text:
    Eugene Gulycz v. Stop and Shop Companies, Inc.
    (10948)
    Poti, Lavery and Freedman, Js.
    Argued October 5
    decision released November 17, 1992

      John R. Williams, for the appellant (plaintiff).

      Barbara B. Sacks, with whom, on the brief, was Laura N. Ondrush, for the appellee (defendant).
   Foti, J.

The plaintiff appeals from the judgment of dismissal rendered during a trial to the court for failure of the plaintiff to make out a prima facie case. The plaintiff brought the underlying action to recover damages for leg injuries he sustained on January 30,1989, when his trousers were caught on a protruding hinge and screw on a shelf at the end of a check-out aisle at the defendant’s store in New Britain. Following the plaintiff’s testimony and the introduction of medical reports pursuant to General Statutes § 52-174, the plaintiff rested. The defendant then moved to dismiss the action on the ground that the plaintiff had failed to make out a prima facie case by failing to prove that the defendant had either actual or constructive notice of the condition that the plaintiff claimed in his complaint to have existed in the defendant’s store. The court granted the defendant’s motion.

On appeal, the plaintiff claims that the trial court improperly granted the motion to dismiss because the defect was structural in nature and the trier of fact could reasonably have inferred that the condition had existed long enough for it to have come to the defendant’s attention. He also claims that the trial court did not apply the proper standard in granting the motion to dismiss. We affirm the judgment of the trial court.

It is not disputed that the plaintiff was a business invitee, and that the defendant owed him a duty to keep its premises in a reasonably safe condition. Cruz v. Drezek, 175 Conn. 230, 234, 397 A.2d 1335 (1978). Also undisputed is that, if that duty was breached, and if the defendant had actual or constructive notice of the defect within a reasonable time to remedy it, the plaintiff would be entitled to recover damages for his injuries. Morris v. King Cole Stores, Inc., 132 Conn. 489, 492, 45 A.2d 710 (1946). The plaintiff produced no evidence to establish that the defendant had actual notice of the alleged defect. Whether the defendant had constructive notice of this condition turns on whether the condition existed for a length of time sufficient for the defendant’s employees, in the exercise of due care, to discover the defect in time to have remedied it. McCrorey v. Heilpern, 170 Conn. 220, 221, 365 A.2d 1057 (1976).

While an abundance of evidence is not necessary to show a sufficient length of time existed for discovery of the condition; see Kapilotis v. Shop Rite Supermarket, Inc., 14 Conn. App. 250, 251, 540 A.2d 376 (1988); some evidence is required. Schwartz v. Waterbury Public Market, Inc., 6 Conn. App. 429, 432-33, 505 A.2d 1272 (1986). Where some evidence has been submitted, what constituted a reasonable length of time becomes a question of fact to be determined on the basis of the circumstances of the case. Id.

The plaintiff claims that the defect was structural in nature and therefore must have existed for a sufficient length of time so as to enable an inference of constructive notice. The record is devoid of such evidence. The only evidence that the plaintiff put before the trial court, other than medical reports, was his own testimony that he saw the protruding hinge and screw on which he struck his knee. He further testified that after the accident he asked others, including two people who brought in the carriages, the head cashier, the aisle supervisor and the stock clerk, “if they saw it.” There was no evidence, however, whether they “saw it” before or after the injury. No witness was called to establish whether any employee had observed the defect at any time prior to the plaintiff’s injury. If there had been some evidence that the defect existed prior to the injury, the trier of fact would have had a basis to determine whether the length of time was sufficient to permit a reasonable inference of constructive notice.

Although circumstantial evidence can establish constructive notice; Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 287, 587 A.2d 1056 (1991); no such circumstantial evidence exists here. The plaintiff offered no evidence, direct or circumstantial, to show that the defect had existed for any period of time so as to enable the court to exercise its function as fact-finder. Nor was the court able to infer that the defect had existed for any length of time, since there was no evidence to establish a basis for such an inference. “An inference must have some definite basis in the facts”; Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986); and the conclusion based on it must not be the result of speculation and conjecture. Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750 (1959).

Finally, the plaintiff claims that the motion to dismiss should not have been granted since the trial court failed to view the evidence in the light most favorable to him. He argues that there probably would not have been an appeal if the court had denied the motion, allowed the defendant to complete its case and rest, and then rendered judgment for the defendant because the plaintiff had not sustained his burden of proof.

While a plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint. Id.

When ruling on a motion to dismiss, the trial court is required to view the evidence in the light most favorable to the plaintiff and to draw every reasonable inference in his favor. Pagni v. Corneal, 13 Conn. App. 468, 470, 537 A.2d 520, cert. denied, 207 Conn. 810, 541 A.2d 1239 (1988). Whether a prima facie case has been made out is a question of law for the court. Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1983). If, after reviewing the evidence in the light most favorable to the plaintiff, the court cannot reasonably find the essential issues on the complaint in his favor, a judgment of dismissal is appropriate. Hinchliffe v. American Motors Corporation, 184 Conn. 607, 609, 440 A.2d 810 (1981).

We conclude that the trial court applied the correct standard and properly rendered a judgment of dismissal in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       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.”


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    State of Connecticut v. Scott Brian Wolff
    (10780)
    Dupont, C. J., Heiman and Freedman, Js.
    Argued September 29
    decision released November 24, 1992

      Martin Zeldis, assistant public defender, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Mark Brodsky, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree of a victim over the age of sixty in violation of General Statutes § 53a-61a, assault in the third degree in violation of General Statutes § 53a-61 and two counts of unlawful restraint in the second degree in violation of General Statutes § 53a-96. The defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal concerning one of the counts of unlawful restraint because of insufficiency of the evidence, (2) failed to uphold the defendant’s constitutional right of due process by failing to instruct the jury as to the specific nature of the charges against him and by failing to differentiate between the victims, (3) failed to take steps to curb the prosecuting attorney’s improper arguments, which are claimed to constitute prosecutorial misconduct, and (4) denied the defendant a fair sentencing hearing by proceeding to impose sentence before the completion of a psychiatric evaluation ordered by the court as a part of the presentence investigation.

The jury could reasonably have found the following facts. On December 28, 1989, the defendant was living with his parents, Gunther and Elvira Wolff, at the family residence at 438 Fern Street, West Hartford. Gunther Wolff, a sixty-five year old self-employed engineer, was working in his second floor study at about 4 p.m. when the defendant entered the study. The defendant told Gunther that he wanted to use some of the tools that Gunther had stored there. When his father declined to permit the defendant access to the tools, the defendant attempted to obtain them by force, throwing his father to the floor and keeping him pinned down to the floor by kneeling on his legs. During the next forty-five minutes, approximately, the defendant kept his father pinned to the floor, lectured him, and occasionally banged his head against the floor.

At about 4:45 p.m., Elvira Wolff, who had been out, returned to the house. Alerted by noise upstairs, she entered the study on the second floor and saw her husband and the defendant on the floor. She screamed and attempted to pull the defendant off of his father. The defendant then verbally and physically assaulted his mother for a period of about sixty minutes. The defendant yelled at her and slapped her across the face and chest a number of times. Both victims wanted to leave the room, but were afraid to attempt to do so. Although there was a telephone in the room, neither victim attempted to use it. The defendant positioned himself between his parents and the door so that they could not leave without going around him. At one point, the defendant’s father attempted to smash a window in the study in order to summon help, but was unsuccessful.

The defendant’s mother told him that she expected guests for dinner and that she had to prepare the meal. The two victims and the defendant then went to the kitchen. Subsequently, the defendant’s father asked the defendant if he could take a walk in the neighborhood. The defendant replied that they could leave whenever they wanted. Both parents left the house, went to the nearest telephone and contacted the West Hartford police department. When the police responded, they found the defendant in the garage, working under the hood of an automobile. While his father was visibly upset, the defendant appeared calm and cooperative.

I

The defendant first asserts that the trial court improperly denied his motions for judgment of acquittal concerning the charge of unlawful restraint arising out of his claimed conduct toward Elvira Wolff. The defendant claims that there was insufficient evidence directed toward his conduct involving his alleged restraint of his mother to permit submission of that charge to the jury. We are not persuaded that the evidence was insufficient.

The record discloses that the defendant made a motion for judgment of acquittal at the close of the state’s case pursuant to Practice Book § 884. The trial court denied this motion. The defendant then proceeded to offer evidence on his own behalf. Under the existing rules, when a defendant elects to put on evidence after a denial of his motion for judgment of acquittal at the end of the state’s evidence, he is deemed to have waived his right to appellate review as to the sufficiency of the evidence at the completion of the state’s case. State v. Booker, 28 Conn. App. 34, 41-42, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992); State v. Kari, 26 Conn. App. 286, 291, 600 A.2d 1374 (1991), appeal dismissed, 222 Conn. 539, 608 A.2d 92 (1992). Thus, the defendant’s claim with regard to the sufficiency of the evidence at the completion of the state’s case is not reviewable. State v. Booker, supra, 41.

The record further discloses that the defendant next moved for judgment of acquittal at the completion of the court’s instructions to the jury. While the rules of practice contemplate motions for judgment of acquittal at the completion of the state’s case-in-chief; Practice Book §§ 883 and 884; at the completion of all of the evidence; Practice Book §§ 883 and 885; and after a verdict of guilty; Practice Book § 899; nothing in the rules appears to contemplate the hybrid action taken by the defendant in this case. See footnote 6, supra.

