author: DiPENTIMA, J.

text:
    RED 11, LLC v. CONSERVATION COMMISSION OF THE TOWN OF FAIRFIELD ET AL.
    (AC 29092)
    DiPentima, Gruendel and Lavery, Js.

      Argued March 18
    officially released October 20, 2009

      J. Christopher Rooney, with whom was Anne D. Peterson, for the appellant (plaintiff).

      Noel R. Newman, with whom, on the brief, was Annmarie P. Briones, for the appellees (named defendant et al.).

      Patricia A. Horgan, assistant attorney general, for the appellee (commissioner of environmental protection, defendant in the first and second appeals).

      Thomas J. Donlon, with whom was Edward V. O’Hanlan, for the appellee (Wilmington Trust Company, defendant in the first and second appeals, interve-nor in the third appeal).
   Opinion

DiPENTIMA, J.

In this case, we address the limitations of the statutory farming exemption to town inland wetlands regulations. The plaintiff, Red 11, LLC, doing business as Twin Oak Farms, appeals from the judgments of the trial court dismissing the administrative appeals from the decisions of the named defendant, the conservation commission of the town of Fairfield (commission), to uphold three cease and desist orders. On appeal, the plaintiff claims that the court improperly (1) dismissed its appeals because the commission lacked jurisdiction to uphold the cease and desist orders, (2) dismissed the appeals because it misinterpreted the statutory limitations on the farming exemption contained in General Statutes § 22a-40 (a) (1) and (3) determined that there was sufficient evidence to support the commission’s decisions upholding the issuance of the cease and desist orders. We disagree and, accordingly, affirm the judgments of the trial court.

The following factual and procedural history provides the background for understanding the claims raised on appeal. On May 11, 2001, Salvatore K. DiNardo obtained an eighteen acre parcel of land located at 1159 Redding Road in Fairfield. DiNardo then conveyed title to the plaintiff, a limited liability company of which DiNardo is the managing member and principal. The property contains three distinct wetlands and watercourse areas: the Redding Road area, the vernal pool and the Rider’s Lane area. In September, 2001, Edward Jones, a wetlands compliance officer, issued a cease and desist order advising DiNardo to stop activities on the property that were impacting wetlands and watercourses.

The commission held a show cause violation hearing on September 20, 2001, at which DiNardo stated that he intended to create a farm on the property. Pursuant to § 22a-40 (a) (1) and § 4.1.a of the Fairfield inland wetlands and watercourses regulations (Fairfield regulations), farming activities in wetlands and watercourses are permitted expressly as of right. The commission continued the matter for one month to afford DiNardo time to submit a plan of his proposed activities pursuant to § 4.4 of the Fairfield regulations.

The matter returned to the commission on October 18, 2001. Raymond Rizio, an attorney, appeared on behalf of the plaintiff and DiNardo. Rizio emphasized that the property would be used as a farm. He further represented that although he did not agree that the commission had the authority to condition such requirements, the plaintiff would install silt fencing and mulch around the disturbed areas to stabilize the land. Rizio further stated that if the plaintiff decided to pursue installation of a culvert and weir, it would return at a future date to seek approval from the commission. Rizio also agreed that, upon notice, the plaintiff would make the property available for inspection.

The commission issued a declaratory ruling that “the proposed farming activities, as set forth in the plan submitted by . . . DiNardo, excluding those areas where a culvert and weir are to be installed, were allowed as of right, and did not require a wetland permit, and the vernal pool cannot be filled in.” The commission also removed the cease and desist order with “the request that the property owner honor the stipulations made this evening, including the stipulation whereby he agreed to install silt fencing to stabilize the area.” On October 22, 2001, the commission sent a letter to DiNardo detailing the terms of its decision.

By a letter dated July 2, 2003, Marisa Anastasio, a wetlands compliance officer, issued another cease and desist order to the plaintiff. This letter acknowledged the October, 2001 declaratory ruling but alleged that the plaintiff had engaged in filling, piping, draining and excavating regulated wetlands and watercourses without a permit in violation of various sections of the Fairfield regulations. It also alleged that the plaintiff s representatives had denied access to the property so that observations of the property had been undertaken from adjacent properties and by helicopter surveillance.

The commission held a hearing on August 7, 2003. Following Anastasio’s presentation, representatives for the plaintiff countered that the actions were permissible as farming activity. The commission found that the violations on the site, such as filling, draining and piping of regulated wetlands and watercourses, had and continue to have a significant and adverse impact on regulated wetlands and watercourses on and off the property. Accordingly, the commission sustained the cease and desist order dated July 2, 2003.

The plaintiff filed an appeal to the Superior Court, arguing that the commission improperly sustained the cease and desist order. The plaintiff also argued that the commission violated its right to due process by denying it the ability to rebut the evidence and legal argument presented by the intervenors, Wilmington Trust Company (Wilmington) and James Caserta and Diane Caserta. On December 15, 2003, the court ordered the matter remanded to the commission to allow the plaintiff the opportunity to present rebuttal evidence. The commission opened the rebuttal hearing on March 4, 2004, and continued the matter until March 25, 2004. The commission modified its earlier findings with respect to a perimeter stone wall, but otherwise continued the existing cease and desist order on March 29, 2004. The plaintiff then filed a second appeal to the Superior Court claiming that the commission acted arbitrarily, capriciously, unlawfully and in abuse of its discretion by sustaining the March 29, 2004 cease and desist order.

Anastasio issued a third cease and desist letter, dated June 16, 2004, as a result of violations “existing on [the plaintiffs] property above and beyond those violations listed in the [March 29, 2004 cease and desist order].” Specifically, the letter alleged that the following activities had occurred on the plaintiffs property: (1) the use of wetlands soil for grading along the western part of the property; (2) the filling and grading of wetlands on the western part of the property; (3) excavation of wetland soil for the creation of a ditch through the Redding Road areas, resulting in additional drainage and diversion of water into the storm sewer pipe system; (4) discharge of silted water and mud as a result of the failure to install sedimentation and erosion controls; (5) the removal of additional vegetation; (6) grading throughout the property using wetlands soils; and (7) earth moving of large wetlands soil stockpile near the Redding Road areas. This letter further indicated that on May 6, 2004, the plaintiff had agreed to submit a performance bond and confirm an environmental site monitor and that these obligations had not been met.

After a hearing, the commission adopted the proposed findings of fact set forth in Anastasio’s letter, added certain requirements to the proposed corrective measures and affirmed the violations as listed in the June 16, 2004 letter. The plaintiff filed a third appeal to the Superior Court, again arguing that the commission acted arbitrarily, capriciously, unlawfully and in an abuse of its discretion in issuing the July 2, 2004 cease and desist order.

The court consolidated the three appeals and issued three memoranda of decision on April 4, 2007, dismissing the plaintiffs appeals. With respect to the first two appeals, stemming from the July, 2003 and March, 2004 cease and desist orders, the court determined that the record supported the conclusion that regulated activities, such as the filling, draining and piping of the wetlands and watercourses had occurred on the property without a required permit. The court further concluded that these activities did not fall within the farming exception set forth in § 22a-40 and § 4.1 of the Fairfield regulations. As to the July, 2004 cease and desist order, the court stated that the record supported the commission’s determination that regulated activities, “such as earth moving, excavating, filling, grading, draining and vegetation removal had occurred on the property despite the imposition of the March 29, 2004 cease and desist order. In addition, the record evidence indicates that ongoing work continued on the property during May and June, 2004, and [that] no site monitor confirmation or performance bond had been submitted, despite the representation made at the May 6, 2004 site visit.” The plaintiff then filed a petition to appeal to this court, which was granted on July 27, 2007.

I

The plaintiff first claims that the court improperly dismissed its appeals because the commission lacked jurisdiction to uphold the cease and desist orders. Specifically, it argues that because the commission issued a declaratory ruling in October, 2001, the plaintiffs proposed farming activities were exempt from regulation under the Inland Wetlands and Watercourses Act (act); General Statutes §§ 22a-36 through 22a-45; and therefore outside the jurisdiction of the commission. We are not persuaded by the plaintiff s jurisdictional argument.

At the outset, we identify the proper standard of review. “Whether the trial court properly concluded that the commission had jurisdiction over the activities proposed by the plaintiff involves a legal question involving statutory interpretation, over which our review is plenary.” AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 158-59, 832 A.2d 1 (2003).

