author: FREEDMAN, J.

text:
    JOHN PILLAR ET AL. v. TOWN OF GROTON ET AL.
    (AC 16604)
    Dupont, C. J., and Spear and Freedman, Js.
    Argued June 9
    officially released July 11, 1997

      Eugene C. Cushman, for the appellants (plaintiffs).

      Kimberly A. Colfer, with whom, on the brief, was Andrew Brand, for the appellees (defendants).

       July 11, 1997, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

FREEDMAN, J.

The plaintiffs appeal from the judgment of the trial court denying their request for an injunction against the defendants. The plaintiffs claimed that any ordinances, resolutions or votes at a special meeting held by the Groton town council on June 25,1996, were illegal because one of the members of the Groton town council was not a resident of the town of Groton at the time of the meeting. The plaintiffs claimed that, if carried out, those ordinances, resolutions or votes would cause large sums of money to be expended by the town of Groton. We disagree with the plaintiffs and affirm the judgment of the trial court.

The trial court found the following facts. On June 25, 1996, the Groton town council held a special meeting. Present at that meeting were council members Dolores E. Hauber, Lori N. Bartinik, Jane S. Dauphinais, Frank O’Beirne, Jr., Bernard W. Steadman and Harry Watson. At that meeting, the council set a date for a public hearing for an ordinance appropriating $450,000 for additions and improvements to the Shennecossett golf course (golf course bond ordinance) and referred those proposed improvements to the planning commission in accordance with the town charter and state statutes. Also at the same meeting, the council set a public hearing for an ordinance appropriating $10,388,000 for additions and improvements to the water pollution control authority (sewer bond ordinance) and referred those proposed improvements to the planning commission in accordance with the town charter and state statutes.

Steadman, who participated in the special meeting on June 25, 1996, was not a resident of Groton on that date. The trial court found that “[n]o member of the Town Council was clearly aware of the fact that Bernard W. Steadman was not a resident of Groton on June 25, 1996, nor did the members of the Town Council have sufficient time to conduct a thorough investigation in response to the information obtained by them after reading The [New London] Day article published on June 23, 1996,” two days before the special meeting. That article referred to Steadman’s residency. The trial court also found that no other town official had clear information indicating that Steadman was not a resident of the town of Groton on June 25, 1996, and that Stead-man had resigned as a councilor effective July 1, 1996.

The plaintiffs brought the present action, seeking temporary and permanent injunctions prohibiting the defendants from implementing the golf course and the sewer bond ordinances. The plaintiffs alleged that although Steadman ceased to be a resident, he continued to sit on the town council, to participate in its deliberations and to vote on items that came before the council. The plaintiffs further alleged that pursuant to the Groton town charter, six council members are necessary for a quorum, and that between January 1 and July 1, 1996, town council meetings were held and business conducted therein at which there would not have been a quorum but for the presence of Steadman. Finally, the plaintiffs alleged that the ordinances, resolutions or votes adopted at the June 25, 1996 special meeting were illegal and, if carried out, would cause large sums of money to be expended by the town of Groton.

The trial court, following a hearing, denied the plaintiffs’ request for injunctive relief, stating in part that “[wjhile it would have been preferable that Mr. Stead-man not participate at the June 25, 1996 meeting, no action clearly mandated by the charter was taken at that meeting, and those actions which were clearly mandated by the charter were taken at a later time without the participation of Mr. Steadman. Consequently, the court finds that the ordinances in question are not invalid, legally ineffective or ultra vires.” The plaintiffs appeal that decision.

We begin by noting that “[t]he charter or statute by which the municipality is created is its organic act. Neither the corporation nor.its officers can do any act, make any contract, or incur any liability not authorized thereby, or by the legislative act applicable thereto. All acts beyond the scope of the powers granted are void. Thus, in the exercise of its powers, a municipal corporation is said to be confined to the circumference of those granted and may not travel beyond the scope of its charter or in excess of the granted authority.” (Emphasis in original; internal quotation marks omitted.) Highgate Condominium Assn. v. Watertown Fire District, 210 Conn. 6, 16-17, 553 A.2d 1126 (1989). “[W]here the town charter prescribes a particular procedure by which a specific act is to be done or a power is to be performed, that procedure must be followed for the act to be lawful.” Miller v. Eighth Utilities District, 179 Conn. 589, 594, 427 A.2d 425 (1980).

According to the plaintiffs, the golf course bond and the sewer bond ordinances are invalid because there was no quorum at the June 25, 1996 special meeting. The plaintiffs rely on § 4.4 of the Groton town charter, which provides in part that “[s]ix (6) members [of the council] shall constitute a quorum, but no ordinance, resolution, or vote, except a vote to adjourn or to fix the time and place of the next meetings, shall be adopted by less than five (5) affirmative votes. . . .” Section 2.7.1 of the Groton town charter provides in part that “[a]ny person ceasing to be a resident or elector of said town shall thereupon cease to hold elective office in the town.” Because Steadman was not a resident of the town of Groton on June 25, 1996, the plaintiffs argue that there was no quorum for the June 25, 1996 special meeting and, therefore, the Groton town council had no authority to take the action that it did at that meeting.

The defendants argue, however, that they have complied with all of the steps necessary to pass a valid ordinance that are contained in General Statutes § 7-157 and § 4.6 of the Groton town charter. Specifically, the defendants argue that § 4.6 of the Groton town charter, which provides for public hearings and publication of ordinances, does not specifically require votes to set the date of a public hearing, to publish an ordinance, or for referral of matters to the planning commission. Since that is the only section of the town charter that deals with the steps necessary to pass a valid ordinance, the defendants claim that a presumption arises that § 4.6 contains all of the necessary steps to pass a valid ordinance. According to the defendants, whether there was a quorum for the June 25, 1996 special meeting is irrelevant to the validity of the ordinances because the actions taken at that meeting were unnecessary for the passage of the ordinances. We agree with the defendants.

Section 4.6 of the Groton town charter outlines the steps necessary for the passage of a valid ordinance, specifying the publication and public hearing requirements. The trial court was presented with evidence that the town of Groton complied with all of these steps and, on the basis of that evidence, concluded that “the required public hearings have been duly noticed and held, the matters have been referred and approved by the planning commission, the ordinances have been adopted by legal votes of the town council and the representative town meeting, and the final decision on the matter will be made by the public at the ballot box on November 5.”

Specifically, § 4.6 provides in relevant part that “[a]t least one public hearing, notice of which shall be given at least five (5) days in advance by publication of the proposed ordinance in a daily newspaper having circulation within said town, shall be held by the town council before any ordinance shall be passed . . . .” The trial court was presented with the following evidence. On July 3, 1996, in accordance with § 4.6, notices of the proposed ordinances were published in the New London Day. On July 16, 1996, public hearings were held on the proposed ordinances. According to the minutes of the July 16, 1996 meeting, after the public hearings were closed, the town council discussed the proposed ordinances. Both of the proposed ordinances passed unanimously by a vote of six to zero and were referred to the representative town meeting. On August 14, 1996, the regular representative town meeting took place. According to the minutes of that meeting, with regard to the golf course bond ordinance, the motion to approve the resolution was passed unanimously. With regard to the sewer bond ordinance, the motion to approve the resolution was passed with a vote of twenty-two in favor and eight opposed.

Section 4.6 further provides in relevant part that “[n]otice of the passage of an ordinance shall be published once in a daily newspaper having circulation in the town.” The trial court was presented with the following evidence. On August 21, 1996, notice of passage of both ordinances was published in the New London Day. The sewer bond ordinance, however, was further required to be approved by referendum pursuant to § 8.12 of the Groton town charter. As previously noted, the referendum was held on November 5, 1996, and passed.

On the basis of those facts, we agree with the conclusion of the trial court that the ordinances in question “are not invalid, legally ineffective or ultra vires.” As the defendants correctly argue, and as the trial court properly noted, § 4.6 of the Groton town charter does not specifically provide for votes to set the date of a public hearing, to publish an ordinance, or for referral of matters to the planning commission. Because all of the procedures specified by § 4.6 were followed, we conclude that the ordinance was legally adopted. See State v. Gordon, 143 Conn. 698, 702, 125 A.2d 477 (1956).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs, John Pillar, Clyde W. Burrell, Jr., and Dennis Gagnon, are citizens, residents, taxpayers and voters of the town of Groton.

