text:
    William Haines et al. v. Zoning Board of Appeals of the Town of Oxford
    (9596)
    Norcott, Lavery and Landau, Js.
    Argued September 30
    decision released December 3, 1991

      Gerald M. Gallant, for the appellant (defendant).

      Joseph E. Sakai, for the appellees (plaintiffs).
   Norcott, J.

The defendant zoning board of appeals of the town of Oxford appeals from the judgment of the trial court sustaining the plaintiffs’ appeal from the board’s denial of their variance application. On appeal, the defendant argues that the trial court (1) improperly based its decision on the defendant’s prior approval of a separate variance application filed by a different applicant pertaining to another parcel of land on the same road, (2) failed to review the entire record in order to find a basis for the board’s action, (3) ignored the issue of self-inflicted hardship, and (4) improperly placed upon the defendant the burden of proof.

The facts pertinent to this appeal are as follows. The property involved is a 3.36 acre lot (no. 81) located on Hemlock Trail, an unapproved private dirt road less than fifty feet wide in the town of Oxford. The plaintiffs had planned to build a residence on their lot and to use Hemlock Trail as the access road. The trial court noted in its memorandum of decision that “Hemlock Trail is a private right-of-way running northerly from Little Punkup Road, a public highway. Lot 81 is about 2000 feet north of the point where Hemlock Trail and Little Punkup Road meet. Hemlock Trail varies in width from 12 to 45 feet.” There are seven existing residences on the road, which is located in a one-half acre residential zone.

Article 6, section 4, of the Oxford zoning regulations requires that a private right-of-way be fifty feet or more in width if the right-of-way is used as the only means of access to more than one lot. Hemlock Trail did not meet the requirement of the regulations that a private right-of-way be fifty feet wide where there are two lots. Thus, access became the plaintiffs’ basic problem. Accordingly, they filed an application for variance, seeking relief from the frontage and access requirements of the regulations.

The plaintiffs principally argued before the board that (1) seven residential lots already use Hemlock Trail for exclusive access, (2) they, with the support of some of these residents, were willing to pay for the improvement and maintenance of the road, and (3) in 1984 the defendant had granted the same variance as presently requested by the plaintiffs to Thomas Markovich after Markovich had been initially denied a certificate of approval to rebuild a residence on Hemlock Trail that had burned down nine years before he applied for a variance.

On May 8,1989, the board failed to obtain a quorum and the matter of the plaintiffs’ application was continued for a special meeting to be conducted May 15, 1989. At that meeting, five members were present, but only four acted on the application. A fifth member, John Passander, was present but abstained from participating in the matter. After a public hearing, the board initially voted to approve the application by a three to one vote, and then unanimously voted to deny the application without prejudice since the four affirmative votes, necessary for variance approval pursuant to General Statutes § 8-7 were lacking. The vote to deny the application without prejudice allowed the plaintiffs the opportunity to resubmit their application when five members could act on it without any abstentions. The plaintiffs appealed the denial of their variance to the trial court, which sustained the appeal. Thereafter, this appeal ensued.

In the present appeal, the defendant principally argues that the trial court improperly used the Markovich variance as the basis for its action sustaining the plaintiffs’ appeal, and that the court ignored the matter of the plaintiffs’ self-created hardship. We agree.

The ultimate issue in this appeal, of course, is whether the trial court correctly concluded that the defendant board’s denial of the variance was arbitrary, illegal and an abuse of its discretion. D&J Quarry Products, Inc. v. Planning & Zoning Commission, 217 Conn. 447, 453, 585 A.2d 1227 (1991); Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988); Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980). Courts must not substitute their judgment for that of the board. Whittaker v. Zoning Commission, supra; Koproski v. Zoning Board of Appeals, 162 Conn. 635, 636, 295 A.2d 564 (1972); Fernandes v. Zoning Board of Appeals, 24 Conn. App. 49, 53, 585 A.2d 703 (1991); Horn v. Zoning Board of Appeals, 18 Conn. App. 674, 676-77, 559 A.2d 1174 (1989); Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164, 556 A.2d 1049 (1989).

A zoning board of appeals derives its authority to grant variances from General Statutes § 8-6 (3), which provides in pertinent part that the board may grant variances “with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured.” It is axiomatic that a variance is granted with respect to a particular piece of property; see Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972); and that the hardship peculiar to a particular piece of property must arise “from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner’s control.” (Citations omitted.) Stillman v. Zoning Board of Appeals, 25 Conn. App. 631, 636, 596 A.2d 1 (1991); see also 3 R. Anderson, American Law of Zoning (3d Ed. 1986) § 20.26 (“[t]he fact that one or more variances have been granted to landowners near the site of a proposed variant use does not constitute proof of undue hardship”). Each case must be decided on its own merits, and it follows that “[a] variance may not be justified on the ground that other variances had previously been issued in the immediate area.” 3 E. Yokley, Zoning Law and Practice (4th Ed. 1979) § 21-11; see 3 R. Anderson, American Law of Zoning (3d Ed. 1986) § 20.26 (“[t]he granting of a variance to one landowner does not require the granting of a similar variance to a second owner in the same neighborhood”); see also Dlugos v. Zoning Board of Appeals, 36 Conn. Sup. 217, 222, 416 A.2d 180 (1980). The board’s liberal discretion, however, is limited where it has previously acted on the same application relating to the same parcel. In such a situation, the zoning board of appeals is prohibited from reversing the previous decision unless the facts and circumstances have materially changed so as to affect the reason for the original decision and no vested rights have intervened. Laurel Beach Assn. v. Zoning Board of Appeals, 166 Conn. 385, 387, 349 A.2d 834 (1974). Here, we are not dealing with such a case.

In the present case, the board had not previously considered an application for a variance regarding the plaintiffs’ property. The plaintiffs, however, seem to believe that the board’s grant of a variance to Markovich in 1984 created for them a “wild card,” in the words of their attorney, which they could “tap” and “have [the Markovich] variance granted to us.” The trial court, in essence, agreed with this position. The crux of the court’s memorandum of decision is that the Markovich variance and the plaintiffs’ application are virtually identical, and therefore the board arbitrarily denied the plaintiffs their variance. We find that the court incorrectly reached this conclusion.

In addition to finding that the board improperly denied the plaintiffs a variance that was identical to one granted to another person at an earlier time, the court found that the board failed to discuss the question of hardship, access and the two lot access requirement set forth in the regulations. We again disagree with the trial court.

When a zoning board does not state the reasons for its decision on the record, the court must search the record to attempt to find some basis for the action taken. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988); Wardv. Zoning Board of Appeals, 153 Conn. 141, 144, 215 A.2d 104 (1965); Aitken v. Zoning Board of Appeals, 18 Conn. App. 195, 205, 557 A.2d 1265 (1989). Our review of the record reveals evidence of questioning, discussion and consideration of the very issues the court found that the board ignored. At the public hearing, the plaintiffs’ attorney himself put the issue of resident safety and access of emergency vehicles squarely before the board. One board member, Georgette Mills, pointedly asked, “What’s the hardship?” The transcript and minutes of the public and special hearing, in addition to the correspondence and exhibits presented to the board, are replete with evidence of information the board had before it relative to this application. There is no evidence that the board ignored the evidence in the record before it.

Furthermore, the record clearly reveals that any hardship the plaintiffs suffered was self-created. The answer to zoning board member Mills’ query “What’s the hardship?” is clear from an examination of the record: There is none. The plaintiffs purchased a parcel of land from a predecessor in title that had been improperly split, without an Oxford planning or zoning approval in 1979. Because the zoning regulations were clearly in effect at the time of the purchase, the plaintiffs purchased a piece of property that clearly was a nonconformity created by the predecessor in title and clearly did not qualify for residential construction. “Where the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance.” Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 300, 429 A.2d 883 (1980); Garibaldi v. Zoning Board of Appeals, supra, 239.

The board here was correct in denying the plaintiffs’ application for variance and, as such, the trial court was incorrect in its conclusion that the board acted improperly.

The judgment is reversed and the case is remanded with direction to render judgment affirming the decision of the zoning board of appeals.

In this opinion the other judges concurred.

       Article 6 of the Oxford zoning regulations provides in pertinent part: “SECTION 4. Lot Area, Shape, Frontage, and Access. Each lot shall have a minimum land area of one and one-half (11/2) acres and shall be of such shape that a square with 160 feet on each side will fit on the lot. Each lot shall also have a frontage of 175 feet or more on a public street or properly-bonded subdivision street or shall have an easement of access or private right-of-way at least 25 feet in width to a public street or properly bonded subdivision street. Only one lot may depend upon an easement of access or private right-of-way for exclusive access except that [it] the easement of access or private right-of-way is 50 feet or more in width to a public street or properly bonded subdivision street two lots may depend on such easement or right-of-way for exclusive access or shall have equivalent frontage or equivalent access to a properly bonded subdivision street.”

       The proposed house was never fully constructed because of the death of the then owner of the lot.

       General Statutes § 8-7 provides in pertinent part: “The concurring vote of four members of the zoning board of appeals shall be necessary to reverse any order, requirement or decision of the official charged with the enforcement of the zoning regulations or to decide in favor of the applicant any matter upon which it is required to pass under any bylaw, ordinance, rule or regulation or to vary the application of the zoning bylaw, ordinance, rule or regulation.”