The purpose of the act “is contained in General Statutes §§ 22a-36 through 22a-45, inclusive. . . . Under [General Statutes] §§ 22a-42 and22a-42a, any municipality, acting through its legislative body, may authorize or create a board or commission to regulate activities affecting the wetlands and watercourses located within its territorial limits and any such board or commission is authorized to grant, deny or limit any permit for a regulated activity.” Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 249-50, 470 A. 2d 1214 (1984). “[W]e are mindful that the [act] rests upon a specific legislative finding that [t]he inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed, and that [t]he preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state. General Statutes § 22a-36. Accordingly, the broad legislative objectives underlying the [act] are in part to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance and pollution . . . [and by] protecting the state’s potable fresh water supplies from the dangers of drought, overdraft, pollution, misuse and mismanagement by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology in order to forever guarantee to the people of the state, the safety of such natural resources for their benefit and enjoyment [and for the benefit and enjoyment] of generations yet unborn. General Statutes § 22a-36. ... In order to accomplish these objectives, it is the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts. General Statutes § 22a-42 (a).” (Internal quotation marks omitted.) Queach Corp v. Inland Wetlands Commission, 258 Conn. 178, 193-94, 779 A.2d 134 (2001); see also Mario v. Fairfield, 217 Conn. 164, 168, 585 A.2d 87 (1991). Our Supreme Court has described the purpose underlying the act as remedial. Windels v. Environmental Protection Commission, 284 Conn. 268, 297-98, 933 A.2d 256 (2007); see also R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 11:1, p. 331 (“[t]he net effect . . . has been that the wetlands statutes have been liberally construed”).

We now turn to the text of the relevant statutes. General Statutes § 22a-32 provides in relevant part that “[n]o regulated activity shall be conducted upon any wetland without a permit. . . .” Section 22a-40 sets forth certain exceptions from § 22a-32. Specifically, it provides in relevant part: “The following operations and uses shall be permitted in wetlands and watercourses, as of right: (1) Grazing, farming, nurseries, gardening and harvesting of crops and farm ponds of three acres or less essential to the farming . . . .” (Emphasis added.) General Statutes § 22a-40 (a); see also R. Fuller, supra, § 11:4, pp. 336-37.

Our Supreme Court expressly has indicated that exceptions to statutes are to be strictly construed and that those who claim the benefit of such exceptions have the burden of proving that they come within the limited class for whose benefit it was established. Conservation Commission v. Price, 193 Conn. 414, 424, 479 A.2d 187 (1984); see also R. Fuller, supra, § 11:4, p. 337. We are mindful, however, that the exemptions from wetlands regulations contained in § 22a-40 (a) cannot be interpreted in such a manner that would render them meaningless. See Knapp v. Inland Wetlands Commission, 7 Conn. App. 283, 285, 508 A.2d 804 (determination that exemption permitting construction of residence did not include right to construct septic system was improper), cert. denied, 200 Conn. 807, 512 A.2d 230 (1986).

The General Assembly has established certain limitations of the farming exemption. “The provisions of this subdivision shall not be construed to include road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber except for the expansion of agricultural crop land, the mining of top soil, peat, sand, gravel or similar material from wetlands or watercourses or the purposes of sale . . . .” General Statutes § 22a-40 (a) (1). Our Supreme Court has observed, with respect to the residential housing exemption from wetlands regulation, “a clear trend in the legislature’s treatment of wetlands regulation: the inclusion of properties within the regulatory scheme by the narrowing of blanket exemptions from regulatory oversight.” Paupack Development Corp. v. Conservation Commission, 229 Conn. 247, 251, 640 A.2d 70 (1994).

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Buttermilk Farms, LLC v. Planning & Zoning Commission, 292 Conn. 317, 328, 973 A.2d 64 (2009); see also Unistar Properties, LLC v. Conservation & Inland Wellands Commission, 293 Conn. 93, 105-106, 977 A.2d 127 (2009). Guided by these principles, we now address the plaintiff’s specific claim that once the commission determined in 2001 that the proposed farming activities were considered as of right uses of the wetlands, it lacked any further jurisdiction over the property.

The following additional facts are necessary for our discussion. The commission held a show cause violation hearing on October 18, 2001. At that hearing, Rizio, the plaintiffs representative, agreed to install silt fencing around the disturbed area and to provide access to the property to staff members of the commission. Philip Meiman, a member of the commission, inquired whether the vernal pool would remain or be replaced with a wetlands nursery. Rizio responded that the plaintiff had the right to put in a wetlands nursery. Another member of the commission, Frank Rice, indicated that he believed that the vernal pool could not be filled in and that the vernal pool needed to remain as such. Finally, a discussion between two members of the commission, Chairman Charles Jankovsky and Gary Wed-dle, revealed that they believed that the vernal pool could not be filled in. Notably, there was no discussion regarding filling or reclamation of wetlands or watercourses.

In Wilkinson v. Inland Wetlands & Watercourses Commission, 24 Conn. App. 163, 167, 586 A.2d 631 (1991), we stated that an inland wetlands and watercourses commission “must be given the first opportunity to determine its jurisdiction.” See also Canterbury v. Deojay, 114 Conn. App. 695, 708, 971 A.2d 70 (2009) (whether planting of blueberry bushes is considered farming pursuant to § 22a-40 must first be determined by local commission). In the present case, the commission determined in 2001 that the plaintiff had established that it would engage in farming activities that did not require a permit pursuant to § 22a-40 (a) (1). This declaratory ruling, however, did not serve to deprive the commission of jurisdiction for all matters with respect to this property. The July 2, 2003 letter from Anastasio alleged, inter alia, that the plaintiff engaged in reclamation of the vernal pool, caused sedimentation of off-site wetlands and watercourses, installed a storm sewer system, caused the discharge of polluted water from the storm sewer system, and filled and drained the Redding Road and Rider’s Lane areas. These topics were not part of the 2001 proceedings or the declaratory ruling issued by the commission. Simply put, the violations alleged in the Anastasio letter in July, 2003, had not been considered or decided by the commission in October, 2001. Therefore, the plaintiffs argument that following the issuance of the 2001 declaratory ruling the commission lacked jurisdiction over the subsequent activities on the property is without merit.

II

The plaintiff next argues that the court improperly dismissed its appeals because it misinterpreted the statutory limitations on the farming exemption contained in § 22a-40 (a) (1). Specifically, it argues that the filling or reclamation limitation to the farming exemption applies only to wetlands and watercourses with continual flow and therefore is not applicable to the plaintiffs property. We are not persuaded.

At the outset, we note that the plaintiff and Wilmington disagree as to the proper standard of review. The plaintiff, relying on Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 116, 830 A.2d 1121 (2003), argues that a broader standard should be applied because at issue is the interpretation of § 22a-40 (a) (1). Wilmington counters that the issue is the application of § 22a-40 (a) (1) to the facts of the present case and therefore a more deferential standard should be utilized. We agree with the plaintiff.

Generally, we review the actions of an agency under a deferential standard of review. Specifically, we consider whether, in light of the evidence, the agency acted unreasonably, arbitrarily, illegally or in abuse of its discretion. King’s Highway Associates v. Planning & Zoning Commission, 114 Conn. App. 509, 514, 969 A.2d 841 (2009). The construction of a statute, however, presents a question of law for a reviewing court. North Haven v. Planning & Zoning Commission, 220 Conn. 556, 561, 600 A.2d 1004 (1991). Accordingly, we employ the broader plenary standard of review. AvalonBay Communities, Inc. v. Zoning Commission, 280 Conn. 405, 413, 908 A.2d 1033 (2006). Last, we note that “[i]t is for the courts, not administrative agencies, to expound and apply governing principles of law.” (Internal quotation marks omitted.) King’s Highway Associates v. Planning & Zoning Commission, supra, 514.

At issue in the present case is whether the limitation to the farming exemption prohibiting the filling or reclamation applies to all wetlands or those wetlands with continual flow. We conclude that this claim presents a question of pure law, and therefore the broader standard of review applies. Accordingly, we apply the plenary standard of review. See Mailhot v. Commissioner of Motor Vehicles, 54 Conn. App. 62, 64, 733 A.2d 304 (1999). We are mindful, however, that “[o]ne claiming the benefit of an exception under a statute has the burden of proving that he comes within the limited class for whose benefit it was established. . . . Exemptions are to be strictly construed.” (Citation omitted.) Aaron v. Conservation Commission, 183 Conn. 532, 549, 441 A.2d 30 (1981); see also Gay & Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 473-74, 673 A.2d 484 (1996); Conservation Commission v. Price, supra, 193 Conn. 424.

As we previously stated, when construing a statute, our fundamental objective is to ascertain and give effect to the intent of the legislature. See Buttermilk Farms, LLC v. Planning & Zoning Commission, supra, 292 Conn. 328. Pursuant to § l-2z, we begin with the text of the statute. See Aspetuck Valley Country Club, Inc. v. Weston, 292 Conn. 817, 824, 975 A.2d 1241 (2009). Section 22a-32 provides that no regulated activity shall be conducted upon any wetland without a permit. General Statutes § 22a-38 (13) defines “ ‘[r]egulated activity’ ” as “any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses, but shall not include the specified activities in section 22a-40 . . . .” (Emphasis added.) As we previously noted, § 22a-40 (a) (1) permits farming activities as of right in wetlands and watercourses. The statute, however, also places limits on this farming exemption and does not allow, inter alia, for the “filling or reclamation of wetlands or watercourses with continual flow . . . .” General Statutes § 22a-40 (a) (1). The plaintiff argues that the phrase “with continual flow” applies to both wetlands and watercourses. Accordingly, it maintains that it was entitled to conduct filling or reclamation of the Redding Road and Rider’s Lane areas.

