author: Schaller, J.

text:
    Renata Black v. London and Egazarian Associates, Inc., et al.
    (10994)
    Laveby, Freedman and Schaller, Js.
    Argued November 5, 1992 —
    decision released February 9, 1993

      Judith Rosenberg, for the appellant (plaintiff).

      Anne Kelly Zovas, for the appellee (defendant Aetna Life and Casualty Company).

      JohnF. Slane, Jr., and Francis X. Lennon, Jr., filed a brief for the appellee (named defendant).
   Schaller, J.

The plaintiff appeals from a decision of the compensation review division (review division) of the workers’ compensation commission. The review division affirmed the dismissal of the claim on its merits by the workers’ compensation commissioner. Earlier in the course of the proceedings, the review division had affirmed the commissioner’s denial of the plaintiffs motion to preclude. On appeal, the plaintiff asserts that the review division had incorrectly (1) affirmed the commissioner’s ruling that the notice of claim was not served personally or by registered or certified mail in accordance with General Statutes § 31-321, (2) affirmed the commissioner’s ruling that the plaintiff’s notice of claim for compensation did not meet the requirements of General Statutes (Rev. to 1983) § 31-294, (3) failed to find that the commissioner improperly refused to allow the plaintiff to present rebuttal testimony, and (4) affirmed the commissioner’s conclusion that the death of the plaintiff’s husband did not arise out of his employment. We reverse the decision of the review division on the first two issues raised and, thus, do not reach the remaining issues.

The facts necessary to the resolution of this appeal may be summarized as follows. The plaintiff, Renata Black, is the widow of Howard Black, who was employed as a mechanical engineer for the defendant London and Egazarian Associates, Inc. (employer). On October 5, 1984, Howard Black died of sudden cardiac arrest while working in his office at the company’s place of business in Greenwich. Although he had suffered from a variety of medical conditions, he had no history of heart disease. He had been suffering from work related mental stress.

By letter dated December 2,1984, the plaintiff undertook to notify the employer of her intent to claim workers’ compensation benefits with regard to the death of her husband. She mailed a letter on her personal stationery from a post office in Tarrytown, New York, where she requested that the letter be sent by certified mail. She paid a fee of $1.55 and was given a certified mail receipt. In the letter addressed to the employer at its place of business the plaintiff stated as follows:

“Dear Bernie: I would like to advise you that I intend to file for Workmen’s Compensation with regard to the death of my husband, who died of heart attack while at work on Oct. 5th 1984.

/s/ Renata Black”

The letter was delivered by a postal service employee to the office of the employer on December 2 or 3,1984. At that time, Kenneth Beinert, a self-employed consulting engineer who was doing work for the employer, was alone in the office. Although Beinert was working at the receptionist’s desk and was answering the defendant’s telephone, he was not an employee or authorized representative of the employer. Thus, when the postal worker requested a signature for the delivery, Beinert refused. The postal worker then placed the letter in a box on the receptionist’s desk. At the time of the hearing, it was observed that the envelope containing the letter did not bear a certified mail number sticker or any stamp indicating that a return receipt had been requested. The return receipt portion of the green postal card had not been completed.

At the time of the delivery, Bernard London, president of the employer, was out of the country. Upon his return four or five days later, he read the plaintiff’s letter. The employer, however, did not issue a notice of intent to contest liability until March 21,1985. The plaintiff filed a motion to preclude. Formal hearings on this motion were held by the commissioner for the seventh district on November 8, 1985, and April 4, 1986. At the April 4,1986 hearing, the commissioner denied the plaintiff the opportunity to present either rebuttal testimony on the issue of service or an offer of proof relating to that issue.

The commissioner found that the notice of claim was not served personally or by registered or certified mail and, further, that it did not meet the requirements of § 31-294 in that it was a statement of intention to file a claim for compensation rather than a notice of present claim. The plaintiff appealed to the review division, which, on June 29, 1988, affirmed the commissioner’s ruling on the issue of service. The review division, thereafter, declined to decide whether the letter was sufficient notice of the present claim to bring into play the preclusion provisions of General Statutes (Rev. to 1983) § 31-297 (b). A hearing before the commissioner on the merits of the claim follo wed, resulting in a decision that the plaintiff had not sustained her burden of proving that her husband’s death arose out of and in the course of his employment. She again appealed the decision to the review division which affirmed. This appeal followed.

I

The plaintiff first claims that the review division incorrectly affirmed the finding of the commissioner that the notice of claim was not served personally or by registered or certified mail. The plaintiff argues that delivery by a postal service employee to the employer’s office of the letter, which had been properly deposited at the Tarrytown post office as certified mail, was sufficient to comply with § 31-321. We agree with the plaintiff.

We note at the outset that our resolution of this matter must comport with the well settled standard of review for workers’ compensation appeals. “The conclusions drawn by [the commissioner]' from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). “The compensation review division must review the appeal on the record and must not retry facts.” Hicks v. Department of Administrative Services, 21 Conn. App. 464, 466, 573 A.2d 770, cert. denied, 216 Conn. 804, 577 A.2d 716 (1990); Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 118, 612 A.2d 82, cert. denied, 223 Conn. 920, 614 A.2d 82 (1992). Guided by these principles, we hold that the review division and the commissioner have misconstrued the applicable statute and unreasonably interpreted the underlying facts of this case.

The objective in analyzing legislative action is to discern and effectuate the apparent intent of the legislature. State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987). In doing so, “[w]e look first to the plain, unambiguous language of the statute.” Arway v. Bloom, 29 Conn. App. 469, 473, 615 A.2d 1075 (1992). Unless the statute is ambiguous, it is unnecessary and indeed improper to engage in an analysis of the history underlying the statute. Klug v. Inland Wetlands Commission, 30 Conn. App. 85, 90, 619 A.2d 8 (1993).

The critical statute, which concerns the issue of proper service on an employer, is General Statutes § 31-321. Section 31-321 provides in pertinent part that “any notice required under this chapter to be served upon an employer . . . shall be by [inter alia] service personally or by registered or certified mail . . . .” Thus, the statutory language of § 31-321 makes clear that service requirements are met by hand delivery or by registered or certified mail.

In this case, the undisputed facts establish that the letter of notice was mailed from Tarrytown by certified mail with the appropriate postage paid by the claimant. The method of delivery by the postal service employee was consistent with certified mail delivery. The letter was hand delivered to the employer’s office and an effort was made to obtain a signed receipt for the letter, despite the fact that the statute does not require a return receipt. Clearly, the letter was not delivered as ordinary mail.

As the plaintiff correctly points out, the absence of a completed return receipt or a certified mail label on the envelope at the time of hearing is irrelevant to the issue of delivery by certified mail. The plaintiff mailed the letter in accordance with the statutory direction and in a manner calling attention to its serious nature. The defendants cannot avoid the consequences of ignoring it merely because no responsible agent or employee was present in the office to accept delivery or to attend to the matter once the letter was delivered.

The defendants argue that the evidence supports the commissioner’s determination that the notice of claim was not delivered by certified mail. We disagree and conclude that the “subordinate facts” do not support the defendants’ contention. As stated, a reviewing court accords broad discretion to a commissioner’s factual determinations. Hicks v. Department of Administrative Services, supra. The subordinate facts of this case, however, do not support the agency’s determination but, rather, fully establish that the plaintiff used certified mail in issuing her notice of claim. We, therefore, conclude that the commissioner unreasonably applied the facts to the mandate of § 31-321 and that the review division improperly affirmed this determination.

II

The plaintiff next claims that the review division improperly affirmed the commissioner’s ruling that her December 2,1984 letter did not constitute a notice of claim for compensation under General Statutes (Rev. to 1983) § 31-294. This contention is predicated on the notion that the commissioner improperly ruled that the letter was merely notice of an intent to file for compensation at some future time rather than notice of a present claim. The review division declined to address this matter in view of its conclusion that the letter was not properly served. We must, however, decide this issue in order to determine whether preclusion has occurred in this case.

The governing statute concerning this issue is General Statutes (Rev. to 1983) § 31-294. This statute provided in pertinent part: “Any employee who has sustained an injury in the course of his employment shall forthwith notify his employer, or some person representing his employer, of such injury .... No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given .... Such notice may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom, or the date of the first manifestation of a symptom of the occupational disease and the nature of such disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed.” (Emphasis added.)

It is undisputed that the letter in question contained all of the information required by § 31-294. The sole issue in contention is the significance of the word “intend,” which the plaintiff used in describing her purpose, i.e., “I . . . intend to file . . . .” (Emphasis added.) The commissioner concluded, and the defendants argue, that the use of the word “intend” failed to notify the employer that she was, indeed, giving notice of a present claim but, instead, was merely informing the employer of some future action.

