author: Freedman, J.

text:
    Rich-Taubman Associates v. Harwyn Stamford, Inc.
    (12517)
    (12518)
    Freedman, Schaller and Spear,. Js.
    Argued May 5
    decision released August 2, 1994

      JohnF. Fallon, with whom was Kristi M. Agniel, for the appellant-appellee (defendant).

      Robert M. Dombrojf, with whom was Ann M. Siczewicz, for the appellee-appellant (plaintiff).
   Freedman, J.

The defendant appeals from the judgments of the trial court granting the plaintiffs motions for summary judgment in the plaintiff’s actions for a declaratory judgment and summary process. The defendant claims that the trial court improperly granted the plaintiff’s motions for summary judgment because (1) in doing so the trial court decided genuine issues of material fact, and (2) in the summary process action the trial court abused its discretion by refusing to grant the defendant’s request for an extension of time within which to file opposition papers. Because we remand this matter to the trial court for further proceedings, we do not reach either of these issues.

The procedural history of the two actions is as follows. The plaintiff commenced an action by a complaint dated May 15, 1992, against the defendant seeking a declaratory judgment that the defendant’s right to occupy certain premises would terminate on February 28,1993, the expiration date of the existing lease between the plaintiff and the defendant. The defendant answered by denying the operative allegations of the complaint and, additionally, filed a seven count counterclaim. The plaintiff moved for summary judgment on its complaint and on each count of the defendant’s counterclaim. After a hearing on the motion for summary judgment, the trial court, in a written memorandum of decision, rendered summary judgment for the plaintiff on its complaint and on five of the seven counts of the defendant’s counterclaim.

While the declaratory judgment action was pending and after the expiration date of the existing lease between the plaintiff and the defendant, the plaintiff, on March 26, 1993, commenced a summary process action against the defendant seeking immediate possession of the leased premises. The defendant filed an answer, special defenses and another seven count counterclaim. The plaintiff replied to the special defenses.

After the trial court granted the motion for summary judgment in the declaratory judgment action, the plaintiff filed a motion for summary judgment on its complaint in the summary process action relying on the trial court’s memorandum of decision in the declaratory judgment action. The defendant moved for an extension of time to file its opposition to the motion and also moved for a stay of the summary process action. After a hearing, the trial court, without a memorandum of decision, granted the plaintiffs motion for summary judgment and denied the defendant’s motions for extension of time and stay of proceedings. The two appeals followed.

“The jurisdiction of the trial court over declaratory judgment actions depends upon compliance with the notice requirement of Practice Book § 390 (d). That section provides in relevant part: The court will not render declaratory judgments upon the complaint of any person . . . (d) unless all persons having an interest in the subject matter of the complaint . . . have reasonable notice thereof. Failure to comply with § 390 (d) deprives the trial court of subject matter jurisdiction to render a declaratory judgment. . . . [Jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here. . . . Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon.” (Citations omitted; internal quotation marks omitted.) Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993).

We are unable to determine from either the Appellate Court record or the trial court file whether there has been compliance with § 390 (d). The determinations of who the “persons having an interest in the subject matter” are and whether they “have reasonable notice” are factual. Such factual determinations cannot be made by this court. State v. Andrews, 33 Conn. App. 590, 599, 637 A.2d 787, cert. denied, 229 Conn. 908, 640 A.2d 121 (1994).

We, therefore, exercise our supervisory authority pursuant to Practice Book § 4183 and remand the declaratory judgment action to the trial court to conduct a hearing to determine what persons have an interest in the subject matter and whether such persons had reasonable notice.

If the trial court determines that all persons who have an interest in the subject matter had reasonable notice, both appeals should be returned to this court for a resolution on the merits, including, if either party requests by way of an amended appeal, a review of the trial court’s determination on the remanded issue of interested parties and notice thereto.

If the trial court determines that all persons who have an interest in the subject matter have not had reasonable notice, the judgment in the declaratory judgment action is reversed and the case is remanded to the trial court for further proceedings. Such a jurisdictional defect may be remedied. The trial court “may entertain procedural efforts to cure a jurisdictional defect with regard to the giving of notice under Practice Book § 390 [d] . . . .” Serrani v. Board of Ethics, supra, 225 Conn. 309 n.5. “Once there has been compliance with § 390 (d), the trial court will have plenary authority to render whatever judgment it then deems appropriate.” Id., 310.

We note that our remand relates to the declaratory judgment action only. If the trial court determines that all the persons who have an interest in the subject matter did not have reasonable notice, its judgment granting the motion for summary judgment in the summary process action is also reversed and the case remanded for further proceedings because the judgment of the trial court in the summary process action was based solely on its disposition of the declaratory judgment action.

The cases are remanded to the trial court for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiff’s appeal in the declaratory judgment action and the plaintiff’s appeal in the summary process action were consolidated by order of this court.

       The counterclaim alleged fraud in the negotiations, requested specific performance of a written agreement to lease, alleged breach of a written agreement to lease, requested specific performance of an oral agreement to lease, alleged breach of an oral lease, alleged promissory estoppel, and alleged unfair trade practices.

       The trial court denied summary judgment on the counterclaim alleging unfair trade practices and made no ruling as to the count alleging breach of a written agreement to lease.

       The plaintiff has filed a cross appeal from the trial court’s denial of its motion for summary judgment on the defendant’s counterclaim alleging unfair trade practices. We dismiss the cross appeal because, absent exceptional circumstances that we do not find here, the denial of a motion for summary judgment is not an appealable final judgment. Gurliacci v. Mayer, 218 Conn. 531, 541 n.7, 590 A.2d 914 (1991).

       Practice Book § 4183 provides in relevant part: “[This] court may, on its own motion . . . remand any pending matter to the trial court for the resolution of factual issues where necessary . . . .”


source: Caselaw Access Project

license: Public Domain

text:
    Harry Childs v. Frank Bainer
    (12693)
    O’Connell, Landau and Freedman, Js.
    Argued March 31
    decision released August 2, 1994

      James A. Mulhall, Jr., with whom was Kevin T. Nixon, Sr., for the appellant (plaintiff).

      Karen P. Blado, with whom, on the brief were Robert R. Simpson and David Sylvestre, for the appellee (defendant).
   Freedman, J.

The plaintiff appeals following the trial court’s denial of his motion to set aside the verdict and for an additur. On appeal, the plaintiff claims that the trial court improperly denied his motion because an award for economic damages coupled with an award of zero noneconomic damages is inadequate as a matter of law. We agree.

The plaintiff commenced an action against the defendant seeking damages for personal injuries arising out of a collision of automobiles operated by the plaintiff and the defendant. The matter was tried to a jury, which returned a verdict for the plaintiff. The jury awarded the plaintiff $3649 in economic damages and zero in noneconomic damages. The plaintiff filed a motion pursuant to General Statutes § 52-228b requesting the trial court to order an additur and, if the defendant failed to accept the additur, requesting the trial court to set aside the verdict as to damages only. The trial court denied the motion, and this appeal followed.

The parties do not dispute the fact that the plaintiff submitted evidence of medical bills totaling $5129 and a claim for lost wages totaling $14,000.

The plaintiff specifically claims that the award of $3649 in economic damages, which is more than nominal damages, coupled with an award of zero noneconomic damages in an action seeking damages for personal injuries is inadequate as a matter of law.

“In reviewing the trial court’s refusal to set aside the verdict, our task is limited to determining whether the court abused its discretion. . . . Because a trial court is in a better position than an appellate court to determine whether a jury’s verdict was improperly influenced, its decision should be given great weight and every reasonable presumption of correctness should be accorded to it. . . . A jury’s verdict should not be set aside unless it so shockfs] the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. ... A reviewing court, however, must set aside the verdict if it is manifestly unjust and palpably against the evidence.” (Citations omitted; internal quotation marks omitted.) Brennan v. Manlapaz, 19 Conn. App. 71, 74, 560 A.2d 988 (1989).

By returning a verdict in favor of the plaintiff and awarding economic damages in the amount of $3469, it is clear that the jury found that at least some of the economic losses suffered by the plaintiff were proximately caused by the negligence of the defendant. In an action seeking damages for personal injuries, the general rule is that it is manifestly unjust for the jury to fail to award damages for pain and suffering when it awards economic damages. Creem v. Cicero, 12 Conn. App. 607, 611, 533 A.2d 234 (1987); Jeffries v. Johnson, 27 Conn. App. 471, 476, 607 A.2d 443 (1992). In addition, as a general rule, where a plaintiff is entitled to recover damages for personal injuries, an award limited to economic damages only is inadequate as a matter of law and should be set aside. Johnson v. Franklin, 112 Conn. 228, 229, 152 A. 64 (1930); Brennan v. Manlapaz, supra, 19 Conn. App. 74; Jeffries v. Johnson, supra, 27 Conn. App. 476.

The trial court, in its memorandum of decision denying the motion to set aside the verdict and order an additur, found that the verdict was not manifestly unjust and opined that this court in Creem and Jeffries improperly stated the holding in Johnson v. Franklin, supra, 112 Conn. 228. We do not agree. In Johnson v. Franklin, supra, 229, the jury returned verdicts for each of the three plaintiffs in “the exact amount of the special damages proved.” The trial court treated the verdicts as an award of nominal damages and, therefore, in the nature of a verdict for the defendant. Our Supreme. Court found that the verdicts were not nominal but were, in fact, substantial and held that “[i]f the plaintiffs were entitled to recover damages for their injuries the verdicts are manifestly inadequate and should have been set aside . . . .” Id., 229. We conclude that, here, the award of economic damages of $3649, which is clearly more than nominal damages, coupled with an award of zero noneconomic damages is inadequate as a matter of law and, therefore, that the trial court improperly denied the motion for an additur.

