author: Daly, J.

text:
    Thomas Dugas v. Lumbermens Mutual Casualty Company
    (5700)
    Daly, Bieluch and Foti, Js.
    Argued February 18
    decision released April 19, 1988

      Michael Brodinsky, with whom, on the brief, was Patrice S. Noah, for the defendant (appellant).

      Juri E. Taalman, with whom was Nicholas G. Sarantopoulos, for the appellee (plaintiff).
   Daly, J.

The defendant, Lumbermens Mutual Casualty Company, appeals from a judgment granting the application of the plaintiff, Thomas Dugas, to vacate an arbitration award. We find error.

The matter was decided by the arbitrator upon a stipulation of facts submitted by the parties. Those pertinent to this inquiry are as follows: On April 17, 1982, the plaintiff was injured when his automobile was involved in a collision. At the time of the accident, the plaintiffs vehicle was insured by the defendant. The insurance policy provided uninsured motorist coverage of $40,000, basic reparations benefits of $5000 and added reparations benefits, bringing the maximum amount of all reparations benefits to $25,000. The parties stipulated that the plaintiffs total claim for personal injuries was worth at least $40,000. The defendant paid the plaintiff $5000 under the basic reparations benefits coverage, and an additional $8316.63 under the added reparations coverage, for a total payment of $13,316.63. The plaintiff also collected $20,000 from the driver of the other automobile involved in the collision.

The defendant conceded in the stipulation of facts that the statutory lien on the proceeds of a tort recovery pursuant to General Statutes § 38-325 (b) is subject to the provision that the insurer contribute toward the attorney’s fees incurred in recovering damages from the tortfeasor. The defendant did not concede, however, that it should pay a fee on any amount paid from the uninsured motorist portion of the coverage based on § 38-175a-6 (d) (3) of the Regulations of Connecticut State Agencies. Accordingly, the defendant stipulated that it was willing to pay the plaintiff $20,000, decreased by $13,316.63, the amount of total reparations paid, for a net payment of $6,683.37.

The plaintiff claimed in the stipulation that he was entitled to a payment of $11,122.25. The plaintiff argues in his brief that when, as here, there is recovery from a tortfeasor, the reparations payments reimbursable to the defendant are subject to reduction by attorney's fees pursuant to General Statutes § 38-325 (b).

Pursuant to § 38-175c (a) (1) of the General Statutes, and the provisions of the automobile insurance policy issued to the plaintiff, the parties submitted the following issue to the arbitrator: “Is the insured due a net of $11,122.25 or $6,683.37.” The arbitrator found “the damages suffered by Thomas Dugas from personal injuries resulting from [the] accident to be the sum of $6,683.37,” and awarded the plaintiff that amount.

Thereafter, pursuant to General Statutes § 52-418, the plaintiff filed an application to vacate the arbitration award in the Superior Court, arguing that the arbitrator did not decide the issue submitted to him in the stipulation of facts, that the arbitrator imperfectly executed his power and that the award was arbitrary and contrary to law. The trial court held that the arbitrator’s finding, that the plaintiff suffered damages of $6683.37 from personal injuries resulting from the accident, directly conflicted with the submission in which it was stipulated that the plaintiff’s total claim for personal injuries was worth at least $40,000. The court held that that finding, and, consequently, the award itself, was outside the submission, and granted the application for vacation of the award. This appeal followed.

Our Supreme Court has. recently articulated the appropriate standard of judicial review of, as in this case, compulsory arbitration proceedings. “[W]here judicial review of compulsory arbitration proceedings required by § 38-175c (a) (1) is undertaken under General Statutes § 52-418, the reviewing court must conduct a de novo review of the interpretation and application of the law by the arbitrators.” (Emphasis added.) American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987). The trial court in this case did not undertake a de novo review of the arbitrator’s decision. Rather, the trial court applied the standard of review applicable to voluntary arbitration proceedings: that the reviewing court need only examine the submission together with the award to determine whether the award conforms to the submission. Id., 186; Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 212, 470 A.2d 1219 (1984). The trial court’s vacation of the arbitration award based on the latter standard was erroneous. The trial court is required to conduct a de novo review of the interpretation and application of the law by the arbitrator. American Universal Ins. Co. v. DelGreco, supra.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this decision.

In this opinion the other judges concurred.

       General Statutes § 38-325 provides, in pertinent part: “(a) Except as provided in this section, an insurer does not have, and may not directly or indirectly contract for, any right of subrogation to the proceeds of any cause of action of a recipient of basic reparations benefits against any person or organization not entitled to an exemption from liability under section 38-323.
      “(b) Whenever a person who receives basic reparations benefits for an injury recovers damages, either by judgment or settlement, from the owner, registrant, operator or occupant of a private passenger motor vehicle with respect to which security has been provided under this chapter or from a person or organization legally responsible for his acts or omissions, the insurer is entitled to reimbursement from the claimant to the extent that said básic reparations benefits have been paid, minus an amount which represents the insurer’s contribution toward attorney’s fees for the collection of basic reparations benefits. Such amount shall be computed by multiplying the total amount of such reasonable attorney’s fees and costs, by a fraction, the numerator of which shall be the amount of basic reparations benefits received by the claimant and the denominator shall be the amount of damages recovered by the claimant, less court costs. In no event shall such amount exceed one-third the amount of the basic reparations benefits to be reimbursed to the insurer. The insurer.shall have a lien on the claimant’s recovery for the amount to which he is entitled for such reimbursement; provided no such lien shall attach until such time as the proceeds of such recovery are in the possession and controlof such .claimant.”

       Regs., Conn. State Agencies § 38-175a-6 provides, in pertinent part: “minimum provision for protection against uninsured motorist. (a) Coverage. The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured motor vehicle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies. ‘Uninsured motor vehicle’ includes a motor vehicle insured against liability by an insurer that is or becomes insolvent. . . .
      “(d) Limits of liability. The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been (1) paid by or on behalf of any person responsible for the injury, (2) paid or are payable under any workers’ compensation or disability benefits law, or (3) paid under the policy in settlement of a liability claim. The policy may also provide that any direct indemnity for medical expense paid or payable under the policy or any amount of basic reparations benefits paid or payable under the policy will reduce the damages which the insured may recover under this coverage and any payment under these coverages shall reduce the company’s obligation under the bodily injury liability coverage to the extent of the payment.”

       General Statutes § 52-418 provides, in pertinent part: “(a) Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, finite and definite award upon the subject matter submitted was not made.”

       In this case, the arbitrator did not undertake an examination of the applicable law in reaching its decision. Under these circumstances, American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 530 A.2d 171 (1987), requires the trial court to interpret and apply the relevant law.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Pasquale Pistorio v. Metro Productions, Inc., et al. Leonard Bodell v. Metro Productions, Inc., et al.
    (5830)
    Spallone, Daly and Norcott, Js.
    Argued March 9
    decision released April 19, 1988

      Louis I. Parley, for the appellant (defendant Jeanne Smith).

      Paul C. Webster, with whom, on the brief, was Roy B. Bradrick, for the appellee (plaintiff in the first case).
   Per Curiam.

This is an appeal from the denial of a motion to discharge a judgment lien filed as a result of an Arizona judgment pursuant to the Uniform Enforcement of Foreign Judgments Act. General Statutes § 52-605. This action is distinguishable from an action to discharge an invalid lien under General Statutes § 49-51 which entails the institution of an independent action, the denial of which would be appealable. Guilford Yacht Club Assn., Inc. v. Northeast Dredging, Inc., 192 Conn. 10, 468 A.2d 1235 (1984).

“In both criminal and civil cases, however, we have determined certain interlocutory orders and rulings of the Superior Court to be final judgments for purposes of appeal. An otherwise interlocutory order is appeal-able in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. State v. Bell, 179 Conn. 98, 99, 425 A.2d 574 (1979).” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). The order, in this action, denying the defendant Jeanne Smith’s motion to discharge the judgment lien is interlocutory and does not appear to satisfy either prong of the Curcio test. This appeal was not from a final judgment.

The appeal is dismissed suo sponte.