Since the trial court, however, permitted the procedure and ruled on the motion, despite its untimeliness, we also will afford it the review to which it would be entitled under the waiver rule. We thus review the entirety of the evidence taking into account both the evidence offered by the state and that offered by the defendant. State v. Kari, supra. We review all of the evidence presented in the light most favorable to sustaining the verdict. State v. Dunn, 26 Conn. App. 114, 124, 598 A.2d 658 (1991). We then determine whether, on the facts thus established and the inferences reasonably drawn therefrom, the jury could have reasonably concluded that the cumulative effect of the evidence established the guilt of the defendant beyond a reasonable doubt. State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); State v. Dunn, supra. We must also keep in mind that the defendant attacks the sufficiency of the evidence with respect to a single count only, the charge that he unlawfully restrained his mother. We afford great deference to findings of fact consistent with guilt unless they are improbable and unconvincing. State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991).

The jury could reasonably have found that the defendant struck the victim a number of times and that she was restrained from leaving the study and later the kitchen because of her fear of the defendant. The jury could have found that the defendant restrained his mother by intimidation.

We conclude that the defendant’s claim that the evidence was insufficient is without merit. If the case had been submitted to the jury under proper instructions and a guilty verdict returned as to the unlawful restraint claim involving Elvira Wolff, we would be satisfied that the evidence was sufficient to warrant a jury’s returning a verdict of guilty.

II

The defendant next claims that the trial court failed to instruct the jury as to the specific nature of the charges against him and failed to differentiate the factual basis of the claims against each victim. His claim is that the trial court’s jury instructions were constitutionally defective in that they failed to relate the issues of law to the facts of the case. The defendant concedes that this claim was not properly preserved in the trial court, but claims that it is nonetheless reviewable under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

Our standard of review in cases when the defendant claims that the instructions violate constitutional due process protections is whether the jury instructions were so deficient that it was reasonably possible that the jury was misled. State v. Allen, 28 Conn. App. 81, 84, 611 A.2d 886, cert. denied, 223 Conn. 920, 614 A.2d 826 (1992). We will reverse a conviction only if, “in the context of the whole, there is a reasonable possibility that the jury was misled in reaching its verdict.” (Internal quotation marks omitted.) State v. Scognamiglio, 202 Conn. 18, 28, 519 A.2d 607 (1987); State v. Nita, 27 Conn. App. 103, 112, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329 (1992).

We first consider whether the instructions given by the trial court were so deficient as to implicate the constitutional right of the defendant to a fair trial. A jury instruction conforms with constitutional requirements if it provides jurors with a “clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) State v. Avila, 223 Conn. 595, 602, 613 A.2d 731 (1992). “An instruction that fails to satisfy these requirements [violates] the defendant’s right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.” Id., 603. “The due process clause protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” State v. Roque, 190 Conn. 143, 157, 460 A.2d 26 (1983). “If justice is to be done . . . it is of paramount importance that the court’s instructions be clear, accurate, complete and comprehensible, particularly with respect to the essential elements of the alleged crime. ...” (Citation omitted; internal quotation marks omitted.) Id.

“[I]n reviewing jury instructions, our task is also to view the charge itself as part of the whole trial. . . (Citation omitted; internal quotation marks omitted.) Id. Where, as here, no specific requests to charge were filed nor exceptions taken to the charge, we do not engage in a microscopic examination of the charge, dissecting it line by line, nor do we consider the challenged portions of the charge in isolation. State v. Fleming, 198 Conn. 255, 268, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 U.S. 1797, 90 L. Ed. 2d 342 (1986); State v. Allen, supra. Rather, we examine the charge as a whole to determine whether the charge adequately guided the jury to a correct verdict. State v. Fleming, supra. “Jury instructions need not be exhaustive, perfect or technically accurate.” (Internal quotation marks omitted.) Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991); Lemonious v. Burns, 27 Conn. App. 734, 740, 609 A.2d 254, cert. denied, 223 Conn. 915, 614 A.2d 823 (1992). They must be correct in law, adapted to the issues presented in the case and sufficient to guide the jury in reaching a verdict. Preston v. Keith, supra; Lemonious v. Burns, supra.

A charge cannot be given in the abstract without reference to the evidence sufficient to provide guidance to the jury in arriving at a just result. See Shelnitz v. Greenberg, 200 Conn. 58, 72, 509 A.2d 1023 (1986). The jury instructions must assist the jury in “applying the law correctly to the facts which they might find to be established.” Jacques v. Carter, 2 Conn. App. 27, 33, 476 A.2d 621 (1984). The charge must “go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven.” State v. Sumner, 178 Conn. 163, 170-71, 422 A.2d 299 (1979). It must be viewed in the context of the factual issues raised at the trial. State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1983). The judge may not simply “ ‘lay down the general principles applicable to a case and leave the jury to apply them, but it is his duty to inform the jury what the law is as applicable to the facts of the case.’ ” Jacques v. Carter, supra, 34, quoting Laukaitis v. Klikna, 104 Conn. 355, 360, 132 A. 913 (1926).

While most of the legal principles enunciated by the trial court were legally accurate, the charge failed to include a number of necessary principles required for a fair verdict. The trial court failed to relate adequately the abstract rules of law to the facts of the case. No facts were referred to by the trial court in its charge to the jury despite the four count information involving two victims, both of whom appear from the evidence to claim to be victims of assault and of unlawful restraint. This defect is especially telling where, as here, there are two victims involved with substantially similar allegations. The issues in this case were complicated, peculiar, and capable of differing constructions because the case involved two separate victims and similar crimes. It was unclear as to what count of the information applied to which victim. In such a case, “where the issues are complicated, peculiar, or capable of differing conclusions, comment by the court is necessary.” Jacques v. Carter, supra, 33-34.

The court also failed to instruct the jurors that they must consider each of the criminal charges separately. Further, the trial court failed to explain to the jurors that the verdict that they reached on any one count did not control the verdict that they might reach on any other count of the information.

The jury could have concluded that the four counts all related to a single victim, or that the two counts of unlawful restraint related to the events that occurred in the study with the defendant’s father and again in the kitchen with the same victim or that both assault counts related to two separate occurrences with the same victim.

We conclude that the lack of specificity in the jury instructions creates a reasonable possibility that the jury was misled by this factually and legally deficient charge and that the defendant’s right to constitutional due process was thus violated. See State v. Williams, 182 Conn. 262, 438 A.2d 80 (1980). In light of our resolution of this issue and our conclusion that the deficiency of the charge mandates a new trial, we need not and do not reach the remaining issues.

Because our resolutions of the issues relating to the claim of sufficiency of evidence and the impropriety of the charge to the jury are dispositive of this appeal, a discussion of the other issues is unnecessary.

The judgment is reversed and the case is remanded for a new trial on all counts of the information.

In this opinion the other judges concurred.

       General Statutes § 53a-61a (a) provides: “A person is guilty of assault of a victim sixty or older in the third degree, when he commits assault in the third degree under section 53a-61 and the victim of such assault has attained at least sixty years of age . . . .”

       General Statutes § 53a-61 (a) provides: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.”

       General Statutes § 53a-96 (a) provides: “A person is guilty of unlawful restraint in the second degree when he restrains another person.”

       Even though our resolution of this case on the issue of the jury charge would appear dispositive because the other issues are unlikely to arise in a retrial, we must address the sufficiency of the evidence claim since the defendant would be entitled to an acquittal of the charge on which he claims insufficient evidence if he prevails on this claim. State v. Dunn, 26 Conn. App. 114, 123, 598 A.2d 658 (1991).

       We previously recognized in State v. Booker, 28 Conn. App. 34, 42 n.8, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992), that the Connecticut Supreme Court has acknowledged the criticism of the waiver rule and its possible implications regarding the constitutional rights of a criminal defendant. See, e.g., State v. Simino, 200 Conn. 113, 118 n.5, 509 A.2d 1039 (1986); State v. Lizzi, 199 Conn. 462,464-65, 508 A.2d 16 (1986);
        State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984); State v. Duhan, 194 Conn. 347, 352, 481 A.2d 48 (1984). Since the waiver rule is still the existing law in this state, we apply it in this case.

       At the completion of the court’s instructions to the jury, the trial court sought from counsel “any requests, changes, comments on the charge?” The defendant’s counsel then proceeded as follows: “No comments as to your instructions, Your Honor, and no exceptions. I would ask the court and I should have done this perhaps yesterday, if I may renew my motion for judgment of acquittal as to each of the counts. ...”
      The trial court responded by advising counsel that he would take the motion under advisement pursuant to the rules of practice.

       We do not, however, intend by our review, to approve the practice followed by defense counsel and the trial court.


text:
    State of Connecticut v. Scott Tyrone Andrews
    (10597)
    O’Connell, Landau and Heiman, Js.
    Argued October 1
    decision released November 24, 1992

      Susan M. Hankins, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Herbert E. Carlson, Jr., senior assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), as a lesser included offense of murder. The jury acquitted the defendant on the charge of conspiracy to commit murder. The trial court granted the defendant’s postverdict motion to set aside a guilty verdict as to the count of conspiracy to commit assault in the first degree. On appeal, the defendant claims that the trial court improperly instructed the jury (1) by telling them that the law is made to protect society and the innocent and not the guilty, thereby diluting the presumption of innocence, and (2) by setting forth an incorrect definition of the term reasonable doubt as well as an incorrect standard of proof concerning it. We disagree and affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On October 23, 1989, the victim, Wendell Pickney, together with three other youths left Weaver High School in Hartford in a red Jeep driven by Antwane Williams-Bey. They drove to Bloomfield High School to visit with some female students. A second car, a blue Oldsmobile, driven by a youth called Tiger, with Trevor Cumberbatch as a passenger, accompanied them to Bloomfield.

