author: Hull, J.

text:
    Yale Rubin v. Shirley A. Rubin
    (4066)
    Dupont, C. J., Hull and Daly, Js.
    Argued April 29 —
    decision released June 17, 1986

      Francis M. Bosze, for the appellant (plaintiff).

      Pasquale Young, for the appellee (defendant).
   Hull, J.

This case raises the question whether, in a dissolution action, the awarding to one spouse of a share of the assets which the other spouse may acquire in the future under his mother’s will and on termination of an inter vivos trust, runs afoul of the rule of Krause v. Krause, 174 Conn. 361, 387 A.2d 548 (1978). That case held that testimony concerning the potential inheritance of a spouse is speculative and therefore inadmissible. We hold that no per se rule governs admission of such testimony but rather each case rests upon its own factual foundation, and that in this case where fundamental fairness mandated such an order, and where the order was entirely contingent on future events, the Krause rule was not violated by admission of the challenged testimony.

To set the stage for analysis of this issue, a detailed summary of the court’s factual findings, reasoning, and orders entered is necessary. The parties married in 1950. In 1983, the plaintiff husband sought a dissolution on the grounds of irretrievable breakdown. The defendant wife filed a cross-complaint seeking affirmative relief. At the time of the court’s decision on February 9,1985, the plaintiff was sixty-two years old. After receiving a degree in business administration, the plaintiff was employed in his father’s scrap metal business which was conducted on an Ansonia site owned by his mother. When his father died, the plaintiff carried on the business until the real estate was taken in eminent domain proceedings. He thereafter conducted the business in Bridgeport for several years until it was terminated due to financial losses. The plaintiff, whose health had been impaired by former excess use of alcohol, was unemployed for several years prior to the dissolution judgment. Although eligible for social security benefits, the plaintiff had not applied because he thought that he was still employable.

The plaintiffs financial affidavit showed virtually no wages, as his business was defunct. He claimed $16,000 a year income, however, consisting of $6000 per year from a trust fund and a $10,000 annual gift from his mother. He showed weekly expenses of $513.22, including $105.76 a week to his wife. He claimed to have assets of $95,050 including the family dwelling at $60,000, a car at $2900, personal property at $25,500, and a life insurance policy with a $6650 face value. The plaintiff claimed liabilities of $17,280 consisting, in part, of a debt of $10,000 to his mother. The court found that the plaintiff was the residuary beneficiary of an inter vivos trust created by his mother. This trust provided that on the death of the plaintiffs mother, he would receive all of the remaining trust estate then amounting to over $200,000. While the net proceeds of the trust were then payable solely to the plaintiff’s mother, she had been giving him $10,000 a year in ten installments of $1000 each. The plaintiff was also a beneficiary under a trust created by a sister’s husband which terminates in 1988 unless extended by the settlor. Additionally, the plaintiff is one of two equal residuary legatees under his mother’s will. Finally, the court found that the principal cause of the breakdown of the marriage in 1978 was the plaintiffs excessive use of alcohol.

The defendant wife, who was fifty-six years old at the time of the decree, was under medical care for a chronic ailment. While the defendant’s illness was under control at the time of the dissolution, she tired easily and occasionally had memory lapses. She has a high school education but was unemployed at the time of the dissolution. While she could do some work in interior designing, the defendant’s prospects for future earnings were not very bright. The defendant’s financial affidavit showed $20 a week wages and $35 a week rent from one of her daughters who lives with her. Her total assets consisted of a $200 car. She owed $5343, most of which was bills incurred as a result of her illness.

The court ordered as follows: (1) that the family residence and almost all of its contents be awarded to the defendant; (2) that the plaintiff pay periodic alimony of $150 weekly to the defendant; (3) that the plaintiff name the defendant irrevocable beneficiary of his $10,000 life insurance policy; (4) that the plaintiff pay all current debts of both parties; (5) that the plaintiff pay the defendant $1000 for counsel fees. In its memorandum of decision, the court then gingerly stepped through the mine field created by our Supreme Court’s decision in Krause v. Krause, supra, holding as follows: “It is apparent from the foregoing statement of the terms of the trust that the plaintiff has no presently vested interest in any of the assets of the trust corpus or of the income from that source, which would be susceptible to assignment by either the plaintiff himself or by this court. Krause v. Krause, supra; Thompson v. Thompson, 183 Conn. 96, [438 A.2d 839 (1981)]. However, the court may and will make an order which will be contingent upon the possibility of the future inheritance becoming an actuality.” Accordingly, the court ordered that the plaintiff pay one-third of the net estate which he receives from either the trust created by his mother or of any testamentary gift he received from her in the form of inheritance.

The plaintiff appealed and filed eight claims of error which may be fairly summarized as follows: (1) that the court erred in ordering the payment of one-third of any future inheritance from his mother and a one-third share of the amount he may receive from the mother’s inter vivos trust, and in allowing evidence concerning this matter; (2) that the court erred in awarding the above contingent amounts since together with all of the other court orders the total was an unreasonable and disproportionate award to the defendant; (3) that the court erred in awarding counsel fees to the defendant; and (4) that the court erred in awarding periodic alimony to the defendant given the parties’ circumstances. We find no error.

The principal issue is the court’s consideration of Krause-type testimony despite that case’s apparent prohibition of such evidence. The issues in Krause v. Krause, supra, were whether the trial court erred in a dissolution action by failing to make an award or assignment of property to the defendant husband based upon his claim that the plaintiff had an opportunity for future acquisition of assets and income from her parents and by failing to admit into evidence the plaintiff’s mother’s testimony of her net worth. The dissolution judgment ordered the defendant to pay $50 a week child support, and did not award to either party alimony or a division of the other’s property.

At trial, the defendant sought to admit testimony to show that, from 1968 to the time of the dissolution, the plaintiff had received income from investments and gifts from her parents. The plaintiff’s mother was permitted to testify that she and her husband had provided for the plaintiff and for their granddaughter. The trial court ruled, however, that testimony as to the net worth of the plaintiff’s mother was inadmissible. The defendant claimed the trial court erred in sustaining the plaintiff’s objection to the admission of testimony of her mother’s net worth. In addressing the defendant’s claim that this action was erroneous, our Supreme Court said “[t]he court’s ruling cannot be said to be an abuse of discretion since under the circumstances surrounding the vesting of a ‘potential inheritance of the wife,’ as the defendant describes it, the expectancy according to the testimony elicited and appearing in the finding and transcript is, at best, speculative. ‘ “Expectancy” is the bare hope of succession to the property of another, such as may be entertained by an heir apparent. Such a hope is inchoate. It has no attribute of property, and the interest to which it relates is at the time nonexistent and may never exist.’ Johnson v. Breeding, 136 Tenn. 528, 529, 190 S.W. 545 [1916], The moment of the decedent’s death determines the right of inheritance or testamentary succession. Emanuelson v. Sullivan, 147 Conn. 406, 409, 161 A.2d 788 [1960]; 23 Am. Jur. 2d, Descent and Distribution, § 14.” Krause v. Krause, supra, 365.

Superficially, and resting on its own language, Krause would appear to bar the evidence and orders involved in this case. A fundamental difference, however, between Krause and this case distinguishes its holding. In Krause, the defendant was seeking a, present order based on a totally speculative and uncertain future happening, while, in the present case, the defendant spouse was awarded a future share contingent on the plaintiff’s receipt of certain benefits.

Our conclusion is supported by our Supreme Court’s decision in Thompson v. Thompson, 183 Conn. 96, 438 A.2d 839 (1981), wherein the court somewhat undermined the hard and fast exclusionary rule set forth in Krause. In Thompson, the plaintiff wife appealed from a dissolution judgment transferring to her the defendant’s one-half equity in the parties’ house and ordering her to pay the defendant $19,000 for that interest. She claimed that the trial court erred in considering evidence on the extent of her potential inheritance from her mother. In responding to that claim, our Supreme Court stated as follows: “With respect to the potential inheritance, additional background material is necessary to put the plaintiff’s claim in proper perspective. The defendant introduced evidence showing that the plaintiff was listed, along with her elderly mother, as a joint owner with survivorship rights in a savings account in the amount of $9886.93. In addition, the plaintiff and her mother were joint owners of several savings certificates in the aggregate amount of $21,786.65 and stock certificates valued at $24,638. This evidence tended to show that the plaintiff held a present property interest in the savings accounts. See General Statutes § 36-3. Seeking to rebut the defendant’s proof, the plaintiff introduced evidence which demonstrated that these jointly held assets were initially acquired with the mother’s funds and that the plaintiff considered these funds to be owned entirely by her mother. Further evidence offered by the plaintiff indicated that she was to receive one quarter of her mother’s estate upon her death.” Id., 98. The total value of the estate was $66,124.62.

