text:
    STATE OF CONNECTICUT v. VANVERN BLAKE
    (AC 20413)
    Foti, Mihalakos and Daly, Js.

      Argued March 30
    officially released May 22, 2001

      Kimball Haines Hunt, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Michael J. Weber, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, VanVem Blake, appeals from the judgment of conviction following a jury trial on one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l). The defendant claims that the trial court improperly (1) refused to instruct the jury on the issue of fraudulent misrepresentation and (2) failed to submit written interrogatories to the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, who was thirteen years old, first met the defendant, who was twenty-two years old, in April, 1999. The victim was walking to middle school, where she attended the eighth grade. The defendant lived in an apartment past which the victim walked each morning on her way to school. On that morning, the defendant, who previously had seen the victim walking to school, was a passenger in a car that passed her as she walked. The car executed a U-turn and returned to where the victim was walking so that the defendant could engage her in conversation. The victim told the defendant her name, her age and that she was en route to school. The defendant offered her a ride to school while trying to convince her to skip classes and spend the day with him. The victim declined those entreaties.

The victim had no further contact with the defendant for four to six weeks following that incident. In May, 1999, the victim encountered the defendant as she shopped in a market adjacent to her school. The defendant again engaged the victim in conversation and invited her to accompany him to his apartment to “chill out.” The defendant asked for the victim’s telephone number, which she declined to give him, stating that her mother was strict and did not allow her to receive telephone calls from boys. The defendant gave the victim his telephone number and invited her to call.

On the evening of May 13,1999, the victim telephoned the defendant and agreed to skip school the next day and visit his apartment. On the morning of May 14, 1999, the victim again telephoned the defendant to confirm her visit and to obtain directions to his apartment. On that day, instead of walking to school in the morning, the victim walked to the defendant’s apartment. Once the victim was in the defendant’s apartment, he told her that he was twenty-two years old. She told him that she was thirteen years old. In response to that information the defendant stated, “So, you are just thirteen? . . . That’s not too young.” Thirty minutes of kissing and fondling ensued, after which the defendant removed his and the victim’s clothing, and asked her if she would like him to “take her virginity.” Throughout the course of the day, the defendant and victim engaged in three episodes of vaginal intercourse. At 3 p.m., the victim left to return home.

Shortly thereafter, the victim informed family members of what had happened, and her mother took her to the police station. At the station, the victim wrote and attested to a statement outlining the events previously described. When confronted and later arrested by the police, the defendant insisted that the victim had told him she was “seventeen going on eighteen.” At trial, the defendant stipulated to the fact that his actions had met the requirements for sexual assault in the second degree under § 53a-71 (a) and raised the affirmative defense of fraudulent misrepresentation. Additional facts and procedural history will be discussed as necessary.

I

The defendant first claims that the court improperly refused to instruct the jury on the issue of fraudulent misrepresentation, thereby depriving him of an affirmative defense in violation of his constitutional right to due process. We disagree.

The following additional facts and procedural background are relevant to our resolution of the defendant’s claim. The defendant testified at trial that during his first encounter with the victim, she claimed to be nearly eighteen years old and that she attended high school. The defendant further testified that he did not learn of the victim’s true age until several days after May 14, 1999. The defendant filed his requests to charge on September 22, 1999. With respect to fraudulent misrepresentation, the defendant requested, in pertinent part, that the jury be charged as follows: “[The victim] would have made a fraudulent misrepresentation regarding her age if (1) the misrepresentation she made about her age was made as a statement of fact; (2) the misrepresentation was untrue and known to be untrue; (3) the misrepresentation was made to induce the defendant to act; and (4) the defendant acted to his detriment. . . . If [the victim], to secure the opportunity of consensual sex to herself, made an untrue statement about her age, and you find that her age was a matter concerning which she had, and was known to have, the best means of knowledge, she is guilty of fraudulent misrepresentation. . . . There is no authority in Connecticut that can be found which requires that a man must use due diligence to prevent being defrauded . . . The truth is, redress is most commonly wanted for injuries arising from frauds, which might have been prevented by due diligence. ... If you find that the reason the defendant, VanVem Blake, had consensual sex with [the victim] was based upon her fraudulent misrepresentation as to age, then you could not convict him of either crime charged by the state in this case.”

During closing arguments, the defense represented to the jury that there were no issues to decide concerning either the ages of the defendant and the victim, or whether the defendant and the victim had engaged in sexual relations. The defense then informed the jurors that the only reason the case was in their hands was to determine if the victim was credible on the issue of whether she affirmatively and fraudulently misrepresented her age. The state made no objections to those remarks. The court did not instruct the jury on the defendant’s requested charge.

“Our standard of review on this claim is whether it is reasonably probable that the jury was misled. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Internal quotation marks omitted.) Amsden v. Fischer, 62 Conn. App. 323, 328-29, 771 A.2d 233 (2001).

“The general purpose of § 53a-71 (a) (1) is to protect victims who are thirteen, fourteen or fifteen years of age, and thus may not have the full measure of maturity to make an intelligent choice regarding sexual intercourse, from being taken advantage of by someone who, because he or she is significantly older, may be able to persuade the victim to engage in physically consensual sexual intercourse.” State v. Jason B., 248 Conn. 543, 553-54, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S. Ct. 406, 145 L. Ed. 2d 316 (1999).

“The statute applies to sexual intercourse, consensual or not, when one participant is within the thirteen through fifteen age bracket and the other, on whom criminal liability is imposed, is more than two years older.” State v. Jason B., 47 Conn. App. 68, 75, 702 A.2d 895 (1997) aff'd, 248 Conn. 543, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S. Ct. 406, 145 L. Ed. 2d 316 (1999). “All persons who have sexual relations with youths of thirteen to fifteen years and who are more than two years older than those youths are subject to criminal liability.” (Emphasis added.) Id., 80.

The defendant’s reliance on State v. Plude, 30 Conn. App. 527, 621 A.2d 1342, cert. denied, 225 Conn. 923, 625 A.2d 824 (1993), for the proposition that an affirmative defense of fraudulent misrepresentation may be available under § 53a-71, is misplaced. “As originally enacted, General Statutes (Rev. to 1972) § 53a-67 provided for an affirmative defense of mistake of age. Public Acts 1969, No. 828, § 68 (b). The defense provided for the situation where the defendant may have lacked the requisite mens rea on the basis of his belief that the facts were other than as they were. ... By enacting No. 75-619 of the 1975 Public Acts, the General Assembly eliminated mistake of age as an affirmative defense to a violation of § 53a-71 (a) (1). Through this act, the legislature clearly expressed its will that engaging in sexual intercourse with a person under the age of sixteen years constitutes a violation of law without regard to the actor’s belief as to the victim’s age. . . . Sexual assault in the second degree is a general intent crime that requires only that the actor possess a general intent to perform the acts that constitute the elements of the offense.” (Citations omitted; internal quotation marks omitted.) State v. Plude, supra, 534-35.

All a person need do to violate § 53a-71 is to (1) engage in sexual intercourse (2) with a person between the ages of thirteen and fifteen, and (3) be at least two years older than such person. The defendant stipulated to the fact that those three elements of the crime had been satisfied by him. No affirmative defense of fraudulent misrepresentation is available under the statute. The court, therefore, properly refused to instruct the jury as the defendant requested.

II

The defendant next claims that the court improperly denied his request to submit written interrogatories to the jury. We disagree.