“Generally, courts presume that ‘or’ is used in a statute disjunctively unless there is clear legislative intent to the contrary.” 1A J. Sutherland, Statutory Construction (6th Ed. Singer 2002) § 21:14; cf. D’Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 170, 455 A.2d 833 (1983). Our Supreme Court has stated that “[w]hen a list is joined by the disjunctive ‘or,’ as this one is, common usage strongly suggests that each item in the list be read to be separated by ‘or,’ not ‘and.’ ” Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, 273 Conn. 724, 737, 873 A.2d 898 (2005). Given the clear legislative intent, as set forth in § 22a-36, of protecting wetlands and the instruction from our Supreme Court that exceptions from statutes are to be strictly construed; see Conservation Commission v. Price, supra, 193 Conn. 424; we are not persuaded that we should construe the word “or” to mean “and” with respect to § 22a-40 (a) (1). We also note that the act, on numerous occasions, uses the language “wetlands and watercourses,” further indicating the legislature’s intent of using “or” in the disjunctive. (Emphasis added.)

Additionally, in Ruotolo v. Inland Wetlands Agency, 18 Conn. App. 440, 558 A.2d 1021, cert. denied, 212 Conn. 807,563 A.2d 1356 (1989), this court discussed the question of whether the phrase “with continual flow” applies to both wetlands and watercourses. In Ruotolo, the plaintiff sought to create a farm pond and a nursery partially situated in wetlands. Id., 441. A dispute between the plaintiff and the local wetlands agency ensued, and the plaintiff appealed to the Superior Court. Id., 446. The court determined that the local agency’s actions were void ab initio because it had lacked jurisdiction. Id., 446-47. This court reversed the Superior Court’s conclusion regarding the local agency’s jurisdiction. Id., 449.

In Ruotolo, we noted that after remand it would have to be determined “[wjhether the plaintiff is permitted to carry on his activities as he has apparently planned to do . . . .” Id., 450. The plaintiffs application indicated that he sought to reclaim wetlands, which required a permit, and to relocate a watercourse, “which may also require a permit, depending upon whether it is a watercourse with continual flow.” (Emphasis added.) Id. It is clear, therefore, that we previously have read the “with continual flow” language of § 22a-40 (a) to apply only to watercourses and not to wetlands. See also Esposito v. Inland Wetlands Commission, Superior Court, judicial district of New Haven, Docket Nos. CV-99-0427367-S, CV-99-0431238-S, CV-99-0431720-S (July 17, 2000) (27 Conn. L. Rptr. 537). We conclude, therefore, that the court properly interpreted § 22a-40 (a) (1).

Ill

The plaintiff next argues that the court improperly determined that there was sufficient evidence to support the commission’s decisions upholding the issuance of the cease and desist orders. Specifically, it claims that, with respect to the Rider’s Lane, Redding Road and vernal pool areas, there was insufficient evidence to support the cease and desist orders. We disagree.

“We begin with a review of the well established parameters of the substantial evidence test. It is widely accepted that, [i]n reviewing an inland wetlands agency decision made pursuant to [its regulations], the reviewing court must sustain the agency’s determination if an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . .” (Internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 70, 848 A.2d 395 (2004); see also Finley v. Inland Wetlands Commission, 289 Conn. 12, 38, 959 A.2d 569 (2008).

We further note that “[t]he party challenging the agency decision has the burden to show that substantial evidence does not exist in the record as a whole to support the agency’s decision.” (Internal quotation marks omitted.) Fanotto v. Inland Wetlands Commission, 108 Conn. App. 235, 239, 947 A.2d 422 (2008), appeal dismissed 293 Conn. 745, 980 A.2d 296 (2009). In the context of the present case, the plaintiff bears the burden of showing that its activities fell within the ambit of the farming exemption. See Conservation Commission v. Price, supra, 193 Conn. 424; Aaron v. Conservation Commission, supra, 183 Conn. 549.

At the August 7, 2003 show cause violation hearing, Anastasio began by stating that “[significant and adverse alterations have taken place to wetlands and watercourses on this site.” She also mentioned that she and her staff had been denied access to the site and, as a result, the documentation of violations had occurred from off-site observations. As to the Rider’s Lane wetlands, Anastasio presented photographs showing that it had been filled in completely, likely with off-site soil. James Caserta and Diane Caserta stated that they had observed the soil from the Rider’s Lane wetlands being excavated. Michael Klein, a soil scientist, noted that the Rider’s Lane wetlands “are gone.” Following an August 12, 2003 site visit, Anastasio again concluded that the Rider’s Lane wetlands had been filled completely and cited truck tracks and soil piles as evidence. Given that the farming exemption does not allow for the reclamation of wetlands, we conclude that there was substantial evidence in the record to support the commission’s decision to uphold the cease and desist order with respect to the Rider’s Lane area.

We also agree that the cease and desist order as to the Redding Road wetlands also was supported by substantial evidence. At the August 7, 2003 hearing, Anastasio informed the commission that this area had been drained using a storm sewer system of pipe, plastic lining and concrete manholes and then filled with soil. James Caserta and Diane Caserta stated that muddy water that had been pumped from the plaintiffs property ran into their pond. The evidence revealed that the dark, rich organic soil that had been present was replaced by “hardpan soil.” The plaintiffs activities constituted regulated activities in a wetlands and required a permit. Accordingly, the commission’s decision to uphold the cease and desist order was supported by substantial evidence.

Last, we turn to the vernal pool. During the August 7, 2003 hearing, Anastasio stated that the vernal pool had been drained via a trench dug from the pool to the Redding Road area. Following her discussion with DiNardo, when Anastasio indicated that such action could be considered the reclamation of a wetland, the trench was dammed and the vernal pool excavated and expanded in both size and depth to create the farm pond. Anastasio provided photographs in support of her statements regarding the conversion of the vernal pool to the farm pond. At the March 25,2004 show cause violation hearing, Anastasio indicated that changes to the vernal pool were the result of a planned course of action. She also noted that, as a result of the increased dimensions of the farm pond, its biological function had been changed significantly.

The plaintiff argues that § 22a-40 (a) (1) specifically provides that a farm pond of three acres or less is permitted as of right. It ignores, however, the language requiring that such farm ponds must be “essential to the farming operation . . . .” General Statutes § 22a-40 (a) (1). The plaintiff bore the burden of establishing its entitlement to the farming exemption, specifically, that the farm pond of three acres or less was essential to the farming operation. The commission did not make such a determination. See Canterbury v. Deojay, supra, 114 Conn. App. 709-10. Robert Sonnichsen, a professional engineer, opined that irrigation water “was going to be critical” to the farming operations. He did not indicate, however, that the replacement of the vernal pool with the farm pond was essential to the operation, merely that irrigation would be needed. In other words, there was no evidence that water from another source could not have been used rather than converting the vernal pool. Additionally, the commission was free to reject Sonnichsen’s testimony. See Pelliccione v. Planning & Zoning Commission, 64 Conn. App. 320, 331, 780 A.2d 185, cert. denied, 258 Conn. 915, 782 A.2d 1245 (2001)

A farm pond falls within the § 22a-40 (a) (1) exemption only if the commission made the determination that it was essential to the farming activity. The commission did not make that determination. Accordingly, the plaintiff failed to sustain its burden of establishing that its activities fell within the ambit of § 22a-40 (a) (1). As a result, the transformation of the vernal pool to the farm pond required a permit. The commission’s decision to uphold the cease and desist orders, therefore, was proper.

The judgments are affirmed.

In this opinion the other judges concurred.

       Marisa Anastasio, a wetlands compliance officer for the town of Fairfield, also was named as a defendant in all three of the plaintiffs appeals. The commissioner of environmental protection was a defendant in the first and second appeals only.

       General Statutes § 22a-40 (a) provides in relevant part: “The following operations and uses shall be permitted in wetlands and watercourses, as of right:
      “(1) Grazing, farming, nurseries, gardening and harvesting of crops and farm ponds of three acres or less essential to the farming operation, and activities conducted by, or under the authority of, the Department of Environmental Protection for the purposes of wetland or watercourse restoration or enhancement or mosquito control. The provisions of this subdivision shall not be construed to include road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber except for the expansion of agricultural crop land, the mining of top soil, peat, sand, gravel or similar material from wetlands or watercourses for the purposes of sale . . . The language of § 4.1.a of the Fairfield regulations essentially tracks the language of § 22a-40 (a).

