text:
    John R. Ivimey, Sr. v. Town of Watertown et al.
    (11276)
    Daly, Landau and Freedman, Js.

      Argued January 14 —
    decision released March 30, 1993

      JohnR. Ivimey, Sr., pro se, the appellant (plaintiff).

      Charles D. Staujfacher, for the appellees (defendants).
   Daly, J.

The plaintiff instituted this action under the Federal Civil Rights Act, 42 U.S.C. § 1983, for false arrest against the defendants, Officer Brian O’Neill and the town of Watertown (town). The plaintiff appeals from the trial court’s order dismissing the allegations with respect to the town and its judgment in favor of O’Neill on the merits. He claims that the trial court (1) should have allowed him to file subsequent pleadings after the defendants filed their answer, (2) improperly denied his motion for a continuance, (3) improperly denied his request to file a second trial brief, (4) improperly rendered judgment in favor of the defendant O’Neill on the merits, (5) improperly dismissed the claims against the defendant town, (6) improperly determined the plaintiff’s guilt on various motor vehicle infractions, (7) improperly placed the burden of proof on the plaintiff, (8) improperly denied his request to revise, and (9) improperly failed to award damages for the defendants’ failure to return the plaintiff’s license plates.

A brief history of the pleadings is necessary for the disposition of this appeal. This case was commenced as a small claims action on October 30, 1990. It was subsequently transferred to the regular docket on December 3,1990. On November 26, 1991, the pleadings were ordered to be closed by December 10,1991, with trial to begin on December 17,1991. An amended complaint was filed on December 10, 1991, and an answer was ultimately filed on February 6, 1992. On February 21,1992, the caseflow manager assigned the matter for trial to commence on March 25, 1992.

On February 20, 1992, the plaintiff filed a request for the defendants to revise their answer and, on March 20, the defendants filed an objection to the request to revise. The trial court denied the request to revise as untimely and additionally held that were it timely, it would be denied “on its merits and as not being in compliance with the Practice Book requirements.” On March 23,1992, the plaintiff filed an application for continuance that was denied as untimely the next day. The defendants’ request to file an amended answer and special defenses was filed March 24,1992, and denied as untimely the same day. On March 26, the defendants filed a revised answer in accordance with the plaintiff’s request to revise, despite the trial court’s denial of that request. The defendants filed special defenses on the same day, but the trial court refused the defendants’ request to allow the special defenses. Also on March 26, 1992, the plaintiff requested a continuance until May 26, 1992. This request was also denied by the trial court. The case against the town was dismissed and judgment was rendered on behalf of O’Neill. Additional facts will be set forth when they are relevant to each issue.

I

The plaintiff claims that he should have been permitted to file subsequent pleadings after the defendants had filed their answer. The pleadings were ordered to be closed by December 10,1991. The plaintiff filed an amended complaint on the same day. On December 31, 1991, a default was entered against the defendants for failure to file a responsive pleading by December 20, 1990, in accordance with the trial court’s order of December 17. The defendants filed a motion to set aside the default on January 9,1992, which was marked off with a notation that the defendants were to file an answer. The defendants also requested permission to file a responsive pleading to the amended complaint on or before January 21,1992. The defendants’ answer was filed on February 6, 1992, without objection.

We conclude that the trial court did not act unreasonably or contrary to the law when it determined that all the pleadings filed after the answer of February 6, 1992, were untimely in view of the orders to close the pleadings some fourteen months after the commencement of the action. See Simmons v. Southern Connecticut Gas Co., 7 Conn. App. 245, 251, 508 A.2d 288 (1986).

II

The plaintiff claims that the trial court improperly denied his motion for a continuance in violation of his due process rights. On March 26, 1992, the plaintiff requested a continuance until May 26,1992, asserting that he was not prepared for trial, that discovery was not completed and that a witness was unavailable.

“A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion. . . . We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of trial. . . . Every reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. . . . Because there is no ‘mechanical’ test for determining whether the denial of a continuance constitutes an abuse of discretion, we must consider the particular circumstances of each case, paying special attention to the reasons presented to the trial court at the time the request was denied.” (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Friedland, 222 Conn. 131, 142, 609 A.2d 645 (1992). “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” (Internal quotation marks omitted.) State v. Aillon, 202 Conn. 385, 395, 521 A.2d 555 (1987).

We have found nothing in the record or in the plaintiff’s arguments that supports his claim that the trial court abused its discretion. “In deciding a motion for continuance, a trial court may consider all the circumstances of the particular case, including unreasonable delay, fairness to the opposing party, and the negligence of the moving party.” Gaudio v. Gaudio, 23 Conn. App. 287, 312, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990); 1 B. Holden & J. Daly, Connecticut Evidence (1988) § 35. Almost seventeen months had elapsed since the action had been commenced and the pleadings had been closed since February 6, 1992. If the trial court had granted the defendants’ motions to file an amended answer and special defenses, the plaintiffs argument might have had some merit but since the trial court denied the defendants’ motion, there is no abuse of discretion.

Ill

The plaintiff claims that he should have been permitted to file a second trial brief. Practice Book § 285A provides in pertinent part: “The parties may, as of right, or shall, if the court so orders, file, at such time as the court shall determine, written trial briefs discussing the issues in the case and the factual or legal basis upon which they ought to be resolved. If any party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief.” The plaintiff filed his brief on March 26, the day the trial commenced, and the defendants filed their brief on the last day of the two day trial.

Just before it orally rendered its decision, the trial court denied the plaintiff’s request to file a second trial brief and enumerated the following reasons for its decision: “[T]his action has been pending for sometime. You have had the same opportunity to present a brief as defense counsel. There are legal questions involved, to be sure but, I believe that the principles involved are pretty clear. The question here is one of fact. And the court intends to address these questions now.”

“In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of [the trial court’s] action.” (Internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 169, 612 A.2d 1153 (1992); 1 B. Holden & J. Daly, supra, § 35. Our rules of practice do not provide for the filing of more than one trial brief by each party as a matter of right, and our examination of the briefs and transcripts has revealed nothing to indicate that the trial court abused its discretion in refusing the plaintiff a second brief. The trial court’s reasons for refusing the plaintiff’s request were logical. We will, therefore, not disturb the trial court’s decision.

IV

The next two issues involve the plaintiff’s claims under 42 U.S.C. § 1983 questioning the legality of stops in 1988 and 1990 of the plaintiff by O’Neill, an officer of the Watertown Police Department. Section 1983 provides a remedy against any person who under the color of state law deprives another of that person’s constitutional rights. The plaintiff asserts that the trial court improperly rendered judgment for O’Neill and that the trial court improperly dismissed the case against the town.

We first consider the plaintiff’s arguments with regard to O’Neill’s liability under § 1983. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous, and, where the legal conclusions of the trial court are challenged, we must determine whether they are legally and logically correct and whether they are supported by the facts set out in the memorandum of decision. Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 304, 552 A.2d 827 (1989).” Goldblatt Associates v. Panza, 24 Conn. App. 250, 252, 587 A.2d 433 (1991).

The constitutional issues raised are whether the actions of the officer exceeded the permissible limits of an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1986). See State v. Aillon, supra, 398. In other words, the question before us is whether the investigative stop was justified by “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted the] intrusion.” Terry v. Ohio, supra, 21; State v. Aillon, supra, 399. We must look to the totality of the circumstances to determine what constitutes a reasonable and articulable suspicion. Id. We must first determine, “whether the [stops were] justified at [their] inception, and second, whether the ensuing police response was ‘reasonably related in scope to the circumstances which justified the interference in the first place.’ Terry v. Ohio, supra, 19-20 . . . (Citations omitted.) State v. Aillon, supra. We conclude that the trial court properly determined that the stops and the plaintiff’s arrest were valid under Terry v. Ohio, supra.

On October 31, 1988, the plaintiff was operating a 1979 Volkswagen when he was observed by O’Neill driving at a slow rate of speed and drifting from one side of the road to the other. It was reasonable for O’Neill to stop the plaintiff after observing his erratic driving. In this instance, there was a possible violation of General Statutes § 14-220 (a) which provides in pertinent part: “No person shall operate a motor vehicle at a speed lower than forty miles per hour on any limited access divided highway and no person shall operate a motor vehicle on any other highway at such a slow speed as to impede or block the normal and reasonable movement of traffic . . . There was also a possible violation of General Statutes § 14-227a (a) which provides in pertinent part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor . . . .”

After stopping the plaintiff, O’Neill was permitted to ask for the plaintiff’s motor vehicle registration certificate, operator’s license and any no-fault automobile insurance identification card for the vehicle pursuant to General Statutes § 14-217. The plaintiff produced a Vermont operator’s license that had been under suspension since August 6,1988, and a Vermont registration and insurance certificate for a different vehicle. The plaintiff told O’Neill that he resided in Bethlehem, Connecticut, and in Vermont. O’Neill arrested the plaintiff for operating a motor vehicle while his license was under suspension in violation of General Statutes § 14-215 (a), operating an unregistered motor vehicle in violation of General Statutes § 14-12 (a) and operating without insurance in violation of General Statutes (Rev. to 1991) § 38-327 (now § 38a-371). O’Neill’s actions were justified under these circumstances. The trial court properly rendered judgment for O’Neill on the facts of this stop and arrest.

