text:
    Elsie LaFaive v. Mario DiLoreto et al.
    (2428)
    Dannehy, C.P.J., Testo and Hull, Js.
    Argued February 28
    decision released May 29, 1984

      Snow GeneMunford, for the appellants (defendants).

      L. Paul Sullivan, for the appellee (plaintiff).
   Testo, J.

The plaintiff was the tenant in an apartment house owned by the defendants, Mario and Rosa DiLoreto. On January 11, 1972, in the early morning, while the plaintiff was descending the interior stairway of the building from her third floor apartment, she fell, head first, down from the second to the first floor. She alleged that, as she was descending, her heel caught on the edge of the rubber mat on the third tread down from the second floor landing and that the mat was raised above the tread surface. The plaintiff commenced a negligence action against the defendants claiming that they had failed to secure the back edge of the rubber mat onto the stairway, to properly inspect the stairway, to provide a handrail and to take reasonable steps to cure the defect, the raised mat. The jury returned a verdict in favor of the plaintiff in the amount of $46,000. The defendants then filed a motion to set aside the verdict which was denied by the trial court. The defendants appeal from the judgment denying their motion to set aside the verdict. In their appeal, the defendants claim that the court erred (1) in refusing to set aside the verdict because there was no credible evidence of actual or constructive notice to the defendants of the alleged defect in the rubber mat on the stairs; (2) in refusing to set aside the verdict because the proof did not conform to the pleadings; (3) in admitting the plaintiffs personnel records as business records; (4) in curtailing the defendants’ cross-examination of the plaintiff regarding her conversation with her attorney during a recess; and (5) in excusing for cause two prospective jurors who were engineers.

I

Our review of a trial court’s refusal to set aside a verdict is limited. If on the evidence the jury could reasonably have decided as it did, we will not find error in the trial court’s acceptance of the verdict. Kalleher v. Orr, 183 Conn. 125, 126, 438 A.2d 843 (1981). Upon review in this court, we must give the evidence the construction most favorable to support the verdict. Id., 126-27. The conclusion of the judge who presided at the trial and denied the defendants’ motion to set aside the verdict is significant for he had an opportunity superior to ours to weigh the evidence presented and to determine the credibility and effect to be given the evidence. Swift & Co. v. Rexton, Inc., 187 Conn. 540, 543, 447 A.2d 9 (1982); cf. Rood v. Russo, 161 Conn. 1, 5, 283 A.2d 220 (1971).

Whether the jury’s general verdict for the plaintiff was premised on either actual or constructive notice, it is sustainable if either type of notice is supported by the evidence. For the plaintiff to recover for the breach of a duty owed to her as an invitee, she had to allege and prove that the defendants had actual or constructive notice of the presence of the specific unsafe condition which caused her fall. See Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824 (1966). Either type of notice must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it. Id.; White v.E & F Construction Co., 151 Conn. 110, 113, 193 A.2d 716 (1963). “On a question of notice, the trier’s consideration must be confined to the defendant’s knowledge and realization of the specific condition causing the injury, and such knowledge and realization cannot be found to exist from a knowledge of the general or overall conditions ... on the premises.” Monahan v. Montgomery, supra; Krause v. Almor Homes, Inc., 149 Conn. 614, 618, 183 A.2d 273 (1962).

The named defendant testified that he saw and percieved the raised condition of the mat prior to the accident, but that he did not pay any attention to it because he perceived that physical condition as normal. There was also evidence presented by a qualified expert in the field of safety engineering, who examined the stairway four weeks after the accident. He testified that the waving or elevated condition of the mat would have occurred during the warm weather, and would have come to an end and remained stable throughout the colder weather months so that a person inspecting the stairs would have seen the raised condition of the mat for a period of at least two months before the accident occurred. This was a reasonable length of time in which the defendants in the exercise of due care should have discovered the defective condition in time to have it remedied. See Long v. Savin Rock Amusement Co., 141 Conn. 150, 153, 104 A.2d 221 (1954). Under these circumstances, there was ample evidence from which the jury could reasonably have concluded that the claimed specific defect had existed for such a sufficient length of time that the defendants should have known of it or should have discovered it in the exercise of a reasonable supervision of the premises. We, therefore, cannot say that the trial court abused its discretion in refusing to set aside the verdict.

II

To set aside a verdict on the basis of a variance between the pleadings and the proof, the variance must be material in a way which is essential to the cause of action claimed. Schaller v. Roadside Inn, Inc., 154 Conn. 61, 65, 221 A.2d 263 (1966); Francis v. Hollauer, 1 Conn. App. 693, 695, 475 A.2d 326 (1984); S.H.V.C., Inc. v. Roy, 37 Conn. Sup. 579, 580-81, 428 A.2d 806 (1981). Not every variance, however, is material. If the variance is immaterial, it is disregarded. Practice Book § 178. An immaterial variance is one in which the difference between the allegations and the proof is so slight and unimportant that the adverse party is not misled as to the charge he is required to meet or prejudiced in maintaining his defense on the merits of the case. Strimiska v. Yates, 158 Conn. 179, 184, 257 A.2d 814 (1969). Thus, an otherwise valid judgment will not be invalidated if a variance does not change the theory of the cause of action and if the party complaining of the variance was, at all times, in a position to know the true state of the facts. Id.

The allegations in the complaint state that “when [the plaintiff] arrived at the third tread down from the second floor landing she was caused to trip and fall down the stairway by reason of a . . . defective condition of the stairway at said location . . . .” The defendants posit that at trial evidence was presented that the plaintiff’s left heel became caught on the rubber mat and that the accident was not the result of her tripping on the mat. Any variance between the mechanics of the fall as presented during the trial and the definition of the word “trip” is a difference in semantics and does not change the theory of the cause of actions. We must, therefore, conclude that the variance is immaterial and will not invalidate the judgment.

Ill

Three statutory criteria for the admission of business records are set forth in General Statutes § 52-180. They are (1) that the record was made in the regular course of business; (2) that it was the regular course of the business to make the writing; and (3) that the writing was made at the time of the transaction or occurrence or within a reasonable time thereafter. General Statutes § 52-180; Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 383-84, 461 A.2d 422 (1983). Once these criteria have been met by the party seeking to introduce the record, however, it does not necessarily follow that the record itself is generally admissible, nor does it mean that everything in it is required to be admitted into evidence. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., supra, 384; Hutchinson v. Plante, 175 Conn. 1, 4, 392 A.2d 488 (1978); Mucci v. LeMonte, 157 Conn. 566, 569, 254 A.2d 879 (1969); Maggi v. Mendillo, 147 Conn. 663, 667, 165 A.2d 603 (1960). Additionally, the information contained in the record must be relevant to the issues being tried; see Maggi v. Mendillo, supra; and the information contained in the report must be based on the entrant’s own observation or on information of others whose business duty it was to transmit it to the entrant. Mucci v. LeMonte, supra.

The plaintiff’s personnel records were introduced through the president of the company where she was employed. The defendants claim that the trial court erred in admitting these records into evidence as full exhibits over their objections. The specific grounds were that the “business entry qualifications haven’t been met with.” On appeal the defendants’ objections to their admissibility are twofold: (1) as to all three exhibits, they claim that there was no evidence that these were made by or entered as a result of the witnesses’ own personal knowledge or on the personal knowledge of the entrant or upon information of others with personal knowledge of the same, who are or were under a business duty to transmit such information to the entrants; and (2) as to two of the exhibits, the defendants claim there was no evidence or testimony presented that the information was recorded at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.

The trial court is given the discretion under the statute to determine whether the criteria of the statute have been satisfied. In reviewing the decision of the trial court, we must construe the/Statute liberally. Shuchman v. State Employees Retirement Commission, 1 Conn. App. 454, 458-59, 472 A.2d 1290 (1984). The problem with the defendants’ first claim, that the job evaluation reports were not based on the personal observation of the witness, is that they failed to raise this specific objection in the trial court. We will not review a claim, except in exceptional circumstances where the claim raised on appeal is different from the objection raised in the trial court. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., supra, 388. There are no exceptional circumstances here. The defendants’ second objection, however, goes to the statutory criteria of § 52-180 and is similar enough to the objection raised at the trial level to merit our review of it. See Shuchman v. State Employees Retirement Commission, supra, 457-58 n.6. The evidence presented was that the exhibits were prepared contemporaneously with the events recorded therein. On the basis of such evidence, we must reject the defendants claim.

IV

The defendants’ next claim of error concerns certain conversations the plaintiff had with her attorney during a recess while she was still testifying. During cross-examination, the plaintiff had testified to the location of her heel when her left foot became caught on the mat and that when her right heel let go, it had been against the back of the stair riser. After a recess, upon redirect examination, the plaintiff’s counsel asked her “[d]o you recall exactly what the position of the toe of your foot was when it came onto that step?” The plaintiff replied, “my feet land on the stairs when I walk down the stairs.” Her counsel asked a further question, “[c]an you tell us precisely where, exactly where, your heel was in reference to the back part of the step which is called the riser?” To which she responded, “[n]o.” On recross-examination the defendants’ counsel noted first that her testimony before the recess as to the location of her heel differed from her testimony after the recess. The defendants’ counsel proceeded to inquire whether she had spoken to anyone during the recess. Upon learning that the plaintiff had spoken with her attorney, he asked, “[w]ell what did you talk about?” She replied, “I recall he was talking about the stairs and the mat.” The defendants’ counsel continued, “[w]as he telling you to correct or change your answer?” she replied, “[n]o.” The plaintiff’s counsel objected to this line of questioning and the court ruled that the subject matter of the conversation between the plaintiff and her attorney was a privileged communication.