The Supreme Court recognized the Krause rule but held that Krause did not help the plaintiff because it was she who introduced evidence of her potential inheritance. The Supreme Court also determined that any error committed by the court with respect to the potential inheritance operated in favor of the plaintiff since when faced with the bare fact of the joint ownership in the savings accounts, the court could well have treated the accounts as the plaintiffs assets. By considering the evidence that only one quarter of these assets were destined for the plaintiff, therefore, the court diminished the size of her estate to her advantage. This case, although somewhat circular in reasoning, made it clear that, post -Krause, the rule of exclusion of evidence of potential inheritance states more than it means under different circumstances.

The first reason for distinguishing Krause advanced by the Thompson court, that the evidence was introduced by the appellant, does not apply in this case. Additionally, it is difficult to argue that consideration of this evidence was favorable to the plaintiff since the court’s orders, although reasonable in view of the defendant’s extreme poverty after thirty-five years of marriage, were not more advantageous than they would have been had the court not considered the plaintiff’s contingent future assets.

The absolute prohibition of Krause, however, has been further weakened by our Supreme Court’s decision in Anderson v. Anderson, 191 Conn. 46, 463 A.2d 578 (1983), where it further confined Krause to its own factual situation. In Anderson, the plaintiff husband had business problems, while the defendant wife had been at the time of the marriage a nationally celebrated harpist. The trial court ordered no alimony and made certain orders concerning the division of the parties’ property. In appealing from the dissolution judgment, the defendant assigned as error the court’s division of the assets claiming it was based in part on a finding that she had the possibility of the future acquisition of capital assets.

Our Supreme Court rejected this claim as follows: “At the outset, we examine literally the language attacked. If anything, it is largely both cautious and tentative as it says ‘apparently’ from family contributions there is the ‘possibility’ of future acquisition of capital assets. It is true that the defendant and her brother testified that monies involved were loans; yet the court did also use the term ‘contributions by her family’. ... It is true that the defendant and her brother testified that the monies involved were loans, but there was also evidence from the defendant herself that she had never signed a note for these monies and that her family continued sending her money even after the plaintiff left the family home. In addition, her brother testified that he and his mother were paying the rent on the business premises at the time of trial. There was also evidence that the defendant’s mother, who was eighty-nine years old at the time of trial, had sent about $40,000 for which no note has been signed. The reasonable thrust of such evidence amply supports the trial court’s view that ‘apparently from contributions by her family there is the possibility of the future acquisition of capital assets.’ Even though the court could not believe the opposite, i.e., that these monies were not loans, there was adequate evidence to justify this tentative and cautious conclusion of the ‘possibility’ referred to. The court certainly did not find that there was an expectancy of an inheritance. See Krause v. Krause, 174 Conn. 361, 365, 387 A.2d 548 (1978). It did, however, have evidence of large sums of money coming to the defendant from her family, including her mother who did not appear and testify. We have demonstrated that this determination, contrary to the defendant’s claim, was supported by evidence.” (Emphasis added; footnote omitted.) Anderson v. Anderson, supra, 55-57.

Despite the Anderson court’s reliance on the tentative and cautious conclusion of a possibility of future inheritance, we read Anderson as in effect vitiating the rule of Krause without specifically overruling it. It is clear that, under Krause, the trial court still cannot admit evidence of a potential inheritance to reach a conclusion of an expectancy of inheritance which would enter into its consideration of the present division of the parties’ assets. Krause still stands, although somewhat tattered and torn, for this proposition. Under Anderson, however, the court may factor into its assignment of property conclusions concerning “possibilities” of future inheritance, and may admit evidence for such a purpose.

Under Krause and Anderson, read together, the court’s conclusion in this case passes muster. There was no present order based on a potential inheritance as was sought in Krause. The court did not find, nor did its order require a finding, of an expectancy of an inheritance. The court’s order was entirely contingent on future occurrences. If the plaintiff does not acquire such future assets, the order is inoperative. The consideration of possible future acquisition of assets, did not skew or taint the court’s orders concerning assignment of property. The court could hardly do less for the defendant wife, if she were not to go on welfare, and, as outlined above, it could hardly do more. It was only equitable that, should the educated party at fault in the proceedings come into substantial assets in the future, the less educated party should be able to enjoy a somewhat more comfortable life than the spartan one assigned to her by the parties’ financial circumstances at the time of the decree.

Our previous comments make unnecessary extended discussion of the plaintiffs claimed errors in the court’s discretionary orders. “[W]e again point out that ‘[w]ith respect to the financial awards in a dissolution action, great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. Gallo v. Gallo, 184 Conn. 36, 50, 440 A.2d 782 (1981); Fattibene v. Fattibene, 183 Conn. 433, 442, 441 A.2d 3 (1981); deCossy v. deCossy, 172 Conn. 202, 204, 374 A.2d 182 (1977).’ Venuti v. Venuti, 185 Conn. 156, 161, 440 A.2d 878 (1981). Moreover, ‘the power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.’ Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975); see Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982).” Anderson v. Anderson, supra, 57.

Finally, in view of the defendant’s total assets of $200, the court’s award of $1000 in counsel fees was clearly within its discretion.

There is no error.

In this opinion the other judges concurred.

       There are no minor children of the marriage.

       The referee, in his memorandum of decision, found that the plaintiff received $16,000 from this trust. The parties agree that the figure $16,000 is apparently a typographical error as the undisputed evidence showed the amount to be $6000.

       The plaintiffs sister, Shirley Sendar, testified that a trust she set up for the plaintiff yielded $6000 per year to him. There is no explanation in the record of the conflict between this description of the trust and the court's earlier recital of a trust set up by the plaintiff’s sister’s husband.

       Although not found by the court, there was testimony that the plaintiffs mother was eighty-nine years old and in fairly good health. There was also testimony that her assets were approximately $725,000 at the time of the dissolution.

       An examination of the record on appeal in Krause shows that during the nine years of the marriage the plaintiff had received income of approximately $400,000 from investments and gifts from her parents. She also had substantial capital assets from the same source. The defendant had limited capital assets and had been unemployed for many years until just prior to the dissolution proceedings. He claimed in the trial court that $50,000 should be awarded him “for alimony and as a property settlement.”

       In doing what it did in Thompson v. Thompson, 183 Conn. 96, 99, 438 A.2d 839 (1981), our Supreme Court said it did not intend to retreat from Krause v. Krause, 174 Conn. 361, 387 A.2d 548 (1978). While Thompson may not be a retreat, it was at least a strategic withdrawal.

       Justice Shea in his dissent in Anderson v. Anderson, 191 Conn. 46, 61, 463 A.2d 578 (1983), found the term “nationally celebrated harpist” inappropriate.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Bonita R. Flynn v. William L. Flynn, Sr.
    (4021)
    Dupont, C. J., Hull and Daly, Js.
    Argued April 30 —
    decision released June 17, 1986

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

      David R. Sirois, for the appellee (plaintiff).
   Per Curiam.

In this appeal from a judgment dissolving the twenty-three year marriage of the parties, the defendant husband claims that the trial court erred in abusing its discretion (1) in awarding periodic alimony to the plaintiff wife in the amount of $50 per week, terminable upon death or remarriage, and (2) in ordering the defendant to pay the private school tuition of his minor children.

During the marriage, the parties had two children, both of whom had attended parochial school since kindergarten. The defendant had always paid for their tuition.

The defendant’s first claim of error is that the trial court abused its discretion in its periodic alimony award. In his brief, the defendant “concedes that he bears a heavy burden in attacking an award of alimony which is based on the sound discretion of the trial court.” In order to conclude that the trial court abused its discretion in making its alimony award to the plaintiff, we must find that the court either incorrectly applied the law or could not have reasonably concluded as it did. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Carpenter v. Carpenter, 7 Conn. App. 112, 114, 507 A.2d 526 (1986). A review of the record shows that the court’s award was not an abuse of discretion.

