author: FLYNN, J.

text:
    MARK FILIPPI v. JAMES F. SULLIVAN, COMMISSIONER OF TRANSPORTATION, ET AL.
    (AC 23136)
    Dranginis, Flynn and DiPentima, Js.

      Argued June 9
    officially released August 19, 2003

      Paul T. Nowosadko, with whom, on the brief, was Lorinda S. Coon, for the appellant (named defendant).

      Michael J. Walsh, with whom, on the brief, was Ann Walsh Henderson, for the appellee (plaintiff).
   Opinion

FLYNN, J.

The defendant James F. Sullivan, commissioner of transportation (commissioner), appeals from the trial court’s denial of his motion to dismiss the plaintiffs highway defect claim made pursuant to General Statutes § 13a-144. On appeal, the commissioner claims that the written statutory notice to him was patently defective, which deprived the court of subject matter jurisdiction. We reverse the trial court’s denial of the motion to dismiss and remand the case with direction to dismiss the action.

The following procedural history, allegations in the pleadings and uncontested factual averments in the commissioner’s affidavits accompanying his motion are relevant to our review. On March 15, 2000, the plaintiff was involved in a traffic accident while driving in a northerly direction on Interstate 95 between exits seventy-two and seventy-three. Department of transportation crews were performing roadwork and had closed the right lane on the northbound side between exits seventy-three and seventy-five. Although signs indicating the lane closure had been placed between exits seventy-three and seventy-six, a resulting traffic jam extended beyond the sign pattern, and the plaintiff was injured in that unsigned area.

As the plaintiff traveled along the highway, he drove around a curve and came upon the stopped traffic. The vehicle traveling behind him was unable to stop in time and violently struck the rear end of the plaintiffs vehicle causing the plaintiffs vehicle to collide with the vehicle in front of him. As a result of that collision, the plaintiff was left comatose for several weeks and suffered several other injuries, including a ruptured aorta and multiple spinal fractures, which have left the plaintiff disabled and wheelchair bound.

On June 1, 2000, pursuant to § 13a-144, the plaintiff filed written notice with the commissioner of transportation of his intent to pursue a defective highway claim. On January 25, 2001, the plaintiff commenced an action against the commissioner. On January 29, 2002, the commissioner filed a motion to dismiss on the ground that the court lacked subject matter jurisdiction due to the plaintiffs defective notice, arguing that the notice was patently defective in that it was not sufficiently accurate because it named two locations, 1.6 miles apart, as the place of injury. The court heard oral argument and denied the motion from the bench on May 13, 2002, holding that the statutory notice was “sufficient.”

The commissioner now appeals and claims that the court improperly denied the motion to dismiss. The commissioner argues that the statutory notice given by the plaintiff was patently defective because the place of injury described was actually two locations, 1.6 miles apart. Since the issue on appeal is a question of law, our review is plenary. See Oberlander v. Sullivan, 70 Conn. App. 741, 746, 799 A.2d 1114, cert. denied, 261 Conn. 924, 806 A.2d 1061 (2002).

“It is well established . . . that the state is immune from suit unless it consents to be sued by . . . waiving sovereign immunity . . . .” (Internal quotation marks omitted.) Bresnan v. Frankel, 224 Conn. 23, 25-26, 615 A.2d 1040 (1992). Section 13a-144 creates such a waiver and provides in relevant part: “No . . . action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. . . .” (Emphasis added.) In our opinion, the statutory phrase, “place of its occurrence,” refers to the prior phrase, “such injury,” and therefore, it is the place of injury that must be described in the notice required by statute.

This statute provides a limited waiver of sovereign immunity and, as a break from common law, is to be strictly construed. Lussier v. Dept. of Transportation, 228 Conn. 343, 349, 636 A.2d 808 (1994). A highway defect claim varies from a common-law negligence case. The plaintiff is required by statute to give the commissioner written notice of the time, place of injury, defect and description of the injuries incurred so as to furnish the commissioner with sufficient information to permit him to make a timely investigation of the facts. Id., 357.

Our review, in this case, requires that we analyze only one element of a highway defect claim, namely, the statutory written notice provision. “The notice requirement contained in § 13a-144 is a condition precedent which, if not met, will prevent the destruction of sovereign immunity.” Id., 354. The statutory written notice must be adequately specific and accurate so as to give the commissioner “sufficient information as to the injury and the cause thereof and the time and place of its occurrence to permit the commissioner to gather information about the case intelligently.” Id., 357. “The purpose of the requirement of notice is to furnish the party against whom a claim was to be made such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection.” (Internal quotation marks omitted.) Id., 354.

“Ordinarily, the question of the adequacy of notice is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case. . . . Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice patently meets or fails to meet . . . the statutory requirements.” (Citations omitted; internal quotation marks omitted.) Zotta v. Burns, 8 Conn. App. 169, 173, 511 A.2d 373 (1986).

There are two categories of cases in which the written notice is patently defective because of a problem with the description of the place of injury. The first category consists of situations where a court has found that the notice stated a location different from the place of actual injury. See Serrano v. Burns, 70 Conn. App. 21, 26-27, 796 A.2d 1258, cert. denied, 261 Conn. 932, 806 A.2d 1066 (2002); see also Ozmun v. Burns, 18 Conn. App. 677, 679 n.3, 680-81, 559 A.2d 1143 (1989) (notice describing location using “north” in place of “south” and “east” in place of “west”); Zotta v. Burns, supra, 8 Conn. App. 170 (location identified as “route 6 in Bolton” and accident occurred on “Camp Meeting Road in Bolton”). The second category consists of situations where the “description is so vague in its breadth that the defendant could not be reasonably expected to make a timely investigation based on the information provided.” Serrano v. Burns, supra, 27; see also Bresnan v. Frankel, supra, 224 Conn. 25-26 (location identified as “Route 14A, Plainfield, Connecticut,” without any further detail and where Route 14A was six mile stretch of road); Schaap v. Meriden, 139 Conn. 254, 256, 93 A.2d 152 (1952) (location identified as “near the edge of a manhole cover” without identifying particular one of numerous manhole covérs); Murray v. Commissioner of Transportation, 31 Conn. App. 752, 753, 626 A.2d 1328 (1993) (location identified simply as “the northern curbline of Route 22,” a public highway running through North Haven).

In this case, the plaintiffs notice described the place of injury as “in the northbound lane of 1-95, between Exits 72 and 73. More specifically, the injury occurred at a point in the roadway approximately 1/4 of a mile south of Exit 73 exit ramp, and approximately one tenth of a mile north of Exit 72 exit ramp.” Frederick Atwell, a planner for the department of transportation, supplied an affidavit that was attached to the commissioner’s motion to dismiss. This uncontradicted affidavit brought to the court’s attention the fact that the place of injury described in the notice was not one place but actually two, and those locations were 1.6 miles apart.

We conclude that the description of the plaintiff’s place of injury in his written statutory notice does not describe the wrong place of injury because it is undisputed that the collision that caused it did occur somewhere within the 1.6 miles of highway. However, the location of the place of injury as described is too vague because its 1.6 mile length does not allow the commissioner any reasonable opportunity to investigate. It falls into the second category of patently defective descriptions of places of injury of which we spoke in Serrano v. Burns, supra, 70 Conn. App. 21, in that it is so vague in its breadth that the commissioner could not be expected reasonably to make a timely investigation based on the information provided.

The plaintiff does not make any further statements regarding the place of injury, and there was only a slight clarification of the location when the notice mentioned that the accident occurred after a blind curve somewhere within the 1.6 miles. This additional information did not clarify the geographic location of the place of injury. According to the Atwell affidavit, there is more than one curve in the 1.6 mile distance. He averred in his affidavit that the area between the two points consists of “various terrains including grades, curves, slopes and straight roadway.” (Emphasis added.) There is no further description of which of these curves was involved. This defective notice cannot be saved from its patent infirmity as was the notice in Lussier v. Dept. of Transportation, supra, 228 Conn. 357, because there was only one place where the Shunock River crossed the highway, and thus the place of injury was deemed to be described adequately.

We conclude that nothing in the statutory written notice or the attached police report would allow the commissioner to locate the accident geographically. There was no mention in the written statutory notice of the direction in which the road curved or which exit was nearer to the accident. The plaintiffs notice failed to provide the location of the injury with reasonable definiteness and lacked the specificity necessary to permit the commissioner to gather information to protect the state’s interests. Therefore, we conclude that the statutory notice was patently defective.

The commissioner argues that because the written notice was patently defective, the court improperly denied the motion to dismiss. In ruling on whether a complaint survives a motion to dismiss, we must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the plaintiff. Oberlander v. Sullivan, supra, 70 Conn. App. 746. Also, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be made. Olympia Mortgage Corp. v. Klein, 61 Conn. App. 305, 307, 763 A.2d 1055 (2001). As previously explained, our review of this issue is plenary. Oberlander v. Sullivan, supra, 746.

