author: Bieluch, J.

text:
    Albert Nesbitt v. Mildred E. Mulligan, Administratrix (Estate of George C. Mulligan), et al.
    (5007)
    Spallone, Daly and Bieluch, Js.

      Argued February 5
    decision released June 23, 1987

      Eugene A. Cooney, for the appellants (named defendant et ah).

      Paul J. McQuillan, with whom was John C. Matulis, for the appellee (plaintiff).
   Bieluch, J.

The defendants, Mildred E. Mulligan and Charter Oak Construction Company, Inc. (Charter Oak), have appealed from the trial court’s judgment rendered for the plaintiff in accordance with the jury’s verdict. The defendants claim that the trial court erred (1) in refusing to grant their requests to charge, (2) in its instructions to the jury on the issue of negligence, (3) in allowing the introduction of evidence that the defendant Charter Oak possessed liability insurance, and (4) in failing to grant the defendants’ motions for a directed verdict and judgment notwithstanding the verdict. We find no error.

The jury could reasonably have found the following relevant facts: On September 1,1983, Charter Oak and Hull-Hazard, Inc. (Hull-Hazard), were engaged in construction activities at the Farmington Avenue bridge spanning Trout Brook in West Hartford. Charter Oak was preparing site excavation for utility conduits on behalf of Northeast Utilities (Northeast). Hull-Hazard was the general contractor on a flood control project with responsibility for repairing the southerly portion of the bridge, which had sustained structural damage as a result of a flood in April of 1983.

As part of its repair of the bridge, Hull-Hazard removed a large steel beam supporting the southerly overhang of the bridge. This portion of the bridge included a pedestrian walkway and a small triangular parking area at the west end of the bridge. The southerly portion of the bridge, being no longer structurally sound, was closed to vehicular traffic.

The plaintiff, eighty-five years of age and a spectator at the construction site, was standing on or near the southerly sidewalk of the bridge. As a loaded cement truck owned by Charter Oak and operated by George C. Mulligan backed onto the bridge and its southerly overhang, that portion collapsed and catapulted the truck and the plaintiff into the stream below. The plaintiff suffered serious physical injuries as a consequence. The plaintiff brought this action for damages caused by Mulligan’s negligent operation of the cement truck, and the jury returned a general verdict for the plaintiff.

I

The Defendants’ Requests to Charge

The defendants’ first claim is that the court erred in refusing to charge in accordance with their request on the issue of the duty of care owed by an occupier of land to a trespasser. The defendants’ request to charge sets forth eleven points of law on the issue of negligence as applied to trespassers. The soundness of the legal principles recited in the request was not challenged. The court, however, rejected the request to charge as irrelevant to the allegations set forth in the complaint and responsive pleadings.

It is fundamental that the trial court need charge only on those points of law which arise pursuant to the claims of proof advanced by the parties in their pleadings. See Tierney v. American Urban Corporation, 170 Conn. 243, 250, 365 A.2d 1153 (1976); Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 573, 316 A.2d 394 (1972); Franks v. Lockwood, 146 Conn. 273, 279, 150 A.2d 215 (1959). Our review of the pleadings indicates that the plaintiff’s revised complaint alleged negligence by the defendants in the course of Mulligan’s operation of Charter Oak’s truck, and not negligence arising from the ownership or occupancy of land. The plaintiff’s revised complaint does not allege that the defendants occupied the premises in such a manner as to make them responsible for its condition. Likewise, the defendants do not allege that the plaintiff prosecuted this action on that legal theory. The plaintiff’s allegations of negligence were based upon Charter Oak’s parking of a 7500 pound truck carrying an air compressor on the triangular parking area located at the southwesterly end of the bridge and the operation of a loaded cement truck on the westerly end of the unsupported overhanging bridge and adjacent sidewalk, causing the bridge and sidewalk to collapse. The plaintiff alleged that these activities constituted negligence in that the defendants knew or in the exercise of reasonable care should have known that their conduct would result in the collapse of the sidewalk. Our review of the record discloses that no special defenses were interposed by the defendants in this case. The defendants’ answer consisted merely of a general denial of the plaintiff’s allegations of negligence. Since the legal theory contained in the defendants’ request to charge was irrelevant to the legal theories presented by the pleadings, the trial court properly refused to charge on those issues.

The defendants also allege that the court erred in failing to charge in accordance with the defendants’ request on the effect of warnings issued to the plaintiff by the workers at the construction site. The substantive law contained in the defendants’ request to charge concerned the duty of a landowner to warn trespassers of dangerous conditions known to exist on his land. See 2 Restatement (Second), Torts § 336, comment (d). Since such an issue was not material to the plaintiffs theory of negligence, the trial court correctly refused to charge in accordance with the defendants’ request.

The defendants also allege that the court erred in failing to provide the jury with any instruction as to the legal consequences of the warnings given to the plaintiff. It is argued that the legal effect of these warnings was placed in issue by the defendants’ general denial contained in their answer. The defendants claim that a reasonable warning may have been all that was required of the defendants to discharge their duty of reasonable care. We find that the warnings given were legally insufficient to discharge their duty of care in this case.

The plaintiffs principal claim of negligence was based upon the defendants’ conduct in backing a loaded cement truck onto the unsupported bridge overhang and adjacent sidewalk area. For the defendants to have discharged their duty of care under such circumstances, they would have had to warn the plaintiff of the condition of the unsupported bridge overhang and adjacent sidewalk and the resulting danger which would be presented by backing the cement truck onto the unsupported structure. The defendants do not claim, nor does our review of the testimony disclose, that any such warning was given. The testimony of the witnesses demonstrates that the plaintiff was warned about standing too close to the workmen using jackhammers and cautioned about getting in the way of the backhoe. Since the testimony of the warnings was legally insufficient to prove that the defendants had discharged their duty of care under the facts of this case, the trial court’s failure to charge on that issue could not be error.

The defendants further allege that the trial court erred in denying the defendants’ request to charge and in refusing to charge that the plaintiff’s refusal to heed the warnings given by the men at the construction site may have been the proximate cause of the plaintiffs injuries. The defendants’ claim is one of contributory negligence, which must be specially pleaded. See General Statutes § 52-114; Practice Book § 167. For the reasons stated above, since no such special defense was asserted in the defendants’ answer, they were not entitled to such an instruction. See, e.g., Faulkner v. Reid, 176 Conn. 280, 281, 407 A.2d 958 (1978).

II

The Charge to the Jury

The defendants’ second claim asserts that the court erred in instructing the jurors that they may take into account, while deciding the issue of negligence, “the various testimony as to whether or not the foreman gave safety instructions to his men.” The defendants characterize this instruction as beyond the allegations of the plaintiff’s complaint. See Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983).

“The test of a proper jury charge is whether ‘ “it fairly presents the case to the jury, in such a way that injustice was not done under the rules of law to the legal rights of either litigant . . . .”’A properjury charge must be correct in law, adapted to the issues and ample for the guidance of the jury. . . . Jury instructions should be confined to matters in issue by virtue of the pleadings and evidence in the case. . . . It is error to submit a specification of negligence to the jury in respect to which no evidence has been offered.” (Citations omitted.) Mack v. Perzanowski, 172 Conn. 310, 313, 374 A.2d 236 (1977).

One of the plaintiff’s allegations of the defendants’ negligence was that in the exercise of reasonable care they should have known of the danger of conducting their construction operations and that they failed to take any actions to avoid the resulting sidewalk collapse. We find that this allegation is sufficient to warrant the introduction of evidence as to whether the foreman gave safety instructions to his men and to warrant the court’s reference to this evidence in its charge to the jury.

The defendants also allege that the court erred in charging the jury on issues raised by the pleadings, but not supported by the evidence. Specifically, the defendants claim that the court erred in instructing the jurors that they could consider paragraph 7 (d) and 7 (f) of the plaintiffs revised complaint. Paragraph 7 (d) alleged that the defendants were negligent in weakening the sidewalk portion of the overhanging bridge by attempting to remove a metallic pipe with jackhammers and other instruments. Paragraph 7 (f) alleged that the defendants were negligent in driving the cement truck onto the bridge when the cement truck weighed in excess of the legal limit permitted on the bridge.

It is beyond cavil that the trial court may not submit for the jury’s consideration any theory of negligence which is unsupported by the evidence. Mack v. Perzanowski, supra; Goggins v. Reinzo Trucking Co., 166 Conn. 240, 246-47, 348 A.2d 569 (1974). We do not agree, however, that there was no evidence to support these allegations of the complaint.

