author: PETERS, J.

text:
    PATRICK A. TREGLIA v. ROBERT G. ZANESKY ET AL.
    (AC 19829)
    Mihalakos, Dranginis and Peters, Js.

      Argued September 21
    officially released December 25, 2001

      Ridgely W. Brown, for the appellant (plaintiff).

      Joseph F. Mulvey, for the appellee (defendant Michael Treglia).

      Gerald L. Garlick, for the appellee (defendant Norwalk Savings Society et al.).

      Peter V. Lathouris, with whom, on the brief, was Lucas J. Thomas, for the appellee (defendant Pontos Realty, Inc.).

      Eric J. Stockman, for the appellee (defendant Alfred Kery).
   Opinion

PETERS, J.

General Statutes § 47-5 sets out formal requirements for conveyances of real property. Under that statute, if a grantor does not subscribe to a deed “with his own hand,” his name may be affixed by a person with a power of attorney. The principal issue in this case is whether this statutory directive may be waived by a grantor who has designated a surrogate signer by a specific grant of authority that is not in the form of a power of attorney. This is an issue of first impression. The trial court, concluding that use of a power of attorney was not always mandatory, rendered judgment denying the grantor’s claim that the absence of a power of attorney entitled him to set aside a conveyance under the circumstances of this case. We agree.

On February 3, 1993, the plaintiff, Patrick A. Treglia, brought an action to quiet title and for compensatory and punitive damages against his former attorney, Robert G. Zanesky; his brother, Michael Treglia (brother); and subsequent titleholders to the property at issue. The defendants filed answers, special defenses and counterclaims. In addition, some of the defendants filed cross claims against each other.

The plaintiffs complaint included a claim that someone other than the plaintiff had signed the plaintiffs name to the contract and warranty deed and that his brother had wrongfully kept proceeds from the sale. The court refused to charge the jury on forgery and refused to propound an interrogatory on that issue.

Prior to trial, the defendant Norwalk Savings Society filed a motion seeking to preclude the risk of double recovery by requiring the plaintiff to make an election of remedies between his claim for monetary damages and his claimed right to a decree that would quiet title. The court denied this motion before the presentation of the evidence, but subsequently required such an election after all the evidence had been presented. Over protest, the plaintiff elected to pursue his quiet title claim.

The jury returned its verdict in favor of all the defendants in accordance with its answers to a set of interrogatories. The court accepted the verdict of the jury and rendered judgment in favor of the defendants.

The plaintiff has appealed from the judgment against him. In particular, he maintains that the court improperly denied his motions for directed verdict and to set aside the verdict.

FACTUAL HISTORY

The jury’s answers to the interrogatories and the record as a whole reveal the following facts. From 1979 to 1986, the plaintiff, his brother and their father, Frank Treglia (father), jointly owned a tract of property located in Norwalk. During that time period, all three owners had participated in making repairs to the property and in collecting rent from tenants. The plaintiff, however, had left all business transactions to his father and his brother.

In February, 1986, the plaintiffs father and brother contracted to sell the Norwalk property to the defendant Pontos Realty, Inc. (Pontos). The contract of sale, duly recorded, contained the signatures of the father and the brother, as well as the purported signature of the plaintiff. Although concededly the plaintiff did not sign his own name on the contract, the jury made no finding as to who had done so. The contract set the purchase price at $100,000 to be paid by a promissory note in that amount payable to the plaintiffs brother.

In accordance with the contract of sale, the property was conveyed to Pontos by a warranty deed that purported to bear the signatures of all three owners. The plaintiff was not present at the closing and, therefore, did not sign his own name. The father signed the plaintiffs name to the deed, in accordance with the grant of authority given to him by the plaintiff to affix the plaintiffs signature.

The Pontos note was secured by two mortgages, duly recorded, to the defendants Norwalk Savings Society and the redevelopment agency of the city of Norwalk. In December, 1990, the defendant Alfred Kery obtained title to a portion of the property from Pontos.

Although the plaintiff knew in 1986 that the property was on the market to be sold, he did not discover the facts of the sale to Pontos until 1990. Nonetheless, the jury found that he had conducted himself in a way “intended or calculated to induce” the purchasing defendants to believe that “they were receiving or had received good title to the property.” The jury further found that the plaintiff had waited too long to raise his claim of ownership and that the purchasing defendants had been prejudiced by the plaintiffs delay.

