text:
    STATE OF CONNECTICUT v. CARLOS ORTIZ
    (AC 17102)
    Foti, Lavery and Hennessy, Js.
    Argued October 27
    officially released December 23, 1997

      M. Donald Cardwell, for the appellant (defendant).

      Ellen A. Jawitz, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Stephen Preleski, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Carlos Ortiz, appeals from the judgment, rendered after a jury trial, convicting him of murder as an accessory in violation of General Statutes §§ 53a-54a and 53a-8, and conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a. On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress statements and physical evidence, (2) denied his motion to suppress an out-of-court identification, (3) charged the jury on accessorial liability, and (4) marshaled the evidence in favor of the state during its charge to the jury. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 8, 1993, at approximately 8 p.m., Amette Harrison was riding his bicycle on Retreat Avenue in Hartford when he noticed Angel Ortiz walking toward him. Harrison saw a man run from behind Angel and shoot him. As the man began to shoot at Angel, Harrison fell off his bicycle and hid behind a car and watched the shooter, afraid that he would be shot next. The shooter looked directly at Harrison and then ran up the street and entered the passenger side of a truck. The truck proceeded down the street slowly toward Harrison, who continued hiding behind the car and watching the truck. When the truck reached the spot where Harrison hid, the driver looked directly at Harrison. Harrison recognized the driver as a man by the name of Carlos Ortiz, the defendant, whom he had seen before on a few occasions. After the truck passed, Harrison stepped into the street to attempt to see the license plate number. Harrison further testified that the area was well lit and that, when the truck drove past, he was fifteen to twenty feet away. At trial, Harrison identified the defendant as the driver of the truck. Harrison was able to observe that the truck was a red, orange or brown Subaru-type truck with a white stripe down the side and a rust spot on the driver’s side behind the door. He noted that the license number was “WC, WE, NC or NE, something like that, and four numbers.”

At approximately 8:05 p.m., police arrived at the scene and within minutes broadcast a description of the truck and the direction of travel it was last seen headed. The victim was rushed to the hospital, where he was pronounced dead as the result of gunshot wounds to the chest and arm.

Within minutes of the broadcast, the police located a small red pickup truck with an orange stripe in the nearby Dutch Point housing project. The responding officers followed the truck as it proceeded in the wrong direction on a one-way street and blocked it with their cruiser after it backed into a parking space. Following standard operating procedures when a vehicle is suspected of being involved in a felony and the possibility of confrontation exists, the officers took up positions behind the open doors of their cruiser and ordered the two men out of the truck. The officers did not draw their weapons. The two occupants exited. Again, following standard procedure, the officers ordered the men to lean spread-eagle over the hood of the truck and conducted a pat-down search of the passenger, later identified as the defendant, and the driver, later identified as Marcus Maldonado. The officers also conducted a protective search of the truck. Neither the search of the suspects nor that of the truck revealed any weapons. The license plate of the truck was NC 5808. No description of the license number or identification of the occupants was made during the broadcast.

Approximately twenty-five minutes after the shooting, the police brought Harrison and three other witnesses to Dutch Point to view the truck. All four men identified the truck as the vehicle involved in the shooting. Harrison identified the defendant as the driver, and Maldonado as the shooter. Another witness who had seen the shooting, Marcus Henry, identified Maldonado, on the basis of his clothing, as the shooter. Following those identifications, Maldonado and the defendant were arrested.

A search of the area failed to locate the murder weapon. Atomic absorption tests performed on the defendant and Maldonado revealed the presence of elements characteristic of gunshot residue. Maldonado’s shirt and coat cuffs, and the thigh area of his pants all tested positive for gunshot residue. Atomic absorption tests performed on the outside door handle, inside door handle, seat, dashboard area, window crank, molding, and armrest on the passenger side of the truck revealed elements characteristic of gunshot residue.

The defendant told the police that he had been a passenger in a truck with Maldonado when it was stopped at Dutch Point. The defendant also stated that shortly before they were stopped, he had gone to Retreat Avenue to ask his mother for money.

I

The defendant first claims that the trial court improperly denied his motion to suppress physical evidence seized from the truck and his person, and statements he made to the police on the ground that such evidence was the fruit of a de facto illegal arrest. We disagree.

A

The defendant argues that the results of the atomic absorption test performed on the passenger side of the truck should have been suppressed. In connection with the motion, the parties stipulated that the defendant was a passenger in the vehicle when it was stopped. The evidence also revealed that Maldonado was the owner of the truck. The trial court ruled that the defendant lacked standing to challenge the search of the truck.

In order to challenge a search or seizure on fourth amendment grounds, a defendant must show that he has a reasonable expectation of privacy in the place searched. See Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). “A passenger in a motor vehicle, who fails to demonstrate a possessory interest in the car itself or in any of the seized evidence, has no reasonable expectation of privacy in the area of the vehicle searched, and thus, he is precluded from contesting the validity of the search.” (Internal quotation marks omitted.) State v. Burns, 23 Conn. App. 602, 611-12, 583 A.2d 1296 (1990). We agree with the trial court that the defendant did not have standing to challenge the search of the vehicle because he had no reasonable expectation of privacy regarding the search of Maldonado’s truck.

B

The defendant next argues that the results of the atomic absorption test done on his person and the statements he made to the police were obtained as the result of an unlawful arrest. The defendant concedes that sufficient articulable grounds existed for the police initially to stop the truck, on the basis of the description of the vehicle in which he was a passenger, to investigate whether he was involved in the shooting death of Angel Ortiz. The defendant argues that the detention was unconstitutional in that it exceeded the permissible scope of any investigative detention. As a result, the defendant argues that evidence seized and statements made should be suppressed as fruit of the poisonous tree.

The trial court ruled that the officers had a reasonable suspicion to stop the truck and, once the truck was detained, the police had the right to detain the occupants to allow a one-on-one identification while the witnesses’ memories were fresh. The trial court then concluded that the detention in this case was reasonable and did not constitute a de facto arrest without probable cause.

Where the defendant concedes that the initial stop was proper pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), we need not address the propriety of the initial stop. State v. Casey, 45 Conn. App. 32, 40, 692 A.2d 1312, cert. denied, 241 Conn. 924, 697 A.2d 360 (1997); State v. Bowden, 15 Conn. App. 539, 543-44, 545 A.2d 591, cert. denied, 209 Conn. 810, 548 A.2d 438 (1988).

“One function of a constitutionally permissible Terry stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime. A police officer who has proper grounds for stopping a suspect has constitutional permission to immobilize the suspect briefly in order to check a description or an identification, so long as his conduct is strictly tied to and justified by the circumstances which rendered its initiation permissible.” (Internal quotation marks omitted.) State v. Braxton, 196 Conn. 685, 689, 495 A.2d 273 (1985). “A Terry stop that is justified at its inception can become constitutionally infirm if it lasts longer or becomes more intrusive than necessary to complete the investigation for which that stop was made.” State v. Mitchell, 204 Conn. 187, 197, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987).

This court recently considered and rejected a claim almost identical to the one raised by the defendant in this appeal. State v. Casey, supra, 45 Conn. App. 32. In Casey, police officers spotted a vehicle that matched the description of a vehicle driven by three suspects in a recent shooting. The officers pulled the car over and waited for backup. When backup arrived, the police executed a high risk felony stop. The suspects were detained until six witnesses, who subsequently identified the defendant, could be brought to the scene.

“The proper way to identify the limits of an investigatory stop is to balance the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion.” Id., 43. After applying this balancing test, we conclude that the scope of the investigative stop of the defendant was reasonable under all of the circumstances. As in Casey, the police officers in this case “made the stop of the vehicle on a report that the defendant and the other [occupant] may have been involved in a shooting [less than a mile away]. The nature, seriousness and recency of the [crime] in this case dictated the need for a continued detention of the defendant and the other [suspect]. The officers’ actions took into account the safety of the public as well as of themselves. They limited their searches of the defendant and the passenger compartment of the vehicle to searches for weapons. Finally, they acted diligently to pursue a means of investigation, namely, the display of the defendant to [four] possible witnesses, which was likely to confirm or dispel their suspicion quickly.” Id. The detention in this case differs from that in Casey. In Casey, the police had drawn their weapons whereas the police in this case did not, and the time between the shooting and the identification here was twenty-five minutes, whereas in Casey there was a one hour delay.

We conclude that, under the circumstances of this case, the actions of the police officers did not exceed the permissible limits of an investigative detention under Terry and that the defendant’s motion to suppress was properly denied.

