text:
    Judith Sidney et al. v. Philip N. DeVries et al.
    (6712)
    Dupont, C. J., Stoughton and Jacobson, Js.
    Argued February 10
    decision released June 13, 1989

      Robert L. Fisher, Jr., for the appellant (defendant Rex K. Callum).

      John P. Febbroriello, with whom, on the brief, was Stephanie M. Weaver, for the appellees (plaintiffs).
   Dupont, C. J.

This appeal involves a counterclaim in which the defendant sought payment for materials and services supplied by the defendant in the remodeling of the plaintiffs’ home. The defendant appeals from a judgment of the trial court in favor of the plaintiffs on the defendant’s counterclaim.

The defendant claims that the trial court erred (1) in rendering judgment for the plaintiffs on the basis of the defendant’s noncompliance with General Statutes § 20-429 (a) and (c) of the Home Improvement Act, when the plaintiffs had not pleaded noncompliance as a special defense, and (2) in finding that the act precluded the defendant from recovery under a theory of quantum meruit.

The defendant’s amended counterclaim consisted of four counts, three of which are involved in this appeal. Two counts alleged that the parties had entered into an oral agreement for the furnishing of materials and the rendering of services in connection with the renovation of the plaintiffs’ residence. A third count alleged that the defendant had furnished materials and services at the request of the plaintiffs for which he had not been paid in full and which had the same value as the amount set out in the other two counts. The plaintiffs filed an answer, essentially denying all of the allegations in the defendant’s counterclaim, and a special defense to the counterclaim alleging that the defendant did not comply with the Home Solicitation Sales Act. General Statutes § 42-134a et seq. The plaintiffs did not specially plead General Statutes § 20-429 (a) of the Home Improvement Act.

Concluding that the defendant failed to comply with General Statutes § 20-429 (a) and (c) of the Home Improvement Act, the trial court rendered judgment for the plaintiffs on the defendant’s counterclaim. In its memorandum of decision, the court did not comment directly on the plaintiffs’ failure specially to allege a violation of the act by the defendant. It did, however, state that the evidence that supported a finding that the act was violated was either introduced by the defendant or not objected to by the defendant. The defendant claims that the court could not render a judgment for the plaintiffs on the basis of noncompliance with the act because it is a special defense and one not encompassed in the plaintiffs’ general denial. The plaintiffs claim that the court could consider the act even though they only alleged a violation of the Home Solicitation Sales Act as a special defense.

In order to determine the effect of the plaintiffs’ failure specially to allege a violation of the act as a defense, we must examine certain facts. On the fourth day of the trial, the court and the plaintiffs’ counsel engaged in a colloquy concerning the act. This was the first time that the act was mentioned at trial. On the last day of trial, after the defendant had rested his case on his counterclaim, the plaintiffs moved to dismiss the defendant’s counterclaim pursuant to § 302 of the Practice Book for failure to make out a prima facie case, relying specifically on the defendant’s failure to demonstrate compliance with the act. The plaintiffs never sought to amend their special defense to allege noncompliance with the act. Practice Book § 174 et seq.

On appeal, the defendant argues that the plaintiffs’ failure specially to plead the Home Improvement Act violates Practice Book § 109A which provides in pertinent part: “When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.” The plaintiffs contend that Practice Book § 109A provides authority for the rule that a statute may be denominated numerically when it is relied upon in a party’s pleading. We agree with the plaintiff’s view. The word “when” as used in § 109A connotes a condition or a contingency; see Ballentine’s Law Dictionary (3d Ed.); and may be equated with the word “if.” The purpose of § 109A is to allow the defending party to be aware of the precise statute upon which his adversary relies. Rowe v. Godou, 209 Conn. 273, 275, 550 A.2d 1073 (1988); Gionfriddo v. Avis Rent A Car Systems, Inc., 192 Conn. 280, 290-91 n.10, 472 A.2d 306 (1984); DeVita v. Esposito, 13 Conn. App. 101, 103-104, 535 A.2d 364 (1987), cert. denied, 207 Conn. 807, 504 A.2d 375 (1988).

The question here, however, is not whether a statute was correctly identified by its number but whether a statute should have been specially pleaded as a defense. Section 164 of the Practice Book addresses whether a defense must be specially pleaded. The defendant implicitly relies on § 164 in his brief, and we will address his claim under this section. Section 164 of the Practice Book provides: “No facts may be proved under either a general or special denial except such as show that the plaintiffs statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that he has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be his own.” The purpose of § 164 is “to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial is under way . . . .” DuBose v. Carabetta, 161 Conn. 254, 261, 287 A.2d 357 (1971).

In his counterclaim, the defendant relied upon facts that supported an oral contract. The plaintiffs attempted to prove at trial that, notwithstanding the merits of the defendant’s claim grounded on oral contract, the defendant had failed to comply with either the Home Solicitation Sales Act or the Home Improvement Act, both of which require contracts for certain services to be in writing. The operative effect of a defense premised on the act is to render a home improvement contract invalid if the “entire agreement between the owner and the contractor” is not in writing, even though it might otherwise be valid as an oral contract. Allegations that an oral agreement is unenforceable under the act are consistent with the defendant’s allegations relying on an oral contract, “but show, notwithstanding, that [the defendant] has no cause of action .-. . .” Practice Book § 164. Consistent facts must be specially alleged; id.; and may not be proved under a general denial. The fact that the writings of the parties did not contain the entire agreement of the parties, as admitted by the defendant in his testimony, and as found by the court, is a fact that destroyed the liability of the plaintiffs under the act, even if all of the facts as alleged in the defendant’s counterclaim were true. Therefore, the act should have been specially alleged as a defense by the plaintiffs. See Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 5-8, 327 A.2d 583 (1973). When the evidence needed to establish that no cause of action lies is consistent with the allegations necessary to establish a prima facie case, a special defense is required. Bernier v. National Fence Co., 176 Conn. 622, 629-30, 410 A.2d 1007 (1979). We conclude that the plaintiffs should have pleaded the Home Improvement Act as a special defense.

The plaintiffs claim that the defendant waived any deficiency in the pleadings by failing to object to evidence admitted under the Home Improvement Act. It is well established that a failure to allege a special defense is waived if evidence relating to that special defense is admitted without objection. Pepe v. New Britain, 203 Conn. 281, 286, 524 A.2d 629 (1987); Presnick v. DeRosa, 12 Conn. App. 554, 556, 532 A.2d 1309 (1987); see also Lo Sacco v. Young, 210 Conn. 503, 509, 555 A.2d 986 (1989).

Our scrutiny of the transcript of the proceedings before the trial court indicates that the evidence introduced by the plaintiffs could have been admitted under either the Home Solicitation Sales Act or the Home Improvement Act. The evidence that related solely to the Home Improvement Act, namely, that which established that the writings submitted did not contain the entire agreement of the parties; General Statutes § 20-429 (a); was not objected to by the defendant and was, in part, introduced by the defendant. The defendant, therefore, waived the plaintiffs’ failure to specially plead the Home Improvement Act.

