author:
      Spallone, J.
      Co vello, J.,

text:
    Margaret Malmberg, Administratrix (Estate of Scott C. Malmberg) v. Ann Marie Lopez
    (3849)
    Hull, Spallone and Covello, Js.

      (One judge dissenting)

    Argued April 7
    decision released September 22, 1987

      John D. Jessep, for the appellant (plaintiff).

      Paul E. Pollock, for the appellee (defendant).
   Spallone, J.

The plaintiff administratrix of the estate of the decedent, Scott Malmberg, is appealing from the judgment of the trial court after the jury returned a verdict for the plaintiff but awarded zero damages. The plaintiff claims that the trial court erred in denying her motion to set aside the verdict. We agree and find error.

The jury could reasonably have found the following facts. On the evening of May 15,1982, Scott Malmberg, and his date, Ann Marie Lopez, attended a social gathering at the home of Dwight Kettlehut in Cheshire. Malmberg had driven Lopez and Doreen Mosesian to the party after picking them up at Mosesian’s home in West Hartford. They arrived at the party at about 10 p.m. At the party, beer, fruit juice and vodka punch were available for consumption.

The party broke up at about 12:30 a.m. Thereafter, with the defendant, Kettlehut and Mosesian as passengers, Malmberg began driving toward West Hartford, via 1-84, to take Mosesian and Lopez to Mosesian’s house where both women were to spend the night. The trip began with Malmberg in the driver’s seat, Lopez in the front passenger seat, Kettlehut in the center of the back seat, and Mosesian to his left. At some point on 1-84, Malmberg, complaining of a pain in his shoulder, asked the defendant if she would drive. Upon her assent, he pulled to the side of the road and they changed places. With the defendant driving, they proceeded on toward West Hartford.

At a point near exit 39 on eastbound 1-84, the defendant was proceeding in the left hand lane approaching an exit ramp situated on the left. The car then went off the highway to the left and struck a light pole and a guardrail and rolled down an embankment. Kettle-hut and Mosesian were not injured and crawled out of the vehicle through the rear window. Kettlehut observed that Malmberg and the defendant were not in the car. Kettlehut called for Malmberg and then went up the embankment to the highway, where he saw a silhouette on the road that proved to be Malmberg. Kettlehut then flagged down a passing car from which one person got out and another continued on to seek help. Kettlehut then discovered the defendant on the embankment. Shortly thereafter, the police and an ambulance arrived on the scene. Malmberg later died because of fractured cervical vertebrae.

During the trial, Kettlehut testified substantially as stated above. The defendant testified that she had planned to spend the night at Mosesian’s house located on Farmington Avenue in West Hartford and that the accident happened in the area of the exit for the town of Farmington. She stated that she was unfamiliar with that portion of the highway near the exit. The defendant could remember nothing else about the accident at the trial. The plaintiff, however, introduced into evidence an accident report filed by the defendant one month after the accident. In this report, the defendant admitted that she was the operator of the vehicle at the time of the accident and that while so engaged she was involved in an accident in Farmington on 1-84 near exit 39 eastbound. In describing what happened, the defendant stated in the report that “Vehicle #1 went off 1-84 and hit a light pole and guardrail and rolled down the embankment.” She also stated in the report that one person had been killed in the accident. The plaintiff also introduced into evidence a certified copy of Malmberg’s death certificate, which stated that on May 16, 1982 at 1:30 a.m. in the town of Farming-ton, Scott Malmberg was a passenger in an auto that left the road at a highway exit ramp at exit 39 of 1-84 eastbound and that he died in an accident of fractured cervical vertebrae.

After deliberating, the jury returned a plaintiffs verdict which read: “In this case the Jury finds the issues for the Plaintiffs [sic] Margaret Malmberg, Administratrix of the Estate of Scott Malmberg, as against the Defendant, Anne Marie Lopez, and therefore finds for said Plaintiff to recover of the defendant $0.00 (ZERO) dollars damages.”

The plaintiff thereafter filed a motion to set aside the verdict, claiming that the award of zero damages was contrary to the law and the evidence and requesting a new trial on the issue of damages only. The court denied the motion, reasoning that the jury could reasonably have concluded that the plaintiff had failed to prove that the defendant’s conduct was the proximate cause of Malmberg’s death. The court observed that there was no evidence as to the manner in which the decedent had exited the vehicle, and that it was entirely possible that the decedent left the vehicle, returned to the highway and was thereafter struck by a motor vehicle. The court concluded that “the verdict was not only not against the weight of the evidence but rather represented a logical and reasonable result.” The court thereafter rendered judgment in accordance with the jury verdict, and the plaintiff appealed.

Initially, we note that the trial court apparently assumed that the jury’s return of a plaintiff’s verdict and zero damages was the legal equivalent to a finding of a defendant’s verdict. Such an assumption is incorrect. When rendering a defendant’s verdict, a jury finds that the plaintiff has failed to establish that the defendant is liable; the jury never reaches the issue of damages. See Bonner v. Winter, 175 Conn. 41, 48, 392 A.2d 436 (1978). In rendering a plaintiff’s verdict with zero damages, however, the jury finds the defendant liable, but further finds that the plaintiff has failed to prove damages.

In ruling on the plaintiffs motion to set aside the verdict, therefore, the trial court misperceived its task. Rather than attempting to determine whether the jury could reasonably find that the plaintiff failed to prove liability — a finding contrary to the jury’s verdict — the court should have determined whether the award was inadequate as a matter of law. In determining whether an award is inadequate, the basic question is “ ‘whether the total damages awarded fall somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption.’ ” Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 327, 505 A.2d 25 (1986), quoting Briggs v. Becker, 101 Conn. 62, 66-67, 124 A 826 (1924).

Under this standard, there can be little doubt that the award in this case was inadequate as a matter of law. The elements of damages in death cases consist of reasonably necessary medical, hospital and funeral expenses together with “just damages” including: “(1) the value of the decedent’s lost earning capacity less deductions for [his] necessary living expenses and taking into consideration that a present cash payment will be made, (2) compensation for the destruction of [his] capacity to carry on and enjoy life’s activities in a way [he] would have done had [he] lived, and (3) compensation for conscious pain and suffering.” Katsetos v. Nolan, 170 Conn. 637, 657, 368 A.2d 172 (1976); Zarrelli v. Barnum Festival Society, Inc., supra, 328. The defendant does not contend, nor did the court below find, that the evidence introduced by the plaintiff on these elements was in any way speculative or unconvincing. We conclude, therefore, that zero damages is clearly inadequate in the face of the evidence adduced at trial and that the court erred in denying the plaintiff’s motion to set aside the verdict.

The defendant claims that the judgment of the trial court should nonetheless be affirmed because the trial court would have been justified in setting aside the plaintiff’s verdict on the ground that the plaintiff failed to establish that the defendant was negligent or that any negligence caused the accident. Our Supreme Court has held that it is proper to refuse to set aside a plaintiff’s verdict for nominal damages where the evidence fails to demonstrate that the plaintiff has established the defendant’s liability. Johnson v. Franklin, 112 Conn. 228, 230, 152 A. 64 (1930). The defendant properly preserved this alternate ground for review by filing a preliminary statement of issues under Practice Book § 4013 (a) (1). Southland Corporation v. Vernon, 1 Conn. App. 439, 451, 473 A.2d 318 (1984).