II

The defendant next claims that the trial court improperly denied his motion to suppress the out-of-court identification of him by Harrison. The defendant contends that the procedure used to identify him was so impermissibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification. The defendant did not raise this claim at trial and can prevail only if the claim meets the conditions set out in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Under Golding, a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. . . . The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” Id. We conclude that the defendant has failed to provide an adequate record to review this claim and thus fails to satisfy the first prong of Golding.

“[I]n determining whether a pretrial identification procedure violated a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail in his claim the defendant must demonstrate that the trial court erred in both of its determinations regarding suggestiveness and reliability of identifications in the totality of the circumstances.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Wooten, 227 Conn. 677, 685, 631 A.2d 271 (1993).

Resolution of these questions requires the fact-finding function of the trial court. “The ‘totality of circumstances,’ by necessity, requires the determination of a number of factors used to test the reliability of the out-of-court identification. . . . Without the necessary factual and legal conclusions [on reliability] furnished by the trial court, we would be left to speculate.” (Citations omitted.) State v. Crosby, 36 Conn. App. 805, 819-20, 654 A.2d 371, cert. denied, 232 Conn. 921, 656 A.2d 669 (1995).

Neither a written memorandum of decision nor a transcript signed by the trial court presiding at a suppression hearing on this matter exists in the record. The record contains no evidence indicating that the trial court addressed the defendant’s claim. Because no findings are available for our review, we will not review the unpreserved claim.

Ill

The defendant next contends that the trial court improperly charged the jury regarding the crime of accessory to commit murder. Specifically, the defendant claims that the trial court failed to make it clear to the jurors that they had to find the same intent to commit the crime of murder for one charged with accessory to commit murder. Also, the defendant claims that the trial court misled the jury in its charge when it stated, “Was he prepared to drive the shooter away from the scene of the crime?” The defendant contends that this comment suggested that he could be convicted if the jury found that he Intentionally aided the shooter by driving him away from the scene of the crime and nothing more.

The standard of review for an improper instruction on an element of an offense is whether it is reasonably possible that the jury was misled. State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995); State v. Ash, 231 Conn. 484, 493, 651 A.2d 247 (1994). “In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. State v. Estep, 186 Conn. 648, 651-52, 443 A.2d 483 (1982); State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 (1977); Farlow v. Connecticut Co., 147 Conn. 644, 648, 166 A.2d 202 (1960); Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 (1933). The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978); State v. Holmquist, 173 Conn. 140, 151, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977). The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977); State v. Mullings, 166 Conn. 268, 274-75, 348 A.2d 645 (1974). . . . State v. Ash, supra, 493-94, quoting State v. Dyson, 217 Conn. 498, 501-502, 586 A.2d 610 (1991).” (Internal quotation marks omitted.) State v. Prioleau, supra, 284-85. “ ‘The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.’ ” State v. Ash, supra, 494.

After the trial court instructed the jury, the defendant took exception to the statement, “Was the defendant prepared to drive the shooter away,” on the ground that it ignored the necessary element of intent to kill the victim. During deliberations, the jury requested that the trial court “reiterate in summary format how the murder charge encompasses anyone who is an accessory.” The trial court gave a supplemental charge, and the defendant took an exception to that for the same reason as previously.

To be found guilty of accessorial liability under § 53a-8, “this statute requires proof of a dual intent: that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged. (Emphasis in original.) State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979); State v. Nardini, 187 Conn. 513, 531, 447 A.2d 396 (1982).” (Internal quotation marks omitted.) State v. Fleming, 198 Conn. 255, 271, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). For the jury to convict this defendant on an accessorial theory, it had to find that the defendant was an accessory to the underlying crime of murder. Accordingly, the jury had to find that he intended both to aid the principal and to commit the underlying felony of murder.

After reviewing the entire charge, we conclude that the court’s charge correctly instructed the jury on the intent necessary to support a conviction as an accessory under § 53a-8. The court initially tracked the language of § 53a-8 in its accessory instruction to the jury. It explained that merely aiding the principal in the commission of the crime or being present when the crime was committed was insufficient to justify conviction, unless the defendant did so with criminal intent and community of unlawful purpose with the one who did commit the criminal act. The court twice correctly stated that the jury must find that the defendant intended to aid the shooter and that he did so with the intent that the shooter murder the victim, and again repeated that in its supplemental charge. We are satisfied that the instruction properly informed the jury of the necessary mental element for accessorial liability.

IV

The defendant’s final claim is that the trial court unfairly marshaled the evidence in favor of the state. The defendant claims that the trial court improperly directed the jury’s attention to the testimony favorable to the state and passed over or ignored testimony favorable to the defense. We disagree.

“In reviewing a claim that the court improperly commented on the evidence, we first note that [i]t has been established by repeated decisions in this State that a court, in submitting a case to the jury, may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point of evidence in issue in the case, and may comment upon the weight of the evidence, so long as it does not direct or advise the jury how to decide the matter .... The ultimate test of the charge is whether, read in its entirety, it fairly presents the case to the jury so that no injustice is done .... Individual comments are not to be judged in isolation from the charge as a whole . . . and should be examined not in a vacuum, but in the context of the factual issues raised at trial.” (Citations omitted; internal quotation marks omitted.) State v. Fenn, 16 Conn. App. 318, 329-30, 547 A.2d 576, cert. denied, 209 Conn. 822, 551 A.2d 757 (1988), cert. denied, 488 U.S. 1031, 109 S. Ct. 841, 102 L. Ed. 2d 973 (1989).

The defendant contends that the trial court in instructing the jury (1) minimized the fact that two of the state’s witnesses had criminal records, (2) mischaracterized the testimony of one of the state’s witnesses so as improperly to affirm the testimony, (3) discussed only the evidence that corroborated Harrison’s identification, (4) discussed only the evidence that supported a finding that a conspiracy existed, and (5) improperly instructed the jury on accessorial liability.

Having reviewed the instructions, we note that the trial court repeatedly informed the jury that it was the sole finder of fact, that it was to reach a verdict “by applying the facts as you determine them to the law as I will give it to you,” that it was to determine the credibility of the witnesses, and stressed that the court’s reference to certain evidence was only for illustration. We find that the court’s instruction properly presented the case to the jury so that no injustice was done.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       The police “ordered the defendant and the other suspects out of the Beretta one at a time with their hands on their heads. When they were outside of the vehicle, Russotto told them to place their hands on the roof of the car and to turn completely around and walk backward toward Martin. Russotto then directed each of them to kneel on the ground. Martin handcuffed and frisked the defendant and the other suspects and then placed them in one of two police vehicles. ... All five officers had their guns drawn during this procedure, which lasted approximately ten minutes. . . . The officers then checked the Beretta’s driver and passenger areas for weapons and opened the trunk for the sole purpose of ensuring that no other person was hiding in it. While searching the backseat of the Beretta, Russotto discovered a lock-blade knife. Audette and Martin searched the driver and passenger areas a second time to ensure that other weapons had not been overlooked. During this search, Martin found a .22 caliber shell casing. After this discovery, the officers removed the defendant and the other suspects from the police cruisers and frisked them a second time for weapons. None was found.” State v. Casey, supra, 45 Conn. App. 37-38 (omitting footnote explaining that female defendant not frisked as thoroughly as male suspects due to local police regulations).

       At trial, during the defendant’s argument on the motion to suppress physical evidence, the defendant’s counsel conceded that this particular motion did not encompass a motion to suppress the identification of the defendant. Counsel stated: “I filed a motion to strike the identification with a separate memorandum of law . . . .” Our review of the record, trial file and transcripts fail to locate the motion to strike and accompanying memorandum of law. In addition, there is nothing before this court that shows that the trial court, ever rendered a decision on that motion to strike.

       The trial court’s instruction on accessorial liability stated in relevant part: “A person acting with the mental state required for a commission of an offense who intenl ionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct. Now I’ve already defined intent as to murder and that same meaning may be applied to this statute. Now, it’s not enough for the defendant—or that the defendant committed acts which may in fact have aided the committing of the criminal act. One who is present when a crime is committed, but neither assists in the commission nor shares in the criminal intent cannot be convicted as an accessory. Mere presence is not enough, nor passive acquiescence. To be an accessory, the defendant must have criminal intent and unlawful purpose with the one who did the criminal act. The question before you then is did the defendant intend to aid the shooter, Mr. Maldonado, and in so doing did he intend to have the crime of murder committed by the shooter, Mr. Maldonado. Or place a question to the factual situation. Was he prepared to drive the shooter away from the scene of the crime? Now, the nature of the evidence to consider here is the testimony of Amette Harrison, who testified that he saw the defendant, in the driver’s seat of the truck that, drove east on Retreat Avenue after the shooter crossed the street from the shooting and got into the passenger seat. Both the shooter and the defendant were identified by Mr. Harrison within twenty minutes at Dutch Point after Trooper [Michael] Nocunas had stopped them and—in a truck which was identified by Arnette Harrison as the truck which he saw leaving the scene of the shooting on Retreat Avenue. You may also take into consideration the nature of Trooper Nocunas’ testimony concerning the fact that Mr. Maldonado was driving the truck at the time it was stopped and that the defendant was a passenger. And that of Officer Winslow, who testified that the truck was owned by Mr. Maldonado. If you find that the state has proved that the defendant intended to aid the shooter, Mr. Maldonado, and in so doing did intend to have the crime of murder committed, then you must find him guilty of this first count. On the other hand, if the state has failed to prove to you beyond a reasonable doubt that element then you must find him not guilty.”