The question remains whether the trial court properly found for the plaintiffs on the defendant’s counterclaim. The court relied entirely on the Home Improvement Act in rendering judgment for the plaintiffs on the defendant’s counterclaim. The court found that the work to be performed, as well as the business of the defendant, fell within the scope of that act. General Statutes § 20-419. The court further found that the evidence introduced by the parties unequivocally demonstrated that no written contract containing their entire agreement existed. The court found that it was impossible to reconcile the agreements in evidence to form a written contract containing the entire agreement between the parties because the agreements were full of contradictory terms, and that no writing clearly set out the scope of the work, extras or the many other details necessary to complete an agreement. Accordingly, the court concluded that the defendant's counterclaim relying on an oral contract was barred by General Statutes § 20-429 (a), which provides: “No home improvement contract shall be valid unless it is in writing and unless it contains the entire agreement between the owner and the contractor.”

“It is well established that appellate courts will not retry facts or pass upon the credibility of witnesses and the weight to be accorded the evidence. ... We are limited in our review to determining whether the judgment of the trial court was clearly erroneous, or if the judgment was contrary to law.” (Citations omitted.) Golfin v. Plymouth Industrial Development Corporation of Connecticut, Inc., 15 Conn. App. 804, 543 A.2d 287 (1988). The facts found by the trial court were sufficient for the court to have concluded that the agreement between the parties fell within the Home Improvement Act and that the defendant’s counterclaim, relying on an oral contract, was barred by General Statutes § 20-429 (a). The facts found are not clearly erroneous, and the conclusion based upon those facts is legally and logically correct. The trial court did not err, therefore, in finding for the plaintiffs’ on the defendant’s counterclaim.

The defendant’s last claim is that the trial court erred in finding that the act precluded him from recovery under a theory of quantum meruit. The defendant’s claim is disposed of by Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986). In Caulkins, the court held that the plaintiff’s claim that the trial court erred in concluding that General Statutes § 20-429 bars enforcement of oral home improvement agreements that have been fully performed was unavailing. The court’s reasoning is applicable to the present case in that the language of § 20-429 (a) is “clear and unambiguous” and precludes implied exceptions to its mandate that home improvement contracts must be in writing. Id., 717-18.

There is no error.

In this opinion the other judges concurred.

       The action was withdrawn as to the named defendant Philip N. DeVries. The word “defendant” as used in this opinion refers to Rex K. Collum, a general contractor.

       The plaintiffs brought suit against the defendant, claiming improper and defective completion of a contract for the remodeling of their home, and seeking damages. The court rendered judgment for the defendant on the plaintiffs’ complaint. The plaintiffs have not appealed from that judgment.

       The fourth count alleged that the plaintiffs slandered and defamed the reputation, business ability and skill of the defendant.

       The following discussion took place between the court and the plaintiffs’ counsel:

        “The Court: Mr. Febbroriello, what’s your position?
      “Mr. Febbroriello: You know, again — again, Your Honor, I think I have to object, under the circumstances. You know—
      “The Court: Well, you claim now that this being within the Home Improvement Act must be in writing?
      “Mr. Febbroriello: That would be my position, Your Honor.” (Emphasis added.)

       Practice Book § 302 provides: “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.”

       The defendant also relied upon facts that supported his theory of recovery under quantum meruit.

         General Statutes § 20-429 (the Home Improvement Act) provides in pertinent part: “(a) No home improvement contract shall be valid unless it is in writing and unless it contains the entire agreement between the owner and the contractor.”
      General Statutes § 42-135a (the Home Solicitation Sales Act) provides in pertinent part: “No agreement of the buyer in a home solicitation sale shall be effective if it is not signed and dated by the buyer . . . .”

       Relying on Caulkins v. Petrillo, 200 Conn. 713, 716 n.4, 513 A.2d 43 (1986), the plaintiffs contend that the § 20-429 (a) of the Home Improvement Act falls within the statute of frauds exception to Practice Book § 164. Caulkins, however, did not address the pleading problem at issue in this case, but rather addressed whether the Home Improvement Act, General Statutes § 20-429 (a), barred recovery under the doctrine of full performance, a common law exception to the provisions of the statute of frauds. General Statutes § 52-550.

       Even if the court had decided the case based on the special defense to the counterclaim of the Home Solicitation Sales Act, the result would have been the same. The court found that the parties did not have an agreement in writing. The Home Solicitation Sales Act generally requires that the agreements covered by it be in writing; see General Statutes § 42-135a; although it may also be violated in a number of other ways. See General Statutes § 42-134a et seq. Whether the special defense was the Home Improvement Act or the Home Solicitation Sales Act, the defendant could not have recovered on his counterclaim, and the decision of the court could be upheld even if one of the special defenses should have been pleaded but was not. See Norwalk Door Closer Co. v. Eagle Lock & Screw Co., 153 Conn. 681, 686-87, 220 A.2d 263 (1966); cf. Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 410-11, 363 A.2d 86 (1975).


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    Paul W. Noethe v. Rosalie G. Noethe
    (7126)
    Dupont, C. J., Stoughton and Norcott, Js.

      Argued March 8
    decision released June 13, 1989

      David J. Ordway, for the appellant (plaintiff).

      Rosalie Griffith, pro se, the appellee (defendant).
   Norcott, J.

This appeal arises as a result of events that occurred following the rendition of judgment in an action for dissolution of the parties’ marriage. The plaintiff claims error in the trial court’s denial of his motions to conform the judgment file to the judgment and to vacate a qualified domestic relations order.

On January 22,1987, the trial court rendered a judgment of dissolution, incorporating the parties’ written stipulation regarding the distribution of property. The portion of the stipulation relevant to this appeal is the parties’ agreement that title to the marital home was to remain in the name of the defendant and that she pay the plaintiff $70,000 by March 1,1987, in consideration for his relinquishing his interest in the home. Pursuant to this agreement, the defendant paid the $70,000, and the plaintiff vacated the marital home.

The plaintiff claims that in February, 1988, he received an Internal Revenue Service form 1099 from the defendant’s accountants, informing him that the $70,000 he had received from the defendant would be treated as ordinary income. Believing that this buyout of the plaintiff’s interest in the property was a nontaxable event, the plaintiffs attorney went to the courthouse to review the court file. He claims that the file contained loose copies of a judgment file signed by the trial court and the defendant’s attorney, but not by him, and a qualified domestic relations order (QDRO) requested by the defendant and signed by the trial court. Although the request for the QDRO bore a certification by the defendant’s attorney that copies had been mailed to all counsel of record, the plaintiff’s attorney claims that neither he nor his cocounsel received copies of the request or the order. The record reflects that the request, the QDRO and the judgment file were not date stamped by the clerk’s office and are not recorded on the docket sheet contained in the court file.

In the QDRO, the court ordered that $70,000 of the defendant’s interest in her pension plan be assigned to the plaintiff “in full satisfaction of any claim raised by the plaintiff-Husband with respect to any and all qualified pension plans and benefits of which the defendant-Wife is, or may be, or may become a beneficiary.” The judgment file presented to the trial court reflected this order by adding a phrase not contained in the stipulation. The judgment file stated in pertinent part: “In consideration of said relinquishment and assignment as set forth in Paragraph C, the Defendant wife shall pay to the Plaintiff husband the consideration of Seventy Thousand Dollars, said payment to be made from the Pension Plan of the Defendant wife by a Qualified Domestic Relations Order. . . ."(Emphasis added.)