In claiming that the plaintiff failed to establish the defendant’s negligence, the defendant basically contends that the trial court would have been justified had it either directed a verdict for the defendant or set aside the verdict for the plaintiff. As to either of these instances, the evidence must be given the construction most favorable to support the verdict. Carrier v. Rodrigue, 3 Conn. App. 401, 402, 488 A.2d 845 (1985). The verdict of the jury should stand if the jury could reasonably conclude as they did. Frankovitch v. Burton, 185 Conn. 14, 15, 440 A.2d 254 (1981). In the present case, the plaintiff produced sufficient evidence from which the jury could infer that the defendant was negligent and that the defendant’s negligence was the proximate cause of the decedent’s death. There was evidence that the defendant had been drinking at the party, that she was unfamiliar with the highway at the place of the accident, that she was intending to exit 1-84 toward Farmington Avenue in West Hartford, but went off the road at the town of Farmington exit, and that she was out past her curfew at the time of the accident. From this evidence, the jury could have found that the defendant, whether because of intoxication, confusion, or haste to arrive at her destination, had failed to keep the vehicle under proper control, thus causing the accident. Furthermore, the jury could also reasonably infer that the decedent’s fractured cervical vertebrae were caused by the vehicle’s collision with a light pole and guardrail, and that this injury caused his death. We therefore find that there was sufficient evidence to support the jury’s verdict on liability and that the defendant’s alternate ground to uphold the action of the trial court is without merit.

Although not addressed by either party, we must now consider whether the remand in this case should be for a new trial on all issues or on the issue of damages only. While this issue has not been directly addressed by an appellate court in this state, it has been considered by a significant number of other jurisdictions. See annot., 29 A.L.R.2d 1199. At issue are competing policy interests: on the one hand, a concern for finality and judicial economy dictates that there should be but one fair trial on any issue and that both the state and the parties should be spared the annoyance, expense, and delay caused by a retrial on an issue to which no reversible error appears. On the other hand, issues of liability and damages may often be intertwined such that it would be unfair to litigants to limit a new trial to the issue of damages only. See 58 Am. Jur. 2d, New Trial §§ 25, 27.

Under the circumstances in this case, we find that it is appropriate to remand this matter for a hearing in damages only. We base our decision on several factors. First, although liability was contested, the plaintiff presented a strong case such that it was unlikely that the jury verdict of liability was based on bias, prejudice, or other extraneous matters. The plaintiff presented sufficient evidence of negligence, and the defendant did not allege that the decedent was contributorily negligent. The suggestion offered by the trial court, that the plaintiff’s proof of causation was weak because the evidence did not preclude the possibility that the decedent was struck by another automobile, is totally speculative and was not even suggested by the defendant during the trial. We note that even if the decedent had been negligently struck by a separate automobile after the accident, it is still probable that the defendant’s negligence would have been a substantial factor and thus a proximate cause of the decedent’s death. See Merhi v. Becker, 164 Conn. 516, 522, 325 A.2d 270 (1973).

Second, in a wrongful death case such as this one, we find that the issues of liability and damages are conceptually distinct, making it unlikely that the jury could confuse them. Cf. Rosenblatt v. Berman, 143 Conn. 31, 39, 119 A.2d 118 (1955) (question of damages “inextricably mixed” with question of liability where the plaintiff alleged several acts upon which recovery could be based and where award of damages failed to correspond with any of the alternate measures of damages instructed by the trial judge). Moreover, the court clearly distinguished the issues of liability and damages in its charge to the the jury.

Third, this does not appear to be a case where the verdict was a result of compromise where the jury agreed to a low damage award because of a perceived weakness in liability. See annot., 29 A.L.R.2d 1199, 1214, § 10. Rather, the jury appeared to have been motivated by sympathy for the defendant. The defendant was eighteen years old at the time of the accident; she had been dating the decedent at the time; at trial the defendant openly wept about the decedent’s death and appeared to be still emotionally devastated; and after the jury began their deliberations, they asked to be informed about motor vehicle insurance, thus suggesting that they were concerned with whether the defendant would be personally liable. These factors indicate that the jury may have been motivated by sympathy for the defendant in finding as it did.

Finally, we are cognizant that the defendant has not attempted to preserve her rights to a new trial on all issues at any stage in these proceedings. Despite the fact that the jury returned a plaintiff’s verdict, the defendant did not move to set aside that verdict, nor did she cross-appeal from the judgment sustaining the verdict, nor did she argue at any point before this court that the remand should not be solely limited to damages. The defendant was perhaps hesitant to attack a result that freed her of any obligation to pay damages. Nevertheless, in the face of a verdict finding against her on liability, the defendant bore the risk that either the trial court or this court could find that the damages awarded were inadequate and require that a new trial be held on this issue of damages. Despite this possibility, the defendant took no action to preserve any right she might have to a new trial on all issues. We are reluctant to grant the defendant relief that she never sought despite having a clear opportunity to do so. See Nolan v. Spears, 432 S.W.2d. 425, 428 (Ky. App. 1968).

There is error, the judgment is set aside as to damages only and the case is remanded for a hearing in damages before a jury.

In this opinion Hull, J., concurred.

Co vello, J.,

dissenting. I respectfully disagree with the position adopted by the majority.

“ ‘The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness.’ ” Kalleher v. Orr, 183 Conn. 125, 127, 438 A.2d 843 (1981). “From the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury.” Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972).

The respect due the trial court’s refusal to set aside a jury verdict is especially significant when the issue involves damages. “It must be borne in mind that the weight to be accorded to testimony is a matter for the jury, and the assessment of damages is peculiarly within their province.” Camp v. Booth, 160 Conn. 10, 12, 273 A.2d 714 (1970).

“It serves no useful purpose to compare a verdict in one death case with those in others. No one life is like any other, and the damages for the destruction of one furnish no fixed standard for others.” Fairbanks v. State, 143 Conn. 653, 661, 124 A.2d 893 (1956). “Because the trial court had an opportunity far superior to ours to evaluate the evidence ... its conclusion will not be disturbed unless there is a clear abuse of discretion.” Kiniry v. Danbury Hospital, 183 Conn. 448, 462, 439 A.2d 408 (1981).

Without assessing the evidence as to damages (or the lack of it), the majority finds an abuse of the trial court’s discretion and orders a remand. I find this to be an unwarranted intrusion upon the trial court’s very significant discretion in this case.

The majority further declares that a hearing in damages is now in order. Although I would not have disturbed the jury’s verdict, if there must be further proceedings, it is surely arguable that the finding of zero damages is reflective of some misunderstanding on the issue of liability. Such a likelihood in my view transcends any public policy considerations concerning finality and judicial economy. I would at least order a new trial.

       The court made this clear in its charge to the jury. See footnote 6, infra.

         Where a plaintiff has established liability but has failed to prove actual damages, an award of nominal damages is appropriate. Riccio v. Abate, 176 Conn. 415, 418-19, 407 A.2d 1005 (1979); Covey v. Wilson, 4 Conn. App. 233, 239, 493 A.2d 290 (1985). “ ‘Nominal damages means no damages. They exist in name only and not in amount.’ ” Sessa v. Gigliotti, 165 Conn. 620, 622, 345 A.2d 45 (1973).

       Alternatively, when reviewing a motion to set aside the verdict in a case where the jury has returned a plaintiff’s verdict for nominal damages, a trial court is justified in denying the motion if it concludes that it would be proper to set aside the verdict on liability. Johnson, v. Franklin, 112 Conn. 228, 231, 152 A. 64 (1930). See discussion at footnote 4, infra and accompanying text. In the present case, however, the trial court, did not rely on this alternate rationale when denying the plaintiffs motion to set aside the verdict. Although the trial court concluded that the jury could reasonably have found that the plaintiff failed to establish the defendant’s liability, it was operating under the erroneous assumption that a jury verdict of zero damages was the legal equivalent of a defendant’s verdict. Viewing the evidence in the light most favorable to what it considered to be a defendant’s verdict; Carrier v. Rodrigue, 3 Conn. App. 401, 402, 488 A.2d 845 (1985); the court found that the jury could reasonably conclude that the plaintiff has failed to establish the defendant’s liability. The trial court, however, never addressed the issue of whether, viewing the evidence in the light most favorable to sustaining a plaintiff’s verdict, it would have been justified in setting aside the verdict, thereby further justifying the denial of the plaintiff’s motion to set aside the verdict.

       “The real aggrieved party in such case is the party against whom the verdict, even though small, was rendered. If he makes no complaint, certainly the prevailing party can not be heard to complain.” Johnson v. Franklin, 112 Conn. 228, 231, 152 A. 64 (1930), citing Lambert v. Kamp, 101 Cal. App. 388, 392, 281 P. 690 (1929).

