt. 21, 1981 Sess., p. 7101, remarks by Representative Geil Orcutt. Under the provisions of the revised version, “the financial responsibility for these children is to be . . . distributed to the districts in which the parents of the children live.” 24 S. Proc., Pt. 17, 1981 Sess., p. 5376. Thus, the hearing board properly determined that the “board of education under whose jurisdiction the child would otherwise be attending school” refers to the district in which W’s father resides, which in this case is Bozrah.

Furthermore, the commissioner of education and the state board of education have accepted and consistently construe the clause “the board of education under whose jurisdiction the child would otherwise be attending school” to refer to the board in whose district the child’s parent resides. In re R.P., State Board of Education Decision No. 86-31 (October 1,1971). We traditionally accord great deference to an agency’s interpretation of a statute that the agency is responsible for administering. E.I.S., Inc. v. Board of Registration, 200 Conn. 145, 148, 509 A.2d 1056 (1986). An “agency’s practical construction of the statute, if reasonable, is high evidence of what the law is. ...” (Citations omitted; internal quotation marks omitted.) Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, supra, 106; Board of Education v. State Board of Labor Relations, supra, 120. Therefore, when W’s father became a resident of Bozrah, responsibility for the educational needs of W became Bozrah’s as directed by General Statutes § 10-76d.

II

We now address Bozrah’s second claim that the hearing board improperly allocated the burden of proof to both Bozrah and Norwich. Bozrah claims that because Norwich first denied school accommodations, it must prove W’s ineligibility first. Only after Norwich has satisfied its burden, according to Bozrah, should Bozrah have to present its case. We find this claim to be without merit because the outcome would have been the same no matter who first shouldered the burden of proving W’s ineligibility for funding.

If the local hearings had been held pursuant to General Statutes § 10-186, both Bozrah and Norwich as “parties claiming ineligibility for school accommodations” would have had to carry “the burden of proving such ineligibility for school accommodations.” Each would have borne “the burden of proving such ineligibility by a preponderance of the .evidence.” General Statutes § 10-186 (b) (l). In this case, however, the parties waived the two separate local hearings and agreed to bring the matter before the state board of education for a joint hearing. The hearing board placed the burden on each town to prove W’s ineligibility for funding because both towns claimed he was ineligible. The hearing board did not state whether it addressed Bozrah’s or Norwich’s claim first. General Statutes § 10-186 (b) (2) does not address this issue specifically.

Nevertheless, even if the hearing board had first required Norwich to prove that it was not responsible for funding W’s education, the outcome would have been the same. Bozrah was not able to prove that General Statutes § 10-253 governs this case. Rather, the hearing board properly agreed with Norwich that General Statutes § 10-76d applied because of the circumstances of W’s placement. Section 10-76d requires the town of the parent’s residence to provide school funding. W’s father moved to Bozrah in 1989 and Bozrah, therefore, became responsible for funding his education pursuant to § 10-76d. Bozrah failed to meet its burden of showing it is not responsible for funding W’s education under the statute while Norwich satisfied its burden of proving that it was not statutorily responsible for W’s education after June, 1989, because W’s father no longer resided in Norwich. Thus, even if, as Bozrah argues, Norwich should first have been responsible to prove W’s ineligibility for its school accommodations, the outcome of the hearing would not have been different.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1991) § 10-186 (b) (1) was amended by Public Acts 1992, No. 92-170 to provide: “The party claiming ineligibility for school accommodations shall have the burden of proving such ineligibility by a preponderance of the evidence, except in cases of denial of schooling based on residence, the party denied schooling shall have the burden of proving residency by a preponderance of the evidence.” This amendment does not affect the present case.


author: Heiman, J.

text:
    Anthony D’Addio v. Connecticut Insurance Guaranty Association Connecticut Insurance Guaranty Association v. Anthony D’Addio
    (11410)
    Daly, Heiman and Freedman, Js.
    Argued February 16 —
    decision released March 30, 1993

      Ira B. Grudberg, with whom, on the brief, was Alice S. Miskimin, for the appellant (plaintiff in the first case, defendant in the second case).

      Philip F. von Kuhn, for the appellee (defendant in the first case, plaintiff in the second case).
   Heiman, J.

