text:
    Donna Durso v. Wayne Misiorek
    (2014)
    Dupont, C.P.J., Spallone and Daly, Js.
    Argued November 13, 1984
    decision released January 22, 1985

      Douglas B. Sherman, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (state).

      Sheila K. Horvitz, with whom, on the brief, was Karen K. Lamb, for the appellee (defendant).
   Per Curiam.

This is an appeal by the state from a judgment rendered after a jury found that the defendant was not the father of the plaintiffs child.

The action was commenced by filing a verified petition, with summons and order in the appropriate geographical area of the Superior Court, pursuant to General Statutes § 46b-160. During the course of the trial, the plaintiff requested a continuance in order to call her husband as a witness to rebut the defendant’s testimony that the plaintiff had visited her husband during the period when conception occurred. At the time of conception, the plaintiff was separated from her husband. The continuance request was denied. After the judgment had been rendered, an appearance was filed by the state, and it subsequently appealed from the judgment.

The issues raised on appeal, whether a husband may testify as to nonaccess, and whether the trial court abused its discretion in failing to grant a continuance in order to obtain such testimony, need not be reached because this court has no jurisdiction over the appeal. Although neither party has attacked jurisdiction, we have no alternative but to address the question. Ardmare Construction Co. v. Freedman, 191 Conn. 497, 498 n.4, 467 A.2d 674 (1983).

“The right of appeal is purely statutory. It is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met. State v. Audet, 170 Conn. 337, 342, 365 A.2d 1082 (1976); Kennedy v. Walker, 135 Conn. 262, 266, 63 A.2d 589, aff'd, 337 U.S. 901, 69 S. Ct. 1046, 93 L. Ed. 1715 (1948). The statutory right to appeal is limited to appeals by aggrieved parties from final judgments. General Statutes §§ 52-263, 51-197a; see Practice Book § 3000.” State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983).

The state in this case was not a party to the action in the trial court and the plaintiff is not a party in the appeal. Although General Statutes § 46b-160 provides in pertinent part, “[i]n cases involving public assistance recipients the petition shall also be served upon the attorney general who shall be and remain a party to any paternity proceeding and to any proceedings after judgment in such action,” the petition was never so served and the attorney general never moved to intervene.

Procedural irregularities have been discussed in previous appellate decisions concerning paternity. None, however, involves an appeal in which a party aggrieved in the trial court did not appeal, as is true here.

In Mendez v. Mendez, 160 Conn. 237, 278 A.2d 795 (1971), an appeal was taken by the defendant mother and the state from a judgment granting the plaintiff a divorce. The trial court found that two minor children, born during the period of the marriage, were not issue of the marriage. The Supreme Court concluded that no justiciable issue was present because the only real defendant, the mother, took no active part in the appeal and “[njeither the state nor the attorney general was named as a party in the complaint and no order of court joining either as a party appears to have been made.” Id., 239.

Although the attorney general has been allowed, after final judgment, to file an appearance on the appellate level, without having moved to intervene; Gelinas v. Nelson, 165 Conn. 33, 40-41, 327 A.2d 565 (1973); and has been allowed to join in the petitioner-appellant’s brief without a formal appearance or a motion to intervene; Castellani v. Criscuolo, 36 Conn. Sup. 501, 502, 409 A.2d 1040 (1979); no Connecticut case stands for the proposition that an appeal of a paternity action may proceed in an appellate court without an appeal having been taken by the aggrieved party who was the sole participant in the trial.

The appeal is dismissed sua sponte.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       A review of the transcript makes it clear that this case involves a recipient of public assistance.


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Harold R. Monroe et al. v. Franklin Crandall
    (2910)
    Hull, Borden and Daly, Js.

      Argued November 14, 1984
    decision released January 29, 1985

      Charles J. Irving, for the appellant (defendant).

      Martin A. Gould, with whom, on the brief, were Alfred J. Garofolo and Mark W. Baronas, for the appellee (plaintiff Twin County Sanitation Service Company, Inc.)
   Daly, J.

The plaintiffs instituted this action for libel in two counts against the defendant. The trial court rendered judgment on the first count in favor of the corporate plaintiff in the amount of $10,000 and rendered judgment on the second count in favor of the defendant. The defendant has appealed from the judgment on the first count.

The trial court found the following facts: The plaintiff Twin County Sanitation Service Company, Inc. (corporation), is engaged in the business of refuse collection and disposal. The plaintiff Harold Monroe is a spokesman for the plaintiff corporation, although alleged to be its president and a director. Both plaintiffs have enjoyed a very good or excellent reputation in the past in their business dealings. The defendant, his family and relatives are also engaged in the refuse collection and disposal business. Both the plaintiff corporation and the defendant bid on a contract for refuse collection at the United States Naval Submarine Base in New London. The contract, which was to commence on January 1, 1979, was awarded to the plaintiff corporation.

On January 20,1979, a mailgram was sent to the officer in charge of construction and a contract administrator at the submarine base, Captain William G. Matthews (then commander). This mailgram protested the awarding of the contract to the plaintiff corporation, and stated that the plaintiff corporation “was not able and did not perform his [sic] duties as specified” in previous contracts. It further stated: “I have repeatedly pointed out through letters, meetings and phone calls to your office that Twin County did not perform [on previous contracts]” and that “[a]ll discrepancies and grievances should be on file within your office.”

On January 23, 1979, a second mailgram was sent to Matthews, referring to the plaintiff corporation’s not performing its contract obligations, being negligent in performance and accusing it of “robbing the government.” Both mailgrams contained the defendant’s name, home address and telephone number. The defendant was found to be the author of both mail-grams, although he denied having sent them.

The defendant had made complaints in the past regarding the plaintiff corporation’s performance. In a mailgram to Matthews dated October 30, 1978, the defendant referred to his “list of grievances,” which dovetails with conversations he had with Matthews. The second 1979 mailgram referred to the October 30, 1978 mailgram by its code number.

The two 1979 mailgrams were found to be libelous per se and general damages were awarded to the plaintiff corporation in the amount of $10,000.

On appeal, the defendant has raised the following issues: (1) whether the trial court erred in admitting into evidence the sixteen documents contained in a United States Navy file for the limited purpose of testing the credibility of the defendant and establishing a course of conduct; (2) whether the evidence was suffident to conclude that the defendant had sent the mail-grams dated January 20,1979, and January 23,1979; and (3) whether the amount of $10,000 awarded as general damages was excessive.

I

The defendant claims that the sixteen documents should not have been admitted into evidence for the purpose of testing the defendant’s credibility and establishing a course of conduct. Of the sixteen in controversy, six were admitted as parts of other exhibits and were properly before the court. They consisted of letters or mailgrams, five having been sent by the defendant to Matthews, and one having been sent by Matthews to the defendant. Three others (two letters and one mailgram) were from the defendant to other naval officers.

“While prior contradictory statements of a witness are normally unacceptable as evidence of anything other than facts bearing on the credibility of the witness, when the witness is a party to the action, his extrajudicial statement may be more than a mere contradiction. Such statement may be treated as an admission.” Holden & Daly, Connecticut Evidence (1966) § 125 (d) (2). The eight documents which emanated from the defendant were not only admissible to effect his credibility, since he did not recall protesting the contract award to the plaintiff corporation, but would have qualified as admissions.

The defendant argues on appeal that many of these documents were never authenticated. The authentication of these documents, however, was not raised at trial. The defendant cannot rely upon a ground for the exclusion of evidence not raised in the trial court. Practice Book § 288; State v. McCall, 187 Conn. 73, 84, 444 A.2d 896 (1982).

In testing the inferences that the trier is justified in drawing from the proven facts, a party is entitled to have his evidence considered in the most favorable view which it could reasonably bear. Adams v. Mohican Hotel, 124 Conn. 400, 401, 200 A. 336 (1938); Bunnell v. Waterbury Hospital, 103 Conn. 520, 524,131 A. 501 (1925). Taking the contents and dates of the correspondence, along with the totality of the circumstances, the trial court could readily have concluded that the defendant was the author of the documents which did not bear his signature.

Letters and telegrams between parties are admissible to show the negotiations and conduct of the parties. M. Shapiro & Son Construction Co. v. Battaglia, 138 Conn. 238, 246, 83 A.2d 204 (1951). Of the remaining documents, one pertains to the Freedom of Information Act, and others involve correspondence between naval officers and the defendant. “The trial court has a wide discretion in its rulings on the relevancy of evidence.” Graham v. Houlihan, 147 Conn. 321, 332, 160 A.2d 745, cert. denied, 364 U.S. 833, 81 S. Ct. 70, 5 L. Ed. 2d 57 (1960); see Holden & Daly, supra, § 67 (c), p. 214.

We find no abuse of that discretion.

II

The defendant has claimed there was insufficient evidence before the trial court to justify a finding that he was the author of the two January 1979 mailgrams.

The fact finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, including its observation of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record that is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial judge and an appellate court. The reviewing court may reverse or modify the decision of the trial court if it determines that the decision is clearly erroneous in view of the evidence and pleadings in the whole record. “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported. ’ ’ Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980).

Courts necessarily rely upon circumstantial evidence and are entitled to draw reasonable and logical inferences from all the facts. “ ‘There is no distinction between direct and circumstantial evidence as far as probative force is concerned.’ ” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. E. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981).