       The plaintiffs also ask, in what we regard as an alternative basis to support the trial court’s decision, that we decide whether a zoning board member’s vote of abstention is to be regarded as an affirmative vote under Connecticut law. The plaintiffs cite no support for this proposition in zoning law. Furthermore, because it is clear that, from our review, Passander, the abstaining member, removed himself from any and all consideration both at the May 8 and May 15 meetings, this issue is wholly without merit.


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    Harry Hyatt v. City of Milford
    (9923)
    Daly, Lavery and Landau, Js.
    Argued September 23
    decision released December 3, 1991

      Michael C. Sohon, for the appellant (plaintiff).

      Marilyn J. Lipton, city attorney, for the appellee (defendant).
   Lavery, J.

The plaintiff, a retired city of Milford firefighter, appeals from a judgment rendered for the defendant after the trial court granted the defendant’s motion to dismiss. The issue presented is whether the plaintiff failed to exhaust his administrative remedies by bringing an action under General Statutes § 31-300 instead of bringing his heart and hypertension claim before the workers’ compensation commissioner. We affirm the judgment of the trial court.

The undisputed facts are as follows. In January, 1983, the plaintiff, then a Milford firefighter, discovered that he suffered from heart disease. He subsequently brought a claim under the heart disease and hypertension statute for policemen and firemen; General Statutes § 7-433c; before the workers’ compensation commission. The plaintiff retired from the defendant’s fire department in January, 1984. In January, 1985, the workers’ compensation commissioner awarded the plaintiff benefits under § 7-433c. The commissioner found that the defendant had a 25 percent permanent partial impairment which entitled him to 195 weeks of compensation at a maximum rate of $326 per week, subject to the limitations of General Statutes § 7-433b (b). For 195 weeks, the defendant paid the plaintiff the difference between the plaintiff’s pension amount and an amount equal to 100 percent of the weekly compensation paid to members of the defendant’s fire department in the same position that the plaintiff held at the time of his retirement. The difference came to $24.88 per week, or a total of $4851.60 for a period of 195 weeks. The 195 week period expired on October 21, 1987.

In October, 1990, the plaintiff filed this action. The plaintiff claims that by paying the plaintiff $4851 out of a total award of $63,570 (195 weeks times $326 per week) the defendant has deprived him of $58,714.40. The defendant filed a motion to dismiss claiming that the plaintiff failed to exhaust his administrative remedies before the workers’ compensation commissioner who has primary jurisdiction over heart and hypertension claims under § 7-433c, citing Grover v. Manchester, 165 Conn. 615, 353 A.2d 719 (1973). The plaintiff appeals from the granting of the motion to dismiss.

“It is a well settled principle of administrative law that a party may not bring a matter to the Superior Court without first exhausting available administrative remedies. Silverman v. New Haven, 19 Conn. App. 360, 364, 562 A.2d 562, cert. denied, 212 Conn. 812, 565 A.2d 537 (1989).” Lopiano v. Stamford, 22 Conn. App. 591, 594-95, 577 A.2d 1135 (1990). Indeed, the failure to exhaust applicable administrative remedies deprives the court of subject matter jurisdiction. Trigila v. Hartford, 217 Conn. 490, 493-94, 586 A.2d 605 (1991). We conclude that because the plaintiff failed to exhaust his administrative remedies pursuant to chapter 568 as required by § 7-433c, the motion to dismiss was properly granted.

The plaintiff’s claim is that he received a specific award of $63,570 and that he is entitled, under General Statutes § 31-300, to bring an action in Superior Court to enforce that award. The plaintiff’s claim relies principally upon McIntyre v. Standard Oil Co. of New York, Inc., 126 Conn. 491, 12 A.2d 544 (1940). In Mcln tyre, the voluntary agreement stated that the $6800 specific award was to be considered as an advanced commuted payment of compensation in a single lump sum. Id., 496. The court went on to say that “[a]n obvious purpose of commutation into a single lump sum is to effect an immediate determination of the rights of the employee and the liability of the employer as to the entire compensation by fixing the amount to be paid and accepted, with a single payment thereof instead of the usual weekly instalments or other periodical payments extending over the compensation period, due allowance, as by discount, being made for the advantages accruing thereby to the employee. When, as here, the award is so commuted and made presently payable, it thereupon becomes a final judgment. ... As such it is enforceable as provided in § 5251 of the General Statutes, at least in the absence of motion to reopen it.” (Citation omitted.) Id.

The plaintiff here, unlike that in McIntyre, received neither a commuted and currently payable nor a lump sum award pursuant to General Statutes § 31-302, but rather received an award of $326 for 195 weeks. In Grover v. Manchester, supra, our Supreme Court made it clear that the only procedural avenue for bringing claims under § 7-433c is chapter 568, which outlines the procedure to be followed by a claimant for workers’ compensation before recourse to the courts is available. The plaintiff’s claim in the present case can only be construed as an attempt either to modify his award into a lump sum payment or to interpret the payment method due under his award. The modification or interpretation of an award made by the workers’ compensation commissioner is the function of the workers’ compensation commission and not the Superior Court. General Statutes § 31-315; Welch v. Arthur A. Fogarty, Inc., 157 Conn. 538, 547, 255 A.2d 627 (1969); Forkas v. International Silver Co., 100 Conn. 417, 420, 123 A. 831 (1924).

While the Workers’ Compensation Act and § 7-433c are separate pieces of legislation, “[t]he procedure for determining recovery under General Statutes § 7-433c is the same as that outlined in chapter 568 . . . .” Bakelaar v. West Haven, 193 Conn. 59, 68, 475 A.2d 283 (1984). This is presumably because “the legislature saw fit to limit the ‘procedural avenue’ for bringing claims under section 7-433c to that already existing under chapter 568 rather than require the duplication of administrative machinery available under the workers’] compensation act and further burden the courts and the municipalities with additional litigation from claims by firemen and policemen pursuant to this legislation.” Plainville v. Travelers Indemnity Co., 178 Conn. 664, 671-72, 425 A.2d 131 (1979); Collins v. West Haven, 210 Conn. 423, 429-30, 555 A.2d 981 (1989); see Grover v. Manchester, supra, 617-18.

The crux of this case is the proper calculation of § 7-433c benefits and whether or how pension payments may reduce such benefits under § 7-433b. The administration and interpretation of § 7-433c benefits is a primary function of the workers’ compensation commissioner and the compensation review division. Those tribunals have developed a proficiency with §§ 7-433c and 7-433b, and have promulgated a body of law dealing with the interpretation of those statutory provisions. This is underscored by the fact that an appeal from the compensation review division is taken not to the Superior Court but to the Appellate Court. General Statutes § 31-301b; Practice Book § 2014 et seq.

The doctrine of exhaustion of administrative remedies is “designed to prevent piecemeal appeals of a litigant’s claims before an administrative agency.” Connecticut Natural Gas Corporation v. DPUC, 1 Conn. App. 1, 3, 467 A.2d 679 (1983); Connecticut Bank & Trust Co. v. CHRO, 202 Conn. 150, 155, 520 A.2d 186 (1987). This case should proceed through the workers’ compensation system.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-300 provides in pertinent part: “As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his award. The commissioner shall, as part of the written award, inform the employee or his dependent, as the case may be, of any rights the individual may have to an annual cost-of-living adjustment or to participate in a rehabilitation program under the provisions of this chapter. He shall retain the original award in his office. If no appeal from his decision is taken by either party within ten days thereafter, such award shall be final and may be enforced in the same manner as a judgment of the superior court.”

       General Statutes § 7-433c provides in pertinent part: “benefits for POLICEMEN OR FIREMEN DISABLED OR DEAD AS A RESULT OF HYPERTENSION OR heart disease. In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension . . . municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment .... The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.”

       General Statutes § 7-433b (b) provides: “Notwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act providing for a police or firemen benefit fund or other retirement system, the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any such member or his dependents or survivors, provided the total as such cumulative payments shall not exceed said one hundred per cent of the weekly compensation.”

       Workers’ Compensation Act, General Statutes § 31-275 et seq.

       General Statutes § 31-302 provides in pertinent part: “Compensations payable under this chapter shall be paid at such particular times in the week and in such manner as the commissioner may order, and shall be paid directly to the persons entitled to receive them unless the commissioner, for good reason, orders payment to those entitled to act for such persons; but when he finds it just or necessary, the commissioner may approve or direct the commutation, in whole or in part, of weekly compensations under the provisions of this chapter into monthly or quarterly payments, or into a single lump sum, which may be paid to the one then entitled to the compensation, and such commutation shall be binding upon all persons entitled to compensation for the injury in question.”


author: Per Curiam.

text:
    State of Connecticut v. Wilfred Hart
    (9511)
    Daly, O’Connell and Nokcott, Js.
    Argued September 11
    decision released December 10, 1991

      Kenneth A. Leary, for the appellant (defendant).

      C. Robert Satti, Sr., state’s attorney, with whom, on the brief, was Marcia A. Pillsbury, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from his conviction, after a jury trial, of several crimes arising from his sexual contacts with two underage girls. The sole issue on appeal is the propriety of admitting into evidence the testimony of a third female regarding sexual involvement with the defendant at a time when she was underage. We affirm the trial court’s judgment.