When the conditions of the notice required by statute are not met, no cause of action exists. Bresnan v. Frankel, supra, 224 Conn. 26. “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” (Internal quotation marks omitted.) Oberlander v. Sullivan, supra, 70 Conn. App. 746. Because we have determined that the plaintiffs notice was patently defective, we also conclude that the court had no subject matter jurisdiction and improperly denied the motion to dismiss.

The commissioner disputes some of the court’s stated reasons for finding that the plaintiffs statutory notice was adequate. He calls our attention first to the court’s consideration of the plaintiffs comatose condition for several weeks after the collision. We agree with the commissioner that, although motivated by humane concern, the court improperly took into account the plaintiffs medical condition when determining the adequacy of the statutory notice. The court stated that it “should take into consideration the condition of the plaintiff as far as being able to assist in giving notice in this case.” We understand that death or injury may make precision in the statutory notice difficult, and the court acted out of humane considerations. The potential difficulty of obtaining information regarding the place of injury is the reason the legal standard is not the exact geodetic place of injury, but the description simply must “provide sufficient information ... to permit the commissioner to gather information about the case intelligently.” Lussier v. Dept. of Transportation, supra, 228 Conn. 357. However, that standard is not satisfied when the one place of injury is described as two distinct places. Despite the plaintiffs serious injuries, we are constrained by our Supreme Court’s decision in Lussier, which held that “[njotices of claim should not be judged by different standards depending upon the extent of the injury.” Id., 355-56.

As an additional argument, the plaintiff points out that the state police report on which he relied was mistaken in setting the points describing the place of injury, and the court stated that the plaintiff should be allowed to rely on information recorded by the state police, another state agency. The court explained that “[ijt’s clear the police did an investigation, that counsel relied on the statement of the police, the department of transportation is a state agency, so I don’t see why the plaintiff could not rely on that report.” We do not agree that the plaintiff can rely on a state agency’s incorrect information in a highway defect claim when the accuracy of the information can be verified simply by driving between exits seventy-two and seventy-three and checking an odometer.

This theory effectively would apply equitable estoppel and bar the state from claiming that the statutory notice was defective because another state agency supplied the inaccurate information. In this case, the police report stated that the collision occurred at one purported specific area of the highway, and it was later discovered that the police report measurements actually described two distinct points, 1.6 miles apart.

It is the plaintiffs responsibility to provide sufficient written notice under § 13a-144. See Bresnan v. Frankel, supra, 224 Conn. 27. In a situation such as this one, estoppel can be applied only when (1) the state did or said something calculated or intended to induce the other party to believe certain facts exist and to act on those facts, (2) the other party justifiably acts in reliance on those facts to its detriment, (3) the state acted through an authorized agent and special circumstances exist which make it highly inequitable or oppressive to enforce the applicable law and (4) the party claiming estoppel established that it exercised due diligence and that it not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge. See Zotta v. Burns, supra, 8 Conn. App. 175. No evidence was presented on this fourth issue. There is nothing in the record before us, therefore, from which it might be inferred that the plaintiff or his agents who gave the notice had no convenient means of acquiring the correct knowledge, and, therefore, the fourth element could not be satisfied.

The commissioner also contends that the court relaxed the legal standard for such ’written notices. The plaintiff did not urge that there should be a relaxed standard employed on the basis of the nature of the claimed defect, but instead maintained that the written notice given was sufficient to give the commissioner a reasonable guide. The court stated that “[t]his isn’t a situation where there’s a pothole at a specific spot on the road. This is a case where there were signs and traffic was backed up, and I don’t think the exact location of the injury is that necessary to determine what happened in this case . . . .”

Although the cause of the injury is important, § 13a-144 requires that the place of injury be described in the written notice. Section 13a-144 is to be strictly construed. Lussier v. Dept. of Transportation, supra, 228 Conn. 349. The statute expressly states that the place of injury must be included in the written notice. The plaintiff never alleged that he was dragged or pushed for over a mile and a half causing injury. The severe injuries he described in his complaint occurred in one place on the highway where he was struck from behind by another vehicle and he, in turn, struck the vehicle in front of him. The erroneous description of the two points did not sufficiently describe that one place of injury.

As interpreted in our case law, § 13a-144 requires that a plaintiff must prove that the defect in the highway of which he complains was the sole proximate cause of his injury. See Ormsby v. Frankel, 255 Conn. 670, 676, 768 A.2d 441 (2001). A more definite location of the place of injury was important to the commissioner’s case if he were to act in his own interest to disprove that his negligence was the sole proximate cause of the accident. The plaintiff was struck from behind by another vehicle causing his vehicle to strike another proceeding in front of him. We, therefore, do not agree that the nature of the defect, lack of signage warning of the impending lane closure, permitted a relaxed standard. To safeguard his interest, the commissioner was entitled to investigate the location of the injury. We conclude that the plaintiffs written statutory notice was patently defective, and the court improperly denied the commissioner’s motion to dismiss.

The denial of the defendant’s motion to dismiss is reversed and the case is remanded with direction to render judgment dismissing the complaint against the commissioner.

In this opinion the other judges concurred.

       Asplundh Tree Expert Company, also a defendant in this case, did not join this appeal.

       The denial of a motion to dismiss generally is considered to be interlocutory in nature and, therefore, not a final judgment for the purpose of an appeal. Our Supreme Court has held, however, that when the basis of the motion to dismiss is a colorable claim of sovereign immunity, a denial of that, motion is a final judgment from which an appeal may lie. Shay v. Rossi, 253 Conn. 134, 164, 749 A.2d 1147 (2000) (en banc).

       The commissioner also argues that the court improperly found that the plaintiffs statutory notice was sufficient as a matter of law and that the determination of sufficiency was properly a jury issue. Because the commissioner’s other claim is dispositive, we do not address this additional claim.

       The plaintiffs statutory notice of highway defect claim, pursuant to § 13a-144, provided in relevant part:
      “I Da te of Injury The injury occurred on March 15,2000, at approximately 1:00 p.m.
      “II. Place of Injury The injury occurred while [the plaintiff] was traveling in a vehicle in the northbound lane of 1-95, between exits 72 and 73. More specifically, the injury occurred at a point in the roadway approximately 1/4 of a mile south of exit 73 exit ramp, and approximately 1/10 of a mile north of exit 72 exit ramp.
      “HI. General Description of Cause of Injury On the date in question, [department of transportation] construction crews were working on the highway north of Exit 73 extending to Exit 75. The DOT construction crews consisted of three trucks and approximately seven laborers. Eight signs indicating right lane closure were in place between Exit 73 and Exit 76.
      “Backed-up traffic, however, at 13:00 hours in the afternoon in question extended fa.r behind the sign pattern. Moreover, the area where the subject accident occurred involves a stretch of slopes, grades and curves. As indicated in the attached police reports, when the operator which struck the plaintiffs vehicle ‘negotiated a graded blind curve just (prior to the accident location), he literally ran into stopped traffic at heavy legal highway speed— probably 65-79 miles per hour. There were no signs posted prior to the impact warning traffic of the construction zone — traffic had backed up and was congested almost [one-tenth] of a mile south of any visible highway construction signs.’ ....
      “Specifically, the DOT construction workers had created a defective condition on the highway, which included, but is not limited to, a condition such that vehicles traveling at the legal highway speed were forced to transverse an area of slopes, grades and curves, and then immediately come upon stopped traffic, thereby causing the severe and serious collision, which resulted in the plaintiffs injuries.
      “IV. Nature of Injuries As a result of being rear ended by a vehicle being operated by Gerald C. Fragione . . . the [plaintiff] sustained serious and life threatening injuries. More specifically, among the injuries he received was a ruptured aorta as well as several serious spinal injuries, including fractured vertebrae and herniated discs. [The plaintiff] was transported by Life Star Helicopter to Hartford Hospital, and remained a patient for a period of several weeks, during which time he underwent surgery for repair of the aorta, as well as spinal surgery, involving the placement of rods and pins in his back. Additionally, [the plaintiff] sustained several other serious injuries, including contusions, lacerations, ligament sprains and related injuries as a result of the collision.”


source: Caselaw Access Project

author: DIPENTIMA, J.

license: Public Domain

text:
    ALFRED BAIN ET AL. v. INLAND WETLANDS COMMISSION OF THE TOWN OF OXFORD ET AL.
    (AC 23240)
    Foti, DiPentima and Peters, Js.
    Argued May 29
    officially released August 19, 2003

      Ramon S. Sous, for the appellants (plaintiffs).

      George R. Temple, for the appellee (named defendant).

      Patricia A. Horgan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Kimberly P. Massicotte, assistant attorney general, for the appellee (defendant commissioner of environmental protection).
   Opinion

DIPENTIMA, J.

