author: Daly, J.

text:
    Marjorie Belanger, Administratrix (Estate of Patrick Belanger) v. Village Pub I, Inc., et al. Marjorie Belanger, Administratrix (Estate of Patrick Belanger) v. John J. Cimino et al.
    (9850)
    Daly, Foti and Landau, Js.

      Argued November 7, 1991
    decision released February 4, 1992

      Elaine J. Kraucunas, for the appellants (defendants).

      Michael C. Jainchill, with whom, on the brief, was Everett H. Madin, law student intern, for the appellee (plaintiff).
   Daly, J.

The defendants appeal from a jury verdict rendered for the plaintiff, the administratrix of the estate of her deceased son, Patrick Belanger. The plaintiff instituted two separate actions against the defendants. The first was based on General Statutes § 30-102, the second alleged reckless and wanton misconduct in the dispensing of alcoholic beverages by the defendants. The actions were ordered consolidated and resulted in verdicts in favor of the plaintiff. The defendants claim that the trial court improperly (1) prevented the defendants from raising contributory or comparative negligence defenses pursuant to General Statutes § 52-572h, (2) prohibited the admission of evidence of a settlement agreement with the operator of the motor vehicle who was testifying as a witness for the plaintiff, (3) determined that there was sufficient notice as required by General Statutes § 30-102, (4) refused to grant the defendants’ motion to strike the substitute complaint, (5) prevented superseded complaints from being introduced into evidence and (6) charged the jury concerning the doctrine of respondeat superior. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On August 28,1987, Patrick Belanger was operating a motor vehicle traveling north on Route 8 in Naugatuck. At approximately 1 a.m., Gary Grady was driving his jeep south on Route 8. The jeep crossed into the northbound lane causing a head-on collision that resulted in the death of Belanger. At 2:18 a.m., Grady registered a blood alcohol level of 0.313.

During the evening of August 27,1987, and into the early morning of August 28, Grady had been drinking alcohol at Gabriella’s Cafe in Southington. Grady and a friend both testified that the cafe employees served him excessive amounts of alcohol. At one point, Grady’s friend asked the bartender not to serve any more drinks to Grady because he was intoxicated. The bartender, however, continued to serve alcohol to Grady until approximately 12:30 a.m. John Cimino was the permit-tee of Gabriella’s Cafe, and Village Pub I, Inc., was the corporate owner of the bar. Cimino is the president and sole shareholder of Village Pub I, Inc.

I

The defendants first claim that the trial court’s decision to strike its special defense of contributory negligence was improper. The trial court struck the special defense to both of the plaintiff’s causes of action, concluding that because neither involved an allegation of negligence, General Statutes § 52-572h was not applicable.

General Statutes § 30-102 created a new cause of action not available at common law. Pierce v. Albanese, 144 Conn. 241, 249, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957). “The delict defined by § 30-102 is not the sale of liquor to create a condition of intoxication. It is rather the sale of liquor to one who is already intoxicated. No causal relation between the sale and the injury is required.” Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 348-49, 493 A.2d 184 (1985). Our Supreme Court has held that contributory negligence is not a defense in an action pursuant to § 30-102. Sanders v. Officers Club of Connecticut, Inc., supra, 352.

The second action alleged that the defendants were reckless by dispensing intoxicating liquor to Grady. The trial court struck the defendants’ special defense of contributory negligence to this complaint also. An action that alleges the sale of intoxicating liquors in a “wanton and reckless manner” was recognized and allowed by our Supreme Court in Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980). The terms wanton and reckless in practice mean the same thing. Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988). Both terms refer to “ ‘highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.’ . . .’’Id., quoting W. Prosser & W. Keeton, Torts (5th Ed.) § 34, p. 214. A cause of action claiming wanton and reckless misconduct is “separate and distinct” from a cause of action alleging negligence. Kostiuk v. Queally, 159 Conn. 91, 94, 267 A.2d 452 (1970). At common law, contributory negligence was not a defense to a cause of action alleging wanton and reckless misconduct. Id., 93; Decker v. Roberts, 125 Conn. 150, 157, 3 A.2d 855 (1939).

General Statutes § 52-572h specifically applies to negligence actions. For example, § 52-572h (b) provides: “In causes of action based on negligence, contributory negligence shall not bar recovery . . . .” Another section of the statute refers to a “negligence action” when determining the proportionate share of damages. General Statutes § 52-572h (c). The statute further states that it applies to “all parties whose negligent actions were a proximate cause of the injury . . . .” General Statutes § 52-572h (d). When the language of a statute is clear, a court “must interpret the statute as written.” Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987). Thus, according to its plain language, § 52-572h applies only to negligence actions.

There is no cause of action “in negligence against one who furnished . . . intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another.” Kowal v. Hofher, supra, 357. Because this cause of action is not based on negligence, the principles of comparative negligence of § 52-572h are not applicable to limit the plaintiff’s recovery in this case. In the present case, the defendants were not entitled to raise the defense of contributory negligence by the plaintiff to the cause of action alleging wanton and reckless misconduct. Thus, the trial court properly struck the special defense of contributory negligence raised by the defendants.

II

The defendants’ second claim concerns the trial court’s failure to admit evidence of a settlement agreement between the plaintiff and Grady. Grady testified on behalf of the plaintiff. During cross-examination, the defendants wanted to use evidence of this settlement agreement to show that Grady was biased. The defendants argue that the plaintiff’s causes of action are really negligence actions that should be controlled by § 52-572h. According to the defendants’ argument, § 52-572h would allow the admission of the settlement agreement in this case to enable the factfinders properly to apportion liability by having full knowledge of all potential tortfeasors. We find no merit to the defendants’ argument.

As noted above, § 52-572h is not applicable to this case because neither cause of action involves a claim of negligence by the defendants. General Statutes § 52-216a prohibits the introduction of evidence about a settlement agreement or a release of a claim by any party during a jury trial. A settlement agreement is not admissible for any purpose in a jury trial. General Statutes § 52-216a. The purpose of this statute is to “ensure that jury verdicts would not be influenced by the knowledge of a partial settlement.” Civiello v. Owens-Corning Fiberglass Corporation, 208 Conn. 82, 93, 544 A.2d 158 (1988).

Section 52-216a provides for the proper apportionment of damages through a court order of either additur or remittitur. The trial court, not the jury, is responsible for ensuring that a party is not unjustly enriched. In the present case, the court properly applied § 52-216a and reduced the plaintiffs verdict by the amount received from Grady’s insurer.

Ill

The defendants’ third claim involves the trial court’s denial of the motion to strike the plaintiff’s dram shop complaint filed on the ground of the plaintiff’s failure to notify the seller as required by § 30-102. The defendants assert that Cimino did not receive notice as the permittee. Village Pub I, Inc., the corporate owner of the cafe, received proper and timely notice. Cimino was named in the notice to Village Pub I, Inc., but was not referred to as the permittee in that notice. He did not claim that he lacked actual notice of the plaintiffs cause of action. Cimino is the president and sole shareholder of Village Pub I, Inc. Cimino first raised this claim in his motion to dismiss on November 23, 1988, three months after an appearance was entered by defense counsel. The trial court held that Cimino was the alter ego of the corporation, Village Pub I, Inc., which received proper notice.

In order to maintain an action pursuant to § 30-102, the plaintiff must give written notice to the seller of alcohol within sixty days from the date of the injury. The notice requirement of § 30-102 enables a defendant to gather evidence while witnesses’ memories are still fresh. Zucker v. Vogt, 329 F.2d 426, 428 (2d Cir. 1964). Because § 30-102 is remedial in nature, it should be interpreted liberally “ ‘to suppress the mischief and advance the remedy.’ ” Pierce v. Albanese, supra, 251.

The purpose of the notice provision of the dram shop act was satisfied in this case. The plaintiff notified both the corporation and Cimino, the permittee, when it sent the notice to Village Pub I, Inc. Cimino was not hindered from gathering evidence to prepare a defense in this case. The plaintiff did not have to refer specifically to Cimino as the permittee to bring Cimino within the meaning of seller as required by § 30-102. The plaintiffs failure to refer specifically to Cimino as permit-tee did not prevent Cimino from being properly notified about the existence of the claim against him. Because the purpose of the notice requirement of § 30-102 was met in this case, the trial court’s refusal to strike the plaintiff’s complaint was proper.

IV

The defendants next claim that the court abused its discretion by refusing to strike the plaintiff’s substitute complaint. The defendants argue that Grady’s payment to the plaintiff constituted full satisfaction of the claim arising from the accident as against all defendants. The defendants characterized this payment by Grady as being full satisfaction for the plaintiff’s harm. Thus, according to the defendants, the plaintiff was prohibited from pursuing a claim against these defendants.

“[A]n injured party is entitled to full recovery only once for the harm suffered.” Peck v. Jacquemin, 196 Conn. 53, 70 n.19, 491 A.2d 1043 (1985). The plaintiff would not be entitled to recover damages from these defendants if the payment by Grady constituted full recovery for damages resulting from the accident. “Double recovery is foreclosed by the rule that only one satisfaction may be obtained for a loss that is the subject of two or more judgments.” 2 Restatement (Second), Judgments § 49, comment a. Grady’s payment to the plaintiff was not a satisfaction of a judgment. Only if the payment were in satisfaction of a judgment in an action in which the measure of the plaintiff’s loss was actually litigated would the plaintiff be unable to recover a judgment against these defendants. 2 Restatement (Second), Judgments § 50, comment d. Because Grady’s payment was not based on actual litigation of the measure of loss resulting from Belanger’s death, the payment did not prevent the plaintiff from recovering from these defendants.