At the conclusion of the evidentiary portion of the trial, the defendant filed a request that the court submit a number of written interrogatories to the jury. The interrogatories specifically asked: “(1) Do you find that [the victim] made statements to the defendant, describing her age to be sixteen or older? (2) Do you find that [the victim] knew that her statements, describing her age to be sixteen or older, were false at the time she made them? (3) Do you find that [the victim’s] statements, describing her age to be sixteen or older, were made in order to persuade the defendant to have sex with her? (4) Do you find that the defendant relied upon the [victim’s] statements as a basis for his decision to have sex with [the victim]? [and] (5) Do you find that [the victim] had superior knowledge, as compared with the defendant, with regard to information concerning her age?”

In denying the defendant’s request, the court stated: “I don’t know of any past practice of submitting interrogatories to a jury in a criminal context. I do know that it is a practice in the civil arena. In that regard, I am not going to start it at this time. The court is going to, hopefully, give the jury a full and fair instruction on the law, and it is not going to allow your submission of interrogatories.”

“[J]ury interrogatories are not part of criminal procedure.” Dowling v. Finley Associates, Inc., 49 Conn. App. 330, 338, 714 A.2d 694 (1998), rev’d on other-grounds, 248 Conn. 364, 727 A.2d 1245 (1999); State v. Lewis, 46 Conn. App. 691, 696, 700 A.2d 722, cert. denied, 243 Conn. 944, 704 A.2d 799 (1997). Even if interrogatories were an accepted part of criminal procedure, the defendant’s requested jury charge was not relevant because it focused solely on the affirmative defense of fraudulent misrepresentation. Because, as discussed in part I, the affirmative defense of fraudulent misrepresentation is not available in a prosecution under § 53a-71, juror responses to the defendant’s proposed interrogatories would in no way aid the court. Had the jury answered all of the proposed interrogatories in the affirmative, that still could not have obviated the legislature’s intentions relative to § 53a-71. As previously stated, § 53a-71 imposes criminal liability on all persons who have sexual relations with youths between the ages of thirteen and fifteen, and who are more than two years older than those youths. The court properly refused to submit the defendant’s interrogatories to the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . .


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RITZ REALTY CORPORATION ET AL.
    (AC 20456)
    Foti, Mihalakos and Dupont, Js.
    Argued February 16
    officially released May 29, 2001

      Andrew L. Houlding, for the appellants (named defendant et al.).

      Stephen R. Park, assistant attorney general, with whom were Thomas J. Saadi, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Jessica Gauvin, assistant attorney general, for the appellee (state).
   Opinion

FOTI, J.

The defendants appeal from the judgment rendered for the plaintiff, the state of Connecticut, and from the denial of the defendants’ motion to open the judgment of the trial court, which was rendered after a hearing in damages. They claim that the court abused its discretion in denying the motion. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The plaintiff commenced this action in four counts, seeking injunctive relief, restitution, civil penalties and other appropriate relief pursuant to the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The defendants appeared through counsel and answered the complaint. Thereafter, the court provided the parties with a schedule for completing discovery. The defendants did not respond to the plaintiffs discovery requests. On August 16, 1999, the court granted the plaintiffs motion for sanctions, pursuant to Practice Book § 13-14, and entered a default against all of the defendants. The court scheduled a hearing in damages for November 5, 1999, at which time the defendants’ attorney appeared on behalf of the defendants. At the conclusion of the hearing, the court rendered judgment against all of the defendants after finding that it had subject matter jurisdiction pursuant to General Statutes § 42-110m. The defendants had argued that the court lacked subject matter jurisdiction because the plaintiff had failed to exhaust its administrative remedies, pursuant to General Statutes § 42-1 lOd (d), before bringing its action in the Superior Court. We conclude that the plaintiff had the option of proceeding as it did in the Superior Court under § 42-110m (a) and that, given the terms of that statute, the plaintiff did not have to exhaust its administrative remedies prior to commencing an enforcement action in the Superior Court. See Civil Aeronautics Board v. Modern Air Transport, Inc., 81 F. Sup. 803, 806 (S.D.N.Y. 1949), aff'd, 179 F.2d 622 (2d Cir. 1950). The court, therefore, possessed subject matter jurisdiction. Its award included injunctive relief as sought, and $231,870 in restitution and civil penalties. The defendants’ attorney allegedly did not inform the defendants of the discovery request, the entry of default or the scheduling of the hearing in damages.

Pursuant to General Statutes § 52-212, the defendants, having retained new counsel, filed a motion to open the judgment, asserting the existence of good defenses. They further submitted that the alleged negligence of their attorney prevented them from asserting those defenses and that this negligence constituted mistake, accident or other reasonable cause for purposes of § 52-212. The court denied the motion, concluding that “[i]t is well settled that negligence of a party or his counsel is insufficient to obtain relief under § 52-212.” This appeal followed.

We first set forth our standard of review. “A motion to open and vacate a judgment filed during the four months after which judgment was rendered is addressed to the court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion.” (Internal quotation marks omitted.) Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985). We will indulge every reasonable presumption in favor of affirming the judgment. Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466-67, 440 A.2d 159 (1981).

A motion to set aside a default judgment is governed by Practice Book § 17-43 and General Statutes § 52-212. “Section 52-212 requires a party moving for the opening of a judgment to make a two part showing that: (1) a good defense existed at the time an adverse judgment was rendered; and (2) the defense was not at that time raised by reason of ‘mistake, accident or other reasonable cause.’ ” In re Baby Girl B., 224 Conn. 263, 284, 618 A.2d 1 (1992).

A court should not open a default judgment in cases where the defendants admit they received actual notice and simply chose to ignore the court’s authority. Black v. Universal C.I.T. Credit Corp., 150 Conn. 188, 194, 187 A.2d 243 (1962). “Negligence is no ground for vacating a judgment, and it has been consistently held that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of negligence. ” Pantlin & Chananie Development Corp. v. Hartford Cement & Building Supply Co., 196 Conn. 233, 240-41, 492 A.2d 159 (1985). Negligence of a party or his counsel is insufficient for purposes of § 52-212 to set aside a default judgment. Segretario v. Stewart-Warner Corp., 9 Conn. App. 355, 363, 519 A.2d 76 (1986); see also Jaquith v. Revson, 159 Conn. 427, 270 A.2d 559 (1970).

The defendants argue that their counsel’s negligence was “gross” or “wilful” and, therefore, constitutes “reckless conduct.” They further argue that the court should have considered such conduct legally sufficient as “mistake, accident or other reasonable cause” to open the judgment pursuant to § 52-212. The court did not address the defendants’ claim that their counsel’s alleged negligence constituted “reckless conduct” and that such conduct justified opening the judgment. The defendants did not file a motion for articulation or rectification with this court after the trial court filed its memorandum of decision. In the absence of an adequate record, we decline to review that claim. See Porter v. Porter, 61 Conn. App. 791, 802, 769 A.2d 725 (2001). Even if we were to review the claim and assume reckless conduct, the defendants have failed to furnish this court with any authority to treat the existence of reckless conduct differently from the existence of negligent conduct in considering a motion to open a judgment.

We conclude that the court properly determined that the defendants did not show that any defense was not at the time raised by reason of “mistake, accident or other reasonable cause.” Therefore, the court was not required to address whether a good defense existed at the time it rendered judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Ritz Realty Corporation and Shlomo Oz. A third defendant, Quality Towing Corporation, did not join in the motion to open the judgment that was filed by Ritz Realty Corporation and Shlomo Oz, and, therefore, has not appealed from the court’s denial of that motion.

       The defendants also claim that the court failed to consider and rale on their alleged defenses, which they allege may have implicated subject matter jurisdiction, and therefore abused its discretion in proceeding to deny their motion to open. In view of our affirmance of the court’s judgment, we need not address the claim further.

