author: Dupont, C. J.

text:
    Dana Hallenbeck v. St. Mark the Evangelist Corporation
    (10908)
    Dupont, C. J., Foti and Freedman, Js.

      Submitted on the briefs September 15
    decision released December 1, 1992

      Patrick G. Alair, assistant corporation counsel, filed a brief for the appellant town of West Hartford.

      Brian B. Staines filed a brief for the appellee (plaintiff).
   Dupont, C. J.

The principal issue to be decided on this appeal is whether the trial court incorrectly determined that the town of West Hartford had not properly intervened as a party plaintiff, pursuant to the workers’ compensation law; General Statutes § 31-293 (a); in this action brought by the plaintiff against the defendant for injuries the plaintiff had sustained while in the course of his employment for the town. We agree that the trial court’s determination was incorrect.

The town, within thirty days of the notice to it of the suit by the plaintiff, simultaneously filed two pleadings, one entitled “Intervention by Town of West Hartford” and the other, “Intervening Complaint.” The plaintiff contends that neither he nor the defendant received these pleadings, although the town’s attorney certified that they were sent to counsel for the plaintiff and directly to the defendant. The town did not file a pleading entitled “motion to intervene,” requesting the court’s permission to intervene.

Approximately fourteen months after the filing of its intervention and intervening complaint, the town realized that the named parties were actively litigating the matter without its involvement. The town then filed an appearance form. Three months later, the plaintiff filed an objection to the town’s intervention, asserting that the town had not properly intervened. The bases for the plaintiff’s objection were that the town had failed to file the requisite motion to intervene, and that this failure was not cured by the filing of the appearance form. The plaintiff therefore requested that the town’s “Intervening Complaint” be stricken.

The trial court denied the plaintiffs objection to the town’s intervention. The trial court’s memorandum states in its entirety: “If, as the plaintiff contends, the alleged intervening plaintiff has not properly intervened, there is nothing to object to at this time. The filing of an appearance does not give rise to a new motion to intervene.”

The town thereupon filed a motion for clarification, contending that the plaintiff and the town disagreed as to the effect of the trial court’s decision. In response, the trial court issued the following clarification: “The Town of West Hartford has not procedurally intervened. The Town has filed an appearance by counsel. The plaintiff objected to the Town appearing to intervene by virtue of the filed appearance by counsel for the Town. The court previously held and still so holds that filing of an appearance slip is not a formal intervention in the case. Therefore there is nothing to rule on.”

The town then filed a motion for order seeking “an order . . . declaring the status of the Town’s intervention in the present action.” The court responded to the motion for order by indicating that the town had not properly intervened because the town had made no motion to intervene. The town now appeals from the trial court’s decision “declaring the Town of West Hartford failed to intervene.”

Preliminarily, we note that the trial court’s determination that the town failed to intervene constitutes a final judgment for the purposes of appeal. “The test for determining whether an order denying a motion to intervene constitutes a final judgment is whether the would-be intervenor can make a colorable claim to intervention as a matter of right.” (Internal quotation marks omitted.) Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 536, 582 A.2d 1174 (1990). It is clear that, had the town made a motion to intervene and had the motion been denied, the town could then have appealed from this denial because General Statutes § 31-293 (a) specifically grants an employer the right to intervene if done within thirty days of notice of the commencement of the action. Id., 536-37; Rodia v. Tesco Corporation, 11 Conn. App. 391, 393, 527 A.2d 721 (1987). Here, because the town never made a motion to intervene, the trial court obviously never denied such a motion. By refusing to recognize the town’s attempts to intervene, however, the practical effect of the trial court’s rulings was the same as if the town had moved to intervene and the trial court had denied the motion. Accordingly, the town has appealed from a final judgment and we have jurisdiction to decide the merits of the appeal. Practice Book § 4000.

When determining whether a party has complied with the requirements of a particular statute, our inquiry always begins with the words of the statute itself. See, e.g., Winslow v. Lewis-Shepard, Inc., supra, 537; Kinney v. State, 213 Conn. 54, 60, 566 A.2d 670 (1989). General Statutes § 31-293 (a) states that in a third party suit initiated under the workers’ compensation law, a plaintiff’s employer “may join as a party plaintiff in the action within thirty days after such notification [of the commencement of the action], and, if the [employer] fails to join as a party plaintiff, his right of action against the [defendant] shall abate.” Unlike the general intervention statute, General Statutes § 52-102, which expressly requires that such intervention be accomplished by motion, § 31-293 (a) contains no such requirement. Section 31-293 (a) simply states that any proper party attempting to intervene “may join . . . in the action” conditioned only on the requirement that such a “joining” be accomplished within thirty days of notice of the original suit.

The plaintiff ignores § 31-293 (a) and instead focuses on § 52-102, which, as noted, requires the prospective intervenor to move the court for permission to intervene. Conversely, the town argues that under § 31-293 (a) it had an absolute right to intervene and was not required to make a motion in order to exercise this right. The town further argues that if a motion were the only acceptable method of intervening in this type of action, then Practice Book Form 804.17 would serve no purpose.

It is well established that “[a]s a matter of statutory construction, specific statutory provisions are presumed to prevail over more general statutory provisions dealing with the same overall subject matter.” (Internal quotation marks omitted.) State v. Champagne, 206 Conn. 421, 435, 538 A.2d 193 (1988); see also 2B J. Sutherland, Statutory Construction (5th Ed. 1992) § 51.02. It is an equally well established maxim that “in the absence of ambiguity, courts cannot read into statutes, by construction, provisions which are not clearly stated.” Carothers v. Capozziello, 215 Conn. 82, 129, 574 A.2d 1268 (1990); see also 2A J. Sutherland, Statutory Construction (5th Ed. 1992) § 47.38. Applying these principles, we determine that § 31-293 (a) rather than § 52-102 controls in this case. As we observed previously, § 31-293 (a) does not expressly predicate an employer’s right to intervene upon the making of a motion, and we decline, in accordance with the second rule of construction, to read such a requirement into § 31-293 (a).

Furthermore, General Statutes §§ 52-102 and 31-293 (a) have different purposes. Section 52-102 requires a court to determine whether a putative intervenor is a party necessary for a complete determination or settlement of a question involved in the case, whereas § 31-293 (a) requires no such determination. Section 31-293 (a) gives an employer a statutory right to intervene in a case in which the employer would not usually be a necessary party. The employer’s only interest in the litigation is a statutory right to reimbursement of money paid to an employee, should the employee prevail in an action against a third party tortfeasor.

It is undisputed that under § 31-293 (a) the town had an absolute right to intervene and the trial court was powerless to deny such an intervention as long as proper application was timely made. See also Horton v. Meskill, 187 Conn. 187, 192, 445 A.2d 579 (1982) (noting that there are “cases which make clear that intervention of right exists in Connecticut practice,” citing Ricard v. Stanadyne, Inc., 181 Conn. 321, 435 A.2d 352 [1980]). The parties’ disagreement pertains to what constitutes a proper application. The plaintiff concedes that had the town made a timely motion to intervene the court would have been required to grant it. The plaintiff argues, however, that a motion is the only method by which such intervention may be accomplished.

The word motion implies that a court must take some form of action. Practice Book § 197 defines the term “motion” to mean “any application to the court for an order, which application is to be acted upon by the court or any judge thereof. . . .” Here, court action is not required because an employer’s right to intervene is absolute if the employer makes a timely application, and if an employee-employer relationship and an injury for which compensation is payable under the provisions of the Workers’ Compensation Act are alleged.

There are many examples in the Practice Book of pleadings and filings that do not require court assistance or permission. These pleadings and filings do not require a motion to the court. For example, the filing of a complaint, cross complaint, or answer does not require a motion to obtain permission of the court, nor is any action required by the court. See also Practice Book §§63 through 66 (appearances); Practice Book § 147 (request to revise); Practice Book § 223 (interrogatories); Practice Book § 227 (requests for production, inspection and examination); Practice Book § 238 (requests for admission). In these instances, unless a party requests the court to adjudicate whether a claimed defect in the pleading or filing exists or whether an objection to the pleading or request is valid, there is no need for court action.