“The common law rule of privileged communications has been stated as follows: ‘Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.’ 8 Wigmore, Evidence § 2292, p. 554 (McNaughton Rev. 1961).” Rienzo v. Santangelo, 160 Conn. 391, 395, 279 A.2d 565 (1971). One of the essential elements of the claim of privilege between attorney and client is that the communication be confidential. Rienzo v. Santangelo, supra; State v. Hanna, 150 Conn. 457, 466, 191 A.2d 124 (1963). The purpose and effect of the line of questioning by the defendants’ counsel during the recross-examination was to have a direct communication between the plaintiff and her counsel revealed. The resort to these questions went beyond the scope of proper recross and was an invasion of the attorney client privilege. The trial court properly prevented the defendants' counsel from pursuing this line of questioning.

V

The right of a presiding judge to excuse a prospective juror is controlled by General Statutes § 51-240 (b) which states: “If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel ... as the judge determines.” The trial court is vested with wide discretion in conducting an examination of prospective jurors. Childs v. Blesso, 158 Conn. 389, 394, 260 A.2d 582 (1969); see also State v. Roberson, 173 Conn. 102, 103-104, 376 A.2d 1087 (1977). There is no reversible error in its exercise of that discretion unless it has been clearly abused or one of the parties has been prejudiced by it. Id.

The two jurors who were called and subsequently excused by the judge were both civil engineers who stated that it would be difficult for them to separate their own extrinsic knowledge from those issues which pertained to their particular area of expertise. Under these circumstances, the trial court did not abuse its discretion in excusing them.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The plaintiffs status as a business invitee was alleged in the complaint and admitted by the defendants in their amended answer.

       The plaintiff testified that there was no change in the condition of the stairs or the rubber mat between the time she examined the mat on the day of the fall and the day that the expert witness examined it, February 10, 1972.

       The named defendant testified that he went up the stairs approximately once every two weeks.

       As pertains to the first juror the following questioning took place: “Q: Yes. We are going to have in this case the testimony of civil engineers. And as may often times be the case, there may be differences of opinion, differences of conclusion by these civil engineers. And you may, in fact, have your own opinion of a particular set of circumstances having viewed the evidence. Do you feel that your own judgment as a civil engineer would enter into your judgment of the engineering questions that would have to be decided in this case?
      “A: Yes.
      “Q: And, also, posing a hypothetical, if you did run into a situation where all of the engineering testimony agreed on a particular conclusion or a particular fact, and you as an engineer on the basis of your engineering ability and knowledge disagreed with those things that the other engineers seem to be in agreement with, would you have difficulty with that particular situation?
      * * *
      “Q: You would have difficulty?

        “A: I would have difficulty, yes.
      “Q: And be serious difficulty as far as your own conscience is concerned?
      “A: I don’t know if it would be a serious problem; but I have my own opinions on engineer approach and on facts, and I would—if I was in disagreement with them, I would find it difficult to—to judge the case solely on—on their evidence.
      “Q: You feel under those circumstances that you would be more comfortable not sitting on this particular case?
      “A: Yes.
      * * *
      “The Court: . . . [I]t is very clear to me that this gentleman has—has indicated—has indicated an intention that if—even if the engineering opinions are contrary to his notion of what the engineering situation is that he would substitute his own judgment. And in that regard he is as biased and as prejudiced as if he had some objection to the color of one of the party’s eyes. As far as I see it, he has completely lost his—his objectivity, and indicated a prejudice that as a matter of law requires that he be excused from the Jury. So, I grant the motion to excuse him for cause.”
      As to the second juror the following questions took place: “Q: Okay. Now, in the case that we are about to try, which is a claim of a fall down a stairs, there will be engineers testifying. And my question is this. That we may encounter a situation where the engineers are at issue or differ as to either factual or theoretical opinions concerning a particular point of the case. Do you feel that with your background as an engineer that that would have an influence upon your judgment in trying to evaluate the testimony of the engineers?
      “A: If there were disagreement between the two engineers?
      “Q: Yes, sir. Yes.
      “A: Yes, I would.
      “Q: All right. And if, in fact, you encountered a situation wherein both the engineers did agree, but you in your background and experience as an engineer felt that they were both inaccurate, then would that affect your judgment?
      * # *
      “A: Yes, it would.
      “Q: Okay. I don’t think I have any further questions.
      “The Court: How would it affect your judgment?
      “[The Juror]: Well, if—if, in fact, I disagreed with their engineering conclusion, I would—I would think that they weren’t proficient in whatever they were doing. Making their judgment. In other words, if it was just a basic engineering concept that was very simple or they misinterpreted or whatever, then I would disagree with their finding.
      “The Court: And you would act on your disagreement rather than on what they said?

        “[The Juror]: Yes, I would.
      “The Court: Is that what you’re saying?
      “[The Juror]: Yes.
      * ** *
      “The Court: ... I think this Juror should be excused for cause. So ruled.”

       The defendants’ have made no claim of having been prejudiced by the trial court’s exercise of its discretion.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Eagle Hill Corporation v. Commission on Hospitals and Health Care
    (2422)
    Dannehy, C.P.J., Testo and Borden, Js.

      Argued March 6
    decision released May 29, 1984

      Thomas J. Ring, assistant attorney general, with whom were Paul J. Lahey, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, Richard J. Lynch, Jane S. Scholl and Bernard F. McGovern, assistant attorneys general, for the appellant (defendant).

      Robert B. Titus, with whom, on the brief, were J. Charles Mokriski and Linda M. Wilder-Curtis, for the appellee (plaintiff).
   Borden, J.

The defendant commission on hospitals and health care appeals from the judgment of the trial court modifying a decision of the commission which denied a major part of a capital expenditure increase sought by the plaintiff, Eagle Hill Corporation (Eagle Hill). Eagle Hill operates an alcoholism treatment facility in Newtown.

The commission, after a hearing, found the following facts. On September 11,1976, the commission approved Eagle Hill’s request to construct the facility, providing a mix of fifty-six acute, intensive and intermediate care beds, at a cost not to exceed $2,700,441. In the fall of 1978, Eagle Hill applied for and on January 9, 1979, the commission approved a capital expenditure increase of $1,594,559, bringing the total approved cost to $4,295,000. This increase was made necessary by the inflationary effect of delays and by building standards, applicable to Eagle Hill, developed by the federal department of housing and urban development, which was financing the construction of the facility. At that time Eagle Hill projected a per diem patient rate of $114.

On February 6,1980, Eagle Hill applied to the commission for approval of initial rates of $127 per day. On February 15, 1980, the staff of the commission responded that the requested rate was based on a rental expense which was inconsistent with rental information previously filed. On February 19,1980, Eagle Hill explained that the new rental expense was based on a capital cost at least $351,000 higher than the $4,295,000 approved, due to certain cost overruns during construction.

In February, 1980, Eagle Hill had indicated that it would begin to operate on April 1, 1980, but had not yet obtained the required local zoning and building approvals. On March 25,1980, the commission, finding that Eagle Hill had not timely submitted its rate application, denied the proposed initial rate and ordered a hearing to address both the cost overruns and the per diem rate. On April 8, 1980, Eagle Hill informed the commission that the cost overruns, previously indicated at $351,000, were in fact $555,000, plus an additional $96,500 for relocation of offices required by local zoning authorities for which it planned to request approval.

A first hearing was held on April 15,1980, on Eagle Hill’s application for initial rates and approval of cost overruns. This application requested rates of $130 per day, and at the hearing Eagle Hill increased its cost overrun estimate to $705,358, which included $101,720 for increased financing costs and $96,500 for offices. After the hearing Eagle Hill withdrew this application.

On April 23,1980, Eagle Hill submitted a new application, which generated the hearing leading to the commission’s decision in this case. Eagle Hill requested approval of a total increased capital expenditure of $705,036, which included a more precise estimate of the office relocation cost. On April 30,1980, Eagle Hill requested a per diem rate of $133.50. Eagle Hill broke down the cost overrun figure into three general categories: increased construction costs, consisting of six subcategories, totaling $557,340; additional recreation area work costs totaling $45,976; and additional financing costs of $101,720.

The increased construction costs consisted of the following. (1) $152,131 for excavation and removal of ledge and bedrock which was not disclosed by a preconstruction soil survey; (2) $113,015 for changes in four buildings resulting from price increases, improvements for operating efficiency, changes required by safety codes, environmental improvements, and changes required by local authorities because of square footage increases made by Eagle Hill; (3) $34,006 for lighting and other electrical changes required because of the inadequacy of the original lighting plan; (4) $93,690 for wells and changes in specifications for the pumping house required because of inadequacies in the original design; (5) $68,320 for site work changes required because of errors in the original site plan; and (6) $96,178 for relocation of the corporate offices required because, after securing local approval, Eagle Hill made internal square footage changes of which the local authorities did not approve. The increased cost for additional recreation areas was required because of errors in the original plan. The additional financing cost, which would be incurred when additional funds were borrowed, resulted from increased debt to finance the other increases.