The plaintiff asks that if the verdict is set aside, it be set aside as to damages only. “[T]he jury’s intent in finding the issues for the plaintiff [awarding economic damages], but awarding zero [noneconomic] damages, is known only to the jurors, and this court’s endorsement of one plausible explanation of the verdict over another would amount merely to speculation. Such ambiguity requires a rehearing in full, on both liability and damages.” Malmberg v. Lopez, 208 Conn. 675, 683, 546 A.2d 264 (1988); see also Ginsberg v. Fusaro, 225 Conn. 420, 623 A.2d 1014 (1993). We conclude, therefore, that if the verdict is set aside it should be set aside as to all issues.

The judgment is reversed and the case is remanded for further proceedings to determine a reasonable additur for noneconomic damages, to give the parties an opportunity to accept the additur, and, if they do not accept the additur, a new trial is ordered as to all issues.

In this opinion the other judges concurred.

       Although the defendant titled its motion “Plaintiff’s motion to set aside verdict as to damages only and for additur,” it is clear that pursuant to General Statutes § 52-228b “[n]o such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”

       General Statutes § 52-572h (a) (1) defines “economic damages” as “compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages. . . .” Section 52-572h (a) (2) defines “noneconomic damages” as “compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering . . . .”

       General Statutes § 52-228b provides: “No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”

       “ ‘Generally, nominal damages are fixed without regard to the extent of harm done and are assessed in some trifling or trivial amount . . . ” Creem v. Cicero, 12 Conn. App. 607, 611, 533 A.2d 234 (1987).


author: Lavery, J.

text:
    Pie Plate, Inc., et al. v. Texaco, Inc.
    (11481)
    (11483)
    O’Connell, Laveey and Landau, Js.

      Argued April 28
    decision released August 2, 1994

      Neil F. Murphy, Jr., with whom was Lawrence J. Kiel, for the appellant (named plaintiff).

      Francis G. Pennarola, for the appellant (plaintiff Frank Devino).

      Paul D. Sanson, with whom, on the brief, were Gregory T. D’Auria and Sheila Huddleston, for the appellee (defendant).
   Lavery, J.

The plaintiffs, Pie Plate, Inc. (Pie Plate), and Frank Devino, appeal from a judgment in favor of the defendant, Texaco, Inc. (Texaco), in their tort action arising out of a gasoline contamination of commercial property in Waterbury. Both plaintiffs assert that the trial court improperly (1) excluded the testimony of an expert witness under Practice Book § 220 (D), and (2) restricted the scope of a witness’ testimony. In addition, Pie Plate claims that the trial court improperly (1) limited its attempt to demonstrate an expert witness’ bias, (2) refused to instruct the jury on adverse inference and damages as requested, and (3) instructed the jury on the applicable statute of limitations and theory of superseding cause. Frank Devino also asserts that the trial court improperly refused to take judicial notice of Devino’s withdrawal of the case he had brought against Merit, Inc. (Merit).

Devino owns commercial property in Waterbury that was contaminated by underground gasoline. Pie Plate operated a restaurant on the premises until forced to close in 1985 by the gasoline contamination. A gasoline station owned by Merit adjoined the property; a Texaco gasoline station was located across the street from the property.

After the contamination, Devino sued Merit alleging damages resulting from negligent discharge of gasoline onto his property. Merit claimed that Texaco was responsible for the contamination. Devino and Pie Plate sued Texaco in 1986 on the same ground. Texaco blamed Merit. After seven years of discovery and motions, the parties presented their cases to a jury during a four week trial. Near the end of the Texaco trial, Devino withdrew his case against Merit. The jury found that Texaco had been negligent but had not been a substantial factor in causing the plaintiffs’ damages. The plaintiffs appealed.

I

The plaintiffs’ first claim involves the defendant’s pretrial motion to preclude expert testimony by any witnesses not disclosed pursuant to Practice Book § 220 (D). The defendant sought to prevent the plaintiffs from calling Dan Buzea as an expert. The trial court found that Buzea had been retained as an expert witness by Merit in Devino’s case against Merit. The trial court also found that the plaintiffs had known of Buzea’s availability and his opinion but had failed to comply with Practice Book § 220 (D). Therefore, the trial court granted the defendant’s motion.

On appeal, the plaintiffs initially assert that Practice Book § 220 (D) does not apply to expert witnesses called in rebuttal. This argument is legally incorrect and factually inapposite. Section 220 (D) applies to rebuttal expert witnesses. Roberto v. Honeywell, Inc., 33 Conn. App. 619, 624, 637 A.2d 405 (1994). Furthermore, the trial court ruled on the motion before the trial began and without knowing that Buzea would be a rebuttal witness. Thus, even if § 220 (D) did not apply to rebuttal witnesses, that fact pattern was not presented to the trial court.

The plaintiffs also assert that the trial court abused its discretion in excluding Buzea. Section 220 (D) provides that if the name of any expert is not disclosed within sixty days of the date the case is claimed to the trial list, the expert shall not testify except in the discretion of the trial court for good cause shown. The rule provides a safety valve by making the determination of whether such an expert testifies a discretionary decision to be made by the trial court in light of good cause. See Knock v. Knock, 224 Conn. 776, 782, 621 A.2d 267 (1993); Berry v. Loiseau, 223 Conn. 786, 800, 614 A.2d 414 (1992); Roberto v. Honeywell, Inc., supra, 33 Conn. App. 625.

“ ‘Neither § 220 (D) nor the cases interpreting it define what constitutes “good cause.” ’ ” Knock v. Knock, supra, 224 Conn. 782-83. “[T]he scope of the trial court’s discretion required it to review the intent and the reasons given by the plaintiff for not disclosing [an] expert witness within the time frame set forth in § 220 (D), and to determine if those reasons, particular to this case, amounted to good legal excuse.” Roberto v. Honeywell, Inc., supra, 33 Conn. App. 626. “ ‘In determining whether the trial court abused its discretion, an appellate court should entertain every reasonable presumption in favor of the trial court’s decision.’ ” Connecticut Bank & Trust Co., N.A. v. Reckert, 33 Conn. App. 702, 707, 638 A.2d 44 (1994).

The record reveals that the trial court performed the appropriate review. The trial court found that the plaintiffs had long been aware of a report prepared by Buzea that was favorable to their position and that Buzea had been available as a witness for at least three months. Moreover, the plaintiffs’ tardy disclosure meant either that the trial would have to have been further delayed or that the defendant would have been deprived of reasonable time in which to prepare for Buzea’s testimony. Because the trial court believed that the plaintiffs had not presented a reasonable explanation for their failure to comply with the rule, the court granted the motion. Our review of the record persuades us that there was no abuse of discretion.

II

The plaintiffs next assert that the trial court improperly limited the scope of testimony offered in rebuttal. During the defendant’s case-in-chief, one of the defendants experts, Dennis Waslenchuk, relied on a report prepared by Buzea. On rebuttal, the plaintiffs offered Buzea’s testimony regarding his report and his opinion regarding the source of the contamination on the basis of the report. The trial court again refused to permit Buzea to testify as an expert. The trial court did, however, grant permission for him to testify to the facts underlying his report. Finally, the trial court denied the plaintiffs permission to have Buzea testify regarding facts that he learned subsequent to the preparation of the report. The plaintiffs chose not to present Buzea at all.

The admission of rebuttal evidence lies within the sound discretion of the trial court. Shaham v. Capparelli, 219 Conn. 133, 134, 591 A.2d 1269 (1991). “ ‘[Tjhe usual rule will exclude all evidence which has not been made necessary by the opponent’s case in reply.’ ” Id., 136-37 [Shea and Covello, Js., dissenting), quoting 6 J. Wigmore, Evidence (4th Ed.) § 1873, p. 672. “The policy behind restrictions on the presentation of rebuttal testimony is that a plaintiff is not entitled to a second opportunity to present evidence that should reasonably have been presented in [its] casein-chief.” Shaham v. Capparelli, supra, 136. “The issue on appeal is not whether any one of us, sitting as the trial court, would have permitted the disputed testimony to be introduced. The question is rather whether the trial court . . . abused its discretion in not allowing the rebuttal testimony . . . .” Id.., 134; see Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990); Gemme v. Goldberg, 31 Conn. App. 527, 538, 626 A.2d 318 (1993).

We conclude that the trial court did not abuse its discretion by preventing Buzea from testifying as an expert on rebuttal. The plaintiffs had not disclosed him as a potential expert witness prior to trial. Thus, absent adequate time in which to prepare, the defendant would have been prejudiced. The trial court refused to accommodate the plaintiffs’ failure to disclose their experts in a timely manner by prolonging a month long trial that was the culmination of a seven year old case. The plaintiffs were not prejudiced by this ruling because they could have presented Buzea as a fact witness. That would have allowed them to establish the factual predicate for the opinion of their expert, John Raabe, who could have been recalled. Therefore, we conclude that the trial court did not abuse its discretion by refusing to permit the plaintiffs to achieve on rebuttal what had been denied them during their case-in-chief.