On appeal from the judgment of the trial court, the plaintiff does not claim that the factual findings of the jury were clearly erroneous. He does, however, raise three issues of law in which he claims that the court improperly (1) refused to enforce the statutory requirement that a representative signing the name of a grantor must have a valid power of attorney, (2) required the plaintiff to elect remedies prior to submission of the case to the jury, and (3) refused to charge the jury on forgery and on related compensatory damages. The plaintiff also raises three issues in which he claims that the trial court abused its discretion by denying (1) the plaintiffs motion for directed verdict on the special defenses of laches and estoppel, (2) the plaintiffs motion to set aside the verdict on the ground of inconsistent answers to interrogatories, and (3) the plaintiffs’ motions for directed verdict and to set aside the verdict as to his brother.

I

COMPLIANCE WITH GENERAL STATUTES § 47-5

The plaintiff challenges the propriety of a judgment that validates a conveyance despite noncompliance with the statutory formalities for conveyance, specifically those relating to the power of attorney, set out in § 47-5 (a). The plaintiff argues that this statutory provision is a mandatory condition that must be met to effectuate a valid conveyance and, accordingly, that noncompliance with the formal procedure renders a conveyance null and void. We disagree.

To determine whether the trial court improperly sanctioned a departure from the statute, we engage in plenary review because this is a question of law. See Willow Funding Co., L.P. v. Grencom Associates, 63 Conn. App. 832, 840, 779 A.2d 174 (2001). The issue is whether a deed of conveyance may be validly signed by a grantor’s representative who is someone other than an attorney “authorized for that purpose by a power executed, acknowledged and witnessed in the manner provided for conveyances . . . .” General Statutes § 47-5 (a). The plaintiff argues that, without a power of attorney, a conveyance is void and therefore can be set aside at any time.

Connecticut cases have held that a conveyance of property rights is not automatically nullified by lack of adherence to certain formalities. While earlier common law required strict observance of formalities associated with the conveyance of property rights, “[subsequent decisions . . . have sufficiently modified the common law rule so as to put into question whether a different result ... is required .... Under the modified rule, a deed manifesting one cotenant’s attempted transfer of an interest is voidable, not void. Consequently, such a deed is susceptible of ratification. The deed can also operate as an estoppel against the grantor.” (Emphasis added.) Ianotti v. Ciccio, 219 Conn. 36, 44, 591 A.2d 797 (1991); see also Pastine v. Altman, 93 Conn. 707, 713, 107 A. 803 (1919); Hartford & Salisbury Ore Co. v. Miller, 41 Conn. 112 (1874). In Ianotti, our Supreme Court recognized that one cotenant’s attempt to convey an interest in a portion of property did not render the conveyance void. Ianotti v. Ciccio, supra, 44. Rather, under some circumstances, the conveyance may be set aside as voidable if the power to set aside has been effectively exercised. Id.

Similarly, in this case, we conclude that lack of adherence to the statutory formalities set out in § 47-5 (a) rendered the 1986 deed of conveyance voidable, but not void. We do not intend to give a carte blanche approval to any deviation from the statute. The jury here found, however, that the plaintiff “gave permission to or granted authority to his father to sign his name on the 1986 deed of conveyance.” We find it significant that the juiy’s finding focused on authority to sign the plaintiffs name specifically on the 1986 deed of conveyance. This finding is particularly relevant to laying a factual foundation for the purchasing defendants’ special defenses of laches and estoppel. It also establishes, however, the specific authority given to the father.

We cannot create a bright line test to distinguish permissible deviations from the statute from those that are impermissible. We conclude, therefore, that under the special circumstances of this case, the plaintiffs statutory claim is not persuasive.

II

ELECTION OF REMEDIES

The plaintiff claims that the trial court improperly required him to make an election of remedies prior to the court’s submission of the case to the jury. This is a question of law and therefore merits plenary review. See Faught v. Edgewood, 63 Conn. App. 164, 172, 772 A.2d 1142, cert. denied, 256 Conn. 934, 776 A.2d 1150 (2001). We again disagree with the plaintiff.

The plaintiff argues that he may seek both monetary compensation and quiet title in separate causes of action against different defendants. The plaintiff, however, mistakes a party’s right to plead alternate theories of liability with a right to seek inconsistent remedies that could result in double recovery.

