author: Lavery, J.

text:
    Renay Vickers v. Kim Jessup
    (11613)
    Dupont, C. J., Lavery and Heiman, Js.
    Argued May 10
    decision released August 3, 1993

      Mark A. Newcity, for the appellant (defendant).

      Matthew Shafner, with whom were Daniel R. Cunningham and, on the brief, Peter J. Bartinik, for the appellee (plaintiff).
   Lavery, J.

The defendant appeals from the judgment of the trial court rendered in favor of the plaintiff after a jury trial in a personal injury action. The defendant claims that the trial court improperly (1) refused to set aside the jury’s verdict as contrary to the evidence after improperly allowing the expert testimony of a physician whose testimony was not given or based on reasonable medical probability, (2) allowed into evidence certain medical opinions for which a proper foundation had not been established, (3) excluded from evidence certain statements by the plaintiff concerning the cause of her injuries, (4) refused to set aside the verdict or order a remittitur because the verdict was excessive and not based on evidence presented at trial. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On February 17, 1988, the plaintiff was injured when an automobile driven by the defendant struck the rear of an automobile in which the plaintiff was a passenger. Both vehicles were traveling on Interstate 95 in Stonington at the time. The force of the impact caused the automobile in which the plaintiff was riding to cross over the guardrail at the side of the highway, and roll over. The car seat in which the plaintiff’s daughter was riding broke loose, striking the plaintiff in the face and pinning the plaintiff across both legs. The plaintiff was trapped in the vehicle for forty-five minutes before she was extricated and brought to the hospital for treatment of her injuries. Several weeks after the accident, the plaintiff returned to her home in Boise, Idaho, where she sought continued treatment for her injuries. Further facts and procedural history will be recounted as necessary throughout this opinion.

I

The defendant first claims that the trial court should have granted her motion to set aside the verdict because it improperly allowed into evidence the testimony of Jeffrey Hessing, an orthopedic surgeon, absent an adequate showing that his testimony was given or based on reasonable medical probability. We disagree.

The following procedural history is relevant to the disposition of this issue on appeal. Approximately one month before the trial began, the plaintiff deposed Hessing. Hessing, an orthopedic surgeon practicing in Idaho, had treated the plaintiff for chondromalacia patella, an inflammation of the lining of the kneecap, that resulted from the February, 1988 accident involving the defendant. During the trial, much of Hessing’s deposition testimony was read into the record before the jury. In his deposition testimony, Hessing expressed his medical opinion on a number of subjects including the case treatment, disability, and causal relationship of the plaintiff’s injuries to the accident of February 17, 1988.

When the plaintiff initially sought to present Hess-ing’s opinions as expressed in the deposition, the defendant objected because the plaintiff did not ask Hessing to express his opinion on each question in terms of reasonable medical certainty. The trial court initially sustained the defendant’s objection, ruling that the plaintiff had failed to establish that Hessing’s expert opinions were based on reasonable medical certainty. Further, the trial court ruled that a question posed after the objections to the previous questions had been sustained, asking Hessing whether his opinions had been made with reasonable medical certainty, failed to provide an adequate foundation for allowing him to express his opinions. The trial court stated that an adequate foundation cannot be established after a question has been asked and an objection to the question has been sustained.

The plaintiff contended that the necessary foundation for the testimony of Hessing had been established, and was in his medical report of December 13, 1990, that had previously been admitted into evidence. The trial court then ruled that because this report had previously been admitted into evidence, the testimony of Hessing, previously excluded, became admissible. The previously excluded questions and answers in Hessing’s deposition testimony were then read to the jury.

It has long been recognized that, in order to avoid speculation and conjecture, “[a] trier is not concerned with possibilities but with reasonable probabilities.” Boland v. Vanderbilt, 140 Conn. 520, 525, 102 A.2d 362 (1953). “An expert witness is competent to express an opinion, even though he or she may be unwilling to state a conclusion with absolute certainty, so long as the expert’s opinion, if not stated in terms of the certain, is at least stated in terms of the probable, and not merely the possible.” Healy v. White, 173 Conn. 438, 443, 378 A.2d 540 (1977). “For medical testimony to have any probative value, it must at least advise the jury that the inference drawn by the doctor is more probably correct than incorrect.” Id., 444. “Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.” Struckman v. Burns, 205 Conn. 542, 555, 534 A.2d 888 (1987).

In claiming that Hessing’s testimony was not given or made with reasonable medical certainty, the defendant directs us to the doctor’s use of the words “I felt” or “I suspected” preceding his opinions regarding the medical condition of the plaintiff. The use of certain colloquial phrases to begin a sentence does not move the surgeon’s testimony into the realm of inadmissible speculation. According to Webster’s Collegiate Dictionary (10th Ed.), the verb “felt,” as used in Hessing’s deposition, and later at trial, means the state of being “conscious of an inward impression, state of mind or physical condition.” Synonyms of “feel” are “believe” and “think.” Id.

Our Supreme Court has held that the phrase “I think” followed by medical opinion testimony does not render the opinion a statement of mere possibility. In re Theresa S., 196 Conn. 18, 28, 491 A.2d 355 (1985). Likewise, in the present case, the witness’ use of “I felt” or “I suspected,” or similar phrases, when viewed in the context of his entire testimony, did not transform his opinions into speculation.

Under the test established in Struckman v. Burns, supra, and its progeny, we look to the medical expert’s testimony as a whole to determine if it was made or given with the requisite medical certainty. Our careful review of Hessing’s testimony reveals that it was given with reasonable medical certainty, and would not tend to lead the jury to engage in harmful speculation or conjecture.

The defendant further claims that the trial court improperly ruled that a medical report written by Hess-ing established a proper foundation for the admission of his expert deposition testimony. We disagree.

During the trial, the trial court initially sustained the defendant’s objections to the admission into evidence of Hessing’s medical opinions. After hearing argument from both sides regarding the admission of the medical opinion testimony, the trial court ruled as follows: “The report that has been admitted into evidence without objection, I believe, in fact, was the report of Orthopaedic Associates admitted by the defendant dated December 13, 1990. [It] indicates on the third page: [T]n conclusion then, to this patient’s multiple and rather vague complaints, the only residual problems that I feel she has as a direct result of her car accident of February, 1988, is her residual anterior knee pain. I feel it’s secondary to chondromalacia patella bilaterally . . . .’ I believe that’s the same testimony to which objection is being made today, that the necessary language of reasonable medical probability was not laid as a foundation. I believe that the fact that the letter is in evidence is sufficient and I’ll allow the testimony. You may have an exception.”

The trial court has wide discretion in ruling on the admissibility of the opinions of expert witnesses. State v. Douglas, 203 Conn. 445, 452, 525 A.2d 101 (1987). The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law. Id. The essential facts on which an expert opinion is based are an important consideration in determining the admissibility of his opinion. Id. In the present case, the trial court determined that Hessing’s medical report, stating his opinion regarding the plaintiff’s knee injury and its cause, established a sufficient factual foundation for the presentation of the doctor’s deposition testimony. We cannot conclude, on the basis of our examination of the record, that the trial court abused its discretion or misapplied the law in admitting the deposition testimony of Hessing.