       General Statutes § 49-51 provides in relevant part: “discharge of invalid LIEN, (a) Any person having an interest in any real or personal property described in any certified lien, which lien is invalid but not discharged of record, may give written notice to the lienor sent to him at his last-known address by registered mail or by certified mail, postage prepaid, return receipt requested, to discharge the lien. Upon receipt of such notice, the lienor shall discharge the lien by sending a release sufficient under section 52-380d, by first class mail, postage prepaid, to the person requesting the discharge. If the lien is not discharged within thirty days of the notice, that person may apply to the superior court for such a discharge, and the court may adjudge the validity or invalidity of the lien and may award the plaintiff damages for the failure of the defendant to make discharge upon request.”


text:
    State of Connecticut v. Michael Patterson
    (4881) (4882) (4883) (4884) (4885) (4886)
    Dupont, C. J., Borden and Foti, Js.
    Argued March 1
    decision released April 19, 1988

      Mark Petty, with whom was A. Paul Spinella, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from the judgments of conviction, after his pleas of guilty, to two counts of robbery in the second degree in violation of General Statutes § 53a-135, and four counts of larceny in the third degree in violation of General Statutes § 53a-124. The defendant claims that the trial court erred (1) in failing, in violation of Practice Book § 711 and in violation of his constitutional right to due process of law, to inform him during the plea' canvass of the maximum possible sentence and the elements of each crime with which he was charged, and (2) in failing to use the correct standard of proof in granting the state’s amended request to correct the transcripts of the plea canvass.

We first address the defendant’s claim regarding the trial court’s failure to apprise him of the elements of the crimes to which he pleaded guilty. The disposition of this issue is controlled by our decision in State v. Loyd, 8 Conn. App. 491, 513 A.2d 193 (1986), cert. denied, 203 Conn. 801, 522 A.2d 293 (1987). In State v. Loyd, we interpreted the constitutional stricture that a plea of guilty must be knowingly and voluntarily made; Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); as requiring not only that there be a voluntary waiver during a plea canvass of the right to a jury trial, the right of confrontation and the right against self-incrimination, but also that the defendant “must be aware of and have an understanding of all of the elements of the crime or crimes with which he is charged . . . State v. Loyd, supra, 494B. Furthermore, Practice Book § 711 (1) requires that a trial court not accept a guilty plea until it is satisfied that the defendant “fully understands . . . [t]he nature of the charge to which the plea is offered . . . .” “The provisions of Practice Book § 711 are mandatory when challenged on direct appeal.” State v. Loyd, supra, 494B.

The record clearly discloses that the defendant was not informed by the trial court during the plea canvass of the essential elements of the crimes with which he was charged. We find error because of this failure to inform the defendant. Since we find error in this regard, we need not address the defendant’s other claim.

There is error, the judgments are set aside and the cases are remanded with direction to permit the defendant to withdraw his guilty pleas and for further proceedings according to law.

       The defendant did not raise this claim in the trial court. Because the error claimed by the defendant involves the violation of a fundamental constitutional right, however, we will consider it for the first time on appeal. State v. Badgett, 200 Conn. 412, 417, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986); State v. Collins, 10 Conn. App. 659, 665, 525 A.2d 135 (1987).


text:
    Cioffoletti Construction v. Alexander Nering
    (5845)
    Spallone, Daly and Norcott, Js.
    Argued March 9
    decision released April 19, 1988

      William M. Laviano, with whom, on the brief, was Charlene LaVoie, for the appellant (defendant).

      Richard A. Smith, for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from the trial court’s judgment for the plaintiff in an action seeking full payment for work the plaintiff did installing a septic system and performing other plumbing work. The defendant claims that the trial court erred (1) in accepting opinion evidence regarding the standards of the state building code where it should have accepted the standards in the code as a matter of law, (2) in awarding attorney’s fees to the plaintiff in excess of 15 percent of the judgment in violation of General Statutes § 42-150aa (b) and in failing to award attorney’s fees to the defendant on his successful counterclaim. We find error in part.

It is well established that appellate courts will not retry facts or pass upon the credibility of. witnesses and the weight to be accorded the evidence. Parkview Paving Co. v. New Haven, 13 Conn. App. 574, 537 A.2d 1049 (1988). Our review in this appeal is limited to a determination of whether the trial court’s judgment was clearly erroneous in this respect or otherwise contrary to law. Id. After our careful review of the record and arguments with respect to the defendant’s first claim of error we find that the trial court did not err.

We next consider the defendant’s claim that the trial court erred in awarding attorney’s fees to the plaintiff and in denying the same to the defendant on his counterclaim. We agree.

General Statutes § 42-150aa establishes the authority of the trial court to award attorney’s fees to a commercial party on behalf of which a judgment has entered on an action on a consumer contract. This statute clearly establishes a limit of 15 percent on the amount of the attorney’s fees which can be awarded to a successful commercial party. In the present appeal, the trial court awarded the plaintiff attorney’s fees in the amount of $500 on a judgment in the amount of $2374.22, where 15 percent of the award is $356.13. The trial court reasoned that “both counsel stipulated on the record that the attorney’s fees requested by each of them were reasonable for the work done on this matter.” The focus of our review, however, is not on the reasonableness of the award of attorney’s fees but on the lawfulness of the award. While the trial court is generally accorded certain discretion in awarding reasonable attorney’s fees the exercise of that discretion may not violate or conflict with the provision of the General Statutes and must conform to the 15 percent limit. See Piantedosi v. Floridia, 186 Conn. 275, 440 A.2d 977 (1982). By exceeding the limits for the award of attorney’s fees under General Statutes § 42-150aa (b) the court exhibited plain error.

Similarly General Statutes § 42-150bb provides for the award of attorney’s fees for consumers who successfully prosecute or defend an action or a counterclaim based upon the contract and sets forth as follows: “Whenever any contract or lease entered into on or after October 1,1979, to which a consumer is a party, provides for the attorney’s fee of the commercial party to be paid by the consumer, an attorney’s fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease. Except as hereinafter provided, the size of the attorney’s fee awarded to the consumer shall be based as far as practicable upon the terms governing the size of the fee for the commercial party . . . .” Clearly, as a matter of law, the defendant was entitled to attorney’s fees of $45.87, or 15 percent of the counterclaim award of $305.78. In denying the defendant this coneededly modest amount, the trial court nonetheless plainly erred.

There is error in part, the judgment is set aside only as to the amount of attorney’s fees awarded on the complaint and counterclaim, and the case is remanded for further proceedings not inconsistent with this opinion.

       “[General Statutes] Sec. 42-150aa. attorney’s fees limited in actions ON CONSUMER contracts OR leases, (a) The holder of any contract or lease entered into on or after October 1,1979, the subject of which is money, property or services intended to be used primarily for personal, family, or household purposes and which contains a provision for payment of attorney’s fees of a creditor, seller or lessor, shall not receive, claim or collect any payment for attorney’s fees (1) for an attorney who is a salaried employee of such holder or (2) prior to the commencement of lawsuit.
      “(b) If a lawsuit in which money damages are claimed is commenced by an attorney who is not a salaried employee of the holder of a contract or lease subject to the provisions of this section, such holder may receive or collect attorney’s fees, if not otherwise prohibited by law, of not more than fifteen per cent of the amount of any judgment which is entered.”


author: O’Connell, J.

text:
    Raymond Wooding et al. v. Anthony Zasciurinskas et al.
    (5834)
    Spallone, O'Connell and Norcott, Js.
    Argued February 2
    decision released April 19, 1988

      Charles G. Albom, corporation counsel, with whom, on the brief, -was Patricia A. Cofrancesco, assistant corporation counsel, for the appellants (defendants).

      Harry S. Eberhart, for the appellees (plaintiffs).
   O’Connell, J.

The defendants appeal from a plaintiffs’ judgment in a dog bite case tried to the court. The plaintiff Michael Wooding, a minor, brought this action through Raymond Wooding, his father and “next friend,” for injuries sustained in an attack by a German Shepard dog owned by the defendant city of New Haven and kept by the defendant police officer Anthony Zasciurinskas.

After service of process, the defendants filed an appearance and interrogatories but never filed an answer. The plaintiffs did not file a motion for default for failure to plead, but instead filed a claim for the trial list. Although the pleadings were not closed, the case was placed on the trial list and assigned for trial. Over the objection and exception of the defendants, the trial court proceeded to hear the matter as a hearing in damages. The extent to which the defendants were allowed to venture into areas normally beyond the scope of a hearing in damages is disputed. Judgment was rendered in favor of the minor plaintiff for $15,350 and of his father for $628.45 as reimbursement for medical expenditures made on behalf of his son.

The claims of error raised in this appeal are (1) that the court erred in going forward with the case as a hearing in damages when the defendants had neither filed an answer nor been defaulted, and (2) that the award of damages was excessive. We find error.

Practice Book § 253 restricts the cases that may be placed on the trial list to two categories: (1) cases in which the pleadings have terminated in an issue of fact; and (2) hearings in damages on default.