       The defendants are the town of Groton, the Groton town council, Groton town council members Dolores E. Hauber, Rose Marie Althuis, Lori N. Bartinik, Jane S. Dauphinais, Catherine Kolnaski, Frank O’Beime, Jr., Harry Watson and Chaz Zezulka III, Groton town manager Robert P. LeBlanc, and Groton town clerk Barbara Tarbox.

       The trial court found that most of the members of the Groton town council had read an article that appeared in the New London Day on June 23, 1996, which contained the following paragraph: “Steadman is divorced with two grown children. He has been living with friends in Stonington since January 1st, when he sold his house on Dogwood Lane in Mystic.”

       Specifically, the plaintiffs claimed, inter alia: “1. A temporary and permanent ¡injunction prohibiting and restraining the defendants from implementing or issuing bonds and notes in the sum of $450,000.00 for Shennecossett Golf Course improvements.
      “2. A temporary and permanent injunction prohibiting and restraining the defendants from implementing an ordinance appropriating $10,388,000.00 for additions and improvements to the Water Pollution Control Facility and a sewer system evaluation study and authorizing the issue of bonds and notes in the same amount to defray said appropriations.
      “3. A temporary and permanent ipjunction prohibiting and restraining the defendant Town Clerk from authenticating any action of the Town Council unless said action by the Town Council was enacted at a meeting duly held in accordance with the provisions of the Town Charter.”

       Section 4.4, entitled “Meetings; quorum; ordinances and resolutions to be confined to one subject; records,” provides as follows: “At the first meeting of the council following the general town election the council shall fix the time and place of its regular meetings and shall provide a method for the calling of special meetings. It shall determine its own rules of procedure, which rules shall provide for petitions for citizens. All meetings of the council for the transaction of business shall be open to the public. Six (6) members shall constitute a quorum, but no ordinance, resolution, or vote, except a vote to adjourn or to fix the time and place of the next meetings, shall be adopted by less than five (5) affirmative votes. All ordinances and resolutions shall be confined to one subject which shall be clearly stated in the title; provided, however, that nothing herein shall prevent the enactment of an ordinance of codification. The council shall keep for public inspection a journal which shall be the official record of its meetings. The record so kept shall be authenticated for each meeting by the signature of the chairman or the clerk, or both.”

       General Statutes § 7-157, entitled “Publication. Referendum. Publication of Summary,” provides in relevant part: “(a) Ordinances may be enacted by the legislative body of any town, city, borough or fire district. Any such ordinance so enacted, except when enacted at a town or district meeting, shall become effective thirty days after publication thereof in some newspaper having a circulation in the municipality in which it was enacted, provided, upon a petition of not less than fifteen per cent of the electors of such municipality filed with the town or borough clerk, as the case may be, within thirty days after the publication of such ordinance, asking that the same be submitted to the voters of such municipality at its next regular or special meeting, it shall beso submitted and in such event shall not become effective unless a majority of the voters voting at such meeting vote in favor thereof. Any ordinance enacted at a town or district meeting shall become effective fifteen days after publication thereof in some newspaper having a circulation in such town or in such district, as the case may be. Cities and other municipalities whose charters provide for the maimer in which they may enact ordinances may enact ordinances in such manner. ...”

       Section 4.6 of the Groton town charter, entitled “Public hearing and publication of ordinances,” provides in relevant part: “4.6.1 General. At least one public hearing, notice of which shall be given at least five (5) days in advance by publication of the proposed ordinance in a daily newspaper having circulation within said town, shall be held by the town council before any ordinance shall be passed, except an ordinance relating to appointments or designations of officers or to the town council or its procedures. Every ordinance, after passage, shall be given a serial number and be recorded by the town clerk in a book to be kept for that purpose, which shall be properly indexed. Notice of the passage of an ordinance shall be published once in a daily newspaper having circulation in the town. Said notice shall include the title, serial number and complete text of the ordinance, except that if so directed by the town council a description of the ordinance prepared by the town attorney may be substituted for the complete text. Every ordinance, unless it shall specify a later date, shall become effective on the forty-fourth day after publication of the aforesaid notice of passage except any ordinance which requires for passage affirmative action by the town council and the representative town meeting shall become effective on publication of the aforesaid notice. A referendum ordinance passed by the town council and the representative town meeting shall become effective upon approval by a majority of the qualified voters of the town voting at a referendum election. Upon a petition of not less than five (5) percent of the electors of the Town of Groton, filed with the town clerk within forty-four (44) days after publication of any ordinance, asking that the same be submitted to the electors of said Town of Groton at its next regular election or at a special election, it shall be so submitted. Such ordinance shall remain effective unless a majority of the electors voting on such ordinance equal to at least fifteen (15) percent of the electors listed on the last registry list vote against such ordinance. This section shall not apply to any ordinance for which a referendum right exists under any other provision of the Groton Town Charter. The town council shall require the town clerk to mail to each member of the representative town meeting a copy of each ordinance as proposed or adopted by the town council within five (5) business days after filing with the town clerk’s office.”

       The trial court rendered its decision on October 31, 1996, denying the injunction. The referendum passed at the November 5, 1996 election.

       Section 8.12 of the Groton town charter, entitled “Borrowing,” provides: “The town shall have the power to incur indebtedness by issuing its bonds or notes as provided by the general statutes subject to the limitations thereof and the provisions of this section. The issuance of bonds and notes shall be authorized by ordinance and if any such bond or issuance of notes, except notes in anticipation of taxes to be paid or other revenue to be received within the fiscal year in which issued, shall exceed when authorized the sum of seven hundred fifty thousand dollars ($750,000.00) or which shall, when added to all other bond issues or issuance of notes previously authorized in the same fiscal year bring the total of such bond issues or issuance of notes authorized for that fiscal year to a sum in excess of seven hundred fifty thousand dollars ($750,000.00), said bond issue or issuance of notes shall be approved by referendum vote on voting machines at any regular town, state or special election or at a referendum called for that purpose.”


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    GLENS FALLS INSURANCE COMPANY v. MARIA F. SYBALSKY ET AL. MARIA F. MASON ET AL. v. GLENS FALLS INSURANCE COMPANY
    (AC 16479)
    Dupont, C. X, and O’Connell and Lavery, Js.

      Argued June 5
    officially released August 19, 1997

      Christopher W. Bromson, for the appellants (defendants in the first case, plaintiffs in the second case).

      Lloyd D. Pedersen, for the appellee (plaintiff in the first case, defendant in the second case).
   Opinion

LAVERY, J.

The plaintiffs in the second case, Maria Mason Sybalsky and Julia Sybalsky, appeal from the judgment of the trial court denying their application to correct an arbitration award and granting the defendant’s application to correct the award. On appeal, the plaintiffs contend that the trial court incorrectly incorporated Connecticut’s minimum underinsured motorist coverage requirements, as determined by New York law, into the plaintiffs’ insurance policy, which was issued by the defendant. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for the resolution of this appeal. On May 30, 1991, the plaintiffs were injured in a two car automobile collision with an underinsured driver, David Emery. At the time of the collision, the plaintiffs were insureds under a certain automobile policy issued by the defendant, which had been executed in New York. The insurance policy at issue provided for $50,000 in underinsured motorist coverage and $340,000 in liability coverage per occurrence. The plaintiffs had four vehicles insured under this policy.