When they returned to Hartford on Blue Hills Avenue, one of the passengers in the red Jeep, Kevin Waite, observed a green Datsun with three people inside make a right turn off Harold Street. Waite observed that Kendall Crowe was driving the Datsun, Urocca Lindsay was in the front passenger seat and the defendant, Scott Tyrone Andrews, occupied the rear seat. These three individuals lived in a neighborhood different from that of the victim and his friends. The residents of these two neighborhoods had previously exhibited ill will toward each other.

Waite observed Lindsay point a gun out of the front passenger window of the Datsun, but Lindsay did not fire a shot at that time. The Datsun continued to follow the Jeep until it reached Mt. Sinai Hospital. It turned abruptly into the hospital and then exited onto Manchester Street. The Jeep and the blue Oldsmobile both made U-turns on Blue Hills Avenue. When the Datsun emerged from Manchester Street onto Blue Hills Avenue, it was travelling in the opposite direction from the Jeep and the Oldsmobile.

As the Datsun passed the Jeep, Waite observed the defendant, seated in the back seat of the Datsun, point a gun with a black barrel and a brown stock out of the car window and fire at the Jeep. Other witnesses also identified the defendant as the person who shot at the Jeep from the window of the Datsun. Waite ducked when he heard the shot, felt blood drip onto his head and then saw that blood was pouring down heavily from the victim’s neck. The operator of the Jeep immediately pulled into the emergency entrance of Mt. Sinai Hospital seeking medical attention for the victim.

Emergency medical personnel responded and observed the victim slumped over in the back seat of the vehicle, bleeding profusely from a wound behind his left ear. The victim appeared not to be breathing, although a nurse from the emergency department of Mt. Sinai Hospital, was able to detect a carotid pulse. Hospital personnel removed the victim from the Jeep and brought him into the emergency room where they attempted unsuccessfully to resuscitate him. The victim died from a gunshot wound to the left side of his neck.

After a jury trial, the defendant was convicted of manslaughter in the first degree. The trial court sentenced the defendant to a term of twenty years imprisonment. This appeal followed.

I

The defendant first complains that the trial court improperly instructed the jury that the “law [was] made to protect society and innocent persons and not to protect guilty ones.” He posits that the inclusion of this language in the charge implicates the defendant’s rights to due process and a fair trial. We do not agree.

The defendant concedes that this claim was not preserved before the trial court, but seeks this court’s review under the doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

To prevail on appeal on a claim of constitutional error, that has not been adequately preserved at trial, the defendant must meet all of the following conditions: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 239-40. We are free, however, to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case. State v. Pinnock, 220 Conn. 765, 778, 601 A.2d 521 (1992); State v. Golding, supra, 240; State v. Dukes, 29 Conn. App. 409, 421, 616 A.2d 800 (1992).

The defendant cannot satisfy the third prong of Golding, that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial. The court’s charge regarding the presumption of innocence, reasonable doubt and the notion that the law was made to protect society and innocent persons and not to protect the guilty are the same or similar to jury instructions that have been consistently approved by both the Supreme Court and this court. See, e.g., State v. Stanley, 223 Conn. 674, 695-96, 613 A.2d 788 (1992); State v. Brown, 199 Conn. 14, 28, 505 A.2d 690 (1986); State v. Palmer, 196 Conn. 157, 168-69, 491 A.2d 1075 (1985); State v. Just, 185 Conn. 339, 353, 441 A.2d 98 (1981); State v. Harvey, 27 Conn. App. 171, 190-92, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992); State v. Spears, 20 Conn. App. 410, 414-16, 567 A.2d 1245 (1989). The instructions as given, even where they deviated from previously approved language, did not, when viewed in the context of the entire charge, dilute the defendant’s presumption of innocence or reduce in any way the obligation of the state to prove the defendant guilty beyond a reasonable doubt. See State v. Thomas, 214 Conn. 118, 119-20, 570 A.2d 1123 (1990). The jury was properly and adequately informed that the defendant was presumed to be innocent and that the state bore the entire burden of proving each element of the crimes charged beyond a reasonable doubt. See id.

Because there was no clear deprivation of a fundamental constitutional right, we decline to review the defendant’s claim relating to this assertion of the impropriety of the court’s language regarding the purpose of the presumption of innocence. Id., 120; State v. Golding, supra.

II

The defendant next asserts that the trial court improperly instructed the jury as to the meaning of the term reasonable doubt, depriving him of his rights guaranteed by both the state and the federal constitutions. We note that the language about which the defendant complains, to the effect that a reasonable doubt is a doubt for which one can assign a reason, is not contained in the court’s charge to the jury, but was stated by the court before the voir dire commenced. No claim is made that the trial court indicated in any way that the instructions given before the commencement of the voir dire were intended to substitute for the full charge given at the completion of the case. During the court’s charge to the jury, the trial court emphasized that the jury must accept and apply the law as it was given to them in that charge. “The jury, in the absence of a fair indication to the contrary, and there is none here, is presumed to have followed the court’s instructions.” State v. Woolcock, 201 Conn. 605, 625, 518 A.2d 1377 (1986).

The defendant again concedes that this issue was not properly preserved before the trial court and seeks this court’s review pursuant to the doctrine of State v. Evans, supra, and State v. Golding, supra. We conclude that the defendant cannot satisfy the third Golding prong requiring the defendant to establish that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. State v. Golding, supra.

When examining a jury charge, we do not engage in a microscopic examination of the charge, dissecting it line by line, nor do we consider the challenged portions of the charge in isolation. State v. Fleming, 198 Conn. 255, 268, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). We read the instructions as a whole to determine whether a reasonable possibility that the jury was misled by the charge exists. State v. Castonguay, 218 Conn. 486, 498, 590 A.2d 901 (1991); State v. Dizon, 28 Conn. App. 444, 447, 611 A.2d 432 (1992); State v. Fernandez, 27 Conn. App. 73, 84-87, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992). The test that we apply to any part of the charge is whether the charge as a whole presents the case to the jury in such a manner that no injustice is done. State v. Derrico, 181 Conn. 151, 170, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); State v. Kwaak, 21 Conn. App. 138, 160, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990).

Reviewing the charge as a whole, we conclude that the charge properly and adequately instructed the jury as to the legal concept of reasonable doubt consistently with the common law of this state. Because the defendant cannot show that constitutional violations clearly exist and clearly deprived him of a fair trial, we will not review his claims. State v. Golding, supra; State v. Dizon, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in pertinent part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       The trial court’s charge involving the presumption of innocence was: “Thus, the presumption of innocence alone is sufficient to acquit the defendant. The presumption of innocence also requires that when you consider all of the evidence and it is capable of two reasonable interpretations, one of which is consistent with innocence, you must adopt the interpretation consistent with innocence.”
      The trial court’s charge on the concept of reasonable doubt was: “[A] reasonable doubt means a doubt founded upon reason or common sense. As the words imply, it is a doubt held by a reasonable person after all the evidence in the case is carefully analyzed and presented. A reasonable doubt may arise not only from the evidence produced but from the lack of evidence. Since the burden is upon the State to prove the defendant guilty beyond a reasonable doubt of every essential element of the crime charged, a defendant has the right to rely on a failure of the prosecution to establish such proof. Reasonable doubt is the kind of doubt upon which reasonable persons such as yourselves in more serious affairs of your own lives would hesitate to act.
      “On the other hand, if all of the evidence has been impartially and thoroughly reviewed by you and produces in your minds a settled and abiding belief that you would be willing to act upon it in matters of the highest importance relating to your own affairs, then in that event, you would be free from any reasonable doubt and should declare the defendant guilty. If, however, after considering all the evidence, you have a reasonable doubt as to the guilt of the defendant, you must find him not guilty. However, absolute certainty in the affairs of life is almost never attainable and the law does not require absolute certainty on the part of the jury before you return a verdict of guilty. The State does not have to prove guilt beyond all doubt, to a mathematical or to an absolute moral certainty. What the law does require, however, is that after hearing all the evidence, if there is something in that evidence or lack of it which leaves in your minds as reasonable men and women a reasonable doubt about the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. If there is no reasonable doubt, then the accused must be found guilty. Proof beyond a reasonable doubt is proof which precludes every reasonable hypothesis except guilt. It is consistent with guilt and inconsistent with any other reasonable conclusion. If you can, in reason, reconcile all the facts proved with any reasonable theory consistent with the innocence of the accused, then you cannot find him guilty.
      “In the final analysis, a reasonable doubt is not a vague, speculative, imaginary something but is, as I have said, a kind of doubt as would cause reasonable men and women to hesitate to act upon in matters of importance to themselves. . . .”

       The defendant’s attack on the trial court’s charge concerning reasonable doubt encompasses four separate areas: (1) the two inference instruction; (2) the instruction concerning at what point the jury would be free of reasonable doubt; (3) the charge relating to the jurors having an abiding and settled belief as a measure of reasonable doubt; and (4) the charge that a reasonable doubt was a doubt for which the jurors could assign a reason.

