author: FLYNN, J.

text:
    ROMEO SEVIGNY v. DIBBLE HOLLOW CONDOMINIUM ASSOCIATION, INC., ET AL.
    (AC 21897)
    Dranginis, Flynn and Bishop, Js.

      Argued November 22, 2002
    officially released April 22, 2003

      John D. Palermo, for the appellant (plaintiff).

      Andrew W. Bray, for the appellee (named defendant).

      Scott P. Birrell, for the appellee (defendant Thibodeau Management Services, Inc.).

      Geoffrey Naab, for the appellee (defendant Theodore Vancour).
   Opinion

FLYNN, J.

The plaintiff, Romeo Sevigny, appeals from the judgment of the trial court, rendered after a jury trial on his negligence complaint, in favor of the defendants, Dibble Hollow Condominium Association, Inc., a non-stock coiporation (Dibble Hollow), Thibodeau Management Services, Inc. (Thibodeau), and Theodore Vancour, doing business as Ted’s Lawn Service (Vancour). On appeal, the plaintiff claims that the court improperly (1) charged the jury on negligence and (2) ruled on two evidentiary issues. We conclude that the charge was improper and, therefore, reverse the judgment of the trial court and remand the case for a new trial. We do not reach the evidentiary claims.

The jury reasonably could have found the following facts. The plaintiff owns a condominium unit at the Dibble Hollow Condominiums. The defendant Dibble Hollow is a Connecticut nonstock corporation, of which only the unit owners are the members. Dibble Hollow is responsible for the maintenance of the driveways at the condominium complex. Maintenance includes snow removal, sanding and salting of the driveways, which the individual owners, absolutely, are not obligated to undertake and, in fact, would be discouraged from so doing by the president of Dibble Hollow.

The defendant Thibodeau is the managing agent in control of the operation, management and repair of the premises and employs Steven Cabaniss to manage the Dibble Hollow property as well as several other properties. In 1996, Dibble Hollow began to contract out its snow removal and landscaping needs to Ted Vancour, doing business as CNT Landscaping, but, in September, 1997, CNT went out of business, and Ted Vancour, doing business as Ted’s Lawn Service, assumed the contract with Dibble Hollow. Ted Vancour from Ted’s Lawn Service is the father of the former contractor, eponymously named Ted Vancour from CNT Landscaping. The contract between Dibble Hollow and Vancour required Vancour to provide snow removal and other services to the premises. One of Vancour’s responsibilities was to sand all driveways when icy conditions existed.

On December 28, 1997, the plaintiff slipped and fell on ice in the driveway of his condominium unit while exiting his daughter’s minivan. From approximately noon until 9 p.m. the previous day, mist and snow had fallen, accumulating approximately one-half of an inch, which remained on the ground the day of his fall. The plaintiffs daughter testified that when she and her two year old daughter arrived at her parents’ home to accompany them to a holiday party, she noticed that their driveway was icy and had not been plowed. She instructed them to be careful because the driveway was slippery. When they returned from the party, sometime after 3 p.m., the driveway, which was on an incline, remained covered with ice and still had not been plowed, salted or sanded. The plaintiff, after putting the minivan in park, slipped and fell to the ground as he stepped out of the driver’s door, and the minivan began to slide backward down the driveway. His daughter jumped into the front seat and tried to stop the minivan from sliding backward but, despite repeatedly pumping the brakes, it continued to slide until it reached the end of the short driveway.

The plaintiff had a history of back problems and prior to the fall had undergone three spinal fusions. Because of his back problems, he has been required to wear a leg brace for approximately ten years. As a result of the fall, the plaintiff sustained an additional injury to his lumbar spine and was required to undergo two additional back surgeries.

The plaintiff alleged that the injuries resulting from the accident arose from the negligence of each of the three defendants. Each defendant filed the special defense of contributory negligence. Dibble Hollow also filed a cross claim against the defendant Vancour, claiming that, if the plaintiff had been injured in the manner alleged, his injuries were due solely to Vancour’s negligence. The case was tried to a jury, which returned a verdict for all defendants, finding that the plaintiff, himself, was more than 50 percent causally negligent. The plaintiff filed a motion to set aside the verdict and for a new trial, which the court denied, and judgment was rendered on the jury’s verdict. This appeal followed.

I

The plaintiff first claims that the court improperly instructed the jury on negligence. We agree.

In reviewing claims of instructional error, “[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 .... Our standard of review on this claim is whether it is reasonably probable that the jury was misled. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rales of law. . . . [T]he trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Citation omitted; internal quotation marks omitted.) Macy v. Lucas, 72 Conn. App. 142, 156, 804 A.2d 971, cert. denied, 262 Conn. 905, 906, 810 A.2d 272 (2002). “Pursuant to Practice Book § 16-20, a party may preserve appellate review of a written request to charge without taking an exception to the court’s failure to charge as requested.” Coville v. Liberty Mutual Ins. Co., 57 Conn. App. 275, 284, 748 A.2d 875, cert. granted on other grounds, 253 Conn. 919, 755 A.2d 213 (2000) (appeal withdrawn March 30, 2001); see also Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 445 n.14, 782 A.2d 87 (2001) (providing written request covers issue; party need not take exception on that point).

To apply this standard of review accurately, it is necessary that we examine the requested jury charge, the actual jury charge and the various objections to it raised by the plaintiff.

In this case, the plaintiff alleged one count of negligence against each defendant. The first count, against Dibble Hollow, is based on a common-law theory of negligence and alleges that Dibble Hollow was negligent is several enumerated ways. The second count, against Thibodeau, specifically alleges that Thibodeau was under contract with Dibble Hollow to operate and maintain the common areas of the premises and was also negligent in several enumerated ways. The third count, against Vancour, alleges that Vancour was responsible for maintaining the outside common areas of the premises and that he was negligent in several enumerated ways.

The plaintiff, in part, requested that the court charge the jury that “[a] duty can arise by common law or by contract. . . . [Dibble Hollow] admits that it has the duty to maintain all driveways in the condominium complex, including that which leads to [the plaintiffs] unit. Because [Dibble Hollow], under the terms of its Public Offering Statement, and by its own admissions, has responsibility for the maintenance, repair and replacement of all driveways, [Dibble Hollow] is by common law, in possession and control of all driveways, including that driveway which leads to [the plaintiffs] unit. By both operation of law and by the terms of the Public Offering [Statement, [Dibble Hollow] owed [the plaintiff] a duty to maintain the driveway which leads to his condominium unit in a reasonably safe condition.”

The plaintiff also requested a charge that Dibble Hollow had the legal duty to exercise reasonable diligence in removing, sanding or salting dangerous accumulations of ice or snow within a reasonable time and that it had the legal duty to inspect the driveways to ensure that they were safe, and that the plaintiff had no responsibility to maintain the driveway himself and that he could rely on Dibble Hollow’s duty to maintain the driveway. Additionally, the plaintiff requested a charge that these duties were nondelegable, and, if the other defendants were negligent, then, Dibble Hollow is responsible for that negligence despite its contracts with those defendants. The plaintiff also requested a charge as to his status as an invitee.

As to Vancour, the plaintiff requested a charge that any duty owed to him by Vancour resulted from the contract between Vancour and Dibble Hollow. He further requested that the specific duties of the contract be part of the charge: “The contract in issue required [Vancour] to ‘[s]and all driveways, parking areas, sidewalks and steps when icy conditions exist or at [the] property manager’s request.’ The contract also requires that ‘[a]ll walks must be kept free of ice.’ The contract further requires that all clean up operations such as plowing, shoveling and sanding, be complete within four hours after the end of any storm.”

As to Thibodeau, the plaintiff requested that the court charge that any legal duty owed him by Thibodeau arose out of the management agreement between Dibble Hollow and Thibodeau. Specifically, the plaintiff requested, in part, that the court charge that the terms of this agreement required Thibodeau to “ ‘[ijnspect as necessary the common elements including the exterior portions of the condominium units.’ ” The plaintiff also requested a charge as to agency, in that Thibodeau performed as the agent of Dibble Hollow in connection with the services performed under the management agreement.