As to the second stop, on November 30,1990, O’Neill observed the plaintiff operating his car on Main Street in Watertown when the plaintiff made a sharp right hand turn without signaling and parked his car partially on a sidewalk. O’Neill subsequently stopped the plaintiff. A Terry stop was justified because there was a reasonably articulable suspicion of two traffic violations. The first was a violation of General Statutes § 14-242 (b) which provides: “A signal of intention to turn right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning.” O’Neill also had a reasonable and articulable suspicion that the plaintiff had violated General Statutes § 14-250a which provides that no motor vehicle shall “be left parked, standing or stopped on or across, any public sidewalk . . . .” O’Neill clearly was justified in stopping the plaintiff under Terry v. Ohio, supra. Therefore, the trial court properly held that the plaintiff had not sustained his burden of proving by a preponderance of the evidence that O’Neill had no legal basis for stopping the plaintiff in either situation.

V

We now turn to the related claim concerning the trial court’s decision granting the town’s motion to dismiss under Practice Book § 302. “ ‘Such a disposition of a case may be resorted to only when a plaintiff has failed to make out a prima facie case, that is, when the evidence produced by the plaintiff, if fully believed, would not permit the trier in reason to find the essential issues on the complaint in favor of the plaintiff.’ Minicozzi v. Atlantic Refining Co., 143 Conn. 226, 230, 120 A.2d 924 (1956).” Logan v. O’Neill, 187 Conn. 721, 728-29, 448 A.2d 1306 (1982). The plaintiff’s evidence is to be interpreted in the light most favorable to the plaintiff and every reasonable inference should be drawn in the plaintiff’s favor. Id., 729. We must determine whether the trial court properly determined that the plaintiff failed to provide sufficient evidence to support his prima facie case. Id., 728.

A municipality may not'be held liable for the acts of its employees that violate the civil rights of another under a theory of respondeat superior. Monell v. City of New York Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Turpin v. Mailet, 579 F.2d 152, cert. denied, 439 U.S. 988, 99 S. Ct. 554, 58 L. Ed. 2d 645 (1978); Smith v. Ambrogio, 456 F. Sup. 1130, 1135 (D. Conn. 1978). “In order to successfully bring a cause of action against a municipality under § 1983, the plaintiff must demonstrate that the alleged constitutional violations were authorized under the municipality’s policy or custom.” Monell v. City of New York Department of Social Services, supra; Diverniero v. Murphy, 635 F. Sup. 1531, 1536 (D. Conn. 1986). The trial court properly dismissed the claims pertaining to the town because the plaintiff failed to present any evidence of the existence of a policy or custom that would indicate the town was liable under Monell.

The town’s liability is also contingent on the judgment against its employee, O’Neill, under General Statutes § 7-465 (a). General Statutes § 7-465 (a) provides in pertinent part: “Any town . . . shall pay on behalf of any employee of such municipality ... all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person’s civil rights ... if the employee, at the time of the occurrence . . . was acting in the performance of his duties and within the scope of his employment, and if such occurrence . . . was not the result of any wilful or wanton act of such employee . . . .” Since that judgment was properly rendered in favor of O’Neill, the town is not liable under this statute. Thus, assuming the trial court might have been premature in dismissing the cause of action against the town at the conclusion of the plaintiff’s case, it would be harmless since the trial court rendered judgment for O’Neill and did not award any damages.

VI

The plaintiff next claims that the trial court improperly determined that he was guilty of motor vehicle infractions related to the events surrounding the two stops. These infractions were nolled. The trial court did not find the plaintiff guilty of these infractions. The trial court merely found that the two stops were supported by a reasonable and articulable suspicion of illegal activity and that the arrests were supported by probable cause. Thus, this claim is without merit.

VII

The plaintiffs claim that the burden of proof was improperly placed on him is likewise without merit. “ ‘[Wjhenever the existence of any fact is necessary in order that a party may make out his case or establish his defense, the burden is on such party to show the existence of such fact.’ Holden & Daly, Connecticut Evidence § 53.” Albert Mendel & Son, Inc. v. Krogh, 4 Conn. App. 117, 124, 492 A.2d 536 (1985). “It is elementary that in a civil action, the plaintiff bears the burden of proof on all essential elements of a claim. To succeed on a claim asserted under 42 U.S.C. § 1983, a party must prove that he or she was deprived of a right secured by the Constitution or by the laws of the United States and that the person or persons depriving the party of the right acted under color of state law. . . .” (Citations omitted.) Ruggiero v. Krzeminski, 928 F.2d 558, 562 (2d Cir. 1991). In this action brought under 42 U.S.C. § 1983, the burden of proving that the stops were illegal was properly shouldered by the plaintiff, who alleged the misconduct. Id., 560.

VIII

The plaintiff also claims that the trial court improperly denied his request to revise the answer and failed to issue notice of the trial court’s order. On March 26, 1992, the first day of trial, the defendants filed an amended answer that complied with the plaintiff’s request to revise despite the fact that the request to revise had been denied.

An issue is moot when the court can no longer grant any relief. See Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985). Since the answer was revised as requested, relief from the trial court’s decision and any failure to notify the plaintiff of it is no longer required and this issue is moot.

IX

The plaintiff finally claims that he should have been awarded damages because his registration plates were removed from his motor vehicle incident to the first stop. The plates were not returned to him as he requested. The registration plates were removed because they belonged to a different vehicle and, therefore, were being improperly used on the plaintiff’s vehicle.

General Statutes § 14-148 (b) provides: “Any officer may remove any number plate or number plates from any motor vehicle when such motor vehicle is apparently abandoned or when such number plate or number plates have been or are being used illegally and shall forward them to the commissioner with a statement for the reason for such removal.” The officer acted within the aegis of this statute and is not liable for conversion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 6 provides: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”

       42 U.S.C. § 1983 provides in pertinent part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage of any state . . . subjects, or causes to be subjected any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress . . . .”

       The trial court found the officer’s testimony to be credible and relied on it in rendering its decision.

       The plaintiff himself was the only witness in his case-in-chief.

       The request to revise had asked the defendants to confine their answer to the allegations of the complaint by deleting nonresponsive statements in the third paragraph of the first count. This is the only revision the defendants made to their answer when they revised it.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Karen Barksdale v. Teresa Harris et al.
    (11001)
    Dupont, C. J., Heiman and Schaller, Js.

      Argued December 8, 1992 —
    decision released March 30, 1993

      David N. Rosen, for the appellant (plaintiff).

      Dion W. Moore, for the appellees (defendant Connecticut National Bank et al.).
   Dupont, C. J.

The plaintiff appeals from a judgment rendered after a jury verdict in favor of the defendants Connecticut National Bank and Lend Lease Cars, Inc., in an action for personal injuries resulting from an automobile accident. The defendant Teresa Harris was operating a van while in the course of her employment with the defendant Connecticut National Bank. The defendant Lend Lease Cars, Inc., owned the van. A jury returned a verdict for the defendants and the plaintiff filed a “motion to set aside the verdict, in arrest of judgment or for a new trial,” which was denied. The issues raised on appeal are whether the trial court (1) misled the jury, in its charge on proximate cause, by using the phrase “the proximate cause” instead of “a proximate cause,” and (2) improperly refused to instruct the jurors that they could draw an adverse inference from the failure of the defendants to call a physician who had examined the plaintiff on behalf of the defendants. Another issue, namely, whether a plaintiff should be allowed to call as a witness a medical doctor hired by the defendant to examine the plaintiff, must also be resolved because it is collaterally involved in the second issue raised by the plaintiff.

The jury reasonably could have found the following facts. On December 14,1987, the plaintiff was stopped at a red light when her vehicle was hit from behind by one operated by Harris. That evening, the plaintiff went to a hospital emergency room complaining of pain between her shoulders, which worsened over the next year. The plaintiff was diagnosed as having a disc herniation, which she claimed was caused by the Harris accident. Shortly before the trial began, the plaintiff was involved in another automobile accident and filed an action for damages from injuries arising from that accident. The second lawsuit was withdrawn during the trial of this action. Interrogatories were submitted to the jury in the present action, and the jury found that the defendant Harris was negligent but that her negligence did not proximately cause the plaintiffs injuries.

The plaintiff claims that the trial court’s repeated use of the words “the proximate cause,” instead of “a proximate cause” in its supplemental charge misled the jury. “Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . .” (Internal quotation marks omitted.) Sullivan v. Norwalk, 28 Conn App. 449, 456, 612 A.2d 114 (1992), quoting Hall v. Burns, 213 Conn. 446, 475, 559 A.2d 10 (1990). “A court’s instructions must be adapted to the issues and not mislead the jury but reasonably guide it in reaching a verdict.” Sullivan v. Norwalk, supra. In a personal injury action based on negligence, in order to render a defendant liable, the defendant’s negligence need not be the sole proximate cause of an injury. Albert v. Lee Circle, Inc., 162 Conn. 124, 128, 291 A.2d 735 (1971).