       We also note that the charge to which the defendant now objects has been approved in a myriad of cases as a correct statement of the law even in the final charge itself. See, e.g., State v. Thomas, 214 Conn. 118, 119, 570 A.2d 1123 (1990); State v. Ryerson, 201 Conn. 333, 342-43 n.2, 514 A.2d 337 (1986); State v. Leecan, 198 Conn. 517, 538-39, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Findlay, 198 Conn. 328, 346-48, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Derrico, 181 Conn. 151, 170-71, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); State v. Turner, 24 Conn. App. 264, 273, 587 A.2d 1050, cert. denied, 218 Conn. 910, 591 A.2d 812 (1991).


text:
    Connecticut National Bank v. Robert Zuckerman et al.
    (10906)
    Dupont, C. J., Landau and Heiman, Js.
    Argued October 1
    decision released November 24, 1992

      Philip Matthew Hart filed a brief for the appellants (named defendant et al.).

      Ann R. Stravelle-Schmidt, for the appellee (plaintiff).
   Heiman, J.

The defendants Robert Zuckerman and Kim Zuckerman appeal from the denial of their motion to open a judgment of strict foreclosure filed pursuant to General Statutes § 49-15. The basis on which these defendants sought to open the judgment was that the property being foreclosed was residential and that they were thus entitled to invoke the protection afforded to them pursuant to General Statutes §§ 49-31d through 49-31i.

The facts necessary to a resolution of this appeal may be summarized as follows. On January 15, 1988, the defendants executed a promissory note payable to the plaintiff in the principal sum of $475,000. To secure that note, they executed and delivered a mortgage on their property, the Blackberry River Inn, located at 538 Greenwood Road (Route 44) in the towns of Norfolk and North Canaan. In addition to the mortgage being foreclosed, the defendants also executed and delivered to the plaintiff a security agreement covering certain personal property.

The note executed by the defendants contained an acknowledgement that the transaction was a part of a commercial transaction and also contained a waiver of the right to notice and hearing with respect to any prejudgment remedy sought by the plaintiff. The mortgage deed also contained a clause indicating the commercial nature of the transaction. Additionally, the defendant Robert Zuckerman, as president of Forest River Road Corporation, executed a guarantee of the indebtedness which also contained language concerning the commercial nature of the transaction.

The note called for fixed monthly installments of $1583.33 in reduction of principal plus accrued interest on the unpaid balance to be paid on the first day of each month. The installment of principal and interest due and payable on May 1, 1990, was not paid nor were any installment payments made subsequent to that date. By complaint returnable on the second Tuesday of August, 1990, the plaintiff sought foreclosure of the mortgage securing the debt and other relief.

On August 19,1991, the court granted a motion for judgment filed by the plaintiff, found the debt to be $494,965.43, awarded an attorney’s fee of $9494.15 and rendered a judgment of strict foreclosure, setting a law day of January 6, 1992, for the owners of the equity of redemption, and subsequent days thereafter in the reverse order of priority for the other defendants. No appeal was taken from the judgment of strict foreclosure.

By motion dated November 12,1991, the defendants moved to open the judgment of strict foreclosure in accordance with the provisions of General Statutes § 49-15. In support of said motion, the defendants filed affidavits, claiming, inter alia, “[t]hat the mortgage debt being foreclosed encumbers residential real property which has served as [our] principal residence for a period of not less than two years.” The trial court held a hearing on the motion to open the judgment and denied the motion. This appeal followed.

The defendants claim that the trial court’s denial of their motion to open the judgment was improper. The defendants’ complaint is premised on the assertion that the trial court improperly found that the defendants were not homeowners as defined by General Statutes § 49-3 Id (2) and that they were thus not within the class protected by the provisions of General Statutes §§ 49-31d through 49-31i. In addition, the defendants posit that the trial court abused its discretion by denying the motion to open the judgment because of the impropriety of its finding. We do not agree with either premise and, accordingly, affirm the judgment.

The standard of review that we apply is whether the trial court’s denial of the defendants’ motion to open the judgment of foreclosure constitutes a clear abuse of its discretion. Society for Savings v. Stramaglia, 25 Conn. App. 688, 690, 596 A.2d 20, cert. granted, 220 Conn. 926, 598 A.2d 367 (1991); Connecticut National Bank v. N. E. Owen II, Inc., 22 Conn. App. 468, 475, 578 A.2d 655 (1990); see General Statutes § 49-15.

In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. Gillis v. Gillis, 214 Conn. 336, 340, 572 A.2d 323 (1990); E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959). Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did. Gillis v. Gillis, supra, 340-41; Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985). Applying this standard of review, we conclude that the trial court did not abuse its discretion in denying the defendants’ motion to open the judgment.

General Statutes § 49-31d (2) provides: “ ‘Homeowner’ means a person who has an ownership interest in residential real property secured by a mortgage which is the subject of a foreclosure action, and who has owned and occupied such property as his principal residence for a continuous period of not less than two years immediately preceding the commencement of such foreclosure action.” It is apparent from the statute that the legislature intended to afford special protection to persons who own residential real property as opposed to those who own commercial real property.

The trial court found that the evidence produced by the defendants failed to establish that they were within the class of persons protected by General Statutes § 49-31d and that they thus had failed to establish the requisite cause necessary for the court to open the judgment.

It was the defendants’ burden to establish the existence of good cause to be entitled to an opening of the judgment pursuant to General Statutes § 49-15. Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 353, 579 A.2d 1054 (1990) (the term cause as used in General Statutes § 49-15 refers to good cause); Connecticut National Bank v. N. E. Owen II, Inc., supra. The trial court found that the defendants had failed in this endeavor.

The trial court had before it all of the documents enumerated in this opinion, including the mortgage deed, the note and the corporate guarantee of the debt. These documents reflect the commercial nature of the transaction rather than that of a simple mortgage of purely residential property. The defendants failed to produce RE SPA forms or any other residential closing documents to permit the trial court to find that the property being foreclosed was residential in nature. All that the trial court had before it to support the claim of the defendants were their affidavits, which contained only conclusions. Thus, the trial court correctly found that the defendants did not qualify as homeowners under General Statutes § 49-31d (2) because the property subject to foreclosure was not residential as required for the statute to apply. The trial court correctly denied the defendants’ motion to open the judgment on the basis of the failure of the defendants to establish the requisite good cause.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       Other defendants are parties to this foreclosure, but only Robert Zuckerman and Kim Zuckerman appealed from the judgment. Thus, in this opinion, we refer to Robert Zuckerman and Kim Zuckerman as the defendants.

       General Statutes § 49-15 provides: “Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer.”
      The motion filed by the defendants was denominated a “Motion to ReOpen Judgment.” We shall, in this opinion, refer to the motion by the name set forth in the statute, a motion to open judgment.

       The note provides:
      “11. MAKER AND EACH ENDORSER, GUARANTOR AND SURETY OF THIS NOTE, AND EACH OTHER PERSON LIABLE OR WHO SHALL BECOME LIABLE FOR ALL OR ANY PART OF THE INDEBTEDNESS EVIDENCED BY THIS NOTE, HEREBY ACKNOWLEDGE THAT THE TRANSACTION OF WHICH THIS NOTE IS A PART IS A COMMERCIAL TRANSACTION, AND TO THE EXTENT ALLOWED UNDER GENERAL STATUTES SECTIONS 52-278a TO 52-278n, INCLUSIVE, OR BY OTHER APPLICABLE LAW, HEREBY WAIVE THEIR RIGHT TO NOTICE AND HEARING WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH HOLDER OR ITS SUCCESSORS OR ASSIGNS MAY DESIRE TO USE.” (Capitalization in the original.)

       The mortgage deed contained the following clause:
      “12. The Grantor agrees, upon request, to furnish the Grantee promptly with annual operating and financial statements covering the subject premises and its business operations in form and detail satisfactory to the Grantee, said statements to be prepared by a certified public accountant and be submitted within ninety (90) days following the close of Grantor’s fiscal year.”

       The guarantee executed by Robert Zuckerman on behalf of the corporation contained the following clause in bold type face: “The undersigned acknowledges that the transaction of which this guarantee is a part is a commercial transaction, and hereby waives its right to notice and hearing under Chapter 903a of the Connecticut General Statutes, or as otherwise allowed by the law of any state or federal law, with respect to any prejudgment remedy which you, your successors or assigns may desire to use.”

       The defendants had also claimed that the refusal of the trial court to issue an order staying the foreclosure action pursuant to General Statutes § 49-31e (d) was also improper. This court ordered that claim stricken at an earlier time and it is thus not involved in this appeal.


author: Lavery, J.

text:
    Lamberto Lucarelli v. Freedom of Information Commission et al.
    (10925)
    Daly, Foti and Lavery, Js.
    Argued September 16
    decision released November 24, 1992

      Lamberto Lucarelli, pro se, the appellant (plaintiff).

      Colleen M. Murphy, commission counsel, with whom were Ralph E. Urban, assistant attorney general, and, on the brief, Mitchell W. Pearlman, for the appellees (defendants).
   Lavery, J.

The pro se plaintiff appeals from a decision of the Superior Court dismissing his appeal of a decision issued by the freedom of information commission. The commission had previously dismissed the plaintiff’s application, basing its decision on the fact that the plaintiff and counsel for the parties from whom the plaintiff had requested information reached a settlement agreement prior to a full hearing on the matter. The trial court dismissed the plaintiff’s appeal from the final decision of the commission, reasoning that the plaintiff was not aggrieved by the commission’s decision, and that the plaintiff had not exhausted his administrative remedies. We dismiss the appeal on jurisdictional grounds because there is no justiciable issue before us and the appeal is moot.

