author: Daly, J.

text:
    Wickes Manufacturing Company v. Currier Electric Company, Inc., et al.
    (9194)
    Daly, Lavery and Landau, Js.

      Argued May 2
    decision released September 17, 1991

      Joseph P. Fasi, for the appellant-appellee (plaintiff).

      M. J. Daly III, for the appellee-appellant (named defendant).

      Steven M. Greenspan, with whom, on the brief, was KirlcD. Tavtigian, Jr., for the appellee (defendant United States Fidelity and Guaranty Company).
   Daly, J.

The plaintiffs predecessor, Eagle Signal Corporation (Eagle), instituted this action under General Statutes § 49-42 seeking reimbursement for equipment furnished to the named defendant, a general contractor (contractor) that had contracted with the state to install traffic control lights in Stamford. Also named as a defendant in this action is United States Fidelity and Guaranty Company (USF&G), which furnished a payment bond pursuant to General Statutes § 49-41. The trial court rendered judgment in favor of the plaintiff on its complaint for $58,184.52, plus interest and attorney’s fees, against the contractor and for the plaintiff on the contractor’s counterclaim. The trial court found in favor of USF&G on the plaintiff’s complaint and for the plaintiff on USF&G’s counterclaim. The plaintiff and the contractor have appealed.

The plaintiff appeals from the judgment rendered in favor of USF&G claiming that the trial court failed to recognize that the original contract between the plaintiff’s predecessor, Eagle, and the contractor had been modified to include turn-on services. The plaintiff further claims that the trial court incorrectly concluded that the consulting services, manuals and equipment schematics it provided were not labor and materials pursuant to General Statutes § 49-42 (b). The contractor cross appeals claiming that the trial court improperly granted the plaintiff’s motion permitting it to be substituted as the plaintiff in place of Eagle. USF&G adopted the contractor’s issues on appeal.

The trial court found the following facts. On March 30,1978, the contractor entered into an agreement with the Connecticut department of transportation (DOT) to install new traffic control lights at sixteen intersections in Stamford for $512,217. USF&G furnished the bond on the contract. On January 16,1980, the contractor entered into a contract for $144,599 with Eagle to supply traffic control devices with solid state activated controllers. Eagle shipped the devices during July and August of 1980, and billed the contractor on August 25,1980, for the agreed price. Some problems occurred with the devices, and Eagle corrected them. The DOT paid the contractor the total contract price in November of 1980 and accepted the project in March, 1982. Eagle sued the defendants for the balance due of $58,184.52.

The contractor denied owing any balance and filed a counterclaim claiming that the equipment supplied by Eagle was defective and did not conform to or function as required by the DOT specifications. The contractor claimed that it was forced to expend additional sums to complete the contract and was subject to damage claims by the DOT.

Eagle instituted this action on January 26,1983, and USF&G claimed the action was untimely under General Statutes § 49-42 (b), which provides that “no such suit may be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied by the claimant.” Relying on the following findings, the trial court agreed that the action was untimely. Contrary to the plaintiffs claims, there was no contractual agreement that Eagle perform turn-on services until acceptance by the DOT in March, 1982. Eagle did not have any employees on the job site after January 16, 1982. The trial court found that Eagle’s telephone discussion on January 27, 1982, plus the replacement of some defective parts, did not constitute the furnishing of labor or materials under § 49-42 (b). Likewise, the further provision of service manuals and schematics on August 20, 1982, did not constitute labor and materials under § 49-42 (b).

By motion dated April 19,1989, Wickes Manufacturing Company (Wickes) moved that it be substituted as party plaintiff. The trial court found that Eagle had been purchased in 1981 by Gulf & Western Manufacturing Company, which subsequently became Sorensen Manufacturing Company, and, on September 25, 1985, became Wickes. The trial court granted the motion finding that the action commenced in the name of Eagle was a mistake and that the substitution of Wickes was necessary for the determination of the case. The trial court rendered judgment on May 7, 1990.

I

The plaintiff first claims that the original contract did not require it to supervise the installation, start-up or DOT test compliance of the equipment but that the contract was subsequently modified to provide for such supervision. Such a modification is known in the trade as a turn-on contract.

“ ‘ “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Emphasis added.) Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).’ ... In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... On appeal, ‘we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.’ . . . ‘ “A factual finding may be rejected by this court only if it is ‘clearly erroneous.’ ”. . .’ ” (Citations omitted.) Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987).

Whether a contract exists is a question of fact or a mixed question of fact and law for the court to determine. See Gianetti v. Norwalk Hospital, 211 Conn. 51, 58 n.6, 557 A.2d 1249 (1989). The existence and terms of a contract are determined from the intent of the parties. See Steeltech Building Products, Inc. v. Edward Suit Associates, Inc., 18 Conn. App. 469, 471, 559 A.2d 228 (1989). “The parties’ intentions manifested by their acts and words are essential to the court's determination of whether a contract was entered into and what its terms were.” Id., 471-72. It is within the province of the trier to draw reasonable and logical inferences from the facts proven. B. Holden & J. Daly, Connecticut Evidence § 64, p. 417.

The trial court could reasonably infer that Eagle had completed the contract on August 25, 1980, when it billed the contractor for $144,559, the complete contract price, and charged interest as of that date. The contractor was paid the total contract price by the state in November of 1980. Furthermore, there was evidence that supervision of start-up and testing of equipment after installation is not normally provided by the supplier unless it is included in the original project requirements. From our review of the record we cannot say that the trial court was clearly erroneous in finding no contract modification was entered into between the parties that resulted in a turn-on contract.

II

The plaintiff contends that it provided labor and materials on the following occasions thereby tolling § 49-42 (b). On January 27,1982, a Stamford employee telephoned the plaintiff seeking advice in the wake of experiments carried out on the signalling equipment by city and state employees. On August 20, 1982, the plaintiff sent to the contractor copies of the equipment schematics and the service manuals that had previously been delivered.

This action was brought pursuant to § 49-42; “[that] statute having created the cause of action and prescribed the procedure, the mode of proceeding is mandatory and must be strictly complied with.” Pittsburgh Plate Glass Co. v. Dahm, 159 Conn. 563, 565, 271 A.2d 55 (1970). “[T]he similarity between § 49-42 and the federal statute, popularly known as the Miller Act (40 U.S.C. §§ 270 a-d), makes the decisions of the federal courts relative to the latter helpful.” Id., 567. We seek guidance from the federal case law in determining what constitutes labor and materials under § 49-42 because there is no comprehensive definition of what these terms encompass under our statute. See International Harvester Co. v. L. G. DeFelice & Son, Inc., 151 Conn. 325, 335, 197 A.2d 638 (1964).

The limitations period of the Miller Act cannot be extended by correcting defects. United States v. Hesselden Construction Co., 404 F.2d 774, 776 (10th Cir. 1968). Repair work does not constitute the supplying of labor and materials under the Miller Act. United States v. E.J.T. Construction Co., 415 F. Sup. 1328, 1332 (D. Del. 1976). If additional material is provided to make repairs or provide replacement parts, the running of the statute is not tolled. See General Ins. Co. of America v. United States, 409 F.2d 1326, 1327 (5th Cir. 1969).

The plaintiffs telephone advice given to the Stamford employee was related to some sequencing problems in the signal equipment. The trial court found that it was not turn-on advice and no charge was billed for the conversation. The trial court cannot be held to be clearly erroneous in finding that this free advice was not labor that tolled § 49-42 (b).

The equipment schematics and service manuals that the plaintiff shipped to the contractor were copies of documents previously shipped. The trial court found that such a shipment was not required under the contract between the plaintiff and the contractor and was furnished as a courtesy. See, e.g., Morefield Communications, Inc. v. Pursel Construction Co., 359 Pa. Super. 514, 519, 519 A.2d 470 (1986). The trial court was not clearly erroneous, therefore, in finding that these schematics and manuals were not material that tolled § 49-42 (b).