In support of his position, the plaintiff relies on cases in which an election of remedies was not required prior to the commencement of trial and on cases allowing claims inconsistent with claims raised in previous attempts to recover a nonexistent remedy. See, e.g., Friederichsen v. Renard, 247 U.S. 207, 38 S. Ct. 450, 62 L. Ed. 1075 (1918); National Transportation Co. v. Toquet, 123 Conn. 468, 196 A. 344 (1937); Abbadessa v. Puglisi, 101 Conn. 1, 124 A. 838 (1924). The issue of pretrial election of remedies is not before us in this case. It was only after all evidence had been presented that the plaintiff was required to make his election. Furthermore, the plaintiff was not precluded from attempting to recover on a claim that was inconsistent with a prior attempt to recover a nonexistent remedy.

The plaintiff also invokes cases holding that a litigant is entitled to proceed on inconsistent theories of recovery. See, e.g., DeLucia v. Burns, 11 Conn. App. 439, 446-47, 527 A.2d 1234, cert. denied, 205 Conn. 803, 531 A.2d 935 (1987); DeVita v. Esposito, 13 Conn. App. 101, 105-106, 535 A.2d 364 (1987), cert. denied, 207 Conn. 807, 540 A.2d 375 (1988). While a trial court has a duty to determine which of conflicting sets of facts a party has proved; see DeVita v. Esposito, supra, 107; that duty is relevant only to a party pleading alternate theories of liability. In this case, the plaintiff did not present inconsistent sets of facts in support of alternate theories of liability, among which the fact finder might choose in order to determine which had been proven. Rather, we agree with the defendants that the multiple remedies requested by the plaintiff could have resulted in double recovery. The plaintiff has provided us with no authority, and we know of none, that supports his contention that an election of remedies at the close of a jury trial is improper under the circumstances of this case.

Ill

FORGERY AND COMPENSATORY DAMAGES

The plaintiff next claims that the trial court improperly refused to charge the jury on forgery and compensatory damages relating to conversion. We disagree.

The plaintiff asserts that the jury should have been charged on forgery because the jury’s finding on conversion and on damages was inextricably linked with its finding on forgery. The plaintiff further asserts that, pursuant to General Statutes § 52-565, the jury should have been charged on double damages related to forgery. The plaintiff has failed to demonstrate, however, that claims of forgery and of related damages were preserved at trial.

“A fundamental tenet in our law is that the plaintiffs complaint defines the dimensions of the issues to be litigated. [T]he right of a plaintiff to recover is limited to the allegations of [her] complaint. . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. ... A plaintiff may not allege one cause of action and recover upon another.” (Citations omitted; internal quotation marks omitted.) Pergament v. Green, 32 Conn. App. 644, 650, 630 A.2d 615, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993); see also Aksomitas v. Aksomitas, 205 Conn. 93, 102, 529 A.2d 1314 (1987).

In this case, the plaintiffs complaint contained no reference to forgery or to double damages related thereto. The complaint alleged only that “a person other than the plaintiff signed the plaintiffs name to said contract and warranty deed without the knowledge, consent, authority or ratification of the plaintiff.” The plaintiff has made no showing that this pleading raises questions of forgery or double damages. His claim, therefore, is unsustainable on appeal.

IV

SPECIAL DEFENSES OF LACHES AND ESTOPPEL

The plaintiff claims that the trial court improperly denied his motion for a directed verdict with respect to the purchasing defendants’ special defenses of laches and estoppel. In support of his claim, the plaintiff maintains that the jury verdict was unreasonable in light of the defendants’ failure to prove their interest and to plead facts sufficient to support the special defenses. We disagree.

We first articulate the standard by which we review a trial court’s denial of a motion for directed verdict. “Directed verdicts are not favored. . . . Our review of a trial court’s refusal to direct a verdict . . . takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial . . . giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony .... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.” (Citations omitted; internal quotation marks omitted.) John T. Brady & Co. v. Stamford, 220 Conn. 432, 440-41, 599 A.2d 370 (1991).

The defense of laches, if proven, bars a plaintiff from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the defendant. “First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant. ... A conclusion that a party has been guilty of laches is one of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law.” (Citation omitted; internal quotation marks omitted.) Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 350, 579 A.2d 1054 (1990).

The defense of estoppel must be supported by proof of two essential elements: “(1) the party against whom estoppel is claimed must be shown to have done or said something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and (2) the other party must be shown to have changed its position in reliance on those facts, thereby incurring some injury. . . . An estoppel is predicated on proof of misleading conduct resulting in prejudice to the other party. . . . The party claiming estoppel has the burden of proof, and whether it has met that burden of proof in a particular case is an issue of fact.” (Citations omitted.) Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 768, 674 A.2d 1313 (1996).