The legislature designed the Workers’ Compensation Act to further a remedial purpose. Dubois v. General Dynamics Corporation, 222 Conn. 62, 67, 607 A.2d 431 (1992). The act’s provisions, therefore, “should be broadly construed to accomplish its humanitarian purpose.” (Internal quotation marks omitted.) Hansen v. Gordon, 221 Conn. 29, 33, 602 A.2d 560 (1992). The purpose of § 31-294, in particular, is to alert the employer to the fact that a person has sustained an injury that may be compensable; Gesmundo v. Bush, 133 Conn. 607, 612, 53 A.2d 392 (1947) (discussing legislative intent underlying predecessor to § 31-294); and that such person “is claiming or proposes to claim compensation under the Act.” (Emphasis added.) Rehtarchik v. Hoyt-Messinger Corporation, 118 Conn. 315, 317, 172 A. 353 (1934) (same). Furthermore, the statute’s requirement that the plaintiffs use “simple language” when issuing a notice of claim indicates that the legislature intended to facilitate lay persons who pursue their claims without the advice of counsel. Collins v. New Haven, 210 Conn. 423, 431, 555 A.2d 981 (1989).

Here, the plaintiff’s letter of December 2 apprised the employer of her husband’s injury and of an imminent claim under the Workers’ Compensation Act. The statute did not require the plaintiff to draft her notice with absolute precision. Thus, under the express terms of § 31-294 and our Supreme Court’s interpretation of this provision, the plaintiff’s notice is adequate.

In the defendants’ view, the commissioner reasonably concluded that the substance of the December 2 letter was insufficient for purposes of § 31-294. Again, the defendants ask us to defer to the commissioner as fact finder. While we agree with the defendants’ argument that our review of the commissioner’s determination is limited; Imbrogno v. Stamford Hospital, supra; we find that the commissioner’s decision conflicts with Supreme Court precedent and the express language of the statute. The commissioner’s findings reflect an incorrect application of the law to the subordinate facts. We conclude, therefore, that the plaintiff’s letter of December 2 fully complied with the requirements of § 31-294 and constituted a notice of present claim.

Ill

Having concluded that the plaintiff properly served a notice of claim in accordance with General Statutes §§ 31-321 and 31-294, we are inevitably led to the conclusion that the defendants are precluded from contesting the claim by virtue of their failure to file a timely notice of intent to contest in accordance with the provisions of General Statutes (Rev. to 1983) § 31-297 (b). The plaintiff’s delivery of the notice of claim by certified mail triggered the running of the twenty day period for contesting liability, and the employer’s failure to file a notice of contest within the period resulted in preclusion. Thus, the commissioner improperly denied the plaintiff’s motion to preclude.

Our Supreme Court has articulated the underlying purpose of § 31-297 (b) on several occasions. Dubois v. General Dynamics Corporation, supra; Castro v. Viera, 207 Conn. 420, 430-31, 541 A.2d 1216 (1988). The court has specifically noted “(1) that employers . . . bear the burden of investigating a claim promptly and (2) that employees [should] be timely apprised of the specific reasons for the denial of their claims. ...” (Citations omitted; internal quotation marks omitted.) Dubois v. General Dynamics Corporation, supra. In this case, the defendants must bear the burden of their failure to respond promptly to the plaintiff’s notice of claim. We, therefore, hold that the defendants are conclusively presumed to have accepted the compensability of the death of the plaintiff’s husband.

We recognize that the effect of the preclusion statute is often harsh. We note further that the legislature has amended the workers’ compensation statutes subsequent to the events giving rise to this case by providing a requirement of notice of preclusion to employers. General Statutes § 31-294c (b). Nonetheless, strict adherence to the act’s time constraints are essential to effectuate the legislative purpose of “creating a quick vehicle for recovery by the claimant for work related injuries . . . .” DeAlmeida v. M.C.M. Stamping Corporation, 29 Conn. App. 441, 446, 615 A.2d 1066 (1992), citing Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 540, 494 A.2d 555 (1985).

The decisions of the compensation review division are reversed and the case is remanded with direction to remand the matter to the workers’ compensation commission for the seventh district for á new hearing limited to the amount of compensation to which the plaintiff is entitled.

In this opinion the other judges concurred.

       General Statutes § 31-321 provides in pertinent part: “Unless otherwise specifically provided, or unless the circumstances of the case or the rules of the commission direct otherwise, any notice required under this chapter to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business. . . .” (Emphasis added.)

       General Statutes (Rev. to 1983) § 31-294 provided in pertinent part: “Any employee who has sustained an injury in the course of his employment shall forthwith notify his employer, or some person representing his employer, of such injury . . . .”

       It appeared that a green residue remained where the certified sticker normally would have been, indicating that a certified sticker, once present, had either fallen off or been removed.

       Because we have concluded that the plaintiff properly complied with the certified mail service requirements, we need not discuss her alternate theory based on personal service or the claim that the plaintiff should have been allowed to present evidence or an offer of proof on the service issue.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Elaine W. Gulack v. Fay H. Gulack et al.
    (10854)
    Dupont, C. J., Daly and Heiman, Js.

      Argued November 4, 1992 —
    decision released February 16, 1993

      Michael J. Mannion, for the appellant-appellee (named defendant).

      Paul L. Bollo, for the appellee-appellant (plaintiff).
   Dupont, C. J.

The defendant Fay H. Gulack appeals from the judgment of the trial court imposing a constructive trust on certain real property in favor of the plaintiff, Elaine W. Gulack. The issues on appeal are (1) whether the allegations of the complaint and the evidence submitted support the relief granted, (2) whether the trial court improperly drew an adverse inference against the defendant for failing to call the codefendant Howard Gulack as a witness, and (3) whether the trial court misapplied the dead man’s statute, General Statutes § 52-172, when it admitted statements of George Gulack, a deceased person. The plaintiff has cross appealed, claiming that the trial court improperly awarded to the defendant the fair market value of an addition to a house on the subject land.

The trial court found certain facts. In 1976, Max Gulack, the uncle of the plaintiff’s husband, paid all of the consideration for real property located at 21 Dick Finn Road in New Fairfield, but caused the title to the property to be placed in the name of his brother, George Gulack, the father-in-law of the plaintiff. The deed was recorded on the land records of New Fairfield. At the time of purchase, Max declared that he bought the property for the plaintiff and her husband, Howard, for use as their marital residence. Title to the property was placed in the name of George because Max felt that Howard was unstable and irresponsible. Max was also concerned about placing the property in Howard’s name because Howard had a “propensity for litigation.” The plaintiff has lived on this property since it was purchased in 1976. In 1978, George and the defendant, who was George’s wife and the mother-in-law of the plaintiff, moved in with the plaintiff and Howard. The defendant and George then built an addition to the existing house and lived there until 1983, at which time they moved permanently to Florida. George died in Florida on July 28,1987. Max died eleven months later on June 8, 1988. From 1976 until his death, Max paid all of the taxes and insurance on the property, and took the appropriate tax deductions. No rent was ever paid to Max. Max bequeathed $175,000 each to the plaintiff and Howard, which they received upon his death. On July 29, 1988, by a certificate of devise, the property was transferred from George’s estate to the defendant and recorded on the land records of New Fairfield. After that date, the defendant paid the taxes and insurance while the plaintiff provided for most of the maintenance and upkeep. The plaintiff continued to live in the house after the deaths of both George and Max.

In 1989, Howard began selling furniture from the house and told the plaintiff that the house would be sold. Thereafter, the plaintiff commenced a divorce proceeding against Howard. Howard left the house and moved to Florida in January, 1990. In February, 1990, the defendant instituted eviction'proceedings against the plaintiff. The plaintiff then commenced this action seeking the enforcement of a constructive trust and a transfer of title to the plaintiff and Howard. The trial court imposed a constructive trust on the property in favor of the plaintiff and Howard, but ordered that the plaintiff pay to the defendant the fair market value of the addition.

I

The defendant first claims that the plaintiffs complaint and prayer for relief were fatally deficient. Specifically, the defendant claims that the plaintiffs complaint failed to allege either a duty owed or a special or confidential relationship, an essential element necessary for establishment of a constructive trust. Additionally, the defendant claims that the prayer for relief sought enforcement of a constructive trust without first requesting that the court impose a constructive trust.

The plaintiff argues, however, that, even though the complaint did not specifically request that the court impose a constructive trust, the complaint complied with the requirements of the rules of practice. Practice Book § 131 requires that a complaint “contain a concise statement of the facts constituting the cause of action and, on a separate page ... a demand for relief. . . .” The plaintiff asserts that the complaint contained specific facts that alleged the existence of a constructive trust in favor of the plaintiff and a demand for relief in the form of enforcement of the constructive trust.