       The plaintiff, both at the trial court and in this court, has moved for a new trial solely on the issue of damages. She has not, however, explained in her brief or at oral argument why the trial should be limited to damages. Likewise, the defendant failed to discuss this issue in her brief or at oral argument.

       The court charged in pertinent part: “If you find there is no liability that is the end of the case and your verdict should be for the defendant. On the other hand, if you determine the issue of liability in favor of the plaintiff, then she is entitled to money damages under the rules which I will now give you. So, no liability, end of case. If liability is established then you proceed to consider the subject of damages.” The court then charged on the elements of damages and concluded by discussing the two verdict forms presented to the jury for rendering its verdict. The court stated: “In this case if you conclude there is no liability on the part of Miss Lopez under the instructions I have given you, you use this form of verdict [defendant’s] .... The other is a form entitled plaintiffs verdict. And you’ll use this form if you resolve the issue of liability in favor of the plaintiff and resolve that the plaintiff is entitled to just damages under the instruction as I’ve given you.”


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Stephen Spinello v. State of Connecticut et al.
    (5340)
    Dupont, C. J., Borden and Spallone, Js.
    Submitted on briefs June 1
    decision released September 22, 1987

      Joseph I. Lieberman, attorney general, and Harry W. Hultgren, assistant attorney general, filed a brief for the appellant (named defendant).

      Michael S. McKenna filed a brief for the appellee (plaintiff).
   Spallone, J.

The named defendant state of Connecticut is appealing from the judgment of the trial court rendered after the acceptance of the report of an attorney state trial referee.

In his report, which was accepted in full by the trial court, the attorney trial referee found the following facts. On September 12, 1982, at approximately 8:06 p.m., the plaintiff was walking from east to west on a drawbridge known as the Washington Street bridge in Norwalk, Connecticut. This bridge is maintained by the state and was being operated by Isaac Lee, a state employee. The drawbridge operates in the following manner: Before the bridge is opened, a warning system of lights, horns and bells signals that the bridge is about to open. Just before the bridge opens, gates are lowered so as to block any access to the bridge by either vehicles or pedestrians. The two “spans” of the bridge (those sections of the bridge that are movable) are held closed by a mechanism called “span locks.” The span locks must be disengaged before the bridge can be opened. When the span locks are disengaged the warning bells cease. Between the gates and the spans are stationary areas that do not rise when the bridge is opened.

The plaintiff and his companion had passed the warning gate when it came down behind them. The bridge operator saw the plaintiff on the wrong side of the gate and blew a horn in an attempt to warn him. Although the plaintiff did not respond to the warning, the bridge operator proceeded to raise the bridge in order to allow a large vessel to pass. After the vessel had passed, the operator began to lower the bridge. Before the bridge was closed, however, the operator caused the bridge to be opened a second time. The operator failed to operate any warning devices before opening the bridge the second time. After the bridge had been raised again, the plaintiff fell from the east span and landed on the west span. As a result of the fall the plaintiff suffered serious physical injuries. The attorney referee found that the actions of the bridge operator constituted actionable negligence and that this negligence was the sole proximate cause of the plaintiff’s injuries.

In a letter from the commissioner of claims of the state of Connecticut, dated July 13,1983, the plaintiff was advised that “the matter can now be sued directly in the court in the event you are unable to obtain settlement by the insurance carrier.” Because the state had no insurance coverage from which he could benefit, the plaintiff, construing the claims commissioner’s letter as permission to sue, issued a writ, summons and complaint against the defendants on September 27, 1983.

The complaint was in two counts, the first alleging negligence and the second alleging a highway defect. The second count was stricken by the court, J. Healey, J., and a trial was held on the first count before an attorney trial referee. The attorney referee issued his report containing his findings and recommending that judgment enter for the plaintiff against the state in the amount of $85,000. The trial court overruled the state’s objection to the referee’s report and rendered judgment for the plaintiff in accordance with the report.

The state has appealed and claims that the trial court erred (1) in finding that the claims commissioner granted the plaintiff permission to sue, (2) in permitting this action under General Statutes § 4-160 when the plaintiff had a cause of action under General Statutes § 13a-144, (3) in failing to sustain the defendants’ first special defense in that permission to sue was not granted because the claims commissioner lacked jurisdiction, and (4) in failing to find that the plaintiff’s injuries were caused by his own contributory negligence.

In its first two claims of error, the state contends that the trial court erred in concluding that the claims commissioner had properly authorized the plaintiff’s negligence suit. The state argues that the claims commissioner lacked jurisdiction to authorize this action because the commissioner has no authority to hear or determine claims that are “otherwise authorized by law.” General Statutes § 4-142 (2). The state asserts that because the plaintiff’s claim could have been brought under the Defective Highway Statute, General Statutes § 13a-144, the plaintiff’s action was “otherwise authorized by law” and therefore could not be properly permitted by the claims commissioner.

Chapter 53 of the General Statutes, § 4-141 et seq., creates the office of claims commissioner and establishes the procedure for redressing claims arising from the actions of the state and its officers and employees. See General Statutes § 4-165. Pursuant to General Statutes § 4-160 (a), the claims commissioner is authorized to permit a claim against the state when the commissioner “deems it just and equitable.” If the claims commissioner authorizes suit, the state waives its sovereign immunity. General Statutes § 4-160 (a); McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600 (1981). Under General Statutes § 4-142 (2), however, the claims commissioner has no authority to hear and determine “claims upon which suit is otherwise authorized by law.”

We note that General Statutes § 4-160, under which the claims commissioner may grant permission to sue the state, does not contain the same explicit restriction over the claims that the commissioner is allowed to hear that is set forth in General Statutes § 4-142. Even if we assume, however, that § 4-160 contains an implicit limitation restricting the claims commissioner from granting permission to sue the state with respect to claims that are “otherwise . . . authorized by law”; General Statutes § 4-142 (2); we would find no merit to the state’s claim in this instance. General Statutes § 13a-144, which the state claims would have authorized the plaintiffs negligence claim, provides that a person may bring suit against the state if that person is injured “through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk . . . .’’The plaintiff’s negligence claim, however, was not related to a defective highway, bridge, or sidewalk, but was related solely to the conduct of the bridge operator. Cf. Comba v. Ridgefield, 177 Conn. 268, 270, 413 A.2d 859 (1979). The trial court, therefore, properly concluded that the plaintiff could not bring a claim for the bridge operator’s negligence under General Statutes § 13a-144, and that the claims commissioner had jurisdiction over the plaintiffs negligence claim.

In its remaining claims of error, the state attacks the attorney trial referee’s finding that the claims commissioner had provided the plaintiff permission to sue the state and that the plaintiff’s injuries were caused by the negligence of the bridge operator rather than the plaintiff himself. Our review of these factual findings is limited to a determination of whether they are clearly erroneous in view of the evidence and pleadings in the whole record. Practice Book § 4061; Buddenhagen v. Luque, 10 Conn. App. 41, 44-45, 521 A.2d 221 (1987). It is the province of the trial court to pass upon the credibility of the witnesses and the weight to be accorded the evidence. Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976); Essex Savings Bank v. Leeker, 2 Conn. App. 98, 102, 476 A.2d 1071 (1984). This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found, thereby establishing that the trial court could reasonably conclude as it did. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 280-81, 471 A.2d 651 (1984). There was ample evidence submitted in this case to justify the finding that the claims commissioner’s letter of July 13,1983, gave the plaintiff permission to sue the state under General Statutes § 4-160. Furthermore, the evidence was sufficient to support the finding that the bridge operator’s negligence was the sole proximate cause of the plaintiff’s injuries.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 4-142 provides in part: “There shall be a claims commissioner who shall hear and determine all claims against the state except: ... (2) claims upon which suit otherwise is authorized by law . . . . ”

       General Statutes § 13a-144 provides in part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. ...”