II

The defendant next claims that the trial court improperly allowed into evidence certain medical opinions of Hessing that were not in the medical report. We are not persuaded.

The defendant claims that even if the medical report by Hessing provided a sufficient foundation for the surgeon’s testimony regarding the causal relationship between the plaintiff’s knee condition and the accident with the defendant, the court improperly allowed Hess-ing to express certain opinions regarding matters that were not discussed in the report, or any other report that had been admitted into evidence at the time of his testimony. Specifically, the defendant challenges Hess-ing’s testimony regarding whether the automobile accident could have aggravated a degenerative disc, and whether the plaintiff would need to undergo a knee operation known as a lateral release.

The defendant claims that because the issues of an aggravated degenerative disc and a lateral release were not mentioned in Hessing’s medical report, there was no foundation laid for his testimony on those issues. We disagree. The trial court ruled that Hessing’s medical report provided a sufficient foundation to show that his opinions were given with reasonable medical certainty. The report establishing a foundation is not required to mirror the opinion testimony of the expert; it merely had to provide a factual basis for the deposition testimony. The defendant’s claim is therefore without merit.

Ill

The defendant next claims that the trial court improperly excluded from evidence certain prior statements by the plaintiff concerning her injuries. We disagree.

The following additional facts and procedural history are pertinent to the resolution of this issue on appeal. In the February, 1988 accident involving the plaintiff and the defendant, the plaintiff received injuries to her knees, neck and teeth. In 1989, the plaintiff was involved in a subsequent accident in which she reinjured her knees, and aggravated some of the injuries that had resulted from the 1988 accident. In response to discovery requests, counsel for the plaintiff submitted to counsel for the defendant all bills relating to injuries to the patient’s knees in the 1988 accident. In November, 1989, the plaintiff wrote a letter to the insurer of the other party in the 1989 accident claiming medical expenses for the reinjury to her knees and aggravation of some of the injuries she had incurred in the 1988 accident.

At trial, counsel for the defendant attempted on three occasions to have the plaintiffs 1989 letter to the insurance carrier of the other party in the 1989 accident admitted into evidence. The first time the defendant attempted to submit the letter, counsel for the plaintiff objected on the ground of hearsay. The objection was sustained. Later, counsel for the defendant again attempted to submit the 1989 letter, claiming that the letter was a “statement of a party opponent,” and an “admission of her medical bills.” The trial court ruled, “She hasn’t denied the amount of the bill. I won’t allow it in. [Objection sustained].” As counsel for the defendant tried for the third time to submit the 1989 letter, the following colloquy occurred:

“[Plaintiff’s Counsel]: Your Honor, he’s attempting to submit the same thing that Your Honor excluded just about—

“[Defendant’s Counsel]: There’s a basis for it now. She’s stated that’s it on her letterhead. She wrote it; she signed it.

“[The Court]: Sustained.

“[Defendant’s Counsel]: Your Honor, I would take exception to your ruling.

“[The Court]: What is the basis for [your] request?

“[Defendant’s Counsel]: It’s an admission of a party opponent, and it’s also a prior inconsistent statement.

“[The Court]: She said she didn’t submit those bills?

“[Defendant’s Counsel]: She did say she did.

“[The Court]: Well, that’s not inconsistent.

“[Defendant’s Counsel]: Well, it’s inconsistent with her other statement over here.

“[The Court]: It’s not inconsistent with the testimony on the stand. It may not go in. She testified she submitted those bills. It’s not inconsistent.”

The trial court made a factual determination regarding the substance of the November, 1989 letter and the plaintiffs testimony on the witness stand. The court determined that the substance of the letter was not inconsistent with her testimony. On the basis of that factual determination, the trial court declined to admit the letter into evidence under the prior inconsistent statement exception to the hearsay rule. “The principle is well settled, even where the case ... is a jury case, that where the admissibility of evidence depends upon a preliminary question of fact, to be determined by the court, its decision is not to be reversed unless there is clear and manifest error.” Engelke v. Wheatley, 148 Conn. 398, 410-11, 171 A.2d 402 (1961). In the present case, the trial court’s ruling on the admissibility of the letter turned on whether it contained a statement inconsistent with the plaintiff’s position at trial. The trial court determined that it was not inconsistent, and properly ruled that the letter was inadmissible. Our review of the record does not reveal “clear and manifest error” in the trial court’s factual determination, and we therefore conclude that the trial court properly excluded the November, 1989 letter from evidence.

IV

The defendant’s final claim is that the trial court improperly refused to set aside the verdict, order a new trial, or order a remittitur. We disagree.

The trial court may set aside a jury verdict that the court finds to be contrary to the law or the evidence. American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 774, 607 A.2d 418 (1992); Palomba v. Gray, 208 Conn. 21, 22-23, 543 A.2d 1331 (1988); Cohen v. Hamden, 27 Conn. App. 487, 491, 607 A.2d 452 (1992). Unlike this court, the trial court had the same opportunity as did the jury to view the witnesses, to assess their credibility, to determine the weight that should be given to their evidence and to gauge the tenor of the trial. Caciopoli v. Acampora, 30 Conn. App. 327, 331, 620 A.2d 191 (1993). “If the trial court finds that the verdict is so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside the verdict. . . .” (Citations omitted; internal quotation marks omitted.) Id., quoting State v. Hammond, 221 Conn. 264, 268, 604 A.2d 793 (1992). A verdict, however, should not be set aside where the jury reasonably could have based its verdict on the evidence. American National Fire Ins. Co. v. Schuss, supra, 774.

The defendant asserts that the jury’s awards to the plaintiff for past and future economic damages were excessive and not based on the evidence. The jury awarded the plaintiff a total of $71,500 for past and future economic damages. At trial, the plaintiff presented evidence of past economic damages totaling $15,403.03. Hessing testified that the plaintiff would need knee surgery costing between $9000 and $10,000. A report by Michael O’Brien, a neurologist, was also presented. According to O’Brien, the plaintiff will require treatment and therapy for an indefinite period of time. O’Brien wrote that he saw patients such as the plaintiff once a month, or once every two to three months when their conditions were more stable at the rate of $60 per visit. He noted that he would prescribe medications that would cost a total of $120 per month, $60 for anti-inflammatory medications, and $60 for pain medications. O’Brien wrote that he would prescribe physical therapy at the rate of $30 to $60 per visit as often as once a week during acute periods of discomfort or as infrequently as once a month during less acute phases. O’Brien also wrote that he would enroll the plaintiff in a physical education program where she would receive outpatient therapy. The program would cost $50 to $100 a month, and O’Brien concluded that the plaintiff should continue the program on an “indefinite basis.” O’Brien concluded, “I would consider this woman’s problem to be permanent at this time with a very poor prognosis for full recovery. This is much in keeping with what the literature states on patients who are injured in this fashion.” Evidence was presented indicating that the plaintiff’s life expectancy is 26.7 years. In addition, another physician reported that TMJ surgery is required at a cost of up to $10,000.