The defendant’s other claim of error is that the trial court erred in ordering him to pay the private school tuition of his minor children. The defendant objects to the trial court’s order on two grounds. First, he claims that, due to his alleged financial difficulties, he is unable to pay for private education, which he considers to be unnecessary since the state provides publicly funded schools which are adequate to meet the educational needs of the children in this case. Second, the defendant argues that, even if he were financially able to make the tuition payments, the trial court could not order the defendant to pay for parochial school education because such an order would violate article first, § 3, and article eighth, § 1, of the constitution of the state of Connecticut. The defendant attempts to characterize the court’s order requiring payment of parochial school tuition as “direct religious payments to secure religious training which is used to support the advancement of said religion.” He has provided no record to indicate that such an argument was made to the trial court. Furthermore, the court’s order did not provide that the payment be made directly to a parochial school and did not indicate a preference for any particular religion.

A trial court has the power to direct one or both parents to pay for private schooling, if the circumstances warrant, and may exercise that power in its sound discretion, giving consideration to all of the circumstances, including the financial ability of the parties, the availability of public schools, the schools attended by the children prior to the divorce and the special needs and general welfare of the children. Cleveland v. Cleveland, 161 Conn. 452, 461, 289 A.2d 909 (1971), appeal after remand, 165 Conn. 95, 328 A.2d 691 (1973); see also Hardisty v. Hardisty, 183 Conn. 253, 262-64, 439 A.2d 307 (1981); note, 36 A.L.R. 3d 1093. In this case, evidence was presented that the children had attended parochial schools since kindergarten, that the defendant had paid for this education, and that he would prefer that they continue to remain in such schools but that he could not afford the tuition. This is in contrast to the situation presented in Hardisty v. Hardisty, supra, 264-65, where there was no history of the child having attended private school and no showing that the defendant ever agreed to or approved of private education for his child. There is in this case no evidence as there was in Hardisty of a good faith dispute about the educational needs of a child. The defendant’s purported constitutional challenge to the trial court’s order is similarly unpersuasive. The order requiring the payment of tuition for parochial school education in no way implicates the constitutional provisions cited by the defendant. Instead, the order merely authorized a payment by the defendant for the education of his children. The trial court was authorized to make such an order under General Statutes § 46b-56 (a).

There is no error.


author: Spallone, J.

text:
    Larry M. Lynch v. Benjamin A. Muzio, Commissioner of Motor Vehicles
    (4496)
    Dupont, C. J., Hull and Spallone, Js.
    Submitted on briefs May 5 —
    decision released June 17, 1986

      Samuel B. Feldman filed a brief for the appellant (plaintiff).

      Joseph I. Lieberman, attorney general, and Peter E. Weise, assistant attorney general, filed a brief for the appellee (defendant).
   Spallone, J.

The plaintiff is appealing from the judgment of the trial court dismissing his appeal from the suspension of his motor vehicle operator’s license by the defendant, the commissioner of motor vehicles (commissioner).

After a hearing held pursuant to General Statutes § 14-111 (c), the commissioner made findings of fact and reached conclusions of law substantially as follows. On October 24, 1983, at about 5:15 p.m., the plaintiff, Larry M. Lynch, was operating a 1980 Buick, registration plate number C-94350, in a southerly direction on Birdseye Road in Farmington. He was operating the vehicle in an erratic manner in that the vehicle was weaving between the northbound and southbound lanes of Birdseye Road. At one point, the plaintiff’s vehicle turned sharply to the right and struck Christopher Bakaj who was operating a bicycle off of the traveled portion of Birdseye Road. Bakaj died as a result of the injuries he sustained.

Subsequently, the plaintiff appeared in the Superior Court and pleaded no contest to a charge of reckless driving as to this occurrence. He was found guilty.

The commissioner concluded that the plaintiff did cause or contribute to the death of Bakaj in that he (1) was driving recklessly, (2) failed to keep his vehicle under proper control, (3) failed to keep a proper lookout, and (4) evaded responsibility. On the basis of those findings of fact and conclusions of law, the commissioner ordered the suspension of the plaintiffs license for a period of thirty months. The plaintiff, on or about March 25,1985, received notice of his license suspension. Subsequently, on April 8, 1985, the plaintiff received notice that the effective date of his suspension would be April 20, 1985, and that he was to turn in his license to the commissioner on or before that date.

The plaintiff appealed to the Superior Court from the commissioner’s decision. In response to the commissioner’s motion to dismiss the appeal because the plaintiff failed to invoke the jurisdiction of the court by not serving a copy of the appeal on the commissioner within thirty days after the commissioner mailed notice of its decision to the plaintiff, the trial court made the following findings. The commissioner mailed the notice of its decision on March 22, 1985, and the plaintiff served a copy of his appeal on the commissioner on April 30,1985. On the basis of these findings, the court concluded that the plaintiff did not comply with the time requirement of General Statutes § 4-183 (b). The court concluded that it lacked jurisdiction to hear the appeal and, therefore, granted the commissioner’s motion to dismiss the appeal.

The plaintiff concedes that a copy of his appeal was not served on the commissioner within thirty days of the date he received notice of the decision. He contends, however, that the time period should not be measured from his receipt of notice of the decision after the hearing, but should be measured from the time the plaintiff received notice of the effective date of his suspension, which notice was received by the plaintiff on April 8, 1985. It is undisputed that the plaintiff served a copy of his appeal on the commissioner on April 20, 1985, thirty-nine days after the March 22, 1985 notice but twenty-two days after receiving the notice of the effective date of his suspension.

The sole question before us is whether the trial court erred in concluding that the time within which the plaintiff should have perfected his appeal was thirty days from the March 22, 1985 notice of decision. We hold that the trial court acted properly in holding that the thirty day appeal period commenced on March 22,1985, the date that the commissioner's findings of fact, conclusions of law and the order of suspension were mailed to the plaintiff.

It is a well established principle of law that statutory appeals may be maintained only if they conform strictly to the statutory requirements. Less than strict compliance with the precise statutory requirements will fail to invoke the jurisdiction of the court. Farricielli v. Personnel Appeal Board, 186 Conn. 198, 201, 440 A.2d 286 (1982); In re Nunez, 165 Conn. 435, 441, 334 A.2d 898 (1973); Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393 (1972); Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337 (1965); 4 Am. Jur. 2d, Appeal and Error § 4.

In this case, the administrative hearing was held pursuant to General Statutes § 14-111 (c) to determine whether the plaintiff caused or contributed to the death of the victim and, if so, what appropriate order should enter as a penalty.

General Statutes § 4-183 sets forth specific mandatory steps which must be followed by the plaintiff in order to perfect his appeal and invoke the jurisdiction of the Superior Court. A copy of the appeal must be served upon the agency within thirty days after notice of the agency’s “final decision” is mailed.

The plaintiff argues that the final decision does not occur until the plaintiff is notified of the effective date of his license suspension. The commissioner counters, asserting that the final decision is the notice sent to the plaintiff, which contains the commissioner’s findings of fact, conclusions of law and the order of suspension. We agree with the commissioner’s interpretation which the trial court adopted when it granted the motion to dismiss.

The commissioner’s notice of decision of March 22, 1985, contains all the information necessary for the plaintiff to form an opinion of whether or not to appeal. This notice is sent after the commissioner performs its adjudicative function. Any errors of procedure or substance become apparent at this time and are subject to the plaintiff’s analysis. The further notice of the effective date of the license suspension is purely administrative and merely serves to give efficacy to the findings, conclusions and orders of the commissioner contained in his notice of decision. Our Supreme Court has stated that “[i]t is not essential that a notice of decision expressly state every consideration that might be relevant to any party who might want to appeal the board’s decision. It is only necessary to provide notice adequate to ensure a reasonable opportunity within the applicable time constraints to obtain the information to form an opinion whether or not to appeal.” Bridge port Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 282, 487 A.2d 559 (1985). We hold that the trial court correctly applied the law when, by its dismissal, it concluded that the thirty day period ran from the mailing of the defendant’s notice of decision. The court’s decision is supported by Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, supra. Here, as in that case, all the information necessary for the plaintiff to form a reasoned and intelligent opinion as to whether or not to appeal was encompassed within the notice of decision.