In the case of party interventions pursuant to General Statutes § 31-293 (a), no action by the court is necessary unless a party disputes the timeliness of the intervention; Winslow v. Lewis-Shepard, Inc., supra; Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 489, 528 A.2d 826 (1987); Ricard v. Stanadyne, Inc., supra; or claims the absence of an employee-employer relationship; Johndrow v. State, 24 Conn. App. 719, 721, 591 A.2d 815 (1991); or claims the lack of an injury for which compensation is payable under the provisions of the Workers’ Compensation Act. As with any pleading made by a party without prior court approval, the party subjected to the pleading can seek court intervention by filing either an objection to the pleading, or a motion to dismiss or a motion to strike. Otherwise, the pleading remains intact and self-effectuating. We conclude that it is not necessary to make a motion for permission to intervene to effectuate intervention under § 31-293 (a).

Our resolution of this issue does not mean that intervention pursuant to § 31-293 (a) cannot also be accomplished by motion; a motion is not, however, the sole pleading that may be employed to effectuate the intervention. Any motion made by a proper party within thirty days of notification of the commencement of the action will also fulfill the requirements of § 31-293 (a). In Skitromo v. Meriden Yellow Cab Co., supra, Ricard v. Stanadyne, Inc., supra, and Winslow v. Lewis- Shepard, Inc., supra, it was assumed without discussion that had a motion to intervene been filed within thirty days, the intervention provided for in § 31-293 (a) would have been accomplished. A motion to intervene cannot be denied if made by a proper party within thirty days, and serves as notice that intervention is being asserted. The same notice is provided by the “Intervening Complaint” and “Intervention” used by the town in this case, and those pleadings are thus permissible. Under the precise wording of General Statutes § 31-293 (a), an employer “may join” the action within thirty days of notification of the action. If an employer chooses to assert intervention by way of a timely motion, the employer has “joined” the action upon the making of the motion within thirty days, regardless of when such motion was “granted.”

Finally, we address the plaintiff’s allegations that neither he nor the defendant received notice of the town’s “Intervention” or “Intervening Complaint.” It is undisputed that counsel for the town filed these documents with the court and certified that copies were sent to counsel for the plaintiff and directly to the defendant. See Practice Book § 123. Counsel’s certification raises a rebuttable presumption that notice was sent to all parties. See Hartford Electric Light Co. v. Tucker, 183 Conn. 85, 90, 438 A.2d 828, cert. denied, 454 U.S. 837, 102 S. Ct. 143, 70 L. Ed. 2d 118 (1981). Consequently, as the plaintiff failed to offer proof to rebut this presumption, we must assume that counsel for the town provided proper notice as required by Practice Book § 121. We therefore conclude that the trial court should not have ruled that the town’s pleadings were a nullity.

The trial court’s determination that the town failed to intervene is set aside and the case is remanded with direction to order that the town properly intervened.

In this opinion the other judges concurred.

       General Statutes § 31-293 (a) provides in pertinent part: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of such injured employee against such other person .... If either such employee or such employer brings such action against such third person, he shall forthwith notify the other, in writing, by personal presentation or by registered or certified mail, of such fact and of the name of the court to which the writ is returnable, and such other may join as a party plaintiff in such action within thirty days after such notification, and, if such other fails to join as a party plaintiff, his right of action against such third person shall abate.”

       The pleadings filed by the town were attached to each other and were modeled after Practice Book Form 804.17, entitled “Intervention under Workmen’s Compensation Act by Employer in Action Brought by Employee.” The town followed the form exactly and its counsel signed the Intervening Complaint as “Intervening Plaintiff,” giving a juris number and address. Additionally, Form 804.17 specifically refers to General Statutes § 31-293.

       The filing of an appearance form by the town was not required in this case. Pursuant to Practice Book § 64 (a), the town had already entered an appearance upon the filing of the intervention and intervening complaint containing counsel’s name, juris number, and mailing address. In fact, on the appearance form filed by counsel for the town, counsel noted that the current filing of his appearance was in addition to his appearance that was already on file.

       The town filed a reply to the plaintiff s objection, but it was not received by the trial court until three days after the court had already acted on the plaintiff’s objection.

       The court’s articulation of its decision states in its entirety: “A review of the file discloses the filing of an Intervening Complaint by the Town of West Hartford (Town) on April 26, 1990. The complaint contained a certification by the Town’s Attorney of notice to other counsel of record. No motion accompanied the complaint requesting the court’s permission to intervene and join the plaintiffs cause of action. The Town’s Attorney filed an appearance on June 20, 1991, over one year from the filing of the intervening complaint. The practice in Connecticut is to file a motion addressed to the court where a party seeks to intervene in a present action. Ricard v. Stanadyne, Inc., 181 Conn. 321, 322-23 [435 A.2d 352] (1980). Where a party seeks to intervene in a third party action, that party must ‘file a timely motion to intervene . . . .’ Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 489 [528 A.2d 826] (1987).
      “Where, as here, the intervening party merely filed an intervening complaint without complying with our rules of practice, the Town’s intervening complaint is a nullity.”

       The result would be the same if we analyzed this issue under the two-prong test for appealability of interlocutory orders enunciated in State v. Curdo, 191 Conn. 27, 31, 463 A.2d 566 (1983). Curdo holds that “[a]n otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id. Clearly, the trial court’s refusal to recognize the town’s attempted intervention in this case effectively concluded the town’s rights in the litigation. See McClendon v. Soos, 18 Conn. App. 614, 616-17, 559 A.2d 1163 (1989).

       General Statutes § 52-102 provides in relevant part: “Upon motion made by any party or nonparty to a civil action, the person named in the party’s motion or the nonparty so moving ... (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein . . . .”


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Brooklyn Savings Bank v. Martin H. Frimberger et al.
    (11068)
    Daly, Landau and Cretella, Js.
    Argued October 2
    decision released December 8, 1992

      Kenneth R. Davis, for the appellant (defendant John T. O’Reilly).

      Steven A. Tomeo, for the appellee (plaintiff).
   Daly, J.

This is an appeal from the trial court’s denial of the defendant John T. O’Reilly’s motion filed pursuant to General Statutes § 49-15, to reopen the judgment of strict foreclosure and extend the law date. The defendant claims that in denying the motion, the trial court improperly failed (1) to consider the parties’ agreement for a lengthy and renewable law date, (2) to consider the reasons underlying the trial court’s decisions to order previous extensions, and (3) to permit the defendant to testify about his ability to redeem. The plaintiff claims that this court lacks jurisdiction because the appeal is moot.

The following facts are relevant to the disposition of this appeal. On January 27, 1989, Martin Frimberger and the defendant executed a promissory note and mortgage deed in favor of the Brooklyn Savings Bank in the amount of $380,000 on investment property located in Canterbury. On October 24, 1989, the Brooklyn Savings Bank instituted foreclosure proceedings. The parties agreed that the defendant would not oppose foreclosure proceedings provided that the law date was set far enough into the future to allow the defendant the opportunity to obtain financing and to avoid foreclosure. On September 10, 1990, the trial court rendered a judgment of strict foreclosure and by agreement of the parties the court set a law date of February 26, 1991. On February 25, 1991, the law date was extended to May 28, 1991, pursuant to the defendant’s request in his motion to open the judgment. The trial court, Potter, J., subsequently extended the law date three more times to July 29,1991, to October 28, 1991, and finally to January 27, 1992. On August 5, 1991, the trial court granted a motion to substitute the Federal Deposit Insurance Corporation (FDIC) for the plaintiff Brooklyn Savings Bank because the FDIC was the successor in interest to the Brooklyn Savings Bank. The date of reversion was to be January 29, 1992. On January 21, 1992, the defendant filed a motion to reopen the judgment and extend the law day for an additional ninety days. The trial court, Sferrazza, J., denied the motion on January 27, 1992, and this appeal was taken on January 31, 1992.

I

We first consider the plaintiffs claim that this appeal is moot. It argues that General Statutes § 49-15 prescribes that title to the investment property became absolute in the plaintiff on January 29,1992, when the defendant failed to redeem. We disagree.

Section 49-15 sets forth the statutory right to file a written motion to reopen a judgment of foreclosure. The defendant moved to reopen the foreclosure judgment and extend the law day on January 21,1992. The motion was denied on January 27 and written notice of this decision was sent to the parties on January 30, 1992. The defendant filed a timely appeal in accordance with Practice Book § 4009 on January 31,1992, well within the twenty day period from the issuance of the notice of the trial court’s denial of the motion.