Claiming that he had no notice of the request for or the entry of the QDRO and that the order and the judgment file did not conform to the judgment of dissolution rendered earlier by the trial court, the plaintiff, on March 31, 1988, moved to vacate the order and to conform the judgment file. He argued that the $70,000 payment was made in consideration of his relinquishment of his interest in the marital home, not his relinquishment of any rights to the defendant’s pension plan, and that the change placed an unreasonable and uncontemplated tax burden on him. After a hearing, the trial court denied the plaintiff’s motions. This appeal ensued.

During the hearing on the plaintiff’s motions, the defendant’s attorney produced a copy of a judgment file signed by the plaintiff’s attorney. The plaintiff’s attorney stated that he did not know if the judgment file presented was the one he had signed and that, if it was, he had signed it mistakenly or inadvertently. The trial court concluded that by signing the judgment file the plaintiff’s attorney had waived the plaintiff’s objections to any nonconformity between the judgment file and the judgment. The court also refused to review the QDRO because the attorney had signed the judgment file.

“ ‘ “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . [Wjhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . .” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Cookson v. Cookson, 201 Conn. 229, 242-43, 514 A.2d 323 (1986).’ Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256-57, 524 A.2d 610 (1987).” Ottaviani v. Pechi, 16 Conn. App. 705, 710, 548 A.2d 1354 (1988). We hold that the trial court erred in concluding that the signing of a judgment file by the plaintiffs attorney resulted in a waiver of the plaintiffs substantive rights under the judgment.

Practice Book § 338 requires that counsel for the parties in a dissolution action sign the judgment file, certifying that it conforms to the judgment. Although in cases other than dissolution, the clerk of the court signs the judgment file; see Practice Book § 338; our Supreme Court has held that a judgment file, even in a dissolution action, is “merely a clerical document, and . . . the pronouncement by the court of the adopted provisions of the separation agreement is the judgment.” Lucisano v. Lucisano, 200 Conn. 202, 206-207, 510 A.2d 186 (1986). The plaintiffs attorney alleged that if he had signed a judgment file containing the disputed phrase reflecting the QDRO, he had done so by mistake or inadvertence. Even if we assume that he did sign such a judgment file, it was a clerical act. “ ‘A clerical error is a mistake or omission in a judgment which is not the result of the judicial function.’ ” LaPre v. Nibo Films, Ltd., 10 Conn. App. 669, 674 n.4, 525 A.2d 140 (1987), quoting Ravizza v. Waldie, 3 Conn. App. 491, 493, 490 A.2d 90 (1985). “ ‘If clerical, the error may be corrected at any time.’ ” LaPre v. Nibo Films, Ltd., supra, quoting Veranelli v. Luddy, 130 Conn. 74, 79, 32 A.2d 61 (1943).

Only a judicial act and not a clerical act can change the substantive rights under a judgment. See Veranelli v. Luddy, supra, 82. The trial court therefore erred in concluding that the clerical act of counsel’s signing a judgment file, an act alleged to have been a mistake, waived any underlying claims regarding judicial action alleged to have substantively changed rights embodied in an earlier judgment.

The defendant claims that the court could not have entertained the plaintiff’s motions because they were not filed within four months of the signing of the QDRO and the judgment file. The plaintiff counters that because a judgment file is a clerical document, it is not subject to a four month limit and may be corrected at any time. Although, as we noted earlier, the judgment file is a clerical document, it reflects previous judicial action. “If there is judicial error on the record, it may be corrected upon ‘motion to open or set aside . . . filed within four months following the date on which it was rendered or passed.’ General Statutes § 52-212a.” LaPre v. Nibo Films, Ltd., supra; see also Practice Book § 326. The error in the judgment file claimed by the plaintiff is the inclusion of language in a QDRO allowing the defendant to pay the plaintiff from her pension plan. Because this language apparently reflects the judicial action of granting a request for a postjudgment order, it does not reflect clerical action. The thrust of the plaintiffs claim is that the court improperly granted the request for the QDRO. Thus, it was necessary for the plaintiff to bring the motion to vacate or set aside the QDRO within four months of its issuance.

Although the record indicates that the trial court signed the QDRO on February 24, 1987, the plaintiff did not file his motion to vacate until March 31,1988, thirteen months after the decision on the QDRO. The plaintiff claims, however, that the QDRO was rendered ex parte and that he did not have any knowledge of the order until his attorney reviewed the court file after the receipt of the form 1099.

As in the statutory right to appeal; see Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 281, 487 A.2d 559 (1985); it is axiomatic that the right to move to open and vacate a judgment assumes that the party who is to exercise the right be given the opportunity to know that there is a judgment to open. We have indicated that for the purpose of opening a default judgment pursuant to General Statutes § 52-212, a delay in notifying the defendant of the judgment “would merely extend the time in which the defendant could move to set aside the judgment.” DiSimone v. Vitello, 6 Conn. App. 390, 393, 505 A.2d 745 (1986). We find this reasoning applicable to motions to open judgments brought pursuant to General Statutes § 52-212a and Practice Book § 326 as well. Because the trial court erroneously found waiver of the plaintiff’s claims, it did not reach the question of when the plaintiff received notice and whether the motion to vacate the QDRO was timely. The existence of actual or constructive notice is a question of fact properly within the province of the trial court. Middlebury v. Steinmann, 189 Conn. 710, 714, 458 A.2d 393 (1983); Mausch v. Hartford, 184 Conn. 467, 469, 440 A.2d 157 (1981). On remand, the trial court must hold an evidentiary hearing to determine when the plaintiff received either actual or constructive notice and whether he filed the motion to vacate within four months of the date of notice.

If the court determines that the plaintiff’s motion to vacate the QDRO was untimely, then it must deny that motion and the motion to conform the judgment file. If, however, the court concludes that the motion to vacate was timely filed, then it must reach the merits of the plaintiff’s motions.

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

In this opinion the other judges concurred.

       The relevant paragraphs of the stipulation provided:
      “(3) Title to the marital home of the parties . . . is now held in the name of the Defendant;
      “(4) Title to said premises is to remain in the name of the Defendant, the Plaintiff relinquishes any claim to said premises, and the Court is requested to assign, pursuant to its powers under Section 46b-81 (a) of the Connecticut General Statutes, whatever interest the Plaintiff has in said premises to the Defendant;
      “(5) In return for said relinquishment and assignment of interest in real estate, the Defendant is to pay to the Plaintiff the consideration of seventy thousand dollars ($70,000);
      “(6) The Defendant is to pay said sum to the Plaintiff on or before March 1, 1987.”

       General Statutes § 52-212a provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court.”
      Practice Book 5 326 provides in pertinent part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.”