The court actually charged the jury, in part, that “each party has charged that the other party was negligent or failed to perform a duty in some way. What does it mean to be negligent? Negligence is a violation of a legal duty, which one person owes to another, to care for the safety of that person or a person’s property.” After stating what the plaintiff had alleged in his complaint, the court went on to discuss the duties owed by each of the defendants. “The [duty] which each of the defendants owes to the plaintiff is contained in the various contracts, which are included in the exhibits; again, which you will have with you in the deliberation room, and which have been referred to both during the testimony and in the closing arguments of counsel. Each defendant has a different contract and a different set of duties. Therefore, the duty owed by each defendant and the liability, if any, of each defendant, must be determined by you separately based upon the terms of the contracts under which their duty arises. That gets back to the reason why you have three separate verdict forms for the defendants and one for the plaintiff. You must consider the liability of each defendant separately.”

The court further charged that “[i]n this case, Dibble Hollow Condominium Association’s duty arises under the Dibble Hollow offering statement, which, according to the testimony, each owner received at their real estate closing. The applicable sections of that document have been admitted into evidence, and ... it has been marked as exhibit forty-four. Please read these exhibits in their entirety. Don’t single out any particular sections. The entire document is an exhibit, and you should review the entire exhibit.”

As to Thibodeau, the court charged that “[t]he duties of the defendant, Thibodeau Management Company, arose out of the Dibble Hollow management agreement, which is admitted as exhibit seven. And finally, in the case of Ted’s Lawn Service, his duties arose under the Dibble Hollow snow removal and land maintenance agreement, which is exhibit three. Again, you will have each of these exhibits with you in the jury deliberation room, and you should read them in order to determine exactly what you believe the duties of each of the defendants was so that you determine whether the defendants] performed their duty under the contract with reasonable care, which I will define in a moment.

“Before I define ‘reasonable care,’ it is important for me to add that the duties created, pursuant to the contracts, cannot be delegated. That means that even if a party enters into a contract with another person to perform all or a portion of their duty, that does not eliminate the contracting party’s duty to do so. Even if a party to a contract enters into a contract with another party to perform that service, he still is liable if that duty is not properly discharged by the party with whom he contracted to perform his duties.”

The court then went on to charge the jury on reasonable care. During that section of the charge, the court explained that “[assuming that you find that [the plaintiff] fell as he claimed, you must then decide whether he fell because of an unreasonable accumulation of ice or snow as a result of the negligence of any one or more of the defendants. The mere existence of ice or snow or both does not in and of itself establish negligence on the part of any defendant. The existence of ice and snow would only establish negligence if, in the exercise of reasonable care, a party with a duty to remove the ice or snow should have removed it on December 28, 1997. Accordingly, for each defendant, you must also determine whether such defendant had a duty to remove or cause to be removed any ice or snow under their respective contracts. And if you find that a particular defendant had such a duty, based upon the conditions as they existed throughout the day of December 28, 1997, you must then determine whether, in the exercise of reasonable care, such defendant having the duty to remove the ice or snow should have in fact removed the ice and/or snow.” The court also charged the jury on legal cause, contributory negligence and damages.

Following this charge, the plaintiffs counsel, for the record, stated the following exceptions: Failure to include the duty to inspect arising under the common law; failure to include the theory of “reliance on another acting properly”; failure to include the theory of agency; failure to include a charge on future medical expenses; and failure to instruct on the common-law theory of negligence. In summation, counsel stated that his “simple point is that there was no discussion of the common-law duties, and without more guidance as to such duties, respectfully, Your Honor, I don’t think the jury has enough to understand such legal duties, and that’s all I have to say.” In response, the court went through each exception of the plaintiff and concluded that these additional charges were either unwarranted or redundant.

Counsel for Thibodeau also took exception to the charge on duty of care, stating that “while it is the jury’s province to decide ... if the duty of care was breached . . . what the duty was under the contract ... is an issue of law that the court should decide . . . .” Counsel went on to quote the specific portion of the charge to which he objected: “The specific charge [to which] we take exception . . . reads, ‘You will have each of these contracts with you in the jury deliberating room, and you should read them to determine exactly what you believe their duties were in determining whether a defendant performed its duties with reasonable care, which I will define for you in a moment.’ ” The court noted his exception.

On appeal, the plaintiff argues, and we agree, that, in essence, the trial court told the jury to read the contracts and to decide what duties each of the defendants owed to the plaintiff. Although he specifically did not take an exception to the court’s failure to define the duties of each defendant, the plaintiff did request that the duties be specified in his request to charge. As such, this claim was properly preserved. See Practice Book § 16-20; Scanlon v. Connecticut Light & Power Co., supra, 258 Conn. 445 n.14; Coville v. Liberty Mutual Ins. Co., supra, 57 Conn. App. 284. Additionally, we concur with the plaintiffs argument that the court improperly omitted a charge on the common-law theory of negligence as alleged against Dibble Hollow. We will analyze each of these claims in turn.

A

“We first note that the determination of whether a duty exists between individuals is a question of law.” Jaworski v. Kiernan, 241 Conn. 399, 404, 696 A.2d 332 (1997). “The existence of a duty of care is an essential element of negligence. ... A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.” (Citation omitted; internal quotation marks omitted.) Emerick v. Kuhn, 52 Conn. App. 724, 755, 737 A.2d 456, cert. denied, 249 Conn. 929, 738 A.2d 653, cert. denied sub nom. Emerick v. United Technologies Corp., 528 U.S. 1005, 120 S. Ct. 500, 145 L. Ed. 2d 386 (1999). “[T]he existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.” (Internal quotation marks omitted.) Hernandez v. Cirmo, 67 Conn. App. 565, 568-69, 787 A.2d 657, cert. denied, 259 Conn. 931, 793 A.2d 1084 (2002).

General Statutes § 52-216 directs that “[t]he court shall decide all issues of law and all questions of law arising in the trial of any issue of fact; and, in committing the action to the jury, shall direct them to find accordingly. The court shall submit all questions of fact to the jury, with such observations on the evidence, for their information, as it thinks proper, without any direction as to how they shall find the facts. After the action has been committed to the jury, no pleas, arguments or evidence may be received before the verdict is returned into court and recorded.”

Additionally, our rules of practice further instruct that “[t]he judicial authority shall decide all issues of law and all questions of law arising in the trial of any issue of fact; and, in committing the cause to the jury, shall direct them to find accordingly, and shall submit all questions of fact to the jury . . . .” Practice Book § 16-9.

In this case, the court improperly left the issue of duty to the determination of the jury by instructing the jury to review the contracts of the defendants and to determine what duties arose from these contracts in relation to the defendants. We hold that this instruction was improper and that it is reasonably probable that the jury was confused and misled by such an instruction.

Our Supreme Court has held that it is the responsibility of the trial court correctly to adapt the law to the case in question and to provide sufficient guidance to the jury in order that it may reach a correct verdict based on a proper application of the law. See Macy v. Lucas, supra, 72 Conn. App. 156. In this case, instructing the jury that it had the responsibility to read the contracts and determine what legal duty each defendant owed the plaintiff deprived the jury of the court’s guidance. The determination of what duties existed was a question of law for the court and only after it had determined those duties and instructed the jury on them, should the jury have been given the opportunity to assess whether the defendants had breached those duties based on the facts of this particular case. See Hernandez v. Cirmo, supra, 67 Conn. App. 568-69; see also General Statutes § 52-216; Practice Book § 16-9. Accordingly, we conclude that the court’s instructions in this regard were incomplete and, therefore, improper.

B

We next review the court’s omission of an instruction on a theory of common-law negligence, as alleged by the plaintiff against Dibble Hollow, because the court concluded that the relationship between the condominium association and the owner of an individual condominium unit does not fall under the traditional analysis of a land possessor and an invitee. The plaintiff claims that the court improperly failed to charge on a theory of common-law negligence, arguing that the common-law duty owed him by Dibble Hollow is the same as the traditional common-law duties owed by a possessor of land to an invitee. We agree.

“In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee. Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971); see D. Wright, J. FitzGerald & W. Ankerman, Connecticut Law of Torts (3d Ed.) § 47, p. 109. A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. Warren v. Stancliff, 157 Conn. 216, 218, 251 A.2d 74 (1968). In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover. Id.; see generally D. Wright, J. FitzGerald & W. Ankerman, supra, § 49.” Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992). The duties owed an invitee by a possessor of land, however, do not normally extend to a licensee because the licensee must take the property as he or she finds it. Id.