The plaintiff claims that it should prevail on the basis of Trinity Universal Ins. Co. v. Girdner, 379 F.2d 317 (5th Cir. 1967). In Trinity, the only work performed by the subcontractor within the year before commencement of the action was the replacement of some defective pipe insulation, which he had previously installed, and the replacement of an air conditioner seal. This work was performed to comply with the demand of a government inspector who refused to approve the original work until such repairs were effected. The Trinity court held these tasks to be labor and material that tolled the Miller Act. Later cases, however, indicate that supplying labor or materials to correct defects or make repairs after completion of the work does not toll the time period under the Miller Act. See General Ins. Co. of America v. United States, supra; United States for Use of Magna Masonry, Inc. v. R. T. Woodfield, Inc., 709 F.2d 249 (4th Cir. 1983).

In the present case, Eagle had completely supplied the equipment required under the original contract by August of 1980 and billed the contractor for the complete contract price on August 25,1980. The DOT paid the contractor the total contract price of Eagle’s equipment in November of 1980. Thus, finding no work performed after August of 1980 that can be characterized as anything other than the correcting of defects; see International Harvester Co. v. L. G. DeFelice & Son, Inc., supra; we conclude that the filing of this action as to USF&G on January 26,1983, was barred by the one year limitations period of § 49-42 (b). See, e.g., United States v. H.I. Lewis Construction Co., 375 F.2d 194 (2d Cir. 1967).

Finally, we note that in the plaintiff’s amended complaint it alleged that it last performed labor or supplied material on February 1,1982. The plaintiff now claims that it furnished such labor and material on January 27 and August 20 of 1982. “ ‘ “It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [its] complaint. . . .’’’’’(Citations omitted.) Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 537, 546 A.2d 216 (1988).

Ill

Both defendants claim that the trial court improperly granted the plaintiff’s motion dated April 19, 1989, that substituted Wickes as the party plaintiff. “The decision whether to grant a motion for the addition or substitution of a party to legal proceedings rests in the sound discretion of the trial court. ... In reviewing the trial court’s exercise of that discretion, every reasonable presumption should be indulged in favor of its correctness . . . and only if its action discloses a clear abuse of discretion is our interference warranted.” (Citations omitted.) Poly-Pak Corporation of America v. Barrett, 1 Conn. App. 99, 102, 468 A.2d 1260 (1983).

“When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted . . . .” General Statutes § 52-109; Practice Book § 101. The trial court found that Eagle was the original party to the contract with the contractor, but that at the time the action was commenced it no longer existed. Wickes was Eagle’s successor-in-interest and the proper party to the lawsuit. The trial court held that commencing the action in the name of Eagle was a mistake and allowed Wickes to be substituted as necessary for a determination of the matters in dispute. This substitution for reason of mistake is clearly authorized by § 52-109 and a review of the record supports the trial court’s conclusion. Thus, the trial court was well within its sound discretion to grant the plaintiffs motion and we find no abuse of that discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 49-42 provides in pertinent part: “(a) Every person who has furnished labor or material in the prosecution of the work provided for in such contract in respect of which a payment bond is furnished under the provisions of section 49-41 and who has not been paid in full . . . may enforce his right to payment under the bond by serving a notice of claim ....
      “(b) Every suit instituted under this section shall be brought in the name of the person suing . . . but no such suit may be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied by the claimant.”

       General Statutes § 49-41 provides in pertinent part: “(a) Before any contract . . . for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof is awarded to any person . . . that person shall furnish to the state or the subdivision a bond . . . for the protection of persons supplying labor or materials in the prosecution of the work provided for in the contract . . . .”

       The plaintiff moved to dismiss the cross appeal of the named defendant because the plaintiff “did not appeal from the judgment entered against Currier Electric,” but rather appealed from “ ‘the final judgment in favor of USP&G Co.’ ” The motion to dismiss the cross appeal was denied. Where only one judgment exists from which an appeal could be taken, a cross appeal may properly be filed by an aggrieved appellee. This rationale also applies when a defendant appeals and a plaintiff cross appeals as to defendants who did not appeal and who are appellees to the main appeal.

       The plaintiff did not allege a modification of the January 16,1980 contract in its complaint.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    State of Connecticut v. Wilson Ortiz
    (8932)
    Daly, Landau and Heiman, Js.
    Argued May 28
    decision released June 25, 1991

      Thomas Ullmann, assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. David M. Kennett
    (9487)
    Daly, Landau and Heiman, Js.
    Argued May 28
    decision released June 25, 1991

      Peter Scillieri, assistant public defender, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    William Oppenheimer v. Catherine Stolle
    (9689)
    Daly, O’Connell and Heiman, Js.
    Argued June 4
    decision released June 25, 1991

      Sperry A. DeCew, for the appellant (plaintiff).

      David J. McDonald, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Benjamin E. Rodriguez
    (9023)
    Daly, Foti and Heiman, Js.
    Argued May 30
    decision released June 25, 1991

      Mark Rademacher, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Gold, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Edna Masarjian v. Albert Masarjian
    (9805)
    Spallone, Landau and Heiman, Js.
    Argued June 3
    decision released June 25, 1991

      Raymond T. Connor, with whom, on the brief, was Christopher T. Godialis, certified legal intern, for the appellant (defendant).

      Dianne M. Andersen, with whom, on the brief, was Melissa A. Granel, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Charles Thompson v. Commissioner of Correction
    (9637)
    Daly, O’Connell and Heiman, Js.
    Argued June 4
    decision released June 25, 1991

      Michael J. Isko, assistant public defender, for the appellant (petitioner).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, was Robert Brunetti, assistant state’s attorney, for the appellee (respondent).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Jesse Ray Reed
    (9388)
    Dupont, C. J., Norcott and Foti, Js.
    Submitted on briefs June 5
    decision released June 25, 1991

      Sandra P. Lax, filed a brief for the appellant (defendant).

      Michael Dearington, state’s attorney, James A. Killen, and Mary Elizabeth Baran, assistant state’s attorneys, filed a brief for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Ronald Tyler v. Lawrence Tilghman, Warden
    (9454)
    Norcott, Cretella and Heiman, Js.
    Argued May 31
    decision released June 25, 1991

      Edan F. Calabrese, for the appellant (petitioner).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Christopher Alexy, deputy assistant state’s attorney, for the appellee (respondent).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Lillian A. Loughlin
    (9647)
    Dupont, C. J., O’Connell and Norcott, Js.
    Argued June 5—decision
    released June 25, 1991

      Vincent P. McCarthy, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were John O'Reilly, assistant state’s attorney, and, on the brief, John Bailey, state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    L. and L. Builders, Inc. v. Debra Parmelee
    (9771)
    Norcott, Foti and Landau, Js.
    Argued June 4
    decision released June 25, 1991

      Debra Parmelee, pro se, the appellant (defendant).

      George A. Law, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Nova Electronics, Inc. v. Mark S. Fortier et al.
    (9754)
    Dupont, C. J., Foti and Landau, Js.
    Argued May 31
    decision released June 25, 1991

      John H. Hanks, with whom, on the brief, was Richard W. Tome, for the appellant (plaintiff).

      Patrick W. Boatman, with whom, on the brief, was Martha R. Rainey, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Martin L. Hammer v. Ronnie S. Hammer
    (8922)
    O’Connell, Noecott and Foti, Js.
    Argued June 3
    decision released June 25, 1991

      Ronnie S. Hammer, pro se, the appellant (defendant) with whom, on the brief, was Marylouise S. Black.

      Martin L. Hammer, pro se, the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Claire B. Pohl v. Clarke C. Pohl
    (9618)
    Daly, Landau and Cretella, Js.
    Argued June 6
    decision released July 2, 1991

      Thomas M. Shanley, for the appellant (plaintiff).

      Alan R. Spirer, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Terry Evans
    (9311)
    (9312)
    Spallone, O’Connell and Cretella, Js.
    Argued June 7
    decision released July 2, 1991

      Terry Evans, pro se, the appellant (defendant).

