author: PETERS, J.

text:
    CITIBANK (SOUTH DAKOTA), N.A. v. MARK GIFESMAN
    (AC 20556)
    Spear, Dranginis and Peters, Js.

      Argued February 27
    officially released May 1, 2001

      Jonathan J. Klein, for the appellant (defendant).

      Robert J. O’Hara, with whom, on the brief, were Steven M. Greenspan and Mario R. Borelli, for the appellee (plaintiff).
   Opinion

PETERS, J.

In this commercial appeal, a bank issued a secondary credit card at the request of its customer, the holder of a primary credit card. The applicable credit card agreement imposed liability on the primary cardholder for sums charged against the secondary credit card. The principal issue before us is whether § 1643 of the federal Truth in Lending Act, 15 U.S.C. § 1601 et seq., overrides the credit card agreement so as to excuse the defendant, in whole or in part, from making the payments requested by the issuer. This is an issue of first impression in this state. The trial court held the primary credit card holder fully hable. We agree.

The plaintiff, Citibank (South Dakota), N.A., brought an action to collect $48,825.37 from the defendant, Mark Gifesman, for charges on two credit card bills that arose from the use of an authorized secondary credit card in the name of Alexei Popov, then a resident of Russia. The defendant denied his liability and filed a counterclaim in three counts. He charged the plaintiff with breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

The court ruled in favor of the plaintiff both on its own claim and on the counterclaim filed by the defendant. The defendant has appealed from both parts of the judgment against him.

LIABILITY OF THE DEFENDANT TO THE PLAINTIFF

Throughout this case, the defendant has relied on 15 U.S.C. § 1643 as the source of his defense against liability to the plaintiff. He has not challenged the validity or applicability of the terms of the credit card agreement that impose such liability on him. Under federal law, the defendant’s liability may not exceed $50 if the plaintiff fails to prove that disputed credit card charges were made by a person with “actual, implied, or apparent authority for such use and from which the cardholder receives no benefit.” (Emphasis added.) 15 U.S.C. § 1602 (o). The court found that the plaintiff had established the defendant’s ineligibility for such relief.

This court’s review of the trial court’s factual findings is limited. Unless a finding of fact is clearly erroneous, it must be sustained on appeal. Practice Book § 60-5; see Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980), and its progeny. It does not matter whether the findings are supported by indirect or direct evidence. See, e.g., State v. Figueroa, 235 Conn. 145, 163-64, 665 A.2d 63 (1995); State v. Boucino, 199 Conn. 207, 228, 506 A.2d 125 (1986); State v. Mazzetta, 21 Conn. App. 431, 433-35, 574 A.2d 806, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990). We are not persuaded that the findings in this case were clearly erroneous.

The defendant focuses much of his argument on his claim that the court improperly found that unidentified users of a secondary credit card had apparent authority to use the card and that such use on their part subjected the defendant to liability. The undisputed facts show that, in April, 1995, the defendant requested from the plaintiff a secondary card in the name of Popov, a person unknown both to the plaintiff and to the defendant. The defendant’s request was made at the behest of Vladislav Kharkover, a Russian acquaintance. Khar-kover agreed to pay for charges arising out of the use of the Popov card and to pay the defendant a $25 monthly fee. To facilitate use of the Popov card abroad, the defendant sent Kharkover supporting documentation, including a copy of his own social security card. The Popov card was used extensively in Germany between July 18 and July 28, 1995, resulting in charges totaling $36,076.66.

On July 20, 1995, the plaintiff notified the defendant of the attempted use of the Popov card for cash advances, the only activity associated with the Popov card of which the plaintiff was then aware. The following day, the plaintiff again contacted the defendant to ascertain, once more, whether the defendant wanted to block further use of the Popov card. On both occasions, the defendant asked the plaintiff not to cancel or block the card. On July 22,1995, the plaintiff recorded the Popov card as possibly lost or stolen. The defendant never requested cancellation of the Popov card, and the plaintiff did not do so sua sponte.

On the basis of this record, the court found that the defendant had conferred apparent authority on Popov to use the credit card. The defendant disputes the relevance of that finding in light of the plaintiffs acknowledged inability definitively to establish the identity of the users of the card. In the defendant’s view, without such proof of identity, the defendant is shielded from liability. The defendant has not indicated how such a burden could be met when the issuer has no way of obtaining information about the ultimate users of a secondary card. As the court noted, if anyone had the better opportunity to obtain such information, it would have been the defendant, not the plaintiff.

The court found that, more likely than not, the user who obtained the cash advance was Popov. It found that a third person reasonably could believe that the user in question had the power to act on the authority of the defendant. Numerous cases cited by the plaintiff support the court’s holding. See Towers World Airways, Inc. v. PHH Aviation Systems, Inc., 933 F.2d 174 (2d Cir. 1991); Draiman v. American Express Travel Related Services Co., 892 F. Sup. 1096 (N.D. Ill. 1995); Walker Bank & Trust Co. v. Jones, 672 P.2d 73 (Utah 1983), cert. denied sub nom. Harlan v. Interstate Bank of Utah Co., 466 U.S. 937, 104 S. Ct. 1911, 80 L. Ed. 2d 460 (1984).

In our review of this finding, we are struck by how little has been disclosed about the transactions underlying this litigation. The record reveals nothing about the nature of the relationship between the defendant, Popov and Kharkover or of the intended use of the Popov card. We do not know whether the defendant has attempted to recover the amounts at issue from Kharkover in his role as guarantor. For that matter, no documentation attests to that role. We know nothing about how the card came to be used in Germany rather than in Russia. In short, the record raises more questions than it answers.

We conclude, therefore, that judicial prudence warrants our waiting for another case to decide the novel issue of the scope of authorized use of a secondary credit card. This course is open to us in light of the court’s finding, in addition to its finding on authorization, that the defendant was not entitled to protection under the federal Truth in Lending Act because he had received a benefit for his role in the procurement of the Popov card.

The defendant does not dispute that he received a monthly stipend of $25 from Kharkover. He does not claim that the stipend arose from some other unrelated transaction. Similarly, he does not claim that only payments by Popov himself would qualify as a “benefit.” He does not argue that the amount of the benefit was too insubstantial to qualify as a “benefit” as that term is used in the federal statute’s definitional section, 15 U.S.C. § 1602 (o). Indeed, he has not revealed whether that stipend continues to be paid or when it was terminated.

The defendant argues instead that, pursuant to 15 U.S.C. § 1643 (a), unauthorized uses may not be charged against a credit card holder. He apparently fails to recognize the significance of the definition of “unauthorized” use in 15 U.S.C. § 1602 (o), which excludes from that category any transaction in which the cardholder receives any “benefit.” See footnote 9. Under that definition, the Kharkover stipend, without more, made use of the Popov card an authorized use thereof.