As relevant to paragraph 7 (d) of the revised complaint, the record contains testimony by several witnesses that a jackhammer was used on the bridge to remove concrete and to form trenches to lay conduit for Northeast. The air compressor carried on the truck of Charter Oak which was parked in the nearby triangular area operated the jackhammer. There was also testimony by Paul Cianci, a consulting structural engineer, that the unsupported sidewalk in question was in a severely weakened condition prior to the accident and that only a little blow or vibration could cause it to collapse. We find that such testimony provided sufficient evidence to consider whether the operation of the jackhammer or similar tools further weakened the sidewalk.

As relevant to paragraph 7 (f) of the revised complaint, the record contains substantial evidence that the loaded cement truck weighed in excess of the legal limit for the bridge and that the weight of the truck was in part the cause for the collapse of the unsupported portion of the bridge. We likewise find, therefore, that the court did not err in submitting this allegation of negligence to the jury.

The defendants also allege that the trial court erred in its instruction on the issue of proximate cause. The defendants claim that the following portion of the trial court’s charge on proximate cause was erroneous: “If you find that even though the extension span may have been in a seriously weakened condition, the act of driving the twenty and one-half ton cement truck onto it in that condition [was a] substantial factor in causing the extension span to collapse, then you are to find that it was the Charter Oak Construction Company and Mr. Mulligan, not anyone else, who are reponsible for the plaintiff’s injuries.” The defendants claim that the court, in effect, directed a verdict for the plaintiff on the issue of proximate cause.

Our review of the transcript reveals that the defendants took no exception to the court’s charge on this basis. The only exception taken to the instruction on the issue of proximate cause was unrelated to this claim and was made while the defendants were excepting to the court’s instruction to the jurors that they could consider the plaintiffs allegation of negligence as set forth in paragraph 7 (c) of the revised complaint. This specification claimed negligence in that “the decedent, George C. Mulligan, drove the cement truck owned by Charter Oak Construction Company, Inc., onto the sidewalk portion of said Farmington Avenue bridge when other vehicles, owned by Charter Oak Construction Company, Inc., were parked on the sidewalk area . . . .” During that exception, the defendants stated that there was “no evidence of proximate cause or that [the placing of the cement truck on the sidewalk area] was a substantial factor.” The exception taken by the defendants’ counsel was insufficient to apprise the trial court, of the claim now being made in this appeal and is not, therefore, properly reviewable. See Mihalek v. Cichowski, 4 Conn. App. 484, 486, 495 A.2d 721 (1985); see also Practice Book f § 315 and 4185 (claim® en appeal to be distinctly raised at trial).

The defendants also allege that the court*® charge failed to provide the jury with adequate guidance to. decide whether the defendants owed a, duty to the plaintiff. This claim arises from the trial court’s; instruction that “[i]f the defendants knew of the presence of the plaintiff in the area where they were driving their track,, then they owed him a duty to refrain from injuring Mm as a reasonably prudent man would do.” The defendants took exception to this charge, because if failed to provide the jurors with proper guidance in; tibe event that they concluded that the defendants were, not aware of the plaintiff’s presence in the area. The defendants, argue that, “a charge that is expressly contingent upon the finding of a disputed feet, which charge is unaccompanied by any guidance whatsoever for the possibility that such fact is not found, leaves; the jury guessing about what the law is. No intelligent juror could find ample guidance in such an obviously incomplete instruction.” We disagree with the defendants’ claim that the jurors were not provided: adequate guidance as to their duty under the law should they find that the defendants were not aware of the; plaintiff s presence in the area at the time of the accident.

gence, specifically that the defendants; knew that the plaintiff was in the area where the cement truck was being operated, and that they breached their duty of care by failing to operate that truck in the same manner as a reasonably prudent person. The court also instructed the jury that if the plaintiff fails to prove by a fair preponderance of the evidence that the defendants were negligent, they must render a verdict for the defendants. Such an instruction provided sufficient guidance for the jurors as to their duty should they find that the defendants were not aware of the plaintiffs presence in the area of the cement truck. Reading the jury charge as a whole, we conclude that it was sufficient to guide the jury to a lawful result. See Mack v. Perzanoswki, supra.

Ill

Evidence of the Charter Oak’s Insurance Carrier

The defendants claim that the trial court erred in admitting evidence that Charter Oak was insured by the Aetna Insurance Company. Specifically, the defendants claim that the trial court erred in allowing the plaintiff to question the defendants’ engineering expert, Cianci, as to the identity and occupation of the person who hired him to investigate the accident. The witness had previously testified that he was hired to investigate the accident on behalf of Charter Oak. The witness was then allowed to testify that he was hired by John Scarpolino, a claims representative for the Aetna Insurance Company. The defendants claim that such evidence was irrelevant and extremely prejudicial. The defendants also contend that the trial court compounded this alleged error by instructing the jury that no connection should be made between an insurance company and any defendant in the case.

“Generally, in negligence actions, evidence that the defendant carries liability insurance is inadmissible. . . . This rule, however, is not without exception. . . . Tt is usually held that it is permissible for plaintiffs counsel, when acting in good faith, to show the relationship between a witness and defendant’s insurance company where such evidence tends to show the interest or bias of the witness and affects the weight to be accorded his testimony.’ ” (Citations omitted.) Magnon v. Glickman, 185 Conn. 234, 242, 440 A.2d 909 (1981).

During the discussion which took place relevant to the defendants’ objection, the court noted that it was “a well known fact in this case that Aetna [was] in this case” and at no time until the present objection, did the defendants make any objection to the introduction of that evidence. The court indicated that it was of the opinion that no further harm or prejudice would be done beyond what harm might have been done by the prior mention of the Aetna Insurance Company without objection. The plaintiff’s counsel, in defense of his right to ask who had hired the witness, stated his belief that the jury had the right to know the motive and the reason why the witness was testifying. It should also be noted that after the witness identified the person who had hired him as a claims representative of the Aetna Insurance Company, no further reference was made to Charter Oak’s insurance carrier.

Whether the witness should have been allowed to testify that he was hired by the Aetna Insurance Company is a matter of discretion for the trial court. See id., 243. Under the facts of this case, where the Aetna Insurance Company had been referred to by name several times earlier during the course of the trial without objection by the defendants and the plaintiff’s justification for eliciting such testimony failed to demonstrate anything other than a good faith attempt to establish the witness’ motive for testifying, we do not find that the trial court abused its discretion in admitümg such fes&momy. Furthermore, we find that any from the admission ©f such testimony was cured by the trial ©surfs ©antionaiy instruction to the jurors that they were mot to consider whether a defendant was insured. ¡See id. For these reasons, the trial court properly denied the defendants’ motion for a mistrial filed on the ground that evidence of insurance coverage had been improperly admitted.

IV

The IMfemdants’ Motions for a Directed Verdict and for Judgment Notwithstanding the Verdict

The defendants’ final claim is that the trial court eiredim denyingfhe defendants’ motions for a directed verdict and for .judgment notwithstanding the verdict. The grounds proffered in support of their claim that thejpJlMBiiffifaled to prove his cause of action have been addressed fifty ha this ©pinion. For the reasons stated herein* the iiM ©ourt properly denied the defendants’ motions.

'There is no error.

in this ©pinion ithe other judges concurred.

       This action was originally brought against the named defendant, Charter Oak Construction Company, Inc., Hull-Hazard, Inc., and the town of West Hartford. The plaintiff’s actions against Hull-Hazard, Inc., and the town of West Hartford were withdrawn. As used in this opinion, the term defendants refers to the named defendant and Charter Oak Construction Company, Inc., the appellants in this case.

       This court is, of coarse, free to. recognize pMra error mot.brougMrtQ. the attention of the trial eourt where necessary t® serve; the interest, of justice. Practice Book § 4185. We find, however, thatthedefendant's”present allegation as applied to the court’’s charge, in tMs ease does not. constitute plain error.


source: Caselaw Access Project

license: Public Domain

text:
    Norwalk Mall Venture v. Mijo, Inc., et al.
    (3955)
    Borden, Spallone and Bieluch, Js.

      Argued February 4
    decision released June 30, 1987

      Marshall Goldberg, for the appellant (plaintiff).

      Reuben S. Midler, for the appellee (named defendant).
   Bieluch, J.

The plaintiff landlord appeals in this summary process action from that portion of the trial court’s judgment finding for the named defendant tenant. The plaintiff claims that the trial court erred in not finding that the dissolution of the corporate defendant constituted a breach of the lease, thereby entitling the plaintiff to possession of the leased premises. It also claims that the trial court erred in ruling that the notice to quit possession was prematurely served upon the defendant. We find error.

The trial court made the following relevant findings of fact: The defendant leased space in the Norwalk Mall since November, 1982. The defendant was not operating a business at the leased premises, but continued to hold the lease as an investment for sale. In January, 1984, the plaintiff assumed ownership of the Nor-walk Mall with full knowledge of the defendant’s lease and nonoceupancy of the premises.