       Section 4.4 of the Fairfield regulations provides: “To carry out the purposes of this section, any person proposing to carry out a permitted or nonregulated operation or use of wetland or watercourse, that may disturb the natural and indigenous character of the wetland or watercourse, shall, prior to commencement of such operation or use, notify the [commission] on a form provided by it, and provide the [commission] with sufficient information to enable it to properly determine that the proposed operation and use is a permitted or nonregulated use of the wetland or watercourse. The [commission] or its designated agent shall rule that the proposed operation or use is a permitted or a nonregulated use or operation or that a permit is not required. Such ruling shall be in writing and shall be made no later than the next regularly scheduled meeting of the [commission] following the meeting at which the request was received. The designated agent for the [commission] may make such ruling on behalf of the [commission] at any time.”

       Anastasio stated that she visited the site in August, 2002, and had been denied access.

       Wilmington is also a defendant in two of the appeals.

       Two days before oral argument in this matter, this court received a letter from Wilmington referring to Practice Book § 67-10, citing and discussing several authorities not mentioned in its brief. The plaintiff filed a letter objecting'to Wilmington’s submission as noncornpliant with § 67-10. We take this opporl unity to remind counsel of the purpose behind that rule. As noted in the official 2009 commentary to the rule, that purpose is to bring to the court’s attention “significant authority that was genuinely unknown to the party at the time of the preparation of the brief or at oral argument.” Practice Book § 67-10, commentary. It is not an opportunity to file a supplemental brief.

       “Reclamation” has been defined as “[mjaking land fit for cultivation, as by draining swamps ... or irrigating arid land.” Ballentine’s Law Dictionary (3d Ed. 1969); see also Webster’s Third New International Dictionary (“the act or process of restoring to cultivation”).

       The terms “wetlands” and “watercourses” are defined in the act. “General Statutes § 22a-38 (15) defines wetlands as land, including submerged land . . . which consists of any of the soil types designated as poorly drained, very poorly drained, alluvial, and floodplain .... Watercourses are defined as rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs, and all other bodies of water, natural or artificial, vernal or intermittent, public or private, which are contained within, flow through or border upon this state or any portion thereof .... General Statutes § 22a-38 (16). We note that these pivotal definitions, which apply throughout the act, are narrowly drawn and limited to physical characteristics.” (Emphasis in original; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Inland Wetlands Commission, supra, 266 Conn. 162-63.

       The plaintiff argues that the discussion of continual flow in Ruotolo constitutes nothing more than dicta, which is not binding. We disagree. “Dictum includes those discussions that are merely passing commentary . . . those that go beyond the facts at issue . . . and those that are unnecessary to the holding in the case. ... As we have previously recognized, however, it is not dictum when a court of [appeal] intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy.... Rather, such action constitutes an act of the court which it will thereafter recognize as a binding decision.” (Citations omitted; emphasis added; internal quotation marks omitted.) Middletown Commercial Associates Ltd. Partnership v. Middletown, 53 Conn. App. 432, 435, 730 A.2d 1201, cert. denied, 250 Conn. 919, 738 A.2d 657 (1999).

       The plaintiff argues that the Redding Road area was both a wetlands and a watercourse. It maintains that because there was no evidence of continual flow, the farming exemption applied. This argument is unavailing because the plaintiff acknowledges the Redding Road area to be a wetland. Accordingly, the filling of this area requires a permit, as the filling of a wetland is not part of the farming exemption. See General Statutes § 22a-40 (a) (1). The Redding Road area’s possible classification as a watercourse does not change this analysis.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    418 MEADOW STREET ASSOCIATES, LLC v. ONE SOLUTION SERVICES, LLC
    (AC 29856)
    Graendel, Beach and Alvord, Js.

      Argued September 3
    officially released October 20, 2009

      David Eric Ross, for the appellant (defendant).

      Andrew M. McPherson, with whom, on the brief, was William J. Kupinse, Jr., for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant, One Solution Services, LLC, appeals from the judgment of the trial court rendered in favor of the plaintiff, 418 Meadow Street Associates, LLC, following the court’s denial of the defendant’s motion to dismiss the complaint for lack of standing. On appeal, the defendant claims that the court improperly denied its motion to dismiss because (1) the commencement of the action was not properly authorized in accordance with the plaintiffs operating agreement, (2) the plaintiff failed to prove that the authorizing vote of one of its members was properly excluded under General Statutes § 34-187 (b) and (3) the plaintiffs mortgagee had exercised its right to collect rents due from the defendant to the plaintiff pursuant to a previously executed assignment of leases and rentals. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The plaintiff, a limited liability company, commenced this action, alleging that it had leased premises located in Fairfield to the defendant and that the defendant had failed to pay rent and expenses as required under the terms of that lease. The defendant subsequently was defaulted for failure to plead, and the matter was scheduled for a hearing in damages. On February 29, 2008, the defendant filed a motion to dismiss the complaint on the ground that the plaintiff lacked standing to bring the action.

At the continuation of the hearing in damages held on March 3, 2008, the defendant argued that the court lacked subject matter jurisdiction over the plaintiffs claims because the action had not been authorized by Barbara Levine, a member of the plaintiff with a 50 percent ownership interest. The defendant claimed that the plaintiff lacked standing for that reason and for the additional reason that the plaintiffs mortgagee, People’s Bank, had exercised its right to collect rents from the plaintiffs tenants pursuant to a previously executed assignment of leases and rentals. The court questioned the standing of the defendant to raise the issue of whether the plaintiff had obtained proper authorization to commence and to maintain the action. Both parties presented arguments addressing the standing of the plaintiff to bring the action and the standing of the defendant to challenge the plaintiffs standing, including the issue of whether the subject matter jurisdiction of the court was implicated. The hearing was further continued to March 17, 2008.

On March 17, 2008, the parties concluded their arguments on standing, and the court denied the defendant’s motion to dismiss. No testimony or exhibits had been submitted to the court in support of or in opposition to the motion to dismiss. The defendant’s claims regarding the plaintiffs operating agreement and the assignment of leases and rentals had been presented by means of oral argument only. No evidentiary hearing had been held on the merits of those claims. In its ruling, the court clearly indicated that the basis for the denial was its conclusion that the defendant did not have standing to challenge the plaintiffs standing to commence and to maintain the action. Accordingly, the court did not address the merits of the defendant’s claims set forth in its motion to dismiss.

At the conclusion of the hearing in damages, the court rendered judgment in favor of the plaintiff and awarded $41,093.06 in damages. This appeal followed.

On appeal, the defendant claims that the court improperly denied its motion to dismiss because the plaintiff lacked standing to commence and to maintain the action. The defendant argues, as it did before the trial court, that the plaintiff did not comply with the terms of its operating agreement before commencing the present action, that the plaintiff did not prove that the failure to obtain the authorizing vote of Levine was excused under the circumstances of this case and that the plaintiffs mortgagee was the entity entitled to collect past due rents, if any, from the plaintiffs tenants. In short, the defendant is addressing the merits of its motion to dismiss. The problem, however, is the fact that the court never addressed the merits, and we will not address issues not decided by the trial court. South-bury Land Trust, Inc. v. Andricovich, 59 Conn. App. 785, 792, 757 A.2d 1263 (2000).

The motion to dismiss was denied solely on the ground that the defendant lacked standing to challenge the plaintiffs standing. For that reason, the only issue that could have been appealed is whether the court properly concluded that the defendant lacked standing to challenge the plaintiffs standing. In its appellate brief, however, the defendant’s only reference to this issue is as follows: “The trial court essentially ruled that the defendant did not have the right to argue that the plaintiff lacked standing to commence and [to] maintain this action.” On appeal, the defendant does not challenge the court’s ruling with case law and analysis. Instead, the defendant proceeds to argue that the plaintiff lacked standing for the reasons previously set forth in its motion to dismiss, issues that had never been addressed or decided by the court.

Accordingly, because the defendant’s brief is completely devoid of any argument addressed to the actual ruling of the court, we conclude that the only issue that could have been raised on appeal has been briefed inadequately, and we decline to afford it review. “We are not obligated to consider issues that are not adequately briefed. . . . Whe[n] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived.” (Internal quotation marks omitted.) Sturgeon v. Sturgeon, 114 Conn. App. 682, 685 n.2, 971 A.2d 691, cert. denied, 293 Conn. 903, 975 A.2d 1278 (2009).

The judgment is affirmed.

In this opinion the other judges concurred.

       After noting that the defendant was a tenant of the plaintiff, not one of its members, the court concluded as follows: “I think that the [plaintiff], at this point, has the right to go forward only because the people who are disputing the issues in this case, in the court’s opinion, do not have standing because they are not part of the [plaintiff], and, therefore, I will deny the motion to dismiss and we may proceed.”