       The plaintiff’s original complaint contained a separate count alleging a violation of General Statutes § 13a-144. This count, however, was stricken by the court before trial on the ground that the plaintiff had failed to comply with the time prescriptions of that statute. See footnote 2, supra.


author: Hull, J.

text:
    Victor R. Dydyn et al. v. Department of Liquor Control Paul J. Cianci et al. v. Department of Liquor Control
    (5302)
    (5304)
    (5306)
    (5308)
    (5303)
    (5305)
    (5307)
    (5309)
    Hull, Spallone and Bieluch, Js.

      Argued June 4
    decision released September 22, 1987

      Martin Margulies, with whom were Carolyn Comerford and Leslie Byelas, for the appellants (plaintiffs).

      Robert F. Vacchelli, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Richard M. Sheridan, assistant attorney general, for the appellee (defendant).
   Hull, J.

The plaintiffs in this appeal are permittees of establishments that dispense alcoholic beverages and also provide live entertainment by female dancers. Pursuant to General Statutes § 4-183, the plaintiffs sought judicial review in the trial court from decisions of the department of liquor control (department) suspending their liquor permits. The trial court upheld the department’s suspensions. In this appeal, the plaintiffs claim that the trial court erred (1) in upholding the constitutionality of § 30-6-A24 (d) and (e) of the regulations of Connecticut state agencies, concerning liquor control, under the twenty-first amendment to the United States constitution, (2) in concluding that the challenged regulation does not infringe on the plaintiffs’ rights to free expression under article first, §§ 4 and 5 of the Connecticut constitution, (3) in concluding that the challenged regulation does not infringe on the plaintiffs’ equal protection rights under article first, §§ 1 and 20 of the Connecticut constitution, and (4) in holding that the challenged regulation does not violate the plaintiffs’ due process rights and that the department did not act in excess of its authority in promulgating the regulation.

The following facts are not in dispute. The plaintiff Victor R. Dydyn is the permittee of the Culinary Cafe, Inc., in Newington. The plaintiff Paul J. Cianci is the permittee of the Dealer’s Choice Lounge, Inc., in Hartford. In each case, female dancers were observed by plainclothed detectives to be performing at the permit premises in various states of nudity, in violation of liquor control regulation § 30-6-A24. In particular cases, dancers were also observed fondling their breasts and genital areas, allowing customers to place money in their costumes, mingling with and kissing patrons, and simulating sexual intercourse during their routines. In the cases involving Cianci and the Dealer’s Choice Lounge, Inc., the permit to sell liquor was suspended by the department for a total of forty-five days. In the cases involving Dydyn and the Culinary Cafe, Inc., the permit was suspended for a total of thirty-five days.

I

The plaintiffs’ first claim is that the court erred in upholding the constitutionality of the department’s regulation under the twenty-first amendment to the federal constitution. Their second claim is that the department’s regulation prohibiting nude dancing in establishments with liquor permits is violative of their constitutional right to free speech under article first, §§ 4 and 5 of the Connecticut constitution. These arguments are in effect, that nude and semi-nude dancing is a protected form of expression that cannot be curtailed by this regulation. We disagree.

The provisions of section 2 of the twenty-first amendment to the United States constitution have been interpreted as granting the states virtually complete control over whether to permit the importation and sale of liquor. California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 110, 100 S. Ct. 937, 63 L. Ed. 2d 233 (1980). The amendment has been recognized as conferring more than the normal state authority over public health, welfare and morals. California v. LaRue, 409 U.S. 109, 114, 93 S. Ct. 390, 34 L. Ed. 2d 342 (1972). Pursuant to the twenty-first amendment, a state can ban topless dancing and other nude conduct, regardless of whether it is obscene, as part of its liquor licensing regulatory scheme. See New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S. Ct. 2599, 69 L. Ed. 2d 357 (1981) (Bellanca I); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S. Ct. 2561, 45 L. Ed. 2d 648 (1975); California v. LaRue, supra. The United States Supreme Court has held that a state’s power to ban the sale of alcoholic beverages under the twenty-first amendment entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs. Bellanca I, supra, 717.

The plaintiffs, however, do not make their argument under the federal constitution. They assert that the department’s regulation is vulnerable under the free speech provisions of our state constitution because there is no state constitutional enactment similar to the twenty-first amendment. There is a split of authority as to the effect of a lack of a provision similar to the twenty-first amendment in a state’s constitution. Some jurisdictions hold that the twenty-first amendment of the federal constitution is not applicable to the states. See Bellanca v. New York State Liquor Authority, 54 N.Y.2d 228, 429 N.E.2d 765, 445 N.Y.S.2d 87 (1981) (Bellanca II) (on remand from the United States Supreme Court); see also Mickens v. Kodiak, 640 P.2d 818 (Alaska 1982); Commonwealth v. Sees, 374 Mass. 532, 373 N.E.2d 1151 (1978). Other jurisdictions hold that the twenty-first amendment is applicable to the states. See Daytona Beach v. Del Percio, 476 So. 2d 197 (Fla. 1985); and Nall v. Baca, 95 N.M. 783, 626 P.2d 1280 (1980).

We find logic in the latter cases, and in the dissents in Bellanca II. “The Supreme Court has flatly and squarely held that the ‘State has absolute power under the Twenty-first Amendment to prohibit totally the sale of liquor within its boundaries. . . . It is equally well established that a State has broad power under the Twenty-first Amendment to regulate the times, places and circumstances under which liquor may be sold.’ (Bellanca I, supra, 715). To now require, as a precondition to the exercise of such power in a manner expressly condoned by the highest court of this Nation, that the State must enact its own counterpart of the Twenty-first Amendment, is without reason or authority.” Bellanca II, supra, 238-39 (Gabrielli, J., dissenting).

Contrary to the plaintiffs’ view, “when a State acts to regulate the sale of liquor within its boundaries, its authority stems from both its general police power and directly from the Twenty-first Amendment to the United States Constitution. Indeed, rather than merely restoring to the States their pre-existing police power over the sale of alcoholic beverages by repealing the Eighteenth Amendment, the second section of the Twenty-first Amendment expressly reserves to the States a power to regulate traffic in liquor: ‘The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.’ Thus, although the States ‘require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare and morals.’ (California v. LaRue, [supra]). This independent right to regulate the sale of liquor under the Federal Constitution has been interpreted by the Supreme Court as not only creating an exception to the commerce clause (e.g., J. Seagram & Sons v. Hostetter, 384 U.S. 35, 41-42 [86 S. Ct. 1254, 16 L. Ed. 2d 336, reh. denied, 384 U.S. 767, 86 S. Ct. 1583, 16 L. Ed. 2d 679 (1966)]; Ziffrin, Inc. v. Reeves, 308 U.S. 132 [60 S. Ct. 163, 84 L. Ed. 128 (1939)]; State Board v. Young’s Market Co., 299 U.S. 59 [57 S. Ct. 77, 81 L. Ed. 38, reh. denied, 299 U.S. 623, 57 S. Ct. 229, 81 L. Ed. 458 (1936)]); but, more recently, as qualifying rights guaranteed by the First Amendment as well — at least insofar as certain forms of nude and partially nude entertainment are concerned. ([Bellanca I, supra]; California v. LaRue, supra.)Bellanca II, supra, 243-44 (Jason, J., dissenting). This federally recognized power on the part of the states to control the commercial distribution of alcoholic beverages within their respective boundaries does not exist in a vacuum; nor is it limited to the confines of the federal constitution. The power conferred by the twenty-first amendment does not simply evaporate once the analysis shifts to a determination of the right to free expression under our state constitution. Rather, this independent, federal right to control the traffic in liquor subsists, and, pursuant to the supremacy clause, must be given full recognition and effect, even when we consider the provisions óf our own constitution.