The following facts are relevant. The defendant was charged with various crimes of sexual misconduct. The victim, J, was fourteen years old when she moved into the defendant’s home. J’s parents were separated at that time and her mother consented to J’s living at the defendant’s house. J’s testimony detailed four incidents of sexual contact with the defendant.

During trial, the state notified the court that it intended to offer the testimony of C to testify about prior uncharged sexual misconduct committed by the defendant with her. In order to determine similarities between the proffered evidence and the testimony of the victim, the trial court heard the testimony out of the presence of the jury and ruled that the evidence would be admitted. The defendant excepted and this appeal followed.

C testified that she was fourteen years old when she met the defendant, who invited her to move into his home, and that she and the defendant had sexual intercourse numerous times during this period. Her testimony included details of their sexual relationship.

The issue before this court is the propriety of admitting C’s testimony as prior uncharged misconduct evidence. “Although as a general rule such evidence is inadmissible as proof of the . . . crime charged based on [the defendant’s] propensity to commit crimes, it is admissible for many other purposes, such as proof of intent, identity, malice, motive, a system of criminal activity, or an element of the crime.” State v. Mooney, 218 Conn. 85, 126, 588 A.2d 145 (1991). Although such evidence may prove the commission of other crimes by the accused, that alone does not render the evidence inadmissible as long as the evidence is material and relevant. State v. Jenkins, 24 Conn. App. 330, 335, 588 A.2d 648, cert. denied, 219 Conn. 903, 593 A.2d 132 (1991); see also 29 Am. Jur. 2d, Evidence § 325.

Furthermore, the probative value of the uncharged misconduct evidence must outweigh its prejudicial effect. State v. Jenkins, supra, 337. Such a balancing test is relegated to the sound discretion of the trial court. On appeal, review “ ‘is limited to whether the trial court’s rulings exceeded the latitude accorded its discretion in such matters. . . . Every reasonable presumption should be given in favor of the trial court’s ruling.’ ” (Citation omitted.) State v. Sierra, 213 Conn. 422, 435, 568 A.2d 448 (1990).

In the present case, the trial court articulated careful findings, detailing the similarities between the uncharged misconduct testimony and the testimony of the victim and concluded that these similarities coupled with only a few dissimilarities were sufficient to prove the existence of a common scheme or design. No useful purpose would be served by our rehashing in this opinion the sexual activities of these two underage females.

The findings are supported by the record and represent determinations within the discretion of the trial court. We conclude that the trial court did not abuse its discretion by admitting the testimony of C into evidence.

The judgment is affirmed.

       The defendant was convicted of four counts of sexual assault in the second degree, four counts of injury or risk of injury to or impairing the morals of a child, threatening, tampering with a witness, bribery of a witness, sexual assault in the first degree and accessory to sexual assault in the second degree.

       Although the defendant was charged with various sex related offenses involving two victims, the two cases were consolidated for trial. The evidence at issue in this appeal was offered only in the case involving J as the victim and was only permitted to be considered by the jury in the two counts of sexual assault in the second degree and two counts of injury or risk of injury to or impairing the morals of a child.


author: Foti, J.

text:
    Anthony J. Francoline v. Linda Klatt et al.
    (9659)
    Dupont, C. J., O’Connell and Foti, Js.

      Argued September 23
    decision released December 10, 1991

      Robert J. Reeve, with whom, on the brief, was Edward F. Scully, for the appellant (named defendant).

      Ann M. Siczewicz, for the appellee (plaintiff).
   Foti, J.

The named defendant appeals from the judgment rendered against her on her counterclaim alleging a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §§ 42-110a through 42-110q. The defendant filed the counterclaim in response to the plaintiff’s action for specific performance of an alleged contract for the sale of certain of the defendant’s real property. The defendant claims that the trial court applied an incorrect legal standard and that it failed to conclude from the facts found that a violation of CUTPA had been established as a matter of law. The defendant also claims that the court ruled incorrectly on certain evidentiary matters. We reverse the judgment.

The trial court found the following facts. The defendant owns a parcel of commercially zoned land in the town of Avon. On the property, which is known as 37 West Main Street, there is a freestanding garage and an old house that was used for offices. The plaintiff owns the property that abuts the defendant’s property to the west and south, and George Recck owns the adjacent real estate to the east of the defendant’s land. All three properties front on West Main Street.

The defendant purchased 37 West Main Street in 1982. She is an attorney admitted to the practice of law in this state and had conducted her law practice from that location until 1986, when she relocated to South Carolina. Both the plaintiff and Recck are in the real estate development business. The defendant has been renting the garage at 37 West Main Street to the plaintiff for the last five to six years. In either 1983 or 1984, the plaintiff approached the defendant and indicated that he was interested in either purchasing her property or entering into a joint venture to develop it. Nothing came from these discussions. In September, 1988, the plaintiff contacted the defendant to see if she was interested in selling 37 West Main Street to him. After a number of telephone calls, they orally agreed on a purchase price of $400,000.

By letter dated October 18, 1988, the plaintiff sent his version of the parties’ telephone agreement and requested that she sign the letter. The defendant made two changes to the proposal and initialed both changes. The first change was an addition stating “Buyer to pay Connecticut Transfer Taxes.” The second change substituted October for November as the time of the expiration of the leases of the buildings on the premises. The defendant then signed the letter as she had changed it and returned it to the plaintiff with an undated cover letter which the plaintiff received on November 3, 1988. He took no further action on the letter itself. The proposed agreement was by its terms subject to “a mutually agreeable Bond for Deed.” Ten percent of the purchase price of $400,000 (i.e., $40,000) was payable at the signing of a mutually agreeable bond for deed by November 11, 1989.

The plaintiff began discussing the development of the referenced property with one of his tenants, who claimed to need more space than the plaintiff had at his property to the west of the subject property. On January 7, 1989, the plaintiffs attorneys sent the defendant an unsigned “Purchase and Sales Agreement” for her review, enclosed with a cover letter. Shortly thereafter, the plaintiff telephoned the defendant and the two discussed the possibility of a tax free exchange of realty at no cost to the plaintiff.

On January 25, 1989, the defendant returned the “Purchase Agreement” which she had amended in four respects. First, she deleted a clause. Second, she added a sentence making the purchaser liable for transfer taxes and fees. Third, she removed a paragraph entitled “Purchaser's Default” and inserted a new paragraph. Last, she added a paragraph marked “Tax Free Exchange.” In addition, she completed a “Rent Roll” and a “Tenant Collateral Agreements” as requested by the plaintiff’s attorney. She signed the changed agreement, had her signature witnessed and notarized, and sent the changed agreement to the plaintiff with a cover letter dated January 25, 1989. The plaintiff received this correspondence on January 30, 1989.

The parties spoke on the telephone within a few days and discussed the changes that the defendant had made. They also discussed a sewer lien which was not mentioned in the agreement. Finally, they discussed the tax free exchange by which the plaintiff would purchase some property in South Carolina and swap it for the subject property.

On February 8, 1989, the plaintiff sent the defendant the “Purchase and Sales Agreement” signed by him, which had been witnessed and notarized. The plaintiff had initialed the defendant’s changes, crossed out one full paragraph, inserted another, and added a clause to another section. The defendant did not initial these changes, did not sign the document as changed by the plaintiff and did not return the document to the plaintiff. In late February, 1989, the plaintiff attempted to call the defendant but was unable to reach her. He left a message for her to call him. On February 27, 1989, the defendant returned the plaintiff’s call. He was not there. She left a message that she did not agree with his changes to the agreement and she instructed him to call her. The two did not talk further until the middle of March, when the plaintiff discovered that the defendant planned to sell the real estate to Recck and not to the plaintiff.

In mid-February, 1989, Recck had telephoned the defendant in regard to the sale of the realty in question. He had a bond for deed to purchase the realty to the east of the subject property which he purchased shortly thereafter. The defendant told Recck that the property was for sale at $425,000. Recck told the defendant that he would get back to her. After he had an engineer do a sketch, he called the defendant and accepted her offer. He then called his attorney to draft a bond for deed which he signed before a notary, his attorney, and witnesses. He then sent this document to the defendant on February 15, 1989. The bond for deed called for a closing on or before April 15, 1989. The two parties then executed a “Purchase and Sales Agreement” which provided that the closing would take place on April 15, 1989. To date, no closing has occurred.

The plaintiff had been told by his attorney to get the defendant’s signature on his changes to the agreement, and the plaintiff had sent the agreement to the defendant for her signature. The plaintiff, however, signed the altered agreement on the same pages as the defendant had signed earlier, prior to the changes. On the same date, he mailed the agreement to the defendant for her signature. In other words, the agreement now bearing the defendant’s signature had been changed after she signed it.

On March 16,1989, the plaintiff learned from one of the defendant’s tenants in the building on the subject premises that the defendant had agreed to sell the realty to Recck. On March 21, 1989, the plaintiff recorded the altered purchase and sales agreement on the town of Avon land records. On April 7, 1989, he commenced an action for, inter alia, specific performance of the alleged contract against the defendant, and recorded a lis pendens on the land records. The defendant demanded that the plaintiff remove the “agreement” from the land records and discharge the lis pendens. The plaintiff refused to do so.