      James A. Killen, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Paul Murray, senior assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Felix Miranda v. Warden, State Prison
    (9602)
    Spallone, O’Connell and Cretella, Js.
    Submitted on briefs June 7
    decision released July 2, 1991

      Felix Miranda, pro se, the appellant (petitioner) filed a brief.

      JohnM. Bailey, state’s attorney, and Scott Murphy, assistant state’s attorney, and Jack W. Fischer, deputy assistant state’s attorney filed a brief for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Norman Dawkins
    (9019)
    Dupont, C. J., Nokcott and Heiman, Js.
    Argued June 11
    decision released July 9, 1991

      M. Donald Cardwell, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Kevin P. McMahon, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Paul Sontz v. Janet Sontz
    (9472)
    O’Connell, Norcott and Foti, Js.
    Argued June 3
    decision released July 16, 1991

      Neil R. Marcus, with whom, on the brief, was Thomas S. Hyman, for the appellant (plaintiff).

      Helen Allen, with whom, on the brief, was Joseph DeLucia, for the appellee (defendant).
   Per Curiam.

In this appeal from the judgment dissolving the parties’ marriage, the plaintiff challenges the orders of the trial court relating to alimony, child support and division of property. We affirm the judgment of the trial court.

The parties were married in New York on September 7,1976. There are two minor children issue of the marriage. The plaintiff is a tenured teacher employed by the New York City board of education and earns at least $46,800 annually. The defendant is employed in a clerical position with a fuel oil company and earns $19,600 annually.

The trial court attributed the breakdown of the marriage directly to the actions and conduct of the plaintiff. The trial court ordered that the plaintiff pay alimony of $100 a week and child support of $125 a week per child. The court awarded to the defendant sole custody of the children, as well as the marital home, a joint mutual fund, and the net proceeds from the sale of an investment property. In total, the equity in these assets was valued at approximately $66,000 by the trial court. The trial court awarded the plaintiff his pension fund and his deferred compensation plan fund valued together at approximately $68,000.

The trial court is vested with broad discretion in family matters and is in the best position to evaluate the demeanor of witnesses and to interpret the evidence. Caristia v. Caristia, 22 Conn. App. 392, 395, 577 A.2d 1096 (1990).

The plaintiff contends that the trial court abused its discretion in making the financial orders and property distribution, and, further, that it exhibited a prejudicial attitude toward the plaintiff. We have carefully examined the briefs, record and trial transcript, and conclude that the court correctly applied the law, did not abuse its discretion, and exhibited no bias or prejudice toward the plaintiff.

The judgment is affirmed.


text:
    Margaret MacAlpine v. Holiday Homes Corporation et al.
    (9453)
    O’Connell, Landau and Cretella, Js.
    Argued June 6
    decision released July 16, 1991

      Christina M. Storm, with whom was Thomas A. Rouse, for the appellant (named defendant).

      Homer G. Scoville, for the appellee (plaintiff).
   Per Curiam.

The named defendant appeals from a judgment in favor of the plaintiff following a trial to the court. The genesis of the case was a contract that required the defendants to build and convey a single-family house to the plaintiff. The sale did not take place and the trial court awarded the plaintiff $47,100 for breach of contract.

All of the issues raised by the named defendant on appeal concern the court’s factual findings. A review of the record discloses that the conclusions of the trial court were based on facts supported by the evidence and were legally and logically correct. The disputed issues of fact were within the sole province of the trial court to determine. This court cannot retry the case. Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987).

The judgment is affirmed.


text:
    State of Connecticut v. Stephen McCullough
    (9439)
    Dupont, C. J., Norcott and Lavery, Js.
    Argued June 11
    decision released July 16, 1991

      Stephen McCullough, pro se, the appellant (defendant).

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, and Antonia Caratillo, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


author: Spallone, J.

text:
    Stergios Zolotas v. Jon L. Stimpson
    (9459)
    Spallone, Landau and Heiman, Js.
    Argued June 3
    decision released September 24, 1991

      Mark O. Grater, for the appellant (plaintiff).

      Conrad O. Seifert, for the appellee (defendant).
   Spallone, J.

The plaintiff appeals from the trial court’s judgment setting aside the jury’s verdict for the plaintiff. The sole issue warranting our attention is whether the trial court improperly set aside the verdict as to damages only,while leaving intact the jury’s assessment of liability. Although we conclude that the trial court properly set aside the verdict, we reverse that part of the decision limiting the retrial to the issue of damages.

The jury could reasonably have found the following facts. The plaintiff and the defendant engaged in a physical altercation during which blows were struck. The plaintiff claims that he was injured physically and mentally as a result of the assault by the defendant. The plaintiff testified that, immediately after the confrontation, his wife saw his injuries when she applied ice to his arm.

Upon the conclusion of the evidence, the defendant filed a request to charge on the “missing witness” rule because the plaintiff had not called his wife as a witness. Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). The “missing witness” rule provides that the failure to produce a witness who was within a party’s power to produce and who would naturally be produced by him merits an inference that the testimony of that witness would have been unfavorable to the party’s case. Braun v. Edelstein, 17 Conn. App. 658, 663-64, 554 A.2d 1102, cert. denied, 211 Conn. 803, 559 A.2d 1136 (1989). The trial court refused the request and did not give that instruction. The jury returned its verdict in favor of the plaintiff and awarded damages in the amount of $54,401.70. In response to the defendant’s motion to set aside this verdict, the trial court reconsidered its refusal to give the Secondino charge, stating that “the testimony of Mrs. Zolotas was highly significant to confirm or deny the extent of the visible injury to the plaintiff prior to his hospital visit. The court now finds that its failure to charge as requested materially impacted on the issue of damages . . . .” The court then granted the defendant’s motion to set aside the verdict. The trial court, however, set aside the verdict only as to damages and left the jury’s assessment of liability intact. The plaintiff then brought this appeal.

We begin by noting that the trial court’s decision to set aside the verdict was reasonable. The trial judge has a unique and advantageous position for evaluating the factors that may have brought the jury to its verdict. Butler v. Steck, 146 Conn. 114, 119, 148 A.2d 246 (1959). Accordingly, the trial court’s ruling on a motion to set aside a verdict is entitled to great weight. Hearl v. Waterbury YMCA, 187 Conn. 1, 3, 444 A.2d 211 (1982). We hold that the trial court acted properly in setting aside the verdict in light of its finding that its failure to give the requested missing witness instruction materially impacted the jury’s verdict.

We must decide, however, whether the trial court acted properly in limiting the retrial to the issue of damages. We hold that it did not.

The courts of this state, in their discretion, may order a retrial limited in scope to a specific issue or issues. General Statutes § 52-266; Nash v. Hunt, 166 Conn. 418, 431, 352 A.2d 773 (1974); Velardi v. Selwitz, 165 Conn. 635, 643, 345 A.2d 527 (1974). Caution must necessarily be employed, however, in the exercise of this authority because it is often difficult to isolate the effect of a particular mistake. This is especially true where the court is called upon to determine possible effects upon the deliberation of a jury. Hawley v. Rivolta, 131 Conn. 540, 543, 41 A.2d 104 (1945). It is difficult, for example, to determine whether the failure to instruct the jury properly affected its decision regarding liability, damages or both.