The plaintiffs argue that § 253 does not require closing of the pleadings, but only that the pleadings be completed to the stage wherein the issues of fact determinative of the merits of the case are established. We find no authority for this distinction. “Closing the pleadings” is the vernacular for the more cumbersome, albeit in some instances more accurate, terminology of § 253. It is impossible to determine what issues are decisive of the merits without benefit of an answer, and perhaps further pleadings such as special defenses and replies thereto. For example, we do not know, inter alia, whether at commencement of “trial,” the defendants denied ownership of the dog, claimed that the injured plaintiff was teasing or tormenting the dog, or were relying on the doctrine of governmental immunity. An effort by the trial court to resolve the matter of these potential defenses in its memorandum of decision, comes too late in the trial sequence to determine the scope of the issues at the start of trial. Furthermore, the memorandum of decision fails to shed any light upon questions of fact and law which might have been raised if the issue had been joined. We conclude that this case did not warrant assignment to the trial list under the first category of § 253. See Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 70, 504 A.2d 1376, cert. denied, 199 Conn. 807, 808, 508 A.2d 769 (1986).

The second category of cases which may be placed on the trial list are hearings in damages on default. Practice Book § 363 prescribes the procedure for establishing the default of a nonpleading defendant. The plaintiffs did not comply with § 363 by filing a motion to have the defendants declared in default for failure to plead. A defendant who has not filed an answer may not be exposed to a hearing in damages unless he has been defaulted according to this rule. Only after the defendant has been defaulted pursuant to § 363 for failure to plead does § 253 allow the case to be placed on the trial list. See Practice Book § 253. This case was erroneously placed on the trial list. There is no authority under which a trial court may summarily declare that it will conduct a hearing in damages in a case that appears before it by mistake.

Practice Book §§ 367 and 368 delineate the defendants’ rights to contest liability in a hearing in damages after default. Unless the defendant gives the plaintiff written notice of his defenses within ten days after receiving notice from the clerk that a default has entered, the defendant is foreclosed from contesting liability. Because the defendants were never defaulted for failure to plead, the peremptory order of the trial court declaring that the case would be treated as a hearing in damages deprived the defendants of their right to give notice of defenses under §§ 367 and 368.

The plaintiff relies on a line of cases holding that failure of a party to deny an allegation shall be construed as an admission of that allegation. None of those cases, with the exception of those that constituted hearings in damages after properly entered defaults, involved circumstances analogous to those of the present case, where no answer whatsoever had been filed. Thus, these precedents are inapposite.

Upon discovering that the present case did not meet the procedural requisites of Practice Book § 253, the trial court should have stricken the case from the trial list and returned it to the presiding judge to await further motions or pleadings. It was error , for the trial court to hear the matter as a hearing in damages when the defendants had not been defaulted in accordance with the rules of practice.

In view of the disposition of the first claim, we do not reach the second claim of error.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       Practice Book § 253 provides: “Except as otherwise provided in these rules; only those cases in which the pleadings have terminated in an issue or issues of fact decisive of the merits of the case, or an issue of fact to the jury, and hearings in damages on defaults shall be placed on the trial list.” (Emphasis added.)

       The Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 504 A.2d 1376 (1986), case presents the more difficult problem of the trial list eligibility of a complex case in which the pleadings are closed between the principal plaintiff and defendant but side issues remain open on cross claims between defendants, or on third party actions spawned by the original case. Quoting from 1 W. Moller & W. Horton, Connecticut Practice (2d Ed. 1979) p. 324, the court commented that “ ‘[s]ince the rule carefully says “terminated in an issue or issues of fact,” the authors believe a trial list claim can be filed as soon as the pleadings are closed between the plaintiff and the defendant. ’ ’ ’ (Emphasis added.) Alpha Crane Service, Inc. v. Capitol Crane Co., supra, 70.

       Practice Book § 363 provides: “Where either party is in default by reason of failure to comply with Secs. 114, 147, 222, 226 or 229, the adverse party may file a written motion for a nonsuit or default or, where applicable, an order pursuant to Sec. 231. Except as otherwise provided in Sec. 362A, any such motion, after service upon each adverse party as provided by Sec. 120 and with proof of service endorsed thereon, shall be filed with the clerk of the court in which the action is pending, and, unless the pleading in default be filed or the disclosure be made within ten days thereafter, the clerk shall, upon the filing of a short calendar claim by the moving party, place the motion on the next available short calendar list.”

       Practice Book § 367 provides: “In any hearing in damages upon default suffered or after a denial of a motion to strike, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiffs complaint, except such as relate to the amount of damages, unless he has given notice to the plaintiff of his intention to contradict such allegations and of the subject matter which he intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall he be permitted to prove any matter of defense, unless he has given written notice to the plaintiff of his intention to deny such right or to prove such matter of defense.”
      Practice Book § 368 provides: “The notices required by the preceding section shall be given to the plaintiff’s attorney in the manner provided in Sec. 120, the original with proof of service being filed with the clerk.
      “In all actions in which there may be a hearing in damages, notice of defenses must be filed within ten days after notice from the clerk to the defendant that a default has been entered, and in case of the denial of a motion to strike, within ten days from the expiration of the time limited for pleading over.”


text:
    State of Connecticut v. Freddy Payne
    (6208)
    Borden, O’Connell and Foti, Js.
    Argued March 2
    decision released April 5, 1988

      Vincent Turley, for the appellant (defendant).

      James A. Killen, deputy assistant state’s attorney, with whom, on the brief, was Roland Fasano, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from the judgment of conviction, after a jury trial, of the crime of larceny in the second degree in violation of General Statutes § 53a-123 (a) (1).

On June 26, 1981, the owner of a red 1980 Yamaha motorcycle parked it in front of the Acme Shopping Mall in Hamden and entered the mall. When he returned he discovered that his motorcycle was missing but that its ignition system was on the ground where the motorcycle had been parked. He immediately notified the police of the theft. On July 1,1981, the motorcycle was found lying on its side in the driveway of a parking lot on Orchard Street in New Haven. A number of papers bearing the defendant’s name were found next to the motorcycle, including a hospital identification card and a wallet-sized certificate from a motorcycle repair school. Subsequently, two police officers arrived and one of them identified the motorcycle as one which had been involved in a chase a short time earlier. The defendant was arrested and charged by substitute information with “possession of property, to wit: a Yamaha motorcycle stolen in Hamden, Connecticut on June 26, 1981, knowing that it had probably been stolen or believing that it had probably been stolen, in violation of Section 53a-123 (a) (1) of the Connecticut General Statutes.”

The sole claim of error before this court is whether the court erred in failing to instruct the jury that they could find the defendant guilty of the lesser offense of using a motor vehicle without the owner’s permission under General Statutes § 53a-119b.

A defendant is entitled to an instruction on a lesser included offense when: “(1) an appropriate instruction is requested by the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof of the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

The defendant filed a written request to charge which merely asked that the court instruct the jury that using a motor vehicle without the owner’s permission was a lesser included offense of the crime charged. It did not refer to any facts or evidence which would support the request as required by Practice Book § 854. The charge requested, therefore, failed to satisfy the first prong of Whistnant. See State v. Robinson, 14 Conn. App. 40, 43-46, 539 A.2d 606 (1988). The short request to charge did not contain a complete statement of the essential facts which would have justified the court charging the jury in the form requested. State v. Merritt, 11 Conn. App. 628, 528 A.2d 863 (1987). The trial court, therefore, did not commit error in refusing to give the charge requested.

In view of our conclusion that the defendant’s request to charge failed to conform to the requirements of Practice Book § 852 and State v. Whistnant, supra, we will not consider the merits of his claim that using a motor vehicle without the permission of the owner is a lesser included offense of possession of a stolen motor vehicle.

There is no error.

       General Statutes § 53a-119b provides in relevant part: “A person is guilty of using a motor vehicle without the owner’s permission when: (1) He operates or uses, or causes to be operated or used, any motor vehicle unless he has the consent of the owner; or (2) he obtains the consent of the owner to the use of his motor vehicle by fraud or fraudulent means, statement or representations.”

       Practice Book § 854 provides in relevant part: “[R]equests . . . shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply.”


text:
    Triton Associates v. Six New Corporation et al.
    (5138)
    Daly, Norcott and Foti, Js.
    Argued December 9, 1987
    decision released April 19, 1988

      Beverly M. Krieger, for the appellant (named defendant).

      Geoffrey S. Brandner, for the appellee (plaintiff).
   Daly, J.

The plaintiff instituted this action against the named corporate defendant and two individual defendants seeking specific performance of a contract to convey certain real property. After granting the plaintiffs motion for default for failure to appear, the trial court rendered judgment against the defendant. The defendant appeals from the denial of its motion to open the default judgment and from the refusal of the trial court to change that ruling upon reargument. We find no error.

The following facts are relevant to this appeal. The plaintiffs motion for default for failure to appear was granted on July 29,1985. On January 6,1986, a judgment by default was rendered against the defendant.