       Although it is not necessary to do so, we briefly summarize the plaintiffs allegations as follows: The defendant Ritz Realty Corporation owns and operates a retail shopping center in Norwalk known as Riverview Plaza, which is managed and supervised by the defendant Shlomo Oz. In May, 1998, it hired the defendant Quality Towing Corporation, a New York company, which is not licensed or authorized to transact business in Connecticut, to enforce “parking rules” in the shopping center. The defendants implemented and executed certain practices against persons whom they believed had violated the rules. Specifically, the defendants immobilized any vehicle thought to be in violation of those rules with a wheel-locking tire boot. The defendants required members of the public, whose cars were “booted,” to pay a “release fee” of $125 to them before they would remove the device. In addition, the defendants required the owners or operators of booted vehicles to sign written statements admitting that they had parked their cars in an illegal manner on private property and that they were waiving all rights to any legal action against the defendant Quality Towing Corporation. The plaintiff alleged that those practices violated Connecticut statutes, including the Connecticut Unfair Trade Practices Act, and public policy.

         The defendants did not file special defenses with their pleading. The same attorney, Abram Heisler, represented all three defendants in this action.

       General Statutes § 42-110m (a) provides in relevant part: “Whenever the commissioner has reason to believe that any person has been engaged or is engaged in an alleged violation of any provision of this chapter said commissioner may proceed as provided in sections 42-1 lOd and 42-110e or may request the Attorney General to apply in the name of the state of Connecticut to the Superior Court for an order temporarily or permanently restraining and enjoining the continuance of such act or acts or for an order directing restitution and the appointment of a receiver in appropriate instances, or both. Proof of public interest or public injury shall not be required in any action brought pursuant to section 42-llOd, section 42-110e or this section. The court may award the relief applied for or so much as it may deem proper including reasonable attorney’s fees, accounting and such other relief as may be granted in equity. . .

       General Statutes § 52-212 provides: “(a) Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.
      “(b) The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear.

        “(c) The court shall order reasonable notice of the pendency of the complaint or written motion to be given to the adverse party, and may enjoin him against enforcing the judgment or decree until the decision upon the complaint or written motion.”

       The defendants have indicated in their brief that they are proceeding with a legal malpractice claim against Heisler. That claim is not part of the record before us. The record discloses that counsel entered his appearance for all defendants, filed an answer, attended a pretrial conference, produced some business records as informal discovery and represented the defendants at the hearing in damages.

       See footnote 2.


author: LANDAU, J.

text:
    LINDA DOLLARD v. BOARD OF EDUCATION OF THE TOWN OF ORANGE ET AL.
    (AC 20651)
    Landau, Schaller and Mihalakos, Js.
    Submitted on briefs January 12
    officially released May 29, 2001

      Norman A. Pattis filed a brief for the appellant (plaintiff).

      Sheila A. Huddleston, Linda L. Yoder and Neil B. Stekloff Tiled a brief for the appellees (defendants).
   Opinion

LANDAU, J.

The plaintiff, Linda Dollard, appeals from the judgment of the trial court rendered following the granting of the defendants’ motion to strike both counts of her complaint. The sole issue on appeal is whether the court improperly granted the defendants’ motion to strike the first count, which alleged intentional infliction of emotional distress. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for our resolution of the plaintiff’s claim. The plaintiff’s complaint contained two counts. In count one, the plaintiff alleged intentional infliction of emotional distress, and in count two the plaintiff alleged negligent infliction of emotional distress. The defendants filed a motion to strike count one on the ground that the plaintiff had failed to allege that they had engaged in extreme and outrageous conduct, and count two on the ground that she had failed to allege that they had engaged in unreasonable conduct. The court granted the motion with respect to both counts. Thereafter, the plaintiff announced that she did not intend to plead over and filed a motion for judgment to be rendered in favor of the defendants so that she could appeal from the granting of the motion to strike. The court rendered judgment accordingly.

For purposes of this appeal, we take as true the following facts alleged in the complaint. See Bell v. Board of Education, 55 Conn. App. 400, 402, 739 A.2d 321 (1999). The plaintiff was employed as a school psychologist by the defendant board of education of the town of Orange (board), and was supervised by the defendants Patricia Miller, Nicholas Tirozzi and John Kowal. In 1998 and early 1999, the defendants jointly engaged in a concerted plan and effort to force the plaintiff to resign from her position or to become so distraught that they would have a colorable basis for terminating her employment. The defendants carried out their plan by hypercritically examining every small detail of her professional and personal conduct. Specifically, the defendants transferred the plaintiff to a school where she did not want to be assigned and then secretly hired someone to replace her at the school from which she had been transferred. The defendants also publicly admonished the plaintiff for chewing gum, being habitually late, being disorganized and not using her time well. Finally, the defendants unnecessar ily placed the plaintiff under the intensive supervision of a friend of Tirozzi. The defendants ultimately forced the plaintiff to resign.

“The standard of review for granting a motion to strike is well settled. In an appeal from a judgment following the granting of a motion to strike, we must take as true the facts alleged in the plaintiffs complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency. ... A motion to strike admits all facts well pleaded. See Practice Book § [10-39]. A determination regarding the legal sufficiency of a claim is, therefore, a conclusion of law, not a finding of fact. Accordingly, our review is plenary. Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997). ... If facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. Clohessy v. Bachelor, 237 Conn. 31, 33 n.4, 675 A.2d 852 (1996).” (Citations omitted; internal quotation marks omitted.) Bell v. Board of Education, supra, 55 Conn. App. 404.

“For the plaintiff to prevail on a claim of intentional infliction of emotional distress, four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe. . . . Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). . . . Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.” (Citation omitted; internal quotation marks omitted.) Muniz v. Kravis, 59 Conn. App. 704, 708, 757 A.2d 1207 (2000).

The court properly struck the plaintiffs claim of intentional infliction of emotional distress because the plaintiff did not plead facts that support her allegation that the defendants’ conduct was extreme and outrageous. For purposes of the tort of intentional infliction of emotional distress, extreme and outrageous conduct is that conduct that exceeds “all bounds usually tolerated by decent society .... Petyan v. Ellis, supra, 200 Conn. 254 n.5, quoting W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 12, p. 60. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).

In Appleton, the plaintiff teacher alleged that the defendants (1) subjected her to condescending comments in front of her colleagues, (2) subjected her to two psychiatric examinations, (3) told her daughter that the plaintiff was acting differently and should take a few days off from work, (4) had police escort the plaintiff out of the school, and (5) suspended her employment and ultimately forced her to resign. Id., 211. Our Supreme Court concluded that the “defendants’ actions . . . were not so atrocious as to exceed all bounds usually tolerated by decent society, [and] their conduct [was] insufficient to form the basis of an action for intentional infliction of emotional distress.” Id., 212.

While the conduct alleged here may have been distressful and hurtful to the plaintiff, it was no more extreme and outrageous than the conduct alleged in Appleton. Accordingly, we conclude that the court properly granted the defendants’ motion to strike the plaintiffs claim for intentional infliction of emotional distress.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Patricia Miller, Nicholas Tirozzi, John Kowal and the board of education of the town of Orange.

       The plaintiff argues, as she must, that the facts alleged in her complaint are sufficient to withstand the defendants’ motion to strike. Without citing any authority for her proposition, the plaintiff also argues that it is per se improper for a trial court to dispose of a claim of intentional infliction of emotional distress by way of a motion to strike. We know of no authority that supports the plaintiffs proposition and note that this court previously has affirmed the granting of a motion to strike a claim for intentional infliction of emotional distress. See, e.g., Biro v. Hirsch, 62 Conn. App. 11, 21, 771 A.2d 129, cert. denied, 256 Conn. 908, 772 A.2d 601 (2001); Muniz v. Kravis, 59 Conn. App. 704, 711, 757 A.2d 1207 (2000).