The second interrogatory submitted to the jury read: “Was the negligence of defendant Connecticut National Bank’s employee Teresa Harris a proximate cause of the plaintiff’s injuries?” In a supplemental charge to the jury, the trial court misread the interrogatory as reading “the proximate cause” instead of “a proximate cause.” With rare exception, the trial court referred to “the proximate cause” throughout the charge and the supplemental charge. When we view the jury instructions as a whole, this difference signifies more than a mere technicality because it recurs so frequently. The difference could have had a deleterious effect on the jurors’ ability to reach a proper verdict. The jurors could have been misled into thinking that the defendants’ negligence had to be the sole proximate cause of the plaintiff’s injuries in order to find the defendants liable. We, therefore, conclude that a new trial is required.

Although the disposition of the first issue requires a new trial, we address the plaintiff’s second issue because it is likely to recur on retrial. This issue is whether the trial court should instruct jurors that they could draw an adverse inference from the defendants’ failure to call as a witness a physician who had examined the plaintiff on behalf of the defendants.

Additional facts are necessary for resolution of this issue. The plaintiff’s treating physician testified that the collision involved in this appeal caused the plaintiff’s disc herniation, while the defendants’ medical witness, a neurologist, who did not examine the plaintiff, testified that it did not. Another physician, orthopedic surgeon Eric Garver, was also retained by the defendants as an expert. He examined the plaintiff on the second day of the trial, but did not testify.

Neither medical witness for the defense was disclosed as an expert. After the plaintiff was examined by Garver, she requested a written copy of Garver’s report pursuant to Practice Book § 229. The defendants orally conveyed to the plaintiff the information contained in Garver’s report but did not provide a written report until after the trial was over. Garver’s report substantiated the plaintiff’s claim that her injuries were proximately caused by the collision with the defendants’ van. Garver concluded that the plaintiff had a 20 percent disability, 17 percent of which was a result of the collision with the defendants’ van.

When it became apparent that the defendants were not going to call Garver as a witness, the plaintiff indicated that she would call Garver. The defendants objected, claiming that Garver’s testimony would be inadmissible because Garver was retained as an expert by the defendants. The trial court responded that the only way the plaintiff would be prevented from calling Garver as a witness would be if Garver’s testimony could be construed as the work product of the defendants’ counsel. A robust discussion among the plaintiff, the defendants and the trial court ensued. Before the trial court made a ruling, however, the plaintiff stated that if the court was going to rule that the plaintiff could not call Garver as a witness, then the plaintiff would not take an exception to that ruling as long as she could get a Secondino* ** instruction on the basis of the defendants’ failure to call Garver. The court then stated, “All right, then that’s the way I will rule. You gave me an easy way out.”

This colloquy equates to a ruling by the court that the plaintiff could not call Garver as the plaintiff’s witness. Because of this ruling, which the plaintiff accepted as correct, the plaintiff did not take exception to it, but instead relied on her belief that a Secondino charge would be proper. These two issues, namely, whether the plaintiff, as a matter of law, should have been allowed, on the facts of this case, to call Garver as a witness and whether a Secondino charge should have been given are inextricably intertwined. If the plaintiff had been given the right to call Garver as her witness, there would be no Secondino issue to address.

We must, therefore, first ascertain whether a court may properly preclude a plaintiff from calling as a witness a physician retained by a defendant to examine her before deciding whether a Secondino instruction was warranted on the facts of this case.

The defendants argued strenuously that the plaintiff could not call Garver as her witness because Garver’s testimony would be the work product of the defendants’ counsel. We could not find, and the parties do not cite, any Connecticut case that answers this question.* ****

The work product doctrine protects an attorney’s “interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs and countless other tangible and intangible [items].” Hickman v. Taylor, 329 U.S. 495, 511, 67 S. Ct. 385, 91 L. Ed. 451 (1945). To be protected under this doctrine, the work of the attorney must be such that it forms an essential step in the procurement of data and must involve duties normally performed by attorneys. Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 95, 230 A.2d 9 (1967).

The doctrine does not protect the “work product” of a physician. Gordon v. Pennsylvania R. Co., 5 F.R.D. 510 (E.D. Pa. 1946); Nielsen v. Brown, 232 Or. 426, 433, 374 P.2d 896 (1962). Once a physician examines a plaintiff, the physician then possesses firsthand knowledge as to the extent and nature of the plaintiffs injuries, and can be called upon by either party to testify as to that knowledge. Kissel v. Nelson Packing Co., 87 Mich. App. 1, 4, 273 N.W.2d 102 (1979); Nielsen v. Brown, supra, 436-45. “A physician who has examined the plaintiff at the request of the defendant, and formulated his findings and conveyed the findings to the parties, should not be barred from relating the substance of his report when called as a witness by the plaintiff.” Bevilacqua v. Gilbert, 143 App. Div. 2d 213, 214, 532 N.Y.S.2d 15 (1988); see Gilly v. City of New York, 69 N.Y.2d 509, 508 N.E.2d 901, 516 N.Y.S.2d 166 (1987); Nielsen v. Brown, supra. If a defendant is allowed to use information learned from the examination of a plaintiff if it is favorable, but suppress the same information if it is unfavorable, then this would result in “unfairness against the plaintiff without whose submission to a physical examination the evidence could not have been obtained.” Nielsen v. Brown, supra, 444.

In the present case, the plaintiff voluntarily submitted to examination by Garver at the request of the defendants. Promptly after the examination, Garver made a written report as to his findings and conclusions as to the cause of the plaintiffs injuries. The information was orally conveyed to the plaintiff during trial, but the written report was not delivered to the plaintiff until after the trial was over. The written report should have been promptly disclosed to the plaintiff pursuant to our rules of practice. See Practice Book § 229. Once the plaintiff was examined by Garver, Garver possessed firsthand knowledge about the nature and extent of the plaintiff’s injuries. That knowledge was not the product of the defendants’ attorney’s work, nor did it involve data procured by the attorney, nor did it involve duties normally performed by attorneys. See Stanley Works v. New Britain Redevelopment Agency, supra. The knowledge of Garver, therefore, was available for use by either the plaintiff or the defendants. The plaintiff should have been allowed, therefore, to call Garver as a witness.

Because the trial court did not allow the plaintiff to call Garver as her witness, we will address whether a Secondino instruction should have been given in these circumstances. At the conclusion of the defendants’ case, the plaintiff requested that the court give the jury a Secondino instruction. The trial court refused. The plaintiff claims that the court’s refusal to give a Secondino instruction was improper because the witness was available and was a witness that the defendants would naturally produce. We agree.

In order for the trial court to give an instruction that the jury could draw an adverse inference from the failure of a party to call a witness, two requirements must be met: (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., 147 Conn. 672, 675, 165 A.2d 598 (1960). The plaintiff claims that the first requirement was met because the defendants conceded this issue at trial. The defendants maintain that the plaintiff did not prove the availability of Garver.

A review of the record discloses that the defendants did indeed concede the availability of Garver. At trial, the plaintiff raised the fact that she needed to prove availability. The defendants’ counsel responded that “I will concede, because I believe it to be the fact, that Dr. Garver is now back from wherever he was and is generally available. So he is, to the best of my knowledge, available. And I would concede that.” Therefore, the first requirement had been met.

The defendants also claim that Garver was not a witness that they would naturally have produced. “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.” State v. McNellis, 15 Conn. App. 416, 424, 546 A.2d 292 (1988), quoting Secondino v. New Haven Gas Co., supra. A physician who examines a plaintiff for the purpose of testifying at trial is a witness whom the examining party naturally would have produced. Raia v. Topehius, 165 Conn. 231, 237, 332 A.2d 93 (1973).

In the present case, the defendants retained two physicians as experts, Robert Russo and Garver. Garver examined the defendant, while Russo did not. The plaintiff testified, without objection, on direct examination that she had been examined by Garver at the request of the defendants. The defendants called Russo, but not Garver, to testify as to the cause of the plaintiff’s injuries.

A party is not required to call as a witness every expert retained. Here, however, Garver actually examined the plaintiff while Russo did not, and it is, therefore, reasonable to expect that Garver possessed medical information, material to the case, that was superior to Russo’s. Applying the ruling of Raia v. Topehius, supra, we conclude that Garver was a witness the defendants naturally would have produced. Although in Raia, the physician who examined the plaintiff was retained by the plaintiff, that fact should not affect its holding. The case is equally applicable to situations where a physician examines a plaintiff at the request of the defendants.

The interrogatories reveal that the jury found that the defendant Harris was negligent, but did not find that she proximately caused the plaintiff’s injuries. The substance of Garver’s findings from the examination of the plaintiff went straight to the issue of proximate cause because he concluded that the plaintiff had a 20 percent disability, 17 percent of which was caused by the collision with the defendants’ vehicle. Without reference to the failure of the defendants to call Garver, whose testimony would have substantiated the plaintiff’s claim, the jury was deprived of information that was extremely material to the issue of proximate cause.