The separation of the adjudicative process from the administrative process is not an unknown procedure in this state, particularly in the area of motor vehicle violations. For example, convictions of driving under the influence of intoxicating liquor, result, without further hearing, in the suspension of drivers’ licenses. See General Statutes § 14-22-7a (h) and (j).

The decision of the trial court is a rational and logical response to the facts and circumstances present in this case and is in accordance with the law.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 14-111 (c) provides: “The commissioner shall not suspend the license of any operator concerned in any motor vehicle accident resulting in the death of any person solely because such death has occurred, unless the facts as ascertained by the commissioner, after a hearing, indicate responsibility on the part of such operator for such accident, and, if, after such hearing, the commissioner finds that such operator has caused or contributed to such death through the violation of any provision of this chapter or of chapter 248 or through negligence or carelessness, such suspension shall be for not less than one year. A motor vehicle parked in a manner permitted by law shall not be deemed to be concerned in such accident.”


text:
    Chester J. Richmond v. Julia A. Richmond
    (3560)
    Dupont, C. J., Hull and Daly, Js.
    Argued April 29 —
    decided April 29, 1986

      Peter W. Botella, with whom, on the brief, was A. A. Washton, for the appellant (defendant).

      Mary E. Holzworth, with whom were Kathleen B. Gravalec, and, on the brief, Francis J. Foley III, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    State of Connecticut v. George Earl Smith
    (4272)
    Dupont, C. J., Hull and Daly, Js.
    Argued May 1 —
    decided May 1, 1986

      Paul D. Eschuk, deputy assistant public defender, for the appellant (defendant).

      Raymond J. Doyle, Jr., assistant state’s attorney, for the appellee (state).
   Per Curiam.

There is no error.


text:
    Vilmos Havasi v. Danbury Recreation Company et al.
    (4572)
    Borden, Spallone and Bieluch, Js.
    Argued May 7 —
    decided May 7, 1986

      Gerald Hecht, for the appellants (defendants).

      Ted D. Backer, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Connecticut Natural Gas Corporation v. Stanley V. Tucker
    (4121)
    Borden, Spallone and Bieluch, Js.
    Argued May 7 —
    decided May 7, 1986

      Stanley V. Tucker, pro se, the appellant (defendant).

      Patrick T. Hutton, for the appellee (plaintiff).
   Per Curiam.

The defendant appealed from the judgment of the court appointing a receiver of rents pursuant to General Statutes § 16-2621 At oral argument in this court, the plaintiff filed a motion to dismiss the appeal on the ground of mootness. The judgment appointing a receiver had been stayed pending the appeal and, in the interim, the defendant lost his interest in the subject real estate through foreclosure. The plaintiff has also withdrawn the underlying trial court action from which the defendant appealed. Thus, the motion to dismiss should be granted.

The appeal is dismissed.


text:
    James DiLieto v. Mitchell Keszyki et al.
    (4429)
    Borden, Spallone and Bieluch, Js.
    Argued May 8 —
    decided May 8, 1986

      Bruce L. Levin, for the appellant (plaintiff).

      Mark C. Gersz filed a brief for the appellees (defendants).
   Per Curiam.

By motion filed March 20, 1986, the plaintiff, who is the appellant, moved in this court that the order appealed from be set aside because the defendants, who are the appellees, had not provided the plaintiffs counsel with a copy of their brief. On April 15,1986, we ordered that the trial court’s order granting a stay of attachment be vacated and that a new hearing be held unless the defendants filed a new certification of service of their brief to opposing counsel on or before April 25,1986. At oral argument held on May 8,1986, the defendants’ counsel did not appear, and the plaintiff’s counsel informed us that he had not yet received a copy of the defendants’ brief as ordered. Therefore, in accordance with our order of April 15, 1986, the order of the trial court staying the attachment should be vacated for failure of the defendants to defend against the appeal with proper diligence. Practice Book § 3109.

The order of the trial court is set aside, and the case is remanded for a new hearing on the motion for stay of order allowing prejudgment remedy.


author: PER CURIAM.

text:
    STATEWIDE GRIEVANCE COMMITTEE v. JOHN TIMBERS
    (AC 21256)
    Lavery, C. J., and Schaller and Peters, Js.
    Argued April 2
    officially released May 21, 2002

      Steven G. M. Biro, with whom, on the brief, was John Timbers, pro se, for the appellant (defendant).

      Maureen A. Morgan, assistant bar counsel, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, John Timbers, appeals from the trial court’s judgment suspending him from the practice of law for a period of six months. We affirm the judgment of the trial court.

On May 26,1999, the plaintiff, the statewide grievance committee, filed a presentment complaint alleging misconduct against the defendant, an attorney licensed to practice law in this state. On August 2, 2000, following a hearing, the court filed a memorandum of decision and rendered judgment against the defendant. The court concluded that the defendant had violated rule 1.4 (a) of the Rules of Professional Conduct by failing to communicate with his client regarding his fee and rule 1.5 (c) of the Rules of Professional Conduct by failing to secure a written contingent fee agreement with his client. In determining the appropriate sanction for the defendant’s violations of the Rules of Professional Conduct, the court utilized the American Bar Association’s Standards for Imposing Lawyer Sanctions (Standards). Pursuant to § 9.22 of the standards, which sets forth aggravating factors, the court found that the defendant (1) previously had been disciplined by the plaintiff, (2) had acted in a selfish manner and (3) had been a member of the Connecticut bar- for approximately nineteen years. The court suspended the defendant from the practice of law from August 15, 2000, to February 15, 2001. The defendant thereafter appealed.

On appeal, the defendant claims that the court improperly (1) denied his motion for articulation, (2) concluded that he did something more than violate rule 1.5 (c) by violating rule 1.4 (a) and (3) imposed a penalty of six months suspension from the practice of law.

“In presentment proceedings, the statewide grievance committee must prove by clear and convincing evidence that the attorney engaged in misconduct in violation of the Rules of Professional Conduct. See Statewide Grievance Committees. Whitney, [227 Conn. 829, 838, 633 A.2d 296 (1993)]. The trial court conducts the presentment proceeding de novo. See Statewide Grievance Committee v. Presnick, 215 Conn. 162, 167, 575 A.2d 210 (1990). In determining whether an attorney violated the Rules of Professional Conduct and the appropriate sanction to impose, the trial court possesses a great deal of discretion. See Statewide Grievance Committee v. Presnick, 216 Conn. 127, 131, 577 A.2d 1054 (1990); Grievance Committee v. Nevas, 139 Conn. 660, 666, 96 A.2d 802 (1953). When the trial court determines that an attorney committed misconduct in violation of the Rules of Professional Conduct, unless it clearly appears that [the attorney’s] rights have in some substantial way been denied him, the action of the court will not be set aside upon review. . . . Statewide Grievance Committee v. Presnick, supra, [132], quoting In re Durant, 80 Conn. 140, 150, 67 A. 497 (1907).” (Internal quotation marks omitted.) Statewide Grievance Committee v. Egbarin, 61 Conn. App. 445, 453, 767 A.2d 732, cert. denied, 255 Conn. 949, 769 A.2d 64 (2001).

We have reviewed the proceedings in the trial court and, after considering the briefs and arguments of the parties, we conclude that the court’s findings and the penalty imposed on the defendant were well within the court’s discretion.

The judgment is affirmed.

       Rules of Professional Conduct 1.4 (a) provides: “A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.”

       Rules of Professional Conduct 1.5 (c) provides: “Afee maybe contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by subsection (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages of the recovery that shall accrue to the lawyer as a fee in the event of settlement, trial or appeal, whether and to what extent the client will be responsible for any court costs and expenses of litigation, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.”

       “Courts considering sanctions against attorneys measure the defendant’s conduct against rules of professional conduct. The professional conduct of attorneys in Connecticut is governed by the Rules of Professional Conduct, as found in the Practice Book. Although Connecticut’s Rules of Professional Conduct delineate what is improper conduct, they do not provide guidance for what sanctions are appropriate for the particular conduct. For this reason, Connecticut courts reviewing attorney misconduct have looked to the American Bar Association’s Standards for Imposing Lawyer Sanctions . . . which do provide guidance as to what disciplinary sanctions are appropriate.” Statewide Grievance Committee v. Spirer, 46 Conn. App. 450, 463-64, 699 A.2d 1047 (1997), rev’d on other grounds, 247 Conn. 762, 725 A.2d 948 (1999).