In regard to the defendant’s CUTPA claim against the plaintiff, the trial court concluded that the claim lacked merit because “[t]he plaintiff thought and had concluded, after discussing the matter with his attorney, that he had an agreement with the defendant Klatt to buy the property. Under the circumstances, this court does not believe that the plaintiffs conduct offends public policy or is immoral or unscrupulous.”

The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce, and whether a practice is unfair depends upon the finding of a violation of an identifiable public policy. Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 257, 550 A.2d 1061 (1988). “[T]he subjective good faith of one who has in fact performed an unfair or deceptive act is not a defense to a CUTPA violation . . . .” Eamiello v. Liberty Mobile Home Sales, Inc., 208 Conn. 620, 654, 546 A.2d 805 (1988), appeal dismissed, 489 U.S. 1002, 109 S. Ct. 1104, 103 L. Ed. 2d 169 (1989). Connecticut courts, in adopting the federal “cigarette rule,” have considered the following criteria to determine whether certain practices violate CUTPA: “ '(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).’ ” FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244-45 n.5, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972); McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 567-68, 473 A.2d 1185 (1984); Conaway v. Prestia, 191 Conn. 484, 492-93, 464 A.2d 847 (1983). In this case, the trial court considered the correct legal standard in determining whether the plaintiff was liable under CUTPA.

The trial court found facts that are not disputed on appeal. The trial court found that the plaintiff had made changes to a document containing the defendant’s signature that purported to be a purchase and sale agreement between the parties. The plaintiff then recorded it on the land records. The court also found that the defendant never agreed to the amendments and that the plaintiff had altered and signed it himself on February 8,1989, the same day on which he proposed to the defendant that she accept his suggested modification. The court found that on March 21,1989, five days after learning that the defendant had an agreement to sell the realty to Recck, the plaintiff recorded the instrument in question, which he had knowingly altered after the defendant’s signature. The court concluded after making these findings that the plaintiff’s conduct did not offend public policy, as a result of the plaintiff’s subjective state of mind.

On review, we will not invade the factfinding province of the trial court or disturb its legal conclusions when they are sufficiently supported by the evidence before it. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256-57, 524 A.2d 610 (1987). We also recognize that the weight and credibility to be accorded witnesses is totally within the purview of the trier of fact. Temple v. Meyer, 208 Conn. 404, 407, 544 A.2d 629 (1988). “A matter of fact is a question of truth to be decided upon conflicting evidence. Ballentine’s Law Dictionary (3d Ed. 1969).” Sweet v. Sweet, 190 Conn. 657, 663, 462 A.2d 1031 (1983). While the finding of what practice or act was committed in CUTPA cases is an issue of fact; Edart Truck Rental Corporation v. B. Swirsky & Co., 23 Conn. App. 137, 145, 579 A.2d 133 (1990); DeMotses v. Leonard Schwartz Nissan, Inc., 22 Conn. App. 464, 466, 578 A.2d 144 (1990); there may be situations where the facts found are so egregious as to require a conclusion, as a matter of law, that there has been a violation of a public policy. Such circumstances may encompass acts that violate a criminal statute, or, as here, a flagrant abuse of the purposes of recordation.

Recording places on file, in a public place, the written evidence of an agreement, which may affect an interest in land. Our statutes allow a contract for the conveyance of land to be recorded so that notice to the world is given of a claimed equitable interest. General Statutes § 47-17. “It has always been the policy of our law that the land records should be the authentic oracle of title on which [anyone] might safely rely.” (Emphasis added.) Safford v. McNeil, 102 Conn. 684, 687, 129 A. 721 (1925). “ ‘The whole system [of recordation] would become of no value if [one] could not rely upon the records as he finds them.’ ” Wheeler v. Young, 76 Conn. 44, 49, 55 A. 670 (1903). The recording of an altered document contravenes the public policy of this state.

Violation of an identifiable public policy alone may be insufficient under certain circumstances to support a CUTPA violation. A-G Foods Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 217, 579 A.2d 69 (1990). Whether in this case the defendant has in fact proven a substantial injury in addition to the violation of public policy, and whether such is required must be determined by the trial court.

The judgment on the named defendant’s counterclaim is reversed and the matter is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       While there were two defendants named in the complaint, this appeal is taken by Linda Klatt only. The second defendant is George R. Recck. In this opinion, we -will refer to Klatt as the defendant.

       The defendant’s second amended counterclaim contains five counts. Only the second count is the subject of this appeal.

       In view of the conclusion reached, we find it unnecessary to address this claim.

       General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” By his pleadings, the plaintiff admits that he is a real estate developer.

       For the derivation of this name, see Siudyla v. ChemExec Relocation Systems Inc., 23 Conn. App. 180, 186 n.2, 579 A.2d 578 (1990).


author: Cretella, J.

text:
    Homart Development Company v. Planning and Zoning Commission of the Town of Watertown et al.
    (9967)
    Lavery, Landau and Cretella, Js.
    Argued September 23
    decision released December 10, 1991

      KarenP. Blado, with whom, on the brief, was AlyceL. Raboy, for the appellant (plaintiff).

      Thomas P. Byrne, for the appellees (defendants).
   Cretella, J.

This appeal arises from a judgment of the trial court dismissing the plaintiff developer’s appeal from the denial of its zone change application by the defendant planning and zoning commission. The plaintiff submitted the application in order to have certain land in Watertown redesignated as a Planned Regional Shopping District (PRSD) zone, pursuant to the town’s zoning regulations, as a precedent to the construction of the proposed Watertown Mall. The plaintiff argues that the trial court should not have upheld the action of the commission, claiming that it was illegal, arbitrary and an abuse of discretion for the commission to deny the zone change application on the basis of its desire to amend the PRSD regulations in the future. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. On August 7, 1989, the commission amended its zoning regulations to provide for a PRSD consisting of a minimum area of 100 acres upon initial creation. At that time, no areas were so designated on the Watertown zoning map. On August 23, 1989, the plaintiff applied for an amendment to the Watertown zoning map, seeking to change approximately 162 acres from various industrial zone designations to a PRSD zone. Public hearings were held on the application. On January 24, 1990, the commission voted, by a four to three margin, to deny the plaintiff’s application. The reason articulated by the commission for its denial was that it wanted to “tighten up” the PRSD regulations before applying them to a particular parcel of land so that the commission might retain greater control over development in PRSD zones.

Thereafter, the plaintiff appealed to the trial court seeking a reversal of the denial of its application for a zone change. After the trial court dismissed the appeal, we granted the plaintiff’s petition for certification to appeal to this court.

The plaintiff argues that the commission’s denial of the application was improper because its reason for the denial, as stated in the record, was its desire to change the PRSD regulations in the future to give the commission more control over development in PRSD zones. The plaintiff argues that this (1) amounts to an unauthorized, retroactive moratorium on the consideration of PRSD zone applications, (2) is not among the criteria specified in General Statutes § 8-2 that may be considered by a zoning authority in adopting regulations and setting district boundaries, and (3) conflicts with the requirements of General Statutes § 8-2h to apply the then existing zoning regulations to an application before a zoning authority. The plaintiff further argues that, because the commission failed to find that the plaintiff’s proposal did not comply with the PRSD regulations, the commission’s action was arbitrary and an abuse of discretion and the plaintiffs application must be granted. We do not agree.

The PRSD zone at issue here is a form of what is commonly referred to as a “floating zone.” “A floating zone is a special detailed use district of undetermined location in which the proposed kind, size and form of structures must be preapproved. It is legislatively predeemed compatible with the area in which it eventually locates if specified standards are met and the particular application is not unreasonable. ... It differs from the traditional ‘Euclidean’ zone in that it has no defined boundaries and is said to ‘float’ over the entire area where it may eventually be established.” (Citations omitted.) Sheridan v. Planning Board, 159 Conn. 1, 16, 266 A.2d 396 (1969); see also Pleasant Valley Neighborhood Assn. v. Planning & Zoning Commission, 15 Conn. App. 110, 114-15, 543 A.2d 296 (1988).

“[Wjhen a zoning board grants an application requesting it to apply a floating zone to a particular property, it alters the zone boundaries of the area by carving a new zone out of an existing one.” (Emphasis added.) Sheridan v. Planning Board, supra, 17. Accordingly, an application to apply a floating zone to a particular property, like the one at issue in this appeal, is a request for a zone change. Schwartz v. Town Plan & Zoning Commission, 168 Conn. 20, 24, 357 A.2d 495 (1975); Pleasant Valley Neighborhood Assn. v. Planning & Zoning Commission, supra. Our courts are loath to overturn a decision by a zoning authority denying a requested zone change. See, e.g., Goldfeld v. Planning & Zoning Commission, 3 Conn. App. 172, 177-78, 486 A.2d 646 (1985). “Only under certain circumstances, where the classification is found to be unjust, confiscatory or unconstitutional and the reasons for such a change are unusual and compelling, will the courts reverse the authority’s refusal to grant an application for a change of zone on the ground that the existing classification is found to be unjustified.” Cascio v. Town Council, 158 Conn. 111, 114, 256 A.2d 685 (1969).