Accordingly, “[t]he decision to retain the jury verdict on the issue of liability and order a rehearing to determine only the issue of damages ‘should never be made unless the court can dearly see that this is the way of doing justice in [a] case.’ (Emphasis added.) Murray v. Krenz, [94 Conn. 503, 508, 109 A. 859 (1920)]; Hawley v. Rivolta, supra; Niles v. Evitts, 16 Conn. App. 696, 699, 548 A.2d 1352 (1988); Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 55, 492 A.2d 223 (1985).” Fazio v. Brown, 209 Conn. 450, 455, 551 A.2d 1227 (1988). The exercise of the court’s discretion should be confined to situations “[w]here the error as to one issue or issues is separable from the general issues . . . [and] such . . . limitation does not work injustice to the other issues or the case as a whole.” Murray v. Krenz, supra, 507. “[W]here the retrial of the single issue may affect other issues to the prejudice of either party, the court [can] not exercise its discretion in limiting the new trial but [rather should] grant it de novo.” Id., 508. “An order restricting the issues [of a new trial] is the exception, not the rule”; Niles v. Evitts, supra; because “[a]s a rule the issues are interwoven, and may not be separated without injustice to one of the parties.” Murray v. Krenz, supra. In personal injury cases especially, the question of damages is usually so inextricably interwoven with the question of liability that the two cannot be separated without injustice to one of the parties. See, e.g., Fazio v. Brown, supra; McNamee v. Woodbury Congregation of Jehovah’s Witnesses, 194 Conn. 645, 647-48, 484 A.2d 940 (1984); Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 796, 462 A.2d 1043 (1983); Hawley v. Rivolta, supra; Murray v. Krenz, supra, 508-509; Niles v. Evitts, supra.

We believe that this case presents a situation where a great difficulty exists in determining whether the trial court’s failure to give a missing witness instruction to the jury affected only the issue of damages. It is possible that a jury, so instructed, might extend the impact of a missing witness to other issues in the case. Accordingly, we believe that there must be a retrial of all of the issues.

The judgment is reversed to the extent that it limited the new trial to the issue of damages and the case is remanded for a new trial on all issues.

In this opinion the other judges concurred.


text:
    Shirley Zivic v. Frederick J. Zivic
    (9615)
    Spallone, Foti and Cretella, Js.
    Argued June 5
    decision released September 24, 1991

      George A. Silvestri, with whom, on the brief, was Edward J. Daly, Jr., for the appellant (defendant).

      Neil A. McPhail, with whom, on the brief, was Aaron L. Gersten, for the appellee (plaintiff).
   Spallone, J.

This is an appeal from the decision of the trial court denying the defendant’s postjudgment motion to compel.

The parties’ marriage was dissolved on November 22, 1976. The judgment of dissolution incorporated a stipulation of the parties that contained the following provision: “There’s a lien of approximately a quarter of a million dollars against the wife’s property located on Gunn Mill Road in Bloomfield. When that lien is released by the Charter Oak Bank then and in that event the wife will quitclaim all of her right title and interest in and to her undivided half interest in real estate in St. Thomas, Virgin Islands. Husband will further agree that any interest he owns in real estate located in Simsbury, Canton and the Virgin Islands will first be exhausted to pay that Charter Oak lien before the Charter Oak Bank commences any action against the wife’s property.”

The defendant’s interest in the Canton and Simsbury properties was exhausted in bankruptcy. The defendant paid all but $40,000 of the $250,000 Charter Oak Bank lien against the plaintiff’s Gunn Mill Road property. The Charter Oak Bank subsequently received a judgment against the plaintiff for the remaining $40,000 and the plaintiff sold the Gunn Mill Road property to extinguish that judgment.

On May 31,1989, the trial court, Steinberg, J., ordered the defendant to reimburse the plaintiff the $40,000. On August 24, 1989, the defendant filed a motion entitled, motion to compel and for contempt and modification, requesting the court to order one or more of the following: (1) compel the plaintiff to furnish the defendant with authority to sell the St. Thomas property with whatever safeguards were necessary to ensure that the plaintiff would be paid $40,000 from the proceeds of the sale; (2) find the plaintiff in contempt for refusing to furnish the defendant with the aforementioned authority; and (3) modify the judgment to require the $40,000 due to be paid six months after the plaintiff furnished the aforementioned authority.

On August 22, 1990, the plaintiff filed a motion for contempt for the defendant’s failure to obey the court’s May 31,1989 order that the defendant pay the $40,000. On October 2, 1990, the court found the defendant in contempt for failing to make that payment.

On October 9,1990, the trial court denied the defendant’s motion to compel and, in response to a motion by the defendant, stayed its enforcement of the plaintiff’s motion for contempt pending this appeal. The defendant claims that the trial court improperly interpreted the judgment of dissolution in denying his motion to compel. He also claims that the court improperly found him in contempt.

“A judgment rendered in accordance with a stipulation of the parties is to be regarded and construed as a contract. See Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); Albrecht v. Albrecht, 19 Conn.App. 146, 152, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989). The construction of such an agreement by the trial court is subject to our review under the clearly erroneous standard. Albrecht v. Albrecht, supra; see Lavigne v. Lavigne, 3 Conn. App. 423, 427, 488 A.2d 1290 (1985).” Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990).

The trial court construed the language of the original dissolution decree to require, as a condition precedent to the plaintiffs obligation to quitclaim her one-half interest in the St. Thomas property, that the defendant pay the Charter Oak lien before the bank took any action against the Gunn Mill Road property.

The defendant asserts that this provision of the dissolution decree should have been construed to mean only that the husband’s interest in the Simsbury, Canton and Virgin Islands properties must have been extinguished before the Charter Oak Bank took any action against the wife’s property and, because his interest in the Simsbury and Canton properties had been extinguished in bankruptcy, the language of the decree has been satisfied. As to the St. Thomas property, the husband asserts that he cannot sell that property under Virgin Islands law without the written consent of the plaintiff. According to the defendant, the refusal of the plaintiff to consent prevented the defendant’s compliance with the order to pay the plaintiff.

The defendant concedes that it would be unreasonable to construe the judgment as permitting him simply to alienate his interest in the Simsbury, Canton and St. Thomas properties with no corresponding obligation to pay the Charter Oak Bank lien. The trial court’s construction of this judgment provision gives reasonable meaning to the terms of the judgment by providing that the defendant had not only to extinguish his interest in the Simsbury and Canton properties, but to “pay that Charter Oak lien before the Charter Oak Bank commences any action against the wife’s property.”

A condition precedent is a fact or event that must exist or take place before there is a right to performance. Lack v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951); McIsaac v. Hale, 104 Conn. 374, 379, 132 A. 916 (1926). The nonoccurrence of such a condition pends the obligor’s duty to perform on the ground that it is not due as long as the condition has not occurred. E. Farnsworth, Contracts § 8.3. The defendant failed to perform his obligation under the judgment. Until he performs his obligation, he cannot expect performance by the plaintiff, whose duty to act arises only upon the fulfillment by the defendant of his requirement under the judgment. Accordingly, the trial court reasonably concluded that the defendant cannot compel performance, under the judgment, by the plaintiff. The trial court therefore properly denied the defendant’s motion to compel, for contempt and for modification.

The defendant also claims that the trial court improperly held him in contempt for failing to pay the plaintiff $40,000 as he was required to do under the May, 1989 ruling of the court. Our role in reviewing a contempt order is very limited. “ ‘[I]n an appeal from a judgment of civil contempt, “our review is technically limited to ‘questions of jurisdiction, such as whether the court had authority to impose the judgment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt.’ ” ’ ” Marcil v. Marcil, 4 Conn. App. 403, 405, 494 A.2d 620 (1985). This limited review precludes an attack on the validity of the underlying order, including an attack on its constitutionality. Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 3, 469 A.2d 778 (1984).

Although the defendant is precluded from attacking the judgment underlying the contempt order in this case, he asserts that the court improperly found him in contempt because he cannot raise the $40,000 to pay the plaintiff without selling the St. Thomas property. Although “[t]he inability of a party to obey an order of the court, without fault on his part, is a good defense to the charge of contempt”; Mallory v. Mallory, 207 Conn. 48, 57, 539 A.2d 995 (1988); the defendant has not established that he cannot comply with the order of the court.

The judgment is affirmed'.

In this opinion the other judges concurred.