The construction change orders involved here began to accumulate in July, 1979, and had been approved by Eagle Hill’s architect, contractor and other personnel without any tallying of their sum. Between January, 1979, when the commission approved Eagle Hill’s first increase, and February 19,1980, when Eagle Hill first explained its increased rental expense, Eagle Hill did not notify the commission of any cost overruns. This was because Eagle Hill was unaware of the amount of those overruns. The cost of completing the remaining construction work as of May 15, 1980, was $63,920. Excluding the $101,720 in additional financing costs which had not yet been incurred, this left a total of $539,396 spent or committed by Eagle Hill without the commission’s approval, which was equivalent to an additional per diem patient expense of $4.25. Eagle Hill has made no attempt to recover any costs flowing from original plan inadequacies for which architects and engineers were responsible. The construction project was inefficiently managed and monitored. There is no evidence that Eagle Hill attempted to identify nonessential items or areas for reduction or elimination so as to compensate for cost increases and thus to maintain the overall cost within the previously approved amount.

The commission concluded as follows. Eagle Hill failed to submit its request for approval of the $705,036 capital expenditure ninety days prior to its initiation date as required by then General Statutes (Rev. to 1979) § 19-73m. Because of this failure coupled with Eagle Hill’s failure to attempt to control costs, the commission determined that that portion of the request which was spent prior to or during the filing of the application, which was $539,396, should be denied. In addition, the commission attached four conditions to its approval.

Eagle Hill appealed, on several grounds, to the Superior Court under then General Statutes (Rev. to 1979) § 19-73p (now General Statutes § 19a-158) and General Statutes § 4-183, which is part of the Uniform Administrative Procedure Act (UAPA). The court held that the commission had misconstrued § 19-73m; that its decision constituted a per se rule in violation of the UAPA; that the disapproved funds be approved and restored to Eagle Hill’s capital budget; and that the four conditions imposed by the commission be deleted as invalid. This appeal by the commission followed.

I

General Statutes (Rev. to 1979) § 19-73m, applicable to this case, provided in pertinent part as follows: “Any health care facility . . . proposing a capital expenditure of one hundred thousand dollars or more . . . which expenditure was not included in a budget approved under section 19-73o, shall submit a request for approval of such expenditure to the commission . . . ninety days in advance of the proposed initiation date of such project.” The court held, as Eagle Hill urges us to hold, that the “initiation date of such project,” as applied to these facts, refers to the initial approval by the commission, in 1976, of Eagle Hill’s request to construct the facility at a cost not to exceed $2,700,441, and does not apply to cost overruns occurring in 1979 and 1980. We agree with the commission that the phrase, “the proposed initiation date of such project,” refers instead to the proposed date of any capital expenditure of $100,000 or more not previously approved by the commission.

“Project” means, generally, a specific plan or design; a planned undertaking. Webster, Third New International Dictionary. The use of the word “such” in grammatical usage refers to the last antecedent. LaProvidenza v. State EmployeesRetirement Commission, 178 Conn. 23, 27, 420 A.2d 905 (1979). Textually, then, “the proposed initiation date of such project” refers back to the planned capital expenditure. This reading is buttressed by reference to the legislative history of the statute, which makes clear that it was the purpose of the legislature to lodge in the commission power over major capital expenditures in order to control spiraling health care costs. See 16 H.R. Proc., Pt. 5, 1973 Sess., pp. 2100, 2134-35.

A statute is to be construed so that all its parts have meaning; State v. Turello, 183 Conn. 330, 336, 439 A.2d 364 (1981); so that it makes common sense; State v. Privitera, 1 Conn. App. 709, 721, 476 A.2d 605 (1984); and so that it does not lead to bizarre results. Connecticut Natural Gas Corporation v. DPUC, 1 Conn. App. 1, 4, 467 A.2d 679 (1983). The statutory construction urged by Eagle Hill would leave the word “such” without a textual antecedent. It would also mean that once a health care construction project was approved, later major changes, even those, for example, involving new and different buildings, would be beyond the commission’s scrutiny. Indeed, under this reading, Eagle Hill’s application in 1978 for approval of a more than $1.5 million increase would have been unnecessary. We do not think that the legislature intended such an uncommon-sensible and bizarre result.

The commission argues that its decision did not amount to the promulgation of a regulation in violation of the UAPA. We agree. Whether administrative action is a regulation does not depend on the label the agency attaches to it or on the procedure giving rise to it. Walker v. Commissioner, 187 Conn. 458, 462, 446 A.2d 822 (1982). “The test is, rather, whether ‘a rule has a substantial impact on the rights and obligations of parties who may appear before the agency in the future.’ ” Id., quoting Maloney v. Pac, 183 Conn. 313, 326, 439 A.2d 349 (1981).

This does not mean, however, that every administrative decision which may have precedential significance beyond the facts and party before it becomes ipso facto a regulation. Like courts, “administrative agencies must necessarily interpret statutes which are made for their guidance. To rule otherwise would be to ignore the subtle and intricate interaction of law and fact. It is inherent in our judicial system of dispute resolution that the interpretation of statutes, like the development of the common law, grows out of the filtering of a set of facts through the law, as seen by the administrator or judge.” Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 356-57, 377 A.2d 1099 (1977). In deciding whether administrative action amounted to a regulation, a reviewing court must look to what the agency in fact did in a particular case and how it did it. Salmon Brook Convalescent Home v. Commission on Hospitals & Health Care, 177 Conn. 356, 362, 417 A.2d 358 (1979).

A careful reading of the commission’s decision discloses that it did not rule that in every case of a capital expenditure of $100,000 or more made without the statutory advance notice, the expenditure must be disallowed. It did not base its decision solely on the lack of prior notice to it; nor did it follow a previously adopted rule or policy of general applicability. Cf. Walker v. Commissioner, supra; Salmon Brook Convalescent Home v. Commission on Hospital & Health Care, supra. Rather, it denied the major portion of the request because, in its language, the request “was submitted in a manner which precluded the Commission from making an appropriate review and because the evidence reflected that, in spite of prior difficulties with the cost of this project, the applicant made little attempt to control project cost . . . .” The commission specifically supported its reference to Eagle Hill’s absence of cost control with three salient facts: the lack of Eagle Hill’s attempt to recover damages from parties responsible for a series of inadequate initial plans; Eagle Hill’s inefficient management and monitoring of the project, evidenced by the fact that there had already been one, approved major cost overrun followed by a sorry series of further cost increases which Eagle Hill could not even calculate correctly without repeated prodding by the commission; and the lack of evidence that Eagle Hill attempted to identify any items for reduction or elimination in order to compensate for those cost increases. Thus, the commission focused both on the language of the statute and on its major purpose, to control costs. The commission was doing its duty. It was interpreting the statute, which was enacted for its guidance and which it was charged with administering, by “the filtering of a set of facts through the law . . . Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, supra, 357. It did not engage in regulation-making.

Eagle Hill argues in effect that the statute is silent on the issue of cost overruns during construction, that the commission should have promulgated regulations on that issue, and that its failure to do so compels the conclusion that its decision here amounted to such a regulation. We disagree. Although the commission could have promulgated and could now promulgate such regulations, and although the statute may not specifically mention such expenses, that did not deprive the commission of its administrative function of applying the general language of the statute to the facts of this case. “[A] statute cannot be read in a vacuum but must be illuminated by the force of concrete, everyday pressures.” Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, supra.

Eagle Hill also argues that a common sense construction of the statute supports its position, because in the course of any construction project it is frequently necessary to make change orders which cannot be feasibly handled by separate applications and hearings under General Statutes (Rev. to 1979) § 19-73m. We do not think that the statutory scheme required Eagle Hill to make the Hobson’s choice between such a procedure and the course of inaction it followed here. It had a spectrum of choices open to it. It could have, for example, simply communicated with the commission and kept it informed of the difficulties, thus opening an avenue of informal, mutual consultation. We see nothing in the statute or in administrative law or practice which would bar such a process. See, e.g., Lahey Clinic Foundation, Inc. v. Health Facilities Appeals Board, 376 Mass. 359, 380 N.E.2d 675 (1978). More formally, it could have, for example, petitioned for a declaratory ruling from the commission, which petition requires a “prompt disposition”; General Statutes § 4-176; or it could have requested, as provided for in § 19-73m, a reduction in the ninety day period to ten days and a waiver of the requirement of a public hearing.

The case of Lakey Clinic Foundation, Inc. v. Health Facilities Appeals Board, supra, on which Eagle Hill relies, is inapposite. In ruling that “nothing in the statute [requiring approval of a capital expenditure exceeding $100,000] applied that figure to a change in an approved project,” the Massachusetts court stated: “Where, as here, the increased cost of a multimillion dollar project results mainly from inflation, refinement of estimates, and financing costs, such application would be entirely inappropriate.” Id., 374. This record is simply not comparable. The Massachusetts statutory scheme applicable to that project provided for initial cost estimates, not, as here, actual costs. Furthermore, the cost increases denied in this case did not result mainly from inflation or refinement of estimates, but mainly from changes made by Eagle Hill; and the portion of Eagle Hill’s cost increase resulting from increased financing costs was approved.

Our conclusion that there was error does not, however, dispose of the case. Eagle Hill’s appeal to the trial court asserted three grounds of commission illegality: that the commission summarily refused to consider the reasonableness and necessity of Eagle Hill’s expenditures; that the commission made several critical legal errors and factual findings which are not supported by the evidence; and that the commission failed to give advance notice of the standards it would apply to the application, in violation of the UAPA and of both the federal and state due process clauses. We read the trial court’s decision as being based on a combination of the first and third grounds. The trial court did not reach the second ground. We, therefore, remand the case for litigation of that issue. Thus, it is unnecessary for us to reach the commission’s other claim in this court, namely that the trial court erred in restoring the funds rather than simply sustaining the appeal and remanding the case to the commission for administrative action. See Feinson v. Conservation Commission, 180 Conn. 421, 429-30, 429 A.2d 910 (1980); Arterburn Convalescent Home v. Commission on State Payments to Hospitals, 176 Conn. 82, 86, 405 A.2d 48 (1978).