As indicated previously, the trial court found that both mailgrams contained the defendant’s name, address and telephone number. The January 20,1979 mailgram cited prior protests made by the author of the mailgram. The January 23,1979 mailgram referred to the defendant’s October 30, 1978 mailgram by its code number. Despite the defendant’s denial, the trial court could reasonably conclude that the defendant was their author.

Ill

The defendant next challenges the award of $10,000 in general damages as being excessive.

The trial court found the mailgrams to be libel per se. A plaintiff may recover general damages where the defamation in question constitutes libel per se. Yavis v. Sullivan, 137 Conn. 253, 76 A.2d 99 (1950). “When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiffs reputation. He is required neither to plead nor to prove it.” Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292 (1952). The individual plaintiff is “entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the libel caused him.” Proto v. Bridgeport Herald Corporation, 136 Conn. 557, 571, 72 A.2d 820 (1950).

“It is equally well settled that the credit, property or business reputation of a corporation can be injured by a false publication of defamatory matter, written or oral, which tends to prejudice it in the conduct of its trade or business, or to deter third persons from dealing with it. Since a corporation has no reputation in the sense that an individual has, it is only with respect to its credit, property or business that a corporation can be injured by a false publication. In determining whether the business reputation of a corporation has been injured, the test is not different from that which would be applied in determining whether an individual’s business reputation has been defamed.” (Footnotes omitted.) Diplomat Electric, Inc. v. Westinghouse Electric Supply Co., 378 F.2d 377, 381 (5th Cir. 1967). That such damages are difficult of accurate determination, however, does not prevent recovery of them. Proto v. Bridgeport Herald Corporation, supra, 572. As a result of the libelous correspondence, the plaintiff corporation was subjected to increased supervision and scrutiny, along with having to repaint a number of its dumpsters.

“[W]e cannot disturb the court’s finding as to the amount of damages unless it appears that the court unreasonably exercised the large discretion necessarily vested in it and awarded damages so excessive as to be unreasonable and to amount to an injustice. . . . Each case depends so much upon its own facts that an amount justified in one would not necessarily be an indication of how much ought to be allowed in another.” Dunstan v. Round Hill Dairy, Inc., 128 Conn. 300, 302-303, 22 A.2d 631 (1941).

We find no abuse of discretion.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       The January 20,1979 mailgram states as follows: “I am composing this letter not knowing any decisions you have made or will make in regard to the award of contract #N62472-79-C-3301. Should the low bidder -withdraw his bid of $98,000 the contract under normal conditions would therefore go to the second lowest bidder. The second lowest bidder being Twin County at $115,000 Twin County holder of this contract from October 1977 to December 1978 was not able and did not perform his duties as specified in his contract. I have repeatedly pointed out through letters, meetings and phone calls to your office that Twin County did not perform required maintenance of containers. In our estimate this would have cost in the vicinity of $30,000. After being warned of his discrepancies in the first year of his contract and then given a 4 month extension he still continued his negligence in peforming contract obligations. In the event of the low bidder withdrawing his bid I am ‘formally protesting’ the award of this contract being given to Twin County. All discrepancies and grievances should be on file within your office. We truly trust that the navy having checked out all this information and documented proof of negligence on the part of Twin County that they will make the right and just decision.”

       The January 23,1979 mailgram states as follows: “Because of current events and happenings I am sending this letter to point out that Twin County is still not performing his contract obligations these grievances as listed in my mailgram number 4-061125-E-303002 on 10-30-78 are still outstanding and nothing has been done on Twin County’s part to change these to date how is it that this contractor can be so negligent and yet Uncle Sam still hasn’t exercised his options in lieu of non-performance of work in this point in time I feel that Uncle’s only interest is the removal of waste from the submarine base this being only a part of the entire contract I feel that Uncle should reread the contract and enforce it as I have pointed out this contractor by not performing maintenance specified by this contract is actually robbing the government of at least $30,000 a year with such great nonperformance on behalf of Twin County I cannot understand why Uncle would extend any more further time to such a negligent contractor respectfully yours.”


author: Per Curiam.

text:
    Anibal Verissimo v. Maria Verissimo
    (2917)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued November 6, 1984
    decision released January 29, 1985

      George W. Ganim, with whom, on the brief, was Michael G. Maronich, for the appellant (defendant).

      Bill L. Gouveia, for the appellee (plaintiff).
   Per Curiam.

In this marital dissolution case, the defendant appeals from the order of the trial court denying her postjudgment motion to open and vacate the judgment. We find no error.

At the end of the second day of trial, the parties, after extensive negotiations, arrived at an agreement and presented it to the court, F. Freedman, J., as a stipulation. Since both parties are Portuguese and speak only limited English, before hearing the agreement the court instructed counsel to state it in short segments so that the court interpreter could repeat it for the parties. After recitation of the agreement by both counsel, with some suggested modifications by the court to which the parties agreed, the court asked the defendant, through the interpreter, whether she understood the agreement and whether it was agreeable to her. She replied, “Yes.” The court thereupon approved the agreement as modified, and rendered judgment.

In order to effectuate the judgment, the defendant was required to release to her counsel certain funds in her name in a savings bank. This requirement was included in the recitation of the agreement. When the defendant refused to release these funds, the plaintiff moved to hold her in contempt of court. After a hearing on this motion, the court ordered the defendant to deliver the pertinent bank books, together with signed withdrawal slips, to her counsel.

The defendant thereafter changed counsel and moved to open and vacate the judgment on the various but related grounds that, at the time of the judgment, she did not understand that she was agreeing to the terms of the agreement, she did not receive a good translation from English to Portuguese of the negotiations leading to the agreement, and she did not voluntarily and knowingly agree to its terms. After a full hearing, the court denied the motion.

I

The defendant’s first claim is that Judge Freedman should have disqualified himself from hearing her motion to open and vacate the judgment because, at the earlier hearing on the plaintiffs motion for contempt, he indicated prejudice against her and a prejudgment of the issues to be raised at the hearing on her subsequent motion to open and vacate. This claim is utterly without merit.

The defendant concedes that she at no time requested Judge Freedman to disqualify himself. Thus she is deemed to have waived such a claim. Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982); Szypula v. Szypula, 2 Conn. App. 650, 654, 482 A.2d 85 (1984).

The defendant attempts to persuade us that her claim is reviewable, nonetheless, on the ground that the trial judge committed plain error in not disqualifying himself. See Cameron v. Cameron, supra. We disagree.

Our review of the entire transcript of the hearing on the motion for contempt convinces us that what took place does not even resemble the factual situation in Cameron v. Cameron, supra. The defendant relies on two isolated remarks by the trial judge which she has culled out of context; she ignores both that context and other remarks of the trial judge, all of which make clear that he was, at that time, quite properly addressing only the motion for contempt, which was all that was before the court, and was not addressing any request to vacate the judgment, which had not yet even been made. The unmistakable thrust of his remarks, taken in context, was simply an insistence that the defendant comply with the judgment, and our review of the transcript of the hearing subsequently held on the motion to open and vacate the judgment discloses not a glimmer that the trial judge displayed either the reality or appearance of partiality. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 444 A.2d 196 (1982); Szypula v. Szypula, supra, 653 n.3.

II

The defendant’s second claim, that the court’s denial of her motion to open and vacate the judgment is not supported by the evidence, requires even less discussion. Whether a judgment rendered pursuant to an agreement was obtained without the consent of one of the parties is a question of fact for the trial court. Kenworthy v. Kenworthy, 180 Conn. 129, 429 A.2d 837 (1980); see Jucker v. Jucker, 190 Conn. 674, 679, 461 A.2d 1384 (1983); Jackson v. Jackson, 2 Conn. App. 179, 195, 478 A.2d 1026 (1984). Here, there was more than ample evidence, supplemented by the trial judge’s own recollection of the proceedings at which the judgment was rendered, from which the court could conclude that the defendant’s motion should be denied. That evidence was that throughout the proceedings the defendant was accompanied by and consulted with a close associate who spoke both Portuguese and English, that she understood and participated actively in all the negotiations, that the recitation of the agreement in court was done in short segments with simultaneous translation into Portuguese, that she gave her verbal assent to that agreement in court, and that she understood all the translations into Portuguese. The trial court was justified in concluding that the defendant fully understood and consented to the judgment which she sought to disturb.

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).


author: Spallone, J.

text:
    State of Connecticut v. Luis Alfonso
    (2859)
    Hull, Borden and Spallone, Js.

      Argued November 13, 1984
    decision released January 29, 1985

      Richard E. Arnold, for the appellant (defendant).

      C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Spallone, J.

After a jury trial, the defendant was convicted of carrying a pistol without a permit in violation of General Statutes § 29-35 and of altering or removing a pistol identification number in violation of General Statutes § 29-36. On appeal, he claims that the trial court erred in admitting into evidence the results of a scientific test and in denying his motion for a new trial.

The jury could reasonably have found the following facts: On April 23,1983, Officer Joseph Horesco of the Bridgeport police department was patrolling a housing project on foot when he heard a gunshot. About thirty to fifty feet away from him, he saw three men running and carrying what appeared to be rifles or shotguns. Horesco chased one of the men, who was later identified as the defendant, into a building. During the chase, Horesco noticed that the defendant was carrying what appeared to be a .38 caliber revolver. After the defendant was apprehended on the third floor of the building, he was searched and no weapon was found. Horesco noticed, however, that the defendant had blood on his right hand. After the arrest, Horesco searched the hallways of the building and found a gun in a cinderblock windowsill on the second floor.