The parties agree that the object of the federal Truth in Lending Act was to provide protection only for consumer credit card holders. For the purposes of determining authority for the use of a secondary credit card, Congress chose to define the dividing line between consumer and commercial transactions by reference to whether the cardholder had received any “benefit” from the issuance of such a credit card. Contrary to the view of the defendant, on the issue of authorized credit card use, the act did not incorporate the possibly broader definition of “consumer” contained in 15 U.S.C. § 1602 (h). To the extent that these definitional sections are in conflict, the specifically applicable section, 15 U.S.C. § 1602 (o), takes precedence over the more general one. State v. State Employees’ Review Board, 239 Conn. 638, 653, 687 A.2d 134 (1997).

In light of the specific provisions of the Truth in Lending Act, the defendant is mistaken in his assertion that payment of the stipend “for accommodating his friend’s business” had “no bearing” on whether the Popov card had been put to unauthorized use. By its own unambiguous terms, the Truth in Lending Act provides the necessary bearing.

We conclude, therefore, that the plaintiff met its burden of proof that enforcement of the terms of the credit card agreement against the defendant does not violate the federal Truth in Lending Act. Because the defendant received a monetary benefit from the issuance of the secondary credit card to Popov, the subsequent use of that card was authorized as a matter of both federal and state law.

THE DEFENDANT’S COUNTERCLAIM

The defendant’s counterclaim contained three counts. The defendant claimed that the plaintiff had failed to honor obligations arising out of (1) its fiduciary duty to the defendant, (2) an implied covenant of good faith and fair dealing, and (3) the provisions of CUTPA. The court found that the defendant had not proven any of these claims. We agree.

The defendant challenges the validity of each of the court’s rulings on its counterclaim. As noted in our discussion of the findings with respect to the plaintiffs complaint, the court’s judgment is reversible only if we conclude that the findings were clearly erroneous.

With respect to the claim of breach of fiduciary duty, the defendant’s argument focuses on the plaintiffs alleged misconduct with regard to the credit card transaction herein at issue. Missing from this argument is a factual showing of any basis for imposing a fiduciary duty on the plaintiff. The credit card agreement did not so provide. The parties were not in the kind of relationship in which a fiduciary duty is automatic, such as a partnership or trusteeship. See Oakhill Associates v. D'Amato, 228 Conn. 723, 727, 638 A.2d 31 (1994). The defendant does not claim that the credit card relationship automatically made the plaintiff a fiduciary. In the absence of a persuasive showing of a fiduciary relationship, it would be pointless to discuss this claim any further.

With respect to the claim of breach of the implied covenant of good faith and fair dealing, the defendant contends that the plaintiff had a duty to safeguard him from the unauthorized use of the Popov card. The credit card agreement makes a person who requests and receives a secondary credit card unconditionally responsible to reimburse the plaintiff for claims arising out of authorized uses of the secondary card. See footnote 1. The difficulty in interpolating an implied covenant into this contractual provision is that our Supreme Court has ruled that such an interpolation is unwarranted. The implied covenant “cannot be applied to achieve a result contrary to the clearly expressed terms of a contract, unless, possibly, those terms are contrary to public policy.” (Internal quotation marks omitted.) Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 190, 540 A.2d 693 (1988), quoting Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 567, 479 A.2d 781 (1984). In Verrastro, as in this case, the court noted the relevance of the claimant’s own conduct to the determination of the applicability of an implied covenant. Verrastro v. Middlesex Ins. Co., supra, 190. In this case, the defendant has made no effort to distinguish Verrastro.

With respect to the claim of CUTPA violations, the defendant argues that the plaintiffs actions in conducting its credit card business were so egregious as to fall within the proscriptions of that act. Although he adverts to the possibility that the plaintiffs conduct might be considered unlawful per se, he recognizes that no court has yet so held. We are not persuaded that we should come to a contrary conclusion. The defendant’s central claim focuses instead on the proposition that, by failing to explain the risks inherent in the issuance of a secondary credit card, the plaintiff caused him to suffer substantial injury. See Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 736 A.2d 824 (1999). In Hartford Electric Supply Co., our Supreme Court stated, however, that proof of substantial injury requires, inter alia, a showing that the injury is one that could not reasonably have been avoided by the claimant. Id., 367-68. The defendant’s conduct of procuring a secondary card for a stranger and failing himself to monitor its uses indicates that he cannot meet this burden of proof. We note again that, except for its reference to Kharkover, the record contains no evidence to illuminate how the defendant became engaged in this transaction.

On all of the counts of the counterclaim, we are persuaded that the court made findings of fact that were not clearly erroneous. In light of these findings, we conclude that the defendant is not entitled to recover on his counterclaim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The Citibank Classic Card Agreement includes the following: “Additional Cards: You may request additional cards on your account for yourself or others by contacting Citibank Customer Service. You are responsible for the use of each card according to the terms of this Agreement.”
      The defendant claims that the card agreement relieved him from liability for charges in an amount greater than that stated as his personal credit limit. Although the agreement contained such a credit limit for use of the card, the agreement also allowed the defendant to increase his credit limit or use the card beyond the credit limit upon payment of a small penalty. In light of the defendant’s contract right to exceed his credit limit, the plaintiffs claim for reimbursement is consistent with the terms of the agreement.

       Title 15 of the United States Code, § 1643 (b), sets forth the burden of proof as follows: “In any action by a card issuer to enforce liability for the use of a credit card, the burden of proof is upon the card issuer to show that the use was authorized or, if the use was unauthorized, then the burden of proof is upon the card issuer to show that the conditions of liability for the unauthorized use of a credit card, as set forth in subsection (a) of this section, have been met.”

       The scope of apparent authority is discussed in the 2 Restatement (Second), Agency § 8, pp. 30-36 (1958). Although federal statutes are generally interpreted and applied in accordance with federal principles of law, the United States Supreme Court repeatedly has held that general statutory references to agency should be addressed by common-law authorities on that subject, including the Restatement (Second) of Agency. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 755, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 72, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986).

       The record does not disclose the total amount that Kharkover paid to the defendant.

       This amount is far greater than the defendant’s credit limit, although none of the purchases exceeded the credit limit individually. The Citibank Classic Card Agreement provides: “Exceeding Your Credit Line: We will charge your account an over the credit line fee of $10 for each billing period in which your New Balance exceeds your credit line. This fee will be added to your purchase balance.”

       Notably, on July 18, 1995, one of the cash advance requests was made using the Popov card, and a passport was presented for identification. That request was honored.

       Under the ground rules established by Visa International, to which the plaintiff subscribed, the plaintiff had no opportunity to acquire immediate knowledge of cardholder purchases below a designated floor limit The defendant argues that these rules should have been disclosed to him. The credit card agreement does not so provide.