The trial court also properly restricted the facts to which Buzea would have been permitted to testify. The defendant’s expert used Buzea’s report as grounds for his opinion that the contamination was caused by Merit. The plaintiffs’ sought to have Buzea testify to facts that were not discovered before the report was prepared, that were not part of the report, and on which the defendant’s expert did not rely. Thus, this testimony was not made necessary by the defendant’s case. Moreover, the plaintiffs knew of these facts and could have had Buzea testify as a fact witness regarding them during the plaintiffs’ case-in-chief. The plaintiffs could then have had Raabe testify as an expert and present his opinion based on those facts. The plaintiffs did neither. The trial court did not abuse its discretion by denying the plaintiffs a second opportunity to present evidence that should reasonably have been included in its casein-chief.

Finally, we note that the relevance of these facts is suspect. The contamination underlying this case occurred sometime prior to 1985. The plaintiffs sought to have Buzea testify to tests he performed in late 1991 after his report was completed. The plaintiffs did not demonstrate any objective indicia linking the tests done in 1991 to the source of the contamination six years earlier. We conclude, therefore, that the trial court did not abuse its discretion when it restricted the scope of Buzea’s offered testimony.

Ill

Pie Plate next claims that the trial court improperly restricted the scope of cross-examination of Waslenchuk regarding possible bias. During his investigation of the contamination, Waslenchuk prepared a report of his findings. Pie Plate hoped to demonstrate that Waslenchuk had altered his report as directed by the defendant’s counsel in order to be more favorable to the defendant. On cross-examination, Pie Plate elicited testimony that a draft of Waslenchuk’s report was sent to the defendant and counsel. Waslenchuk also testified that he had received a letter from the defendant asking him to consult with counsel on some “literary” changes. Pie Plate entered that letter into evidence. Waslenchuk denied any improper influence and testified that he was unable to recall whether any changes had been made. The report that was the subject of this bias allegation was never entered into evidence.

Thus, Pie Plate claims that it was prejudiced by the trial court’s refusal to permit it to demonstrate possible improper influence on the outcome of a report that was neither entered into evidence nor relied on by any expert. To state the claim is to resolve it. The trial court exercises broad discretion in permitting cross-examination. Gurecki v. Johnson, 175 Conn. 297, 298, 398 A.2d 311 (1978). Here, the trial court allowed Pie Plate to cross-examine Waslenchuk about possible bias. The trial court did not abuse its discretion by curtailing further cross-examination related to possible bias related to a report that was not material to the case.

Pie Plate also cites as error the trial court’s refusal to admit a telephone log into evidence. Because Pie Plate neglected to object to the trial court’s ruling, however, we decline to review this claim. Practice Book §§ 4185 and 288; Skinner v. Skinner, 154 Conn. 107, 110, 221 A.2d 848 (1966).

IV

Pie Plate next claims that the trial court improperly refused to instruct the jury that it could draw an adverse inference from the defendant’s failure to offer the testimony of Howard Phillips. Pie Plate elicited through cross-examination of other witnesses that Phillips, a Texaco employee, was available to testify. The plaintiff claims that because the evidence demonstrated that Phillips was an “integral participant” in the incident, the trial court should have given an adverse inference instruction.

Fact finders can draw adverse inferences from a party’s failure to call an available and presumably favorable witness. Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960); Gulack v. Gulack, 30 Conn. App. 305, 314, 620 A.2d 181 (1993). “Under Secondino, two requirements must be satisfied: (1) The witness must be available; and (2) the witness must be one whom the party would naturally produce. ... A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” (Citation omitted; internal quotation marks omitted.) Gulack v. Gulack, supra, 314.

The plaintiff established Phillips’ availability but nothing else. Texaco presented three witnesses relevant to the contamination: Texaco’s local field maintenance supervisor, a geologist with an environmental remediation firm that investigated the spill, and Waslenchuk. All three were directly involved with the incident and gave detailed testimony regarding it. Pie Plate’s Secondino claim related to a Texaco employee who reviewed the firsthand reports of others on the scene. Pie Plate did not show that Phillips had peculiar or superior information regarding this incident. Thus, the second requirement for a Secondino instruction was not satisfied. The trial court did not abuse its discretion.

V

Pie Plate asserts that the trial court improperly instructed the jury on issues related to damages. Pie Plate requested that the trial court instruct the jury that, as a general partner of the partnership that owned and operated the restaurant, Pie Plate could recover the entirety of the damages to the restaurant. The trial court refused the suggested instruction. Pie Plate claims that this refusal denied it $300,000 of its damage claim.

We conclude that in light of the jury’s verdict in this case, we need not review this claim. Even if the trial court’s refusal to instruct as requested was improper, it could not have affected the result of the case. According to the jury, Texaco was not the proximate cause of Pie Plate’s damages. Thus, the jury never considered the amount of damages to which Pie Plate was entitled, and the instruction had no bearing on the verdict. We conclude that the trial court’s instructions, even if improper, did not prejudice the plaintiff. See, e.g., Kelley v. Bonney, 221 Conn. 549, 586-87, 606 A.2d 693 (1992); Blancato v. Randino, 30 Conn. App. 810, 815-16, 622 A.2d 1032 (1993).

VI

Pie Plate claims that the trial court improperly instructed the jury on statutes of limitation and superseding cause. Pie Plate cites no case law in its brief on this issue nor discusses its claim further than the bald and unsupported assertion that the trial court’s action was prejudicial. Claims mentioned but not adequately briefed are deemed abandoned. Corsino v. Telesca, 32 Conn. App. 627, 634, 630 A.2d 154, cert. denied, 227 Conn. 931, 632 A.2d 703 (1993); State v. Rumore, 28 Conn. App. 402, 410-11, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992). We decline, therefore, to review this claim.

VII

Finally, Devino claims that the trial court should have taken judicial notice of the withdrawal of his action against Merit. The jury had been told of the Merit action at the start of trial and Texaco had cross-examined Devino about the Merit action and the similarity between the complaints in the two suits. The trial court refused to take judicial notice of Devino’s affidavit that he had withdrawn his suit against Merit, ruling that to do so would prejudice the defendant late in the trial by denying it an opportunity to question Devino about the basis for the withdrawal. The trial court stated that it would permit Devino to testify about the withdrawal, thereby protecting the defendant through cross-examination. Devino declined.

“Whether to take judicial notice of a fact is a function of the exercise of judicial discretion. West Hartford v. Freedom of Information Commission, 218 Conn. 256, 264, 588 A.2d 1368 (1991); De Luca v. Park Commissioners, 94 Conn. 7, 10, 107 A. 611 (1919); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 6.1.3, p. 119; 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 22. Where a ruling involves the exercise of the trial court’s discretion, its action will not be disturbed unless it has abused that broad discretion. Pool v. Bell, 209 Conn. 536, 541, 551 A.2d 1254 (1989). In determining whether the trial court has abused its broad discretion, we will afford every reasonable presumption in favor of the correctness of its ruling. State v. Leonard, 31 Conn. App. 178, 190, 623 A.2d 1052 (1993); Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 108, 476 A.2d 1074 (1984). The ultimate issue to be determined in a claim involving an alleged abuse of the trial court’s discretion is whether the trial court could reasonably conclude as it did. Walton v. New Hartford, 223 Conn. 155, 171, 612 A.2d 1153 (1992); DiPalma v. Wiesen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972); State v. Leonard, supra [190].” Gemme v. Goldberg, supra, 31 Conn. App. 537-38.

Our review of the record convinces us that the trial court did not abuse its discretion in declining to take judicial notice of the affidavit. Informing the jury through judicial notice would have prejudiced the defendant by depriving it of an opportunity to present to the jury the reasoning behind the withdrawal. Further, Devino could have avoided any prejudice by testifying that he had withdrawn. Therefore, we conclude that the trial court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 220 (D) provides in pertinent part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. Each defendant shall disclose the names of his or her experts in like manner within 120 days from the date the case is claimed to a trial list. If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after that date, such expert shall not testify except in the discretion of the court for good cause shown.”

       Pie Plate requested the following instruction: “Ladies and Gentlemen, in the case you have just heard, there were two plaintiffs. The plaintiff Pie Plate was the tenant of the plaintiff land owner Mr. Frank Devino. Furthermore, you heard evidence that the Pie Plate, Inc. was a general partner of Pie Plate Associates, which evidence also showed was the owner of record of the Pie Plate restaurant located on Thomaston Avenue, Waterbury, Connecticut. Under our law, only a general partner may bring a lawsuit of this nature and therefore the filing and prosecution of the action by Pie Plate, Inc. is perfectly valid in order to prosecute the claim on behalf of Pie Plate Associates.”


text:
    Harold W. Read et al. v. Planning and Zoning Commission of the Town of Stonington et al.
    (12319)
    Lavery, Freedman and Spear, Js.
    Argued May 5
    decision released August 2, 1994

      Jeffrey R. Godfrey, for the appellant (defendant William Boyce).

      Mark W. Oberlatz, for the appellees (plaintiffs).
   Freedman, J.

The defendant William Boyce appeals from the judgment of the trial court reversing the approval, by the defendant planning and zoning commission of the town of Stonington (zoning commission), of a site plan application. On appeal, Boyce claims that the trial court improperly found (1) that the plaintiffs had standing to appeal from the zoning commission’s decision, and (2) that the zoning commission had no jurisdiction to take action on Boyce’s site plan application without first receiving a report from the local inland wetlands commission. We reverse the judgment of the trial court.

The trial court found the following facts. On January 3, 1990, Boyce filed an application with the zoning commission for review of a coastal site plan for the building of a single-family house on a coastal lot. On May 15,1990, acting pursuant to the Coastal Management Act, the zoning commission reviewed the application, heard evidence, deliberated, and approved Boyce’s site plan. On June 4,1990, the plaintiffs, owners of a lot abutting Boyce’s property, filed a timely appeal from the decision of the zoning commission in the Superior Court. The trial court sustained the appeal and reversed the decision of the zoning commission.