       The supplemental charge stated in relevant part: “A person acting with the mental state required for the commission of an offense—that is, murder— who intentionally aids another person to engage in conduct which constitutes the offense—being murder—shall be criminally liable for such conduct. To be an accessory, the defendant must have criminal intent and community of unlawful purpose with the one who did the criminal act. The question before you then is, did the defendant intend to aid the shooter and in so doing did he intend to have the crime of murder committed by the shooter? Now, applying this principle to the evidence in this case, the question before you is, did the defendant intend to aid the shooter in the crime of murder by being prepared to drive the shooter away after the shooter committed the crime of murder, which crime the defendant intended was to be done by the shooter?”

       The trial court’s instruction provided in relevant part: “Now I have referred to evidence only to illustrate my instruction of the law. I have not meant to emphasize certain evidence nor to avoid the mention of other evidence. You must consider all the evidence. And where your recollection differs from mine, remember it’s your recollection and memory of the evidence that controls.”


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    DAVID R. FLEWELLYN ET AL. v. DOUGLAS E. HEMPSTEAD ET AL.
    (AC 17707)
    O’Connell, C. J., and Schaller and Hennessy, Js.
    Argued October 29
    officially released December 23, 1997

      Thomas J. Cullen, for the appellant (plaintiff Christine O. Lee).

      Louis S. Ciccarello, with whom was Brock T. Dubin, for the appellee (named defendant et al.).

      M. Jeffry Spahr, deputy corporation counsel, for the appellee (defendant Mary O. Keegan).
   Opinion

O’CONNELL, C. J.

This appeal involves an internecine dispute between two groups within the Independent Party of Norwalk (party). The principal issue is whether one of the plaintiffs, Christine O. Lee, or one of the defendants, Philip A. Miaño, was the properly nominated party candidate for commissioner in Norwalk’s third taxing district in the November 4, 1997 election. The plaintiffs sought an injunction invalidating Miano’s nomination and an order of mandamus directing the town clerk to place the name of Lee, the incumbent, on the ballot. The trial court rendered judgment in favor of the defendants and the plaintiff Lee appealed. We affirm the trial court’s judgment.

The following facts are necessary for the disposition of this appeal. For decades, the party had operated under an open caucus system, whereby candidates for municipal office were nominated by vote of the entire party membership. On March 24, 1997, the party amended its bylaws and adopted instead a town committee system of selecting candidates.

At the party’s September 9, 1997 meeting, the defendants, acting under the new town committee system, endorsed a slate of candidates, including Miaño as candidate for the third taxing district commissioner. Immediately thereafter, other discontented party members held an impromptu meeting protesting the validity of the town committee system and, claiming to act under the open caucus rule, nominated Lee for the third taxing district commissioner. The matter then came to the trial court with each side seeking the injunctions and writs of mandamus required for the listing of their candidate on the ballot.

The dispositive issue on appeal is whether the party bylaws were properly amended to adopt the town committee nomination system. If the amendment was proper, then the town committee system was the lawful nominating method and Miano’s nomination would prevail. If the amendment was improper, then the former caucus system was still in effect and Lee would be the party’s candidate.

In its review, the trial court properly noted the judiciary’s narrowly circumscribed role in political disputes. “Political parties generally are free to conduct their internal affairs free from judicial supervision. . . .This common law principle of judicial restraint, rooted in the constitutionally protected right of free association, serves the public interest by allowing the political processes to operate without undue interference. . . . Because the nomination and endorsement of candidates for elective office are among the primary functions of political parties, [j]udicial intervention in [the selection of candidates] traditionally has been approached with great caution and restraint.” (Citations omitted; internal quotation marks omitted.) Nielsen v. Kezer, 232 Conn. 65, 78-79, 652 A.2d 1013 (1995).

In determining that the present action is properly before us, we rely on Nielsen, in which our Supreme Court reviewed a strikingly similar intraparty dispute between two senatorial candidates. The Nielsen court held that the decision-making autonomy of a political party does not implicate “the core constitutional principle underlying the political question doctrine, namely, the separation of powers. ... On the contrary, the controversy raises issues of . . . statutory interpretation of the kind regularly entertained by courts.” Id., 75-76. Consequently, it is appropriate for this court to hear the merits of the parties’ claims.

The trial court found that article nine of the party bylaws, in effect prior to the disputed amendment, provided that “[tjhese By-Laws may be amended at any regular meeting of the Independent Party by a two-thirds vote of the members present, provided that the proposed amendment has been presented at least one regular meeting previous to being acted upon, and the members had been notified of the meeting at which the amendment to the By-Laws would be proposed and acted on.” (Emphasis added.) The trial court found that the party bylaws were properly amended in accordance with article nine.

In its memorandum of decision, the trial court stated that “[tjhe evidence shows that, since January of 1996, the committee and other party members were openly considering a proposal to change the party’s method of endorsing a candidate from an ‘open caucus’ system to a ‘town committee’ system. A subcommittee was formed to analyze the effect of such a radical change. Further, legal counsel was consulted regarding the legalities of such a change. The proposal was discussed and debated at regularly scheduled meetings which occurred in January, 1997, and February, 1997. Finally, at the regularly scheduled meeting in March, 1997 those party members in attendance at the meeting voted unanimously to adopt the ‘town committee’ system of endorsing a candidate.” (Emphasis added.)

The plaintiff argues that the prior bylaws, by their terms, could be amended only at a regular meeting of the party and that regular meetings were required to be held on the third Monday of each month. According to the plaintiff, because neither February 24, 1997, the date on which notice was given of the proposed amendment, nor March 24,1997, the date of the actual amendment, was the third Monday of the month, a fortiori, the bylaws were not legally amended and, therefore, the town committee nominating method was not proper.

This court may reverse or modify a trial court decision only if “the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record” or if the decision is otherwise erroneous in law. Practice Book § 4061. It is well settled that “[t]he factfinding function is vested in the trial court with its unique opportunity to view the evidence .... A factual finding may be rejected . . . only if it is ‘clearly erroneous.’ ” (Citations omitted.) Kaplan v. Kaplan, 186 Conn. 387, 391-92, 441 A.2d 629 (1982). “In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959).

The plaintiffs argument, that there was no evidence before the trial court to support its finding that the bylaws were amended at a regular party meeting, or that notice of said meeting was adequate, is flawed. In fact, the opposite is true. The trial transcript reveals that every witness and all counsel repeatedly referred to all of the amending procedures as having taken place at regular meetings. Moreover, the record reveals, and it is undisputed, that the March 24, 1997 amendments were discussed and debated during the regularly scheduled meetings held in January and February, 1997.

On appeal, the plaintiffs counsel concedes that everyone before the trial court referred only to regular meetings. In fact, it was only after the trial court rendered judgment and counsel was seeking grounds for appeal that he came upon the theory that because the meetings were not held on the third Monday of a month, they may not be considered regular meetings and, thus, might be void. He admits that this claim was not raised before the trial court and, therefore, the trial court did not have an opportunity to rule on it.

It is axiomatic that the trial court can be expected to rule only on those matters that are put before it. See Lee v. Lee, 174 Conn. 5, 7, 381 A.2d 529 (1977). With only a few exceptions, not relevant here, we will not decide an appeal on an issue that was not raised before the trial court. See State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989). “To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” Baker v. Cordisco, 37 Conn. App. 515, 522, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995).

Although a trial court may take judicial notice of the coincidence of the days of the week with the days of the month; Farnham v. Lewis, 83 Conn. 134, 135, 75 A. 625 (1910); the trial court here was not asked to do so and had no reason to do so, sua sponte. It was entitled to rely on the undisputed evidence and representations of counsel that the pertinent actions were taken at regular meetings and that earlier discussion of such actions constituted proper notice in accordance with the bylaws in effect at the time. We cannot act as a fact finder to determine matters not put before the trial court.