Our Supreme Court’s comparison of a zoning authority’s action in regard to a floating zone with its power to grant special exceptions in Sheridan v. Planning Board, supra, underscores the wide discretion afforded to a zoning authority when passing on a request to designate land as part of the floating zone. “While the concept of a floating zone is similar to the established power of a zoning board to grant special exceptions, the two types of regulation may be distinguished. The special exception is the product of administrative action, while the floating zone is the product of legislative action. . . . Further, if a landowner meets the conditions set forth for a special exception, the board is bound to grant one, but in the case of a floating zone discretion is maintained and additional limitations may be imposed—more control is retained by the zoning board because it is acting legislatively.” (Citation omitted.) Id., 16.

A local zoning authority acting within its legislative capacity is endowed with the freedom to act or not to act as it deems appropriate to meet the needs and demands of the body politic, as it determines those needs and demands. “Balancing the preservation of the status quo with the reasonable pressures for change due to the growth in population and the onslaught of business needs and community requirements is a function of zoning which must best be resolved by the duly authorized legislative municipal body . . . .” Jablon v. Town Planning & Zoning Commission, 157 Conn. 434, 443, 254 A.2d 914 (1969). Thus, our Supreme Court has observed that when acting in its legislative capacity to enact or amend its regulations, a local zoning authority “must therefore be free to modify its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change. . . . The discretion of a legislative body, because of its constituted role as a formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function. ... A less strict rule would require the court to exercise a legislative judgment.” (Citations omitted.) Malafronte v. Planning & Zoning Board, 155 Conn. 205, 209, 230 A.2d 606 (1967); see Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 164, 479 A.2d 801 (1984); Central Bank for Savings v. Planning & Zoning Commission, 13 Conn. App. 448, 453, 537 A.2d 510 (1988). This broad legislative discretion applicable to the approval of a zone change is equally applicable to the denial of a requested zone change, and will not be disturbed on appeal unless the zoning authority has acted illegally or arbitrarily and has thus abused the discretion vested in it. Cascio v. Town Council, supra; Fenn v. Planning & Zoning Commission, 24 Conn. App. 430, 434-35, 589 A.2d 5, cert. denied, 219 Conn. 908, 593 A.2d 133 (1991); Goldfeld v. Planning & Zoning Commission, supra, 177-78; Coastal Suburban Builders, Inc. v. Planning & Zoning Commission, 2 Conn. App. 489, 492, 479 A.2d 1239 (1984).

The plaintiff assumes that if its proposed use of the land in question met all of the requirements of the PRSD regulations, then the commission was bound to grant the application for a zone change. This assumption, however, is fundamentally flawed. The inclusion of a floating zone within a town’s comprehensive zoning regulations does not alter the basic fact that when passing on an application to apply a floating zone, the zoning authority continues to act legislatively. Sheridan v. Planning Board, supra, 16. Nothing in our case law concerning the floating zone concept even remotely suggests that a zoning authority cannot refuse to apply a floating zone to a particular piece of property simply because the applicant has complied with all of the requirements of the regulations establishing the floating zone. By establishing such zones, the zoning authority has not thereby ceded any of its broad authority to exercise its legislative judgment with respect to the competing needs and demands presented by a request for a zone reclassification.

This reasoning leads us to conclude that the plaintiff’s claims that the denial of its application either amounts to an unauthorized, retroactive moratorium on the consideration of PRSD zone applications or conflicts with the requirements of General Statutes § 8-2h are without merit. First, no moratorium is at issue here. The commission denied the plaintiffs application for a specific reason which we evaluate in light of the evidence before the commission and in the context of the substantial discretion afforded to a zoning commission acting in its legislative capacity. Second, because an application to apply a floating zone is a request to change the boundaries of existing zoning districts, the mandate of § 8-2h cannot logically apply to such action. The provisions of § 8-2h; see footnote 1, supra; are directed at situations where an application is filed with a zoning authority that seeks to make use of land in a manner permitted under regulations existing at the time the application is filed. In those circumstances, § 8-2h requires the zoning authority, acting in its administrative capacity, to process the application in accordance with the regulations in effect at the time the application is filed. Nothing in the language or legislative history of Public Acts 1989, No. 89-311, which enacted § 8-2h, suggests that it was intended to require the approval of requests for zone reclassification or otherwise to diminish the legislative capacity of a zoning authority with respect to such requests.

At oral argument, the parties informed us that Watertown’s PRSD regulations were repealed subsequent to the commission’s action which gave rise to this appeal. Although we have concluded that § 8-2h is not applicable to this appeal, we do not find this appeal to be moot pursuant to McCallum v. Inland Wetlands Commission, 196 Conn. 218, 492 A.2d 508 (1985). There, it was held that the zoning law or regulation in effect at the time of the decision of a court is controlling, and that that appeal was therefore moot because a recent change in local zoning regulations precluded the applicant from obtaining the relief he originally sought. McCallum, however, did not involve an application for a zone change. Because shopping centers remain a permitted use in all business districts; Water-town Zoning Regs., art. Ill, § 33; and because the plaintiff can still seek a zone change; id., art. VIII, § 81; the repeal of the PRSD regulations does not preclude the plaintiff from obtaining the relief it seeks.

We now examine the record of the proceedings before the zoning commission. When we are required to review a decision made by a zoning commission in its legislative capacity, “it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached.” Primerica v. Planning & Zoning Commission, 211 Conn. 85, 96, 558 A.2d 646 (1989); Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979); see Fenn v. Planning & Zoning Commission, supra, 434-35. This often repeated standard of judicial review applicable to the legislative actions of local zoning authorities is but an application of the well settled principle that when municipal legislative bodies “are acting within the limits of the formal powers conferred upon them, and in due form of law, the rights of courts to supervise, review or restrain them is necessarily exceedingly limited.” LaTorre v. Hartford, 167 Conn. 1, 8-9, 355 A.2d 101 (1974); McAdam v. Sheldon, 153 Conn. 278, 281, 216 A.2d 193 (1965); Whitney v. New Haven, 58 Conn. 450, 457, 20 A. 666 (1890). “[A]ny broader rule would potentially involve the courts in the review and revision of many, if not all, major controversial decisions of the legislative . . . authorities of a municipality.” McAdam v. Sheldon, supra.

The record here reveals that there was voluminous evidence before the commission as a result of the hearings conducted on six days. Substantial evidence was offered by the plaintiff and others in support of the application, and substantial evidence was also offered by residents of the area and others in opposition to the application. The commission had the task of weighing that evidence and reaching a conclusion on the merits of the plaintiffs application. The evidence before the commission supported its conclusion that the existing regulations permitting the establishment of a PRSD zone were inadequate to protect the legitimate interests of the town of Watertown and its citizens as they related to land identified by the plaintiff.

From the record before us, then, it appears that the judgment of the commission to deny the plaintiff’s application for a zone change “has been reasonably and fairly exercised and honestly arrived at after giving proper consideration to the public welfare in evaluating the needs of [Watertown] in relation to the appropriate use of land contained therein.” Sheridan v. Planning Board, supra, 21. To conclude otherwise would undermine the flexibility inherent in the floating zone concept and would require us to substitute our judgment for that of the commission. We will do neither.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 8-2h (a) provides: “An application filed with a zoning commission, planning and zoning commission, zoning board of appeals or agency exercising zoning authority of a town, city or borough which is in conformance with the applicable zoning regulations as of the time of filing shall not be required to comply with, nor shall it be disapproved for the reason that it does not comply with, any change in the zoning regulations or the boundaries of zoning districts of such town, city or borough taking effect after the filing of such application.”


author: Daly, J.

text:
    Terri Olshefski v. Jeffrey R. Stenner et al.
    (9887)
    Daly, Foti and Lavery, Js.

      Argued October 3
    decision released December 10, 1991

      Joseph T. Sweeney, for the appellants (named defendant et al.).

      Lawrence L. Connelli, for the appellee (plaintiff).
   Daly, J.

The named defendant and his defendant corporation appeal from a judgment in favor of the plaintiff for injuries the plaintiff sustained while on the premises of the defendants’ tavern. The defendants claim that the trial court incorrectly instructed the jury as to (1) the nature and the scope of the plaintiff’s duty to exercise care for her own safety, (2) the definition of proximate causation and (3) the scope of the duty owed to business patrons of the defendants’ tavern. We agree with the defendants on their first claim and therefore reverse the judgment.

The jury could reasonably have found the following facts. The plaintiff, accompanied by a friend, was walking toward the defendants’ tavern in Canton on May 6, 1988, when she encountered a dog tied to a bush. The dog, a pitbull terrier weighing approximately eighty pounds, was near the front of the tavern’s premises by a sidewalk leading to the entrance. The dog’s owner had tied it to the bush before entering the tavern. On six previous occasions, the owner had tied his dog to that bush while at the tavern. On one other occasion, he brought the dog into the tavern but was told by the management to remove the dog.