The defendants contend that because Garver was equally available to both parties, he would not be someone whom the defendants would naturally produce. Although “each party ordinarily is empowered to place an available witness on the stand, such a witness often may be expected to furnish testimony more favorable to one side than the other.” State v. Ruiz, 202 Conn. 316, 325, 521 A.2d 1025 (1987). Because Garver was the defendants’ expert, it is reasonable to conclude that the defendants would have called him to testify about his findings from his examination of the plaintiff had Garver’s testimony been more favorable to the defendants than to the plaintiff. See State v. Grant, 221 Conn. 93, 107, 602 A.2d 581 (1992). We conclude that Garver was a witness whom the defendants would naturally have produced had his testimony been favorable. A Secondino instruction, therefore, should have been given to the jury.

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

In this opinion the other judges concurred.

       We refer herein to Connecticut National Bank and Lend Lease Cars, Inc., as the defendants. The plaintiff withdrew her claim against Teresa Harris before trial.

       A subsidiary question, namely, whether the plaintiff should have been allowed to comment during the plaintiffs closing argument to the jury on the defendants’ failure to call as a witness the same physician, need not be resolved because of our resolution of the adverse inference claim of the plaintiff.

       Practice Book § 229 provides in relevant part: “If requested by a party against whom an order is made under this rule, or who voluntarily agreed to an examination, the party causing the examination to be made shall deliver to him a copy of the written report of the examining physician setting out his findings . . . diagnoses and conclusions. . . .”

        Secondino v. New Haven Gas Co., 147 Conn. 672, 674-76, 165 A.2d 598 (1960).

       The words of the plaintiff’s request to charge indicate that the plaintiff believed that she could not use Garver as a witness. The plaintiff’s request to charge was the following: “In this case the plaintiff submitted herself to a medical examination by Dr. Garver on behalf of the defendants. Under our rules the plaintiff may not call Dr. Garver as a witness, but Dr. Garver was available to the defendants, who chose not to call him. The law is that when it would be natural under the circumstances for a party to offer a specific witness and the party fails to do so, you may draw the inference that the evidence of the witness would be unfavorable to the party’s cause. Whether or not you do draw such an inference is in your discretion as the factfinders in this case. Secondino v. New Haven Gas Co., 147 Conn. 672, 674-76 [165 A.2d 598] (1960); Pederson v. Vahidy, 209 Conn. 510, 524 [552 A.2d 419] (1989).”

       This case does not involve the unanswered, but collateral, question of Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 525 A.2d 954 (1987), namely, whether a plaintiff should be allowed to call as a witness a medical doctor who was hired by the defendant to examine medical records and assist in the defense, rather than to examine a plaintiff physically.

       The plaintiff did not seek any sanctions for the failure of the defendants to provide her with a written report. See Practice Book § 231.


author: Schaller, J.

text:
    Grace Community Church v. Town of Bethel et al.
    (11312)
    Dupont, C. J., Laveky and Schaller, Js.
    Argued January 13 —
    decision released March 30, 1993

      John W. Mauck, pro hac vice, with whom were Jerome A. Mayer and James M. Mannion, for the appellant (plaintiff).

      Stephen C. Gallagher, for the appellees (defendants).
   Schaller, J.

The plaintiff appeals from the judgment of the trial court rejecting its claim that certain of the Bethel zoning regulations are unconstitutional. The plaintiff claims that the regulations abridged its rights under the first and fourteenth amendments to the United States constitution, and, therefore, the trial court improperly denied (1) injunctive and declaratory relief, and (2) damages pursuant to 42 U.S.C. § 1983. We affirm the judgment of the trial court.

The following facts are not in dispute. The plaintiff, Grace Community Church, was founded in 1982. Initially, the members of the church congregated at various locations, not having a permanent facility of their own. They searched for a suitable location to build a church, primarily in the greater Danbury area. In 1985, the plaintiff entered into negotiations to purchase real property at the intersection of Weed and Walnut Hill Roads in the town of Bethel. This property was located in an R-40 residential zone. Pursuant to the regulations, the property was zoned to permit single family residences. Bethel Zoning Regs. § 118-24 A. Other uses, including churches, clubs and community centers were allowed only by special permit. Bethel Zoning Regs. § 118-24 B.*

The plaintiff acquired an option to purchase the property and initiated proceedings to obtain a special permit from the zoning and planning commission. The commission granted the plaintiff a special permit, finding that the proposed use complied with the regulations. Abutting property owners, however, appealed the commission’s decision to the Superior Court. During this appeal period, the plaintiff purchased the property pursuant to its option. Subsequently, the court sustained the administrative appeal on the ground that the commission improperly considered evidence offered after the close of the public hearing.

On July 10, 1990, the plaintiff submitted a second application to the commission for a special permit. The commission conducted a public hearing at which neighbors voiced their opposition to the application. The commission thereafter voted to deny the application, citing the potential for conditions adversely affecting the flow of traffic. See Bethel Zoning Regs. § 118-21 H. The plaintiff appealed the commission’s decision to the Superior Court.

The plaintiff also filed a separate action in the Superior Court challenging the constitutionality of the regulations. In this action, the plaintiff sought injunctive and declaratory relief as well as damages pursuant to 42 U.S.C. § 1983. The trial court consolidated these two actions and considered extensive evidence on the matter. On March 17, 1992, the trial court sustained the plaintiff’s administrative appeal and ordered the commission to issue the special permit. On April 14,1992, the commission granted the plaintiff a special permit to build a church on the property at issue.

In a second memorandum of decision, dated July 16, 1992, the trial court found that its disposition of the administrative appeal rendered “academic” further consideration of the plaintiffs claims for injunctive and declaratory relief. The court did, however, consider the plaintiff’s claim for damages. On this claim, the court concluded that “[sjince the plaintiff has not proven a violation of any federal constitutional right or statute, there is no basis for a § 1983 action.” The court thus denied the plaintiff the relief requested in connection with its challenge to the constitutionality of the regulations. This appeal followed.

I

The plaintiff asserts that the trial court improperly rejected its claim for injunctive and declaratory relief. It posits that the special permit provision of the regulations is unconstitutional and threatens to impede any future plans that it might have regarding the expansion of its facility. Because the plaintiffs claim for declaratory relief is based on hypothetical facts, we are without jurisdiction to decide this issue.

“It is a well-settled general rule 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.” (Internal quotation marks omitted.) Perry v. Perry, 222 Conn. 799, 803, 611 A.2d 400 (1992); Schallenkamp v. DelPonte, 29 Conn. App. 576, 579, 616 A.2d 1159 (1992). Courts are without jurisdiction to review moot issues, unless the issue presented is “ ‘capable of repetition, yet evading review.’ ” Shays v. Local Grievance Committee, 197 Conn. 566, 573, 499 A.2d 1158 (1985).

“[WJhere the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, it may be capable of repetition, yet evading review. ... In deciding whether to invoke this mitigating principle, we have considered not only the practical difficulties of timely judicial review but also (1) the public importance of the question presented; (2) the potential effect of the ruling on an ongoing program of the state’s penal or civil system; and (3) the possibility of a similar effect on the plaintiff himself in the future. . . .” (Citations omitted; internal quotation marks omitted.) Perry v. Perry, supra.

In this case, the plaintiff’s claim for injunctive and declaratory relief clearly is moot. The commission having issued the plaintiff a special permit, the plaintiff is free to build a church on its property in accordance with the approved plans. The plaintiff, therefore, has no present need for relief that would limit the applicability of the allegedly unconstitutional regulations. The regulations no longer stand as an obstacle to the plaintiff’s existing plans to build a church. In light of the mootness doctrine, therefore, we have no jurisdiction to consider the plaintiff’s claim for injunctive and declaratory relief.

The plaintiff argues that it may want to expand its facility at a later date. It appears that the plaintiff is attempting to invoke the “capable of repetition, yet evading review” exception to the mootness doctrine, though its argument is not stated in these precise terms. This exception is unavailing, however, because there is nothing to suggest that litigation involved in obtaining a second special permit will expire before the plaintiff could seek appellate review. Further, while the plaintiff’s constitutional claims may well be of public importance, this factor alone does not warrant an exception to the mootness doctrine. Shays v. Local Grievance Committee, supra (“[t]his court has never asserted jurisdiction over a case that would otherwise be moot simply on the ground of the public importance of the question presented”). We conclude that the plaintiff’s claim for injunctive and declaratory relief does not fall within the aegis of the “capable of repetition, yet evading review” exception to the mootness doctrine.

II

The plaintiff also asserts that the trial court improperly rejected its claim for damages pursuant to 42 U.S.C. § 1983. In support of this argument, the plaintiff asserts that the special permit process abridged its constitutional rights under the first and fourteenth amendments. We disagree.

We note at the outset that the mootness of the plaintiffs claims for injunctive and declaratory relief does not preclude our review of the claim for damages pursuant to § 1983. In Hallas v. Windsor, 217 Conn. 689, 692, 587 A.2d 149 (1991), our Supreme Court made abundantly clear that “while cessation of allegedly unconstitutional or illegal activity may render moot a claim for injunctive relief, such cessation will not render moot a case that also states a claim for damages resulting from such activity prior to its cessation.” (Emphasis added.) Therefore, despite our holding in part I of this decision, we do have jurisdiction to address the plaintiffs claim that the trial court improperly rejected the § 1983 claim. The question is whether the plaintiffs prior efforts to procure a special permit were expended pursuant to unconstitutional zoning regulations thereby giving rise to a § 1983 action for damages.

