text:
    CHARLES HART ET AL. v. THERESA CARRUTHERS
    (AC 22825)
    Lavery, C. J., and Schaller and Bishop, Js.
    Argued March 28
    officially released June 24, 2003

      Barry T. Pontolillo, for the appellant (defendant).

      Max F. Brunswick, for the appellees (plaintiffs).
   Opinion

LAVERY, C. J.

The defendant landlord, Theresa Carruthers, appeals from the judgment of the trial court rendered in part in favor of the plaintiff tenants, Charles Hart and Annette Housley Hart (Annette Hart). On appeal, the defendant claims that the court improperly (1) determined that the agreement between the parties violated the terms of the rental assistance program, (2) concluded that the defendant violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and (3) violated the parties’ constitutional rights by impairing their contractual obligations. We affirm the judgment of the trial court.

The following facts are relevant to our disposition of the defendant’s appeal. On December 1, 1993, the plaintiffs, as tenants, entered into a written lease with the defendant for a dwelling at 39 Blakeslee Avenue in North Haven. The term of the lease was one year, and, after its expiration, the plaintiffs remained on the premises, on a month-to-month basis, through December, 1998. The plaintiffs qualified for the state department of housing’s rental assistance program. Pursuant to that program, the Community Action Agency of New Haven, Inc., as designated agent for the state department of housing, paid a portion of the plaintiffs’ rent. Also pursuant to that program, the defendant entered into a state department of housing rental assistance contract (rental assistance contract), the purpose of which was to assist the plaintiffs to lease a dwelling unit from the defendant, and the parties entered into a state department of housing rental assistance program lease (rental assistance lease).

In 1999, the plaintiffs brought the present action, claiming, inter alia, that by charging the plaintiffs $200 more per month in rent than was permitted by the terms of the rental assistance contract, the defendant breached her contract with the plaintiffs and the rental assistance program. Specifically, the plaintiffs alleged that under the rental assistance contract, the defendant agreed that the rent for the premises would be $700 per month and that she would not charge more than that amount, but that she breached that contract by charging $900 per month in rent. The plaintiffs also alleged that the defendant’s conduct of charging $900 per month rent, when she had agreed not to charge more than $700, constituted a violation of CUTPA.

After a trial to the court, judgment was rendered in favor of the plaintiffs on their claims that the defendant had breached the rental assistance contract and that the defendant’s actions constituted an unfair trade practice in violation of CUTPA. This appeal followed. Additional facts will be set forth as necessary.

We first set forth our standard of review. “The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Verna v. Commissioner of Revenue Services, 261 Conn. 102, 107, 801 A.2d 769 (2002).

I

The defendant first claims that the court improperly determined that the agreement between the parties violated the terms of the rental assistance program by prohibiting the parties from entering into a separate agreement for the rental of a garage. The defendant asserts that the parties had agreed that the rent for the dwelling unit at 39 Blakeslee Avenue would be $700 per month, but that they had entered into a separate agreement for the rental of a garage on the same premises for $200 per month, which brought the plaintiffs’ total monthly rent to $900. She argues that the rental assistance program provided rental assistance to the plaintiffs for the dwelling unit only and that the parties were free to contract for other services, such as the rental of the garage, which were not covered by the rental assistance program.

We begin our analysis by noting that the defendant has presumed incorrectly that the court determined, as a matter of law, that the rental assistance contract prohibited the parties from entering into a separate agreement for the rental of the garage.

The court, in its memorandum of decision, found the following: “When the parties entered into the state rental assistance contract, they agreed, in relevant part, to the following: ‘The portion of the Contract Rent payable by the Family (“Family Contribution”) will be an amount determined by the Designated Agent in accordance with [state department of housing] regulations and requirements. This amount is the maximum amount the Owner can require the Family to pay for rent of the dwelling unit, including all services, maintenance and utilities to be provided by the Owner in accordance with the Lease.’ . . . The defendant testified that the parties made a separate agreement concerning the attached, two car garage, which, she claims, was rented for an additional $200 per month. According to her testimony, since the garage was not part of the ‘dwelling unit,’ the administrators of the [rental assistance] lease were not concerned about how much the plaintiffs were required to pay. The plaintiffs, however, testified that the agreement was divided into a house-garage only to allow the defendant to collect an additional $200 that would otherwise be disallowed by the terms of the [rental assistance] contract. They further testified that they had very little use for the garage space since their family vehicle, a converted school bus, was too large to fit in the garage.

“The court does not accept the defendant’s explanation for the additional payment and finds that it was an attempt by her to circumvent the terms of the [rental assistance program] agreement. Accordingly, the court finds for the plaintiffs and awards them $12,000 on count one of their complaint.

“The court further finds that the defendant’s actions — demanding and accepting an additional $200 per month from the plaintiffs in violation of the terms of the [rental assistance] contract — constitute an unfair trade practice in violation of . . . General Statutes § 42-110b and awards the plaintiffs $1 in compensatory damages on count two.” (Emphasis added.)

After reviewing the court’s memorandum of decision, it is clear that the court did not determine that the rental assistance contract prohibited the parties from entering into a separate agreement for the rental of the garage. Rather, the court simply did not believe the defendant’s version of events and found that there was no actual agreement for the rental of a garage and that, in fact, the defendant’s explanation of the $200 discrepancy between what the rental assistance program permitted her to collect and what she actually collected was merely a pretext to justify her having collected more in rent than was permitted under the rental assistance program.

Because the court made its determination on a factual basis, we must determine whether the court’s determination that the defendant demanded and accepted $200 more per month than was permitted under the terms of the rental assistance contract was clearly erroneous. We conclude that it was not.

“A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Gordon v. Tobias, 262 Conn. 844, 849, 817 A.2d 683 (2003).

After reviewing the record before the court, we are persuaded that the court’s finding was not clearly erroneous. It is clear that there is evidence in the record supporting the court’s determination that the defendant demanded and accepted $200 more per month in rent than was permitted by the terms of the rental assistance contract.