       The defendant claims that his decision not to cancel the Popov card might have been different if he had been informed about the manner in which credit card use is managed and monitored. Specifically, the defendant did not know that floor limits allowed purchases to be charged, as long as they fall below such limits, without advance bank authorization. The defendant does not claim that the credit card agreement requires such disclosure. The defendant has not identified any other specific basis for such a requirement.

       Title 15 of the United States Code, § 1602 (o), provides: “The term ‘unauthorized use,’ as used in section 1643 of this title, means a use of a credit card by a person other than the cardholder who does not have actual, implied, or apparent authority for such use and from which the cardholder receives no benefit.”

       Title 15 of the United States Code, § 1643 (a), provides: “Limits on Liability. (1) A cardholder shall be liable for the unauthorized use of a credit card only if—
      “(A) the card is an accepted credit card;
      “(B) the liability is not in excess of $50;
      “(C) the card issuer gives adequate notice to the cardholder of the potential liability;
      “(D) the card issuer has provided the cardholder with a description of a means by which the card issuer may be notified of loss or theft of the card, which description may be provided on the face or reverse side of the statement required by section 1637 (b) of this title or on a separate notice accompanying such statement;
      “(E) the unauthorized use occurs before the card issuer has been notified that an unauthorized use of the credit card has occurred or may occur as the result of loss, theft, or otherwise; and;
      “(F) the card issuer has provided a method whereby the user of such card can be identified as the person authorized to use it.”

       Title 15 of the United States Code, § 1602 (h), provides: “The adjective ‘consumer’, used with reference to a credit transaction, characterizes the transaction as one in which the party to whom credit is offered or extended is a natural person, and the money, property, or services which are subject of the transaction are primarily for personal, family, or household purposes.” The defendant notes that he was a student when he requested issuance of a credit card to Popov. It is not uncommon for students to engage in commercial transactions.

       We disagree with the defendant’s assertion that the court improperly relied on a finding of negligence on his part as a basis for its decision rejecting the counterclaim. The court’s findings on the issues raised in the counterclaim focused on the lack of evidentiary support for these claims, on which the defendant bore the burden of proof. The defendant’s own conduct was particularly relevant to his claimed right to recover under an implied covenant oí good faith and fair dealing.

       The defendant cites Konover Development Corp. v. Zeller, 228 Conn. 206, 635 A.2d 798 (1994), in support of his claim that there was a fiduciary relationship in this case. The defendant misreads Konover Development Corp. The language quoted in the defendant’s brief describes the burden of proof that applies once a fiduciary relationship has been shown to exist. Id., 229-30. We can discern no basis for using that burden of proof to determine whether there was a fiduciary relationship in the first place.


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    JOSEPHINE HAREWOOD v. ANGIE CARTER
    (AC 20202)
    Foti, Flynn and Dupont, Js.
    Argued February 15
    officially released May 1, 2001

      Duane Lueders, for the appellant (plaintiff).

      Peter Barrett, with whom, on the brief, was Douglas A. Casale, for the appellee (defendant).
   Opinion

DUPONT, J.

The first issue to be decided in this case, which arises out of a motor vehicle accident, is whether the trial court improperly granted the defendant’s motion for a directed verdict on count two of the plaintiffs complaint, which alleged a violation of General Statutes §§ 14-227a and 14-218a and made a concomitant claim for double or treble damages pursuant to General Statutes § 14-295. Because we conclude that the court should not have granted the motion and that a new trial is necessary, we reach the second issue, that is, whether the parties must relitigate issues raised in count one, which alleged simple negligence. We conclude that the new trial should be limited to the issues raised in count two.

The court granted the defendant’s motion for a directed verdict on count two of the plaintiffs complaint due to insufficient evidence. The jury returned a verdict for the plaintiff on her negligence count, count one, and awarded $4136.77 in economic damages and $10,000 in noneconomic damages. Neither the defendant nor the plaintiff has appealed from the judgment for the plaintiff on count one. Moreover, neither party claims any impropriety as to liability or compensatory damages concerning that count.

The plaintiff filed a motion to set aside the directed verdict on count two and for a new trial as to count two only, which the court denied. The plaintiff has appealed from the judgment for the defendant on count two only.

The plaintiff claims that she provided sufficient evidence for the jury to conclude by a fair preponderance of the evidence that the defendant violated § 14-227a when she rear-ended the plaintiffs vehicle. She also claims, as alleged in count two of her complaint, that if the evidence was sufficient, § 14-295 would entitle her to double or treble damages if the violation was found to be a substantial factor in causing her injuries.

Our standard of review of a directed verdict is well settled. A trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, a jury could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail. Gagne v. Vaccaro, 255 Conn. 390, 400, 766 A.2d 416 (2001); Zanoni v. Hudon, 48 Conn. App. 32, 36, 708 A.2d 222, cert. denied, 244 Conn. 928, 711 A.2d 730 (1998). In assessing the evidence, the court should weigh both direct and circumstantial evidence, including all reasonable inferences to be drawn therefrom. See McNeff v. Vinco, Inc., 59 Conn. App. 698, 702, 757 A.2d 685 (2000).

The jury reasonably and logically could have found that the defendant operated a motor vehicle while impaired by intoxicating liquor in violation of § 14-227a (b) or that she operated a motor vehicle while traveling unreasonably fast in violation of § 14-218a. The underlying facts for that conclusion follow. The plaintiff was traveling at approximately twenty-five miles per hour in a thirty mile per hour zone on Woodland Street in Hartford when the defendant rear-ended her vehicle, pushing it two car lengths forward into the car in front of hers. The defendant did not get out of her car at the scene, although a passenger in the defendant’s car surveyed the damage after exiting the defendant’s car. The defendant then drove her car to her home a short distance away. No more than thirty minutes later, an investigating officer interviewed the defendant at her home and obseived that she was acting in a disoriented manner, slurring her speech and stumbling while walking across her living room floor, although there was no impediment on the floor. The defendant told the officer that she had no recollection of an accident and denied being involved in or witnessing an accident. The defendant refused to answer any questions posed by the officer regarding the consumption of alcohol prior to any accident.

On the basis of those facts and the reasonable inferences drawn from them, we conclude that the court should not have directed a verdict for the defendant on count two of the plaintiff’s complaint. A retrial is, therefore, necessary. The question now becomes whether we should limit the retrial to count two or whether the trial should embrace count one as well. We turn to case law and General Statutes § 52-266 to answer that question.