The plaintiffs success under § 1983 hinges on whether the regulations at issue deprived it of a federal right. Tedesco v. Stamford, 215 Conn. 450, 456, 576 A.2d 1273 (1990). Specifically, we must consider whether the special permit provision of the regulations violated (1) rights to freedom of religion, association, assembly and expression under the first amendment, (2) rights to equal protection under the fourteenth amendment, and (3) rights under the takings clause of the fifth amendment.

Before turning to these claims individually, we note that it is axiomatic that local governments are constitutionally authorized to regulate land use. Husti v. Zuckerman Property Enterprises, Ltd., 199 Conn. 575, 580, 508 A.2d 735, appeal dismissed, 479 U.S. 802, 107 S. Ct. 43, 93 L. Ed. 2d 373 (1986). “[Zjoning restrictions, so far as they reasonably promote public health, safety, and welfare without depriving landowners of all economically viable use of their property, are constitutional even though the effect of the restrictions may be to limit the exercise of private property rights.” Id.

A

The plaintiff asserts that the procedures associated with procuring a special permit violated its first amendment right to freedom of religion and assembly. We disagree. Our Supreme Court in St. John’s Roman Catholic Church Corporation v. Darien, 149 Conn 712, 720, 184 A.2d 42 (1962), established that while “churches may not be wholly excluded from residential zones . . . even they may be subject to reasonable regulation regarding their location without violating the constitutional guarantee of freedom of religion.” (Citations omitted.) In this case, as in St. John’s, the issue is whether a zoning regulation is reasonable if it allows churches and related assemblies in a residential neighborhood only upon the issuance of a special permit. We are fully satisfied that this special permit process is a reasonable restriction.

In Barberino Realty & Development Corporation v. Planning & Zoning Commission, 222 Conn. 607, 612-13, A.2d 1205 (1992), our Supreme Court noted that “[cjommon specially permitted uses . . . are hospitals, churches and schools in residential zones. These uses are not as intrusive as commercial uses would be, yet they do generate parking and traffic problems that, if not properly planned for, might undermine the residential character of the neighborhood.” Accordingly, the special permit operates to ensure that “parking and traffic problems have been satisfactorily worked out. . . .” Id., 613; T. Tondro, Connecticut Land Uses p. 78. Clearly, the special permit process is a reasonable response to the potential planning problems associated with the construction of a church in a residential neighborhood.

The facts of this case exemplify the appropriateness of the regulations at issue. The plaintiff enjoys the support of several hundred people from the greater Dan-bury community. An obvious purpose of a permanent church facility is to promote religious activities of its congregation. This purpose in turn implicates the safety and welfare of the residential area at issue given the likelihood of increased traffic and the potential for parking problems. The regulations thus respond appropriately to the possible adverse effects associated with the presence of a church in a residential neighborhood. We conclude that the zoning regulation at issue did not abridge the plaintiffs religious freedoms.

Regarding the plaintiffs claim that the regulations violated its right to free expression, we again are unpersuaded. “When zoning law constricts the realm of permissible expression . . . we employ a heightened level of scrutiny to determine whether the law is valid under the first amendment. . . .” Husti v. Zuckerman Property Enterprises, Ltd., supra. “[A] content-neutral zoning regulation that restricts the permissible time, place, and manner of protected speech is constitutional under the first amendment if the regulation ‘is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication.’ ” Id., 581, quoting Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986).

In this case, there is no question that the regulations are content neutral. The zoning regulations are free of any reference to the plaintiff’s religious practices. Further, the regulations do not isolate churches by themselves as specially permitted uses. Rather, the special permit provision applies to other activities such as clubs, community centers and nursery schools.

The regulations also serve an important governmental interest. “A city has undeniably important interests in protecting the character of its residential neighborhoods and in promoting the health, safety, and welfare of its citizens.” Husti v. Zuckerman Property Enterprises, Ltd., supra, 581. The regulations at issue serve this important interest by ensuring that traffic and parking problems do not undermine the residential character of the neighborhood. “These are precisely the kinds of dangers that zoning is designed to combat . . . and that justify content-neutral regulation of the time, place, and manner of expression.” (Citation omitted.) Id., 582. Moreover, the regulations do not exclude churches from the zone, but rather, require churches, such as the plaintiff, to establish that their plans are generally compatible with residential land uses. We conclude that the regulations did not violate the plaintiffs first amendment rights and that its claims in this regard do not support an action for damages under § 1983.

B

We are also unpersuaded by the claim that the regulations at issue violated the plaintiff’s right to equal protection. Our Supreme Court in St. John’s, Roman Catholic Church Corporation v. Darien, supra, addressed a similar challenge to a special permit requirement. There, the regulation required parochial and private schools to obtain a special permit before operating in a residential zone. Id. Public schools, however, were not subject to the same requirement. Noting that the “basic question is whether some natural and substantial difference, germane to the subject and purposes of the regulations, permits the treatment of parochial and private schools as a class distinct from public schools,” the court rejected the plaintiffs equal protection challenge to the special permit provision. Id., 722.

Applying the analysis in St. John’s to the special permit provision at issue, we conclude that the plaintiffs equal protection claim is without merit. Under the Bethel regulations, the permitted use, i.e., one family residences, patently differs from the specially permitted uses, i.e., churches, clubs and day-care facilities. Unlike one family dwellings, the presence of a church, such as the plaintiff with several hundred members, will invariably create the potential for significant traffic and parking problems, and other intrusions. We conclude that the regulations have not abridged the plaintiffs right to equal protection and that damages under § 1983 are unwarranted.

The plaintiff argues that the decision of the United States Supreme Court in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985), militates against the constitutionality of the regulations. We disagree. In Cleburne, the court considered the constitutionality of a zoning ordinance that required a special use permit for a facility for the mentally retarded. Numerous other multidwelling facilities, however, were freely permitted in the same zone. Id. The court held that the ordinance violated the equal protection clause. The court decided that the disparate treatment of the mentally retarded was not rationally related to a legitimate government interest because, for all practical purposes, a facility for the mentally retarded would have a similar impact on the zone as the freely permitted uses. Id., 450.

We find the ordinance in Cleburne readily distinguishable from the regulations at issue. Unlike the ordinance in Cleburne, the Bethel regulations are based on the rational distinction between such minimally intrusive uses as one family dwellings and potentially more burdensome land uses such as churches. In short, through its zoning regulations, the town of Bethel has rationally classified land uses as either permitted, specially permitted or restricted in an effort to preserve the residential character of the R-40 zone.

C

The plaintiffs final claim is that it is entitled to just compensation because “deprivation of property use from a facially unconstitutional zoning ordinance is a taking under the fifth amendment.” The plaintiff has offered little more than a bare assertion that the zoning ordinance implicates the fifth amendment. We therefore decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 118-24 A of the Bethel zoning regulations provides in pertinent part: “Permitted Uses. No land [in an R-40 zone] shall be used or occupied and no structure shall be designed, erected, altered, used or occupied except for only one (1) of the following permitted uses . . .
      (1) One-family dwelling, one (1) per lot.
      (2) Home business, home office or professional office ....
      (3) A customary incidental home occupation ....
      (4) Community recreation facility, not including an amusement park or privately owned facility.
      (5) Farming, dairy, truck or nursery gardening ....
      (6) Library, public.
      (7) Public park and public playground or public recreational facility operated by a governmental unit....
      (8) Public telephone.
      (9) A single guest cottage ....
      (10) Tag sale [with permit once every calendar year] ....
      (11) Water reservoir.
      (12) Family day-care home.”

       Section 118-24 B of the Bethel zoning regulations provides in pertinent part: “Special permit uses. The following uses are permitted subject to the granting of a special permit by the Planning and Zoning Commission after a public hearing:
      (1) A cemetery ....
      (2) Church, parish hall and parish housing, including a convent or other similar residence for clergy.
      (3) Club.
      (4) Community center building, which shall have no outdoor public address system or any other type of outdoor amplified music device.
      (5) Day-care or nursery school.
      (6) Electrical substation. . . .
      (7) Fire station.
      (8) Gas regulator station. . . .
      (10) Home business, home office or professional office as defined under § 118-24 A (2), but employing two (2) or more persons not residing on premises. . . .
      (12) A library or museum operated by a nonprofit corporation. . . .
      (14) A nursing or convalescent home. . . .
      (18) A private golf, tennis or swim club . . . .”

       The trial court’s decision in this regard is unclear. At one point in its memorandum of decision, the court stated that the issue of damages was academic. At another point, the court held that “[t]he issuance of a special permit eliminates any rights the plaintiff may have had under the first count of the complaint for an injunction and similar relief, but does not prevent an action for damages for conduct prior to issuance of the permit.” The court went on to state that the plaintiff failed to prove a violation of 42 U.S.C. § 1983. On the basis of the court’s action, it is apparent that the court did not treat the claim for damages as a moot issue.

       We note that the plaintiff also asserts that the applicable zoning regulations abridged its rights under the state constitution. We decline to review these claims because the plaintiff has not put forth a separate and detailed analysis regarding these issues. State v. Hernandez, 204 Conn. 377, 394 n.9, 528 A.2d 794 (1987).