At trial, Horesco testified that the gun was wet with what appeared to be blood on the right side near the trigger. He also testified that the gun, which was placed in evidence by the state, was the same gun he found in the cinderblock windowsill. Trooper Robert Mills of the state forensic laboratory testified that he tested the gun for the presence of blood, that he found human blood on the weapon, that the amount of blood was insufficient for blood grouping, and that the test he performed was destructive of the sample. He opined, however, that if the defense were to run tests on the weapon, they might be able to ascertain whether blood was found there.

The defendant’s argument as to the admissibility of evidence in connection with the test is based on Practice Book § 738, which provides: “If a scientific test or experiment to be performed upon any object which has been the subject of a disclosure order may preclude or impair any further tests or experiments, the opposing party and any other person known to have or believed to have an interest in the matter shall be given reasonable notice and opportunity to be present and to have an expert observe or participate in the test or experiment, unless the judicial authority for good cause shall order otherwise.” (Emphasis added.) The defendant contends that a supplemental motion for discovery and production which he filed gave rise to the necessary disclosure order but that he was never given notice of the test.

There is some uncertainty in the record as to whether the defendant’s supplemental motion for discovery and production was ever acted upon by the court. Nonetheless, even if the court granted the motion, as the defendant contends it did, we find that the defendant’s claim has no merit. In his supplemental motion for discovery and production, the defendant requested that the court order the prosecuting authority “to disclose in writing the existence of, and to allow the defendant to inspect, copy, photograph and have reasonable tests made on the following items, materials, requests and interrogatories: (1) Copies of results or reports of any scientific tests, experiments, or comparisons made in connection with the particular case . . . more specifically, but not limited to any and all, tests regarding the taking of blood samples from the alleged weapon . . . .” The subject of the request was not the gun or the blood on the gun, but copies of results or reports of any tests, experiments or comparisons. Consequently, even if an order had been issued based on that motion, the defendant would not have been entitled to advance notice of the test or an opportunity to be present pursuant to Practice Book § 738. As it was, the state complied with the supplemental motion for discovery and production on November 4, 1983, when it furnished the defendant with a copy of the state forensic laboratory’s report setting forth the results of the test. The defendant’s motion did not put the state or the court on adequate notice that he was requesting prior notice of the test and the right to have an expert to be present at or to participate in it.

The defendant also argues that because the test, which established that the substance on the gun was human blood, consumed the entire blood sample, he was deprived of the opportunity to present exculpatory evidence by showing that his blood type differed from that of the sample on the gun. The fact that human blood was found on the weapon in a place that matched the area of the defendant’s hand where blood was found was unquestionably inculpatory. The defendant avers that if he had an opportunity to test the sample he might have been able to establish that, on the basis of blood type, it was not his. The defendant, however, offered no evidence and made no offer of proof that the amount of blood on the weapon was sufficient, if properly tested, to establish blood type. In the absence of such proof or offer, the defendant’s claim was speculative. See State v. Asherman, 193 Conn. 695, 726, 478 A.2d 227 (1984).

In State v. Asherman, supra 723-726, our Supreme Court has provided us with a thorough review and a detailed analysis of the consequence of the consumption of blood samples during scientific testing. The court, quoting State v. Kersting, 50 Or. App. 461, 623 P.2d 1095, 1103-1104 (1981), stated that “where evidence sought to be disclosed has been functionally destroyed, but was subjected to scientific testing by the state prior to its destruction, a defendant must show that a retest would have been possible and must challenge the state’s test results, either by attacking the manner in which the test was conducted or by other evidence.” State v. Asherman, supra, 725. The defendant has not attacked the state’s findings nor has he offered any evidence that further testing would have resulted in the discovery of exculpatory evidence.

The defendant makes no claim that the state acted in bad faith or engaged in prosecutorial misconduct. The state disclosed its findings to the defendant, and the court granted the defendant a continuance so that his own expert could examine the gun. Although the presence of human blood on the weapon was admittedly inculpatory, Mill’s testimony that the sample was insufficient to allow classification by blood type was, to a degree, exculpatory.

The admission of evidence of experiments, demonstrations or tests rests in the sound discretion of the trial court. Marko v. Stop & Shop, Inc., 169 Conn. 550, 561, 364 A.2d 217 (1975). The granting of a motion for a new trial also rests within the court’s discretion. A motion for a new trial may be granted “in the interests of justice” for constitutional or other material injurious error. Practice Book § 902. There was no such error here. Under the circumstances of this case, we hold that the trial court did not abuse its discretion in admitting evidence as to the test or in denying the defendant’s motion for a new trial.

There is no error.

In this opinion the other judges concurred.

       The defendant learned that tests were to be conducted on the blood samples on the weapon during open file discovery provided by the state in response to a May 27, 1983 motion by the defendant for discovery and production. Although the record is not altogether clear on this point, it appears that the defendant moved for supplemental discovery and production after learning at the open file discovery procedure that the tests were imminent. The defendant’s supplemental motion for discovery and production was dated June 20, 1983.


text:
    Terry Cameron et al. v. Avonridge, Inc.
    (2461)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued November 8, 1984
    decision released January 29, 1985

      Wesley W. Horton, with whom were Charles M. Rice, Jr., and, on the brief, J. Patrick Dwyer, for the appellants (plaintiffs).

      Robert M. Dombroff, with whom, on the brief, was Leonard M. Bieringer, for the appellee (defendant).
   Daly, J.

The plaintiffs instituted an action for specific performance of a contract involving the purchase of real estate in Avon. The trial court rendered judgment in favor of the defendant, and the plaintiffs have appealed.

The trial court found the following facts: The plaintiffs met the defendant’s president late in 1978. The defendant was developing land in Avon known as Avon-ridge. The plaintiffs negotiated with the defendant’s president to construct a specifically designed house on one of the defendant’s lots. The plaintiffs owned investment land in New Hartford which they had purchased in 1973-for $13,000. The plaintiffs offered to transfer the New Hartford property which they represented to be worth $50,000 as a credit toward the purchase price of $155,000 for the Avon home. The defendant agreed to accept it provided that it was worth $50,000. An agreement in writing was entered into on January 8, 1979.

Subsequently, a bond for deed was signed on March 8,1979. It was prepared by the plaintiffs’ counsel; the defendant was not represented by counsel in the negotiations. For tax purposes, the value of the New Hartford land was reduced. It was agreed that the defendant was to perform a percolation test on the land by-April 15, 1979, to determine whether the land could be subdivided into a minimum of four building lots. An automatic thirty day extension of time could be obtained for this purpose. In the event the property could not be so subdivided, the plaintiffs had the option to purchase the Avon home for an additional $25,000 for a grand total of $155,000.

Prior to April 15, 1979, the defendant’s agents viewed the property and checked with New Hartford town officials concerning well and septic requirements. Borings were scheduled for April 9 and April 27, but had to be canceled due to inclement weather. On April 30, a testing was accomplished by the defendant’s engineer and the town sanitarian. The engineer concluded, as did two other of the defendant’s experts, that four building lots could not be obtained from said land. The defendant immediately notified the plaintiffs and extended to them the option to purchase on a cash basis. While the plaintiffs’ experts held a contrary view, the trial court found that the land was not capable of being divided into a minimum of four building lots. No bad faith was exhibited by the defendant, and a failure of condition was found.

The trial court found time not to be of the essence. It also found no mutual or good consideration where the bond for deed provided for a tax benefit to the plaintiffs toward the $155,000 purchase price when the land was worth less than $50,000.

On appeal, the plaintiffs claim (1) that the court erred in holding that the bond for deed was not grounded upon good and mutual consideration and that the agreement required confirmation that the New Hartford property was worth $50,000, (2) that the court erred in finding that the defendant did not breach the contract between the parties, and (3) that they were denied a fair trial because the court wrote a twenty-two page memorandum of decision which adopted, almost verbatim, the defendant’s trial brief.

We shall first consider the issue concerning the breach of contract between the parties. “As a general rule, when the new contract is in regard to the same matter and has the same scope as the earlier contract and the terms of the two are inconsistent either in whole or in a substantial part, so that they cannot subsist together, the new contract abrogates the earlier one in toto and takes its place, even though there is no express agreement that the new contract shall have that effect.” Riverside Coal Co. v. American Coal Co., 107 Conn. 40, 47, 139 A. 276 (1927). Hence, we consider the bond for deed as the final repository of the parties’ wishes. We note, at the outset, that the bond for deed was prepared by the plaintiffs. “When there is ambiguity, we must construe contractual terms against the drafter.” Hartford Electric Applicators of Thermalux, Inc. v. Alden, 169 Conn. 177, 182, 363 A.2d 135 (1975).

The plaintiffs contend that the parties entered into a valid contract, and claim that upon the facts of the case they are entitled to a judgment for specific performance. Even though the contract may be valid, it does not follow that the plaintiffs are automatically entitled to a decree of specific performance. Sidor v. Kravec, 135 Conn. 571, 573, 66 A.2d 812 (1949).

There was conflicting testimony by experts concerning whether the single percolation test which was performed on April 30,1979, was sufficient to determine soil conditions throughout the entire parcel. The experts further disagreed as to the number of building lots which could be culled out.