The defendant argues that a new trial, if we conclude that one is necessary, should involve all of the issues raised in the plaintiffs complaint, namely, those raised in counts one and two. The plaintiff argues that the parties need not relitigate the issues relating to count one, namely, negligence and compensatory damages. Both parties primarily base their positions on the leading case of Murray v. Krenz, 94 Conn. 503, 109 A. 859 (1920). Neither we nor the parties are aware of any appellate decision that is determinative of whether, when a new trial is necessary because a court should not have directed a verdict on a statutory cause of action for punitive damages, only the statutory cause of action should be tried or if the retrial should also include the cause of action for negligence that previously had been determined by the jury. Although our Supreme Court has considered the question of the severability of liability and damages when a new trial is warranted where there are multiple separate causes of action stated in multiple separate counts and verdicts; see DeLaurentis v. New Haven, 220 Conn. 225, 268-69, 597 A.2d 807 (1991); we know of no Connecticut appellate decision that has decided the question where a jury has returned a verdict on only one of the counts.

Murray and many of the cases decided thereafter concern one cause of action where the issue is whether the liability and damages issues are inextricably woven together so as to require a trial de novo of both issues and do not involve, as the present case does, two separate causes of action arising out of the same incident. See, e.g., George v. Ericson, 250 Conn. 312, 332-33, 736 A.2d 889 (1999) (single negligence cause of action); Fazio v. Brown, 209 Conn. 450, 457, 551 A.2d 1227 (1988) (same); Malmberg v. Lopez, 208 Conn. 675, 683, 546 A.2d 264 (1988) (single wrongful death cause of action); Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 796-97,462 A.2d 1043 (1983) (single negligence cause of action); Sparico v. Munzenmaier, 134 Conn. 194, 197, 56 A.2d 165 (1947) (same); Niles v. Evitts, 16 Conn. App. 696, 699-700, 548 A.2d 1352 (1988) (same).

In Murray, the plaintiff filed a motion to set aside the verdict and for a new trial only as to the issue of damages, but sought to enforce the verdict as to the jury’s determination of the defendant’s liability. The trial court denied the motion, concluding that a new trial on the question of damages alone would do injustice to the defendant. Murray v. Krenz, supra, 94 Conn. 504-505. Our Supreme Court concluded that the trial court was correct and outlined the general principles involved, which subsequent cases have followed. “If the error committed by the trial court be confined to a single issue, it limits the retrial to that single issue, when this can be done without prejudice to individual rights or judicial procedure. . . . Where the error as to one issue or issues is separable from the general issues, the new trial may be limited to the error found, provided that such qualification or limitation does not work injustice to the other issues or the case as a whole.” (Citations omitted.) Id., 507. The inadequacy of damages usually is so interwoven with liability that justice cannot be done without a new trial on the whole case.

When there is an inherent ambiguity in a verdict so that it is impossible to understand what the jury found on the issue of liability, a new trial must be had on the issues of both liability and damages. See Malmberg v. Lopez, supra, 208 Conn. 683. Whenever the issues of damages and liability are closely interwoven, fairness dictates that a new trial must include both the issue of damages and liability. Fazio v. Brown, supra, 209 Conn. 456-57.

The foregoing cases are consistent with § 52-266, which empowers a court to order a retrial restricted in scope to a unique issue or issues. Following the established principles propounded in the progeny of Murray, we must decide if count two can be separated from count one without prejudicing the rights of either the plaintiff or the defendant. In deciding that question, we must, therefore, also consider the language of § 52-266. See Wendland v. Ridgefield Construction Services, Inc., supra, 190 Conn. 796.

The jury found that the defendant was negligent and responsible for the plaintiffs personal injuries in the amount of $4136.77 in economic damages and $10,000 in noneconomic damages. Neither party claims, and no reason exists for us to conclude, that the jury was misled or confused about liability or the compensatory damages as to count one. Count two relates to whether the trier should award double or treble damages, not to whether the amount of damages awarded in another count was appropriate. The claims in each count rest on different theories of liability. The liability issues of count two are unrelated to the liability issues of count one. Whether to award punitive damages is a different question than what compensatory damages ought to be. The findings of fact on which a jury might decide to award increased damages are different from those necessary for compensatory damages. See Bishop v. Kelly, 206 Conn. 608, 620, 539 A.2d 108 (1988).

Although retrial usually requires a trial de novo, there are exceptions that make a trial de novo unnecessary. See DeLaurentis v. New Haven, supra, 220 Conn. 269-70; Nash v. Hunt, 166 Conn. 418, 431, 352 A.2d 773 (1974); Bradford v. Herzig, 33 Conn. App. 714, 725-26, 638 A.2d 608, cert. denied, 229 Conn. 920, 642 A.2d 1212 (1994). Liability on the basis of negligence is not so intertwined with the statutory liability of § 14-295 as to require the relitigation of a negligence cause of action. See Bradford v. Herzig, supra, 725-26. The plaintiffs claim of entitlement to an award based on § 14-295 can be remedied without setting aside the verdict as to count one. The jury already found the proper amount to award the plaintiff for her injuries. It remains for a jury to decide only whether there was a statutory violation and, if so, whether it should double or treble the award because of that statutory violation. We, therefore, affirm the judgment as to count one and remand the case for a trial as to count two.

The judgment as to count one is affirmed. The judgment as to count two is reversed and the case is remanded for a trial only as to count two.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 14-227a provides in relevant part: “(a) Operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105 ... or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a ... (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.
      “(b) Operation while impaired. No person shall operate a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105 ... or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a . . . while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor. Aperson shall be deemed impaired when at the time of the alleged offense the ratio of alcohol in the blood of such person was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight. ...”

       General Statutes § 14-218a (a) provides in relevant part: “No person shall operate a motor vehicle upon any public highway of the state, or road of any specially chartered municipal association . . . at arate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road . . . the intersection of streets and weather conditions. . .

       General Statutes § 14-295 provides in relevant part,: “In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a . . . [or] 14-227a . . . and that such violation was a substantial factor in causing such injury, death or damage to property.”

       In granting the motion for a directed verdict, the court stated: “Having heard the arguments on the motion for directed verdict, I find that a directed verdict is proper and so I grant the motion. I find that based on the evidence the jury could not reasonably and legally reach any other conclusion than embodied in the verdict as directed. The evidence to support the recklessness [conduct] claim, which includes allegations of speed and allegations of driving while intoxicated, is so weak that it would be proper for this court to set aside a verdict rendered for the plaintiff on that claim for the jury to render one.
      “The court has viewed the evidence in the light most favorable to the plaintiff and finds that the evidence viewed in this way suggests that the defendant did have slurred speech at her home after the accident, that she did appear disoriented after the accident at her home [and] that she did stumble across the living room. All of these were observations of a police officer. However, the police officer never related that behavior to intoxication and, in fact, testified that he did not smell alcohol on the defendant’s breath, nor did he see her consume alcohol.
      “Therefore, there was no evidence to support a conclusion that she was driving while impaired by the consumption of intoxicating liquor as was claimed by the plaintiff. There was no evidence as to the manner in which she operated the motor vehicle. And there was no evidence as to the speed at which she was traveling.
      “In sum, there was no evidence of recklessness or reckless conduct. The

        [allegation is one of] operating her motor vehicle under the influence of intoxicating beverage at the scene of the accident, and I must bear in mind that the burden is on the plaintiff to provide this proof of deliberate or reckless operation.
      “Therefore, finding that the plaintiff has not met that burden of presenting sufficient evidence to present the claim to the jury, I grant the motion for directed verdict.”