In this case, the purchasing defendants presented to the jury sufficient evidence to establish the necessary elements of the defenses of laches and estoppel. Both of these special defenses involved fact specific inquiries into the conduct of the plaintiff and the reliance of these defendants on that conduct. The plaintiff has not challenged the facts found by the jury. A fortiori, the jury’s verdict is not unreasonable as a matter of law. The trial court properly denied the plaintiffs motion for a directed verdict.

V

INCONSISTENT INTERROGATORIES

The plaintiff also claims that the trial court improperly denied the plaintiffs motion to set aside the verdict because certain responses to the jury’s interrogatories were inconsistent. We disagree.

We review the trial court’s denial of a motion to set aside a verdict by an abuse of discretion standard. Connecticut National Bank v. D’Onofrio, 46 Conn. App. 199, 214-15, 699 A.2d 237, cert. denied, 243 Conn. 926, 701 A.2d 657 (1997). “The role of an appellate court where an appellant seeks a judgment contrary to a general verdict on the basis of the jury’s allegedly inconsistent answers to such interrogatories is extremely limited.” (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 269, 698 A.2d 838 (1997).

The standard for a trial court to review a jury’s responses to interrogatories also is particularly narrow. The role of the court is not “to search the record for conflicting answers in order to take the case away from the jury on a theory that gives equal support to inconsistent and uncertain inferences.” Norrie v. Heil Co., 203 Conn. 594, 606, 525 A.2d 1332 (1987). Rather, “[w]hen a claim is made that the jury’s answers to interrogatories in returning a verdict are inconsistent, the court has the duty to attempt to harmonize the answers.” Id. “To justify the entry of a judgment contrary to a general verdict upon the basis of answers to interrogatories, those answers must be such in themselves as conclusively to show that as [a] matter of law judgment could only be rendered for the party against whom the general verdict was found; they must negative every reasonable hypothesis as to the situation provable under the issues made by the pleadings; and in determining that, the court may consider only the issues framed by the pleadings, the general verdict and the interrogatories, with the answers made to them, without resort to the evidence offered at the trial.” (Emphasis added; internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 269-70.

The plaintiff first asserts that he is entitled to a new trial because the jury’s responses to the interrogatories related to the special defenses of laches and estoppel were inconsistent with the jury’s finding relating to the plaintiffs knowledge of the 1986 sale. He asks how he could have been estopped by an event about which he did not know. The answer to his question is that the interrogatory answers were more encompassing than he represents them to be. The jury found in its answer to interrogatory number eleven that “the plaintiff waited an unreasonable or inexcusable amount of time between the time that he first learned the property was to be sold or had been sold and the time that he first made a claim of ownership to the property” (emphasis added) and, in its answer to interrogatory number twelve that the purchasing defendants had been prejudiced by that delay. Interrogatory number eleven refers to the time when the plaintiff first learned that the property was to be sold. Even though the plaintiff had no knowledge of the actual sale prior to 1990, the jury finding in interrogatory number three stated that the plaintiff had given his father authority to sign his name on the 1986 warranty deed. Taken together, these answers support a finding that the plaintiff had knowledge in 1986 that the property was to be sold. So interpreted, there is no inconsistency between the jury’s responses to the interrogatories related to laches and estoppel, on the one hand, and to lack of actual knowledge until 1990 on the other.

The plaintiff also claims that it was inconsistent for the jury to respond negatively to interrogatories number two and five and affirmatively to interrogatory number nine. The jury found in response to interrogatory number two that the plaintiff had no actual knowledge of the sale prior to February of 1990. Interrogatories number five and nine asked the jury to find whether the plaintiff had conducted himself in a manner intended or calculated to induce certain beliefs in the defendants. In response, the jury found that the plaintiffs conduct intentionally induced the purchasing defendants to believe that they were receiving or had received good title, but did not intentionally induce his brother to believe that he was no longer interested in the property.