       We need not address that claim because whether there was a need for the trial court to articulate its decision was resolved by this court’s ruling with respect to the defendant’s request to file a late motion for articulation.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. MAJOR HOLMES
    (AC 21449)
    Foti, Mihalakos and Dupont, Js.
    Argued February 25
    officially released May 21, 2002

      Arnold V. Amore II, special public defender, for the appellant (defendant).

      Melissa L. Streeto, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Cecelia Wiederhold, supervisory assistant state’s attorney, and Laura D. DeLeo, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Major Holmes, appeals from the judgment of the trial court revoking his probation and imposing a twenty month term of incarceration. On appeal, the defendant claims that the court improperly (1) denied his motion to dismiss count one of the state’s long form information charging him with violations of probation and (2) found that there was sufficient evidence to establish such a violation as alleged in counts two and three of that information. We affirm the judgment of the trial court.

The court found the following facts. On July 16,1999, the defendant pleaded guilty to and was convicted of assault in the third degree in violation of General Statutes § 53a-61 and threatening in violation of General Statutes § 53a-62. The court sentenced the defendant to two years of incarceration, execution suspended after four months, and three years of probation. As part of his probation, the defendant agreed not to violate any criminal law of the state of Connecticut. He was further required to adhere to special conditions of probation, which required his participation in rehabilitative sessions dedicated to treatment for domestic violence and anger management, as well as sessions for the evaluation and treatment of substance abuse.

During his probation, the defendant was arrested on two separate occasions for allegedly having committed assault in the third degree, once on April 18, 2000, and once on June 2, 2000. The defendant also failed to report to, or attend for the required time, rehabilitative sessions on at least four occasions.

As a result, the state charged the defendant in a three count, long form information with violating his probation pursuant to General Statutes § 53a-32 (a). The court held hearings on October 27, 2000, and November 1, 2000, and concluded that the defendant had violated all three counts against him. This appeal followed.

The defendant claims that the court improperly found that he violated the special conditions of his probation as alleged in counts two and three of the state’s long form information. Specifically, he argues that the state failed to proffer sufficient evidence during the probation revocation hearing to establish such a violation because the testimony of the state’s primary witness was “replete with contradiction.” We disagree.

We first set forth the legal principles that govern our resolution of the defendant’s claim. “A revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served.” (Internal quotation marks omitted.) State v. Hill, 256 Conn. 412, 425, 773 A.2d 931 (2001). Because the defendant challenges only the court’s factual determination that he violated the special conditions of his probation, we review only that determination.

“In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . Our review is limited to whether such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Id., 425-26. “This court defers to the trial court’s discretion in matters of determining credibility and the weight to be given to a witness’ testimony.” State v. Garuti, 60 Conn. App. 794, 797, 761 A.2d 774 (2000), cert. denied, 255 Conn. 931, 767 A.2d 102 (2001).

Moreover, a probation revocation proceeding is civil in nature and, therefore, “does not require all of the procedural components associated with an adversary criminal proceeding.” (Internal quotation marks omitted.) State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994). As such, the state’s burden in probation revocation proceedings is governed by the fair preponderance of the evidence standard, which is “the ordinary civil standard of proof.” (Internal quotation marks omitted.) Id., 296. Further, “[t]he burden of persuasion in an ordinary civil action is sustained if evidence induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true.” (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 533, 441 A.2d 151 (1981).

Framing the issue squarely, the defendant asks this court to review the evidence on which the trial court made its factual findings and to conclude otherwise.

At the probation revocation hearing, the court heard testimony from, among others, the state’s primary witness, Frances Wilhoite, coordinating supervisor for the domestic violence and psychological education program at Project Search. Wilhoite testified that Project Search issued two schedules to the defendant at the program’s orientation. The first schedule covered the orientation period, which usually lasts four weeks. The second schedule, which the defendant was to follow after the orientation period was completed, was more time intensive. Wilhoite further testified that the defendant was informed both in writing and orally that it was the policy of Project Search that two unexcused absences from the designated schedule times would result in the program requesting to the office of adult probation that the defendant’s participation be terminated. Wilhoite’s testimony, which was supported by attendance records, established that the defendant failed to attend, without providing notice, sessions on May 1, 4, 11 and 25, 2000, and that he left during the middle of a session on May 22, 2000.

On the basis of the evidence before it, the court believed that it was more probable than not that the defendant had failed to comply with the attendance requirements of Project Search insofar as he failed to attend, or remain for the required time in, the mandated rehabilitative sessions on two or more occasions and that such absences were unexcused. The court acted properly in finding that the defendant violated the specific special conditions of his probation. As a result, the court’s factual findings cannot be said to be clearly erroneous because the record contains evidence to support such findings. Moreover, on the basis of the entire evidence, we are not left with the definite and firm conviction that a mistake has been committed.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state’s information alleged three counts. Count one accused the defendant of violating criminal laws of this state on two occasions. Counts two and three accused him of failing to comply with the special conditions of his probation concerning substance abuse evaluation and treatment, as well as domestic violence and anger management counseling, respectively.

       We need not address the defendant’s first claim on appeal because sufficient evidence establishes that he violated his probation as alleged in counts two and three, thereby rendering harmless any judicial error that might otherwise be present.
      At oral argument, the defendant further claimed that because the court found that he had violated his probation as alleged in all three counts of the state’s long form information, it improperly enhanced his tenn of incarceration by reinstating the remaining twenty months left on his original suspended sentence. We decline to address that claim on the basis of the well established rule, which is in need of no citation, that this court does not have to entertain claims that have been inadequately briefed. The defendant’s brief is devoid of any claim whatsoever regarding sentence enhancement and, therefore, we decline to address it because it was presented to this court for the first time at oral argument.

       The defendant does not claim that he was unaware of or misunderstood the terms of his probation.

       Facts concerning the defendant’s arrests, which are not reviewed by this court, are set forth only for the purpose of providing a complete factual background of the defendant’s appeal.

       The defendant was also arrested and charged with breach of the peace based on the same incident on April 18, 2000.

       See footnote 2.

       The court had ordered the defendant to comply with substance abuse evaluation and treatment sessions at Project Search, and to cooperate with domestic violence and psychological testing and evaluation sessions at Project Moore, a program within Project Search. For purposes of clarity, all sessions required by the defendant’s probation are referred to as being at Project Search.

       At the initial orientation session, the defendant signed an agreement with Project Search that stated in relevant part: “Attendance Requirement: [The defendant] ... is expected to attend every session. [The defendant] . . . agree[s] to give at least 24 hours notice for any missed meeting except in the case of an emergency. [The defendant] agree [s] to abide by the decision of [his] group leaders whether [a] missed session is excused or unexcused.”

       Project Search was required to inform the office of adult probation of any of the defendant’s absences. Project Search satisfied that requirement according to the testimony of Elisa D’Aniello, the defendant’s probation officer.


author: DRANGINIS, J. FLYNN, J.,

text:
    ANGELINA SANTA MARIA v. KATIE KLEVECZ ET AL.
    (AC 21280)
    Dranginis, Flynn and Daly, Js.
    Argued January 8
    officially released May 21, 2002

      Warren Miller, with whom was R. Edward Phillips, for the appellant (plaintiff).

      Mark J. Sheehan, with whom was Francine R. Devin, for the appellees (defendants).
   Opinion

DRANGINIS, J.

The plaintiff, Angelina Santa Maria, appeals from the judgment of the trial court rendered in her favor in this personal injury action, claiming that the court should have granted her motion to set aside the verdict. On appeal, the plaintiff claims that the motion was denied improperly because (1) the jury’s failure to award noneconomic damages was contrary to the jury instructions and the evidence, (2) the amount of economic damages was contrary to the evidence presented and (3) the juiy’s award compels the conclusion that the jury was mistaken or influenced by prejudice, corruption or partiality. We affirm the judgment of the trial court.