As the plaintiff and her friend approached the tavern, the dog was sitting on its hind legs. The friend proceeded to walk in front of the plaintiff and told her to “be careful, the dog does not look too friendly.” It is unclear whether the plaintiff even heard this statement. She then approached the dog by bending down and extending her hand toward the dog in an attempt to pet it. It then lunged at the plaintiff and bit her on the nose. The manager of the tavern, who was working the night of the attack, testified that he was unaware of the dog’s presence on the tavern’s premises but he was aware that the owner had on previous occasions tied his dog to that bush. No employee of the tavern knew of the dog’s location on the night of the attack. Stenner was not working at the tavern when the attack occurred. He had no knowledge of this dog’s ever having been tied to a bush on the tavern’s premises. The jury assessed the relative negligence of the plaintiff to be 0 percent and the defendants, 100 percent. The jury awarded the plaintiff $127,415.54.

The defendants claim that the trial court’s jury instructions failed to explain properly and completely the issue of contributory negligence, which is the duty of the plaintiff to exercise reasonable care to avoid harm to herself. The defendants’ ninth request to charge asked the court to explain that “with respect to those claims of negligence on the part of the plaintiff . . . the law did impose upon her the duty to be watchful of her surroundings and to watch what she was doing and to exercise ordinary care, both to avoid dangers known to her and to discover dangers to which she might expose herself. In connection with that duty, the law conclusively presumes that the plaintiff . . . knew and appreciated any dangers which, under the same or similar circumstances, would have been known or appreciated by an ordinarily prudent person.” This request to charge was based on Sitnik v. National Propane Corporation, 151 Conn. 62, 65, 193 A.2d 503 (1963), and Farkas v. Halliwell, 136 Conn. 440, 445, 72 A.2d 648 (1950). Defense counsel objected to the court’s refusal to give this instruction on the meaning of contributory negligence. The objection was overruled and the defendant took an exception.

The court defined common law negligence “as the doing of something which a reasonably prudent person would not do under the particular circumstances or the omitting to do what a reasonably prudent person would do under the particular circumstances. It is the breach of a legal duty owed by one person to another and such legal duty is the exercise of reasonable care.” The court read the following special defense raised by the defendants: “[A]ny injuries, losses or damages, which the plaintiff [Olshefski] may have suffered as a result of the incident alleged in her complaint, were directly and proximately caused by her own hereinafter described negligence which was a substantial factor in producing that accident.” It also further listed all the specific special defenses alleged by the defendants. The court then explained the doctrine of comparative negligence to the jury. There was no instruction as to the plaintiff’s duty to avoid dangers or the meaning of contributory negligence in this case.

When reviewing the propriety of a trial court’s charge to the jury, we must determine “ ‘whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.’ ” Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 240, 520 A.2d 1008 (1987); Borsoi v. Sparico, 141 Conn. 366, 371, 106 A.2d 170 (1954). Jury instructions do not have to be “ ‘exhaustive, perfect or technically accurate’ ” but they must be “ ‘correct in law, adapted to the issues and sufficient for the guidance of the jury.’ ” Tesler v. Johnson, 23 Conn. App. 536, 538, 583 A.2d 133 (1990), cert. denied, 217 Conn. 806, 584 A.2d 1192 (1991).

The instructions to the jury failed to explain adequately the meaning of contributory negligence, which is still recognized as a limitation on the plaintiff’s ability to recover damages under Connecticut’s comparative negligence doctrine. See General Statutes § 52-572h (b). The court defined the meaning of only common law negligence. The definition of contributory negligence is distinct from the definition of negligence. Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 501, 365 A.2d 1064 (1976). “ ‘Contributory negligence is conduct which involves an undue risk of harm to the person who sustains it.’ ” Id., quoting 2 Restatement (Second), Torts § 463, comment b. Negligence involves behavior that results in creating “an undue risk of harm to others.” 2 Restatement (Second), supra. The defendants’ ninth request to charge correctly explained the meaning of contributory negligence as being different from the concept of common law negligence.

A charge to the jury does not have to incorporate the exact requests by the parties as long as the court correctly states the governing law. Mei v. Alterman Transport Livies, Inc., 159 Conn. 307, 311, 268 A.2d 639 (1970). There was evidence from which the jury could conclude that the plaintiff’s conduct constituted an undue risk of harm to herself. Thus, the determination of the plaintiff’s contributory negligence presented “a submissible question for the jury” that the court had to explain properly. Pisel v. Stamford Hospital, 180 Conn. 314, 329, 430 A.2d 1 (1980) The reference to contributory negligence in the charge without a proper explanation of its meaning rendered the charge insufficient to guide the jury’s discretion in reaching their verdict. See Tester v. Johnson, supra (the charge mentioned proximate cause but did not give a specific definition that would allow the jury to determine if there was adequate proof of causation). The court’s failure to instruct the jury as requested on contributory negligence, a material issue, constitutes reversible error. In view of our ruling on this issue, it is unnecessary to consider the defendants’ remaining claims.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The defendant Rodney Martin, the owner of the dog, did not appeal from the judgment rendered against him. The named defendant, Jeffrey Stenner, and the defendant, P.D.L., Inc., the corporation owned by Stenner that operated the tavern where this incident occurred, are appealing from the judgment. Stenner and P.D.L., Inc., will be referred to as the defendants in this opinion.


author: Heiman, J.

text:
    Maynard S. Mason v. James F. Walsh et al.
    (9071)
    O’Connell, Lavery and Heiman, Js.
    Argued November 6
    decision released December 17, 1991

      Karen P. Blado, with whom, on the brief, was Cameron C. Staples, for the appellant (named defendant).

      Terence S. Hawkins, for the appellee (plaintiff).
   Heiman, J.

The defendant, James P. Walsh III, appeals from a judgment rendered on a verdict against him, awarding the plaintiff $75,000 in a medical malpractice action arising out of the defendant’s alleged failure to obtain the plaintiff’s informed consent to the administration of general anesthesia before surgery.

The defendant claims that the trial court improperly (1) admitted the testimony of the plaintiff’s expert witness into evidence, (2) charged the jury concerning the defendant’s duty to obtain the plaintiff’s informed consent, (3) permitted the jury to consider the case when the evidence was insufficient to prove that the administration of general anesthesia caused the plaintiff’s arrythmia, (4) permitted the jury to consider the case when the evidence was insufficient to establish that the defendant’s failure to obtain the plaintiff’s informed consent caused the plaintiff’s arrythmia, (5) permitted the verdict against the defendant to stand when it was inconsistent with the verdicts in favor of Sarwar and Guinazu, (6) refused to direct a verdict in the defendant’s favor or to grant his “Motion to Set Aside Verdict or in the alternative Motion for Judgment Notwithstanding the Verdict” and (7) permitted the verdict to stand when the amount awarded was excessive. We agree that the trial court improperly denied the “Motion to Set Aside Verdict or in the alternative Motion for Judgment Notwithstanding the Verdict,” and reverse the trial court’s judgment.

The jury could reasonably have found the following facts. In late 1982, the plaintiff consulted the defendant, a urologist, for the treatment of an infection caused by a hydrocele. In response to the defendant’s questions regarding his medical history, the plaintiff indicated that he had received general anesthesia in connection with a prior hydrocelectomy. Although the plaintiff had suffered from heart palpitations on several occasions, he denied any history of heart problems. While the plaintiff’s infection improved, the hydrocele ultimately required surgical treatment.

Before the plaintiff’s admission to St. Vincent’s Medical Center for surgery, the defendant informed the plaintiff of his recommendation that general anesthesia be employed during the surgery. The defendant recognized, however, that the anesthesiologist usually possessed the ultimate authority over the choice of anesthesia. In a separate consultation between the defendant and an anesthesiologist, the anesthesiologist agreed that general anesthesia was appropriate in this case.

The plaintiff was admitted to the hospital on February 27, 1983. On that evening, Hasan Sarwar, an anesthesiologist, met with the plaintiff. Sarwar introduced himself to the plaintiff as a member of the anesthesia department, reviewed the plaintiff’s medical records and questioned the plaintiff concerning his medical history, including the existence of any previous lung problems, jaundice, hepatitis or the use of anesthesia. On the basis of this information, Sarwar classified the plaintiff as a “category two” according to a descending scale, developed by the American Society of Anesthesiologists, designed to assess the strength of a patient’s candidacy for general anesthesia. Sarwar then noted the result of his evaluation on the plaintiff’s hospital chart.

On February 28, 1983, the morning of surgery, Alberto Guinazu, another anesthesiologist, met with the plaintiff in the holding area to the operating room to review the plaintiff’s chart and Sarwar’s preoperative anesthesia note, which indicated the specific anesthesia that Sarwar selected as a result of his examination of the plaintiff. Once inside the operating room, Guinazu administered a general anesthetic to the plaintiff in preparation for his impending surgery, which was to be performed by the defendant. Approximately seven or eight minutes after Guinazu began administering general anesthesia, the plaintiff suffered an incident of atrial fibrillation. Guinazu, in consultation with the defendant, decided to abort the operation and investigate the cause of the atrial fibrillation. The plaintiff was then brought out of his anesthetized state. The surgical procedure, which had not yet been commenced, was canceled. After the aborted surgery, a physician specializing in cardiovascular disease examined the plaintiff and stabilized his heart rate.