During the trial, the plaintiffs both testified that at the time they moved into the house at 39 Blakeslee Avenue, the only lease they had signed was the rental assistance lease, which listed the rent as being $700. They testified that the month after they had moved in, the defendant came to their house with a new lease, which listed a rent of $900, and told them that if they wanted to stay in the house, they would have to sign the new lease. Annette Hart testified that she signed the new lease because she already had given up her previous home and had nowhere else to go. She and Charles Hart both testified that the defendant kept several items in the garage. There also was testimony, by Charles Hart, that the defendant never said anything about any additional rent for the garage.

Although the defendant may have claimed that there was an agreement between the parties whereby the plaintiffs paid the extra $200 as rental for the garage, her testimony and the evidence she submitted was in plain contradiction to the plaintiffs’ testimony and evidence. The fact that there was conflicting testimony does not equate to a conclusion that the court’s finding was clearly erroneous. See Fink v. Golenbock, 238 Conn. 183, 210, 680 A.2d 1243 (1996). “The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact.” State v. Campbell, 61 Conn. App. 99, 102-103, 762 A.2d 12 (2000), cert. denied, 255 Conn. 934, 767 A.2d 105 (2001). “If there is conflicting evidence . . . the fact finder is free to determine which version of the event in question it finds most credible.” (Internal quotation marks omitted.) Fink v. Golenbock, supra, 210; see also State v. Adams, 225 Conn. 270, 278, 623 A.2d 42 (1993).

In the present case, there was evidence in the record supporting the plaintiffs’ version of events, i.e., that the defendant charged them $200 more per month in rent than was permitted under the terms of the agreement with the rental assistance program and that there was no separate agreement for the rental of a garage. The court, as the trier of fact, found the plaintiffs’ version of events credible, as it was permitted to do. “The court performed its duty, and we will not usurp its function.” State v. Campbell, supra, 61 Conn. App. 103. We therefore conclude that the court’s determination that the defendant collected $200 more in rent than was permitted under the terms of the rental assistance agreement was not clearly erroneous.

II

The defendant next claims that the court improperly concluded that her actions constituted a violation of CUTPA because, to find that a CUTPA violation existed, the court had to have found that the “defendant has committed the alleged wrongful acts with such frequency as to indicate a general business practice.” Quimby v. Kimberly Clark Corp., 28 Conn. App. 660, 672, 613 A.2d 838 (1992). Specifically, the defendant argues, quoting Quimby, that her one transaction with the plaintiffs, or “singular failure to settle [the plaintiffs’] claim fairly”; id.; was not enough to constitute an unfair or deceptive trade practice in violation of CUTPA. We disagree.

This court recently addressed the issue of whether a defendant’s “single act” of misconduct may constitute a violation of CUTPA. In Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn. App. 342, 344, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002), the plaintiff subcontractor brought an action against the defendant general contractor, alleging that the defendant had violated CUTPA when it failed to award the plaintiff a subcontract for electrical work on a school project, despite the fact that the defendant, who had been required to “name” its subcontractors on the bid, had named the plaintiff as the subcontractor for the electrical work. Id. “The trial court held that, because the plaintiff did not prove that the defendant had engaged in a repeated course of misconduct, the plaintiff did not establish that the defendant violated CUTPA.” Id., 349. This court reversed the judgment of the trial court and concluded that “the trial court improperly declined relief to the plaintiff on the ground that it had alleged and proven only a single act of misconduct.” Id., 353. In so doing, we made it clear that a single act of misconduct may constitute a violation of CUTPA.

The defendant, therefore, is incorrect in claiming that a single transaction or act of misconduct cannot constitute a violation of CUTPA and that she would have had to be engaging in similar types of unfair or deceptive practices with more individuals than just the plaintiffs for the court to find properly that her actions constituted a CUTPA violation. The defendant’s claim, therefore, is without merit.

Ill

The defendant’s final claim is that the court “violate^] the constitutional rights of the parties in ruling that the parties could not enter into other contracts for additional services which were outside the scope of the [rental assistance] contract.” Specifically, the defendant asserts that the Connecticut legislature has not passed any law that would prohibit the parties from entering into a separate contract for the rental of the garage, but that the court “appears in its memorandum of decision to be utilizing both state regulations and [CUTPA] to void the garage rental contract between the parties.” The defendant’s claim is wholly without merit.

As we explained in part I, there is no evidence that the court held that the parties could not enter into a separate agreement for the rental of a garage. Instead, the court based its ruling on its finding that there was no separate agreement for the rental of the garage. The court weighed the conflicting testimony and evidence and discounted the defendant’s explanation for the additional rental payment, finding it an attempt by her to circumvent the terms of the rental assistance agreement.

The defendant, nevertheless, argues that “[t]he memorandum of decision . . . intimates that because the parties entered into a [rental assistance] contract for the dwelling unit, the parties could not enter into any other contracts for additional services” and that the “trial court . . . appears ... to be utilizing both state regulations and [CUTPA] to void the garage rental contract between the parties.” (Emphasis added.) We do not understand the court’s memorandum of decision to void a contract between the parties for the rental of a garage or to state that the parties were not permitted to contract for services outside of the rental of the dwelling unit. We also are not willing to read into the memorandum of decision something beyond that which is plainly stated. We therefore conclude that the defendant’s claim is entirely without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that although the plaintiffs were not a party to the rental assistance contract, it appears that they proceeded under a third party beneficiary theory. The rental assistance contract plainly states that its purpose is “to assist the Family identified in Section 1A to lease a decent, safe, and sanitary dwelling unit from the Owner.” Section 1A lists Annette Hart as the family representative.

       The court awarded $12,000 in damages to the plaintiffs on their breach of contract claim and $1 to the plaintiffs on their CUTPA claim. The court further found in favor of the defendant on her counterclaims for unpaid rent and damages to the premises. The court awarded the defendant $298460 on her counterclaims and offset that amount against the $12,001 judgment for the plaintiffs. No appeal was taken from the judgment on the defendant’s counterclaims.