       The plaintiff has not claimed that the order was a consent judgment obtained through fraud, lack of consent or mutual mistake, claims to which the time limits of § 326 would not apply. See Kenworthy v. Kenworthy, 180 Conn. 129, 429 A.2d 837 (1980). Although, by the terms of the QDRO, the trial court retained jurisdiction to amend the order to maintain conformity with the provisions of the Retirement Equity Act of 1984, the plaintiff does not claim that the court has continuing jurisdiction, as contemplated by § 326, to modify the order in aspects unrelated to federal law.

       The parties have raised many unresolved factual questions relating to notice. These include whether the QDRO was in fact signed on February 24, 1987; whether the plaintiff’s counsel actually received copies of the request, QDRO and judgment file certified by defendant’s counsel as mailed on February 24,1987; whether the defendant filed these documents with the court; whether the clerk’s office scheduled a hearing on the motions and whether the plaintiff received notice of such hearing. Also at issue is whether the copy of the judgment file signed by the plaintiffs attorney contained the disputed language and, if so, whether receipt of that document constituted constructive notice of the order. If any of these events, or others, constituted notice, the court must determine the date of such notice in order to determine whether the motions were filed within four months of that date.


author: O’Connell, J.

text:
    Marion Swenson v. Thomas Sawoska
    (6477)
    Spallone, Daly and O’Connell, Js.
    Argued April 6
    decision released June 13, 1989

      Zbigniew S. Rozbicki, with whom, on the brief, was Francis MacGregor, for the appellant (plaintiff).

      Trudie Ross Hamilton, with whom was Thomas J. Sansone, for the appellee (defendant).
   O’Connell, J.

The plaintiff appeals from the judgment rendered in favor of the defendant in an action for personal injuries sustained by the plaintiff in a motor vehicle accident.

The plaintiff claims that the trial court erred (1) in admitting into evidence the narrative portion of the investigating officer’s police report, (2) in charging the jury on the law of sudden emergency, and (3) in bifurcating the trial of the liability and damage issues. We find no error.

The jury could reasonably have found the following facts. About 11 p.m. on a snowy December night, the plaintiff attempted to drive her automobile up-a very slippery hill. The road had not been plowed and driving conditions were extremely hazardous. The plaintiff’s first attempt to get up the hill was unsuccessful and she backed down and tried again. This time, her car skidded sideways and came to rest crosswise, partially in the oncoming traffic lane, about fifty to sixty yards from the crest of the hill. At this moment, the vehicle operated by the defendant came over the crest of the hill. The defendant was unable to stop his vehicle’s downhill motion before it struck the plaintiff’s vehicle on the driver’s side. The investigating state trooper, after talking with each operator, arranged for the plaintiff’s transportation from the scene by ambulance.

I

The plaintiff first claims that the trial court erred in admitting the narrative portion of the police report into evidence. She claims that that evidence was admitted in violation of the hearsay rule because the officer could not remember which party had made some of the statements from which he prepared his report.

As a general rule, a police accident report is admissible as a business record under General Statues § 52-180. State v. Milner, 206 Conn. 512, 521, 539 A.2d 80 (1988); Hutchinson v. Plante, 175 Conn. 1, 4, 392 A.2d 488 (1978). This rule, however, does not automatically allow everything in a police report into evidence. State v. Milner, supra; Hutchinson v. Plante, supra. Here, the plaintiff argues against the admission of that portion of the officer’s narrative that recites that “[the plaintiff’s] second attempt caused [her] vehicle to slide crosswise in the road and stop when [the defendant’s] vehicle suddenly came over the hill.” She bases the objection on the officer’s failure to recollect which party was the source of the information giving rise to this comment. If the information came from the plaintiff, it arguably would be admissible as an admission against interest. Whereas, if the information was supplied by the defendant it probably would be inadmissible as a self-serving declaration from a person with no business duty to give information to the police. See Hutchinson v. Plante, supra, 6-7.

The defendant argues that a peculiar scenario of objections, exceptions and withdrawals of objections left the plaintiff without a preserved objection to appeal the admission of the narrative portion of the police report. After an examination of the transcript, we do not agree that the plaintiff was stranded without a properly preserved objection. We, therefore, will consider her claim of error on its merits.

The plaintiff correctly asserts that the officer declined to testify that he distinctly remembered which operator was the source of the statement at issue. As a result, we are precluded from ascertaining whether that portion of the report was hearsay. Even if we assume that it was hearsay, we cannot conclude that its admission requires reversal. There was sufficient other evidence to support the jury’s verdict, including the location of the damage on the plaintiff’s car. Any error, therefore, would be harmless.

II

The plaintiff next claims that the court erred in charging the jury on the emergency doctrine because the defendant had not requested that instruction. This contention deserves little attention. It is the duty of the court to provide any instruction appropriate to the facts that will assist the jury in its deliberation. The failure of a party to request a particular charge does not preclude the court from giving it, as long as it is “correct in law, adapted to the issues and ample for the guidance of the jury.” Nesbitt v. Mulligan, 11 Conn. App. 348, 354, 527 A.2d 1195, cert. denied, 205 Conn. 805, 531 A.2d 936 (1987).

Furthermore, in excepting to the trial court’s charge on the emergency doctrine, the plaintiff simply stated, “I just think it is improper.” Such explanation is insufficient to preserve her exception for appellate review. Practice Book § 315 delineates the procedure to be followed when an exception to a jury charge is taken. The pertinent part of § 315 provides that “[cjounsel taking the exception shall state distinctly the matter objected to and the ground of objection.” The purpose of this rule is to give the trial court an opportunity to consider the exception in the light of the ground stated and consider it if appropriate. Thomas v. Katz, 171 Conn. 412, 414, 370 A.2d 978 (1976); Nisbet v. Olmeda, 15 Conn. App. 6, 15, 544 A.2d 642 (1988). If counsel does not fully apprise the trial court of the grounds for the exception, the matter generally will not be considered on appeal. Bauman & Garrity of Lakeville, Inc. v. George E. Emerson, Inc., 14 Conn. App. 261, 263-64 n.2, 540 A.2d 710 (1988); Smith v. Czescel, 12 Conn. App. 558, 563, 533 A.2d 233, cert. denied, 206 Conn. 803, 535 A.2d 131 (1987). Nor may counsel make an ambiguous exception and then on appeal try to explain what he meant. Bevins v. Brewer, 146 Conn. 10, 12-13, 147 A.2d 189 (1958).

Where, as here, a defendant came over the crest of a hill in a blinding snowstorm and collided with a vehicle that was sideways across the road, the trial court is entitled to more than such a vague and nonspecific reason why it erred in charging on the law applicable to an operator who is confronted with an emergency situation. We decline to review this claim of error.

Ill

The plaintiffs final claim of error relates to the trial court’s sua sponte bifurcation of the liability and damages aspects of the trial. The plaintiff argues that the trial court habitually bifurcated all negligence trials as a matter of course. We will not indulge in this assumption which is totally unsupported by the record. We have absolutely no idea of what the trial court does in other cases and thus decline to entertain the innuendo that it engages in an unlawful pattern of conduct.

Bifurcation of trial proceedings lies solely within the discretion of the trial court; Day v. General Electric Credit Corporation, 15 Conn. App. 677, 689, 546 A.2d 315 (1988); In re Jose C., 11 Conn. App. 507, 508, 527 A.2d 1239 (1987); and appellate review is limited to a determination of whether this discretion has been abused.