During oral argument on the defendant’s motion to set aside the verdict, the trial court concluded that the jury could have arrived at $71,500 in damages partially on the basis of the O’Brien report. The trial court calculated that even if the plaintiff did not suffer from an acute phase of her ailments, and was treated only as O’Brien suggested appropriate to the stable phase, the jury could have calculated an $80,000 award. The defendant now claims that the trial court improperly-concluded that the jury had a reasonable basis for making the award because the report showed that “Dr. O’Brien believed that the plaintiff would have an acute phase of treatment and a stable phase of treatment [and his] report does not state that the plaintiff would remain in any one phase indefinitely.”

The defendant is correct in pointing out that O’Brien’s report does not reveal his opinion as to how long the plaintiff is likely to remain in any one phase. The defendant, however, ignores the doctor’s conclusion that the plaintiff’s prognosis is poor for a full recovery, and that she will need some form of treatment indefinitely. The trial court, therefore, correctly concluded that the jury had a reasonable basis for awarding $71,500 for past and future economic damages.

The defendant also claims that the jury’s awards for noneconomic damages were excessive and not supported by evidence. The jury awarded the plaintiff $125,000 for noneconomic damages.

Damages may be awarded for pain and suffering, past, present and future, resulting from the injuries as long as the evidence affords a basis for a reasonable estimate by the trier of fact of the amount. Vajda v. Tusla, 214 Conn. 523, 532, 572 A.2d 998 (1990). An award of damages for pain and suffering is peculiarly within the province of the trier of fact and the fact that it is difficult to measure pain and suffering in terms of money does not prevent a recovery for that element of damages. Id., 533; Manning v. Michael, 188 Conn. 607, 616, 452 A.2d 1157 (1982); Sadonis v. Govan, 132 Conn. 668, 670, 46 A.2d 895 (1946). Not only are damages for pain and suffering peculiarly for the trier of fact, but proper compensation for pain and suffering cannot be computed by a mathematical formula, and there is no ironclad rule for the assessment of damages. Vajda v. Tusla, supra, 533, citing Manning v. Michael, supra. The award of damages for pain and suffering “will be sustained, even though generous, if it does not shock the sense of justice.” Campbell v. Gould, 194 Conn. 35, 40, 478 A.2d 596 (1984).

A review of the evidence presented at trial shows that the plaintiff was involved in a serious automobile accident when the car in which she was riding was struck by a car driven by the defendant, left the road, and rolled over. She had to be extricated from the vehicle. The plaintiff suffered injuries to her knees, face, and teeth that continue to require extensive medical treatment. She presented evidence establishing that she has suffered 15 percent impairment to her whole person based on 20 percent impairment in each lower extremity. In the face of this evidence, the jury could have reasonably awarded the amount that it did. There is nothing in the record indicating that the jury was influenced by partiality, prejudice, sympathy or mistake. The trial court properly denied the defendant’s motions to set aside the verdict or order a remittitur.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the following exchange occurred during Hessing’s deposition testimony that was read into evidence:
      “Q. Are you familiar with the concept of reasonable medical certainty as it’s used in forming a medical opinion?

        “A. Yes.
      “Q. And opinions which you’ve just expressed regarding Renay Vickers, are they with reasonable medical certainty?
      “A. Yes.”
      We further note that the following exchange occurred following Hessing’s deposition testimony regarding the degree of impairment the plaintiff has suffered:
      “Q. You’ve expressed a number of opinions, medical opinions, today, and I just want to be clear for the record. Are the opinions that you offered today within reasonable medical certainty?
      “A. Yes.”
      As we noted above, citing Struckman v. Burns, 205 Conn. 542, 555, 534 A.2d 888 (1987), reasonable medical probability does not depend on the semantics of the expert or his use of any particular term or phrase, but is determined by looking at the entire substance of the expert’s testimony. The exchanges set forth previously indicate that Hessing’s testimony was given with reasonable medical certainty.

       We note that it has long been the rule in Connecticut that, in civil actions, to “qualify as an admission, a statement made by a party must be inconsistent with a position which he takes at trial.” State v. Villafane, 171 Conn. 644, 674, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984); see also Johnson v. Rockaway Bus Corporation, 145 Conn. 204, 209,140 A.2d 708 (1958); Hill v. Small, 129 Conn. 604, 605, 30 A.2d 387 (1943); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 15.5.1. Our Supreme Court created a narrow exception to this rule in the context of criminal cases in State v. Stepney, supra, 252-53. The Stepney court reiterated and explained the rule as it pertains to civil cases, writing: “In a civil case each party files pleadings which are conclusive as to matters admitted therein; Hirsch v. Thrall, 148 Conn. 202, 206-207, 169 A.2d 271 (1961); each may be required to submit to extensive pretrial discovery; Practice Book §§ 219-249; and each may be called to testify by the opposing party. A party’s full position at trial is therefore readily ascertainable. Thus, a requirement that the proffered admission be contradictory with that position is not an obstacle to the admissibility of an admission in a civil trial.” Id., 253. We note that with respect to civil proceedings in Connecticut, and as reiterated in Stepney, the rule requiring that an admission of a party opponent contradict a position taken at trial still stands.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Maria Gajewski et al. v. Arthur Pavelo et al.
    (11404)
    Dupont, C. J., Daly and La very, Js.

      Argued April 5
    decision released August 10, 1993

      Richard A. Fuchs, with whom, on the brief, was Rosalind J. Koskoff for the appellants (plaintiffs).

      BarbaraBrazzel-Massaro, associate city attorney, for the appellees (defendant city of Bridgeport et al.).

      James E. Coyne, for the appellee (defendant Utica Radiator Corporation).
   Dupont, C. J.

The plaintiffs, Maria Gajewski, Jan Gajewski and Janusz Gajewski, appeal from a judgment in favor of the defendants rendered after a jury verdict. The plaintiffs claim that (1) the jury charge was so confusing that it provided inadequate guidance to the jury, (2) the jury charge included inconsistent instructions, and (3) the court improperly instructed the jury on the duty to warn under the provisions of General Statutes § 52-572q. The defendants claim that the general verdict rule precludes our review of the plaintiffs’ claims. We conclude that the defendants are correct, and therefore affirm the judgment for the defendants.

To determine whether the general verdict rule applies, we must begin by examining the complaint and the answers, including the special defenses of the defendants, and the specific claims made by the plaintiffs regarding confusion and inconsistencies in the court’s charge to the jury and by reviewing the applicable evidence presented to the jury.