The plaintiffs, Alfred Bain and Nola Bain, appeal from the judgment of the trial court dismissing their appeal from the denial of an application for a wetlands and watercourses permit in connection with the proposed construction of a residential home, including a driveway and septic system, in the town of Oxford. The plaintiffs contend that the court improperly dismissed their appeal in finding that the evidence supported the conclusion of the defendant inland wetlands commission (commission) that activities taking place outside of the wetlands area had the potential to impact or affect the wetlands. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs’ appeal. On April 26, 1999, the plaintiffs submitted an application to the commission for permission to build a two bedroom residential home, a driveway and a septic system. Although the lot size spans 2.13 acres (92,781 square feet), only 0.76 acres (32,953 square feet) encompass wetlands. A portion of the proposed construction was for a driveway and piping for the septic system, which would cross 267 square feet of wetlands. After several meetings, the commission denied the application for a permit on October 25, 1999.

On November 24, 1999, the plaintiffs appealed from the commission’s decision to the Superior Court, alleging that the commission had acted unlawfully and arbitrarily, and that it had abused its discretion. Furthermore, the plaintiffs claimed that there was not substantial evidence in the record to support the denial. Finally, the plaintiffs claimed that the commission’s reasons did not demonstrate that there would be a significant impact on the wetlands.

In its April 24, 2002 decision dismissing the appeal, the court stated that the commission had set forth a recitation of reasons for the denial of the application: “Application for July 6, 1999 site plan denial by reason of: After many inspections by individual commission members, and consideration for applicant’s submitted material, the commission had reservations concerning the suitability of the site because of the extremely wet conditions.

“In fairness to you, the applicant, the Commission voted to retain ESM Associates, Inc., of Danbury, to render their findings. Their October 12, 1999 report is incorporated in your file. These findings were reviewed, and found to reinforce the Commissioner’s Opinions.

“Given the obvious and significant negative features of the site, including, but not limited to, the flat topography and the wetlands on the proposed site, the fill of wetlands proposed can be expected to exacerbate flooding on and off the property.

“No conservation easement nor compensation for the destroyed wetlands were proposed.

“The July 6,1999 site plan necessitates both driveway and septic to cross substantial wetlands.

“Given the presence of ponded water even in upland areas, grading outside of wetlands is likely to also exacerbate flooding both at site and to adjacent properties.

“Curtain drains have significant potential for not functioning for periods of time, especially during heavy rains, and/or with snow cover.”

“The report of the soil engineers hired by the Commission noted a dense layer of compact soil which retarded infiltration and contributed to surface wetness. This report also concluded that curtain drains as proposed by the plaintiffs would be unsuitable due to the evenness of the terrain or lack of slope. This would contribute to run-off into adjacent wetlands. The engineers also noted that this type of soil has a tendency to be damp due to moderate permeability with the under soil having very slow permeability. Further, the effect on surrounding wetlands on and off the property could be potentially harmful with the use of pesticides and fertilizer customarily utilized by homeowners for lawn installation and maintenance.”

The court concluded: “[T]he commission in this instance spent much time and devoted much consideration to the conditions surrounding this application and the impact upon the delineated wetlands and land proximate to it, and concluded that the proposed construction would negatively affect those areas. In the court’s view, the record discloses substantial evidence to support the agency’s decision.” The plaintiffs appealed from the court’s decision on July 9, 2002.

We begin by setting forth the standard of review that will govern our analysis of the issues presented. “In challenging an administrative agency action, the plaintiff has the burden of proof. . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency’s decision. . . .

“In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency’s determination if an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied injudicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . .” (Internal quotation marks omitted.) Tarullo v. Inland Wetlands & Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003); Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540-42, 525 A.2d 940 (1987). The duty of a reviewing court in a wetlands appeal is to uphold the agency’s action unless the action was “arbitrary, illegal or not reasonably supported by the evidence.” (Internal quotation marks omitted.) Keiser v. Conservation Commission, 41 Conn. App. 39, 41, 674 A.2d 439 (1996). “We, in turn, review the action of the trial court.” (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, 53 Conn. App. 636, 640, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999).

Although the plaintiffs raise only one issue on appeal to this court, their brief contains several discrete arguments. We will address each argument in turn. The plaintiffs claim that the commission based the denial of their application on proposed activities occurring outside the delineated wetlands and, further, that there was no evidence that those activities were “likely” to impact or to affect the wetlands area as set forth in General Statutes § 22a-42a (f). Section 22a-42a (f) provides that a municipal inland wetlands agency may regulate activities within areas around wetlands or watercourses if those activities are likely to impact or affect wetlands or watercourses. “This statutory language effectively codifies our [Supreme Court’s] previous statement in the seminal case of Aaron v. Conservation Commission, [183 Conn. 532, 542, 441 A.2d 30 (1981)] wherein [the court] held that activity that occurs in nonwetlands areas, but that affects wetlands areas, falls within the scope of regulated activity.” (Internal quotation marks omitted.) Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 197-98, 779 A.2d 134 (2001); Ahearn v. Inland Wetlands Agency-Conservation Commission, 34 Conn. App. 385, 391, 641 A.2d 812, cert. denied, 230 Conn. 911, 645 A.2d 1015 (1994).

We agree with the court that the record before the commission contained substantial evidence to support the commission’s decision and demonstrated that activities on nonwetlands would likely impact or affect the wetlands. The minutes of the meetings held by the commission concerning the application supported the commission’s denial of the application. According to the minutes of the April 26, 1999 meeting and a written report dated May 20, 1999, the commission, during site visits, indicated that 90 percent of the property had water on it and that “much wet was found — scattered throughout the lot.”

During the commission’s meeting on August 9, 1999, the commission members discussed whether the proposed house would encroach on approximately 870 square feet of buffer area and what the limit of activity in the buffer zone would be. Also on that date, the commission read into the record a site inspection report indicating the potential dangers of flooding resulting from fill on the lot, flooding onto neighboring property and seasonal flooding. Finally, during the meeting on October 25, 1999, while the plaintiffs’ engineer assured the commission that he had no fear of those areas flooding or the drain flow changing after construction, the commission referred to the October 12,1999 report by Environmental Science Management Associates, the soil scientist hired by the commission to analyze the subject property, which detailed the potential impact on the wetlands.

As previously discussed, the commission provided a number of reasons that supported its decision to deny the plaintiffs’ application. The commission disclosed that there would be a direct environmental impact on the delineated wetlands, i.e., the septic pipe and driveway, as one of several reasons for the denial of the application, and that reason was supported by evidence in the record. See General Statutes § 22a-38 (13); see Queach Corp. v. Inland Wetlands Commission, supra, 258 Conn. 198; Forsell v. Conservation Commission, 43 Conn. App. 239, 247-48, 682 A.2d 595 (1996). The commission, furthermore, considered evidence in the record regarding activity on nonwetlands and its impact on the wetlands resources.

“The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.” (Emphasis added.) Huck v. Inland Wetlands & Watercourses Agency, supra, 203 Conn. 539-40. Furthermore, General Statutes § 22a-41 (b) “does not require an inland wetlands agency explicitly to specify the factors that it has utilized in its evaluation of an application. [The commission will have performed its duties] [a]s long as a search of the entire record reveals the basis for the agency’s decision and supports reasonable inferences that the agency adhered to the factors enumerated in § 22a-41 (a) . . . .” Samperi v. Inland Wetlands Agency, 226 Conn. 579, 598, 628 A.2d 1286 (1993). The record in this case indicated that the commission considered the statutory criteria specified in § 22a-41 (a) and how “likely” an impact would be. The commission found that those activities would directly or “likely” have an impact on the wetlands.

The record reveals that wetlands are in close proximity to where the plaintiffs would like to locate the house and septic system. The court noted the experts’ opinions and the commissioners’ observations. It is clear, after reviewing the record and the soil scientist’s report, that there was substantial evidence to support the finding that the nonwetlands area activities would likely impact or affect the wetlands. For example, the commission deliberations centered on the impact of flooding on and off the property and its impact on future owners and neighbors. The soil scientist’s report concluded that the proposed activities would encroach on surrounding wetlands and result in a decline in the functional value of the wetlands. In light of that evidence, we cannot conclude that the commission improperly considered the environmental impact criteria pursuant to §§ 22a-41 and 22a-42a (f).

The plaintiffs also argue that the commission did not present expert evidence to contradict the testimony of the plaintiffs’ expert. We are not convinced. “[A] lay commission acts without substantial evidence when it relies on its own knowledge and experience concerning technically complex issues .... [W]e recognize that an administrative agency is not required to believe any of the witnesses, including expert witnesses . . . [but] it must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge.” (Citations omitted; internal quotation marks omitted.) Tanner v. Conservation Commission, 15 Conn. App. 336, 340-41, 544 A.2d 258 (1988) . “Knowledge obtained through personal observations of the locus may properly be considered by the agency in arriving at reasons given for its denial.” (Internal quotation marks omitted.) Kaeser v. Conservation Commission, 20 Conn. App. 309, 316, 567 A.2d 383 (1989) .