“Invitees fall into certain general categories. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. ... A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. . . . [General Statutes § 52-557a], which provides that [t]he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee, in effect recognizes a third kind of invitee, namely, the social invitee. The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land, to enter the land or remain on the land. Although an invitation itself does not establish the status of an invitee, it is essential to it. Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee but it does not make him an invitee.” (Internal quotation marks omitted.) Kurti v. Becker, 54 Conn. App. 335, 338, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999).

In this case, much like a tenant in a driveway specifically allocated for his use, but controlled and maintained by the landlord or other land possessor, the plaintiff certainly had more than mere permission to be in his driveway. See Martinez v. Woodmar IV Condominium Homeowners Assn., Inc., 189 Ariz. 206, 208-209, 941 P.2d 218 (1997) (association, much like landlord, has duty to maintain common areas under its control and to keep them in safe condition for protection of unit owners and their guests); Sacker v. Perry Realty Services, Inc., 217 Ga. App. 300, 457 S.E.2d 208 (1995) (condominium owner was invitee, not licensee, because of clear mutuality of obligations and interests between owner and association), cert. denied, 1995 Ga. Lexis 914 (July 14, 1995); White v. Cox, 17 Cal. App. 3d 824, 828, 95 Cal. Rptr. 259 (1971) (because unincoiporated association is separate legal entity, member-unit-owner can maintain negligence action for injury sustained on common area). Properly, a “[Condominium association may ... be held to [a] landlord’s standard of care as to common areas under its control.” Annot., 45 A.L.R.3d 125 (Sup. June, 2002); see 15A Am. Jur. 2d 823, Condominiums and Cooperative Apartments § 58 (2000). “Generally, [condominium] associations with the status of a legal entity are considered subject to civil liability . . . .” Annot., 45 A.L.R.3d 1171, 1174 (1972). “In an action to recover for injuries allegedly suffered because of the condition of common areas of a condominium it has been held that a condominium association may be sued for negligence in its common name.” Id.; see 15A Am. Jur. 2d 822, supra, § 57. An individual unit owner who is a member of the association may also maintain a negligence action against the association for negligent maintenance of its common areas. 45 A.L.R.3d, supra, 1174-75; 15A Am. Jur. 2d 822, supra.

General Statutes § 47-200 et seq., the Common Interest Ownership Act, pursuant to which Dibble Hollow was created, provides, in part, that a common interest condominium community is a legal entity in which an individual unit owner owns a particular unit in the development and that the undivided interests in the common elements are vested in the unit owners. See General Statutes § 47-202 (8). General Statutes § 47-249 provides in relevant part: “(a) Except to the extent provided by the declaration, subsection (b) of this section or subsection (h) of section 47-255, the association is responsible for maintenance, repair and replacement of the common elements . . . .” General Statutes § 47-253 provides in relevant part: “(a) A unit owner is not liable, solely by reason of being a unit owner, for injury or damage arising out of the condition or use of the common elements. ... (b) An action alleging a wrong done by the association, including an action arising out of the condition or use of the common elements, may be maintained against the association and not against any unit owner. ...”

The courts of several other states have analogized a unit owner’s relationship with a condominium association as being akin to a tenant’s relationship to a landlord with regard to the common areas, and that such a relationship involves the same duty of care as that owed to an invitee. See annot., 45 A.L.R.3d 1171 (“[condominium association may properly be held to landlord’s standard of care as to common areas under its control”); 15A Am. Jur. 2d 823, supra, § 58 (same); Martinez v. Woodmar IV Condominium Homeowners Assn., Inc., supra, 189 Ariz. 208-209; O’Connor v. Village Green Owners Assn., 33 Cal. 3d 790, 191 Cal. Rptr. 320, 662 P.2d 427 (1983); White v. Cox, supra, 17 Cal. App. 3d 828; Sacker v. Perry Realty Services, Inc., supra, 217 Ga. App. 300; Pratt v. Maryland Farms Condominium Phase 1, Inc., 42 Md. App. 632, 402 A.2d 105 (1979). We find nothing in our statutes, case law or Dibble Hollow’s public offering statement that contravenes this reasoning. Rather, they, in addition to other frequently cited legal authorities, support it.

Additionally, annot., 59 A.L.R.4th 489, 492 (1988), which concerns the liability of a condominium association for third party criminal attacks, provides a basic overview of when a landlord’s duty is imposed properly on an association: “In determining whether to impose a landlord’s duty of care on a condominium owners association, regarding its members and their guests, courts may consider whether the association conducts itself as would a landlord in the traditional landlord-tenant relationship, performing such business functions as maintaining and repairing common areas, providing security, obtaining insurance, and managing the property, generally.”

In this case, Dibble Hollow was a nonstock corporation, a separate legal entity, that assumed the responsibility of maintaining, repairing and replacing all of the common elements, including designated parking places and driveways. The president of Dibble Hollow at the time of the plaintiffs fall, Linda Colo, specifically testified at trial that Dibble Hollow was responsible for the maintenance of the driveways, regardless of whether they are considered common elements or limited common elements and that this maintenance includes snow removal, sanding and salting of the driveways. She further testified that the individual owners were under no obligation to maintain their driveways and that such an undertaking would be discouraged by her as the president of Dibble Hollow. Such an undertaking, by a separate legal entity, is consistent with the traditional landlord-tenant relationship.

Although we agree with the court that, at the time of trial, there existed no Connecticut appellate authority concerning the status of a condominium association in relation to a unit owner, construing the previously mentioned undisputed evidentiary facts in combination with our statutes, case law and other relevant legal authority, we conclude that the court should have included in its charge to the jury the plaintiffs claim of common-law negligence.

II

Each of the defendants argues, assuming arguendo, that the court improperly instructed the jury, that the jury’s conclusion, as shown by its answers to the interrogatories, that the plaintiff was more than 50 percent contributorily negligent, makes any alleged improper instruction harmless. We do not agree.

Essentially, the defendants argue that because the finding of contributory negligence exceeding 50 percent of the total causal negligence is a bar to recovery under the provisions of the comparative negligence statute, General Statutes § 52-572h (b), any claimed error is irrelevant in light of that finding.

We conclude that the logical process in which the jury had to engage to determine the respective causal negligence of each of the parties to the case was intertwined with the need to hear a complete and accurate instruction from the court about the duties owed by Dibble Hollow and the other defendants to the plaintiff, as well as a complete and accurate instruction on each properly pleaded theory of negligence. The two are not severable. Put another way, for the juiy to make its determinations as to comparative negligence and whether the plaintiffs own causal negligence exceeded 50 percent of the total causal negligence, it needed a proper instruction as to the legal duty of all of the defendants to the plaintiff on each properly pleaded theory of negligence before it could determine that the defendants had not negligently breached any duties owed to the plaintiff.

In this case, the court failed to charge on common-law negligence that was pleaded and failed to define the duties owed by the defendants to the plaintiff. Merely telling the jury to read the contracts and to determine, for itself, what duties were owed to the plaintiff deprived it of the proper guidance on a question of law necessary to guide it to a correct verdict. In the absence of any charge as to the defendants’ duties to the plaintiff, the juiy could not properly assess the comparative responsibility of all parties.

There were two sets of answers to interrogatories that the court provided to the jury, which are pertinent here. In the first set, consisting of the first, third and fifth interrogatories and answers, the jury found that the defendants were not negligent. This finding is certainly tainted by the court’s failure to define the legal duties owed by the three defendants to the plaintiff and by its failure to charge on common-law negligence, which was pleaded and on which there was evidence. The answer to another interrogatory found the plaintiff more the 50 percent responsible for his own injuries.

General Statutes § 52-572h (b) provides in relevant part that contributory negligence shall not bar recovery if the “negligence was not greater than the combined negligence of the person or persons against whom recovery is sought . . . .” Judge Wright’s treatise on jury instructions suggests the following comparative negligence charge language: “The first part concerns what is called in the law a complete bar to recovery. If we combine every act and omission of every party to the action [that] caused the injury, we have all, or 100% of the negligence involved. If the person seeking recovery for that injury is more than 50% to blame (negligent) for that injury, he cannot recover any damages from any of the other participants in the accident. His recovery is barred.” 1 D. Wright & W. Ankerman, Connecticut Jury Instructions (Civil) (4th Ed. 1993) § 193, pp. 362-63.