These answers to the interrogatories are not necessarily inconsistent because they can be harmonized so as to sustain the jury’s verdict. See Norrie v. Heil Co., supra, 203 Conn. 606. The jury’s findings relating to the plaintiffs conduct did not specify any particular time period. Rather, they referred to a period “before, during and/or after the sale of the property in 1986.” The jury’s finding that the plaintiff had given authority to his father to sign the plaintiffs name on the 1986 warranty deed implies that the plaintiff knew that the property was to be sold at that time. Therefore, the jury’s findings relating to the plaintiffs conduct do not necessarily conflict with the jury’s finding relating to when the plaintiff discovered the actual sale. Moreover, the jury found in interrogatory number eleven that the plaintiff waited an unreasonable amount of time to claim ownership of the property after learning that the property was to be sold or had been sold. In light of the plaintiffs knowledge in 1986 that the property was to be sold, his grant of authority to his father to convey the property and his failure to claim ownership earlier, the jury reasonably could have considered his delay to be an intentional inducement of certain beliefs in the purchasing defendants. Finally, the jury’s responses to interrogatories number five and nine are not inconsistent with one another because they pertain to the plaintiffs conduct with respect to different defendants.

We conclude that the answers to the interrogatories are not irreconcilable. Accordingly, we affirm the trial court’s denial of the motion to set aside the verdict on those grounds.

VI

CONVERSION

The plaintiffs final claim challenges the trial court’s denial of his motions for directed verdict and to set aside the verdict against his brother, Michael Treglia. The plaintiff maintains that no reasonable jury could have failed to find the brother liable for falsely signing the plaintiffs name on the contract of sale and for converting the sale proceeds. This claim is frivolous.

In its response to the interrogatories, the jury found that the plaintiff had not proven that his brother had “converted the property of the plaintiff by assuming authority over and dealing with the net proceeds of the sale in a manner adverse to and inconsistent with the rights of the plaintiff. . . .” The plaintiff claims that this finding cannot be sustained because there was undisputed evidence that the brother signed the plaintiffs name. That is not so. The evidence was not undisputed and therefore the issue was appropriately a question for the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47-5 (a) provides in relevant part: “All conveyances of land shall be: (1) In writing; (2) if the grantor is a natural person, subscribed, with or without a seal, by the grantor with his own hand or with his mark with his name annexed to it or by his attorney authorized for that purpose by a power executed, acknowledged and witnessed in the manner provided for conveyances . . . (3) acknowledged by the grantor, his attorney or such duly authorized person to be his free act and deed . . . (Emphasis added.)

       The defendants named in the complaint were attorney Robert G. Zanesky, Barbara Zanesky, Michael Treglia, Alfred Kery, Pontos Realty, Inc., Norwalk Savings Society and the redevelopment agency of the city of Norwalk. The merits of the plaintiffs claims against his attorney are not before us in this appeal.

       The interrogatories to which the jury responded were in relevant part as follows:
      “1. Do you find that the plaintiff has proven by a preponderance of the evidence that when the property was purchased in 1979, he accepted the deed to the property, or that someone accepted it on his behalf, or that by his acts or conduct, the plaintiff showed an intention to assent, or consent, to the 1979 deed? [Jury responded in the affirmative.] . . .
      “2. Do you find that the defendant Michael Treglia has proven by a preponderance of the evidence that the plaintiff knew or learned of the 1986 sale of the property prior to February 6, 1990? [Jury responded in the negative.] . . .
      “3. Do you find that the defendants have proven by a preponderance of the evidence that Patrick Treglia gave permission to or granted authority to his father to sign his name on the deed of conveyance? [Jury responded in the affirmative.]
      “4. Do you find that the plaintiff has proven by a preponderance of the evidence that Michael Treglia converted the property of the plaintiff by assuming authority over and dealing with the net proceeds of the sale in a manner adverse to and inconsistent with the rights of the plaintiff, Patrick Treglia? [Jury responded in the negative.] . . .
      “5. Do you find that 1he defendant, Michael Treglia, has proven by a preponderance of the evidence, that before, during and after the sale of the property in 1986 the plaintiff conducted himself with respect to the property in a way intended or calculated to induce Michael Treglia into believing that Patrick Treglia no longer had or wanted an interest in the property? [Jury responded in the negative.]
      “6. If the answer to question 5 is ‘Yes’ . . . [Jury did not respond.]
      “7. Do you find that the plaintiff has proven by a preponderance of the evidence that he is entitled to punitive damages from the defendant Michael Treglia? [Jury responded in the negative.]
      “8. If you answered ‘Yes’ to question 7 . . . [Jury did not respond.]
      “9. Do you find that the defendants Pontos Realty, Inc., Alfred Kery, Norwalk Savings Society and Redevelopment Agency of the city of Norwalk (‘The Purchasing Defendants’) have proven by a preponderance of the evidence that before, during and/or after the sale of the property in 1986, the plaintiff conducted himself with respect to the property in a way intended or calculated to induce defendants to believe they were receiving or had received good title to the property? [Jury responded in the affirmative.] “10. If the answer to question 9 is ‘Yes,’ have the Purchasing Defendants proven by a preponderance of the evidence that any or all of them in good faith reliance on the plaintiffs conduct changed their positions or did some act to their detriment which otherwise they would not have done? [Jury responded in the affirmative.] If the answer to this question is ‘YES,’ specify which defendants acted to their detriment (check all that apply.) [Jury checked all purchasing defendants.]
      “11. Do you find that the Purchasing Defendants have proven by apreponderance of the evidence that the plaintiff waited an unreasonable or inexcusable amount of time between the time that he first learned the property was to be sold or had been sold and the time that he first made a claim of ownership to the property? [Jury responded in the affirmative.]
      “12. If the answer to question 11 is ‘YES,’ have the Purchasing Defendants proven by a preponderance of the evidence that any or all of them were prejudiced by the plaintiffs delay? [Jury answered in the affirmative.] If the answer to this question is ‘YES,’ specify which defendants were prejudiced by the plaintiffs delay (check all that apply). [Jury checked all purchasing defendants.] . . .”