       In its oral memorandum of decision, the trial court stated: “I find that the wife’s requirement to quitclaim her right, title and interest in the St. Thomas Virgin Islands property was conditioned upon [the] husband’s exhausting his interest in Simsbury, Canton and the Virgin Islands to pay the Charter Oak lien, which he did not do, and that [the] Charter Oak lien must have been paid before the Charter Oak Bank commenced any action against the wife’s property, which the husband did not do . . . .”


author: Norcott, J. Lavery, J.,

text:
    David S. Copeland v. Warden, State Prison
    (9451)
    O’Connell, Norcott and Lavery, Js.
    Argued April 23
    decision released September 24, 1991

      David J. Wenc, for the appellant (petitioner).

      James M. Ralls, assistant state’s attorney, for the appellee (respondent).
   Norcott, J.

The petitioner, David S. Copeland, appeals from the decision of the trial court denying his application for a writ of habeas corpus and rendering judgment for the respondent. He claims that the habeas court wrongfully decided that the sentencing court had the inherent authority to impose a criminal sentence to run consecutive to his prior, court ordered psychiatric commitment. The petitioner further alleges that the habeas court improperly failed to find that the sentencing court’s decision violated his state and federal constitutional rights to due process and equal protection. We affirm the judgment of the habeas court.

The following undisputed facts are pertinent to our resolution of the petitioner’s claims. On June 21,1977, the petitioner was found not guilty by reason of mental disease or defect of the crimes of attempted murder, reckless endangerment and criminal mischief. He was thereafter committed to the Connecticut Valley Hospital, a state institution, for twenty years. On June 5,1981, he was charged with sexually assaulting a female worker at the hospital. After a trial to the court, Spallone, J., the petitioner was found guilty of first degree sexual assault and second degree kidnapping. He was sentenced on December 6,1982, to a total effective prison term of fifteen to thirty years to run consecutive to his psychiatric commitment.

The petitioner began serving his criminal sentence on January 18, 1985, when he was released from the psychiatric institution. In 1986, the petitioner sought habeas corpus relief. After the petitioner filed an amended petition in August, 1988, the case was tried, on March 13,1990, to the court, Potter, J., which denied the writ on April 18, 1990.

The petitioner first claims that the habeas court improperly refused to find that imposition of the consecutive criminal sentence subsequent to his psychiatric commitment was illegal. Both parties agree that General Statutes § 53a-37 is inapplicable. The petitioner, however, claims that the trial court’s inherent power to impose consecutive sentences does not extend to the situation at hand because no common law precedent exists. We disagree.

The inherent right of courts to impose consecutive sentences has long been recognized at common law. See, e.g., State v. Williamson, 206 Conn. 685, 701-704, 539 A.2d 561 (1988); State v. McNally, 152 Conn. 598, 600, 211 A.2d 162 (1965); Redway v. Walker, 132 Conn. 300, 306, 43 A.2d 748 (1945); Glazier v. Reed, 116 Conn. 136, 138-44, 163 A. 766 (1933); State v. Walzer, 9 Conn. App. 365, 367, 518 A.2d 966 (1986). Determining whether two sentences will be concurrent or consecutive is part of “the judicial function of imposing sentences upon a convict and is a matter for the determination of the court.” Redway v. Walker, supra. Although all of our previous cases dealing with this question have involved sentences imposed to run consecutive to a prior criminal term, the petitioner offers no compelling reason why a court should be precluded from imposing a criminal sentence to run consecutive to a prior psychiatric commitment. We agree with the state’s argument that to preclude consecutive sentencing in such situations would in essence eviscerate the effect of criminal punishment in many instances by allowing it to be swallowed up by the length of the psychiatric commitment. A trial court would effectively be stripped of its authority to impose a statutorily mandated punishment in certain instances involving psychiatric confinement.

In this case, the petitioner was sentenced for first degree sexual assault and second degree kidnapping. Because the nature of the crime is one factor that determines the nature of the punishment; State v. Williamson, supra, 703; it was within the trial court’s inherent sentencing powers to issue a consecutive as opposed to a concurrent sentence. We will not permit our courts to be narrowly circumscribed in their discretion to mete out punishment to fit the crime. The petitioner’s sentence was not illegal.

The petitioner next claims that the habeas court improperly failed to find that the sentencing court violated his constitutional rights to due process and equal protection. In essence, he 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, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The Evans standard for appellate review, however, is inappropriate in a habeas corpus proceeding. Johnson v. Commissioner of Correction, 218 Conn. 403, 415, 589 A.2d 1214 (1991); Tyson v. Warden, 24 Conn. App. 729, 733 n.4, 591 A.2d 817 (1991). 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.’ ” Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 750, 557 A.2d 525 (1989), citing Keating v. Glass Container Corporation, 197 Conn. 428, 431, 497 A.2d 763 (1985); Practice Book § 4185 [formerly § 3063]. 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. Practice Book § 4051; Scherr v. Scherr, 183 Conn. 366, 368-69, 439 A.2d 375 (1981). To review the petitioner’s claims now would amount to an “ambuscade of the [habeas] judge.” State v. Wilson, 178 Conn. 427, 436, 423 A.2d 72 (1979).

The judgment is affirmed.

In this opinion O’CONNELL, J., concurred.

Lavery, J.,

dissenting. I disagree with the majority’s conclusion that the trial court has the inherent power to impose a criminal sentence consecutive to a civil psychiatric commitment following an insanity acquittal. The trial court was bound by General Statutes § 53a-37, which codified the trial court’s inherent power regarding multiple sentences. That statute in effect limits the imposition of a consecutive sentence to (1) a person who is subject to any undischarged term of imprisonment imposed at a previous time, and (2) someone who is being sentenced on multiple counts.

To equate a person who is committed to the department of mental health for a mental illness following an insanity acquittal to a person who is sentenced on the conviction of a crime is a conclusion with which I cannot agree. A civil commitment is the confinement of a mentally ill person for treatment or protection, while a sentence, on the other hand, is punishment ordered by the court as the legal consequence of the offense that the defendant has confessed or of which he has been convicted. Ballentine’s Law Dictionary (3d Ed.). In a civil commitment, the state does not use its power to punish, but to deal with the individual’s mental illness. Addington v. Texas, 441 U.S. 418, 428, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). “As a general matter, the confinement of insanity acquittees, although resulting initially from an adjudication in the criminal justice system, is not ‘punishment’ for a crime. ‘The purpose of commitment following an insanity acquittal, like that of civil commitment, is to treat the individual’s mental illness and protect him and society from his potential dangerousness. The committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous .... As he was not convicted, he may not be punished. His confinement rests on his continuing illness and dangerousness.’ ” Payne v. Fairfield Hills Hospital, 215 Conn. 675, 683-84, 578 A.2d 1025 (1990), quoting Jones v. United States, 463 U.S. 354, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983).

Our Supreme Court has also recognized several other differences between an individual who is committed following an insanity acquittal and a person who is convicted and then sentenced. Franklin v. Berger, 211 Conn. 591, 600-601, 560 A.2d 444 (1989). In Franklin, the court disallowed credit towards the defendant’s criminal sentence for time spent in commitment prior to trial because the commitment depends on the individual’s mental health, not on a sentence imposed by a court. Id., 601. Similarly, it is improper for a trial court to impose a criminal sentence consecutive to a commitment following an insanity acquittal because such a commitment is not a sentence within the meaning of § 53a-37.

In addition, General Statutes (Rev. to 1977) § 17-194e, which was in effect at the time of the defendant’s sentencing, provides for the commitment of inmates of correctional institutions to hospitals for mental illness. This provision specifically addresses the situation in which a defendant is convicted and sentenced, but is unable to reside in a correctional institution on account of his mental illness. The concern of the majority that criminal punishment would be swallowed up by psychiatric commitment does not appear to be valid in light of § 17-194e. The statute specifically calls for the release of a defendant if his commitment lasts longer than his criminal sentence. General Statutes § 17-194e. To allow the trial court to impose a criminal sentence consecutive to a commitment already in place is not in accord with the intent of this statutory provision. In a case such as this, the trial court should instead sentence the defendant and then commit him under § 17-194e. This would render the consecutive sentencing, in violation of § 53a-37, unnecessary.