       In its memorandum of decision on the motion to strike, the court denied the defendants’ motion to strike with respect to the second count. Thereafter, the defendants filed a motion to reargue and for reconsideration. The defendants argued that given the facts and the prevailing legal authority, the motion to strike the second count should have been granted. The court granted the defendants’ motion and noted that its previous ruling denying the motion to strike the second count had been made in error.

         The individual defendants all were employees of the board. Miller was the director of special services, Tirozzi was the principal of the Peck Place School in Orange and Kowal was the superintendent of schools for the town of Orange.

       The defendants were the board of education of the town of Stonington, and the principal and assistant principal of a school in Stonington. Appleton v. Board of Education, supra, 254 Conn. 207.


text:
    RICHARD OPOTZNER ET AL. v. WAYNE BASS ET AL.
    (AC 19563)
    Landau, Spear and Daly, Js.

      Argued January 11
    officially released May 29, 2001

      Howard A. Jacobs, with whom were Alinor C. Sterling and, on the brief, William F. Dow III, for the appellants (plaintiffs).

      Paul D. Williams, with whom were Lawrence A. Ouellette, Jr., and, on the brief, Rene Gerard Marti-neau, for the appellees (defendants).
   Opinion

LANDAU, J.

The plaintiffs, Richard Opotzner and Florence Opotzner, appeal from the judgment of the trial court rendered following the denial of their motion to set aside the verdict. On appeal, the plaintiffs claim that the trial court improperly (1) instructed the jury, (2) excluded evidence and (3) failed to grant their motion to set aside the verdict. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 7, 1996, Richard Opotzner and the defendant Wayne Bass were each operating motor vehicles in a southerly direction on Pershing Drive in Anso-nia. Opotzner stopped his vehicle and waited for an opportunity to turn left. At that moment, Bass’ vehicle struck Opotzner’s vehicle from behind. The accident was relatively minor. Opotzner reported the accident and told a police officer that he was not injured. More than two weeks later, Opotzner sought medical treatment for neck, leg and arm pain that he claimed was caused by the accident. Opotzner worked and received treatment for pain for several months following the accident. In September, 1996, one of Opotzner’s physicians performed surgery in an attempt to relieve Opot-zner’s pain. Opotzner claimed that the surgery was relatively unsuccessful and he did not return to work. Opotzner eventually claimed that, as a result of the accident, he suffered from a variety of ailments, including traumatic brain injury, chronic pain and depression. The defendants claimed that Opotzner had preexisting medical conditions that could have caused his chronic pain and depression.

The primary issue of contention during the trial was whether the alleged injuries were caused by the accident. The jury found that they were and awarded the plaintiffs $5400 in damages. Other facts will be discussed where relevant.

I

The plaintiffs claim that the court improperly instructed the jury regarding (1) whether adverse inferences could be drawn from the plaintiffs’ introduction of medical reports as evidence of causation rather than medical testimony, (2) the burden of proof for future pain and physical impairment, (3) the credibility of the witnesses and (4) comparative negligence.

“Our standard of review concerning claims of instructional error is well settled. [Jjury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict. . . . We must review the charge as a whole to determine whether it was correct in law and sufficiently guided the jury on the issues presented at trial. . . .

“Our standard of review on this claim is whether it is reasonably [possible] that the jury was misled. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way thát injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Internal quotation marks omitted.) Marshall v. O’Keefe, 55 Conn. App. 801, 804-805, 740 A.2d 909 (1999), cert. denied, 252 Conn. 918, 744 A.2d 438 (2000).

A

The plaintiffs first claim that the court improperly failed to instruct the jury that, pursuant to General Statutes § 52-174 (b), it could not draw adverse inferences from the plaintiffs’ introduction of medical reports as evidence of causation in lieu of medical testimony. We disagree.

The following additional facts are necessaiy for our resolution of this claim. In support of their position that the accident caused Opotzner’s injuries, the plaintiffs introduced medical reports. The physicians who authored the reports did not testify. After the trial, the plaintiffs submitted a request to charge the jury that (1) the use of the medical reports as opposed to live testimony was allowed by statute and (2) adverse inferences could not be drawn against the plaintiffs because the physicians that authored the reports did not testify. In its charge to the jury, the court addressed whether inferences could be drawn because a party introduced reports in lieu of live testimony: “A number of reports and records, and written and documentary kinds of exhibits will be presented, they’ve been entered into evidence and you will have them with you in deliberations. Now, those should be evaluated by you with the same principles in mind. An exhibit or a report or a record should neither be especially believed, nor especially disbelieved merely because it is a report or an exhibit as opposed to oral testimony. There should be no inferences made for or against a party merely because reports are offered. And I’d add in that context that it is perfectly permissible to read from exhibits as has been done during the trial.”

Applying our standard of review, we conclude that when read as a whole, the court’s charge was correct in law and it was sufficient to guide the jury regarding the issue of the plaintiffs’ use of medical reports in lieu of live testimony. More specifically, the charge complied with the provisions of § 52-174 (b) in that it instructed the jury that “no inferences [could be] made for or against a party merely because reports are offered.”

The plaintiffs, however, argue that their proposed charge should have been given because the court’s charge did not instruct the jury that (1) the use of medical reports in lieu of medical testimony is permitted pursuant to § 52-174 (b) and (2) no adverse inferences could be drawn from the plaintiffs introduction of medical reports concerning causation rather than live medical testimony. “[A] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” (Internal quotation marks omitted.) Rossi v. Stanback, 36 Conn. App. 328, 332, 650 A.2d 920 (1994). Here, the substance of the requested charge was given because the court instructed the jury that no inferences could be drawn against aparty “merely because reports [were] offered.”

B

The plaintiffs next claim that the court improperly instructed the jury on the burden of proof for future noneconomic damages and that the juiy was misled by the instruction. Specifically, the plaintiffs argue that the court improperly instructed the jury that future noneconomic damages needed to be proven by a reasonable certainty rather than by a reasonable probability. We disagree.

The following additional facts are necessary for our resolution of this claim. The plaintiffs submitted a request to charge the jury for noneconomic damages. During its charge, the court instructed the jury that for it to give an award for future damages it “must be satisfied with a reasonable degree of certainty that the results for which [it was] attempting to compensate [Opotzner] are reasonably probable.” In a number of other parts of the charge, however, the court instructed the jury that the burden of proof for future noneconomic damages was a reasonable probability.

We agree with the plaintiffs’ assertion that the court’s use of the phrase reasonable degree of certainty in its instruction for future noneconomic damages was improper. See Cross v. Huttenlocher, 185 Conn. 390, 395, 440 A.2d 952 (1981) (burden of proof for future noneconomic damages is reasonable probability). We conclude, however, that the court’s use of the phrase did not mislead the jury. “[J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge.” (Internal quotation marks omitted.) Marshall v. O’Keefe, supra, 55 Conn. App. 804. When giving a lengthy jury instruction, the court may have a slip of the tongue. Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 787, 720 A.2d 242 (1998), citing State v. Delosantos, 13 Conn. App. 386, 391, 536 A.2d 609 (1988). The improper instruction is, however, “harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury was misled.” (Internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, supra, 787 (improper instruction harmless where court once incorrectly stated law of negligence and unfair trade practices but twice stated law correctly); see also State v. Delosantos, supra, 391. Here, the court cited an improper standard in one part of its charge. The court also repeatedly cited the proper standard during the rest of its charge. Examining the charge as a whole, we conclude that it is not reasonably possible that the jury was misled. The court’s improper charge was, therefore, harmless.