The trial court relied upon the following facts and procedural history in rendering its decision. In March and April of 1990, the plaintiff requested by letter any and all information regarding him in the possession of Assistant Attorney General Paul Shapiro and the other defendants. The plaintiff claimed to be indigent, and asked that, the documents be provided free of charge. See General Statutes § 1-15. Shapiro responded that the plaintiff’s statement of indigence was not sufficient, and that he could not waive the statutory fee for reproducing the documents. The plaintiff appealed to the commission in April, 1990, alleging the denial of his request for records. The complaint was docketed as FIC 90-148. A hearing was scheduled on the matter before Commissioner Gloria Schaffer on August 2, 1990. The plaintiff was present on that date, as well as Shapiro and commission counsel Constance Chambers. At the hearing, after Shapiro conceded that the plaintiff had a right to the documents he was seeking, the sole issue remaining was whether the plaintiff qualified as an indigent person. After some discussion, Shapiro agreed to provide the material free of charge in one week’s time. The plaintiff agreed that, if he was not satisfied with the materials, he would file another complaint with the commission. On January 23,1991, the commission dismissed the plaintiff’s complaint, in accordance with Commissioner Schaffer’s recommendation, which stated: “The above-captioned matter was scheduled as a contested case on August 2, 1990, at which time the complainant [plaintiff] and the respondent [Shapiro] appeared. Prior to a hearing on the matter the parties reached an agreement. The following order by the commission is hereby recommended on the basis of the record concerning the above-captioned complaint. 1. The complaint is hereby dismissed.”

Meanwhile, Shapiro delivered the documents, 825 pages of them, to the commission as agreed, waiving the normal fífty-cent per page fee. The plaintiff claimed that some of the materials were missing. After corresponding with Shapiro and pursuant to the agreement reached at the commission hearing, the plaintiff filed nine new complaints with the commission, docketed as FIC 90-390 through FIC 90-398, seeking the allegedly missing documents.

In March of 1991, the plaintiff filed an administrative appeal in the Middlesex judicial district. The plaintiff appealed the dismissal of the original complaint, FIC 90-148, and sought review of the commission’s action on FIC 90-390 through FIC 90-398. On a motion by the named defendant, the appeal of the original complaint was dismissed as late, and the appeal of the subsequent complaints was dismissed because the complaints were still pending before the commission. On July 1, 1991, the trial court reinstated the appeal of the original complaint on a motion of the plaintiff, but the dismissal of the appeal with regard to FIC 90-390 through FIC 90-398 remained undisturbed.

On September 25,1991, the commission notified the plaintiff of its final decision to dismiss his second set of complaints, FIC 90-390 through FIC 90-398. The trial court dismissed the appeal of the original commission complaint again on October 22, giving rise to this appeal. Nine days later, the plaintiff commenced a new administrative appeal of the commission’s dismissal of FIC 90-390 through FIC 90-398. This appeal of the trial court’s October 22,1991 order was filed with this court on December 20, 1991.

There is no practical relief we can grant in this appeal since the injury the plaintiff complained of in FIC 90-148 and the redress sought have been resolved in the plaintiff’s favor. The plaintiff sought copies of all documents concerning him from Shapiro, the six University of Connecticut employees, and two university offices to which the plaintiff was entitled access. At the commission hearing before Commissioner Schaffer, the defendants agreed that the plaintiff was entitled to copies of all the documents and that he would be given indigent status and a waiver to any fee charge for the copies. The agreement reached by the parties at the commission hearing is to be construed and regarded as a binding contract. Albrecht v. Albrecht, 19 Conn. App. 146, 152, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989); Caracansi v. Caracansi, 4 Conn. App. 645, 650, 496 A.2d 225, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985). The plaintiff received all the relief he was seeking.

Our Supreme Court said in Connecticut Foundry Co. v. International Ladies Garment Workers’ Union, 177 Conn. 17, 19, 411 A.2d 1 (1979): “ ‘It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.’ Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 [1944]; Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 [1974]; Harkins v. Driscoll, 165 Conn. 407, 409, 334 A.2d 901 [1973]; Roy v. Mulcahy, 161 Conn. 324, 328, 288 A.2d 64 [1971]; Maltbie, Conn. App. Proc. § 21. In the absence of an actual and existing controversy for us to adjudicate in any sense of the term, the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law; Reply of the Judges, 33 Conn. 586 [1867]; and where the question presented is purely academic, we must refuse to entertain the appeal. Young v. Tynan, 148 Conn. 456, 459, 172 A.2d 190 [1961].”

The plaintiff maintains that he has not obtained all of the documents he requested. Pursuant to the agreement he reached with the commission, the plaintiff brought further complaints to the defendant commission, docketed as FIC 90-390 through FIC 90-398, complaining that he did not receive all of the documents to which he was entitled. The only controversy before us is FIC 90-148, in which the plaintiff was given all the relief he requested in his complaint. Because at the time this administrative appeal was brought FIC 90-390 through FIC 90-398 had not been heard by the commissioner, they were not final judgments and not appealable; therefore, the plaintiff had not exhausted his administrative remedy. “[WJhen an adequate administrative remedy is provided by law, it should be exhausted.” Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 357, 377 A.2d 1099 (1977); Butzgy v. Glastonbury, 203 Conn. 109, 523 A.2d 1258 (1987). This appeal, therefore, must be dismissed on the. ground of mootness as there is no relief we can give since the plaintiff received everything he sought in FIC 90-148.

The appeal is dismissed as moot.

In this opinion the other judges concurred.

       Those parties are Charles Oliver, Andrew Canzonetti, Milton R. Stem, Giovanni Sinicropi, Robert Dombroski, Jose Luis Coy, office of the president, University of Connecticut, and office of the vice president for academic affairs, University of Connecticut. The individuals are present and former employees of the University of Connecticut. These parties, as well as Assistant Attorney General Paul M. Shapiro, are named as additional defendants in this appeal.

       Although neither party has raised the issues of standing and mootness, we do so sua sponte because those concepts implicate this court’s subject matter jurisdiction and therefore must be addressed. See Daly v. DelPonte, 27 Conn. App. 495, 608 A.2d 93, cert. denied, 223 Conn. 903, 610 A.2d 177 (1992); Planning & Zoning Commission v. Goal, 9 Conn. App. 538, 520 A.2d 246, cert. denied, 203 Conn. 803, 522 A.2d 294 (1987).

       The following exchange occurred at the August 2, 1990 hearing:
      “[Hearing officer Gloria] Schaffer: [to commission counsel Constance Chambers] you’re going on the assumption that Mr. Shapiro for the University of Connecticut has really conceded that these are documents that are available?
      “[Assistant Attorney General Paul M.] Shapiro: No question, no question, and I’ll state it right on the record that he has a right to documents in the possession of the university that concern him.
      “Schaffer: It’s just a question of whether he pays for them or not.”

       The second appeal by the plaintiff in the Middlesex judicial district of FIC 90-390 through FIC 90-398, of which we take judicial notice, was dismissed on November 6, 1991, and was not docketed by the Superior Court. We also take judicial notice of a third administrative appeal, relating to these same matters, which was docketed by the Middlesex judicial district as CV 91-0063703S, and a civil action against the same defendants, and relating to the same issues, commenced by the plaintiff in the Middlesex judicial district and docketed as CV 91-0060595S.


text:
    Carol Sady et al. v. Liberty Mutual Insurance Company et al.
    (11071)
    Daly, Foti and Lavery, Js.

      Submitted on briefs September 16
    decision released November 24, 1992

      James E. Coyne and Colleen D. Fries, legal intern, filed a brief for the appellant (plaintiff).

      Gregory C. Willis and Derby F. Anderson filed a brief for the appellees (defendants).
   Lavery, J.

The plaintiff appeals from the trial court’s denial of her motion to set aside a jury verdict for the defendants in a negligence action. The plaintiff claims that the trial court improperly charged the jury with respect to the plaintiffs duty to act with reasonable care in the absence of a contributory negligence defense asserted by the defendants. The defendants claim that the plaintiff’s arguments on appeal should be barred by the effect of the general verdict rule. We reverse the judgment of the trial court, and remand the action for a new trial.

The jury could reasonably have found the following facts. In 1986, the plaintiff, Carol Sady, and her late husband, Peter Sady, purchased a house in Norwalk. At about the same time, the defendants issued an insurance policy to the plaintiff and her husband. In August of 1987, Peter Sady died as the result of a work related accident. After her husband’s death, the plaintiff contacted the defendant insurance companies regarding benefits that she assumed were due under a mortgage life insurance policy that she claims she and her husband had requested and purchased from the defendants. The defendants responded that the Sadys had not purchased mortgage life insurance, and that the plaintiff would not receive any benefits.

The plaintiff commenced this action in 1988, claiming that the defendants were negligent in not obtaining the type of insurance coverage that the plaintiff and her deceased husband had requested. After a jury trial, a verdict was rendered in favor of the defendants. The plaintiff moved to set aside the verdict, claiming defects in the jury instructions. That motion was denied, and the plaintiff appealed to this court.