The trial court specifically found: “The zoning commission complied with the statutory requirements of the Coastal Management Act” and that “the findings and conclusions are adequately supported by the record.” The trial court found, however, that because Boyce had failed to submit a simultaneous application to the inland wetlands commission for the town of Stonington, pursuant to General Statutes § 8-3 (g), the zoning commission was without authority to act on the coastal site plan and, therefore, the approval of Boyce’s application was void as an illegal action by the zoning commission. This appeal followed.

Boyce first argues that because the Coastal Management Act contains no specific appeal provisions for site plan review, and no direct reference to the appeal provisions of the zoning statutes, there is no right to appeal any decision made by a planning and zoning commission under the Coastal Management Act. We disagree.

Although the Coastal Management Act does not contain any explicit provisions for appealing the decisions of a municipal zoning commission, the act does contemplate that such decisions will be appealed. Section 22a-110 of the Coastal Management Act provides not only that the state’s commissioner of environmental protection may appear as of right in any proceeding before a municipal zoning commission under the act, but also that “said commissioner may appeal, or appear as a party to any appeal of, a municipal decision concerning such matters . . . .”

“We presume that the legislature had a purpose for each sentence, clause, or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.” Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991). In order for the reference in § 22a-110 to an appeal of a decision under the act to have purpose, we must turn to General Statutes § 8-8 (b), which provides in relevant part that “any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located.” A “board” is defined as “a municipal zoning commission, planning commission, or combined planning and zoning commission.” General Statutes § 8-8 (a) (2). Clearly, the planning and zoning commission of the town of Stonington fits this definition.

Section 8-8 (b) is not limited to decisions made pursuant to local zoning regulations. Section 8-8 (b) expressly provides that “any person aggrieved by any decision of a board may take an appeal . . . .” (Emphasis added.) It is irrelevant to an aggrieved party’s right of appeal under § 8-8 (b) that the zoning commission was implementing the Coastal Management Act. The implementation of the act is in addition to the zoning commission’s authority under the town’s planning and zoning regulations, not to the exclusion of that authority. We conclude that the plaintiffs, as persons aggrieved by the decision of the zoning commission, had standing under § 8-8 (b) to appeal the action of the zoning commission to the Superior Court.

Boyce next claims that the trial court improperly found that the zoning commission had no jurisdiction to take action on his site plan application without first receiving a final report from the inland wetlands commission. This claim requires us to analyze the relationship between General Statutes §§ 22a-109 and 8-3 (g). The trial court specifically found that even though Boyce’s site plan was submitted pursuant to § 22a-109, the zoning commission’s decision was illegal because the defendant failed to comply with § 8-3 (g). That subsection requires that any site plan submitted to the local zoning commission that impacts inland wetlands must be simultaneously submitted to the local agency responsible for the administration of the inland wetlands regulations, and that in such cases the zoning commission may not act on the site plan until a final decision of the inland wetlands agency has been submitted.

Section 22a-109 (a) of the Coastal Management Act, pursuant to which the defendant submitted his coastal site plan, expressly excludes coastal site plans from the requirements of § 8-3 (g). In construing statutes, our goal is “to ascertain and give effect to the apparent intent of the legislature.” State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987). We look first to the plain, unambiguous language of the statute. Rhodes v. Hart ford, 201 Conn. 89, 93, 513 A.2d 124 (1986). Only if the language is ambiguous do we turn for guidance to the legislative history and the purpose the statute is intended to serve. State v. Kozlowski, 199 Conn. 667, 674, 509 A.2d 20 (1986); see also Beizer v. Goepfert, 28 Conn. App. 693, 698, 613 A.2d 1336, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), cert. denied, U.S. , 113 S. Ct. 1416, 122 L. Ed. 2d 786 (1993). The language in § 22a-109 (a) is not ambiguous. Section 22a-109 (a) clearly states that review under the act “shall supersede any review . . . under subsection (g) of section 8-3 .. . .” (Emphasis added.)

During oral argument the plaintiffs posited that the decision of our Supreme Court in Vartuli v. Sotire, 192 Conn. 353, 472 A.2d 336 (1984), held that despite the plain language of § 22a-109 (a), § 8-3 (g) applied to cases under the Coastal Management Act. Our review of Vartuli reveals that the Supreme Court did not hold that § 8-3 (g) applied to review of coastal site plans. In Vartuli, the Supreme Court held that the provision in § 8-3 (g) that “[ajpproval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d” operated to make approval of a coastal site plan mandatory if a municipal board failed to act on the plan within the sixty-five day period delineated in § 8-7d (b). Vartuli v. Sotire, supra, 358-59.

Our examination of the Coastal Management Act clarifies the basis of the Vartuli holding. Section 22a-109 (g) provides that “[t]he coastal site plan review required under this section shall be subject to the same statutory requirements as subsections (a) and (b) of section 8-7d for the purposes of determining the time limitations on the zoning commission in reaching a final decision.” Section 8-7d (b) is in turn implemented through the mandatory approval provision of § 8-3 (g). In Vartuli the Supreme Court stated: “By virtue of § 22a-109 (a), the broader substantive criteria for coastal site plan review take the place of the narrower zoning criteria contemplated by § 8-3 (g). The statutory scheme thus avoids duplicative zoning and coastal management proceedings. Nothing in § 22a-109 (a) in any way addresses the temporal restrictions that § 8-3 (g) imposes on § 8-7d (b).” Id., 363. This language makes a distinction between the substantive criteria of § 8-3 (g), which do not apply when site plans are submitted pursuant to § 22a-109, and the operation of § 8-3 (g) on the temporal enforcement provisions of § 8-7d (b), which occurs even if § 8-7d (b) is operating on the Coastal Management Act. No part of Vartuli suggests that § 8-3 (g) operates directly on § 22a-109, as that would be a violation of the express provisions of § 22a-109 (a).

Additionally, in construing statutes we presume that “the legislature acted with knowledge and understanding of existing relevant statutes, and with the intent to achieve a harmonious and consistent body of law.” Vartuli v. Sotire, supra, 192 Conn. 362; see also Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 442, 632 A.2d 1014 (1993). In 1987, the legislature amended § 8-3 (g) to require simultaneous submission of site plans to the zoning commission and to the inland wetlands agency, as part of an act that substantially strengthened the Inland Wetlands and Watercourses Act. This was several years after the enactment of the Coastal Management Act, which had expressly excepted coastal site plans from the requirements of § 8-3 (g). If the legislature had intended coastal site plans submitted pursuant to § 22a-109 to be submitted simultaneously to the local wetlands agency, the legislature could easily have modified § 22a-109 (a) accordingly in 1987. Union Trust Co. v. Heggelund, 219 Conn. 620, 627, 594 A.2d 464 (1991).

Furthermore, although our holding in this case is based on the unambiguous language of the statute, it is also consistent with legislative intent. It would be inconsistent with the review scheme contemplated by the state legislature in the Coastal Management Act to require simultaneous submission of coastal site plans to the planning and zoning commission and the inland wetlands agency.

The Coastal Management Act was expressly concerned with providing uniform standards for evaluating the impact of coastal development, while allowing municipalities to maintain local control over the process. See 22 H.R. Proc., Pt. 29, 1979 Sess., pp. 10168-69, remarks of Representative John Anderson. As the Supreme Court has previously noted, what is unique about the Coastal Management Act is that it “envisages a single review process, during which proposals for development within the coastal boundary will simultaneously be reviewed for compliance with the local zoning requirements and for consistency with the policies of planned coastal management.” Vartuli v. Sotire, supra, 192 Conn. 358. Comments made during hearings of the joint standing committee on the environment reflect a desire by the proponents of the Coastal Management Act to avoid creating more bureaucracy and procedures and to simplify the process of applying for permits to build in coastal areas. Conn. Joint Standing Committee Hearings, Environment, Pt. 5, 1979 Sess., pp. 1380-85. Procedures under the Coastal Management Act were designed “to make life easier for coastal property owners by providing more specific guidance in how to get permits.” 22 H.R. Proc., Pt. 29, 1979 Sess., p. 10169, remarks of Representative John Anderson. It would be ironic if under legislation designed to simplify and streamline the process of applying for coastal building permits, a property owner was required to submit simultaneous applications to multiple agencies, and if the local zoning commission was precluded from acting on the coastal site plan until the local wetlands agency had issued a final decision.

Finally, it must be emphasized that excepting coastal site plans from the requirement of simultaneous submission to the zoning commission and wetlands agency will not exclude coastal site plans from review pursuant to the Inland Wetlands and Watercourses Act if the contemplated development will impact inland wetlands. As we pointed out in Arway v. Bloom, 29 Conn. App. 469, 481, 615 A.2d 1075 (1992), appeal dismissed, 227 Conn. 799, 633 A.2d 281 (1993), wetlands are not protected solely through the simultaneous review provisions of General Statutes § 8-3 (g). The Inland Wetlands and Watercourses Act, at General Statutes § 22a-42a (c), independently protects wetlands by requiring that “no regulated activity shall be conducted upon any wetland and watercourse without a permit.” In fact, Boyce conceded in oral argument that despite approval of his coastal site plan by the zoning commission, he could not build on the site in question without first obtaining a wetlands permit from the inland wetlands commission.