Subsequent to the collision, the defendant maintained that, under the policy at issue, its underinsured motorist obligations had a limit of $50,000. The plaintiffs, however, contended that they were entitled to $1,360,000 in underinsured motorist coverage, as a function of “stacking” the $340,000 coverage on each of their four insured vehicles. Pursuant to the terms of the policy, the plaintiffs’ claim was submitted to arbitration. At arbitration, the plaintiffs argued that since the collision occurred in Connecticut, the New York insurance contract should be reformed to reflect the underinsured motorist benefits of $340,000 per accident, which is the amount of liability coverage purchased by the plaintiffs. In addition, the plaintiffs continued to assert that they had $1,360,000 available to them for underinsured coverage as a result of their stacking. By a two to one vote, the arbitration panel concluded that the defendant, pursuant to the insurance contract, had to provide the plaintiffs with $340,000 in underinsured motorist coverage, which was the equivalent of the policy’s liability coverage. The arbitrators also ruled that stacking did not apply.

Both parties filed applications in the Superior Court, the defendant to correct the panel’s decision, and the plaintiffs to vacate that decision. After hearing argument on the matter, the trial court granted the defendant’s application to correct. The trial court held that, pursuant to the insurance contract, the total underin-sured motorist coverage aváilable to the plaintiffs was $50,000. The plaintiffs now appeal the judgment of the trial court.

On appeal, the plaintiffs contend that New York law requires New York insurance policies to incorporate the minimum underinsured motorist requirements from Connecticut. Therefore, the plaintiffs argue that Connecticut law requires that New York insurance policies provide, at a minimum, underinsured motorist coverage equal to the policies’ liability limits. The plaintiffs finally assert that Connecticut law requires insurance policies to provide “stacked coverage” for each of the insured’s vehicles. We disagree.

The parties have stipulated, and we conclude, that the law of New York controls the construction of the insurance contract at issue, having been executed in New York. Here, the relevant New York statute pertaining to liability insurance provides: “Every owner’s policy of liability insurance . . . shall also provide, when a motor vehicle covered by such policy is used or operated in any other state or in any Canadian province, insurance coverage for such motor vehicle at least in the minimum amount required by the laws of that state or province.” N.Y. Ins. Law § 5103 (McKinney 1985).

In the present case, the insurance policy issued by the defendant complies with New York law, as reflected in its “Out of State Coverage” provision. That provision provides: “If an auto accident to which this policy applies occurs in any state or province other than the one in which your covered auto is principally garaged, we will interpret your policy for that accident as follows: A. If the state or province has: 1. A financial responsibility or similar law specifying limits of liability for bodily injury or property damage higher than the limit shown in the Declarations, your policy will provide the higher specified limit. 2. A compulsory insurance or similar law requiring a nonresident to maintain insurance whenever the nonresident uses a vehicle in that state or province, your policy will provide at least the required minimum amounts and types of coverage.”

Applying New York law to the present case, we find American Transit Ins. Co. v. Abdelghany, 80 N.Y.2d 162, 603 N.E.2d 947, 589 N.Y.S.2d 842 (1992), controlling on the issue of minimum underinsured motorist coverage. In American Transit Ins. Co., the New York Court of Appeals addressed whether a New York insurance policy required that New York insureds be provided minimum uninsured motorist coverage beyond that provided in New York if that vehicle was being operated in a state that imposed greater minimum underinsured motorist requirements on its residents. Id., 164. The New York Court of Appeals stated: “In sum, we hold that New York law requires insurers to provide the minimum uninsured motorist coverage prescribed by the laws of the State in which the accident occurred. The purpose of Insurance Law § 5103 (e) is to protect New York insureds by assuring that, notwithstanding any New York law to the contrary, the minimum insurance coverage required under the laws of the situs of the accident will apply.” Id., 168-69.

In addition, the New York Court of Appeals in Country-Wide Ins. Co. v. Rodriguez, 55 N.Y.2d 162, 163, 433 N.E.2d 118, 55 N.Y.S.2d 135 (1982), found that the minimum amount of coverage required for an accident is that which is stated in the Vehicle Responsibility Act of that state. In that case, a New York driver driving a New York registered car in North Carolina had an automobile liability policy with a minimum of $10,000 for injuries to one person and $20,000 for all persons injured in a single accident. Id. The North Carolina Financial Responsibility Act required all cars registered in North Carolina to have minimum coverage of $15,000 per person and $30,000 per accident, and out-of-state drivers have to show proof of at least that amount of coverage within twenty days of an accident or have their license suspended. The New York Court of Appeals in holding that the insurance company had to pay for the higher coverage for an accident that occurred in North Carolina reasoned that New York insurance law required coverage in the amount a North Carolina citizen would need to register a car in North Carolina. Id.

Similarly, in Smith v. Nationwide Mutual Ins. Co., 181 App. Div. 2d 342, 343, 585 N.Y.S.2d 899 (1992), the New York Supreme Court Appellate Division held that since Ontario, Canada’s Compulsory Automobile Insurance Act had a minimum requirement of $200,000 of uninsured motorist coverage, that the limits of $10,000 of uninsured motorist coverage in the insured’s New York policy became $200,000 for the accident in Ontario. The court reasoned that it was not a case where the plaintiffs sought to create otherwise unavailable coverage by applying the law of Ontario, rather they sought to apply Ontario’s minimum coverage with respect to the same type of insurance that now exists in their New York policy. Id., 344-46.

We therefore conclude that the language of the insurance contract, § 5103 of the New York Insurance Law (McKinney 1985), and New York casé law obligate the defendant to provide only the minimum underinsured motorist coverage required by Connecticut.

We next turn to the law of Connecticut to determine the minimum required underinsured motorist coverage that the defendant must provide for the plaintiffs. General Statutes § 38a-336 (a) (2) provides in pertinent part: “Notwithstanding any provision of this section to the contrary, each automobile liability insurance policy . . . shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless any named the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. . . .” General Statutes § 14-112 (a) provides in relevant part that “the commissioner shall require from such person proof of financial responsibility to satisfy any claim for damages by reason of personal injury to, or the death of, any one person, of twenty thousand dollars, or by reason of personal injury to, or the death of, more than one person on account of any accident, of at least forty thousand dollars . . . .” (Emphasis added.) The Connecticut Supreme Court has considered General Statues § 38a-336 in conjunction with § 14-112 holding that they mandate $20,000 in underinsured motorist coverage per person and $40,000 per accident. See Kelly v. Fiqueiredo, 223 Conn. 31, 39-40, 610 A.2d 1296 (1992); Roy v. Centennial Ins. Co., 171 Conn. 463, 474, 370 A.2d 1011 (1976).

Because Connecticut’s minimum required underin-sured motorist coverage is $20,000 per person and $40,000 per accident, we will not read into the plaintiffs’ New York insurance policy an amount higher than that required by Connecticut law. Therefore, since the plaintiffs purchased $50,000 worth of underinsured motorist coverage from the defendant, the trial court was correct in finding that that amount met Connecticut’s minimum underinsured motorist requirements, and was the correct amount to award the plaintiffs under this policy.

We disagree with the plaintiffs’ contention that § 38a-336 mandates that the plaintiffs are entitled to the equivalent of their liability insurance under the policy issued by the defendant. There is nothing in § 38a-336 or § 14-112 requiring that underinsured motorist coverage must be maintained by Connecticut motorists beyond that prescribed by those statutes. The plaintiffs argue that they are entitled to $340,000, the amount of liability coverage purchased under the insured’s contract, since they did not formally elect lesser coverage in writing pursuant to § 38a-336. Our Supreme Court construed that statute in Nationwide Mutual Ins. Co. v. Pasion, 219 Conn. 764, 770-71, 594 A.2d 468 (1991), stating that “[t]he apparent intent of the legislature in adopting subdivision (2), as evidenced by the legislative history of Senate Bill 123, was to assure that consumers purchasing automobile liability insurance would be made aware of the low cost of equal amounts of uninsured coverage by requiring any reduction in that coverage to be in writing.”

We refuse to construe this statute as requiring out-of-state drivers to make a written election to request underinsured motorist coverage in an amount less than their policy’s liability coverage. In the present case, the plaintiffs, who executed their insurance policy in New York and had registered and garaged their vehicles in New York, were not required to make a written request for a lower amount of coverage, as prescribed by § 38a-336. We therefore agree with the trial court in its reduction of the amount of coverage to be provided by the defendant from $340,000, which was the policy’s liability limit, to the $50,000 worth of underinsured motorist coverage that the plaintiffs had purchased.