In the face of a conflict in the opinions of experts, the court’s duty is to accept that testimony which appears to be more credible. Holden & Daly, Connecticut Evidence (1966) § 118 (c), p. 553. The trial court chose to accept the opinions of the defendant’s experts that a minimum of four building lots could not be forthcoming from the New Hartford parcel.

The delay in testing until April 30 was not deemed to be harmful in view of the prior attempts which were canceled due to adverse weather conditions. Furthermore, the defendant could have obtained an automatic thirty day extension had it requested the same. “The rule that time is ordinarily not of the essence in transactions involving real property applies to the occurrence of a contractual condition as well as to the performance of a contractual duty.” Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981).

Since there was a failure of condition in that four building lots could not be realized under the terms of the bond for deed, the defendant properly offered the plaintiffs their option to purchase the Avon premises for cash. The plaintiffs were unable to do so, but still refused the defendant’s proffer of the return of their deposit. Under these circumstances, and in the absence of any evidence to support a finding that the plaintiffs were ready, willing and able to perform pursuant to the agreement, the court concluded that the plaintiffs were not entitled to judgment. Eastern Consolidators, Inc. v. W. L. McAviney Properties, Inc., 159 Conn. 510, 511, 271 A.2d 59 (1970). We find no error in the conclusion of the court that the defendant did not breach the contract.

This conclusion is also dispositive of the first issue.

The plaintiffs, relying on United States v. Forness, 125 F.2d 928 (2d Cir.), cert. denied sub nom. Salamanca v. United States, 316 U.S. 694, 62 S. Ct. 1293, 86 L. Ed. 2d 1264 (1942), claim that the trial court erred in adopting the language in the defendant’s brief as its memorandum of decision. United States v. Forness, supra, 942, states that “a comparison of the findings with the opinion seems to show that the findings proposed by the defendants were mechanically adopted, with the consequence that some of the findings made by the district court are not supported by the evidence and not substantially in accord with the opinion.” The case does not condemn the use of language in a brief of one of the parties but points out the hazards that may result. Here, the trial court specifically acknowledged in its memorandum of decision that it relied heavily on the defendant’s trial brief because the facts and legal theories advanced therein were consistent with the court’s views, and it did not believe that it could improve on the defendant’s language. Although we do not approve of this practice, we cannot find that it resulted in less than a fair trial. Nor was there any manifest abuse of discretion or injustice. See Long v. Schull, 184 Conn. 252, 257-58, 439 A.2d 975 (1981).

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       The salient features of the bond for deed are as follows: “That seller shall in good faith determine, on or before April 15, 1979, after performing percolation test . . . that said property can be subdivided into a minimum of four building lots.”


text:
    State of Connecticut v. Jack Carter
    (2156)
    Dupont, C.P.J., Hull and Daly, Js.
    Argued November 9, 1984
    decision released February 5, 1985

      Paul J. Bakulski, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (state).

      Thomas P. Griffen, for the appellee (defendant).
   Daly, J.

On May 1, 1981, the defendant acknowledged in writing the paternity of a child, H, who had been born on March 13,1981, and agreed to pay money for her support. On January 25, 1983, the defendant moved to open the paternity proceedings pursuant to General Statutes § 46b-172 (b). The plaintiff has appealed from the granting of the motion.

We must determine, at the threshold, whether this court has jurisdiction over the appeal. Although this point was not raised by the parties, “this court has a duty to reject, on its own motion, any appeal in which it lacks jurisdiction.” State v. Phillips, 166 Conn. 642, 644, 353 A.2d 706 (1974). The right of the plaintiff to appeal is governed by General Statutes § 51-197a (a), which provides that appeals from final judgments of the Superior Court shall be taken to the Appellate Court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 (a)._

“ ‘[T]he granting of a motion to open a judgment is not ordinarily a final judgment within the appeal statute . . . ” State v. Phillips, supra, 646. “Proceedings upon a motion to open a judgment and for a new trial are interlocutory. . . . The granting of the motion does not determine any of the substantive rights of the parties. ... It determines merely that the parties must retry the issues in order to obtain a final adjudication of those rights.” (Citations omitted.) Hoberman v. Lake of Isles, Inc., 138 Conn. 573, 575, 87 A.2d 137 (1952). “It is clear that a judgment rendered upon a petition for a new trial is appealable.” State v. Asherman, 180 Conn. 141, 143, 429 A.2d 810 (1980).

The ultimate question is whether a § 46b-172 (b) petition for a hearing is like a motion to open or like a § 52-270 petition for a new trial.

A review of the legislative history of the applicable statutes sheds some light on this matter. General Statutes § 46b-172 (b) was amended by Public Acts 1981, No. 81-274, by inserting “unless the person seeking review of the acknowledgment petitions the court for a new trial under the provisions of section 52-270.” This would appear to indicate that the General Assembly anticipated that the procedure would entail a petition for a new trial. Section 46b-172 (b) was subsequently amended, however, by Public Acts 1982, No. 82-6, by deleting “new trial under the provisions of section 52-270” and inserting “the superior court for the geographical area having venue for a hearing on the issue of paternity within three years of such judgment or within three years of the effective date of this act, whichever is later.”

In seeking the legislative intent for this change, the court may resort to its pertinent antecedent legislative history. Corbin v. Baldwin, 92 Conn. 99, 105, 101 A. 834 (1917). Representative Alfred J. Onorato of the 97th Assembly District remarked as follows when the bill was being considered for passage: “Public Act 81-274 last year provided the alleged father an option to petition the court for a new trial to contest the acknowledgment of paternity. That procedure is too cumbersome, in that the petition for a new trial encompasses a lot of area. This bill is offered as a compromise to allow the alleged father to petition the court in which the action was originally sought, not for a new trial, but for a hearing on the issue of paternity alone, which will cut the process down and give this particular defendant his day in court.” 25 H.R. Proc., Pt. 1, 1982 Sess., pp. 211-12.

“So far as the right of appeal is concerned, there is a distinction between an order granting a motion for a new trial and a judgment entered upon a petition for a new trial, which may be instituted at any time within three years after a judgment is rendered. . . . The latter is appealable. Palverari v. Finta, 129 Conn. 38, 41, 26 A. 2d 229 [1942]; Husted v. Mead, 58 Conn. 55, 68, 19 A. 233 [1889]. The difference is in at least two essential particulars. In the first place, a petition for a new trial is instituted by writ and complaint served upon the adverse party in the same manner as in any other new action. Although the action so started is collateral to the action in which the new trial is sought, it nevertheless is a distinct suit in itself. The judgment rendered therein is, therefore, the termination of the suit. It is the final judgment in the action. See State v. Kemp, 124 Conn. 639, 644, 1 A.2d 761 [1938]. On the other hand, a motion for a new trial is filed in a case already pending and is merely a step in the procedure leading to the final judgment in that case. In the second place, claimed errors committed in rendering judgment on a petition for a new trial are not reviewable on an appeal from the judgment rendered in the action in which a new trial is sought. . . . The same is not true of a decision by the trial court on the less formal motion for a new trial. As is pointed out above, errors claimed in connection therewith may be assigned on the appeal from the judgment in the case in which the motion was made.” Hoberman v. Lake of Isles, Inc., supra, 576-77.

Our Supreme Court “has developed a number of standards delineating the requirement of finality. One test is whether the order or action terminates a separate and distinct proceeding. . . . Another test lies in the effect of an order as concluding the rights of some or all of the parties . . . and, finally, if the rights of the parties are concluded so that further proceedings cannot affect them, then the judgment is final.” (Citations omitted.) E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 627, 356 A.2d 893 (1975); Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973).

“As with setting aside a judgment, after a motion for opening a judgment is granted, the case stands as though no judgment was rendered.” State v. Phillips, supra, 646. Here, the paternity issue is opened as if no judgment was in effect. The matter may be litigated, and the plaintiff still has the right to appeal from the ruling and any adverse determination. The plaintiffs rights are not concluded in this case under the aforesaid test; hence, the granting of the defendant’s motion is not a final judgment from which an appeal lies. This court, therefore, lacks jurisdiction.

The appeal is dismissed.

In this opinion the other judges concurred.

       The motion was treated as a petition for a hearing on the issue of paternity by the parties and by the trial court.

       General Statutes § 46b-172 (b) provides in part as follows: “The prior judgment as to paternity shall be res judicata as to that issue and shall not be reconsidered by the court, unless the person seeking review of the acknowledgment petitions the superior court . . . for a hearing on the issue of paternity within three years of such judgment or within three years of October 1, 1982, whichever is later.”

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       A petition for a new trial would be filed pursuant to General Statutes § 52-270 (a), which provides: “The superior court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the superior court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.”


text:
    Lumbermens Mutual Casualty Company v. Margaret Scully et al.
    (2011)
    Hull, Borden and Spallone, Js.
    Argued November 15, 1984
    decision released February 5, 1985

      Frederick W. Odell, for the appellants (defendants).

      William P. Meehan, with whom, on the brief, was David A. Sierra, for the appellee (plaintiff).
   Spallone, J.

On September 1,1974, the defendant Margaret Scully incurred medical expenses and lost wages as a result of a motor vehicle accident in Pennsylvania. The other car involved in the accident was a 1974 Mercury operated by Leonard Wildes, who had leased it from Bianchi Lincoln-Mercury, Inc., a Pennsylvania corporation. At the time of the accident, the defendants were insured under a policy issued by the plaintiff. Under that policy, the plaintiff paid the defendants $2326.38 as basic reparations benefits, pursuant to its obligations under Connecticut’s No-Fault Motor Vehicle Insurance Act, General Statutes §§ 38-319 through 38-351.