       General Statutes § 52-266 provides: “If several issues are presented by the pleadings and, on the trial of one or more of such issues, an error or ground for a new trial intervenes which does not affect the legality of the trial or disposition of the other issue or issues, judgment shall not be arrested or reversed, nor a new trial granted, except so far as relates to the particular issue or issues in the trial of which such error or ground for a new trial intervened.”

       In DeLaurentis, the plaintiff could not recover greater damages regardless of whether liability was founded on both counts or only one of the counts in the plaintiffs complaint. The court severed the damages from liability and ordered a new trial as to damages only on one of the counts, and reversed the judgment based on the verdict for the plaintiff as to the other count. DeLaurentis v. New Haven, supra, 220 Conn. 268-70.


text:
    ANIMAL RIGHTS FRONT v. ARTHUR J. ROCQUE, JR., COMMISSIONER OF ENVIRONMENTAL PROTECTION
    (AC 20924)
    Schaller, Spear and Peters, Js.

      Argued March 1
    officially released May 1, 2001

      Derek V. Oatis, for the appellant (plaintiff).

      Eliot D. Prescott, assistant attorney general, with whom were Patricia A. Horgan, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Kimberly P. Massicotte, assistant attorney general, for the appellee (defendant).
   Opinion

PETERS, J. This case concerns a controlled deer hunt at the Bluff Point Coastal Reserve in Groton. The hunt was authorized by the department of environmental protection (department). The dispositive issue is whether to define the term “fawn deer,” as used in General Statutes § 26-86f, as a deer with a spotted coat or as a deer that is less than one year old. The trial court accepted the former definition to enable the statute to comply with constitutional norms of due process and notice. The plaintiff, Animal Rights Front, urges the adoption of the latter definition in the interest of protecting animal rights. We agree with the court.

The plaintiff brought an action for declaratory and injunctive relief against the defendant, Arthur J. Rocque, Jr., commissioner of environmental protection, to obtain the proper interpretation of fawn deer under § 26-86f. Invoking the Connecticut Environmental Protection Act (CEPA), General Statutes § 22a-14 et seq., the plaintiff asked the court to enjoin the defendant from permitting or conducting a controlled hunt involving deer, spotted or not, that are less than one year old. In response to cross motions for summary judgment, the court defined the term “fawn deer” as a deer with a spotted coat and rendered judgment in favor of the defendant.

Summary judgment was the appropriate procedural mechanism for resolving the dispute between the parties because they stipulated to all the relevant facts. In January, 1996, the department implemented a controlled hunt to reduce the deer population at Bluff Point. There were 233 deer removed from Bluff Point, of which fifty-four were classified as fawn deer.

Section 26-86f prohibits the killing or removal from the wild of fawn deer. See footnote 1. The department’s biological data refer to a “fawn deer” as a deer that is less than one year old. For at least thirty years, however, the department has distinguished a fawn deer from an adult deer on the basis of the fawn’s having a spotted coat. In an affidavit accompanying the defendant’s motion for summary judgment, the department’s deer biologist opined that the term fawn deer as used in § 26-86f refers to a young deer with a spotted coat because the average hunter will find it difficult or impossible to ascertain, in any other fashion, the age of fawns in the wild. In its memorandum of decision, the court stated: “Most fawns are bom between May 15 and June 30, and they lose their spots in late August or early September.” Thereafter, the distinction between fawn deer and yearlings can be ascertained only by examining the deer’s teeth. The plaintiff does not take issue with the department’s description of fawn deer.

In rendering summary judgment in favor of the defendant, the court decided that, as a matter of law, the department’s constmction of § 26-86f was proper. The court reasoned that if it “were to find that § 26-86f applied to all deer less than one year of age, regardless of whether the deer had spots, people taking deer without spots would have no reliable way to know if they were complying with the statute [which is penal in nature,] prior to taking the deer. . . . Thus, construing fawn deer under § 26-86f to mean a deer less than one year of age would not comport with the requirements of due process of law.”

On appeal, the plaintiff argues that the legislative history of § 26-86f demonstrates that the court should have construed the term “fawn deer” to mean a deer that is less than one year old. We disagree.

Our discussion of § 26-86f is guided by familiar principles. “Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment . . . .” (Citations omitted; internal quotation marks omitted.) State v. King, 249 Conn. 645, 681, 735 A.2d 267 (1999). Furthermore, when “construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) Ciarelli v. Commercial Union Ins. Cos., 234 Conn. 807, 812, 663 A.2d 377 (1995).

In the absence of a legislative definition of the term “fawn deer” in § 26-86f, the plaintiff maintains that we are bound by the legislative history of the statute. It contends that this history demonstrated that the term “fawn deer” must be defined as a deer that is less than one year old.

The only language evidencing the legislative intent is the following: “Presently there are no restrictions to killing fawn deer and I know a few instances where they say they are very tender and it seems a shame to kill a fawn deer. The average reproduction . . . rate of deer is about one and a half deer per doe and, these animals should be allowed to grow, particularly the females, to maturity so they can perpetuate the deer herd.” (Emphasis added.) Conn. Joint Standing Committee Hearings, Fish and Game, 1963 Sess., p. 37, remarks of Representative Guido LaGrotta. The plaintiff maintains that this statutory expression of policy reflects the legislature’s understanding that a deer does not reach its sexual maturity until seven or eight months of age, a time that is three or four months subsequent to the deer’s shedding of its spotted coat. As previously noted, however, the plaintiff accepts the department’s assertion that only examination of a young deer’s teeth will enable a hunter to ascertain whether a deer is a yearling. Nonetheless, the plaintiff argues that the emphasized sentence makes it clear that the intent of the legislature was to define the term “fawn deer” as a deer that is not yet one year old, not as a deer with a spotted coat. We are not persuaded.

Both parties agree that § 26-86f is a penal statute with penal consequences. Penal “statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant.” State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986). “A penal statute must be construed strictly against the state and liberally in favor of the accused.” State v. Torres, 206 Conn. 346, 355, 538 A.2d 185 (1988). Furthermore, “a penal statute must be sufficiently definite to enable a person to know what conduct he must avoid.” State v. Pickering, 180 Conn. 54, 59-60, 428 A.2d 322 (1980). “Due process requires that a statute afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.” (Internal quotation marks omitted.) Keogh v. Bridgeport, 187 Conn. 53, 60, 444 A.2d 225 (1982).