The plaintiffs’ amended complaint consisted of ten counts, essentially involving three causes of action, a product liability claim against Utica Radiator Corporation (Utica) arising out of its manufacture of a gas fired boiler, a negligence claim against two employees of the city of Bridgeport, Joseph Savino and Guido Vag-nini, for failure to inspect or to make reasonable efforts to inspect the installation of the boiler, and an indemnification claim against the city of Bridgeport pursuant to General Statutes § 7-465. Utica denied that its gas fired boiler filled the Gajewski residence with dangerous and toxic levels of carbon monoxide that allegedly caused serious, painful and permanent injuries to the plaintiffs. Utica also denied that it introduced its boilers into the stream of commerce, that its products were expected to reach consumers without substantial change, and that one of its boilers had reached the plaintiffs’ household without substantial change. Utica denied that its boiler was a defective and unreasonably dangerous product and also denied that it had failed to provide proper instructions for installation, had failed to warn the plaintiffs adequately of various dangers arising from use of the boiler and had failed to design a safe product. Further, Utica denied that the plaintiffs’ injuries were proximately caused by its allegedly defective gas boiler. Utica’s answer also raised two special defenses, one claiming that any injuries sustained by the plaintiffs were caused by their own negligence and carelessness, and the other claiming that the amount of any verdict against Utica should be reduced by any amounts paid or agreed to be paid by any present or prior defendants to the action. Utica filed a cross claim against the Southern Connecticut Gas Company and the city of Bridgeport for indemnification and filed a cross claim against all the codefend-ants for contribution pursuant to General Statutes § 52-572o. Southern Connecticut Gas Company denied all cross claims by Utica.

The plaintiffs’ negligence claim against the two city employees was based on the failure to inspect, to make provisions to inspect, to warn and to establish standards for inspection. The plaintiffs alleged that, as a result of the city employees’ negligence and carelessness, the plaintiffs sustained their injuries. The individual defendants and the city denied all allegations of negligence and denied that any failure to act was the proximate cause of the plaintiffs’ injuries. The individual defendants and the city of Bridgeport also raised four special defenses. The defenses claimed were sovereign immunity, contributory negligence, immunity provided by General Statutes § 52-557n, and that any verdict against them should be reduced by any amounts paid by Southern Connecticut Gas Company and Arthur Pavelo, the installer of the boiler. They also filed a counterclaim against Jan Gajewski for indemnification claiming that he was primarily liable for the plaintiffs’ injuries because he failed to clean his chimney when advised to do so, replaced a door to the furnace room when advised not to do so and failed to respond to notices calling for inspection of the furnace.

The jury heard evidence that in the fall of 1981 the plaintiffs had a gas fired boiler manufactured by Utica installed in their residence by Pavelo. The plaintiffs had previously used an oil fired boiler, which generated a buildup of soot in the chimney flue. At the time of installation, Pavelo, a licensed plumber, cleaned the chimney sufficiently to render the furnace operational. The plaintiffs were advised by Pavelo, prior to the installation of the boiler, of the necessity of having the chimney thoroughly cleaned but were never directly warned of the necessity by Utica.

On January 9, 1982, Maria was found unconscious in her home. Her husband, Jan, and adult son, Janusz, were found semiconscious. They were diagnosed as having carbon monoxide poisoning. The poisonous gases resulted from a buildup of soot in the chimney flue. This buildup prevented proper ventilation of the boiler. At no time prior to January 9, 1982, was the installation of the boiler inspected by the employees of the city of Bridgeport or the gas company, although they had attempted to make appointments for inspection with the plaintiffs. Jan and Janusz substantially recovered from the poisoning. Maria suffered permanent total disability of her nervous system manifested as cognitive impairment and difficulty with speech, coordination and gait. She also experiences bouts of depression due to her condition.

Prior to jury deliberation, all parties had agreed that verdict forms and interrogatories were necessary in this case because of its complex nature, and had essentially agreed as to their wording and content. The parties, however, had not finished preparing their interrogatories and verdict forms when the court began its charge to the jury during the late morning of November 27,1991. The court stated in its charge that it anticipated that there would be interrogatories and verdict forms by the time afternoon deliberations began. Deliberations were over, however, later that same afternoon before the interrogatories or verdict forms were available. No objection was made by the plaintiffs or the defendants to the court’s allowing the jury to deliberate without them. The jury returned a handwritten verdict that read: “We, the jury, based upon the evidence presented to us, unanimously agree that all claims against the defendants: The Utica Radiator Corp., The City of Bridgeport et al., and Southern New England Gas Co. are inconclusive. We, therefore, find them not liable for the injuries sustained in the suit brought by the Gajewski family.” The trial court accepted the verdict and rendered judgment “in favor of Utica Radiator Corporation, the city of Bridgeport, Joseph Savino, Guido Yagnini, and Southern Connecticut Gas Company, and that the plaintiffs recover no damages of said defendants.”

On appeal, the claims raised by the plaintiffs concern only the propriety of the jury instructions and not the court’s action in allowing the jury to deliberate in such a complex and intricate case without the aid of interrogatories and verdict forms. The plaintiffs did not take an exception to the trial court’s allowing the jury to deliberate without verdict forms or interrogatories, nor was a continuance sought pending their availability, nor did they raise this issue in their motion to set aside the verdict.

The essence of the three claims raised by the plaintiffs on appeal concerns the propriety of the jury instructions as to the defendants Utica, the city of Bridgeport and the city’s employees. The plaintiffs claim that the jury instructions were so contradictory and inconsistent that the jury was left to decide not only the facts of the case but what law to apply. It is important to note the precise errors in the jury charge claimed by the plaintiffs and to note the portion of the charge as to which no claim of error is made, because both relate to the application of the general verdict rule.

The plaintiffs claim that the jury charge was contradictory as to two aspects of the product liability case, namely, the standard required by General Statutes § 52-572q — failure to warn — and to whom the duty to warn is owed. The plaintiffs claim that the court first instructed on the statutory definition of duty to warn and then instructed on a “reasonableness” standard of a duty to warn. They also claim that the court initially charged that Utica’s duty to warn was owed to the plaintiffs, and later charged that the duty to warn was owed to Pavelo, the plumber who installed the boiler. The plaintiffs also claim that the court improperly instructed the jury about the knowledgeable user doctrine in product liability actions when it was not applicable in this case. The plaintiffs further claim that the jury was confused by the court’s instruction on contributory negligence as it applied to the product liability claim as opposed to the municipal negligence claim.

In the plaintiffs’ appeal against Savino and Vagnini, the plaintiffs claim that the court gave inconsistent and confusing instructions on the law pertaining to the liability of municipal employees. Specifically, the plaintiffs contend that the charge conflicted as to the order in which the jury was to consider the issues of negligence and municipal immunity, the purpose of the Building Officials and Code Administrators Basic Building Code, and as to whether the standard for determining if a city official is immune in the performance of a discretionary act involving identifiable persons is objective or subjective.

The defendants claim that, because the case was submitted to the jury without interrogatories, the general verdict rule applies and, therefore, the judgment of the trial court should be affirmed. “The so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982); Colucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981). The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action; see Matthews v. F.M.C. Corporation, 190 Conn. 700, 706, 462 A.2d 376 (1983); or distinct defenses. See Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964). A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury. Alternatively, if the action is in separate counts, a party may seek separate verdicts on each of the counts. Ziman v. Whitley, 110 Conn. 108, 113-15, 147 A. 370 (1929).” Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202-203, 520 A.2d 208 (1987); Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993).

In this case, the failure of the plaintiffs to object to jury deliberation without interrogatories is the functional equivalent of a failure to request interrogatories. The plaintiffs do not make any claim that the general verdict rule cannot apply because they requested interrogatories that the court failed to submit.