       The absence of a finding regarding who actually affixed the plaintiffs signature to the contract does not affect our decision. The operative issue is the deed, which supersedes the contract. See Powers v. Olson, 252 Conn. 98, 106, 742 A.2d 799 (2000).

       For the purpose of determining whether the complaint was filed within the statute of limitations, the jury found that the plaintiff discovered the sale no earlier than February 6, 1990. The plaintiff asserts that he did not discover the sale of the property until the fall of 1990.

       The purchasing defendants included all the defendants with the exception of the plaintiffs brother.

       See footnote 1.

       The plaintiff frames this argument in terms of a challenge to the interrogatories submitted to the jury. This is a question of law, however, and therefore cannot be resolved by challenging interrogatories which relate necessarily only to fact-finding.

       See footnote 1.

       See footnote 3.

       It appears from the record that the trial court acted sua sponte in requiring the plaintiff to make an election of remedies at the charge conference after all evidence had been heard.

       General Statutes § 52-565 provides: “Any person who falsely makes, alters, forges or counterfeits any document, or knowingly utters, as true, any document falsely made, altered, forged or counterfeited, shall pay double damages to any party injured thereby.”

       See footnote 3.

       Notably, the interrogatories did not ask and the jury did not find whether the plaintiff had notice of the sale due to his knowledge in 1986 that the property was to be sold and his granting of authority to his father to convey the property at that time. The interrogatories asked the jury only about actual knowledge of the sale.

       See footnote 3.

       See footnote 3.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    MATTHEW SALEMME v. TOWN OF SEYMOUR
    (AC 21311)
    Foti, Mihalakos and Dranginis, Js.

      Argued October 29
    officially released December 25, 2001

      Steven P. Kulas, for the appellant (plaintiff).

      Giovanna Trocchi Giardina, with whom, on the brief, was Jonathan A. Kocienda, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, Matthew Salemme, appeals from the judgment of the trial court rendered on the pleadings in favor of the defendant, the town of Seymour (town). The plaintiff claims that the court improperly (1) determined that the statutorily prescribed notice that the plaintiff sent to the town was deficient as a matter of law, (2) concluded that the savings clause in General Statutes § 13a-149 did not apply to his claim, and (3) refused to allow him to amend his complaint. We affirm the judgment of the trial court.

By summons and complaint dated September 27, 1999, the plaintiff commenced this action against the town pursuant to § lSa-149. He alleged that he sustained injuries as a result of an accident on October 27, 1997, in that (1) while driving his motor vehicle on a street in the town, he attempted to stop at a stop sign and was unable to do so because of an accumulation of wet leaves and pine needles on the road, which caused his vehicle to collide with another automobile, and (2) the town should have taken appropriate measures to correct the condition or to warn him of its existence.

The plaintiff provided notice of the accident to the town, as required by § 13a-149, by letter dated November 25, 1997. The plaintiff referenced the notice in his complaint and attached it to the complaint as an exhibit. The plaintiff indicated in that notice that an accident occurred at “approximately 5:10 p.m., October 27, 1997.” The plaintiff indicated that the accident occurred on Silvermine Road, and that it was caused by “the extremely slippery conditions of the road caused by wet leaves and pine needles.”