This appeal arises from a personal injury action brought by the plaintiff to recover damages for injuries she sustained in an automobile accident with the defendants, Brian Klevecz and Katie Klevecz. At trial, the defendants admitted liability for the collision. The extent of injuries allegedly sustained by the plaintiff, however, was disputed. The jury awarded the plaintiff $2000 in economic damages. It did not award noneconomic damages. The plaintiff subsequently filed a motion to set aside the verdict, which the court denied. This appeal followed.

We must first consider whether the record is adequate for our review. In this case, the court denied the plaintiffs motion to set aside the verdict without comment. It did not prepare a written memorandum of decision, nor is there a signed transcript of an oral decision as required by Practice Book § 64-1. The plaintiff failed to complete the record by way of a motion for articulation. “It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative. . . . We have, on occasion, reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the trial court’s findings. . . . Where the transcript does not reveal the basis of the court’s factual conclusion, we will not review the appellant’s claims.” (Internal quotation marks omitted.) Mitchell v. Silverstein, 67 Conn. App. 58, 61-62,787 A.2d 20 (2001), cert. denied, 259 Conn. 931, 793 A.2d 1085 (2002). The record in this case includes an unsigned transcript that contains a sufficiently detailed and concise statement of the court’s finding. See Solomon v. Solomon, 67 Conn. App. 91, 92, 787 A.2d 4 (2001). We therefore will review the plaintiffs claims.

“[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial . . . [is] the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . [W]e do not . . . determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) Hackling v. Casbro Construction of Rhode Island, 67 Conn. App. 286, 289, 786 A.2d 1214 (2001). With that standard of review in mind, we turn to each of the plaintiffs claims.

I

The plaintiff first claims that the jury award was contrary to the court’s instructions. Specifically, the plaintiff claims that the jury was instructed that she was entitled to noneconomic damages for “pain, suffering, physical or mental disability or impairment,” but that the jury failed to award noneconomic damages despite evidence supporting such an award.

“In a recently decided case, Wickers v. Hatch, 252 Conn. 174, 745 A.2d 789 (2000), our Supreme Court discussed the test that a trial court should use in deciding whether to set aside a verdict awarding economic damages but no noneconomic damages, and stated that the jury’s decision to award economic damages and zero noneconomic damages is best tested in light of the circumstances of the particular case before it. Accordingly, the trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue. That decision should be made, not on the assumption that the jury made a mistake, but, rather, on the supposition that the jury did exactly what it intended to do.

“As we previously have stated, although the trial court has a broad legal discretion in this area, it is not without its limits. Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury . . . the court’s action cannot be reviewed in a vacuum. The evidential underpinnings of the verdict itself must be examined. Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached. . . . [I]f there is a reasonable basis in the evidence for the jury’s verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work their will.” (Internal quotation marks omitted.) Daigle v. Metropolitan Property & Casualty Ins. Co., 60 Conn. App. 465, 477-78, 760 A.2d 117 (2000), affd, 257 Conn. 359, 777 A.2d 681 (2001).

The transcript reveals that the court denied the plaintiffs motion to set aside the verdict on the ground that the jury’s valuation of noneconomic damages was based on its assessment of the credibility of the witnesses and that the court could find no reason to usurp the jury’s finding. We agree.

The jury heard testimony concerning the nature and extent of the plaintiffs alleged injury and pain and suffering. The jury first heard testimony from the plaintiff herself that she suffered neck and back pain, headaches, nausea, constipation and hemorrhoids, and that she had trouble sleeping. The jury had before it deposition testimony from Steven Grob, a chiropractor. He testified that the plaintiff had pain and that his initial diagnosis of her was a “lumbar disk displacement of L5, SI, which is the lowermost disk space in the lower back, lumbar radiculitis, cervical strain/sprain injury, headaches or cervical cranial syndrome and thoracic or mid-back strain/sprain.” He rated the plaintiff as having a permanent disability that he described as “5 percent whole person impairments to the cervical, thoracic and lumbar spines as a result of the accident . . . that converts to 11 percent whole person impairment.”

Michael Yoel, also a chiropractor, testified for the defendants. He testified that he reviewed the plaintiffs medical records and performed a medical examination of her. He testified that he observed no abnormalities or deformities and that the plaintiff utilized a full range of motion. In fact, he testified that the plaintiffs physical examination was “normal” and that he did not think that she had “any permanent physical disability.” We note that Yoel did testify that “she had some injury and felt pain for a couple of weeks or maybe a couple of months.” He went on to state, however, “I just don’t believe it was ... a permanent injury.” He further undermined Grob’s testimony by raising questions about his diagnoses and treatment plans.

Our review of the record reveals that the defendants disputed the nature and extent of the plaintiffs injuries. On the basis of the testimony adduced at trial, we conclude that it was reasonable for the jury to conclude that the plaintiffs alleged pain and suffering was, at a minimum, exaggerated. First, the accident was relatively minor. It caused little or no damage to the vehicles and did not require emergency care for any of the parties. Second, the plaintiff complained of various ailments, which, if the jury believed Yoel, were not supported by her medical record or physical examination, and were not necessarily causally related to the accident. The record further supports the conclusion that the plaintiff received treatment well beyond that which was medically necessary. The jury also heard testimony that the plaintiff previously had injured herself in a slip and fall. It was reasonable therefore for the jury to conclude that the fall or other stressors were at least partially responsible for the plaintiffs alleged pain and suffering. That is consistent with the jury’s award of economic damages substantially less than the amount sought. Cf. Schroeder v. Triangulum Associates, 259 Conn. 325, 333-34, 789 A.2d 459 (2002) (zero noneconomic damages improper where jury found defendant fully liable for all of plaintiffs claimed economic damages). “It is the province of the jury to weigh the evidence and determine the credibility and the effect of testimony .... [T]he jury is free to accept or reject each expert’s opinion in whole or in part.” (Citation omitted; internal quotation marks omitted). Marchell v. Whelchel, 66 Conn. App. 574, 583, 785 A.2d 253 (2001). We therefore cannot conclude that the court abused its discretion in denying the plaintiffs motion to set aside the verdict based on the jury’s award of zero noneconomic damages.

II

The plaintiff next claims that the jury’s award of $2000 in economic damages was contrary to the evidence presented. The plaintiff further claims that because the award was contrary to the evidence, the jury therefore must have been “mistaken, influenced by prejudice, corruption or partiality.” We are not persuaded.

“The test that governs the propriety of the amount of an award in these circumstances 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. ... On issues where the evidence allows room for reasonable differences of opinion among fair-minded people, if the conclusion of the jury 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.) Hackling v. Casbro Construction of Rhode Island, supra, 67 Conn. App. 294-95.

The plaintiff argues that if the jury accepted the testimony of her expert witness, Grob, the evidence supports an award of $11,394.71. She points out that Yoel testified that she might need up to three months of treatment. The plaintiff concedes, as she must, that “the jury could reasonably have accepted only a portion of Dr. Yoel’s testimony and determined, therefore, that less than three months of chiropractic treatment with Dr. Grob was reasonable and necessary.” She then argues, disingenuously, that the $2000 award “does not correspond to any reasonable combination of evidence presented to the jury.”

“[T]he determination of the amount of damages to be awarded, if any, is solely the jury’s function.” General Statutes § 52-216b (b); Daigle v. Metropolitan Property & Casualty Ins. Co., supra, 60 Conn. App. 473-75. “Although damages often are not susceptible of exact pecuniary compensation and must be left largely to the sound judgment of the trier ... [a] situation does not invalidate a damage award as long as the evidence afforded a basis for a reasonable estimate by the [trier] of that amount. . . . Mathematical exactitude in the proof of damages is often impossible .... The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.” (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 862-63, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

We cannot say, in the present case, that the jury’s award of $2000 in economic damages was contrary to the evidence. As we stated, the jury had before it testimony that not all of the plaintiffs treatments were necessary. The jury reasonably could have apportioned economic damages according to its assessment of necessary treatment. The plaintiffs own examples demonstrate that the jury’s assessment of damages was proper.

The judgment is affirmed.

In this opinion DALY, J., concurred.

FLYNN, J.,

dissenting. I respectfully disagree with the majority as to its conclusion concerning noneconomic damages. I would reverse the judgment denying the motion to set aside the verdict and would order a new trial as to damages.