The plaintiffs rely on Milardo v. Inland Wetlands Commission, 27 Conn. App. 214, 605 A.2d 869 (1992), in which this court affirmed the trial court’s decision to reverse the inland wetlands commission’s denial of the plaintiffs permit application because the record lacked substantial evidence to support the commission’s decision. Id., 215. In that case, the trial court noted that the transcripts of the public hearings failed to identify the speakers, were replete with omissions and, although three members had visited the site, any concerns the members had were not specifically related to the plaintiffs proposal, nor were there any findings in the record concerning the visit. Id., 218-19. The town engineer stated that the proposal appeared to be satisfactory. Id., 219. One member voiced concerns for the wetlands crossings and the possible damage, but there was no listing of what those concerns were, what damage might occur or the basis for either. Id., 219-20. The record also did not contain findings concerning the on-site inspections. Id., 220.

Unlike the situation in Milardo, however, the commission in this case documented all of its site visits and concerns, and the bases for those concerns. The commission, further, provided a litany of reasons for the application’s denial. The commission, additionally, had its expert inspect the property and submit a report. It was within the discretion of the commission to determine which expert’s opinion to rely on and whether the commission should consider its observations from its site visits. See Samperi v. Inland Wetlands Agency, supra, 226 Conn. 597-99; Huck v. Inland Wetlands & Watercourses Agency, supra, 203 Conn. 540-42; but see Feinson v. Conservation Commission, 180 Conn. 421, 428-29, 429 A.2d 910 (1980).

After our review of the record, we find that the commission provided its reasons for denying the plaintiffs’ application for a permit and that those reasons were supported by substantial evidence. Nothing in the record suggests that the commission’s decision was reached arbitrarily or was fundamentally unfair. The court, in reviewing the record, acted properly and in accordance with applicable law.

The judgment is affirmed.

In this opinion the other judges concurred.

       The commissioner of environmental protection joined as a party defendant pursuant to General Statutes § 22a-43 (a). The commissioner was not a party to any of the proceedings before the commission or the denial of the plaintiffs’ application.

       The court acknowledged counsels’ stipulation that the plaintiffs were aggrieved. Although a court cannot confer standing on the basis of a stipulation of aggrievement, it is clear from the record that the plaintiffs were aggrieved. See General Statutes § 22a-43 (a); Fleet National Bank v. Nazareth, 75 Conn. App. 791, 793, 818 A.2d 69 (2003) (‘“parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent’ ”).

       We note that although the court participated in a site walk, the court could rely only on the evidence that was before the commission in rendering its decision. Thus, the court’s observations from the site walk conducted on March 22, 2002, could be used only to confirm the evidence already presented in the record. In its memorandum of decision, the court stated that it had “observed that the terrain of the parcel is very flat with the exception of the area where the dwelling is proposed to be constructed, which is slightly elevated. The court also noticed areas of standing water and dampness under foot.”

       The plaintiffs assert a claim of unconstitutional taking of their property. That claim, however, was first presented in the plaintiffs’ reply brief and was not before the trial court. The plaintiffs agreed to abandon that issue at oral argument.

       Primarily, the commission relied on the following passages from the report: “The limited upland area surrounding the proposed residence almost guarantees further encroachment into the surrounding wetlands by the future property dwellers since useable space is severely limited. Water, quality impacts associated with the household use of fertilizer, pesticides, and herbicides could prove a concern, since the wet conditions encountered on the site for much of the year promote the mobility of such constituents. The proposed residential development of the property would further fragment the wetland, resulting in additional decline in its functional values.
      “While most septic system leaching fields installed in areas of seasonal high ground water employ some type of up-gradient subsurface drainage, the absence of slope precludes this option. The unidirectional flow of perched groundwater on level terrain such as this also bodes concerns for the overall efficacy of the leaching system, especially during seasonally wet periods. The presence of ponded water in upland areas on the day of the field inspection adds to the level of [concern.]”

       The commission did not find that those activities were “significant.” Therefore, a public hearing was not required pursuant to General Statutes § § 22a-39 (k) and 22a-42a, and § 9.1 of the inland wetlands and watercourses regulations of the town of Oxford.

       The plaintiffs also challenged the commission’s use of information gathered from the members’ site visits. “Although site visits are not required by the act, we have recognized that they may be necessary for commissioners thoroughly to evaluate property that is the subject of an application. . . . Commissioners are permitted to base their decisions in part on facts within their ‘peculiar knowledge,’ including information gleaned from a site inspection, as long as those facts are disclosed to the parties. ... A site visit is therefore an appropriate investigative tool.” (Citations omitted; internal quotation marks omitted.) Grimes v. Conservation Commission, 243 Conn. 266, 277-78, 703 A.2d 101 (1997). In this case, all observations were disclosed during the commission’s meetings properly and were available in the record.


author: BISHOP, J.

text:
    CITY OF STAMFORD ET AL. v. JOSEPH STEPHENSON ET AL.
    (AC 22322)
    Bishop, Dupont and Mihalakos, Js.

      Argued April 30
    officially released August 19, 2003

      James V. Minor, assistant corporation counsel, with whom, on the brief, was Thomas J. Cassone, director of legal affairs, for the appellants (plaintiffs).

      Ridgley Whitmore Brown, with whom, on the brief, were Roger Lee Crossland and Daniel Shepro, for the appellees (named defendant et al.).

      Geoffrey K. Milne, with whom, on the brief, was Erin M. Field, for the appellee (intervening defendant Atlantic Mortgage and Investment Corporation).
   Opinion

BISHOP, J.

The plaintiffs appeal from the judgment of the trial court ordering them to demolish a house at 179 Highview Avenue in Stamford at their expense, and rescinding an award of attorney’s fees and the per diem fines that had been levied against the defendants. On appeal, the plaintiffs claim that the court abused its discretion (1) by ordering them to demolish the building at their expense and (2) by modifying the fines and attorney’s fees. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs’ appeal. In 1993, the defendants purchased a four unit condominium at 179 Highview Avenue that did not conform to the zoning regulations of the plaintiff city of Stamford (city). The defendants were issued a building permit to “repair and remodel” the condominium to conform to the zoning regulations. Instead of repairing the house, the defendants increased the size of the footprint of the house and added a third story. The defendants were issued two cease and desist orders requiring them to remove the third story and to reduce the footprint in conformity with the original footprint depicted in a 1986 certified plot plan, which had been recorded in the land records.

The defendants defied the cease and desist orders, and the city brought this action seeking a permanent injunction to enforce the cease and desist orders, and to recover attorney’s fees and to levy statutory fines and penalties pursuant to General Statutes § 8-12. After trial, the court, on November 8, 2000, rendered judgment in favor of the plaintiffs, finding that the defendants had violated the zoning regulations and the two cease and desist orders. The court then bifurcated the proceeding and ordered a separate hearing concerning the issue of relief and damages.

On January 11, 2001, the court reinstated its factual findings of November 8, 2000, which it had made in its memorandum of decision on that date, but vacated later in that decision, and ruled in the 2001 decision that the defendants’ actions in violating the zoning regulations and the cease and desist orders were “wilful,” and that the defendants had misled the zoning enforcement officer as to the location of the original foundation. The court further noted that there was evidence to suggest that the defendants may have altered public records.

The court, on the basis of the financial statements presented by the defendants, concluded that they lacked the financial ability to remove the additions on the building or to reduce the footprint and return the foundation to the size and configuration on the certified plot plan. Thus, on January 11, 2001, the court ordered the plaintiffs to demolish the property at their expense, and ordered the defendants to pay a per diem fine and the attorney’s fees of the plaintiffs. The court also advised the defendants that if they did not appeal from the decision and did not interfere with demolition, the court, upon motion, would remit all or part of the fines and attorney’s fees.

On May 15,2001, the plaintiffs tore down the structure at 179 Highview Avenue. The defendants neither interfered with the demolition nor appealed. As stated on January 11, 2001, the court revisited the issue of attorney’sfees andfines. On July 2,2001, the court eliminated the award of attorney’s fees and the imposition of the daily fines. On July 19, 2001, the plaintiffs filed a motion to reargue, which was granted, but on August 27, 2001, after oral argument, the court denied the relief requested. The plaintiffs appealed to this court on September 14, 2001.

I

The plaintiffs first claim that the court abused its discretion in ordering them to demolish the building at their expense. We need not address that issue, namely, whether there was an abuse of discretion with regard to the demolition order, because that portion of the appeal is untimely. Practice Book § 63-1 (a) requires that an appeal be filed within twenty days after a final judgment. This court will hear appeals only from final judgments. See Kobyluck v. Zoning Board of Appeals, 70 Conn. App. 55, 58, 796 A.2d 567 (2002). On January 11, 2001, the court issued its final judgment in which it ordered the demolition of the house at the plaintiffs’ expense. The plaintiffs did not appeal from the judgment until September 14, 2001. The appeal, therefore, was filed more then twenty days after the final judgment.

The plaintiffs contend that the January 11, 2001 decision was not a final judgment and, thus, they could not appeal until the final judgment of July 2, 2001, when the court reduced the fines and the attorney’s fees. We disagree.