I would reverse and remand to the trial court to resentence the defendant, with the term of the sentence to begin on the date of the original sentence, and with the defendant being given time credit from that date.

       The petitioner alleges violations of the fifth and fourteenth amendments to the United States constitution, and article first, § 8, as amended by article seventeenth of the amendments, and article first, § 20, as amended by articles fifth and twenty-first of the amendments to the Connecticut constitution.

       Practice Book § 935 permits a court to correct an illegal sentence at any time.

       General Statutes § 53a-37 provides in pertinent part: “When multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms in such manner as the court directs at the time of sentence.”

       General Statutes (Rev. to 1977) § 17-194e provides: “The provisions of section 17-178 [commitment proceedings] shall apply to any person regarding whom proceedings for commitment are being instituted under section 17-194c or 17-194d, and to any other person in the custody of the commissioner of correction, except that if the court revokes the order of commitment, the person shall be returned to any institution administered by the department of correction as the commissioner of correction shall designate, unless his custody in the commissioner of correction has terminated, in which case he shall be discharged.” General Statutes § 17-194e was transferred to § 17a-515 effective January 1, 1991.


text:
    Emily S. Shailer v. Planning and Zoning Commission of the Town of Haddam et al.
    (9681)
    Spallone, Daly and Landau, Js.
    Argued May 29
    decision released September 24, 1991

      Helen F. Ryan, with whom, on the brief, were Sean E. Sweeney and Daniel B. Ryan, for the appellant (plaintiff).

      Charles M. Rice, Jr., with whom were Wesley W. Horton and, on the brief, Terrance D. Lomme, for the appellee (defendant Cortul, Inc.).
   Spallone, J.

The plaintiff appeals from the judgment of the trial court affirming the defendant planning and zoning commission’s approval of a subdivision proposed by the defendant Cortul, Incorporated (Cortul). On appeal to this court, the plaintiff claims that the trial court (1) improperly determined that the commission had complied with § 5.1 of its subdivision regulations, (2) improperly determined that the commission had complied with General Statutes § 8-26, and (3) committed several procedural errors in reaching its conclusion upholding the decision of the commission. We disagree with the plaintiff and affirm the judgment of the trial court.

The following facts are pertinent to this appeal. Cortul is the owner of a 108 acre plot of land located between Old Cart Road and Plains Road in Haddam. The plaintiff owns property on Old Cart Road next to Cortul’s 108 acre plot, and on Plains Road across the street from Cortul’s property.

Cortul applied to the commission for approval of a twenty-eight lot subdivision of its property on November 28,1988. The cover letter submitted with that application, dated November 30,1988, included requests for an increase in the maximum permissible road grade from 10 to 12 percent, and a variance to modify the typical road grading section in a rock cut. The commission formally received Cortul’s application at its January 18, 1989 meeting, and a public hearing date was set for March 6, 1989. A public hearing was held on March 6, 1989, and was continued to March 20, April 3, and finally to May 1, 1989.

During the course of the public hearings, Cortul submitted three different plans to the commission, incorporating changes in response to concerns of the commission and town staff. The plans included a proposed road (Cherry Creek Road), 200 feet of which was to be at a 12 percent grade, and a proposed intersection of Cherry Creek Road and Old Cart Road at a 4 percent grade. Both proposed grade situations exceed Haddam subdivision regulations §§ 4.4.7 and 4.4.8, respectively, by 2 percent and thus required a waiver of those regulations by the commission prior to approval of the plans. Waivers are permitted under § 5.1 of the regulations.

These grade variations were discussed several times at commission hearings, and the record clearly indicates that all interested parties were aware that certain waivers, which were included in the proposed plans submitted by Cortul, were required.

At the commission’s July 5,1989 meeting, one of the commissioners orally moved to waive the town regulations with regard to the maximum grade of Cherry-Creek Road and the maximum grade of the intersection of Cherry Creek Road and Plains Road. The minutes of the meeting indicate that both waivers were granted by a six to one vote, with commissioner Margaret Martin casting the sole vote in opposition. In addition, a separate form was used by the commission to record its vote. This “Motion for Waivers” form states that both waivers were granted by a six to one vote, and that the reason for granting each waiver was “[b]ecause waiver will introduce safer road design.” That form, however, contained only five signatures of commissioners voting to grant the waivers. The signature of one commissioner, Peter Aduskevitch, was missing. The commission subsequently approved the subdivision with six attached conditions by a vote of four to three.

Thereafter, the plaintiff appealed to the Superior Court in the judicial district of Middlesex. At a June 20, 1990 hearing, it became apparent that the November 30, 1988 cover letter that was submitted by Cortul with its original application for subdivision approval was not included in the return of record. On July 11, 1990, the trial court granted Cortul’s motion to amend the record to include this letter. The trial court subsequently upheld the decision of the commission. The plaintiff now appeals to this court.

We observe at the outset the sheer number of legal issues and contentions raised by the plaintiff on appeal. Although we have narrowed the issues to be discussed in this opinion, this torrent of claims serves neither the ends of justice nor the parties’ own purposes.

“ ‘ “Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one [issue] . . . [M]ultiplying assignments of error will dilute and weaken a good case and will not save a bad one.” Jackson, Advocacy Before the United States Supreme Court, 25 Temple L.Q. 115, 119 (1951). Jones v. Barnes, 463 U.S. 745, 752, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983).

“ ‘ “Most cases present only one, two, or three significant questions. . . . Usually ... if you cannot win on a few major points, the others are not likely to help. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones.” R. Stern, Appellate Practice in the United States 266 (1981).’ Jones v. Barnes, supra.State v. Pelletier, 209 Conn. 564, 567, 552 A.2d 805 (1989).

I

The plaintiff alleges that the trial court improperly determined that the commission had complied with § 5.1 of its subdivision regulations in granting the waivers. That section requires that requests for waivers be made by the applicant in writing, and that “the approval of any waiver requires a three-quarters vote of all members of the commission.” Section 5.1 essentially tracks the language of General Statutes § 8-26, the enabling statute, which grants municipal zoning commissions the authority to approve a waiver of their regulations in appropriate circumstances. General Statutes § 8-26, however, does not require that applications for waiver be made in writing.

The plaintiff makes three claims in this respect: first, that the application was not made in writing; second, that the waivers were not approved by a three-quarters vote; and third, that the approved roads were not safe. We will address each of these claims in turn.

A

The plaintiff initially claims that the trial court improperly determined that Cortul had complied with the writing requirement of § 5.1. The provision requiring a written application for waiver is a local regulation and is subject to the interpretation of the commission itself. Baron v. Planning & Zoning Commission, 22 Conn. App. 255, 257, 576 A.2d 589 (1990). Upon review, “[t]he trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts.” Id.

Cortul submitted both the November 30,1988 cover letter and its detailed subdivision plans to the commission. These documents indicate, in written form, that waivers would be necessary. It is apparent from the commission’s actions that these documents were considered sufficient by the commission to satisfy their local regulations. It is also clear from the record that all interested parties (the commission, Cortul, and members of the public) were aware that waivers were necessary. Moreover, the plaintiff does not allege either a lack of notice or prejudice suffered therefrom. Accordingly, the trial court did not improperly determine that the commission had correctly interpreted its regulations and applied them with reasonable discretion to the facts of this case.

B

The plaintiffs next claim is that the trial court improperly determined that the requisite three-quarters vote had been cast to waive §§ 4.4.7 and 4.4.8 of the Haddam subdivision regulations, which concern the maximum permissible road grades in proposed subdivisions. The commission is comprised of seven members and therefore a favorable vote of at least six commissioners is necessary to satisfy the three-quarters requirement. The plaintiff does not dispute that the minutes of the July 5,1989 meeting of the commission clearly indicate that.the votes were six to one in favor of each of the waivers now in question. Nor does the plaintiff dispute that the minutes indicate that Martin cast the sole vote in opposition. The plaintiff directs our attention, however, to a “Motions for Waivers” form that was introduced into evidence. This form is kept by the Haddam commission in addition to the recorded minutes. It lists the various motions presented to the commission, indicates the vote taken on those motions, and includes space for the commissioners to sign their names under each motion.