Our well settled rules regarding the review of jury charges require that the jury instructions “be read as a whole and . . . not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error.” (Internal quotation marks omitted.) Sullivan v. Norwalk, 28 Conn. App. 449, 456, 612 A.2d 144 (1992). A proper jury charge “fairly presents the case to the jury, in such a way that injustice was not done under the rules of law to the legal rights of either litigant . . . .” (Internal quotation marks omitted.) Nesbitt v. Mulligan, 11 Conn. App. 348, 354, 527 A.2d 1195 (1987). It “must be correct in law, adapted to the issues and ample for the guidance of the jury. . . .” Id. In order to apply this standard of review, it is necessary to examine the charge and the various objections to it raised by the plaintiff.

At the close of evidence, the court gave instructions to the jury regarding the law of negligence and the burden of proof. The plaintiff objected to the court’s charging the jury, on four separate occasions, that the plaintiff was under a duty to exercise “reasonable care.” During the main body of the charge, the court twice referred to a general duty of reasonable care owed by the plaintiff.

After the charge, the plaintiff’s attorney took exception to the court’s mention of a plaintiff’s duty to behave as a reasonably prudent person in the absence of a claim by the defendants of contributory negligence. When the jury returned to the courtroom, the court attempted to clarify the charge, but noted that “the plaintiff has to use reasonable care under the . . . circumstances.” The jury was dismissed for lunch, and the plaintiff’s counsel objected to the recharge. After the break, but before the jury retired to deliberate, the court again attempted to clarify the issue of contributory negligence: “In accordance with my general instructions remember, as I said, it’s a question of a reasonably prudent person .... Of course this particular case was on a . . . question of negligence. So the plaintiff had to prove a negligent act by the defendants], as I have defined — and of course contributory negligence, if it was proved, would have had to have been a defense by the defendant^]. . . .” After the jury left the courtroom to begin its deliberation, the plaintiff’s attorney took exception to that subsequent charge.

When the jury returned with a defendants’ verdict, the court did not accept the verdict, but instead, over the objection of the defendants’ counsel, asked the jury to reconsider its verdict, saying, “If you believe that the plaintiff was guilty of any type of contributory negligence then it may be a question whether your verdict is correct or not.” The court instructed the jury to send him a note if it needed further clarification. Shortly after, the jury sent a note from the jury room stating that it needed “assistance to fully understand contributory negligence.”

The jury returned to the courtroom, and the court once more charged it on the issue of contributory negligence, stating that “the defendants] did not use a special defense of contributory negligence and he would [have] to plead it, and ... he did not plead it . . . the negligence is only the question of the defendants’] negligence . . . however, the plaintiff must have been using ordinary — it had to be in the exercise of due care . . . .” The jury was excused and asked to reconsider its verdict in light of the recharge. The plaintiffs counsel again took exception. The jury returned with a defendants’ verdict, and that verdict was accepted by the court.

General Statutes § 52-114 explicitly states that there is a presumption that the plaintiff in a negligence action was exercising reasonable care at the time of injury, and that the defendant must specially plead contributory negligence. The statute allocates the burden of proof of contributory negligence to the defendant once it has been specially pleaded. The effect of the statute is to “shift the burden of proving freedom from contributory negligence from the plaintiff, where it rested under the common law (Kotler v. Lalley, 112 Conn. 86, 151 Atl. 433 [1930],) and to place the burden of proving contributory negligence upon the defendant if the latter sees fit to claim it by pleading it.” LeBlanc v. Grillo, 129 Conn. 378, 385, 28 A.2d 127 (1942). In the present case, the defendants did not plead contributory negligence, so the plaintiff had no burden under the law to prove she exercised reasonable care; it was presumed. The court did state that contributory negligence had to be pleaded by the defendants, but it also consistently stated that the plaintiff was obligated to exercise reasonable care. By telling the jury that the plaintiff had to exercise reasonable care, the court created a burden on the plaintiff that does not exist in light of § 52-114.

Our Supreme Court has held that under § 52-114 the defendant’s failure to plead contributory negligence “preclude^] any inquiry on her part into antecedent acts of negligence by the plaintiff.” Delott v. Roraback, 179 Conn. 406, 414, 426 A.2d 791 (1980). Our courts have also held that the statutory presumption of reasonable care on the part of the plaintiff does not change the substantive law, and is in no way probative. LeBlanc v. Grillo, supra; Bergmann v. Newton Buying Corporation, 17 Conn. App. 268, 551 A.2d 1277 (1989). Furthermore, under certain circumstances, it is appropriate for the court to charge that the plaintiff has a duty to act with reasonable care. “It is not inconsistent with the statute to charge that the plaintiff had the duty to use due care, if the court adequately instructs the jury . . . that the defendant has the burden to prove that the plaintiff failed to meet that duty. ” (Emphasis added.) Bergmann v. Newton Buying Corporation, supra, 272. Here, in the absence of a plea of contributory negligence, the court improperly charged the jury that the plaintiff had a duty to use reasonable care, thus placing a burden on the plaintiff that she did not have. In this case the issue of the plaintiff’s due care was not a proper element for the jury to consider.

We now address the defendants’ contention that even if the jury charge was improper, they should still prevail due to the effect of the general verdict rule. We disagree.

“The so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.” Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987). The defendants cannot prevail on their claim that the general verdict rule bars the plaintiff’s claim because in the present case there was only one cause of action and one denial by the defendants. The general verdict rule operates to prevent an appellate court from disturbing a verdict that may have been reached under a cloud of error, but is nonetheless valid because the jury may have taken an untainted route in reaching its verdict. “The implication of a general verdict, where there are two causes of action, ‘imports that the jury has found all the issues for the plaintiff, hence if one of these causes of action is supported by credible testimony the verdict must stand, although the other cause of action was not supported ... by law, since it cannot be known that the verdict was based upon the invalid cause of action.’ ” Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 708, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991), quoting Wladyka v. Waterbury, 98 Conn. 305, 313, 119 A. 149 (1922). Here, there is only one cause of action, and only one theory of recovery. There is also only a denial asserted by the defendants who elected not to plead a defense of contributory negligence. In the absence of an alternative theory of recovery or defenses, the jury could not have reached its verdict by any means other than the one affected by the improper jury instructions.

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

In this opinion the other judges concurred.

       The plaintiff, Carol Sady, brought this action both individually and as executrix of the estate of her husband, Peter Sady.

       The defendants listed in the plaintiffs complaint are the Liberty Mutual Insurance Company, the Liberty Mutual Fire Insurance Company, and Robert Semsel, an insurance agent employed by one or both of the named and related insurance companies.

       General Statutes § 52-114 provides: “pleading of contributory negligence. In any action to recover damages for negligently causing the death of a person, or for negligently causing personal injury or property damage, it shall be presumed that such person whose death was caused or who was injured or who suffered property damage was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care. If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such contributory negligence shall rest upon the defendant or defendants.”

       This case discussed § 1399e, which contained virtually the same language as the current law, $ 52-114.


author: Freedman, J.

text:
    Anthony Vecca v. State of Connecticut
    (10969)
    Foti, Lavery and Freedman, Js.
    Argued October 5
    decision released November 24, 1992

      Jonathan L. Gould, with whom was Barry Scheinberg, for the appellant (plaintiff).

      William J. McCullough, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Freedman, J.

The issue presented by this appeal is whether the calculation of “full salary” benefits available to the plaintiff, an injured state employee, under General Statutes (Rev. to 1989) § 5-142 (a) is based on the plaintiff’s actual earnings at the time of the injury, which includes overtime pay, shift differential and a maintenance allowance, or whether his benefits under § 5-142 (a) are limited to his base pay at the time of the injury. The compensation review division of the workers’ compensation commission determined that full salary does not include overtime pay, shift differential and a maintenance allowance, limiting the plaintiff to benefits based on his base pay. We affirm the review division’s decision.

The facts were stipulated. On May 10,1989, the plaintiff sustained a compensable injury to his right shoulder and left knee while working as an agency police officer at Whiting Forensic Institute, a state facility. The plaintiff was temporarily totally disabled for approximately six months following his injury. At the time of his injury, the plaintiffs base pay was $667.90 per week. The plaintiffs actual average weekly wage, however, was $885.12, which included his base pay plus shift differential earnings, overtime in a varying number of hours, and a maintenance allowance of $6.25 per week. The plaintiff contends that he should have been paid $1770.24 per biweekly pay period ($885.12 per week) under § 5-142 (a). The defendant, on the other hand, claims that § 5-142 (a) obligates the state to pay the plaintiff only his base pay of $1335.80 biweekly ($667.90 per week) and not other payments, such as overtime, shift differential or maintenance allowance.

The workers’ compensation commissioner concluded that the plaintiff’s “full salary” under § 5-142 (a) included all enhancements to base pay. The review division reversed, however, on the basis of its prior decisions, which held that salary is a more restrictive term than wages and thus the “full salary” language in § 5-142 (a) does not include any amounts above base pay. See Vecca v. State, 9 Conn. Workers’ Comp. Rev. Op. 280 (1991). This appeal followed.

Section 5-142 (a) was enacted “in order to provide enhanced benefits by way of disability compensation for employees injured while engaged in special state service. The class of employees eligible for these benefits is those who ‘in the daily course of performing their duties, work in an atmosphere sometimes charged with emotion and stress, and face the possibility of confrontations with inmates, patients or arrestees, which confrontations often result in violence.’ Lucarelli v. State, 16 Conn. App. 65, 69, 546 A.2d 940 (1988). If injured under the circumstances prescribed in the statute, this class of state employees is entitled to disability compensation based on the employee’s full salary, rather than upon a percentage of his or her weekly earnings, the normal workers’ compensation standard [under General Statutes § 31-307].” Jones v. Mansfield Training School, 220 Conn. 721, 725, 601 A.2d 507 (1992).