II

The commission also claims that the court erred in deleting the four conditions imposed by the commission. We regard the first two of those conditions as valid and the second two as invalid.

The first condition requires Eagle Hill to submit to the commission its annual operating and capital budgets upon the earlier of an attainment of a ninety percent occupancy level or the end of its first year of operation. The second requires Eagle Hill to submit to the commission, for review, its annual operating and capital budgets for the first six years of operation to ascertain the effect of changes in bed mix and of the unapproved cost overruns. The commission based both of these conditions on General Statutes (Rev. to 1979) § 19-73o (now General Statutes § 19a-156) then in effect, which requires, inter alia, any health care facility, upon 180 days notice by the commission, to “submit annually to the commission its proposed operating and capital expenditures budget for its next fiscal year at least ninety days prior to the proposed adoption date of such budget.” Here, the commission has given Eagle Hill more than the required 180 days notice. Since the commission could have annually requested such a submission by Eagle Hill, under the facts of this case the commission was within its administrative power to require such submissions in advance. The trial court was in error in deleting these two conditions.

The third and fourth conditions require Eagle Hill to report, within one business day, any additional changes in estimated capital cost beyond the $705,036, and prohibit Eagle Hill from making any additional changes in the facility’s scope, cost or services without the commission’s prior approval. We find no statutory or administrative justification for these conditions, which appear to stretch administrative oversight into punishment. There was no error in the deletion of these two conditions.

There is error in part, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c). The Supreme Court had granted the defendant’s petition for certification. See General Statutes (Rev. to 1981) § 51-197b, now repealed.

       Eagle Hill operates the facility on land and buildings owned by a limited partnership, an arrangement approved by the commission.

       General Statutes (Rev. to 1979) § 19-73m, which has now been replaced by General Statutes § 19a-155, then read as follows: “requests for APPROVAL OF CAPITAL EXPENDITURES OF ONE HUNDRED THOUSAND DOLLARS OR MORE, (a) Any health care facility or institution and any state health care facility or institution proposing a capital expenditure of one hundred thousand dollars or more, including the leasing of equipment or a facility, which expenditure was not included in a budget approved under section 19-73o, shall submit a request for approval of such expenditure to the commission, with such data, information and plans as the commission requires, ninety days in advance of the proposed initiation date of such project. The commission shall thereupon hold a public hearing with respect to such request, at least two weeks’ notice of which shall be given to the facility or institution by certified mail and to the public by publication in a newspaper having a circulation in the area served by the facility or institution. Such hearing shall be held at the discretion of the commission in Hartford or in the area so served. The commission shall consider such request in relation to the community or regional need for such capital program, the possible effect on the operating costs of the health care facility or institution, the recommendations of the Health Systems Agency regarding such proposal, and such other relevant factors as the commission deems necessary. Except as permitted in subsection (b), within ninety days after receiving such request, and such data as it may require, the commission shall either approve, modify or deny such request, or make a finding of recommendations based upon the said request. Upon a showing by such facility or institution that the need for such capital program is of an emergency nature, the commission may waive the requirement that the request be submitted ninety days in advance of the proposed initiation date of the project and that a public hearing be held thereon, provided such request shall be submitted at least ten days before such date, (b) The commission shall grant or deny such request within ninety days or ten days, as the case may be, of receipt thereof, except that such ninety day period may be extended for an additional thirty days by mutual agreement of thé facility or institution and the commission. Failure of the commission to act thereon within such period shall be deemed approval of such request.”

       The unexpended $63,920 to complete construction and the $101,720 for additional financing, for a total of $165,640, was approved. That portion of the requested per diem rate attributable to $539,396, or $4.25, was disapproved. Thus, a daily rate of $129.25 was approved.

       Indeed, here it approved a total of $165,640 of Eagle Hill’s request, which amount was, although not yet spent, clearly committed and which was directly linked to the disapproved portion. See footnote 4, supra.

       We reject Eagle Hill’s argument that the commission had no authority under General Statutes (Rev. to 1979) § 19-73m to impose any conditions on its approval. We regard the imposition of reasonable conditions, rooted in the commission’s regulatory authority, as within the language of § 19-73m authorizing it to “approve, modify or deny such request, or make a finding of recommendations based upon the said request.” See also General Statutes § 19a-155, the statutory progeny of § 19-73m, which explicitly recognizes the power of the commission to impose conditions.

       During the hearings it was disclosed that Eagle Hill had not yet secured local zoning approval of the particular bed mix of services to be rendered which the commission had approved. That mix is not an issue in this appeal.


text:
    Southbridge Savings Bank v. Koinonia School of Sports, Inc., et al.
    (2236)
    Testo, Hull and Borden, Js.

      Argued April 4
    decision released June 5, 1984

      Charles P. Ferland, for the appellant (named defendant).

      Edwin C. Higgins III, with whom, on the brief, was Nicholas A. Longo, for the appellee (plaintiff).
   Borden, J.

In this foreclosure action the named defendant, Koinonia School of Sports, Inc. (Koinonia), appeals to this court from the judgment of the Superior Court, Dannehy, J., ordering a foreclosure by sale. Koinonia had granted a first mortgage to the plaintiff, a Massachusetts bank, on real property owned by Koinonia and located in Thompson, Connecticut. Koinonia filed a special defense to the plaintiff’s complaint to the effect that the plaintiff’s mortgage was in violation of General Statutes § 36-5a and thus is unenforceable by virtue of General Statutes § 33-412 (a). By agreement of the parties, the validity of the special defense was referred to Hon. Alva P. Loiselle, state referee, first, who rendered a limited judgment for the plaintiff on the issues raised by the special defense. Thereafter the court rendered a judgment ordering a foreclosure by sale.

Koinonia’s appeal attacks the conclusion of the court, on the trial concerning the special defense, that the plaintiff in making this mortgage loan was not transacting business in this state within the meaning of General Statutes § 36-5a (a). We find no error.

In a complete and comprehensive memorandum of decision, the court found the following facts. The plaintiff is a bank located in Southbridge, Massachusetts, and is authorized by its charter to do banking business in Massachusetts and within fifty miles of Southbridge in any contiguous state. Its charter is not binding on the laws of Connecticut. It has no certificate of authority to do business in Connecticut. In early May, 1973, four Massachusetts residents, Philip Brown, Geraldine Brown, Ronald Brown and Donald Brown, went with a real estate agent to the bank in Southbridge to arrange a loan to finance the purchase of the property in Thompson, Connecticut, which is involved in this case. At the bank's office in Southbridge they told the bank that a corporation would be formed to be the mortgagor; and they filed a loan application which the bank approved later in May. The bank had no contact with them in Connecticut during their negotiations for approval of the loan. The bank sent appraisers to Connecticut to examine the property and sent a notice of loan to Nicholas A. Longo, an attorney in Putnam, Connecticut, authorizing him to search the title, prepare the necessary documents and represent it at the time of the signing of the documents.

On June 1, 1973, the Browns and the sellers of the property met at Longo’s office in Putnam where Ronald Brown, as president of Koinonia, signed a note in the amount of $185,000 and a mortgage deed in favor of the bank, and all four Browns individually guaranteed the debt. Ronald Brown, as president of Koinonia, also signed a pay order directed to the bank requesting it to pay $185,000 to the order of Longo and to charge that amount to Koinonia’s mortgage loan on the Thompson property. Koinonia also granted a second mortgage to the sellers of the property at that time. Koinonia made out separate checks for escrow funds and attorney’s fees. The bank did not transfer any money at that time.

Longo took all the documents, including the seller’s deed and a release of an existing mortgage on the property which had been given in escrow to the seller’s attorney, to the bank in Southbridge, where the bank’s officials checked them. The bank made out a check to Longo for $185,000 pursuant to the pay order. Longo endorsed it back to the bank, which then made out two other separate checks, totalling $185,000, to the sellers and to pay off the existing mortgage. Longo went to the Thompson town clerk’s office, checked the land records, recorded the documents, returned to his office and delivered the two checks to the sellers’ attorney.

From and including 1973 through 1981 the bank had made 2046 mortgage loans, of which sixty-five were secured by property located in Connecticut. Eighteen of the sixty-five were in 1973. The circumstances surrounding these sixty-five loans were not established. The bank did not advertise through Connecticut news media or solicit business through Connecticut real estate agents or other agents. It had no office or agent in Connecticut. It did advertise in Southbridge news media which circulated in northern Connecticut. It has many Connecticut residents as depositors, especially from Thompson and Woodstock which are just over the state line.

As the trial court recognized, under General Statutes § 36-5a (a), “the question of whether a foreign corporation is transacting business so as to require a certificate of authority must be determined on the complete factual picture presented in each case, and . . . the corporation’s activities must be more substantial than those which would suffice to subject it to service of process.” Sawyer Savings Bank v. American Trading Co., 176 Conn. 185, 190, 405 A.2d 635 (1978); Peters Production, Inc. v. Dawson, 182 Conn. 526, 529, 438 A.2d 747 (1980). Some of the relevant considerations are the situs of the contract between the parties, the presence of corporate officers and agents, and the extent of business activities in Connecticut. Sawyer Savings Bank v. American Trading Co., supra.