For the jurors to be properly charged, they needed to know about all negligent breaches of duty pleaded against the defendants on which there is evidence. In that sense, since they needed to evaluate the total causative negligence of the plaintiff and all defendants, error in the charge that taints the finding concerning the defendant’s negligence taints the entire finding of negligence. If the jury concluded, solely on the basis of an improper charge, that none of the defendants owed a duty to the plaintiff, then it would be impossible for the jury accurately to assess the total causal negligence of the parties.

“When the legislature first enacted § 52-572h, abrogating the absolute bar of contributory negligence in favor of the doctrine of comparative negligence, that statutory abrogation applied only to injury to persons or damage to property arising out of the ownership, maintenance or use of a private passenger motor vehicle .... Public Acts 1972, No. 273, § 6. In 1973, the legislature broadened the comparative negligence doctrine to include negligence claims outside of the automobile no-fault system. . . . Public Acts 1973, No. 73-622, § 1.” (Internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 583, 657 A.2d 212 (1995). “The purpose of comparative negligence is to ameliorate the harshness of the complete bar to liability resulting from the common law defense of contributory negligence. W. Prosser, Torts (4th Ed. 1971) § 67. This change in policy was accomplished by mandating a comparison by the fact finder of the relative degrees of negligence of the plaintiff and the defendant. [Section] 52-572h (b) provides that contributory negligence shall not bar recovery in an action by any person ... to recover damages resulting from personal injury [or damage to property] ... if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought .... The purpose of the comparative negligence statute was to replace the former rule, under which contributory negligence acted as a complete defense, with a rule under which contributory negligence would operate merely to dimmish recovery of damages based upon the degree of the plaintiffs own negligence.” (Emphasis added; internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., supra, 585-86.

Were this case subject to our former rule of contributory negligence as a total bar to recovery rather than the comparative negligence statute, the defendants’ argument would make some logical sense, and the jury’s finding that the plaintiff bore some responsibility for his injuries would limit our inquiry. The same analysis does not hold true under the doctrine of comparative negligence because the jury must “compare” the total negligence of the parties. See id. If the jurors are not even charged as to whether the defendants had a duty or were negligent on one of the theories properly pleaded in the complaint, they cannot accurately compare the negligence of the parties. In this case, the court, rather than define for the jury the duties of each defendant in relation to the plaintiff as our law clearly necessitates, in essence, instructed the jury to read the contracts itself and to determine each defendant’s duty. The determination of whether a duty exists is a question of law, but whether such a duty is breached is a question of fact. See Hernandez v. Cirmo, supra, 67 Conn. App. 568-69; 2 Restatement (Second), Torts § 328B, p. 151 (1965), and comments thereto. The court also omitted any charge on the specifications of the plaintiffs common-law theory of negligence, which was a clear theory of recovery pleaded in the plaintiffs complaint. A plaintiff is entitled to an instruction on any theory properly raised in his or her complaint and reasonably supported by the evidence. See Goodmaster v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993) (“court should . . . submit to the jury all ‘issues as outlined by the pleadings and as reasonably supported by the evidence’ ”). Both of these omissions made it impossible to have an error-free path to the jury’s verdict notwithstanding the interrogatory answer as to the plaintiffs negligence and the separate interrogatory as to the defendants’ negligence.

“[T]he trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Internal quotation marks omitted.) Macy v. Lucas, supra, 72 Conn. App. 156. In this case, because the court failed to properly charge the jury, the jury was not presented with this case in such a way that injustice was not done to either party under the established rules of law. See id.

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

In this opinion the other judges concurred.

       The defendants Dibble Hollow and Thibodeau were, at least initially, represented by the same counsel. Counsel on December 28, 1999, filed an answer to the plaintiffs complaint, addressing both the first count, brought against Dibble Hollow, and the second count, brought against Thibodeau. The answer, as related to the third count, brought against Vancour, stated that “[t]hese defendants do not respond to Count Three as it is not directed towards them.” The answer did not contain a caption indicating that it was filed on behalf of both defendants, and it was signed only on behalf of one defendant, Thibodeau. We treat the answer, however, as apparently both the parties and the court did, as an answer on behalf of both Dibble Hollow and Thibodeau.

       We note that the plaintiff pleaded, and the defendant Dibble Hollow specifically denied in its answer, that Dibble Hollow “owned, operated, maintained, possessed and/or controlled the common areas . . . .”
      Nevertheless, article I, § 1.5, of Dibble Hollow’s declaration to its public offering statement states that common elements are “[a]ll portions of the [c]ommon [i]nterest [c]ommunity other than the [u]nits.” Article V, § (f), provides that designated parking places are considered a limited common element, the fee ownership of which is vested in all of the unit owners. Article I, § 1.17, states in relevant part that limited common areas are “[a] portion of the [c]ommon [elements allocated by the [public offering statement] ... for the exclusive use of one or more but fewer than all of the [u]nits....” Article VI, §§ 6.1 and 6.3, state that Dibble Hollow is responsible for maintaining, repairing and replacing all of the common elements, with the exception of some specific portions of the limited common elements. Designated parking places are not listed among those specifically excluded limited common elements.
      We also note that, although designated parking places are discussed in the public offering statement and considered limited common elements, the status of driveways is not specifically mentioned. Nevertheless, driveways or designated parking places are not excluded, by virtue of article VI, from the common elements or limited common element for which Dibble Hollow is responsible.

       Dibble Hollow and Thibodeau alleged that the defendant was contributorily negligent in that he: “a. Failed to make [reasonable] use of his own senses and faculties; b. Failed to watch where he was stepping; c. Failed to step over, away from or around whatever defective or dangerous condition he claims existed; d. He failed to use that degree of care that an ordinary prudent person would have exercised for this own safety while using the premises under the circumstances and conditions then present.”
      Vancour alleged that the plaintiff was contributorily negligent in that “a. He failed to watch where he was stepping; b. He knew, or in the exercise of due care should have known, that the driveway was slippery, but nevertheless took no precautions, or inadequate precautions, to prevent slipping when he got out of the car; c. He failed to exercise due care for his own safety in the circumstances.”

       Specifically, among the grounds for the motion to set aside the verdict and grant a new trial were the following: “1. That the trial court erred in failing to instruct the jury correctly on the duty of care each of the defendants owed to the plaintiff. 2. That the trial court failed to correctly charge the jury that the defendant, [Dibble Hollow], owed the plaintiff a duty to maintain the area where he fell, to inspect the area where he fell and to take reasonable precautions to remove or otherwise maintain the driveway in a reasonably safe condition. 3. That the trial court failed to instruct the jury on the legal duties which flow as a result of the maintenance, operation, possession or control of the property in issue. 4. That the trial court failed to properly and correctly instruct the jury on the common law duties owed to the plaintiff by [Thibodeau]. 5. That the trial court failed to properly and correctly instruct the jury on the common law duties owed to the plaintiff by [Vancour]. 6. That the trial court failed to properly and correctly instruct the jury on the common law duties owed to the plaintiff by [Dibble Hollow]. 7. That the trial court failed to instruct the jury correctly and completely regarding the legal duties each of the defendants owed to the plaintiff based on contract submitted into evidence .... 8. The trial court failed to charge in accordance with plaintiffs Request to Charge . . . .”

       In relation to the plaintiff s request to charge on a common-law theory of negligence against Dibble Hollow, the court refused to so charge, at least in part because of the lack of appellate authority on the issue, concluding that a unit owner does not fall under the traditional analysis of the duties owed by a land possessor to an invitee.

       We note that neither defendant argues that this is a general verdict. We agree. Additionally, because there were interrogatories in this case, the jury’s decision-making path is evident.

       This is so because under our former rule, a plaintiff was completely barred from recovery if his negligence materially contributed to producing file resulting accident even if it were concurrent with the negligence of one or more defendants. Seabridge v. Poli, 98 Conn. 297, 304, 119 A. 214 (1922).

       See Hernandez v. Cirmo, supra, 67 Conn. App. 568-69; 2 Restatement (Second), Torts § 328B, p. 151 (1965), and comments thereto.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    KAREN TRACY v. ALLSTATE INSURANCE COMPANY

    (AC 21535)
    Lavery, C. J., and Schaller and Flynn, Js.

    Argued December 2, 2002
    officially released April 22, 2003

      Guy L. DePaul, for the appellant (plaintiff).