The defendants subsequently brought suit against Wildes, as a third party tortfeasor, and in settlement of that claim received $26,000 from Wildes’ insurance company. Pursuant to General Statutes § 38-325 (b), the plaintiff requested that the defendants reimburse it for the $2326.38 in basic reparations benefits. The defendants refused.

The plaintiff brought this action against the defendants to recover the $2326.38. After a trial to the court, judgment in that amount was rendered for the plaintiff. The defendants now appeal from that judgment. On appeal, they claim that the court erred in concluding that they were required to reimburse the plaintiff under General Statutes § 38-325 (b). The defendants contend that the tortfeasor’s vehicle, because it was leased, was not a private passenger vehicle but was, instead, a vehicle in livery service. They thus claim that they are exempt from the reimbursement requirement. The dispositive issue on appeal is whether the leased vehicle driven by Wildes was a private passenger motor vehicle under General Statutes § 38-325 (b).

General Statutes (Rev. to 1972) § 38-325 (b) states in pertinent part: “Whenever a person who receives basic reparations benefits for an injury recovers damages from the owner, registrant, operator or occupant of a private passenger motor vehicle . . . the insurer is entitled to reimbursement . . . .” General Statutes (Rev. to 1972) § 38-319 (g) defines “private passenger motor vehicle” in part as “a private passenger, station wagon or camper type automobile other than a motorcycle, not used as a public or livery conveyance . . . .” General Statutes (Rev. to 1972) § 16-324 (now § 13b-101) provides in pertinent part that “ ‘motor vehicle in livery service' means and includes every motor vehicle used for the transportation of passengers for hire . . . .”

In construing the meaning of these terms, we look to both the legislative intent of § 38-325 (b) and to the commonly approved usage of the words themselves. General Statutes § 1-1; Flanagan Ambulance Service, Inc. v. Public Utilities Commission, 161 Conn. 215, 217, 286 A.2d 315 (1971). We must be certain to read the statutory definition of “private passenger motor vehicle” in light of the general purpose expressed throughout the No-Fault Motor Vehicle Insurance Act. See Flanagan Ambulance Service, Inc. v. Public Utilities Commission, supra.

“Section 38-325 of the General Statutes is part of the no-fault motor vehicle insurance act. . . . The statutory scheme . . . creates a system of disincentives and incentives to sue.” Hartford Accident & Indemnity Co. v. Holder, 37 Conn. Sup. 723, 731-32, 436 A.2d 308 (1981). Essentially, the act provides a disincentive for the insured to sue in cases of minor injury, which will mostly involve private passenger motor vehicles, and an incentive to sue in cases where private passenger motor vehicles are not involved. Id., 732. The insured is thus encouraged to sue “the owners and operators of motorcycles, large trucks and public or livery vehicles.” Id. The classification bears a reasonable relationship to the legitimate purpose of increased highway safety since, in the case of large trucks and public or livery vehicles, encouraging tort liability against their owners “could encourage them to take steps, such as driver training, driver reassignment and other mechanisms, which would deter careless operation, resulting in greater highway safety.” Id., 733. The reimbursement provision of § 38-325 (b) is central to this scheme by requiring an insured who recovers from an insured owner, registrant, operator or occupant of a private passenger motor vehicle to repay, to his insurer, any basic reparations benefits which he receives. In light of the scheme of incentives created by the no-fault motor vehicle insurance act, an individual who leases a private car for his own use cannot reasonably be expected to take the steps which the owner of a public or livery vehicle might take to keep insurance premiums down.

As to the commonly approved meaning of the words in question, we adopt the analysis set forth in Greyhound Rent-A-Car, Inc. v. Carbon, 327 So. 2d 792 (Fla. Dist. Ct. App.), cert. denied, 336 So. 2d 1182 (Fla. 1976), which considered whether a rented car was a “motor vehicle” or a “public livery conveyance for passengers” in the context of Florida’s automobile insurance law. In that case, the Carbons sued Greyhound Rent-A-Car, Inc. (hereinafter Greyhound), for personal injury protection benefits for injuries sustained in an accident which occurred while they were driving a car rented from Greyhound. Greyhound raised the defense that the rental vehicle was not a “motor vehicle” as defined by the Florida Automobile Reparations Reform Act, but a “public livery conveyance for passengers.” The Florida court looked to the common usage of the words when it stated: “Livery conveyance is defined in Black’s Law Dictionary, Revised Fourth Addition, 1968, at page 1084, as ‘[a] vehicle used indiscriminately in conveying the public, without limitation to certain persons or particular occasions or without being governed by special terms.’ In Couch on Insurance, 2d, § 1040, it is stated that, ‘[t]o be a public conveyance requires the indiscriminate use of the vehicle conveying the public and a holding out of the vehicle to the general public for the carrying of passengers for hire. . . . [T]he vehicle is not a public conveyance where its use with respect to others is limited to particular persons and particular times and is governed by special terms.’ ” Id., 793. The court then reasoned that the rented car driven by the Carbons was not a public or livery conveyance because it was “not subject to indiscriminate use by the general public without limitation to particular persons, particular times or special terms.” Id. Since the vehicle was rented to an individual and the rental was governed by the special terms of a rental agreement, the court held that the rented vehicle was a “motor vehicle.” Id.

We likewise conclude that the motor vehicle driven by Wildes was not a public or livery conveyance or a “motor vehicle in livery service” under General Statutes (Rev. to 1972) § 16-324 and hold that the trial court did not err in finding that the defendants failed to prove that the leased vehicle was anything other than a conventional passenger vehicle. In view of the purpose of our no-fault insurance law and the commonly approved usage of the words in question, the leased vehicle driven by the tortfeasor was a “private passenger motor vehicle” within General Statutes s 38-325 (b).

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1972) § 38-325 provides in pertinent part as follows: “(b) Whenever a person who receives basic reparations benefits for an injury recovers damages from the owner, registrant, operator or occupant of a private passenger motor vehicle with respect to which security has been provided under this chapter or from a person or organization legally responsible for his acts or omissions, the insurer is entitled to reimbursement from the claimant to the extent that said basic reparations benefits have been paid and the insurer shall have a lien on the claimant’s recovery to such extent.”

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       On the other hand, under General Statutes § 38-325 (c), “if an insured recovers from an operator of a motor vehicle which is not an insured private passenger motor vehicle, he need not make direct and full reimbursement to his insurer; the insurer has no direct lien on the recovery but is merely subrogated to the insured’s recovery rights to the extent of the benefits paid.” Hartford Accident & Indemnity Co. v. Holder, 37 Conn. Sup. 723, 728, 436 A.2d 308 (1981); see Amica Mutual Ins. Co. v. Barton, 1 Conn. App. 569, 474 A.2d 104 (1984).

       The Florida Automobile Reparations Reform Act was the predecessor of the Florida Motor Vehicle No-Fault Law, Fla. Stat. §§ 627.730 et seq. Florida Statutes § 627.732 (1973), which was in effect at the time of the accident, provided in pertinent part as follows: “(1) ‘Motor vehicle’ means a sedan, station wagon, or jeep type vehicle not used as a public livery conveyance for passengers and includes any other four-wheel motor vehicle used as a utility automobile and a pickup or panel truck which is not used primarily in the occupation, profession, or business of the insured.”

       Where an exception to a statute forms an integral part of a right created by that statute, the plaintiff bears the burden of showing that he comes within the limited class for whose benefit the right was created. Goodwin v. Giovenelli, 117 Conn. 103, 107, 167 A. 87 (1933). If it is assumed that the reimbursement provision of subsection (b) of General Statutes § 38-325 is such an exception, the plaintiff would have to prove that it fell within that exception. In view of the general purpose of the No-Fault Motor Vehicle Insurance Act, however, we do not view subsection (b) as such an exception. Further, the claim that the vehicle was not a private passenger motor vehicle was raised by the defendants as a special defense. Generally, in any affirmative or special defense, the burden of proof rests with the defendant. State v. Arroyo, 181 Conn. 426, 430, 435 A.2d 967 (1980). The defendants consequently bore the burden of proving the claim which they affirmatively raised.


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    Eugene Conti v. Rose Hill Poultry Company, Inc., et al.
    (2205)
    Hull, Borden and Daly, Js.
    Argued December 4, 1984
    decision released February 5, 1985

      John A. Keyes, with whom, on the brief, was Michael J. Whalen, for the appellant (plaintiff).

      Michael P. Del Sole, for the appellees (defendants).
   Daly, J.

The plaintiff instituted this action in negligence against two of his coemployees for their failure to provide adequate braking on their employer’s truck, which the plaintiff was driving alone at the time of the accident. The trial court granted the defendants’ motion for summary judgment on the ground that the plaintiff’s relief was limited to the Workers’ Compensation Act. From the refusal of the trial court to open, or to allow reargument concerning the summary judgment rendered in the defendants’ favor, the plaintiff has appealed to this court.

The following factual situation does not appear to be in dispute: On March 6, 1980, the plaintiff was employed as a truck driver for the Rose Hill Poultry Company. The plaintiff was alone in the truck provided by his employer and was driving in West Haven in the course of his duties of employment. A tractor-trailer allegedly cut in front of the plaintiff’s vehicle, forcing the plaintiff off the highway and turning his truck over. The plaintiff claimed his injuries were the result of the defendants’ negligence in providing him with a truck which had defective brakes. The defendant David Schbelle was the general manager of the company, while the defendant James Ciccarelli was employed as a mechanic servicing company vehicles.