Consequently, we conclude that the evidence before the trial court supported its decision that the bylaws had been properly amended at a regular meeting, and that adequate notice of that meeting was provided to all party members. Thus, the defendant Miaño was the party’s lawfully endorsed candidate for commissioner of the third taxing district in Norwalk.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although at trial several party members were joined as plaintiffs, Lee is the only plaintiff who appealed. We refer in this opinion to Lee as the plaintiff.


author: LANDAU, J.

text:
    ROBERT T. LOWE, JR. v. ALYCE S. LOWE
    (AC 15968)
    Poti, Landau and Hennessy, Js.
    Argued September 25
    officially released December 30, 1997

      Diana L. Mercer, with whom, on the brief, was Douglas R. Daniels, for the appellant (plaintiff).

      Todd R. Bainer, for the appellee (defendant).
   Opinion

LANDAU, J.

In this appeal from the judgment dissolving his marriage, the plaintiff claims that the trial court improperly (1) held him responsible for the postmajority education of the children in the absence of a written agreement, (2) found that, when the parties’ elder son graduates from high school, a substantial change of circumstances will occur, (3) relied on prior proceedings not a part of the trial record in its rulings, (4) included money paid as a bonus in determining child support and alimony, (5) found that there would be an increase in the plaintiff’s future commission earnings, (6) calculated gross and net income, (7) found that the cause of the marital breakdown was the plaintiffs excessive drinking and involvement with another woman, (8) failed to appoint separate counsel for each child because of conflicts of interest, (9) failed to apply the guidelines for child support and failed to award child support for the child in the sole custody of the plaintiff, and (10) failed to designate the arrearage owed by the plaintiff as either alimony or support.

The following facts are pertinent to this appeal. On December 21, 1995, the trial court approved a written agreement entered into by the parties that resolved the issues of custody and visitation. On April 30, 1996, the marriage was dissolved and the agreement, which gave sole custody of the minor, Robert T. Lowe III, to the plaintiff father and sole custody of the minors, Christopher Lowe and Lauren Lowe, to the defendant mother, was incorporated into the court’s judgment. The court’s judgment also resolved issues involving, inter aha, child support, alimony, medical insurance, postmajority education, and the division of marital property. The basis of the order requiring the plaintiff to pay for the postmajority education of the three children was the parties’ oral stipulation during trial that the plaintiff would do so to the extent he is financially able.

We reverse the judgment and remand the case to the trial court as to the first issue and affirm the judgment in all other aspects.

I

The most important claim before us is the plaintiffs assertion that the trial court improperly held him responsible for the postmajority education of the children in the absence of a written agreement. The plaintiff argues that the trial court lacked jurisdiction to enforce the parties’ oral stipulation that the plaintiff would pay for the postmajority education of the children because General Statutes § 46b-66 requires that agreements for postmajority support be in writing. We agree.

“It is now axiomatic that support for a minor child extends to age eighteen years only . . . .” Arseniadis v. Arseniadis, 2 Conn. App. 239, 243, 477 A.2d 152 (1984). “The legislature amended General Statutes § 46b-66 (then § 46-49) in order to provide for the support of postmajority children only if there is an agreement to do so and if it is in writing.” Id., 244. “The language of the statute is clear and unambiguous and we cannot by our construction substitute other words for the words ‘in writing.’ ” Id., 246. “Absent ... a written agreement by the parties, the court does not have jurisdiction to order payment of child support beyond the age of majority and may not enforce such an order.” Albrecht v. Albrecht, 19 Conn. App. 146, 155, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989); see Arseniadis v. Arseniadis, supra, 243. “A lack of subject matter jurisdiction can be raised at any time and cannot be waived by either party. . . . [Further], [t]he parties to an action cannot confer subject matter jurisdiction on the court by their consent, silence, waiver or private agreement.” (Citation omitted.) Id., 242.

Although we recognize that often “ ‘[t]he rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other’ Cuneo v. Cuneo, 12 Conn. App. 702, 710, 533 A.2d 1226 (1987), quoting Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984); this is not such a case. The plaintiff offered to pay for the children’s postmajority education, and the trial court simply incorporated that offer into its proper orders. Moreover, the trial court had no jurisdiction and, therefore, no discretion, to order postmajority support. As a result, the order of postmajority support is separate and distinct from the court’s proper orders of alimony and premajority support. See Zern v. Zern, 15 Conn. App. 292, 296-97, 544 A.2d 244 (1988). Because the court had no discretion to award the postmajority support and because the other awards were appropriate, a remand to review all of the financial orders is unnecessary. See Cuneo v. Cuneo, supra, 710-11. A remand with direction to vacate the meaningless portion of the order would in no way affect the remaining appropriate judgment rendered; it had no impact aad, therefore, severance is proper.

II

In his second claim, the plaintiff asserts that the trial court improperly found that a substantial change of circumstances will occur when the parties’ elder son graduates from high school. The plaintiff argues that this finding involves impermissible speculation into the future. We disagree.

It is a general rule that “[i]n a dissolution action, marital property is valued as of the date of dissolution .... Tobey v. Tobey, 165 Conn. 742, 748-49, 345 A.2d 21 (1974); Cuneo v. Cuneo [supra, 12 Conn. App. 702], ‘[This] requirement is simply part of the broader principle that the financial awards in a marital dissolution case should be based on the parties’ current financial circumstances to the extent reasonably possible.’ Cuneo v. Cuneo, supra, 709; see Practice Book § 463.” Zern v. Zern, supra, 15 Conn. App. 296.

In the present case, the trial court’s financial awards were based solely on the present financial circumstances of the parties. Even if we assume, arguendo, that the trial court made an impermissible finding by speculating as to the future financial circumstances of the parties, the trial court’s purported finding with regard to the plaintiffs elder son was extraneous and is not binding on the parties because the issue of modification was not properly before the trial court. See Chester v. Zoning Board of Appeals, 46 Conn. App. 148, 150, 698 A.2d 370 (1997). If and when the elder son graduates from high school, or any other change of circumstances occurs, either party seeking a modification of alimony or support orders would have to prove to the trial court that a substantial change in circumstances occurred pursuant to General Statutes § 46b-86. Therefore, we are unpersuaded by the plaintiffs argument.

Ill

The plaintiffs third claim is that the trial court improperly relied on previous proceedings that were not made part of the trial record in making its orders. The plaintiff argues that the trial court may take judicial notice only of pertinent facts disclosed by the record in the case before it. We disagree.

“The trial court has the power to take judicial notice of court files of other actions between the same parties. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 591, 409 A.2d 1029 (1979).” In re Mark C, 28 Conn. App. 247, 253, 610 A.2d 181, cert. denied, 223 Conn. 922, 614 A.2d 823 (1992); see McCarthy v. Warden, 213 Conn. 289, 293, 567 A.2d 1187 (1989), cert. denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990) (court took judicial notice of court files from prior proceeding between parties even though files not formally made part of record at trial); Hall v. Hall, 186 Conn. 118, 124, 439 A.2d 447 (1982) (court considered previous contempt orders when considering issue of custody).

In the present case, the trial court properly took judicial notice of prior proceedings pertaining to the dissolution of the parties’ marriage. Therefore, the plaintiffs claim is unpersuasive.

IV

In the plaintiffs fifth and seventh claims, he challenges the trial court’s factual findings that his commissions would increase in the future and that his excessive drinking and involvement with another woman had caused the marital breakdown.

“The scope of our review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did. . . . Moreover, we do not retry the facts. ... In determining whether the trial court could reasonably conclude as it did on the evidence before it, every reasonable presumption should be given in favor of the correctness of its action. . . . The conclusions which we might reach, were we sitting as the trial court, are irrelevant.” (Citations omitted; internal quotation marks omitted.) Leo v. Leo, 197 Conn. 1, 4-5, 495 A.2d 704 (1985).

After a full review of the record, transcript and briefs, we conclude that the trial court could reasonably have concluded as it did. We affirm the findings of the trial court.

V

The plaintiffs fourth, sixth and tenth claims are that the trial court improperly included “one-time bonus money” paid to the plaintiff and “bonus money” withheld by his employer and not yet paid as income in calculating alimony and child support, improperly calculated his gross and net income, and failed to designate which part of the arrearage owed by him was alimony and which part was support.

“It is the appellant’s burden to supply us with a record adequate to provide a proper review, and, [w]here the factual basis of the court’s decision is unclear, proper utilization of the motion for articulation serves to dispel any such ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Internal quotation marks omitted.) Ashton v. Ashton, 31 Conn. App. 736, 741, 627 A.2d 943, cert. denied, 228 Conn. 901, 634 A.2d 295 (1993). “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Westfall v. Westfall, 46 Conn. App. 182, 184, 698 A.2d 927 (1997).