We finally disagree with the plaintiffs contention that their coverage for each of their automobiles should be aggregated or stacked, providing $1,360,000 worth of coverage on four cars that were each insured for $340,000. In Kent v. Middlesex Mutual Assurance Co., 226 Conn. 427, 432-33, 627 A.2d 1319 (1993), our Supreme Court held: “[W]e have found stacking to be available when the insured has paid separate premiums for the underinsured motorist coverage afforded to each vehicle. . . . The reason for this is the common sense notion that such a result falls within the reasonable expectations of the parties to the insurance contract . . . because an insured who pay[s] a double premium [can reasonably] expect double coverage. . . . We have noted that [t]his is particularly true when each of the insured vehicles is separately described, the coverage granted under the policy is separately listed for each vehicle, and a separate premium is charged for the coverage afforded to each of the described vehicles.” (Citations omitted; internal quotation marks omitted.)

In the present case, the arbitrator’s panel correctly concluded that the plaintiffs did not have a reasonable expectation that their coverages would be stacked when they purchased their insurance policy from the defendant. The plaintiffs did not pay separate premiums that would entitle them to aggregate coverage. Furthermore, stacking is not permitted in New York, where the contract was executed; Sisson v. Travelers Ins. Co., 94 App. Div. 2d 953, 464 N.Y.S.2d 77 (1983); and the insurance policy at issue expressly excluded stacking. For the foregoing reasons, we conclude that the plaintiffs are not entitled to stacked or aggregate coverage.

The judgment is affirmed.

In this opinion the other judges concurred.

       We refer in this opinion to Glens Falls Insurance Company as the defendant and to Maria Mason Sybalsky and Julia Sybalsky as the plaintiffs. Two actions were filed in the trial court, both seeking to correct the same award. There was one judgment file and one appeal by the plaintiffs, whose application to correct was denied.


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. THOMAS M. SMITH
    (AC 15416)
    Dupont, C. J., and Spear and Freedman, Js.

      Argued June 9
    officially released August 19, 1997

      James L. Walker, Jr., with whom, on the brief, were FrankF. Coulom, Jr., and Sean Johnston, for the appellant (defendant).

      SusannE. Gill, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard P. Eisenman, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Thomas M. Smith, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with the intent to sell in violation of General Statutes § 21a-277. He claims that (1) there was insufficient evidence of intent to sell to sustain the guilty verdict, and (2) the trial court improperly denied his motion to suppress evidence. We affirm the judgment of conviction.

On the basis of on the evidence adduced at trial, the jury reasonably could have found the following facts. On July 7,1994, Detective Derwyn Hill of the Bridgeport police department received an anonymous telephone tip that drugs were located in the backyard of 34 Sixth Street in Bridgeport. Detective Richard DeRiso and Sergeant Joseph Convertito arrived on the scene first, and went to the rear of the house to investigate. Subsequently, Hill and Detective Nicholas Meriano arrived on the scene and approached the front of the house. As the detectives walked onto the front porch of the house, they saw the defendant and another man standing inside the open doorway of a common hallway area. Both detectives could see down the entire length of the hallway, which was approximately fifteen feet.

When the defendant observed the detectives approaching him, police badges exposed, he threw a black purse, which he held in one hand, behind him onto the hallway floor. One of the detectives picked up the black purse and found pink vials inside. On the basis of his training and experience, he believed them to contain crack cocaine. While being handcuffed, the defendant dropped $65, which the detectives retrieved from the ground. The seventy-three vials from the purse were later determined by laboratory analysis to contain crack cocaine.

After the trial court denied his motion to suppress the cocaine and the $65, the defendant was convicted of possession of narcotics with intent to sell. This appeal followed.

I

The defendant first claims that the state failed to prove beyond a reasonable doubt the element of intent to sell. We disagree.

We apply a familiar two part test in reviewing a sufficiency of the evidence claim. “We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132, 646 A.2d 169 (1994). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) Id., 132-33.

The defendant asserts that, in order to sustain his conviction, this court must find that the evidence adduced at the trial level “is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion.” State v. Carpenter, 214 Conn. 77, 84, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992); see also State v. Morrill, 193 Conn. 602, 610, 478 A.2d 994 (1984).

Our Supreme Court has stated that “the Carpenter principles have their primary operation as rules of law for the guidance of the fact finder, rather than for the guidance of appellate courts in reviewing the sufficiency of evidence regarding the fact finder’s verdict.” State v. Sivri, supra, 231 Conn. 135. We also note that “the requirement of proof beyond a reasonable doubt does not mean that the proof must be beyond a possible doubt, and a possible hypothesis or supposition of innocence is far different from a reasonable supposition. . . . Emphasis needs to be placed on the distinction between the word reasonable and the word possible. . . . Proof of guilt must exclude every reasonable supposition of innocence .... [A] mere possible hypothesis of innocence will not suffice.” (Citations omitted; internal quotation marks omitted.) State v. Morrill, supra, 193 Conn. 611. Our Supreme Court instructs us that “we give deference not to the hypothesis of innocence posed by the defendant, but to the evidence and the reasonable inferences drawable therefrom that support the jury’s determination of guilt. On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” State v. Sivri, supra, 134.

Here, the defendant maintains that the evidence of intent to sell is insufficient because of the inconsistencies in the testimony of the police, as well as in Hill’s police report. On appellate review, “we construe the evidence in a manner most favorable to sustaining a verdict. . . . [We] will not reweigh the evidence or resolve questions of credibility in making such a determination.” (Citations omitted; internal quotation marks omitted.) State v. Melillo, 17 Conn. App. 114, 117, 550 A.2d 319 (1988). It is well established that “[t]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct .... [W]hether such an inference should be drawn is properly a question for the jury to decide.” (Internal quotation marks omitted.) State v. Downey, 45 Conn. App. 148, 154, 694 A.2d 1367 (1997); see also State v. Torwich, 38 Conn. App. 306, 314, 661 A.2d 113, cert. denied, 235 Conn. 905, 665 A.2d 906 (1995).

The circumstances surrounding the defendant’s arrest are such that the jury reasonably could have concluded that the defendant had the intent to sell narcotics. He was observed with a large quantity of narcotics in one hand and $65 in the other. This court has recognized that “ ‘[t]he quantity of narcotics found in the defendant’s possession [is] probative of whether the defendant intended to sell the drugs.’ ” State v. Glenn, 30 Conn. App. 783, 793, 622 A.2d 1024 (1993); see also State v. Jennings, 19 Conn. App. 265, 270, 562 A.2d 545, cert. denied, 212 Conn. 815, 565 A.2d 537 (1989). Here there was testimony that seventy-three vials were more than a user would have possessed.

The defendant’s sufficiency claim is nothing more than an attack on the state’s witnesses. Such credibility issues are typical grist for the jury’s mill. See State v. Foster, 45 Conn. App. 369, 379, 696 A.2d 1003 (1997). Our review of the evidence convinces us that the jury properly found that the state proved intent to sell beyond a reasonable doubt.

II

The defendant next claims that the trial court improperly denied his motion to suppress the crack cocaine. He contends that the police officers framed him by claiming that he discarded the crack cocaine, when, in reality, they seized the cocaine elsewhere. The defendant asserts that such outrageous conduct mandates suppression of the evidence. The defendant did not testify at the hearing on the motion to suppress and did not present any evidence of a “frameup.” We have carefully reviewed the record, transcripts and briefs of the parties and find the defendant’s claim to be without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to seE or dispense, possesses with the intent to seE or dispense . . . any controEed substance . . . for a first offense, shaE be imprisoned not more than fifteen years . . . and for a second offense shaE be imprisoned not more than thirty years . . . and for each subsequent offense, shaE be imprisoned not more than thirty years . . . .”

       “ ‘The trier may not reach a conclusion of guilt where the facts, established by the evidence, including those reasonably and logically inferred from other proven facts, are rationally consistent with the innocence of an accused. A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion.’ ” State v. Carpenter, supra, 214 Conn. 84.