The defendant challenges the trial court’s order denying his motion to reopen the judgment and extend the law date so as to provide the defendant with more time to arrange financing. The defendant does not challenge the trial court’s original judgment of strict foreclosure. Because the trial court denied the defendant’s motion to reopen the judgment, the defendant is prohibited from filing another motion to reopen judgment and extend the law day. Thus, the denial of the motion constitutes an appealable final judgment under Practice Book § 4009 because it is a final adjudication of the merits of this case. See Morelli v. Manpower, Inc., 29 Conn. App. 132, 137, 612 A.2d 818 (1992).

It is important to note that the mere filing of a motion to reopen the judgment does not result in an automatic stay. Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 349, 579 A.2d 1054 (1990). Rather, it is the trial court’s decision denying the defendant’s motion to reopen the judgment that resulted in the entry of an appealable final judgment invoking the automatic stay under § 4046. Thus, an automatic stay went into effect when the court rendered its decision on the motion, not when the motion to reopen the judgment was filed. The stay remains in effect until the disposition of this appeal because the defendant’s appeal was timely filed during the appeal period on January 31, 1992. See Practice Book § 4009. The trial court did not order a termination of the automatic stay, nor did the plaintiff move for a termination under § 4046.

Had the automatic stay provided for in § 4046 been terminated, the outcome of this case may have been different. Thus, this case differs from Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989), on which the plaintiff relies. In that case, the trial court had terminated the automatic stay in effect after the timely appeal had been filed. By the time the defendant’s appeal was disposed of by this court, the law date had passed, the defendant had failed to redeem, the “defendant’s equity of redemption was extinguished, and title to the property vested absolutely in the plaintiff . . . .” Id., 167. In Barclays Bank, the stay was no longer in effect to prevent the vesting of the title to the property before the appeal’s disposition. In the present case, the automatic stay has not been terminated and, therefore, the defendant’s appeal is not moot.

II

We now turn to the defendant’s claims. The defendant claims that the trial court improperly failed to give due deference to the parties’ original agreement to allow a long period of time before the law date and to the trial court’s reasons for granting previous extensions.

“ ‘A motion to open a judgment of strict foreclosure is addressed to the discretion of the trial court; see General Statutes § 49-15; and unless that discretion was abused or was based upon some error in law, the denial of the motion must stand.’ . . .” Centerbank v. Connell, 29 Conn. App. 508, 510, 616 A.2d 282 (1992), quoting New Haven Savings Bank v. Gurland, 3 Conn. App. 508, 508-509, 489 A.2d 1070 (1985).

Before granting the fourth request for an extension, the trial court, Potter, J., stated, “lam willing to give the defendant, O’Reilly, one more chance to move the property and thus I will open the judgment and I will extend the law days to January 27, 1992, and subsequent days. But, Mr. Davis, I say to you now, I give you fair warning now, sir — that it will require a substantial change of circumstances for me to grant an additional extension in January.” There is no indication that a substantial change in circumstances had occurred between the time of the trial court’s order in October, 1991, and the trial court’s decision not to reopen the judgment in January, 1992. Furthermore, the defendant did not establish that the agreement between the parties to provide the defendant the opportunity to arrange refinancing through the setting of a distant law date contemplated five extensions of the law date. The trial court had before it all of the facts relating to the previous extensions. Thus, on January 27,1992, the trial court found that after four extensions of the law date, the foreclosure should be concluded because the FDIC was entitled to a finality to the proceedings. The trial court did not abuse its discretion when it denied the defendant’s motion.

The defendant also claims that the trial court improperly denied him the opportunity to present testimony. The record is devoid of any indication that the defendant requested the opportunity to present testimony in the trial court on this matter. The defendant has failed to provide this court with an adequate record for review on this issue, and for this reason we need not consider this claim. Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 622, 495 A.2d 1006 (1985); Kaplan v. Kaplan, 186 Conn. 387, 388 n.1, 441 A.2d 629 (1982). It is nevertheless evident from the transcript that the defendant’s counsel adequately summarized the defendant’s position before the trial court.

In light of these circumstances, we are not persuaded that the trial court abused its discretion in refusing to reopen the judgment of foreclosure and to extend the law date a fifth time.

The judgment is affirmed and the case is remanded for the purpose of setting a new law date.

In this opinion the other judges concurred.

       Because the named defendant did not appeal, defendant refers in this opinion to the appellant John T. O’Reilly.

       Practice Book § 4009 provides in pertinent part: “The party appealing shall, within twenty days, except where a different period is provided by statute, from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal in the manner prescribed by Sec. 4012 . . . .”

       Practice Book § 4046 provides in pertinent part: “In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired . . . .”

       At the January 27, 1992 hearing, the trial court stated that it found that the defendant was not on the verge of executing a financial agreement. It is also interesting to note that the defendant’s motion to reopen the judgment and extend the law date, filed on January 21, 1992, specified the same reason for an extension in the exact same language of the four previous motions. In each of his motions to reopen the judgment of strict foreclosure and extend the law date, the defendant asked that the trial court grant the motion “because [the defendant] is in the process of refinancing and requires the additional time to obtain the commitment from a lender.”


author: O’Connell, J.

text:
    Max F. Brunswick et al. v. Inland Wetlands Commission of the Town of Bethany et al.
    (8983)
    O’Connell, Foti and Landau, Js.
    Submitted on briefs October 6
    decision released December 8, 1992

      Max F. Brunswick filed a brief for the appellants (plaintiffs).

      Gerald P. Dwyer filed a brief for the appellees (named defendant et al.).

      Mark L. Goodman filed a brief for the appellee (defendant DJM Development Corporation).
   O’Connell, J.

This case is now before us on remand from the Supreme Court. We previously considered the matter in Brunswick v. Inland Wetlands Commission, 25 Conn. App. 543, 596 A.2d 463 (1991), in which we dismissed the appeal because the plaintiff-attorney had signed his own writ. Consequently, we did not reach the merits of the plaintiffs’ claims. The Supreme Court granted certification, reversed our decision and remanded the case to this court for consideration of the merits of the plaintiffs’ appellate claims. Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 610 A.2d 1260 (1992).

The case involves an appeal to the trial court by abutting property owners from the decision of the Bethany inland wetlands commission (commission) granting the application of DJM Corporation (DJM) for a wetlands permit and subdivision approval. After a hearing on the merits, the trial court dismissed the appeal and the plaintiffs appealed to this court.

The plaintiffs claim that the trial court improperly failed to find (1) that there was an appearance of a conflict of interest, (2) that a commission member was disqualified from voting on the application, (3) that the commission’s decision was not timely, (4) that the commission chairman was prejudiced and denied the plaintiffs a fair hearing, (5) that the commission’s jurisdiction was defective, and (6) that the commission improperly considered technical issues. We reverse the decision of the trial court.

The commission granted DJM’s application for approval of a fourteen lot subdivision. The original ten plaintiffs, all of whom owned property abutting the land in question, appealed from the commission’s decision, claiming that the commission had acted illegally, arbitrarily and in abuse of its discretion in several respects. The trial court conducted an evidentiary hearing to determine whether one of the commissioners had an interest in the outcome of the decision. The trial court found that there was no conflict of interest with respect to the commissioner in question, nor was there an appearance of a conflict of interest, and also rejected all of the plaintiffs’ other claims.

I

The plaintiffs first claim that commissioner Wayne J. Crotta appeared to have a proprietary interest in the approval of DJM’s subdivision application and consequently should have been disqualified from voting on the application. The review of administrative agency proceedings is normally limited to the record and no evidence is taken by the trial court. Ierardi v. Commission on Human Rights & Opportunities, 15 Conn. App. 569, 584, 546 A.2d 870, cert. denied, 209 Conn. 813, 550 A.2d 1082 (1988). There is, however, an exception to this limitation in the case of an allegation of an illegality not apparent on the record. Id., 584-85. In that situation, the trial court may, in its discretion, permit additional evidence to be presented. Tarasovic v. Zoning Commission, 147 Conn. 65, 69-70, 157 A.2d 103 (1959). A claim of conflict of interest is a common ground for conducting such an evidentiary inquiry. See, e.g., Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 554, 552 A.2d 796 (1989).