C

The plaintiffs also claim that the court improperly charged the jury regarding the credibility of witnesses. Specifically, the plaintiffs argue that the court improperly instructed the jury that if it found that a witness intentionally or wilfully lied about a fact, it could choose to disregard all of that witness’ testimony. We disagree.

In its charge, the court instructed the jury that it was the jury’s function to determine “[t]he credibility of [the] witnesses and the weight to be given their testimony . . . .” The court also instructed the juiy that if it concluded that “a witness has not only testified falsely, but has done so intentionally or wilfully, this fact casts a serious doubt on all testimony and you may, but don’t have to, conclude that you cannot accept any of the testimony. . . . And even if you should find that someone gave false testimony as to some matters, you may find that as to other matters the testimony was worthy of acceptance by you. It’s a matter for, you should regard all the testimony of a witness and believe those parts of it which you think in your exercise of judgment and discretion you should believe.”

Connecticut recognizes the maxim “falsus in uno, falsus in omnibus” as a permissive instruction. Raia v. Topehius, 165 Conn. 231, 234-35, 332 A.2d 93 (1973). The plaintiffs argue that where, as is the case here, the instruction is given, the jury must be instructed that it can disregard all of a witness’ testimony only if that witness has testified falsely as to a material issue.

The falsus in uno, falsus in omnibus instruction simply “deals with the weight and credibility of testimony .... It serves as an aid to the jury in weighing and sifting the evidence. ... It has long been an established legal principle in this state that the trier of fact has the right to accept part and disregard part of the testimony of a witness. . . . [I]t is for the jury as the trier of fact to determine the credibility of witnesses and what testimony they believe and what they consider is unworthy of credence. The approved instruction on the maxim, in its permissive form, is at best merely advisory. . . . Under the proper instruction the jury may or may not, as they see fit, reject all the testimony of the witness, and act on their own judgment as to the value and credibility of the testimony.” (Citations omitted; internal quotation marks omitted.) Id., 235-36. Under a general instruction concerning the credibility of the witnesses, however, the jury is also instructed that it may or may not, in its judgment, reject all of a witness’ testimony. See id., 236. “Instruction on the maxim is a matter resting in the sound discretion of the trial judge.” Id.

Here, the court advised the jury that if it found that a witness “gave false testimony . . . you should . . . believe those parts of it which you think in your exercise of judgment and discretion you should believe.” The court’s instruction was not an incorrect statement of the law, as “it is well established that the evaluation of a witness’ testimony and credibility is wholly within the province of the trier of fact.” Szczerkowski v. Karmelowicz, 60 Conn. App. 429, 434, 759 A.2d 1050 (2000). Furthermore, the court has broad discretion regarding the instruction on the falsus in uno, falsus in omnibus maxim. Raia v. Topehius, supra, 165 Conn. 236. Applying our standard of review, we conclude that the it is not reasonably possible that the jury was misled by the court’s instruction regarding the credibility of the witnesses and false testimony.

D

The plaintiffs’ final claim with respect to the court’s charge is that the court improperly instructed the jury on the issue of comparative negligence. Specifically, the plaintiffs argue that the court improperly failed to instruct the jury that any negligence on the part of Opotzner must have been the proximate cause of his injuries. We disagree.

The following facts are necessary for our resolution of this claim. The plaintiffs submitted a request to charge the jury on the issue of comparative negligence. Specifically, the plaintiffs requested that the court instruct the jury that to reduce the amount of the plaintiffs’ recovery, it must find that any comparative negligence on the part of Opotzner was the “proximate cause” of his injuries. In its instructions on comparative negligence, the court did not use the phrase proximate cause. Instead, the court used the phrase “substantial factor” to describe the standard of causation.

Our Supreme Court “has defined proximate cause as [a]n actual cause that is a substantial factor in the resulting harm . . . .” (Emphasis in original; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 606, 662 A.2d 753 (1995); see also Paige v. St. Andrew’s Roman Catholic Church Corp., 250 Conn. 14, 25, 734 A.2d 85 (1999) (test of proximate cause is whether defendant’s conduct is substantial factor in bringing about plaintiffs injuries).

Here, the court instructed the jury that it must determine whether Opotzner’s “negligence was a substantial factor” in bringing about the accident and his resulting injuries. “That the court did not adopt the [plaintiffs’] requests verbatim does not afford a ground for reversal so long as the jury [was] adequately apprised of the relevant issues.” Cross v. Huttenlocher, supra, 185 Conn. 394. Proximate cause is “ ‘[a]n actual cause that is a substantial factor in the resulting harm . . . Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 606. The court’s instruction was, therefore, sufficient to guide the jury in reaching a correct verdict. See Marshall v. O’Keefe, supra, 55 Conn. App. 805.

II

The plaintiffs next claim that the court abused its discretion by improperly redacting portions of a medical report from evidence. We disagree.

The following additional facts are necessary for our resolution of this claim. In January, 1997, the plaintiffs disclosed that they intended to call Joel S. Zaretzky, the plaintiffs’ family physician, as an expert witness. At the time of the disclosure, Zaretzky was to offer his opinion regarding Opotzner’s neck and arm pain, back pain, and muscle, ligament and joint injuries. Evidence was scheduled to begin in the trial on January 11, 1999. Zaretzky drafted a report dated January 6, 1999, and addressed it to the plaintiffs’ counsel. The report included, inter alia, Zaretzky’s opinion that Opotzner suffered from a traumatic brain injury, chronic pain and depression. The report also stated that there was a causal relationship between the accident and Opotzner’s medical conditions. On January 7, 1999, the plaintiffs’ counsel disclosed the report to counsel for the defendants. On January 11, 1999, the defendant Ford Motor Credit Company (Ford) filed a motion in limine to preclude the report from evidence on the grounds that the report was not filed in a timely manner in violation of Practice Book §§ 13-4 (4) and 13-15. Ford argued that it would be prejudiced by the introduction of the report at such a late date because there was no opportunity to depose Zaretzky and because Zaretzky would not be subject to cross-examination. The court denied Ford’s motion and allowed the report to be admitted. The court did, however, redact portions of the report in which Zaretzky offered his opinion rather than facts and those portions of the report that were more prejudicial than probative. Specifically, the court redacted Zaretzky’s opinion that Opotzner suffered from a traumatic brain injury, that he was suicidal and that he was a broken man.

Our standard of review is well established. “Generally, evidence is admissible to prove a material fact that is relevant to the cause of action alleged by the plaintiff. ... It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) Washington v. Christie, 58 Conn. App. 96, 99-100, 752 A.2d 1127, cert. denied, 254 Conn. 906, 755 A.2d 884 (2000).

Not only was Zaretzky’s report created and disclosed on the eve of trial, it contained new opinions regarding Opotzner’s medical conditions. The court exercised its discretion and redacted those portions of the report in which Zaretzky offered his opinions and those portions of the report that were more prejudicial than probative. In making discretionary evidentiary rulings, the court is charged with doing what is “right and equitable under the circumstances and the law . . . .” (Internal quotation marks omitted.) Id., 100. If the court had admitted the entire report on the eve of trial, the defendants would have been prejudiced because they did not have an opportunity to depose Zaretzky regarding his opinions. We, therefore, conclude that under the circumstances of the case the court did not abuse its discretion by redacting portions of the report.

Ill

The plaintiffs’ final claim is that the court improperly denied their motion to set aside the verdict because the jury could not reasonably have found that the plaintiffs were entitled to only $5400 in damages. We disagree.

Our standard of review of the trial court’s denial of a motion to set aside the verdict is clear. We review the court’s decision under an abuse of discretion standard. Card v. State, 57 Conn. App. 134, 138, 747 A.2d 32 (2000). More specifically, we “consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. . . . While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury. . . . Sheridan v. Desmond, 45 Conn. App. 686, 691, 697 A.2d 1162 (1997).” (Citations omitted; internal quotation marks omitted.) Sandella v. Dick Corp., 53 Conn. App. 213, 218-19, 729 A.2d 813, cert. denied, 249 Conn. 926, 733 A.2d 849 (1999).