As did the trial court, we eschew any construction of a statute that would place it in constitutional jeopardy. State v. Metz, 230 Conn. 400, 422-23, 645 A.2d 965 (1994); Sassone v. Lepore, 226 Conn. 773, 785, 629 A.2d 357 (1993); see Kron v. Thelen, 178 Conn. 189, 197, 423 A.2d 857 (1979). Under the plaintiffs definition of the term “fawn deer,” no reasonably intelligent person would be able to ascertain what conduct the statute permits and what conduct it subjects to penal sanction. Principles of due process and fair notice do not permit such a construction of the statute. If a literal reading of a statute would place it in constitutional jeopardy, “this court will go beyond the face of the statute to determine whether it may be construed so as to achieve its purpose in a manner which is both effective and constitutional.” (Internal quotation marks omitted.) Castagno v. Wholean, 239 Conn. 336, 340, 684 A.2d 1181 (1996).

The plaintiff responds to this constitutional argument in two ways. First, the plaintiff claims that the defendant could have adopted regulations modifying the hunt or the hunting season. This response is unpersuasive because the plaintiff has provided no authority for the proposition that the defendant may or must promulgate such regulations. Second, the plaintiff maintains that the defendant could have conducted a regulated hunt that limited participation only to trained professionals. This response also cannot be sustained in light of the court’s findings that it is impossible for anyone to distinguish between a ten month old and a thirteen month old deer without an examination of the teeth of the deer.

It is familiar learning that the interpretation of a statute not only must pass constitutional muster, but also must be consistent with clear legislative intent. Kulig v. Crown Supermarket, 250 Conn. 603, 607-608, 738 A.2d 613 (1999). In light of all of the relevant interpretative factors, we conclude that the intent of the legislature is not thwarted by defining the term “fawn deer” in § 26-86f in the manner proposed by the defendant. A reasonable, as well as constitutional, interpretation of the legislative intent is that the General Assembly intended to allow a deer to grow to an age at which it could fend for itself, no longer being dependent on its mother in the wild, to give it the opportunity to grow to an age at which it may breed and, thus, to perpetuate the herd. This legislative intent is not inconsistent with limiting the statute’s penal provision to conduct that is ascertainably forbidden.

For the reasons discussed, we conclude that the court properly construed the term “fawn deer” in § 26-86f. That term applies only to a deer that retains a spotted coat.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 26-86f provides: “No person shall hunt, wound, kill or remove from the wild any fawn deer at any time, except that such deer found wounded or injured may, with due care, be removed from the wild for the purpose of having the wounds or injuries treated, and all such deer shall, within twenty-four hours after such removal, be turned over to a representative of the Department of Environmental Protection for such disposition as shall be determined by the commissioner.”

       The Animal Rights Front is a public interest and animal protection organization.

       CEPA provides, inter alia, the authority to bring an action to protect the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction. General Statutes § 22a-16.

       As the court found, “[t]he parties agree that the term fawn deer has not been construed by our courts and is not defined within the language of § 26-86f.”

       The court further stated: “They become functional ruminants ... by two months of age and are weaned at two to four months of age; once weaned they are no longer dependent on their mothers. They are sexually mature and capable of breeding at six to seven months; gestation is approximately seven months.”

       The parties stipulated that it is impossible to distinguish between a ten month old deer and a thirteen month old deer in the wild. Many deer at seven or eight months of age are the same size, are the same color and have the same habits as an adult deer. Distinguishing between many deer at seven or eight months of age and an adult deer by visible observation is not reliable. Furthermore, most deer do not have antlers.

       The plaintiff argues that the clear intent is further illuminated by the fact that there is no reference in the legislative history to spotted coat deer.

       The parties have not sought to distinguish between the due process clauses of the United States constitution and the Connecticut constitution. We presume, therefore, that the United States constitution governs our consideration of the requirements of due process and fair notice.

       Deer are weaned at two to four months of age and once weaned they are no longer dependent on their mothers.

       After shedding their spotted coat, deer become sexually mature just a few months later.


author: PER CURIAM.

text:
    GENEVIEVE SERAFIN v. STATE OF CONNECTICUT, DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES
    (AC 20732)
    Foti, Mihalakos and Peters, Js.
    Argued April 2
    officially released May 1, 2001

      Igor I. Sikorsky, Jr., for the appellant (plaintiff).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Genevieve Serafin, appeals from the trial court’s judgment confirming an arbitration award in favor of the defendant state of Connecticut, department of mental health and addiction services, pursuant to General Statutes § 52-417. On appeal, the plaintiff claims that the court improperly (1) denied her motion to vacate the award and (2) denied her an evidentiary hearing. We affirm the judgment of the trial court.

The plaintiff, a head nurse at the Cedarcrest Regional Hospital, a short-term psychiatric facility operated by the defendant, was discharged from state service for excessive absenteeism and other reasons. The plaintiff filed a grievance in accordance with her collective bargaining agreement, which was denied, and she appealed to arbitration. The submission, which the plaintiff agrees was unqualified and unrestricted, resulted, after a full hearing, in an award determining that “[t]he dismissal of Genevieve Serafin was for just cause.” The plaintiff concedes that the award conforms to the submission and that in this type of submission the arbitrator is not required to decide according to law or the strict rules of evidence. South Windsor v. South Windsor Police Union Local 1480, 57 Conn. App. 490, 505, 750 A.2d 465, cert. granted on other grounds, 253 Conn. 924, 754 A. 2d 800 (2000). An unrestricted submission results in an award that is not subject to de novo review even for errors of law as long as the award conforms to the submission. Hartford v. Board of Mediation & Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989).

Our examination of the record and briefs and our consideration of the arguments of the parties persuades us that the judgment of the court should be affirmed. The issues were resolved properly in the court’s concise and well-reasoned memorandum of decision. Serafin v. State, 47 Conn. Sup. 57, 776 A.2d 525 (2000). Because that memorandum of decision fully addresses all arguments raised in this appeal, we adopt it as a proper statement of the issues and the applicable law concerning those issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Kaluszka v. East Hartford, 60 Conn. App. 749, 752, 760 A.2d 1269 (2000).

The judgment is affirmed.

       General Statutes § 52-417 provides in relevant part: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides . . . for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”


author: SCHALLER, J.

text:
    WILLIAM RUND ET AL. v. MICHAEL MELILLO ET AL.
    (AC 20200)
    Schaller, Spear and O’Connell, Js.

      Argued January 16
    officially released May 1, 2001

      Stephen R. Bellis, with whom, on the brief, was Daren Drove, for the appellant (named defendant).