The general verdict rule may no longer be applied to denials of discrete elements of a single cause of action. Curry v. Burns, supra. Here, the defendants denied all of the salient elements of the plaintiffs’ single cause of action against Utica, and of the plaintiffs’ single cause of action against the city of Bridgeport and the two employees of the city. The plaintiffs do not claim any error in the court’s charge on proximate cause, which is one element of their causes of action for a product liability claim and for negligence. Doe v. Manheimer, 212 Conn. 748, 755, 563 A.2d 699 (1989); Sharp v. Wyatt, 31 Conn. App. 824, 837-40, 627 A.2d 1347 (1993). Thus, under Curry, the denial by the defendants that any act or failure to act of theirs proximately caused the plaintiffs’ injuries would not by itself trigger the application of the general verdict rule. In this case, however, there were denials by the defendants as well as special defenses raised by the defendants, which does allow application of the general verdict rule.

The general verdict rule is applied in five instances. It is limited to situations where there are (1) separate counts of a complaint against one defendant, (2) denials of separate defenses pleaded as separate defenses, (3) denials of separate theories of recovery or defenses pleaded in one count or defense, (4) denials of a complaint and a pleading of a special defense, and (5) denial of a specific defense raised under a general denial that was asserted during the case but that should have been specially pleaded. Curry v. Burns, supra, 801.

In this case, Utica, the city of Bridgeport and the two city employees denied the plaintiffs’ cause of action against each of them and pleaded special defenses. Thus, this is a situation in which the general verdict rule has application. When the rule applies, a general verdict must stand if a jury could have found for a party-on any one of the material issues it had to decide. Hanlon v. Stettbacher, 13 Conn. App. 571, 573, 538 A.2d 705 (1988). The defendants’ denial of the essential elements of the plaintiffs’ complaint, including a denial of being the proximate cause of the plaintiffs’ injuries, and the defendants’ special defenses constitute separate and distinct defenses. The fourth situation, as expressed in Curry, to which the general verdict rule applies, therefore, is present.

In this case, the jury could have found for the defendants because it either concluded that no one of the defendants was the proximate cause of the plaintiffs’ injuries or that the plaintiffs were contributorily negligent in excess of 50 percent in the actions grounded in negligence or that the comparative responsibility provisions of General Statutes § 52-572o were inapplicable because the plaintiffs were totally responsible for their injuries. The plaintiffs do not claim that the charge on proximate cause was misleading, confusing or inconsistent. The general verdict, therefore, for each of the defendants will not be disturbed, and other claims of error relating to the charge need not be reviewed. Staudinger v. Barrett, 208 Conn. 94, 544 A.2d 164 (1988); LaFleur v. Farmington River Power Co., 187 Conn. 339, 445 A.2d 924 (1982); Hally v. Hospital of St. Raphael, 162 Conn. 352, 294 A.2d 305 (1972); Pollack v. Howe, 145 Conn. 423, 143 A.2d 648 (1958).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs originally sued Arthur Pavelo, doing business as Academy Plumbing and Heating, Utica Radiator Corporation, Joseph Savino, Guido Vagnini, the city of Bridgeport, Southern Connecticut Gas Company, and Ruud Water Heater Division of Rheem Manufacturing Company. The plaintiff Jan Gajewski also brought loss of consortium claims against Utica, Savino, Vagnini and the city of Bridgeport. The plaintiffs settled with the estate of Arthur Pavelo, Southern Connecticut Gas Company, and Ruud Water Heater Division of Rheem Manufacturing Company. We refer herein to Utica Radiator Corporation, Joseph Savino, Guido Vagnini and the city of Bridgeport as the defendants. Although Southern New England Gas Company was not a defendant during the trial as to the Gajewskis, it was a third party defendant as to Utica in an indemnification claim and in a contribution claim as a joint tortfeasor. In that capacity, Southern New England Gas Company actively participated in the trial. It, however, is not involved in this appeal.

       Although Utica’s answer to the plaintiffs’ complaint contained a cross claim for contribution against “all defendants,” the installer of the furnace, Arthur Pavelo, doing business as Academy Plumbing and Heating, was not specifically named as a defendant by Utica, although the other defendants were so named.

       Prior to trial, the plaintiffs made a motion to sever the cross claims and counterclaims. No action was taken on this motion. After both parties rested, the plaintiffs renewed their motion to sever and it was denied.

       The defendant Utica claims that its installation manual provided Pavelo with sufficient warning of the hazards of carbon monoxide poisoning arising from the failure to clean a chimney completely.

       It is standard practice for a jury to be given at least one verdict form when it begins to deliberate. In the rare situation, however, where a jury has not had the benefit of a verdict form and has returned a handwritten verdict, the verdict has been found to be sufficient if the verdict is intelligible. Brown v. Hart, 91 Conn. 667, 673, 100 A. 1065 (1917). A verdict is intelligible if it clearly manifests the intent of the jury. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 567, 562 A.2d 1100 (1989); Kilduff v. Kalinowski, 136 Conn. 405, 409, 71 A.2d 593 (1950). The phrase “all claims against the defendants . . . are inconclusive” is the equivalent of stating that the plaintiffs did not meet their burden of proof. The plaintiffs, in their brief, claim that the fact that the verdict was in favor of Southern Connecticut Gas Company, which was not a defendant, indicates the jury’s confusion. The failure of the plaintiffs to object at trial to the form of the verdict precludes this court from reviewing that claim on appeal. Intelisano v. Greenwell, 155 Conn. 436, 450, 232 A.2d 490 (1967); Towhill v. Kane, 147 Conn. 191, 193, 158 A.2d 251 (1960).

       Even if we reached the question of whether the charge on contributory negligence or comparative negligence was confusing, we would conclude that it was not. The court properly instructed the jury that contributory negligence would bar the negligence case against the municipal employees if the plaintiffs’ negligence was greater than the combined negligence of the employees. The court also properly instructed that in a product liability action comparative responsibility by the plaintiffs would not bar the action, but would serve only to diminish the amount of damages proportionately. The court further explained this concept by giving illustrative percentages.


author: Schaller, J.

text:
    Stanley V. Tucker v. Pace Investments Associates et al.
    (11303)
    Dupont, C. J., Foti and Schaller, Js.
    Argued June 2
    decision released August 10, 1993

      Stanley V. Tucker, pro se, the appellant (plaintiff).

      I. Milton Widem, for the appellees (named defendant et al.).

      Paul D. Buhl, for the appellees (defendant Northeast Savings, F.A., et al.).
   Schaller, J.

The plaintiff, Stanley V. Tucker, appeals from the judgment dismissing his civil rights claim against the defendants and from the summary judgment rendered in favor of the defendants with respect to his claim of abuse of process. The disposi-tive issue in this appeal is whether the doctrine of res judicata provides a basis on which we can affirm the trial court’s judgment. Because res judicata operates to bar Tucker’s civil rights claim and his abuse of process claim, we affirm the judgment of the trial court.