The effect of releases and settlements on a plaintiff’s ability to recover against multiple defendants is governed by § 52-216a. “[Releases and settlements differ genuinely from satisfied judgments. The former represent a surrender of a cause of action, perhaps for a consideration less than the injury received. The latter, on the other hand, represent full compensation for injuries.” Gionfriddo v. Gartenhaus Cafe, 211 Conn. 67, 74 n.8, 557 A.2d 540 (1989). The plaintiff’s agreement to release her claim against Grady for $50,000 did not act as a release against the remaining defendants. See General Statutes § 52-216a. The payment by Grady for release of the plaintiff’s claim acted only to decrease the plaintiff’s subsequent recovery against the remaining defendants. The court prevented the plaintiff from receiving a double recovery by reducing the verdict against the defendants to take into account the payment by Grady. Therefore, the court’s refusal to strike the plaintiff’s substitute complaint was proper.

V

The defendants next claim that the court’s refusal to admit previous complaints into evidence as admissions by the plaintiff was improper. The defendants argue that the differences between the original and substituted complaints changed the plaintiff’s theory of liability and recovery. The following facts are relevant to this claim.

The plaintiff filed her original complaint on October 17,1988. The original complaint alleged that Grady was visibly intoxicated at approximately 1 a.m. and that Village Pub I, Inc., continued to serve alcohol to him with “full knowledge” of Grady’s intention to operate a motor vehicle. The plaintiff sought to modify the original complaint with a substitute complaint filed on August 15, 1990. The substitute complaint was withdrawn before the court granted leave to amend the original complaint. The proposed modified complaint sought to change the time from 1 a.m. to 12:30 a.m., to add the word “said” before Grady’s name and to change the reference from “full knowledge of Gary Grady’s intention to operate an automobile” to “with knowledge of the likelihood of Gary Grady’s intention to operate an automobile.” On August 23, 1990, with the court’s permission, the plaintiff amended her original complaint. The court ruled that this substituted complaint would be the operative complaint. The substituted complaint differed from the original complaint in that it included the time reference of 12:30 a.m., the insertion of the word “said” before Grady’s name and the omission of the word “thereafter” from the original complaint. The court read the operative pleadings but did not submit the pleadings to the jury. The defendants’ counsel sought to introduce the prior pleadings as inconsistent statements by the plaintiff during the testimony of Cimino. The defendants contend that the previous complaints were evidentiary admissions as to the plaintiff’s changing theory of liability and recovery.

“The words and acts of a party-opponent are generally admissible against him under the admission exception.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 11.5.1. Statements in a withdrawn or substituted complaint may be considered as evidential admissions by a party. See DiFederico v. McNamara, 181 Conn. 54, 55, 434 A.2d 320 (1980). The change in the substitute complaint from the original complaint was only a minor modification to conform to the evidence offered at trial. The only change related to the approximate time that Grady was served alcohol while being visibly intoxicated.

Even if we assume that these statements should have been admitted as admissions by the plaintiff, the defendants must prove that the error by the trial court was harmful. Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990). The defendants have failed to show that the court’s refusal to admit these minor changes in the substituted complaint “would likely affect the result” of this case. Manning v. Michael, 188 Conn. 607, 611, 452 A.2d 1157 (1982). Even if these minor changes constituted an admission by the plaintiff, they did not change her theory of liability and recovery. In both versions of the complaint, the plaintiff alleged that the defendants acted in a wanton and reckless manner. Thus, the theory of liability and recovery was not affected by the minor changes made in the substituted complaint. On the basis of our review of the record, we conclude that the admission of these changes would not have changed the result in this case. Thus, the defendants have failed to show that the alleged error was harmful.

VI

The defendants’ last claim concerns the court’s charge to the jury on the concept of respondeat superior. The defendants argue that the court’s failure to charge on respondeat superior as requested was improper. The defendants, in their written request to charge, sought to instruct the jury: “In this case, the plaintiff must prove to the extent you find proven, that the barmaid on the night in question, in serving Gary Grady, was acting in obedience to-the express orders or directions of Mr. Cimino. If the barmaid deviated from said express or implied orders the barmaid alone is responsible.” The court did not incorporate this specific requested instruction. The court, in its charge on respondeat superior, noted that the employee’s disobedience of an employer’s order does not amount to a defense for the employer. The court explained that, to hold the employer liable, the employee must have been acting within her scope of employment in furtherance of the employer’s business. The defendants took exception to the court’s charge.

It has long been recognized that “[a] master is liable for the wilful torts of his servant committed within the scope of the servant’s employment and in furtherance of his master’s business.” Pelletier v. Bilbiles, 154 Conn. 544, 547, 227 A.2d 251 (1967). “The doctrine of respondeat superior focuses on the employee’s conduct rather than on the employer’s knowledge or approval of the acts. If the employee acted with apparent authority in furtherance of employer business, the employer’s consent or ratification of the misconduct is irrelevant . . . even an innocent employer must compensate an injured party.” Paine Webber Jackson & Curtis, Inc. v. Winters, 22 Conn. App. 640, 646, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990). The doctrine of respondeat superior, which makes the employer liable for actions by an employee, is based on public policy considerations that the employer “shall be held responsible for the acts of those whom he employs, done in and about his business, even though such acts are directly in conflict with the orders which he has given him on the subject.” (Emphasis added.) Stulginski v. Cizauskas, 125 Conn. 293, 296, 5 A.2d 10 (1939). Therefore, the defendants’ requested instruction that the employee’s failure to follow the employer’s orders relieved the employer from liability for the employee’s actions was an incorrect statement of law. The trial court properly refused to instruct the jury as requested by the defendants.

The jury instructions correctly explained the meaning of respondeat superior. The instructions emphasized that the jury had to find that the bartender was acting in furtherance of the employer’s business and in the course of her employment. The defendants were entitled to jury instructions that are correct in law, adapted to the issues and sufficient to guide the jury. Olshefski v. Stenner, 26 Conn. App. 220, 224, 599 A.2d 749 (1991). The court’s instructions satisfied this standard.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 30-102, also known as the dram shop act, provides: “If any person, by himself or his agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages . . . .”


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    John W. Naftzger v. Naftzger and Kuhe, Inc., et al.
    (9853)
    O’Connell, Lavery and Heiman, Js.
    Argued November 6, 1991
    decision released February 4, 1992

      Charles Miller, with whom, on the brief, was Richard E. Joaquin, for the appellants-appellees (defendants).

      Paul H. D. Stoughton, for the appellee-appellant (plaintiff).
   Lavery, J.

The defendants appeal from the judgment rendered on December 18, 1990, by the trial court in accordance with an attorney trial referee’s report. The attorney trial referee found that the defendants had waived the arbitration clause in the agreement with the plaintiff by failing to seek enforcement of the clause until the end of the hearing before the attorney trial referee. He further found that the defendant H. James Kuhe had defaulted under a modification of a promissory note and recommended that judgment enter in favor of the plaintiff in the amount of $135,267.66 plus costs. In this appeal, the defendants claim that (1) the attorney trial referee lacked subject matter jurisdiction, (2) the plaintiff breached the terms of the parties’ agreement by failing to proceed with arbitration as a condition precedent to any litigation, and (3) both the attorney trial referee and the trial court lacked subject matter jurisdiction to decide that the defendants had waived the arbitration provision. The plaintiff has filed a cross appeal challenging the manner in which the attorney trial referee calculated the interest portion of the judgment. We affirm the judgment of the trial court in all respects.

The plaintiff and the defendant Kuhe were equal partners in the named defendant corporation, Naftzger and Kuhe, Inc. On March 4,1986, the parties entered into a stock redemption agreement. By the terms of their agreement, the plaintiff was to transfer his 50 percent interest in the corporation to Kuhe for a price of $300,000. On March 4, 1986, the parties signed three documents to effectuate the sale: (1) the stock redemption agreement, which set forth terms of the sale; (2) a consulting agreement, under which the plaintiff was to be paid $120,000; and (3) a promissory note payable to the plaintiff in the amount of $180,000, executed by Kuhe both personally and in his capacity as president of the corporation. The $120,000 compensation pursuant to the consulting agreement was paid in full. The defendants failed to pay the promissory note according to its terms, however, missing the first payment entirely, and making only a single $60,000 payment in July, 1988. The defendants made no further payment on the note. Subsequent to default, the plaintiff demanded payment.

The consulting agreement contained an arbitration clause providing that any dispute relating to the stock redemption agreement, the consulting agreement or the promissory note would be settled by arbitration at the election of either party. The promissory note provided that in the event of default, the defendants would pay interest at 12 percent per annum from the date of default until the balance due under the promissory note had been paid in full, and the defendants would pay costs and expenses of collection, including reasonable attorney’s fees.