We need not determine whether the complaint was sufficient to allege a cause of action for a constructive trust because the defendant waived such a claim. A pleading defect is waived when the case is contested on its merits without questioning such defect. Tedesco v. Stamford, 215 Conn. 450, 457, 576 A.2d 1273 (1990); see Carnese v. Middleton, 27 Conn. App. 530, 537, 608 A.2d 700 (1992). The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial. Practice Book § 152. If a motion to strike is not made, “[t]he absence of a requisite allegation in a complaint that would have justified the granting of a motion to strike ... is not a sufficient basis for vacating a judgment unless the pleading defect has resulted in prejudice.” Tedesco v. Stamford, supra. “ ‘The appeal process should not be utilized to seek to correct pleading deficiencies the party complaining clearly could have remedied under our rules in the trial court.’ ” Id., 458, quoting Fuessenich v. DiNardo, 195 Conn. 144, 149, 487 A.2d 514 (1985). The defendant did not make a motion to strike the pleading and contested the case on its merits. The defendant first raised a challenge to the legal sufficiency of the complaint on appeal. Accordingly, unless the defendant was materially prejudiced by the alleged pleading defect, the defendant has waived her right to contest the alleged defect.

After reviewing the record, we conclude that the defendant was not materially prejudiced. The case was tried on the theory that a constructive trust was created and, therefore, should be imposed or enforced. The elements of a constructive trust are the intent by a grantor to benefit a third person, the transfer of property to another who stands in a confidential relationship to the grantor with the intent that the transferee will transfer the property to the third person, and the unjust enrichment of the transferee if the transferee is allowed to keep the property. A constructive trust is created by operation of law when these elements are present. The plaintiff set forth and argued the facts and elements necessary for the creation of a constructive trust, as well as the enforcement of one, and the defendant challenged the evidence, and the existence of the elements necessary for the creation and enforcement of a constructive trust.

The defendant also claims that the trial court incorrectly focused on the wrong parties in finding a special or confidential relationship between the parties as a condition precedent to the imposition of a constructive trust. The defendant asserts that the relationship that must exist for the creation or imposition of a constructive trust must be between the transferor and the transferee of the property in question, not the transferor and the beneficiary as found by the trial court. We agree that the special or confidential relationship must be between the transferor and the transferee, but conclude that despite the trial court’s focus on the transferor and the beneficiary in its decision, the record and the facts found by the trial court support the existence of such a relationship between the transferor (Max) and the transferee (George).

Where a transfer of real property is made to one person and the purchase price is paid by another as an intended gift to a third person, the statute of frauds requires that the creation of the trust must be in writing. 2 Restatement (Second), Trusts § 453. There is, however, an exception to the requirement of a writing. “Where the owner of an interest in land transfers it inter vivos to another upon an oral trust in favor of a third person or upon an oral agreement to convey the land to a third person, and the trust or agreement is unenforceable because of the Statute of Frauds, and the transferee refuses to perform the trust or agreement, he holds the interest upon a constructive trust for the third person, if . . . the transferee at the time of the transfer was in a confidential relation to the transferor . . . .” Restatement, Restitution § 183. A constructive trust is an equitable remedy imposed to prevent unjust enrichment. “ ‘Thus, a constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.’ ” Filosi v. Hawkins, 1 Conn. App. 634, 639, 474 A.2d 1261 (1984); see also Cohen v. Cohen, 182 Conn. 193, 203, 438 A.2d 55 (1980).

Before a trial court finds that a constructive trust exists and should be imposed, the court must find that a confidential relationship existed between the transferor and the transferee at the time of transfer of the property. Starzec v. Kida, 183 Conn. 41, 438 A.2d 1157 (1981); Filosi v. Hawkins, supra; Downey v. Downey, 1 Conn. App. 489, 472 A.2d 1296 (1984); Restatement, Restitution § 183. The confidential or special relationship must be of a nature that generates a “ ‘natural inclination to repose great confidence and trust.’ ” Filosi v. Hawkins, supra, quoting Cohen v. Cohen, supra. “A confidential relation exists not only where there is a fiduciary relation . . . but also where, because of family relationship . . . the transferor . . . is justified in placing confidence in the belief that the transferee will act in the interest of the transferor.” Restatement, Restitution § 182, comment c. “Where the owner of land transfers it inter vivos to another in trust for a third person, but no memorandum properly evidencing the intention to create a trust is signed, the transferee will be compelled to hold the land upon a constructive trust for the third person, if the transferee at the time of the transfer was in a confidential relation to the transferor. This is true even though at the time of the transfer the transferee intended to perform the oral trust, and even though he was not guilty of undue influence or other abuse of his confidential relation to the transferor in procuring the transfer. In such a situation a wrong is committed not merely against the transferor but also against the third person; and a court of equity will specifically redress the wrong by putting the parties in the position in which they would have been if the wrong had not been committed.” 1 Restatement (Second), Trusts § 45, comment c.

In the present case, the record reveals that such a confidential relationship did exist between Max and George. The trial court could reasonably have found certain facts. The Gulacks were a close-knit family. Max and George were brothers who were closely involved with each other’s businesses and personal activities and they often discussed their personal and financial circumstances. When the plaintiff indicated that she wanted to purchase a house, Max, George and Fay, as well as Elaine and Howard, looked for a house. When Max bought the subject property in this case, Max insisted on putting the title to the property in George’s name rather than in Elaine’s and Howard’s because he trusted that George would hold the property safely for Elaine and Howard. Max was confident that George would eventually fulfill Max’s intention that Elaine and Howard own the property. Because of the great confidence and trust Max placed in George, we conclude that the trial court could reasonably have found that a confidential relationship, of the nature necessary for the imposition of a constructive trust, did exist between Max and George.

To conclude that a constructive trust exists, the trial court must find, in addition to the existence of a confidential relationship, that unjust enrichment of the party holding title would occur if the trust were not imposed. Filosi v. Hawkins, supra; CBS Surgical Group v. Holt, 37 Conn. Sup. 555, 558-59, 426 A.2d 819 (1981). We conclude that such unjust enrichment would occur. Title to the property was transferred to the defendant in 1988 after George’s death in 1987. Prior to George’s death and until Max’s death in 1988, Max paid all of the taxes and insurance on the property. If the defendant is allowed to retain title to the property, which was the subject of the conveyance to George, she would be unjustly enriched. The trial court properly found that a constructive trust existed and should be imposed.

II

The defendant next claims that the trial court improperly drew an adverse inference against her for failing to call her son and codefendant, Howard, as a witness to corroborate her testimony that Max owed George “many, many, many, many dollars.” The defendant claims that Howard was not a witness whom she would naturally produce. We agree that the court should not have drawn an adverse inference, but we conclude that the drawing of the inference did not affect the outcome of the case.

It is well settled that a trial court is permitted to draw an adverse inference from a party’s failure to call an available and presumably favorable witness. Hall v. Burns, 213 Conn. 446, 469, 569 A.2d 10 (1990); Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). Under Secondino, two requirements must be satisfied: (1) The witness must be available; and (2) the witness must be one whom the party would naturally produce. Secondino v. New Haven Gas Co., supra. “A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” Id.

The first requirement is not disputed by the parties since Howard was present in the courtroom throughout the trial and was therefore available. The second requirement, however, has not been met; Howard was not a party whom the defendant would naturally have produced. Howard was a codefendant. The plaintiff originally sought partition of the property as a result of her divorce action against Howard as one of her claims for relief, but subsequently withdrew her prayer for partition. Howard then stood in the same shoes as the plaintiff because she sought only a transfer of the property to her and Howard, and there was no claim for relief adverse to Howard. Howard may have eventually received the entire property upon his mother’s death, or conveyance to him, if she prevailed in the present suit. Howard, however, stood to acquire one half of the property outright if the plaintiff won. Howard’s interests were, therefore, adverse to those of his mother. In addition, any knowledge that Howard may have possessed in regard to any debts owed by Max to George was not peculiar or superior to that of the defendant. The defendant was in a much better position to be knowledgeable about her husband’s business dealings with Max. Therefore, Howard was not a witness whom the defendant would naturally produce, and the trial court should not have drawn an adverse inference against the defendant.

To require reversal, however, the court’s misapplication of Secondino must be harmful. Doran v. Wolk, 170 Conn. 226, 231, 365 A.2d 1190 (1976). Any adverse inference arising from Howard’s failure to testify did not play a role in the trial court’s determination that a constructive trust existed. The trial court found the defendant’s testimony, especially about alleged debts owed by Max to George, totally “incredible” and “unworthy of belief” by itself. The adverse inference drawn by the trial court against the defendant, therefore, served only to reinforce the trial court’s view of the defendant’s testimony.