A final judgment from which an appeal will lie is one “where the order or action terminates a separate and distinct proceeding . . . .” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). The mere fact that the court indicated that it was willing to modify the fines and attorney’s fees did not affect the finality of the demolition order. The modification was separate and distinct from the demolition order. The wording of the judgment on January 11, 2001, was that “these ORDERS together with the permanent injunction, civil penalties, attorney’s fees, per diem fines and demolition order are final, appealable orders of this court effective January 11, 2001. ” Furthermore, the hearing and judgment on July 2, 2001, made no mention of the demolition order, nor did it affect the demolition order in any substantive way. Because we conclude that this was a final judgment, from which the appeal was filed after the twenty day period had expired, we need not address the issue further. See generally Nicoll v. State, 38 Conn. App. 333, 335-36, 661 A.2d 101 (1995) (discussing this court’s policy on late appeals).

II

We next turn to the plaintiffs’ second claim, which is that the court abused its discretion in rescinding its orders for attorney’s fees and per diem fines. The plaintiffs argue that the defendants had “flagrantly violated” the zoning regulations, and, therefore, it was an abuse of discretion to eliminate the fines and attorney’s fees. We disagree.

Our question in reviewing a decision regarding attorney’s fees and daily fines pursuant to § 8-12 is whether the court abused its discretion. Monroe v. Renz, 46 Conn. App. 5, 14, 698 A.2d 328 (1997). It is well settled that “[t]he essential purpose that § 8-12 is intended to further, namely, the deterrence of violations of the zoning ordinances, does not mandate that a trial court award daily fines, but rather vests discretion in a trial court to grant such lines under the appropriate circumstances.” Id. Therefore, we review the court’s ruling to determine if there was an abuse of discretion.

The plaintiffs go to great lengths to discuss the alleged wilfulness of the defendants’ actions. There is nothing, however, in our case law to indicate, nor do the plaintiffs allege, that “wilfulness” affects our standard of review. Rather, they argue that the defendants had misled the zoning enforcement officer on numerous occasions when they altered the field assessor’s cards and that given the nature of their actions, it was an abuse of discretion to remit most of the fines and attorney’s fees. We disagree.

“Our review of the trial court’s exercise of its discretion is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did. . . . Every reasonable presumption will be given in favor of the trial court’s ruling. ... It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion.” (Internal quotation marks omitted.) State v. Lasky, 43 Conn. App. 619, 635, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997).

At the outset, we note that § 8-12 does not require a court to impose fines and to award attorney’s fees. See Monroe v. Renz, supra, 46 Conn. App. 14. Although § 8-12 provides in relevant part that “[t]he owner or agent of any building or premises where a violation of any provision of [the zoning] regulations has been committed . . . shall be fined not less then ten nor more than one hundred dollars for each day that such violation continues,” this court has held that the use of “shall” in § 8-12 does not create a mandatory duty to impose fines. Id. Rather, a court has discretion to impose such fines, as the circumstances require. Id. Therefore, the court correctly applied § 8-12, as the case law allows the court to use its discretion to impose fines and to award attorney’s fees. Because the court correctly applied the law, we now turn to whether the court’s judgment was unjust.

In determining if the court’s judgment was unjust, it is helpful to note, briefly, the policy behind § 8-12. Our Supreme Court has recognized that a primary purpose of zoning regulations is to protect the health and safely of the community. Langbein v. Board of Zoning Appeals, 135 Conn. 575, 580, 67 A.2d 5 (1949). The purpose of § 8-12 is to provide a means to enforce the zoning regulations and to prevent an unlawful use of a building. Planning & Zoning Commission v. Desrosier, 15 Conn. App. 550, 558, 545 A.2d 597 (1988).

In the present case, the defendants had defied, for years, the orders of the zoning enforcement officer. Further, the building at 179 Highland Avenue remained unfinished, and posed a serious danger to the health and safety of the community. Additionally, the defendants had the legal right and ability to delay resolution of that issue by appealing and obtaining a stay of execution. See Practice Book § 61-11. If the defendants had appealed from the January 11, 2001 judgment, the building would not have been demolished in a timely fashion and would have remained a threat to the community. Under those circumstances, the court gave the defendants an incentive to abstain from exercising their right to appeal. The court indicated that if the defendants did not appeal or interfere with the demolition of the building, the court would revisit the issue of the fines and attorney’s fees. As a result of that order, the building was demolished and the zoning regulations were enforced. The decision of the court to remit the fines and the attorney’s fees, therefore, was consistent with protecting the health and safety of the surrounding community.

Furthermore, in rendering its decision, the court carefully examined the defendants’ financial situation. The court held two hearings to examine the defendants’ financial records. Those examinations led the court to conclude that the defendants could not afford to remodel the property in conformance with the certified plot plan. Upon rendering judgment on July 2, 2001, the court found that the defendants were $145,000 in debt and did not have the financial resources to pay the attorney’s fees or the per diem fines. Given the defendants’ financial inability to pay, it was not an abuse of discretion for the court to remit the fines and attorney’s fees. Under the circumstances, we do not conclude that the court’s action was unjust; rather, we believe that the court’s innovative solution was well within its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to the city of Stamford, the plaintiffs include Anthony P. Strazza, the building inspector and former zoning enforcement officer for the city of Stamford, and James J. Lunney III, the present zoning enforcement officer of the city of Stamford.

       In addition to the named defendant, Joseph Stephenson, his mother, Phyllis Stephenson, is a defendant. Atlantic Mortgage and Investment Corporation, the assignee of a first mortgage on the premises at issue, intervened as a defendant. We refer in this opinion, however, only to the Stephensons as the defendants.

       At oral argument, counsel for the plaintiffs withdrew an additional claim that was based on the theories of collateral estoppel and res judicata.

       The building was within an RM-1 residential multifamily zoning district, which allowed only two units on the property. The property also was nonconforming as to area and setbacks so that the foundation on all four sides could not be expanded.

       General Statutes § 8-12 provides in relevant part: “If any building or structure has been erected, constructed, altered, converted or maintained ... in violation of any provision of this chapter or of any bylaw, ordinance, rule or regulation made under authority conferred hereby, any official having jurisdiction . . . may institute an action or proceeding to prevent such unlawful erection, construction, alteration, conversion, maintenance or use or to restrain, correct or abate such violation .... The owner or agent of any building or premises where a violation of any provision of such regulations has been committed or exists . . . shall be fined not less than ten nor more than one hundred dollars for each day that such violation continues; but, if the offense is wilful, the person convicted thereof shall be fined not less than one hundred dollars nor more than two hundred and filly dollars for each day that such violation continues, or imprisoned not more than ten days for each day such violation continues or both .... Any person who, having been served with an order to discontinue any such violation, fails to comply with such order within ten days after such service, or having been served with a cease and desist order . . . fails to comply with such order immediately, or continues to violate any provision of the regulations made under authority of the provisions of this chapter specified in such order shall be subject to a civil penalty not to exceed two thousand five hundred dollars, payable to the treasurer of the municipality. . . .”

       In its memorandum of decision, the court made factual findings, which, later in the decision, it vacated, leaving in place only its orders.

       Two hearings were held to determine if the defendants had the financial ability to bring the building into compliance with the zoning regulations.

       The court awarded the plaintiffs $25,000 in attorney’s fees. The court also imposed a fine of $100 per day from June 16, 1995, the date of service of the cease and desist order, to the date of the decision, January 11, 2001, totaling $203,600. A civil penalty of $2500 also was levied against the defendants.

       Although the defendants previously raised that issue by way of a motion to dismiss the appeal, which we denied, we have concluded that it is necessary to reconsider, sua sponte, our jurisdiction to hear that portion of the appeal. See Governors Grove Condominium Assn., Inc. v. Hill Development Corp., 187 Conn. 509, 511 n.6, 446 A.2d 1082 (1982).

       Although we are not bound by the court’s finding as to the finality of its January 11, 2001 orders; see, e.g., Rhode Island Hospital Trust National Bank v. Trust, 25 Conn. App. 28, 32, 592 A.2d 417, cert. granted on other grounds, 220 Conn. 904, 593 A.2d 970 (1991) (appeal withdrawn July 10, 1992).

       The chief building officer and state fire marshal had declared that the building was an “unsafe structure.” The defendants never completed the work on the building, leaving it without a roof and subject to the elements, and, as such, mosquitoes infected with the West Nile virus were found on the premises.


author: HENNESSY, J.

text:
    BARRINGTON LINDO v. GARRELL MULLANEY, SUPERINTENDENT OF HEALTH, CONNECTICUT VALLEY HOSPITAL
    (AC 22681)
    Lavery, C. J., and Schaller and Hennessy, Js.

      Argued March 20
    officially released August 19, 2003

      Deborah G. Stevenson, special public defender, for the appellant (petitioner).

      James A. Killen, Sr., assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Donna Mambrino, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

HENNESSY, J.