The plaintiff appeals from the trial court’s judgment vacating the arbitrators’ award. On appeal, the plaintiff asserts that the trial court improperly (1) vacated the arbitrators’ unanimous finding that he was insured under his mother’s automobile insurance policy by (a) misapplying the substantial evidence rule and (b) failing to follow Connecticut precedent on what constitutes a family member’s residency in a household, and (2) reviewed de novo the arbitrators’ damage award. The plaintiff also asserts that (3) he is entitled to prejudgment interest from the date of the arbitration award and (4) the trial court properly refused to vacate the arbitrators’ award on the ground of the arbitrators’ misconduct. We reverse the trial court’s judgment.

The following facts are necessary for a resolution of this appeal. On December 23,1988, while operating his employer’s motor vehicle, the plaintiff was involved in an accident with an uninsured motorist. The accident gave rise to a claim for uninsured motorist benefits and a claim for workers’ compensation. The uninsured motorist claim was brought against American Universal Insurance Company (AUIC) and was based on an automobile policy issued to the plaintiff’s mother. AUIC was placed in receivership and Connecticut Insurance Guaranty Association (CIGA) was substituted as the defendant.

Under the terms of the policy and General Statutes § 38a-336 (c), the plaintiff’s claim for uninsured motorist benefits was subject to arbitration before a three member panel. The defendant unsuccessfully moved that the arbitration be continued until the time that the plaintiff had been awarded workers’ compensation benefits for the permanent partial disability that he claimed arose out of the accident.

During the course of the arbitration hearing, the parties presented the following evidence. The plaintiff lived on the third floor of his mother’s house. At the time of the arbitration, the plaintiff was thirty-two years old and had lived on the third floor since the age of sixteen. The plaintiff testified at the hearing that he moved to the third floor because he “got fed up with [his family’s] arguing. [He] had to go somewhere. [He] was out.” There was conflicting testimony as to whether the plaintiff had running water on the third floor or had his own kitchen or bathroom facilities. The plaintiff paid rent to his mother and shared a stairway to gain access to the third floor. He occasionally drove his mother’s car to work when it was too rainy to ride his bicycle.

The parties also stipulated that the plaintiff had received $16,387.32 in medical expenses and $28,736.25 in temporary total benefits, for a total of $45,123.57 from the workers’ compensation carrier. The plaintiff’s attorney stated that the plaintiff’s physician assessed his injuries and found that the plaintiff had a 15 percent permanent partial disability of his cervical spine and a 7.5 percent disability of his lumbar spine. The parties stipulated that using the plaintiff’s physician’s assessment and computing an award under the workers’ compensation statutes, 100 percent disability of the neck entitles a claimant to 175 weeks at the prevailing compensation rate and that 100 percent disability of the back entitles a claimant to 520 weeks at the prevailing compensation rate. They further stipulated that the plaintiff’s compensation rate was $422.07. Under these stipulations, the plaintiff’s claim would be $16,460.73 for his back injury and $9232.78 for his neck injury.

On February 14, 1992, the arbitrators unanimously found the issue of liability and coverage in favor of the plaintiff. They also found the following: the claimant sustained permanent injuries and damages as a result of an automobile accident in the course of his employment at United Illuminating; United Illuminating provided $20,000 in uninsured motorist coverage and that that coverage is primary; the available uninsured motorist coverage afforded by CIGA is $299,900; and the defendant is entitled to a credit of $25,123.57, which is the balance of the workers' compensation credit agreed on by the parties after applying the first $20,000 to the primary coverage. The arbitrators, however, declined to find the amount of any award the workers’ compensation commissioner might make and to credit that amount of workers’ compensation yet to be paid against any amount due to the plaintiff from the defendant.

The plaintiff moved to confirm and the defendant moved to vacate the award. Upon motion, the trial court consolidated the cases. The court found that the record lacked substantial evidence to support the arbitrators’ conclusion that the plaintiff was a resident of his mother’s household. The trial court vacated the arbitrators’ award. This appeal ensued.

I

The plaintiff asserts that the trial court improperly vacated the arbitrators’ unanimous finding that he was insured under his mother’s automobile insurance policy by misapplying the substantial evidence rule and by failing to follow Connecticut precedent on what constitutes a family member’s residency in a household. We agree.