The plaintiffs urge us, even if we find the twenty-first amendment applicable to the state constitution, to read the free speech provision of the Connecticut constitution more broadly than that of the federal constitution, thus making the protections greater under the state constitution. This we decline to do. A similar request was presented to our Supreme Court in Cologne v. Westfarms Associates, 192 Conn. 48, 469 A.2d 1201 (1984). In Cologne, the plaintiffs urged the court to find that the Connecticut constitution provides greater protection to expressive activity on private property than does the federal constitution. Our Supreme Court refused to do so, finding nothing in the history of the Connecticut constitution to warrant a distinction between the Connecticut and federal free speech provisions. Id., 62-63. Similarly, in the present case, we find the variations in phraseology between the federal and state constitutional free speech provisions to be without relevant significance. On previous freedom of speech issues, our courts have adopted the reasoning of cases interpreting the first amendment of the United States constitution. See Cologne v. Westfarms Associates, supra; State v. Andrews, 150 Conn. 92, 186 A.2d 546 (1962); State v. Cantwell, 126 Conn. 1, 8 A.2d 533 (1939). The plaintiffs have given us no reason or authority for the proposition that the state freedom of speech provisions should be read more broadly than their federal counterparts. We therefore adopt the reasoning and result of the United States Supreme Court decision in Bellanca I, supra, Doran v. Salem Inn, Inc., supra, and California v. LaRue, supra, that the “State’s power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where [nude or] topless dancing occurs.” Bellanca I, supra, 717. Thus, the trial court correctly upheld the department’s determination in this respect.

II

The plaintiffs’ next argument is that the regulation violates their equal protection rights under the Connecticut constitution, article first, §§ 1 and 20. They argue that the regulation is invalid under the state equal rights amendment because, by specifically referring to female anatomy, it creates a suspect class. In Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S. Ct. 3331, 73 L. Ed. 2d 1090 (1982), the United States Supreme Court enunciated an “intermediate” standard for application to gender-based classifications. Under that standard, a statute or regulation which treats males and females differently violates the equal protection clause unless the classification is substantially related to the achievement of an important government interest. Id., 724. The trial court in this case found that the regulation was not gender-based and therefore did not require review under the standard set forth in Hogan. We are not persuaded, however, by the argument that the regulation does not classify on the basis of sex. When a statute or regulation distinguishes between male and female anatomy, we hold that the test created in Hogan must be applied. It does not necessarily follow, however, that the application of the Hogan test will alter the outcome of the decision.

Although the plaintiffs attempt to blur the clear distinction, there can be no doubt that in our society female breasts, unlike male breasts, constitute an erogenous zone and are commonly associated with sexual arousal. See Seattle v. Buchanan, 90 Wash. 2d 584, 587, 584 P.2d 918 (1978); People v. Craft, 134 Misc. 2d 121, 509 N.Y.S.2d 1005 (1986). Further, courts have held that “[i]n our culture, for the purpose of this type of ordinance, female breasts are a justifiable basis for a gender-based classification. See generally Mississippi University for Women v. Hogan, [supra].Tolbert v. Memphis, 568 F. Sup. 1285, 1290 (W.D. Tenn. 1983). The record before us indicates that establishments which feature female topless dancers have a higher rate of public disturbance than those that do not offer such entertainment. As in the cases cited above, there was testimony at the permit revocation hearings that a large number of fights and arrests for prostitution and public indecency occur at establishments featuring female dancers. We conclude that the classification created by the department’s regulation is substantially related to an important governmental interest, and we therefore find no merit to the plaintiffs’ claim.

Ill

The plaintiffs’ final argument is twofold. The first claim is that the department acted outside its scope of authority in promulgating the regulation in question. The second claim is that due process was not afforded to the plaintiffs because the regulation was written without the benefit of any “tests, reports, surveys, hearings or witnesses,” and because of a lack of a documented basis for the departments “findings and conclusions.”

General Statutes § 30-6 grants to the department the broad power to “make all necessary regulations . . . for insuring proper, safe and orderly conduct of licensed premises.” The challenged regulation does not exceed the permissible limits of the department’s rulemaking authority. See Dadiskos v. Liquor Control Commission, 150 Conn. 422, 427-28, 190 A.2d 490 (1963).

The department’s regulation prohibiting nude and semi-nude dancing in establishments with liquor permits is clearly designed to reduce the number of incidents of unlawful behavior and disorderly conduct in bars. The need for this type of regulation has been repeatedly upheld. California v. LaRue, supra, 116; Tolbert v. Memphis, supra, 1290. In fact, this very regulation was held to be rationally related to its purpose and was therefore deemed constitutional in Winer v. Healy, Civ. No. H-79-267 (D. Conn. 1979), and in Inturri v. Healy, 426 F. Sup. 543 (D. Conn. 1977).

Moreover, it must be noted that at the time the regulation was promulgated, the Uniform Administrative Procedure Act did not require that “findings and conclusions” be made before regulations could be enacted by an administrative agency. Courts will not, sua sponte, require agencies to adopt procedures beyond those required by the Administrative Procedure Act. Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524, 98 S. Ct. 1197, 55 L. Ed. 2d 460 (1978). We therefore consider the plaintiffs’ arguments regarding procedural deficiencies to be without merit.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 4-183 provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter, provided, in case of conflict between this chapter and federal statutes or regulations relating to limitations of periods of time, procedures for filing appeals or jurisdiction or venue of any court or tribunal, such federal provisions shall prevail. A preliminary, procedural or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.”

       Section 30-6-A24 (d) and (e) of the regulations of Connecticut state agencies, governing liquor control, provide in relevant part: “(d) No person shall be employed or otherwise used on permit premises while such a person is unclothed or in such attire, costume or clothing as to expose to view any portion of the female breast below the top of the areola or any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals. No person on the permit premises over whom the permittee can reasonably exert control, shall be permitted to touch, caress or fondle the breasts, buttocks, anus or genitals of any other person, nor shall any person or employee be permitted to wear or use any device or covering, exposed to view, which simulates the breast, genitals, anus, pubic hair or any portion thereof.
      “(e) No entertainment shall be performed on any bar. No entertainer, dancer, or other person shall perform acts of or acts which simulate: sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law; the touching, caressing or fondling of the breasts, buttocks, anus or genitals; the displaying of any portion of the female breast below the top of the areola or any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals. No permittee shall permit any person or entertainer to remain in or upon the permit premises who exposes to public view any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals. Entertainers must perform in one location and entertainers may not mingle with the patrons. However, the prohibition contained in the last sentence may be waived by the department upon written request indicating the desirability and necessity for entertainers to mingle with the patrons.”

       The United States Constitution, amendment XXI, § 2 provides in relevant part: “The transportation or importation into any State, Territory or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. ’ ’ (Emphasis added.)

       Article first, § 4, of the Connecticut constitution provides: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”
      Article first, § 5, of the Connecticut constitution provides: “No law shall ever be passed to curtail or restrain the liberty of speech or of the press.”

       Article first, § 1, of the Connecticut constitution provides: “All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”
      Article first, § 20, of the Connecticut constitution provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin.”

       This case is comprised of eight separate appeals, four involving each plaintiff. They have been combined for hearing and decision.

       In California Retail Liquor Dealers Assn. v. Midcal Aluminum Inc., 445 U.S. 97, 107, 100 S. Ct. 937, 63 L. Ed. 2d 233 (1980), the court stated that “[i]n determining state powers under the Twenty-first Amendment, [this] court has focused primarily on the language of the provision rather than the history behind it. State Board v. Young’s Market Co., 299 U.S. 59, 63-64 [57 S. Ct. 77, 81 L. Ed. 38, reh. denied, 299 U.S. 623, 57 S. Ct. 229, 81 L. Ed. 458] (1936).” In a footnote, the court went on to state that this “approach is supported by sound canons of constitutional interpretation and demonstrates a wise reluctance to wade into the complex currents beneath the congressional proposal . . . .” Id., 107 n.10.

       The power to regulate liquor is not limitless, however. The states still cannot “insulate the liquor industry from the Fourteenth Amendment’s requirement of equal protection, Craig v. Boren, 429 U.S. 190, 204-209 [97 S. Ct. 451, 50 L. Ed. 2d 397] (1976), and due process, Wisconsin v. Constantineau, 400 U.S. 433, 436, [91 S. Ct. 507, 27 L. Ed. 2d 515] (1971).” California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 108, 100 S. Ct. 937, 63 L. Ed. 2d 233 (1980).