The plaintiff did not file any notice of an arbitration claim, but on March 29, 1988, filed suit to recover the amount due under the promissory note. A hearing was conducted before an attorney trial referee on September 13, 1990. After both the plaintiff and defendants presented all their evidence, the defendants’ counsel made a demand for arbitration pursuant to the terms of the agreement and moved to dismiss the suit, pending arbitration of the dispute. The attorney trial referee denied the motion to dismiss.

The attorney trial referee filed findings of fact with the Superior Court on November 9,1990. In the findings of fact, he found that the defendants had waived the arbitration clause by failing to seek its enforcement until the end of the hearing. He further found that the defendants had defaulted on the promissory note and recommended that judgment enter in the sum of $126,000 plus interest from March 4,1990, at the statutory rate, plus attorney’s fees in the sum of $9267.66, plus costs. The trial court thereafter rendered judgment in accordance with the attorney trial referee’s report.

The defendants first claim that the attorney trial referee lacked subject matter jurisdiction to hear the case because arbitration was a mandatory prerequisite. The defendants argue that under Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986), because this is a jurisdictional claim and not a challenge to a factual finding or conclusion, we may consider the claim. We disagree.

In Seal Audio, our Supreme Court examined the challenge to the attorney trial referee system despite the defendant’s failure to comply with relevant rules of practice, concluding that the appointment of trial referees is constitutional. Id., 508-509. The court refused, however, to examine the various claims relating to the merits of the factual findings of the attorney trial referee and the subsequent judgment rendered by the trial court. Id., 518.

Here, the defendants concede that a party must comply with Practice Book §§ 438 through 441 in order to seek appellate review of the factual findings and conclusions of an attorney trial referee and trial court’s judgment. The defendant did not file a motion to correct the findings of fact pursuant to § 438, nor did he file exceptions to the report pursuant to § 439. Likewise, the defendant failed to file an objection to the trial court’s acceptance of the report pursuant to §§ 440 and 441.

“[T]he defendant is precluded from effective appellate review by its failure to file a motion to correct the report of the referee pursuant to Practice Book § 438 or an objection to acceptance thereof pursuant to Practice Book § 440.” Seal Audio, Inc. v. Bozak, Inc., supra. Although the defendants have couched their claim in terms of lack of subject matter jurisdiction, it is in reality a challenge to the attorney trial referee’s factual finding that the parties had waived their right to arbitration. Such a claim cannot prevail, especially in light of the fact that the defendants have disregarded the rules of practice. “A litigant cannot wholly ignore established procedures for the protection of its rights, as this defendant has done, and hope to receive on appeal the same treatment accorded to those who follow the rules of practice.” Id.

It is undisputed that the agreement contained a provision requiring arbitration of disputes. As in any contract provision, the parties may waive an arbitration provision. Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 432, 534 A.2d 213 (1987). Indeed, “an arbitration clause may be waived by the parties or by the one entitled to its benefit. . . . The same result follows from going to trial without insisting upon the arbitration condition.” (Citations omitted.) Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 11, 110 A.2d 464 (1954); Giulietti v. Connecticut Ins. Place ment Facility, supra. “Our review of the trial court’s determination is guided by the principle that, because waiver and estoppel are questions of fact; New York Annual Conference v. Fisher, 182 Conn. 272, 300, 438 A.2d 62 (1980); we will not disturb the trial court’s findings unless they are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Hanover Ins. Co. v. Fireman’s Fund Ins. Co., 217 Conn. 340, 350, 586 A.2d 567 (1991).

In this case, both parties had participated in the litigation process from March, 1988, to September, 1990, without seeking enforcement of the arbitration provision. Finally, after a full day’s hearing that included the presentation of all evidence by both parties, the defendants’ counsel sought enforcement of the arbitration provision, presumably after determining that the hearing was not going as he had hoped it would. “We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967); Diamond Fertiliser & Chemical Corporation v. Commodities Trading International Corporation, 211 Conn. 541, 553, 560 A.2d 419 (1989); Seal Audio, Inc. v. Bozak, Inc., supra, 517. In the present case, there was ample support for the attorney trial referee’s finding that the defendant had waived the arbitration provision. Because the trial court properly rendered judgment that the arbitration provision was waived by the parties, we need not reach the defendant’s remaining claims.

In his cross appeal, the plaintiff has similarly failed to comply with the requirements of Practice Book §§ 338 through 441. Because the plaintiff did not comply with the rules of practice regarding appellate review of the factual findings and conclusions of the attorney trial referee and the judgment of the trial court, we decline to review his cross appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The promissory note provided in part: “NAFTZGER & KUHE, INC., a Connecticut corporation (hereinafter called the ‘Company’), for value received, hereby promises to pay John W. Naftzger, the principal sum of One Hundred Eighty Thousand Dollars ($180,000) in six (6) equal semiannual installments of Thirty Thousand Dollars ($30,000) each, without interest, on the following dates:
      March 4, 1988
      September 4, 1988
      March 4, 1989
      September 4, 1989
      March 4, 1990
      September 4, 1990 . . . .”

       At oral argument, counsel for both parties stated that they had consented to litigate their dispute prior to the hearing before the trial referee on September 13, 1990.

       We also note that the defendant gladly consumed the time of the attorney trial referee and the judicial system until he sought enforcement of the arbitration provision. Such a tactic is not in accord with the policy of efficient use of judicial resources. See Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5 Conn. App. 579, 582, 501 A.2d 1214 (1985), cert. denied, 198 Conn. 803, 503 A.2d 172 (1986).


text:
    Herbert Emanuelson v. Barbara Emanuelson
    (9942)
    Daly, Norcott and Lavery, Js.
    Argued December 6, 1991
    decision released February 4, 1992

      Wesley W. Horton, with whom was Robert M. Shields, Jr., for the appellant (plaintiff).

      Robert J. Engelman, for the appellee (defendant).
   Daly, J.

The plaintiff appeals from the trial court’s judgment in a marital dissolution action. The plaintiff claims that the trial court abused its discretion in making its financial orders and its order that the plaintiff pay the defendant’s counsel fees. We affirm the judgment of the court.

The court found the following facts. The parties were married on July 18,1953. At the time of trial, the plaintiff was sixty-one years old. He is a private attorney who worked as a solo practitioner specializing in estate planning. The defendant, who was fifty-eight years old at trial, did not work outside the home for most of the marriage. She concentrated on raising the parties’ children and supporting the plaintiff’s professional career.

The mortgage on the marital residence was paid off by the plaintiff and there were no encumbrances on the property at the time of trial. The value of the jointly owned residence was determined to be $260,000. The plaintiff accumulated $147,550 in pension and profit sharing plan benefits. He also developed a securities account that had a market value of $143,179. The defendant owned securities and cash totaling approximately $273,000 at the date of trial. Most of this money came from gifts and inheritances. While separated from the plaintiff, the defendant began taking care of an elderly person and was paid $160 a week.

In the fall of 1987, the plaintiff hired a new secretary for his office. By August 1988, she became office manager of the plaintiff’s law firm. The plaintiff moved out of the marital residence in August, 1988. The plaintiff denied any romantic involvement with his office manager. During the period of his separation from the defendant, the plaintiff guaranteed a new mortgage on the office manager’s home. He also paid for the addition of a new porch onto her home.

Prior to the parties’ separation, the plaintiff was a partner in the law firm of Emanuelson and Church. In August of 1989, the plaintiff lost his largest and most lucrative client. That client had accounted for about 50 percent of the gross revenues generated by Emanuel-son and Church. The plaintiff was involved in a lawsuit with his former partner over the dissolution of Emanuelson and Church. Margaret Church testified that she felt that the office was making unnecessary payments to the office manager and another secretary who were not really needed because of the firm’s small size.

In the present case, the court rendered a judgment dissolving the parties’ marriage. The court ordered the plaintiff to pay $4167 a month as periodic alimony. It also awarded the defendant sole ownership and possession of the marital residence. The plaintiff was further ordered to maintain a $225,000 life insurance policy on his life for the benefit of the defendant. The plaintiff also had to provide three years of medical insurance coverage for the defendant. The court required the plaintiff to make a lump sum payment of $25,000 to the defendant within six months from the date of judgment. The plaintiff also was ordered to pay the defendant’s counsel fees, which amounted to $7000.

The plaintiff filed a motion for articulation seeking clarification as to what the court determined to be his weekly income and his earning capacity for the calculation of its alimony award. In response, the court further explained the factors that led to its financial awards in this case.

I

The plaintiff first claims that the court’s financial awards to the defendant were excessive and constituted an abuse of discretion. The plaintiff argues that these awards indicate that the court failed to consider the factors established by General Statutes §§ 46b-82 and 46b-81.

General Statutes § 46b-81 (c) requires the trial court to evaluate certain factors before distributing the parties’ assets in a marital dissolution action. Although the court must evaluate all the factors listed, it has broad discretion when applying the statutory factors to assign the parties’ assets. O’Neill v. O’Neill, 13 Conn. App. 300, 312, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). “ ‘Our case law is clear that a trial court is free to weigh the relevant statutory criteria without having to detail . . . what importance it has assigned to the various statutory factors. . . .’ ” Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983), quoting Tutalo v. Tutalo, 187 Conn. 249, 251-52, 445 A.2d 598 (1982). Because of a trial court’s broad discretion when making financial awards, on review we examine only whether the court properly applied the law and whether its conclusions were reasonably reached. Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990). “In deciding whether the trial court could reasonably conclude as it did on the basis of the evidence before it, every reasonable presumption should be indulged in favor of the correctness of its action.” Id. “The conclusions which we might reach, were we sitting as the trial court, are irrelevant.” Carpenter v. Carpenter, 188 Conn. 736, 741, 453 A.2d 1151 (1982).