When reviewing an arbitration panel’s factual findings considering underinsured motorist coverage, our courts’ standard of review is whether the arbitrators’ findings are supported by substantial evidence. Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 21, 615 A.2d 1032 (1992); Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 660-61, 591 A.2d 101 (1991). The test in this context requires that a court determine whether substantial evidence exists in the “record to support the [arbitration panel’s] findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Substantial evidence will be found to exist if the . . . record supplies a substantial basis of fact from which the court reasonably can infer the fact in issue.” (Internal quotation marks omitted.) Lawrence v. New Hampshire Ins. Co., 29 Conn. App. 484, 490, 616 A.2d 806 (1992), quoting Chmielewski v. Aetna Casualty & Surety Co., supra, 660-61 n.15. A reviewing court must defer to the arbitrators’ right to credit testimony in whole, in part, or not at all. See Chmielewski v. Aetna Casualty & Surety Co., supra, 661 n.15. The fact that a possibility exists that two inconsistent conclusions may be drawn from the evidence does not prevent the arbitrators’ finding from being supported by substantial evidence.

To find that the plaintiff was covered by his mother’s policy, the arbitrators needed to find that he was a resident in her household. In defining the terms “resident of the same household,” our Supreme Court quoted Webster’s Third New International Dictionary which defined “household” as: “ ‘[TJhose who dwell under the same roof and compose a family: a domestic establishment; specif: a social unit comprised of those living together in the same dwelling place.’ ” Griffith v. Security Ins. Co., 167 Conn. 450, 454, 356 A.2d 94 (1975); Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 686, 590 A.2d 957 (1991). On the basis of this definition, our courts have determined that there are two criteria that must be met for a person to qualify as a “resident of the same household.” Lawrence v. New Hampshire Ins. Co., supra, 492. We determine first whether the evidence in this case was sufficient to establish that the plaintiff had a close, family-type relationship with the members of the D’Addio household. Middlesex Mutual Assurance Co. v. Walsh, supra; Lawrence v. New Hampshire Ins. Co., supra. We consider second whether the facts in this case were sufficient to establish that the plaintiff actually lived in the D’Addio household. Middlesex Mutual Assurance Co. v. Walsh, supra; Lawrence v. New Hampshire Ins. Co., supra.

The arbitrators’ finding of coverage here was supported by substantial evidence. On the basis of the record before it, the arbitrators could have reasonably found that the plaintiff was a resident in his mother’s household. They reasonably could have found that the fact that the plaintiff shared facilities with his mother, used her automobile, lived in the same physical premises, lived there his entire life, and shared a mailing address were sufficient to establish a close family-type relationship with the inhabitants of that household and that the plaintiff actually lived in the household. The trial court’s role was not to draw inferences from evidence presented to the arbitrators, but rather to discover whether the arbitrators’ findings of fact were reasonable.

Our independent review of the record presented to the trial court persuades us that the critical factual determination, that the plaintiff was a resident of the household, was supported by substantial evidence. See Chmielewski v. Aetna Casualty & Surety Co., supra, 660-61.

II

The plaintiff also asserts that the arbitrators’ damage award was final, binding, and not reviewable for errors of law or fact. He contends that in addition to vacating the arbitrators’ award improperly, the trial court, in the event that its judgment was reversed, gratuitously supported C IGA’s claims for entitlement to credits for workers’ compensation payments paid and payable to the claimant. He asserts that in effect the trial court subjected the entire arbitration award to de novo review.

The plaintiff failed to raise this claim in the trial court. Accordingly, we do not review this claim raised for the first time on appeal. Rydingsword v. Liberty Mutual Ins. Co., supra, 9-10 n.1; Cahill v. Board of Education, 187 Conn. 94, 99-100, 444 A.2d 907 (1982). “Only in the most exceptional circumstances will this court consider a claim that was not raised in the trial court. . . . Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial. ... An exception may also be made where consideration of the question is in the interest of the public welfare or of justice between the parties.” (Citations omitted.) Cahill v. Board of Education, supra. We conclude that none of these exceptions are applicable in this case and thus we will not review this claim.

Ill

The plaintiff further asserts that he is entitled to prejudgment interest from the date of the arbitration award, February 14, 1992. Because the trial court vacated the arbitrators’ awards, it did not have the opportunity to adjudicate this claim. On remand, the trial court should address the issue of whether the plaintiff is entitled to prejudgment interest.