We agree with the trial court that this mortgage loan did not constitute the transaction of business in Connecticut within the meaning of General Statutes § 36-5a (a) and that, therefore, the plaintiff’s foreclosure action is not barred by General Statutes § 33-412 (a). The situs of the contract between the bank and Koinonia for the mortgage loan was Massachusetts. The application was made there by Massachusetts residents, and was approved there. Although the documents were signed in Connecticut, they were examined and given final postsigning approval in Massachusetts; and the loan funds were issued there pursuant to the pay order. At that point, “the final act which had to be done in order to make the agreement between the parties effective, namely, the payment of the monies loaned,” was completed in Southbridge and established Massachusetts as the situs of the contract. Id., 191. The subsequent recording of the mortgage deed in Connecticut was not the final act of the party’s agreement; it was merely the final act taken by the bank for the protection of the security it had taken from Koinonia for the loan made pursuant to that agreement. The trial court found that, had an intervening encumbrance been recorded when Longo went to the town clerk’s office, he would have returned to Southbridge with the checks; but that that indicated only an intent on his part to advise the bank to rescind the already completed agreement, and did not extend the agreement to Thompson. This finding, which is interpretive of the agreement between the parties, is not clearly erroneous and thus will not be disturbed on appeal. See Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981).

Furthermore, the situs of the contract is only one of the relevant considerations under General Statutes § 36-5a (a). Sawyer Savings Bank v. American Trading Co., supra, 190. It is not necessary to repeat the other factual circumstances which tie this transaction to Massachusetts rather than to Connecticut. Suffice it to say that those elements of the transaction which are tied to Connecticut are insufficient in our view to render it a transaction of business here. The recording of the documents here was, in and of itself, not sufficient. Id., 191. The use of a Connecticut attorney, the signing of the documents, the delivery of the two checks which the bank issued after negotiation in Massachusetts of the check representing the mortgage loan proceeds, and the fact that over a nine year period the bank had made sixty-five mortgage loans on Connecticut property are similarly insufficient. The Supreme Court has held substantially equivalent activity in this state to fall short of transacting business in Connecticut for purposes of the statutory predecessor of General Statutes § 38-412 (a). Cf. Alfred M. Best Co. v. Goldstein, 124 Conn. 597, 603, 1 A.2d 140 (1938).

There is no error.

In this opinion the other judges concurred.

       The other defendants are subsequent mortgagors and lienors whose interests are not involved in this appeal.

       General Statutes § 36-5a (a) provides in pertinent part as follows: “No banking corporation which is organized under the laws of or has its principal office in any other state shall transact in this state the business authorized by its certificate of incorporation or by the laws of the state under which it was organized . . . .”

       General Statutes § 33-412 (a) provides in pertinent part as follows: “No foreign corporation transacting business in this state in violation of section 33-396 shall be permitted to maintain any action, suit or proceeding in any court of this state unless such corporation has obtained a certificate of authority [from the secretary of the state].” General Statutes § 33-396, applicable to foreign corporations generally, with certain exceptions not relevant here, mirrors the specific prohibition for foreign banks contained in General Statutes § 36-5a (a).


author: Per Curiam.

text:
    Zbigniew S. Rozbicki v. Richard Pelletier
    (2395)
    Testo, Dupont and Borden, Js.
    Argued April 3
    decision released June 5, 1984

      William A. Conti, for the appellant-appellee (plaintiff).

      Lester Katz, with whom, on the brief, was Steven L. Seligman, for the appellee-appellant (defendant).
   Per Curiam.

This is a negligence action seeking damages for personal injuries. The plaintiff was injured when his car hit the rear of the defendant’s car. The plaintiff alleges that the defendant was negligent in stopping his car on the highway when it had no lights and no operating turn signal. A jury returned a verdict for the defendant. The plaintiff did not move to set aside the verdict. The plaintiff, on appeal, claims error in the failure of the trial court to give two charges to the jury as requested by him. The defendant has cross appealed from the denial of his motion for a summary judgment, from the denial of his motion for a directed verdict, and from the failure of the trial court to submit one of his special defenses to the jury.

The plaintiff failed to file a motion to set aside the verdict. That failure does not disturb his right to appeal but limits appellate review to the ascertainment of whether there has been “plain error.” Practice Book § 3063; Pietrorazio v. Santopietro, 185 Conn. 510, 513-16, 441 A.2d 163 (1981). Nothing in the record, briefs or transcripts even approaches a clear error or an error involving a vital issue.

Coupled with the lack of a motion to set aside the verdict, is the failure of the plaintiff to comply with Practice Book § 3060F (c) (1). He claims error in the trial court’s failure to give the charges which he requested and, yet, has not included in the record or in his brief, a verbatim statement of the charges as requested and as given, nor has he narrated the evidence which he claims would entitle him to his requested charges. Based upon a review of the record, there appears to be no reason to disregard the practice book rule and, therefore, the claimed error is not reviewed. Cahill v. Board of Education, 187 Conn. 94, 98, 444 A.2d 907 (1982).

The claimed failure to charge on the effect of headlights on dark objects or on the ability of an operator of a car with proper lights to see an object at a distance of 200 feet, relates to the defendant’s allegations that the plaintiff himself was negligent. The verdict was a general one and it is assumed that the jury found every issue for the defendant. Colucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981); Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 197, 470 A.2d 705 (1984). The jury’s verdict might have been premised upon either the absence of any negligence of the defendant or the presence of negligence of the plaintiff in excess of fifty percent. If the verdict was based upon the former, the jury would not reach the factual issues raised in the requested charges.

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       In view of the decision of this court, the issues of the cross appeal are moot and are not considered.


author: Hull, J.

text:
    Joseph R. Ruggiero v. Town of East Hartford et al.
    (2371)
    Testo, Hull and Borden, Js.
    Argued April 4
    decision released June 5, 1984

      William A. Leone, for the appellant-appellee (plaintiff).

      George F. Murray, for the appellee-appellant (defendant Charles Burke).

      David A. Zipfel, for the appellee on the appeal and on the cross appeal (named defendant).
   Hull, J.

The plaintiff instituted this action to quiet title to certain real estate allegedly acquired by him through adverse possession as against the defendants, the town of East Hartford and Charles Burke, an adjoining property owner. The defendant Burke filed a counterclaim also asserting an interest in the subject property. The court found that the plaintiff failed to sustain his burden of proof as to his claim of title by adverse possession. The court found that the town of East Hartford had a public easement over the property in question and rendered judgment for the town, but held that upon abandonment by the town of that right, the land will revert one half to the plaintiff and one half to the defendant Burke as owners of the property abutting the property in question.

On appeal, the plaintiff claims (1) that the court erred in finding that there was a public easement; (2) that the court erred in finding that the plaintiff had failed to establish title to the property by adverse possession; and (3) that certain factual findings of the trial court were clearly erroneous. The defendant Burke claims on cross appeal that the court erred in finding that the property had been dedicated to and accepted by the town of East Hartford, and therefore, in finding that the town had a public easement.

The property in question is a 40 foot wide by 120 foot long unpaved, unimproved portion of a street known as Johnson Street in East Hartford. Johnson Street is an L-shaped street. It is only the base portion of the L-shaped street which is the subject of this action. (See map.)

On August 30, 1918, O. J. Signor filed a land map in the land records of East Hartford. The map delineated a division of lots and a street layout of a parcel of land located between Burnside Avenue and Tolland Street. The street layout included Johnson Street as running lengthwise parallel to Tolland Street with the base of the “L” intersecting Tolland Street. Title to Johnson Street was never deeded to the town of East Hartford. The base of Johnson Street, which is in issue here, has never been paved, cared for or improved by the town and the town never formally adopted or accepted that portion of Johnson Street as a public street. The subject property is abutted on the west side by land known as 97 Tolland Street (Lot A), presently owned by the plaintiff. The defendant Burke is the owner of the property at 99 Tolland Street (Lot B) which abuts the east side of the subject property.

The trial court conducted extensive fact finding, as evidenced in its memorandum of decision, concerning ownership and use of the base portion of Johnson Street and the abutting properties. The Ruggiero property (Lot A) is utilized primarily as a used car dealership and auto body shop. The Burke property (Lot B) is used for an office and a residence. In 1955, the plaintiff’s father, Joseph Ruggiero, Sr., purchased Lot A with his partners and they conducted a used car business thereon. During this time, the plaintiff’s father and his partners freely used a portion of the base of Johnson .Street as part of the used car lot. At that time, the then owner of Lot B used a portion of the subject property as an access route from the long portion of Johnson Street to Tolland Street. Eventually, the plaintiff’s father became the sole owner of Lot A. That property continued to be used as a used car lot and cars were continuously parked on a portion of the base of Johnson Street. At the same time, however, a portion of the base of Johnson Street was continually used as a driveway or access route by the adjoining land owners.

In 1960, Burke’s predecessor in title, Joseph Gadoury, and the plaintiff’s father attempted to get the town to abandon its rights concerning the base of Johnson Street. After this attempt failed, these two parties entered into an informal agreement regarding use of the street. The trial court found that it was their intention to split the property evenly, although in actuality, it may not have been evenly divided. The court further found that Gadoury used twenty-five percent of the property, but he also considered that each party had the use of one half of the property; that, in any event, each party occasionally used the other party’s one half portion of the property; and that neither claimed title to the property.