On December 30, 1999, the town filed a motion to strike the complaint on the ground that the plaintiff had failed to give the town sufficient notice of the details of his claim. On July 7, 2000, the court, Sequino, J., granted the motion. On July 20,2000, the plaintiff filed a request to amend his complaint. He attached a proposed complaint that was identical to his original complaint. He attached to that complaint, however, an amended notice of his claim, dated February 25, 2000. The amended notice indicated that the town had received it on February 28, 2000. The amended notice described the location as “Silvermine Road, Seymour, Connecticut, at its intersection with Maple Avenue, Seymour, Connecticut.” The court, Grogins, J., sustained the town’s objection to the plaintiffs request to amend the complaint. Thereafter, on October 2, 2000, the court, Hon. George W. Ripley II, judge trial referee, granted the town’s motion for judgment on the pleadings. This appeal followed.

As a preliminary matter, we address the town’s claim that the plaintiff waived his right to appeal by filing his amended pleading, which “effectively removed his original complaint and any right to appeal [from] the trial court’s decision to strike it.”

“As a general rule, [t]he filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the [motion to strike] the original pleading. . . . P & L Properties, Inc. v. Schnip Development Corp., 35 Conn. App. 46, 49, 643 A.2d 1302, cert. denied, 231 Conn. 913, 648 A.2d 155 (1994); see also Royce v. Westport, 183 Conn. 177, 179, 439 A.2d 298 (1981); Good Humor Corp. v. Ricciuti, 160 Conn. 133, 135, 273 A.2d 886 (1970).” (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 74, 700 A.2d 655 (1997). Accordingly, the town argues, if the allegations in the plaintiffs amended complaint were not materially different from those in his original complaint, the plaintiff is precluded now from challenging the court’s granting of the town’s motion to strike the original complaint.

The simple answer is that the court denied the plaintiffs request to file an amended complaint. Consequently, the plaintiff never actually filed the “proposed” amended complaint, and only one complaint remained in the case. Therefore, the plaintiff has not waived his right to appeal from the judgment rendered on the pleadings following the court’s granting of the motion to strike the plaintiffs complaint.

I

The plaintiff first claims that the court improperly concluded that the notice was deficient as a matter of law. He argues that the notice sufficiently described the location of the accident and that whether that description was insufficient was a question of fact for the jury to decide. We do not agree.

“As a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice that meets statutory requirements. . . . The statute requires that the notice contain the following five essential elements: (1) written notice of the injury; (2) a general description of that injury; (3) the cause; (4) the time; and (5) the place thereof. ... A plaintiff who fails to comply with these requirements cannot maintain a cause of action against a municipality.” (Citations omitted.) Martin v. Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997).

The sufficiency of the notice is tested with reference to the purpose for which it is required. Warkentin v. Burns, 223 Conn. 14, 18, 610 A.2d 1287 (1994). The purpose of the notice requirement, § 13a-149, “is not to set a trap for the unwary or to place an impediment in the way of an injured party who has an otherwise meritorious claim. Rather, the purpose of notice is to allow the municipality to make a proper investigation into the circumstances surrounding the claim in order to protect its financial interests.” Pratt v. Old Saybrook, 225 Conn. 177, 182, 621 A.2d 1322 (1993). Statutory notice allows the municipality to investigate promptly conditions that endanger public safety and give it an early start in assembling evidence for its defense against a meritless claim. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 198, 592 A.2d 912 (1991). The court here properly concluded, as a matter of law, that the notice given did not serve those purposes and failed to meet the statutory requirements. The notice inadequately described the place of the occurrence. It was so broad as to be faulty, making it impossible for the town to be able to ascertain the location of the plaintiffs alleged accident. The description, for all practical purposes, was useless. Therefore, it would have been inappropriate to have called upon the jury to decide the issue of sufficiency of the notice when the notice was patently deficient and inadequate as a matter of law.

II

The plaintiff next alleges that the court improperly declined to apply favorably to his case the savings clause in § 13a-149. We disagree.