The trial court concluded that since neither defendant was the operator of the truck under General Statutes § 31-293a, the plaintiff was limited to his workers’ compensation remedies and rendered summary judgment for the defendants.

The sole issue concerns the scope of “operation” as set forth in General Statutes § 31-293a.

“Operator” or “driver” is defined by General Statutes § 14-1 (32) as “any person who operates a motor vehicle or who steers or directs the course of a motor vehicle which is being towed by another motor vehicle.”

“While it is true that ‘operation’ is not defined in General Statutes § 14-1, the cases clearly indicate that operation as it refers to a motor vehicle relates to the driving or movement of the vehicle itself or a circumstance resulting from the movement of the vehicle. See Plunkett v. Nationwide Mutual Ins. Co., 150 Conn. 203, 209, 187 A.2d 754 (1963); Reetz v. Mansfield, 119 Conn. 563, 178 A. 53 (1935); Stroud v. Water Commissioners, 90 Conn. 412, 97 A. 336 (1916).” Davey v. Pepperidge Farms, Inc., 180 Conn. 469, 472 n.1, 429 A.2d 943 (1980). The construction of the term “operation of a motor vehicle” in General Statutes § 31-293a as not including activities unrelated to the movement of the vehicle comports with the policy of the legislature. Dias v. Adams, 189 Conn. 354, 360, 456 A.2d 309 (1983).

We have recently stated that “[i]f a coemployee is not engaged at the time of the fellow employee’s injury in any activity related to driving or moving a vehicle or related to a circumstance resulting from the movement of a vehicle, the lawsuit does not fall within the exception of General Statutes § 31-293a.” Kegel v. McNeely, 2 Conn. App. 174, 178, 476 A.2d 641 (1984).

The defendants were not engaged at the time of the accident in any activity related to driving or moving the truck. Hence, the plaintiff’s case does not fall within the exception of General Statutes § 31-293a.

There is no error.

In this opinion the other judges concurred.

       The suit against the employer, Rose Hill Poultry Company, Inc., was withdrawn.

       General Statutes § 31-293a provides as Mows: “no right against fellow employee; exception. If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee except for negligence in the operation of a motor vehicle as defined in section 14-1 or unless such wrong was wilful or malicious. No insurance policy or contract shall be accepted as proof of financial responsibility of the owner and as evidence of the insuring of such person for injury to or death of persons and damage to property by the commissioner of motor vehicles required by chapter 246 if it excludes from coverage under such policy or contract any agent, representative or employee of such owner from such policy or contract. Any provision of such an insurance policy or contract effected after July 1, 1969, which excludes from coverage thereunder any agent, representative or employee of the owner of a motor vehicle involved in an accident with a fellow employee shall be null and void.”


text:
    Richard C. Szilvasy v. Barbara A. Szilvasy
    (2854)
    Dupont, C.P.J., Hull and Daly, Js.
    Argued December 11, 1984
    decision released February 12, 1985

      Mark A. Rubenstein, for the appellant (defendant).

      Diaga G. Osis, for the appellee (plaintiff).
   Per Curiam.

This is an appeal from several awards of distribution arising out of a dissolution of marriage action between the parties. The defendant raises two main issues herein. The first of these is that the court improperly distributed the parties’ property under General Statutes § 46b-81.

At oral argument, the defendant conceded that the trial court could reasonably have reached the decision that it did. It is well settled, in domestic relations cases, that this court does not find facts. “Our function is to decide whether the decision of the trial court was ‘clearly erroneous in view of the evidence and pleadings in the whole record . . . .’ ” Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981).

The second argument, raised for the first time at oral argument, is that General Statutes § 46b-81 (a) and (c) are unconstitutional. The case was not tried on this theory, nor did the defendant’s brief include this claim. The attempt to raise such an issue only at the hearing on appeal, where neither opposing counsel nor the court has been alerted to the claim, obviously calls for invocation of the rule of Practice Book § 3063 which provides that we will not decide issues not raised at the trial court. Chaplin v. Balkus, 189 Conn. 445, 447, 456 A.2d 286 (1983).

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       The defendant claims, as a third issue, that the trial court was biased against her. We find this argument to be totally without merit.


text:
    Alexander W. Mocarski v. United Services Automobile Association
    (2388)
    (3515)
    Dupont, C.P.J., Hull and Daly, Js.
    Argued November 9, 1984
    decision released February 12, 1985

      Carl S. Back, for the appellant (plaintiff)..

      Peter D. Clark, for the appellee (defendant).
   Daly, J.

Two cases involving the same motor vehicle accident have been combined in this appeal.

The arbitrator found the following factual situation in accordance with the stipulation of the parties. On November 16,1975, the plaintiffs automobile collided with an uninsured vehicle. The plaintiff was insured by the defendant under an automobile policy effective from July 15,1975, to July 15,1976. The terms of said policy which relate to uninsured motorist coverage provide that if the claimant and the company do not agree as to the amount of payment which may be owing under the uninsured motorist portion of the insurance policy, then, upon written demand of either the claimant or the insurance company, the matter or matters upon which the claimant and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association. Rule four of the American Arbitration Association’s accident claims arbitration rules provides that arbitration may be initiated by filing a written demand for arbitration.

The plaintiff filed a demand for arbitration dated November 17,1981, which was received by the American Arbitration Association on November 18, 1981. The issues stipulated to by the parties related to when the right of action accrued, timely demand and estoppel. The arbitrator concluded that the right of action under the uninsured motorist provisions of the policy accrued as of the date of the accident. General Statutes § 52-576 (a) provides that “[n]o action . . . on any contract in writing, shall be brought but within six years after the right of action accrues . . . .” This action was not brought within six years and the plaintiff failed to sustain his burden of proof regarding the tolling of the statute of limitations on the basis of estoppel.

The plaintiff filed an application to vacate the arbitration award which the court denied. The plaintiff’s appeal from said denial is the subject of the first appeal (Docket No. 2388). The plaintiff is also appealing from the court’s denial of his application for an order to proceed with arbitration (Docket No. 3515).

The plaintiff claims that the trial court erred (1) in finding that the plaintiff did not meet his burden of proof to vacate the arbitration award, pursuant to General Statutes § 52-418, (2) in finding that the arbitration proceeding was barred by the statute of limitations set forth in General Statutes § 52-576, (3) in its interpretation of General Statutes § 52-576 as to when a cause of action accrues for an uninsured motorist claim and when an action is properly brought under that section, (4) in finding that the plaintiff’s claim of estoppel was without merit, (5) in applying Krupa v. Kelley, 5 Conn. Cir. Ct. 127, 245 A.2d 886 (1968), to the present case and (6) in denying the application for an order to proceed with arbitration.

Arbitration is a contractual remedy designed to expedite, in an informal context, the resolution of disputes. “We have always respected the autonomy of the arbitration process and have often said that an arbitration award will be disturbed only where it clearly falls within the proscriptions of General Statutes § 52-418.” (Citations omitted.) Milford Employees Assn. v. Milford, 179 Conn. 678, 682, 427 A.2d 859 (1980).

“The right to review of the award exists only by statute. Thus, if evidence is to be received at all by the trial court, it is to be evidence tending to prove that the award is impeachable under any of the grounds set out in § 52-418.” Id. The plaintiff makes no claim that the award was procured by corruption or fraud, that the arbitrator acted out of partiality or by corruption, or that the arbitrator wrongfully refused to postpone the hearing or to receive evidence. See General Statutes § 52-418 (a) (1) through (3). Therefore, under the facts of this case, the only issue properly raised is whether the arbitrator exceeded his powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. General Statutes § 52-418 (a) (4). “Every reasonable presumption and intendment will be made in favor of the award and, hence, the burden rests upon the plaintiffs to produce evidence sufficient to invalidate or avoid it.” Milford Employees Assn. v. Milford, supra, 683.

To determine whether the arbitrator exceeded his authority, we look to the submission to see if it conforms to the award. It is apparent that it clearly does so. Id. The submission was in accord with the provisions of General Statutes § 38-175c (a) relating to uninsured motorist coverage, which provides in part: “Every such policy issued on or after October 1,1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. . . .”

Section 38-175c (a) clearly mandates not only the inclusion of a provision for uninsured motorist coverage in automobile liability insurance policies, but that coverage under such provisions be determined through arbitration when the policy provides that the parties will arbitrate. Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 41, 434 A.2d 304 (1980). The expressed intent and effect of the aforementioned provision of § 38-175c (a) “is to remove from the court and to transfer to the arbitration panel the function of determining, in the first instance, all issues as to coverage under automobile liability insurance policies containing uninsured motorist clauses providing for arbitration.” Id., 42.

Accordingly, the arbitrator’s award is final and binding and cannot be reviewed for errors of law or fact. Milford Employees Assn. v. Milford, supra, 683. “The parties freely bargained for the remedy of arbitration in the event of a dispute of this nature. Having done so, they are bound by the decision lawfully rendered.” Id., 684.

In view of the above, we find no error in the trial court’s refusal to vacate the arbitration award or in its refusal to compel arbitration of the matter.

There is no error on either appeal.