The statutory factors for determining alimony in § 46b-82 are almost identical to the factors used to distribute property in § 46b-81 (c). See Pasquariello v. Pasquariello, 168 Conn. 579, 583, 362 A.2d 835 (1975). In its memorandum of decision, the court stated that it took into account all the relevant statutory factors for determining financial awards. In response to the plaintiffs motion for articulation, the court clarified the reasons that led to its financial awards. The plaintiff contends that the court’s articulation constituted a new and different decision that is impermissible under Koper v. Koper, 17 Conn. App. 480, 484, 553 A.2d 1162 (1989). In Koper, the trial court’s memorandum of decision explicitly stated that neither party was responsible for the breakdown of the marriage. Id., 481. The court, in its articulation, then stated that because the plaintiff was responsible for the breakdown of the marriage, the defendant was entitled to generous financial awards. Id., 482. We reversed the Koper judgment because the original decision and the articulation were “sharply contradictory”; id., 484; and accordingly the court’s articulation was improper.

In the present case, the articulation did not contradict the court’s memorandum of decision. The court’s memorandum did not mention any of the specific statutory factors used to fashion the financial awards. The articulation revealed what specific evidence led to the court’s distribution of assets and alimony award. There was nothing in the articulation that contradicted the court’s memorandum of decision. The articulation was proper because it provided a thorough explanation of the reasoning behind the court’s awards.

The court noted that the plaintiff caused the breakdown of the marriage. The plaintiff, a lawyer, also maintained a high earning capacity, unlike the defendant who as a homemaker was unable to develop a high earning capacity. The court further found that “[t]he plaintiff was vague about the financial details of his business and this undermined his credibility.” The court also questioned the plaintiff’s alleged financial difficulties because during this period he was still maintaining his same lifestyle. The trial court is responsible for assessing witness credibility and is free to reject testimony it does not find credible. Kelman v. McDonald, 24 Conn. App. 398, 401, 588 A.2d 667 (1991). Our review of the evidence reveals that the property distribution and alimony award were not unreasonable. Thus, the court did not abuse its discretion.

II

The plaintiff next claims that the trial court’s order to pay the defendant $7000 for counsel fees also constituted an abuse of discretion because the defendant’s liquid assets were approximately $270,000. The plaintiff argues that the defendant is not entitled to the benefit of an award of counsel fees.

General Statutes § 46b-62 vests a court with the power to award counsel fees based on its evaluation of the factors used to determine an alimony award. A party’s ability to pay his counsel fees does not prevent a court from awarding counsel fees. Eslami v. Eslami, 218 Conn. 801, 820, 591 A.2d 411 (1991). The court must examine the total financial resources of both parties and if it concludes “that denying an award of counsel fees would undermine its prior financial orders, then it may award counsel fees to the requesting party.” Fitzgerald v. Fitzgerald, 190 Conn. 26, 34, 459 A.2d 498 (1983).

The plaintiff points to the defendant’s liquid assets, the court’s other financial awards and the fact that the defendant has no existing liabilities as evidence that an award of counsel fees is unnecessary. In Eslami v. Eslami, supra, our Supreme Court upheld an award of counsel fees in the amount of $25,000 as well as an award of expert witness fees in the amount of $23,230. The party receiving these awards had $95,000 in liquid assets and received a $300,000 lump sum alimony award. The wife who received these awards in Eslami claimed to have existing liabilities for approximately $70,000. The $25,000 award of counsel fees was upheld based on such factors as the thirty year length of the marriage, the finding that the husband caused the breakdown of the marriage, the husband’s earning capacity as a radiologist and the assets of the parties. Id., 819-20.

Many of the factors found in Eslami also are present in this case. The plaintiff and defendant were married for thirty-five years before their separation. The plaintiff was responsible for the breakdown of the marriage. There also is a great disparity between the parties’ earning capacities. The defendant’s age and employment history led the court to make the financial awards and counsel fees to enable her to maintain her former lifestyle.

Cases involving the award of counsel fees generally fall into three categories: “(1) those in which an award of counsel fees and expenses is not only justified but the denial of such award would be an abuse of discretion because it would substantially undermine the other awards; (2) the broad spectrum of cases in which the granting or denial of counsel fees is within the court’s discretion and therefore will rarely be disturbed and (3) those cases in which . . . the award of counsel fees would constitute an abuse of discretion.” Turgeon v. Turgeon, 190 Conn. 269, 281, 460 A.2d 1260 (1983). The present case fits within the second category. We conclude that the court’s award of counsel fees did not constitute an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-81 (c) provides: “In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employ-ability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       General Statutes § 46b-82 provides in pertinent part: “alimony. At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. ... In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b- 81 . . . .”

       General Statutes § 46b-62 provides in pertinent part: “orders for payment of attorney’s fees in certain actions. In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82.”


author: Heiman, J.

text:
    Richard Bassin v. City of Stamford et al.
    (10336)
    Dupont, C. J., O’Connell and Heiman, Js.
    Argued December 10, 1991
    decision released February 4, 1992

      Nancy Aldrich, for the appellant (plaintiff).

      JohnR. Mitola, for the appellee (named defendant).
   Heiman, J.

The plaintiff in this personal injury action, Richard Bassin, appeals from the trial court’s summary judgment in favor of the defendant city of Stamford. The plaintiff claims that the trial court improperly granted the city’s motion for summary judgment on the basis of the plaintiff’s failure to satisfy the notice provisions contained in General Statutes § 13a-149 because issues of material fact existed concerning whether (1) the notice adequately described the location of the alleged accident, (2) the plaintiff intended to mislead the city regarding the location of the alleged accident and (3) the city was in fact misled regarding the location of the alleged accident. We reverse the trial court’s judgment.

The pertinent facts are as follows. On November 20, 1990, the plaintiff filed a revised complaint claiming that he suffered physical and emotional injuries as the result of tripping over a raised manhole cover and falling in the center of South State Street, outside the Stamford railroad station. The second count of the revised complaint alleged that the city breached its duty to keep the road in repair. See General Statutes § 13a-149. The plaintiff, in an attempt to comply with the notice requirements of § 13a-149, sent a certified letter dated November, 3,1987, to the city. The letter informed the city that the plaintiff was injured after he “tripped on a raised sewer hole at the Stamford Railroad Station on October 18, 1987, at approximately 11:45 P.M., while [he] was exiting the Railroad Station on the Northbound side.” The city filed a motion for summary judgment on May 2,1991, claiming that the plaintiff failed to comply with the notice provisions of § 13a-149. In support of its motion, the city filed an affidavit sworn to by John R. Mitola, its attorney. Mitola stated in the affidavit that because “[t]he only facts necessary for determination of the instant motion for summary judgment can be gleaned from the examination of the court’s file . . . no factual affidavit is necessary to support this motion.” The plaintiff responded by filing a written objection to the motion together with an affidavit sworn to by the plaintiff personally. In his affidavit, the plaintiff did not address the adequacy of the notice. Rather, he simply restated the central allegations contained in his complaint that after he exited the “northbound train at the Stamford Railroad Station, and . . . walked under the underpass to the southside of the station” he was injured when he tripped over a “raised manhole in the center of [South State Street].” The trial court granted the motion for summary judgment, reasoning that (1) the description of the accident’s location was so indefinite that it constituted a complete failure of notice, and (2) even if the notice was simply inaccurate, the plaintiff failed to invoke the saving clause of § 13a-149 by alleging either that the plaintiff did not intend to mislead the city or that the city was not in fact misled. The plaintiff appealed from the trial court’s summary judgment rendered in favor of the city.

Under our rules of practice, any party may move for summary judgment once the pleadings in a case are closed. Practice Book § 379. The party seeking summary judgment bears the burden of showing the nonexistence of any material fact, which is any fact that will make a difference in the result of a case. Cummings & Lockwood v. Gray, 26 Conn. App. 293, 297, 600 A.2d 1040 (1991). To satisfy this burden, the moving party must offer “such documents as may be appropriate, including but not limited to affidavits . . . written admissions and the like.” Practice Book § 380.

“Once the moving party has filed the appropriate documents, the party opposing the motion ‘must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.’ Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984); Connecticut Bank & Trust Co. v. Carriage Lane Associates, [219 Conn. 772, 781, 595 A.2d 334 (1991)]. The mere presence ‘of an alleged adverse claim is not sufficient to defeat a motion for summary judgment.’ Farrell v. Farrell, 182 Conn. 34, 39, 438 A.2d 415 (1980). Rather, ‘the defendant must recite specific facts . . . which contradict those stated in the plaintiff’s affidavits and documents.’ Id., 39-40.” Cummings & Lockwood v. Gray, supra. “The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 384.