In 1972, the plaintiff’s father deeded the property to the plaintiff through a straw man. In 1974, another of Burke’s predecessors in ownership, Paul Rancourt, erected a fence on the property line between the Burke property and the base of Johnson Street. The trial court found that, from the time the fence was erected in 1974, “there is no doubt that Mr. Ruggiero was making a claim openly and adversely to the entire disputed parcel.” Burke purchased Lot B sometime after 1974.

I

The plaintiff claims that the court erred in rendering judgment in favor of the town of East Hartford on the basis of its finding a public easement.

Title to realty held by a municipality for a public use cannot be acquired by adverse possession. See Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 276, 429 A.2d 865 (1980); Goldman v. Quadrato, 142 Conn. 398, 402-403, 114 A.2d 687 (1955). We must first address the issue of whether there existed a public easement over the subject property. In order to establish the existence of a public easement, there must be a dedication of the land by the owner of it and an acceptance of the dedicated land by the town or by the general public. A & H Corporation v.Bridgeport, 180 Conn. 435, 439, 430 A.2d 25 (1980). A dedication is an appropriation of land to some public use made by the owner of the property. Whippoorwill Crest Co. v. Stratford, 145 Conn. 268, 271, 141 A.2d 241 (1958). The court, in this case, found that there was an implied dedication of Johnson Street to the town of East Hartford by virtue of the references to Johnson Street in the deeds of the subdivision created by the original grantor, O. J. Signor, and due to the fact that Signor filed with the clerk a map which included Johnson Street. The fact that a subdivision map was filed with the town does not in itself constitute an implied acceptance of the street by the town. Meshberg v. Bridgeport City Trust Co., supra, 280.

Whether there has been a dedication and whether there has been an acceptance are questions of fact. Meshberg v. Bridgeport City Trust Co., supra, 279; DiCioccio v. Wethersfield, 146 Conn. 474, 479, 152 A.2d 308 (1959). An acceptance may be express, pursuant to formal proceedings, or implied. Meder v. Milford, 190 Conn. 72, 75, 458 A.2d 1158 (1983); A & H Corporation v. Bridgeport, supra. A valid acceptance of a dedication can only be made by the town or the proper municipal authorities or by the general public. Meder v. Milford, supra, 74; Meshberg v. Bridgeport City Trust Co., supra. An implied acceptance by a town or municipal officials may be established where, for example, the town grades and paves the street, maintains and improves it, plows it, or installs drains, sewers, lighting, curbs, or sidewalks on it. Meshberg v. Bridgeport City Trust Co., supra, 283. There is no evidence in this case establishing that the town of East Hartford exercised control over the subject property in any way. The facts, therefore, do not support a finding of a valid acceptance by town authorities.

In order to find an acceptance by the general public through actual use, “[t]he use to which the public puts the subject property must continue over a significant period of time . . . and be of such a character as to justify a conclusion that the way is ‘of common convenience and necessity.’ ” Id., 282. The actual use, however, “need not necessarily be constant or by large numbers of the public . . . .’’Id.

The trial court found, as a matter of fact, that “many people would walk through [the base of] Johnson Street to get to Burnside Avenue and vice versa.” The court further found that, in addition to pedestrian traffic, there was use by motorcyclists and bicyclists and by persons who parked their cars on the disputed portion. These findings were based upon public use of the disputed parcel from at least 1959 to 1972. This is not an insignificant period of time. On the basis of these factual findings of use by the general public, we cannot say that the court’s conclusion that there was a public easement over the base of Johnson Street was clearly erroneous. See Practice Book § 3063; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

II

Because we conclude that the trial court’s conclusion that there was a public easement was not clearly erroneous, the plaintiff may not properly assert a claim to title to the subject property by adverse possession. See Meshberg v. Bridgeport City Trust Co., supra, 276; Goldman v. Quadrato, supra. In any event, this claim, in the absence of finding a public easement, would fail. The plaintiff claims on appeal that certain factual findings by the trial court, which led to its conclusion that the plaintiff failed to meet his burden of proof on the issue of adverse possession, were clearly erroneous. The trial court stated that “[i]n order to prevail [on the issue of adverse possession] it is incumbent upon the plaintiff to prove his contention by a fair preponderance of the evidence . . . .” The court found that the plaintiff did not meet this burden.

The standard of proof, however, for establishing title by adverse possession is “clear and positive proof.” Roche v. Fairfield, 186 Conn. 490, 498, 442 A.2d 911 (1982); Clark v. Drska, 1 Conn. App. 481, 484, 473 A.2d 325 (1984). This burden of proof places a higher burden upon the claimant than the preponderance of the evidence standard. See Clark v. Drska, supra, 486-87 (“clear and positive” standard equated to “clear and convincing” standard). Since the trial court found that the plaintiff failed to meet his burden with respect to the lower standard of proof by a preponderance of the evidence, it is clear that the plaintiff would not have been found to have met the higher standard of clear and positive proof.

Whether the elements of adverse possession have been established is a question of fact for the trial court. Id., 484. “Ouster and adverse possession are questions of fact and are not reviewable unless the subordinate facts are legally and logically inconsistent or are insufficient to support the conclusion that they exist.” Id., 484-85. In order to establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner. Whitney v. Turmel, 180 Conn. 147, 148, 429 A.2d 826 (1980); Ruick v. Twarkins, 171 Conn. 149, 155, 367 A.2d 1380 (1976); Arcari v. Dellaripa, 164 Conn. 532, 536, 325 A.2d 280 (1973); Clark v. Drska, supra, 485.

We conclude that the court’s finding that the plaintiff failed to meet his burden of proof was not clearly erroneous. While the court erred by applying the wrong standard of proof, the fact that the court applied a lesser standard renders such error harmless.

III

The trial court correctly held that the plaintiff and the defendant Burke each owned one half of the base of Johnson Street up to the center line subject to the town’s easement and that, upon abandonment of the public easement by the town, the use of one half of the property would revert to each as an abutting landowner. We have concluded that there was a valid acceptance of the dedication of that portion of the street, and it is clear that the town will abandon any rights it has concerning this section of land, in favor of Ruggiero and Burke.

The law in this state is clear that the taking of a highway creates no interest in fee, the presumption being that the landowners whose lands abut the highway continue to be owners of the fee of the land to the center of the highway. Ventres v. Farmington, 192 Conn. 663, 668-69 n.3, 473 A.2d 1216 (1984); Luf v. Southbury, 188 Conn. 336, 341, 449 A.2d 1001 (1982); Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 355-56, 114 A.2d 216 (1955); Peck v. Smith, 1 Conn. 103, 132, 6 Am. Dec. 216 (1814) (Swift, J.). “The soil of a highway descends to heirs and passes to grantees as an appurtenant to the land adjoining, and whenever the highway is discontinued, the adjoining proprietors hold the land discharged of the easement. ’ ’ Antenucci v. Hartford Roman Catholic Diocesan Corporation, supra, 356. The law established by the case of Peck v. Smith, supra, and its progeny, therefore, dictates the property rights of Burke and Ruggiero in this case and clearly supports the conclusion of the trial court.

IV

As concerns the defendant Burke’s claims on cross appeal, our analysis disposes of the issues raised by him concerning the court’s finding of a public easement and its finding of a valid dedication and acceptance. Burke, however, also asserts on appeal that, in the absence of a public easement, he owns title to the entire subject property by virtue of a reversion to the original grantor or his heirs and assigns. Burke, through his attorney, claimed at oral argument that he had a deed which includes title to the disputed parcel. Because this claim was not raised at the trial, we will not consider it on appeal. Practice Book § 3063; see Chaplin v. Balkus, 189 Conn. 445, 447, 456 A.2d 286 (1983).

There is no error.

In this opinion the other judges concurred.

       The town of East Hartford asserted at the trial, and reiterated before this court, its firm intention to abandon its easement in favor of Ruggiero and Burke. We, as did the trial court, accept this representation and decide this case accordingly.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., Jrme, 1983, No. 83-29, § 2 (c).


text:
    Essex Savings Bank v. Charles I. Leeker et al. Charles I. Leeker v. Essex Savings Bank et al.
    (2286)
    (2287)
    Testo, Hull and Borden, Js.
    Argued February 9
    decision released June 5, 1984

      James M. Ullman, for the appellants (Charles I. Leeker, named defendant in the first case, plaintiff in the second case, and Sandra Leeker, defendant in the first case).

      JohnR. McLain, for the appellee (plaintiff in the first case, named defendant in the second case).
   Per Curiam.

These are combined appeals from two cases that were tried together: the first case by Essex Savings Bank (Essex) against Charles and Sandra Leeker to foreclose a mortgage on certain property; and the second case by Charles Leeker against Essex for breach of its fidicuary duty by paying out mortgage proceeds to the supplier of a modular home placed on the property despite a warning to Essex by Leeker not to disburse the money because the house placed on the lot was not complete.

In July of 1978, Charles Leeker, a building contractor, entered into a contract with Gold Star Homes (Gold Star) for delivery of a complete modular home to a foundation site as part of a house construction contract between Leeker and Howard and Eleanor Sheldon. Essex provided a construction mortgage to the Sheldons in which it retained sole discretion as to the time and amount of any advances on the loan. On June 30,1978, the Sheldons made an assignment irrevocably authorizing Essex to make payments to Leeker at Essex' discretion to the total amount of $44,950.00.