       We express no opinion as to the correctness of the court’s conclusion that the defendant lacked standing to challenge the plaintiffs standing to commence and to maintain the action. Rather, we simply accept that conclusion for the purposes of this appeal because the defendant has not adequately challenged it. See Broadnax v. New Haven, 270 Conn. 133, 176 n.44, 851 A.2d 1113 (2004).


author: PER CURIAM.

text:
    WILLIAM LUDEMANN ET AL. v. SPECIALTY NATIONAL INSURANCE COMPANY
    (AC 30156)
    Bishop, Lavine and Peters, Js.
    Argued September 9
    officially released October 20, 2009

      Stephen F. McEleney, for the appellants (plaintiffs).

      Frank J. Szilagyi, with whom, on the brief, was William M. Tierney, for the appellee (defendant).
   Opinion

PER CURIAM.

In this underinsured motorist case, the plaintiffs, William Ludemann and Laura Ennis, formerly known as Laura Ludemann, appeal from the judgment of the trial court denying their application to vacate the arbitration award rendered in favor of the defendant, Specialty National Insurance Company. The resolution of the appeal concerns the interaction between the exclusive remedy of our Workers’ Compensation Act; see General Statutes § 31-284 (a); and the statutory exception to that exclusivity set forth in General Statutes § 38a-336 (f). We affirm the judgment of the trial court.

The following facts are not in dispute. On April 16, 2001, Ludemann was employed as a police officer by the town of Enfield (town) and was directing traffic within the scope of his duties when he was struck and injured by a motorist. Ludemann received workers’ compensation benefits for his injuries and exhausted the coverage of the motorist’s liability insurance. On the date he was injured, Ludemann was an insured under an uninsured-underinsured automobile insurance policy issued to the town by the defendant. The policy provided for arbitration in the event of a dispute between the defendant and an insured for underinsured motorist benefits. The arbitrators were to determine whether Ludemann was barred from receiving underin-sured motorist benefits because, at the time he was injured, he was not occupying his police cruiser for the purposes of § 38a-336 (f). On November 13, 2007, in a two to one decision, the arbitration panel rendered an award in favor of the defendant. The plaintiffs filed an application in the trial court, asking the court to vacate the award. The court denied the application to vacate, and the plaintiffs appealed to this court.

On appeal, the plaintiffs claim that the court erred by (1) concluding that Ludemann was barred under § 31-284 (a) from recovering as an insured by virtue of § 38a-336 (f), (2) failing to find an explicit, well defined and dominant public policy in favor of providing under-insured motorist coverage to an insured regardless of whether he was occupying a vehicle, (3) failing to provide underinsured motorist coverage to Ludemann by virtue of his status as a third party beneficiary, (4) finding that Ludemann did not occupy the motor vehicle under § 38a-336 (f) and (5) concluding that Ennis was not entitled to underinsured motorist coverage for her alleged loss of consortium.

After examining the record on appeal and carefully considering the briefs and arguments of the parties, we conclude that the judgment of the trial court should be affirmed. See American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987) (de novo judicial review of compulsory arbitration award). The court’s thoughtful memorandum of decision is comprehensive and consistent with our applicable statutes and decisional law. See Gomes v. Massachusetts Bay Ins. Co., 87 Conn. App. 416, 866 A.2d 704, cert. denied, 273 Conn. 925, 871 A.2d 1031 (2005). We therefore adopt the court’s well reasoned decision. See Ludemann v. Specialty National Ins. Co., 51 Conn. Sup. 326, 982 A.2d 659 (2008). No useful purpose would be served by repeating the discussion contained therein. See Sansone v. Nationwide Mutual Fire Ins. Co., 62 Conn. App. 526, 528, 771 A.2d 243 (2001).

The judgment is affirmed.

       General Statutes § 31-284 (a) provides in relevant part: “An employer who complies with the requirements of subsection (b) of this section shall not be hable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment .... All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees . . . arising out of personal injury . . . sustained in the course of employment are abolished other than rights and claims given by this chapter, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation.”

       General Statutes § 38a-336 (Q provides: “Notwithstanding subsection (a) of section 31-284, an employee of a named insured injured while occupying a covered motor vehicle in the course of employment shall be covered by such insured’s otherwise applicable uninsured and underinsured motorist coverage.”


author: HARPER, J.

text:
    MICHAEL E. GRECI ET AL. v. THOMAS J. PARKS
    (AC 28949)
    (AC 29922)
    (AC 30013)
    Bishop, Harper and Foti, Js.

      Argued March 18
    officially released October 27, 2009

      JuriE. Taalman, with whom, on the brief, was Timothy Brignole, for the appellants (plaintiffs).

      Anthony F. Santacroce, with whom was Deborah L. Bradley, for the appellee (defendant).
   Opinion

HARPER, J.

The plaintiffs, Michael E. Greci and Margaret A. Greci, brought an action against the defendant, Thomas J. Parks, for injuries they claimed they sustained as the result of an automobile accident caused by the defendant’s negligence. The case was tried to the jury, which returned a plaintiffs verdict in favor of Michael Greci and a defendant’s verdict with respect to the claim of Margaret Greci. The plaintiffs appeal from the judgment of the trial court, rendered in accordance with the jury’s verdicts, and the denial of their postverdict motions. On appeal, the plaintiffs claim that the court (1) improperly determined that the final judgment in this case was rendered on August 17, 2007, rather than June 8, 2007, and (2) abused its discretion in denying their motions to set aside the verdicts and for a new trial or, in the alternative, for additur, because (a) the court improperly had permitted the defendant to cross-examine Michael Greci with respect to certain medical records that were unrelated to his claimed injuries, (b) the court permitted the defendant’s counsel to make improper arguments to the jury and failed to deliver a requested curative instruction related to the improper closing arguments, and (c) the verdicts were inconsistent. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The plaintiffs were married in 1974 and subsequently bought a home in Granby. Prior to and throughout their marriage, Michael Greci was involved in the business of auto racing. In January, 1999, he accepted a position that required him to move to North Carolina. From that time until June, 2000, he lived in North Carolina while Margaret Greci lived in Connecticut with their two children. He would return to Granby whenever he could, and she sometimes attended his races. In the summer of 1999, she spent three weeks with him in North Carolina.

In June, 2000, Michael Greci moved back to Granby. In the fall of 2000, he accepted a position with a company in New Jersey and lived there between 2000 and 2003. He returned to Connecticut almost every weekend during that time period. In April, 2003, the plaintiffs moved to North Carolina, and he accepted a position with his current employer, Dale Earnhardt, Inc. His present position requires him to travel with the race team approximately twenty-eight to thirty-seven weeks during the year.

In November, 2003, the plaintiffs came back to Connecticut to attend the funeral of Michael Greci’s great aunt. On the afternoon of November 25, 2003, they were traveling westbound on Interstate 84 in Cheshire when traffic ahead of them slowed and then stopped. A few moments after the plaintiffs’ vehicle came to a stop, the defendant’s vehicle hit their vehicle from behind and pushed it into the vehicle in front of them. The plaintiffs’ vehicle was towed from the scene. The plaintiffs, who had been traveling back to their home in North Carolina when the accident occurred, leased another vehicle that day and continued on their way.

As the day progressed, Michael Greci experienced increasing pain and discomfort in his right arm and shoulder. On November 28, 2003, he went to Edward S. Campbell, his local family practitioner, for medical treatment. In December, 2003, Campbell diagnosed him with a herniated or ruptured disc in his neck and referred him to Vinay Deshmukh, a neurosurgeon. Desh-mukh diagnosed him with cervical radiculopathy and disc herniation, and recommended a discectomy and fusion. Deshmukh opined that the accident either caused his condition or exacerbated an asymptomatic condition. Deshmukh had not reviewed Campbell’s notes or records prior to his treatment of Michael Greci.

The surgery was performed on April 12, 2004. In May, 2005, Michael Greci returned to Deshmukh again complaining of neck pain. Although Deshmukh did not recommend additional surgery at that time, he did indicate that there was a 30 percent chance of future surgery within five years and a 50 percent chance of surgery for a further fusion within ten to fifteen years.

On August 22, 2005, the plaintiffs filed this action, claiming that the defendant’s negligent operation of his vehicle caused Michael Greci to sustain economic and noneconomic damages and deprived Margaret Greci of her husband’s consortium. In his answer to the complaint, the defendant admitted the allegation that he failed to keep a proper lookout for other motor vehicles traveling on the roadway but denied the other allegations of negligent conduct. With respect to the allegations of claimed injuries caused by the accident, the defendant pleaded insufficient knowledge and left the plaintiffs to their proof.