       During the trial, the following colloquy, in relevant part, took place between the plaintiffs’ counsel and Annette Hart:
      “[Plaintiffs’ Counsel]: When you moved in, had you signed any leases?
      “[The Witness]: When I moved? With [the rental assistance program].
      “[Plaintiffs’ Counsel]: Just with [the rental assistance program]?
      “[The Witness]: That’s correct.
      * ** *
      “[Plaintiffs’ Counsel]: And under that lease, your rent was to be $700 a month; is that correct?
      “[The Witness]: That’s correct.
      * * *
      “[Plaintiffs’ Counsel]: Now, did there come a time when you were presented with another lease by [the defendant]?
      “[The Witness]: Yes. After we moved in.
      “[Plaintiffs’ Counsel]: After you moved in?
      “[The Witness]: After we moved in, then she brought her own lease.
      * * *
      “[Plaintiffs’ Counsel]: Now, Mrs. Hart, when did [the defendant] present you with the new lease for the $900 a month lease, exhibit E?
      “[The Witness]: In December.
      “[Plaintiffs’ Counsel]: Okay. And what did she say to you when she presented it to you?
      “[The Witness]: She said, in order for you to remain here, you will have to sign this agreement, which I made up. This was different than the rental agreement, rental assistance agreement, that we had signed with [the rental assistance program]. But I had already given up my dwelling, my family and I, and so I signed it, not having anyplace else to go.
      “[Plaintiffs’ Counsel]: Did she tell you why she was doing that?
      “[The Witness]: She said she wanted more money for the dwelling.”
      The following colloquy took place between the plaintiffs’ counsel and Charles Hart:
      “[Plaintiffs’ Counsel]: Now, were you present when . . . the defendant brought the $900 a month lease to the house?
      “[The Witness]: Yes, I [was]. It was right in our kitchen.
      “[Plaintiffs’ Counsel]: What did you hear [the defendant] say?
      “[The Witness]: She said, if you want to live there, or, you know, we had to sign the agreement with the — [the rental assistance program], first of all, for $700 for the place, and after, she came a month later with [the $900 lease]. I think it was December she came with [the $900 lease] and said . . . I’m going to have to go up on the rent in order for you to continue to — here. The property [is] worth more than $700.”

       Included in the evidence the court may have considered, the record contains, in addition to two rental assistance leases and one rental assistance contract, three nonrental assistance leases signed by the parties. The plaintiffs submitted two of those leases, which are signed originals. The defendant submitted a photocopy of one lease. All three leases contain the parties’ signatures. The three leases submitted by the parties appear to be identical, except for paragraph seven, which is entitled “RENT PAYMENTS.” Under that paragraph, the original leases submitted by the plaintiffs, one of which ran from December 1, 1993, to November 30, 1994, and the other of which ran from December 1, 1994, to November 30, 1995, state that the plaintiffs will pay a monthly rent of $900. The lease submitted by the defendant, which ran from December 1, 1993, to November 30, 1994, lists the rent as being $700 and, on a separate line, states that the plaintiffs will pay $200 for rental of the garage. The signatures on all three leases are on the last page of the lease, whereas paragraph seven is on the first page of the lease.

       The defendant cites to part II B of Quimby v. Kimberly Clark Corp., supra, 28 Conn. App. 672, in support of her argument that she would have had to be engaging in similar types of unfair or deceptive practices with more individuals than just the plaintiffs for the court to have found properly that her actions constituted a CUTPA violation. The defendant’s reliance on Quimby is misplaced because our holding in part H B of that opinion was based on our Supreme Court’s decision in Mead v. Burns, 199 Conn. 651, 509 A.2d 11 (1986), and was limited to the specific situation in which a plaintiff has alleged violations of CUTPA and the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq., against an insurer on the basis of conduct that constitutes an unfair claim settlement practice as defined in General Statutes § 38a-816 (6). Because the present case does not involve insurer misconduct or an alleged unfair settlement practice in violation of § 38a-816 (6), our holding in Quimby is not applicable. Moreover, to the extent that one might read Quimby to stand for the broad proposition that all CUTPA claims require more than a single transaction, we squarely reject that notion. See Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn. App. 342, 344, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002).

       In other words, the court believed the testimony of the plaintiffs and found that the defendant’s explanation of the $200 discrepancy between what the rental assistance program permitted her to coEect and what she actuaEy coEected merely was a pretext to justify her having coEected more in rent than was permitted by the rental assistance program.

       The court's memorandum of decision does not state that the parties were prohibited from entering into a separate contract for the rental of a garage, nor does it declare such an agreement void. If the defendant thought that the court, by its decision, was implying that the rental assistance contract prohibited the parties from entering into a separate agreement for the rental of the garage or that the court was impliedly declaring such an agreement void, the defendant should have filed a motion for articulation of the court’s ruling. See Thompson v. Orcutt, 70 Conn. App. 427, 441, 800 A.2d 530, cert. denied, 261 Conn. 917, 806 A.2d 1058 (2002); Maloney v. PCRE, LLC, 68 Conn. App. 727, 743-44, 793 A.2d 1118 (2002).


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    EDWARD L. LEHN III ET AL. v. MICHAEL DAILEY ET AL.
    (AC 22863)
    Bishop, West and Hennessy, Js.

      Submitted on briefs January 10
    officially released July 1, 2003

      Leslie S. Hollo filed a brief for the appellant (defendant Michael Dailey).

      Robert A. DeMarco filed a brief for the appellees (plaintiffs).
   Opinion

WEST, J.

The defendant Michael Dailey appeals from the judgment of the trial court awarding the plaintiffs, Edward L. Lehn III and his wife, Barbara A. Lehn, $34,205.68 in damages arising from the defendant’s sale of a certain security to the plaintiffs. The defendant claims that the court improperly concluded that he violated (1) General Statutes § 36b-16 and (2) General Statutes § 36b-5 (a) (2). We affirm the judgment of the trial court.