After delays, an incomplete modular home was delivered on September 15,1978. On September 22,1978, after inspecting the house the day before and determining that there was sufficient equity to justify the payment, Essex sent $22,640 of the mortgage proceeds directly to Gold Star. This was done pursuant to a letter from Essex to Gold Star dated August 18, 1978, assigning to Gold Star the right to directly receive $25,470 of the loan money: $22,640 upon the delivery of the house; and $2,830 upon completion. This arrangement was made at the request of Leeker. Leeker claims that the check for $22,640 should not have been sent because he had earlier warned Essex that the house had been delivered incomplete and that Gold Star was in poor financial condition. Essex denied both of these claims.

Gold Star never completed the house. The Sheldons moved into another house and on December 13,1978, Leeker released the Sheldons from liability on the mortgage by assuming it. Leeker completed the house by drawing down the balance of the construction loan and investing his own money. Leeker claims $11,080.41 as damages in his suit against Essex for the extra work and materials needed because of the delivery of an incomplete modular home.

The trial court found (1) in effect, that Leeker did not warn Essex of Gold Star’s poor financial condition, and that Leeker did not warn Essex to withhold the payment to Gold Star; (2) that Essex owed both Leeker and the Sheldons a duty to exercise reasonable care which is “the care which a banker under these circumstances should exercise”; (3) that the bank was required to adhere to the highest standards of honesty and integrity; (4) that it was Leeker and the Sheldons, not Essex, who chose to construct a modular home; (5) that Essex took every precaution in securing proper irrevocable assignments from the Sheldons and retaining control over advancements to be made from the mortgage money; and (6) that Essex exercised the due care and professional integrity required of it.

The court rendered judgment for Essex in both suits. Leeker appeals from both judgments claiming (1) that Essex breached a fiduciary duty when it disbursed payment on the construction mortgage loan to a subcontractor who had contracted to deliver a completed modular home, but actually delivered a mere shell of house; and (2) that the assignment of the mortgage loan payments which required the bank to make payment to Gold Star was not valid.

Leeker claims that Essex held itself out as an expert in the field of modular home construction since it retained the sole discretion to disburse the construction loan advances. We are unaware of any authority which holds a lender on a construction mortgage to the standard of an expert in the modular home field solely by virtue of its discretion to make the advances on the loan. Although the bank retained discretion as to the time and amount of advances on the loan, it made periodic inspections of the construction prior to the advancements; and only after the modular unit had been on the premises for one week and inspected did it pay, at the request of Leeker, $22,640 to Gold Star. We agree with the trial court’s conclusion that, under the facts of this case, the bank should be held to the standard of reasonable care. See Collins v. City National Bank & Trust Co., 131 Conn. 167, 170, 38 A.2d 582 (1944).

Whether a bank has exercised its duty of care, however, is a question of fact for the trier. 10 Am. Jur. 2d, Banks § 303. The trial court’s conclusion that the bank exercised the requisite degree of care was based on conflicting testimony. Leeker contended that Essex failed to heed his warnings about the financial circumstances of Gold Star or to take his advice about the incomplete state of the modular unit and that, therefore, the bank was negligent in disbursing the advancements. The bank and its witnesses denied these allegations in their testimony. Where there is conflicting testimony, we do not retry the facts or pass upon the credibility of the witnesses. Dooley v. Leo, 184 Conn. 583, 586, 440 A.2d 236 (1981); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 281, 471 A.2d 651 (1984). Weighing the evidence and judging the credibility of the witnesses is solely within the province of the trial court and this court will not usurp that role. Edens v. Kole Construction Co., 188 Conn. 489, 495, 450 A.2d 1161 (1982); Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981). The trial court chose to believe the testimony of the bank and its witnesses. We cannot say that under the circumstances the trial court’s judgment was clearly erroneous.

The letter from Essex to Gold Star on August 18, 1978, states as follows: “This letter will act as an assignment to transfer $25,470.00 to Gold Star Homes in two separate disbursements as follows: (1) $22,640.00 Placement on foundation (2) $2,830.00 on Completion.”

Leeker claims that this is an invalid assignment under General Statutes § 49-10. Leeker’s argument is wide of the mark. Section 49-10 applies to the assignment of “any debt or other obligation secured by mortgage,” not to a written assurance that certain payments will be made out of the proceeds of the mortgage.

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       An exact duplicate of the complaint in Leeker v. Essex Savings Bank is filed as a counterclaim in the case of Essex Savings Bank v. Leeker.

       Leeker also briefed the claim that the damages suffered by the mortgagor could be offset in the foreclosure suit by the mortgagee, Essex. With respect to the judgment of foreclosure in the first case, from which both Charles and Sandra Leeker appealed, the appeal is dismissed as moot since the stay was terminated, new law days were set and title has vested in Essex.

       We are not called upon to determine under what circumstances a bank as mortgagee may be found to have assumed a higher or more specific obligation concerning disbursement of mortgage funds. See First Connecticut Small Business Investment Co. v. Arba, Inc. 170 Conn. 168, 175, 365 A.2d 100 (1976).

       General Statutes § 49-10 provides in pertinent part: “Whenever any debt or other obligation secured by mortgage, assignment of rent or assignment of interest in a lease, is assigned by an instrument in writing containing a sufficient description to identify the mortgage, assignment of rent or assignment of interest in a lease, as security for the debt or obligation, and that assignment has been executed, attested and acknowledged in the manner prescribed by law for the execution, attestation and acknowledgment of deeds of land, the title held by virtue of the mortgage, assignment of rent or assignment of interest in a lease, shall vest in the assignee.”


text:
    Carol Sturdivant v. Yale-New Haven Hospital et al.
    (2384)
    Dannehy, C.P.J., Testo and Hull, Js.
    Argued April 11
    decision released June 5, 1984

      Brenda C. Morrissey, for the appellant (plaintiff).

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

The plaintiff, Carol Sturdivant, in this medical malpractice case appeals* from the denial of a motion to set aside a directed jury verdict which had been rendered in favor of the defendants, Yale-New Haven Hospital and Paul A. Lucky, a physician. On appeal, the plaintiff claims that the trial court erred in limiting her designated expert’s testimony to the subject matter disclosed in her response to interrogatories and that the court’s action, in effect, constituted a dismissal of her cause of action.

The circumstances surrounding the diagnosis and treatment of the plaintiff are not relevant to the issues raised on appeal. For the sake of brevity, therefore, those circumstances need not be discussed in this case.

In response to the defendants’ interrogatories concerning expert testimony, the plaintiff informed the defendants on March 5, 1982, that she had neither retained an expert nor consulted any not intended to be called as a witness. The plaintiff first disclosed the identity of her expert, Marvin Garrell, a physician, during the jury selection process, although the expert had been consulted previously. The court ordered the plaintiff to answer the interrogatories concerning the expert testimony and required the plaintiff to allow the defendants an opportunity to depose the expert.

In her supplemental answers to the defendants’ interrogatories, the plaintiff stated that the subject matter of Garrell’s proposed testimony was the “standard of care and departures from the standard of care.” On the basis of this answer, the defendants limited the scope of their inquiry at the deposition to the disclosed subject matter.

During the trial, the plaintiff attempted to establish that the defendant physician’s treatment was improper by posing a hypothetical question to her designated expert. The court sustained the defendants’ objection on the ground that it contained facts which were not in evidence. Rather than reframe the question, the plaintiff made an offer of proof. At that time, the court informed the parties that the expert would not be able to testify on the issue of causation because causation was not within the scope of the disclosed subject matter of the expert’s proposed testimony.

The plaintiff concedes that without her expert’s testimony on causation the court correctly rendered a directed verdict for the defendants. She claims, however, on appeal, that the court abused its discretion when it excluded her expert's testimony on causation.

The trial court made the following findings. On March 5,1982, the plaintiff filed answers to interrogatories. The response to interrogatory number sixty-nine, which sought information relating to “any expert consulted by you or on your behalf . . . who is expected to be called as a witness at trial,” indicated that no expert had been retained to testify. To interrogatory number seventy, which related to experts consulted but not intended to be called as a witness, plaintiff also responded in the negative. It was not until after the case was set for trial and the jury selection process had commenced that the plaintiff’s counsel disclosed the identity of her expert.

The court then ordered that interrogatories number sixty-nine and seventy be answered forthwith and that thereafter her expert be produced to be deposed by defense counsel who maintained that otherwise his position would be prejudiced by his inability to prepare his cross-examination and to consider the possible need for a rebuttal expert.

Prior to the taking of the expert’s deposition, supplemental answers to interrogatories were filed wherein it was indicated that the subject matter with respect to which he was expected to testify was the “standard of care and departures from the standard of care.” Defense counsel limited the scope of his inquiry at deposition to the disclosed subject matter of the testimony expected at trial. The plaintiffs counsel asked no questions at the time of the deposition nor indicated that the witness’ testimony would embrace factors other than “standards of care.”

The plaintiff’s relationship with physician Marvin Garrell deserves a more detailed analysis. During his deposition on June 4,1982, Garrell stated that he had been asked to render an informal opinion in the case a few years previously but that he had not been retained to testify at trial at that juncture. In her brief, the plaintiff claims that Garrell was not consulted in anticipation of litigation or preparation for trial, but only on an informal basis. The plaintiff claims that Garrell was formally retained on May 28,1982, the day after jury selection began. The court’s conclusion that Garrell had been consulted earlier and that the file had been submitted to him for review is dispositive of this argument. The plaintiff’s claim that Garrell wasn’t formally retained as an expert until after the trial started is a tactical subterfuge, which, if left unchallenged by the court, would seriously undermine the salutary effect of the rules of discovery and production concerning expert testimony in malpractice cases. Such a “cat and mouse” game was properly not condoned by the trial court. The rules of discovery are designed to make a “ ‘trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.’ ” United States v. Proctor & Gamble, 356 U.S. 677, 682, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958).