In this opinion the other judges concurred.

       These appeals, originally filed in the Supreme Court, were transferred to this court. General Statutes § 51-199 (c).

       Prior to filing the demand for arbitration, the plaintiff had served on the defendant, on September 30, 1981, an application for an order to proceed with arbitration. A hearing was scheduled on this application for October 30,1981. Prior to October 30, the parties voluntarily agreed to submit to an arbitration, and that hearing was cancelled. The trial court thereafter denied the application on December 20, 1982.

       General Statutes § 52-418 provides in part: “vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”


text:
    Bridgeport Jai Alai, Inc. v. Gaming Policy Board et al.
    (3042)
    Hull, Spallone and Daly, Js.
    Argued December 13, 1984
    decision released February 12, 1985

      Austin K. Wolf, with whom were Stewart I. Edelstein and, on the brief, William F. Askinazi, for the appellant-cross appellee (plaintiff).

      Richard M. Sheridan, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Laura F. Muggeo, for the appellee-cross appellant (named defendant).

      Bourke G. Spellacy, with whom, on the brief, was Michael D. Neubert, for the appellee (defendant Berenson Pari-Mutual, Inc.).

      Philip Baroff with whom was Matthew B. Woods, for the appellee (defendant Milford Jai Alai, Inc.).
   Per Curiam.

The plaintiff in this appeal, Bridgeport Jai Alai, Inc. (Bridgeport), claims error in the trial court’s decision upholding the determination of jai alai dates by the gaming policy board. The defendant cross appeals contesting the court’s decision that the plaintiff had a right to appeal. We do not reach the merits of either the appeal or the cross appeal because both are moot.

On October 19, 1983, the gaming policy board conducted a hearing to assign dates during which the three jai alai frontons in Connecticut could operate in 1984. On that date, the board set dates that Bridgeport alleges were unfairly advantageous to the defendant Berenson Pari-Mutual, Inc. (Hartford Jai Alai).

Having exhausted its administrative remedies, Bridgeport appealed the board’s assignment of its and Hartford Jai Alai’s dates to the Superior Court. That court expressly decided that Bridgeport had the right to appeal, and, concluding that the board had not acted improperly, upheld its decision.

Bridgeport then filed the present appeal, claiming that the trial court erred in upholding the board’s decision and the board cross appealed asserting that the trial court erred in not dismissing the appeal.

Since the last date at issue herein is December 31, 1984, this appeal cannot afford Bridgeport any real relief. “ Tt is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.’ Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 [1944]; Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 [1974]; Harkins v. Driscoll, 165 Conn. 407, 409, 334 A.2d 901 [1973]; Roy v. Mulcahy, 161 Conn. 324, 328, 288 A.2d 64 [1971]; Maltbie, Conn. App. Proc. § 21. In the absence of an actual and existing controversy for us to adjudicate in any sense of the term, the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law; Reply of the Judges, 33 Conn. 586 [1867]; and where the question presented is purely academic, we must refuse to entertain the appeal. Young v. Tynan, 148 Conn. 456, 459, 172 A.2d 190 [1961].” Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979); Accurate Forging Corporation v. UAW, Local No. 1017, 189 Conn. 24, 26, 453 A.2d 769 (1983); Connecticut State Employees Assn. v. AFSCME, 188 Conn. 196, 199-200, 448 A.2d 1341 (1982); CEUI v. CSEA, 183 Conn. 235, 246-47, 439 A.2d 321 (1981); Groesbeck v. Sotire, 1 Conn. App. 66, 68, 467 A.2d 1245 (1983). Since the appeal can provide no actual relief to Bridgeport, we conclude that it is moot.

Similarly, the board’s cross appeal is also moot. The board seeks only a declaration that there is no right of appeal from the board’s statutory decision setting jai alai dates either as a contested decision under the Uniform Administrative Procedure Act or as authorized by General Statutes § 12-574 (m). The board, however, prevailed at the trial although not specifically on the question of the right to appeal. The board claims that this is a case that is “capable of repetition, yet evading review.” Although that doctrine is frequently applied where the party disclaiming mootness did not prevail on the principal issue involved, we do not consider it applicable to a case such as this where the party so claiming prevailed in the trial court although on a different issue from the one sought to be decided. See Kofkoff Egg Farms, Ltd.v. Johnson, 188 Conn. 141, 144, 448 A.2d 826 (1982). We will not provide opinions on purely academic points of law to satisfy a party which was successful on the merits of its case below. See Christy Hill Builders, Inc. v. Hall, 184 Conn. 575, 577, 439 A.2d 1065 (1981).

The appeal and cross appeal are both dismissed.

       Milford Jai Alai is also a defendant herein.

       The basis of the board’s assertion is that the case could not be appealed as it was not a contested case within the provisions of the Uniform Administrative Procedure Act; General Statutes §§ 4-166 through 4-189; nor was it an appeal authorized by General Statutes § 12-574 (m).

       General Statutes §§ 4-166 through 4-189.


author: Hull, J.

text:
    Timothy Oslund v. Administrator, Unemployment Compensation Act
    (2196)
    Hull, Borden and Spallone, Js.
    Argued December 4, 1984
    decision released February 12, 1985

      Thadd A. Gnocchi, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (defendant).

      Richard A. Kablik, for the appellee (plaintiff).
   Hull, J.

The defendant, administrator of the Unemployment Compensation Act, appeals from the judgment of the trial court which found that it had jurisdiction to hear the plaintiff’s appeal, both from the administrator’s original decision that he was disqualified from receiving unemployment compensation benefits and from the administrator’s later decision finding an orerpayment of $2117 and ordering repayment thereof.

The claimant, Timothy Oslund, who had been receiving unemployment compensation benefits following the loss of full-time employment, was denied continued benefits. He was notified of that denial by letter dated April 15, 1982. The administrator found that he had voluntarily left other, part-time employment. A referee affirmed that decision on May 27,1982, concluding that Oslund did not have “a compelling personal reason for terminating this position and it, therefore, follows that he is subject to disqualification in consequence of this quit . . . .” Oslund did not appeal that decision within the twenty-one days required by General Statutes § 31-248.

In the notice of the referee’s decision, Oslund was told that the amount of overpayment to be reimbursed by him would be determined later. A hearing was held on that issue and, on August 24,1982, Oslund was notified that those arrearages amounted to $2117, which could be offset against future benefits. From this decision, Oslund appealed to the employment security board of review and, upon their affirmation, to the trial court.

The trial court concluded that it had jurisdiction to hear the entire case, and that Oslund “was still entitled to receive benefits and he did not receive them ‘through error.’ ” On this basis, the court found the administrator’s finding of an overpayment to be “arbitrary and illegal” and sustained Oslund’s appeal.

Although the trial court had jurisdiction over the appeal from the determination of the amount and method of overpayment received by Oslund, that determination was a separate and distinct proceeding from the determination of his ineligibility for benefits.

Oslund expressly admitted in his brief that “[t]he decision as to eligibility was not appealed within twenty-one days and so it became final.” Since an appeal from a decision of the referee must be made within twenty-one days, appellate review of the referee’s decision on that point was outside of the trial court’s limited power to review only claims where all of the statutory requirements have been met. Mazur v. Blum, 184 Conn. 116, 119, 441 A.2d 65 (1981). The court could not, because of its jurisdiction over Oslund’s appeal concerning the amount and form of repayment, thereby resuscitate a long dead appeal from the underlying decision of the administrator.

Since the trial court erroneously found jurisdiction on the disqualification issue and reversed the administrator’s decision of disqualification, it did not reach the plaintiff’s claim on appeal over which it did have jurisdiction. That claim is that the administrator’s finding of an overpayment, together with an order for repayment thereof, was arbitrary, illegal or unreasonable.

There is error, the judgment of the trial court is set aside and the case is remanded to the trial court for further proceedings to consider only the plaintiff’s appeal from the board’s decision concerning arrearages and repayment thereof.

In this opinion the other judges concurred.

       General Statutes § 31-248 provides: “Any decision of a referee in the absence of an appeal therefrom, as herein provided, shall become final on the twenty-second day after the date on which a copy of the decision is mailed to the party. Any decision may be reopened, vacated, set aside or modified, before the twenty-second day after that date on the motion of a party to the proceeding, or on the referee’s own motion, on grounds of new evidence, or if the ends of justice so require upon good cause shown. The appeal period shall run from the mailing of a copy of the decision entered after such reopening or modification. Judicial review of any decision shall be permitted only after a party aggrieved thereby has exhausted his remedy before the board, as provided in this chapter. The administrator shall be deemed to be a party to any judicial proceeding involving any such decision and shall be represented in such proceeding by the attorney general.”

       See footnote 1, supra.


text:
    William N. Wingerd v. Mary Jane Wingerd
    (2189)
    Hull, Spallone and Daly, Js.
    Argued December 5, 1984
    decision released February 12, 1985

      WilliamH. Clendenen, Jr., with whom, on the brief, was David M. Lesser, for the appellant (plaintiff).

      Donald C. Lunt, for the appellee (defendant).
   Daly, J.

The plaintiff has appealed from the denial of his motion for modification of alimony.