       The defendant claims that the trial court, after hearing his trial testimony, should have, sua sponte, reopened the hearing on the motion to suppress to consider his trial testimony. Even if we were to accept such a procedure, the trial court was not required to accept as true the defendant’s claim of a frameup.


author: SPEAR, J. HEIMAN, J.,

text:
    SHERYL SHEEHAN v. ALAN BALASIC
    (AC 16281)
    Dupont, C. J., and Heiman and Spear, Js.

      Submitted on briefs May 5
    officially released August 19, 1997

      David Battat filed a brief for the appellant (defendant).

      Gloria L. Kelly filed a brief for the appellee (plaintiff).
   Opinion

SPEAR, J.

The plaintiff appeals from the judgment of the trial court terminating a periodic alimony award before its twenty-four month term expired. She claims that the trial court improperly terminated the award because the term was nonmodifiable. As an alternative ground for affirming the judgment, the defendant claims that, while a nonmodification clause precludes modification of an alimony award pursuant to General Statutes § 46b-86 (a), such a clause does not preclude a modification pursuant to § 46b-86 (b). We reverse the judgment of the trial court.

The following facts are relevant to our disposition of this appeal. The parties’ marriage was dissolved on June 14, 1995. On September 12, 1995, the court rendered a supplemental judgment that ordered the defendant to pay unallocated alimony and child support in the amount of $4000 per month. The order provided that “the Defendant’s obligation to pay said periodic alimony to the Plaintiff shall continue for twenty-four (24) months, nonmodifiable as to amount, except for the death of either party. Thereafter, the alimony award shall be subject to modification or termination upon the death of either party, the Plaintiffs remarriage, or further court order, pursuant to Connecticut General Statutes § 46b-86 (b).”

During or after the proceedings, the plaintiff began cohabiting with a man, and on April 29,1996, she remarried. On April 18, 1996, the defendant moved to terminate the alimony award pursuant to § 46b-86 (b). The trial court concluded that although the amount of the alimony award was nonmodifiable, the twenty-four month period was subject to termination. The court granted the motion and this appeal followed.

I

We will address first the defendant’s claim that the preclusionary language of § 46b-86 (a) does not control a trial court’s discretion to modify a periodic alimony award pursuant to § 46b-86 (b).

Section 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony . . . may at any time thereafter be . . . modified by said court upon a showing of a substantial change in the circumstances of either party . . . .” (Emphasis added.) This statute clearly permits a trial court to make periodic awards of alimony nonmodifiable. Burns v. Burns, 41 Conn. App. 716, 724, 677 A.2d 971, cert. denied, 239 Conn. 906, 682 A.2d 997 (1996). It is well established by our case law that “the trial court, as a part of its right to award nonmodifiable alimony and its equitable powers, has the legal authority to order alimony that does not terminate even in the event of remarriage or cohabitation.” Id., 725; see also Vandal v. Vandal, 31 Conn. App. 561, 563-64, 626 A.2d 784 (1993).

The defendant cites Connolly v. Connolly, 191 Conn. 468, 464 A.2d 837 (1983), for the proposition that § 46b-86 (b) is an independent basis for modification of an alimony award and a trial court may modify an alimony award based on this section, regardless of whether the original judgment is nonmodifiable. His reliance on Connolly, however, is misplaced. In Connolly, the plaintiff moved, pursuant to § 46b-86 (a), to modify child support and alimony awards. After a hearing, the trial court ordered the child support award to be increased, but terminated the award of periodic alimony, citing § 46b-86 (b), because the plaintiff was cohabiting with a member of the opposite sex. On appeal, the plaintiff claimed that, without written notice that grounds for termination pursuant to § 46b-86 (b) would be before the court, the court was without authority to terminate the alimony award on that ground. In concluding that the notice issued in that case was insufficient, our Supreme Court held that “General Statutes § 46b-86 (b) is a separate and independent statutory basis for the modification of alimony . . . which must be raised in a written motion by the party seeking to modify the award of periodic alimony.” Id., 478. The Supreme Court did not hold that nonmodifiable awards may be modified pursuant to § 46b-86 (b).

II

The plaintiff claims that the trial court improperly terminated the alimony award because the order clearly and unambiguously stated that the award was nonmodi-fiable for aperiod of twenty-four months. The defendant concedes that the amount was nonmodifiable; he argues, however, that the term of the award was modifiable, and, as such, the termination was proper.

“The construction of a judgment is a question of law for the court. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment.” (Internal quotation marks omitted.) Emerick v. Emerick, 28 Conn. App. 794, 806, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992). “ ‘The judgment should admit of a consistent construction as a whole.’ ” Lashgari v. Lashgari, 197 Conn. 189, 197, 496 A.2d 491 (1985).

It is true that provisions for nonmodification are generally not favored and are upheld only if they are clear and unambiguous. If an award is intended to be non-modifiable, it must contain express language to that effect. Burns v. Burns, supra, 41 Conn. App. 724. There is no given set of words that must be used to preclude modification; an order is nonmodifiable if the decree distinctly and unambiguously expresses that it is. Lilley v. Lilley, 6 Conn. App. 253, 255, 504 A.2d 563, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986). In making this determination, we look only at the dissolution decree itself. Rau v. Rau, 37 Conn. App. 209, 211, 655 A.2d 800 (1995). We conclude that the order is nonmodifiable as to term and amount and that the decree unambiguously expresses that fact.

The trial court granted the defendant’s motion to terminate alimony because it found that, while the amount of the award was nonmodifiable, the term was subject to modification or termination. In its memorandum of decision, the trial court stated that “[d]uring the twenty-four months, it is implicit that during that period there be no intervening material change in circumstances warranting modification. Scoville v. Sco-ville, [179 Conn. 277, 280, 426 A.2d 271 (1979)]. To interpret the order [as making the term nonmodifiable] would make the phrase ‘as to amount’ superfluous.” We disagree with the trial court’s interpretation.

First, construing the term as nonmodifiable does not render the phrase “as to amount” superfluous. A reasonable meaning can be ascribed to that phrase because there could be a modification with respect to the form of the alimony order without changing the amount. For example, the alimony portion of the award could be allocated and made a separate order or the timing of the payments could be changed by making them weekly or semimonthly. We do not view “as to amount” as a limiting phrase. We read the phrase in conjunction with the sentence that follows: “Thereafter, the alimony award shall be subject to modification or termination” for a number of reasons, including the plaintiff’s remarriage. The court’s use of the word “thereafter” clearly modifies the phrase “twenty-four month period” and indicates that the award was nonmodifiable for that time period. To conclude otherwise would be to render this last sentence of the order meaningless.

Moreover, this case is unlike those where the order is silent as to modifiability. See, e.g., Scoville v. Scoville, supra, 179 Conn. 205; Rau v. Rau, supra, 37 Conn. App. 209; Lilley v. Lilley, supra, 6 Conn. App. 253. Here, the order clearly stated that the amount of the award could not be modified, except for the death of either party, for a period of twenty-four months. The trial court’s order was improper either as a modification of the amount to zero or as a reduction of the term from twenty-four months to slightly less than eleven months.

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion to terminate alimony.

In this opinion DUPONT, C. J., concurred.

HEIMAN, J.,

concurring in part and dissenting in part. While I agree with the majority’s resolution of the defendant’s claim in part I of the opinion, I disagree with the majority’s resolution in part II and its consequent reversal of the judgment of the trial court and its remand of this case to the trial court with direction to deny the defendant’s motion to terminate alimony. Because I believe the result reached by the majority to be incorrect, I respectfully dissent.