On April 16, 1984, the defendant assigned its lease to the individual defendants, Joseph Keating, Kathy Keating and Michael Gannon. On the following day, the defendant filed a certificate of corporate dissolution with the office of secretary of the state.

On May 14, 1984, the plaintiff gave written notice to the defendant by mail that it was in default of its lease agreement. It specifically stated that the defendant was in violation of paragraph three of the lease which requires that the tenant maintain a continuous business operation on the leased premises. This notice also warned that “if such default continues for more than fifteen (15) days after May 14, 1984 . . . the lease and the term thereunder shall cease and expiré in accordance with Paragraph 24A thereof on June 1, 1984, without further notice.” On May 22, 1984, a notice to quit possession was served upon the defendant demanding that it quit possession of the premises on or before June 2, 1984, for the following reasons: “(1) Unauthorized occupancy (you are occupying these premises without any right or privilege to do so; whatever right or privilege you may have had to occupy these premises has terminated); (2) Material breach of Paragraph 3 of your lease (Continuous Operation provision); (3) Non-payment of rent.” On June 5,1984, the plaintiff commenced a summary process action in three counts, seeking immediate possession of the premises. The defendant interposed a number of special defenses to these counts.

The trial court found that the defendant had a right to occupy the premises even after filing the certificate of dissolution. It also found that the plaintiff failed to provide the defendant with adequate notice— particularly the fifteen days notice required by the lease—of its intent to enforce paragraph three of the lease agreement and was, therefore, “estopped from seeking to enforce the provision with respect to continuous operation.” In the light of its holding that the plaintiff could not prevail on its claim for possession based upon the alleged breach of lease, the court did not rule on the defendant’s various special defenses.

The plaintiff’s first claim is that the court erred in finding that the dissolution of the defendant did not constitute a breach of the lease entitling the plaintiff to possession. The plaintiff’s complaint alleged that the dissolution of the corporate defendant, effectuated by the filing of the certificate of dissolution with the office of secretary of the state on April 17,1984, constituted a breach of paragraph 24A (c) of the lease agreement. The plaintiff argues, therefore, that the defendant had no right of possession to the premises after June 2, 1984, as provided in the notice to quit.

The trial court disagreed with the plaintiffs contention and found that under the provisions of General Statutes § 33-378, “the filing of a Certificate of Dissolution does not wipe out the existence of the corporation but permits it to retain an existence to wind up its affairs which includes the disposing of its property.” While the statement of the trial court is undoubtedly true, the court ignored the lease agreement which provided in unambiguous terms that the lease shall expire upon notice of three days or more if the corporate tenant dissolved, either voluntarily or involuntarily, as provided in paragraph 24A (c) of the lease. See footnote 3, supra.

The defendant does not deny that it filed a certificate of dissolution. It claims, rather, that the plaintiff was raising a claim of default based upon the dissolution of the corporation without having raised the claim in the notice of default or in the subsequent notice to quit possession. Therefore, the defendant claims, the plaintiff was not entitled to recover on that basis. The record before us does not adequately support this claim of the defendant.

The plaintiffs notice to quit asserted as one of three grounds for the eviction that the defendant did not have any right or privilege to occupy the premises, its right or privilege of possession having been terminated. The defendant, at trial, claimed that the notice to quit was defective in that it failed to inform the defendant that the lease was being terminated because the defendant corporation had been dissolved. The trial court decided this issue against the defendant, and specifically found: “In this case the court is not faced with the question of whether the Notice to Quit [was] defective. In fact, it appears not to be.” The defendant does not claim in this court that this finding of the trial court was in error.

While the notice to quit was not a model of particularity, we cannot find, on the basis of the record before us, that the trial court could not reasonably have found that the notice to quit was sufficient notice of termination under the lease agreement. Buddenhagen v. Luque, 10 Conn. App. 41, 44-45, 521 A.2d 221 (1987).

The defendant also claims that had the court found that the plaintiff was entitled to terminate the lease because of the dissolution of the corporate defendant, it could have found that the plaintiff failed to afford the defendant fifteen days allowed by the lease, to cure a default. This argument is contrary to the unequivocal terms of paragraph 24A (c) of the lease which provides that upon dissolution of the tenant, the lease shall be terminated upon the date specified in a written notice, “Which date shall be not less than three (3) days after the date of mailing of such notice by Landlord to Tenant.” It is clear that no provision was made for the “curing” of termination of the lease by dissolution of the corporate tenant. The notice to quit possession given on May 22, 1984, was sufficient notice of the exercise of termination of the lease on June 2, 1984, and for the institution of this summary process action thereafter. We find that the plaintiff was entitled to terminate the lease upon the dissolution of the corporate defendant, and that the trial court’s findings were contrary to the express provisions of the lease agreement. See Central New Haven Development Corporation v. La Crepe, Inc., 177 Conn. 212, 215, 413 A.2d 840 (1979).

The case, therefore, must be remanded to the trial court for a new trial to determine whether the defendant can establish any of the special defenses as set forth in its answer which are relevant to the plaintiff’s claim that the defendant was in default by virtue of its dissolution.

Even though the case is remanded for a new trial, we must address the plaintiff’s second claim that the trial court erred in holding that the plaintiff was not entitled to terminate the lease for breach of the continuous operation requirement because it failed to afford the defendant fifteen days provided under the lease agreement to cure this defect. This issue may become relevant if the trial court, on remand, finds that the defendant has established any of its special defenses to the plaintiff’s claim of termination based upon the corporate dissolution.

The trial court acknowledged that a tenant’s failure to conduct a continuous business operation on the leased premises is a default under paragraph 3 of the lease. See footnote 2. The court found, however, that the lease agreement afforded the tenant fifteen days to cure such default before the landlord was entitled to terminate the lease. It is undisputed that the defendant did not maintain a business operation at the leased premises. Written notice of this default was given to the defendant on May 14,1984, by certified mail, return receipt requested. This letter informed the defendant that it had until June 1, 1984, to cure this default or the lease would be terminated pursuant to paragraph 24A. Eight days later, on May 22, 1984, the plaintiff served the defendant with a notice to quit the premises on June 2, 1984. The provisions of the notice to quit were unequivocal and final. The notice set forth: “PLEASE TAKE NOTICE that you are to QUIT POSSESSION and occupancy of the premises now occupied by you at 24 Belden Hill Ave., Norwalk, Connecticut, on or before June 2, 1984, for the following reasons: . . . (2) Material breach of Paragraph 3 of your lease (Continuous Operation provision).” No allowance was made in the notice for restoration of the tenancy upon the correction of the default within the time previously allowed by the plaintiff’s notice of May 14, 1984.

The trial court found that “[a]bsent any such notice to the defendant and particularly absent the 15 day notice required by the lease . . . the plaintiff [was] estopped from seeking to enforce the provision with respect to continuous operation.” The plaintiff claims error in such trial court’s finding that the defendant was not afforded the fifteen days cure period under the lease. It argues that the May 14,1984 letter which notified the defendant of the default gave the defendant until June 1, 1984, to cure the defect or surrender its rights under the lease. It further argues that this time in which to remove the default was not affected by the May 22,1984 notice to quit which informed the defendant that the lease would be terminated as of June 2, 1984. The plaintiff argues that the notice to quit did not legally and conclusively terminate the lease as of June 2,1984, but merely gave the defendant notice that the lease would be terminated as of that date if the defendant did not timely cure the default.

The plaintiff’s argument is contrary to the express terms of the notice to quit which were unequivocal, absolute and final. The plaintiff gave the defendant unqualified notice to quit possession of the premises on June 2, 1984. In view of the unequivocal declaration by the plaintiff on May 22,1984, that the defendant was to surrender possession of the premises on June 2, 1984, the plaintiff cannot also maintain that it alternately afforded the defendant the requisite fifteen day period to remedy the default under the terms of the lease. We conclude, therefore, that the trial court correctly found that the failure of the plaintiff to allow the defendant fifteen days to cure the default under paragraph 3 precluded its claim for possession on the basis of that default on June 2, 1984.

There is error, the judgment is set aside as to the defendant Mijo, Inc., only, and the case is remanded for a new trial in accordance with this opinion.

In this opinion the other judges concurred.

       The named defendant corporation has as its sole stockholders and officers Joseph Keating, Kathy Keating and Michael Gannon. These three persons were named as codefendants in this action. The trial court found for the plaintiff as against these three defendants, and no appeal has been taken from that portion of the trial court’s judgment. As used in this opinion the term defendant refers only to the named defendant, Mijo, Inc.