      Joshua A. Hawks-Ladds, with whom, on the brief, was Gwen P. Weisberg, for the appellees (plaintiffs).
   Opinion

SCHALLER, J.

The defendant Michael Melillo appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiffs, William Rund and Professional Ventures, Inc. (Professional), in this breach of contract action. On appeal, Melillo claims that the court improperly (1) determined that the contract was ambiguous regarding whether the parties had bound themselves, both in an individual and corporate capacity, to the contract and (2) concluded that sufficient evidence was produced at trial to find that the intent of the parties was to bind both the individuals and the corporations to the contract. We affirm the judgment of trial court.

The following facts and procedural history are pertinent to our disposition of the appeal. This action stems from a dispute involving a subcontract. In April, 1997, Melillo, acting as the president of the defendant Michael’s Restoration, Inc. (Michael’s), entered into a general construction contract with Charter Oak Square, LLP (Charter Oak), the owner of an apartment building. The contract provided that Michael’s would recaulk all the exterior bay windows of the apartment building owned by Charter Oak. To execute that contract, Melillo and Michael’s entered into a subcontract with Professional and Rund, an employee of Professional. The subcontract, which was drafted by Melillo, provided that Professional and Rund would provide all the caulking services and materials outlined in the general contract and, in exchange, Michael’s or Melillo would pay them $33,000 upon completion of the work.

Subsequently, Professional and Rund completed the recaulking work on the apartment building in accordance with the subcontract. Shortly after the work was completed, Charter Oak in turn paid Michael’s $53,000 pursuant to the general contract. Nevertheless, neither Michael’s nor Melillo individually paid Professional or Rund any of the amount due under the subcontract. Consequently, Professional and Rund initiated this breach of contract action against Michael’s and against Melillo individually.

At trial, Melillo claimed, pursuant to his special defense, that although his corporation, Michael’s, was a party to the subcontract, he was not personally liable on the subcontract because he had signed it only in his capacity as president. Melillo noted that the letterhead of the subcontract indicated only Michael’s name and that, after signing his name, he had printed the word “president” next to his signature. According to Rund, all four parties entered into the subcontract, and, thus, Melillo was personally hable. To support this claim, Rund pointed to two portions of the subcontract that set forth, not only the corporations’ names, but also the individuals’ names. First, he noted the heading of the subcontract, which provided as follows: “CONTRACT AGREEMENT BETWEEN MICHAEL’S RESTORATIONS, INC., MICHAEL MELILLO AND PROFESSIONAL VENTURES, INC., WILLIAM RUND.” Second, Rund pointed to the language below the two signature lines located at the bottom of the contract. Located directly below the first signature line are the names “Michael’s Restorations, Inc./Michael Melillo.” Under the second signature line are the names “Professional Ventures, Inc./William Rund.”

Because the court determined that both interpretations were reasonable, it found that the contract was ambiguous as to whether the parties bound themselves individually. Accordingly, the court heard parol evidence to determine the parties’ intent on the matter in question. After doing so, the court concluded that the parties, including Melillo, had signed the subcontract both on behalf of the corporations and in their individual capacities. The court, as a result, rendered judgment in favor of the plaintiffs against Melillo personally, as well as against Michael’s. Melillo appeals from that judgment.

I

Melillo’s first claim is that the court improperly determined that the subcontract was ambiguous regarding whether the parties had bound themselves to the contract both in their individual and corporate capacities. We are unpersuaded.

At the outset, we note the well settled principles of contract interpretation. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . When only one interpretation of a contract is possible, the court need not look outside the four comers of the contract.” (Internal quotation marks omitted.) Bentz v. Halsey, 54 Conn. App. 609, 616, 736 A.2d 931 (1999). On the other hand, “[w]hen an ambiguous term is at issue, the trial court can examine the extrinsic evidence to resolve the question of the parties’ intent.” (Internal quotation marks omitted.) Larson v. Jacobson, 38 Conn. App. 186, 190, 659 A.2d 753 (1995).

“Contract language is unambiguous when it has a definite and precise meaning about which there is no reasonable basis for a difference of opinion.” Paul Revere Life Ins. Co. v. Pastena, 52 Conn. App. 318, 322, 725 A.2d 996, cert. denied, 248 Conn. 917, 734 A.2d 567 (1999), citing Levine v. Advest, Inc., 244 Conn. 732, 746, 714 A.2d 649 (1998). “A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Internal quotation marks omitted.) John M. Glover Agency v. RDB Building, LLC, 60 Conn. App. 640, 645, 760 A.2d 980 (2000). With these principles in mind, we now turn to the present case.

Our review of the language of the subcontract supports the trial court’s determination that it is ambiguous as to whether the parties intended to bind themselves individually. Both Melillo’s and Rund’s interpretations of the language are reasonable. On the one hand, Mel-illo’s interpretation that he bound only the corporation, Michael’s, and not himself, to the subcontract is reasonable in light of the fact that he printed the word “president” next to his signature. On the other hand, Rund’s interpretation that all the parties bound themselves individually, including Melillo, is also reasonable. Such an interpretation is easily inferred from the heading of the subcontract, which names all four parties to the contract. Furthermore, in that heading, Melillo’s and Rund’s individual names appear without any indication that they are acting only on behalf of the corporations. Likewise, in addition to the corporations’ names, their individual names appear below the signature lines without limitation. We conclude that the court properly determined that the subcontract was ambiguous as to whether the parties intended to bind themselves individually, and, as a result, the court was free to examine extrinsic evidence on the matter.

II

Melillo also claims that the court improperly determined that the extrinsic evidence produced at trial was sufficient to enable the court to find that the intent of the parties was to bind both the individuals and the corporations to the contract. We are not persuaded.

We begin by emphasizing that our standard of review on this matter is limited. Because we determined in part I of this opinion that the relevant contract language was ambiguous, “[t]he determination of the intent of the parties to a contract ... is a question of fact subject to review under the clearly erroneous standard.” (Internal quotation marks omitted.) Middletown Commercial Associates Ltd. Partnership v. Middletown, 53 Conn. App. 432, 436, 730 A.2d 1201, cert. denied, 250 Conn. 919, 738 A.2d 657 (1999).

In the present case, we cannot conclude that the court’s determination was clearly erroneous. Rund testified that he had entered into the subcontract under the belief that the parties were not only binding the corporations, but also the individuals. Melillo, of course, testified to the contrary. Acting within the scope of its duty, the court chose to believe Rund. “[I]t was the sole province of the court to determine the credibility of the witnesses and the weight to be given to the evidence. The trial court, as the finder of fact, is in the best position to assess the credibility of the witnesses testifying before it.” (Internal quotation marks omitted.) Petronella v. Venture Partners, Ltd., 60 Conn. App. 205, 212-13, 758 A.2d 869, cert. granted on other grounds, 255 Conn. 909, 763 A.2d 1036 (2000). The court was thus free to believe Rund and to disbelieve Melillo.