In this case, the defendant’s motion to terminate alimony was assigned for hearing before Harrigan, J., the same trial judge who had entered the order less than one year before and was, therefore, called upon to interpret the terms of the judgment that he himself had rendered. Thus, we should give great deference to his interpretation of his own order, and reverse his decision only if he could not have reasonably concluded as he did. “[I]t is within the equitable powers of the trial court to fashion whatever orders [are] required to protect the integrity of [its original] judgment. Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 670, 594 A.2d 958 (1991), quoting Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 563-64, 468 A.2d 1230 (1983) .... Roberts v. Roberts, [32 Conn. App. 465, 471, 629 A.2d 1160 (1993)].” (Internal quotation marks omitted.) Clement v. Clement, 34 Conn. App. 641, 646, 643 A.2d 874 (1994).

“General Statutes § 46b-86 (a) provides that [u]nless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony . . . may at any time thereafter be . . . modified by said court upon a showing of a substantial change in the circumstances of either party. This statutory provision suggests a legislative preference favoring the modifiability of orders for periodic alimony . . . [and requires that] the decree itself must preclude modification for this relief to be unavailable.” (Internal quotation marks omitted.) Lilley v. Lilley, 6 Conn. App. 253, 255, 504 A.2d 563, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986). “Such a preclusion of modification must be clear and unambiguous. ... If a provision purportedly precluding modification is ambiguous, the order will be held to be modifiable.” (Citations omitted.) Rau v. Rau, 37 Conn. App. 209, 212, 655 A.2d 800 (1995).

I believe that the modification provision at issue here is ambiguous, and it must therefore be construed as modifiable. Id. In its opinion, the majority first concludes that the language “nonmodifiable as to amount” means that the alimony award is nonmodifiable as to both amount and term, while remaining modifiable as to form. The majority also concludes that the phrase “as to amount” is not a hmiting phrase and when the term “nonmodifiable as to amount” is read in conjunction with the sentence that follows, the whole creates an order of alimony that is nonmodifiable for a period of twenty-four months. Finally, the majority concludes that whether the trial court’s termination of the award constituted a modification of the amount of the award to zero, or a reduction of the term of the award, either trial court action violated the nonmodification provision.

I find the reasoning of the majority to be confusing. I find it unclear whether the maj ority reads the provision to state that only the amount of alimony is nonmodifiable for twenty-four months, that both the amount and term are nonmodifiable, or that the entire award is nonmodifiable for twenty-four months. Because the majority itself appears to be somewhat tentative in determining what exactly is nonmodifiable, it seems to me safe to say that the order is not clear and unambiguous on its face.

While there is no given set of words that must be used to preclude modification; see Lilley v. Lilley, supra, 6 Conn. App. 255; a provision that states that the alimony order is “nonmodifiable,” or “nonmodifiable as to amount and duration” is much clearer, more definite and less ambiguous than the order here at issue. See Vandal v. Vandal, 31 Conn. App. 561, 563-66, 626 A.2d 784 (1993); see also Brash v. Brash, 20 Conn. App. 609, 611, 569 A.2d 44 (1990); Breen v. Breen, 18 Conn. App. 166, 168, 557 A.2d 140 (1989).

As the majority, perhaps inadvertently, points out, the phrase “nonmodifiable as to amount” leaves open to conjecture whether the alimony award is nonmodifiable as a whole, is nonmodifiable as to amount and duration but not as to form, or is nonmodifiable only as to amount while remaining modifiable as to duration, term and form. Thus, the phrase itself demonstrates the inherent ambiguity that it contains. Even if the last alternative interpretation is correct, the delineation between what court actions affect the “duration or term” of the periodic alimony award and what actions affect the “amount” of the alimony award is often a blurred and fluid distinction. For example, here, termination of the alimony award could reasonably be characterized either as a modification of the amount of the award to zero; see In re Marriage of Harris, 65 Cal. App. 3d 143, 151-52, 134 Cal. Rptr. 891 (1976); see also In re Marriage of Bennett, 144 Cal. App. 3d 1022, 1025, 193 Cal. Rptr. 113 (1983); In re Marriage of Sasson, 129 Cal. App. 3d 140, 150 n.4, 180 Cal. Rptr. 815 (1982); or as a modification of the duration of the award from twenty-four months to slightly under eleven months. The first characterization would create an unacceptable modification under the terms of the order, while the second would create a permissible modification of the order.

For the foregoing reasons, I believe that the nonmodi-fication provision is ambiguous and, accordingly, an alimony order that contains an ambiguous nonmodification provision must be treated as an order that is modifiable. See McGuinness v. McGuinness, 185 Conn. 7, 9, 440 A.2d 804 (1981); Scoville v. Scoville, 179 Conn. 277, 280, 426 A.2d 271 (1979); Rau v. Rau, supra, 37 Conn. App. 212; Lilley v. Lilley, supra, 6 Conn. App. 255-56. I believe that the alimony order was modifiable and that the trial court properly granted the defendant’s motion to terminate the order of periodic alimony. I would affirm the judgment of the trial court.

       General Statutes § 46b-86 (a) provides: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an orderfor alimony or supportpendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. Modification may be made of such support order without regard to whether the order was issued before, on or after May 9,1991. In determining whether to modify a child support, order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. After the date of judgment, modification of any child support order issued before or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law. No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.”

       General Statutes § 46b-86 (b) provides: “In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party 1 o the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.”

       In her brief, the plaintiff claims that the trial court terminated both child support and alimony. Our review of the record, however, reveals that the court terminated only the alimony portion of the unallocated award. Because we reverse the judgment, it in not necessary for us to consider whether the trial court properly terminated the alimony portion of the award without first allocating the amount of child support.

       It is a fact of appellate life that appellate courts are frequently called upon to interpret, as a matter of law, judgments and orders written and initially interpreted by trial courts. The fact that the same court that drafted the order interpreted the order does not preclude us from interpreting the order differently. Because the construction of a judgment is a matter of law, subject to de novo appellate review, we have held that “[o]ur inquiry in interpreting the meaning of judgments is limited to that which is either expressed or implied clearly. . . . [T]he testimony of the judge who presided over the dissolution proceedings regarding his intent in entering the orders could not be considered in construing the dissolution judgment, and [the trial court] properly excluded that testimony on this point.” (Citations omitted.) Emerick v. Emerick, supra, 28 Conn. App. 806.

       In footnote 4 of its opinion, the majority cites Emerick v. Emerick, 28 Conn. App. 794, 806, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992), for two propositions. First, “[o]ur inquiry in interpreting the meaning of judgments is limited to that which is either expressed or implied clearly.” Id. Second, “the testimony of the judge who presided over the dissolution proceedings regarding his intent in entering the orders could not be considered in construing the dissolution judgment . . . .’’Id. We would only point out that the language of this alimony award was anything but clearly expressed. Moreover, we have not considered the testimony of Judge Harrigan regarding his intent in entering and later interpreting this alimony award, but rather examine the language of his order and grant him a degree of deference in his interpretation of his own alimony order.

       The periodic alimony order provides that “the Defendant’s obligation to pay said periodic alimony to the Plaintiff shall continue for twenty-four (24) months, nonmodifiable as to amount, except for the death of either party. Thereafter, the alimony award shall be subject to modification or termination upon the death of either party, the Plaintiffs remarriage, or further court order, pursuant to Connecticut General Statutes § 46b-86 (b).”


author: DUPONT, C. J.

text:
    EDWARD M. LOISEAU ET AL. v. BOARD OF TAX REVIEW OF THE TOWN OF SUFFIELD
    (AC 16627)
    Dupont, C. J., and Spear and Daly, Js.
    Argued June 3
    officially released August 19, 1997

      Deborah W. A. Eliason, with whom, on the brief, was John D. Adams, for the appellants (plaintiffs).

      Justin J. Donnelly, with whom, on the brief, were Edward G. McAnaney and Regina C. Graziani, for the appellee (defendant).
   Opinion

DUPONT, C. J.

The plaintiffs, Edward M. Loiseau and Lucille G. Loiseau, appeal from the trial court’s denial of their motion to open the judgment after the trial court granted a judgment of dismissal for failure to make out a prima facie case in favor of the defendant board of tax review. We reverse the judgment of the trial court.