       Paragraph 3 of the lease agreement entitled “Continuous Operation,” provides in full: “Notwithstanding any other provision of this lease, Tenant will conduct its business in the entire Premises for the uses generally outlined in Article 2 above, subject, however, to all of the terms, covenants and conditions of this lease, and in such consistent manner therewith as will achieve the maximum volume therefor, and that it will be open for business, and fully stocked, at least five (5) days per week and at least six (6) hours per day.”

       The plaintiff withdrew its claim based upon nonpayment of rent.

       Paragraph 24A (c) of the lease agreement provides in relevant part: “A. If the Tenant shall: ... (c) ... be dissolved, voluntarily or involuntarily, . . . this lease and the Term hereof shall upon the date specified in a notice, which date shall be not less than three (3) days after the date of mailing of such notice by Landlord to Tenant, wholly cease and expire, with the same force and effect as though the date so specified were the date hereinabove first set forth as the date of the expiration of the Term. . . .”

       General Statutes § 33-378 provides: “(a) Dissolution terminates the corporate existence of the dissolved corporation, (b) A dissolved corporation shall cease to carry on its business and shall do only such acts as are necessary or expedient to collect, convey and dispose of such of its properties as are not to be distributed in kind to its shareholders, pay, satisfy and discharge or make adequate provisions for its liabilities and obligations, distribute its assets, and adjust and wind up its business and affairs as expeditiously as practicable, and for such purpose it shall continue as a corporation. (c) The dissolution of a corporation shall not take away or impair any remedy available against such corporation for any right or claim existing at, or for any liability incurred prior to, dissolution, subject to the provisions of section 33-379. (d) No action or proceeding, civil or criminal, to which a corporation is a party shall abate by reason of dissolution, (e) Any action or proceeding by or against a dissolved corporation may be prosecuted or defended by the corporation in its corporate name, and such use of the corporate name is also available to a shareholder prosecuting or defending in a derivative capacity on behalf of a dissolved corporation, (f) The dissolution of a corporation shall not of itself render the shareholders liable for any liability or other obligation of the corporation nor vest title to the property of the corporation in the shareholders.”

       The parties have not placed before us the issue of whether the notice to quit would satisfy General Statutes § 47a-23. We note, as did the trial court, that paragraph 24A (d) of the lease agreement waived the statutory requirement of a notice to quit possession.

       The defendant properly presented this alternate ground for affirming the trial court’s judgment by filing its alternate preliminary statement of issues in accordance with Practice Book § 3012 (now § 4013).

       The provisions for curing defaults are inapplicable to the dissolution of the tenant under paragraph 24A (c). Nonpayment of rent when due is correctible under paragraph 24A (a) within ten days after written notice of such default, and default in the observance of any other terms of the lease is correctible within fifteen days after written notice. There is, however, no period providing for the correction of a default based upon the dissolution of the corporate tenant.

       Paragraph 24A (a) of the lease agreement provides that any default of terms not specifically enumerated in paragraph 24A is subject to correction within fifteen days of written notice before the lease may be terminated. The continuous operation clause is enumerated as paragraph 3 of the lease and is subject, therefore, to the fifteen days curative provision under paragraph 24A (a).


author: Daly, J.

text:
    Susan Ferrucci v. Frank Ferrucci
    (4961)
    Dupont, C. J., Borden and Daly, Js.
    Argued March 4
    decision released June 30, 1987

      William R. Moller, with whom was Alexandra Davis, for the appellant (plaintiff).

      Susan W. Wolfson, with whom, on the brief, was Donna Decker Morris, for the appellee (defendant).
   Daly, J.

In this appeal from the judgment dissolving the marriage of the parties and from the judgment denying the plaintiff’s motion to open the judgment, the plaintiff wife claims an abuse of discretion by the state trial referee, acting as the trial court (1) in its determination of financial awards, and (2) in its denial of the motion to open based on a finding that further evidence would not change the financial awards. We find no error.

The parties were married in 1971. They had no children. Both are well educated and possess graduate degrees. The defendant had been employed at the Southern New England Telephone Company, (SNETCO), earning approximately $52,000 annually before accepting an incentive retirement in 1984. The plaintiff had her own printing business, Color World, Inc., with equity of approximately $127,000, although this amount is disputed. She had several real estate investments with another person worth approximately $80,000. The parties were joint owners of a three-family home in New Haven, the equity of which was valued at $85,000; an investment fund at the Merrill-Lynch brokerage firm valued at $12,000; and some tax free bonds valued at $11,000. The defendant also listed a $22,000 savings plan at SNETCO as an asset.

The marriage was dissolved by a judgment dated October 31,1985. The court found that the parties were equally culpable in the breakdown of the marriage. Accordingly, the court did not award alimony to either party. The jointly held three-family residence and its furnishings were awarded to the defendant. The Merrill-Lynch account and the tax free bonds were divided equally between the parties.

I

The first issue in this case is whether the trial court abused its discretion in its determination of the financial awards. The plaintiff first claims the trial court abused its discretion by considering the personal activities of the plaintiff after her separation from the defendant when making the financial awards. This claim is without merit.

The trial court found that both parties engaged in sexual activities with others after their separation in late 1983. This finding was made in the context of numerous other findings, all of which related to the court’s conclusion that the breakdown of the marriage of the parties was the result of a process of erosion which began in 1974, and that they were equally culpable for that breakdown. Although postseparation sexual behavior of the parties would ordinarily carry less weight than preseparation behavior in the factual determination of the causes of the breakdown of a marriage, the plaintiff offers no authority, nor are we aware of any, which bars the court from even considering such behavior in making that factual determination. Furthermore, there is no indication here that the court focused extensively or improperly on that behavior of the plaintiff in making its financial awards.

The remainder of this issue can be divided into two parts, one relating to the allegedly erroneous valuation of the plaintiffs equity in Color World, Inc., and in her investments with another person, and the other relating to the division of the personalty of the parties.

Valuation of the Plaintiff’s Equity

The trial court found that as of “June 30, 1985, the plaintiff’s equity in Color World was approximately $127,000 according to the bookkeeping records kept by her corporation and reported to her company accountant. That figure represented the difference between her corporate assets and its liabilities, or its book value.” The plaintiff claims that this figure is inaccurate and is the result of a mathematical error on the part of the court. She relies on the fact that her accountant stated that the shareholders equity in the corporation was $108,778, according to the corporations books rather than $127,000 as stated by the court. According to the trial testimony, the plaintiff’s accountant arrived at the $108,778 figure by adding together the value of the company’s capital stock, its retained earnings, and its last year’s profit. We note that the plaintiff and her accountant failed to include the value of the company’s assets, however. Those assets had a net book value, depreciated for income tax purposes at the standard five year rate, of $12,415. The assets had been purchased for close to $30,000, and could reasonably have had a higher market value. The defendant claims that the $127,000 figure was correct and included the shareholder’s equity of $108,775 and the approximate market value of the companies’ assets in the amount of $18,000.

The plaintiff views the trial court’s valuation of her equity in Color World, Inc., as an “Ehrenkranz” error, requiring this court to hold that the foundation for the trial court’s judgment is faulty, and therefore an abuse of its discretion requiring a rehearing on the division of the assets of the parties. See Trubowitz v. Trubowitz, 5 Conn. App. 681, 684, 502 A.2d 940 (1985), citing Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 479 A.2d 826 (1984).

The defendant claims that any flaw in the trial court’s valuation of the plaintiff’s equity in the corporation is unlike the error necessitating a new trial in Ehrenkranz v. Ehrenkranz, supra. The defendant argues further that any error in this case was at most a minor computational error and was harmless since it involved the valuation of a single asset and did not affect the overall allocation of assets.

Here, the plaintiff argues, essentially, that the trial court could not have found that her equity in Color World, Inc., was $127,000. She claims that there was no evidence to support any figure other than $108,778. We disagree. If the court added the plaintiff’s admitted equity of approximately $109,000 to the depreciated book value of the corporations capital assets of approximately $12,500, the court would have arrived at the sum of $121,500, leaving any possible discrepancy at $5500 rather than $18,000 as the plaintiff claims. Furthermore, the court did not find the plaintiffs equity to be $127,000, but stated that such was the case according to the plaintiff’s records.

The record clearly indicates that Color World, Inc., was a thriving business. General Statutes § 46b-81 (c) provides that “[i]n fixing the . . . value of the property ... to be assigned, the court, after hearing the witnesses . . . of each party . . . shall consider the . . . amount and sources of income . . . [the] liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the . . . appreciation in value of their respective estates.” Thus, the trial court could have properly considered the prospects of future acquisition of assets and income and future appreciation of the plaintiff’s corporation in determining its value. See Valante v. Valante, 180 Conn. 528, 429 A.2d 964 (1980). We conclude that the trial court could reasonably have valued the plaintiff’s equity in Color World, Inc., as it did.