We commence our analysis of the “full salary” language of § 5-142 (a) by examining the recent decision in Jones v. Mansfield Training School, supra. In Jones, our Supreme Court determined that injured state employees covered by § 5-142 (a) may choose between the full salary compensation rate of § 5-142 (a) or the method of benefits calculation under § 31-307. The benefit calculation in Jones under the latter provision included overtime. Id. If we were to interpret the calculation under § 5-142 (a) to include the same items as those factored into the calculation under § 31-307, then the Jones case could only be understood to hold that a state employee coming within § 5-142 (a) may, instead of receiving 100 percent of such items, choose to accept two thirds of such items. We will not ascribe such a bizarre interpretation to our decisional law. Nor do we think that our Supreme Court would choose to address such an issue of statutory interpretation unless the term salary is more restrictive than the terms earnings and wages. We can discern no reason why our Supreme Court in Jones would have addressed the question of whether an injured state employee entitled to her full salary under § 5-142 (a) can instead seek benefits equal to two thirds of that same amount under § 31-307. Because our courts will not address questions that are purely academic due to the absence of an actual and existing controversy; Taylor v. Synergy Productions, Ltd., 21 Conn. App. 661, 667, 575 A.2d 1050 (1990); we can conclude only that our Supreme Court, although it stated that it did not reach the issue, must have sub silentio determined that the term salary is more restrictive than the terms earnings and wages in the context of our workers’ compensation laws.

In addition, this difference between salary and wages and earnings finds support in other authoritative sources. Wages and earnings are broad terms that include “[ejvery form of renumeration payable . . . for personal services . . . .” Black’s Law Dictionary (6th Ed.). Salary, by contrast, is a term that is more limited in its scope. It refers to an employee’s base pay prior to the inclusion of overtime pay or other salary enhancements. See Szudora v. Fairfield, 214 Conn. 552, 573 A.2d 1 (1990); Black’s Law Dictionary (6th Ed.) (“fixed periodical compensation”). Additionally, the review division has, without exception, calculated the “full salary” under § 5-142 (a) without including overtime. See footnote 2, supra. Great deference must be shown to the statutory construction given by the agency. Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 173, 479 A.2d 1191 (1984); see also Jones v. Mansfield Training School, supra, 738 n.6 (Berdon, dissenting).

Although § 5-142 (a) provides no definition of the statutory term full salary, in construing a statute we may look to other statutes relating to the same subject matter for guidance because the legislature is presumed to have created a consistent body of law. Baybank Connecticut, N.A. v. Thumlert, 222 Conn. 784, 790, 610 A.2d 658 (1992); Heffernan v. Slapin, 182 Conn. 40, 46, 438 A.2d 1 (1980). In establishing our general and special workers’ compensation statutes, the legislature has used different terms to establish the calculation rates of the benefits available. These differences are significant. See Stitzer v. Rinaldi’s Restaurant, 211 Conn. 116, 119, 557 A.2d 1256 (1989) (legislature knows how to use broader or limiting terms when it chooses to do so). Accordingly, we conclude that the legislature intended the term “salary” in § 5-142 (a) to be limited to an employee’s base salary, exclusive of any amounts previously paid as overtime, shift differential or maintenance allowance.

We recognize that our interpretation of § 5-142 (a) does not necessarily further the intention of the legislature “to make these benefits a generous source of compensation for its designated beneficiaries.” Jones v. Mansfield Training School, supra, 725. We note that when the predecessor to § 5-142 (a) was enacted in 1939, collective bargaining and the forty hour work week with premium pay for overtime were in their infancy. See National Labor Relations Act of 1935, 29 U.S.C. § 151 et seq.; Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Moreover, state employees in Connecticut did not have collective bargaining rights until 1975. See Public Acts 1975, No. 566 (now General Statutes § 5-270 et seq.). Because of these rights and others developed since 1939, overtime and other remunerations beyond the stated weekly or biweekly salary amounts have become commonplace for many state employees. Yet, throughout this period of change in labor relations and in the wage and hours provisions of our laws and in collective bargaining agreements, the use of the term “salary” in § 5-142 (a) has remained despite the provision’s various amendments and reenactments. Because the words of a statute must be interpreted as written, it is not what the legislature might have said or should have said in light of changing historical conditions that controls; we must instead determine the meaning of what the legislature did say. Roto-Rooter Services Co. v. Department of Labor, 219 Conn. 520, 525, 593 A.2d 1386 (1991). Any change in the words of the statute, then, must come from the legislature.

The decision of the compensation review division is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1989) § 5-142 (a) provides in relevant part: “If any member of . . . any institution or facility of the department of mental health giving care and treatment to persons afflicted with a mental disorder or disease . . . sustains any injury while making an arrest or in the actual performance of such police duties or guard duties or fire duties or inspection duties . . . or while attending or restraining an inmate of any such institution or as a result of being assaulted in the performance of his duty, the state shall pay all necessary medical and hospital expenses resulting from such injury. If total incapacity results from such injury, such person shall be removed from the active payroll the first day of incapacity, exclusive of the day of injury, and placed on an inactive payroll. He shall continue to receive the full salary which he was receiving at the time of injury subject to all salary benefits of active employees, including annual increments, and all salary adjustments, including salary deductions, required in the case of active employees, for a period of two hundred sixty weeks from the date of the beginning of such incapacity. Thereafter, such person shall be removed from the payroll and shall receive compensation at the rate of fifty per cent of the salary which he was receiving at the expiration of said two hundred sixty weeks so long as he remains so disabled . . . .”

       See Palmer v. State, 9 Conn. Workers’ Comp. Rev. Op. 53 (1991); Jones v. Mansfield Training School, 9 Conn. Workers’ Comp. Rev. Op. 53 (1991), rev’d on other grounds, 220 Conn. 721, 601 A.2d 507 (1992).

       Under General Statutes § 31-307, the normal workers’ compensation standard is “equal to sixty-six and two-thirds per cent of [the employee’s] average weekly earnings at the time of the injury . . . .” These “average weekly earnings” under § 31-307 are based on “the total wages received by the injured worker from the employer in whose service he is injured during the twenty-six calendar weeks immediately preceding that during which he was injured . . . .” General Statutes § 31-310.

       We recognize that the variable nature of overtime work, in particular, might mean that full compensation during any particular week could be below, even well below, an employee’s average earnings. This fact, in our view, does not further the claimant’s attempt to explain away the decision in Jones. In fact, in highlighting both the variable nature of weekly compensation where overtime work is involved and the lack of any formula for averaging under § 5-142 (a) similar to that under § 31-310; see footnote 3, supra; the claimant, we believe, recognizes that his interpretation of the statute will lead to arbitrary results. Under the claimant’s interpretation of the statute, two similarly situated state employees will receive different benefits under § 5-142 (a) simply because one happened to work more overtime or on a shift paying a differential during the pay period preceding the injury. We do not believe that the legislature intended such bizarre results. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 203, 592 A.2d 912 (1991); State v. Uretek, Inc., 207 Conn. 706, 719, 543 A.2d 709 (1988).


author: Cretella, J.

text:
    Alan Amore et al. v. Emil Frankel, Commissioner of Transportation
    (10677)
    Foti, Heiman and Cretilla, Js.

      Argued September 30
    decision released November 24, 1992

      Robert J. Enright, for the appellants (plaintiffs).

      Michael J. O’Sullivan, for the appellee (defendant).
   Cretella, J.

The issue presented in this appeal is whether a complaint that alleges facts sufficient to support a claim under General Statutes § lSa-144 eliminates the preclusive effect of sovereign immunity. The plaintiffs appeal from the trial court’s dismissal of the action. We reverse the judgment in part and remand the case for further proceedings.

The plaintiffs, Alan and Ellen Amore, filed a two count complaint against Emil Frankel, the state commissioner of transportation. In count one, they claimed that the state owed them a duty to maintain the roads and sidewalks on the Storrs campus of the University of Connecticut. The plaintiffs alleged that the state failed to reduce the hazards associated with icy and wet road conditions which ultimately caused the injuries that the named plaintiff sustained in a fall on an icy driveway. In count two, the plaintiffs claimed loss of consortium on behalf of the named plaintiffs wife.

Pursuant to Practice Book §§ 142 and 143, the defendant filed a motion to dismiss, asserting that the doctrine of sovereign immunity deprived the court of subject matter jurisdiction. The defendant also filed two supporting affidavits as evidence that the defendant was not responsible for the maintenance of the roads at issue. In light of these affidavits, the trial court found that the road “was outside the scope of the commissioner’s duty to maintain or repair pursuant to [General Statutes] section 13b-30 or 13a-144. Hence, the defendant’s motion to dismiss [was] granted.” The court reasoned that without proof of the defendant’s duty, the doctrine of sovereign immunity applied and deprived the court of subject matter jurisdiction. This appeal followed.

I

The plaintiffs claim that the trial court improperly granted the defendant’s motion to dismiss. Since General Statutes § 13a-144 constitutes a waiver of sovereign immunity and since the complaint contains facts sufficient to state a claim under the statute, the plaintiffs argue that sovereign immunity is not applicable. Thus, immunity is not grounds for dismissal in such cases.

“Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong.” (Internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 542, 590 A.2d 914 (1991). “A reviewing court should indulge every presumption in favor of a trial court’s subject matter jurisdiction. Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 198, 596 A.2d 396 (1991).” Ducci Electrical Contractors, Inc. v. Department of Transportation, 28 Conn. App. 175, 180, 611 A.2d 891 (1992). The doctrine of sovereign immunity implicates subject matter jurisdiction and is grounds for granting a motion to dismiss. Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983).

The common law doctrine of sovereign immunity dictates that suits against the state can be maintained only in exceptional circumstances. Tamm v. Burns, 222 Conn. 280, 283, 610 A.2d 590 (1992). One such circumstance is “where the legislature, by appropriate legislation consents to being sued.” Horton v. Meskill, 172 Conn. 615, 621, 376 A.2d 359 (1977); Textron, Inc. v. Wood, 167 Conn. 334, 339, 355 A.2d 307 (1974). “The state’s sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed ‘by the use of express terms or by force of a necessary implication.’ ” Duguay v. Hopkins, supra, 228; Skinner v. Angliker, 15 Conn. App. 297, 300, 544 A.2d 246 (1988).

We analyze the above stated principles in the context of a motion to dismiss. In doing so, our case law exploring the relationship between constitutional claims and sovereign immunity is instructive. When a party sues the state for infringing constitutional rights, our supreme court has held that “[t]o survive a motion to dismiss on the ground of sovereign immunity, a complaint ‘must allege sufficient facts to support a finding of a taking of land in a constitutional sense.’ ” Tamm v. Burns, supra, 284, quoting Horak v. State, 171 Conn. 257, 261, 368 A.2d 155 (1976). Thus, in determining the effect of sovereign immunity, the focus is on the adequacy of the complaint. Id. If the complaint alleges facts sufficient to invoke a statutory waiver of immunity, then the trial court cannot properly grant a motion to dismiss solely on the basis of sovereign immunity.

In the case before us we conclude that the trial court improperly dismissed count one of the plaintiffs’ complaint. The defendant does not dispute that the plaintiffs’ complaint alleged facts that support a cause of action under our state’s defective highway statute. It is well established that through this statutory scheme the state has expressly consented to being sued. White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990). Therefore, by analogy to the holding in Horak v. State, supra, count one of the complaint on its face was sufficient to establish subject matter jurisdiction and to withstand the defendant’s motion to dismiss. In dismissing the case, the trial court improperly relied on evidentiary matter in the form of the affidavits to invoke the doctrine of sovereign immunity, notwithstanding the fact that the complaint alleged the statutory exception for cases involving highway defects.

The applicable provisions of § 13a-144 did not require construction or analysis beyond the express terms. Section 13a-144 provides in pertinent part that “[a]ny person injured in person or property through the neglect of default of the state or any of its employees by means of any defective highway ... or sidewalk which it is the duty of the commissioner of transportation to keep in repair . . . may bring a civil action . . . .” (Emphasis added.) As it pertains to the plaintiff’s case, this language makes abundantly clear that an element of the plaintiffs’ case is the existence of a duty to maintain the roadway in question.

The question in this case is not one of statutory interpretation but one of factual application to a clear and unambiguous statutory provision. Specifically, the issue is whether the defendant owed the plaintiffs a duty to maintain the roads and sidewalks upon which the named plaintiff sustained his injuries. The defendant asks that we review the facts in a light most favorable to the state. This request, however, squarely conflicts with established precedent requiring courts to indulge every presumption in favor of subject matter jurisdiction. Gurliacci v. Mayer, supra, 543. In short, the defendant’s request for a favorable construction of § 13a-144 is misplaced.

The defendant contends that the affidavits accompanying its motion to dismiss support the court’s ruling. We disagree. Practice Book § 143 permits the movant to file affidavits “where appropriate.” See footnote 3, supra. “[T]he court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.” (Emphasis added.) Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). In ruling on a motion to dismiss for lack of jurisdiction, a court should resist deciding the case on the merits. Gurliacci v. Mayer, supra, 544; Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 16, 578 A.2d 646 (1990). It follows, therefore, that affidavits accompanying a motion to dismiss should pertain only to jurisdictional matters.

In this case, reliance upon the affidavits was inappropriate because they did not directly concern a jurisdictional issue. Instead, they related predominantly to the substantive issue of whether the defendant had a duty to maintain the road. In effect, the defendant argues, on the basis of the affidavits, that sovereign immunity bars suit because the plaintiffs have not offered evidence on a critical element of the statute. This analysis defies logic, however, because it requires the plaintiff to produce evidence regarding the merits of the case prior to even engaging in the discovery process. Such a substantive challenge is both premature and beyond the scope of a motion to dismiss.

The result in this case does not render the affidavit provision of Practice Book § 143 superfluous. Case law demonstrates numerous circumstances where affidavits are appropriate in the context of a motion to dismiss. We merely find that the affidavits at issue were relevant to the merits of the case and not to jurisdictional matter. Because a motion to dismiss is not the appropriate procedural device for an attack on the merits, the trial court’s reliance on the affidavits was improper.

While we appreciate the defendant’s desire to avoid prolonged litigation if at all possible, our holding here is not designed to cause litigation where none may be required. As the plaintiffs argue, the defendant’s affidavits may be more appropriately suited to a motion for summary judgment than to a motion to dismiss.

II

Regarding count two of the complaint, claiming loss of consortium, the trial court was without subject matter jurisdiction and properly dismissed this claim albeit for an improper reason. Our review of this aspect of the appeal follows the same analysis as set forth in part I of the opinion.

As previously stated, suits against the state must fall within legislatively created exceptions to the doctrine of sovereign immunity. Duguay v. Hopkins, supra. Our Supreme Court has recently ruled on the propriety of loss of consortium claims under our highway defect statutes. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 199, 592 A.2d 912 (1991). In Sanzone the court explicitly held that “[sjeetion 13a-149 does not permit damages for loss of consortium, but permits recovery only by the injured ‘traveler.’ ” Id. Here, the second count of the complaint set forth a claim that the legislature was unwilling to recognize. As such, the doctrine of sovereign immunity was applicable and deprived the court of subject matter jurisdiction.

The trial court held that the doctrine of sovereign immunity barred the defective highway claim and by necessity the loss of consortium claim. As previously stated, sovereign immunity did not operate to deprive the court of subject matter jurisdiction as to the claim under § 13a-144. We do agree, however, with the trial court’s dismissal of the loss of consortium claim. It is axiomatic that “ ‘[t]his court is not required to reverse a ruling of the trial court which reached a correct result, albeit for the wrong reason.’ ” New London v. Zoning Board of Appeals, 29 Conn. App. 402, 409, 615 A.2d 1054 (1992), quoting Herrmann v. Summer Plaza Corporation, 201 Conn. 263, 274, 513 A.2d 1211 (1986).

The judgment is reversed in part and the case is remanded with direction to deny the motion to dismiss as to the first count only and for further proceedings.

In this opinion the other judges concurred.

       General Statutes § 13a-144 provides in pertinent part: “DAMAGES FOR INJURIES SUSTAINED ON STATE HIGHWAYS OR SIDEWALKS. Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the superior court.”

       Practice Book § 142 provides in pertinent part: “MOTION TO DISMISS
      “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . . .” (Emphasis added.)

       Practice Book § 143 provides in pertinent part: “-GROUNDS [FOR A MOTION TO DISMISS]
      “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter .... This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.” (Emphasis added.)

       One affidavit was a statement given by the director of the physical plant of the University of Connecticut. In this statement, the director claimed that the area in question was within the responsibility of the University of Connecticut physical plant. The other affidavit was given by the special services manager of the bureau of highways of the department of transportation. In this statement, the manager represented that the area was outside the department of transportation’s responsibility.

       The defendant relies heavily on the decision in Barde v. Board of Trustees, 207 Conn. 59, 539 A.2d 1000 (1988). In Barde, the court held that affidavits supported the preclusive application of sovereign immunity. While noting that a trial court must indulge every presumption in favor of the existence of subject matter jurisdiction, our Supreme Court found that the plaintiff’s allegations did not support a constitutional claim. “[TJhe unilateral expectation of benefits is simply not enough to create a constitutionally protected property interest within the meaning of the fourteenth amendment.” Id., 65. Thus, Barde is distinguishable because in the present case the plaintiffs’ allegations do support a claim under General Statutes § 13a-144 and thus support an exception to the doctrine of sovereign immunity.

       See, e.g., Shortt v. New Milford Police Department, 212 Conn. 294, 298, 562 A.2d 7 (1989) (subject matter jurisdiction; affidavit as evidence that nonmovant failed to exhaust administrative remedies); Morabito v. Wachsman, 191 Conn. 92, 463 A.2d 593 (1983) (insufficiency of service of process; affidavit refuting existence of service of process); Gaudio v. Gaudio, 23 Conn. App. 287, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990) (personal jurisdiction; affidavit refuting existence of minimum contacts).

       The decision in Sanzone v. Board of Police Commissioners, 219 Conn. 179, 592 A.2d 912 (1991), involved General Statutes § 13a-149, the analogue to General Statutes § 13a-144 for cases involving claims against municipalities. With respect to the relationship between §§ 13a-149 and 13a-144, “ ‘there is no material difference in the obligation imposed on the state by § 13a-144 and that imposed on municipalities by [General Statutes] § 13a-149.’ ” Hall v. Bums, 213 Conn. 446, 477, 559 A.2d 10 (1990), quoting Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970).