The following facts are necessary for our resolution of the defendant’s appeal. The plaintiffs inherited some funds that they wanted to invest. Because they had little knowledge of potential suitable investments, the plaintiffs attended several investment seminars. In the autumn of 1997, the plaintiffs met the defendant at a seminar on applying for financial aid for college. The defendant assisted the plaintiffs in evaluating the financial aid packages. He also made some recommendations for investments that would help the plaintiffs pay for college expenses. Pursuant to those recommendations, the plaintiffs took advantage of one such investment opportunity. The plaintiffs made a profit on that investment.

In April or May, 1998, the defendant approached the plaintiffs with a promissory note issued by South Mountain Resort and Spa, Inc. (South Mountain). By its terms, the note was payable at the end of nine months, bearing an interest rate of 10.9 percent. The defendant represented that the note was fully insured and that the plaintiffs’ investment would be returned even if South Mountain went out of business. In July, 1998, the plaintiffs purchased that promissory note for $18,000. The plaintiffs’ understanding was that interest payments in the amount of $164 were to be sent monthly during the lifetime of the note. The plaintiffs, however, received only three interest payments, those for September, October and December, 1998. In March, 1999, South Mountain offered to renew the note, which was due to mature the following month. The plaintiffs declined that offer and demanded payment of the principal and accrued interest. South Mountain failed to remit the demanded payment. Instead, the plaintiffs were notified that South Mountain was filing a petition for relief pursuant to chapter 7 of the United States Bankruptcy Code.

The plaintiffs then contacted Global Insurance Company, the guarantor of the note, requesting that the principal and accrued interest be paid. Global did not respond to that request. The plaintiffs then commenced the present action.

Following a one day court trial, the court rendered judgment in favor of the plaintiffs. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the court improperly concluded that because the promissory note was due and payable in a full nine months, it qualifies as a security that should have been registered pursuant to § 36b-16 prior to being offered or sold within the state. The defendant concedes that the promissory note was not registered, but he argues that pursuant to General Statutes § 36b-21 (a), the security is specifically exempt from the registration requirement of § 36b-16. We disagree.

Because the issue presented to us is one of statutory construction, our review is plenary. Spears v. Garcia, 263 Conn. 22, 27, 818 A.2d 37 (2003). We begin our analysis by noting that it is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Thus, this process requires us to consider all relevant sources of the meaning of the language at issue . . . .” (Citations omitted; internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc).

General Statutes § 36b-16 provides: “No person shall offer or sell any security in this state unless (1) it is registered under sections 36b-2 to 36b-33, inclusive, (2) the security or transaction is exempted under section 36b-21, or (3) the security is a covered security provided such person complies with any applicable requirements in subsections (c), (d) and (e) of section 36b-21.” General Statutes § 36b-21 (a) provides in relevant part: “The following securities are exempted from sections 36b-16 and 36b-22 . . . (10) any commercial paper which arises out of a current transaction or the proceeds of which have been or are to be used for current transactions, and which evidences an obligation to pay cash within nine months of the date of issuance, exclusive of days of grace, or any renewal of such paper which is likewise limited, or any guarantee of such paper or of any such renewal . . . .”

The plain language of § 36b-21 exempts from the registration requirements those securities that are due and payable within nine months. The statute does not provide a definition of the term “within.” Where the legislature has not provided a specific definition of a word in a statute, “we look to the common understanding of [that word] as expressed in a dictionary.” (Internal quotation marks omitted.) State v. Russo, 259 Conn. 436, 449, 790 A.2d 1132, cert. denied, 537 U.S. 879, 123 S. Ct. 79, 154 L. Ed. 2d 134 (2002); see General Statutes § 1-1 (a) (“[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired apeculiar and appropriate meaning in the law, shall be construed and understood accordingly”).

“Within” is defined as “a function word to indicate situation or circumstance in the limits or compass of: as . . . not beyond the quantity, degree, or limitations of . . . .” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1999). The New College Edition of the American Heritage Dictionary (1983) defines the word “within” as “[i]nside the limits or extent of.”

In the present case, the subject promissoiy note, by its own terms, came due at the end of a full nine months from the date of issuance. No payment, therefore, was required until that nine month period had expired. Because the maturity of the note in question falls beyond the statutory limit, we conclude that it is not exempt under § 36b-21 (a) and that, consequently, it should have been registered.

II

We next consider the defendant’s claim that the court improperly concluded that he violated § 36b-5 (a) (2). The defendant argues that liability pursuant to § 36b-5 (a) (2) requires a finding that a defendant acted with scienter. We disagree.

General Statutes § 36b-5 (a) provides in relevant part: “No person who directly or indirectly receives compensation or other remuneration for advising another person as to the value of securities or their purchase or sale, whether through the issuance of analyses or reports or otherwise, shall ... (2) make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading . . . .”

The court found the following relevant facts. The defendant’s only knowledge about the soundness of the investment came from James P. Carpenter, a licensed broker and principal of the Investors Capital Corporation. According to the defendant, Carpenter’s knowledge regarding the investment was gained from a personal visit to the site and personal knowledge of the financial situation of South Mountain. Carpenter told the defendant that the investment was safe and that it was secured by a bonding company. In addition, Carpenter provided the defendant with some of the resort’s promotional material. On the basis of those promotional materials and his conversations with Carpenter, the defendant advised the plaintiffs that the investment was safe because it was secured by a bond, and he assured the plaintiffs that the investment was guaranteed “no matter what.”

The court concluded that the defendant “had an obligation in his capacity as a financial adviser to make a reasonable attempt to verify on his own the statements made by South Mountain in [its] brochures and commercials, and representations made by Carpenter before suggesting to the plaintiffs his own opinion as to the wisdom of the contemplated investment, which he promoted.” We agree.

The defendant does not dispute that he was compensated for his efforts in selling the security to the plaintiffs. He also has not challenged the finding that the plaintiffs did not know, nor did they have reason to know, that the information regarding the promissory note and the soundness of the investment came from a third party and not from the defendant’s own research and analysis. We must determine, therefore, whether the defendant’s failure to disclose the source of his knowledge as to the soundness of the investment that he recommended to the plaintiffs was a misrepresentation or an omission of a material fact under § 36b-5 (a) (2). Additionally, we must decide whether liability pursuant to § 36b-5 (a) (2) requires that the investment adviser acted with the intent to defraud.