The petitioner, Barrington Lindo, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus in which he claimed that he had been denied the effective assistance of counsel. On appeal, the petitioner claims that the court improperly (1) failed to conclude that he was denied effective assistance of counsel under the test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), (2) failed to consider expert testimony concerning his counsel’s allegedly deficient performance and (3) concluded that the petitioner was not prejudiced in his habeas corpus case because the records from his original trial had been destroyed. We affirm the judgment of the habeas court.

The court found the following relevant facts. The petitioner was a defendant in a criminal case in which he was represented by attorney Lawrence S. Hopkins of the public defender’s office. Prior to trial, the prosecutor offered the petitioner, in exchange for his pleas of guilty, a sentence of twelve years, suspended after six years. Hopkins discussed the offer with the petitioner and advised him about the defense of mental disease or defect. The petitioner decided to reject the offer and to proceed to trial with the affirmative defense of mental disease or defect. After trial, the petitioner was found not guilty by reason of mental disease or defect and acquitted on the charges of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1), and burglary in the first degree in violation of General Statutes § 53a-101.

On March 15, 1991, the trial court, pursuant to General Statutes § 17a-582 et seq., committed the petitioner to the jurisdiction of the psychiatric security review board (board) for confinement in a hospital for psychiatric disabilities for a period of time not to exceed ten years. The petitioner has remained at the Whiting Forensic Division of Connecticut Valley Hospital (Whiting) pursuant to the court order. Approximately ten years after being committed, the petitioner filed a petition for writ of habeas corpus on May 9, 2000, and an amended petition on August 23, 2000.

Before addressing the petitioner’s claims, we will address whether this court properly can grant the relief sought by the petitioner. The petitioner’s prayer for relief asks that a new trial be ordered and that the court “release [him] from his confinement or transfer him to a correctional institution for subsequent discharge . . . .” The request for a new trial is unusual considering the fact that the petitioner was acquitted of the charges against him, albeit by reason of mental disease or defect, and his term of imprisonment as ordered by the court has been completed. “ [I]t is rare for an insanity acquittee to challenge his or her acquittal; even rarer is the case in which that challenge is successful . . . .” Connelly v. Commissioner of Correction, 258 Conn. 394, 405, 780 A.2d 903 (2001). The petitioner, however, does have a right to request a new trial and risk a conviction. See id., 400. The time the petitioner has spent in confinement would be credited toward any new sentence that could be rendered if the petitioner were found guilty after a new trial. See id., 408.

I

Having determined that the petitioner could be granted a new trial, we now turn to his claims on appeal. The petitioner’s first claim is that the court improperly found that his defense counsel did not render ineffective assistance as set forth in Strickland v. Washington, supra, 466 U.S. 687.

“[T]he United States Supreme Court adopted a two part analysis for claims of ineffective assistance of counsel. Under Strickland, the petitioner must show that: (1) defense counsel’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for defense counsel’s deficient representation, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Jean-Jacques v. Commissioner of Correction, 73 Conn. App. 742, 746, 809 A.2d 541 (2002).

“Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [wjhether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Figueroa v. Commissioner of Correction, 74 Conn. App. 352, 354, 812 A.2d 164 (2002), cert. denied, 262 Conn. 954, 818 A.2d 780 (2003).

A

In support of his claim that defense counsel’s representation fell below an objective standard of reasonableness, the petitioner alleges that counsel assured him that if he were successful in going forward with the trial and the defense of mental disease or defect, his commitment period could be only two years. The petitioner further contends that counsel never informed him that he could be confined indefinitely. The petitioner alleges that as a result of his having followed counsel’s advice to use the defense of mental disease or defect instead of accepting the plea bargain offered by the prosecutor, he continues to be held at Whiting instead of having been released at the end of six years.

Hopkins testified that he told the petitioner that his condition would be reviewed periodically and that he could, if his condition improved, be released in two years. He also testified that he did not explain to the petitioner that there was a possibility that he could be held beyond the ten year maximum confinement, stating: “I’m sure I never explained it to him after that because I possibly never saw him after that term was imposed.”

Hopkins testified that he explained that the petitioner’s options prior to trial were either to take the offer of twelve years incarceration, suspended after six years, or to go to trial on the merits. The petitioner decided to refuse the state’s offer because he believed that accepting the offer would involve too long a sentence. The petitioner, after discussing the option of atrial with Hopkins, agreed with his counsel that under the facts of the case, he likely would be found guilty and exposed to a serious sentence. They agreed that the best option was to proceed to trial and to rely on the defense of mental disease or defect.

The petitioner further argues that defense counsel, being aware of the petitioner’s mental history and voluntary intoxication at the time of the assault, should have used those factors at trial to negate the element of specific intent. The petitioner argues, in the alternative, that counsel should have advised him to agree to the plea offer under which he would have served less time.

Hopkins testified that he urged the petitioner to consider the plea offer, but the petitioner refused. Hopkins further explained that because the petitioner had seven previous convictions for crimes of violence and because the evidence clearly indicated that the petitioner had committed the unprovoked vicious attack of which he was accused, relying on a defense that he was not the perpetrator when he was well known to his victim, who had identified him, would have resulted in what counsel termed “a serious sentence.” The court was free to accept the reasoning and testimony of defense counsel, and to reject the petitioner’s claim that he was misadvised. See State v. Martin, 38 Conn. App. 731, 744, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376, cert. denied, 519 U.S. 1044, 117 S. Ct. 617, 136 L. Ed. 2d 541 (1996).

The facts of this case are very similar to those addressed by our Supreme Court in Duperry v. Solnit, 261 Conn. 309, 333-36, 803 A.2d 287 (2002). In Duperry, the petitioner’s attorney testified that he had not informed the petitioner that he could be held beyond the maximum term of confinement if he were found not guilty by reason of mental disease or defect. Id., 334. Our Supreme Court held that the attorney’s performance did not fall below the objective standard of reasonableness and that “the petitioner’s bélief that he would spend less time in confinement by pleading not guilty and pursuing a mental health defense rather than by pleading guilty was based on the petitioner’s own conjecture and not on the advice of his attorney.” Id., 336.

In the case before us, the court concluded “after a full hearing based on the preponderance of the credible, reliable, relevant and legally admissible evidence, and the reasonable, logical and lawful inferences to be drawn therefrom, [that the petitioner’s attorney had] rendered effective assistance of counsel to the petitioner and met the standard of reasonable competence of a criminal defense lawyer of ordinary skill and training in the criminal law.” Under the circumstances as presented here and on the basis of our Supreme Court’s decision in Duperry v. Solnit, supra, 261 Conn. 309, we conclude that the court correctly determined that the petitioner was not deprived of effective assistance of counsel.

B

The petitioner further argues that the court ignored his claim at the habeas hearing that defense counsel had conducted an inadequate investigation during the petitioner’s criminal trial in that counsel failed to inquire as to whether the petitioner was intoxicated at the time of the incident. The petitioner argues that specific intent is an essential element of both crimes with which he was charged and that if he had shown that he was intoxicated at the time of the incident, he could have argued at trial the negation of specific intent.

“A criminal defendant’s intoxication is relevant to the determination of his capacity to form a specific intent to commit a crime . . . but it is not dispositive of the issue.” (Citations omitted.) State v. Vinal, 198 Conn. 644, 658-59, 504 A.2d 1364 (1986). Intoxication, as used in General Statutes § 53a-7, “means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.” Defense counsel testified that in preparing the petitioner’s case, he reviewed the report of Donald R. Grayson, a psychiatrist, that contained a detailed mental health history of the petitioner. We find nothing in that report that would have led petitioner’s trial counsel to believe that the petitioner had a problem with alcohol. Although the petitioner testified at the habeas trial that he had consumed alcohol on the date of the assault and burglary, he never mentioned that fact to his attorney. There was no evidence of the amount of alcohol consumed, the type of alcohol consumed or if the petitioner was affected by what he consumed. The petitioner does not claim that he was intoxicated at the time of the alleged incident and testified at the habeas trial: “Yes, I did have alcohol. Yes.” There was scant questioning of the petitioner regarding his use of alcohol on the day of the assault and burglary; there was no examination of the petitioner by the state on that subject; there were no questions posed at the habeas hearing asking the petitioner’s defense counsel about the absence of discovery concerning that issue, and there was no motion for articulation filed to address the fact that the habeas court did not mention the discovery issue in its opinion. It was not so much that the court ignored the discovery issue, but rather that the petitioner did so. There was little mention of the use of alcohol by the petitioner, and to require the court to treat his statement as support for the claim is without merit.

It is for the court as the finder of fact to determine the credibility of and the effect to be given to the testimony. Doehrer v. Commissioner of Correction, 68 Conn. App. 774, 785, 795 A.2d 548, cert. denied, 260 Conn. 924, 797 A.2d 520 (2002). We conclude that the court applied the test enunciated in Strickland and reasonably could have determined that the petitioner’s counsel conducted an adequate investigation.

II

The petitioner also claims that the court improperly failed to consider expert testimony concerning his counsel’s allegedly deficient performance. We do not agree.