       For example, the ordinance freely permitted multidwelling facilities, hospitals, apartment houses, apartment hotels, private clubs and philanthropic or eleemosynary institutions. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985).

       In any event, we have already stated that the regulations at issue are not constitutionally deficient. Because the plaintiffs just compensation claim is based on the assertion that the regulations are unconstitutional, our previous discussion is dispositive of the claim.


text:
    Connecticut National Bank v. Dewey Browder, Jr., et al.
    (11214)
    Daly, Heiman and Schallek, Js.

      Argued January 13 —
    decision released March 30, 1993

      ColoneL. Pearson, for the appellants (named defendant et al.).

      Marc A. Krasnow, for the appellee (plaintiff).
   Schaller, J.

The defendants Dewey Browder, Jr., and Carolyn Browder appeal from a judgment of foreclosure by sale of a judgment lien. They claim that the trial court (1) misapplied the standard of proof in determining whether their special defense was proven and (2) improperly rendered judgment of foreclosure without evidence of the judgment lien. We affirm the judgment of the trial court.

The trial court reasonably could have found the following facts. The plaintiff brought an action against the defendants based on nonpayment of a loan and, in 1974, obtained a judgment against them in the amount of $4526.50. The plaintiff subsequently filed a judgment lien against the defendants’ real estate. The defendants made ten payments totaling $1660 toward the balance owing on the judgment. They made six of the payments directly to the plaintiff’s attorney. A sheriff collected the four other payments and turned them over to the plaintiff’s attorney. Neither the plaintiff nor its counsel received any further payments from the defendants. As a result, the defendants failed to satisfy the debt owed on the 1974 judgment.

In 1988, the plaintiff brought the current foreclosure action against the defendants. In response, the defendants filed a special defense asserting that they had discharged the debt owed on the 1974 judgment pursuant to a wage execution involving the named defendant’s former employer, Pitney Bowes. After a hearing on the matter, the trial court in an oral decision rejected the defendants’ special defense and rendered judgment of foreclosure by sale. This appeal followed.

I

The defendants claim that the trial court misapplied the correct standard of proof when assessing the viability of their special defense. The defendants concede that the trial court properly recited the applicable standard of proof, namely proof by a preponderance of the evidence. They insist, however, that the trial court in effect held them to a higher standard. The defendants claim, therefore, is tantamount to a challenge to the findings underlying the trial court’s judgment, specifically the finding that they failed to establish their special defense by a preponderance of the evidence.

We note at the outset that the trial court orally rendered its decision after hearing evidence on the matter. The trial court neither issued a written memorandum nor signed a transcipt of its oral decision. Although not fully complying with Practice Book § 4059, the court aid issue a detailed statement of its findings and conclusions in connection with its decision. Because the court’s decision is sufficiently detailed and concise we will review the defendants’ claim so as not to “exalt form over substance . . . .” State v. Rios, 30 Conn. App. 712, 714, 622 A.2d 618 (1993); see State v. Rivera, 30 Conn. App. 224, 225 n.1, 619 A.2d 1146 (1993).

The viability of the defendants’ first claim hinges on the application of the clearly erroneous standard. A reviewing court “may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.” Practice Book § 4061; Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985). It is axiomatic that it is not the function of a reviewing court to retry the facts and gauge the credibility of witnesses. Kelman v. McDonald, 24 Conn. App. 398, 401, 588 A.2d 667 (1991).

In this case, the trial court found that the defendants failed to sustain their burden of proving by a fair preponderance of the evidence the full payment of an outstanding debt. This finding was adequately supported by the record as a whole. The defendants argue that their evidence conclusively established that a wage execution discharged the debt. This position is unpersuasive for several reasons.

First, the defendants never established that the wage execution was actually served on the employer. While there was evidence of a letter directing the sheriff to serve a wage execution on the employer, a personnel manager from the employer testified that “there is no evidence in our payroll or personnel files to say that any kind of wage garnishment was ever issued on Dewey Browder.” The record thus amply supports the trial court’s finding that the employer had not relinquished sufficient funds to discharge the outstanding debt.

The second flaw in the defendants’ argument is that, even if we assume that the wage execution was served on the employer, the evidence failed to establish that the execution fully discharged the debt. In fact, the only evidence suggesting that the entire debt was satisfied came from the testimony of the defendant Dewey Browder who testified that his wages were garnished for four or five years. On the other hand, the payment history as set forth by the plaintiff’s evidence reveals that funds were received in ten installments over a two and one-half year period totaling $1660. It is clear that the trial court was entitled to discredit the defendants’ testimony and rely on the more detailed evidence submitted by the plaintiff. See Kelman v. McDonald, supra. Thus, the court, applying the correct standard of proof, properly found that the defendants’ special defense was not proven. We conclude that the trial court’s findings were adequately supported by the record and that the court’s decision was not erroneous in law. See Practice Book § 4061.

II

The defendants next claim that the trial court improperly rendered judgment of foreclosure without proof of the existence of the underlying judgment lien. The defendants’ contention is predicated on the fact that the plaintiff failed to enter the judgment lien into evidence during the course of the hearing. We find no merit in this claim.

While testifying, the defendant Dewey Browder clearly admitted the existence of the judgment lien. The following colloquy between Dewey Browder and his attorney reveals the admission:

“Mr. Pearson: And you discovered that you couldn’t get a loan because there was a lien on your property?
“Mr. Browder: Right.
“Mr. Pearson: And Mr. Krasnow [plaintiff attorney’s] name showed up on the land records as the person who had placed the lien on the house?
“Mr. Browder: Right.
“Mr. Pearson: And that was in 1988 or 1989. Did you then have discussions with Mr. Krasnow’s office?
“Mr. Browder: Yes, I did. I wanted him to take, you know, like why wasn’t that lien off now, out of the records. . . .
“Mr. Pearson: Did you get any indication from Mr. Krasnow as to why the lien had not been removed, did he discuss that with you?
“Mr. Browder: Well, he said that he didn’t get all his money, all of the money. He only received like $1,600.00. . . .” (Emphasis added.)

“A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it. It may take the shape of a formal stipulation, or may be informal, as where a party upon the witness stand unequivocally concedes a fact for the purpose of the trial.” (Citations omitted; internal quotation marks omitted.) Real Estate Auctions, Inc. v. Senie, 28 Conn. App. 563, 572, 611 A.2d 452 (1992). An admission operates to bind real parties in interest whose interests are similar to those of the declarant. Christie v. Eager, 129 Conn. 62, 65, 26 A.2d 352 (1942); 2 B. Holden & J. Daly, Connecticut Evidence (1988) § 101b.

In the course of testimony, the defendants acknowledged the existence of a judgment lien on their real property. Furthermore, the reference to the name of the plaintiffs attorney as appearing on the land records adequately established the existence of the specific lien now at issue. It is thus disingenuous for the defendants to contend now that a judgment lien never existed. We conclude that the testimony of the defendant Dewey Browder conceding the existence of the lien at issue dispensed with the necessity for production of evidence by the plaintiff as to the fact admitted and is conclusive upon the defendants.

The judgment is affirmed.

In this opinion the other judges concurred.

       Only the defendant property owners are involved in this appeal. We will refer to them in this opinion as the defendants.

       Practice Book § 4059 provides in pertinent part: “[W]hen rendering judgments in trials to the court . . . the court shall, either orally or in writing, state its decision on the issues in the case and, if there are factual issues, the factual basis of its decision. The court shall include in its decision its conclusion as to each claim of law raised by the parties. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court within ten days of the filing of the appeal. If written, the decision shall be stated in a memorandum of decision, which shall be filed with the clerk.”

       Additionally, the plaintiff’s attorney sought to have the trial court take judicial notice of the judgment lien. At the conclusion of the hearing, plaintiff’s counsel presented the court with a certified copy of the lien and the following interaction between counsel and the court ensued.
      “Mr. Krasnow: I have a certified copy of our judgment lien which I don’t believe is in the file—
      “The Court: — All right—
      “Mr. Krasnow: — which would require—
      “The Court — I think it was in the pleadings.
      “Mr. Krasnow: Okay.”
      In fact, the plaintiff had filed a copy of the lien along with its complaint.
      There is no question that the better course would have been for plaintiff’s counsel to introduce the judgment lien into evidence. Still, the claim asserted by the defendants is that no lien existed. This assertion finds no support in the record and squarely contradicts the defendant Dewey Browder’s testimony. Accordingly, we find no merit in the defendants’ claim that the plaintiff failed to establish the existence of the judgment lien.


author: Daly, J.

text:
    State of Connecticut v. Clarence Glenn
    (11031)
    Daly, Foti and Lavery, Js.
    Argued January 19 —
    decision released April 6, 1993

      Sheila M. Berger, assistant public defender, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva B. Lenczewski, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 2 la-277 (a). The defendant claims on appeal that the trial court improperly (1) denied his motion to suppress and (2) denied his motion for judgment of acquittal.