      J. Kevin Golger, for the appellee (defendant).

      Michael C. Jainchill, with whom, on the brief, were Kathryn A. Calibey, Douglas W. Hammond and Joram Hirsch, for the Connecticut Trial Lawyers Association as amicus curiae.

       This opinion supersedes in part the opinion of this court in Tracy v. Allstate Ins. Co., 70 Conn. App. 726, 799 A.2d 1109 (2002), which was published on July 2, 2002. This opinion supersedes the prior opinion only as to whether the tolling provisions of General Statutes § 38a-336 (g) (1) apply to the insurance policy at issue.

       Chief Judge William J. Lavery, and Associate Judges Barry R. Schaller and Joseph P. Flynn heard this case initially on March 21, 2002.

   Opinion

SCHALLER, J.

The plaintiff, Karen Tracy, filed a motion requesting that we reconsider our decision in Tracy v. Allstate Ins. Co., 70 Conn. App. 726, 799 A.2d 1109 (2002), rendered on July 2, 2002, affirming the judgment of the trial court. We granted the plaintiffs motion and ordered reargument by the parties. Although we now modify our analysis of the tolling provision of General Statutes § 38a-336 (g) (l), we conclude, as before, that the plaintiffs action was time barred and, accordingly, affirm the judgment of the trial court.

As we stated in Tracy v. Allstate Ins. Co., supra, 70 Conn. App. 727: “On February 20, 1996, the plaintiff, while driving her own vehicle, was injured in a motor vehicle accident caused by the negligence of another driver (tortfeasor). At the time of the accident, she was insured under an automobile insurance policy issued by the defendant. The plaintiff brought an action against the tortfeasor and, on August 24, 1999, settled that action for $20,000, thereby exhausting the liability limits of the tortfeasor’s insurance policy. On July 2, 1999, the plaintiff gave written notice to the defendant that she intended to pursue an underinsured motorist claim on the policy. On February 29, 2000, the plaintiff commenced an action against the defendant, seeking benefits for damages in excess of the tortfeasor’s policy limits pursuant to the underinsured motorist provisions of her policy. The defendant filed an answer and special defenses in which it asserted, inter alia, that the plaintiffs cause of action was barred by the three year limitation period contained in the policy that it had issued to her. On July 24, 2000, the defendant filed a motion for summary judgment. The court granted the motion and rendered judgment in the defendant’s favor . . . .”

The plaintiff appealed from the summary judgment rendered when the court determined that her action was barred by the contractual limitation provision authorized by § 38a-336 (g) (1) and included in her automobile insurance policy with the defendant. Id., 727-28. We affirmed the judgment of the trial court and concluded: “Because it is undisputed that the plaintiff failed to file her underinsured motorist action against the defendant within three years from the date of the accident, as she was required to do, and because the tolling provisions of § 38a-336 (g) (1) do not apply to the defendant’s policy with her, we conclude that the plaintiffs action is barred. We further conclude that the court’s decision to grant the defendant’s motion for summary judgment was legally and logically correct and supported by the facts set out in the memorandum of decision.” Id., 735.

Thereafter, the plaintiff filed a motion for reconsideration of her claim, stating that General Statutes § 52-576, not § 38a-336 (b) and (g) (1), should apply to her policy because the policy’s language was ambiguous and, due to its ambiguity, the six year limitation statute should have been applied. Moreover, the plaintiff asserts that she should not be penalized, considering that she diligently pursued the claim. We granted the motion to reconsider. On July 17, 2002, an application for permission to appear and to submit a brief as amicus curiae was filed by the Connecticut Trial Lawyers Association (association), and was granted on September 11, 2002. On September 27, 2002, the association filed a motion of amicus curiae for permission to argue before our court. On October 22, 2002, we granted the motion of the association for permission to argue.

The plaintiff fails to present us with any persuasive reason why we should modify our prior determination that § 38a-336 (b) and (g) (1), and not § 52-576, apply to this matter. We will not, therefore, revisit that issue. The association, however, takes issue with our conclusion based on Coelho v. ITT Hartford, 251 Conn. 106, 752 A.2d 1063 (1999), that the tolling provision of § 38a-336 (g) (1) does not apply to insurance policies that have contractual limitation periods of three years or greater. It argues that our determination would operate to deprive an insured of the tolling provision set forth in § 38a-336 (g) (1), contrary to the legislative intent and history of the statute.* ***

In our previous decision, relying on Coelho, we held that the insurance policy provisions regarding exhaustion of the tortfeasor’s liability coverage and consent to settle did not prevent the plaintiff from filing an action within three years of the date of the accident and, moreover, that the policy provisions were not inconsistent with the limitation provisions found in §§ 38a-336 (g) (1) and 52-576. Tracy v. Allstate Ins. Co., supra, 70 Conn. App. 732-33. We also held, again relying on the dicta in Coelho, that the tolling provision of § 38a-336 (g) (1), was inapplicable to the plaintiffs policy because the provision applies only to limitation periods of less than three years, and the plaintiffs policy had a limitation period of three years. Id., 733. After carefully reviewing the record, the briefs, the Coelho opinion, other case law and the legislative history concerning the statute’s language and purpose, we are persuaded that our initial interpretation of the tolling provision must be modified.

“Statutory construction is a question of law and therefore our review is plenary. . . . The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) Gohel v. Allstate Ins. Co., 61 Conn. App. 806, 810, 768 A.2d 950 (2001); see also State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc). “In construing a statute and determining the legislative intent, we may take judicial notice of the discussions on the floor of the General Assembly although such discussions are not controlling on statutory interpretation.” (Internal quotation marks omitted.) Gohel v. Allstate Ins. Co., supra, 815.

The legislative history of Public Acts 1993, No. 93-77 (P.A. 93-77), now codified as § 38a-336 (g) (1), “indicates that it was enacted with the express purpose of repairing a perceived flaw in the legislative scheme concerning the timing for filing claims for uninsured motorist or underinsured motorist coverage. That flaw had been exposed by the Supreme Court in its decision in McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 617 A.2d 445 (1992).” Gohel v. Allstate Ins. Co., supra, 61 Conn. App. 811; see also Serrano v. Aetna Ins. Co., 233 Conn. 437, 443 n.7, 664 A.2d 279 (1995). The legislature had the McGlinchey holding in mind when it drafted and voted on P.A. 93-77. See Gohel v. Allstate Ins. Co., supra, 812; Serrano v. Aetna Ins. Co., supra, 453 n.20; 36 H.R. Proc. Pt. 8, 1993 Sess., pp. 2751-52, remarks of Representative Cameron C. Staples. Section 38a-336 (g) (1), furthermore, provides “a vehicle for contracting out of the six year statutory limitations period by authorizing an insurer to demand written notice of an impending claim within a period that the insurer itself establishes.” Coelho v. ITT Hartford, supra, 251 Conn. 117.

The legislative history and the text of the statute make it clear that no insurance company is permitted to place in its policy a limitation period of less than three years from the date of the accident for uninsured and underinsured motorist claims. Gohel v. Allstate Ins. Co., supra, 61 Conn. App. 813, citing 36 H.R. Proc., supra, pp. 2751-52, remarks of Representative Staples. For underinsured motorist claims, the statute allows that limitation period of three or more years to be tolled provided that the tolling provisions are satisfied. “[Tjhree years after the date of the accident, there needs to be notice provided. . . . [T]he insurance company still needs to be notified within three years in writing that there’s the possibility that a claim will be brought for underinsured motorist coverage and then, after that notice, there needs to be action brought within 180 days of the exhaustion of the limits of liability.” (Internal quotation marks omitted.) Gohel v. Allstate Ins. Co., supra, 813, quoting 36 H.R. Proc., supra, p. 2752, remarks of Representative Staples. The legislative history further illustrates that a limitation period of less than three years is considered invalid, and therefore, “we would resort to the six year statute of limitations for regular contract actions in those cases.” Gohel v. Allstate Ins. Co., supra, 813, quoting 36 H.R. Proc., supra, pp. 2753-54, remarks of Representative Staples.

If we were to continue to rely on the Coelho court’s dicta in our reading of the statute, the tolling provision would, in general, become superfluous and in essence would be read out of the statute. As previously discussed, an insurance policy cannot have a limitation period of less than three years. If the limitation provided in the policy is for less than three years, in violation of the statute, the provision becomes invalid and the limitation reverts back to the six year contract limitation. There can never be a case in which the tolling provision would apply to a policy with a limitation period of less than three years because any such period would be invalid.