The petitioner called as a witness Leon M. Kaatz, an attorney who was qualified as an expert witness. Kaatz testified that the representation by the petitioner’s counsel was inappropriate. According to Kaatz, the petitioner’s counsel had an obligation to inform the petitioner fully of the consequences of going to trial and using the defense of mental disease or defect, and should not have told the petitioner that if he chose that defense, he would be released in two years. Kaatz relied only on the statements of the petitioner as contained in the petition and his testimony in court. He did not interview the petitioner or the petitioner’s counsel in arriving at his opinion.

In its decision, the court wrote that after a full hearing, it found that the petitioner’s counsel had rendered effective assistance and had met the standard of reasonable competence of a criminal defense lawyer of ordinary skill and training in the criminal law. Contained within the full hearing was the testimony of Kaatz. “It is for the court as the finder of fact to determine the credibility of and the effect to be given to the testimony. ... It was the court’s function to assess the testimony of all the witnesses who testified at the habeas proceeding.” (Citation omitted.) Id. We do not conclude that the court ignored the testimony of the petitioner’s expert and, therefore, we conclude that the petitioner’s claim is without merit.

Ill

The petitioner next claims that he was prejudiced by the state’s destruction of the records from his criminal trial that could have assisted him in proving his allegations in his petition for a writ of habeas coipus. Specifically, the petitioner claims that he was prejudiced because a reconstruction of the transcript could have revealed the petitioner’s history, the state’s plea offer and counsel’s errors at trial. The petitioner waited nine years before he attempted to obtain the transcripts of his trial. The petitioner testified at trial that the transcript was destroyed pursuant to a judge’s order after seven years had passed from the time of trial. The petitioner did not make a motion related to the destruction of the records, nor did he request the habeas court to reconstruct the transcripts of his criminal trial. The petitioner claims that the habeas court, sua sponte, should have ordered a reconstruction of the transcript. The petitioner also argues that this court can review the issue under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“In essence, [the petitioner] seeks review in this court under the criteria set out in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as reformulated in State v. Golding [supra, 213 Conn. 239-40] .... The Evans standard for appellate review, however, is inappropriate in a habeas corpus proceeding. . . . This court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. . . . Although the petitioner’s counsel briefly discussed these claims at oral argument in the habeas court, that court neither ruled upon nor decided these claims. Further, the petitioner failed to brief these issues, raise them in his habeas petitions or move for further articulation either in the habeas court or this court to force the habeas court to address these issues. ... To review the petitioner’s claims now would amount to an ambuscade of the [habeas] judge.” (Citations omitted; internal quotation marks omitted.) Copeland v. Warden, 26 Conn. App. 10, 13-14, 596 A.2d 477 (1991), aff'd, 225 Conn. 46, 621 A.2d 1311 (1993).

In addition, the petitioner cannot prevail because the alleged constitutional violation does not exist and his rights have not been violated. See State v. Golding, supra, 213 Conn. 239-40. “[T]he unavailability of the transcript of [the] proceedings, which has resulted from no fault of the parties, does not warrant a new trial unless those proceedings which might be the basis for a claim of error cannot be sufficiently reconstructed for that purpose.” State v. Vitale, 190 Conn. 219, 225, 460 A.2d 961 (1983); see also State v. DePastino, 228 Conn. 552, 558, 638 A.2d 578 (1994).

We do not see how a reconstructed transcript would assist the petitioner in his claim that his counsel's performance fell below the objective standard of reasonableness when the trial produced a favorable outcome for the petitioner. The petitioner’s primary claim is that his attorney did not inform him that he could be imprisoned beyond the maximum term if found not guilty by reason of mental disease or defect. The attorney acknowledged that point, and the transcript would not yield any information from those privileged conversations between the petitioner and his attorney.

The petitioner in his brief also claims that “the transcript could have revealed errors in the trial going to the issue of effectiveness of counsel such as whether an insanity defense could have been negated by a proper investigation showing intoxication of the petitioner.” The transcript, however, would not reveal any details of the petitioner’s claim that he was intoxicated at the time of the crime because the trial concerned the petitioner’s mental health. A transcript would not assist the petitioner’s claim that his attorney did not perform an adequate investigation because the issue of intoxication was not addressed at trial. The petitioner admitted that he did not inform his attorney that he had consumed alcohol, and he does not even claim that he was intoxicated at the time the events were alleged to have taken place.

The petitioner in his brief also claims that the transcript “could have revealed whether, through the report of Dr. Grayson, trial counsel was aware of the petitioner’s past history of intoxication and whether counsel used that report effectively to prove insanity or whether counsel should not have attempted to use an insanity defense.” Grayson’s report was presented to the habeas court and considered by that court. The petitioner’s attorney obviously used that report effectively because the petitioner was found not guilty by reason of mental disease or defect. The transcript could add nothing to the petitioner’s claims of ineffective assistance of counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

        State v. Lindo, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 382574 (December 20, 1990).

       The petitioner’s and the state’s recitation of the facts as to the charges and plea negotiations cannot be verified because the criminal trial transcripts and records are unavailable. See part III.

       General Statutes § 17a-585 provides in relevant part,: “The board shall conduct a hearing and review the status of the acquittee not less than once every two years. . . See also Franklin v. Berger, 211 Conn. 591, 597-601, 560 A.2d 444 (1989), for a thorough examination of the procedure employed regarding an acquittee found not guilty by reason of mental disease or defect.

       During the approximately ten years that the petitioner has been at Whiting, he has had a review and hearing pursuant to General Statutes §§ 17a-585 and 17a-584 periodically to determine whether he would be a danger to the public or to himself if released. The board has not recommended his release.

       The court found that the petitioner had had periodic reviews of his mental condition and has not been released because the board could not find that if released, he would not be a danger to the public or to himself.

         In Duperry, the petitioner’s attorney stated that the petitioner “might spend less time in confinement’' if he were found not guilty by reason of mental disease or defect. Duperry v. Solnit, supra, 261 Conn. 334. In this appeal, Hopkins told the petitioner that he could, if his condition improved, be released in two years. Under the facts of this case, we do not find a difference between those statements in terms of the information passed on to the client to make an informed decision concerning whether to accept a plea agreement offered by the state or to proceed to trial.

       Grayson’s report, dated November 16, 1990, contains the following: “Regarding [the petitioner’s] alcohol history, he indicated that he had drank ‘a lot in high school,’ but now only has an occasional beer and occasionally a wine cooler. He denied ever having had blackouts, [charges against him of driving while under the influence of intoxicating liquor] or other problems with alcohol.”

       The petitioner alleges that the court improperly failed to make a predicate finding of prejudicial impact. “If . . . the habeas court determines that [the petitioner’s counsel's performance] was constitutionally deficient according to the first prong of Strickland, it will be necessary for the habeas court to make ... [a determination as to] whether the petitioner was prejudiced, in accordance with the second prong of Strickland . . . .” Commissioner of Correction v. Rodriquez, 222 Conn. 469, 479, 610 A.2d 631 (1992).
      The court, in its memorandum of decision, found that the petitioner’s trial counsel rendered effective assistance and had met the standard of reasonable competence of a criminal defense lawyer of ordinary skill and training. On the basis of the fact that the court did not find that the representation by petitioner’s trial counsel was unreasonable, there was no need to discuss or to make findings about the prejudice prong of Strickland.


author: MIHALAKOS, J.

text:
    JACQUELINE JENKINS v. JACQUELYN KOS ET AL.
    (AC 22889)
    Flynn, Bishop and Mihalakos, Js.
    Argued May 27
    officially released August 19, 2003

      Ralph J. Monaco, with whom was Patrick J. Day, for the appellant (plaintiff).

      James V. Somers, with whom, on the brief, was Richard C. Tynan, for the appellee (defendant Rebecca Green).
   Opinion

MIHALAKOS, J.

In this medical malpractice action, the plaintiff, Jacqueline Jenkins, appeals following the trial court’s denial of her motion for reconsideration of its denial of her motion to set aside the verdict and for a new trial after the court rendered judgment in accordance with the verdict in favor of the defendant Rebecca Green. On appeal, the plaintiff claims that the court improperly denied her motion for reconsideration because the court improperly had admitted (1) evidence of a prior lawsuit she had filed and (2) evidence concerning her entire medical histoiy, both of which she argues were irrelevant and unfairly prejudiced her case. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs appeal. The plaintiff sustained injuries to her lower back and neck in a motor vehicle accident in 1989. She was treated for those injuries between 1989 and 1993. The plaintiff first began treatment with Jacquelyn Kos, a chiropractor, in March, 1997, for jaw pain she was experiencing due to temporomandibular joint syndrome. After seeing Kos on a number of occasions, the plaintiff received chiropractic treatment from the defendant on April 11,1997. It is from the April 11, 1997 session with the defendant that this action arises. The plaintiff claims that the defendant negligently manipulated her lower back, resulting in an aggravation and permanent worsening of her preexisting lower back condition.