The following facts are not in dispute. The long and tortured history of this case began in 1978, when Northeast Savings, F.A. (then Hartford Federal Savings and Loan Association), brought a foreclosure action against Tucker. The foreclosure action involved four properties located in Hartford. The trial court granted Tucker’s motion for an appointment of a rent receiver. After the court rendered judgments of foreclosure on the four properties, Tucker appealed to our Supreme Court. For reasons unrelated to the present appeal, the Supreme Court reversed the judgments of foreclosure in Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 436 A.2d 1259 (1980).

Northeast Savings, F.A., again sought foreclosure against Tucker alleging nonpayment of the mortgages. Tucker denied nonpayment, pleaded special defenses and brought a counterclaim for damages. Subsequently, the original rent receiver resigned, and, on October 26, 1981, Northeast applied to the court for a replacement. Tucker objected, asserting that Practice Book §§ 504 through 510 are unconstitutional and void. Tucker further sought the appointment of himself as the rent receiver. After a hearing, the trial court denied the defendant’s motions and, on December 21, 1981, appointed Plaza Realty as rent receiver. When the trial court rendered final judgments of strict foreclosure on all four properties, Tucker appealed to the Supreme Court.

In Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985) (Hartford Federal II), the Supreme Court affirmed the judgment of the trial court. In doing so, the court rejected Tucker’s assertion that Practice Book §§ 504 through 510 are unconstitutional and void. Further, the court was not persuaded that the judgments of strict foreclosure were invalid.

Ultimately, the defendant in this case, Northeast Savings, F.A., transferred title in the properties to the defendants, Donna Galluzo and Lorraine Whitehouse. Galluzo and Whitehouse, in turn, mortgaged the properties to the named defendant, Pace Investments Association. Tucker then filed an action in the United States District Court against Northeast Savings, F.A., Robert Basine, Galluzo and Whitehouse, claiming monetary and declaratory relief pursuant to 42 U.S.C. § 1983. Tucker v. Northeast Savings, 675 F. Sup. 763 (D. Conn. 1987), appeal dismissed, 849 F.2d 1468 (2d Cir. 1988), cert. denied, 488 U.S. 1007, 109 S. Ct. 788, 102 L. Ed. 2d 780 (1989). That action was predicated on the notion that Practice Book §§ 504 through 510 are unconstitutional both factually and as applied to the foreclosures at issue. Id. The District Court dismissed Tucker’s action reasoning that “the Connecticut Supreme Court determined that the application of the state procedures to Tucker in the foreclosure proceedings did not deny him due process' of law and that he was given notice and a meaningful opportunity to be heard in the appointment of the receiver.” Id., 767.

On April 7,1989, Tucker brought the present action against the defendants. In count one of his complaint, Tucker asserted a civil rights claim pursuant to 42 U.S.C. § 1983. The gravamen of Tucker’s claim was that Practice Book §§ 504 through 510 are unconstitutional and void as applied to this case. In count two of the complaint, Tucker alleged an action sounding in fraud. On June 2,1989, the defendants filed a motion to dismiss count one of the complaint' for lack of subject matter jurisdiction. They claimed that the trial court was without jurisdiction to review a decision of an appellate court. The trial court granted the motion and an appeal to this court followed. In April, 1990, this court dismissed the appeal for lack of a final judgment. Tucker v. Pace Investments Associates, 21 Conn. App. 821, 576 A.2d 595 (1990).

On May 7,1990, Tucker filed a substitute complaint through which he replaced his fraud claim in the original complaint with an action for abuse of process. Specifically, Tucker alleged that the defendants abused the use of rent receivers. The trial court struck the substitute complaint because the defendants could not be held liable for the conduct of the court appointed receiver.

Again Tucker attempted to initiate an action for abuse of process, and again the trial court struck the complaint. On January 10, 1991, Tucker filed yet another substitute complaint alleging abuse of process and seeking equitable relief. On February 19,1991, the trial court struck Tucker’s claim for equitable relief. With respect to the abuse of process claim, the defendants filed an answer and raised as special defenses the statute of limitations and the doctrine of res judicata.

On May 31,1991, the defendants moved for summary judgment relying on the statute of limitations and res judicata. On January 3, 1992, the trial court agreed with the defendants that the abuse of process action was time barred and rendered summary judgment accordingly. In its memorandum of decision, the trial court concluded: “It is clear that pursuant to the plaintiff’s pleadings, the conduct complained of ended in June, 1986 and, therefore, the plaintiff . . . would have had to assert his claim for abuse of process by June of 1989. Since it was filed for the first time in May of 1990, it is time barred by the three year limitation period of General Statutes § 52-577.” From the judgment dismissing his 42 U.S.C. § 1983 claim and from summary judgment on his abuse of process claim, Tucker brought the present appeal.

Before turning to Tucker’s individual claims, it is necessary to understand fully the law of res judicata in Connecticut and its operation. “ ‘Res judicata or claim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. . . .’ ” In re John B., 20 Conn. App. 725, 729, 570 A.2d 237 (1990), quoting Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988). “The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made. . . .” (Citations omitted; internal quotation marks omitted.) Dunham v. Dunham, 221 Conn. 384, 391-92, 604 A.2d 347 (1992).

The theory of “merger” and the “transactional test” steer the operation of res judicata. Id., 392 n.10; Legas-sey v. Shulansky, 28 Conn. App. 653, 656, 611 A.2d 930 (1992). Merger reflects the fact that “ ‘[wjhen the plaintiff recovers a valid and final personal judgment, his original claim is extinguished and rights upon the judgment are substituted for it. The plaintiff’s original claim is said to be “merged” in the judgment.’ ” Legassey v. Shulansky, supra, quoting 1 Restatement (Second), Judgments § 18 (1982).

An application of the transactional test defines the contours of the original claim. Once this claim is ascertained, a court can then assess the preclusive effects of the prior judgment. Vakalis v. Kagan, 18 Conn. App. 363, 367, 557 A.2d 1285 (1989). “In determining the nature of a cause of action for these purposes, we have long looked to the group of facts which is claimed to have brought about an unlawful injury to the plaintiff . . . and have noted that [ejven though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action. ...” (Citations omitted; internal quotation marks omitted.) Dunham v. Dunham, supra, 392-93 n.10. “What factual grouping constitutes a transaction, and what groupings constitute a series are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage. . . .” (Internal quotation marks omitted.) Id., 392 n.10.

Further, courts must implement res judicata to foster the important public policy of preventing a party from relitigating a matter that he has already had an opportunity to litigate. Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 363-64, 511 A.2d 333 (1986). “Res judicata, as a judicial doctrine . . . should be applied as necessary to promote its underlying purposes. These purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose .... State v. Ellis, 197 Conn. 436, 465-66, 497 A.2d 974 (1985).” (Emphasis added; internal quotation marks omitted.) Statewide Grievance Committee v. Presnick, 216 Conn. 135, 139, 577 A.2d 1058 (1990). Against this legal backdrop, we turn to Tucker’s claims against the defendants.