Here, the city’s motion for summary judgment was based on the plaintiff’s alleged failure to comply with the notice requirements of General Statutes § 13a-149. “General Statutes § 13a-149 requires that before a plaintiff may sue a municipality for damages for injuries suffered as a result of that municipality’s failure to maintain its roads properly, that plaintiff must, within ninety days of the occurrence, provide written notice of the occurrence to a selectman or clerk of the municipality. Section 13a-149 also contains a saving clause that provides that notice given under the statute will not be invalidated because of inaccuracies in its content as long as there was no intent to mislead the municipality or the municipality is not in fact misled.” Giannitti v. Stamford, 25 Conn. App. 67, 75, 593 A.2d 140, cert. denied, 220 Conn. 918, 597 A.2d 333 (1991). While the saving clause will excuse inaccuracies in the content of the notice, however, it will not excuse a complete absence of notice. Nicholaus v. Bridgeport, 117 Conn. 398, 401, 167 A. 826 (1933).

The trial court granted the motion for summary judgment on the basis of its determination that the plaintiff had failed to comply with the statutory notice provisions. The court further concluded that the saving clause was inapplicable as a matter of law because the notice in this case “failed completely” to describe the accident site. In its memorandum of decision on the motion for summary judgment, the trial court focused on a discrepancy between the description in the notice of the alleged nature and location of the defect and that included in the plaintiff’s affidavit in opposition to the motion for summary judgment. The notice recited that the plaintiff had tripped “on a raised sewer hole at the Stamford Railroad Station while [he] was exiting the Railroad Station on the Northbound side.” The affidavit described the defect as a “raised manhole in the center of [South State] street.” After examining the definition of the term “sewer hole” the trial court concluded that “[u]nder this indefinite description the city could have understood the notice to refer to a variety of places, e.g.: a catch basin, an open sanitary sewer, an open drainpipe, but not necessarily a ‘raised manhole in the center of the street.’ ”

Our analysis of the notice reveals no basis for the trial court’s conclusion that the notice was insufficient as a matter of law. Whether notice is sufficient is normally a question of fact for the jury. Morico v. Cox, 134 Conn. 218, 223-24, 56 A.2d 522 (1947). “The sufficiency of the notice is to be tested by the purpose of the statute, and not by the requirements of a pleading.” Sizer v. Waterbury, 113 Conn. 145, 157-58, 154 A. 639 (1931). “ ‘The obvious purpose of [the statutory notice provision] is that the officers of municipal corporations, against which suits for injuries are about to be instituted, shall have such precise information as to time and place as will enable them to enquire into the facts of the case intelligently.’ Shaw v. Waterbury, [46 Conn. 263, 266 (1878)].” Id., 156. Notice “is sufficient if it enables one of ordinary intelligence, using ordinary diligence under the circumstances, to ascertain where the injury occurred.” (Emphasis in original.) Id., 158. The notice in this case stated that the plaintiff’s injury occurred when he “tripped over a raised sewer hole at the Stamford Railroad Station on South State Street” as he “was exiting the Railroad Station on the Southbound side” and “going to the taxi stand . . . .” While the notice in this case could be more specific as to the precise location of the sewer hole over which the plaintiff tripped, it is not so indefinite that no reasonable jury could find that, under the circumstances, it was adequate to identify the alleged defect for the city. The oblique assertion made by the city’s attorney in his affidavit that “[t]he only facts necessary for determination of the instant motion for summary judgment can be gleaned from the examination of the court’s file” is insufficient to demonstrate that the circumstances are such that the notice is inadequate. See, e.g., id., 158-59. Because the defendant failed to show that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law”; Practice Book § 384; the trial court improperly granted the motion for summary judgment.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       Only the first and second counts of the revised eomplaint were directed against the city. The first count, which alleged that the city was negligent with respect to the claimed defect, was stricken by the trial court on Decernber 17, 1990, leaving only the second count. The third and fourth counts of the revised complaint were directed against the state of Connecticut, which is not a party to this appeal.

       General Statutes § 13a-149 provides in pertinent part: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. . . . No action for any such injury shall be maintained against any town, city, corporation or borough, unless written 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, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. ... No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”


author: Landau, J.

text:
    Northeast Enterprises v. Water Pollution Control Authority of the Town of Orange et al.
    (10075)
    Dupont, C. J., Lavery and Landau, Js.
    Argued November 1, 1991
    decision released February 4, 1992

      Jeffrey M. Sachs, for the appellant (plaintiff).

      Hanon W. Russell, for the appellees (defendants).
   Landau, J.

This is an appeal by the plaintiff from an assessment of benefits by the defendant, the water pollution control authority of the town of Orange (WPCA), made in connection with the construction of a sewer line on property owned by the plaintiff. The plaintiff claims that the trial court improperly (1) concluded that General Statutes § 8-24 was not applicable to an appeal from an assessment of benefits under General Statutes §§ 7-249 and 7-250, (2) determined that the defendant had complied with General Statutes § 8-24, (3) found that the plaintiff had not met its burden of proof as to an essential allegation of its complaint—that WPCA had failed to comply with § 8-24, and (4) denied the plaintiff’s motion to open or set aside the judgment. The dispositive issue resides in the third claim.

The chronology of the Orange sewer facility project spans a period of over twenty years. In the 1970s, the town of Orange, pursuant to a 1967 order to construct sewer facilities in the town, engaged Cahn Engineers to perform a study and to prepare a preliminary plan for the sewer project. Cahn submitted a preliminary copy of the plan to the Orange planning and zoning commission in May of 1977. This preliminary plan was not introduced into evidence at trial, nor was there any mention of the submission in the WPCA minutes. The planning and zoning commission responded by letter that the plan met the general needs for the area.

The bonding for the proposed sewer was approved at a town meeting in 1985. Construction began in 1986, was completed in 1989 and an assessment was levied against the plaintiff, the owner of a parcel of property on which the sewer was constructed, in the amount of $488,700. The plaintiff appealed to the Superior Court under General Statutes § 7-250, claiming (1) the assessment exceeded the special benefit to its property and (2) the WPCA failed to refer its proposal to locate or extend the sewerage system to the planning and zoning commission, as required by General Statutes § 8-24. The trial court found in favor of the plaintiff on the first issue and reduced the assessment to $336,000. The trial court found in favor of the defendants on the second issue. The plaintiff filed a motion to open or set aside the judgment, which was denied by the court. The plaintiff has appealed from both the judgment of the .trial court and the denial of this motion.

In its fourth amended complaint, filed two days before the commencement of trial, the plaintiff alleged that “[i]n assessing the premises, the defendant WPCA acted illegally and in abuse of its discretion and authority in that it had failed to comply with the requirements of General Statutes § 8-24; more specifically, in that it failed to submit or refer its proposal to locate or extend public utilities for sewerage ... to the Orange Town Plan[ning] and Zoning Commission for a report and action prior to locating or extending the sewerage system, as required by General Statutes § 8-24.”

The trial court concluded that “the plaintiff had not proven by a fair preponderance of the evidence its allegations that no referral was made [to the planning and zoning commission] and that the commission never made a report on the construction of the sewer line.” The plaintiff argues that the trial court incorrectly concluded that the plaintiff bore the burden of proof of noncompliance with General Statutes § 8-24; that, because proof of such a fact was “proof of a negative,” the burden should have shifted to the defendant to prove compliance with the statute since the defendant was the party with greater access to the information. We agree with the trial court.

“ ‘As is true in all cases, the plaintiff must prove the allegations of his complaint.’ ” Bridge Street Associates v. Water Pollution Control Authority, 15 Conn. App. 140, 143-44, 543 A.2d 1351 (1988); Janow v. Ansonia, 11 Conn. App. 1, 8, 525 A.2d 966 (1987); Anderson v. Litchfield, 4 Conn. App. 24, 28, 492 A.2d 210 (1985); Southland Corporation v. Vernon, 1 Conn. App. 439, 443, 473 A.2d 318 (1984) (ordinarily, the allegation of facts allocates the burden of proof to the party pleading them). The standard of proof is that of a fair preponderance of the evidence. Faith Center, Inc. v. Hartford, 39 Conn. Sup. 142, 154, 473 A.2d 342 (1982), aff’d, 192 Conn. 434, 472 A.2d 16, cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984). The trial court’s conclusion that the plaintiff failed to prove the allegations of his complaint is a conclusion based on factual determinations. Where the factual basis of the trial court’s decision is challenged on appeal, it is the function of this court to determine whether the facts set out in the memorandum of decision are supported by the evidence. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

Our review of the record reveals no evidence establishing that the defendant failed to refer the proposal for the sewerage system to the planning and zoning commission or that the commission never made a report on the construction of the sewer line, and thus supports the conclusion of the trial court. The plaintiff seeks to cull from the testimony of Raymond O’Connor, the chairman of the WPCA, support for its assertion that there had been no proposal submitted to the planning and zoning commission. O’Connor’s testimony, however, indicates the contrary. O’Connor testified that he “vaguely remember[ed] [referring the proposal to the commission], because [he] also remember[ed] personally going before the Inlands Wetlands Commission to get approval for it. So ... if it was required [that the WPCA] go before Planning and Zoning, [the WPCA] would have gone before Planning and Zoning.” He continued that if the WPCA minutes did not reflect that such a proposal had been made, it was not because the proposal had not been made, but because reference to the proposal had been omitted from the minutes. Moreover, the trial court had the opportunity to hear the testimony and to observe the demeanor and the attitudes of the witnesses.