Ill

The defendant next claims that the trial court misapplied General Statutes § 52-172, the dead man’s statute, which provides in relevant part: “In actions by or against the representatives of deceased persons . . . the entries, memoranda and declarations of the deceased, relevant to the matter in issue, may be received as evidence.” The court admitted George’s statements concerning the reasons for the purchase of the property, why legal title was placed in George’s name instead of Elaine’s and Howard’s, and the intent of Max and George that title to the property would eventually be transferred to Elaine and Howard. The defendant claims that George’s statements were not admissible because the defendant was sued in her individual capacity, and not as a representative of George, as required by the statute, and because the suit did not attach the title to the property owned by the decedent.

The defendant claims that case law interpreting the statute limits its application to suits that attach the title to property owned by the deceased. In fact, the suit does precisely that. It seeks the enforcement of “a constructive trust which was held by” George, and then by the defendant.

Even if this suit did not attach the title of George, General Statutes § 52-172 is not limited to suits that attach the title to property owned by deceased persons. In fact, “[t]he statute has no reference at all to the kind of property to be recovered, or the subject matter of the suit, but simply to the relation of the parties (or one of them) to the deceased.” Pixley v. Eddy, 56 Conn. 336, 338-39, 15 A. 758 (1888). Thus, the only issue in determining whether General Statutes § 52-172 applies here is whether the defendant is a “representative” and whether the statements were relevant within the meaning of the statute.

The term “representatives of deceased persons” has long been interpreted by our Supreme Court to include persons who take some portion of the deceased’s estate either as a devisee or heir, as well as a personal representative, such as an executor or an administrator. Bowne v. Ide, 109 Conn. 307, 311, 147 A. 4 (1929); Pixley v. Eddy, supra, 340; Lockwood v. Lockwood, 56 Conn. 106, 110, 14 A. 293 (1887). Because Fay took title to the property as a devisee of George, she fits the term “representative” as used in the statute. The statements were relevant to the matter in issue because they related to whether a constructive trust existed and should be enforced. The trial court correctly admitted George’s statements under the dead man’s statute.

IV

The plaintiff, in her cross appeal, contends that the trial court improperly awarded to the defendant the fair market value of the addition to the house. Usually, “a building or other structure voluntarily and without contract erected by one person upon land of another, becomes thereby annexed to the soil and a part of the realty”; Ward v. Ives, 91 Conn. 12, 21, 98 A. 337 (1916); and, in the absence of an agreement, buildings placed on land become a part of the freehold estate. Rayhol Co. v. Holland, 110 Conn. 516, 522, 148 A. 358 (1930). Because the house and the realty on which it stood was determined by the court to belong to the plaintiff, the addition became part of the realty to which the plaintiff was entitled as a result of the imposition of the constructive trust.

In an equitable proceeding, however, a trial court may consider all relevant circumstances to ensure that complete justice is done. This balancing of the equities is a matter for the discretion of the court, and, in reviewing such discretion on appeal, every reasonable presumption is given in favor of its correctness. Reynolds v. Ramos, 188 Conn. 316, 320-21, 449 A.2d 182 (1982). The court may even reduce the amount of indebtedness stated in a mortgage note under special circumstances. Id., 320; Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980). We hold that a court may also determine that a structure voluntarily placed on the land of another may be the subject of compensation to the person constructing it, in an equitable action, if the circumstances warrant it. See Ward v. Ives, supra, 22. The circumstances warrant such a result if a manifest injustice would otherwise be done. See Reynolds v. Ramos, supra, 321. We conclude that the trial court was correct in its determination that the defendant should obtain compensation for the erection of the addition by her and her husband on the land determined to belong to the plaintiff and Howard.

The question remains, however, what is the measure of those damages. The trial court concluded that the measure of the damages was the fair market value of the addition, without deciding as of what date, or establishing the particular amount. We conclude, as a matter of law, that, although the defendant is entitled to damages, the damages should be limited to the cost of constructing the addition. We so conclude on the basis of existing Connecticut case law.

The plaintiff’s suit put her in the position she would have been in had the constructive trust not been violated. The establishment of a constructive trust need not penalize the defendant as a wrongdoer. Bowen v. Morgillo, 128 Conn. 442, 446, 23 A.2d 719 (1941). The defendant’s right to compensation is similar to the equitable principles involved in a preclusion of unjust enrichment. Id., 446-47. “A person is entitled to specific restitution of property from another or to the product of such property only on condition that he compensate the other for expenditures with reference to the subject matter which have inured to his benefit, to the extent that justice between the parties requires.” Restatement, Restitution § 158.

The cost to construct the addition is the measure of damages due the defendant. See Bowen v. Morgillo, supra; see also Stichting Mayflower v. Newpark Resources, 917 F.2d 1239, 1244 (10th Cir. 1990); Edwards v. Hauff, 140 Ariz. 373, 377, 682 P.2d 1 (1989); Farnum v. Silvano, 27 Mass. App. Ct. 536, 540 N.E.2d 202 (1987). The benefit deriving from the addition due to the rising value of real estate, if any, belongs more properly to the beneficiaries of the constructive trust, the plaintiff and Howard, than to the defendant, who should have enforced the constructive trust. See Kakalik v. Bernardo, 184 Conn. 386, 396, 439 A.2d 1016 (1981).

Y

Although the court imposed a constructive trust, it did not, as requested in the plaintiffs prayer for relief, order a conveyance, in accordance with the trust found, to Howard and the plaintiff. The complaint refers to the volume and page of the land records of the town of New Fairfield in which the deed to George was recorded, and to the volume and page in which the defendant received title from the estate of George. No deed was submitted into evidence as an exhibit. The court clearly intended that title pass to the plaintiff and Howard, and had the power to pass the title to the real property by its decree. See General Statutes § 52-22.

The judgment imposing a constructive trust is affirmed. The case is remanded with direction to render judgment passing title to Elaine Gulack and Howard Gulack, as tenants in common, to property known as 21 Dick Finn Road, New Fairfield, Connecticut, as more particularly described in volume 124, page 90 and volume 187, page 1007 of the land records. The judgment is reversed as to the award of the value of the addition to the defendant Fay Gulack and the case is remanded for further proceedings to determine the cost of the addition to 21 Dick Finn Road, and with direction to render judgment awarding such amount to the defendant Fay Gulack.

In this opinion the other judges concurred.

       The defendant Howard Gulack, the plaintiffs former husband, did not appeal from the judgment for the plaintiff. We will refer in this opinion to Fay Gulack as the defendant.

       There are five primary parties with the same last name involved in this appeal. After the initial reference, each party will be referred to by first name.

       The trial court concluded that the addition was “the sole property of Fay and the value thereof is to be subtracted from the fair market value of the whole and paid over to her.” We interpret this language as meaning that a dollar value is to be given to Fay, rather than meaning that Fay is to be given any interest in the real estate. The addition to the house became part of the parcel of real estate and merged into the title. See Ward v. Ives, 91 Conn. 12, 21-22, 98 A. 337 (1916).

       The prayer for relief also included a request for a partition of the property as a result of the complaint for divorce. This request was withdrawn.

       The complaint is entitled “Enforcement of Constructive Trust” and alleges that George Gulack received the conveyance in trust for Elaine and Howard Gulack, and that Pay Gulack holds the property in constructive trust for Elaine and Howard Gulack.


author: Per Curiam.

text:
    Luis Rodriguez v. Bruce Manufacturing and Molding Company et al.
    (11419)
    Daly, Landau and Freedman, Js.
    Argued January 14 —
    decision released February 16, 1993

      Michael J. McAuliffe, with whom, on the brief, was James L. Pomeranz, for the appellants (defendants).

      Paul S. Ranando, for the appellee (plaintiff).
   Per Curiam.

The defendants appeal from a decision of the compensation review division (review division) of the workers’ compensation commission. The review division affirmed the finding and award of the workers’ compensation commissioner (commissioner). The review division also affirmed the commissioner’s granting of the plaintiff’s motion to preclude defenses and to establish a conclusive presumption of compensability pursuant to General Statutes (Rev. to 1985) § 31-297 (b). On appeal, the defendants assert that the review division improperly found that the notice of claim dated August 2,1985, satisfied the provisions of General Statutes (Rev. to 1985) § 31-294.* Because we find that there is no final judgment, we dismiss the appeal.