The language of the Coastal Management Act unambiguously provides that review of coastal site plans pursuant to General Statutes § 22a-109 (a) supersedes review under General Statutes § 8-3 (g). In accordance with the plain meaning of this language, Boyce was not required to submit his coastal site plan to the inland wetlands commission at the same time he submitted it to the zoning commission, nor was the zoning commission precluded from acting on his application without the final decision of the inland wetlands commission.

The judgment is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       The defendants in this action are the planning and zoning commission of the town of Stonington and William Boyce. This appeal was brought solely by Boyce. The planning and zoning commission adopted the brief of Boyce but did not attend oral argument.

       The Coastal Management Act is contained in General Statutes § 22a-90 et seq. General Statutes § 22a-109 (a) provides in pertinent part: “A coastal site plan shall be filed with the municipal zoning commission to aid in determining the conformity of a proposed building, use, structure . . . fully or partially within the coastal boundary, with the specific provisions of the zoning regulations of the municipality and the provisions of sections 22a-105 and 22a-106 . . . .”

       General Statutes § 8-3 (g) provides in pertinent part: “The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. If a site plan application involves an activity regulated pursuant to sections 22a-36 to 22a-45, inclusive, the applicant shall submit an application for a permit to the agency responsible for administration of the inland wetlands regulations not later than the day such application is filed with the zoning commission. The decision of the zoning commission shall not be rendered on the site plan application until the inland wetlands agency has submitted a report with its final decision. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland wetlands regulations. ...”

       The zoning statutes are found within the General Statutes at § 8-1 et seq.

       “A coastal site plan required under this section may be modified or denied if it fails to comply with the requirements already set forth in the zoning regulations of the municipality, and, in addition, the coastal site plan may be modified, conditioned or denied in accordance with the procedures and criteria listed in sections 22a-105 and 22a-106. . . .” General Statutes § 22a-109 (a).

       See footnote 3.

       See footnote 2.

       General Statutes § 22a-í 09 (a) provides in relevant part: “Review of a coastal site plan under the requirements of this section shall supersede any review required by the municipality under subsection (g) of section 8-3

       See footnote 8.

       Boyce obtained such approval on March 6, 1991.


author: O’Connell, J.

text:
    Century Mortgage Company, Inc. v. Mary E. George
    (12264)
    O’Connell, Lavery and Cretella, Js.
    Argued March 25
    decision released August 2, 1994

      David F. Weber, for the appellants (plaintiffs).

      William T. Barrante, for the appellee (substitute defendant).
   O’Connell, J.

This is a mortgage foreclosure action in which the plaintiffs appeal from the judgment denying them relief. The plaintiffs are Century Mortgage Co., Inc. (Century), and the Federal Home Loan Mortgage Corporation (Freddie Mac). The plaintiffs claim that the trial court (1) improperly refused to order foreclosure of the mortgage and (2) improperly refused to enforce the mortgage note. We affirm the judgment of the trial court.

The genesis of the case was the defendant Mary George’s desire to provide financial assistance to her son James by mortgaging her house at 23 Catherine Street in Watertown. On August 31, 1988, Mary, a seventy-four year old widow, mortgaged her property in Watertown to secure a $65,000 loan to the First Connecticut Small Business Investment Company. A house at 745 Seventh Ridge Road in Wallingford, which was owned by James’ wife, Marie, was also used to secure the loan. The proceeds of the loan were given to James to start a business with an understanding that he would make the mortgage payments.

James’ business was short-lived and by early 1989 he needed more money to embark on a new enterprise. He convinced Century to make a $105,000 mortgage loan to Mary. James then persuaded Mary to execute a mortgage deed and note to Century by falsely representing that his arrest for income tax evasion was imminent and he needed the money for the Internal Revenue Service (IRS) to avoid being sent to jail. Mary agreed and on April 10, 1989, executed the mortgage documents. The prior mortgage to First Connecticut Small Business Investment Company was paid off and several days later the net proceeds were wired directly to a bank account controlled by James. Mary never received any of the money.

The $105,000 mortgage note to Century incorrectly specified a fifteen year maturity rather than the thirty year maturity James had negotiated. The mortgage deed likewise recited the incorrect maturity date and additionally contained an erroneous property description. The first page of the mortgage deed properly indicated that the pledged real estate was located at 23 Catherine Street in Watertown. The actual property description detailed in schedule A, annexed to the mortgage deed, however, was not that of Mary’s Watertown property, but was of Marie’s Wallingford property. Thus, Century became the holder of a mortgage deed executed by a mortgagor who had no interest in the mortgaged property.

Upon discovering the errors, Century sent a corrected mortgage note and deed to Mary. Although these documents were returned to Century bearing Mary’s name on the signature lines, James testified that he had intercepted the papers and forged Mary’s signature. The trial court found that the signatures on the new documents were forgeries. The forged mortgage deed was never recorded on the land records.

Although it was agreed that James would make the mortgage payments, he soon defaulted and in March, 1990, Century instituted this foreclosure action. No explanation is offered as to why Century instituted the action in view of its assertion that, almost a year previously, it had assigned its interest to Freddie Mac. Two weeks prior to trial, Century moved to substitute Freddie Mac as the plaintiff because of this assignment. The trial court denied the motion to substitute because the defendant had filed a counterclaim against Century; instead, the trial court added Freddie Mac as an additional plaintiff. After trial, Century and Freddie Mac filed an amended complaint as coplaintiffs in which Freddie Mac is alleged to be the sole holder of the note and mortgage. Century does not seek any relief in the amended complaint.

Mary died of cancer in August, 1990, and the executrix of her estate was substituted as the defendant.

The amended complaint was brought in three counts. The first count sought foreclosure of Mary’s Water-town property. The second sought reformation of the note and mortgage to reflect the thirty year maturity date and to substitute the description of Mary’s Water-town property for Marie’s Wallingford property. The third count sought money damages on the note. The trial court refused to grant any of the plaintiff’s requests for relief and found, inter alia, that: (1) The signature on the revised note was forged by James George and was therefore not the signature of Mary E. George; (2) Mary George did not ratify the forged signature; (3) Freddie Mac possessed only the revised note; (4) Century Mortgage never paid the proceeds of the loan to either Mary George or to a third party designated by her but paid them to her son James George; (5) Mary E. George did not expressly authorize that the proceeds of the loan be paid to her son; and (6) Mary E. George never ratified the loan transaction after the fact.

The plaintiffs do not agree with some of the trial court’s findings and urge us to consider the evidence and reach different results. It is fundamental appellate jurisprudence that an appellate court does not retry the case and substitute its judgment for that of the trial court. Malmberg v. Lopez, 208 Conn. 675, 679, 546 A.2d 264 (1988). Rather, it is the function of the Appellate Court to determine whether the decision of the trial court is clearly erroneous. This involves a two part inquiry: (1) where the legal conclusions of the court are challenged, the Appellate Court must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; and (2) where the factual basis of the trial court’s decision is challenged the Appellate Court must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. Cookson v. Cookson, 201 Conn. 229, 242-44, 514 A.2d 323 (1986). On appeal, the Appellate Court will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 160, 510 A.2d 440 (1986).

We first address the plaintiffs’ claim that the trial court improperly refused to enforce the mortgage note. “A note and a mortgage given to secure it are separate instruments, executed for different purposes and in this state action for foreclosure of the mortgage and upon the note are regarded and treated, in practice, as separate and distinct causes of action, although both may be pursued in a foreclosure suit.” Hartford National Bank & Trust Co. v. Kotkin, 185 Conn. 579, 581, 441 A.2d 593 (1981). Here, the evidence supports the trial court’s finding that Freddie Mac had possession of only the forged note and the authentic original mortgage deed. It is undisputed that the plaintiffs sued on the original note, not the forged note. Furthermore, in view of the trial court’s finding that Freddie Mac did not possess the original note, it could not sue on a note that it did not possess. General Statutes § 42a-3-301. Thus, the trial court was correct in rendering judgment for the defendant on the third count.

We turn now to the count seeking foreclosure of the Watertown property with a mortgage describing the Wallingford property. Clearly, this cannot be done. The reformation count was the key to the plaintiffs right to foreclose. When the trial court denied reformation of the mortgage deed it left Freddie Mac with a useless instrument that did not grant Freddie Mac any interest that it could foreclose.

In addition to the obvious problem created by the defective mortgage deed, the trial court also found that Mary never received the proceeds of the mortgage loan, nor did she ratify payment of the proceeds to James. We agree with the trial court’s conclusion that conduct that might constitute ratification by sophisticated banking officials does not constitute ratification by a seventy-six year old widow who is dying of cancer. The trial court referred to cases in which defendants who had known for years of unauthorized payments but did not complain were estopped from raising the lack of authorization as a defense in an action to collect the debt. See, e.g., McKnight v. United States, 98 U.S. 179, 186, 25 L. Ed. 115 (1879); Los Angeles v. Los Angeles County, 9 Cal. 2d 624, 72 P.2d 138 (1937). The trial court succinctly stated “in McKnight, for example, the debtor was a government contractor, and in Los Angeles it was the City of Los Angeles. Do equity and justice require the same result with respect to Mary George that they did in the case of these sophisticated debtors? To ask the question is to answer it. . . . [Ejquity and justice do not require a conclusion that Mary ratified the unauthorized payment here. In fact, it is the plaintiffs who seek equitable relief . . . and that relief should be denied.”