It was the plaintiffs burden, as appellant, to file a motion for articulation that would clarify the trial court’s basis for and reasoning behind its calculations. See Practice Book § 4051; Gelormino v. Liberman, 36 Conn. App. 153, 154, 649 A.2d 259, cert. denied, 231 Conn. 946, 653 A.2d 826 (1994). Without such an articulation, it is unclear how the trial court calculated net income, which part of the arrearage was alimony and which part was support, and whether the bonus money was included in the calculation of net income. There is no adequate record permitting review of those claims, and the plaintiff failed to file a motion for articulation. Therefore, we decline to review the plaintiffs claims.

VI

In the plaintiffs eighth claim, he asserts that the trial court improperly failed to appoint separate counsel for the three children. Although the plaintiff did not raise this issue at trial, he seeks review pursuant to the plain error doctrine. He argues that, because his elder son, in his custody, was competing for child support money with the two younger children in the custody of the defendant, it was plain error and a violation of the elder son’s due process rights to fail to appoint separate counsel for him. We conclude that the plaintiff lacks standing to assert the rights of his son on appeal and, therefore, we lack jurisdiction to review this claim.

Further facts are pertinent to the resolution of the threshold issue of standing. In the present case, the defendant filed a motion requesting that the trial court appoint counsel for the three minor children, and the court, in its discretion, granted the motion and appointed counsel. Subsequent to the judgment and the filing of this appeal, the trial court granted the children’s counsel’s motion to withdraw because the trial court found, on the basis of counsel’s representations, that there would be a conflict of interest with regard to any postjudgment motions or appeal.

“ ‘The issue of standing implicates the court’s subject matter jurisdiction. . . . Standing focuses on the party seeking to be heard and not on the issues that party wants to have heard. . . . The question of standing does not involve an inquiry into the merits of the case.’ ” (Citations omitted.) Taff v. Bettcher, 35 Conn. App. 421, 424-25, 646 A.2d 875 (1994). In addition, “[o]ur case law is . . . clear that a person cannot gain standing by asserting the due process rights possessed by another individual. It is axiomatic that due process rights are personal, and cannot be asserted vicariously. . . . Thus, once the court finds it appropriate to appoint counsel for the minor child, the representation is the child’s entitlement, not the parent’s.” (Citations omitted; internal quotation marks omitted.) Id., 425-26.

The plaintiff did not claim, nor did he demonstrate to the trial court, that the trial court’s failure to appoint separate counsel would in any way prejudice his own case. See Lord v. Lord, 44 Conn. App. 370, 375-76, 689 A.2d 509, cert. denied, 241 Conn. 913, 696 A.2d 985 (1997). It is clear that the plaintiff lacks standing to assert the rights of his elder son on appeal. Therefore, we lack jurisdiction to review the merits of this claim.

VII

In the plaintiffs ninth claim, he asserts that the trial court improperly failed to award child support for the elder son, who lives with the plaintiff, and failed to apply the Connecticut guidelines for child support. After a full review of the record, we are unpersuaded.

The trial court specifically stated in its memorandum of decision that the child support guidelines were carefully considered. In addition, the court reduced its order of child support for the two children in the custody of the defendant pursuant to the guidelines for child support because of the plaintiffs obligation to support his elder son. Therefore, the reduction of support for the two children in the care of the defendant was, in effect, the award for the child in the care of the plaintiff. As a result, the plaintiffs claim lacks merit.

The judgment is reversed in part and the case is remanded with direction to render judgment as on file except as modified to eliminate the award of postmajority education expenses.

In this opinion the other judges concurred.

         On direct examination of the plaintiff, counsel asked questions regarding the college education of the elder son. The plaintiff stated that he told his son to maintain high grades in order to qualify for scholarships. The following colloquy then took place:
      “[The Plaintiffs Counsel]: Would you like to see your other children go on with their formal education?
      “[The Plaintiff]: Yes, I would.
      “[The Plaintiffs Counsel]: And, would you like to pay the tuition if any is necessary?
      “[The Plaintiff]: To the extent that I’m able.”
      The plaintiff, the defendant and the children subsequently agreed to the plaintiffs offer. Counsel for the children agreed to reduce the parties’ agreement to writing, but the trial court replied: “I’d just make it as part of my orders. Now, as I understand it, this agreement is simply that Mr. Lowe will pay for the college expenses of the children to the extent he is financially able, is that right?” The plaintiff and defendant responded affirmatively.

       The plaintiff has raised nine other issues concerning various procedural and evidentiary rulings of the trial court. Some claims also rest on factual findings of the trial court and factual assumptions that the court rejected. “All of them suffer from the difficulty that appellate pursuit of so large a number of issues forecloses the opportunity for fully reasoned discussion of pivotal substantive concerns. A shotgun approach does a disservice both to this court and to the party on whose behalf it is presented.” Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991).

       General Statutes § 46b-66 provides in relevant part: “If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-ld.”
      General Statutes § 1-ld provides in relevant part: “Except as otherwise provided by statute . . . the terms ‘minor’, ‘infant’ and ‘infancy’ shall be deemed to refer to a person under the age of eighteen years and any person eighteen years of age or over shall be an adult for all purposes whatsoever . . . .”

       The trial court stated in its memorandum of decision that the parties’ elder son “will graduate from high school in June of 1997. At that time, a substantial change of circumstances will occur that will warrant the defendant seeking a modification of the child support order.”

       General Statutes § 46b-86 (a) provides in relevant part: “[A]ny final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be . . . altered or modified by [the trial] court upon a showing of a substantial change in the circumstances of either party . . . .”

       The plaintiff specifically argues that the trial court made improper reference, in its memorandum of decision, to the following: the plaintiffs previous acts in contempt of the court’s orders to pay financial obligations; his manipulation of his income; and other actions during the course of the divorce proceedings that resulted in the dissipation of the family’s assets. The trial court relied on court files, transcripts and previous orders of the trial court in making the aforementioned references. Counsel for the plaintiff acknowledged at trial that as long as prior proceedings are “relevant and otherwise admissible, ” then the trial court may take judicial notice of such proceedings.

       The plaintiff further argues that the trial court treated such money as a marital asset and conveyed it as part of the property division, thus improperly “double-counting” the money.

       The plaintiff states in his brief that “[b]ecause the court made no qualifying remarks as to how it came about the finding of the plaintiffs gross and net income, and did not indicate whether it felt that these numbers were actual, projected or based on earning capacity, the evidential underpinnings for the conclusion drawn by the court are inadequate . . . .”

       Although the plaintiff frames his argument by stating that the trial court improperly failed to designate which part of the arrearage was alimony and which part was support, the question presented by his argument is whether the trial court improperly calculated his true net income. This is evident in that the plaintiff cites no authority for his assertion that the trial court must designate the arrearage in terms of alimony and support, and argues in his brief that “[b]ecause the court did not designate which portion is alimony and which portion is child support, the court could not have taken into account the tax implications of the orders that it made, and therefore would have been unable to calculate the true net income of the plaintiff.”

       The trial court states in its memorandum of decision that the net income was “based on the financial affidavits submitted by the plaintiff to the court and dated March 6, 1996, and March 12, 1996.” The plaintiff submitted separate affidavits on both dates for weekly income including and excluding bonus money. Therefore, it is unclear whether the trial court included or excluded bonus money from its calculation of net income. Moreover, this ambiguity precludes this court from determining whether the bonus money was “double-counted,” because it is unclear whether it was counted at all for purposes of net income.

       The plaintiff originally states in his brief that the trial court failed to appoint separate counsel for the three children. He clarifies his claim by stating that the elder son, who is in the plaintiffs custody, should have been appointed counsel separate from the younger son and daughter, who are in the defendant’s custody.

       Practice Book § 4061 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       General Statutes § 46b-54 (a) provides in relevant part: “The court may appoint counsel for any minor child or children of either or both parties ... if the court deems it to be in the best interests of the child or children. The court may appoint counsel on its own motion, or at the request of either of the parties or of the legal guardian of any child or at the request of any child who is of sufficient age and capable of making an intelligent request.”

       The trial judge stated in his memorandum of decision that he had “carefully considered . . . the child support guidelines as they relate to the award of child support.”

       The trial court entered the following order in its memorandum of decision: “The plaintiff shall pay the defendant $114 each week as child support for the minor children Christopher and Lauren. . . . This amount is in accordance with the child support guidelines. It is based on the shared custody arrangement under which the plaintiff shall have sole custody of Robert and the defendant shall have sole custody of Christopher and Lauren. The plaintiffs child support obligation to children in the custody of the defendant is reduced pursuant to the guidelines because of the plaintiffs obligation to support [the elder son] Robert.”


author: SHEA, J.

text:
    JOSEPH PAJOR v. TOWN OF WALLINGFORD
    (AC 16091)
    O’Connell, C. J., and Dupont and Shea, Js.