On August 8, 1990, the defendant was arrested for selling narcotics. Prior to trial, the defendant moved to suppress evidence of the cocaine retrieved from his tractor trailer. The trial court denied his motion to suppress and the trial proceeded. At the close of the state’s case-in-chief, the defense moved for judgment of acquittal. After the trial court denied the defendant’s motion, the defense presented its case. Following his conviction for possessing narcotics with intent to sell, the defendant was sentenced to a term of ten years, execution suspended after five years, with five years probation. Further facts are set forth below as necessary.

I

The defendant claims that his motion to suppress the narcotics should have been granted because the warrantless search of the tractor trailer did not fall within any of the exceptions to the warrant requirement and, as such, his rights under the fourth and fourteenth amendments to the United States constitution were violated. We disagree.

“The Fourth Amendment to the United States constitution protects the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures.’ Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause. ‘[A] search conducted without a warrant issued upon probable cause is “per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” ’ Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971) . . . .” (Citations omitted.) State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

The trial court denied the defendant’s motion to suppress after determining that the state satisfied its burden of proving that the search was valid under two exceptions to the warrant requirement. The trial court determined that the search was legal pursuant to the motor vehicle exception to the warrant requirement, which allows evidence found in a vehicle to come into evidence “where there is probable cause to believe that a motor vehicle contained contraband or evidence pertaining to a crime; United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982); Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979) . . . .” (Citations omitted.) State v. Badgett, supra, 424. We find that the motor vehicle exception applies to this case and is dispositive of this issue.

The following facts are relevant to the motion to suppress. On August 8,1990, at approximately 3 p.m., the Waterbury police department’s tactical narcotics team set up a surveillance operation in the vicinity of North Square Park, a notorious drug trafficking area in Waterbury. The team utilized 452V2 North Main Street, a public parking lot, for the surveillance because it provided an unobstructed view of the surrounding area. Detective Nicholas DeMatteis had been conducting the surveillance for approximately thirty minutes from an unmarked white van designed for surveillance when he observed what appeared to be a drug transaction between the defendant and a male subsequently identified as Willie Shears.

The defendant had been selling watermelons from the rear of his tractor trailer, which was parked close to the curb along North Main Street. The tractor trailer was owned by the defendant and his name was printed on it. At the time of the surveillance, the trailer’s right rear door was open and the left door was closed. DeMatteis saw Shears pass money to the defendant who then entered the trailer by climbing a step ladder he had placed against the trailer. When the defendant emerged from the inside of the trailer, he handed something small to Shears. As he left the defendant, Shears walked past the surveillance van and DeMatteis observed small clear plastic bags in Shears’ hand. From his observations and experience, DeMatteis believed that these bags contained crack cocaine.

After receiving a radio communication from DeMatteis explaining what he had observed, Sergeant Nicholas Guerriero and other members of the Waterbury police department arrested Shears after a brief chase. Their search of Shears yielded three small, clear plastic bags containing crack cocaine valued at $20 per bag.

The officers then proceeded to the parking lot where the defendant was under surveillance. The defendant was arrested for selling narcotics. At the time of his arrest, the defendant was standing at the rear of the tractor trailer near the ladder leading into the trailer portion of the vehicle. The defendant carried $401 in currency and $100 worth of food stamps on his person when he was arrested.

After the defendant was arrested, Guerriero mounted the step ladder leading into the open right hand door at the rear of the trailer and peered into the trailer. There were watermelons, magazines and straw in the trailer. Guerriero also observed a black pouch approximately one foot behind the closed, left door of the trailer. The black pouch is consistent with the type of containers in which dealers store their narcotics. A search of the black pouch produced thirty-two plastic bags containing a rock like substance that was subsequently determined to be crack cocaine, plus six plastic bags containing a white powder that was determined to be salt form cocaine. No other individuals were observed at the scene during the surveillance. The trial court considered the tractor trailer to be capable of being operated.

The trial court determined that the warrantless search was justified under the automobile exception. “The justification for this . . . exception is twofold: (1) the inherent mobility of an automobile creates exigent circumstances; and (2) the expectation of privacy with respect to one’s [vehicle] is significantly less than relating to one’s home or office. California v. Carney, 471 U.S. 386, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Badgett, supra, 428.

As to the first criterion, the trial court found that the tractor trailer was a vehicle and was capable of being moved readily. At the time of the search, the tractor trailer was fully operable and inherently mobile since the dolly wheels were easily retractable. The trailer was parked in an unfenced, open parking lot less than ten feet from the street. Testimony before the court established that when the tractor trailer was taken into custody and towed to the area where it was secured, the tractor trailer had to be operated to park it in the secure lot. Thus, the trial court properly concluded that the inherent mobility of the tractor trailer created exigent circumstances to justify the search. State v. Quinones, 21 Conn. App. 506, 510, 574 A.2d 1308, cert. denied, 215 Conn. 816, 576 A.2d 546 (1990).

“The absence of probable cause, despite the exigency created by the ready mobility of automobiles and the lesser expectation of privacy in them, will render any warrantless search unreasonable.” State v. Badgett, supra, 429. “This exception to the warrant requirement demands that the officers have probable cause to believe that the vehicle contains contraband. Carroll v. United States, [267 U.S. 132, 153-54, 45 S. Ct. 280, 69 L. Ed. 543 (1925)]. The probable cause determination must be based on objective facts that could have justified the issuance of a warrant by a neutral magistrate at the time the search was made. United States v. Ross, supra, 808.” State v. Badgett, supra.

The trial court found that probable cause existed for the officers to believe that the tractor trailer and the black pouch contained contraband. We agree. The police had probable cause to search the trailer and the pouch because they had reason to believe that narcotics were present in the trailer given the transaction between the defendant and Shears during which the defendant entered the trailer to retrieve the small items he handed to Shears. Those small items were determined to be three small plastic bags containing crack cocaine when they were found on Shears’ person directly following the exchange. Moreover, no narcotics were found on the defendant when he was arrested. On the basis of the officers’ observations, training and experience, there was probable cause to believe that the trailer contained the packets of narcotics. Immediately after he peered inside the trailer, Guerriero noticed the black pouch, which he recognized as the type of container in which dealers store their narcotics. Thus, the warrantless search of the traüer and the black pouch was justified. State v. Quinones, supra. Because the applicability of this exception is dispositive, we will not reach the trial court’s other ground for denying the motion to suppress or alternate grounds set forth by the state.

II

The defendant’s second claim challenges the trial court’s denial of his motion for judgment of acquittal. The defendant contends that the evidence adduced at trial was insufficient to sustain his conviction under General Statutes § 21a-277 (a). The defendant asserts that the state failed to prove beyond a reasonable doubt that he possessed the narcotics found in his tractor trailer and that he intended to sell the narcotics, two elements of the crime of possession of a narcotic substance with intent to sell.

The defendant moved for judgment of acquittal at the completion of the state’s case. Practice Book § 864. This motion was denied and the defendant offered evidence in his defense. The defendant did not move for a judgment of acquittal a second time. “Under the existing rules, when a defendant elects to put on evidence after a denial of his motion for judgment of acquittal at the end of the state’s evidence, he is deemed to have waived his right to appellate review as to the sufficiency of the evidence at the completion of the state’s case. State v. Booker, 28 Conn. App. 34, 41-42, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992); State v. Kari, 26 Conn. App. 286, 291, 600 A.2d 1374 (1991), appeal dismissed, 222 Conn. 539, 608 A.2d 92 (1992).” State v. Wolff, 29 Conn. App. 524, 527, 616 A.2d 1143 (1992). Although the waiver rule has drawn criticism; see State v. Booker, supra; State v. Simino, 200 Conn. 113, 118 n.5, 509 A.2d 1039 (1986); State v. Lizzi 199 Conn. 463, 464-65, 508 A.2d 16 (1986); State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984); State v. Duhan, 194 Conn. 347, 352, 481 A.2d 48 (1984); it is still accepted as the law in Connecticut and we will apply it in this case. State v. Wolff, supra, 527-28 n.5. Thus, because the motion was not renewed, we need not address the defendant’s claim.

Even if the defendant had properly made a second motion for judgment of acquittal, his claim would nevertheless fail. “When a claim on appeal challenges the sufficiency of the evidence, we undertake a two-part task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. King, 216 Conn. 585, 600, 583 A.2d 896 (1990). “In reviewing the sufficiency of the evidence supporting a jury verdict, this court must construe that evidence in the most favorable manner reasonably possible to support the jury verdict.” (Internal quotation marks omitted.) Id., 601. “Our inquiry focuses on whether a rational trier of fact could find guilt proven beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Holder, 18 Conn. App. 184, 194, 557 A.2d 553 (1989).

“It should also be noted that [i]n this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . State v. Allen, 216 Conn. 367, 381, 579 A.2d 1066 (1990). . . . State v. Salz, 26 Conn. App. 448, 458, 602 A.2d 594, cert. granted, 222 Conn. 901, 606 A.2d 1329 (1992). This court will not reweigh the evidence or resolve questions of credibility in making such a determination. State v. Melillo, 17 Conn. App. 114, 117, 550 A.2d 319 (1988). It is within the province of the jury to draw reasonable and logical inferences from the facts proven. State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985). . . . State v. Ruth, 16 Conn. App. 148, 154, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989).” (Internal quotation marks omitted.) State v. Ogrinc, 29 Conn. App. 694, 697, 617 A.2d 924 (1992).