On February 15, 2007, after a four day trial, the jury returned a verdict awarding Michael Greci $217,795 in economic and noneconomic damages. With respect to Margaret Greci’s loss of consortium claim, the jury returned a defendant’s verdict. On February 20, 2007, the defendant filed a request for a collateral source hearing. On February 22, 2007, the plaintiffs filed motions to set aside the verdicts and for a new trial and motions for additur. The court held a hearing on the postverdict motions on April 16, 2007. At that time, the court heard argument on all of the motions except the request for a collateral source hearing. At the request of the defendant’s counsel, after the plaintiffs’ counsel indicated that he had no objection, the court continued the hearing on that motion to' an unspecified date.

The court denied all of the plaintiffs’ postverdict motions in a memorandum of decision filed June 8, 2007. The plaintiffs filed an appeal, AC 28949, on June 28, 2007. On July 6, 2007, the defendant filed a motion to dismiss the appeal with this court, claiming that the appeal was premature because the collateral source hearing had not yet been scheduled.

The defendant then filed a motion to open the judgment with the trial court on July 16,2007, on the ground that his request for a collateral source hearing was still pending. The court granted the defendant’s motion to open the judgment, and a hearing was held on August 17, 2007, at which the court denied the defendant’s request for a collateral source hearing and stated that “the judgment remains as previously determined.” The plaintiffs did not appeal from that judgment. Thereafter, on October 3, 2007, this court granted the defendant’s motion to dismiss AC 28949 as to the portion of the plaintiffs’ appeal that related to Michael Greci but denied the motion as to the portion of the appeal that related to Margaret Greci.

On February 1, 2008, the plaintiffs filed a motion to open the judgment in order to obtain “a clear and unequivocal final judgment from which [Michael Greci] can properly appeal.” In response to that motion, the court issued an order on April 28, 2008, in which it stated that judgment had been rendered on August 17, 2007, when the defendant’s request for a collateral source hearing was denied. On May 15, 2008, Michael Greci filed an appeal, AC 29922, from the judgment rendered on the jury’s verdicts and the court’s June 8, 2007 denial of the plaintiffs’ postverdict motions. The defendant filed a motion to dismiss the appeal with this court on May 23, 2008, claiming that the appeal was not timely. We denied the defendant’s motion to dismiss AC 29922 on July 16, 2008.

On June 17, 2008, Michael Greci filed an additional appeal, AC 30013, from the court’s order of April 28, 2008. On July 17, 2008, the defendant moved to dismiss AC 30013 on the grounds that it was untimely and had not been taken from a final judgment. This court denied the motion to dismiss AC 30013 on August 14, 2008.

Subsequently, by order issued August 18, 2008, we consolidated AC 28949, AC 29922 and AC 30013 pursuant to Practice Book § 61-7.

I

The plaintiffs first challenge this court’s decision to dismiss AC 28949 as to the portion of the appeal that related to Michael Greci. They argue that judgment was rendered on June 8, 2007, and not, as the trial court determined, on August 17, 2007, when the defendant’s request for a collateral source hearing was denied.

On October 3,2007, this court granted the defendant’s motion to dismiss as to “the portion of the plaintiffs’ appeal as to . . . Michael Greci . . . .’’By order dated November 14, 2007, we denied the plaintiffs’ motion to reconsider that dismissal. The plaintiffs filed a petition for certification to appeal from our partial dismissal of AC 28949 with our Supreme Court, which was denied on January 23, 2008. Therefore, we will not review the plaintiffs’ first claim that the dismissal was improper. See Lazorik v. Donaldson, 65 Conn. App. 537, 783 A.2d 489 (2001).

Although AC 28949 was partially dismissed as to the claims of Michael Greci, he has raised the same claims in AC 29922, filed on May 15, 2008, that he raised in AC 28949. Those claims are now before this court. The defendant challenges, however, our denial of his motion to dismiss AC 29922 as well as our denial of his motion to dismiss AC 30013. He claims that those appeals were untimely and were not taken from a final judgment. We already have reviewed the claims in the defendant’s motions to dismiss, however, and will not review the same issues again. See Santoro v. Santoro, 33 Conn. App. 839, 841-42, 639 A.2d 1044 (1994). Contrary to the defendant’s argument, we have subject matter jurisdiction and will review the claims of both plaintiffs.

II

The plaintiffs claim that the court abused its discretion in denying their motions to set aside the verdicts and for a new trial or, in the alternative, in denying their motions for additur. Specifically, they argue that the court should have granted their postverdict motions because the court improperly permitted the defendant to cross-examine Michael Greci about medical records that were unrelated to his claimed injuries, and it permitted the defendant’s counsel to make improper arguments to the jury and failed to deliver a requested curative instruction related to those arguments. They claim that the prejudice they suffered was evidenced by the inadequate damage award to Michael Greci and the defendant’s verdict on Margaret Greci’s derivative claim for loss of consortium. The plaintiffs further claim that the verdicts were inconsistent.

We begin by setting forth our standard of review. “The standard of review governing our review of a trial court’s denial of a motion to set aside the verdict is well settled. The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence. . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the juiy in the application of legal principles .... Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.” (Internal quotation marks omitted.) Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 32-33, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).

A

The plaintiffs’ first claim is that the court improperly allowed the defendant’s counsel to cross-examine Michael Greci on medical records predating the accident that were unrelated to his claimed injuries. The subject reports were contained in the files of Campbell, the plaintiffs’ medical expert, that had been disclosed to the defendant shortly before or during trial. Those reports indicated that Michael Greci had been treated by various physicians between 1997 and 2002 for right hand, forearm, elbow and shoulder pain, weakness in his grip, rotator cuff tendonitis and insomnia. The court allowed the defendant to identify the authors of the reports as experts, submit the reports in evidence and cross-examine Michael Greci as to their contents.

The plaintiffs argue that the defendant, instead of questioning Campbell on the reports predating the accident, chose “to ambush” Michael Greci by cross-examining him about prior treatments that were wholly unrelated to the accident. They claim that the court improperly permitted irrelevant and immaterial medical treatment testimony without any foundation to establish that the prior treatment was related in any way to the injuries claimed by Michael Greci in this case.

In its memorandum of decision on the postverdict motions, the court addressed the issue of the medical records as follows: “The court allowed the late disclosure of the authors of the reports as experts because of the plaintiffs’ late disclosure of this information to the defendant. The information in the reports also related to the same body parts claimed to be involved in [Michael Greci’s] injuries from the accident here. The plaintiff cannot now claim prejudice from such a late disclosure where his actions contributed to the failure to have the material disclosed earlier to counsel. See Mojica v. Benjamin, 64 Conn. App. 359, 780 A.2d 201 (2001).”

“Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Internal quotation marks omitted.) Gilliard v. Van-Court Property Management Services, Ltd., 63 Conn. App. 637, 641, 777 A.2d 745 (2001). We cannot conclude that, under the stated circumstances, the court abused its discretion in admitting the preaccident medical records into evidence and allowing the defendant to cross-examine Michael Greci as to the contents of those records with respect to his prior medical treatment.

B

The plaintiffs next claim that the court should have set aside the verdicts and ordered a new trial because it permitted the defendant’s counsel to display a lottery ticket and make improper comments about winning the lottery and the funding of retirement plans during his closing argument to the jury. The plaintiffs also claim that the court failed to deliver a requested curative instruction related to these improper arguments. The plaintiffs argue that the conduct and comments were calculated to inject extraneous issues into the case and to inflame the jury.

The challenged remarks followed the initial closing argument of the plaintiffs’ counsel, in which he suggested an approach to the valuation of economic damages and noneconomic damages for Michael Greci’s injuries. By the suggested calculation of the plaintiffs’ counsel, Michael Greci’s economic damages totaled $145,900, and his noneconomic damages approximated $2 million. In response, the defendant’s counsel remarked: “I will say that since it’s not a complicated case, that the case is not worth anywhere near a million dollars. I’m also going to suggest to you that with those figures, it’s the equivalent of Lotto, and what [the] plaintiffs’ counsel thinks is that it’s easier for him to pick six of you who will award a million dollars than it is to get a Lotto ticket and win a million dollars. I suggest to you if he wants a million dollars or anything near that, go buy a Lotto ticket. But lotteries and Lotto have nothing to do with fair, just and reasonable awards and to be in courthouses.”

Toward the end of his closing argument, the defendant’s counsel made additional remarks that also are challenged on appeal: “The last thing I wanted to say to you was that the judge is going to tell you that the award is not to punish the defendant nor is it to reward the plaintiff. And the figures [that the plaintiffs’ counsel is] talking about [are] just that: it’s something to punish the defendant and something to reward the plaintiff. I made an analogy a minute ago to say that this is not Lotto, it’s not a lottery, nor should it be a retirement plan. What [the plaintiffs’ counsel] is asking for, essentially, is more money than most people end up with in their retirement plan after a lifetime of working, and I suggest to you [that the defendant], by virtue of being in this accident, should not be asked to fund, he should not be asked to pay for a retirement plan for [Michael] Greci.” During his rebuttal argument, the plaintiffs’ counsel made several references to the analogy by the defendant’s counsel to winning the lottery.