The evidentiary hearing established that Crotta was in the construction business and that his construction company had built roads in two subdivisions in Bethany. Crotta, as a member of the commission, had voted for approval of both subdivisions. The first subdivision involved the application of the HEB Corporation. Crotta made the motion to approve the application and subsequently was given the contract to build the subdivision’s roads. Crotta testified that at the date of his testimony there was a $251,000 balance due on the HEB job and, further, that when he voted to approve the HEB subdivision, the possibility that he might get the contract to build its roads was in his mind. The second occurrence involved the Sabrina Corporation’s application for subdivision approval. Crotta knew that there was a possibility that he might get the contract to build this subdivision’s roads, but, nevertheless, voted to approve the application. Subsequently, Crotta built the roads for $172,000.

Crotta testified that seconding the motion for approval of the subdivision and voting in favor of it, in the present case, would not preclude him from subsequently bidding to get the road building business but that at the time of voting he had not yet decided if he would bid on the roadwork. He was asked if, in casting his affirmative vote, he reserved the right to bid on the subdivision’s roadwork. This question was never answered because the trial court sustained the commission’s objection to it. The plaintiffs excepted to the ruling but were not allowed to explain why they felt the question was appropriate. The plaintiffs included the trial court’s ruling on this question as one of their claims on appeal but failed to brief it. Claims mentioned but not adequately briefed are deemed abandoned. State v. Rumore, 28 Conn. App. 402, 410-11, 613 A.2d 1328 (1992).

On appeal, the plaintiffs concede that they did not demonstrate an actual conflict of interest on Crotta’s part, but contend that they showed an appearance of conflict that was sufficient to warrant reversal.

The bright line rule is that decisions of zoning authorities should be overturned if they have not been reached fairly and with proper motives. Thorne v. Zoning Commission, 178 Conn. 198, 423 A.2d 861 (1979); McMahon v. Board of Zoning Appeals, 140 Conn. 433, 101 A.2d 284 (1953); Devaney v. Board of Zoning Appeals, 143 Conn. 322, 122 A.2d 303 (1956); Longo v. Board of Zoning Appeals, 143 Conn. 395, 122 A.2d 784 (1956). “Public office is a trust conferred by public authority for a public purpose. The status of each member of the commission forbids him from placing himself in a position where private interests conflict with his public duty.” Mills v. Town Plan & Zoning Commission, 144 Conn. 493, 498, 134 A.2d 250 (1957). The law does not require proof that the interested commissioner actually acted wrongfully. The evil lies not in the wrongful act of the commissioner but “rather in the creation of a situation tending to weaken public confidence and to undermine the sense of security of individual rights which the property owner must feel assured will always exist. . . Daly v. Town Plan & Zoning Commission, 150 Conn. 495, 500, 191 A.2d 250 (1963).

While we do not “indulge in any assumption that public officers have acted dishonorably, we have declared it to be the policy of the law to keep public officials ‘so far from temptation as to insure the exercise of unselfish public interest.’ ” Id., 499, quoting Low v. Madison, 135 Conn. 1, 8, 60 A.2d 744 (1948). No room must be allowed for suspicion or dubiety. Greene v. Town of East Haddam, 51 Conn. 547, 559 (1884). The test is not whether the personal interest of the commissioner actually conflicted with his public duty but whether it might have conflicted. Josephson v. Planning Board, 151 Conn. 489, 495, 199 A.2d 690 (1964). It is axiomatic that “the appearance of impropriety created by a public official’s participation in a matter in which he has a pecuniary or personal interest is alone sufficient to require disqualification.” Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 649, 474 A.2d 752, cert. denied, 469 U.S. 932, 105 S. Ct. 328, 83 L. Ed. 2d 265 (1984).

The commission argues that since the trial court found that there was neither a conflict of interest nor the appearance of a conflict of interest, this court is powerless to overturn the finding. Because the trial court is the finder of facts and the sole judge of the credibility of witnesses, its factual findings can be overturned on appeal only if they are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220-21, 435 A.2d 24 (1980). The plaintiffs here, however, are not arguing Crotta’s credibility. They do not claim that Crotta was untruthful in testifying that he did not know if he would in fact bid on the roadwork in the subdivision when he seconded the application and voted in favor of it. Rather, they claim to have proved that in reserving the right to bid on the roadwork, Crotta created an appearance of a conflict of interest. We are, therefore, not concerned with a question of credibility of a trial court witness. We are concerned with whether the trial court reached an improper conclusion on the basis of the facts presented.

The evidence in this case shows that on two prior occasions Crotta, as a commission member, voted to approve subdivisions and subsequently obtained contracts for budding the roads in those subdivisions. Each of the contracts was considerable in size, the first exceeded $250,000 and the second was $170,000. With Crotta’s history of getting the road construction contracts in subdivisions that he voted to approve, it is irrelevant that at the moment he cast his vote he had not yet actually decided whether to seek the contract. The damage was done by creating such a strong appearance of a conflict of interest that the public will suffer a serious loss of confidence in the commission. Accordingly, we hold that the trial court’s decision must be reversed.

II

Even if the appearance of a conflict of interest had not required reversal, such would have been necessary under the plaintiffs’ second claim, also involving Crotta. Crotta attended all commission hearings except the hearing of October 17, 1988, at which DJM’s engineer and five other people spoke at length, some in opposition. Connecticut law does not deprive an absent commissioner from voting if he acquaints himself sufficiently with the issues raised, the evidence presented and the arguments made during his absence so that he can make an informed judgment. Dana-Robin Corporation v. Common Council, 166 Conn. 207, 216-17, 348 A.2d 560 (1974).

It was the plaintiffs’ burden to prove that Crotta did not sufficiently acquaint himself with the proceedings that took place during his absence. Loh v. Town Plan & Zoning Commission, 161 Conn. 32, 43, 282 A.2d 894 (1971). The plaintiffs satisfied this burden by introducing a copy of the October 17 transcript into evidence. It was unintelligible, replete with blanks and question marks indicating missing material. The unintelligibility of the transcript does not appear to be contested by the defendants.

Although reviewing the verbatim transcript is perhaps the best way for an absent commissioner to apprise himself of the proceedings during his absence, it is not the only way. For example, the commissioner might review a prepared summary of the evidence if one is available. See Dana-Robin Corporation v. Common Council, supra. In the present case, however, the trial court expressly relied on its finding that the minutes of the commission expressly stated that the November 21, 1988 meeting was adjourned to permit Crotta to review the tapes of the October 17 meeting. No other updating method was considered. Since these tapes were unintelligible, reviewing them could not sufficiently acquaint Crotta with what took place during his absence. The trial court’s finding that Crotta cast a proper vote because he had reviewed the tapes was without a proper basis and must be reversed.

In view of our disposition of the first two issues, we do not reach the remaining issues.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs’ appeal.

In this opinion the other judges concurred.

       The original plaintiffs were Max F. Brunswick, Linda Brunswick, James D. Kelly, Helen Kelly, Robert J. Downs, Jean Downs, George Reynolds, Eldona Reynolds, Edward Coppola and Jacqueline Coppola. Max Brunswick withdrew as a plaintiff prior to the trial court hearing and his connection with the case thereafter was solely as attorney for the remaining plaintiffs.

       The defendants are the Bethany inland wetlands commission, the Bethany town clerk, the Connecticut commissioner of environmental protection, and DJM Development Corporation. The commissioner of environmental protection did not appear before the Superior Court to contest the plaintiffs’ administrative appeal, nor has he filed an appearance in the present appeal.

       Arguments will not be had on an objection to evidence unless requested by the court; Practice Book § 288; and even then argument should precede the court’s ruling.

       Public hearings were held on September 19, 1988, October 17, 1988, and November 21, 1988, and, in addition, a meeting for discussion and vote was held on December 19, 1988.

       The transcript is undated making it difficult to determine which portion pertained to October 17. The deficiency on which the plaintiffs rely, however, is found throughout the transcript.