Shortly thereafter, the defendant filed a motion to open judgment. In support of the motion, the defendant asserted, inter alia, that “[t]he defendant failed to plead for the reason that the defendant is a corporation whose [present and] principal shareholder is Mr. Alan Fishman, who was making efforts to retain counsel” and that “there is a good faith defense in this case and we will proceed with due diligence once the default is opened.” In an affidavit attached to the defendant’s motion, Fishman stated that the default occurred because he “was in the midst of changing attorneys . . . and gathering and organizing [his] corporate affairs, including litigation matters, to bring them to a new [law] firm.”

On April 21,1986, the motion to open judgment was denied, and final judgment was rendered. On May 1, 1986, the defendant filed a “motion to reargue,” seeking to open the judgment. This motion asserted the additional ground “that the default should not have been granted because at the time said default for failure to appear against the defendant corporation was granted, the court had on record a pro se appearance entered on behalf of said defendant.” The relief requested by the motion to reargue was denied on June 16, 1986.

This court’s review of a denial of a motion to open a default judgment is necessarily based on the requirements of General Statutes § 52-212. That statute provides that any judgment rendered upon default may be set aside within four months, upon complaint or written motion of any person prejudiced by the judgment. The aggrieved person must show reasonable cause, or that a good defense existed at the time of judgment, and that the movant was prevented by mistake, accident or other reasonable cause from making the defense. Practice Book § 377 contains similar language. “It is thus clear that to obtain relief from a judgment rendered after a default, two things must concur. ‘There must be a showing that (1) a good defense, the nature of which must be set forth, existed at the time judgment was rendered, and (2) the party seeking to set aside the judgment was prevented from making that defense because of mistake, accident or other reasonable cause.’ ” Pantlin & Chananie Development Corporation v. Hartford Cement & Building Supply Co., 196 Conn. 233, 235, 492 A.2d 159 (1985), quoting Eastern Elevator Co. v. Scalzi, 193 Conn. 128, 131, 474 A.2d 456 (1984); Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 167, 475 A.2d 310 (1984). “[I]n granting or refusing an application to open a judgment, the trial court is required to exercise a sound judicial discretion and its decision will be set aside only for an abuse of such discretion.” Pantlin & Chananie Development Corporation v. Hartford Cement & Building Supply Co., supra, 235.

The defendant argues that a pro se appearance had been entered on its behalf and therefore the judgment by default for failure to appear was improper. The trial court rejected this argument noting, in its articulation, that the defendant had failed to file a “proper appearance.” We conclude that the trial court was correct.

“In Connecticut, a corporation may not appear pro se. Bar Association v. Connecticut Bank & Trust Co., 20 Conn. Sup. 248, 261, 131 A.2d 646 (1957), modified on other grounds, 145 Conn. 222, 140 A.2d 863 (1958). A corporation may not appear by an officer of the corporation who is not an attorney. American Sand & Gravel, Inc. v. Clark & Fray Construction Co., 2 Conn. Cir. Ct. 284, 285, 198 A.2d 68 (1963); Bar Association v. Connecticut Bank & Trust, supra, 262, citing Laskowitz v. Shellenberger, 107 F. Sup. 397, 398 (S.D. Cal. 1952), quoting 9 Cal. Jur. § 15, p. 448 (Sup. Rev. to 1949).” Ero v. M & M Enterprises, Inc., 39 Conn. Sup. 294, 295, 477 A.2d 695 (1984). The trial court therefore properly concluded that the defendant, being incapable of filing a pro se appearance in accordance with our rules of practice, had failed to file a proper appearance and could be defaulted on that basis. See id. The defendant’s reliance on Margaret Maunder Associates, Inc. v. A-Copy, Inc., 40 Conn. Sup. 361, 499 A.2d 1172 (1985), is misplaced, as that case is both procedurally and factually distinguishable from this case. That case involved a plaintiff corporation which properly appeared pro se in the small claims court through representation by its nonattorney president and sole shareholder; see Practice Book § 552. When the case was then transferred to the regular docket of the Superior Court by action of the defendant and when the defendant thereafter filed a motion for nonsuit claiming that a corporation cannot represent itself or act through a person who is not an attorney, the court concluded that, by acting on behalf of a corporation of which she was the sole shareholder, the plaintiff was properly “acting‘in . . . Pier] own cause.’ ” Margaret Maunder Associates, Inc. v. A-Copy, Inc., supra, 365, quoting General Statutes § 51-88 (d) (2). While we need not indicate whether we approve or disapprove of the reasoning or conclusion reached in the Margaret Maunder Associates case, its facts and the court’s reasoning make it inapplicable to our analysis of the facts presented by this case.

We turn now to the defendant’s claim that the default was due to “mistakes, errors and confusion” justifying the opening of the judgment rendered upon the default. The defendant contends that the default was due to the fact that it was changing legal counsel and that all court papers sent to its agent for service (its former attorney) were not passed along to its president or any other officer.

It is the defendant’s burden to show that it was prevented by mistake, accident or other reasonable cause unrelated to its own negligence from appearing in the case prior to rendition of judgment. Manchester State Bank v. Reale, 172 Conn. 520, 525, 375 A.2d 1009 (1977). In its articulation, the court concluded that “[n]o excuse for failure to file a proper appearance for six months was forthcoming that satisfied the court that it should grant [defense counsel’s] motion.” (Emphasis in original.) The trial court’s conclusion that the defendant had failed to discharge its burden of proving absence of negligence was amply supported by the record.

The defendant’s failure to appear and defend was due either to indifference or inattention, or both. The mere negligence or inattention of a party is no ground for vacating a judgment. Parties are not justified in neglecting important legal matters merely because of the press or importance of other business and such negligence is ordinarily not excusable. See Motes v. Karzian Moving & Storage, Inc., 31 Conn. Sup. 540, 542-43, 329 A.2d 624 (1974); Engler Instrument Co. v. Design Productioneering Corporation, 3 Conn. Cir. Ct. 393, 396-97, 215 A.2d 687 (1965).

The defendant’s final argument is that the court erred in refusing to open the default judgment where the defendant faded to receive actual notice of the entry of default or the motion for judgment on the default. In the absence of a proper appearance by the corporation, all motions and notices in this case were properly sent to the defendant’s agent for service. See Practice Book §§ 121,122,123. Although the defendant couches this claim in terms of a due process right to notice and an opportunity to be heard; see Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950); we fail to see how notice to the agent for service is improper where no effective appearance in the case has been made by the defendant and where that failure to appear was due the defendant’s own negligence. We are satisfied that the notice at issue here was, “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the [motions] and afford them an opportunity to present their objections.” Id., 314. The defendant’s argument to the contrary notwithstanding, the failure of its agent for service promptly to forward to the defendant all court documents served upon him by the plaintiff does not make that notice any less reasonably calculated to inform the defendant of the pendency of a motion for default and a later motion for judgment.

There is no error.

In this opinion the other judges concurred.

       The individual defendants have not appealed. Therefore, the only defendant referred to hereinafter is the named corporate defendant.

       The certified trial court record on file with this court contains no appearance form on behalf of the named defendant. The defendant, however, attached to its motion to reargue a copy of the Superior Court computer printout notification of the “status of appearances for this case as of 08/27/85,” which listed the named defendant as a pro se party.

       “[General Statutes] Sec. 52-212. reopening judgment upon default OR nonsuit, (a) Any judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.
      “(b) The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear.”

       Practice Book § 377. “opening judgment upon default or nonsuit. Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which it was rendered or passed, and the case reinstated on the docket on such terms in respect to costs as the court deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear. The court shall order reasonable notice of the pendency of such written motion to be given to the adverse party, and may enjoin him against enforcing such judgment or decree until the decision upon such written motion.”


author: Stoughton, J.

text:
    Reed Patterson v. Szabo Food Service of New York, Inc.
    (5587) (5588)
    Spallone, Bieluch and Stoughton, Js.

      Argued December 15, 1987
    decision released April 19, 1988

      Jeremy G. Zimmermann, with whom, on the brief, was Edward T. Falsey III, for the appellants (plaintiffs).

      Eugene A. Cooney, with whom, on the brief, was Joseph A. La Bella, for the appellee (defendant).
   Stoughton, J.

These are appeals by the plaintiffs from a judgment rendered on a jury verdict for the defendant. We find no error.

The named plaintiff, Reed Patterson, an employee of the intervening plaintiff, United Technologies, Pratt and Whitney Aircraft Division, commenced this action alleging that he had sustained injuries due to the defendant’s negligence when he slipped on a greasy substance on the tile floor in the cafeteria operated by the defendant for Pratt and Whitney. Patterson’s employer filed an intervening complaint to recover payments made under the Workers’ Compensation Act. The incident giving rise to this action occurred on October 27,1980. A substitute complaint was filed on May 2, 1986. The defendant alleged as a special defense that the statute of limitations; General Statutes § 52-584; barred the plaintiffs’ claims made in the substitute complaint. A motion for summary judgment on this ground was denied. The jury returned a verdict for the defendant.