In regard to her real estate investments with a third party, the plaintiff argues that the evidence did not support the court’s conclusion that she had $80,000 of equity in those investments. We disagree.

At trial, there was conflicting testimony as to the value of the various properties owned by the plaintiff, and her equity in them. Determination of the value of the properties is a matter properly left up to the trial court. E & F Realty Co. v. Commissioner of Transportation, 173 Conn. 247, 253, 377 A.2d 302 (1977). The trier may accept or reject the testimony of an expert, offered by one party or the other, in whole or in part. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). Filipetti v. Filipetti, 2 Conn. App. 456, 458-59, 479 A.2d 1229, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984). “It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” Smith v. Smith, 185 Conn. 491, 493, 441 A.2d 140 (1981); Beede v. Beede, 186 Conn. 191, 195, 440 A.2d 283 (1982). We will not retry the facts. See Carpenter v. Carpenter, 188 Conn. 736, 741-42, 453 A.2d 1151 (1982). The referee could reasonably have determined that the plaintiff’s investments with the third party amounted to $80,000. Exclusive of her investment of $40,000 in 204 Bishop Street, New Haven, the record discloses an interest in: (1) Upper State Street Development II in the amount of $27,500; (2) 67-69 State Street in the amount of $30,000; and (3) Upper State Street Development III in the amount of $27,500. We conclude that the trial court’s conclusion that the plaintiff had an equity of $80,000 in these properties was reasonable and supported by the evidence.

Personalty

The plaintiff also claims that the trial court erred in awarding the defendant household furnishings since they were not claimed in his financial affidavit.

In the complaint, the plaintiff requested “[a]n order assigning the estate of the defendant to the plaintiff pursuant to the provisions of Section 46b-81, Connecticut General Statutes, including but not limited to the real estate in which the defendant has an interest.” This general claim put in issue all the jointly held property of the parties. Tsopanides v. Tsopanides, 181 Conn. 248, 249, 435 A.2d 34 (1980). Further, her claim for “[s]uch other and further relief as law and equity may provide,” invited the trial court to weigh the claims and assets of each party in making its awards. Id., 250. Finally, the plaintiff is charged with notice that under General Statutes § 46b-81a the court was specifically authorized to assign the property to either party. Id.

II

The second issue in this appeal is whether the denial of the motion to open was an abuse of discretion. We find no error.

“ ‘[T]he action of a trial court in granting or refusing an application to open a judgment is, generally, within the judicial discretion of such court, and its action will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion.’ ” Grunschlag v. Ethel Walker School, Inc., 190 Conn. 679, 684, 462 A.2d 1 (1983). In this case, the motion to open was essentially a request that the court retry the case. The plaintiff has no right to a second bite of the factual apple. See Preisner v. Illman, 1 Conn. App. 264, 268, 470 A.2d 1237 (1984).

When all of the financial factors in this case are placed on the scales of equity and fairness we conclude that the trial court did not abuse its discretion.

There is no error.

In this opinion the other judges concurred.

       “The Ehrenkranz case involved an erroneous calculation of the valuations of the assets allocated by the trial court which, therefore, led to an erroneous financial award.” Carpenter v. Carpenter, 7 Conn. App. 112, 114, 507 A.2d 526 (1986).


author: Dupont, C. J.

text:
    Nanci L. Burns v. William E. Koellmer et al.
    (4732)
    Dupont, C. J., Borden and Daly, Js.

      Argued March 3
    decision released June 30, 1987

      Jules Lang, with whom, on the brief, was Beverly M. Krieger, for the appellant (defendant).

      Matthew B. Woods, with whom, on the brief, was Louis I. Gladstone, for the appellee (plaintiff).
   Dupont, C. J.

This appeal is brought by the named defendant from a judgment rendered in favor of the plaintiff, after a jury trial. The defendant claims that the trial court erred in denying his motion for a directed verdict, in charging the jury on theories of implied contract, unjust enrichment and quantum meruit, and in failing to submit interrogatories to the jury. We find no error.

The relevant facts which could reasonably have been found by the jury are as follows. The defendant operated a tennis club. The plaintiff, who played tennis at the club, began a social relationship with him. At times, she would help him at the club by answering the telephone and performing other light tasks. As their relationship developed, the parties began to live together in a condominium near the club. The plaintiff then began, at the request of the defendant, to perform all of the managerial functions at the club. Shortly thereafter, the plaintiff divorced her husband, while the defendant remained married to his estranged wife. The plaintiff worked for a period of six years as the manager of the club, during which time the defendant remunerated her with some payments by cash and check. The plaintiff expected to be remunerated in excess of those payments, the defendant benefited from the plaintiffs service, the defendant had assured the plaintiff that she would receive additional compensation, and the plaintiffs expectation of payment ceased when her employment did. After those six years as manager, the plaintiff was discharged and the parties’ personal relationship came to an end.

The first and second counts of the plaintiff’s complaint as amended, contain nearly identical allegations. One count is against the individual defendant and the other against the corporation club. According to the allegations, the defendant requested that the plaintiff assume the managerial duties of the club; the plaintiff undertook those duties with the expectation of payment for her services; the defendant knew of that expectation and accepted the services rendered; the defendant remunerated her from time to time as partial payment for her services; the defendant represented that she would be fully compensated in the future; and the defendant terminated her as manager without having fully compensated her for the services which she performed as manager.

The defendant answered the complaint, admitting that he knew the work was being done by the plaintiff, admitting making payments to her, but denying that they were partial payments for her services, and admitting that she was terminated as manager. The defendant asserted special defenses of the statute of frauds, the statute of limitations, and a public policy against adultery, as barring the plaintiff from any recovery. The jury returned a general verdict for the plaintiff.

The trial court filed a memorandum of decision upon its denial of the defendant’s motion to set aside the verdict. The court reviewed some of the facts which the jury could reasonably have found, and also discussed its charge in response to the defendant’s objection to it. The court gave no charge on the special defense of the statute of limitations because it ruled that the plaintiff’s cause of action arose when her expectation of remuneration was defeated by her replacement as manager of the tennis club and, therefore, that the statute of limitations did not begin to run until that time. Since the complaint in both counts one and two alleged the facts necessary to prove the necessary elements of a recovery on the principles of restitution, the court stated that it was proper to give a charge on quantum meruit, unjust enrichment, and implied contract. Finally, the court held that the defendant’s request for interrogatories was properly denied because they related solely to the plaintiffs cause of action for breach of an express contract, and could not have protected the defendant from a general verdict.

The defendant claims that any agreement which might have existed between the parties should not be enforced because it is contrary to the public policy of this state. The public policy he relies upon is that the state will not condone a relationship which has the effect of destroying a marriage. The defendant seeks to buttress his argument by relying upon the cases of Tator v. Valden, 124 Conn. 96, 198 A. 169 (1938), and Beit v. Beit, 135 Conn. 195, 63 A.2d 161 (1948), as well as the criminal proscription against adultery. General Statutes § 53a-81. The cases upon which he relies did not directly involve any allegedly adulterous relationship, but are instructive of the general principles which militate against enforcing contracts which are contrary to public policy.

“A court will not grant any relief to a plaintiff who rests his claim upon an agreement which is against public policy, for that would be to lend its aid to an illegal transaction. Smith v. David B. Crockett Co., 85 Conn. 282, 287, 82 A. 569 [1912]; Roberts v. Criss, 266 F. 296, 301 [1920]; 2 Page, Contracts (2d Ed.) § 1026.” Beit v. Beit, supra, 198. The defendant seeks to avoid any obligation he may have incurred by relying upon the premise that whatever agreement the parties entered into was part and parcel of their adulterous cohabitation.

In this case, the alleged contract was not made for or about the parties’ living arrangements or sexual behavior. The agreement of the parties as pleaded and proved did not involve prohibited acts. The plaintiff’s claim for restitution rests upon neither an illegal agreement nor an agreement the object of which is illegal. The recognition of her claim cannot lend any aid to an illegal transaction. Claims of a contractual or quasi-contractual nature between parties in illicit relationships but which do not involve payment for prohibited sexual behavior are enforceable in courts of law. “A bargain between two persons is not made illegal by the mere fact of an illicit relationship between them, so long as that relationship constitutes no part of the consideration bargained for and no promise in the bargain is conditional upon it.” 6A, A. Corbin, Contracts § 1476 (1962). “ ‘The courts should enforce express contracts between nonmarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services. ... In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.’ ” Boland v. Catalano, 202 Conn. 333, 340-41, 521 A.2d 142 (1987), quoting Marvin v. Marvin, 18 Cal. 3d 660, 665, 134 Cal. Rptr. 815, 557 P.2d 106 (1976). Thus, a contract, express or implied, or some other tacit understanding between persons who are not married to one another which does not rely upon their sexual behavior is enforceable in the courts of this state. See 2 Restatement (Second), Contracts §§ 197-98.