We emphasize that foreclosure is an equitable action; City Savings Bank v. Lawlor, 163 Conn. 149, 155, 302 A.2d 252 (1972); and that a trial court has discretion, after a review of the equities, to withhold foreclosure. Lettieri v. American Savings Bank, 182 Conn. 1, 12, 437 A.2d 822 (1980); Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980); First New Haven National Bank v. Rowan, 2 Conn. App. 114, 118, 476 A.2d 1079 (1984). Our review of the record reveals that the trial court did not abuse its discretion in withholding foreclosure in the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although James owed money to the IRS it was a purely civil matter with no possible criminal ramifications.

       Both Mary’s and Marie’s mortgages were released at this time.

       Although judgment was rendered in favor of the defendant on all three counts, this appeal is limited to the first and third counts. The plaintiffs do not claim that the trial court improperly denied reformation of the original note and mortgage.

       The trial court referred to the forged note as the “Revised note.”

       Furthermore, Freddie Mac did not present the original of either mortgage note to the court. If a foreclosing mortgagee does not produce the original of a note, it must account for its whereabouts or how it was lost. Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 381, 494 A.2d 1216 (1985).

       Under General Statutes (Rev. to 1989) § 42a-3-301, “[t]he holder of an instrument whether or not he is the owner may transfer or negotiate it and, except as otherwise provided in section 42a-3-603 on payment or satisfaction, discharge it or enforce payment in his own name. ” (Emphasis added.) In order to “enforce payment” on the note, Freddie Mac must therefore be a “holder of an instrument.” “Holder” is defined under General Statutes § 42a-l-201 (20) as “a person who is in possession of ... an instrument . . . drawn, issued or endorsed to him or to his order or to bearer in blank.” For Freddie Mac to be a holder of the original note in question, there must be physical delivery. General Statutes (Rev. to 1989) § 42a-3-202 (1). Freddie Mac has only the forged note. As such, Freddie Mac is not a “holder” of the instrument and therefore can not enforce payment of the note.

       For a discussion on the necessity of reforming a mortgage deed to correct an error in the property description to reflect the precise property sought to be foreclosed see D. Caron, Connecticut Foreclosure (2d Ed. 1989) § 4.13.


author: Landau, J.

text:
    James Fetter v. Department of Revenue Services
    (12304)
    Landau, Schaller and Spear, Js.
    Argued April 4
    decision released August 2, 1994

      Richard M. Sheridan, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

      James J. Ruane, with whom, on the brief, was R. Joseph Gribko, certified legal intern, for the appellee (plaintiff).
   Landau, J.

The defendant, the division of special revenue of the department of revenue services (division), appeals from the judgment of the Superior Court sustaining the appeal of the plaintiff, James Fetter, and vacating the division’s decision revoking the plaintiff’s temporary license to play jai alai at licensed jai alai frontons in Connecticut. The division claims that the trial court improperly (1) applied the incorrect standard of review to the division’s decision to revoke the plaintiff’s license to play jai alai, (2) determined that a statement made by an absent third party was unreliable hearsay and, therefore, inadmissible, and (3) held that a specific regulation prohibiting a player from wagering on the results of jai alai games could not provide the basis for the suspension or revocation of the plaintiff’s license.

The following facts are relevant to this case. In the fall of 1990, the legalized gambling investigation unit (LGIU) of the state police initiated an investigation of possible illegal gambling activities of certain licensed jai alai players in Connecticut. The LGIU received information that Scott Hyatt, a jai alai game announcer, was involved in illegal bookmaking. The investigators seized garbage from outside of Hyatt’s residence. A search of the garbage produced three documents resembling gambling records that referred to the plaintiff. The LGIU then procured a search warrant of Hyatt’s residence; this search yielded additional documents that resembled gambling records with the name of the plaintiff written on them. At the time of the search, Hyatt told the investigating officer, Detective Richard Zaccagnino, that he operated a sports betting operation during the 1990 football season for which he charged a fee for the placement of wagers, and that the plaintiff had placed wagers with him during that time. The plaintiff was licensed to play jai alai at the jai alai frontons in the state.

After a hearing, the division of special revenue found that the plaintiff had engaged in unlawful professional gambling activities while licensed as a jai alai player. Such activity, the division held, rendered the plaintiffs “continued participation in jai alai inconsistent with the public interest and with the best interest of jai alai generally pursuant to § 12-574-D9a (d) of the Administrative Regulations [of Connecticut State Agencies], Operation of Jai Alai.” On this basis, the division revoked the plaintiff’s license to play jai alai, and denied him admission to and attendance at all facilities licensed by the gaming policy board and operated by the division of special revenue.

The plaintiff filed an appeal challenging the division’s decision in the Superior Court. The trial court vacated the decision of the division on the grounds that the evidence consisted of unreliable hearsay statements. The trial court also concluded, in the alternative, that even if the evidence supported the division’s conclusion that the plaintiff engaged in illegal gambling, such conduct could not constitute grounds for license revocation under § 12-574-D26 (k) of the regulations. The division filed this appeal.

The division claims that the trial court improperly found that § 12-574-D26 (k) of the regulations, which prohibits players from wagering on the results of jai alai games, cannot form the basis of the plaintiffs license revocation. We agree.

The trial court stated in its memorandum of decision that the plaintiffs “license was not revoked pursuant to [§ 12-574-D26 (k)]but, rather, pursuant to §§ 12-574-D9a and 12-574-E6 (d) (B) (iii) of the division’s regulations.” Yet, the court concluded that because § 12-574-D26 (k) itemized specifically prohibited conduct — wagering by players on the results of the jai alai games — itemization should be deemed exclusive. The trial court held that because the regulations relied on by the division in revoking the plaintiff’s license refer generally to licensees, as opposed to players, the statute containing the specific references to players’ conduct should prevail over the general. The trial court then concluded that the plaintiff’s conduct did not violate the specific regulation prohibiting wagering by jai alia players, and that, even if his conduct had violated General Statutes § 53-278b, “such conduct would not constitute grounds for a license revocation under the division of special revenue’s own regulations.”

Judicial review of the division’s decision is governed by the Uniform Administrative Procedure Act; General Statutes §§ 4-166 through 4-189. “With regard to questions of fact, it is neither the function of the trial court nor of this court ‘to retry the case or to substitute its judgment for that of the administrative agency.’ . . . ‘Judicial review of conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion . . . .’’’(Citations omitted.) Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). “[T]he court may not substitute its own balance of the regulatory considerations for that of the agency . . . .” Connecticut Light & Power Co. v. Dept. of Public Utility Control, 219 Conn. 51, 58, 591 A.2d 1231 (1991).

Applying the appropriate standard of review to the trial court’s actions, we conclude that the trial court exceeded its restricted power. The court was required to determine whether, in light of the evidence adduced at the hearing, the division acted reasonably, objectively and within its discretion in revoking the plaintiff’s license. Nevertheless, not only did the trial court weigh the evidence presented to the gaming board, and rule on it, but it also entertained new arguments from the plaintiff and applied a new regulatory scheme to the facts of this case. The gaming board did not base its decision to revoke the plaintiff’s license on a violation of § 12-574-D26 (k) of the regulations. In fact, the board’s decision makes no mention of this regulation. Therefore, for the court to hold, as it did, that the specificity of this regulation precludes the division from revoking the plaintiff’s license because of his illegal gambling activities was an abuse of its discretion.

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

In this opinion the other judges concurred.

       The defendant is the state department of revenue services, division of special revenue. “The division of special revenue, as established by § 12-557c of the General Statutes, is within the department of revenue services for administrative purposes only and is responsible for implementing and administering the provisions of chapters 226 and 226b of the General Statutes. The division is empowered to adopt regulations governing the operation of jai alai frontons and to [ejnsure the integrity and security of fronton operations. We assume for the purposes of this decision that the division of special revenue is an ‘agency.’ ” Herman v. Division of Special Revenue, 193 Conn. 379, 381-82, 477 A.2d 119 (1984).

       Section 12-574-D9a (d) of the Regulations of Connecticut State Agencies, concerning the operation of jai alai, provides: “If the division shall find that the financial responsibility, character and general fitness of the licensee are such that the continued participation of such person will not be consistent with the public interest, convenience or necessity, and with best interest of jai alai generally, in conformity with the purposes of the act, it shall thereupon revoke or suspend said license.”

       Section 12-574-D26 (k) of the Regulations of Connecticut State Agencies provides: “No player under contract at a fronton, or his wife or blood relatives, may wager money or any other thing of value on the results of games played at any board licensed fronton.”

       Because we determine that the defendant’s last claim has merit and reverse the judgment of the trial court on that basis, we do not address the defendant’s remaining claims.

       General Statutes § 53-278b provides: “(a) Any person who engages in gambling, or solicits or induces another to engage in gambling, or is present when another person or persons are engaged in gambling, shall be guilty of a class B misdemeanor; provided natural persons shall be exempt from prosecution and punishment under this subsection for any game, wager or transaction which is incidental to a bona fide social relationship, is participated in by natural persons only and in which no person is participating directly or indirectly, in professional gambling.
      “(b) Any person who engages in professional gambling shall be guilty of a class A misdemeanor.”


author: Heiman, J.

text:
    Allstate Insurance Company v. Regina Link
    (12486)
    Heiman, Schaller and Spear, Js.
    Argued April 29
    decision released August 2, 1994

      Raymond T. DeMeo, with whom, on the brief, was Stephen E. Goldman, for the appellant-appellee (plaintiff).

      Bruce D. Jacobs, with whom was Irene P. Jacobs, for the appellee-appellant (defendant).
   Heiman, J.