Because we conclude that the facts set forth in the trial court’s memorandum of decision are supported by the evidence, we affirm its judgment. The trial court was justified in assigning to each party the burden of proving the facts affirmatively asserted in the pleadings to be true.

Finally, the plaintiff claims that the trial court improperly denied its motion to open or set aside the judgment. A motion to open and vacate judgment is addressed to the trial court’s discretion. Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466-67, 440 A.2d 159 (1981). The ruling of a trial court on a motion to open or set aside the verdict will not be overturned on appeal unless the trial court acted in clear abuse of its discretion. Robinson v. ITT Continental Baking Co., 2 Conn. App. 308, 313-14, 478 A.2d. 265 (1984).

The plaintiff attached a copy of the preliminary plan to its motion in order to demonstrate that the plan was incomplete and could not constitute an official submission as required by General Statutes § 8-24. The plan was obtained from the local library subsequent to the rendition of judgment in this case. There is no evidence that this information was not available at the time of trial. To the contrary, the plaintiff conceded that it was a conscious choice not to introduce the preliminary plan into evidence at trial. Thus, the plaintiff’s motion to open or set aside the verdict is no more than an attempt to present evidence that the plaintiff failed to present at trial. The trial court did not abuse its discretion in denying the plaintiff’s motion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendants named in this action include Raymond O’Connor, chairman of the water pollution control authority, and William Heinrichs, town clerk.

       The benefits were assessed pursuant to General Statutes § 7-249, which provides in pertinent part: “At any time after a municipality, by its water pollution control authority, has acquired or constructed, a sewerage system or portion thereof, the water pollution control authority may levy benefit assessments upon the lands and buildings in the municipality which, in its judgment, are especially benefited thereby, whether they abut on such sewerage system or not, and upon the owners of such land and buildings, according to such rule as the water pollution control authority adopts, subject to the right of appeal as hereinafter provided.”

       General Statutes § 7-250 provides in pertinent part: “No assessment shall be made until after a public hearing before the water pollution control authority at which the owner of the property to be assessed shall have an opportunity to be heard concerning the proposed assessment.”

       Additionally, the mere fact that a party is required to prove a negative does not mandate that the burden of proof regarding that issue shifts to the opposing party. See Slicer v. Quigley, 180 Conn. 252, 261, 429 A.2d 855 (1980); State v. Beauton, 170 Conn. 284, 239-43, 365 A.2d 1105 (1976).


text:
    Town of Farmington v. Kevin V. Dowling
    (9935)
    Dupont, C. J., O’Connell and Lavery, Js.

      Argued October 28, 1991
    decision released February 4, 1992

      Victor J. Dowling, with whom, on the brief, was Victor J. Dowling, Jr., for the appellant (defendant).

      Gregory T. DAuria, with whom, on the brief, was Charles L. Howard, for the appellee (plaintiff).
   Lavery, J.

This is an appeal by the defendant from the granting of the plaintiff town’s motion for summary judgment on its suit for collection of delinquent real estate taxes pursuant to General Statutes § 12-161. The defendant claims that the trial court improperly granted summary judgment because there was a material issue of fact to be resolved at trial, that is, whether the taxes were properly assessed. We affirm the judgment of the trial court.

The pertinent undisputed facts are as follows. On October 1, 1979, and on October 1, 1980, the defendant was the record owner of an undivided 75 percent interest in a parcel of land in Farmington. The remaining 25 percent interest was owned by Samuel Heyman. The parcel was part of a larger piece of property owned by the defendant. The defendant applied to the town’s planning and zoning commission for permission to develop the property as a shopping center. On July 17, 1978, the commission approved the application on condition that the defendant convey 5.3 acres of the parcel to the plaintiff as open space. On April 7, 1982, a deed was filed in the Farmington land records conveying the defendant’s ownership interest in the parcel to the plaintiff. The property tax assessment on this 5.3 acre parcel is at issue in this appeal. The plaintiff never agreed to waive or assume the defendant’s tax liability on the 5.3 acre parcel. The defendant never appealed the commission’s decision to challenge the condition of approval that the parcel be conveyed to the plaintiff.

For the years 1979 and 1980, the plaintiff assessed the taxes due on the parcel jointly against the defendant and Heyman. On November 17,1981, the property assessment was split and the defendant and Heyman each were billed separately for their proportionate shares. On August 31,1985, the town attorney for the plaintiff sent the defendant and Heyman a collection letter for the unpaid taxes, together with a copy of a letter from the tax collector showing what each owed on their respective interests for the tax years 1979 and 1980.

The defendant failed to file a tax appeal concerning either the 1979 or 1980 assessments prior to this collection action, but instead filed a special defense alleging that the transfer of the parcel to the plaintiff as open space was the consideration for the zoning approval, and consequently he had no tax liability for the parcel. In essence, the defendant asserted that the tax assessments were improper.

The defendant opposed the plaintiffs motion for summary judgment on two grounds, claiming that material issues of fact remain to be resolved: (1) whether the taxes were properly assessed against him; and (2) whether he received notice of the taxes due. He claims that these issues are relevant to his defenses that he was not subject to taxes on the parcel and that receipt of notice is an essential element of the assessment process as contemplated by General Statutes § 12-161. The trial court found the defendant’s claims to be without merit and granted summary judgment in favor of the plaintiff. The trial court denied the defendant’s motion to reargue.

The abstract of assessment of real property in the town of Farmington shows that on the first day of October, 1979, and on the first day of October, 1980, a joint assessment was made against the defendant and Hey-man. After the subsequent split of the assessment, however, the plaintiff town brought its collection action against the defendant severally.

The defendant relies on New London v. Miller, 60 Conn. 112, 115, 22 A. 499 (1891), which states: “In an action where the complaint alleged a several assessment and the proof was of a joint one, no valid judgment could be rendered, because it could not follow both.” The defendant claims that because General Statutes § 12-161 mandates that the taxes be “properly assessed,” the question of the joint assessment and the proof of a severed tax bill was a material issue of fact which should have been resolved at a trial.

“Under our rules of practice, any party may move for summary judgment once the pleadings in a case are closed. Practice Book § 379. . . . ‘The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ Practice Book § 384.” Cummings & Lockwood v. Gray, 26 Conn. App. 293, 296-97, 600 A.2d 1040 (1991). “Once the moving party has filed the appropriate documents, the party opposing the motion ‘must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.’. . . The mere presence ‘of an alleged adverse claim is not sufficient to defeat a motion for summary judgment.’ . . . Rather, ‘the defendant must recite specific facts . . . which contradict those stated in the plaintiff’s affidavits and documents.’ ... ‘In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.’ ” (Citations omitted.) Id., 297.

Our Supreme Court has “repeatedly insisted that a taxpayer wishing to contest the legality of its tax assessments must follow prescribed statutory procedures.” Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 422, 521 A.2d 569 (1987). “ ‘Where the General Assembly has established complete, adequate and speedy statutory remedies for alleged tax irregularities, a taxpayer must exhaust them.’ ” Norwich v. Lebanon, 200 Conn. 697, 709, 513 A.2d 77 (1986). “ ‘A taxpayer who has not sought redress in an appropriate manner is foreclosed from continuing litigation outside these statutes.’ ” Owner-Operators Independent Drivers Assn. of America v. State, 209 Conn. 679, 692, 553 A.2d 1104 (1989), quoting National CSS, Inc. v. Stamford, 195 Conn. 587, 597-98, 489 A.2d 1034 (1985). By failing to contest the assessments of the parcel properly, the defendant has effectively waived his right to challenge them. Owner-Operators Independent Drivers Assn. of America v. State, supra, 687; Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556, 529 A.2d 666 (1987). Indeed, direct judicial adjudication is not warranted when the relief sought by a litigant may have been obtained through an alternative statutory procedure which the litigant has chosen to ignore. Owner-Operators Independent Drivers Assn. of America v. State, supra.

“The claim that the property had been wrongfully or excessively assessed could have been appealed in one of two ways: (1) to the board of tax review and from there, within two months, to the Superior Court pursuant to §§ 12-111 and 12-118; or (2) by direct action to the court within one -year from the date when the property was last evaluated for purposes of taxation pursuant to § 12-119.” Norwich v. Lebanon, 193 Conn. 342, 346-48, 477 A.2d 115 (1984); Woodbury v. Pepe, 6 Conn. App. 330, 332-33, 505 A.2d 723 (1986). General Statutes §§ 12-118 and 12-119 “limit to a short period the time within which the property owner can seek relief under them, and the purpose of this is undoubtedly to prevent delays in the ultimate determination of the amounts a municipality can collect as taxes.” Cohn v. Hartford, 130 Conn. 699, 702, 37 A.2d 237 (1944); Norwich v. Lebanon, supra, 200 Conn. 710.