A

We first consider whether the omission at issue involved a material fact. A material fact is a fact that “a reasonable investor would have considered significant in making investment decisions.” Ganino v. Citizens Utilities Co., 228 F.3d 154, 161 (2d Cir. 2000). A fact need not be outcome determinative for it to be material. See id., 161-62; Folger Adam Co. v. PMI Industries, Inc., 938 F.2d 1529, 1533-34 (2d Cir.), cert. denied, 502 U.S. 983, 112 S. Ct. 587, 116 L. Ed. 2d 612 (1991). On the other hand, “[a]n omitted fact may be immaterial if the information is trivial . . . or is so basic that any investor could be expected to know it. . . .” (Citations omitted; internal quotation marks omitted.) Ganino v. Citizens Utilities Co., supra, 162; see also Levitin v. PaineWebber, Inc., 159 F.3d 698, 702 (2d Cir. 1998), cert. denied, 525 U.S. 1144, 119 S. Ct. 1039, 143 L. Ed. 2d 47 (1999). Those definitions are in general accord with various state court interpretations of the analogous language found in the Uniform Securities Act. See,.e.g., Bradley v. Hullander, 272 S.C. 6, 21-22, 249 S.E.2d 486 (1978); Aspelund, v. Olerich, 56 Wash. App. 477, 481-82, 784 P.2d 179 (1990).

In the present case, the defendant had successfully advised the plaintiffs regarding prior investment opportunities. On the basis of that investment history and their familiarity with the defendant, the plaintiffs relied on his statements regarding the soundness of the promissory note investment. Thus, in promoting the investment, the defendant relied on the goodwill that he had established with the plaintiffs. It was not unreasonable for the plaintiffs, having been successfully advised by the defendant in the past, to rely on his statements in deciding to invest in the security. The plaintiffs may have been more cautious, however, had they known that the positive assessment of the security was not based on the defendant’s own research, but on representations made by a third party unknown to them.

Because the standard for determining whether a particular omission involved a material fact is an objective rather than a subjective one, the plaintiffs need not prove that they would have acted differently if they had been in the possession of full information. See Ganino v. Citizens Utilities Co., supra, 228 F.3d 162. It is enough that they would have considered such information an important element in their decision-making process. See id. Accordingly, we conclude that in advising the plaintiffs to invest in the South Mountain note, the defendant did omit a material fact in violation of § 36b-5 (a) (2).

B

We next consider what degree of scienter, if any, is required to support a violation of § 36b-5 (a) (2). We do not believe a plaintiff needs to show that the misstatement or omission of material fact was motivated by an intent to commit fraud. Rather, we conclude that liability may be premised on either intentional or negligent misrepresentations or omissions.

At the outset of our analysis, we note that the courts of this jurisdiction have not construed the specific statute before us, § 36b-5. Nevertheless, our courts have interpreted an analogous statute within the Connecticut Uniform Securities Act, General Statutes § 36b-4, which contains language identical to the relevant language of § 36b-5. The parties have offered no reason, and we can think of none, why the interpretations of § 36b-4 should not guide our analysis of § 36b-5.

To establish liability pursuant to § 36b-4 (a) (2), “the buyer must prove: (1) that the . . . violator offered or sold a security by means of either an untrue statement of a material fact, or an omission to state a material fact necessary to make any statements made, in the circumstances of their making, not misleading; and (2) that the buyer did not know of the untruth or omission.” Connecticut National Bank v. Giacomi, 242 Conn. 17, 46, 699 A.2d 101 (1997).

Our Supreme Court has stated that an individual charged with a violation of § 36b-4 “has a defense to such an action if it meets its burden of persuading the fact finder that it did not know, and in the exercise of reasonable care could not have known, of the untruth or omission.” Id. That language clearly suggests that a violation of the statute does not require an intent to defraud, but may be predicated on a negligent omission of a material fact.

Both the plain language of § 36b-5 (a) (2) and the legislative genealogy of that language support the conclusion that liability under the statute does not require an intent to defraud. First, that interpretation is in accord with the language of the statute itself. As does § 36b-4, § 36b-5 (a) provides for three broad categories of prohibited action. The first and third subdivisions specifically mention fraud as an element of the violation. By contrast, subdivision (2) of § 36b-5 (a) does not contain any overt reference to fraud. Indeed, making intent to defraud an element of subdivision (2) would render it redundant because a fraudulent statement or omission would appear already to be prohibited under either subdivision (1), employing a scheme or artifice to defraud and subdivision (3), engaging in any act, practice or course of business operating as a fraud or deceit.

Additionally, because the Connecticut Uniform Securities Act, General Statutes §§ 36b-2 to 36b-33, is a substantial adoption of the major provisions of the 1956 Uniform Securities Act, we may look to interpretations of that act in interpreting analogous language in our own statutes. See Connecticut National Bank v. Giacomi, 233 Conn. 304, 323-24, 659 A.2d 1166 (1995), on appeal after remand, 242 Conn. 17, 699 A.2d 101 (1997). Under the Uniform Securities Act, civil liability may be imposed for both intentional and negligent misrepresentations or omissions. 3 A. Bromberg & L. Lowenfels, Securities Fraud & Commodities Fraud (1982) § 8.4 (210). That interpretation is in accord with numerous states’ interpretations of the relevant language contained in their adopted versions of the Uniform Securities Act. See Diaz Vicente v. Obenauer, 736 F. Sup. 679 (E.D. Va. 1990) (interpreting Virginia Securities Act); Crook v. Shearson Loeb Rhoades, Inc., 591 F. Sup. 40 (N.D. Ind. 1983) (interpreting Indiana Securities Act); Banton v. Hackney, 557 So. 2d 807 (Ala. 1989) (interpreting Alabama Securities Act); State v. Kershner, 15 Kan. App. 2d 17, 801 P.2d 68 (1990) (specific intent not required to violate Kansas Securities Act); State v. Fries, 214 Neb. 874, 337 N.W.2d 398 (1983) (negligent misrepresentation or omission sufficient for civil liability under Uniform Securities Act; scienter required only for criminal liability); Bradley v. Hullander, supra, 272 S.C. 21-22 (negligent misrepresentation sufficient to violate South Carolina Uniform Securities Act); Aspelund v. Olerich, supra, 56 Wash. App. 482 (scienter not required in fraud, misrepresentation action under Securities Act of Washington); State v. Temby, 108 Wis. 2d 521, 322 N.W.2d 522 (1982) (intent to defraud not required under Wisconsin Uniform Securities Act).