The trial court found the following facts: On October 7, 1980, a judgment for dissolution was rendered whereby the plaintiff was to pay the defendant $175 per week as alimony in addition to a payment of $9000 within ten days of the judgment. On December 9, 1982, the plaintiff filed a motion to modify the alimony order based on a substantial change of circumstances in that his wife, the defendant, had received an inheritance from her father. Her assets had increased by approximately $156,000, while the plaintiff’s assets had increased by approximately $47,000. Their respecfive weekly income and expenses were found to be within $5 to $8 of the other. Also, the plaintiff received additional perquisites from his employment, which include a mortgage subsidy, food, travel and vacation.

The plaintiffs motion, which sought a termination of alimony, was denied on the basis that while the circumstances had changed for each party, the changes were not substantial.

The plaintiff claims that the trial court erred in refusing to modify the judgment of alimony, in not finding a substantial change in circumstances, and in relying on the defendant’s outdated financial affidavit.

The ground rules governing modification of periodic alimony are established by General Statutes § 46b-86 (a) and by our case law. “A party seeking modification must show ‘a substantial change in the circumstances of either party, occurring subsequent to the entry of the original decree, and not contemplated by the parties at that time.’ ” McCann v. McCann, 191 Conn. 447, 450-51, 464 A.2d 825 (1983). A broad range of circumstances is relevant in deciding whether a decree may be modified. Benson v. Benson, 187 Conn. 380, 382, 446 A.2d 796 (1982). The party seeking modification of a support order must “clearly and definitely” demonstrate the substantial change. Kelepecz v. Kelepecz, 187 Conn. 537, 538, 447 A.2d 8 (1982). A substantial change in circumstances demonstrates that continued operation of the original order would be unfair and improper. Noce v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980).

While the plaintiff has set forth, in figures, a strong case for a modification, the case was tried on the theory that alimony should be terminated completely. This is borne out by the final sentence of the memorandum of decision, which states: “Motion to terminate alimony denied.” The trial court did not feel that continued operation of the original order would be unfair and improper. “In these matters, as in other questions arising out of marital disputes, this court relies heavily on the exercise of sound discretion by the trial court.” Cummock v. Cummock, 180 Conn. 218, 221, 429 A.2d 474 (1980). Trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are significant. Hardisty v. Hardisty, 183 Conn. 253, 260, 439 A.2d 307 (1981).

The trial court had a reasonable basis to assume that it was to decide whether to terminate alimony completely or not at all. The action of the trial court will not be disturbed unless it abused its legal discretion, and in determining this the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. Kelepecz v. Kelepecz, supra, 538.

While there was a change in circumstances here, the trial court, within its discretion, could determine that it was not substantial enough to warrant a termination of alimony. The net worth of the parties is a question of fact for the trier. Tobey v. Tobey, 165 Conn. 742, 345 A.2d 21 (1974). The trier is the sole arbiter of what testimony is to be believed and what testimony is to be rejected. Holden & Daly, Connecticut Evidence (1966 & Sup. 1983) § 125 (a).

There is no error.

In this opinion the other judges concurred.


text:
    Jerome Johnson v. Administrator, Unemployment Compensation Act
    (2096)
    Hull, Borden and Spallone, Js.
    Argued December 4, 1984
    decision released February 12, 1985

      Daniel V. Presnick, for the appellant (plaintiff).

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Leonard M. Caine, assistant attorney general, for the appellee (defendant).
   Hull, J.

The plaintiff appeals from the trial court’s judgment dismissing his appeal from a decision of the board of review of the employment security appeals division. The board of review affirmed the referee’s finding upholding the administrator’s denial of unemployment compensation benefits to the plaintiff. The plaintiff’s principal claim is that the evidence before the referee was insufficient to justify the trial court’s affirmation of the decision of the board of review.

The plaintiff was employed for a year and one-half by a company specializing in the importation and distribution of alcoholic beverages. He was discharged in November, 1980, and thereafter applied for unemployment compensation benefits. The administrator con-eluded that the plaintiff was ineligible for benefits as of November 30, 1980. He found that the plaintiffs endeavors had been in the furtherance of his self-employment as a wine importer and that he was not genuinely attached to the normal labor market and therefore was not available for work within the meaning of the unemployment compensation law.

On the plaintiffs appeal from the administrator’s denial of benefits, the referee found substantially as follows: Johnson’s primary employment experience was in the field of marketing and sales in the alcoholic beverage industry. During the weeks at issue since November 30,1980, he was actively engaged in developing and establishing his own business in the same type of activity. He devoted an average of approximately seven hours per day of his time to developing his own business, for which he set up an office area in his own home. He opened a checking account for his business, he obtained a telex number and he had ordered and obtained stationery for the business. Although Johnson did not receive any income from his self-employment business activity, he was engaged in writing to companies who produce wines and liquors for the purpose of generating business for himself.

The referee also found that Johnson was willing to accept further suitable, full-time employment within his ability and qualifications, as an employee of some other employer. He reviewed help wanted advertisements and inquired of friends and acquaintances in the liquor industry, seeking leads to suitable employment opportunities. During the calendar week ending January 24,1981, he submitted a resume of his employment qualifications in response to a help wanted advertisement. Johnson was willing to abandon his self-employment activity if he succeeded in obtaining other employment, but he did not otherwise make direct contact with prospective employers in search of suitable full-time employment, either in person or by means of resumes of his employment qualifications.

The referee decided that Johnson was primarily engaged in his own self-employment activity and was therefore not unemployed within the meaning of the Unemployment Compensation Act. He also found that Johnson had not made reasonable efforts to obtain employment as an employee for some other employer. The referee affirmed the administrator’s determination, as modified regarding the reasons for Johnson’s ineligibility for benefits. The board of review adopted the referee’s findings of fact and decision as its own and affirmed the decision of the referee. The trial court affirmed the decision of the board of review and dismissed the appeal.

The trial court concluded that the subordinate facts found by the referee supported his findings that Johnson was actively engaged in his pursuit of self-employment and during the period involved expended minimal effort toward obtaining employment by another employer.

It is axiomatic that the power of the trial court in appeals of this kind is very limited: “[T]he Superior Court does not try the matter de novo; it is not its function to adjudicate questions of fact, nor may it substitute its own conclusions for those of the board. Guevara v. Administrator, 172 Conn. 492, 495, 374 A.2d 1101 [1977]. Rather, it is the function of the court to determine, on the record, ‘whether there is a logical and rational basis for the decision of the [board] or whether, in the light of the evidence, [the board] has acted Ulegaily or in abuse of [its] discretion. Bartlett v. Administrator, 142 Conn. 497, 505, 115 A.2d 671 [1955]; Stapleton v. Administrator, 142 Conn. 160, 165, 112 A.2d 211 [1955].’ ” Cervantes v. Administrator, 177 Conn. 132, 134, 411 A.2d 921 (1979).

“[The court] is bound by the findings of subordinate facts and reasonable factual conclusions made by the appeals referee where, as here, the board of review adopted the findings and affirmed the decision of the referee.” DaSilva v. Administrator, 175 Conn. 562, 564, 402 A.2d 755 (1978). “[A] person seeking self-employment is not exposing himself to the labor market but has in fact withdrawn from it to become involved in his own enterprise.” Micca v. Administrator, 26 Conn. Sup. 16, 18, 209 A.2d 682 (1965); see also Maskovsky v. High Brook Farm, 7 Conn. Sup. 364 (1939).

On this record, the plaintiff has shown no good reason why this court should disturb the trial court’s judgment affirming the decision of the board of review.

There is no error.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

         The plaintiff also made two other claims which merit little discussion. The plaintiff first claims that the trial court erred in opening a default which it had entered against the defendant, upon the plaintiffs motion, for failure of the defendant to file his brief within the time set by a briefing schedule ordered by the court. We note that no judgment was rendered upon this default; it was simply a default which the court later, upon a satisfactory explanation given by the defendant, opened. We decline to review this action of the court in opening the default. It is a purely discretionary act which, like a decision on a motion to restore a case to the docket; Governors Grove Condominium Assn., Inc. v. Hill Development Corporation, 187 Conn. 509, 512, 446 A.2d 1082 (1982); or a decision denying a motion for default; Thomas v. Commerford, 168 Conn. 64, 72, 357 A.2d 476 (1975); is not appeal-able, even after a final judgment. See Kiessling v. Kiessling, 134 Conn. 564, 565 n.1, 59 A.2d 532 (1948). This is to be distinguished from the action of a trial court in opening a judgment rendered after a default, which is appeal-able after the final judgment in the case. Automotive Twins, Inc. v. Klein, 138 Conn. 28, 33-35, 82 A.2d 146 (1951).
      The plaintiff also claims that the court erred in not requiring the administrator to notify the plaintiff prior to his ruling as to the requirement to seek work and the consequences of his activities. The plaintiff cites DeNicola v. Administrator, Superior Court, judicial district of New Haven, Docket No. 159212, April 27, 1981. In DeNicola, the referee found: (1) that the claimant was not advised at her first visit of the eligibility requirements of the Unemployment Compensation Act; (2) that it was not until a later interview that the claimant was told of her need to make reasonable efforts to secure employment; (3) that the claimant did actively search for work after being so informed; and (4) that the claimant would have made these efforts from the date she initiated her claim had she been so informed. Since there is no factual finding in the administrative record or before the trial court to support such a claim, we do not consider it.

       General Statutes § 31-235 provides in part that “[a]n unemployed individual shall be eligible to receive benefits with respect to any week only if it has been found that ... he is physically and mentally able to work and is available for work and has been and is making reasonable efforts to obtain work . . . .”