The plaintiffs claim on appeal that the trial court erred (1) in charging the jury that it might find that the defendant was not negligent if it found that the plaintiff would not have fallen, had he heeded the defendant’s warning signs, and (2) in sustaining the defendant’s objection to the plaintiffs’ attempt to cross-examine a witness pursuant to General Statutes § 52-178. The defendant, in accordance with Practice Book § 4013 (a) (1), presented for review an alternate ground upon which the decision .may be affirmed. The defendant claims that the trial court erred in ruling that the substitute complaint did not state a new cause of action and, consequently, was not barred by the statute of limitations. We agree, and hence do not reach the plaintiffs’ claims of error.

The plaintiff Patterson alleged that on October 27, 1980, while in line at the cafeteria at work, he slipped on a greasy substance on the tile floor. He maintained that the defendant was responsible for daily maintenance of the floor, that the defendant should have known that it was dangerous owing to slippery food deposits, and that the defendant had actual or constructive notice of the conditions. The action was begun by him within the two years set forth in General Statutes § 52-584. In his original complaint, he alleged that the defendant was negligent in the following respects: (1) in failing to clean the floor properly in the area of the food line when it knew or should have known of the dangerous condition; (2) in failing to provide sufficient maintenance employees to keep the floor clean and free of slippery food deposits; (3) in violating federal and state occupational safety acts; and (4) in failing to warn the plaintiff Patterson of the dangerous and defective condition of the floor.

On April 28,1986, outside of the limitation provided by § 52-584 for commencement of an action for negligence, a substitute complaint was filed. In the substitute complaint, the plaintiffs specified that the defendant was negligent in seven respects, each of which was materially different from any of the four specifications of negligence in the original complaint. In the substitute complaint, it was alleged that the defendant was negligent (1) in that it had installed or maintained a highly polished and slippery terrazzo floor and maintained a self-service food dispensary where food was continually spilled on that floor, (2) in that it knew or should have known that the highly polished terrazzo was slippery and that food was being spilled on it, (3) in that using the self-service marketing method of the cafeteria and installing or maintaining a terrazzo floor therein created a defective and dangerous condition, (4) in that it was aware that when food was spilled on the terrazzo floor it became more slippery and unreasonably dangerous, (5) in that it knew or should have known that food was continually spilled on the terrazzo floor thereby making it more hazardous and dangerous but nevertheless did not change the material on the floor or install nonskid mats or change from self-service distribution of food or apply any abrasives on the floor or take any other precautions to protect the plaintiff Patterson and other customers, (6) in that spilling of food on said terrazzo floor was a recurring condition of which defendant knew or should have known but failed to remedy, and (7) that it used the self-service food dispensing system which required the handling of food by customers and resulted therefore in the frequent dropping of food onto the terrazzo floor which created a slippery and dangerous condition and that it knew or should have known that the nature of the self-service cafeteria, the general condition of the terrazzo floor and the pattern of conduct of customers would result in recurring spillage and in slippery and hazardous conditions.

As a special defense, the defendant asserted that the plaintiffs’ claims were barred by the statute of limitations and later moved for summary judgment. The trial court denied this motion on the ground that the amended complaint merely amplified what was alleged in the original complaint and'that the identity of the cause of action remained essentially the same. We disagree.

It is true that a party may properly amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same. Bielaska v. Waterford, 196 Conn. 151, 154, 491 A.2d 1071 (1985). A new cause of action is barred by the running of the statute of limitations. In order to avoid this result, the substitute complaint must be capable of being related back to the original complaint. This will be so unless it alleges a new cause of action, in which event it will speak as of the date when it is filed. Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285, 355 A.2d 253 (1974). A cause of action must arise from a single group of facts. Gallo v. G. Fox & Co., 148 Conn. 327, 330, 170 A.2d 724 (1961). “ ‘ “A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. . . . ‘A right of action at law arises from the existence of a primary right in the plaintiff, and in invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action.’ ” ’ ” (Citations omitted.) Jonap v. Silver, 1 Conn. App. 550, 556, 474 A.2d 800 (1984), quoting, Saphir v. Neustadt, 177 Conn. 191, 207, 413 A.2d 843 (1979). Where an entirely new and different factual situation is presented, a new and different cause of action is stated. Gallo v. G. Fox & Co., supra, 330.

We agree with the defendant that the substitute complaint presents a new and different factual situation from that stated in the original complaint and that it therefore states a new and different cause of action. Although both complaints sound in negligence, the substitute complaint does not merely expand and amplify the allegations made in support of his cause of action. The original cause of action was based upon a claim that the defendant failed to clean the floor and keep it free of food deposits. The new cause of action is based upon a claim that the defendant installed or maintained a highly polished and slippery terrazzo floor and employed a method of food distribution which created a dangerous condition on the slippery floor.

Because the trial court ought to have granted the motion for summary judgment, we affirm the judgment for the defendant and do not reach the plaintiffs’ claims of error.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 52-584. limitation of action for injury to person OR property. 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, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, 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, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”


author: Bieluch, J.

text:
    Gloria Dichello Hall, Executrix (Estate of John F. Dichello) v. Dichello Distributors, Inc., et al.
    (5413)
    Borden, Bieluch and O’Connell, Js.
    Argued November 13, 1987
    decision released April 19, 1988

      Jules Lang, for the appellant (named defendant).

      J. Patrick Ovington, with whom, on the brief, was Taggart D. Adams, for the appellant (defendant James J. Dichello).

      John C. Yavis, Jr., with whom were George A. Dagon, Jr., and Geraldine A. Lupoli, for the appellee (plaintiff).
   Bieluch, J.

The named defendant and the defendant James J. Dichello (hereinafter defendants) appeal from the trial court’s postjudgment order continuing an injunction which had been part of the original judgment. That judgment, in favor of the plaintiff, was previously upheld on appeal. See Hall v. Dichello Distributors, Inc., 6 Conn. App. 530, 506 A.2d 1054, cert. denied, 200 Conn. 807, 512 A.2d 230 (1986) (Dichello I). The defendants claim (1) that the trial court lacked jurisdiction to entertain the plaintiff’s motion to enforce the prior judgment and to grant injunctive relief, (2) that, even if the court did have jurisdiction, it erred in granting the injunction without evidence or testimony in support thereof, and (3) that the court erred in granting an injunction absent such a request in the plaintiff’s motion to enforce judgment. We find no error.

The history of this case is set forth in Dichello I, supra. A summary of the undisputed facts is necessary for our consideration of the issues raised in this appeal. The plaintiff is the executrix and the trustee of two testamentary trusts under the will executed on December 26,1975, by her late father, John F. Dichello, who died in 1979. On April 2, 1984, the Probate Court for the district of Wallingford revoked a prior decree admitting to probate an earlier will of September 2, 1975, and admitted the later will naming the plaintiff as sole fiduciary and trustee. It thereby revoked the previous authority of John F. Dichello, Jr., the decedent’s son, and Burton L. Zempsky, who had until then acted as cofiduciaries under the prior will of the decedent. Since the Probate Court’s decree of April 2,1984, the plaintiff has administered the estate and trusts of her late father.

The John F. Diehello estate and trusts together own 245 shares of common stock of the defendant Diehello Distributors, Inc. (DDI), a beer distributorship. These 245 shares (fiduciary shares) constitute a 50 percent interest in the issued and outstanding stock of DDL The defendant James J. Diehello, the decedent’s brother, holds the remaining equal interest in the corporation. In addition, there are forty-two shares of treasury stock held by the corporation. The decedent and the defendant James J. Diehello were cofounders of DDI and each always owned a one-half interest in the business.

The bylaws of DDI contain a restriction that only stockholders of record may qualify as directors of the company. By virtue of this limitation, the two Diehello brothers as sole stockholders were the only directors until the decedent’s death in 1979. Shortly after the death of John F. Diehello, the initial fiduciaries, John F. Diehello, Jr., and Burton L. Zempsky, registered the fiduciary shares in their names and were elected to the board of directors of DDL They, along with the defendant James J. Diehello, who was also president of DDI, have continued to serve as directors since 1979. When the Probate Court revoked the appointment and authority of the initial fiduciaries in 1984, Zempsky refused to deliver the certificates for the fiduciary shares to the plaintiff. Zempsky, acting as general manager of DDI, also refused to register the fiduciary shares on DDI’s stock records in the plaintiff’s name, until after the dismissal by the Superior Court of his probate appeal was upheld by this court and certification to the Supreme Court was denied. Zempsky’s Appeal from Probate, 6 Conn. App. 521, 506 A.2d 1050, cert. denied, 200 Conn. 808, 512 A.2d 231 (1986). The defendant’s refusal to recognize the plaintiff’s status as a fiduciary shareholder, together with the plaintiff’s concern that transfer of the forty-two shares of treasury stock would reduce her one-half interest in the business, prompted her to commence a stockholder’s action in September, 1984.