The facts necessary to the resolution of this appeal may be summarized as follows. The plaintiff, Luis Rodriguez, was employed by Bruce Manufacturing and Molding Company (Bruce Manufacturing) when he sustained an injury to his lower back arising out of and in the course of his employment. On August 2, 1985, the plaintiffs attorney sent a letter by certified mail informing the defendant employer that Rodriguez had sustained a severe back injury while at work on May 28, 1985. The letter also informed the employer of the plaintiffs address and, by copy of that letter, he was advising the commissioner that he was filing a claim for workers’ compensation benefits. The letter also contained information regarding various aspects of the injury, the treatment for the injury, the plaintiff’s time out of work, and requested information regarding the plaintiff’s hourly pay. The letter was received by Bruce Manufacturing and the copy was received by the commissioner on August 6, 1985. The employer filed a notice of intention to contest liability on or about January 18, 1986, approximately 165 days after receipt of written notice of claim from the plaintiff.

The plaintiff filed a motion to preclude and, after hearings, the commissioner found that the plaintiff’s letter of May 28,1985, constituted notice, and granted the motion on the grounds that Bruce Manufacturing had failed to disclaim liability within twenty days of the date of its receipt of the plaintiff’s notice of claim as required by § 31-297. During argument before this court, both parties conceded that an evidentiary hearing would be necessary to establish, inter alia, the length of time the plaintiff was disabled, the degree of the plaintiffs disability and whether the disability is total or partial.

The test that determines whether a decision of the review division is an appealable final judgment turns on the scope of the proceedings that remain: “[I]f such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed.” Szudora v. Fairfield, 214 Conn. 552, 556, 573 A.2d 1 (1990).

In Shira v. National Business Systems, Inc., 25 Conn. App. 350, 593 A.2d 983 (1991), this court addressed an appeal from the review division decision affirming the commissioner’s granting of a motion to preclude defenses. Although the plaintiff had proved an employee-employer relationship, we dismissed the appeal for lack of a final judgment because the commissioner had yet to determine the compensation to be awarded and that determination involved “more than the utilization of a pure mathematical calculation of compensation.” Id., 353-54. In contrast, in Vachon v. General Dynamics Corporation, 29 Conn. App. 654, 657 n.3, 617 A.2d 476 (1992), we held that an appeal from a similar order was a final judgment for the purposes of appeal because the parties had stipulated to the fact that a disability had occurred and to the method for calculating the award. Because all that remained in Vachon was a ministerial and uncontested calculation of the amount of worker’s compensation due the plaintiff, the review division’s decision was a final judgment.

All parties to this case agree that, following this appeal, an evidentiary hearing is necessary to determine the length of time the plaintiff was disabled, the degree of disability and whether the disability is partial or total. This determination will involve more than the utilization of a mathematical calculation of compensation. It will require the exercise of independent judgment and discretion and the taking of additional evidence. Therefore, there is no final judgment.

The appeal is dismissed.

       General Statutes (Rev. to 1985) § 31-297 (b) provides: “Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.”

       General Statutes (Rev. to 1985) § 31-294 provides in pertinent part: “Any employee who has sustained an injury in the course of his employment shall forthwith notify his employer, or some person representing his employer, of such injury; and, on his failure to give such notice, the commissioner may reduce the award of compensation proportionately to any prejudice which he finds the employer has sustained by reason of such failure; but the burden of proof with respect to such prejudice shall rest upon the employer. No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within such two-year period or within one year from the date of death, whichever is later. Such notice may be given to the employer or the commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom, or the date of the first manifestation of a symptom of the occupational disease and the nature of such disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. . . .”

       There is some confusion regarding when the injury actually occurred. The appendix attached to the brief of the plaintiff contains a copy of a letter designated “Exhibit A.” This unsigned letter states that the injury occurred on April 25,1985. This letter is dated August 2,1985, on the first page and August 1,1985, on the second page. The actual Claimant’s Exhibit A, from the trial court files, is a letter from the defendant employer to counsel for the plaintiff, and is dated August 14,1985. Claimant’s Exhibit One is an unsigned letter dated August 2, 1985, which states that the injury occurred on May 28,1985. Claimant’s Exhibit Two is a signed letter dated August 2,1985, which also states that the injury occurred on May 28,1985.


author: Heiman, J.

text:
    Bernard C. Fisher v. Jean C. Fisher
    (11188)
    O’Connell, Heiman and Schaller, Js.
    Argued January 15 —
    decision released February 16, 1993

      PaulB. Zolan, with whom, on the brief, was L. Paul Sullivan, for the appellant (plaintiff).

      C. Ian McLachlan, with whom, on the brief, were William H. Narwold and Laura Welch Ray, for the appellee (defendant).
   Heiman, J.

This is an appeal from the trial court’s determination, after remand, that a substantial change in circumstances was not contemplated. We previously addressed the plaintiff’s appeal from the granting of a motion for modification of a dissolution judgment in Fisher v. Fisher, 25 Conn. App. 82, 592 A.2d 968, cert. denied, 220 Conn. 917, 597 A.2d 333 (1991). We remanded the case to the trial court to determine whether the substantial change in circumstances found by the court was not contemplated by the parties at the time of dissolution. We did so under the authority of Darak v. Darak, 210 Conn. 462, 556 A.2d 145 (1989), and the then existing version of General Statutes (Rev. to 1989) § 46b-86 (a).

On appeal, the plaintiff asserts that the trial court improperly (1) determined that the state trial referee and the parties did not know that the referee had determined the value of corporate stock at $370,000, and that the defendant is not bound to that knowledge as a matter of law concerning the contemplation of future events, (2) found that the substantial change in circumstances was not contemplated without ever finding or attempting to find what the parties’ actual circumstances were in April through May, 1990, (3) failed to establish factually starting and terminal points so that the parties could produce evidence concerning contemplation, and (4) denied his motion that the remand hearing be heard by a judge other than the one who initially granted the defendant’s motion for the modification of an alimony award. We conclude that this appeal is moot and, accordingly, must be dismissed.

The amendment of General Statutes § 46b-86 (a) by No. 90-213, § 46, of the 1990 Public Acts, and our Supreme Court’s holding in Turner v. Turner, 219 Conn. 703, 595 A.2d 297 (1991), renders this appeal moot. “The legislature’s prompt action in adopting the expressly retrospective language of [Public Act No.] 90-213, § 46, unambiguously clarifies its original intention that [Public Acts 1987, No.] 87-104 [General Statutes § 46b-86] applies to all alimony and support orders regardless of the date on which they were entered.” (Emphasis added.) Turner v. Turner, supra, 717; Fisher v. Fisher, 28 Conn. App. 483, 487 n.2, 611 A.2d 440 (1992). The amendment removes the requirement that the substantial change in circumstances not be contemplated at the time of the dissolution to support a modification. Turner v. Turner, supra; see also 1990 Public Acts, No. 90-213, § 46. The plaintiff’s argument that the trial court improperly found that the substantial change in circumstances was not contemplated therefore is moot. We have repeatedly stated that “the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Citations omitted; internal quotation marks omitted.) Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 496-97, 522 A.2d 264 (1987).

The appeal is dismissed.

In this opinion the other judges concurred.

       The facts of this case are adequately set forth in Fisher v. Fisher, 25 Conn. App. 82, 592 A.2d 968 (1991).

       While the plaintiff asserts that Public Acts 1990, No. 90-213, § 46, amending General Statutes § 46b-86 (a), applies only to modification of child support orders, our Supreme Court has not followed this interpretation. Turner v. Turner, 219 Conn. 703, 595 A.2d 297 (1991). The General Assembly has yet to limit the scope of the Supreme Court’s construction of the statute and is presumed to be aware of judicial construction placed on its enactments. Lumbermans Mutual Casualty Co. v. Huntley, 223 Conn. 22, 30, 610 A.2d 1292 (1992); DeAlmeida v. M.C.M. Stamping Corporation, 29 Conn. App. 441, 451, 615 A.2d 1066 (1992). Without such an amendment, the Supreme Court’s interpretation that No. 90-213, § 46, of the 1990 Public Acts applies to all alimony and support orders regardless of the date on which they were entered is controlling and binding on us.

       Our determination that contemplation is irrelevant also makes moot the plaintiffs argument that the judge failed to disqualify himself on remand.


text:
    Joseph Caciopoli v. Michael Acampora
    (10951)
    Landau, Heiman and Freedman, Js.
    Argued January 6 —
    decision released February 16, 1993

      Robert G. Oliver, with whom, on the brief, was John W. O’Meara, for the appellant (defendant).

      Bruce D. Jacobs, with whom was Irene P. Jacobs, for the appellee (plaintiff).
   Heiman, J.