       The following is an example of the transcript:
      “Were there any soil tests made — types of soil?
      (Can’t understand).
      Relative to the boundaries of the wetlands?
      The boundaries of the wetlands........
      And who made the determination?
      ??????????
      When was this done, do you know?
      ?????????
      Two years ago?
      ??????????”


text:
    State of Connecticut v. Charles Christiano, Sr.
    (10587)
    Dupont, C. J., O’Connell and Freedman, Js.
    Argued September 15
    decision released December 8, 1992

      Howard Lawrence, with whom, on the brief, was Lawrence S. Dressier, law student intern, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cara F. Eschuk, deputy assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70. On appeal, the defendant claims that the trial court improperly (1) refused to admit evidence of the victim’s prior sexual conduct, and (2) admitted the testimony of an expert witness. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In June of 1989, the victim went to the Wolcott police and made a statement accusing the defendant, her foster father, of sexually abusing her over a four year period. At the time the victim, who is mildly retarded, made the statement she was twenty-one years old and continued to reside with the defendant’s family with whom she had been placed when she was eight years old. In the statement, the victim claimed that during the four year period from September, 1985, until May, 1989, the defendant had forcibly and repeatedly raped her.

I

The defendant first claims that evidence of the victim’s prior sexual conduct was admissible under General Statutes § 54-86f, commonly referred to as the rape shield statute. Specifically, the defendant argues that the victim’s prior sexual conduct was so relevant and probative as to be essential to the defense, and that the trial court’s refusal to admit such evidence violated the defendant’s constitutional rights to confront witnesses against him and to present witnesses in his own behalf. We disagree.

The defendant did not testify at trial. He, therefore, neither expressly denied having sexual intercourse with the victim nor asserted a defense of consent. In an effort to rebut evidence presented by the prosecution to prove the elements of the crime charged, the defendant made a motion to admit evidence of the victim’s prior sexual conduct. Pursuant to the rape shield statute, the trial court held an in camera hearing during which the defendant, his wife, his son, and his daughter testified as to the victim’s prior sexual conduct with other members of her foster family and with the victim’s two natural brothers. The defendant offered this evidence of prior sexual conduct to explain a statement made by him that had been allowed into evidence as an admission and to show consciousness of guilt. That statement, made to the defendant’s wife prior to trial, was: “You forgave Norman [the defendant’s son], why can’t you forgive me?” The defendant’s motion to strike the statement was denied. The defendant then sought to use evidence of the victim’s prior sexual conduct to demonstrate that the statement pertained to the motivation of the victim to accuse the defendant of sexual assault. Without such an explanation, the defendant claims that the jury would believe that the defendant and his son both had engaged in sexual relations with the victim. The trial court determined that this evidence was not relevant and denied the defendant’s motion to introduce the evidence to show motivation for a false accusation or to show the victim’s alleged pattern of sexual behavior within family settings.

General Statutes § 54-86 allows evidence of prior sexual conduct of a sexual assault victim only if it satisfies one of the four exceptions enumerated within the statute. State v. Rothenberg, 195 Conn. 253, 259-60, 487 A.2d 545 (1985); State v. Williams, 20 Conn. App. 263, 268, 565 A.2d 1365 (1989). The defendant contends that the victim’s prior sexual history was admissible under the fourth exception. General Statutes § 54-86f (4) provides that “no evidence of the sexual conduct of the victim may be admissible unless such evidence is . . . otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.” Evidence of prior sexual conduct is admissible under this statute “only if it fulfills the requirements of the statute that its probative value outweighs its prejudicial effect, within the context of the facts and circumstances of the case in which it arises.” State v. Butler, 11 Conn. App. 673, 682, 529 A.2d 219, cert. denied, 205 Conn. 806, 531 A.2d 938 (1987); State v. Cassidy, 3 Conn. App. 374, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985).

If the evidence offered by the defendant is not relevant to a critical issue in the case, “the defendant’s right to confront his accuser is not affected.” State v. Daniels, 8 Conn. App. 190, 192, 512 A.2d 936 (1986); State v. Cassidy, supra, 384-85. It is a reasonable exercise of judicial discretion to exclude evidence “the relevancy of which appears to be so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case.” State v. Ruffin, 206 Conn. 678, 684, 539 A.2d 144 (1988).

The defendant claims that the victim’s prior sexual history was relevant because her sexual behavior with other family members would have explained the defendant’s statement by providing motivation for the victim to accuse the defendant falsely of sexual assault. The statement could have been viewed by the jury as an admission by the defendant that he had engaged in sexual relations with the victim. It does not, however, indicate whether the sexual relations were consensual or forcible. The defendant contends that after he made the statement the victim felt that she had no choice but to accuse the defendant falsely of forcing her to have sexual intercourse with him because of her prior sexual history. He claims that the victim could not admit to consensual intercourse because she would have been forced out of the defendant’s household and that she could not deny sexual intercourse because she would not have been believed. The defendant further argues that if the jury knew of the victim’s prior sexual behavior, the jury could have inferred that the victim made the accusations “in order to excuse her undignified predicament.”

The defendant’s statement, however, had nothing to do with the victim’s accusations. There was no direct evidence to indicate that the statement was made prior to the time the victim went to the police to accuse the defendant. We can infer that the statement was made after the victim had gone to the police station in June, 1989, because it was made at a second meeting conducted by a priest in a church attended by all of the family members, the defendant, and the victim. The first meeting at the church was held on July 12, 1989. The victim could not have known in June, 1989, that the defendant would later make a statement that could be interpreted as an admission by him that intercourse had occurred. It is, therefore, difficult to conclude that the defendant’s statement provided any motivation for the victim to accuse the defendant falsely.

In ruling on the defendant’s motion to admit the prior sexual history of the victim, the trial court found that evidence of prior sexual conduct was not so relevant and material to a critical issue that excluding it would violate the defendant’s constitutional rights. The proffered testimony of Norman that the victim engaged in consensual sexual intercourse with him is not relevant to the victim’s motive in allegedly falsely accusing the defendant of forcible sexual intercourse. Norman’s testimony would not have been probative of the defendant’s innocence. Furthermore, the defendant had other alternatives to elicit evidence of motivation by the victim falsely to accuse the defendant. Not only did the defendant have other means available to him to present motivation evidence, but he also utilized those means. The defendant cross-examined the victim extensively as to her possible motives for accusing the defendant. The defendant also presented witnesses who testified that the victim had an ulterior motive. In light of the limited probative value of the evidence to the critical issue in this case, and the defendant’s opportunity to present testimony suggesting the victim’s motivation to make a false accusation, the exclusion of the victim’s prior sexual history was a proper exercise of discretion by the trial court and did not prejudice the defendant or deny him his constitutional rights to confront the witnesses against him and to present witnesses in his own behalf.

The defendant also contends that admission of the victim’s prior sexual history would have established that the victim engaged in a pattern of sexual behavior within family settings. The testimony about sexual behavior that the defendant sought to admit was too remote in time to be relevant to the issue of whether the defendant forcibly compelled the victim to engage in sexual intercourse. The alleged sexual encounters between the victim and her natural and foster brothers occurred at least five years and as many as twelve years prior to the time the alleged sexual encounters began with the defendant. The encounters with her natural brothers occurred before the victim was eight years old and were nonconsensual. The encounters with her foster brothers occurred when the victim was twelve or thirteen and were alleged to have been consensual and infrequent. The remoteness in time and the young age of the victim when these events occurred negate their relevance. The victim’s prior sexual history with family members, within the context and circumstances of this case, does not establish any pattern, much less a pattern of sexual behavior with family members, and, therefore, is irrelevant to the critical issue in this case of whether the defendant was guilty or not guilty pursuant to a substitute information that charged him with two counts of forcible sexual intercourse.

The defendant did not establish how the victim’s prior sexual history was “so relevant and material” to the critical issue of whether the defendant sexually assaulted the victim that it should constitute an exception to the inadmissibility of evidence of prior sexual conduct as provided in General Statutes § 54-86f (4). The trial court correctly concluded that the victim’s prior sexual conduct had no bearing on what occurred between the victim and the defendant or on the motivation of the victim to bring sexual assault charges. We conclude, therefore, that the trial court did not abuse its discretion in excluding this evidence, and that the defendant’s constitutional rights were not violated.