The form used in this case also states that the vote on the waivers was six in favor and one opposed. Only five signatures in favor and one in opposition appear, however, on the form. The plaintiff argues that the trial court incorrectly determined, as a matter of fact, that the requisite number of votes in favor were cast. She asserts that the lack of the sixth signature required the court to determine that the vote was insufficient. We disagree.

“It is well established that an appellate court will not retry the facts. Our review is to determine whether the judgment of the trial court was clearly erroneous or contrary to the law.” Fuller v. Planning & Zoning Commission, 21 Conn. App. 340, 344, 573 A.2d 1222 (1990). The evidence before the trial court included the minutes of the meeting where the vote on the waivers was taken and the “Motions for Waivers” form. Both clearly indicate that the requisite number of votes in favor were cast. The trial court determined as a matter of fact that the recorded vote of six to one on the form was correct and that the missing signature was merely an oversight. Accordingly, we cannot say that the conclusion of the trial court that the requisite number of votes was cast is clearly erroneous.

C

The plaintiff next claims that the trial court and the commission improperly determined that the roads, as appproved by the commission, were safe. Section 5.1 allows the commission to “waive specific requirements of these Regulations with respect to a particular subdivision where, owing to conditions especially affecting such subdivision, a literal enforcement of these Regulations would result in practical difficulty and unusual hardship or undesirable land development, so that substantial justice will be done and the policy and intent of these Regulations will be preserved.” It further states that “[n]o waiver shall be granted that would have a significant adverse impact on adjacent property or on public health and safety.” Additionally, § 4.4.2 provides, in pertinent part: “Proposed streets . . . shall be planned in such a manner as to provide safe . . . access to proposed lots . . . .” The plaintiff claims that the trial court improperly upheld the commission’s conclusion that the portions of the streets that required waivers were safe. She argues that any grade greater than that permitted in §§ 4.4.7 and 4.4.8 is, per se, unsafe.

The safety of the proposed road designs is a question of fact. “ ‘[ITjpon appeal, the trial court reviews the record before the [commission] to determine whether it has acted fairly or with proper motives or upon valid reasons . . . . We, in turn, review the action of the trial court.’ Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49, 206 A.2d 110 (1964). ‘The burden of proof to demonstrate that the [commission] acted improperly is upon the [plaintiff]. Horvath v. Zoning Board of Appeals, 163 Conn. 609, 316 A.2d 418 (1972); Thorne v. Zoning Board of Appeals, 156 Conn. 619, 621, 238 A.2d 400 (1968); Talmadge v. Zoning Board of Appeals, 141 Conn. 639, 642, 109 A.2d 253 (1954).’ Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980).” Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988). “Our function on appeal is not to determine whether the trier of fact could have reached a conclusion othi r than the one reached, [as the plaintiff suggests]. ‘Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.’ Pandolphe’s Auto Parts, Inc. v. Man chester, 181 Conn. 217, 222, 435 A.2d 24 (1980).” Alan v. Nissley, 184 Conn. 539, 542, 440 A.2d 231 (1981).

The record amply supports the determination made by the trial court that the commission has not acted arbitrarily or illegally, or so unreasonably as to have abused its discretion. The commission’s stated reason for granting the waivers was “[bjecause waiver will introduce safer road design.” It is clear from the trial court’s memorandum of decision that all of the evidence that was before the commission at the time it granted the waivers was thoroughly reviewed, including testimony of the town engineer and the results of a traffic study. We cannot say that either the trial court’s method of review or its conclusion is not legally correct or factually supported. Pandolphe’s Auto Parts, Inc. v. Manchester, supra.

The plaintiff also claims that the conditions on the defendant’s property creating the need for the waivers “are not unique or even especially affecting this subdivision” and that therefore the trial court improperly determined that § 5.1 had been complied with. The trial judge is correct in stating that “[sjection 5.1 does not require that the conditions affecting the subdivision be unique such that they exist no where else in the vicinity, but that they ‘especially affect’ the subdivision.” With respect to a determination of conditions “especially affecting” the subdivision, the trial judge’s memorandum of decision states: “A commission member or member of the public who is unidentified in the transcript states that access is ‘extremely difficult not because of our regulations but because of the site.’ Thus, it was acknowleged that while the regulations themselves are reasonable, when applied to Cortul’s site, they result in practical difficulty and unusual hardship. Therefore, it is found that the commission did not violate § 5.1 of the regulations in approving the waivers.” Although such a determination was not favorable to the plaintiff, on review of the record, we cannot say that the determination was not legally correct or factually supported. Pandolphe’s Auto Parts, Inc. v. Manchester, supra. We conclude, therefore, that the trial court properly determined that the commission complied with § 5.1 of its subdivision regulations in granting waivers in this case.

II

Next, the plaintiff claims that the trial court improperly determined that the commission did not exceed its statutory authority by incorporating the town engineer’s recommendations as conditions of its approval of the Laurel Hill subdivision. In its memorandum of decision the trial court determined that the approval as written did not violate General Statutes § 8-26. We agree with the trial court.

The plaintiff specifically challenges the legality of conditions three, four and five of the commission’s approval. Condition three requires Cortul not to conduct any blasting for the purpose of installing proposed detention basins, and in the event that rock ledge is encountered during such installation, the town engineer must modify the basin design to eliminate the need to remove ledge. Condition four requires that “prior to any construction which is contrary to the approved plans, the design engineer shall revise the plan and submit to the town engineer the revision, for review and approval.” Condition five requires Cortul to secure the services of a professional engineer to inspect the progress of construction at a minimum of once a week, “to give guidance to the contractor, to ensure construction is according to approved plans, and to be available to recommend construction materials and solve construction problems when they occur.”

General Statutes § 8-26 authorizes a municipal planning commission to consider and act on proposed subdivision applications. “Nothing in the subdivision approval statute, § 8-26, allows for the imposition of conditions upon the planning and zoning commission’s approval of a subdivision plan; the statute merely provides for the commission to ‘approve, modify and approve, or disapprove’ a subdivision application.” Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 592, 409 A.2d 1029 (1979). Our Supreme Court has held, however, that where the imposed “conditions” bear a rational relationship to the enumerated health, safety and public welfare concerns set forth in General Statutes § 8-25, such conditional approval may be appropriate. Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 96, 368 A.2d 24 (1976); Crescent Development Corporation v. Planning & Zoning Commission, 148 Conn. 145, 152-53, 168 A.2d 547 (1961). In both Nicoli and Crescent Development Corporation the court affirmed the legality of commission approvals “subject to” changes in the proposed roads and access ways. The court has noted that “[t]he practical effect of the [commission’s] action was to approve the plan after modifying it . . . .” Crescent Development Corporation v. Planning & Zoning Commission, supra, 148.

More recently this court has stated that “it is the nature of .the underlying action taken by the planning commission that will determine its legality, not whether it is phrased in terms of a ‘modification’ or ‘conditional approval’ . . . .” (Emphasis omitted.) Moscowitz v. Planning & Zoning Commission, 16 Conn. App. 303, 311, 547 A.2d 569 (1988). In Moskowitz, the court held that a “blanket prohibition on future subdivisions, without reference to a relevant provision in either the local subdivision regulations or the enabling statutes, is an impermissible expansion of the powers wielded by a planning commission.” Id.

The conditions imposed by the commission in this case are more akin to those at issue in Nicoli and Crescent Development Corporation than to the condition at issue in Moskowitz. They are imposed for the purpose of ensuring safety. The trial court determined that conditions three and five have a rational relationship to the health and safety considerations of §§ 8-25 and 8-26. In addition, the trial court determined that neither condition requires the approval of a coordinate municipal authority. We agree with these determinations.