On April 15, 1994, the plaintiffs appealed to the trial court from the February 25, 1994 decision of the board of tax review of the town of Suffield (board), claiming that the board’s valuation of their property as of October 1, 1993, was grossly excessive, disproportionate, unlawful and not in accordance with the uniform percentage of true and actual valuation as required by statute. The plaintiffs asked that the valuation be reduced equitably and proportionately in accordance with the uniform percentage of true and actual valuation as required by statute to be used by the assessor and the board. The application was later amended to include the tax years of 1994 and 1995.

A trial to the court was held on December 12, 1995, and February 29, 1996. At trial, the plaintiffs called David Collins, a real estate appraiser, as their expert witness. In the fall of 1993, Collins had taken over the appraisal of the subject property from Edward Lynch, whom the plaintiffs had originally hired to appraise their property. Lynch died prior to trial. The appraisal reports that Collins presented at trial were in Lynch’s name and bore Lynch’s signature, although Collins testified that he had created them based on Lynch’s preliminary work.

Three reports produced by Lynch and Collins were introduced into evidence. The plaintiffs introduced the first, which had a date of value of October 1, 1989, the date of the last town-wide revaluation of the town of Suffield. The defendant introduced two other versions of the same document, with dates of value of October 1, 1992, and October 1, 1993. The appraisal dated 1993 had been part of an exchange of evidence between the two parties at a pretrial conference and was apparently a draft version. The appraisal dated 1992 had been given by the plaintiffs to the defendant a few weeks before trial in exchange for the defendant’s final appraisal. Subsequent to the exchange, the plaintiffs discovered several typographical errors in the document, including the date of value, and gave the corrected version, with the 1989 date, to the defendant shortly before trial. The three versions each contain different conclusions regarding the value of the property, ranging from $190,500 to $200,000.

A review of the transcripts demonstrates that Collins’ testimony was often unclear and sometimes contradictory regarding his method of appraisal of the property. He testified that, in his expert opinion, the property had a fair market value of $200,000 in 1989. He used the income approach in appraising the property, which is a valuation method that determines property value by derivation of the rental value of the property and may include anticipated future income that has been discounted to a present value. His testimony as to fair market value and his method of appraisal, however, was not unequivocal.

Following Collins’ testimony, the plaintiffs called as a witness Paul Champagne, the appraiser and expert witness for the defendant. The defendant objected on the grounds that Champagne was not the plaintiffs’ witness and was not disclosed by the plaintiffs as an expert to be called by them, and that Champagne’s report was the work product of the defendant. The defendant argued that the plaintiffs could examine its expert on cross-examination but could not examine him on direct during the course of the plaintiffs’ case. Champagne was allowed to take the stand, but was not allowed to reveal the figure at which he had valued the property. The court also did not allow the plaintiffs to introduce Champagne’s report into evidence, reasoning that the report, which contained the figure at which he valued the plaintiffs’ real estate, would be the same as allowing Champagne to testify as to value.

After the plaintiffs rested, the defendant, without having conducted a direct examination of Champagne, moved for a judgment of dismissal, claiming that the plaintiffs had not made out a prima facie case. The trial court granted the motion for judgment of dismissal. The plaintiffs’ subsequent motion to open the judgment was denied. This appeal followed.

When a plaintiff has failed to prove its prima facie case, it is proper for a court to grant the defendant’s motion for judgment of dismissal pursuant to Practice Book § 302. See Rosenfield v. Cymbala, 43 Conn. App. 83, 91, 681 A.2d 999 (1996). A court may find that a plaintiff has failed to make out a prima facie case “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); see also Hinchliffe v. American Motors Corp., 184 Conn. 607, 609, 440 A.2d 810 (1981), on appeal after remand, 192 Conn. 252, 470 A.2d 1216 (1984). “In considering a motion under Practice Book § 302, a trial court must consider all of the plaintiffs evidence to be true. . . . Further, a trial court must draw all inferences in the plaintiffs favor.” (Citations omitted; internal quotation marks omitted.) Walshon v. Walshon, 42 Conn. App. 651, 654, 681 A.2d 376 (1996).

“On appeal of a dismissal pursuant to Practice Book § 302, we take the plaintiffs evidence as true; Higgins v. Ambrogio, 19 Conn. App. 581, 584, 562 A.2d 1154 (1989); and consider the trial court’s conclusions in light of the evidence in the record. Bershtein, Bershtein & Bershtein v. Nemeth, 221 Conn. 236, 239, 603 A. 2d 389 (1992) . ‘Whether the plaintiffs established a prima facie case is a question of law.’ Wordie v. Staggers, 27 Conn. App. 463, 465, 606 A.2d 734 (1992); Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 561, 447 A.2d 406 (1982). ‘We must determine whether the trial court properly determined that the plaintiff failed to provide sufficient evidence to support his prima facie case.’ Ivimey v. Watertown, 30 Conn. App. 742, 751, 622 A.2d 603, cert. denied, 226 Conn. 902, 625 A.2d 1375 (1993), citing Logan v. O’Neill, 187 Conn. 721, 728, 448 A.2d 1306 (1982).” Discover Leasing, Inc. v. Murphy, 33 Conn. App. 303, 308-309, 635 A.2d 843 (1993) .

Under General Statutes § 12-117a, the plaintiffs had to meet two burdens to prove their prima facie case: first, they had to establish that they owned the property at the time of the valuation; second, they had to prove that they had been aggrieved by the action of the town of Suffield. See General Statutes § 12-117a; Gorin’s, Inc. v. Board of Tax Review, 178 Conn. 606, 608, 424 A.2d 282 (1979). There is no dispute that the plaintiffs owned the property at the relevant time. The defendant argues that the plaintiffs failed to establish that they were aggrieved by the town of Suffield’s determination of the fair market value of their property at $601,500.

The defendant claims that the plaintiffs failed to demonstrate a fair market value of the property. The plaintiffs respond that the trial court weighed the credibility of Collins in determining that the plaintiffs had not proven their prima facie case. They claim that because Collins stated at trial that in his expert opinion the property was worth $200,000 in 1989, they have established a prima facie case. They claim further that, if they had been allowed to examine the defendant’s expert witness, he would have supported their claim that the town’s assessment of $601,500 was erroneous because that expert placed a value on the property that was significantly lower than the town’s appraised value, as evidenced in his appraisal, which the town had given to the plaintiffs.

We need not determine whether the plaintiffs established a prima facie case on the basis of Collins’ testimony alone because we hold that the trial court improperly refused to allow the defendant’s expert witness to testify about the value of the plaintiffs’ property during the plaintiffs’ case. We, therefore, remand for a new trial.

We recently held that “where one party has disclosed an expert witness pursuant to Practice Book § 220 (D), and that expert witness has either been subsequently deposed by the opposing party, or the expert’s report has been disclosed pursuant to discovery, then either party may call that expert witness to testify at trial. This holding follows the rule adopted in other jurisdictions. See, e.g., Kaufman v. Edelstein, [539 F.2d 811 (2d Cir. 1976)]; Granger v. Wisner, 134 Ariz. 377, 656 P.2d 1238 (1982); Fenlon v. Thayer, 127 N.H. 702, 506 A.2d 319 (1986).” Lane v. Stewart, 46 Conn. App. 172, 177, 698 A.2d 929 (1997); see also Thomaston v. Ives, 156 Conn. 166, 174, 239 A.2d 515 (1968); Barksdale v. Harris, 30 Conn. App. 754, 761, 622 A.2d 597, cert. denied, 225 Conn. 927, 625 A.2d 825 (1993).

The reasoning in Lane is applicable in the present case. Here, as in Lane, “[b]y disclosing the witness, the defendant made it possible for the plaintiffs to discover evidence that the plaintiffs decided was beneficial to their case and should be brought before the trier of fact. To allow the defendant to prevent [the] witness from testifying may [deprive] the trier of fact of material and relevant information that would have assisted it in reaching a decision in the case.” Lane v. Stewart, supra, 46 Conn. App. 177.