II

The defendant next claims that the trial court improperly admitted the testimony of a witness for the prosecution. Specifically, the defendant claims that the testimony of a clinical psychologist, Sidney Horowitz, was irrelevant, immaterial, prejudicial, and invaded the province of the jury. The defendant also claims that Horowitz’ testimony about the victim's delay in reporting the sexual assaults was based on the symptoms and characteristics of a syndrome called child sexual abuse accommodation syndrome (CSAAS), and that the state did not establish the general scientific acceptance of this syndrome in the medical community. We conclude that the trial court did not abuse its discretion in admitting into evidence Horowitz’ testimony.

A “trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions.” State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). The test for admissibility of expert testimony is whether “(1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” Id.; see also State v. Spigarolo, 210 Conn. 359, 376, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); State v. Watson, 26 Conn. App. 151, 153, 599 A.2d 385 (1991), cert. denied, 221 Conn. 907, 600 A.2d 1362 (1992).

In State v. Spigarolo, supra, the state presented a social worker to testify that it is not unusual for alleged abuse victims to tell inconsistent stories. The defendant objected on the grounds that the social worker “was not qualified to testify as she did and that the admission of her testimony violated [the defendant’s] constitutional right to a jury trial because it usurped the jury’s function of assessing the credibility of witnesses.” Id. In sexual assault cases involving minors “the state may present expert opinion evidence that . . . behavior [such as inconsistencies, partial disclosures and recantations] . . . is common.” Id., 377. The court held that “[t]his variety of expert testimony is admissible because the consequences of the unique trauma experienced by minor victims of sexual abuse are matters beyond the understanding of the average person.” Id., 378. In reaching this conclusion, the court •relied on a number of cases from other jurisdictions, including cases where the courts held as admissible, testimony given by a social worker or even a policeman, that sexually abused children often delay reporting incidents of sexual abuse. See State v. Sandberg, 406 N.W.2d 506, 511 (Minn. 1987); State v. Hicks, 148 Vt. 459, 461-62, 535 A.2d 776 (1987).

In State v. Watson, supra, the state presented a witness, a victim’s advocate and counselor, to testify that it is common for victims to delay reporting a sexual assault. The trial court allowed the witness to testify over the objection of the defendant who argued that the proper foundation had not been laid for the question, and, therefore, that the witness was not qualified to testify to the behavioral characteristics of sexual assault victims. The witness did not testify as to the delay in reporting by the particular victim, but only as to the delay in reporting by victims generally. The victim in the Watson case was an adult. The court found that “the witness possessed knowledge superior to that of the average layperson”; id., 154; and, therefore, “the trial court did not abuse its discretion in permitting the witness to testify as she did.” Id., 155.

In the present case, the defendant, on cross-examination of the victim, sought to discredit her testimony by questioning her as to the nearly four year delay in bringing her accusations about him to the police. In an effort to bolster the credibility of the victim with regard to her failure to accuse the defendant promptly, the state presented Horowitz, a clinical psychologist who specializes in child and adolescent sexual abuse. After qualifying Horowitz as an expert, without objection from the defendant, the state questioned Horowitz about delays in disclosure by victims of sexual abuse. Horowitz testified that differences may exist in the method of disclosure by a victim when the alleged abuser is inside as opposed to outside the family. When Horowitz was asked what those differences might be, the defendant objected on the ground that the question was too broad because it lacked an age range. The state rephrased the question, narrowing the age range, and Horowitz continued testifying, without objection, about the typical occurrence of delayed disclosure in sexual abuse cases in general. He also answered several hypothetical questions, again without objection, about delayed disclosure by victims in situations similar to that of the victim in the present case, as well as questions about the effect that the mental capacity of a victim and the frequency of the abuse have on a victim.

Upon further examination, Horowitz testified as to how the age of the victim at the time of the abuse and the relationship between the victim and abuser affect when the victim discloses the abuse. During this portion of Horowitz’ testimony, the defendant made only a few objections, which were limited to the age range used in the hypotheticals, any references to the department of children and youth services, and the lack of any mention of the use of physical force. Horowitz then testified, without objection, to the effect of forcible intercourse and implied physical threat or harm in a quasi-parental relationship on delay in disclosure by victims. Horowitz also testified, without objection, about the difficulty of disclosure for victims in a family setting even when they are given an opportunity.

The defendant also claims that Horowitz’ opinion about the behavioral patterns of sexual abuse victims in delaying the reporting of abuse was based on the characteristics of CSAAS, and that the state did not establish the general scientific acceptance of CSAAS in the medical community. This claim was not made at trial. Furthermore, nowhere in the transcript does Horowitz specifically mention CSAAS, nor does he claim he was basing his testimony on CSAAS. The only reference to CSAAS is an oblique remark by Horowitz to research by David Finkelhor, an expert in that area. Horowitz’ testimony was primarily based on his own experience and clinical observations.

The state offered Horowitz’ testimony for the rehabilitative purpose of explaining the victim’s delay in disclosing the abuse, and the defendant did not object at trial to this aspect of Horowitz’ testimony. The principles of Spigarolo and Watson, as applied to the evidence presented here, lead us to conclude that the trial court could reasonably have found that the expert witness possessed special knowledge about the common characteristic of delay in disclosing sexual abuse in the family context, that this special knowledge was not generally known to the average person, and that it was relevant and material to the jury in performing its function. The essence of the Horowitz’ testimony was beyond the ken of the average juror and, rather than usurping the jury’s function of assessing the credibility of the victim, it provided the jurors with a relevant insight into the victim’s behavior that they might not otherwise bring to its evaluation of the victim’s credibility. We conclude, therefore, that the trial court did not abuse its discretion in permitting Horowitz to testify as he did.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-86f provides: “admissibility of evidence of prior sexual conduct. In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of prior sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part of the defense.”

       The defendant did not try to admit the victim’s prior sexual history during his cross-examination of the victim. Rather, the defendant waited until he began his defense.

       The state rephrased the questions mentioning the department of children and youth services, and the trial court overruled the objection to the question that did not mention the use of physical force.

       Even though the majority of jurisdictions do not admit CSAAS testimony to prove that an abuse has actually occurred; see Bussey v. Commonwealth, 697 S.W.2d 139 (Ky. 1985); People v. Beckley, 434 Mich. 691, 456 N.W.2d 391 (1990); State v. Schimpf 782 S.W.2d 186 (Tenn. Crim. App. 1989); an overwhelming number of jurisdictions allow testimony based on CSAAS when it is offered to rehabilitate a witness. See Bostic v. State, 772 P.2d 1089 (Alaska Ct. App. 1989); People v. Gray, 187 Cal. App. 3d 213, 231 Cal. Rptr. 658 (1986); State v. J. Q., 252 N.J. Super. 11, 599 A.2d 172 (App. Div. 1991), cert. granted, 127 N.J. 562, 606 A.2d 372 (1992); State v. Cleveland, 58 Wash. App. 634, 794 P.2d 546, cert. denied, 115 Wash. 2d 1029, 803 P.2d 324 (1990), cert. denied, U.S. , 111 S. Ct. 1415, 113 L. Ed. 2d 468 (1991). Connecticut has not specifically ruled on the admissibility of CSAAS, either for substantive or other purposes, and we do not do so in view of our review of the transcript that indicates that Horowitz’ testimony was not based on the syndrome.

       Moreover, on cross-examination, the defendant asked two questions regarding delayed disclosure by sexual abuse victims.
      “Defense Counsel: Okay. And it’s not unusual to have a case of a child between the age of thirteen and sixteen report that having — been sexually abused or having sexual contact with a foster father for a period of a number of years, like five or ten years, before disclosure; is that right?
      “Dr. Horowitz: That has occurred.
      “Defense Counsel: Okay. Now, directing your attention to sexual intercourse or sexual abuse happening to a foster girl when she’s seventeen years and ten or eleven months or eighteen years, starting at that age and there’s no disclosure until the young lady is twenty-one and a half, have you ever come across that type situation before where it started at seventeen years and eleven months, eighteen years and went to twenty-one and a half?
      “Dr. Horowitz: Not specifically that way but beginning at around seventeen or eighteen and disclosure was made at thirty-five.”


author: Heiman, J.

text:
    Donald Vachon v. General Dynamics Corporation/Electric Boat Division
    (11162)
    Heiman, Freedman and Schaller, Js.
    Argued November 6
    decision released December 8, 1992

      John W. Greiner, for the appellant (defendant).