I

The Plaintiff’s Civil Rights Claim

After a careful reading of our Supreme Court’s decision in Hartford Federal II, supra, we are satisfied that the doctrine of res judicata bars the plaintiffs civil rights claim against the defendants. In Hartford Federal II, Tucker argued that the process by which the court appointed the rent receivers denied him due process of the law. The court disagreed, holding that “[Tucker’s] claim, that the grant of the plaintiff’s.applications for the appointment of rent receivers denied him due process of law, is clearly untenable.” Id., 175-76. The court noted that Practice Book §§ 504. through 510 contained ample procedural safeguards to ensure that a party in interest has a meaningful time for a court hearing and an opportunity to litigate the question of the appointment of rent receivers. Id., 176. The court further held that “[i]t is clear from the record and from [Tucker’s] own admission that he was given notice and a meaningful opportunity to be heard if he had objection to the appointment of a rent receiver.” Id., 177.

Tucker also argued that the rent receiver procedures are unconstitutional because they do not provide a mechanism for the discharge of a rent receiver who is negligent or committing waste. The court again disagreed for the most part in light of the fact that the receiver must act within the supervision of the appointing judicial authority. Id., 178. The court also noted that it was within the trial court’s discretion to find that the rent receiver appointed was better qualified to serve in that capacity than Tucker himself. Id., 179.

Through the present civil rights claim, brought eight years after the decision in Hartford Federal II, Tucker has done no more than echo his assertion that the appointment of rent receivers violated his due process rights. In his complaint, Tucker claims “that Connecticut Practice Book §§ 504 through 510 are unconstitutional and void as applied by the defendants herein for failure to give notice of defenses before a rent receivership begins to seize the plaintiffs rents.” The present civil rights action sounds remarkably similar to Tucker’s assertion in Hartford Federal II.

Tucker’s pending challenge to the rent receiver provisions arose out of the same transaction or series of connected transactions as did his original constitutional challenge in Hartford Federal II, namely the appointment of rent receivers. The facts at issue in the present case are related in time, space, origin, and motivation. Further, Tucker’s pending civil rights action involves claims relating to his original claims in Hartford Federal II and any additional matters most certainly could have been raised at that time. We conclude that our Supreme Court’s disposition of Tucker’s due process claims in Hartford Federal II serves as an absolute bar to the subsequent action at issue.

We recognize the sua sponte nature of our invocation of res judicata. We are equally cognizant of the general rule that res judicata must be specially pleaded. Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985); Statewide Grievance Committee v. Presnick, supra, 137 n.3. This general rule, however, yields when, as here, the circumstances reveal that a remand “would simply set judicial wheels unnecessarily spinning, only to remain at the same end of the road.” Chomko v. Patmon, 20 Conn. App. 159, 163, 565 A.2d 250 (1989); cf. Carnese v. Middleton, 27 Conn. App. 530, 537, 608 A.2d 700 (1992) (“the strict application of our rules of practice has yielded to a more common sense application when confronted with the implication of the doctrine of collateral estoppel”).

In this case, the preclusive effects of res judicata are so patently applicable that a remand to the trial court would only lead to the same result we reach here. Moreover, the trial court’s dismissal of the civil rights count on October 4,1989, occurred prior to the defendants’ initiation of their pleadings. Because the court dismissed the count, there was no opportunity to answer or plead a special defense. We, therefore, invoke the doctrine of res judicata sua sponte to effectuate the public policy that justifies the doctrine’s operation — to promote judicial economy and to avoid inconsistent judgments.

II

The Plaintiff’s Abuse of Process Claim

Tucker next challenges the trial court’s granting of summary judgment with respect to his abuse of process claim. In this claim, Tucker alleged that the defendants abused the rent receiver process to augment his outstanding debt and thereby obtain judgments of strict foreclosure. In response, the defendants raised res judicata and the statute of limitations as special defenses and as bases for summary judgment. In granting summary judgment in the defendants’ favor, the trial court found that the statute of limitations barred Tucker’s abuse of process claim. While we agree with the trial court’s ultimate judgment, we are more concerned with the preclusive effects of res judicata and affirm the trial court’s judgment on this basis. See Henderson v. Department of Motor Vehicles, 202 Conn. 453, 461, 521 A.2d 1040 (1987) (“this court is authorized to rely upon alternative grounds supported by the record to sustain a judgment”).

Our analysis regarding the preclusive effect of Hartford Federal II on the plaintiffs civil rights claim (part I, supra) leads to the same conclusion with respect to the abuse of process claim. It is true that Tucker did not raise specifically abuse of process as a counterclaim in the foreclosure action. Nevertheless, Tucker is seeking damages arising from allegations directed to the same transaction or series of connected transactions involved in Hartford Federal II, i.e., the appointment of rent receivers.

In Hartford Federal II, supra, 179, our Supreme Court emphasized the following with respect to the appointment of the rent receivers. “[Tucker] was afforded every opportunity in the trial court to pursue his complaints concerning the receivers of the rents. On at least two occasions, [Tucker] was advised that he could not, in his counterclaims, attack the plaintiff on the basis of any alleged misconduct on the part of the court-appointed receiver. The proper course, he was instructed by the court, was either to petition the court for removal of the rent receiver or to request the court’s permission to sue the rent receiver. [Tucker] elected to object to the appointment of a new receiver of rents. The application for the appointment of a new receiver of rents was addressed to the sound legal discretion of the court, to be exercised with due regard to the rules, and such exercise is not to be disturbed lightly unless abuse of a discretion or other material error occurs. 2 Swift, Digest, p. 160. [Tucker] alleged that he was better qualified to collect the rents. The plaintiff denied this was true. It' was thus [a] . . . question of fact. The trial court found adversely to [Tucker] in this regard and refused to appoint him as receiver of rents. As we read the evidence available to us, we cannot say that this conclusion did not have a reasonable basis in fact. That being so, it was not an unreasonable or arbitrary exercise of discretion which led the trial court to appoint Plaza Realty as rent receiver.”

We have noted that res judicata bars the relitigation of matters “involving any claims relating to such cause of action which were actually made or which might have been made. . . .” (Emphasis added; internal quotation marks omitted.) Dunham v. Dunham, supra, 391-92. It is abundantly clear from the foregoing passage of Hartford Federal II that the facts underlying the appointment of the rent receivers are related to the facts underlying the abuse of process claim in time, space, origin, or motivation, and that the abuse of process count could have been made in that case. The Supreme Court held that the trial court did not abuse its discretion in overruling Tucker’s objection to the rent receiver appointment. Tucker cannot now relitigate his objection eight years later in the guise of an abuse of process claim.

“The purpose of a law suit is not only to do substantial justice but to bring an end to controversy. ...” (Citation omitted; internal quotation marks omitted.) Orselet v. DeMatteo, 206 Conn. 542, 550, 539 A.2d 95 (1988). The decision in Hartford Federal II marked the end of the rent receiver controversy and the end of all matters related to it. Any additional litigation directed at this matter would unnecessarily burden our courts and threaten the integrity of our judicial system by creating the risk of inconsistent judgments. For these reasons, we conclude that the doctrine of res judicata bars Tucker’s civil rights claim and his abuse of process claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to the defendants mentioned in the text, Tucker brought the present action against Robert Basine, attorney for Northeast Savings, F.A.