The plaintiff, Allstate Insurance Company, appeals from the judgment of the trial court correcting, modifying, and partially vacating an arbitration award of underinsured motorist benefits. On appeal, the plaintiff claims that the trial court improperly (1) stacked the applicable insurance policy benefits of the defendant, Regina Link, in determining that the tortfeasor’s vehicle was underinsured, and (2) declined to review the plaintiff’s claim of a right to a set-off against the arbitration award for workers’ compensation benefits to be awarded to the defendant in the future. The defendant cross appeals claiming that the trial court improperly reduced the amount of underinsured motorist benefits available to her by crediting to each Allstate policy the total amount paid out by the tortfeasor, thus crediting the plaintiff with double the amount actually expended by the tortfeasor’s liability carrier. We affirm the trial court’s judgment in part and reverse it in part.

The following facts are necessary for a proper resolution of this appeal and cross appeal. On October 24, 1986, Link was injured when the automobile she was driving was struck by a vehicle operated by Marc DeLuca. The parties agreed that the accident was caused by DeLuca’s negligence. DeLuca’s insurance company paid $100,000 to the defendant, exhausting the limits of DeLuca’s bodily injury liability coverage.

At the time of the accident, Link held two separate automobile insurance policies with Allstate. One policy covered two vehicles, and the other policy covered four vehicles. Each policy carried a separate policy number and provided for uninsured-underinsured motorist coverage limits of $100,000. Link claimed underinsured motorist benefits under both policies.

Link’s claims were presented to a panel of arbitrators pursuant to the mandatory arbitration clause contained in the Allstate policies. On June 16, 1992, the arbitrators determined that the tortfeasor was underinsured and that Link was, therefore, entitled to underinsured motorist benefits. The arbitrators determined that the amount of available underinsured motorist coverage was $600,000. From this amount, they credited Allstate with the $100,000 previously paid to Link by the tortfeasor, and $281,244 in workers’ compensation benefits received by Link as of May 26, 1992. The arbitrators declined to award Allstate a credit for any future workers’ compensation payments to Link.

Allstate thereafter filed an application with the trial court to vacate, correct, or modify the award pursuant to General Statutes §§ 52-418 and 52-419. Link filed a counterapplication to confirm the award. A hearing was held and the trial court found that (1) Link was entitled to underinsured motorist coverage under each of the two policies, (2) Allstate failed to provide the trial court with a sufficient record to afford review of the arbitrators’ decision to deny Allstate workers’ compensation benefits that will be paid to Link in the future, and (3) each policy should have deducted from its cumulative limit the sum of $100,000, thereby increasing by $100,000 the amount of the deduction from the policies originally allowed by the arbitrators.

Subsequent to the trial court decision, Allstate filed a motion to open the judgment for reconsideration and requested leave to file supplemental evidence in order for the trial court to determine the issue of future workers’ compensation benefits. That motion was denied.

I

Allstate first claims that the trial court improperly confirmed the decision of the arbitrators that the tortfeasor’s vehicle was underinsured. Specifically, Allstate claims that the arbitrators should not have stacked the underinsured motorist coverage for the various vehicles covered by Link’s policies in making this initial determination. We disagree.

“ ‘In reviewing compulsory arbitration cases, this court must conduct a de novo review of the arbitrator’s interpretation and application of the law. . . .’ (Citations omitted; internal quotation marks omitted.) Buell v. American Universal Ins. Co., 224 Conn. 766, 770, 621 A.2d 262 (1993).” Allstate v. Lenda, 34 Conn. App. 444, 447, 642 A.2d 22 (1994).

General Statutes § 38a-336 provides for a two step process for determining underinsured motorist benefits that begins with the initial determination that a tortfeasor’s vehicle is underinsured. Covenant Ins. Co. v. Coon, 220 Conn. 30, 36, 594 A.2d 977 (1991). Only after this initial determination, is made is the actual award to. the insured separately calculated. Id. “ ‘[I]n making the initial determination whether a [tortfeas- or’s] vehicle is underinsured, § 38a-336 clearly states that the aggregate of the liability limits under all of the tortfeasor’s policies are to be compared with the uninsured motorist coverage limit of the policy against which a claim is made. The statute unequivocally refers to the [tortfeasor’s] liability provisions in the plural but the [claimant] uninsured motorist provisions in the singular. Consequently, the analysis directed by § 38a-336 requires a comparison between the aggregate of [the tortfeasor’s] liability limits available to the victim against the underinsured motorist limits in each single policy against which the victim has a claim.’ ” (Emphasis in original.) Allstate Ins. Co. v. Lenda, supra, 34 Conn. App. 448, quoting Covenant Ins. Co. v. Coon, supra, 35-36. In short, a separate comparison must be made between the total amounts available under any policies held by the tortfeasor and each of the two policies held by Link.

Although the language of General Statutes § 38a-336 as interpreted; Covenant Ins. Co. v. Coon, supra, 220 Conn. 35-36; prohibits interpolicy stacking in making the initial determination of whether a tortfeasor’s vehicle is underinsured, this court’s recent decision in All state Ins. Co. v. Lenda, supra, 34 Conn. App. 448, has made clear that intrapolicy stacking is permitted. “The availability of [intrapolicy] stacking depends upon the reasonable expectations of the parties to the contract, a determination to be gleaned from the facts and circumstances of each case.” Kent v. Middlesex Mutual Assurance Co., 226 Conn. 427, 437, 627 A.2d 1319 (1993).

Neither Link nor Allstate argued or presented evidence to the arbitration panel or the trial court regarding whether Link could have reasonably expected the underinsured motorist coverage under each of her policies to be stacked. The plaintiff does not raise the issue in its brief, and “[a]n appellant who fails to brief a claim abandons it.” Practice Book § 4065; State v. Zarick, 227 Conn. 207, 221, 630 A.2d 565, cert. denied, U.S. , 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993). We therefore do not address the issue and presume that intrapolicy stacking is proper as the plaintiff has not attacked the decision on these grounds. Allstate Ins. Co. v. Lenda, supra, 34 Conn. App. 448 n.6.

The trial court properly determined that the DeLuca automobile was underinsured as to each of Link’s policies and that Link was entitled to collect underinsured motorist benefits under each policy. After intrapolicy stacking, Link was entitled to $200,000 in underinsured motorist coverage on the policy that covered two cars, and $400,000 on the policy that covered four cars. Thus, each of these policies was greater than the $100,000 of coverage under the tortfeasor’s policy, thereby making the tortfeasor underinsured with respect to both policies.

II

The plaintiff next claims that the trial court improperly declined to review its claim regarding future workers’ compensation benefits to be awarded to Link. Generally, § 38a-334-6 of the Regulations of Connecticut State Agencies (formerly § 38-175a-6) provides that an insurer’s liability for underinsured motorist coverage may be reduced “to the extent that damages have been . . . paid or are payable under any workers’ compensation or disability benefits law.” The trial court found that Allstate failed to provide the court with a record of the arbitration proceedings and failed to cite to any factual evidence on which the arbitrators could have determined the value of any future award.

The trial court cannot review the award of the arbitration panel regarding the future workers’ compensation benefits without an adequate record. General Statutes §§ 52-418 and 52-419 require the trial court to find specific improprieties of the arbitration panel before the award may be vacated, modified, or corrected. It is impossible and unrealistic to require the trial court to make any determination absent the record of the arbitration proceedings. Just as we require an appellant to provide an adequate record for this court to review the trial court upon appeal; see Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993); the trial court must require the same. We cannot expect the trial court to have extrasensory powers not possessed by this court.

Allstate also asserts that the trial court improperly denied its motion to open and to file supplemental evidence in the form of Link’s projected future medieal costs submitted during the arbitration proceedings. We are unpersuaded.

“Once a judgment has been rendered it is to be considered final and it ‘should be left undisturbed by post-trial motions except for a good and compelling reason.’ Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983).” TLC Development, Inc. v. Planning & Zoning Commission, 215 Conn. 527, 533, 577 A.2d 288 (1990); Ducci Electrical Contractors, Inc. v. Dept. of Transportation, 28 Conn. App. 175, 611 A.2d 891 (1992). “A motion to open and vacate a judgment is addressed to the discretion of the trial court, and we will not disturb the action of the trial court on appeal unless it acted unreasonably and in clear abuse of discretion.” TLC Development, Inc. v. Planning & Zoning Commission, supra, 533-34. The burden of proving such an abuse of discretion rests on the appellant. Cahn v. Cahn, 225 Conn. 666, 678, 626 A.2d 296 (1993); Curry v. Burns, 33 Conn. App. 65, 74, 633 A.2d 315 (1993).

The plaintiff contends that it did not present to the trial court the factual evidence that it presented to the arbitrators because it did not think the trial court could make its own factual determination as to the amount of future workers’ compensation benefits. In denying the plaintiff’s motion to open, the trial court made clear that its denial was based on the plaintiff’s failure to provide a record supporting the contention that the arbitrators had a sufficient factual basis to determine the amount of future benefits. The reasons set forth in the trial court’s memorandum are not unreasonable, nor do they constitute an abuse of discretion. We can see no compelling reason why the trial court should have opened and reconsidered its decision or allowed the plaintiff to file supplemental evidence that it had available at the time of trial. We conclude that the trial court did not abuse its discretion. TLC Development, Inc. v. Planning & Zoning Commission, supra, 215 Conn. 533-34.

Ill

The defendant cross appeals claiming that the trial court improperly reduced the amount of underinsured motorist benefits awarded to her by crediting Allstate with twice the amount actually paid out by the tortfeasor, thus creating a windfall to the plaintiff and depriving Link of a payment of $100,000 due her that she did not receive. We agree.