      Robert M. Fitzgerald, for the appellee (plaintiff).
   Heiman, J.

The defendant appeals from a decision of the compensation review division (review division) of the workers’ compensation commission. The review division affirmed the ruling of the workers’ compensation commissioner (commissioner) granting the plaintiff’s motion to preclude the defendant’s defenses. On appeal, the defendant asserts that the review division improperly (1) held that General Statutes § 31-297 (b) requires actual receipt of a notice of contest by the plaintiff as well as by the commissioner within the period allowed under § 31-297 (b), and (2) held that the motion to preclude under § 31-297 (b) is a substantive right rather than a procedural rule and that, therefore, the amendment of § 31-297 (b) by No. 90-116, § 9, of the 1990 Public Acts, did not apply retroactively to require that a notice of claim include a warning to the defendant of the preclusive effect of failure to contest timely in order to support a motion to preclude. We reverse the decision of the review division and remand the case to it with direction to remand the case to the commissioner with direction to deny the motion to preclude and for further proceedings in accordance with this opinion.

The facts necessary to the resolution of this appeal may be summarized as follows. The plaintiff, Donald Vachon, had been employed by the self-insured defendant, the Electric Boat Division of General Dynamics Corporation, on September 20, 1988, when he sustained a myocardial infarction. On June 21, 1989, the plaintiff served a timely notice of claim on the commissioner for the second district. In that claim, he alleged that his injury arose out of and in the course of his employment. He claimed that the “repetitive acts, repetitive trauma and daily stress caus[ed] arteriosclerotic heart disease during the period of his employment prior to September 20, 1988 resulting in a myocardial infarction on September 20, 1988 and resulting in disability.” The defendant received a properly served notice on June 22,1989. No warning of the preclusive effects of failing to contest timely appeared on the notice.

Thirteen days after receiving the notice of claim, the defendant, on July 5, 1989, served a timely notice of contest on the commissioner. On July 15,1989, twenty-three days after receipt of the plaintiffs notice of claim, the defendant served the plaintiff by certified mail with a copy of the defendant's notice of contest.

The plaintiff filed a motion to preclude pursuant to General Statutes § 31-297 (b). After a hearing on October 30, 1990, the commissioner in the second workers’ compensation district granted the plaintiff’s motion to preclude defense on November 9, 1990. It found that § 31-297 (b) required service of the notice of contest within twenty days on not only the commissioner but on the employee as well. On February 19, 1992, the review division affirmed the commissioner’s order granting the motion to preclude. This appeal followed on March 4, 1992.

The defendant argues that the review division improperly held that § 31-297 (b) requires actual receipt of notice of contest by the claimant as well as by the commissioner within twenty days. We agree.

“In the absence of ambiguity, statutory language should be given its plain and ordinary meaning.” (Internal quotation marks omitted.) Collins v. Goldberg, 28 Conn. App. 733, 737, 611 A.2d 938 (1992). “ ‘When the language of a statuté is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.’ ” Weinberg v. ARA Vending Co., 223 Conn. 336, 341, 612 A.2d 1203 (1992); Beizer v. Goepfert, 28 Conn. App. 693, 698, 613 A.2d 1336 (1992). “We will not read into ‘clearly expressed legislation provisions which do not find expression in its words.’ ” DeAlmeida v. M.C.M. Stamping Corporation, 29 Conn. App. 441, 448, 615 A.2d 1066 (1992); see Electrical Contractors, Inc. v. Tianti, 223 Conn. 573, 582, 585, 613 A.2d 281 (1992). “ ‘Our role is to construe legislation as we find it, regardless of whether we think it might have been improved or a preferable result reached by the inclusion of other provisions.’ ” Electrical Contractors, Inc. v. Tianti, supra, 585. We are thus “bound to interpret legislative intent by referring to what the legislative text contains, not by what it might have contained.” DeAlmeida v. M.C.M. Stamping Corporation, supra.

Since we have previously determined that the legislature intended that No. 90-116, § 9, of the 1990 Public Acts, apply only prospectively; DeAlmeida v. M.C.M. Stamping Corporation, supra, 452; the rights of the parties are determined by the version of General Statutes § 31-297 (b) in effect at the time that the liability to pay compensation for an injury arose. Here, at the time that the liability to pay compensation for the injury arose, General Statutes (Rev. to 1987) § 31-297 (b) provided: “Whenever liability to pay compensation is contested by the employer, [the employer] shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.” (Emphasis added.)

The language of the statute is plain and unambiguous. In drafting the statute, the legislature mandated only that the notice contesting liability be filed within twenty days. General Statutes § 31-297 (b). It then provided that failure to comply would result in the preclusion of employer defenses. Id. The legislature did not provide any form of penalty for the failure to send such notice to the claimant, but limited the invocation of preclusion to the failure to file notice contesting liability with the commission. Id. If it intended to require the employer to send notice contesting liability to the employee within the twenty day period, it would have said so in the statute. The legislature would have included the phrase “on or before the twentieth day after he has received a written notice of claim” after the phrase “a copy thereof shall be sent to the employee” if it intended to place that time limitation on notification of contest to the claimant by the employer. To avoid preclusion, notice contesting liability must be filed within twenty days with the workers’ compensation commissioner. The employer is not required to send such notice to the employee within the twenty day time period. Id.

Our interpretation of this statute comports with the underlying policy of the workers’ compensation statute. The legislature intended to ensure that employers would investigate claims promptly and that employees would be given notice of the specific reason for the denial of their claims. Dubois v. General Dynamics Corporation, 222 Conn. 62, 66-67, 607 A.2d 431 (1992); DeAlmeida v. M.C.M. Stamping Corporation, supra, 448-49. In turn, the effect of this policy is to “diminish delays in the proceedings, discourage arbitrary refusal of bona fide claims and narrow the legal issues which were to be contested.” (Internal quotation marks omitted.) Dubois v. General Dynamics Corporation, supra, 67.

The decision of the review division is reversed and the case is remanded to the review division with direction to remand the case to the commissioner with direction to deny the motion to preclude and for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 31-297 (b) provides: “Except as provided in subsection (c) of this section, whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability, provided the employer shall not be conclusively presumed to have accepted compensability when the written notice of claim has not been properly served in accordance with section 31-321 or when the written notice of claim fails to include a warning that the employer shall be precluded from contesting liability unless a notice contesting liability is filed within the time period set forth in this section.”

       The defendant expressly abandoned its second claim during oral argument. Had it not done so, our resolution of this issue would be governed by our recent decision in DeAlmeida v. M.C.M. Stamping Corporation, 29 Conn. App. 441, 615 A.2d 1066 (1992). In that decision, we concluded that the legislature intended that No. 90-116, § 9, of the 1990 Public Acts, apply prospectively from its effective date. Id., 451-52.

       The defendant appeals from a final judgment. At oral argument, the parties stipulated that they agreed that a disability occurred. They also agreed to the method for calculating the award. Since a ministerial, noncontroversial calculation is all that remains before the commissioner, the review division’s decision amounted to a final judgment. Shira v. National Business Systems, Inc., 25 Conn. App. 350, 353, 593 A.2d 983 (1991); Guinan v. Direct Marketing Assn., Inc., 23 Conn. App. 805, 580 A.2d 125, cert. denied, 216 Conn. 829, 582 A.2d 829 (1990); see also Szudora v. Fairfield, 214 Conn. 552, 557, 573 A.2d 699 (1990).


text:
    Frank J. Brown v. Mario Smarrelli
    (11077)
    Daly, O’Connell and Heiman, Js.
    Argued November 4
    decision released December 15, 1992

      Steven L. Seligman, for the appellant (plaintiff).

      Lois B. Tanzer, with whom, on the brief, were Robert E. Kiley and Andrew P. Dwyer II, for the appellee (defendant).
   O’Connell, J.

The plaintiff appeals from a judgment in favor of the defendant following a jury trial. The plaintiff claims that the trial court (1) improperly granted the defendant a continuance, and (2) improperly refused to take judicial notice of a city speed limit. We affirm the judgment of the trial court.