We now conclude that it was not appropriate to rely on the Coelho court’s analysis of the tolling provision of § 38a-336 (g) (1) because the Coelho court’s interpretation did not constitute a holding pertaining to that section of § 38a-336. See Coelho v. ITT Hartford, supra, 251 Conn. 114-17. The Coelho court recognized that § 38a-336 (g) (1) provides a mechanism by which a claimant may toll the limitation period in the policy by giving the insurer written notice of a claim for underinsured motorist benefits and then commencing an action or arbitration within 180 days after exhaustion of the tortfeasor’s policy. Id., 117. That statutory scheme provides security to an insured without prejudicing an insurer’s ability to respond to a dated claim. Id. The Coelho court, however, stated: “The act’s tolling provisions expressly apply to those contracts that limit the time for commencing a recovery proceeding to a period of less than three years from the date of accident . . . .” (Emphasis added; internal quotation marks omitted.) Id., 115-16.

The Coelho court’s discussion on that matter was not germane to its holding, which involved § 52-576, and is, therefore, not binding on us. “As dicta, it is not binding on this court in the resolution of this appeal.” Millman v. Paige, 55 Conn. App. 238, 242 n.4, 738 A.2d 737 (1999). Section 52-576 does not have a similar tolling provision for which the Coelho court would need to draw an analogy to better understand the pertinent section of the statute. The parties in Coelho both agreed that the limitation period at issue was § 52-576 because a limitation period had not been set forth in the insurance policy as would have been required for § 38a-336 (g) (1) to have applied. The point of contention in Coelho was deciphering at what time the six year contractual limitation period would begin to run. Neither party claimed § 38a-336 (g) (1) applied, but merely referenced it. Our reliance on Coelho in our previous opinion was, therefore, unnecessary and we now adopt an interpretation of the statute that is consistent with the meaning of its plain language.

Consistent with the statutory framework, we conclude that the tolling provision of § 38a-336 (g) (1) applies to the plaintiffs insurance policy. The policy expressly included a limitation provision of three years, which complies with the mandatory condition set forth in the statute. Accordingly, § 38a-336 (g) (1) applies to the policy, and the plaintiff had the opportunity to exercise the tolling provisions set forth in the statute and to prevent her claim from becoming stale. It is undisputed that the plaintiff provided written notice of her underinsured motorist action to the defendant on July 2, 1999, more than three years after the accident. The plaintiff, as a result, failed to avail herself of the tolling provisions. We conclude that the plaintiffs action is time barred.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 38a-336 (g) (1) provides: “No insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim may be made on the uninsured or underinsured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of accident, provided, in the case of an underinsured motorist claim the insured may toll any applicable limitation period (A) by notifying such insurer prior to the expiration of the applicable limitation period, in writing, of any claim which the insured may have for underinsured motorist benefits and (B) by commencing suit or demanding arbitration under the terms of the policy not more than one hundred eighty days from the date of exhaustion of the limits of liability under all automobile bodily injury liability bonds or automobile insurance policies applicable at the time of the accident by settlements or final judgments after any appeals.”

       General Statutes § 52-576 (a) provides in relevant part: “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . . .”

       General Statutes § 38-336 (b) provides in relevant part: “An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured and underinsured motorist coverage, exceed the limits of the insured’s uninsured and underinsured motorist coverage. . . .”

       In our initial opinion, we relied on Coelho in resolving tlie plaintiffs first two assertions of alleged ambiguity in the policy concerning exhaustion of the liability limits and consent to settle. See Tracy v. Allstate Ins. Co., supra, 70 Conn. App. 730 n.2; see also Coelho v. ITT Hartford, supra, 251 Conn. 115. In Coelho, our Supreme Court was asked to interpret an insurance policy, under General Statutes § 52-576, that required a claim for underinsured benefits to be initiated within six years of the date of the accident. Coelho v. ITT Hartford, supra, 108. To decipher when benefits accrue, the court read § 52-576 in conjunction with other pertinent legislation, primarily General Statutes § 38a-336 (b). Coelho v. ITT Hartford, supra, 111-12. The court looked to § 38a-336 (b) to determine when a claim for underinsured motorist benefits could successfully be maintained and found that benefits would be paid only after the liability limits of the tortfeasor’s policy had been exhausted. Id. We see no reason to reevaluate our reliance on Coelho with respect to the plaintiffs first two claims because the Coelho court’s analysis of § 38a-336 (b) was germane to its interpretation and application of § 52-576 in the case before it.

       Our Supreme Court recently made explicit our approach to the process of statutory interpretation in State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc). The court held: “The process of statutory interpretation involves a reasoned search for the intention of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” Id.

       It appears that the Coelho court, recognized that its statements were dicta in that it added a footnote, stating that although “at oral argument before this court the defendant seemed to retreat from its position regarding the applicability of P.A. 93-77 [now § 38a-336 (g) (1)] to the plaintiffs’ claim, in the absence of an explicit retraction, we address the argument we understand to be articulated in the defendant’s brief.” Coelho v. ITT Hartford, supra, 251 Conn. 115 n.6. From our review of the transcripts of oral argument in Coelho, it appears that the plaintiffs’ counsel only mentioned § 38a-336 (g) (1) in passing, but did not rely on it.


author: HENNESSY, J.

text:
    MURRAY RUGGIERO v. DIANA RUGGIERO
    (AC 22426)
    Lavery, C. J., and SchaUer and Hennessy, Js.
    Argued January 9
    officially released April 22, 2003

      Diane Potan, for the appellant (plaintiff).

      Margo t Kenefick Buckle, for the appellee (defendant).

      Kate L. Rizzo, for the minor child.
   Opinion

HENNESSY, J.

The plaintiff, Murray Ruggiero, appeals from the judgment of the trial court rendered after it modified its order of custody and visitation of his minor children. The plaintiff claims that the court improperly ordered him to (1) undergo a psychological evaluation and (2) pay all of the attorney’s fees for the guardian ad litem in connection with the proceedings to determine if the custody and visitation orders should be modified.

The following facts and procedural history are necessary for our resolution of the plaintiffs appeal. On June 1,1999, the court dissolved the marriage of the plaintiff and the defendant, Diana Ruggiero. At that time, the court rendered judgment based on a separation agreement between the parties. The court awarded the parties joint legal custody of the two minor children, with the defendant having physical custody and the plaintiff having visitation rights “not limited to a minimum of two days per week.”

On September 22, 2000, the plaintiff filed a motion to appoint an attorney or guardian ad litem for his minor children. On September 28, 2000, at the request of the plaintiff, the matter of custody of the minor children was referred to the family services unit for an evaluation. The plaintiff claimed that the defendant was exhibiting abusive behavior toward his children.

On January 23, 2001, the court-appointed attorney Kate L. Rizzo to represent the minor children. On February 26, 2001, Phyllis Cummings-Texeira, a family services counselor, issued her assessment and recommendations. The counselor found that the plaintiff was coaching his minor child to say negative things about the defendant and to report false accusations. The evaluation also stated that the plaintiffs “use and involvement of the children borders on abusive. His inability to have any insight or, give any thought to the impact that his coaching would have on his children is reprehensible. [The defendant], on the other hand is provocative in her dealings with the [the plaintiff]. . . . [The plaintiffs] contact with his children is minimal and he should be permitted to have more access if he is able to refrain from the type of behavior that he has exhibited during this evaluation. . . . [The plaintiffs] blatant use and involvement of his children leads one to question his motivation for seeking custody and whether he truly believes that to triangulate his children is in their best interest.”

On September 7, 2001, the court reduced the plaintiffs child support payment. On September 14, 2001, the defendant filed an ex parte motion for modification of visitation and custody seeking to grant her sole custody, and to suspend the plaintiffs visitation rights on the ground that continued visitation is not in the best interests of the children and is emotionally and psychologically damaging to the children. On the same day, the court ordered that the plaintiff and the defendant continue to have joint legal custody, but ordered the plaintiff not to have contact with the children “pending further order of the court.” The court also ordered that Rizzo “shall immediately resume her representation [of] the children in the capacity of guardian ad litem, her payment to be determined.” The court also instructed Rizzo to make recommendations concerning any physical or psychological examinations of the children prior to a hearing.