Although the trial court did not cite Practice Book § 231, this section lends further support to the trial court’s action. It is clear, under the circumstances of this case that the plaintiffs failure to include Garrell’s proposed testimony on causation in her answer to interrogatory number sixty-nine was a failure to answer the interrogatory fairly, thereby justifying sanction (d) of Practice Book § 231 concerning the entry of an order prohibiting the party who has failed to comply from introducing designated matters into evidence.

The court’s decision on whether to impose the sanction of excluding the expert’s testimony concerning causation rests within the sound discretion of the court. See Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 40, 404 A.2d 889 (1978); see also Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144, 470 A.2d 246 (1984) (discussing sanctions pursuant to Practice Book § 231). “ ‘The action of the trial court is not to be disturbed unless it abused its legal discretion, and “[i]n 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.’ Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591 [1926] . . . .” Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 [1954].’ Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 [1970]. In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 611, 153 A.2d 463 [1959].” DiPalma v. Wiesen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972).

The court’s conclusion, that the consequences of the plaintiff’s failure fully and fairly to disclose, despite being given ample opportunity to do so, should fall upon the plaintiff rather than upon the defendants, was not an abuse of discretion. To hold otherwise would unfairly deny, under the circumstances of this case, the defendants the opportunity to prepare for or challenge the proposed testimony concerning causation.

Above and beyond the specific effects that such a sanction places upon a party, it is also appropriately invoked so as to deter those who might be tempted to enlist such tactics in the absence of a deterrent. See National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643, 96 S. Ct. 2778, 49 L. Ed. 2d 747 (1976).

There is no error.

In this opinion the other judges concurred.

       The appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Section 231 of the Practice Book states: “If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or has failed to respond to requests for production or for disclosure of the existence and contents of an insurance policy or the limits thereof, or has failed to submit to a physical or mental examination, or has failed to comply with a discovery order made pursuant to Sec. 230A, or has failed to comply with the provisions of Sec. 232, or has failed to appear and testify at a deposition duly noticed pursuant to this chapter, or has failed otherwise substantially to comply with any other discovery order made pursuant to Secs. 222, 226, and 229, the court may, on motion, make such order as the ends of justice require.
      Such orders may include the following:
      (a) The entry of a nonsuit or default against the party failing to comply;
      (b) The award to the discovering party of the costs of the motion, including a reasonable attorney’s fee;
      (c) The entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
      (d) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence;
      (e) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal.
      The failure to comply as described in this section may not be excused on the ground that the discovery is objectionable unless written objection as authorized by Secs. 222, 226, and 229 has been filed.”

       The plaintiff claims that Bruneau v. Quick, 187 Conn. 617, 626, 447 A.2d 742 (1982), suggests that the answers given at a deposition do not serve to “lock in” a witness’ testimony at trial. The Bruneau case, however, only decided that, on the evidence before it in that case, the witness was not “locked in.”


text:
    Stanley V. Tucker v. Connecticut Insurance Placement Facility
    (3185)
    Dannehy, C.P.J., Hull, Dupont, Borden and Spallone, Js.
    Decision released May 17, 1984
   Per Curiam.

On April 10,1984, our Supreme Court set aside the judgment of the Appellate Session of the Superior Court in this case and remanded it to this court for further proceedings consistent with its decision. Tucker v. Connecticut Ins. Placement Facility, 192 Conn. 653, 473 A.2d 1210 (1984).

Pursuant to, and in conformity with, that remand, the judgment of the Superior Court in favor of the defendant is set aside and the case is remanded to the Superior Court for further proceedings consistent with the decision of the Supreme Court.

       Under § 3 (c) of Public Acts 1983, No. 83-29 of the June Special Session of the 1983 General Assembly, jurisdiction of all matters pending in the Appellate Session of the Superior Court was transferred to the Appellate Court.


text:
    Hartford Accident and Indemnity Company v. Connecticut Bank and Trust Company
    (2439)
    Dannehy, C.P.J., Testo and Hull, Js.
    Argued April 3
    decision released June 5, 1984

      William G. Speed TV, with whom, on the brief, were Jerome D. Elbaum and Karl W. Punzak, for the appellant (plaintiff).

      Bruce G. MacDermid, for the appellee (defendant).
   Per Curiam.

The plaintiff subrogee of DunhamBush, Inc., appeals from a judgment by the trial court for the defendant in a suit for damages allegedly incurred when the defendant paid checks with unauthorized endorsements.

The trial court found that the defendant, Connecticut Bank and Trust Company (CBT), carried its burden of proof with respect to its own due care and on the issue of the negligence of the plaintiffs assignor, and, as a result, the court rendered judgment in the defendant’s favor on all counts of the complaint. Hartford Accident and Indemnity Company (Hartford), as the assignee of Dunham-Bush, Inc. (Dunham), the party found to be negligent, appeals from the finding of negligence on the part of Dunham and the finding of due care on the part of CBT, and also claims that there were issues of law which should have been addressed, but which were not addressed because the trial court allowed the negligence and due care findings to dispose of the entire case.

The undisputed facts are as follows. Dunham maintained a checking account with CBT. Charles Currie, the general credit manager of Dunham-Bush International, a division of Dunham, also maintained a checking account with his wife at CBT. Between February and November of 1975, Currie deposited six checks, which were payable to Dunham, into his own personal account. These checks totalled $60,091.86. It was later discovered that Currie had misappropriated twenty-five checks over a period of at least three years.

Dunham is a wholly owned subsidiary of Signal Companies, Inc. Signal Companies, Inc., and its subsidiaries carried a comprehensive dishonesty, disappearance and destruction policy with Hartford which insured Dunham against losses from misappropriations by its employees. After the loss was discovered, Hartford paid Dunham $50,091.86 (the total less $10,000 deductible) on this policy. At that time, Dunham signed an agreement authorizing Hartford to act on its behalf in obtaining recovery of the loss from CBT. In this capacity, Hartford demanded payment of $60,091.86 plus interest from CBT, but CBT refused to make this payment.

Hartford brought suit demanding payment, alleging that CBT was negligent and careless in several respects; that CBT was liable for conversion; General Statutes § 42a-3-419; and that, pursuant to General Statutes § 42a-4-213 (3), CBT was accountable to Dun-ham since it had received a settlement for each of the checks from a payor bank.

CBT alleged that it had acted in good faith in accordance with reasonable commercial standards applicable to the banking business; that Dunham was precluded from recovering because of its own negligent conduct; that Hartford could not recover because it is a compensated surety; and that General Statutes § 42a-4-213 (3) does not impose any liability against CBT in favor of Dunham. The trial court found that Dunham’s negligence in handling receivables, in concentrating authority in one person, and in failing to act on the auditor’s recommendations for dealing with receipts, all substantially contributed to the making of the unauthorized endorsements. Therefore, CBT was held to have prevailed by a preponderance of the evidence on the issue of Dunham’s negligence as well as its own due care and thus successfully defended against all counts of the complaint.

Hartford appeals on the grounds that the trial court erred in finding that CBT carried its burden of proof and in finding negligence on the part of Dunham to be dispositive of the allegations of conversion under § 42a-3-419 and CBT’s accountability under § 42a-4-213 (3). Hartford also claims on appeal that it should be allowed to recover under the compensated surety doctrine.

The main thrust of the plaintiff’s claims is an attempt to retry the factual questions of whether Dunham’s own negligence substantially contributed to the making of the unauthorized signatures and whether the defendant bank acted in good faith and in accordance with the reasonable commercial standards of the banking industry of Connecticut at the pertinent times.

“This appeal is merely an attempt to retry the facts and to have the Appellate Court substitute its finite view of the facts for the factual determinations of the trial court. This court will not reverse the decision of the trial court unless it is found to be ‘clearly erroneous in light of the evidence and the pleadings in the record as a whole.’ Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); see Practice Book § 3060D. The factual conclusions of the trial court ‘must stand unless they are legally and logically inconsistent with the facts found.’ State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983). Weighing the evidence is the function of the trier of fact and this court will not usurp that role. Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981).” Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983); see Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984).

The trial court filed an extensive memorandum of decision, Hartford Accident & Indemnity Co. v. Connecticut Bank & Trust Co., 39 Conn. Sup. 240, 476 A.2d 1083 (1982), in which it discussed both the factual and legal issues involved in the plaintiff’s claims for relief. After examining the record on appeal and after considering the briefs of the parties and their arguments, we conclude that there is no error in the judgment from which the appeal was taken and that the memorandum of decision filed by the trial court adequately and properly disposes of the contentions of the parties. Faith Center, Inc. v. Hartford, 192 Conn. 434, 436, 472 A.2d 16 (1984). The decision of the court “so completely articulates the issues involved in this appeal and so adequately explains the legal basis for its conclusions that it may appropriately be referred to for a detailed discussion of the facts and the applicable law. To incorporate that discussion herein would be redundant.” Id.; see Hinchliffe v. American Motors Corporation, 192 Conn. 252, 253-54, 470 A.2d 1216 (1984); Ribicoff v. Division of Public Utility Control, 187 Conn. 247, 248, 445 A.2d 324 (1982). Since the trial court found for the defendant, it was unnecessary for the court, or for this court, to consider the question of whether the plaintiff was barred from recovery as a compensated surety.

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Although the trial court did not cite General Statutes § 42a-3-406 in its opinion, the court applied the criteria of that statute. Section 42a-3-406 provides as follows: “Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business.”