The defendant next argues, in support of his claim of error in the denial of his motion for a directed verdict, that the alleged oral contract was unenforceable because of its vagueness and because it was prohibited by the statute of frauds, General Statutes § 52-550. The defendant also argues that the plaintiff pleaded a cause of action in express contract only, thereby prohibiting the jury from finding the defendant liable on theories of quantum meruit, unjust enrichment and implied contract. He thus raises the corollary argument that the trial court erred by charging the jury on those theories of recovery.

Of these claims, we first address the argument that the trial court erred in charging the jury on theories of restitution. If this claim fails, then the statute of frauds defense falls with it. The defendant asserts that counts one and two of the complaint allege an express contract and that the plaintiff is, therefore, precluded from recovery on a restitutionary theory. The pleadings of the plaintiffs complaint must be examined to determine whether she alleged these theories. See, e.g., Lombardi v. J. A. Bergren Dairy Farms, Inc., 153 Conn. 19, 22-23, 213 A.2d 449 (1965); Practice Book § 322.

The defendant hinges his claim that the complaint alleges only a theory of express contract on the complaint’s allegation that the defendant represented to the plaintiff “that she would be fully compensated for her work, labor and services at a subsequent time from assets of [the defendant].” The defendant argues that this allegation limits the plaintiff’s cause of action to one sounding in express contract.

The allegations of the complaint must be given “ ‘such reasonable construction as will give effect to [it] in conformity with the general theory which it was intended to follow, and do substantial justice between the parties. ’ ” (Emphasis in original.) Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985).

The first and second counts of the complaint both consist of fourteen paragraphs. Paragraphs seven and twelve of each count allege, respectively, that the defendant requested that the plaintiff assume the managerial duties at the tennis club, and that she accepted partial payment for her services upon his representation that she would be fully compensated in the future. Other paragraphs of the complaint allege that she expected payment for her services, that the defendant knew of her services and of her expectation for payment, and that she was never paid in full for her services.

“The burden rests on the plaintiff to allege a recognizable cause of action in her complaint. Stavnezer v. Sage-Allen & Co., 146 Conn. 460, 461, 152 A.2d 312 [1959].” Lombardi v. J. A. Bergren Dairy Farms, Inc., supra, 22. The trial court, in concluding that the plaintiff had alleged a quasi-contractual theory of recovery, relied upon A&C Corporation v. Pernaselci, 2 Conn. App. 264, 477 A.2d 166 (1984). “Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract. 5 S. Williston, Contracts (Rev. Ed.) § 1479. In order for the plaintiff to recover under the doctrine, it must be shown that the defendants were benefited, that the benefit was unjust in that it was not paid for by the defendants, and that the failure of payment operated to the detriment of the plaintiff. Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 665-66, 368 A.2d 6 (1976); Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 246, 287 A.2d 379 (1971).” A & C Corporation v. Pernaselci, supra, 265. The plaintiffs allegations were sufficient to state a cause of action for unjust enrichment.

The trial court also charged the jury on the theory of quantum meruit. The question is whether her complaint alleges facts sufficient for such recovery. Both unjust enrichment and quantum meruit are doctrines allowing recovery on the theory of restitution, that is, the restoration to a party of something of which he was deprived because of the unjust enrichment of another at his expense. See G. Palmer, 1 Restitution (1978) §1.1. Quantum meruit is the remedy available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered. Rossetti v. New Britain, 163 Conn. 283, 292, 303 A.2d 714 (1972). Such contracts are determined from evidence of the parties’ course of conduct which implies a promise to pay for the services rendered. The pleadings must allege facts to support the theory that the defendant, by knowingly accepting the services of the plaintiff and representing to her that she would be compensated in the future, impliedly promised to pay her for the services she rendered. Derr v. Moody, 5 Conn. Cir. Ct. 718, 721-22, 261 A.2d 290 (1969). If the allegations do support the theory, then the plaintiff was entitled to the charge on quantum meruit for the recovery of the value of the services rendered. Rossetti v. New Britain, supra, 292.

The theory of restitution as a basis for recovery encompasses both unjust enrichment and quantum meruit as the terms have been used in Connecticut cases. Broadly speaking, the availability of restitution is dependent upon unjust enrichment, that is, upon a perceived injustice because one party has benefited at the expense of another. In a narrower sense, unjust enrichment has been the form of action commonly pursued in this jurisdiction when the benefit that the enriched party receives is either money or property. See Monarch Accounting Supplies, Inc. v. Prezioso, supra; Providence Electric Co. v. Sutton Place, Inc., supra; Franks v. Lockwood, 146 Conn. 273, 150 A.2d 215 (1959). “This doctrine is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated. . . . The question is: Did he, [the party liable] to the detriment of someone else, obtain something of value to which he was not entitled?” (Citations omitted.) Franks v. Lockwood, supra, 278. Quantum meruit, by comparison, is the form of action which has been utilized when the benefit received was the work, labor, or services of the party seeking restitution. See Rossetti v. New Britain, supra; Anderson v. Zweigbaum, 150 Conn. 478, 191 A.2d 133 (1963); Rowell v. Ross, 87 Conn. 157, 87 A. 355 (1913); Schempp v. Beardsley, 83 Conn. 34, 75 A. 141 (1910); Clark v. Terry, 25 Conn. 395 (1856).

Unjust enrichment and quantum meruit are forms of the equitable remedy of restitution by which a plaintiff may recover the benefit conferred on a defendant in situations where no express contract has been entered into by the parties. See 5 S. Williston, Contracts (3d Ed. 1970) § 1479; Restatement, Restitution §§ 40, 41,107. The trial court found, and we agree, that the plaintiffs pleadings alleged facts sufficient to support restitution. The court did not err in so charging the jury. The facts which could reasonably have been found by the jury, based upon the evidence, are sufficient to uphold the plaintiffs verdict.

It may once have been true that a plaintiff could not assert two theories of recovery in the same action. Such a situation, however, was due to the distinct common law pleadings of debt and assumpsit, out of which the theory of restitution has sprung. Compare Comes v. Lamson, 16 Conn. 246 (1844), with Clark v. Terry, supra; see G. Palmer, Restitution (1978) § 1.2. That system of pleadings has been abolished in this jurisdiction, which now requires the pleading of facts. Practice Book § 108. The fact-based pleadings now in use can support in a single action previously incompatible theories, and there is no requirement that the plaintiff plead the legal effect of those facts. Practice Book §§ 109,110. Generally, if two theories are alleged in the same pleading, it is for the trier of fact to determine whether the plaintiff has proved both, neither, or but one of them.

The pleadings invoke the equitable principles necessary to support the court’s charge, and render unnecessary our review of the defendant’s claims of error regarding vagueness and the statute of frauds. That review is rendered unnecessary because the verdict can be upheld on quasi-contractual grounds. Even if the defendant were correct in his assumption that the plaintiff used a single count to allege the facts necessary to sustain both contractual and quasi-contractual theories of recovery, such a use is not necessarily improper, as the claims of the plaintiff all arise out of the same transactions. See Practice Book § 133. If the defendant had wished to distinguish more particularly the theories invoked by the pleadings, his recourse was a request to revise the pleadings. Practice Book § 147; see 1 E. Stephenson, Conn. Civ. Proc. § 78 (Covello Sup., 1982). In this case the defendant did utilize the request to revise during the course of the pleadings. The plaintiff responded to that request for a separation of the claims against each defendant. The amended complaint did not, however, allege in separate counts, as to either defendant, any particular legal basis for recovery. If the defendant was not satisfied with the state of the pleadings, he could have filed further requests for revision.

The factual allegations in the pleading support the plaintiffs recovery on a restitutionary theory. “We have uniformly approved the use of a single count to set forth the basis of a plaintiff’s claims for relief where they grow out of a single occurrence or transaction or closely related occurrences or transactions, and it does not matter that the claims for relief do not have the same legal basis. It is only when causes of action, that is, the groups of facts upon which the plaintiff bases his claims for relief, are separate and distinct that separate counts are necessary or indeed ordinarily desirable. Purdy v. Watts, 91 Conn. 214, 216, 99 A. 496 [1916].” Veits v. Hartford, 134 Conn. 428, 438-39, 58 A.2d 389 (1948); Practice Book § 138.