Several days later, the surgery was performed successfully using a local anesthetic. Because of the delay in his surgery, the plaintiff was discharged from the hospital several days later than had been anticipated. At the time of trial, the plaintiff remained under a physician’s care for his irregular heart rate and was unable to exert himself as he had before the atrial fibrillation. He required assistance at his job, and could neither work in his yard nor maintain his usual physical relationship with his wife.

At trial, the plaintiff claimed, inter alia, that the defendant, Sarwar and Guinazu each breached his respective duty of obtaining the plaintiff’s informed consent to the administration of general anesthesia. The defendant moved for a directed verdict at the completion of the evidence, arguing that the plaintiff failed to produce expert testimony indicating that the defendant was under a duty to inform him regarding the risks associated with the use of general anesthesia. The trial court reserved decision on the motion and committed the case to the jury, which returned verdicts in favor of Sarwar and Guinazu and against the defendant.

After the verdict against him was accepted and recorded, the defendant filed a timely “Motion to Set Aside Verdict or in the alternative Motion for Judgment Notwithstanding the Verdict.” See Practice Book §§ 320 and 321. In his postjudgment motion, the defendant again set forth his claim that the plaintiff failed to produce expert testimony to establish the existence of the defendant’s duty to advise the plaintiff of the risks attending the use of general anesthesia. Rather, the defendant argued, all the evidence indicated that the duty to inform rested with an anesthesiologist. The trial court denied the defendant’s motion, and this appeal followed.

“The theory of negligence . . . [applies] to cases in which it is alleged that the physician failed to obtain an informed consent.” (Emphasis in original.) Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 248, 522 A.2d 829 (1987). An informed consent action, however, differs from the ordinary negligence action in that the plaintiff must prove both the duty and the breach of that duty through expert testimony. Cross v. Huttenlocher, 185 Conn. 390, 393, 440 A.2d 952 (1981). In order to establish the existence of a duty to inform, the plaintiff must show through expert testimony that “the customary standard of care of physicians in the same practice as that of the defendant doctor was to obtain the patient’s consent prior to performing any operation.” Shenefield v. Greenwich Hospital Assn., supra, 248-49. Once the existence of the duty to inform has been established, the degree or extent of disclosure necessary to satisfy the duty must be proven in accordance with the lay standard. Logan v. Greenwich Hospital Assn., 191 Conn. 282, 292, 465 A.2d 294 (1983).

Where, as here, a surgeon engages one or more specialists to perform a portion of a procedure, the issue as to who has the duty to obtain the patient’s consent to that portion of the procedure to be performed by the specialist arises. It was incumbent upon the plaintiff to establish by expert testimony which of the physicians, if any, owed him the duty of disclosing sufficient facts to permit him to exercise an informed consent to the use of general anesthesia. See Shenefield v. Greenwich Hospital Assn., supra. In his appellate oral argument, however, the plaintiff correctly conceded that he did not produce expert testimony to establish that the defendant owed the plaintiff a duty to inform him regarding the risks associated with the use of general anesthesia. Indeed, no party produced expert testimony establishing that the defendant, a urologist, was under such a duty. Because the plaintiff offered no expert testimony showing that the customary standard of care among physicians in the same practice as that of the defendant was to obtain the patient’s informed consent to the method of anesthesia, the jury was left to resort to surmise, guess, conjecture and speculation as to whether the duty of disclosure rested on the defendant, as opposed to one of the anesthesiologists. See Krause v. Bridgeport Hospital, 169 Conn. 1, 7, 362 A.2d 802 (1975). As a result, the jury could not reasonably and legally have reached a conclusion other than one in the defendant’s favor, and the trial court improperly refused to grant either the defendant’s motion for directed verdict or his posttrial motion to set aside the verdict. See id., 3-4.

In light of our resolution of this claim, it is unnecessary to address the other issues raised by the defendant.

The judgment is reversed, and the case is remanded with direction to grant the named defendant’s motion to set aside the verdict and to render judgment in favor of the defendant.

In this opinion the other judges concurred.

       The original defendants were Walsh, Hasan Sarwar, Alberto Guinazu and St. Vincent’s Medical Center. St. Vincent’s Medical Center was awarded summary judgment. The jury returned verdicts in favor of Sarwar and Guinazu. Only Walsh appealed from the judgment. The original plaintiffs were Maynard S. Mason and Evelyn Mason, who sought damages for loss of consortium. The jury found in favor of Evelyn Mason but awarded her “No Dollars.” She took no appeal from that judgment. For the purposes of this appeal, therefore, the word plaintiff refers only to Maynard S. Mason, and the word defendant refers only to Walsh.

       The scale distinguishes between five categories. The strongest candidates for anesthesia are classified as “category one.” The weakest candidates are classified as “category five.”


text:
    Donna Goral v. Charles H. Kenney
    (9714)
    Dupont, C. J., Norcott and Heiman, Js.

      Argued October 2
    decision released December 17, 1991

      Karen P. Blado, with whom, on. the brief, was Ann E. Lynch, for the appellant (defendant).

      Peter A. Kelly, for the appellee (plaintiff).
   Heiman, J.

The defendant, Charles H. Kenney, appeals from a judgment rendered on a verdict for damages of $326,500 in favor of the plaintiff. The action arose out of the plaintiffs claim of dental malpractice by the defendant.

On appeal, the defendant asserts that the trial court improperly (1) instructed the jury that it was not to draw any adverse inference from the fact that the plaintiffs expert witness had previously been sued for malpractice, (2) charged the jury on the issue of informed consent, (3) concluded that the amount of the verdict was not excessive and (4) denied the defendant’s motion for remittitur. We affirm the trial court’s judgment.

The jury could reasonably have-found the following facts. In July, 1985, the plaintiff consulted with the defendant concerning the replacement of her partial denture with a full upper denture. The defendant told her that this would require the extraction of her remaining upper teeth and the immediate insertion of a new full upper dental plate. The defendant explained that the plaintiff would be anesthetized during the procedure. The defendant further advised the plaintiff that she would experience pain after the procedure, and that the procedure involved the risk of postoperative bleeding, clot formation under her new denture, swelling and infection. The defendant did not warn the plaintiff that the extraction of her teeth carried a risk of perforation of the maxillary sinus wall.

On January 16, 1986, the defendant extracted the plaintiff’s six upper teeth and inserted a new full upper denture. After completing the operation, the defendant gave the plaintiff a prescription for Percodan for relief of pain. The defendant examined the plaintiff on the day following surgery, as well as on several followup visits, and advised the plaintiff that her complaints of pain were normal.

The plaintiff continued to experience pain and developed facial swelling. She also detected an odor emanating from her mouth. On February 17,1986, she visited the defendant, who referred her to Bernard Levine, an oral surgeon.

On February 18,1986, the plaintiff consulted Levine, who concluded that she was suffering from an antral-oral fistula and a severe sinus infection. Levine treated the infection and subsequently performed surgery to close the fistula. The plaintiff lost about two weeks’ wages and incurred expenses as a result of the treatment she received from Levine. During periods of cold weather, she continues to suffer substantial pain and discomfort, requires daily pain medication and is unable to go on skiing trips or to engage in other outdoor activities. Additionally, she may require further oral surgery.

The jury returned a verdict in favor of the plaintiff in the amount of $326,500. Because the plaintiff filed an offer of judgment in the amount of $50,000, which the defendant failed to accept, the plaintiff also became entitled to interest on the amount of the verdict. As a result, the judgment as rendered by the trial court was in the amount of $431,266.28.

We note that the verdict was accepted and ordered recorded by the trial court on September 27,1990. The defendant’s motion to set aside the verdict was not filed until October 5,1990. As such, it was not filed “within five days after the day the verdict is accepted or judgment rendered, exclusive of such days as the clerk’s office is not open . . . .” Practice Book § 320. The plaintiff filed a timely objection and motion to strike the motion to set aside the verdict. The trial court denied the motion to set aside the verdict on the ground that it was filed late. The defendant subsequently filed a separate motion for remittitur, which was denied by the trial court after a full hearing.

I

The defendant first asserts that the trial court improperly instructed the jury that it was not to draw any adverse inference from the fact that the plaintiffs expert witness had previously been sued for malpractice, and that any prior malpractice suit was irrelevant to the witness’ credibility. He posits that this instruction impermissibly limited the jury’s right to determine the credibility of the witness. We disagree.

As a threshold matter, we must identify the appropriate standard under which we review this claim. A properly filed written motion to set aside the verdict is a prerequisite to full appellate review of claims of error in civil jury cases in which the plaintiff seeks damages. Small v. South Norwalk Savings Bank, 205 Conn. 751, 759, 535 A.2d 1292 (1988). This rule applies to appellate review of trial court rulings as well as insufficiency of the evidence claims. Id. If a timely written motion to set aside the verdict is not filed, appellate review is generally limited to ascertaining whether the trial court’s rulings constituted plain error. Id. Because the defendant failed to file a timely motion to set aside the verdict, we afford this claim only plain error review.

“When our review is limited to the plain error standard, the appellant does not have access to plenary review.” Small v. South Norwalk Savings Bank, supra. Reversal for plain error is generally “reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); Cuartas v. Greenwich, 14 Conn. App. 370, 375, 540 A.2d 1071 (1988). “We consider the [plaintiffs] claims of error in the light of this rarefied standard of review.” Small v. South Norwalk Savings Bank, supra.