That the plaintiffs might have the opportunity to cross-examine a defense expert does not provide fair access if the defendant chooses not to call the expert as a witness. If a judgment of dismissal is rendered at the close of a plaintiff s case, as in this case, there would not be an opportunity for such cross-examination. In a case such as this one, where the testimony of the defendant’s expert, Champagne, may not be as favorable to the defendant as the defendant would like, the defendant could keep out unfavorable evidence by not calling Champagne to the stand. Here, where the defendant in control of the appraiser is a governmental entity, charged with the duty to assess the property of its citizens at fair market value, it is even more compelling to hold that the plaintiffs should have been allowed to call the defendant’s expert witness to testify in their case-in-chief.

In Thomaston v. Ives, supra, 156 Conn. 173-74, an eminent domain case, our Supreme Court noted that “justice is best served in a case such as the one before us by requiring the appraiser [for the state] to testify to his expert opinion when called upon to do so [by the owner of the property].” The attempt by the defendant to deprive the trier of the benefit of its expert witness’ opinion should not be allowed. We hold that the plaintiffs, the owners of the property, should have been able to introduce the testimony of the defendant’s expert during the plaintiffs’ case.

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

In this opinion the other judges concurred.

       The board had determined that the property had a fair market value of $601,500, which was a decrease from the assessors’ fair market value of $709,000. The assessors determined that all property would be liable for taxation at 70 percent of its true and actual value. Thus, after the appeal to the board, the property at issue was to be taxed on a value of $421,050.

       General Statutes § 12-117a provides in relevant part: “Any person . . . claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, October 1, 1992, October 1, 1993, October 1, 1994, or October 1, 1995, and with respect to the assessment list for assessment years thereafter, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. ... If, during the pendency of such appeal, a new assessment year begins, the applicant may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year and such applicant need not appear before the board of tax review or board of assessment appeals, as the case maybe, to make such amendment effective. The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable, and, if the application appears to have been made without probable cause, may tax double or triple costs, as the case appears to demand; and, upon all such applications, costs may be taxed at the discretion of the court. If the assessment made by the board of tax review or board of assessment appeals, as the case may be, is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and any costs awarded by the court, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and any costs awarded by the court. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and any costs awarded by the court. The amount to which the assessment is so reduced shall be the assessed value of such property on the grand lists for succeeding years until the tax assessor finds that the value of the applicant’s property has increased or decreased.”

       Practice Book § 302 provides: “Dismissal in Court Cases for Failure to Make Out a Prima Facie Case
      “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”

       Practice Book § 220 (D) provides in relevant part: “In addition to and notwithstanding the provisions of subsections (A), (B) and (C) of this rule, any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testily, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. Each defendant shall disclose the names of his or her experts in like manner within a reasonable time from the date the plaintiff discloses experts, or, if the plaintiff fails to disclose experts, within a reasonable time prior to trial. . . . Once the substance of any opinion or opinions of an expert witness who is expected to testify at trial becomes available to the party expecting to call that expert witness, disclosure of expert witness information shall be made in a timely fashion in response to interrogatory requests pursuant to subsection (A) (1) of this rule, and shall be supplemented as required pursuant to Sec. 232. . . .”
      The defendant had filed a motion in limine at the start of trial in an attempt to preclude the plaintiffs’ expert from testifying. The defendant argued, in its motion, that it was unclear who the plaintiffs’ expert at trial would be because they never filed a separate document stating who their expert was, and the appraisal report had the names of two appraisers on it. The plaintiffs responded that they had told the defendant who their expert was, and, because one of the two appraisers listed on the report had died, it was clear who would be testifying. The trial court denied the motion in limine. The plaintiffs thus complied with § 220 (D).


author: SCHALLER, J.

text:
    DONALD HALL v. BILOW BUILDERS, INC.
    (AC 16318)
    Dupont, C. J., and Landau and Schaller, Js.
    Argued April 24
    officially released August 19, 1997

      John P. Clarkson, with whom, on the brief, was Bernard Poliner, for the appellant (named defendant).

      Taka Iwashila, assistant attorney general, with whom, on the brief, were Richard. Blumenlhol, attorney general, and William J. McCullough and Michael Belzer, assistant attorneys general, for the appellee (defendant second injury fund).
   Opinion

SCHALLER, J.

The defendant employer, Bilow Builders, Inc. (defendant), appeals from the decision of the compensation review board (board) reversing the finding of the commissioner. The defendant claims that the board improperly refused to order transfer of a claim to the second injury fund. We affirm the decision of the board.

The following facts are undisputed. The plaintiff, Donald Hall, suffered a compensable back injury on October 11, 1991. The defendant, which was uninsured on the date of injury, paid 104 weeks of benefits and notified the second injury fund of its intent to transfer liability pursuant to General Statutes (Rev. to 1991) § 31-349. The fund acknowledged timely receipt of the notice, but refused to accept a transfer of liability, claiming that the defendant’s failure to carry workers’ compensation insurance on the date of injury deprived it of the benefit of transfer. On April 27, 1994, a hearing was held before the commissioner who found that there is no statutory impediment to transfer liability to the fund in this instance. The fund appealed to the board which reversed the commissioner’s decision and held that the defendant’s failure to carry workers’ compensation insurance on the date of injury deprived it of the benefit of transfer. This appeal followed.

The issue raised in this appeal has been ruled on by the board in a case of first impression, Champlain v. Parnes, 14 Conn. Workers’ Comp. Rev. Op. 113 (1995). In Champlain, the employer paid workers’ compensation benefits to a previously injured employee and provided timely notice to the fund pursuant to § 31-349, but was not insured for workers’ compensation on the date of the second injury and, thus, was not in compliance with either General Statutes (Rev. to 1991) § 31-284 or General Statutes (Rev. to 1991) § 31-354. The issue was whether the second injury fund was liable for payment of a second injury pursuant to § 31-349 where the employer was uninsured for workers’ compensation purposes at the time the second injury occurred. The board, after examining the statutes involved, concluded that the legislature intended to compel employers to obtain workers’ compensation insurance or to self-insure. Accordingly, the board held that “when an employer is uninsured at the time of a second injury, the employer does not acquire the complete relief afforded under'§31-349 . . . .” Id., 116.

Upon our review of Champlain and the board’s decision in this case, we conclude that the board properly denied the defendant’s attempted transfer of liability to the fund when it was uninsured at the time of the plaintiffs injury. We accord great deference to the construction given to §§ 31-349, 31-284 and 31-355 by the board because it is charged with their enforcement. See Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994). In addition, we agree with the board that the legislature intended to compel employers to obtain workers’ compensation insurance or to self-insure. To allow uninsured employers to take advantage of § 31-349 would weaken employers’ incentive to obtain the required insurance. Moreover, it would provide a windfall to employers operating outside the system who would seek the benefit of the fund without obtaining insurance or a certificate of insurance pursuant to § 31-284 and without paying their assessments into the fund pursuant to § 31-354. We conclude that the board properly reversed the commissioner’s decision and denied transfer of liability to the fund.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1991) § 31-349 provides in relevant part: “Compensation for second disability. Payment for insurance coverage, (a) The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award .... Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund. . . .”

       General Statutes (Rev. to 1991) § 31-284 provides in relevant part: “Basic rights and liabilities. Civil action to enjoin noncomplying employer from entering employment contracts, (a) An employer shall not be hable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter, provided nothing herein shall prohibit any employee from securing, by agreement with his employer, additional benefits from his employer for such injury or from enforcing such agreement for additional benefits. . . .”

       General Statutes (Rev. to 1991) § 31-354 provides in relevant part: “Second injury and compensation assurance fund contributions. There shall be a fund to be known as the second injury and compensation assurance fund. Each employer, other than the state . . . shall, within thirty days after notice given by the treasurer, pay to the state treasurer for the use of the state a sum not to exceed five per cent of the total amount of money expended by such employer, by a private insurance carrier on his behalf, by an interlocal risk management agency on his behalf or by said fund pursuant to section 31-355 in payment of his liability under this chapter for the preceding calendar year. . . .”

       The Champlain decision, which involved statutory interpretation, was not appealed and the legislature took no action to amend the pertinent workers’ compensation statutes.