Notwithstanding those interpretations of the relevant statutory language, the defendant relies on Hitchcock v. deBruyne, 377 F. Sup. 1403, 1405 (D. Conn. 1974), for the proposition that, under the Connecticut Uniform Securities Act, the liability of a nonseller associated with a seller who made false statements or a material omission in connection with a sale of securities requires scienter and cannot be predicated on mere negligence. That case is of dubious value to the present inquiry, however, because the United States District Court for the District of Connecticut merely assumed that our state courts would interpret the Connecticut Uniform Securities Act to have the same scienter requirement as found in federal court interpretations of the analogous language of rule 10b-5 of the Securities and Exchange Commission. Id. Subsequent to Hitchcock, however, our Supreme Court expressly rejected a slavish devotion to federal interpretations of rule 10b-5 in interpreting the Connecticut Uniform Securities Act. In particular, our Supreme Court rejected interpretations of the Connecticut Uniform Securities Act premised on federal interpretations of rule 10b-5 subsequent to the promulgation of the Uniform Securities Act in 1956. See Connecticut National Bank v. Giacomi, supra, 233 Conn. 323-24. “[I]n the absence of other indicators of legislative intent, we look [not to the meaning of rule 10-5 at the time that the Connecticut Uniform Securities Act was adopted, but] instead to the meaning of the Uniform Act . . . .’’Id., 324. Thus, where the interpretations of rule 10b-5 and the analogous language of the Uniform Securities Act have diverged since 1956, it is the jurisprudence under the Uniform Securities Act that is most compelling. See id. We conclude, therefore, that scienter is not required to establish liability for a misrepresentation or omission pursuant to § 36b-5 and that the court applied the appropriate standard of liability under § 36b-5 (a) (2).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs, Edward L. Lehn III and his wife, Barbara A. Lehn, brought this action against four defendants: Dailey, James P. Carpenter, Investors Capital Corporation and Global Insurance Company, Ltd. Carpenter, Investors Capital Corporation and Global Insurance Company, Ltd., are not parties to this appeal. We therefore refer in this opinion to Dailey as the defendant.

       The defendants Investors Capital Corporation and Global Insurance Company, Ltd., were defaulted for failure to appear. The court awarded joint and several damages in the amount of $34,205.68 against the defendants Dailey, Carpenter and Investors Capital Corporation. The court also rendered judgment against Global Insurance Company, Ltd., and awarded damages to the plaintiffs in the amount of $22,698.

       General Statutes § 36b-4 (a) provides in relevant part: “No person shall, in connection with the offer, sale or purchase of any security, directly or indirectly ... (2) make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading . . . .” As stated previously, General Statutes § 36b-5 (a) provides in relevant part: “No person who directly or indirectly receives compensation or other remuneration for advising another person as to the value of securities or their purchase or sale, whether through the issuance of analyses or reports or otherwise, shall ... (2) make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading . . . .”

       Thus, prohibited activity includes employing “any device, scheme or artifice to defraud”; General Statutes § 36b-5 (a) (1); or engaging in “any act, practice or course of business which operates or would operate as a fraud or deceit . . . .” General Statutes 36b-5 (a) (3).

       The Uniform Securities Act language at issue in this appeal “was modeled on rule 10b-5 of the Securities and Exchange Commission (SEC), which, in turn, was modeled on § 17 (a) of the federal Securities Act of 1933. L. Loss, Commentary on the Uniform Securities Act (1976) official comment to § 101, p. 6. Although modeled on § 17 (a), rule 10b-5 was promulgated by the SEC pursuant to its authority under § 10 (b) of the Securities Exchange Act of 1934.” Connecticut National Bank v. Giacomi, supra, 233 Conn. 321.


author: FOTI, J.

text:
    RITA A. WALLACE v. HECTOR L. HADDOCK ET AL.
    (AC 23310)
    Lavery, C. J., and Foti and Mihalakos, Js.
    Argued May 12
    officially released July 1, 2003

      Danielle DiBerardini-Albrecht, for the appellants (defendants).

      Robert H. Keyes, for the appellee (plaintiff).
   Opinion

FOTI, J.

In this action arising out of a motor vehicle accident, the defendants, Hector L. Haddock and Subaru Leasing Corporation, appeal from the trial court’s judgment rendered following a jury verdict in favor of the plaintiff, Rita A. Wallace, in which the court ordered an additur of $15,000. The defendants claim that the court (1) abused its discretion by concluding that the juiy’s award of $1715 in noneconomic damages was insufficient as a matter of law and (2) improperly failed to offer the parties the alternative of a new trial if the additur was not accepted, in contravention of General Statutes §§ 52-216a and 52-228b. Because we conclude that the court should not have rendered judgment without giving the parties an opportunity to reject the additur, we reverse the judgment of the trial court.

The following facts and procedural history are relevant to our discussion of the claims. On April 19, 1999, the vehicle driven by Haddock struck the vehicle operated by the plaintiff from behind while it was at a stop sign at a busy Bridgeport intersection. The plaintiff filed a complaint against the defendants on October 19,2000, claiming that because of the motor vehicle accident, she suffered from headaches, and sustained injuries to her cervical spine, hip, knee and shoulder.