In my opinion, it is important to state at the outset what this case is not about. First, it is not a compromise general verdict. A general verdict was not rendered. Cf. Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982). The jury rendered special verdicts, as it was required to do by General Statutes § 52-225d, as to both economic and noneconomic damages. From these special verdicts, we are able to test whether each verdict was consistent with the particular circumstances before the jury.

Second, the infirmities concerning the verdict are unrelated to whether the impact between the vehicles of the plaintiff and the defendants was slight or not. Slight or not, we know from the special verdict rendered on economic damages that the jury found that the collision in which the defendants’ vehicle struck that of the plaintiff caused the plaintiff pain and injury for which the jury awarded damages incurred for treatment. That was all that the plaintiff was required to prove to establish the right to at least nominal damages for the suffering of that pain, whatever the degree of the severity of the impact.

Third, the fact that the jury did not award all of the economic damages claimed should also not make a difference, if in awarding the part it did allow it necessarily had to find that the defendants’ negligence caused noneconomic damages, namely pain and suffering.

Fourth, while there were some items of noneconomic damages which the jury reasonably could have found not proved, that should not make a difference in determining what should be done about the juiy’s failure to award noneconomic damages for enduring pain, which it necessarily did find proved.

I now turn to those principles of law and facts that do make a difference in this case. In Wickers v. Hatch, 252 Conn. 174, 188-89, 745 A.2d 789 (2000), our Supreme Court held that a jury is not required to award noneconomic damages merely because it has awarded economic damages. Wickers did not hold that if an award of a particular item of damages, in light of the evidence and the instructions given, necessarily means that the jury found that the plaintiff also suffered noneconomic damages, the jury was somehow free to award nothing for the noneconomic damages it found proved. See also Schroeder v. Triangulum Associates, supra, 259 Conn. 333 (“jury reasonably could not have initially found the defendant liable for the expense of the surgery but not responsible for any pain or disability attendant to such surgery”). To the contrary, Wickers held that “the jury’s decision to award economic damages and zero noneconomic damages is best tested in light of the circumstances of the particular case before it.” Wickers v. Hatch, supra, 188. In my opinion, under the circumstances in this case, an award of at least part of the total of economic damages claimed for the treatment of pain means necessarily that the defendants caused pain that needed to be treated and would not have occurred but for some negligent act of the defendants. It is unjust not to award noneconomic damages for the pain and suffering the plaintiff endured when the jury first determined that the plaintiff had proved an injury that the defendants caused resulted in economic damages for the treatment of that pain.

We know that the jury awarded at least $372.85 of the amount claimed for the chiropractic treatment of pain. There was a special verdict here in which the jury was required to set out the total sum of economic damages it found proved for a chiropractic bill and other medical expenses. It awarded $2000 in economic damages. If we assume that the jury awarded all of the other nonchiropractic medical expenses without diminution, we necessarily must conclude that it still included at least $372.85 toward chiropractic bills, which were incurred for the treatment of pain. The jury could not, therefore, reasonably have found that the plaintiff had failed in her proof on this issue. It award ed a part of the bill of a chiropractor who was engaged to treat pain. We, therefore, do not have the kind of “mere award” of economic damages that Wickers found did not mandate a noneconomic award. Instead, we have a verdict whereby in awarding some damages for chiropractic pain treatment, the jury necessarily found that the defendants caused pain. The jury had been charged to award fair compensation for any pain caused to the plaintiff by the defendants. Enduring pain and suffering from an injury, where it is caused by the defendants’ negligence, is compensable. An award that includes nothing for such an item of noneconomic damage, which the jury found that the defendants caused, is manifestly unjust and should not stand. Such an unjust result cannot be justified on principles of finality or expediency.

I respectfully dissent.

       Goneral Statutes § 52-572h (a), which sets forth the relevant definitions of economic and noneconomic damages, provides in relevant part: “(1) ‘Economic damages’ means compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages; (2) ‘noneconomic damages’ means compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering . . .

       Among other tilings, Yoel testified that the cervical spine deterioration to which Grob referred in his testimony (1) often does not present pain, (2) the plaintiffs complaints of pain were inconsistent with her cervical spine curvature and (3) could not necessarily be attributable to a traumatic injury, but may have been due to normal deterioration. Yoel also testified, contrary to Grob’s assertion, that observations with respect to the plaintiffs uneven stature were insignificant. He stated that there was nothing in the record or from his examination to support Grob’s conclusion that the plaintiff suffered from lumbar disc displacement or lumbar radiculitis, and testified about inconsistencies and inadequacies in Grob’s medical record keeping for the plaintiff.

       The record revealed that the plaintiff recently was divorced and was considering attending college.

       The plaintiff also argues that in light of the jury’s award of economic damages, the jury’s failure to award noneconomic damages must have been the result of prejudice, corruption or partiality. Because we held in part I that the award of zero noneconomic damages was supported by the evidence, we conclude that this claim is without merit.

       The plaintiff in her principal brief cites three different combinations of costs amounting to $2098.15, $1972.05 and $2021.05.

       I note from my review of the medical bills and reports in evidence that the plaintiff consulted the chiropractic offices of Steven D. Grob because of pain and stiffness in the cervical spine and low back. He treated her for that pain by spinal manipulation and adjustment, hot and cold packs, electrical stimulation, therapeutic exercise and other similar methods.
      Any argument that, despite the substantial evidence to the contrary, the jury could have discredited the evidence of pain treatment by the chiropractor and only credited the evidence concerning chiropractic treatment of the irjury itself does not make this verdict more logical, consistent or supportable because the plaintiff was still entitled to noneconomic damages for the infliction of the injury itself. The bodily injury itself is an item of noneconomic damages. Although a jury is not obligated to believe that every injury causes pain, it may not disregard an obvious injury. Vajda v. Tusla, 214 Conn. 523, 538, 572 A.2d 998 (1990). Nor is it logical to award damages for the treatment of an injury and award no noneconomic damages for sustaining it.

       Taking the $2000 jury award and deducting the total nonchiropractic medical expenses of $1627.15, which is comprised of $1239 for services rendered by Robert Shaw, a physician, $257.15 for services rendered by Lawrence & Memorial Hospital, and $121 for services rendered by Ocean Radiology Associates, leaves a balance of $372.85.


author: FLYNN, J.

text:
    MARIA SERRANO v. J. WILLIAM BURNS, COMMISSIONER OF TRANSPORTATION, ET AL.
    (AC 21654)
    Schaller, Flynn and Hennessy, Js.

      Submitted on briefs January 11
    officially released May 21, 2002

      James H. Lee filed a brief for the appellant (plaintiff).

      Louis B. Blumenfeld filed a brief for the appellee (named defendant).
   Opinion

FLYNN, J.

The plaintiff, Maria Serrano, appeals from the judgment of the trial court rendered in favor of the defendant J. William Bums, commissioner of transportation, following the granting of the defendant’s motion for summary judgment. The dispositive issue on appeal is whether the plaintiffs written notice of claim was so patently defective that it failed to meet the statutory requirements of the highway defect statute, General Statutes § 13a-144, and, therefore, warranted the summary judgment rendered in favor of the defendant. We answer that question in the negative and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On September 20, 1996, the plaintiff filed an amended complaint alleging that she had suffered injuries as a result of slipping and falling on ice and snow while walking in a public parking lot located at a rest stop off of Interstate 91 in Middle-town. In an attempt to comply with the notice provisions of § 13a-144, the plaintiff timely sent a letter to the defendant, which set forth the plaintiffs name, the time and date of the incident, the cause of the injury, a general description of the injury and the place of its occurrence. The issue in this case arises because the letter indicated that the place of occurrence was the “State of Connecticut Rest Area, Middletown, Connecticut, between exits 19 and 20 on Interstate 91 (rear lot)” whereas other documentation indicated that the fall occurred on a handicapped sidewalk ramp.