With respect to condition four, the trial court determined that “this condition is merely a restatement of the requirement in sections 8-25 and 8-26 of the General Statutes and section 1.1 of the Regulations that prior to any subdivision of land, a plan for the subdivision or resubdivision must be approved.” While the language of condition four appears to suggest that approval must be obtained by the town engineer, the trial court interpreted it as “requiring that revisions be submitted to the Town Engineer for his review, comments and recommendations prior to final review and approval by the commission.” Since the commission is presumed to have acted in accordance with the law, we agree with the trial judge’s interpretation of condition four. See Murach v. Planning & Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985).

We conclude, therefore, that the trial court properly determined that the commission did not violate General Statutes § 8-26.

Ill

The plaintiff’s third claim is that the trial court committed procedural errors in upholding the decision of the commission. This claim is raised in three parts. He claims, first, that the trial court improperly determined that it was entitled to search the record of the proceedings before the commission for adequate reasons to support the commission’s decision. Second, that the trial court improperly placed the burden of “going forward,” as well as the burden of proof, on the plaintiff regarding the issue of whether one of the commissioners should have been disqualified from voting on the subdivision application because he was absent from one of the public hearings and absent from a commission meeting and was, therefore, unable to exercise an informed judgment when voting on the application; and, third, that the trial court should have entered a default judgment against the commission for its failure to appear at the hearing before the trial court. We will address each of these claims in turn.

A

The plaintiff asserts that the trial court improperly determined that it was entitled to search the record of the proceedings before the commission for adequate reasons to support the commission’s decision. General Statutes § 8-26 provides that “[tjhe commission shall state upon its records the reasons for which a waiver is granted in each case. ...” According to the record in this case, the stated reason for granting the waiver of §§ 4.4.7 and 4.4.8 was “[bjecause waiver will introduce [a] safer road design.” As admitted by the plaintiff in her brief, “[tjhere is nothing inadequate or ambiguous regarding this wording.” Because of our earlier determinations that this reason was adequate under the regulations to support the decision of the commission to grant the waivers and that this decision was supported by sufficient evidence found in the record of the proceedings before the commission, the trial court’s judgment upholding the commission’s decision was correct and did not require a search of the record for an adequate reason for granting the waiver. Nevertheless, we will reiterate that “[i]f the board fails to give the reasons for its actions, or if its reasons are inadequate, the trial court must search the record to determine whether a basis exists for the action taken.” (Emphasis added.) Stankiewicz v. Zoning Board of Appeals, 15 Conn. App. 729, 732, 546 A.2d 919 (1988), aff’d, 211 Conn. 76, 556 A.2d 1024 (1989); see also Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 608-609, 569 A.2d 1094 (1990). Accordingly, the trial court correctly stated the law in its memorandum of decision, and the plaintiff’s claim is without merit.

B

The plaintiff next claims that the trial court improperly placed the burden of production on the issue of the disqualification of one of the commissioners on the plaintiff. This claim arises in the following context. The plaintiff alleged that one of the commissioners had failed to attend all of the public hearings on the proposed subdivision prior to voting on the application. It is apparently the plaintiff’s position that the commissioner should have been disqualified from voting on the subdivision because he had not sufficiently acquainted himself with the issues raised and the evidence adduced at the public hearings in order to exercise an informed judgment. See, e.g., Loh v. Town Plan & Zoning Commission, 161 Conn. 32, 42, 282 A.2d 894 (1971); Grillo v. Zoning Board of Appeals, 4 Conn. App. 205, 207, 493 A.2d 275 (1985). Although the plaintiff concedes that the trial court correctly reasoned that the burden of proof originated with the plaintiff; see Grillo v. Zoning Board of Appeals, supra; and acknowledges the complete absence of any evidence on the fact in issue, she nevertheless asserts that the trial court should have ruled in her favor. We find this claim to be without merit.

The plaintiff argues that the defendants gratuitously assumed the burden of proof on this issue by attempting to introduce evidence of the commissioner’s familiarity with the record at trial. In support of this assertion, the plaintiff cites cases for the proposition that the burden of proof is generally placed on the party pleading the matter. The defendants, however, did not affirmatively plead any facts in this case.

Alternatively, the plaintiff asserts that the record establishes a “prima facie case of [a commissioner’s] nonattendance” at a public hearing, and that this fact shifted the burden of proof to the defendants. This argument fails to recognize, however, that the only relevant issue is whether the commissioner had sufficiently acquainted himself with the record. “ ‘[E]ven where hearings are required by statute, a commission member need not be present in order to participate in decisions “[i]f that member acquaints himself sufficiently with the issues raised and the evidence and arguments presented at the public hearing in order to exercise an informed judgment.” Loh v. Town Plan & Zoning Commission, [supra].’ New Haven v. Public Utilities Commission, 165 Conn. 687, 724, 345 A.2d 563 [(1974)].” Dana-Robin Corporation v. Common Council, 166 Conn. 207, 216-17, 348 A.2d 560 (1974). The mere fact that the commissioner did not attend every public hearing on a particular proposal did not, therefore, establish a “prima facie” case of anything. The plaintiff failed to introduce any evidence disclosing that a commissioner had failed to acquaint himself with the issues. Accordingly, the trial court properly ruled that the plaintiff had failed to meet her burden of proof.

C

The plaintiff finally asserts that the trial court should have defaulted the defendant commission because of its absence from the hearing before the trial court. At the hearing before the trial court, the plaintiff and Cortul appeared. The commission was not present or represented by counsel. The court conducted its evidentiary hearing and counsel for the plaintiff and Cortul argued their respective positions. The plaintiff, however, never moved for a default or other sanction against the commission. This claim, therefore, has not been properly preserved at trial for appellate review. The plaintiff has failed to establish either an Evans-Golding constitutional claim; see State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); or plain error. Practice Book § 4185. Accordingly, we will not review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       At the March 6, 1989 public hearing, a letter signed by forty-one area residents was read to the commission by a local resident. It expressed the signatories’ concern regarding, inter alia, ‘ ‘the safety of the proposed new road that will intersect Old Cart Road, i.e. a combination of the 12 percent steep grade, three (3) times the recommended grade, and two (2) percent above the town limit of 10 percent. ...” The minutes of the April 3,1989 public hearing indicate that Cortul’s counsel orally confirmed that waivers were being requested. The minutes of a May 22,1989 commission meeting indicate that the commission was aware that Cortul was requesting waivers.

       Haddam subdivision regulations § 5.1 provides: “Conditions for Waiver: The Commission, upon written request from the applicant, may waive specific requirements of these Regulations with respect to a particular subdivision where, owing to conditions especially affecting such subdivision, a literal enforcement of these Regulations would result in practical difficulty and unusual hardship or undesirable land development, so that substantial justice will be done and the policy and intent of these Regulations will be preserved. No waiver shall be granted that would have a significant adverse impact on adjacent property or on public health and safety. Approval of any waiver requires a three-quarters vote of all members of the Commission.”

       General Statutes § 8-26 provides in pertinent part: “[Municipal subdivision zoning] regulations may contain provisions whereby the commission may waive certain requirements under the regulations by a three-quarters vote of all the members of the commission in cases where conditions exist which affect the subject land and are not generally applicable to other land in the area, provided that the regulations shall specify the conditions under which a waiver may be considered and shall provide that no waiver shall be granted that would have a significant adverse effect on adjacent property or on public health and safety. The commission shall state upon its records the reasons for which a waiver is granted in each case.”

       With respect to this claim, the plaintiff also argues that the trial court improperly granted Cortul’s motion to amend the record on July 11,1990, to include the November 30, 1988 letter. The plaintiff failed to object to either Cortul’s motion to amend or the trial court’s order granting the amendment. Since this claim is not of a constitutional magnitude; State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); nor a matter of “plain error,” it is not now subject to review by this court. Practice Book § 4185.

       Because of our disposition of this claim by the plaintiff, we need not consider the propriety of the trial judge’s decision concerning Cortul’s introduction of testimony of commissioner Peter Aduskevitch.