A

“In order to prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); State v. Parent, [8 Conn. App. 469, 473, 513 A.2d 725 (1986)].” (Internal quotation marks omitted.) State v. Melillo, supra, 117-18. “Where, as in the present case, the contraband is not found on the defendant’s person, the state must proceed on the alternate theory of constructive possession, that is, possession without direct physical contact.” State v. Brunori, 22 Conn. App. 431, 436, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990).

Here, the observations of DeMatteis indicated that the defendant was the only person to enter and exit the trailer during the period of observation. The truck was registered in his name and his name was printed on the truck. The jury could have discredited the testimony of the defendant’s son that he also had been in the truck that day while helping his father sell the watermelons. Even if such testimony was found to be credible, other incriminating circumstances support the inference that the defendant constructively possessed the thirty-eight packets of narcotics. The defendant owned the tractor trailer. State v. Santiago, 17 Conn. App. 273, 278, 552 A.2d 438 (1989). The occurrence of the sale and the defendant’s proximity to the rear of the truck at all times further buttress an inference of possession. See State v. Williams, 12 Conn. App. 225, 236, 530 A.2d 627 (1987).

Thus, the jury could reasonably and logically have found from the evidence elicited at trial that the defendant possessed the narcotics.

B

Moreover, sufficient evidence of the defendant’s intent to sell was offered to support his conviction. Proof of intent is usually established through circumstantial evidence from which the jury may draw reasonable and logical inferences. State v. Napoleon, 12 Conn. App. 274, 284, 530 A.2d 634, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987); State v. Avila, 166 Conn. 569, 576, 353 A.2d 776 (1974). “We note that it is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving circumstantial evidence. State v. Napoleon, supra, 284-85.” (Internal quotation marks omitted.) State v. Ogrinc, supra, 699. We find from the evidence presented that the jury could reasonably and logically have determined that the defendant possessed narcotics with the intent to sell them.

“The quantity of narcotics found in the defendant’s possession [is] probative of whether the defendant intended to sell the drugs. State v. Jennings, 19 Conn. App. 265, 270, 562 A.2d 545, cert. denied, 212 Conn. 815, 565 A.2d 537 (1989). Also indicative of the defendant’s intent to sell narcotics is the manner in which the narcotics are packaged. State v. Ruth, supra, 155; State v. Napoleon, supra, 284. Evidence demonstrating that the defendant was present in a known drug trafficking area further suggests an intent to sell. State v. Ruth, supra, 155.” (Internal quotation marks omitted.) State v. Ogrinc, supra.

The defendant was found to have $401 in currency and $100 in food stamps on his person. He was present in an area notorious for drug trafficking. The black pouch containing small bags of cocaine and crack cocaine was located just inside the trailer portion of the tractor trailer that the defendant owned and from which he sold watermelons. The packaging of the cocaine and crack cocaine is consistent with narcotics sales. There was no evidence that the defendant used narcotics, yet thirty-eight small bags of narcotics were in his tractor trailer. State v. Ruth, supra. The quantity of cocaine and crack is consistent with street level narcotics sales and are indicative of the defendant’s intent to sell the narcotics. The large number of bags of narcotics in the defendant’s possession is a fact from which the inference of possession with intent to sell can be drawn. State v. Bowens, 24 Conn. App. 642, 649, 591 A.2d 433, cert. denied, 220 Conn. 906, 593 A.2d 97 (1991). In light of the foregoing, “we cannot say that the inferences leading to the defendant’s conviction were illogical or unreasonable” or insufficient to support a guilty verdict. State v. Ruth, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides in pertinent part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance ... for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned

       The defendant was charged by an original information in three counts for violating the following provisions: General Statutes § 21a-278 (b), sale of certain illegal drugs by a person who is not drug-dependent; General Statutes § 21a-277 (b), sale of a controlled substance; and General Statutes § 21a-278 (a), sale of certain illegal drugs by a person who is not drug-dependent.

       Because the defendant has not provided an independent analysis of his claim under our state constitution, we will review it only under the federal constitution. Our Supreme Court and this court have declined to review a defendant’s state constitutional claim, deeming it to be abandoned, when the defendant has not separately briefed and analyzed that claim. State v. Migliaro, 28 Conn. App. 388, 394 n.2, 611 A.2d 422 (1992).

       There is no dispute that there was, indeed, a search and that the defendant’s arrest was lawful.

       The trial court also relied upon the exception for searches made “ ‘incident to a lawful custodial arrest’; New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); State v. Shaw, 186 Conn. 45, 48, 438 A.2d 872 (1982) . . . .” (Citations omitted.) State v. Badgett, 200 Conn. 412, 424, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

       Only DeMatteis and Guerriero testified at the suppression hearing.

       Our rules of practice provide for motions for judgment of acquittal at the close of the state’s case; Practice Book §§ 863, 864; at the completion of all of the evidence; Practice Book §§ 863 and 865; and after a verdict of guilty. Practice Book § 899.


author: Freedman, J.

text:
    Adelaide Kagan v. Elliot Ginsberg, Commissioner of Human Resources
    (11278)
    Daly, Landau and Freedman, Js.
    Argued February 19 —
    decision released April 6, 1993

      Joseph P. Secóla, for the appellant (plaintiff).

      Nyle K. Davey, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch and Carolyn K. Querijero, assistant attorneys general, for the appellee (defendant).
   Freedman, J.

The plaintiff appeals from the judgment of the trial court dismissing her action brought against the defendant, Elliot Ginsberg, pursuant to the Personal Data Act, General Statutes § 4-190 et seq. In that action, the plaintiff sought the disclosure of certain portions of the file that the defendant maintained on the plaintiff, a family home day-care provider. The portion of the file that the plaintiff sought to obtain related to allegations of child abuse. The defendants refused to disclose this information, claiming that General Statutes (Rev. to 1987) § 17-38a (9) prohibited such disclosure.

Both the plaintiff and the defendant filed motions for summary judgment. After hearing both motions for summary judgment, the trial court dismissed the action sua sponte and entered judgment for the defendant. This appeal followed.

The trial court based its dismissal of the action on its conclusion that the plaintiff had no standing to bring the action because the plaintiff had “failed to allege in her pleadings that a medical doctor has reviewed her file and recommended its disclosure by the Commissioner to the plaintiff,” a procedure that the trial court found to be “a prerequisite” to obtaining relief under General Statutes § 4-195.

In reaching this conclusion, the trial court relied on the provisions of General Statutes § 4-194 (b). The provisions for a review by a qualified medical doctor contained in § 4-194 (b), however, do not apply when the agency refuses to disclose personal data because it is of the opinion that such nondisclosure is mandated by law.

“When the words of a statute are clear and unambiguous, we assume that the words themselves express the legislature’s intent and there is no need to look further for interpretive guidance.” Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 310, 592 A.2d 953 (1991); Suprenant v. New Britain, 28 Conn. App. 754, 758, 611 A.2d 941 (1992). The language of § 4-194 (b) is clear and unambiguous. The provisions relating to medical review only apply when the refusal to disclose personal data is “not mandated by law.” Here, the defendant refused to disclose the information because he believed that nondisclosure was mandated by law. The trial court, therefore, improperly applied § 4-194 (b) to the circumstances of this case.

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

In this opinion the other judges concurred.

       The action was brought against the defendant, Elliot Ginsberg, in his official capacity as commissioner of human resources.

       General Statutes § 17a-101 (g), formerly § 17-38a (9), provides in pertinent part: “The commissioner of children and youth services shall maintain a registry of the reports received pursuant to this section and shall adopt regulations to permit the use of the registry on a twenty-four-hour daily basis to prevent or discover abuse of children. The information contained in the reports and any other information relative to child abuse, wherever located, shall be confidential subject to such regulations governing their use and access as shall conform to the requirements of federal law or regulations. . . .”

       General Statutes § 4-195 provides: “If disclosure of personal data is refused by an agency under section 4-194, any person aggrieved thereby may, within thirty days of such refusal, petition the superior court for the judicial district in which he resides for an order requiring the agency to disclose the personal data. Such a proceeding shall be privileged with respect to assignment for trial. The court, after hearing and an in camera review of the personal data in question, shall issue the order requested unless it determines that such disclosure would be detrimental to the person or is otherwise prohibited by law.”

       General Statutes § 4-194 (b) provides: “If an agency refuses to disclose personal data to a person and, the nondisclosure is not mandated by law, the agency shall, at the written request of such person, permit a qualified medical doctor to review the personal data contained in the person’s record to determine if the personal data should be disclosed. If disclosure is recommended by the person’s medical doctor, the agency shall disclose the personal data to such person if nondisclosure is recommended by such person’s medical doctor, the agency shall not disclose the personal data and shall inform such person of the judicial relief provided under section 4-195.” (Emphasis added.)

       We, of course, express no opinion as to whether the nondisclosure was, in fact, mandated by law. That issue, together with all other issues raised at trial, will have to be addressed by the trial court when it addresses the pending motions for summary judgment.