The parties tried the case to a jury on January 3 and 4, 2002. On January 7, 2002, the jury returned a verdict in favor of the plaintiff. It awarded $3285 in economic damages and $1715 in noneconomic damages for a total damages award of $5000. On January 17,2002, the plaintiff filed a motion for an additur or, in the alternative, a motion for a new trial on the issue of damages. The defendants objected. The court heard argument on March 11, 2002, and, by memorandum of decision filed July 12, 2002, granted the motion for an additur. The court ordered an additur of $15,000. The court then immediately rendered judgment for the plaintiff, including the additur. This appeal followed.

I

We first consider the defendants’ claim that the court abused its discretion in awarding an additur. Specifically, the defendants argue that the court improperly concluded that under the circumstances of the present case, “an award of $1715 [for noneconomic damages] for a thirty-three year old woman with a 35 percent disability does shock the conscience.”

Generally, we will not disturb a court’s decision to set aside a jury verdict and to order an additur unless we conclude that the court has abused its discretion. Childs v. Bainer, 235 Conn. 107, 113, 663 A.2d 398 (1995). In making such a determination, we are mindful of the great deference that a court should accord to a jury’s award of damages. Id., 112.

“Litigants have a constitutional right to have factual issues determined by the jury. This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded. . . . This right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court. . . . The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury. . . . Similarly, [t]he credibility of witnesses and the weight to be accorded to their testimony lie within the province of the jury. ... In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict.” (Citations omitted; internal quotation marks omitted.) Id., 112-13.

Although the court’s legal discretion to set aside a verdict and to order an additur is broad, “it is not without its limits.” Wichers v. Hatch, 252 Conn. 174, 189, 745 A. 2d 789 (2000). In Wichers, the Supreme Court reiterated the test that a court must apply in exercising its discretion in such cases. “A mere doubt of the adequacy of the verdict is an insufficient basis for such action. ... A conclusion that the jury exercised merely poor judgment is likewise insufficient. . . . The ultimate test which must be applied to the verdict by the trial court is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption.” (Internal quotation marks omitted.) Id., 187.

Nevertheless, a court’s decision to set aside a verdict and to order an additur also is “entitled to great weight and every reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) Mansfield v. New Haven, 174 Conn. 373, 375, 387 A.2d 699 (1978). “[T]he trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury.” (Internal quotation marks omitted.) Childs v. Bainer, supra, 235 Conn. 113. In determining whether the court abused its discretion, therefore, we decide only whether, on the evidence presented, the court reasonably could have decided that the jury did not fairly reach the verdict it did. To do so, we must “examine the evidential basis of the verdict itself . . . .” Wichers v. Hatch, supra, 252 Conn. 188. “[T]he court’s action cannot be reviewed in a vacuum. The evidential underpinnings of the verdict itself must be examined.” (Internal quotation marks omitted.) Id., 189.

Having determined that to review whether a court properly exercised its discretion in granting a motion for an additur, we must review the evidence presented to the jury, we conclude that the record presented in the present case is inadequate for us to review the defendants’ claim properly. As the appellants, the defendants are responsible for providing us with an adequate record on appeal. Practice Book § 61-10; Amba Realty Corp. v. Kochiss, 67 Conn. App. 149, 153, 786 A.2d 1137 (2001), cert. denied, 259 Conn. 912, 789 A.2d 993 (2002).

In its memorandum of decision, the court provides little rationale for its decision to grant the plaintiffs motion for additur. It states that “it was apparent in this case that the jury’s award of noneconomic damages was inconsistent with its finding for the plaintiff on the issue of liability and its award of economic damages. Under the circumstances, the award of $1715 for a thirty-three year old woman with a 35 percent disability does shock the conscience.” The court also stated that “it appears that the jury misunderstood the court’s instructions or that the award was the product of partiality, prejudice, mistake or corruption.” In support of that conclusion, the court noted that the jury’s $1715 noneconomic damages award brought the total award to an even $5000. The defendant failed to seek any further articulation of the court’s reasoning for granting the motion for an additur. See Practice Book § 66-5.

The defendants also have failed to provide us with any transcripts of the proceedings from which to review the evidentiary basis of the jury’s verdict. Because the court, in ordering the additur, was concerned with the jury’s noneconomic damages award, we find it necessary to review the testimony of the plaintiff and her physicians, not simply the documentary evidence presented. Without transcripts, the record before us is inadequate.

Because the trial judge had the opportunity to observe the witnesses along with the jury, and to assess their testimony and credibility as well as to detect any factors that may have influenced the jury improperly; see Childs v. Bainer, supra, 235 Conn. 113; without a transcript of the testimony presented and the court’s instruction to the jury on the law, we cannot review whether the court’s decision in this particular case amounted to an abuse of discretion. To do so would amount to pure speculation on the part of this court.

II

The defendants next claim that after granting the plaintiffs motion for an additur, the court improperly rendered judgment without offering the parties the alternative of accepting the additur or receiving a new trial, in contravention of §§ 52-216a and 52-228b. We agree.

Section 52-216a provides in relevant part: “If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. ...” Section 52-228b provides in relevant part that “[n]o verdict in any civil action involving a claim for money damages . . . may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”

In Stern v. Allied Van Lines, Inc., 246 Conn. 170, 717 A.2d 195 (1998), our Supreme Court interpreted the interaction between those two statutes. It stated: “[Sections 52-216a and 52-228b] complement each other and perform different functions in the overall statutory scheme concerning the resolution of inadequate verdicts through an order of additur.” Id., 183. It held that § 52-228b describes what a court must do before it may consider setting aside the verdict; specifically, the statute requires that the court offer the parties an additur. Id., 182. “This offer provides the opportunity to remedy the inadequate verdict in a way that is acceptable to both parties, without the expense of another trial.” Id., 183. Section 52-216a requires the court to order a new trial if either party rejects the additur “because the initial verdict was necessarily inadequate as a matter of law.” Id., 181.