The defendant appeals from the judgment of the trial court setting aside a jury verdict in his favor. On appeal, the defendant asserts that the trial court improperly (1) set aside the verdict in favor of the defendant on determining that a special defense should not have been submitted to the jury as a matter of law, and (2) overturned the jury’s finding of comparative negligence and ruled that there was no evidence that the plaintiff’s conduct contributed in any manner to his injuries, where the defendant introduced substantial evidence in support of the special defense that the plaintiff failed to take proper precautions for his own safety and caused his own injuries. We reverse the trial court’s judgment.

The following facts are necessary for a resolution of this appeal. On March 23,1987, the plaintiff and Frank Dolceacqua were employed as plumbers by Yale University. They were working at a job site and needed additional materials. They accepted a ride with the defendant in his 1984 Chevrolet van to pick up the materials and to get coffee. Dolceacqua rode in the passenger’s seat, while the plaintiff rode in the back of the van on the plywood floor near the right rear wheel. After obtaining the materials and coffee, they got back into the van to return to the job site.

The van in which they were riding had been modified to hold plumbing supplies. The plaintiff testified that he sat on some deep shelves that were attached to the driver’s side of the van and that he was leaning forward, holding a cup of coffee. The defendant and Dolceacqua both testified that the plaintiff was sitting on the five and one-half inch wide edge of a step ladder that was attached to the shelves.

On the way back to the job site, as the defendant attempted to make a left turn, he noticed a jogger coming from the right. To avoid hitting the jogger, the defendant applied the brakes. The plaintiff was thrown to the floor and injured. The defendant testified that the plaintiff attempted to balance his cup of coffee as he was thrown forward.

The plaintiff brought an action in negligence against the defendant. In his substituted complaint, the plaintiff alleged that the defendant applied his brakes more forcefully than was necessary. He also alleged that the defendant failed to take reasonable steps to warn the plaintiff so that the plaintiff could brace himself, failed to provide the plaintiff with a reasonably safe place to sit or with any restraining device, and failed to keep a reasonable and proper lookout for pedestrians. The defendant filed an answer and special defense. In the special defense, the defendant alleged that the plaintiff was comparatively negligent in failing to take proper precautions for his own safety while riding in the defendant’s vehicle, to sit on a seat in the van, to make reasonable and proper use of his senses and faculties, and to solicit aid or assistance. The plaintiff denied the allegations set forth in the special defense.

After a jury trial, the jury rendered a verdict in favor of the defendant. The jury, through special interrogatories, found that the defendant was negligent, that his negligence was a proximate cause of the plaintiff’s injuries, that the plaintiff was contributorily negligent, and that his contributory negligence was a proximate cause of his own injuries. In comparing the negligence of the parties, the jury found that the plaintiff was 51 percent negligent, and therefore the plaintiff was barred from recovery for his injuries. The plaintiff subsequently filed a motion to set aside the verdict. After finding that it had improperly submitted to the jury the issue of contributory negligence because “there was no evidence that the conduct of the plaintiff contributed in any manner to his injuries,” the trial court granted the motion and ordered a new trial. This appeal followed.

The defendant asserts that the trial court clearly abused its discretion in setting aside the jury’s verdict in his favor. He claims that the special defense that the plaintiff failed to take proper precautions for his own safety in riding in the van was legally valid in light of the plaintiff’s allegations in the substitute complaint. He also claims that ample evidence supported the allegations of his special defense. We agree that the trial court abused its discretion in setting aside the jury’s verdict.

The trial court may set aside a jury verdict that the court finds to be against the law or the evidence. American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 774, 607 A.2d 418 (1992); Palomba v. Gray, 208 Conn. 21, 23-24, 543 A.2d 1331 (1988); Cohen v. Hamden, 27 Conn. App. 487, 491, 607 A.2d 452 (1992). A trial court’s ruling to set aside the verdict will not be overturned on appeal unless the trial court abused its discretion. American National Fire Ins. Co. v. Schuss, supra, 774-75; Jeffries v. Johnson, 27 Conn. App. 471, 475, 607 A.2d 443 (1992). Every reasonable presumption should be indulged in favor of the correctness of the trial court’s decision to set aside the verdict because a trial court is in a better position than an appellate court to determine whether a jury’s verdict was improperly influenced. Cohen v. Hamden, supra; Jeffries v. Johnson, supra, 475-76; Donahue v. State, 27 Conn. App. 135, 140, 604 A.2d 1331 (1992).

Unlike this court, the trial court had “the same opportunity as the jury to view the witnesses, to assess their credibility ... to determine the weight that should be given to their evidence . . . [and] to gauge the tenor of the trial . . . .’’(Citations omitted; internal quotation marks omitted.) Donahue v. State, supra, 139-40; see also American National Fire Ins. Co. v. Schuss, supra, 775. If the trial court finds that the verdict is “so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside the verdict. ...” (Citations omitted; internal quotation marks omitted.) State v. Hammond, 221 Conn. 264, 268, 604 A.2d 793 (1992). The trial court should thus set aside the jury’s verdict “where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that [the jurors] or some of them were influenced by prejudice, corruption or partiality.” (Internal quotation marks omitted.) American National Fire Ins. Co. v. Schuss, supra, 774; see also Jeffries v. Johnson, supra, 475. A verdict, however, should not be set aside where the jury reasonably could have based its verdict on the evidence. American National Fire Ins. Co. v. Schuss, supra.

While the trial court has broad discretion to set aside verdicts, it should be mindful that “ ‘[l]itigants have a constitutional right to have factual issues resolved by the jury.’ ” Berry v. Loiseau, 223 Conn. 786, 807, 614 A.2d 414 (1992); Donahue v. State, supra. “The right to a jury trial is fundamental in our judicial system, and . . . the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded [persons] passed upon by the jury and not by the court.” (Internal quotation marks omitted.) Donahue v. State, supra, 140. “Thus, the role of the trial court on a motion to set aside the jury’s verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did.” Berry v. Loiseau, supra, 807-808.

We first note that, as a matter of law, the alleged contributory negligence of a passenger riding in a vehicle is relevant in considering whether to bar his recovery. See Hinch v. Elliott, 119 Conn. 207, 209, 175 A. 684 (1934); see also Guilfoile v. Smith, 97 Conn. 271, 273, 116 A. 237 (1922). The standard of care owed by the passenger of a motor vehicle is that of a reasonable and ordinarily prudent person under similar circumstances. See Dennison v. Klotz, 12 Conn. App. 570, 578, 532 A.2d 1311 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988); see also Guarnaccia v. Wiecenski, 130 Conn. 20, 23, 31 A.2d 464 (1943). The passenger’s alleged contributory negligence is therefore the proper subject of a special defense. See Dennison v. Klotz, supra.

Because by setting the verdict aside the trial court infringed on the parties’ rights to have factual issues resolved by a jury, we examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion. American National Fire Ins. Co. v. Schuss, supra, 775; Cohen v. Hamden, supra; Donahue v. State, supra.

The jury reasonably could have found that, but for the manner in which the plaintiff sat in the back of the van, he would not have been injured. Both the defendant and Dolceacqua testified that the plaintiff sat on the edge of a ladder in the back of the van. On the trip to obtain the materials and coffee, the plaintiff sat on the floor of the van. There was testimony that the plaintiff was leaning forward prior to the defendant’s application of the brakes on the return trip to the job site. The defendant testified that the plaintiff attempted to balance his cup of coffee as he was thrown forward by the jolt of the stop. “It is uniquely the province of the trier of fact, in this case the jury, to determine the import of the evidence by gauging the credibility of the witnesses. . . . The fact that certain testimony is uncorroborated, or even contradicted, does not make it insufficient to support a verdict if the testimony is believed by the trier.” (Citations omitted.) Berry v. Loiseau, supra, 821; Sullivan v. Norwalk, 28 Conn. App. 449, 454, 612 A.2d 114 (1992). From this evidence, the jury reasonably found that the plaintiff was contributorily negligent by the method in which he rode in the van and that his negligence exceeded that of the defendant. The trial court usurped the jury’s factfinding function by finding that the “incident of the plaintiff having been thrown forward which resulted in his injuries was caused solely by the negligence of the defendant,” and thus deprived the defendant of his constitutional right to have the disputed issues in the case decided by the jury. See Berry v. Loiseau, supra, 807. The trial court therefore abused its discretion in setting aside the verdict.

The judgment is reversed and the case is remanded with direction to render judgment on the verdict.

In this opinion the other judges concurred.

       The court charged the jury on only one of the defendant’s allegations of comparative negligence — that the plaintiff failed to take reasonable precautions for his own safety. The plaintiff did not except to this charge.