      Argued September 24
    officially released December 30, 1997

      Thomas R. Gerarde, with whom was Da vid S. Monastersky, for the appellant-appellee (defendant).

      William F. Gallagher, with whom, on the brief, were Barbara L. Cox and James G. Williams, for the appellee-appellant (plaintiff).
   Opinion

SHEA, J.

The defendant town of Wallingford appeals from the judgment rendered after a jury verdict awarding $700,000 to Joseph Pajor, the plaintiff, for injuries he sustained when he slipped and fell on a patch of ice on the sidewalk adjacent to the town hall. The defendant claims that the judgment should be reversed and a new trial ordered because the trial court incorrectly (1) admitted evidence relating to conditions of the adjoining land of the town that were naturally productive of ice on the sidewalk, (2) refused to charge, in accordance with the town’s request, that notice of the particular defect causing injury and not merely notice of conditions likely to produce such a defect is essential to satisfy the notice requirement of the statute imposing liability for a defective sidewalk, General Statutes § 13a-149, and (3) failed to set aside the verdict because of the jury response to a written interrogatory concerning the sufficiency, under § 13a-149, of the written notice given to the town. We reverse the judgment and order a new trial because of the failure of the trial court to charge in accordance with the defendant’s request on the issue of notice.

After a hearing on posttrial motions, the trial court, pursuant to General Statutes § 52-225a, reduced the jury award to $530,324.03 by deducting the collateral source benefits the plaintiff had received from his health insurer and crediting the plaintiff with the premiums he had paid to his insurer. That reduction caused the amount of the judgment to be less than the $675,000 offer of judgment that the plaintiff had filed prior to the verdict and thus precluded the application of General Statutes § 52-192a, which allows a plaintiff who obtains a judgment equal to or greater than his timely offer of judgment to recover prejudgment interest on the amount of the judgment. The plaintiff filed a cross appeal contesting the reduction of the verdict for the collateral source benefits. Although we order a new trial, we address some of the issues raised in the cross appeal that are likely to arise in subsequent proceedings.

There is no significant dispute about the facts the jury might reasonably have found in support of the verdict from the evidence concerning the circumstances of the fall that caused the plaintiffs injuries. On February 8, 1994, at about 11:30 a.m., the plaintiff was walking along Prince Street in Wallingford on the sidewalk that borders the town hall property. A driveway crosses the Prince Street sidewalk and leads to a parking lot behind the town hall for municipal employees and visitors to the building. At a point close to the driveway, the plaintiff slipped and fell on a patch of ice on the sidewalk. The ice patch was three or four feet wide and was concealed by one-half to one inch of snow. It had begun to snow between 8 and 9 a.m. and snow was falling heavily at the time the plaintiff fell.

At about 5:45 a.m., before the snow began, Pasquale Cusano, who was employed by a private maintenance contractor to work as a janitor in the town hall, observed the ice patch as he entered the town hall driveway on his way to work. Approximately six hours later, when he happened to be looking out from a window of the town hall, Cusano saw the plaintiff fall and went outside to assist him. Cusano observed the ice under the snow and noticed that it was quite slippery. That part of the sidewalk was often icy in the winter because water from melting snow on the adjoining town hall property flowed across it. Snow from other storms was piled up along the edges of the sidewalk. During the previous day, the temperature had risen and remained above freezing until about 5 p.m., when the temperature dropped below freezing and remained below freezing until the time the plaintiff fell.

Ordinarily, three employees of the Wallingford public works department are assigned to maintain the grounds around the town hall and to spread sand and salt on any ice on the sidewalk. They are usually at the town hall property by 8 a.m. to perform their duties. On the morning of the plaintiffs fall, they began work at 7:30 a.m. at the town garage, where the department was preparing for a predicted snowfall. They were assigned to their regular duties of attending to the sidewalks and driveways at the town hall and three other town properties. From the evidence, however, the jury could reasonably have found that there was no sand or salt on the sidewalk where the plaintiff fell.

I

At trial, the plaintiff called Timothy Brown, a licensed civil engineer, to testify as an expert witness. He testified that in 1990, as part of ,a beautification project, the town of Wallingford had reconstructed the sidewalk on Prince Street adjoining the town hall property, and that he had examined the map showing the site layout. He had made a topographical survey of the area around the part of the sidewalk where the plaintiff had fallen and had prepared a map showing the direction of water flow from several points on the town hall property. It was his opinion that the town engineering department should have realized from examining the site layout plan that water from the town hall property would run across the sidewalk at the point where the driveway to the parking lot crossed the sidewalk and that the problem should have been corrected at the time of the reconstruction.

The defendant objected and the court excused the jury as requested. The defendant argued that the complaint did not allege any defective design and that Brown’s testimony was outside the scope of the complaint and also outside § 13a-149, the statutory basis for the claim of breach of the town’s duty to maintain the sidewalk in a reasonably safe condition.

The trial court overruled the objection, stating that the evidence was relevant to “notice of problems in the area and to the notice of what preventive care would be necessary.” The court ruled that the complaint did not state a claim of defective design but that information concerning the design was relevant to some of the claims in the complaint.

On appeal, the defendant has not briefed its challenge on relevancy grounds to the testimony of Brown that at the time of the reconstruction in 1990 as well as later, the town should have known that water from its property would flow across the sidewalk where the plaintiff fell. Accordingly, we treat the objection raised at trial as abandoned. See Practice Book § 4064C (3); State v. Kolinsky, 182 Conn. 533, 542, 438 A.2d 762 (1980), cert. denied, 451 U.S. 973, 101 S. Ct. 2054, 68 L. Ed. 2d 354 (1981). The defendant now claims that the evidence should not have been admitted because it did not concern notice of the defect itself but merely of conditions that naturally produce ice on that sidewalk. The defendant relies on several cases involving claims against governmental agencies for injuries received as a result of the icy condition of a sidewalk or highway in which our courts have declared that the constructive notice necessary for liability is “notice of a defective condition which is the proximate cause of the injury; and . . . notice of underlying circumstances which, as a result of natural forces, may and do produce that condition does not impose liability.” Scoville v. West Hartford, 131 Conn. 239, 242, 38 A.2d 681 (1944); see Pape v. Cox, 129 Conn. 256, 259-60, 28 A.2d 10 (1942); CarU. New Haven, 93 Conn. 622,628,107 A. 502 (1919); Cohen v. Hamden, 27 Conn. App. 487, 492, 607 A.2d 452 (1992).

A party cannot on appeal rely on a ground for excluding evidence admitted at trial that was not raised at the time of the ruling on its admissibility. “A party is limited to the ground of his objection in claiming error in a ruling on evidence.” Moore v. McNamara, 201 Conn. 16, 30, 513 A.2d 660 (1986); State v. Moye, 214 Conn. 89, 98-99 n.6, 570 A.2d 209 (1990). “Our rule requires that the grounds upon which it is claimed evidence should be admitted or excluded shall be clearly stated.” Johnson v. Rockaway Bus Corp., 145 Conn. 204, 210, 140 A.2d 708 (1958), quoted in Mays v. Mays, 193 Conn. 261, 268, 476 A.2d 562 (1984); see Practice Book § 288. Whatever the merit of the defendant’s argument for excluding Brown’s testimony about conditions that may have caused the sidewalk to be covered with ice, it cannot serve as a basis for reversing the judgment when that ground was not raised at the time of the trial court’s ruling on admissibility.

II

At the close of evidence, the defendant filed a written request for the court to charge that in a snow and ice case, the notice required by law to impose liability on the town is notice of the particular defect that caused the injury and not merely of conditions naturally productive of the defect and in fact producing it. The trial court did not charge in the language of the request, apparently assuming that the legal principles contained in the request had been included in the charge. In excepting to the jury instructions, the defendant stated that the court had failed to advise the jury that notice of conditions naturally productive of the defect, which in fact produced it, was not sufficient. The court refused to instruct the jury further on the issue of notice, saying that the defendant simply wanted “counsel’s words” to be used rather than those of the court.

In the charge, the court referred to the plaintiffs “position” that “there had been banks of snow that melted and created runoff that resulted in ice when the temperatures fell” and that Cusano “had seen that condition when he arrived for work” in the morning. The portion of the charge the court may have relied on as sufficiently stating the legal principle contained in the plaintiffs request to charge is the following: “Now the only defect claimed by the plaintiff is a slippery condition. There was some testimony about the design of the area. And while you may consider that evidence in relation to considering whether there was a slippery condition, the plaintiff has not claimed that the defect was some defective design in the area of the sidewalk. Since that is not the basis of the claim, you must consider only the claim of defect that he has made and that is of the slippery condition and a failure to remedy it.”