In the present case, the court granted the plaintiffs motion for an additur and set aside the jury’s verdict as to damages. It then rendered judgment for the plaintiff, including the $15,000 additur, without giving the parties an opportunity to accept the additur or to receive a new trial as to damages. Because the court found that the jury’s verdict was inadequate as a matter of law, the parties are entitled to a new trial on damages unless they agree to accept the court’s additur. The procedure followed by the court did not properly comply with the statutory scheme as previously discussed.

The judgment is reversed only as to the order of additur and the case is remanded with direction to provide the parties a reasonable opportunity to accept the additur or to receive a new trial on the issue of damages before rendering judgment.

In this opinion the other judges concurred.

       Haddock leased his vehicle from Subaru Leasing Corporation, whose liability in this action is based on General Statutes § 14-154a, which provides: “Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner. ”


text:
    ADALBERT H. MCINTOSH, SR. v. JAMES F. SULLIVAN, COMMISSIONER OF TRANSPORTATION
    (AC 22753)
    Foti, Bishop and West, Js.
    Argued March 18
    officially released July 1, 2003

      Louis B. Blumenfeld, with whom, on the brief, were William J. Scully and Lorinda S. Coon, for the appellant (defendant).

      Bruce W. Diamond, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant, James F. Sullivan, the commissioner of transportation, appeals from the court’s denial of his motion to dismiss the plaintiffs complaint for lack of subject matter jurisdiction. The defendant claims that the court improperly concluded that sovereign immunity did not deprive the court of subject matter jurisdiction over the plaintiffs claim because it fell within the scope of the state highway defect statute, General Statutes § 13a-144, which waives the state’s sovereign immunity. The defendant maintains on appeal that the plaintiffs allegations fall outside the scope of § 13a-144 because (1) the plaintiff was not injured by a highway defect and (2) the § 13a-144 does not apply to alleged defects in the highway’s design. We affirm the judgment of the trial court.

The record reveals the following procedural history. Pursuant to § 13a-144, the plaintiff, Adalbert H. McIntosh, Sr., served notice of his intent to file a claim against the defendant. Thereafter, on February 5, 2001, the plaintiff filed a complaint asserting that the defendant had breached his statutoiy duty to repair and to maintain the state’s highways imposed by § 13a-144. In the complaint, the plaintiff alleges that on the morning of March 1, 2000, he was operating a motor vehicle in the eastbound lane of the highway connecting the exit twenty-three off ramp of Interstate 84 and Route 69 in Waterbury when “a large quantity of rocks, boulders, ice and dirt” dislodged from an area adjacent to the highway and struck the vehicle, injuring him.

The defendant filed an answer to the complaint on April 18, 2001, denying any breach of duty. On July 20, 2001, the defendant filed a motion to dismiss the plaintiffs claim, arguing that sovereign immunity deprived the court of subject matter jurisdiction. See Practice Book § 10-33.

The court, Holzberg, J., denied the defendant’s motion on December 10, 2001. The defendant filed a motion to reargue, which the court also denied, briefly noting: “The defendant’s claim challenges liability, not the jurisdiction of the court.” This appeal followed.

Our standard of review in such cases is well settled. “In ruling upon whether a complaint survives a motion to dismiss, a court 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 pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . Furthermore, whether subject matter jurisdiction exists is a question of law, and our review of the court’s resolution of that question is plenary.” (Citation omitted; internal quotation marks omitted.) Berlin Batting Cages, Inc. v. Planning & Zoning Commission, 76 Conn. App. 199, 203-204, 821 A.2d 269 (2003).

We first address the defendant’s claim that the plaintiff was not injured by a highway defect because the rocks and other debris that struck the plaintiffs automobile did not amount to a defect within the scope of § 13a-144. We disagree.

In Tyson v. Sullivan, 77 Conn. App. 597, 606, 824 A.2d 857 (2003), we recently held that an allegation that rocks and debris fell from an adjacent rock ledge onto a vehicle in the traveled portion of a highway could constitute a defective condition within the scope of § 13a-144. The present action involves the identical condition discussed in Tyson, and any further discussion would simply be repetitive of our analysis in that case. We therefore conclude that the court properly determined that sovereign immunity did not deprive the court of subject matter jurisdiction and denied the defendant’s motion to dismiss.

The defendant also claims that § 13a-144 does not apply to the plaintiffs allegations that suggest defects in the highway’s design. Having concluded that the court has subject matter jurisdiction over the complaint, we need not address that claim. To the extent that the issue is not subsumed by our previous discussion in Tyson, the defendant may raise the issue by way of an appropriate motion to the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although a denial of a motion to dismiss is interlocutory in nature and ordinarily not a final judgment for the purpose of an appeal, our Supreme Court has held that when the motion is based on a colorable claim of sovereign immunity, a denial of a motion to dismiss is a final judgment from which an appeal may lie. Shay v. Rossi, 253 Conn. 134, 164-65, 749 A.2d 1147 (2000) (en banc).

       General Statutes § 13a-144 provides in relevant part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. . . .”

       The complaint incorrectly refers to General Statutes § 7-144.
      The plaintiff alleges the defendant breached his duty in that he (1) located the highway close to raised rocky cliffs, (2) made no attempt oran inadequate attempt to stabilize loose rocks, (3) failed to erect sufficient barriers to prevent falling rocks and debris from entering the highway and falling onto or in the path of vehicles using the highway, (4) failed to place warning signs in the area, (5) failed to make the highway reasonably safe for its intended purpose, (6) knew or should have known of the dangerous condition and failed to correct it, (7) failed to correct the condition, which had existed for a sufficient period of time to have given the defendant notice of the condition and (8) failed to make reasonable investigations of the highway to detect potential danger.

       We note that the record does not contain a memorandum of decision or a signed transcript of an oral decision. Nevertheless, because the essential facts are undisputed and the claim involves a question of law, the record is adequate for review. See Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 395-96, 757 A.2d 1074 (2000) (where de novo review applies and facts are not disputed, precise legal analysis undertaken by trial court not essential to reviewing court’s review of issue on appeal).

        Tyson involved a highway defect action brought by a passenger allegedly injured in the same incident at issue here. We heard oral arguments in both actions on March 18, 2003.