The trial judge has both the right and the obligation to charge the jury regarding the basic criteria it should apply in determining the credibility of witnesses. 2 B. Holden & J. Daly, Connecticut Evidence § 125a. We have reviewed the transcripts and conclude that the trial court’s general instructions regarding the criteria by which the jury should assess the credibility of witnesses was detailed, sufficient and correct in law. At no time did the trial court indicate its belief or disbelief in the testimony of the expert witness. It specifically instructed the jury that the determination of the credibility of all witnesses was an issue for them to determine. See State v. Floyd, 10 Conn. App. 361, 369, 523 A.2d 1323, cert. denied, 203 Conn. 809, 525 A.2d 523, cert. denied, 484 U.S. 859, 108 S. Ct. 172, 98 L. Ed. 2d 126 (1987). As a result, the trial court’s instructions did not constitute “manifest injustice amounting to plain error under all the circumstances.” Valley v. Fazzina, 187 Conn. 423, 428, 446 A.2d 1068 (1982).

II

The defendant next asserts that the trial court improperly charged the jury concerning the doctrine of informed consent. We disagree.

The complaint was in a single count but alleged two separate theories of liability: First, that the defendant rendered negligent postoperative care, and, second, that he failed to inform the plaintiff adequately regarding the nature and attendant risks of the surgery in order to permit the plaintiff to make a knowing and informed decision as to whether to undergo the surgery.

Though it contained only one count, the complaint set forth two causes of action. “Where . . . two or more causes of action are incorporated in one count, as here, the defendant has the right to save himself from the implication of a general verdict by seeking from the jury answers to apt and proper interrogatories.” Hartford v. Anderson Fairoaks, Inc., 7 Conn. App. 591, 594, 510 A.2d 200 (1986). Alternatively, the defendant may request that the complaint be divided into counts and that the jury be required to return separate verdicts as to each cause of action. Sheeler v. Waterbury, 138 Conn. 111, 114, 82 A.2d 359 (1951). Because the defendant did not take advantage of either of the options available to him, the general verdict rule applies.

The import of the general verdict rule is that where a jury returns a general verdict in favor of a party, and neither party requests interrogatories or separate verdicts, an appellate court will presume that the jury found every issue in favor of the prevailing party. Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982). “[HJence, if one of these causes of action is supported by credible testimony the verdict must stand, although the other cause of action was not supported by credible testimony or authorized by law, since it cannot be known that the verdict was based upon the invalid cause of action.” Wladyka v. Waterbury, 98 Conn. 305, 313, 119 A. 149 (1922); Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 708, 596 A.2d 318 (1991). The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action. Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987).

The defendant does not attack the propriety of the trial court’s jury instructions concerning the postoperative negligence issue, nor does he question the sufficiency of the evidence with respect to that count. We conclude that the general verdict rule applies in the present case. Because the verdict for the plaintiff contains an implicit finding that the defendant negligently rendered postoperative care, we will not review his claim regarding the trial court’s instructions on the issue of informed consent.

III

The defendant next asserts that the verdict was excessive. We disagree.

This claim is inextricably interwoven with the trial court’s denial of the defendant’s motion to set aside the verdict. Because the defendant failed to file a timely motion to set aside the verdict, we are limited to plain error review of this claim. See section I, supra. We have already set out the standard for plain error review. On the basis of our application of that standard, we conclude that the amount of the verdict is not so great that it obviously “so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.” McKirdy v. Cascio, 142 Conn. 80, 86, 111 A.2d 555 (1955); see Oaks v. New England Dairies, Inc., 219 Conn. 1, 14, 519 A.2d 1261 (1991). Thus, the amount of the verdict does not constitute plain error.

IV

Finally, the defendant posits that the trial court improperly denied his motion for remittitur. We disagree.

Before reaching the merits of this issue, we first point out that, despite counsel’s repeated statements at oral argument discussing the sum of $431,266.28, the amount of the verdict was $326,500. The figure referred to by counsel includes the imposition of interest in the amount of $104,766.28 occasioned by the defendant’s rejection of the plaintiff’s offer of judgment. See General Statutes § 52-192a; Practice Book § 350. “We deem § 52-192a to be a . . . procedural rule, punitive in nature, and enacted to promote fair and reasonable pretrial compromises of litigation.” Paine Webber Jackson & Curtis, Inc. v. Winters, 22 Conn. App. 640, 651, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990). Thus, despite the fact that the judgment totals $431,266.28, we need be concerned only with the amount of the verdict.

We afford this claim plenary review. We draw a distinction in our review of the separate motion for remittitur and our treatment of the motion to set aside the verdict because General Statutes § 52-228, which provides for remittitur, does not explicitly refer to any time limitation for the filing of such a motion. Furthermore, the record is devoid of any objection by the plaintiff to the filing of the separate motion for remittitur on either the basis of timeliness or the basis that General Statutes § 52-228b precludes such a motion independent of a motion to set aside the verdict. See Lo Sacco v. Young, 210 Conn. 503, 509-510, 555 A.2d 986 (1989).

We have already set forth many of the facts that the jury could reasonably have found, including the plaintiffs ongoing pain and discomfort, as well as the prospect of future surgery. The mortality tables indicated that a woman of the plaintiffs age has a life expectancy of 37.88 years. The conditions from which she suffers are permanent. She incurred medical expenses of approximately $2118 and lost earnings of about $720. She also incurred other monetary expenses.

In ruling on the motion for remittitur, the trial court was obliged to “view the evidence in the light most favorable to the plaintiff in determining whether the verdict returned was reasonably supported thereby. . . . The size of the verdict alone does not determine whether it is excessive. The only practical test to apply to this verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. . . . Every reasonable presumption in favor of the correctness of the court’s refusal to set aside the verdict as excessive should be indulged and its ruling will not be disturbed unless there is a clear abuse of discretion.” (Citations omitted; internal quotation marks omitted.) Oaks v. New England Dairies, supra, 13-14.

“The concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony, is a powerful argument for sustaining the action of the trial court.” Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965).

Our review of the record convinces us that the amount of damages awarded to the jury falls within the “necessarily uncertain limits of fair and just damages.” Herb v. Kerr, 190 Conn. 136, 139, 459 A.2d 521 (1983). While the award may have been generous, it does not shock the conscience. As a result, the trial court did not abuse its discretion in denying the motion for remittitur.

The judgment is affirmed.

In this opinion the other judges concurred.

       Appellate counsel for the defendant was not involved in the trial of this case.

       Practice Book § 350 provides in pertinent part: “After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ the court shall add to the amount so recovered twelve percent annual interest on said amount, computed as provided in Gen. Stat., § 52-192a . . . .”
      General Statutes § 52-192a provides in pertinent part: “(a) After commencement of any civil action based upon contract or for the recovery of money only, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. . . .
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve percent annual interest on said amount. . . .”

       General Statutes § 52-228 provides: “If any judgment is rendered, by mistake or clerical error, for a larger sum than is due, the party recovering the judgment may have the amount of the judgment decreased by remittitur to the amount which is due, provided reasonable notice has been given to the adverse party or his attorney. The court may thereupon order the record of the judgment to be corrected, and affirm the judgment for the amount to which it has been decreased.”

       The language used by the trial court is as follows: “And further, there’s been evidence about the malpractice actions that Doctor Lane was involved with, and I’m telling you, ladies and gentlemen, that you are not entitled to draw any adverse inferences from the fact that the doctor testified in this case vis-a-vis his own malpractice cases .... That is totally irrelevant to whether or not he is a credible witness . . . .”

       In our review of the transcript we find this statement made by the defendant’s counsel in final argument, which appears to reach the same conclusion as did the trial court. “You heard him talk about his malpractice cases. Sure, that’s not relevant in the strict sense of the word, that because he was negligent in other cases that he doesn’t know what he’s talking about in this case? No, we’re not trying to say that. But we’re pointing out to you the man’s character. He is in here talking about a deviation from the standard of care, the same standard of care that he violated on more times than he talked to you about. It took him an hour to explain all the cases he had been involved in. But he can come in here and criticize Doctor Kenney, who hadn’t ever been involved in a lawsuit other than this one. But you evaluate that testimony. You heard it. You evaluate it.”

       Because of our limited review of this issue, we express no opinion regarding whether this instruction would have constituted error under plenary review.

       While a claim of lack of informed consent is an action in negligence; Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 706 n.4, 596 A.2d 318 (1991), in this case the lack of informed consent claim is a different cause of action from the claim of negligence arising out of the postoperative care because the claims arise from a different group of facts. “ ‘A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief.’ Wade’s Dairy, Inc. v. Fairfield, 181 Conn. 556, 560, 436 A.2d 24 (1980).” Levine v. Town Plan & Zoning Commission, 25 Conn. App. 199, 207, 594 A.2d 9 (1991).

       Practice Book § 348 provides: “If such ‘offer of judgment’ is not accepted within thirty days, such ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled.”

       We express no opinion as to whether or under what circumstances General Statutes § 52-228b precludes a motion for remittitur that is independent of a motion to set aside the verdict.