“It is the law of this state that a request to charge which is relevant to the issues of a case and which is an accurate statement of the law must be given. . . . It is, however, also the law of this state that a refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” (Citations omitted.) Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 357, 374 A.2d 1047 (1977), quoted in State v. Gabriel, 192 Conn. 405, 418, 473 A.2d 300 (1984).

The legal principle on which the defendant sought a jury instruction, that the town would not be liable under the statute unless it had “notice of the particular defect which caused the injury and not merely of conditions naturally productive of the defect and in fact producing it,” in this state was first articulated in Carl v. New Haven, supra, 93 Conn. 628. In justification of this restricted concept of notice as compared to the common law formulations of “having reason to know” or “should know”; 1 Restatement (Second), Torts § 12 (1) and (2), pp. 19-20 (1965); the court opined: “Were it otherwise, and municipalities were charged with notice of defects which the future should develop upon the strength alone of their knowledge of such conditions as were calculated to produce them, the expansion of municipality liability for highway defects would be enormous, the burden of repair and remedy cast upon them be vastly enlarged, and a wide field of uncertainty opened up in which triers might wander comparatively unrestrained in speculations as to causes and anticipated results.” Carl v. New Haven, supra, 628-29. The rule announced in Carl has not been modified. “We have repeatedly held that liability under the statute arises only when there is notice of a defective condition which is the proximate cause of the injury; and that notice of underlying circumstances which, as a result of natural forces, may and do produce that condition does not impose that liability.” Scoville v. West Hartford, supra, 131 Conn. 242.

The trial court’s charge in this case that “the only defect claimed by the plaintiff is a slippery condition” and that the testimony of Brown about “the design of the area” should be considered only in relation to “whether there was a slippery condition” attempted to focus the attention of the jury on the icy condition of the sidewalk as the defect. It did not inform the jury, however, that it would be insufficient under the statute for the town to have notice only of conditions naturally productive of the defect, such as snowbanks that melted during the day and caused water to flow across the sidewalk that would freeze when the temperature dropped. The court, in the preceding paragraph of the charge, had referred to “banks of snow that melted and created runoff that resulted in ice when temperatures fell.” In its request to charge, the defendant sought an instruction that “the fact of below-freezing weather conditions after a period the day before when the temperature went above freezing coupled with the presence of accumulated piles of snow from prior snowfalls, is not by itself sufficient notice.” Without some similar instruction, it would not be unreasonable for the jury to have concluded that the town should have realized that the snow on the town hall property would melt, causing water to flow onto the sidewalk, where it would freeze when the weather becomes cold and, therefore, that the town had sufficient constructive notice of the resulting slippery condition.

The court made a significant comment when it overruled the defendant’s objection to Brown’s testimony about the topography of the town hall property causing the runoff on the sidewalk and corrective measures that the town should have adopted. The court, in the absence of the jury, expressed the view that such evidence was relevant “to notice of the problems in the area and the notice of what preventive care would be necessary,” referring to Brown’s testimony “about what the design was and whether it did or didn’t have swales and catch basins.” Although the jury never heard them, the court’s comments indicate the view most people would take in deciding whether the town had reasonable notice of the slippery sidewalk.

In deciding whether a failure to comply with a proper request for a charge on a significant principle of law warrants a reversal of the judgment and a new trial, “the court must consider the whole charge and it must be determined, in appeals not involving a constitutional question, if it is reasonably probable that the jury were misled . . . .” (Citations omitted.) State v. Rose, 169 Conn. 683, 687-88, 363 A.2d 1077 (1975), quoted in State v. Chapman, 229 Conn. 529, 545, 643 A.2d 1213 (1994). We recognize that apart from the testimony about runoff from the melting snow on the sidewalk, there was sufficient evidence to support a finding of constructive notice to the town. The refusal to give the requested instruction or its equivalent, therefore, probably had a significant impact on the verdict. We conclude, nevertheless, that it is reasonably probable that the jury was misled into relying in part on such testimony to find constructive notice, and a new trial is necessary.

Ill

The defendant’s final claim is that the written notice that the plaintiff gave to the town, as required by § 13a-149 for an action against a municipality seeking damages for a defective highway, does not comply with that statute. The town contends that the notice is deficient as a matter of law because it failed to specify accurately the time and location of the plaintiffs fall and also did not provide an adequate description of his injuries. The trial court submitted the issue of the sufficiency of the notice to the jury with an instruction that is unchallenged together with ten interrogatories, two of which pertained to the notice: (1) “Did the plaintiff give the defendant a written notice that complied with the requirements of Section 13a-149?” (2) “If there was any inaccuracy in the notice, did the plaintiff prove (a) that there was no intention to mislead the town; (b) that the town was not in fact misled.” The jury responded affirmatively to the first interrogatory, but, as directed by the charge and also the instructions on the verdict form, did not answer the second.

The defendant claims that the response of the jury that the plaintiffs written notice complied with the statutory requirement was contrary to the evidence as a matter of law. We address this issue because it is likely to arise in the new trial we have ordered.

The defendant does not contend that the plaintiffs written notice failed to furnish information concerning each of the elements required by § 13a-149 but that the notice was inaccurate with respect to the description and cause of the injury, and the time and location of the fall. When a notice fails to provide information respecting each of the required elements, it is deficient as a matter of law. See Morico v. Cox, 134 Conn. 218, 222-23, 56 A.2d 522 (1947). On cross-examination, the plaintiff testified that he fell at 11:30 a.m. and not “at or about 10:15 a.m.,” as stated in the notice; he fell where the sidewalk crosses the driveway to the town hall and not within the triangular area of the driveway shown on a map based on three measurements contained in the notice, which was “totally different”; he sustained a compound fracture of his right ankle rather than “severe injuries to muscles, ligaments, soft tissues and bones of the right leg,” the description contained in the notice, which was “totally incorrect”; and he slipped on ice covered by a small accumulation of light snow and not “because of accumulated hard-packed ice and snow” as the notice indicated.

“The puipose of the notice requirement is not to set a trap for the unwary or to place an impediment in the way of an injured party who has an otherwise meritorious claim. Rather, the purpose of notice is to allow the municipality to make a proper investigation into the circumstances surrounding the claim in order to protect its financial interests.” Pratt v. Old Saybrook, 225 Conn. 177, 182, 621 A.2d 1322 (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. . . .” Morico v. Cox, supra, 134 Conn. 223.

The town maintains that the inaccuracies admitted by the plaintiff with respect to the time, place and cause of his fall, as well as the description of his injury conclusively establish its insufficiency. No explanation has been provided, however, of how those inaccuracies, some of which appear to be picayune, hampered the town’s investigation of the accident. The jury could reasonably have concluded that they had no impact on whatever investigation the town may have conducted.

Despite the plaintiff’s characterization of the discrepancies between his testimony and his written notice as “totally different,” we conclude that under the functional test adopted in this state of whether the notice provides sufficient information to conduct an adequate investigation, the jury could reasonably have decided that those discrepancies were insignificant.

IV

In his cross appeal, the plaintiff claims that the trial court incorrectly reduced the $700,000 verdict by deducting the net collateral source benefits he had received from his health insurer because (1) the jury failed to make a finding of the amount of economic damages included in its verdict, (2) the trial court’s finding of economic damages was an improper invasion of the jury’s fact-finding function, (3) any reduction for collateral source benefits was improper because the plaintiffs insurance policy contained a provision entitling the insurer to subrogation, and (4) the reduction for collateral source benefits has caused that verdict to be less than the offer of judgment filed by the plaintiff, thus depriving him of an award of prejudgment interest pursuant to General Statutes § 52-192a.

In the new trial that we have ordered, it is unlikely that the issues that relate to the procedure followed in the first trial of this case regarding the determination of economic damages will be repeated. It is also unlikely that the damages awarded at the second trial will be the same as those in the first trial and that a similar difference between the verdict and the offer of judgment will result as a basis for the plaintiffs claim of prejudgment interest pursuant to § 52-192a. The one issue relating to collateral source payments that is likely to arise again and should be resolved at this time is the plaintiffs third claim, that his insurer is entitled to reimbursement for the medical expenses it has paid on his behalf because of the subrogation provision of his insurance policy. For that reason, the plaintiff claims that no reduction for collateral source benefits should have been made. The disposition of that issue will help to resolve the other issues relating to such payments in the event that they do arise in the second trial.