In her complaint, the plaintiff sought several remedies. Chief among them were these three: (1) an order compelling registration and delivery to her of the 245 fiduciary shares; (2) an order for a meeting of shareholders to elect qualified directors; and (3) an injunction, pending the election of qualified directors, to prevent the defendants from impairing the plaintiff’s 50 percent stock ownership. This third claim for relief was immediately addressed by an ex parte temporary injunction issued by the trial court, Foti, J., on September 13, 1984.

After a trial, the court, Fracasse, J., on May 24,1985, rendered judgment for the plaintiff on all counts and ordered detailed relief on each of the three claims specified. In particular, the defendants were “enjoined from directly or indirectly, voluntarily or involuntarily, (1) amending the certificate of incorporation or the bylaws of DDI . . . and (4) transferring or encumbering treasury shares of DDI,” pending a special meeting of shareholders which was ordered for June 26,1985, “for the purpose of electing directors.” The injunctive remedies fashioned by the trial court were “designed to protect [the plaintiffs] rights as a shareholder and to preserve the corporate and financial status quo.” Dichello I, supra, 533.

A conditional stay of execution was granted pending the appeal in Dichello I. After a hearing on the issue of damages, which the court denied as an unsupported claim for counsel fees, the court, on July 11,1985, rendered a supplemental judgment granting a stay of execution, but ordering the immediate delivery to the plaintiff of the corporate shares “which are in issue in this case.” The court also reissued and extended its previous injunctive orders until the further order of the court because of the stay of execution pending appeal. None of the parties moved for a review of the stay order. The trial court’s judgment was affirmed by this court on March 25,1986. Dichello I, supra. Thereafter, on June 18, 1986, our Supreme Court denied certification of appeal. Dichello I, supra.

On July 23,1986, the trial court held a hearing to lift the stay of execution imposed pending the determination of the appeal, and, by agreement of the parties, reset the new date of July 30, 1986, for the special meeting of shareholders which had been previously ordered to take place on June 26, 1985, as part of the original judgment. A partial satisfaction of that judgment was then filed in court evidencing delivery to the plaintiff of the 245 fiduciary shares in compliance with the court’s judgment of July 11, 1985.

At the July 30,1986 special corporate meeting, the plaintiff presented, and voted her 245 shares in favor of, the following resolution: “Resolved: That James J. Dichello and Gloria Dichello Hall be elected as the directors of the corporation to serve until the next annual meeting of shareholders and until their respective successors have been elected and qualified.” James J. Dichello, who presided at the meeting, voted his 245 shares against the resolution and, without offering any alternative resolution or nominations, announced that “no one had received a majority of the votes, and no one had been elected a director.” He then immediately adjourned the meeting which had lasted fifteen minutes.

On August 4, 1986, the plaintiff filed a motion to enforce the May 24, 1985 judgment, as modified by order of the trial court on July 23,1986, expressly mandating that the July 30,1986 meeting be held “for the purpose of electing directors.” The plaintiffs motion requested that the court: “(i) order James J. Dichello to reconvene the special meeting of shareholders as though it were continuing on July 30,1986 and to vote his 245 shares for the election of himself and Gloria Dichello Hall as the directors of the corporation and that, pending the reconvened special meeting, James J. Dichello be enjoined from transferring any of his 245 shares of the corporation’s stock; (ii) grant stock further relief as the court may deem equitable in the circumstances; and (iii) hold James J. Dichello in civil contempt for his disregard of the court’s judgment.” (Emphasis added.) In a supporting memorandum, the plaintiff argued that “[pjending the reconvened meeting, all previous interim injunctive orders should be reinstated in order to preserve the status quo.” (Emphasis in original.)

After a hearing on the plaintiffs motion and a review of the documentary evidence describing the July 30, 1986 shareholders’ meeting, the trial court on August 5, 1986, found that “the manner in which the meeting was conducted was not conducted in the spirit in which the court rendered the judgment and does not promote the true nature of the judgment. . . . [I]t may be viewed as a way of just frustrating the election of directors, and the court has a concern in that regard.” The court’s ruling on the plaintiff’s motion was as follows: “In order to preserve the integrity of the judgment, the court grants the motion to enforce the judgment to this extent only, the court continues the judgment enforcing that portion of the judgment and orders, as enforcement of the judgment, that the defendants are continued to be enjoined from directly or indirectly, voluntarily or involuntarily, transferring or encumbering treasury stocks of DDL That will freeze the respective shareholdings.”

DDI and James J. Dichello have appealed from the court’s “supplemental judgment.” The two nonappealing defendants, Burton L. Zempsky and John F. Dichello, Jr., together with the defendant James J. Dichello, still hold over as directors. The defendants challenge the trial court’s jurisdiction, and also claim error in the supplemental order fashioned by the court.

The defendants’ first claim is that the trial court lacked jurisdiction to consider the plaintiff’s postjudgment motion to enforce the original judgment. The defendants argue that the trial court’s decree has been complied with completely, and that the plaintiff was given an opportunity to be elected to the board of directors at the July 30, 1986 special meeting of stockholders. The defendants maintain that the plaintiffs motion appears to be an attempt to open and modify the judgment, thereby giving her a place on the board of directors of DDL We disagree.

Contrary to the defendants’ assertion that the original judgment had been “complied with completely” when the July 30, 1986 meeting of shareholders took place, the trial court did not accept such literal compliance with its order for a stockholders’ meeting as fulfillment of its injunction. In its decision on the plaintiff’s motion to enforce the judgment, the court found that “the manner in which the meeting was conducted . . . [did] not promote the true nature of the judgment.” The defendants were expressly “enjoined from directly or indirectly” engaging in the prohibited acts. Even without such specific injunctive orders, an injunction may be violated indirectly, just as if it had been ■violated directly, and “one cannot escape punishment upon the ground that he did not violate the letter, if he violated the manifest spirit of the injunction.” Deming v. Bradstreet, 85 Conn. 650, 658, 84 A. 116 (1912); International Brotherhood v. Commission on Civil Rights, 18 Conn. Sup. 426, 430 (1954). An order to conduct a meeting of shareholders for specified purposes may require parties “to vote their stock to carry out those purposes.” Weil v. Beresth, 154 Conn. 12, 22, 220 A.2d 456 (1966). Although the trial court declined to expressly direct James J. Dichello to vote his shares for the plaintiff’s proposed resolution, the court did find that the “spirit” of its injunction had notbeen heeded.

The trial court did not lack jurisdiction to enforce its original judgment. The court had continuing jurisdiction and authority to enforce its judgment of May 24, 1985, by acting on the plaintiff’s motion for such enforcement. When the trial court, after the defendants’ unavailing appeal, lifted the stay of execution on July 23,1986, and ordered that the shareholders meet on the agreed date of July 30, 1986, the court’s original judgment, including its order for a meeting on June 26,1985, then expired, was revived. The court’s May 24,1985 judgment became immediately enforceable according to its complete terms. Compliance with the provision of the judgment pertaining to the transfer to the plaintiff and registration of the fiduciary shares in her name was made a condition to the grant of the stay of execution on July 11,1985, at which time the injunctive orders were reaffirmed pending the defendant’s appeal. The mandatory injunction ordering a special meeting of shareholders “for the purpose of electing directors” continued until its validity was determined on appeal. See Dichello I, supra. Until such time as this injunction was satisfied, the various ancillary injunctive orders, including the prohibition against transfer of the forty-two treasury shares, continued in effect to protect the status quo. Id., 533.

Courts may issue postjudgment remedial orders to enforce their permanent injunctions. For example, courts have the jurisdiction to hold offending parties in civil contempt pending compliance. See, e.g., Cologne v. Westfarms Associates, 197 Conn. 141, 496 A.2d 476 (1985). “Furthermore, in dealing with judgments that decree injunctive relief . . . ‘courts have inherent power to change or modify their own injunctions where circumstances or pertinent law have so changed as to make it equitable to do so.’ Adams v. Vaill, 158 Conn. 478, 482, 262 A.2d 169 (1969); Collens v. New Canaan Water Co., 155 Conn. 477, 494, 234 A.2d 825 (1967).” Department of Health Services v. CHRO, 198 Conn. 479, 487, 503 A.2d 1151 (1986). Courts have in general the “power to fashion a remedy appropriate to the vindication of a prior . . . judgment.” Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 563, 468 A.2d 1230 (1983). “Having found noncompliance, the court, in the exercise of its equitable powers, necessarily had the authority to fashion whatever orders were required to protect the integrity of [its original] judgment.” Id., 563-64; see Gentile v. Ives, 163 Conn. 281, 282, 303 A.2d 720 (1972) (general power of the superior court to enforce its own judgments).