During closing arguments by the defendant’s counsel, the plaintiffs’ counsel did not object to any of the arguments challenged on appeal or the display of the lottery ticket. The plaintiffs’ counsel did not object to the argument or the display of the lottery ticket at the conclusion of the closing arguments, prior to the court’s jury charge or immediately after the court delivered its jury charge.

Our review of the record reveals that closing arguments occurred on Friday, February 9, 2007. The court charged the jury on that day. On Tuesday, February 13, 2007, the plaintiffs filed a motion for a curative instruction. The plaintiffs argued therein that, by displaying a lottery ticket, the defendant’s counsel improperly had shown to the jury a document extrinsic to the evidence. Further, the plaintiffs argued that the argument related to the lottery improperly had impugned Michael Greci’s credibility and integrity. Essentially, the plaintiffs asked the court to instruct the jury that the conduct and argument by the defendant’s counsel in this regard was improper and that the jury was to disregard the argument. Because of an intervening holiday and inclement weather, the jury did not return for deliberations until Thursday, February 15, 2007, nearly one week after the challenged remarks had been made. The court denied the plaintiffs’ motion at that time.

In their motion to set aside the verdicts, the plaintiffs claimed, inter alia, that the court improperly had permitted the defendant’s counsel to deliver the arguments concerning the lottery and the funding of the plaintiffs’ retirement package. The plaintiffs also claimed that the court improperly had denied their request for a curative instruction. The court rejected these claims on their merits in its memorandum of decision concerning the plaintiffs’ postverdict motions, filed on June 8, 2007. The court determined that the challenged arguments were a fair response to the arguments advanced by the plaintiffs’ counsel concerning a proper award of damages in this case. The court, recalling its instructions to the jury that the arguments of counsel were not evidence and that the jury was to determine what award, if any, was just, also rejected the plaintiffs’ claim that the remarks and conduct of the defendant’s counsel were unfairly prejudicial.

The court articulated its reasons for its decision not to give the requested curative instruction at the hearing on the postverdict motions and in its memorandum of decision filed on June 8, 2007. In that decision, the court deemed it significant that the plaintiffs’ counsel had not objected to the arguments of the defendant’s counsel at the time that they occurred. The court stated that it had “denied the plaintiffs’ request, finding that because of the lapse of time, such a curative instruction would serve more to highlight the alleged improper remarks than to lessen their prejudicial impact, if any.”

In civil cases, an objection to the closing argument of opposing counsel is timely and not waived if it is made “at the time [the remarks] were made or at the close of the argument . . . .” Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 343, 160 A.2d 899 (1960). Here, such a timely objection did not occur; the plaintiffs waited until the jury was deliberating to request a curative instruction. Under these circumstances, we conclude that the plaintiffs waived their right to press the claim of error that the argument of the defendant’s counsel affected the fairness of the proceeding. See id.; Medes v. Geico Corp., 97 Conn. App. 630, 635-36, 905 A.2d 1249, cert. denied, 280 Conn. 940, 912 A.2d 476 (2006); Trumpold v. Besch, 19 Conn. App. 22, 30, 561 A.2d 438 (“absence of any objection or exception to improper argument, which we may infer from the absence of any such indication in the transcript, has . . . been regarded as a waiver of the right to press such a claim of error” [internal quotation marks omitted]), cert. denied, 212 Conn. 812, 565 A.2d 538 (1989), cert. denied, 494 U.S. 1029, 110 S. Ct. 1476, 108 L. Ed. 2d 613 (1990). Accordingly, we decline to review that claim. The plaintiffs also claim that the court improperly denied their motion for a new trial because it failed to deliver the curative instruction that they had requested. Under the circumstances explained by the court and for the reasons stated in its decision, we conclude that the court soundly exercised its discretion in denying the plaintiffs’ request and denying the motion for a new trial on this ground.

C

The plaintiffs next claim that the court improperly denied their motions to set aside the verdicts and for a new trial because the two verdicts were inconsistent. Specifically, they argue that the jury was required to return a plaintiffs verdict in favor of Margaret Greci on her derivative loss of consortium claim because the defendant had admitted liability for the collision and the jury had awarded Michael Greci economic and non-economic damages. We disagree.

Although the defendant admitted that he failed to keep a proper lookout for other motor vehicles at the time of the accident, he did not admit that the injuries claimed by the plaintiffs were caused by that negligent conduct. “No matter how negligent a party may have been, if his negligent act bears no relation to the injury, it is not actionable.” Shegog v. Zabrecky, 36 Conn. App. 737, 745, 654 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d 670 (1995). “[A] plaintiff must establish ah of the elements of a negligence claim, including causation and actual injury, in order to recover and, therefore, the technical legal injury concept does not apply to a negligence action.” Right v. Breen, 277 Conn. 364, 370, 890 A.2d 1287 (2006).

In the present case, Margaret Greci claimed loss of her husband’s consortium as a result of the defendant’s negligence in causing the motor vehicle accident on November 25,2003. Loss of consortium, first recognized as a cause of action in Connecticut in Hopson v. St. Mary’s Hospital, 176 Conn. 485, 408 A.2d 260 (1979), is defined as “the loss of services, financial support, and the variety of intangible relations that exist between spouses living together in marriage. . . . The intangible components of consortium are the constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage.” (Citation omitted; internal quotation marks omitted.) Shegog v. Zabrecky, supra, 36 Conn. App. 751.

The plaintiffs have cited no authority to support their argument that a jury must award damages for a loss of consortium claim if it awards damages to an injured spouse. Here, it was not inconsistent for the jury to have found that Michael Greci suffered economic and noneconomic damages as the result of the collision but that Margaret Greci either was not deprived of her husband’s consortium or that any loss of consortium she may have suffered was not the result of the collision. The evidence presented at trial revealed that Michael Greci’s employment kept him away from home for significant periods of time. At certain times during the marriage, Margaret Greci lived in Connecticut while Michael Greci was living in North Carolina and New Jersey. The jury reasonably could have concluded that the plaintiffs essentially were living separate lives at the time the accident occurred and that they did not spend much time together or engage in many mutual activities, given his demanding work schedule and travel requirements. We conclude that it was not necessarily inconsistent for the jury to find that Michael Greci met his burden of proof with respect to his claim of damages but that Margaret Greci failed to sustain her burden of proving her loss of consortium claim.

We further note that at no time did the plaintiffs object to a defendant’s verdict form and a plaintiffs verdict form being provided to the jury with respect to the claims of Michael Greci and Margaret Greci. Although the plaintiffs have not provided this court with a transcript of the court’s charge to the jury, they do include the court’s proposed charge in the appendix to their appellate brief. In that proposed charge, the court discussed the verdict forms and informed the jury that if it found that the plaintiffs had failed to prove that the defendant’s negligence was the legal cause of Michael Greci’s injuries and losses, the jury would have to complete both defendant’s verdict forms because Margaret Greci’s right to recover was dependent on her husband’s claim. The court then instructed the jury that if it returned a verdict in favor of Michael Greci, it then should consider Margaret Greci’s claim for loss of consortium. The proposed instruction also provided: “If you find that she did not meet her burden of proof on this claim, you would complete the defendant’s verdict [form] as to . . . Margaret Greci.”

The record does not reflect any objection being made by the plaintiffs to the submission of those verdict forms or the charge the court gave with respect to the completion of those forms. Further, in his closing argument, the plaintiffs’ counsel referred to the defendant’s verdict form. If, as the plaintiffs now claim, the defendant’s admission of liability precluded anything but the return of verdicts in favor of both plaintiffs, an objection should have been raised at the point when corrective actions, if necessary, could have been taken. “[P]arties [are required] to raise an objection, if possible, when there is still an opportunity for the trial court to correct the proposed error. . . . When we speak of correcting the claimed error, we mean when it is possible during that trial, not by ordering a new trial. We do not look with favor on parties requesting, or agreeing to, an instruction or a procedure to be followed, and later claiming that that act was improper.” (Internal quotation marks omitted.) Macy v. Lucas, 72 Conn. App. 142, 158, 804 A.2d 971, cert. denied, 262 Conn. 905, 810 A.2d 272 (2002).

D

The plaintiffs also claim that the court improperly denied their motions for additur. The plaintiffs claim that the court should have increased the awards to Michael Greci and Margaret Greci because the jury’s verdicts as to both plaintiffs were so inadequate as to compel the conclusion that the jury was influenced by partiality or mistake.

The claim as to Margaret Greci merits little discussion. The jury returned a defendant’s verdict as to her claim for loss of consortium. General Statutes § 52-228b applies only to a verdict for a plaintiff that may be deemed to be inadequate. “A court may not order an additur to a defendant’s verdict.” Powers v. Farricelli, 43 Conn. App. 475, 480, 683 A.2d 740, cert. denied, 239 Conn. 954, 688 A.2d 326 (1996). The court properly denied the motion for additur filed by Margaret Greci.