General Statutes § 52-572h (f) requires that in personal injury actions based on negligence, the court or jury shall specify, inter alia, the “amount of economic damages.” General Statutes § 52-225a requires that the award of economic damages be reduced by the amount of collateral source payments the claimant has received for his injuries, less the amount he has paid to secure those benefits, “except that there shall be no reduction for (1) a collateral source for which a right of subrogation exists. . . .” The trial court found that the plaintiff had received collateral source benefits of $191,065.97 from his health insurer for which he had paid $21,380 in premiums. The court, accordingly, reduced the verdict of $700,000 by $169,675.97.

It is undisputed that the plaintiffs health insurance policy contained a subrogation provision entitling his insurer to reimbursement for the medical care benefits it paid out of any recovery for such medical expenses against a third person. Such a provision, however, is contrary to General Statutes § 52-225c, which provides that “no insurer or any other person providing collateral source benefits . . . shall be entitled to recover the amount of any such benefits from the defendant or any other person or entity as a result of any claim or action for damages for personal injury or wrongful death regardless of whether such claim or action is resolved by settlement or judgment. ...”

The plaintiff claims that, because the insurance policy designates Rhode Island as the “contract state,” Rhode Island law applies in determining the construction and validity of any provision of the policy. There is no statute in Rhode Island barring subrogation by a provider of collateral source benefits. The plaintiff resided in Connecticut and there is no evidence that he had any relationship with anyone in Rhode Island relevant to his insurance policy.

“The general rule is that the validity and the construction of a contract are determined by the law of the place where the contract was made. But if the contract is to have its operative effect or place of performance in a jurisdiction other than the place where it was entered into, our rule is that the law of the place of operative effect or performance governs its validity and construction.” (Internal quotation marks omitted.) Whitfield v. Empire Mutual Ins. Co., 167 Conn. 499, 506, 356 A.2d 139 (1975). The evidence does not provide a basis for determining in what state the insurance contract was made. It does indicate, however, that the plaintiff resided in Connecticut and that all of his medical treatment was given in this state. We conclude that Connecticut was the place of performance or operative effect of the policy.

“The privilege of engaging in the insurance business within this state necessarily implies the requirement of conforming to existing statutes, and our legislature frequently has exercised the power to modify the terms of coverage required of insurance policies issued in Connecticut.” Id., 507. Although the law of the state chosen by the parties to govern their contractual rights is ordinarily followed, two exceptions are well established: “(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which . . . would be the state of the applicable law in the absence of an effective choice of law by the parties.” 1 Restatement (Second), Conflict of Laws § 187, p. 561 (1971). Under both of these exceptions, we conclude that the applicable law is that of Connecticut. Accordingly, the trial court properly ruled that the subrogation provision of the plaintiffs policy was ineffective because it conflicted with the prohibition against recovery of collateral source benefits in § 52-225c.

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

In this opinion the other judges concurred.

       During the pendency of this appeal, the original plaintiff, Joseph Pajor, died. The executrix of his estate, Margaret Pajor, was substituted as the plaintiff. Throughout this opinion, the word “plaintiff’ refers to Joseph Pajor.

       General Statutes § 13a-149 provides: “Damages for injuries by means of defective roads and bridges. Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such ipjury shall be maintained against any town, city, corporation or borough, unless written notice of such iryury and a general description of the same, and of the cause thereof and of the tíme and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       In none of the cases cited in the defendant’s brief in support of its claim that evidence of conditions naturally productive of ice on a sidewalk or a highway should be excluded does it appear that such evidence was excluded or that such an objection was even raised. Such evidence would often be relevant to prove the existence of the defect relied upon, its nature and the time when it should have been observed by the municipality.

       The defendant submitted the following request to charge: “The notice required under our law in snow and ice fall-down cases such as this one is notice of the particular defect itself which caused the ipjury and not merely notice of conditions naturally productive of the defect and in fact producing it. Thus, the fact of below-freezing weather conditions after a period the day before when the temperature went above freezing coupled with the presence of accumulated piles of snow from prior snowfalls, is not by itself sufficient notice. If the plaintiff is to prevail you must find that the ice upon which you find he fell was at the locus of the accident for a sufficient period of time and was of such a dangerous character so that the particular condition itself should have been discovered had the Town exercised reasonable supervision over its highways and sidewalks as a whole. Cohen v. Hamden, 27 Conn. App. 487, 492 [607 A.2d 452] (1992).”

       The trial court charged the jury on constructive notice as follows: “The other kind of notice is what is called constructive notice. If the condition that is claimed to be a defect was present for a sufficient length of time, that if the town was using reasonable efforts to inspect its roads and sidewalks it would have discovered the condition, then you may find that the defendant had constructive notice of it. With regard to this issue of notice, the plaintiff apparently takes the position that there had been banks of snow that melted and created runoff that resulted in ice when temperatures fell and that Mr. Cusano, the inside maintenance worker, had seen that condition when he arrived for work the morning of February 8, 1994. . . The plaintiff takes the position that the town employees responsible for the area had sufficient opportunity between 7:30 and about 11:30 to discover and remedy the condition if they had been using reasonable care to inspect the areas that the town had a duty to keep in reasonably safe condition for the use of people using that location.
      “Now the only defect claimed by the plaintiff is a slippery condition. There was some testimony about the design of the area. And while you may consider that evidence in relation to considering whether there was a slippery condition, the plaintiff has not claimed that the defect was some defective design in the area of the sidewalk. Since that is not the basis of the claim, you must consider only the claim of defect that he has made and that is of the slippery condition and a failure to remedy it. The defendant’s position appears to be that no icy or slippery condition existed and the defendant also takes the position that if there was such a condition, that it had not existed for a long enough time for the employees assigned to the Town Hall area to discover and remedy it. The defendant also takes the position that it had crews assigned to Town Hall in a schedule that was sufficient to constitute reasonable care to discover and remedy defective conditions given all of the area for which the town was responsible during winter conditions."

       In Bartram v. Sharon, 71 Conn. 686, 693-94, 43 A. 143 (1899), the court construed apredecessor of General Statutes § 13a-149, which imposed liability for a defective highway on municipalities, not to be congruent with the common law of negligence. The court held that for a recovery pursuant to the statute, the defect must be the sole proximate cause of the injury, thus eschewing the common law doctrine of joint liability for tortfeasors. “The construction and maintenance of highways is a governmental act, controlled by the sovereign law-making power. When its exercise is imposed on a territorial corporation, such corporation is a governmental agent and is not responsible as a private corporation to any individual in respect to its neglect to execute the power. A failure to obey the law may be a public wrong, but cannot be a private wrong. Such public wrong has no answering rights in individuals, and therefore cannot be the subject of a civil action; unless made so by statute.” Id., 692.

       The opinion in Carl v. New Haven, supra, 93 Conn. 622, relied on cases from Maine and Massachusetts involving statutes in those states similar to General Statutes § 13a-149 that imposed liability on municipalities for defective highways. See Pendleton v. Northport, 80 Me. 598, 600, 16 A. 253 (1888); Smyth v. Bangor, 72 Me. 249, 252 (1881); Ryerson v. Abington, 102 Mass. 526, 532 (1869). A Maine statute currently exempts a town from liability “to an action for damages to any person on foot on account of snow or ice on any sidewalk or crosswalk [or] on account of the slippery condition of any sidewalk or crosswalk.” Me. Rev. Stat. Ann. tit. 23, § 3658. Massachusetts statutes allow a maximum of $5000 to be recovered for injuries caused by a “defective way,” but no recovery is permitted if the only defect causing injury was snow and ice. See Mass. Gen. Laws ch. 84, §§ 15, 17; see also Mix v. Commonwealth, 408 Mass. 736, 738, 563 N.E.2d 229 (1990).

       The plaintiffs first attorney prepared the notice after he and the plaintiff had visited the accident site, which the plaintiff had identified.

       The director of public works for the town of Wallingford, who was responsible for maintaining the public sidewalks of the town, testified that he never conducted any investigation of the plaintiffs fall and that he never saw the written notice before he was called to testify. His department did not investigate the incident until the week before trial.

       General Statutes § 52-192a provides: “(a) After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment’ and prior to the rendering of a verdict by the jury or an award by the court, the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiffs ‘offer of judgment’. Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1, 1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment, accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”

       The policy provision provides: “If an insured person recovers money for medical expenses due to any irvjury for which United States Life paid medical care benefits, United States Life must be repaid. The amount repaid will not exceed the smaller of the amount the insured person recovers for medical expenses incurred, or the amount of benefits paid. The repayment will come out of any recovery made, less an adequate adjustment for the costs and legal fees by the insured person to recover the money from a third party.”

       The plaintiff testified that the insurer’s offices were located in New Jersey and that he sent his medical bills there for processing.