The defendants argue that the four month limitation of Practice Book § 326 operated to deprive the trial court of jurisdiction. Section 326, by its terms, does not apply to “cases in which the court has continuing jurisdiction.” Because a permanent injunction necessarily requires continuing jurisdiction, § 326 is inapplicable to such a judgment. Conservation Commission v. Price, 5 Conn. App. 70, 72-73, 496 A.2d 982 (1985). The trial court did not lack jurisdiction to enforce its prior judgment by continuing the injunctive relief it had originally ordered.

The defendants also maintain that the court erred in granting the injunction without supporting evidence or testimony in the record for such a remedy. There is no merit to this claim.

The defendants themselves supplemented the record before the court by furnishing sufficient evidence to support the court’s finding of noncompliance and its continuance of the injunction in enforcement of its judgment. Filed with the defendants’ objection to the plaintiff’s motion to enforce judgment, and incorporated therein by reference, were the following documents relating to the shareholders’ meeting held on July 30, 1986: (1) the corporate minutes of that special meeting; (2) notice of that meeting; (3) the agenda for that meeting; (4) a list of shareholders of record with their holdings; (5) the resolution introduced by the plaintiff for the election of James J. Dichello and Gloria Dichello Hall as corporate directors; (6) the ballot of the defendant James J. Dichello voting his 245 shares against the resolution; (7) the ballot of the plaintiff voting her 245 shares for the resolution; and (8) a copy of the section of the bylaws of DDI relative to the qualification of directors. At the hearing on the plaintiffs motion, the parties and the court relied on and referred to these documents. Since this material was submitted by the defendants, they cannot now maintain that the court erred in relying upon it in rendering its decision. Shetucket Plumbing Supply, Inc. v. Solar Processes, Inc., 3 Conn. App. 504, 506, 490 A.2d 93 (1985).

Finally, the defendants claim that the trial court erred in granting an injunction absent such a request in the plaintiffs motion to enforce judgment. As a procedural matter, there is no requirement that a motion addressed to the enforcement or modification of an injunction should again require allegations or proof of irreparable harm. Adams v. Vaill, supra, 484. An enforcement proceeding “ ‘does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy. . . .' Maggio v. Zeitz, 333 U.S. 56, 69, 68 S. Ct. 401, 92 L. Ed. 476 (1948).” Cologne v. Westfarms Associates, supra, 148.

The plaintiffs motion asked the court, inter alia, to “grant such further relief as the court may deem equitable in the circumstances.” Having found noncompliance with its injunctive order, “the court, in the exercise of its equitable powers, necessarily had the authority to fashion whatever orders were required to protect the integrity of [its original] judgment.” Connecticut Pharmaceutical Assn., Inc. v. Milano, supra, 563-64.

There is no error.

In this opinion the other judges concurred.

       Article II, § 1, of the bylaws of DDI provides: “The stock, property, business and affairs of this corporation shall be under the care and management of not less than three nor more than eleven directors who shall he stockholders of record, and who shall be chosen annually at the annual meeting of the stockholders. The term of office of each director shall be for one year and thereafter, if a successor to him is to be chosen, until his successor has been elected and qualified.” (Emphasis added.)

       The right of the defendants Zempsky and Dichello, Jr., after their transfer of the fiduciary shares to the plaintiff, to continue as directors contrary to the requirement of Article II, § 1, of the corporate bylaws that directors “shall be stockholders of record” has not been raised in this appeal. We therefore do not address this question.

       The plaintiff brought suit against the following defendants: Dichello Distributors, Inc., James J. Dichello, Burton L. Zempsky and John F. Dichello, Jr. The defendant John F. Dichello, Jr., did not oppose the plaintiffs claims. He was a defendant in a technical sense only due to his office as secretary of DDL

       The Connecticut Stock Corporation Act, General Statutes §§ 33-282 through 33-418o, inclusive, contains the following provisions relative to the number and qualifications for directors: “[General Statutes] Sec. 33-314. NUMBER, ELECTION, CLASSIFICATION, TERM, QUALIFICATION, (a) A Corporation shall have three directorships unless a greater number is set as provided in subsection (b) of this section and except that, where all the issued and outstanding shares are owned beneficially and of record by less than three shareholders, the number may be less than three but not less than the number of shareholders. . . . (f) Directors need not be residents of this state or shareholders of the corporation unless the bylaws so require. The bylaws may prescribe other qualifications for directors.”

       Practice Book § 326 provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.” (Emphasis added.)


text:
    Inez M. Little v. Enoch Little
    (5571)
    Daly, Norcott and Foti, Js.
    Argued December 9, 1987
    decision released April 19, 1988

      Andre M. Kocay, for the appellant (defendant).

      Judith Dixon, for the appellee (plaintiff).
   Daly, J.

In this appeal, the defendant, whose marriage to the plaintiff had been dissolved, claims that the trial court erred in treating the plaintiffs subsequent motion for contempt as a motion permitting modification. We find error.

The marriage of the parties was dissolved on October 25,1985. The judgment provided, inter alia, a division of certain proceeds of a motor vehicle accident case. “The Plaintiff shall receive from the Defendant the sum of $140,000.00 and one-half of the remainder of the settlement due Defendant from the excess insurance carriers after payment for attorney’s fees, costs and expenses of the settlement. The Defendant shall retain any and all interest earned on the settlement with the excess carriers.” (Emphasis added.) There was no periodic alimony provided in the judgment.

On February 7,1986, the defendant received the balance of the motor vehicle accident settlement and, in accordance with the trial court’s judgment, paid the plaintiff her share of the settlement. In April, 1986, the plaintiff filed a motion for contempt to obtain an accounting and damages suffered from delay in payment. Upon reviewing the accounting, the plaintiff reclaimed her motion for contempt on October 6,1986, alleging that she had been erroneously charged $6129 in attorney’s fees for distribution to the defendant of interest of $18,387. The trial court ruled that “the plaintiff should not be charged for attorney fees computed on the interest earned on the settlement.” The defendant appealed from the trial court’s ruling.

As a preliminary matter, we note that a trial court has broad discretion in domestic relations cases. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Flynn v. Flynn, 7 Conn. App. 745, 746, 510 A.2d 1005 (1986). A reviewing court allows every reasonable presumption in favor of the correctness of the trial court’s ruling. Gallo v. Gallo, 184 Conn. 36, 44, 440 A.2d 782 (1981). This court has articulated the standard for reviewing decisions of the trial court in domestic relations cases in Palazzo v. Palazzo, 9 Conn. App. 486, 488, 519 A.2d 1230 (1987). In Palazzo, we stated: “Our review of such decisions is confined to two questions: (1) whether the court correctly applied the law, and (2) whether it could reasonably have concluded as it did.” Id. Since we find that the trial court incorrectly applied the law, we forego an examination of the second prong.

In the present case, the trial court modified the property settlement in not computing attorney fees of the insurance settlement in the award. This was not a case where the trial court effectuated the contempt order, rather it was a case in which there was a change in the property settlement. In Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980), our Supreme Court held: “By its terms [General Statutes § 46b-86 (a)] deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party under General Statutes § 46b-81.” (Footnote added.) The trial court, in this action, clearly applied the law pertaining to dissolution and property settlement incorrectly in awarding the plaintiff additional monies which were outside the property division.

There is error, the judgment on the plaintiffs motion for contempt is set aside and the case is remanded with direction to render judgment for the defendant in accordance with this opinion.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 46b-86. (Formerly Sec. 46-54). modification of alimony ok support orders and judgments, (a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law.”

       “[General Statutes] Sec. 46b-81. (Formerly Sec. 46-51). assignment of property and transfer of title, (a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.”


author: Dupont, C. J.

text:
    Emma Voight et al. v. Mark Selman et al.
    (4734)
    Dupont, C. J., Stoughton and Foti, Js.
    Argued November 4, 1987
    decision released April 19, 1988

      Augustus R. Southworth III, for the appellant (named defendant).

      Joseph A. Mengacci, for the appellee (named plaintiff.
   Dupont, C. J.

This is an appeal from the judgment rendered on a jury verdict in an action for damages stemming from an automobile accident. The action was brought in four counts by Emma Voight and her husband, Richard F. M. Voight, against the defendants, Mark A. Selman, Edwin E. Drew, Jr., and Edwin E. Drew. The plaintiffs alleged personal injuries, loss of consortium, and financial losses arising from a collision between an automobile driven by the named plaintiff, Emma Voight, and two other automobiles, one driven by Selman and the other driven by Edwin E. Drew, Jr. A verdict was returned in favor of Emma Voight (hereinafter the plaintiff) on the counts alleging personal injuries. The named defendant, Mark A. Selman (hereinafter the defendant), appeals from the judgment rendered on that verdict.