Much of the dispute at trial centered on whether the accident caused Opotzner’s injuries. The plaintiffs introduced evidence, which if believed, could have supported a substantial damages award. The defendants, however, countered with evidence that tended to show that the accident was relatively minor, that Opotzner was not injured in the accident, that his claimed injuries were actually caused by preexisting medical conditions and that the accident did little to exacerbate those conditions. Where an issue is disputed, it is the jury’s job to weigh the evidence and to determine the credibility of conflicting testimony. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 58, 578 A.2d 1054 (1990). After a review of the evidence, we conclude that the jury reasonably could have concluded that the plaintiffs were entitled to only $5400 in damages. The court did not, therefore, abuse its discretion in denying the plaintiffs’ motion to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are husband and wife. Florence Opotzner claimed a loss of consortium as a result of the her husband’s injuries. Opotzner as used in this opinion refers only to Richard Opotzner.

       The other defendants are the Evangel Temple Church of God in Christ, Inc., and the Ford Motor Credit Company, which leased to the church the motor vehicle that was operated by Bass.

       General Statutes § 52-174 (b) provides in relevant part: “In all actions for the recovery of damages for personal injuries or death . . . [t]he use of [a medical] report or bill in lieu of the testimony of such treating physician . . . shall not give rise to any adverse inference concerning the testimony or lack of testimony of such treating physician . . . .”

       The plaintiffs’ request to charge was as follows: “A Connecticut statute provides that in all actions for the recovery of damages for personal injuries, any party offering in evidence a signed report of any treating physician may have the report admitted into evidence as a business entry. You will recall that a number of medical reports were entered into evidence and read to you. The use of any such report in lieu of the testimony of such treating physician is proper and allowed by statute. You cannot draw any inferences against the party offering such report into evidence concerning the fact that the doctor or doctors did not testify at the trial.”

       The plaintiffs’ request to charge for future noneconomic damages provided in relevant part: “As for these future damages, you must compensate him as best you can in your honest judgment for such results, in the nature of pain, suffering, incapacity and physical impairment, as are reasonably probable. You must be satisfied to a reasonable degree of probability that the results for which you are attempting to compensate him are reasonably probable. And insofar as you find that it is reasonably probable in the future that he will suffer pain, that he will undergo suffering of any kind, that he will suffer physical or mental impairment, you will attempt to compensate him for those things.”

       The court charged in relevant part: “Now, as to the future, as in the past, you must, as well as you can in your honest judgment, compensate the plaintiff for such results in the nature of pain, suffering, incapacity and physical impairment as are reasonably probable. It’s not a matter of speculation, it’s not a matter of mere guesswork, you must be satisfied with a reasonable degree of certainty that the results for which you are attempting to compensate him are reasonably probable. It is not a question which you are to determine based on a possibility of nonimprovement. It is a question you must, as well as you can, solve upon the basis of results which are reasonably probable to occur in the future. Insofar as you find that it is reasonably probable in the future that he will suffer pain or undergo any suffering that will be incapacitated from carrying on labors, that [he] will suffer physical or mental impairment, you will attempt to compensate him for those things.”

       “This maxim expresses the general principle oflaw that it is the prerogative of the jury to discredit the entire testimony of a witness if it determines the witness intentionally testified falsely in some respect. ” State v. Stevenson, 53 Conn. App. 551, 577 n.21, 733 A.2d 253, cert. denied, 250 Conn. 917, 734 A.2d 990 (1999), citing State v. Smith, 201 Conn. 659, 666, 519 A.2d 26 (1986).

       In support of their position, the plaintiffs cite a number of cases in which our appellate courts have discussed the maxim and have stated that it applies where a witness has testified falsely as to a material fact. See, e.g., Raia v. Topehius, supra, 165 Conn. 235; Rogers v. Northeast Utilities, 45 Conn. App. 23, 26, 692 A.2d 1301, cert. denied, 241 Conn. 924, 696 A.2d 1266 (1997); Young v. Falk, 34 Conn. App. 852, 855, 643 A.2d 1314 (1994).

       The plaintiffs’ request to charge was as follows: “The defendants have alleged in a special defense that any injuries or damages suffered by the plaintiff Richard Opotzner were caused in whole or in part by his own negligence or carelessness. More specifically, they have alleged that ‘he failed to properly and timely signal his intention to turn left on the roadway and/or in violation of § 14-242 of Connecticut General Statutes.’ If you find that the plaintiff Richard Opotzner was negligent in one or more of the ways alleged by the defendants, you should determine whether any such negligence was a causal factor in bringing about the injuries to Richard Opotzner, or whether such negligence was a mere condition and not a proximate cause of Richard Opotzner’s injuries. If you find that any negligence of Richard Opotzner was a condition and not a causal factor in bringing about his injuries, such negligence shall not bar Richard Opotzner’s recovery. You should not reduce the amount of any verdict rendered in favor of Richard Opotzner by any negligence that was a mere condition and not a proximate cause of his injuries.”

       The court instructed on comparative negligence in relevant part as follows: “As to the claim that . . . Opotzner was negligent and caused injuries . . . Bass has the burden of proof by a preponderance of the evidence. . . . [Y]ou would determine whether . . . Opotzner, or let me rephrase that, whether . . . Bass has proved that . . . Opotzner was negligent in one or more of the ways alleged, and if so, whether that negligence was a substantial factor in causing the accident.”

       “Practice Book § 13-4 (4) provides in relevant part: “[A]ny plaint iff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. . . .”

       Practice Book § 13-15 provides in relevant part: “If, subsequent to compliance with any request or order for discovery and prior to or during trial, a party discovers additional or new material or information previously requested and ordered subject to discovery or inspection or discovers that the prior compliance was totally or partially incorrect or, though correct when made, is no longer true and the circumstances are such that a failure to amend the compliance is in substance a knowing concealment, that party shall promptly notify the other party . . . .”


author: SHEA, J.

text:
    NICHOLAS PERNACCHIO v. CITY OF NEW HAVEN ET AL.
    (AC 20111)
    Lavery, C. X, and Mihalakos and Shea, Js.
    Argued January 18
    officially released May 29, 2001

      James L. Pomeranz, for the appellant (named defendant).

      Howard A. Lawrence, for the appellee (plaintiff).
   Opinion

SHEA, J.

The defendant city of New Haven appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) for the third district awarding to the plaintiff, Nicholas Pemac-chio, benefits provided pursuant to General Statutes § 7-433c (a) for firefighters who are disabled as a result of hypertension or heart disease. We affirm the decision of the board.

The commissioner held a formal hearing on the plaintiffs claim for heart and hypertension benefits provided by § 7-433c and made findings that may be briefly recited. The plaintiff began his career as a firefighter in June, 1970. Prior to being hired as a firefighter by the defendant, the plaintiff underwent a preemployment medical examination that did not reveal any evidence of hypertension. For approximately nineteen years prior to May 4, 1989, the plaintiff was employed by the defendant as a uniformed firefighter. On that date, he was serving as the commanding officer at the Woodward Avenue firehouse in New Haven when he experienced some dizziness, light-headedness and nausea at the firehouse. An emergency medical response unit was stationed at that firehouse, and a paramedic assigned to that unit responded to the plaintiffs request for assistance. The paramedic tested the plaintiffs blood pressure and obtained a reading of 184 over 124. He then called for the fire department’s emergency one unit so that the plaintiff could be transported to Yale-New Haven Hospital. The paramedic assigned to the emergency one unit remained in contact with the medical staff at that hospital while the plaintiff was being transported there. At the hospital, the plaintiff underwent a series of tests. The hospital released the plaintiff and submitted its bill of $215.15 for services on May 4,1989, which the defendant, as the employer, was obligated to pay. The plaintiff did not work on May 5 or 6, and he was not scheduled to work on May 7, 8, 9 or 10, 1989. On May 11, 1989, he filed a first report of injury for high blood pressure with the defendant’s workers’ compensation division. Such a report is required by General Statutes § 31-294b. The controller’s office for the defendant’s workers’ compensation division completed an accident investigation form concerning the May 4, 1989 incident, which stated that the plaintiff was treated by a physician for high blood pressure on that date.