The issue of the calculation of underinsured motorist benefits due. an insured party is entirely separate from the initial determination of whether in fact a tortfeasor is underinsured. Covenant Ins. Co. v. Coon, supra, 220 Conn. 33. Although interpolicy stacking is prohibited in the initial determination of whether underinsured motorist coverage is applicable, it is proper to aggregate the amounts available under the applicable policies in calculating the total amount of underinsured motorist coverage available to the insured. Id., 36.

Once the total amount of underinsured motorist coverage is calculated, § 38a-334-6 (d) (1) of the Regulations of Connecticut State Agencies provides that an insurance policy “may provide for the reduction of limits [of underinsured motorist liability] to the extent that damages have been . . . paid by or on behalf of any person responsible for the injury.”

The proper distribution of a tortfeasor’s credit between more than one insurance policy covering a single claimant is one of first impression. Most cases addressing the subject of reduction of underinsured motorist benefits for payments made by the tortfeasor have addressed the issue as it involves payments to multiple claimants in the same accident. In those cases, the decisions have focused on the precise language of the applicable insurance contract. For example, in Stephan v. Pennsylvania General Ins. Co., 224 Conn. 758, 621 A.2d 258 (1993), and its companion case, Buell v. American Universal Ins. Co., supra, 224 Conn. 766, the insurance policies at issue contained similar clauses allowing the insurer to reduce the damages owed to the claimant by the amount paid by the tortfeasor for “the bodily injury.” (Emphasis added.) Interpreting this language, the court determined that reductions were allowed only for payments made by the tortfeasor for the bodily injury sustained by the claimant, and not for any payments for the bodily injuries of others. By comparison, in Allstate Ins. Co. v. Lenda, supra, 34 Conn. App. 452, the applicable insurance policy provided that “[t]he limits of this coverage will be reduced by: (1) all amounts paid by the owner or operator of the uninsured auto . . . .” There, the court held that the language provided for reductions by all amounts paid by the tortfeasor, including amounts paid to other claimants as well as for payments made for damages other than bodily injury. Lenda further held that this policy language did not violate § 38a-334-6 of the Regulations of Connecticut State Agencies. Although these cases may stand for the proposition that a single claimant’s award may be reduced by more than that claimant actually received, in no case has a claimant received a reduction of more than the total amount paid out by or on behalf of a tortfeasor.

Some related cases that have not specifically addressed this issue, have implied that a tortfeasor’s contribution should be shared among the policies covering the insured. In Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 591 A.2d 101 (1991), the insured filed claims for underinsured motorist benefits under two insurance policies issued by separate insurance carriers. The arbitrators decided that the two insurance companies would share the tortfeasor’s credit proportionately to their coverage. Id., 651. This decision was upheld by the trial court, and was not disputed on appeal. Id., 653. Similarly, in Stephan v. Pennsylvania General Ins. Co., supra, 224 Conn. 761, the parties agreed at arbitration that the award would be prorated between the two insurance companies. This again was not disputed on appeal. Alternately, Aetna Casualty & Surety Co. v. CNA Ins. Co., 221 Conn. 779, 606 A.2d 990 (1992), upheld an arbitration award in which the entire amount of tortfeasor credit was subtracted from the liability of the primary insurance company, with the remainder of the award to be paid by the secondary insurer. In no case was each insurance company entitled to be credited with the entire sum paid by the tortfeasor.

The fact that the policies held by Link were issued by the same insurance company should not dictate a different result. The amount of damages paid by the tortfeasor may reduce the total amount of underinsured motorist benefits available to a claimant. It may not reduce the amounts paid out by each policy. To hold otherwise would mean that an award due an insured is reduced unfairly by twice the amount actually paid out by or on behalf of the tortfeasor and that an insurer is entitled to double the tortfeasor’s credit merely by issuing separate policies. Such a result would be unfairly detrimental to the insured.

The trial court improperly determined that only $400,000 of underinsured motorist coverage was available to Link after the insurance company was credited with the amount paid to Link by the tortfeasor. Rather, Link was entitled to have available a total of $600,000 in underinsured motorist benefits under the two Allstate policies. From this total, Allstate should have been credited with only the $100,000 actually paid by the tortfeasor, as well as with the $281,244 contribution of workers’ compensation benefits actually paid.

The judgment is reversed in part as to the issues raised on the cross appeal and the case is remanded with direction to render judgment as on file except as modified to reduce the offset to a cumulative total of $100,000 in tortfeasor credit. As to the issues raised on the appeal, the judgment is affirmed.

In this opinion the other judges concurred.

       “Stacking refers to the ability of the insured, when covered by more than one insurance policy, to obtain benefits from a second policy on the same claim when recovery from the first policy alone would be inadequate. Nationwide Ins. Co. v. Gode, 187 Conn. 386, 388 n.2, 446 A.2d 1059 (1982).” (Internal quotation marks omitted.) Covenant Ins. Co. v. Coon, 220 Conn. 30, 31 n.2, 594 A.2d 977 (1991).

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

       General Statutes § 52-419 provides in pertinent part: “(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated, or, when the court is not in session, any judge thereof, shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.”

       General Statutes § 38a-336 (formerly § 38-175c) provides in pertinent part: “(d) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section.”

       “Intra-policy stacking is the aggregation of the limits of liability for uninsured-motorist coverage of each car covered in one policy, whereas inter-policy stacking involves the aggregation of coverage under more than one policy.” (Internal quotation marks omitted.) Nationwide Ins. Co. v. Gode, 187 Conn. 386, 388 n.2, 446 A.2d 1059 (1982).

       In its memorandum of decision, the trial court stated: “At the time the court heard the plaintiff’s motion to vacate, correct, or modify award, the plaintiff failed to introduce a record of the arbitration proceedings. Contrary to the plaintiff’s assertion in its brief in support of its motion to open the judgment, the court never concluded that the court, rather than the arbitrators, should determine the amount of future compensation benefits. It was incumbent on the plaintiff to produce a record to support its contention that the arbitrators had a sufficient factual basis to determine that amount of workers’ compensation benefits which might be awarded in the future. In the absence of a factual basis for making such a determination, the arbitrators could not err by failing to make such a determination.”


text:
    Myrna Kinne v. Amy DeBesse et al.
    (12790)
    Foti, Lavery and Freedman, Js.
    Argued June 3
    decision released August 2, 1994

      Constance L. Epstein, with whom, on the brief, were Jack G. Steigelfest and Ruth A. Tower, for the appellants (named defendant et al.).

      Irena J. Urbaniak, with whom, on the brief, was Sharon L. Ramsay, for the appellee (defendant and third party defendant George Kinne).
   Lavery, J.

The defendants and third party plaintiffs Amy DeBesse and Nancy DeBesse, appeal from the summary judgment rendered in favor of the defendant and third party defendant George Kinne. On appeal, the third party plaintiffs claim that the trial court improperly found that no genuine issue of material fact existed regarding Kinne’s negligence. We reverse the judgment of the trial court.

This action resulted from an automobile accident in which an automobile driven by Amy DeBesse struck George Kinne’s automobile from behind. At the time of the accident, DeBesse was driving a car owned by her sister, Nancy DeBesse; the plaintiff, Myrna Kinne, was a passenger in the car driven by George Kinne. The plaintiff sued the DeBesses claiming damages resulting from negligence. The DeBesses impleaded and filed a third party complaint against George Kinne, grounded in negligence.

George Kinne moved for summary judgment, claiming that there existed no genuine issue regarding his alleged negligence. The motion was supported by transcripts of the depositions of Amy DeBesse, Myrna Kinne, and George Kinne, together with the police accident report, and an affidavit of George Kinne. The trial court found that there was no genuine issue regarding George Kinne’s alleged negligence and granted summary judgment over the objections of the DeBesses.

The standards governing our review of a trial court’s decision on a motion for summary judgment are clear. Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991); Trotta v. Branford, 26 Conn. App. 407, 409, 601 A.2d 1036 (1992). While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment; see D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); “the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . .” (Citations omitted; internal quotation marks omitted.) Bassin v. Stamford, 26 Conn. App. 534, 537, 602 A.2d 1044 (1992). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). “ ‘The test is whether a party would be entitled to a directed verdict on the same facts. (Internal quotation marks omitted.) Trotta v. Branford, supra, 410.’ ” Cortes v. Cotton, 31 Conn. App. 569, 573, 626 A.2d 788 (1993).

The evidence before the trial court reveals that the accident occurred at the intersection of Water Street and Crystal Avenue in New London. The intersection is controlled by a traffic signal. Crystal Avenue intersects with Water Street from the east, and does not continue west beyond Water Street. Kinne’s car was located in the left lane of Water Street, headed north, when struck. Kinne admitted in his deposition that he was stopped, waiting to turn and head south on Water Street. The parties disagreed on the color of the traffic signal at the time of the accident and whether the left lane of Water Street was reserved for left turns.

On the basis of this evidence, the trial court found that Kinne had demonstrated that no genuine issue existed regarding his negligence. Further, the trial court ruled that the DeBesses had not rebutted that demonstration. We note that the trial court must view the evidence in the light most favorable to the nonmovant. Id. In this case, such a view reveals that the evidence supports the contentions of the third party plaintiffs. If the traffic signal was green and if the left lane was not reserved for left turns, a trier of fact could reasonably conclude that Kinne acted negligently by attempting a U-turn at that intersection at that time. Thus, Kinne would not be entitled to a directed verdict on these facts. Therefore, a genuine issue of material fact exists and the trial court improperly granted summary judgment.

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

In this opinion the other judges concurred.