       The supremacy clause; U.S. Const., art. VI clause 2; provides in relevant part; “This Constitution . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

       The plaintiffs also assert that there is a fundamental first amendment right to freedom of expression involved in this case. We disagree. The regulation in question does not prohibit nude or semi-nude dancing. It only regulates liquor sales. A permit to sell liquor is a personal privilege, good for one year after issuance and revocable in the discretion of the department, subject to appeal. See General Statutes § 30-14. Moreover, one does not have a fundamental right to a liquor permit. See Joseph H. Reinfeld, Inc. v. Schieffelin & Co., 94 N.J. 400, 466 A.2d 563 (1983); Three K. C. v. Richter, 279 N.W.2d 268, 275 (Iowa 1979).

       See, e.g., comments of Commissioner David L. Snyder at the public hearing on the regulation (1976): “I think also it should be pointed out that it has been the experience of this Commissioner that this regulation served to prevent unlawful and disorderly conduct on the permit premises. We have had cases, where after a violation of this regulation has occurred, there have been brawls. There have been arrests for sexual contact. It has served a purpose and it continues to serve a purpose. I can only speak for myself, but that has been my experience.”

       The transcript of the March 26,1976 hearing on the regulation, which is part of the record before us, reflects that the proposed regulations were in fact modeled after the California regulations found constitutional in California v. LaRue, 409 U.S. 109, 93 S. Ct. 390, 34 L. Ed. 2d 342 (1972), reh. denied, 410 U.S. 948, 93 S. Ct. 1351, 35 L. Ed. 2d 615 (1973). In LaRue, the court stated: “Nothing in the record before us or in common experience compels the conclusion that either self-discipline on the part of the customer or self-regulation on the part of the bartender could have been relied upon by the Department to secure compliance with such an alternative plan of regulation. The Department’s choice of a prophylactic solution instead of one that would require its own personnel to judge individual instances of inebriation cannot, therefore, be deemed an unreasonable one under the holdings of our prior cases.” Id., 116. Further, in New York State Liquor Authority v. Bellanca, 452 U.S. 714, 718-19, 101 S. Ct. 2599, 69 L. Ed. 2d 357 (1981), the court made the broad statements that “ ‘[i]t has long been held that sexual acts and performances may constitute disorderly behavior within the meaning of the Alcoholic Beverage Control Law

       It should also be noted that the purpose of the regulation was not to create an entirely new regulatory scheme, but to revamp regulations already in existence. The predecessor to the challenged regulation read in relevant part as follows:
      “(a) No disturbances, lewdness, immoral activities, brawls, unnecessary noises, including loud and disturbing music, unlawful conduct or gambling of any kind except where provided by Public Act 865 of the 1971 General Assembly, and no slot machines or gambling devices which may be used for the purpose of securing money or any other valuable things, shall be permitted or suffered upon any permit premises, nor shall such premises be conducted in such a manner as to constitute a nuisance.
      “(b) The presence of dice or cards with money on tables or bars in any permit premises shall be considered as prima facie evidence of gambling.
      “(c) No on-premises consumption place of business, such as a restaurant, tavern, hotel, cafe or club, shall permit entertainment consisting of impersonations either of females by males or of males by females, nor shall any permittee of any such establishment advertise, give, permit or participate in any obscene, indecent, immoral or impure show or entertainment. No such premises shall be conducted in such a manner as to constitute a nuisance by permitting an intoxicated person or persons to loiter thereon.”

       Further, General Statutes (Rev. to 1985) § 4-168 (d) provides in part: “a proceeding to contest any regulation on the ground of noncompliance with the procedural requirements of this section shall be commenced within two years from the effective date of the regulation.” The department’s amended regulation took effect in December of 1976. The earliest of the consolidated cases commenced in 1981. The plaintiffs are therefore barred by General Statutes § 4-168 (d) from challenging the agency’s procedural compliance in amending the regulations at issue.


text:
    Crest Plumbing and Heating Company v. Paul DiLoreto Mac’s Car City, Inc. v. Paul S. DiLoreto et al. Howard Asal Construction Company, Inc. v. Paul S. DiLoreto et al.
    (3101)
    (3102)
    (3103)
    Dupont, C. J., Borden and Spallone, Js.
    Argued May 8
    decision released September 22, 1987

      Edward Pontacoloni, for the appellant (named defendant).

      Raymond G. LeFoll, for the appellee in the first case (plaintiff Crest Plumbing and Heating Company).

      Nicholas E. DeNigris, for the appellee in the second case (plaintiff Mac’s Car City, Inc.).

      James J. Scalise, for the appellee in the third case (plaintiff Howard Asal Construction Company, Inc.).
   Spallone, J.

This is a consolidated appeal involving three separate contract actions against a common defendant. The trial court rendered judgment for the plaintiff in each of the actions, and the defendant appealed from each of the judgments. We find error in the second case and no error in the first and third cases.

The following facts are not in dispute and are common to all three appeals. The defendant is a partner in a general partnership (D & T Construction Company) which was, at the time of the matter in question, engaged as a general contractor. The plaintiff in the first case, Crest Plumbing and Heating Company (Crest), is a plumbing contractor. The plaintiff in the second case, Mac’s Car City, Inc. (Mac’s), is a new and used car dealership in Berlin, Connecticut. The plaintiff in the third case, Howard Asal Construction Company, Inc. (Asal), is a paving contractor.

Pursuant to a written building construction contract dated October 5, 1978, the defendant agreed to construct a building to house Mac’s dealership. Thereafter, the defendant entered into agreements with Crest and Asal to perform subcontracting work on that project. Disputes arose between the defendant and each of the plaintiffs which ultimately resulted in each plaintiff filing a lawsuit against the defendant. The defendant filed an answer and counterclaim in each of the three lawsuits. All three cases were consolidated and tried together to the court. After trial, the court, Shaughnessy, J., rendered judgment for the plaintiff on both the complaint and the counterclaim in each case, from which judgments the defendant has filed three appeals. The appeals were consolidated and this opinion will serve all three.

Appeal No. 3101-Crest Plumbing & Heating Co. v. DiLoreto

Pursuant to a written contract between the defendant and Crest dated November 3,1978, Crest agreed to perform plumbing work on the project. Upon completing the required performance, the defendant was indebted to Crest in the amount of $2090, which he refused to pay. Accordingly, Crest commenced a contract action against the defendant to recover the unpaid balance. As a result of the suit brought by Mac’s against the defendant, the defendant counterclaimed against Crest seeking damages for alleged unfinished and improper work. After a trial, the trial court rendered judgment for Crest on the complaint and on the defendant’s counterclaim. The court awarded Crest the claimed $2090, plus interest equal to $752.40, for a total judgment of $2842.40.

The defendant has appealed from the judgment, claiming that the trial court erred in concluding that Crest performed its agreement with the defendant. The defendant asserts that the court’s conclusion was inconsistent with its conclusion in Mac’s Car City, Inc. v. DiLoreto, where the court found that the plumbing work was not done in accordance with the agreement between Mac’s and the defendant.

We find no merit in this contention. The defendant has failed to establish that Crest’s agreement with the defendant was identical in relevant part with the defendant’s agreement with Mac’s. Without such proof, we cannot find that the court’s conclusions in the two cases were inconsistent. See also Ryan v. Mill River Country Club, Inc., 8 Conn. App. 1, 5-6, 510 A.2d 462 (1986). The court’s conclusion that the plaintiff properly performed its obligation under the contract is supported by the evidence and is not clearly erroneous. Practice Book § 4061; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Buddenhagen v. Lugue, 10 Conn. App. 41, 45, 521 A.2d 221 (1987). Consequently, we find no error.