Of equal importance, we also note that Melillo drafted the ambiguous document. The applicable rule of contract interpretation in such situations is well settled. “When there is ambiguity, we must construe contractual terms against the drafter.” (Internal quotation marks omitted.) Cameron v. Avonridge, Inc., 3 Conn. App. 230, 233, 486 A.2d 661 (1985). We conclude, under these circumstances, that the court had before it sufficient evidence to find that the intent of the parties was to bind both the individuals and the corporate entities.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs filed motions for default for failure to appear and for failure to plead against Michael’s, which were granted. The defendant Michael’s is not involved in this appeal.


text:
    CHARLES STUART v. ROSEMARIE STUTTIG ET AL.
    (AC 19684)
    Landau, Schaller and O’Connell, Js.

      Argued January 8
    officially released May 1, 2001

      David J. Robertson, for the appellant (named defendant).

      Brian P. Kraemer, with whom, on the brief, was Brenden P. Leydon, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

In this negligence action, the defendant Rosemarie Stuttig appeals from the judgment of the trial court, rendered after a jury verdict, in favor of the plaintiff, Charles Stuart. The defendant claims on appeal that the court improperly (1) refused to direct the verdict or to render a judgment notwithstanding the verdict in her favor on her special defense of the statute of limitations that was directed to the plaintiffs negligence count and (2) refused to instruct the jury on apportionment of liability among settled or released parties pursuant to General Statutes § 52-572h (n). We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of this appeal. The plaintiff and the defendant are owners of homes located on land abutting Long Island Sound. On December 11, 1992, during a severe storm, the deck attached to the defendant’s home broke away from its foundation, drifted into the Sound and crashed into the plaintiffs seawall and property, resulting in extensive damage. The plaintiff brought this action against the defendant and others, including the Ralph Longo Construction Corporation (Longo), the corporation that constructed the deck, to recover damages to his property. The plaintiff alleged negligence and trespass.

At trial, the plaintiff pursued his case against the defendant alone and withdrew his claims against the other defendants. The defendant filed a motion for a directed verdict on both the negligence and trespass counts. With respect to the negligence count, she alleged that it was barred by the three year statute of limitations contained in General Statutes § 52-584.® To support this claim, the defendant relied on her own testimony and an affidavit by Ralph Longo, the vice president of Longo, showing that the deck was completed prior to January 15, 1991. The court granted the motion for a directed verdict on the trespass count, but reserved decision on the statute of limitations issue. The jury returned a verdict in favor of the plaintiff on the negligence count and awarded him $55,000 in damages. Ultimately, the court denied the motion for a directed verdict, as well as the defendant’s posttrial motions to set aside the verdict and for judgment notwithstanding the verdict. This appeal followed.

I

The defendant first claims that the court should have directed the verdict in her favor on the plaintiffs negligence claim on the ground that it was barred by the three year statute of limitations in § 52-584. Specifically, the defendant, relying on her own testimony and an affidavit by Ralph Longo, argues that the evidence established that the deck was completed prior to January 15, 1991. Because the plaintiff did not institute this action until December 14, 1994, a date more than three years after the completion of the deck, the defendant contends that a reasonable jury could not have reached a conclusion other than that the statute of limitations barred the negligence claim. The plaintiff, on the other hand, argues that the evidence was in dispute regarding the date on which the deck was completed. Ralph Longo testified that his affidavit may have been inaccurate and that the deck was actually completed at the end of 1991. The plaintiff contends that, on the basis of this testimony, the jury reasonably could have concluded that the deck was completed at the end of 1991, thereby rendering the defendant’s statute of limitations defense inapplicable. We agree.

As an initial matter, we set forth the standard of review regarding a court’s refusal to direct a verdict or to render judgment notwithstanding the verdict. “[Appellate] review of a trial court’s refusal to direct a verdict or to render judgment notwithstanding the verdict takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial; Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony .... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.” (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 32, 761 A.2d 1268 (2000).

Viewing the evidence presented in the light most favorable to the plaintiff, we conclude that the jury reasonably could have found that the deck was not completed until the end of 1991. We note that “[i]t is without question that the jury is the ultimate arbiter of fact and credibility. ... As such, it may believe or disbelieve all or any portion of the testimony offered.” (Citation omitted; internal quotation marks omitted.) State v. Bradley, 60 Conn. App. 534, 544, 760 A.2d 520, cert. denied, 255 Conn. 921, 763 A.2d 1042 (2000). “It is also the absolute right and responsibility of the jury to weigh conflicting evidence . . . .” (Internal quotation marks omitted.) Id., 541. The jury was thus free to disbelieve the defendant’s testimony and Ralph bongo’s affidavit, which were offered to show that the deck was finished in January, 1991. Acting within the scope of its duty, the jury instead chose to believe Ralph bongo’s testimony that the deck was not completed until the end of 1991. We conclude that the jury reasonably could have concluded as it did, and, therefore, the court properly refused to direct the verdict or to render a judgment notwithstanding the verdict in favor of the defendant on her special defense of the statute of limitations.

II

The defendant’s second claim is that the court improperly refused to instruct the jury on apportionment of liability among settled or released parties pursuant to § 52-572h. In response, the plaintiff argues that the defendant did not properly preserve this claim because, although she provided a written request to charge, the defendant later conceded that apportionment was not an issue prior to the court charging the jury. We agree with the plaintiff.

Before the trial began, the defendant provided a written request to charge in which she addressed the issue of apportionment. The court declined to issue the charge as requested. Prior to the charge, however, the defendant’s counsel stated, “Your Honor, there is no charge on apportionment. The jury is not to consider that. That is not an issue.” By abandoning her claim, the defendant, in essence, consented to the jury instruction as given. “When the defendant consented to the instruction, [she] waived [her] right to challenge it later on appeal.” State v. Ruffin, 48 Conn. App. 504, 510, 710 A.2d 1381, cert. denied, 245 Conn. 910, 718 A.2d 18 (1998). Accordingly, we decline to review the defendant’s claim regarding the trial court’s refusal to instruct the jury on the issue of apportionment.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-572h (n) provides: “A release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the total award of damages is reduced by the amount of the released person’s percentage of negligence determined in accordance with subsection (f) of this section.”

       The other defendants are Ralph Longo Construction Corporation, Grant Casperson, GNH Construction Corporation, Pat M. Pulitano, Bernard Grossfield, William J. Marr and the town of Greenwich. Only the defendant Stuttig is involved in this appeal. We refer in this opinion to Stuttig as the defendant.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of. . . .” (Emphasis added.)