The defendant claims that the allegation that the defendant represented that the plaintiff would be fully compensated at a later date was an allegation of an express contract. The complaint in this case did not allege an express contract. An express contract is one in which the terms of the contract are expressed by the direct words of the parties. Hale v. Fred Benvenuti, Inc., 38 Conn. Sup. 634, 638-39, 458 A.2d 694 (1983). Such is not the case here. We agree with the conclusion of the trial court that neither count one nor count two of the plaintiffs complaint alleged an express contract. The trial court also stated in its memorandum of decision that the defendants were aware throughout the trial that the plaintiff was not relying on an express contract of the parties. The denial of the directed verdict on the ground of unenforceability of contract and the failure to charge on the statute of frauds are of no consequence, because the plaintiff alleged and proved quasi-contractual remedies.

The defendant also claims error as to the denial of his motion to set aside the verdict because the statute of limitations; operate to bar the assertion of an action in contract on the facts of this case. See General Statutes §§ 52-576, 52-596. This claim could not succeed even if the plaintiffs pleadings were solely in express contract. The plaintiffs cause of action did not arise in this case until the defendant breached the agreement by refusing to fully compensate the plaintiff for her services. See Anderson v. Zweigbaum, supra, 481; Schempp v. Beardsley, supra, 37-38. The defendant did so refuse to fully compensate her in September of 1981, and she commenced this action in that same month. The statute of limitations, thus, is no bar to her recovery.

The defendant also claims that the trial court erred in failing to submit his requested interrogatories to the jury. In order to save himself from the general verdict rule, a party may request interrogatories in order to establish the legal basis of the verdict. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 527, 457 A.2d 656 (1983); Goodman v. Metallic Ladder Mfg. Corporation, 181 Conn. 62, 65, 434 A.2d 324 (1980), Practice Book § 312. Such interrogatories are ordinarily submitted at the discretion of the trial court, but the incorporation of two causes of action into a single count confers upon the defendant the right to have properly drawn interrogatories submitted to the jury. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, supra, 527; Hartford v. Anderson Fairoaks, Inc., 7 Conn. App. 591, 594, 510 A.2d 200 (1986). In this case, however, contrary to the assertions of the defendant, two causes of action were not incorporated in one count.

The defendant’s proposed interrogations are all premised on his erroneous belief that the plaintiff’s complaint and theory of recovery are based upon an express contract. We have rejected that interpretation of the complaint. The court did not, therefore, err in declining to submit the interrogatories to the jury.

There is no error.

In this opinion the other judges concurred.

       The named defendant was the sole shareholder in a corporation which operated a tennis club. The other defendant is the corporation. As used in this decision, the word defendant refers to the named defendant.

       The complaint was amended several times, once in response to the defendant’s objection to a previous amendment. That objection asserted that the plaintiff had failed to respond to the defendant’s request to revise to allege in separate counts the specific claims against each defendant. This objection led the plaintiff to separate the first count into two separate counts, one against the individual, and one against the corporate defendant. Both counts contain essentially identical factual allegations. The defendant did not thereafter request any further revision of the complaint.

       The trial court was not required by Practice Book § 322 to file a memorandum of decision explaining its denial of the motion to set aside the verdict, but followed the commendable practice of filing the memorandum to assist this court in reviewing the denial on appeal. See Lancaster v. Bank of New York, 147 Conn. 566, 573, 164 A.2d 392 (1960). Practice Book § 322 states: “When the court grants a motion to set a verdict aside, it shall file a memorandum stating the grounds of its decision.” (Emphasis added.)
      The defendant’s motion to set aside the verdict was made on the grounds that it was contrary to law, against the evidence, excessive, and that the court’s instructions to the jury were erroneous.

       This proscription against the enforceability of contracts which are contrary to public policy is likewise applicable to a remedy which does not require that the agreement of the parties be an enforceable contract. “Courts generally do not grant restitution under agreements that are unenforceable on grounds of public policy.” E. Farnsworth, Contracts (1982) § 5.9, citing Couglar v. Fackler, 510 S.W.2d 16 (Ky. App. 1974); see also 2 Restatement (Second), Contracts § 197.

       A review of the evidence fails to reveal any support for the proposition that the agreement of the parties involved, in any way, meretricious sexual conduct. The trial court’s memorandum, which recognized that the parties were romantically involved, cannot reasonably be read to even imply such a finding. As the trial court stated: “The Jury could reasonably have found that, Bilkoe, a Connecticut Corporation, and Koellmer (sole stockholder) individually benefitted from the labor and services provided to them by the plaintiff who became romantically involved with the defendant Koellmer. . . . There was no specific agreement as to the amount she would receive in the future. It was a promise made by a romantically involved party, in this case Koellmer, to his companion who was working constantly to make one of his businesses successful. When their relationship ended the promises for future payment or an expectation of same also ended. In fact the defendant Koellmer counterclaimed for gifts made to the plaintiff which the jury denied.”

       General Statutes § 52-550 provides in pertinent part: “(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged:... (5) upon any agreement that is not to be performed within one year from the making thereof.”

       The trial court, in upholding the verdict of the jury, stated, with respect to the charge on restitution: “At all times the defendants were aware of the theory relied upon by the plaintiff. The defendants now claim after the verdict that the plaintiff’s complaint was only an express agreement to pay for something in the future. The defendants claim that they relied upon the complaint as one in express agreement. . . . The defendants knew before and during trial that the court was relying upon the theory of unjust enrichment, and implied contract.
      “The defendants did not make any motions to separate the two theories relied upon by the plaintiffs complaint. The language of the complaint included the theory of quantum meruit and implied contract.”
      A review of the trial court’s decision on a motion to set aside a verdict is guided by the rule that “ ‘ “great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.” ’ ” (Citations omitted.) Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 (1954). Further, just as we will not review this case on a theory which it was not tried upon, so we will not, upon review, ignore the clear determination of the trial court as to what theory it was tried upon. See L.F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 35 n.4, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). The defendant has not presented us with any convincing argument that the case was not, in fact, tried by both parties on a theory of restitution, and our review of the record reveals that the trial court did not abuse its discretion in denying the motion to set aside the verdict for that reason. Ardoline v. Keegan, supra, 555.

       Practice Book § 108 provides: “fact pleading. Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved, such statement to be divided into paragraphs numbered consecutively, each containing as nearly as may be a separate allegation. If any such pleading does not fully disclose the ground of claim or defense, the court may order a fuller and more particular statement; and, if in the opinion of the court the pleadings do not sufficiently define the issues in dispute, it may direct the parties to prepare other issues, and such issues shall, if the parties differ, be settled by the court.”

       Practice Book § 109 provides in pertinent part: “pleading legal effect. Acts and contracts may be stated according to their legal effect, but in so doing the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove.”
      Practice Book § 110 provides: “implied duty. It is unnecessary to allege any promise or duty which the law implies from the facts pleaded.”

       Practice Book § 133 provides in pertinent part, as follows: “In any civil action the plaintiff may include in his complaint both legal and equitable rights and causes of action, and demand both legal and equitable remedies

       Practice Book § 147 provides in pertinent part: “Whenever any party desires to obtain (1) a more complete or particular statement of the allegtions of an adverse party’s pleading, or . . . (3) separation of causes of action which may be united in one complaint when they are improperly combined in one count, . . . the party desiring any such amendment in an adverse party’s pleading may file a timely request to revise that pleading.”

       Practice Book § 138 provides: “Where separate and distinct causes of action, as distinguished from separate and distinct claims for relief founded on the same cause of action or transaction, are joined, the statement of the second shall be prefaced by the words Second Count, and so on for the others; and the several paragraphs of each count shall be numbered separately beginning in each count with the number one.”

       Two of the defendant’s seven interrogatories related to a third count of the plaintiffs complaint. There was a defendant’s verdict as to this count, and, therefore, these two interrogatories are not involved in the defendant’s claim of error.


author: Per Curiam.

text:
    State of Connecticut v. Alvin L. Hunt
    (5257)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 2
    decision released June 30, 1987

      William R. Schipul, assistant public defender, with whom, on the brief, was William Holden, public defender, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and JohnSmriga, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The sole issue of this case is whether the trial court erred in failing to instruct the jury that an adverse inference could be drawn from the state’s failure to produce five witnesses. The failure of a party to produce a witness who is available and who would naturally be produced, permits an inference that the evidence which that witness would have given would be unfavorable to that party. State v. Miles, 195 Conn. 552, 556, 489 A.2d 373 (1985); Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960).

Any testimony of the witnesses which the defendant claims the state should have produced would have been cumulative, inferior, or relatively unimportant and the defendant, therefore, was not entitled to such an instruction. State v. Miles, supra. None of the witnesses had peculiar or superior material information. See Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 190, 510 A.2d 972 (1986).

There is no error.


author: Borden, J.

text:
    Anthony J. Rodia et al. v. Tesco Corporation et al.
    (4804)
    Dupont, C. J., Borden and Daly, Js.
    Argued March 6
    decision released June 30, 1987

      Jason M. Dodge, with whom, on the brief, was Michael J. O’Sullivan, for the appellant (C.N. Flagg & Company, Inc.).