       The eases cited were decided prior to the enactment of General Statutes § 52-572h, our comparative negligence statute.

       The trial court’s reliance on Mahoney v. Beatman, 110 Conn. 184, 147 A. 762 (1929), appears to be misplaced. In that case, our Supreme Court held that there must be “a causal relation between the act of negligence and the injury in whole or part. If not, the court, as a matter of law, should in its instruction exclude from the consideration of the jury any such claimed injury.” Id., 196. In Mahoney v. Beatman, supra, 198-99, our Supreme Court concluded that the plaintiffs action in driving his car at an excessive rate when he was struck by another car that was traveling on the wrong side of the road was a condition and not the proximate cause of his injuries. In this case, the jury reasonably could find that the plaintiff was negligent in failing to take proper precautions for his own safety in riding in the vehicle and that that negligence was the proximate cause of his injuries and not simply a condition.

       The plaintiff asserts that the trial court’s action in setting aside the verdict was also appropriate on an alternative ground. He asserts that the trial court improperly instructed the jury that the special defense applied only to one allegation of negligence, the defendant’s failure to provide the plaintiff with a reasonably safe place to sit. He also asserts that the trial court improperly failed to instruct the jury that in order to find that the plaintiffs negligence was the proximate cause of his own injuries, it must find that the negligence must have contributed to the event that caused his injuries. In the trial court’s presence, the plaintiff agreed with the defendant that the special defense was properly submitted for the jury’s consideration. He failed to take exception to the charge. We observe no plain error in the charge to the jury; see Practice Book § 4185; and therefore conclude that the plaintiffs alternative ground is without merit.


author: Foti, J.

text:
    Appeal from Probate of Girolamo Bencivenga et al.
    (11155)
    Foti, Heiman and Freedman, Js.

      Argued December 1, 1992 —
    decision released February 16, 1993

      Steven F. Rogers, for the appellant (named plaintiff).

      Cynthia C. Anger, assistant city attorney, for the appellee (defendant city of Milford).
   Foti, J.

The named plaintiff appeals from the judgment of the trial court, dismissing the plaintiff’s appeal from an order and decree of the Probate Court for the district of Milford. The sole issue in this appeal is whether the plaintiffs are aggrieved by the order and decree, which removed the executrix of their late father’s estate and appointed another party, and if so, whether the plaintiffs should have been appointed coexecutors.

Ciro P. Bencivenga, Sr., died testate, and by his last will and testament named his daughter, Hilda Bencivenga, as executrix of his estate. The will also provided that his sons, Girolamo Bencivenga and Ciro P. Bencivenga, Jr., the-plaintiffs herein, be appointed as coexecutors if the executrix predeceased the testator or became unable to act as executrix for any reason. Hilda Bencivenga, Girolamo Bencivenga and Ciro Bencivenga are beneficiaries of the entire estate. The Probate Court appointed Hilda Bencivenga as the executrix of her father’s estate on January 15,1982. On April 19, 1990, that court, pursuant to an application by the city of Milford, entered an order removing Hilda as executrix and appointing Peter Stark as administrator cum testamentum annexum (c.t.a.). The plaintiffs thereafter appealed to the Superior Court from the Probate Court order and decree.

At the hearing before the Superior Court, the plaintiffs introduced into evidence a certified copy of the decedent’s last will and testament, a certified copy of the application for probate of the will, the decree granting that application, and a true copy of the court decree removing the executrix and appointing the administrator c.t.a. The plaintiffs rested and, after oral argument, moved for judgment. The defendants moved for dismissal of the appeal on several grounds, including lack of aggrievement. The trial court dismissed the appeal, finding that the plaintiffs were not aggrieved because the appointment of the administrator c.t.a. did not adversely affect their direct interest in their testamentary bequest. The court therefore found that they lacked standing to pursue the appeal.

“A person who seeks to appeal from an order of the Probate Court must set forth in his motion for appeal (1) the interest of the appellant in the subject matter of the decree or order appealed from or in the estate; see General Statutes § [45a-191]; and (2) the adverse effect of the decree or order on that interest.” Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 516, 429 A.2d 967 (1980). “[T]he existence of aggrievement depends upon whether there is a possibility, as distinguished from a certainty, that some legally protected interest which [an appellant] has in the estate has been adversely affected. . . . Moreover, it must appear that the interest which is adversely affected is a direct interest in the subject matter of the decree from which the appeal is taken.” (Citations omitted; internal quotation marks omitted.) Id., 516-17.

We must first determine whether, under the facts found, the plaintiffs had an interest in the proceedings sufficient to confer upon them standing under General Statutes § 45a-186. The issue of standing implicates the court’s subject matter jurisdiction. Middletown v. Hartford Electric Light Co., 192 Conn. 591, 595, 473 A.2d 787 (1984). Standing focuses on the party seeking to be heard and not on the issues that party wants to have heard. Zoning Board of Appeals v. Planning & Zoning Commission, 27 Conn. App. 297, 300, 605 A.2d 885 (1992).

The question of standing does not involve an inquiry into the merits of the case. It merely requires allegations of a colorable claim of injury to an interest that is arguably protected by the statute in question. Assn. of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970); Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 319 (1971).

We conclude that the plaintiffs had standing to appeal the Probate Court’s decree by virtue of their legal right >of appointment as successor executors under General Statutes § 45a-290 (c). By the terms of their father’s will, they were to be named as successor coexecutors upon Hilda Bencivenga’s inability to act as executrix. We note that the Probate Court did not refuse to appoint the plaintiffs as successor coexecutors for cause or remove them for cause after notice and a hearing. See General Statutes § 45a-242 (a). Our law favors virtually no exception to the appointment of an executor or a successor executor named in a will. General Statutes § 45a-290 (c) provides that the Probate Court “shall appoint such . . . successor executor[s] named in said will as executor[s] . . . .” (Emphasis added.) A Probate Court has no discretion to appoint someone other than the person named; testators are entitled to select their own executors, and those persons may not be rejected unless excluded by common law or statute. Equitable Trust Co. v. Plume, 92 Conn. 649, 653, 103 A. 940 (1918); Farmers’ Loan & Trust Co. v. Smith, 74 Conn. 625, 627, 51 A. 609 (1902); Smith’s Appeal from Probate, 61 Conn. 420, 426, 24 A. 273 (1892). The plaintiffs’ statutory right of appointment was affected by the Probate Court’s appointment of Stark as administrator c.t.a., and we conclude that they were entitled to appeal the order.

The defendants argue that the named plaintiff’s appeal should be dismissed as moot because, under General Statutes § 45a-331, this court cannot afford any practical relief. We do not agree that the named plaintiff has lost standing by operation of law. Section 45a-331 (a) is neither inconsistent with nor does it eliminate the mandatory requirement of § 45-290 (c). Section 45a-331 (a) permits the Probate Court to “make all such orders as might have been proper if such settlement had not become delayed [for ten years or more].” The appointment of the plaintiffs as successor coexecutors pursuant to § 45-290 (c) would have been required even if settlement of the estate had not been delayed.

The judgment is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendants are the city of Milford, a creditor of the estate of Ciro P. Bencivenga, Sr., by virtue of certain delinquent taxes assessed on property owned by the estate, and, Peter Stark, the administrator c.t.a. appointed by the Probate Court.

       The named plaintiff, on appeal, has abandoned his claim involving the propriety of the order removing his sister as executrix.

       General Statutes § 45a-186 provides: “Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the superior court for the judicial district in which such court of probate is held. Except in the case of an appeal by the state, such person shall give security for costs in the amount of one hundred fifty dollars, which may be paid to the clerk, or a recognizance with surety annexed to the appeal and taken before the clerk or a commissioner of the superior court or a bond substantially in accordance with the bond provided for appeals to the supreme court. Appeals from any decision rendered in any case after a record is made under sections 51-72 and 51-73 shall be on the record and shall not be a trial de novo.”

       General Statutes § 45a-290 (c) provides: “If the person designated in the will to be executor has died or refuses to accept or is incapable of accepting such trust, or if during the settlement of the estate, the executor appointed by the court dies, or resigns or is removed from such trust, and the will names an alternate or a successor, the court shall appoint such alternate or successor executor named in said udll as executor, who shall have all the powers and duties as provided in the will. Such appointment shall be subject to the same provisions as to hearing, notice, waiver of or order dispensing with notice, and bond, as are stated in this section and sections 45a-286 and 45a-289.” (Emphasis added.)

       General Statutes § 45a-242 (a) provides: “If any fiduciary becomes incapable of executing his trust, neglects to perform the duties of his trust, wastes'the estate in his charge, or fails to furnish any additional or substitute probate bond ordered by the court, the court of probate having jurisdiction may, upon its own motion, or upon the application and complaint of any person interested or of the surety upon the fiduciary’s probate bond, after notice and a hearing, remove such fiduciary.”