IV

The defendant asserts that the trial court’s judgment vacating the arbitrators’ award should be affirmed on the alternative ground that there was arbitrator misconduct in refusing to grant the defendant’s application for a continuance. This claim was premised on the fact that the arbitrators would not grant a continuance until the workers’ compensation commissioner determined the extent of the plaintiff’s permanent partial disability and the amount of his award, or in the alterative credit the defendant concerning the amount of any award the workers’ compensation commissioner may make. In light of our remand and our Supreme Court’s decision in Rydingsword v. Liberty Mutual Ins. Co., supra, 21, 22 n.21, this issue is moot.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment confirming the arbitrators’ finding of coverage, for further proceedings to determine whether the plaintiff is entitled to prejudgment interest and with direction to remand the case for arbitration in accordance with the insurance policy to determine only the amount to be deducted from the award to the plaintiff on account of any permanent partial disability compensable under the Workers Compensation Act.

In this opinion the other judges concurred.

       For purposes of this opinion, the claimant Anthony D’Addio will be referred to as the plaintiff. The insurer Connecticut Insurance Guaranty Association will be referred to as the defendant.

       The defendant asserts that this court could alternatively affirm the trial court’s judgment vacating the arbitrators’ award on the basis that there was misconduct on behalf of the arbitrators in refusing to grant its application for continuance. See Practice Book § 4013 (a) (1) (A).

       Prior to the arbitration, the workers’ compensation carrier conducted an independent medical examination and the examiner found that the plaintiff had a 10 to 15 percent permanent partial disability of his cervical spine. The examiner, however, did not make a finding as to the extent of the injury to the plaintiff’s lumbar spine.

       The plaintiff also moved for an award of prejudgment interest upon the confirmation of the arbitrators’ award.

       Recognizing that its judgment would be appealed, the eourt also found that the arbitrators failed to give the defendant full credit for the $45,123.57 in medical expenses and temporary total benefits. The court further found that the arbitrators failed to apply a credit for future workers’ compensation benefits that the plaintiff may receive. It did not, however, address the defendant’s claim regarding the arbitrators’ misconduct for failure to grant a continuance or the plaintiff’s claims for the awarding of prejudgment interest.

       The issue is thus not whether the trial court would have found as the arbitrators did, but whether the arbitrators’ finding is supported by substantial evidence.

       We note that it is somewhat disingenuous for the plaintiff to make this claim on appeal. When the plaintiff moved to confirm the arbitration award, he also moved in the alternative that “the award be corrected to the sum of $299,900.00, as the arbitrators gave credit in the amount of $25,123.57 for compensation benefits paid, when such benefits should have gone to reduce the covered claim which was in an amount far in excess of the statutory limit of liability of defendant Connecticut Insurance Guaranty Association.” The plaintiff thus requested at trial what he seeks now to claim to be error, that the trial court conduct a de novo review of the damage award.

       General Statutes § 37-3a provides for the award of interest on money detained after it becomes due and payable. Pursuant to this statute, a trial court has discretion to award prejudgment interest on an arbitration award retroactively to a date prior to the date of the trial court’s judgment affirming the award. Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 701-702, 590 A.2d 957 (1991); Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 675-76, 591 A.2d 101 (1991). Implicit in that determination is the conclusion that the prior date may be the date of the arbitration award. The trial court has the discretion under General Statutes § 37-3a to determine when the amount recoverable was payable under the policy and whether the insurance company wrongfully detained that money. Middlesex Mutual Assurance Co. v. Walsh, supra.

       In its memorandum of decision, the trial court did not address this issue or the issue of entitlement to prejudgment interest, which were both raised at trial, because it vacated the award due to what it found to be a lack of substantial evidence supporting the issue of coverage.


author: Landau, J.

text:
    Ralph H. Cassella v. Department of Liquor Control
    (11337)
    Landau, Heiman and Schaller, Js.
    Argued January 6 —
    decision released March 30, 1993

      Jeremiah J. Morytko, for the appellant (plaintiff).

      Martin Rosenfeld, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (state).
   Landau, J.

The plaintiff appeals from the trial court’s judgment dismissing his appeal, for lack of subject matter jurisdiction, from the defendant’s denial of renewal of the plaintiffs liquor permit. On appeal, the plaintiff claims that a motion for reconsideration tolls the forty-five day appeal period under General Statutes § 4-183 et seq. We affirm the judgment of the trial court.