Appeal No. 3102-Mac’s Car City, Inc. v. DiLoreto

This appeal involves a suit for breach of a contract for the construction of premises to be used by Mac’s as an automobile dealership. The contract was prepared by the defendant and essentially provided that the defendant would construct, ready to use, a building and parking facilities to accommodate a functioning automobile dealership. The construction was to be completed within 100 days and called for total payment of $256,000. There were two approved change orders, bringing the total due for the job to $263,380. Up to the time of the defendant’s default, the defendant had been paid $236,400, plus $4000 to a subcontractor for a total of $240,400.

Construction delays eventually resulted in the defendant’s default under the contract. Consequently, Mac’s completed the construction on its own. On June 5,1980, Mac’s commenced a breach of contract action against the defendant, alleging incomplete and improper workmanship. The defendant counterclaimed for the balance due him under the contract.

After a trial, the court rendered judgment in favor of Mac’s on its complaint and on the defendant’s counterclaim. The court awarded cost of completion damages in the amount of $46,469.33, inclusive of attorney’s fees equal to $6750, plus interest from July 1,1979 to March 1, 1984, for a total award of $63,817.88.

The defendant has appealed and has claimed that the trial court erred (1) in determining the plaintiffs damages, (2) in awarding the plaintiff prejudgment interest, (3) in rejecting the defendant’s counterclaim for the cost of extra work performed, (4) in refusing to admit into evidence the periodic progress reports of the construction mortgagee’s engineer, and (5) in failing to conclude that the measure of the defendant’s performance, and therefore his right to payment, was established by the approval of the periodic payment requisitions. We agree with the defendant’s fourth claim of error, that the court erred in refusing to admit the reports of the mortgagee’s project engineer as business records under General Statutes § 52-180.

The facts pertinent to this claim are as follows. American National Bank, the construction mortgagee, entered into an agreement with Alfred Wilner, Inc., a corporation engaged in the business of construction management. Pursuant to this agreement, Alfred Wilner, Inc., periodically sent an engineer or architect employed by it to the job site to make an inspection of the work in progress in order to determine if the work conformed with the approved plans and specifications governing the defendant’s performance. During the course of construction, Alfred Wilner, Inc., sent six reports to the mortgagee bank. The bank, through the testimony of one of its officers, stated that it was in the bank’s general course of business to keep a record of the reports and that the reports were of field inspections made by an engineer employed by the bank. When the defendant attempted to introduce the reports into evidence, the trial court sustained the plaintiff’s objection, holding that because the reports were not business records of the bank but were business records of someone else, they were inadmissible under General Statutes § 52-180. We disagree.

The business record exception to the hearsay rule is codified in General Statutes § 52-180. Section 52-180 (a) provides that “[a]ny writing or record . . . made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.” In the present case, the trial court excluded the engineer’s reports because they were prepared by a party other than the organization whose business records they were purported to be. There is no requirement in § 52-180, however, that the documents must be prepared by the organization itself to be admissible as that organization’s business records. All that is required is that it be in the regular course of the business to make the “writing or record.” We believe the keeping of a report in a bank’s file that serves as a basis of whether the bank will pay out money under a loan agreement satisfies the statutory requirement of “record” and that such a record could reasonably be found to have been made in the course of the bank’s business. We hold that the trial court erred in holding that the reports Alfred Wilner, Inc., made to the bank were inadmissible as business records of the bank because they were business records of another organization.

We do not hold that the trial court could not have found that the keeping of such reports was not in the bank’s general course of business. See Orzechowski v. Higgins, 146 Conn. 463, 466, 152 A.2d 510 (1959). The court, however, based its ruling on the fact that the record was the business record of a party other than the bank. The reason given by the court was erroneous, and the record does not clearly establish an alternative ground of inadmissibility on which the trial court’s ruling should be sustained. Further, had the report been admitted, the court was under no obligation to accept the opinions expressed therein. The trier may accept or reject the testimony of a witness, offered by one party or the other, expert or otherwise, in whole or in part. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981); Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 348, 232 A.2d 307 (1967); Filipetti v. Filipetti, 2 Conn. App. 456, 459, 479 A.2d 1229, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984). The trial court, however, by erroneously excluding the evidence, was denied the opportunity to determine what weight should be given the evidence.

We cannot say that the failure to admit the reports was harmless error because, in content, the reports seem to contradict the testimony and other evidence offered by the plaintiff. While the plaintiff claims that the reports were reports of the bank or its agent, and were not binding on the parties, this contention misses the point. The relevancy of the reports depends not on whether they were binding on the parties, but on whether they provided probative evidence as to whether certain of the contract specifications had been properly performed. The plaintiff does not contend that the engineer’s reports are unrelated to the disputed contractual matters in this case.

Because we must remand for a new trial, we need not discuss the other claims of error made by the defendant.

Appeal No. 3103-Howard Asal Construction Co. v. DiLoreto

Pursuant to a contract dated April 24, 1979, Asal agreed to pave 40,000 square feet at a price of $10,000 and to provide additional paving as requested at $.22 per square foot. Asal also orally agreed to rent equipment to the defendant and provide top soil as needed. Upon completion, the defendant was indebted to Asal in the amount of $8384.25, which he refused to pay.

Asal brought suit against the defendant for breach of contract. The defendant denied liability for any services provided during June of 1979. As a result of the suit brought by Mac’s against the defendant, the defendant counterclaimed against Asal for improper workmanship.

After a trial, the court rendered judgment for the plaintiff on the complaint and on the defendant’s counterclaim. The court awarded Asal damages of $8034.25, plus interest from June 1,1979 to March 1, 1984, at 1 percent per month pursuant to the contract, and attorney’s fees equal to $4400, for a total judgment of $16,933.43. Subsequently, the parties agreed to reduce the interest by $160.69 which resulted in a final judgment of $16,772.74.

The defendant claims that the trial court erred (1) in imposing liability upon the defendant for additional paving services and for equipment and materials furnished during June, 1979, (2) in awarding Asal prejudgment interest, and (3) in awarding Asal attorney’s fees. We find no merit in these claims.

The defendant’s first claim of error implicates the factfinding function of the trial court. The record supports the findings of facts and the legal conclusions drawn by the trier. We will not retry the case. Cookson v. Cookson, 201 Conn. 229, 242-43, 514 A.2d 323 (1986); Pandolphe’s Auto Parts, Inc. v. Manchester, supra.

In his second claim, the defendant contends that the trial court erred in awarding the plaintiff prejudgment interest. “The allowance of interest as an element of damages is . . . primarily an equitable determination and a matter lying within the discretion of the trial court.” Bertozzi v. McCarthy, 164 Conn. 463, 467, 323 A.2d 553 (1973). We find no abuse of discretion here. See H. B. Toms Tree Surgery, Inc. v. Brant, 187 Conn. 343, 348, 446 A.2d 1 (1982); Wells Laundry & Linen Supply Co. v. Acme Fast Freight, Inc., 138 Conn. 458, 463, 85 A.2d 907 (1952).

Nor can we find error in the court’s calculation of the interest award. The defendant asserts that the court erred by awarding interest on the entire judgment at a rate of 1 percent a month, the amount provided by the written contract. The defendant contends that because the plaintiff performed work for the defendant under both an oral and a written contract, the court could only legally award interest at 1 percent a month on those damages that resulted from a breach of the written contract, and could only award the lower statutory rate of interest on those damages that resulted from a breach of the oral contract. See General Statutes § 37-3a. The trial court, however, never specified whether any of the $8032.25 damage award resulted from a breach of the oral contract. It is the appellant’s responsibility to provide an adequate record for review. Practice Book § 4061; Thiel Realty Corporation v. Culligan Water Conditioning Co., 9 Conn. App. 191, 193, 517 A.2d 1052 (1986). Without an adequate record specifying whether any part of the damages award was attributable to the oral contract, we cannot say that the trial court’s interest award was clearly erroneous.

In his third claim, the defendant contends that the trial court erred in its award of attorney’s fees. The trial court based its award on a contractual provision providing that “all costs of collection, including attorney’s fees, will be added, if necessary to place this account for collection.” At trial, the plaintiff introduced evidence as to reasonable attorney’s fee for an attorney in the relevant geographical area, but introduced no evidence as to the actual fees incurred. The defendant claims that the court erred in awarding attorney’s fees in the absence of such evidence.