On September 15, 2001, the department of children and families (department) received a referral from the social worker at the school of one of the children concerning allegations of abuse. The matter was investigated by Erin Cowley, a social worker from the department. During an initial interview by Cowley, the older child claimed that the younger sibling was being abused by a male acquaintance of the defendant. During Cowley’s second interview, she asked for details concerning the alleged abuse, and the older child told her that the story had been fabricated. Initially, the older child told Cowley that the plaintiff had told the older child to make up the stoiy. At a later time, the older child told Cowley that the story had been made up without the plaintiffs involvement. Cowley testified that she and the school social worker believed that the children were not being abused by the defendant or any of the defendant’s friends.

On September 20, 2001, the plaintiff filed a motion for evaluation of the minor children by an independent therapist. On September 27, 2001, the plaintiff filed a motion for an evaluation to determine whether the defendant suffers from alcoholism. On October 1, 2001, the plaintiff filed a response to the defendant’s ex parte motion to modify custody and visitation. On October 2, 2001, the defendant filed a motion for a psychiatric evaluation of the plaintiff. On October 2,2001, the plaintiff filed a motion for a polygraph examination of both parties, and a motion for psychiatric evaluation and testing for both parties.

On October 2 and 10, 2001, the court heard evidence concerning the motion for modification of visitation and custody and the parties’ other motions. The court heard testimony from the plaintiff and the defendant, and from Rizzo, Cowley, Cummings-Texeira and the plaintiff’s current wife, Angela Ruggiero. Following the presentation of evidence, the court stated: “Here’s what’s sad about this case. [The plaintiff] has raised an issue of parental alienation, and it’s my finding that [the plaintiff] has been guilty of parental alienation in two ways: One of them is that he . . . attempted to alienate the children from [the defendant], and the second is that the result of that is that he has alienated the children from himself.” The court then gave its reasons for concluding that the plaintiff himself was responsible for the alienation of the children.

The court then ruled that “[the plaintiffs] motion for a psychiatric evaluation of the family unit is denied subject to whatever orders I make. [The plaintiff’s] motion for a polygraph exam is denied. . . . [The plaintiffs] motion for evaluation of alcohol abuse by [the defendant] is denied. [The plaintiffs] motion for an independent therapist is denied. [The defendant’s] motion for a psychiatric exam concerning [the plaintiff] is granted. . . .

“I’m going to follow attorney Rizzo’s recommendation that visitation be in a therapeutic environment. But what I’m going to require is that before that visitation takes place, that [the older child’s counselor, John Renzulli] see the child separately on one or two occasions as he believes is necessary. And that thereafter, [the plaintiff] will meet with him and the child, and this is specifically with regard to [the older child]; when their therapeutic visitation takes place on separate occasions, it can be with [the younger child] if Mr. Renzulli feels that that is necessary. And that when Mr. Renzulli believes that the objectives of therapeutic visitation have been accomplished, that the attorney for the children will return to the court with an immediate motion concerning visitation and I will address how visitation will take place after that time.” The court also ruled that the plaintiff would pay all of Rizzo’s fees as guardian ad litem since the reappointment on September 14, 2001. Additional facts will be set forth as necessary.

I

The plaintiffs first claim is that the court improperly ordered him to undergo a psychiatric evaluation. The plaintiff claims that the court lacks authority to order a psychiatric evaluation in a postjudgment motion if there no longer is a pending family matter. See Janik v. Janik, 61 Conn. App. 175, 179, 763 A.2d 65 (2000), cert. denied, 255 Conn. 940, 768 A.2d 949 (2001); Savage v. Savage, 25 Conn. App. 693, 701, 596 A.2d 23 (1991). We conclude that the order for a psychiatric evaluation no longer is in effect due to events that have occurred subsequent to the filing of this appeal because there no longer is a pending family matter.

General Statutes § 46b-6 allows a court to order an investigation in a pending family matter that may be helpful to the proper disposition of the case. General Statutes § 46b-3 allows the court to employ the services of a psychologist or psychiatrist in carrying out such an investigation.

In Savage, this court stated that the trial court abused its discretion when it ordered a postjudgment consultation of the parties and the minor with a child expert four times a year “so that more information could be gathered in hopes that the parties would agree in the future to a custody arrangement or that the attorney for the minor children would move, if appropriate, for a modification of the court’s custody order.” (Emphasis added.) Savage v. Savage, supra, 25 Conn. App. 699. This court stated: “Until such time as a motion for modification of custody is made and a court has altered custody, the original custody award remains undisturbed. . . . The trial court’s order here compelling consultation with [the counselor] for two years into the future is not a proper custody order but rather is an attempt to force consultation for purposes of a post-judgment evaluation. There is no statutory authorization for such an evaluation without a pending motion or matter before a court.” (Citation omitted.) Id., 701.

In Janik, the plaintiff sought to modify custody. Janik v. Janik, supra, 61 Conn. App. 176-77. The court ordered a change from joint legal custody and visitation rights in the plaintiff to sole legal and physical custody with the plaintiff and visitation rights to the defendant. Id. In addition, the court ordered a psychiatric evaluation of the defendant. Id., 177-78.

On appeal, this court stated that although the trial court had authority to order a psychiatric or psychological evaluation for the purpose of determining the best interests of the child and disposing of a family matter in a modification of custody case, the court did not have authority to order the evaluation after it modified custody. Id., 180. “We noted in Savage that the statutory provisions, §§ 46b-6 and 46b-3, refer topending family relations matters only and, moreover, that the utility of such evaluations lies in their ability to shed light on the facts of a particular case so that it may be disposed of properly. . . . Once a case has been disposed of by the rendition of a final judgment and there is nothing further pending . . . there is no longer a reason for ordering an ongoing evaluation.” (Citation omitted; internal quotation marks omitted.) Id., 179.

In the present case, we do not need to address the issue of whether the matter was still a pending family matter when the court ordered the plaintiff to undergo a psychiatric examination. Under Janik and Savage, the order for a psychiatric evaluation is no longer in effect because events subsequent to the filing of this appeal have rendered this no longer a pending family matter.

On October 18, 2001, the plaintiff filed a motion to reconsider psychiatric evaluation and testing of the family unit in which he requested that both parties and the minor children undergo psychiatric evaluation. In that motion, the plaintiff stated: “I am willing to go for an evaluation. The court can set it up on a sliding scale because I do not have medical insurance. I believe that both parents should be evaluated.” On October 26,2001, the plaintiff filed this appeal. On December 4, 2001, the defendant filed a motion for contempt that included a request for a finding of contempt “on the part of the plaintiff for his failure to undergo a psychiatric evaluation as ordered by this court.” On January 3, 2002, the court denied the motion for contempt “with respect to the plaintiffs failure to undergo a psychiatric evaluation pursuant to court order.”

On May 15, 2002, Rizzo, acting as guardian ad litem for the children, filed a motion for modification of visitation, requesting a termination of supervised visitation. On October 24, 2002, the court approved an agreement and issued an order that included an unsupervised visitation schedule for the plaintiff. The agreement stated that “[t]he above visitation schedule is subject to monitoring.”

We conclude that the court, having accepted the agreement and issued its custody and visitation orders, has no motion pending before it and therefore lacks statutory authority to order the plaintiff to undergo a psychiatric evaluation. See Savage v. Savage, supra, 25 Conn. App. 701. The order of a psychiatric examination for the purpose of properly disposing of a family matter, in a modification of custody case, is to assist in determining the best interest of the child. Janik v. Janik, supra, 61 Conn. App. 178; see also Pascal v. Pascal, 2 Conn. App. 472, 479, 481 A.2d 68 (1984) (“[§ 46b-6 and § 46b-3] provide a means by which the court, in its discretion, may obtain a disinterested assessment of the facts”). When the court approved the agreement and issued its visitation order, it was determining the best interests of the children without the assistance of the plaintiffs psychiatric evaluation, and the purpose of the evaluation has been rendered moot. The dispute no longer is a pending family matter on the basis of the court’s acceptance of the custody and visitation agreement.

“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. . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Schiavone v. Snyder, 73 Conn. App. 712, 716, 812 A.2d 26 (2002). Because the court no longer has the statutory authority to order the plaintiff to submit to a psychiatric evaluation, the order that he do so must be vacated.

II

The plaintiffs second claim on appeal is that the court improperly ordered him to pay all of the fees for the guardian ad litem for his minor children in connection with the proceedings to determine if the custody and visitation orders should be modified. The plaintiff claims that the court did not consider the respective financial circumstances of the parties. We do not agree.