Thereafter, the defendant filed a motion for summary judgment on the ground that the statutory notice was defective as a matter of law both because the plaintiff failed to describe the precise location of the alleged highway defect and because the plaintiff identified the wrong location. In support of its motion, the defendant filed a copy of the plaintiffs § 13a-144 notice of claim, a portion of the plaintiffs deposition and a copy of a February 24, 1998 brief filed by the plaintiff in the Appellate Court. The defendant claimed that the notice of claim indicated that the injury occurred in the “rear lot” while the other two documents submitted indicated that the injury occurred not in the parking lot but on a handicapped sidewalk ramp, a location that was not as precise and, in fact, different from the “rear lot” location identified in the notice of claim. The court agreed and granted the defendant’s motion for summary judgment after concluding that (1) it could not find that a fall on a handicapped sidewalk ramp is the same as a fall in the rear parking lot and (2) the description of the place of injury patently failed to meet the test set forth in Lussier v. Dept. of Transportation, 228 Conn. 343, 636 A.2d 808 (1994), for satisfying the requirements of § 13a-144. We note that the plaintiffs notice indicated that she was injured in the rear lot. We further note that, despite the defendant’s claim and the court’s ruling to the contrary, there was nothing in the notice to indicate that the injury occurred in the parking lot. This appeal followed.

The plaintiff claims that the court improperly rendered summary judgment in favor of the defendant on the ground that her statutory notice of claim was deficient as a matter of law. She claims that the question of the adequacy of the notice was one for the jury. We agree.

We first set forth our well established standard of review of a trial court’s decision to grant a motion for summary judgment. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) LaSalle National Bank v. Shook, 67 Conn. App. 93, 95, 787 A.2d 32 (2001). Practice Book § 17-49 provides that “[t]he judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

“The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) New Haven Savings Bank v. LaPlace, 66 Conn. App. 1, 6, 783 A.2d 1174, cert. denied, 258 Conn. 942, 786 A.2d 426 (2001). Because the court in the present case rendered judgment for the defendant as a matter of law, our review is plenary.

The test as to whether a notice of claim is patently defective is not whether the written description is exactly the same as the other evidence of the place of injury but rather, as set forth in Lussier v. Dept. of Transportation, supra, 228 Conn. 357, whether it provides “sufficient information as to the injury and the cause thereof and the time and place of its occurrence to permit the commissioner to gather information about the case intelligently.” “The purpose of the requirement of notice is to furnish the party against whom a claim was to be made such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection.” (Internal quotation marks omitted.) Id., 354. Accordingly, “the sufficiency of notice is to be tested with reference to the purpose for which it is required . . . .” (Citation omitted; internal quotation marks omitted.) Tedesco v. Dept. of Transportation, 36 Conn. App. 211, 213, 650 A.2d 579 (1994).

“There are many circumstances when precision will be difficult, if not impossible to achieve .... [Contrary to the assertions of the defendant] precision is, therefore, not essential in order to comply with [the notice provisions of] § 13a-144.” Lussier v. Dept. of Transportation, supra, 228 Conn. 356. What is required is “reasonable definiteness.” Id. “The requirement as to notice was not devised as a means of placing difficulties in the path of an injured person.” (Internal quotation marks omitted.) Id., 354.

“Ordinarily, the question of the adequacy of notice is one for the jury . . . .” (Internal quotation marks omitted.) Murray v. Commissioner of Transportation, 31 Conn. App. 752, 755, 626 A.2d 1328 (1993). “Unless a notice, in describing the place or cause of an injury, patently meets or fails to meet this test, the question of its adequacy is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case.” (Internal quotation marks omitted.) Lussier v. Dept. of Transportation, supra, 228 Conn. 354, quoting Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947).

We conclude that, in the present case, the plaintiffs notice is dissimilar to the notices in other cases in which the common thread is that the court found that the notice at issue identified the wrong location. See, e.g., Ozmun v. Burns, 18 Conn. App. 677, 679 n.3, 680-81, 559 A.2d 1143 (1989) (notice describing location using “north” in place of “south” and “east” in place of “west” erroneous because notice described location where accident did not occur); Zotta v. Burns, 8 Conn. App. 169, 170, 511 A.2d 373 (1986) (location identified as “route 6 in Bolton” and accident occurred on “Camp Meeting Road in Bolton”). In both Ozmun and Zotta, the court determined that the notices at issue were patently defective because they directed the commissioner to locations markedly different from the ones where the injuries actually had occurred. That is not the case here. The notice at issue did not pinpoint the wrong area by referring to erroneous exit numbers or stating the wrong route number.

We also conclude that the plaintiffs description of the location where her injury occurred is not so indefinite as to render her notice of claim patently defective when compared with the descriptions in cases in which notice was found to be patently defective. One line of these cases has as its common thread a description so vague in its breadth that the commissioner could not reasonably be expected to make a timely investigation based on the information provided. See, e.g., Bresnan v. Frankel, 224 Conn. 23, 25-26, 615 A.2d 1040 (1992) (location identified as “Route 14A, Plainfield, Connecticut,” without any further detail and where Route 14A was six mile stretch of road); Schaap v. Meriden, 139 Conn. 254, 256, 93 A.2d 152 (1952) (location identified as “near the edge of a manhole cover” without identifying particular one of numerous manhole covers existing on main street); Murray v. Commissioner of Transportation, supra, 31 Conn. App. 753 (location identified simply as “the northern curbline of Route 22” and Route 22 was public highway running through North Haven); Moffett v. Burns, Superior Court, judicial district of Litchfield, Docket No. 047435 (July 12,1988) (3 C.S.C.R. 636) (location identified as “Route 109, New Milford, Connecticut 06776”), affd, 18 Conn. App. 821, 559 A.2d 1190, cert. denied, 212 Conn. 806, 561 A.2d 947 (1989).

Here, the defendant has offered no proof that the “rear lot” of a particular rest stop encompasses such an expansive area that it fails to guide him in making an intelligent inquiry into the case. Given the record before us, the defendant is not being asked to range over a six mile stretch of roadway or check a score of manhole covers or several rest areas to try to locate where it was that the plaintiff fell and was injured. A notice providing that broad of a description would be patently defective.

The plaintiffs notice is more similar to the notices in more recent cases in which both this court and our Supreme Court have concluded that the notice at issue was not patently defective. See, e.g., Lussier v. Dept. of Transportation, supra, 228 Conn. 353 (location identified as “on rte. 617 [Also known as the rte. 49 access rd. in the town of North Stonington, CT.] . . . vehicle [came] to rest ... in the Shunock River” sufficient although some details omitted); Tedesco v. Dept. of Transportation, supra, 36 Conn. App. 212, (location identified as “sidewalk on Route 202 ... in the Town of Torrington at the bridge known as ‘the Center Bridge’ while walking north on the eastern side of said bridge, in the area adjacent to the Downtown Torrington Shopping Center”). Even if the notice in the present case is not viewed as being as definite as the notices in Lussier and Tedesco, we conclude that the question of its adequacy is one for the jury because the notice is not patently defective.

The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

In this opinion the other judges concurred.

       The plaintiff also named the city of Middletown as a defendant in this action. The city is not, however, involved in this appeal. We refer in this opinion to the commissioner as the defendant.

       General Statutes § 13a-144 provides in relevant part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the acljoining ground so as to be unsafe for travel . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. . . .”

       This case was the subject of a prior appeal to this court in which the plaintiff claimed that the trial court improperly had rendered summary judgment in favor of both the named defendant and the city of Middletown. Subsequently, the city’s motion to dismiss the appeal as untimely was granted. Thereafter, the case was transferred to our Supreme Court, which reversed the judgment of the trial court after determining that the trial court improperly concluded, as a matter of law, that the parking lot where the plaintiff was injured was not within the ambit of General Statutes § 13a-144, and, therefore, that the court should not have rendered summary judgment in favor of the defendant. See Serrano v. Burns, 248 Conn. 419, 727 A.2d 1276 (1999). The brief that the defendant submitted in support of the summary judgment that is at issue here is the plaintiff’s memorandum of law in opposition to the city’s motion to dismiss.

       The court’s oral ruling on the defendant’s motion for summary judgment did not refer to the plaintiffs complaint. We note that the complaint states that the plaintiffs fall occurred in the parking lot. The fact that the statutory written notice did not so refer does not render the notice patently defective. “The notice need not be expressed with the fullness and exactness of a pleading.” (Internal quotation marks omitted.) Lussier v. Dept. of Transportation, supra, 228 Conn. 356.