We agree that the trial court could reasonably construe the term “attorney’s fees” in the parties contract as a provision for “reasonable attorney’s fees,” thereby permitting it to base its award on factors other than the actual expense incurred by the prevailing party. In cases where there is a contractual provision allowing “reasonable attorney’s fees,” our Supreme Court has required that there be an evidentiary showing of reasonableness, with the award to be based on a number of considerations not limited to the actual fee incurred by the party. See Bizzoco v. Chinitz, 193 Conn. 304, 310, 476 A.2d 572 (1984); Appliances, Inc. v. Yost, 186 Conn. 673, 680, 443 A.2d 486 (1982); Piantedosi v. Floridia, 186 Conn. 275, 279, 440 A.2d 977 (1982). We construe the term “attorney’s fees” as an award for “reasonable attorney’s fees” in this case because the term “reasonable” is implied by law even when it is absent in the contractual provision. Cf. Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 246, 440 A.2d 306 (1982) (contract clause providing for award of attorney’s fees “incurred” requires reimbursement of actual expenses, provided amount is reasonable). While the defendant claims that an award of attorney’s fees not based on the plaintiff’s actual expenses could result in excess damages to the plaintiff, the plaintiff’s right to recovery derives from its contract and not from a claim for damages. Storm Associates, Inc. v. Baumgold, supra, 245; Litton Industries Credit Corporation v. Catanuto, 175 Conn. 69, 76, 394 A.2d 191 (1978). In such cases, the method of determining damages used by the trial court is permissible. Piantedosi v. Floridia, supra.

In Appeal No. 3101, Crest Plumbing & Heating Co. v. DiLoreto, there is no error.

In Appeal No. 3102, Mas’s Car City, Inc. v. DiLoreto, there is error, the judgment for the plaintiff on both the complaint and the counterclaim is set aside and the case is remanded for a new trial.

In Appeal No. 3103, Howard Asal Construction Co. v. DiLoreto, there is no error.

In this opinion the other judges concurred.

       While two of the plaintiffs brought suit against other defendants in addition to Paul DiLoreto, only DiLoreto defended the cases at trial, and only DiLoreto has appealed.

       The agreement provided, in pertinent part, that Alfred Wilner, Inc., would provide services as follows:
      “During construction the job will be visited no less than once a month by an engineer or architect in our employ. A written report will be prepared each month that includes the following:
      “1. A trade-by-trade description of the job indicating the status of completion.
      “2. Confirmation by our inspector that, to the best of our knowledge, the work is proceeding in general accordance with approved plans and specifications based on our periodic visits to the site. In the absence of such compliance known to us, we may recommend corrective action.
      “3. Examination of test reports available to us affecting such items as compaction of fill materials, structural steel, pile logs, concrete strengths, etc. Substantial deviation from allowable values will be brought to the lender’s and contractor’s attention and corrective measures may be suggested.
      “4. The percentage of completion of the job is reported. If desired, the contractor’s monthly requisition can be reviewed. The time of the inspection will be coordinated with the lender and borrower so that draw schedules can be met.
      “5. A set of Polaroid or color progress photographs.
      “6. Such other information as we deem to be in the lender’s best interest such as weather affecting project progress, strikes, etc. When construction of the building is completed, we will perform a final inspection. If the results so indicate, we will issue a letter stating that to the best of our knowledge work was accomplished in general accordance with the approved plans and specifications based on our periodic visits to the site and terms of our contract evidenced by local documentation such as certificates of occupancy, fire underwriter certificates, etc. as are available to us.”

       The pertinent portions of the testimony and rulings by the court are as follows:
      Direct Examination by Mr. Pontacoloni:
      “Q. Mr. Schmeltz, could you tell-the Court please your occupation?
      “A. Yes. I’m the manager of portfolio administration for the Installment Loan Department at American National Bank.
      “Q. And in that capacity, Mr. Schmeltz, are you familiar with the loan of American National Bank to Mac’s Car City in December of 1978?
      “A. Yes
      “Q. And what is the basis of that familiarity?
      “A. Reviewing the documentations in the file.
      “Q. Were you employed by the bank at that time?
      “A. No, I was not.
      “Q. But you have had an opportunity to review the bank’s file with respect to that loan transaction?
      “A. Yes, I have.
      “Q. And in the course of your review did you familiarize yourself with the documents on record?
      “A. To a certain degree, yes.
      “Q. And would you tell the Court please is the bank’s general course of business to keep a record of those documents that you found on file?
      “A. Yes.
      “Q. Mr. Schmeltz, I’m going to show you this collection of papers here and I ask you if you can identify those papers?
      “A. They are documents from the mortgage files. There are some reviews by the engineer, there’s some disbursement records and there’s an appraisal of the property dated June 17, 1980.
      “Q. Excuse me, Mr. Schmeltz.
      “A. Yes.
      “Q. Just one moment. I hate to interrupt. I believe this was picked up accidently. Basically these items that you’re now holding—

        “A. There are memos in the file, field inspections by the engineer.
      “Q. When you say the engineer, what engineer?
      “A. Alfred Wilner.
      “Q. And do you know what his involvement was with this transaction?
      “A. To my knowledge he would do a physical inspection of the property prior to releasing of funds on the construction mortgage.

        “Q, And those were his reports with respect to the inspections that he made?
      “A. Yes.
      “Mr. Pontacoloni: Your Honor, at the present time I’m going to move for the admission of the documents as business records and for the submission of copies in lieu of the originals on the basis of the evidence that has been presented.
      [objection interposed]
      “The Court: Were these records made by the bank?
      “Mr. Pontacoloni: They were made by an agent of the bank, Your Honor.
      “The Court: That’s not quite what I asked you. I said were they made by the bank?
      “Mr. Pontacoloni: To that extent I guess I can only say they were made by an agent of the bank. He was employed by the bank for the purposes of compiling these records.
      “The Court: You mean they hired some other business to do something for them?
      “Mr. Pontacoloni: Yes, your Honor.
      “The Court; Well, now, that doesn’t make it a record of the bank. It makes it the record of some other business, doesn’t it?
      “Mr. Pontacoloni: Technically speaking, your Honor, I believe that it does,
      “The Court: Objection sustained.
      “Mr. Pontacoloni: May I also have an exception, your Honor?
      “The Court: Why not.”

       While we do not address the remaining claims of error, we note that the plaintiff has conceded, and we agree, that the trial court erred in its computation of the interest award. It is evident from the trial court’s memorandum of decision that interest was awarded to the plaintiff at a rate of 8 percent per annum for the fifty-six month period from July 1, 1979, to March 1, 1984. During the period from July 1, 1979, through September 30, 1979, however, the plaintiff was entitled to interest at only 6 percent per annum. See General Statutes § 37-3a; Public Acts 1979, No. 79-364, § 2. Furthermore, we also note that the plaintiff has conceded that the trial court erred in the calculation of damages, stating that the damage award plus interest should be modified to reflect damages of $45,183.43 and not $46,469.33.

       In response to the defendant’s motion for articulation, the trial court articulated the factual basis for its award of $8034.25 as follows: “[I]n reaching this conclusion the court relied on the testimony of Howard Asal and the exhibits before the court. The work performed consisted of paving work done under a written contract and rental of equipment, top soil, etc. requested orally and supported by signed slips for each item rented and/or delivered. These totaled $16,384.25. . . . Toward this, payments of $8000 were made leaving $8384.25 outstanding. From this item was deducted $350, disputed by the defendant, leaving a balance due of $8034.25.” Although the court found that the defendant paid $8000 toward the total balance owed on both the oral and written contracts, it did not specify towards which contract this sum was attributable. It is possible that the trial court could have found that this sum covered the balance owed under the oral contract and that the $8034.25 damage award was attributable solely to a breach of the written contract. We cannot determine, therefore, whether any portion of the trial court’s damage award was attributable to the oral contract.