       General Statutes § 45a-331 (a) provides: “Whenever for any cause the settlement of any decedent’s estate after the appointment of a fiduciary has been delayed or not completed, the court of probate before which the same is pending may at its discretion proceed with the settlement of such estate, although more than ten years have elapsed since any proceedings have been taken, and in such case may make all such orders as might have been proper if such settlement had not been delayed.”


author: O’Connell, J.

text:
    State of Connecticut v. Joshua Jacobs
    (10002)
    Dupont, C. J., O’Connell and Landau, Js.
    Argued October 5, 1992 —
    decision released February 16, 1993

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, were G. Douglas Nash, public defender, and Kevin Randolph, deputy assistant public defender, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddoek, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment revoking his probation after a hearing before the trial court. The defendant claims that the trial court improperly refused to apply the exclusionary rule to illegally seized evidence. We affirm the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. While on probation for a conviction of possession of marihuana with intent to sell, the defendant reported a burglary of his residence to the police. While on the premises investigating the complaint, an officer of the Hamden police department observed a gun case in plain view. When questioned about the gun case, the defendant explained that it contained a pistol for which he had a permit.

Further police investigation disclosed that the permit had been revoked because of the marihuana conviction. As a result, the police obtained a warrant to search the defendant’s residence and to seize the pistol. The warrant affidavit averred that the officers had probable cause to believe that the pistol was evidence of the defendant’s participation in the commission of the offense of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217.

While executing the search warrant for the pistol, an officer observed in plain view, two large plastic bags containing green plant-like material that, on the basis of her training and experience, she believed to be marihuana. Although the bags were in plain view, the officers did not seize them but, instead, obtained a second warrant authorizing the search and seizure of narcotics. The search authorized by this warrant yielded an extensive amount of marihuana and drug paraphernalia.

At the probation revocation hearing, the defendant moved to suppress everything seized pursuant to both search warrants. The trial court refused to hold an evidentiary hearing on the motion on the ground that the exclusionary rule does not apply to probation violation proceedings. At the conclusion of the revocation hearing, the trial court ruled that the state had proven by reliable and probative evidence that the defendant had been in possession of marihuana, thereby violating the condition of his probation that he not “violate any criminal law of the United States, this state or any other state.”

The defendant claims that (1) the exclusionary rules of the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution should have been applied to his probation revocation hearing because the police officers conducting the search and seizure knew or should have known that he was on probation, (2) the first search warrant failed to establish probable cause, and (3) the evidence used against him at the probation revocation hearing was illegally seized and should have been suppressed.

We begin by reiterating the well recognized principle that a probation revocation hearing is not a stage of a criminal prosecution. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); State v. Wright, 24 Conn. App. 575, 580, 590 A.2d 486 (1991). A probation revocation hearing is “not concerned with punishment or retribution.” State v. Smith, 207 Conn. 152, 177, 540 A.2d 679 (1988). Probation violation matters are statutory procedures to which many substantive and procedural rules of criminal law do not apply. Payne v. Robinson, 207 Conn. 565, 571, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988) (inapplicability of the exclusionary rule); State v. White, 169 Conn. 223, 239-40, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975) (relaxed hearsay evidence rule); State v. Davis, 29 Conn. App. 801, 808-809, 618 A.2d 557 (1993) (different standard of proof); State v. Baxter, 19 Conn. App. 304, 313, 563 A.2d 721 (1989) (conditional right to liberty).

The ultimate question in the probation process is “whether the probationer is still a ‘good risk’. . . . This determination involves the consideration of the goals of probation, including whether the probationer’s behavior is inimical to his own rehabilitation, as well as to the safety of the public.” (Citations omitted.) State v. Smith, supra. “In such proceedings, the government has an interest in accurate factfinding that is likely to be impaired when otherwise reliable and relevant evidence is excluded from the proceeding.” Payne v. Robinson, supra.

As a threshold question, we first determine whether the present case presents a situation in which the exclusionary rule might be applicable. The defendant claims that the first warrant was constitutionally defective because there was nothing in it to establish any cause to believe that the possession of the pistol constituted a crime or was evidence of criminal behavior. He reasons, therefore, that the marihuana seized in the second warrant, which became the basis of the probation revocation, should have been suppressed as the poisonous fruit of the first illegal search.

To constitute criminal possession of a pistol in violation of General Statutes § 53a-217, there must be a prior conviction of an offense enumerated in the statute. The defendant’s prior conviction of possession of marihuana with intent to sell in violation of General Statutes § 21a-277 (b) is not one of those offenses. Therefore, the defendant was not precluded from possessing a pistol in his home without a permit. Because the first search warrant was sought and issued solely on the basis of the alleged criminal possession of a pistol, it is doubtful that the warrant was based on probable cause to believe that a crime was being committed. The police used this questionable warrant to gain access to the premises where they observed the marihuana that eventually became the basis of the defendant’s probation revocation. These facts would have presented a justiciable suppression issue in a criminal prosecution but, as we have stated previously, a probation violation proceeding is not a criminal prosecution.

In Payne v. Robinson, supra, our Supreme Court held that the exclusionary rule of the fourth amendment generally does not apply to probation revocation proceedings. Payne suggested in dicta, however, that an exception might exist if the executing police officer “was aware or had reason to be aware of the suspect’s probationary status.” (Emphasis added.) Id., 573. For purposes of this analysis, we have assumed that the police were aware of the defendant’s status as a probationer. The defendant argues that this case is controlled by the exception suggested in Payne. We do not agree.

Payne pointed out that the primary purpose of the exclusionary rule is not to remedy an injury to a person’s privacy, but to deter future illegal police conduct. Id., 570. Therefore, “[application of the rule is thus appropriate in circumstances in which this purpose is likely to be furthered.” Id. The Payne court determined that, in the circumstances before it, the potential injury to the probation revocation process was not outweighed by the potential benefits derived from excluding relevant evidence. Id., 571-72. Similarly, in the circumstances of this case, we are not persuaded that the application of the rule would advance the purpose of deterrence to an extent favoring the impairment of the government’s interest in accurate factfinding.

The exclusionary rule’s source of deterrence is its effect in rendering illegally obtained evidence inadmissible in a criminal trial. As a result, the possibility of evidence being excluded would normally be sufficient to deter police officers from conducting illegal searches and seizures. Payne held that in the context of a probation hearing, the deterrent effect is outweighed by the need for accurate factfinding based on reliable and probative evidence. Payne recognized, however, that a balancing of the interests might favor application of the exclusionary rule in cases where “the police officer might very well discount the fact that such evidence was inadmissible at a criminal trial, believing that incarceration of the probationer would instead be achieved through the revocation of the probation.” Id., 573. The question at the core of this dicta is whether exclusion will “significantly affect a police officer’s motivation in conducting a search.” Id., 571.

Being mindful of the critical nature of this balance of interests, we cannot agree with the defendant that mere knowledge of probationary status necessarily triggers the exclusionary rule. As is evident in the present case, exclusion of evidence solely on that basis would not serve to significantly affect an officer’s motivation in conducting a search because there first must be an improper motivation to deter. Exclusion would, however, deprive the court of reliable and relevant evidence, thus impermissibly skewing the balance of interests. Accordingly, to come within the Payne dicta, there must also be evidence that the police “discount[ed] the fact that such evidence was inadmissible at a criminal trial, believing that incarceration of the probationer would instead be achieved through the revocation of his probation.” Id., 573.

In the present case, the record does not support a finding that the officers conducted such a pretextual search. We are therefore satisfied that the trial court properly held that the dicta in Payne did not control the admissibility of the evidence. Rather, the holding of Payne that the exclusionary rule does not apply to probation revocation proceedings dictates the outcome of the case. The trial court properly refused to hold an evidentiary hearing on the defendant’s motion to suppress.

Because our resolution of the first issue is dispositive of the appeal, we do not consider the merits of the remainder of the defendant’s claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       Apart from a single citation with no analysis, the defendant’s brief makes no reference to state constitutional law in the context of this issue. Although there is a belated attempt to provide the missing analysis in his reply brief, we need not consider the defendant’s claim under the state constitution. This court may, but need not, independently undertake to engage in such an analysis where the issue has not been briefed. State v. Birch, 219 Conn. 743, 746 n.4, 594 A.2d 972 (1991); State v. Johnson, 28 Conn. App. 708, 713, 613 A.2d 1344, cert. granted, 224 Conn. 911, 617 A.2d 168 (1992).