The jury returned a verdict for the defendant on October 24, 2001. The plaintiff timely filed a motion to set aside the verdict and for a new trial on November 2, 2001. The court denied those motions on January 31, 2002, and no appeal was taken. On February 13, 2002, the plaintiff filed a motion for reconsideration, which the court also denied. It is from that denial that the plaintiff appeals. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly admitted evidence concerning a prior lawsuit, which she had filed in conjunction with the 1989 motor vehicle accident. She argues that the evidence was irrelevant or, in the alternative, unfairly prejudicial to her case. We conclude that the court did not abuse its discretion in admitting that evidence.

The applicable standard of review for evidentiary issues is whether the court abused its discretion. “[T]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) Doe v. Thames Valley Council for Community Action, Inc., 69 Conn. App. 850, 853-54, 797 A.2d 1146, cert. denied, 261 Conn. 906, 804 A.2d 212 (2002). “We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Emphasis in original; internal quotation marks omitted.) Van Nest v. Kegg, 70 Conn. App. 191, 201, 800 A.2d 509 (2002).

A

The main thrust of the plaintiffs first argument is that it was unnecessary for the jury to know of the prior lawsuit to determine whether the defendant’s treatment exacerbated her preexisting lower back condition.

All relevant evidence is admissible except as provided by the federal or state constitutions or Connecticut statute. Conn. Code Evid. § 4-2. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . [EJvidcnce need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree.” (Internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 29, 807 A.2d 955 (2002). The fact that evidence may be subject to several interpretations does not affect its admissibility as long as it can be construed as relevant. State v. Sanchez, 69 Conn. App. 576, 584, 795 A.2d 597 (2002).

The plaintiff was assigned a 10 percent permanent partial disability rating to her lumbosacral spine as a result of injuries sustained in the 1989 accident. Roslyn Posner Einbinder, a neurologist, assigned that disability rating to the plaintiff in July, 1989. Information concerning the plaintiff’s treatment with Einbinder, including the disability rating, was forwarded to Thomas A. Cloutier, the plaintiff’s attorney in the prior action.

The prior action was introduced at the trial in this case in the context of testimony relating to the plaintiff’s disability rating. Such testimony was certainly relevant to the plaintiff’s claim that the defendant’s treatment had exacerbated her preexisting lower back condition. Because the prior lawsuit was raised in the context of highly relevant evidence, the court did not abuse its discretion in admitting that evidence.

Additionally, the plaintiff clearly opened the door to the subject of the prior lawsuit. The plaintiff entered into evidence as a full exhibit her medical records from Einbinder. Those records contained the memorandum written by Einbinder in which she assigned the disability rating to the plaintiff. That memorandum was provided to Cloutier. In fact, the plaintiff’s evidence contained a number of letters written to Cloutier by Einbinder specifically regarding the plaintiff’s medical condition as related to the treatment of injuries sustained in the 1989 accident.

“A party who initiates discussion of an issue, whether on direct or cross-examination, is said to have opened the door to inquiry by the opposing party, and cannot later object when the opposing party so questions the witness.” (Internal quotation marks omitted.) New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 95, 709 A.2d 14 (1998).

The plaintiff not only entered that memorandum into evidence as an exhibit, but also made explicit references to it during direct examination. The plaintiff’s attorney raised the 1989 accident and her ensuing treatment with Einbinder on direct examination of the plaintiff and specifically referenced the memorandum at issue in his examination of the plaintiffs witness, Joseph Costello, a chiropractor. On the basis of the law of relevancy and the fact that the plaintiff had opened the door to the evidence, we conclude that the court did not abuse its discretion in admitting evidence of the prior lawsuit.

B

The plaintiff next contends that even if the prior lawsuit was relevant, its prejudicial value outweighed its probative value such that evidence of the lawsuit should have been excluded. She maintains that evidence of the prior lawsuit led the jury to conclude that she already had been compensated for her injuries and that she was “sue happy.” Further, the plaintiff argues that the evidence was prejudicial in that it confused the jury. We are not persuaded.

The court may exclude relevant evidence when its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues or misleading the jury. Conn. Code Evid. § 4-3. Unfair prejudice is that which “unduly arouse [s] the jury’s emotions of prejudice, hostility or sympathy . . . .” (Citation omitted; internal quotation marks omitted.) Ancheff v. Hartford Hospital, 260 Conn. 785, 804, 799 A.2d 1067 (2002). In other words, the evidence must create undue prejudice so that it would threaten the possibility of an injustice were it to be admitted. C. Tait, Connecticut Evidence (3d Ed. 2001) § 4.8.1, pp. 208-209. The evidence must be unfair in those respects because “[a]ll evidence adverse to a party is, to some degree, prejudicial.” (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 806, 614 A.2d 414 (1992).

That balancing test requires the court to weigh the probative value of the proffered evidence against the harm that is likely to result from its admission. See Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 563, 525 A.2d 954 (1987). That determination is left to the discretion of the court. See State v. Ferguson, 260 Conn. 339, 351, 796 A.2d 1118 (2002).

We already have determined that the prior action was introduced in the context of testimony related to the issue of the plaintiffs disability rating. The disability rating was relevant to the plaintiffs claim that the defendant’s treatment exacerbated the plaintiffs preexisting lower back condition. We also have determined that the evidence was addressed properly in cross-examination because the plaintiff had opened the door to the subject on direct examination. New London Federal Savings Bank v. Tucciarone, supra, 48 Conn. App. 95. We therefore agree with the conclusion of the court that the probative value of the prior lawsuit outweighed its prejudicial effect.

In addition, the fact that the plaintiff had filed an action in the past did not create an injustice. A different result would not have come to bear if the evidence were excluded. A party claiming evidentiary error “must show that it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) State v. Ferguson, supra, 260 Conn. 357.

Here, the plaintiff argues only that the evidence could have confused the jury by leading it to believe that she previously had been compensated for her injuries or that she was litigious. Those arguments are speculative, especially when one considers the evidence on which the jury ultimately could have based its verdict. The plaintiffs medical records were replete with evidence of lower back pain, tending to disprove her claim that her lower back condition was dormant before the defendant’s alleged negligence caused the back pain to return.

II

The plaintiffs second claim is that her case was unfairly prejudiced by the introduction of evidence concerning her entire medical history and that the court improperly permitted its introduction. Again, we find that the court did not abuse its discretion in admitting that evidence.

The plaintiff, in paragraph eight of her complaint, alleged that the defendant had caused her mental pain. The defendant denied that claim, therefore, putting the issue in dispute. The defendant was, therefore, entitled to have the jury consider that the plaintiff had suffered mental pain requiring treatment with Prozac before the alleged negligence of the defendant.

Further, the plaintiff put her medical history and, specifically, her use of Prozac, directly in issue by admitting into evidence as exhibits her medical records. Those records contained numerous references to the plaintiffs use of Prozac prior to the alleged negligence of the defendant. In addition, the plaintiffs counsel directly referenced those records during direct examination of both the plaintiff, herself, and her expert witness. Because the plaintiff opened the door to that evidence, she cannot now object to its introduction. See New London Federal Savings Bank v. Tucciarone, supra, 48 Conn. App. 95.

Under those circumstances, the plaintiffs medical records and her prior use of Prozac are probative, and the court was correct in admitting the medical history. There is no error.

Ill

Finally, the plaintiff claims that the court improperly permitted the jurors to “rush to judgment” before hearing a portion of testimony that they wanted to have read to them. Our careful review of the record reveals nothing to indicate that the court in any way rushed the jurors. It was their prerogative to return a verdict when they reached unanimity. The fact that they did so before certain testimony could be read to them does not impair their verdict, nor did it require the court to set it aside.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint originally named two defendants, Green, a chiropractor, and Jacquelyn Kos, a chiropractor. The plaintiff withdrew the claim against Kos prior to trial. We therefore refer in this opinion to Green as the defendant.

       The plaintiff originally addressed three specific issues in her brief. In her third claim, the plaintiff argued that the court improperly failed to provide the jury with information that it had requested during deliberations and permitted the jury to render a “rushed verdict.” This court already has addressed that claim on our motion calendar, granting the defendant’s motion to strike.

       Paragraph eight of the plaintiffs complaint alleges: “As a direct and proximate result of the negligence and carelessness of the defendant, Rebecca Green, D.C. as aforesaid, the plaintiff sustained an exacerbation and/ or aggravation of her preexisting lower back condition. In addition, the plaintiff was required to undergo diagnostic testing and treatment for the aforesaid injuries. To treat these injuries, the plaintiff was placed upon a substantial program of physical therapy and was prescribed various types of medications. In all probability, the injuries sustained by the plaintiff will necessitate further care and are permanent in nature. Moreover, it is likely that the plaintiffs injuries will be the source of continuing pain and disability. In addition, she suffered and will in the future suffer great physical and mental pain and has been and will in the future be unable to participate in many of the activities in which she engaged prior to said incident.”