      Steven W. Varney, with whom, on the brief, was Ronald T. Scott, for the appellees (plaintiffs).

      Molly S. Le Van, with whom, on the brief, was Paul B. Pollock, for the appellee (named defendant).
   Borden, J.

This case involves a product liability action brought by the named plaintiff and his wife for injuries sustained by the named plaintiff while operating a forklift in the course of his employment. The plaintiffs filed suit against two defendants: Clark Equipment Company (Clark), the manufacturer of the forklift; and Tesco Corporation (Tesco), the lessor of the forklift to the plaintiffs employer, C.N. Flagg & Company, Inc. (Flagg). Flagg moved to intervene as a coplaintiff in the action pursuant to General Statutes § 31-293, in order to recover benefits it had paid to the named plaintiff under the Workers’ Compensation Act. The plaintiffs and the defendants objected to the motion to intervene. The trial court denied Flagg’s motion. The propriety of this ruling is the subject of this appeal. We find no error.

Before addressing the merits of the trial court’s ruling, we must determine whether the denial of Flagg’s motion to intervene is properly before this court as an appealable final judgment. We have stated that “an unsuccessful applicant for intervention in the trial court does not have a final judgment from which to appeal unless he can make a colorable claim to intervention as a matter of right.” Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 291, 497 A.2d 780 (1985). In Ricard v. Stanadyne, Inc., 181 Conn. 321, 322 n.1, 435 A.2d 352 (1980), our Supreme Court recognized that a party makes a colorable claim to intervention as of right when it seeks to intervene in a personal injury action where it has paid workers’ compensation to a plaintiff. As the court noted, this colorable claim arises out of General Statutes § 31-293. See footnote 1, supra. Since Flagg seeks to intervene in the plaintiffs’ product liability suit for the same reason, the trial court’s action is a final judgment for purposes of this appeal.

The plaintiffs and the defendants argue that Flagg is precluded from intervening in this action by the clear language of General Statutes § 52-572r (c). That statute provides in relevant part that “[njeither an employer nor . . . the insurer of such employer, shall have any lien upon any judgment received in any product liability claim, or any right of subrogation if the claim against the third party is a product liability claim.” (Emphasis added.) “ ‘Product liability claim’ includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. ‘Product liability claim’ shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent, misrepresentation or nondisclosure, whether negligent or innocent.” (Emphasis added.) General Statutes § 52-572m (b).

Flagg concedes that if the plaintiffs’ complaint sounds solely in product liability, it would be precluded from intervening since it is an “employer” under General Statutes § 52-572r (c). Flagg claims, however, that the allegations in the third count of the plaintiffs’ complaint, directed at Tesco, the lessor, reveal a claim for negligent repair and maintenance, which is not a product liability claim within the meaning of General Statutes § 52-572m (b). Flagg argues that the enumeration in General Statutes § 52-572m (b) is both exhaustive and exclusive of the types of conduct which will give rise to a product liability claim. Therefore, Flagg argues, because “repair” and “maintenance” are not specifically included within the statutory enumeration, the plaintiffs’ complaint does not solely state a product liability claim, and Flagg is not barred from intervening.

The plaintiffs, in their brief, have limited the scope of count three of the complaint to apply only to the failure to repair or maintain the forklift prior to its delivery to the named plaintiffs employer. We view this statement by the plaintiffs in their brief as analogous to a judicial admission and therefore binding on the plaintiffs. We see no reason not to accept this limitation, self-imposed by the plaintiffs, on the scope of their own complaint. This reading of paragraph eleven of count three; see footnote 3, supra; is consistent with the rest of the complaint, whereas a contrary reading would be inconsistent therewith. Of course, by offering this limitation the plaintiffs preclude themselves from claiming at the trial of this case any reliance on the failure to repair or maintain the forklift after its leasing by Tesco to Flagg.

Consequently, we are faced with the narrow issue of whether predelivery negligent maintenance and repair of a leased product is within the scope of a product liability claim. A lessor is a “product seller” within the meaning of General Statutes § 52-572m (a). We conclude that an allegation that a lessor negligently fails to repair or maintain its product prior to leasing it, states a “product liability claim.” General Statutes § 52-572m (b).

The characterization of the types of conduct or activity enumerated in General Statutes § 52-572m (b) must be broadly construed in light of the purposes of the statute. A principal purpose of the product liability statute is to protect people from harm caused by defective and hazardous products. Ip order to meet this purpose, it is necessary that the statute be read to reach all conduct which affects the safety of a product prior to its entry into the stream of commerce. The terms enumerated in General Statutes § 52-572m (b) are simply generic categories of conduct which must be read broadly and in relationship to one another in order to accomplish the purposes of the statute. Thus, such generic, categorical terms as “preparation . . . installation, [and] testing,” read in light of the principal purpose of the statute which we have identified, are quite broad enough to include the failure to maintain and repair a product prior to placing it in the stream of commerce.

Our conclusion is sensible in light of the clear mandate of the product liability statute to provide the exclusive remedy in this area. Daily v. New Britain Machine Co., 200 Conn. 562, 571-72, 512 A.2d 893 (1986). The legislature could not have intended to preclude from this exclusive remedy a preleasing failure to maintain and repair which affected the safety of a product.

The cases Flagg has cited in support of its argument are inapplicable. They stand for the proposition that a “repairer” cannot be held liable under a product liability claim. Winans v. Rockwell International Corporation, 705 F.2d 1449 (5th Cir. 1983); Swensen Trucking & Excavating, Inc. v. Truckweld, Equipment Co., 604 P.2d 1113 (Alaska 1980). This may be so where the repairer is not the product seller and, therefore, did not put the product into the stream of commerce; General Statutes § 52-572m (a); but merely repaired the product after the fact. In this case, the defendant lessor was a product seller which acted upon the product before leasing it.

Flagg’s reliance upon Regal Steel, Inc. v. Farmington Ready Mix, Inc., 36 Conn. Sup. 137, 414 A.2d 816 (1980), is equally misplaced. First, a decision of the Superior Court is not binding on this court. Second, that case held that a complaint did not state a product liability claim because the plaintiff did not allege that the defendant was a product seller within the statutory meaning of that term; General Statutes § 52-572m (a). In this case all parties concede that Tesco, as a lessor, is a product seller under the statute. Flagg relies on a footnote in Regal Steel, Inc. v. Farmington Ready Mix, Inc., supra, 139 n.2, which states that maintenance of a defect is outside the scope of the product liability statute. Although it is not entirely clear, we read this footnote to apply to maintenance performed on a product after it has been delivered to a person.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 31-293 provides in relevant part: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto . . . such injured employee may proceed at law against such person to recover damages for such injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such other person to recover any amount that he has paid or has become obligated to pay as compensation to such injured employee.”

       In the trial court, the plaintiffs and the defendants moved to strike the intervening complaint, assuming that Flagg’s motion to intervene had already been granted. The trial court could not, however, find any such order in the court file. It therefore treated the plaintiffs’ and the defendants’ pleading as an objection to the motion to intervene, and thereafter ruled in their favor.

       The pertinent allegations of the plaintiffs’ complaint are as follows: “8. At all times mentioned herein and for some time prior to January 19, 1984, the defendant TESCO CORPORATION, was a Connecticut corporation, with its principal office located in Berlin, Connecticut, engaged in leasing forklifts and other related equipment to consumers and businesses.
      “9. At some time prior to January 19,1984, the defendant TESCO CORPORATION leased or rented the aforementioned forklift manufactured by the defendant CLARK EQUIPMENT COMPANY to plaintiffs employer for use at the construction site located at the United Illuminating plant in Bridgeport, Connecticut.
      “10. The aforementioned forklift was used by the plaintiff and other employees of his employer in the manner intended by the defendant TESCO CORPORATION when said vehicle was leased.
      “11. The aforementioned incident was caused by the negligence and carelessness of the defendant TESCO CORPORATION acting through its employees, servants and agents in one or more of the following ways: “a. In that the agents, servants and employees of the defendant TESCO CORPORATION failed to properly maintain and repair said forklift.

      “b. In that the agents, servants and employees of the defendant TESCO CORPORATION failed to properly inspect said forklift and fork chain for defects and take necessary actions to correct said defects prior to leasing said vehicle for use.
      “c. In that said agents, servants and employees failed to warn users of said forklift and the plaintiff of the defective and dangerous condition of said forklift and lift chain, although they knew or should have known of the defective condition of said forklift and lift chain.
      “d. In that said agents, servants and employees failed to properly report damage done previously to said forklift and to take necessary precautions to inspect and repair said forklift and lift chain.” (Emphasis added.)