The court may order either party to pay the fees for the guardian ad litem pursuant to General Statutes § 46b-62, and how such expenses will be paid is within the court’s discretion. Roach v. Roach, 20 Conn. App. 500, 508, 568 A.2d 1037 (1990). “[W]e may not alter an award of attorney’s fees unless the trial court has clearly abused its discretion, for the trial court is in the best position to evaluate the circumstances of each case. . . . Because the trial court is in the best position to evaluate the circumstances of each case, we will not substitute our opinion concerning counsel fees or alter an award of attorney’s fees unless the trial court has clearly abused its discretion.” (Citation omitted; internal quotation marks omitted.) LaMontagne v. Musano, Inc., 61 Conn. App. 60, 64, 762 A.2d 508 (2000).

The court made a factual finding that the plaintiff had behaved inappropriately and, therefore, should be required to pay for the fees of the guardian ad litem. Pursuant to § 46b-62, the court must consider the total financial resources of the parties when awarding attorney’s fees. Turgeon v. Turgeon, 190 Conn. 269, 280, 460 A.2d 1260 (1983). The record indicates that the court did understand and consider the parties’ financial circumstances when it ruled during the proceedings. When the court ruled that the plaintiff would be required to pay the attorney’s fees for the guardian ad litem for the children, the court also discussed the potential need of the parties to undergo counseling. During that part of the ruling, the court stated: “I’m aware of the financial circumstances of these parties . . . .” The court also heard evidence concerning the decrease in child support payments that the plaintiff was required to pay to the defendant. The record indicates that the court considered the financial circumstances of the parties, and the plaintiff has not persuaded us that the court abused its discretion.

The order that the plaintiff undergo a psychological evaluation is vacated and the award of attorney’s fees is affirmed.

In this opinion the other judges concurred.

       The plaintiff also appealed from the court’s order for therapeutic visitation and its finding that he had engaged in parental alienation. Subsequent to the filing of the parties’ briefs to this court, a new visitation agreement was reached between the parties. At oral argument, both parties agreed that those additional claims were moot based on the new visitation agreement.
      As we will discuss, the court made a factual finding that the plaintiff had engaged in parental alienation. The plaintiff’s claim concerning parental alienation dealt with the issue of the validity of a finding of parental alienation syndrome. The court did not address any potential mental health condition. This opinion utilizes the court’s factual conclusion that the plaintiffs activity as a parent alienated the defendant, and this court makes no decision concerning the validity of such a syndrome.

       There is no accusation that the parents engaged in sexual abuse of the minor children and, therefore, General Statutes § 54-86e may not be applicable. There were allegations of abuse, however, and the names and gender of the minor children are omitted from this opinion.

       From the date of the divorce judgment on June 1,1999, through September, 2001, both parties had filed numerous motions dealing with visitation, psychiatric evaluations and child support. Those motions are not relevant to the issues involved with this appeal due to the agreement between the parties concerning visitation.

       General Statutes § 46b-6 provides: “In any pending family relations matter the court or any judge may cause an investigation to be made with respect to any circumstance of the matter which may be helpful or material or relevant to a proper disposition of the case. Such investigation may include an examination of the parentage and surroundings of any child, his age, habits and history, inquiry into the home conditions, habits and character of his parents or guardians and evaluation of his mental or physical condition. In any action for dissolution of marriage, legal separation or annulment of marriage such investigation may include an examination into the age, habits and history of the parties, the causes of marital discord and the financial ability of the parties to furnish support to either spouse or any dependent child.”

       General Statutes § 46b-3 (a) provides in relevant part: “For the purposes of any investigation or pretrial conference the judge presiding at any family relations session may employ the services of any probation officer, including those under the direction of the Office of Adult Probation, physician, psychologist, psychiatrist or family counselor. . . .”

       We note that the court continues to have jurisdiction over custody and visitation matters subject to a motion to modify pursuant to General Statutes § 46b-56. See Schult v. Schult, 40 Conn. App. 675, 686, 672 A.2d 959 (1996), affd, 241 Conn. 767, 699 A.2d 134 (1997).

       The plaintiff filed motions after the agreement was approved by the court. Those motions concern financial affairs, and do not involve visitation and custody issues.

       General Statutes § 46b-62 provides in relevant part: “In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. If, in any proceeding under this chapter . . . the court appoints an attorney for a minor child, the court may order the father, mother or an intervening party, individually or in any combination, to pay the reasonable fees of the attorney or may order the payment of the attorney’s fees in whole or in part from the estate of the child. ...”


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. THOMAS CRISANTI
    (AC 22387)
    Schaller, Flynn and Dupont, Js.
    Argued February 21
    officially released April 22, 2003

      Frank P. Cannatelli filed a brief for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Jason Germain, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Thomas Crisanti, appeals from the denial of his motion for contempt, first dated February 10, 2001, and renewed on July 23, 2001, in which he sought the return of a motorcycle. The February 10 motion sought to hold the division of state police of the Connecticut department of public safety, which was not a party in this action, in contempt for its failure to return a motorcycle to him per an order of the court, Levine, J., dated September 1, 2000. The February 10 motion was not acted on. In the renewed motion, the defendant made it clear that he was seeking an order from the court that the motorcycle be returned forthwith.

On October 29,1999, the defendant was arrested and charged with the theft of an automobile, which charge was nolled on January 20, 2000. The court, Holden, J., on January 26, 2000, ordered that all seized property, which included a 1974 Harley Davidson motorcycle, be returned to the rightful owner upon proper claim within six months of the date of the order.

The defendant was again arrested on January 31, 2000, as a result of a warrant, and was charged with three counts of altering a motor vehicle identification number. Those charges were closed out under of General Statutes § 14-140 after the defendant failed to appear for a scheduled court date. As a part of its orders, the court, Holden, J., after finding the motorcycle to be contraband, ordered the motorcycle transferred to the examiner of state property pursuant to General Statutes § 14-149 (a), which provides in relevant part that no person shall have in his “possession any motor vehicle . . . with a mutilated, altered or removed vehicle identification, factory or engine number or a number which shows evidence of having been tampered with

In a motion dated August 9, 2000, the defendant requested the return of the motorcycle on the grounds that he provided proof of ownership via the presentation of its registration form and that the same motorcycle had been seized and released in 1979 based on the same allegations of it being contraband. On September 1, 2000, the court opened the file that had been closed under § 14-140, and the defendant pleaded guilty, under the Alford doctrine, to two counts of altering a vehicle identification number in violation of § 14-149 (d). After making that plea, the defendant’s counsel asked the court, Levine, J., for the return of the motorcycle. The prosecutor did not object, and the court granted the defendant’s request, apparently unaware of Judge Holden’s order.

Judge Levine ordered a subsequent hearing on the return of the motorcycle after being apprised of Judge Holden’s earlier ruling. At that hearing, Judge Levine denied the defendant’s motion, filed pursuant to General Statutes § 51-33a. The court also ruled that a finding of contempt under General Statutes § 54-36a would not offer the remedy of return of the motorcycle either. The court explained to the defendant that he would have to bring an action specifically against the state police to determine the validity of the court’s order to return the motorcycle, and, in that action, he would have to prove that he was the rightful owner of the motorcycle and that he had made a proper request for return of the motorcycle within six months of the disposition of his case, or that the return of the motorcycle specifically was part of his plea agreement in connection with his arrest for alteration of a vehicle identification number.

We conclude that the court properly denied the renewed motion for contempt because neither § 51-33a nor § 54-36a afford, as a remedy for contempt, the very remedy sought by the defendant, namely, return of the motorcycle. Under § 51-33a, the remedy is limited to a $500 fine, six months imprisonment or both. Under § 54-36a (1), the remedy for criminal contempt is limited to a fine of not more than $100. Because the defendant concedes that return of the motorcycle was the remedy that he sought, rather than contempt fines or imprisonment, which could induce that result, we conclude that the court properly denied the return of the motorcycle.

The judgment is affirmed.

       Apparently, as a result of that subsequent arrest, the state police continued to hold the motorcycle. Other than the finding of the court that the motorcycle was contraband, there is nothing in the record that explains how the motorcycle became part of the subsequent case or whether any of the charges associated therewith related to the motorcycle.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).