The defendant claims that the trial court erred (1) in restricting his cross-examination of one of the plaintiffs witnesses, (2) in admitting evidence and charging the jury on the plaintiff’s alleged permanent injuries, (3) in charging the jury on an alleged aggravation of a preexisting condition, and (4) in refusing to set aside the verdict as excessive.

The gravamen of the defendant’s first claim of error is that he should have been allowed to cross-examine a police officer, who had been called by the plaintiff as a witness, on the contents of an accident report which the officer had prepared and which the plaintiff had introduced into evidence. Before addressing the merits of this claim, we initially consider whether, as the plaintiff contends, our review of the issue is limited to ascertaining whether there has been “plain error.” Practice Book § 4185; Atlantic Richfield v. Canaan Oil Co., 202 Conn. 234, 250, 520 A.2d 1008 (1987). The plaintiff asserts that the defendant did not alert the trial court to this claim with sufficient specificity in his motion to set aside the verdict. In that motion, the defendant stated, inter alia, that the verdict should be set aside “[bjecause of errors in evidentiary rulings.”

In order to preserve full review of a trial ruling assigned as error in an appeal from a judgment rendered upon a jury verdict, it is incumbent upon the appellant to move to set aside the verdict. Small v. South Norwalk Savings Bank, 205 Conn. 751, 758, 535 A.2d 1292 (1988). Where this is not done, we are restricted in our review of that claim of error to the standard of plain error. Pietrorazio v. Santopietro, 185 Conn. 510, 514-15, 441 A.2d 163 (1981). The purpose of this rule is “to provide an opportunity for the trial court to pass upon claims of error which may become the subject of an appeal.” Id.

The defendant in this case did move to set aside the verdict but did not call the trial court’s attention to any particular error in an evidentiary ruling. Numerous evidentiary rulings are made in the course of a trial to which objections are made and overruled, and exceptions taken. A sweeping statement in a motion that the verdict should be set aside because of errors in evidentiary rulings does not provide the trial court with any opportunity to rule upon a claim of error which later becomes the subject of an appeal. Mozzer v. Bush, 11 Conn. App. 434, 437, 527 A.2d 727 (1987); Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 243 n.3, 522 A.2d 829 (1987). If a motion to set aside a verdict states only that errors in evidentiary rulings were made and that motion is accompanied.by neither a brief nor oral argument citing particular claimed errors, we hold that appellate review is limited to the standard of plain error. To hold otherwise would be to require a trial court to determine for itself what undefined and unspecified judicial error in an evidentiary ruling will prove on appeal to be the needle in the trial haystack.

When reviewing for plain error, we look only for “ ‘manifest injustice amounting to plain error under all the circumstances.’ Valley v. Fazzina, 187 Conn. 423, 428, 446 A.2d 1068 (1982).” Small v. South Norwalk Savings Bank, supra, 760. Applying that standard in this case, we can find no error that “is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); Mozzer v. Bush, supra, 438.

The defendant next argues that the trial court erred in failing to exclude testimony regarding the plaintiff’s alleged permanent injuries and in charging the jury with regard to such permanent injuries. The defendant bases this argument on his contention that the plaintiff failed to disclose, prior to trial, either the identity of the two physicians who testified as to her permanent injuries or their ratings as to the degree of her permanent impairment. We decline to review this issue as it relates to one of the physicians, an ear, nose and throat specialist, who testified as to permanent impairment of the plaintiff’s hearing function. The record reveals that the defendant never objected to his testimony on the basis of the plaintiff’s failure to disclose either his identity or his evaluation of the permanency of the plaintiff’s hearing loss. See Aetna Life & Casualty v. Miscione of Connecticut, Inc., 193 Conn. 435, 437, 476 A.2d 577 (1984).

The testimony of the other doctor, an orthopedic surgeon, was admitted over the defendant’s objection. His testimony was that the plaintiff incurred a 65 percent loss in the use of her spine. The defendant’s sole objection to this testimony was that the plaintiff had not provided him with any information concerning the doctor’s evaluation of the plaintiff’s permanent disability prior to the trial. The defendant argues now that, in the absence of any such disclosure, this testimony constituted prejudicial surprise.

After the defendant voiced his objection, the jury was excused and the trial court questioned the witness and the attorneys with regard to the pretrial disclosure, if any, of the plaintiff’s disability rating by the surgeon. The questioning disclosed that the doctor had never prepared a written report containing such a rating, even though the plaintiff’s lawyer had twice requested that he provide one.

Practice Book § 232 imposes a continuing duty upon a party to disclose to the other side new or additional material or information previously requested when the circumstances are such that a failure to provide further disclosure would constitute a knowing concealment. Sanctions, including the exclusion of evidence, may be imposed when that duty is breached. Practice Book § 231. Whether to employ the sanctions of Practice Book § 231 and exclude the evidence not disclosed lies within the discretion of the trial court. Kemp v. Ellington Purchasing Corporation, 9 Conn. App. 400, 405, 519 A.2d 95 (1986).

In this case, the plaintiff had claimed permanent injuries to her spine from the outset. Permanency was alleged in her complaint. The orthopedic surgeon's identity as an examining physician had been revealed by the plaintiff in answer to the defendant’s interrogatories approximately four years prior to the trial. Through the same interrogatories, the defendant was put on notice of the nature of the plaintiff’s permanent injuries. Although the defendant knew these facts for a substantial length of time, he nonetheless failed to pursue any avenues, such as a deposition of the surgeon, by which he might have secured further information. The defendant was in possession of a medical authorization directed to the surgeon and signed by the plaintiff which the defendant could have used to obtain additional information. Moreover, the defendant could have, but did not, request a continuance in order to have the plaintiff examined by a physician of his choice. See Kevin Roche-John Dinkeloo Associates v. New Haven, 205 Conn. 741, 748, 535 A.2d 1287 (1988). We conclude that the trial court did not abuse its discretion in overruling the defendant’s objection and in allowing the witness to testify. Cf. Sturdivant v. Yale New Haven Hospital, 2 Conn. App. 103, 476 A.2d 1074 (1984). This conclusion is dispositive of the defendant’s claim that the trial court erred in charging the jury on the permanency of the plaintiff’s injuries.

The defendant’s third claim relates to the court’s jury charge on an alleged aggravation of a pre-existing condition. The plaintiff’s complaint alleged that “she had suffered and was treated for a prior heart condition and immediately following said accident, she had multiple episodes of chest pain which required her to take medication which made her extremely apprehensive.” The allegation of the plaintiff can be read as an assertion that the plaintiff, as a result of the defendant’s negligence, suffered an aggravation of a pre-existing heart condition, as manifested by multiple episodes of heart pain. The defendant claims that insufficient evidence was introduced to support this allegation, and that the court, therefore, should not have charged the jury that the plaintiff was entitled to damages for the claim if she proved that the defendant’s negligence was the proximate cause of the aggravation.

Although the defendant excepted to the charge, he has not complied with Practice Book § 4065 (d) (2) which requires that when an error is claimed in the charge to a jury, “the brief or appendix shall include a verbatim statement of all relevant portions of the charge and all relevant exceptions to the charge. ” (Emphasis added.) The defendant, in his brief, has quoted a portion of the charge, but has not set forth any exception to the charge in either his brief or an appendix thereto. Because the defendant has failed to comply with the mandatory procedure established by § 4065 (d) (2), we decline to review this claim. Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 571-72, 450 A.2d 351 (1982); Echols v. Balck, 9 Conn. App. 620, 621, 520 A.2d 651 (1987).

The defendant’s remaining claim of error is that the trial court erred in refusing to set aside the verdict as excessive because the jury should not have been permitted to consider evidence as to either the aggravation of her pre-existing condition or the permanency pertaining to the injuries to her cervical spine and hearing function. In view of the disposition of the defendant’s other claims of error, this claim has no merit.

There is no error.

In this opinion the other judges concurred.

       In any case, a review of the transcript and exhibits reveals that there was evidence of the causal relation between the injury and the physical condition of the plaintiff. Although the defendant argues that the testimony of a cardiologist who examined the plaintiff was inadequate to support the plaintiffs allegation of an aggravation of a pre-existing condition, there was other evidence to support the causal connection. That evidence consisted of the testimony of an orthopedic surgeon and hospital records, including a discharge summary of a third doctor which stated that the plaintiff had multiple episodes of chest pain and that her complaints of such pain persisted throughout her hospitalization. Taken together, the testimony of the doctors and the hospital records were sufficient for the court to have charged as it did.