The record discloses that liability was based on hotly disputed facts and that there were complex damages issues including, inter alia, whether certain injuries were caused by the accident or were the natural result of degeneration, all of which would have required a tremendous amount of the trial court’s time and expense. We conclude that the trial court did not abuse its discretion in bifurcating the liability and damages aspects of the trial.

There is no error.

In this opinion the other judges concurred.

       The plaintiff vigorously disputes this distance.


author: Stoughton, J.

text:
    State of Connecticut v. Edward P. Ryan
    (7095)
    Borden, Stoughton and Norcott, Js.
    Argued April 21
    decision released June 13, 1989

      Francis J. DiScala, with whom were Francis J. DiScala, Jr., and, on the brief, Rebecca Tippy, law student intern, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Robert Katz, assistant state’s attorney, for the appellee (state).
   Stoughton, J.

The defendant has appealed from the judgment of conviction rendered after a jury found him guilty of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a.

The defendant claims that the trial court erred (1) in permitting the jury to see a videotape of an interview with the defendant made at police headquarters, (2) in its charge to the jury, and (3) in denying his motion to set aside the verdict as against the evidence. We find no error.

The jury could reasonably have found the following facts. In the early morning of September 13,1987, two police officers observed the defendant driving very slowly on Route 123. After the defendant made an improper right turn, the police followed in their cruiser and flashed their strobe lights in an attempt to stop him. The police saw the defendant drive through a stop sign without coming to a complete stop and make an improper left turn. The police turned on the cruiser’s siren, but the defendant failed to stop. The police saw the defendant’s car weaving in its lane of travel and they followed it until the defendant drove into his driveway. One of the policemen approached as the defendant got out of his car. The defendant was swaying and appeared unsteady, his voice was slurred and the policeman could smell alcohol on the defendant’s breath. The defendant had difficulty reciting the alphabet, counting backwards from 100 in increments of ten, and was unable to understand the policeman’s instructions concerning a field sobriety test.

The defendant was arrested and taken to police headquarters where the police videotaped his participation in performance tests and his answers to questions given while his arrest was being processed. He was able to complete the performance tests, but the police officer administering the tests characterized the performance as unsure or hesitant. According to the officer who filled out the department alcohol influence report, the defendant said that between 6:30 p.m. and about 1 a.m., he thought he had had about one drink of Scotch per hour.

The defendant’s first claim of error is stated as follows: “Whether the trial court erred in permitting the jury to view a videotape of the defendant’s interview which included an officer’s statement T predict you will blow a .20,’ therefore denying the defendant his due process and constitutional right to a fair trial?”

During the trial, the jury was permitted to see the videotape of the defendant’s test performance up to the point when a breath test was administered.

The defendant’s brief does not include his objection to the offer of the videotape, the ruling made or his exception. See Practice Book § 4065 (d) (3). Ordinarily, this defect would preclude review. Because the defendant has sought review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), we have undertaken a limited review of the record to determine whether the defendant’s claim is truly of constitutional proportion or is simply characterized as such by him. See State v. Huff, 10 Conn. App. 330, 334, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). An examination of the transcript reveals that the trial court decided that it would permit the jury to hear the portion of the videotape where the defendant asked to take a breath test “off the record.” The defendant objected to the entire videotape on the ground that he had agreed that only that portion up to the point when the defendant had asked to take the test could be admitted. When the videotape was offered at the end of the state’s case, defense counsel said: “Well, I still object.”

The ruling now being urged as error did not occur until after the charge to the jury. At that time, defense counsel said that he had been told that the videotape contained the officer’s statement previously quoted, but he had not heard it. He suggested to the court that if the jury asked to see the tape again, that statement should be excluded. The court remarked that it could not change the evidence that had gone to the jury and noted an exception to that ruling. The transcript shows that the jury did view the videotape again.

The results of the breath test that the defendant took “off the record” were not disclosed during the trial. The trial court took care-to ensure that the jury never was informed that the defendant had taken the test. There was no reference to blood alcohol content during the trial, nor was the officer’s remark ever explained or discussed.

Our limited review of the record clearly discloses that the defendant’s claim is not truly of constitutional proportions and is simply characterized as such by the defendant. We decline to give it further review.

The defendant’s second claim is that the trial court erred in failing to explain adequately operating while under the influence, in emphasizing the word “impaired,” and in failing to clarify what he characterizes as “the obvious confusion expressed by the jury” in several questions.

The defendant filed no request to charge, nor did he take any exceptions to the charge or to a supplemental charge in which the court explained the requirements of proving the crime of operation of a motor vehicle while under the influence of intoxicating liquor. The defendant has not printed the charge in his brief or appendix as required by Practice Book § 4065 (d) (2). This claim, therefore, is not reviewable.

The defendant’s final claim is that the court erred in denying his motion to set aside the verdict. Our review of this claim is limited to whether the trial court abused its discretion in denying the motion to set aside the verdict. The constitutional right to a trial by jury includes the right to have those issues of fact as to which there is room for reasonable difference of opinion among fair minded persons passed upon by the jury and not by the court. Sepe v. Deemy, 9 Conn. App. 524, 527, 520 A.2d 237 (1987). When the defendant challenges the sufficiency of the evidence to support the verdict, the relevant inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 16 Conn. App. 390, 401, 547 A.2d 916 (1988). The evidence set out earlier in this opinion was sufficient to sustain the verdiet.

There is no error.

In this opinion the other judges concurred.


author: Spallone, J.

text:
    Cindy Puglio et al. v. Nicholas Puglio et al.
    (6644)
    Borden, Spallone and O’Connell, Js.
    Argued May 3
    decision released June 13, 1989

      Sid M. Miller, for the appellants (plaintiffs).

      John R. Bryk, with whom was Anthony T. Varone and, on the brief, Linda R. Stark, for the appellee (named defendant).

      FredericS. Ury, for the appellees (defendant Michael Hines et al.).
   Spallone, J.

The plaintiffs appeal from the judgment of the trial court rendered in favor of the defendants in an action to foreclose a mortgage on real estate.

The plaintiffs have alleged seven claims of error, six of which implicate the fact-finding function of the trial court and are without merit. The plaintiffs’ sixth claim of error, however, that the trial court erred in refusing to allow Vincent P. Adley to testify on behalf of the plaintiffs, is valid and dispositive of this appeal. We agree with the plaintiffs that it was error on the part of the trial court to refuse to allow Adley to testify as a rebuttal witness for the plaintiffs.

The facts pertinent to this claim of error are essentially as follows. Acting as counsel for the plaintiffs, Adley had originally commenced the foreclosure action on their behalf. Before trial, however, he resigned from the bar. At the time of trial, he worked in the office of the plaintiffs’ counsel as a paralegal. During the trial, he sat at counsel table with the plaintiffs’ counsel and assisted in the conduct of the trial. He was introduced to the court as a paralegal employed by the office of the plaintiffs’ counsel.