The municipal highway notice requirement should be liberally construed because it contains a savings clause. Pratt v. Old Saybrook, supra, 225 Conn. 183. The savings clause, however, does not extend the time within which a party asserting a claim must give adequate notice. See Brennan v. Fairfield, 58 Conn. App. 191, 199, 753 A.2d 396 (2000), rev’d on other grounds, 255 Conn. 693, 768 A.2d 433 (2001). The savings clause deals with specific deficiencies of content in a notice, but does not extend the time requirement for delivery of the notice. The plaintiffs proposed amended notice could not cure the patently deficient notice, which was insufficient as a matter of law. The statute requires the plaintiff to give adequate notice within ninety days of the accident. Therefore, pursuant to the statute, the savings clause could not apply to his claim.

Ill

The plaintiff further argues that the court improperly denied his request to amend the complaint. We agree, but conclude that the court’s action was harmless.

Practice Book § 10-44 allows a party whose pleading has been stricken to file a new pleading within fifteen days of such action. The court’s permission is not required. The plaintiff unnecessarily filed a request to amend his complaint along with his proposed amended complaint. He filed the request within fifteen days of the court’s granting of the town’s motion to strike. The plaintiff correctly argues that he could have filed his amended complaint without the court’s permission. His proposed amended complaint, however, was identical to the “original” complaint except for the attached notice, which was improper as an untimely delivered notice. Although the plaintiff was able to amend his complaint, he was not able to validate the second notice attached thereto because he did not deliver that notice to the town within the statutory time period. The “amended complaint,” therefore, could not stand because it failed to state a claim on which relief could be granted.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13a-149 provides in relevant part: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except -within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. . . .”

       Practice Book § 10-44 provides: “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint, counterclaim or cross complaint.”

       We are not unaware that the defect complained of, “wet leaves and pine needles,” would, in all probability, not have remained at the location for 1he municipality’s viewing and inspection even if the plaintiff had given proper notice within the ninety day period provided in General Statutes § 13a-149. In applying the statute, however, we are bound to recognize its general purpose and to expect parties to comply with the statute accordingly.

         General Statutes § 13a-149 provides in relevant part: “No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       The court granted the motion to strike on July 7, 2000, and the plaintiff filed his request to amend and the proposed amendment on July 20, 2000.


author: PER CURIAM.

text:
    WILTON HYLTON v. COMMISSIONER OF CORRECTION
    (AC 21508)
    Mihalakos, Dranginis and O’Connell, Js.
    Submitted on briefs November 1
    officially released December 25, 2001

      Katharine S. Goodbody, special public defender, filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, Anne O. Holley, deputy assistant state’s attorney, and Angela R. Macchiarulo, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly determined that he was not deprived of the effective assistance of counsel. We affirm the judgment of the habeas court.

The petitioner had pleaded guilty to the charges in two criminal matters pending against him. In the first case, the petitioner pleaded guilty to murder in violation of General Statutes § 53a-54a, attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1), and assault in the first degree in violation of General Statutes § 53a-59 (a) (1). In the second case, the petitioner pleaded guilty to robbery in the first degree in violation of General Statutes § 53a-134 and assault in the first degree in violation of § 53a-59. He was sentenced to a total effective term of thirty-five years in the custody of the commissioner of correction.

Subsequently, the petitioner filed an amended petition for a writ of habeas corpus, claiming that he had been deprived of effective assistance of counsel. Following an evidentiary hearing, the court denied the petition and later granted certification to appeal. This appeal followed.

Specifically, the petitioner claims that trial counsel’s failure (1) to investigate adequately the charges against the petitioner, (2) to pursue suppression of the petitioner’s confession, and (3) to assure that the petitioner’s plea was voluntary, intelligent and knowing caused counsel’s representation to be ineffective and prejudiced the petitioner.

“Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [wjhether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Milner v. Commissioner of Correction, 63 Conn. App. 726, 737-38, 779 A.2d 156 (2001).

“[T]o prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice. ... To prove that his counsel’s performance was deficient, the petitioner must demonstrate that counsel’s representation fell below an objective standard of reasonableness. . . . Furthermore, the petitioner must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Id., 738.

The court, in its oral decision, stated that it “cannot find from the evidence in this case that the petitioner has even established the first prong of [Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] that [counsel’s representation] fell below a standard of care for the advice that he gave. . . . Considering all the facts that have been testified to today . . . this court cannot make a determination that it would have been that the petitioner has been prejudiced by the acts of his attorney.”

On the basis of our review of the record, we conclude that the court properly determined that the petitioner failed to satisfy his burden of establishing that his trial counsel provided ineffective assistance.

The judgment is affirmed.

       The transcript of the decision was signed by the court in accordance with Practice Book § 64-1.