Michael Parker, the plaintiffs primary care physician, indicated that in January, 1992, the plaintiff had mild borderline hypertension. In October, 1994, Parker began treating the plaintiffs hypertension with medication and has continued to do so. On June 26, 1996, the plaintiff filed a standard form for notice of a claim for compensation (form 30C) in which he stated that, while in the employ of the defendant’s fire service in May, 1989, he sustained injuries arising out of and in the course of his employment, and described his injuries as “medication, hypertension 7-433c.”

Generally, workers’ compensation benefits are not recoverable “unless a written notice of a claim for compensation is given within one year from the date of the accident . . . which caused the personal injury . . . .” General Statutes § 31-294c (a). The Workers’ Compensation Act, General Statutes § 31-275 et seq., however, provides an exception to that rule. Subsection (c) of § 31-294c provides that a “[fjailure to provide a notice of claim under subsection (a) of this section shall not bar maintenance of the proceedings if . . . within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in section 31-294d. . . ,” General Statutes § 31-294d (a) provides in relevant part: “The employer, as soon as he has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish any medical and surgical aid or hospital and nursing service, including medical rehabilitation services, as the physician or surgeon deems reasonable or necessary. . . .”

The commissioner concluded that the defendant had notice of the plaintiffs high blood pressure incident on May 4, 1989, through the investigative report that was prepared by the defendant’s workers’ compensation division for the defendant’s controller’s office. The commissioner also relied on the fact that the plaintiff “was transported to Yale-New Haven Hospital in a city emergency unit staffed with New Haven fire department paramedics who were in contact with hospital personnel so that the [plaintiffs] condition could be monitored on the way to the hospital.” Accordingly, the commissioner awarded benefits to the plaintiff.

The defendant does not dispute the commissioner’s finding that it had notice of the plaintiffs high blood pressure incident on May 4, 1989, but maintains that notice of high blood pressure, even such an abnormal reading as the plaintiffs, is not equivalent to notice of hypertension, which it did not receive until the plaintiff filed a form 30C on June 26, 1996, describing his injury as “medication, hypertension 7-433C.” Merriam-Webster’s Collegiate Dictionary, however, defines “hypertension” as abnormally high arterial blood pressure. Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993). Neither party has referred to any medical evidence submitted at the hearing before the commissioner that might elucidate the relationship between high blood pressure and hypertension. In January, 1992, Parker found that the plaintiff had mild borderline hypertension, but the doctor did not begin treating the plaintiff for hypertension with medication until October, 1994. The plaintiff filed his Form 30C, notifying the defendant of his hypertension on June 26, 1996, less than two years after beginning his treatment for hypertension.

On appeal to the board, the board affirmed the decision of the commissioner to award the plaintiff benefits pursuant to § 7-433c. The board recognized, as this court has held, that “[a] claimant for workers’ compensation benefits must provide both notice of injury; General Statutes § 31-294b . . . and notice of a claim. General Statutes § 31-294c . . . .” (Citations omitted.) Funaioli v. New London, 52 Conn. App. 194, 195, 726 A.2d 626 (1999) (first report of injury together with letter from claimant’s lawyer stating that claimant not requesting hearing “at this time” sufficient to satisfy notice of claim requirement of § 31-294c). “[T]he written notice intended is one which will reasonably inform the employer that the employee is claiming or proposes to claim compensation under the [Workers’ Compensation] Act.” Rehtarchik v. Hoyt-Messinger Corp., 118 Conn. 315, 317, 172 A. 353 (1934); Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 303, 620 A.2d 176, cert. denied, 225 Conn. 916, 623 A.2d 1024 (1993). “The purpose of § 31-294 [notice of injury and of claim for compensation], in particular, is to alert the employer to the fact that a person has sustained an injury that may be compensable . . . and that such person is claiming or proposes to claim compensation under the Act.” (Citation omitted; internal quotation marks omitted.) Black v. London & Egazarian Associates, Inc., supra, 303.

The board concluded, and we agree, that, “under the totality of the circumstances, the notice provided by the [plaintiff] constituted ‘substantial compliance’ with the notice content requirements of § 31-294c.” On May 11, 1989, upon returning to work after the May 4, 1989 incident, the plaintiff filed a first report of injury for high blood pressure -with the defendant’s workers’ compensation division. Furthermore, following the incident, the defendant’s fire department completed an accident investigation form that indicated that the plaintiff had been transported to the hospital for high blood pressure. The board stated that “[t]he employer’s investigation form amply supports the conclusion that the employer had notice of the [plaintiff’s] high blood pressure incident on May 4,1989, and, because the [plaintiff] was a uniformed firefighter who had passed his preem-ployment physical, the employer was thus on notice that he could file a hypertension claim under § 7-433c.”

The board also concluded that in addition to having notice pursuant to § 31-294c (a), the defendant had notice of the plaintiffs injury pursuant to the § 31-294c (c) exception, which does not bar a claim for benefits in the absence of written notice where “an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care . . . .” General Statutes § 31-294c (c). The exception in § 31-294c (c) to the notice requirement “is, no doubt, based upon the fact that if the employer furnishes medical treatment he must know that an injuiy has been suffered which at least may be the basis of such a claim.” Gesmundo v. Bush, 133 Conn. 607, 612, 53 A.2d 392 (1947).

In its brief to this court, the defendant argues that the plaintiffs transportation to the hospital by the defendant’s ambulance service, which was staffed by the defendant’s emergency medical technicians, who monitored the plaintiffs blood pressure and also remained in contact with the hospital until the ambulance arrived there, does not constitute providing “a competent physician or surgeon to attend the injured employee” or furnishing “any medical and surgical aid or hospital and nursing service ... as the physician or surgeon deems reasonable or necessary” as required by § 31-294d. We agree with the commissioner and the board that the defendant had notice of the blood pressure incident because the plaintiff was transported to the hospital in an ambulance staffed with the defendant’s fire department par amedics, who monitored his condition on the way to the hospital, and through the investigative report of the defendant’s workers’ compensation division. Whether or not the ride in the ambulance while attended by paramedics qualifies as a medical service, the commissioner also found that the plaintiff underwent a series of tests at the hospital for which the hospital submitted a bill of $215.15, an obligation of the defendant. It can hardly be disputed that the tests performed by the hospital were medical services.

We agree with the conclusion of the majority of the board that the exception to the requirement of § 31-294c (a) that a written notice of claim for compensation be given within one year from the date of the accident that caused the personal injury created by § 31-294c (c) is applicable because the defendant, immediately after the accident, furnished the plaintiff with medical and hospital care, as provided in § 31-294d. Accordingly, we affirm the decision of the board upholding the commissioner’s award of benefits to the plaintiff pursuant to § 7-433c.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The defendant city’s insurer, the other defendant in this action, is not involved in this appeal. We refer in this opinion to the defendant city of New Haven as the defendant.

       General Statutes § 7-433c (a) provides: “Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal ir\jury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.”