After the defendant Nicholas Puglio rested his case, the plaintiffs called Adley as a rebuttal witness. The defendant Puglio objected and the trial court sustained the objection, ruling that Adley was disqualified from testifying because he had assisted the plaintiffs as a paralegal. The court reasoned that a paralegal may not testify in a trial in which he is rendering assistance for the same reason that an attorney may not testify in a case in which he is trial counsel.

The court’s ruling was erroneous. First, we know of no rule or holding that would automatically disqualify a paralegal from participating as a witness in a case where a member of the law firm at which the paralegal is employed is trial counsel.

Second, even if Adley were acting as a legal advocate for the plaintiffs, he would not thereby automatically have been barred from testifying in the case. An attorney is not disqualified or rendered incompetent to testify when he has participated in the trial of a case, even though testifying as a witness under those circumstances may be violative of the rules of professional conduct and may subject him to disciplinary action. State v. Blake, 157 Conn. 99, 102, 249 A.2d 232 (1968).

The trial court should have allowed Adley to take the stand and then ruled on the admissibility of his testimony. The court erred in refusing to allow him to testify solely on the the basis of his status as a paralegal or advocate of the plaintiffs.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.


text:
    Diana M. Lathrop v. Board of Tax Review of the Town of Lyme
    (6756)
    Spallone, Stoughton and Norcott, Js.

      Argued December 6, 1988
    decision released June 13, 1989

      William J. Willetts, Jr., for the appellant (plaintiff).

      Scott W. Jezek, with whom, on the brief, was Marguerite T. Friar, for the appellee (defendant).
   Spallone, J.

The plaintiff appeals from the judgment rendered after the trial court granted the defendant’s motion for summary judgment.

The plaintiff, Diana M. Lathrop, inherited certain land upon the death of her husband, Robert H. Lathrop. At the time of his death on September 10,1982, the land was classified as “open space” land for purposes of tax exemptions afforded under General Statutes § 12-107e and had been so classified for more than ten years prior to his death. On October 24, 1983, a year after she had acquired title, the plaintiff applied for and was granted classification of the land as open space.

On September 17, 1986, the plaintiff sold a portion of the land for $275,000. The assessor for the town of Lyme determined that the plaintiff had sold the land during the third year of her ownership and, pursuant to the provisions of General Statutes § 12-504a (a), assessed an 8 percent conveyance tax of $22,000, which the plaintiff paid under protest. The plaintiff appealed to the defendant board of tax review, requesting the return of the tax paid. The board denied relief, and the plaintiff appealed to the Superior Court. The defendant moved for summary judgment, and the trial court granted the motion, ruling in its memorandum of decision that a “new [open space land] classification was begun in [the plaintiff’s] name on October 24, 1983, when she applied for and was granted such classification.” The court held that the plaintiff could not “utilize [the provisions of] General Statutes § 12-504c (k) to ‘tack’ onto the time period during which her husband held the land as open space.” The plaintiff appeals from the summary judgment rendered in favor of the defendant.

The question before the trial court was whether, on the basis of the undisputed facts and the applicable statutes, the plaintiff was required to pay a conveyance tax on the September 1986 sale of a portion of her property. We agree with the trial court that she was.

General Statutes § 12-504a (a) provides in pertinent part that “[a]ny land which has been classified by the record owner thereof as open space land pursuant to section 12-107e, if sold by him within a period often years from the time he first caused such land to be so classified, shall be subject to a conveyance tax applicable to the total sales price of such land . . . (Emphasis added.) In East Village Associates, Inc. v. Monroe, 173 Conn. 328, 333, 377 A.2d 1092 (1977), our Supreme Court held that § 12-504a was intended to apply prospectively and that the tax would therefore be applicable if both classification and sale of the land occurred after October 1, 1972, the effective date of that statute. It is undisputed that the plaintiff, the record owner of the land, applied for and was granted classification of the land as “open space land” on October 24,1983, and that the plaintiff sold a portion of that “open space land” within ten years from the time she caused it.to be.so classified. It is therefore clear that the conveyance tax imposed by General Statutes § 12-504a (a) was properly assessed against her.

The plaintiff claims that the trial court erred in ruling that General Statutes § 12-504c (k) does not exempt her from the tax. We disagree. General Statutes § 12-504c specifically describes those transfers of land that are deemed nontaxable events for purposes of determining taxability under § 12-504a. Section 12-504c (k) provides that the provisions of § 12-504a shall not be applicable to “property transferred as a result of death by devise or otherwise.” The trial court correctly concluded that this section does not exempt the plaintiff from paying the conveyance tax imposed by the assessor for the town of Lyme pursuant to § 12-504a. The property involved in this case was not “transferred as a result of death by devise or otherwise”; rather, the property was transferred by sale. Thus, § 12-504c (k) does not apply, and the tax was properly assessed pursuant to § 12-504a.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 12-107e. classification of land as open space land, (a) The planning commission of any municipality in preparing a plan of development for such municipality may designate upon such plan areas which it recommends for preservation as areas of open space land, provided such designation is approved by a majority vote of the legislative body of such municipality. Land included in any area so designated upon such plan as finally adopted may be classified as open space land for purposes of property taxation if there has been no change in the use of such area which has adversely affected its essential character as an area of open space land between the date of the adoption of such plan and the date of such classification.
      “(b) An owner of land included in any area designated as open space land upon any plan as finally adopted may apply for its classification as open space land on any assessment list of a municipality by filing a written application for such classification with the assessor of such municipality not earlier than thirty days before nor later than thirty days after the date of such assessment list, provided in a year in which a revaluation of all real property in accordance with section 12-62 becomes effective such application may be filed not later than ninety days after the assessment date in such year. Such assessor shall determine whether there has been any change in the area designated as an area of open space land upon the plan of development which adversely affects its essential character as an area of open space land and, if he determines that there has been no such change, he shall classify such land as open space land and include it as such on such assessment list. An application for classification of land as open space land shall be made upon a form prescribed by the secretary of the office of policy and management and shall set forth a description of the land, a general description of the use to which it is being put, a statement of the potential liability for tax under the provisions of section 12-504a to 12-504e, inclusive, and such other information as the assessor may require to aid him in determining whether such land qualifies for such classification.
      “(c) Failure to file an application for classification of land as open space land within the time limit prescribed in subsection (b) and in the manner and form prescribed in subsection (b) shall be considered a waiver of the right to such classification on such assessment list.
      “(d) Any person aggrieved by the denial by an assessor of any application for the classification of land as open space land shall have the same rights and remedies for appeal and relief as are provided in the general statutes for taxpayers claiming to be aggrieved by the doings of assessors or boards of tax review.”