The following facts are necessary to the resolution of this appeal. In 1979, the defendant department of liquor control issued the plaintiff a liquor permit. On March 11, 1991, the plaintiff filed an application for renewal of this permit. On April 4, 1991, the defendant received a remonstrance regarding the plaintiff and scheduled a hearing regarding the renewal of the plaintiff’s liquor permit. Hearings were conducted on May 16 and May 21,1991, and the defendant issued a decision denying the renewal of the plaintiff’s permit on June 6, 1991. On June 20,1991, the plaintiff filed a petition for reconsideration pursuant to General Statutes § 4481a. On June 27,1991, the defendant denied the plaintiff’s petition for reconsideration. The plaintiff appealed the denial of the renewal of the liquor permit to the Superior Court pursuant to General Statutes § 4-183 (a).

“Appeals to courts from administrative agencies exist only under statutory authority. . . . A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. . . . Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal.” (Citations omitted; internal quotation marks omitted.) Citizens Against Pollution Northwest, Inc. v. Connecticut Siting Council, 217 Conn. 143, 152, 584 A.2d 1183 (1991). “ ‘The failure to file an appeal from an administrative decision within the time set by statute renders the appeal invalid and deprives the courts of jurisdiction to hear it.’ ” Ierardi v. Commission on Human Rights & Opportunities, 15 Conn. App. 569, 574, 546 A.2d 870, cert. denied, 209 Conn. 813, 550 A.2d 1082 (1988). The procedure for appeals from administrative agency decisions pursuant to General Statutes § 4-183 have been substantially changed over the past four years. Prior to 1988, a request for reconsideration under General Statutes (Rev. to 1987) § 4-183 (b),* * “postpone[d] the running of the appeal period . . . until the decision thereon . . . so long as the request is filed with the agency within the period for the commencement of an administrative appeal by service upon the proper parties thereto.” (Citations omitted; internal quotation marks omitted.) Id., 575.

In 1989, the Uniform Administrative Procedure Act, codified in General Statutes §§ 4-166 through 4-189, underwent a major revision. Among the revisions were the procedures for the appeal of an administrative agency decision pursuant to § 4-183 (c). These revisions removed the capability to toll the appeal period by filing a petition for reconsideration with the agency. The legislative history of the revisions as contained in the report and recommendations of the law revision commission states that “[a] petition for reconsideration is not a prerequisite for seeking judicial review (section 24) and does not stay the time to appeal. ” (Emphasis added.) Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1988 Sess., p. 384.

The decision of the defendant was rendered on June 6,1991. There is no indication in the record when the decision was mailed. The plaintiff, however, received notice of the decision on June 12,1991. Even assuming that the decision was mailed on June 12, 1991, the appeal must have been filed “[wjithin forty five days after mailing of the final decision,” or no later than July 27, 1991. The plaintiff served notice of the appeal on the defendant on August 7, 1991, and filed the appeal in the Superior Court on August 9, 1991. Therefore, the appeal was untimely and the dismissal by the trial court was appropriate.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 4-181a provides in pertinent part: “(a) (1) Unless otherwise provided by law, a party in a contested case may, within fifteen days after the personal delivery or mailing of the final decision, file with the agency a petition for reconsideration of the decision on the ground that: (A) An error of fact or law should be corrected; (B) new evidence has been discovered which materially affects the merits of the case and which for good reasons was not presented in the agency proceeding; or (C) other good cause for reconsideration has been shown. Within twenty-five days of the filing of the petition, the agency shall decide whether to reconsider the final decision. The failure of the agency to make that determination within twenty-five days of such filing shall constitute a denial of the petition. (2) Within forty days of the personal delivery or mailing of the final decision, the agency, regardless of whether a petition for reconsideration has been filed, may decide to reconsider the final decision. (3) If the agency decides to reconsider a final decision, pursuant to subdivision (1) or (2) of this subsection, the agency shall proceed in a reasonable time to conduct such additional proceedings as may be necessary to render a decision modifying, affirming, or reversing the final decision.”

       General Statutes § 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

       General Statutes (Rev. to 1987) § 4-183 (b) provided in pertinent part: “Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon. . . .”

       General Statutes § 4-183 (c) provides: “Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the attorney general in Hartford and file the appeal with the clerk of the superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the person appealing resides or, if that person is not a resident of this state, with the clerk of the court for the judicial district of Hartford-New Britain. Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal. Service of the appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a sheriff or other officer, or (2) personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.”

       The legislative history does provide that if “the reconsideration petition is granted, the agency’s subsequent action affirming, modifying, or reversing the final decision is ... a new final decision to which a new appeal period applies.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1988 Sess., p. 384.