       General Statutes § 31~294b provides in relevant part: “Any employee who has sustained an injury in the course of his employment shall immediately report the injury to his employer, or some person representing his employer. . . .”

         General Statutes § 31-294c (c) provides in relevant part: “No defect or inaccuracy of notice of claim shall bar maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning the personal injury and was prejudiced by the defect or inaccuracy of the notice. Upon satisfactory showing of ignorance and prejudice, the employer shall receive allowance to the extent of the prejudice.”
      We note that the commissioner made no findings indicating that the defendant was “ignorant of the facts concerning the personal iryury and was prejudiced by the defect or inaccuracy of the notice,” as required by § 31-294c (c), to warrant an “allowance to the extent of the prejudice.” The defendant does not claim to have presented any evidence to support such an allowance.


author: LAVERY, C. J.

text:
    CLAUDETTE J. NARCISCO v. PAUL R. BROWN ET AL.
    (AC 20831)
    Lavery, C. J., and Schaller and Flynn, Js.
    Argued March 20
    officially released May 29, 2001

      Paul D. Buhl, for the appellants (defendants).

      Claudette J. Narcisco, the appellee (plaintiff), pro se, with whom, on the brief, was Kenneth M. Jacks.

   Opinion

LAVERY, C. J.

The defendants appeal from the judgment of the trial court in favor of the plaintiff on her two count complaint. We affirm the judgment of the trial court with the exception of the $625 in attorney’s fees that the court awarded to the plaintiff on the first count of her complaint.

The following facts are relevant to this appeal. The plaintiff, an attorney, brought this collection action in two counts. In the first count, the plaintiff alleged that in July, 1996, she was retained by the defendants to perform services in a real estate matter involving the Silver Meadow Condominium Association. The plaintiff alleged that the defendants agreed to pay her $100 per hour through December 31, 1997, and $110 per hour as of January 1, 1998. The plaintiff claimed that the defendants owed her the sum of $4845.70 for her work in that matter. In the second count, the plaintiff alleged that on or about July 28, 1997, the defendants retained her in a foreclosure action pursuant to a signed retainer agreement. The agreement provided that the defendants were to pay the plaintiff $100 per hour and to reimburse the plaintiff for any out of pocket costs. The agreement also provided that the defendants would be responsible for all costs of collection, attorney’s fees and statutory interest for unpaid balances. The plaintiff claimed that the defendants owed her the sum of $9863.47 for her work in that matter.

The plaintiff prevailed at trial and was awarded $4414.57 plus $625 in attorney’s fees on the first count, and $9663.47 plus $1450 in attorney’s fees on the second count. The defendants filed the present appeal.

I

The defendants challenge the court’s award of attorney’s fees on each count of the plaintiffs complaint.

The defendants first argue that the court improperly awarded attorney’s fees on count one, the Silver Meadow case, where there was no evidence of a contractual or statutory basis for such an award. We agree.

“In the United States, the general rule of law known as the American Rule is that a prevailing litigant ordinarily is not entitled to collect a reasonable attorney’s fee from the opposing party as part of his or her damages or costs. . . . There are certain exceptions to this rule. ... In the main, exceptions are based upon statutory or contract provisions authorizing the recovery of attorney’s fees by a prevailing litigant. . . . Attorney’s fees may also be awarded as a component of punitive damages.” (Citation omitted; internal quotation marks omitted.) Raph v. Vogeler, 45 Conn. App. 56, 65, 695 A.2d 1066, cert. denied, 241 Conn. 920, 696 A.2d 342 (1997). In the present case, no exception exists that would justify the award of attorney’s fees on count one. We, therefore, vacate that portion of the court’s award.

The defendants next argue that the court improperly awarded attorney’s fees to the plaintiff on the second count when there was no evidence of attorney’s fees presented to the court. The defendants, relying on Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 440 A.2d 306 (1982), argue that because the plaintiff failed to offer any evidence as to the amount of attorney’s fees incurred, the award of attorney’s fees was improper. We disagree.

The parties’ contract regarding the foreclosure matter specifically states: “It is further understood that if client defaults in payment of the fee and/or costs, he/she shall be responsible for all costs of collection and attorney’s fees incurred therein and statutory interest for unpaid balance(s).” The contract, therefore, authorizes an award of attorney’s fees. The court awarded $1450 to the plaintiff as attorney’s fees for her work in this matter. The court’s decision, however, does not indicate how it calculated this amount, and the defendants did not seek an articulation from the court in this regard.

It is the appellant’s duty to furnish this court with a record that is adequate to afford review. See Practice Book § 60-5. Without knowing the basis for the court’s award, any decision by this court respecting this claim would be entirely speculative. Alix v. Leech, 45 Conn. App. 1, 5, 692 A.2d 1309 (1997). In view of the inadequate record, we decline to review this claim.

II

The defendants raise several claims regarding the calculation of the plaintiffs fees. The defendants first claim that the court improperly awarded damages for hourly charges to the plaintiff for work done prior to trial in the foreclosure case. The defendants further claim that the court improperly found that the plaintiff had sustained her burden of proof regarding damages where she could not specify the amount on her billings that were improper charges for secretarial time. The defendants’ final claim is that the plaintiff already has been paid the full value of services rendered to the defendants.

As with the defendants’ claim regarding attorney’s fees on count two of the plaintiffs complaint, the record is inadequate to review these claims. The court’s memorandum of decision is silent regarding its interpretation of the fee agreement in the foreclosure case, and, absent an articulation of the court’s reasoning, we are unable to review the claim that the plaintiff billed for work done prior to that action. Similarly, although the court found that it was improper for the plaintiff to bill at her own hourly rate when she performed a secretarial task, the court made no findings regarding a secretary billing for his or her time at the plaintiffs hourly rate. We are, therefore, unable to review that claim.

The judgment is reversed only as to the award of attorney’s fees on count one and the case is remanded with direction to render judgment as on file except as modified to eliminate the award of attorney’s fees on count one.

In this opinion the other judges concurred.

       Count one of the plaintiffs complaint is directed against Paul R. Brown, doing business as Greentrees, LLC, and/or Greentrees Development, LLC, and/or Greentrees, Ltd., and Decorator Telephone Company, Inc. Count two is directed against Paul R. Brown and Decorator Telephone Company, Inc. The present appeal was filed by Paul R. Brown, Greentrees Development, LLC, and Decorator Telephones, Inc. fifteen per cent of the amount of any judgment which is entered.” General Statutes § 42-150aa.

       In so holding, we note the defendants’ reliance on General Statutes § 42-150aa, entitled “Attorney’s fees limited in actions on consumer contracts or leases.” That statute provides: “(a) The holder of any contract or lease entered into on or before October 1, 1979, the subject of which is money, property or services intended to be used primarily for personal, family or household purposes and which contains a provision for payment of attorney’s fees of a creditor, seller or lessor, shall not receive, claim or collect any paymentfor attorney’s fees (1) for an attorney who is asalaried employee of such holder or (2) prior to the commencement of a lawsuit.
      “(b) If a lawsuit in which money damages are claimed is commenced by an attorney who is not a salaried employee of the holder of a contract or lease subject to the provisions of this section, such holder may receive or collect attorney’s fees, if not otherwise prohibited by law, of not more than

       The court credited the balance due on the foreclosure case by $200 as a result of this billing.

       The defendants’ last claim is that the plaintiff already has been paid the full value of services rendered to the defendants. Specifically, the defendants argue that the plaintiff was paid for 60 percent of the invoices that she submitted and that, coupled with the plaintiffs improper billing, the plaintiff has failed to establish that she was entitled to any more than she received. Our conclusion that there is an inadequate record to review the defendants’ claim of improper billing is dispositive of this claim as well.