       “[General Statutes] Sec. 12-504a. conveyance tax on sale of land CLASSIFIED AS FARM, FOREST OR OPEN SPACE LAND BY RECORD OWNER, (a) Any land which has been classified by the record owner thereof as open space land pursuant to section 12-107e, if sold by him within a period of ten years from the time he first caused such land to be so classified, shall be subject to a conveyance tax applicable to the total sales price of such land, which tax shall be in addition to the tax imposed under sections 12-494 to 12-504, inclusive. Said conveyance tax shall be at the following rate: (1) Ten per cent of said total sales price if sold within the first year following the date of such classification; (2) nine percent if sold within the second year following the date of such classification; (3) eight per cent if sold within the third year following the date of such classification; (4) seven per cent if sold within the fourth year following the date of such classification; (5) six per cent if sold within the fifth year following the date of such classification; (6) five per cent if sold within the sixth year following the date of such classification; (7) four per cent if sold within the seventh year following the date of such classification; (8) three per cent if sold within the eighth year following the date of such classification; (9) two per cent if sold within the ninth year following the date of such classification; and (10) one per cent if sold within the tenth year following the date of such classification. No conveyance tax shall be imposed on such record owner by the provisions of sections 12-504a to 12-504Í, inclusive, following the end of the tenth year after the date of such classification by such record owner.”

      ■ “[General Statutes] See. 12-504c. excepted transfers. The provisions of section 12-504a shall not be applicable to the following: (a) Transfers of land resulting from eminent domain proceedings; (b) mortgage deeds; (c) deeds to or by the United States of America, state of Connecticut or any political subdivision or agency thereof; (d) strawman deeds and deeds which correct, modify, supplement or confirm a deed previously recorded; (e) deeds between husband and wife and parent and child when no consideration is received, except that a subsequent nonexempt transfer by the grantee in such cases shall be subject to the provisions of section 12-504a as it would be if the grantor were making such nonexempt transfer; (f) tax deeds; (g) deeds releasing any property which is a security for a debt or other obligation; (h) deeds of partition; (i) deeds made pursuant to a merger of a corporation; (j) deeds made by a subsidiary corporation to its parent corporation for no consideration other than the cancellation or surrender of the capital stock of such subsidiary; (k) property transferred as a result of death by devise or otherwise and in such transfer the date of acquisition or classification of the land for purposes of sections 12-504a to 12-504Í, inclusive, whichever is earlier, shall be the date of acquisition or classification by the decedent; (1) deeds to any corporation, trust or other entity, of land to be held in perpetuity for educational, scientific, aesthetic or other equivalent passive uses, provided such corporation, trust or other entity has received a determination from the internal revenue service that contributions to it are deductible under applicable sections of the internal revenue code; and (m) land subject to a covenant specifically set forth in the deed transferring title to such land, which convenant is enforceable by the town in which such land is located, to refrain from selling or developing such land in a manner inconsistent with its classification as farm land pursuant to section 12-107c, forest land pursuant to section 12-107d or open space land pursuant to section 12-107e for a period of not less than eight years from the date of transfer, if such convenant is violated the conveyance tax set forth in this chapter shall be applicable at the rate which would have been applicable at the date the deed containing the covenant was delivered and, in addition, the town or any taxpayer therein may commence an action to enforce such covenant. If such action is taken by such a taxpayer, the town shall be served as a necessary party.”

       The plaintiff argues that, by virtue of § 12-504c (k), the date of classification for purposes of taxation under § 12-504a was the date her husband classified the land. This argument is without merit. Because the conveyance tax act, § 12-504a, did not apply to land transferred as a result of the death of a record owner who had classified the land as open space prior to the effective date of the statute; see East Village Associates, Inc. v. Monroe, 173 Conn. 328, 333, 377 A.2d 1092 (1977); the statutory exceptions to that tax statute also had no application to the transfer by which the plaintiff received the land. Therefore, § 12-504c (k) did not give the plaintiff her husband’s date of classification for purposes of later taxation of an entirely different transfer under § 12-504a.


author: Dupont, C. J.

text:
    Eldridge McClendon v. Paul Soos
    (7265)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued April 11
    decision released June 13, 1989

      Bruce L. Levin, with whom, on the brief, was Serge G. Mihaly, for the appellant (Shelby Mutual Insurance Company).

      Ernest L. Josem, for the appellee (plaintiff).

      Michael J. Domey, for the defendant.
   Dupont, C. J.

This is an action brought by the plaintiff for damages for personal injuries sustained as a result of an automobile accident. Shelby Mutual Insurance Company (Shelby) sought to intervene in the action as a plaintiff pursuant to General Statutes § 31-293. The trial court denied the motion to intervene as untimely.

The dispositive issue in this appeal is whether the denial of Shelby’s motion to intervene is an appeala-ble final judgment. We hold that the denial of Shelby’s motion to intervene was not an appealable final judgment, and that the appeal must therefore be dismissed.

The relevant facts are not in dispute. On April 28, 1987, the plaintiff sustained personal injuries as a result of an automobile accident. The accident occurred while the plaintiff was operating a motor vehicle in the course of his employment with Wilson Motors, Inc. Because the plaintiff’s injuries arose out of and in the course of his employment, the plaintiff’s employer, Wilson Motors, Inc., became obligated to pay, and in fact paid, workers’ compensation benefits to the plaintiff.

In June, 1987, the plaintiff commenced the present negligence action against the defendant, the owner and operator of the vehicle that collided with the plaintiff’s vehicle. In accordance with the provisions of General Statutes § 31-293, the plaintiff notified his employer by letter, dated August 27,1987, and sent by certified mail, that he had instituted the present action.

On April 22,1988, Shelby, the employer’s insurance carrier, moved to intervene in the plaintiff’s action pursuant to § 31-293. The plaintiff objected to Shelby’s motion to intervene, claiming (1) that the motion had not been filed within thirty days of notification as required by § 31-293, and (2) that § 31-293 provides that only an employer, rather than the employer’s insurance carrier, may intervene.

The test for whether the denial of a motion to intervene is a final appealable judgment is succinctly stated in Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 291, 497 A.2d 780 (1985). An unsuccessful applicant for intervention does not have a final judgment from which to appeal unless he can make “a colorable claim to intervention as a matter of right.” Id.; see also Rodia v. Tesco Corporation, 11 Conn. App. 391, 393, 527 A.2d 721 (1987). If the proposed intervenor does make such a claim, “on appeal the court has jurisdiction to adjudicate . . . his claim to intervention . . . .” Common Condominium Assns., Inc. v. Common Associates, supra, 291. The test for determining whether the denial of a motion to intervene is appealable is consistent with the test for determining the appealability of other otherwise interlocutory orders. Id. An order or action is appealable where it (1) “terminates a separate and distinct proceeding, or (2) . . . so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

The second prong of Curdo is the only one arguably implicated by a ruling on a motion to intervene. “The [applicant] must show that [the court’s] decision threatens to abrogate a right that he or she then holds.” (Emphasis in original.) State v. Longo, 192 Conn. 85, 91, 469 A.2d 1220 (1984). “The right itself must exist independently of the order from which the appeal is taken.” Id., 92-93.

Shelby’s claim for intervention must fail because it can make no colorable claim to intervention as a matter of right. The “right” in this case is claimed to be provided by § 31-293, which provides that “any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against [the tortfeasor] to recover any amount that he has paid or has become obligated to pay as compensation to [an] injured employee. If . . . such employee . . . brings such an action against such third person, he shall . . . notify the [employer], in writing, by personal presentation or by registered or certified mail, of such fact and of the name of the court to which the writ is returnable, and [the employer] may join as a party plaintiff in such action within thirty days after such notification, and, if [the employer] fails to join as a party plaintiff, his right of action against such third person shall abate.” Accordingly, once statutory notice has been given by the employee to the employer, the employer has thirty days to intervene or his “right of action against such third person shall abate.”

In Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 489, 528 A.2d 826 (1987), our Supreme Court, sub silentio, reaffirmed Ricard v. Stanadyne, Inc., 181 Conn. 321, 322 n.1, 435 A.2d 352 (1980), for the proposition that an employer has a colorable claim to intervention as a matter of right under § 31-293.

Shelby is not, however, an employer within the meaning of § 31-293. When a cause of action has been created by statute, strict rules of statutory construction apply. See Misiurka v. Maple Hill Farms, Inc., 15 Conn. 381, 384, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988). In Misiurka, we held that notice to an employer’s insurance carrier did not constitute notice to the employer for purposes of § 31-293. Accordingly, it follows that an insurance carrier does not constitute an employer for purposes of intervention within the meaning of § 31-293.

The appeal is dismissed.

In this opinion the other judges concurred.

       This case was formerly subject to this court’s own motion to have counsel appear and show cause why the appeal should not be dismissed for lack of a final judgment. The matter was marked “off,” however, and the parties were directed to address the final judgment issue in their briefs.

       See General Statutes § 31-275 (6) for the definition of “employer” under the Workers’ Compensation Act.

       Shelby concedes that the plaintiffs letter of August 27,1987, complied with and contained the information required by General Statutes § 31-293. It argues, however, that the minimum notice provided by the statute is “manifestly insufficient to comply with procedural due process.” Shelby admits in its brief that it, as the employer’s insurance carrier, is not entitled to notice under § 31-293, citing Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 384-85, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988). Since Shelby has no right to any notice at all, it cannot claim that § 31-293 is insufficient to satisfy the minimum standards of due process.


text:
    Charles C. Matteson, Jr. v. Great Eastern Development, Ltd.
    (7139)
    Borden, Stoughton and Norcott, Js.
    Argued April 20
    decision released June 13, 1989

      Eugene J. Riccio, for the appellant (defendant).

      Christopher M. Hodgson, for the appellee (plaintiff).
   Norcott, J.

This appeal arises from the plaintiffs claim against the defendant for wages pursuant to General Statutes § 31-72 and for reimbursement of expenses pursuant to a contract between the parties. The defendant appeals from the judgment of the trial court awarding the plaintiff $10,210 for wages, $6851.64 for out-of-pocket expenses, $1950.10 for attorney’s fees and $152.60 in costs. We find error in part.

The record reflects the following facts. On January 2, 1981, the plaintiff, Charles C. Matteson, Jr., and the defendant, Great Eastern Development, Ltd. (GED), entered into an employment contract covering wages and expenses that provided, in part, that either party could terminate the contract on two weeks notice. In October, 1985, the plaintiff, pursuant to his contract with the defendant, began working on a planned automobile exposition in Hong Kong. In the fall of 1986, GED, International Housing Development (IHD) and Wendell McBride agreed to create a venture corporation called Auto Expo Asia (AEA) to pursue this project. The trial court found that the plaintiff did not originate the project, contribute any capital to it, assume control over the venture as his own, or share in any profits of the project. The court found further that Robert Yung, chairman of GED, controlled the plaintiffs “comings and goings” relevant to the project, that Yung controlled the basic business dealings between GED and AEA, and that any arrangements regarding reimbursements between GED and AEA were solely between those parties.

The dispute on which this appeal is based arose in late 1986, when the plaintiff ceased to receive his salary from GED. The defendant contends that the plaintiff voluntarily left his employment at GED to head AEA in November, 1986. The trial court found, however, that the defendant did not give the plaintiff two weeks notice of termination as required by the contract of employment and that the plaintiff had not severed his relationship with GED during the period of time in question. The court held that the plaintiff, as an employee of the defendant, was entitled to be paid by the defendant for wages and out-of-pocket expenses covering the period from November 1,1986, to February 17,1987. The trial court rendered judgment for the plaintiff, and the defendant now appeals from that judgment.

The defendant’s first claim of error is that the trial court erred in concluding that the plaintiff, as an employee, was entitled to wages and expenses. The essence of this claim is an attempt to retry the facts of the case before us. “Absent a statutory warranty or specific contract language, the scope of contractual terms is a factual question subject to a limited scope of appellate review. Harry Skolnick & Sons v. Heyman, 7 Conn. App. 175, 178, 508 A.2d 64 (1986).” Crowther v. Gerber Garment Technology, Inc., 8 Conn. App. 254, 263, 513 A.2d 144 (1986). “[Wjhere the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record those facts are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Davis v. Naugatuck, 15 Conn. App. 185, 188, 543 A.2d 785 (1988). After a careful review of the record, we are satisfied that there was sufficient evidence for the trial court to conclude that the plaintiff was an employee of GED and was entitled to wages and expenses pursuant to General Statutes § 31-72 and the employment contract between the parties.

The defendant next claims that the trial court erred in awarding the plaintiff attorney’s fees and costs. General Statutes § 31-72, in pertinent part, permits an employee to recover, in a civil action, wages due him, the costs of such action and such reasonable attorney’s fees as may be allowed by the court. In Crowther v. Gerber Garment Technology, Inc., supra, 265, we held that, in an action for wages brought pursuant to General Statutes § 31-72, awards for double damages and attorney’s fees are inappropriate in the absence of the trial court’s finding of “bad faith, arbitrariness or unreasonableness.” Our review of the present record, specifically the trial court’s memorandum of decision, reveals that the trial court made no findings consistent with the Crowther standard that would justify the award of attorney’s fees in this case. In the absence of such findings, we conclude that the trial court abused its discretion in imposing attorney’s fees when the court, in essence, found simply a breach of an employment contract.

The defendant also contends that the trial court abused its discretion in awarding the plaintiff taxable costs in the amount of $152.60. General Statutes § 52-257 provides for an award to the prevailing party in a civil action of court fees and fees for the service of process. It is clear under Crowther that the standard applied to the issue of attorney’s fees does not affect the court's power to award properly taxable costs pursuant to General Statutes § 52-257. We conclude, therefore, that it was not an abuse of discretion for the court to award the plaintiff $152.60 for court filing and sheriff’s fees.

There is error in part, the judgment is set aside and the case is remanded with direction to render judgment as on file except the award of attorney’s fees to the plaintiff should be omitted.

In this opinion the other judges concurred.

       General Statutes § 31-72 provides in pertinent part that “[w]hen any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71i inclusive . . . such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court

       Although it appears from the memorandum of decision that the trial court awarded wages and expenses pursuant to General Statutes § 31-72, we note that the plaintiffs expenses were due him under the employment contract, not the statute. This court is free to uphold a judgment on a basis different from that used by the trial court. Bolmer v. Kocet, 6 Conn. App. 595, 613, 507 A.2d 129 (1986). Because the plaintiff properly alleged the basis for recovery in his complaint and prayer for relief, we uphold the award of expenses under the contract.