The following facts are pertinent to this appeal. The plaintiff and the defendant were operators of vehicles involved in an accident at an intersection in Hartford. The plaintiff brought the present action claiming that he suffered physical injuries as a result of the defendant’s negligence in causing the accident. Trial commenced on Tuesday, October 1, 1991, and on Friday, October 4, the plaintiff completed his case-in-chief. It was anticipated that the defendant would commence his case when the trial resumed on Tuesday, October 8, 1991. Sometime after court adjourned on October 4, the defendant suffered a severe heart attack requiring emergency open-heart bypass surgery.

Defense counsel seasonably informed the court and the plaintiff’s counsel of the situation and moved for a continuance when court reconvened on Tuesday, October 8. The court denied the motion as to any witness other than the defendant and, accordingly, defense counsel proceeded with his case. On October 10, when the defendant’s case had concluded except for the defendant’s testimony, defense counsel moved for a continuance until the defendant was able to testify. The motion was oral and unaccompanied by an affidavit. See Practice Book § 280.

The plaintiff’s counsel objected to the continuance due to the lack of an affidavit, whereupon the court ordered defense counsel to produce such an affidavit. On the following day, defense counsel reported that he had prepared an affidavit but objected to filing it. He claimed that under the circumstances, Practice Book § 280 did not apply because, inter alia, the peculiar circumstances of the case made it impossible for him to confer with his client while preparing the affidavit. His arguments proved persuasive and the trial court reversed its prior ruling and granted a continuance without requiring defense counsel to produce an affidavit.

On October 16, the defendant’s treating physician testified that the defendant’s condition would render him unable to testify for several weeks. Following argument from both sides, the court ordered the defendant’s deposition to be taken on October 28, 1991, with trial to resume on October 29. Pursuant to that order, the defendant’s videotaped deposition was taken at his home and played for the jury on the following day, October 29.

In his deposition, the defendant testified concerning his speed at the time of the accident. That testimony prompted the plaintiffs counsel to ask the trial court to take judicial notice of a Hartford city ordinance relating to speed limits on city streets. The court denied that request.

No further evidence was offered by either side. The jury returned a verdict for the defendant and the trial court denied the plaintiffs motion to set the verdict aside. The plaintiff appealed.

I

The plaintiff first claims that Practice Book § 280 is mandatory and, therefore, that the defendant’s motion for a continuance without a supporting affidavit required denial of the continuance. The relevant portion of § 280 provides: “Whenever a motion is made for the . . . continuance of a cause assigned for trial on account of the absence of a material witness, such motion . . . shall be supported by an affidavit. . . .” (Emphasis added.) The principles of statutory construction apply to the interpretation of the rules of practice. Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984).

In support of his argument, the plaintiff relies on the general rule of statutory construction that “shall” connotes a mandatory duty as contrasted with “may,” which implies permissive action. Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986). Connecticut courts have consistently demonstrated “a disposition to look through the literal meaning of words and forms of procedure to the essential purposes to be served.” (Internal quotation marks omitted.) Tramontano v. Dilieto, 192 Conn. 426, 433, 472 A.2d 768 (1984), quoting Connors v. New Haven, 101 Conn. 191, 198, 125 A. 375 (1924). “The use of the word ‘shall,’ though significant, does not invariably create a mandatory duty . . . .” Weiss v. Newtown, 4 Conn. App. 200, 203, 493 A.2d 273 (1985), quoting Tramontano v. Dilieto, supra, 433.

We determine whether a statute is mandatory or directory by testing “whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the statutory provision is mandatory. ... If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.” (Citations omitted; internal quotation marks omitted.) In re Adrien C., 9 Conn. App. 506, 510, 519 A.2d 1241, cert. denied, 203 Conn. 802, 522 A.2d 292 (1987), quoting Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985).

The purpose of § 280 is to allow trials to proceed without unnecessary delay caused by absent witnesses. Thus, because it is “designed to secure order, system and dispatch in the proceedings”; In re Adrien C., supra; it meets the test of being directory in nature. This is especially true where, as here, the provision is stated in affirmative terms unaccompanied by negative terms and without any provision that would “invalidate action upon a failure to comply.” (Internal quotation marks omitted.) In re Adrien C., supra, 511.

The plaintiffs argument for a strict construction of § 280 neglects a fundamental tenet of trial jurisprudence. It is axiomatic that the judge must have wide discretion and control of the proceedings before the court and the granting or denial of a continuance will be set aside only if a clear abuse of the trial court’s discretion is shown. On appeal, we will make every reasonable presumption in favor of the proper exercise of the trial court’s discretion. Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980); see 1 B. Holden & J. Daly, Connecticut Evidence § 35, p. 162; annot., 68 A.L.R.2d 470.

This basic tenet is supported by Practice Book § 6, which provides: "The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.” In the present case, defense counsel suddenly and unexpectedly found himself with an absent client because of emergency open-heart bypass surgery. Counsel could not produce him as a witness, nor could he confer with him concerning the contents of an affidavit. A denial of a continuance in the present case would have worked an injustice that we are not willing to endorse.

There is no merit to the plaintiff’s claim that he was deprived of the opportunity to make a record and we do not reach the question of whether Practice Book § 280 is applicable to parties as opposed to persons who are witnesses but not parties to the action.

Under all the circumstances, the trial court properly granted the defendant’s motion for a continuance.

II

We do not reach the merits of the plaintiff’s judicial notice claim. The complaint alleges that the plaintiff’s injuries were caused by the defendant’s negligence in several specified ways. The defendant denied this negligence allegation and, by way of special defense, alleged that the plaintiff’s injuries and damages were the result of the plaintiffs own negligence in several specified particulars. No interrogatories to limit or to explain a general verdict were submitted to the jury. See Practice Book § 312. The jury rendered a general verdict in favor of the defendant.

We review evidence in the manner most favorable to supporting the jury’s verdict. State v. King, 216 Conn. 585, 601, 583 A.2d 896 (1990). “The defendant’s denial of negligence and its allegation of contributory negligence constitute two separate and distinct defenses, either one of which could support the jury’s general verdict.” LaFleur v. Farmington River Power Co., 187 Conn. 339, 342, 445 A.2d 924 (1982); Giardini v. Supermarkets General Corporation, 24 Conn. App. 9, 11-12, 585 A.2d 110 (1991). The general verdict rule provides that “[i]f a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action ... or distinct defenses.” (Citations omitted; internal quotation marks omitted.) Giardini v. Supermarkets General Corporation, supra, 11.

We cannot determine whether the jury resolved this case on the plaintiff’s failure to prove that the defendant was negligent or on the basis of the special defense of contributory negligence. The general verdict rule mandates a presumption that the jury found every issue in favor of the defendant. Spitzer v. Haims & Co., 217 Conn. 532, 552, 587 A.2d 105 (1991); Giardini v. Supermarkets General Corporation, supra. Accordingly, we presume that the jury, relying on the defendant’s contributory negligence special defense, determined that the plaintiff’s injuries were caused by his own negligence. The defendant’s rate of speed therefore becomes irrelevant. The general verdict rule requires that the jury verdict be upheld and that the judgment be affirmed.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 280 provides in pertinent part: “Whenever a motion is made for the . . . continuance of a cause assigned for trial on account of the absence of a material witness, such motion, if the adverse party or the court requires it, shall be supported by an affidavit stating the name of the absent witness . . . and the particular facts which, it is believed, may be proved by him, with the grounds of such belief. The court may refuse to continue such cause if there is no good reason why the party making the request did not make proper preparation to have the witness present or if the adverse party will admit that the absent witness would, if present, testify to the facts stated in the affidavit, and will agree that the same shall be received as evidence on the trial, in like manner as if the witness were present and had testified thereto. . .

         Although defense counsel had the ordered affidavit with him in court, the plaintiffs counsel failed to request that the affidavit be marked for identification. See Kraus v. Newton, 211 Conn. 191, 194-95, 558 A.2d 240 (1989).

       Practice Book § 280 works to the benefit of the party opposing a motion for continuance by permitting that party to admit that the absent witness would testify as stated in the affidavit. Allen v. Chase, 81 Conn. 474, 478, 71 A. 367 (1908). The purpose of the affidavit, therefore, is to enable the adverse party to avoid a continuance, not to enable the moving party to secure a continuance. Id.

       Practice Book § 312 provides in pertinent part: “The court may submit to the jury interrogatories for the purpose of explaining or limiting a general verdict. . . .”