Hartford v. Faith Center, Inc., 196 Conn. 487; 493 A.2d 883 (1985), parallels this case. From 1977 to 1980, the city of Hartford assessed taxes against the defendant, which the defendant believed were improper. The defendant never challenged the assessments pursuant to the statutory procedure, but chose to await the attempts of the plaintiff to collect the taxes. After the plaintiff made a claim to collect the taxes pursuant to § 12-161, the defendant sought to raise as a special defense that the taxes were illegally assessed. Id., 489. Our Supreme Court unequivocally stated that “[t]he courts of this state have consistently held that, in collection actions pursuant to General Statutes § 12-161 and its predecessors, the validity of the tax may not be questioned.” Id., 490. The court held that the public policy concerning state taxes applies with equal force to municipal taxes and that “ ‘[i]t is not to the advantage of the State that those whom it seeks to tax should refuse to pay their taxes in order to test their validity. Such a course, if largely followed, might cause the State more than an inconvenience in the disturbance of the budget upon which the payments of its governmental obligations depended. The more orderly course is a compliance with the law by a payment, reserving the right to contest the validity of the required payment.’ Underwood Typewriter Co. v. Chamberlain, 92 Conn. 199, 204, 102 A. 600 (1917).” Hartford v. Faith Center, Inc., supra, 489-90.

In this case, the defendant never contested the propriety of the assessments until the plaintiff sought to collect the unpaid taxes. Such a course of action is not permitted by the applicable statutes. By his failure to contest the assessment pursuant to the applicable statutes, the defendant waived his right to challenge it because a taxpayer may not assert that an assessment is improper in a collection action under § 12-161. There is no material fact at issue, and the trial court properly granted summary judgment as a matter of law.

Finally, the defendant claims that he did not receive adequate notice pursuant to the applicable statutes. General Statutes § 12-130 (a) provides in pertinent part: “Failure to send out any [rate] bill or statement shall not invalidate the tax.” Because the issue of whether the defendant got formal notice is not an issue of material fact, it would make no difference in the result of the case, and is not a bar to summary judgment. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969); Booth v. Flanagan, 23 Conn. App. 579, 584, 583 A.2d 148 (1990), appeal dismissed, 220 Conn. 453, 599 A.2d 380 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 12-161 provides: “collection by suit. All taxes properly assessed shall become a debt due from the person, persons or corporation against whom they are respectively assessed to the town, city, district or community in whose favor they are assessed, and may be, in addition to the other remedies provided by law, recovered by any proper action in the name of the community in whose favor they are assessed.”

       General Statutes § 12-111 provides in pertinent part: “appeals to board op tax review. At such meeting any person . . . claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to such board of tax review, which shall determine all such appeals and report in writing the final determination of such appeals .... Such board may equalize and adjust the valuations and assessment lists of such town . . . .”
      General Statutes (Rev. to 1981) § 12-118 provides in pertinent part: “appeal from board of tax reveiw. Any person . . . claiming to be aggrieved by the action of the board of tax review in any town or city may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated .... The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable . . ..”
      General Statutes § 12-119 provides in pertinent part: “remedy when property wrongfully assessed. When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof . . . prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation . . . .”


text:
    State of Connecticut v. David Johnson State of Connecticut v. Diane McIntosh
    (7401)
    (7405)
    O’Connell, Norcott and Landau, Js.
    Argued December 3, 1991
    decision released February 4, 1992

      Denise Dishongh, special public defender, with whom, were Louis S. Avitabile, special public defender, and, on the brief, Joshua R. Kricker, special public defender, for the appellants (defendants).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were JohnM. Connelly, state’s attorney, and Marcia Smith, senior assistant state’s attorney, for the appellee (state).
   Landau, J.

In a recursion to this court, the defendants appeal, after a jury trial, from a conviction of possession of heroin in violation of General Statutes § 21a-279 (a) and possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). They claim that (1) the evidence presented at trial was insufficient to prove beyond a reasonable doubt that the substance at issue was heroin, (2) their right to due process and equal protection of the laws was violated by the methodology employed by the state to test the seized material, (3) the trial court improperly refused to strike expert testimony as unreliable hearsay, (4) the trial court improperly denied their motion for judgment of acquittal on uncharged theories of liability and their postverdict request that the jurors be polled as to an element of the crime charged, and (5) the trial court improperly denied their postverdict motion for a court-appointed expert. We affirm the judgment of the trial court.

The relevant facts are fully set forth in State v. Johnson, 22 Conn. App. 40, 576 A.2d 171 (1990), rev’d, 219 Conn. 557, 594 A.2d 933 (1991), and need be only briefly repeated here. The Waterbury police, acting on information from a known confidential informant that drugs were being sold from the defendants’ apartment, set up a controlled buy. The informant entered the apartment with $30 and returned to the police with a packet containing a white powder that field-tested positive for cocaine. The police obtained and executed a search and seizure warrant based on this information. The search produced four packets of drugs and various drug paraphernalia.

I

In the defendants’ first claim, they assert that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that the material seized contained heroin. We disagree.

“The issue of sufficiency of evidence and its appropriate standard of review have been analyzed countless times by both this court and our Supreme Court.” State v. Iovieno, 14 Conn. App. 710, 712-13, 543 A.2d 766 (1988). We employ a two part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. State v. Owens, 25 Conn. App. 181, 192, 594 A.2d 991, cert. denied, 220 Conn. 910, 597 A.2d 337 (1991). We then decide whether, on the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Jarrett, 218 Conn. 766, 770-771, 591 A.2d 1225 (1991).

The substance seized was tested by both the state laboratory and an independent examiner retained by the defendant. Two experts presented the jury with conflicting evidence regarding the issues of extraction and detection of the substance. Charles N. Reading, the toxicologist who oversaw the testing at the state laboratory, testified that the substance contained heroin. Kevin Miller, the defendants’ expert on chemical analysis, testified that the substance did not contain heroin, but rather acetyl codeine. Miller testified that the procedure he employed could extract and detect even the most minute traces of heroin. Reading disagreed with Miller’s conclusion regarding the extraction capabilities of the procedure he employed, and testified that Miller’s procedure was not capable of adequately extracting heroin from the samples obtained. Reading further testified that any amount of heroin that might have been extracted from the sample was hydrolyzed to the point that it was no longer heroin.

It is the prerogative of the jury to assess conflicting evidence in order to determine what and whom to believe. State v. Reyes, 19 Conn. App. 179, 191, 562 A.2d 27 (1989). The evaluation of testimony is the sole province of the trier of fact. We do not retry the case. Whitney Center, Inc. v. Hamden, 4 Conn. App. 426, 429, 494 A.2d 624 (1985). The jury was free to choose between Reading’s testimony and Miller’s testimony. See State v. Collette, 199 Conn. 308, 315, 507 A.2d 99 (1986); State v. Cofone, 164 Conn. 162, 165, 319 A.2d 381 (1972). The jury verdict indicates that it chose to credit the testimony of Reading. After a review of the record, we conclude that there was sufficient evidence presented at trial for the jury to find that the seized material contained heroin.

II

The defendants’ second claim is that they were denied equal protection and due process of the law when they were convicted on the basis of a test less reliable and specific than that required by law for workplace drug testing. Central to this claim is General Statutes § 31-51u, which provides in relevant part: “No employer may determine an employee’s eligibility for promotion . . . solely on the basis of a positive urinalysis drug test result unless ... (3) such positive test result was confirmed by a third urinalysis drug test which was separate and independent from the initial test, utilizing a gas chromatography and mass spectrometry methodology or a methodology which has been determined by the commissioner of health services to be as reliable or more reliable than the gas chromatography and mass spectrometry methodology.” Here, the state did not use the gas chromatography and mass spectrometry methodology in testing the sample; rather, it utilized thin layer chromatography, ultraviolet spectrophometry and chemical tests to identify the heroin.

The defendants argue that the enactment of General Statutes § 31-51u creates an arbitrary and irrational classification, mandating the use of gas chromatography and mass spectrometry in workplace drug testing but not requiring such testing in criminal prosecutions. We disagree. To implicate the equal protection clauses under the state and federal constitutions it is necessary that the statute, or action, treat differently persons standing in the same relation to it. Franklin v. Berger, 211 Conn. 591, 596, 560 A.2d 444 (1989). Persons subject to the provisions of General Statutes § 31-51u and criminal defendants are not similarly situated. Individuals within the former category face employment sanctions on the bases of urinalyses; individuals in the latter category face criminal conviction on the bases of, inter alia, the results of analyses of substances. Because persons facing criminal sanctions are not similarly situated with those subject to § 31-51u, this claim does not implicate the equal protection clause.

The defendants’ due process claim also fails. They claim that the testing methodology used by the state to test the heroin was less reliable than the methodology described in § 31-51u. Again, the testimony of the expert witnesses differed with regard to the reliability of the tests performed. Reading’s testimony that thin layer spectrometry is recognized as an ideal technique for drug screening; see 22B Journal of Chromatography Library, “Chromatography: Fundamentals and Applications of Chromatographic and Electrophoretic Methods”; does not imply that the testing methods employed by the state were not reliable. Reading specifically stated that, in his opinion, the state’s testing methods were reliable. The jury saw fit to believe Reading, the state’s expert witness. It is within the province of the trier of fact to assign as much weight to a witness’ testimony as it sees fit. State v. Girolamo, 197 Conn. 201, 215, 496 A.2d 948 (1985). We refuse to disturb the result.

Ill

The defendants’ third claim is that the trial court improperly denied their motion to strike Reading’s testimony as unreliable hearsay because he did not personally perform the tests to which the materials were subjected. We disagree.