With respect to Michael Greci, the jury returned a verdict in his favor in the amount of $117,795 in economic damages and $100,000 in noneconomic damages. He claims that the jury’s award of $100,000 in noneconomic damages was so inadequate that the court’s denial of his motion for additur was an abuse of its discretion. “In reviewing the action of the trial court in denying [a motion for additur and] ... to set aside [a] verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict [it] did. . . . Our task is to determine whether the total damages awarded falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case . . . .” (Internal quotation marks omitted.) Hunte v. Amica Mutual Ins. Co., 68 Conn. App. 534, 541, 792 A.2d 132 (2002).

In determining whether to grant Michael Greci’s motion for an additur, the court was not to assume that the jury made a mistake but to suppose that the jury did exactly what it intended to do. See Schettino v. Labarba, 82 Conn. App. 445, 449, 844 A.2d 923 (2004). It is well settled that the amount of a damage award is a matter peculiarly within the province of the fact finder. Hughes v. Lamay, 89 Conn. App. 378, 384, 873 A.2d 1055, cert. denied, 275 Conn. 922, 883 A.2d 1244 (2005). “The existence of conflicting evidence curtails the authority of the court to overturn the verdict because the jury is entrusted with deciding which evidence is more credible and what effect it is to be given. . . . [0]n issues where the evidence allows room for reasonable differences of opinion among fair-minded people, if the conclusion of the juiy is one that reasonably could have been reached, it must stand even though the trial court might have reached a different result.” (Citation omitted; internal quotation marks omitted.) Schettino v. Labarba, supra, 450.

In reaching its decision to deny Michael Greci’s motion for an additur, the court first noted that $100,000 in noneconomic damages was not an insubstantial amount. It then stated that “the evidence was conflicting as to the existence of similar physical and emotional complaints, prior to and subsequent to the accident, sufficient to raise in the minds of the jury whether the physical and emotional pain and suffering of which [Michael Greci] complained was totally caused by the injuries he sustained in the accident.”

Our review of the record supports the court’s conclusion. The nature and extent of his injuries, whether he would need future medical care and the impact that the claimed injuries had on his life were highly disputed issues at trial. Michael Greci currently is employed as a crew chief for Dale Earnhardt, Inc., and oversees fourteen to fifteen race cars. He has received a promotion since the time of the accident and earns a higher salary than he received in 2003. Although he was told that he would be unable to work for four to six weeks after his surgery in 2004, he returned to his employment in three weeks. His preaccident medical records indicated that he suffered from many of the same physical and emotional complaints that he claimed were due to the accident. The neurosurgeon who had opined that the accident had caused Michael Greci’s condition or exacerbated an asymptomatic condition had not reviewed Michael Greci’s preaccident reports before treating him. Considering the evidence presented, the jury reasonably could have concluded that not all of the injuries Michael Greci claimed were caused by the defendant’s negligence. We therefore are persuaded that the evidence presented at trial supported the non-economic damages the jury awarded to Michael Greci and that those damages properly fall within the necessarily uncertain limits of fair and reasonable compensation.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court did not create a mootness problem as to AC 28949 when it granted the defendant’s motion to open the judgment because it did not alter the jury’s verdicts in any way. See RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 691-92, 899 A.2d 586 (2006).

       The plaintiffs filed a number of motions with the trial court and this court between August, 2007, and July, 2008, requesting, inter alia, reconsideration of various rulings and seeking to establish the date of the final judgment.

       Michael Greci testified that, as a result of the accident on November 25, 2003, he experienced pain that went down his neck, across the top of his shoulder and down through the back of his right arm, radiating down to his right hand and fingers. He complained that his grip strength in his right hand had weakened and that he suffered from insomnia and depression.

         One of the plaintiffs’ issues on appeal is that the court improperly permitted the defendant to disclose the plaintiffs’ expert as his own expert during the course of the trial. The plaintiffs have provided this corut with partial transcripts of the proceedings. We do not have a transcript in which the defendant requested to disclose Campbell as the defendant’s expert, with an objection by the plaintiffs’ counsel to the disclosure. The only reference to transcript proceedings with respect to this issue is a reference to the hearing on the postverdict motions. It is the appellants’ responsibility to provide an adequate record for review. See Practice Book § 61-10. The record is inadequate for us to review this claim.

       The plaintiffs’ counsel represented to this court that at some point when the references to Lotto and the lottery were being made, the defendant’s counsel displayed a lottery ticket. We cannot determine from the record when this conduct occurred because no one drew attention to the display being made at the time that it happened.

       In their appellate brief, the plaintiffs criticize the court for not admonishing the defendant’s counsel sua sponte. Although this fact is noteworthy, we are mindful that, in the absence of an objection by the plaintiffs’ counsel, the court may have been reluctant to draw attention to the argument. “[T]he court cannot presume to determine when a failure to object is tactical and when it is not.” (Internal quotation marks omitted.) Murray v. Taylor, 65 Conn. App. 300, 317, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001).

       The plaintiffs have not provided this court with a transcript of their counsel’s arguments on their motion for a curative charge. We therefore do not know the nature or extent of the argument advanced by the plaintiffs’ counsel, the response by the defendant’s counsel or the comments made by the trial court at that time.

       Following the argument of the plaintiffs’ counsel that the verdicts should be set aside because the court failed to give the requested curative charge, the court stated: “I thought that if I raised the issue again in a correcting charge, it almost highlighted it. You know, I think I have to kind of balance between highlighting something that might have been in error or just letting it go and assuming that the jury, you know, wasn’t going to pay attention to it in the scheme of things.
      “And if I highlight it again, and say, disregard the lottery issue—I don’t remember the retirement comment, but the lottery issue, I remember that, I think I was concerned that it would almost highlight the issue more than— you know, that could have—may not have been in the plaintiffs’ best interest to do that, but, you know, I think that was one of the concerns that I had, because of the length of time that was involved between what happened and when you asked for the charge.”

       Even if we were to reach the merits of the plaintiffs’ claim, we would conclude that the court, which had a superior vantage point from which to assess the atmosphere of the trial and the effect of the challenged argument, did not abuse its discretion in denying the motion to set aside the verdicts on this ground. We are not persuaded that the remarks and conduct of counsel exceeded the bounds of fair argument. Rather, we consider the remarks to have been a rhetorical device, used by counsel in the heat of argument, in an attempt to persuade the jury that the award advocated by the plaintiffs' counsel far exceeded just and reasonable compensation for Michael Greci’s injuries.
      Furthermore, in light of the arguments as a whole and the court’s charge, we are not persuaded that, if the remarks were improper, they affected the fairness of the trial. Accordingly, we distinguish this case from Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 196, 470 A.2d 705 (1984), in which the trial court granted the defendant’s motion to set aside the plaintiffs’ verdict on several grounds, including the prejudicial statements made by the plaintiffs’ counsel in his rebuttal argument. This court concluded that the trial court did not abuse its discretion in setting aside the verdict because the remarks “went far beyond the boundaries of legitimate comments made during the heat of forensic warfare.” Id., 204. We concluded that no curative instruction by the trial court could have remedied their maliciousness.
      “There are occasions when there is no possibility that any instruction will be curative . . . and in such exceptional cases, the verdict should be set aside and a new trial ordered, regardless of whether the opposing party took exception to the remarks.” (Citation omitted; emphasis added.) Id. Because the trial court had observed the courtroom behavior of the plaintiffs’ counsel and deemed it to be prejudicial to the defendants and because it is singularly the trial court’s function to assess whether an injury has been done after appraising the atmosphere prevailing in the courtroom, we concluded that the court did not abuse its discretion in setting aside the verdict under the circumstances of that case. Id., 204^-205. The present case, unlike Yeske, is not such an exceptional case.

       The issue in that certified appeal to our Supreme Court was “whether a plaintiff in a negligence action must be awarded nominal damages, thereby making the defendant potentially liable for costs, when the defendant admits liability but denies having caused the alleged injury, and the fact finder thereafter concludes that the plaintiff failed to prove that he suffered any injury as a result of the defendant’s conduct.” Right v. Breen, supra, 277 Conn. 365-66. The court concluded that “a plaintiff bringing an action in negligence is not entitled to nominal damages, as a matter of law, when the defendant has admitted liability but has denied having caused actual iiyury, and the jury awards no damages to the plaintiff.” Id., 366.

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

       At the hearing on the postverdict motions held on April 16, 2007, the court denied Margaret Greci’s motion for an additur after the plaintiffs’ counsel acknowledged that the court could not add damages to a defendant’s verdict. Nevertheless, that claim was pursued in these appeals.