The identical issue was addressed by the Supreme Court in State v. Reardon, 172 Conn. 593, 376 A.2d 65 (1977), cert. denied, 481 U.S. 1020, 107 S. Ct. 1903, 95 L. Ed. 2d 509 (1987). In Reardon, the defendant objected to the testimony of the state toxicologist on grounds of hearsay. Specifically, the defendant objected to the testimony regarding the contents of the tested substances on the basis that the toxicologist who was testifying did not actually perform the tests. Id., 595. The court concluded that the trial court properly admitted the testimony because it contained sufficient indicia of reliability and trustworthiness and that it was reasonably necessary to except such testimony from the hearsay rule. Id., 597-98. This rule was augmented in State v. Cosgrove, 181 Conn. 562, 584, 436 A.2d 33 (1980), where the court concluded that expert’s testimony may be based on reports of others if the reports are those customarily relied on by such an expert in formulating an opinion.

The defendants do not challenge the rule set forth in State v. Reardon, supra. They do, however, attempt to distinguish Reardon on the basis that, here, Reading testified that he did not personally observe the chemist perform the tests at issue but that he merely reviewed the results of the completed tests. We conclude that the significant facts in the instant case are not distinguishable from those relied on by the Reardon court. Here, as in Reardon, Reading testified that he had personal knowledge of both the identity of the tested material and the tests performed. He also testified that the tests were conducted under his direction and supervision, that he was present when the tests were conducted and that he personally observed the test results. The trial court, therefore, properly refused to strike the challenged testimony.

IV

The defendants next claim that the trial court improperly denied (1) their motion for judgment of acquittal on uncharged theories of liability and (2) their post-verdict request that the jury be polled as to its finding that the substance at issue was heroin. The defendants assert that these denials deprived them of their constitutional rights of due process. We disagree.

A

In count one of the substitute information, the defendant was charged with possession of narcotic substances, to wit: heroin, in violation of General Statutes § 21a-279 (a). In its case-in-chief, the state presented evidence that the defendant did in fact possess heroin, but presented no evidence supporting the conclusion that he possessed any narcotic substance other than heroin. The defendant filed a motion for judgment of acquittal, pursuant to Practice Book § 883, as to all substances for which the state had failed to produce evidence. The trial court denied the motion.

Our rules of practice limit a motion for judgment of acquittal to charged offenses or to offenses deemed to be lesser included offenses. Practice Book § 883. Thus, a judgment of acquittal may be rendered only as to a charged offense or a lesser included offense; it cannot be entered as to an offense never charged. Practice Book § 883 provides that “[ajfter the close of the prosecution’s case in chief or at the close of all the evidence, upon motion of the defendant or upon its own motion, the judicial authority shall order the entry of a judgment of acquittal as to any principal offense charged and as to any lesser included offense from which the evidence would not reasonably permit a finding of guilty.” (Emphasis added.) Because motions for judgment of acquittal apply only to charged offenses or offenses that are deemed to be lesser included offenses of the charged offenses, the trial court properly refused to grant the defendants’ motion for judgment of acquittal as to uncharged offenses. See Practice Book § 883.

B

After the jury returned its verdict, the defendants requested that the jury be polled both as to the verdict and as to whether each juror found beyond a reasonable doubt that the substance was heroin. The trial court permitted the former and refused the latter. We agree with the propriety of the trial court’s actions.

After the denial of the judgment of acquittal on substances other than heroin, the defendants presented evidence that the material found in the defendants’ apartment was not heroin but was another opium derivative, acetyl codeine. Both experts testified that acetyl codeine and heroin, or diacetyl morphine, are derived from opium and both are narcotic substances.

The defendants argue that because this testimony, in conjunction with the trial court’s instructions in which it referred to the offense of possession of a narcotic substance and stated that the defendants were charged with possession of a narcotic substance, made it possible for the jury to convict the defendants even if it did not find that the defendants possessed heroin, the jurors should have been individually asked whether each of them had concluded that the substance was heroin. We disagree.

The jury was properly instructed that it must find that the defendants possessed heroin in order to convict them of the offense charged in count one of the informations. Prior to trial, the jurors were instructed that the defendants were charged with possession of heroin. During the final charge, the jury was twice instructed that the defendants were charged with possession of heroin. They were charged as to the presumption of innocence and the state’s burden of proving each and every element of the offense beyond a reasonable doubt. They were instructed that they had to resolve the conflicting expert testimony.

After a verdict has been returned and before the jury has been discharged, the jury may be polled at the request of any party or on the judicial authority’s own motion. A poll of the jurors in a criminal case in not a matter of right, but one that rests within the sound discretion of the trial court. State v. Tirado, 194 Conn. 89, 95, 478 A.2d. 606 (1984). We read this as continuing the discretionary rule which has long been the law in this state. See, e.g., State v. Chetcuti, 173 Conn. 165, 172, 377 A.2d 263 (1977); State v. Marshall, 166 Conn. 593, 598, 353 A.2d 756 (1974); State v. Shelton, 160 Conn. 360, 363-65, 278 A.2d 782 (1971); State v. Tucker, 146 Conn. 410, 415, 115 A.2d 876 (1959); State v. Hoyt, 47 Conn. 518, 533-34 (1880).

The jurors were individually polled as to the verdict. Each juror was asked whether the defendants were guilty of unlawful possession of heroin. Each juror responded affirmatively. Inherent in their affirmative responses is the belief that the substance possessed by the defendant was heroin. Absent a fair indication to the contrary, it is presumed that jurors follow the instructions of the court. State v. Rodriguez, 210 Conn. 315, 333, 554 A.2d 1080 (1989).

On the basis of a review of the evidence, the instructions and the polling of the jurors as to their verdict, the failure of the trial court to poll the jurors on the individual element of the crime was not an abuse of discretion.

V

The defendants’ final claim is that the trial court improperly denied their postverdict motion for appointment of an independent expert to test the substance at issue. The defendants rely on Practice Book § 881 and the inherent power of the trial court. The jury verdict was returned on April 26, 1988. The defendants’ motion was filed on May 10,1988, two weeks after the verdict was returned. It was heard on May 26, 1988, and denied by the court on June 21, 1988, almost two months after the verdict was returned. The trial court concluded that the “record legally supports the jury verdict rendered.” It is clear that by this time the trial had been concluded, the issue regarding the identity of the substance had been settled by the jury, and the factfinders no longer were available. The defendants’ motion amounted to no more than an attempt to relitigate the issue of the identity of the seized substance. The trial court properly denied the defendants’ motion.

The judgment is affirmed.

In this opinion the other judges concurred.

       In our original decision in this case, State v. Johnson, 22 Conn. App. 40, 576 A.2d 171 (1990), rev’d, 219 Conn. 557, 594 A.2d 933 (1991), we concluded that the trial court improperly denied the defendants’ motion to suppress because the probable cause underlying the search warrant was stale at the time it was executed and the evidence seized and that this court could not conclude that the police could have harbored an objectively reasonable belief in the existence of probable cause at the time the warrant was issued to justify the application of the good faith exception to the exclusionary rule. The Supreme Court reversed, concluding that the warrant adequately established probable cause and that the information on which the warrant was obtained was not stale, and remanded the case to this court for a determination as to the remaining issues.

       General Statutes § 21a-279 (a) provides that a person may be imprisoned for possession or control of any narcotic substance.

       General Statutes § 21a-267 (a) provides in relevant part: “No person shall use or possess with intent to use drug paraphernalia, as defined in subdivision (20) of section 21a-240 .... Any person who violates any provision of this subsection shall be guilty of a class C misdemeanor.

       To hydrolyze is to alter or to change the molecular configuration. Hydrolyzed heroin becomes morphine.

       The equal protection clauses of the state and federal constitutions have the same meaning and limitations permitting simultaneous discussion. Franklin v. Berger, 211 Conn. 591, 594 n.5, 560 A.2d 444 (1989).

       The defendants couch their claim in language amounting to a denial of due process. Their constitutional argument has not been briefed at all and is, therefore, deemed abandoned. State v. James, 211 Conn. 555, 588, 560 A.2d 426 (1989).

       The toxicologist testifying in Reardon was the same Charles N. Reading who testified here.

       The court was referring to the testimony regarding the content of the seized substance.

       Similarly, the Connecticut rules of practice provide for interrogatories in civil cases. See Practice Book § 312. No parallel provision exists, however, for criminal cases.

       We note that the trial court, in denying the request, relied on the fact that “[t]he defendants presented no postverdict evidence in support of any of the claims raised by these motions.” Although this statement does not accurately address the defendants’ burden regarding such a motion, the fact that the trial court reached the correct conclusion through an incorrect route will not invalidate an otherwise correct ruling. See Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 604-10, 587 A.2d 126 (1991).

       Specifically, the court clerk asked each juror: “In the case of [State v. Johnson or State v. McIntosh], as to the first count of the amended substitute information charging the defendant . . . with the crime of possession of a narcotic substance, to wit, heroin, in violation of General Statutes § 21a-279 (a), is it your verdict that the defendant is guilty?”

       Practice Book § 881 in relevant part provides: “Whenever the judicial authority deems it necessary, on his own motion he may appoint any expert witnesses of his own selection.”