       In his reply brief, Tucker argues that by analogy to the recent United States Supreme Court’s decision in Connecticut v. Doehr, 501 U.S. 1, 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991), due process requires a hearing under Practice Book §§ 504 through 510. This argument is specious, however, because our Supreme Court held in Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 491 A.2d 1084 (1984), that Tucker was given notice and a meaningful opportunity to be heard if he had an objection to the appointment of a rent receiver. In fact, a hearing was held in connection with the appointment of Plaza Realty as rent receiver.

       Because we resolve this issue on the basis of res judicata, it is unnecessary to reach the issue regarding the propriety of the court’s reliance on the statute of limitations.


author: Freedman, J.

text:
    Paul Trotta v. Board of Education of the Town of Plymouth
    (11643)
    O’Connell, Landau and Freedman, Js.
    Argued June 8
    decision released August 10, 1993

      Ronald Cordilico, for the appellant (plaintiff).

      Thomas N. Sullivan, for the appellee (defendant).

      Patrice A. McCarthy filed a brief for the Connecticut Association of Boards of Education as amicus curia.
   Freedman, J.

The plaintiff appeals from the judgment of the trial court dismissing his appeal from a decision of the defendant Plymouth board of education (board) terminating his employment. On appeal, the plaintiff claims that the trial court improperly concluded that (1) the board’s decision to terminate his teaching contract was not illegal, arbitrary or capricious, and (2) the board did not violate his due process rights by refusing to permit him to file a posthearing brief in support of his claim. We affirm the judgment of the trial court.

The plaintiff was employed by the board as a teacher who held the nonadministrative position of system library media specialist. The plaintiff was certified as a librarian and was also certified as an administrator. At all times, however, he was a member of the teachers’ bargaining unit. In September, 1991, after proper notice and a hearing, the board terminated the plaintiff’s employment because it had eliminated the position of system library media specialist due to budget cuts. The board also determined that there were no other teaching positions to which the plaintiff could be assigned pursuant to the reduction in force procedure in the collective bargaining agreement between the board and the teachers’ union. The plaintiff claimed nonetheless that, pursuant to the terms of the collective bargaining agreement between the board and school system administrators, he was entitled to “bump” or displace one of the four less senior administrators employed by the board. The board disagreed, finding that the reduction in force provision in the collective bargaining agreement between the board and the school administrators’ bargaining unit “has no relevancy to this proceeding.”

The plaintiff appealed to the Superior Court pursuant to General Statutes § 10-151 (f), claiming that he was denied his right to displace a less senior administrator and that he was denied due process since he was not able to submit a written brief after the conclusion of his dismissal hearing. After the trial court dismissed his appeal, the plaintiff appealed to this court.

I

The plaintiff first claims that because he is a teacher who is also certified as an administrator he had a right to bump an administrator of lesser seniority when the board determined that it would terminate his teaching contract. He argues that the board’s decision was illegal, arbitrary and capricious because his qualifications were not compared to those of at least four administrators who have less seniority than the plaintiff. The plaintiff contends that the right of teachers to bump administrators follows from our decision in Connecticut Education Assn. v. State Board of Labor Relations, 5 Conn. App. 253, 498 A.2d 102, cert. denied, 197 Conn. 814, 815, 499 A.2d 804 (1985). We do not agree.

The Teacher Tenure Act provides in pertinent part: “The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for . . . elimination of the position to which the teacher was appointed or loss of a position to another teacher, if no other position exists to which such teacher may be appointed if qualified, provided such teacher, if qualified, shall be appointed to a position held by a teacher who has not attained tenure, and provided further that determination of the individual contract or contracts of employment to be terminated shall be made in accordance with either (A) a provision for a layoff procedure agreed upon by the board of education and the exclusive employees’ representative organization or (B) in the absence of such agreement, a written policy of the board of education.” General Statutes § 10-151 (d) (5). In Connecticut Education Assn. v. State Board of Labor Relations, supra, this court addressed the question of whether a displaced administrator is entitled to bump a classroom teacher. In interpreting the Teacher Tenure Act to permit such cross-bargaining unit displacement, we agreed with the following conclusions of the state board of labor relations: “[I]n the Teacher Tenure Act no preference is expressed for the retention of teacher unit teachers over displaced administrator unit teachers .... [T]he clear legislative intent is that administration unit teachers are to have the same degree of employment security as teacher unit personnel including the right to bump in accordance with a layoff procedure .... [T]eachers, whether in the administrative unit or teacher unit, are to be treated equally as members of the same class and administrators who are displaced must be given the same right to bump teachers in the teachers unit as are members of that unit.” Id., 269. In resolving the question presented in Connecticut Education Assn., we concluded that “[t]he single determinative issue of statutory interpretation rests firmly on the creation of one class of teachers, some of whom are administrators, and all of whom have equal bumping rights as teachers.” (Emphasis added.) Id.

This court’s conclusion — that teachers and administrators are one for reduction in force purposes — was made and must be understood within the context of deciding whether administrators, who are teachers under the Teacher Tenure Act, may bump teacher unit members. Nowhere in our decision in Connecticut Education Assn, did we state or imply that teacher unit members have a corollary right to bump administrators. Thus, in Connecticut Education Assn., we noted that it was “significant that the position which the competing applicants would be seeking [was] a position in the teacher’s unit.” Id., 273.

The bumping right sought by the plaintiff, however, would necessarily limit the board’s managerial discretion in ways not raised by the bumping rights at issue in Connecticut Education Assn. Our Supreme Court has recognized that wholly different considerations come into play when the issue revolves around the administrative personnel decisions of a board of education; Delagorges v. Board of Education, 176 Conn. 630, 636, 410 A.2d 461 (1979); and the related discretion of a board and school administrators to determine and to implement educational policy. West Hartford Education Assn. v. DeCourcy, 162 Conn. 566, 583, 295 A.2d 526 (1972). In the absence of explicit legislative direction, the Teacher Tenure Act should not be interpreted to interfere with the board’s role in developing and implementing educational policy. Delagorges v. Board of Education, supra. Permitting teachers to bump administrators would do just that and would, contrary to the intent of the Teacher Tenure Act, “carry substantial potential for administrative chaos.” Id.

This concept of managerial discretion has been utilized by the courts of Minnesota and California to reject the argument that a teacher may bump into the administrative ranks. In Haak v. Board of Education, 367 N.W.2d 461, 467 (Minn. 1985), the court concluded: “[A] person whose position has been discontinued does not have any right to reassignment to a . . . position that involves added duties and responsibilities and occupies a higher place, rank, and standing. . . . The history and purpose of the [Minnesota] Teacher Tenure Act disclose that the Act has in mind not only the prevention of arbitrary demotions and discharges of teachers but also, balanced against this purpose, the need to allow the school board enough latitude to administer effectively the operation of the public schools. . . . Here, where we are considering high administrative, nonclassroom posts affecting school management, we conclude that imposition of reassignment rights to promotional positions would be unduly disruptive of managerial discretion . . . .’’(Citations omitted; internal quotation marks omitted.) Similarly, in Palos Verdes Faculty Assn. v. Governing Board, 183 Cal. Rptr. 196, 199 (Cal. Ct. App. 1982), the court reasoned: “The relationship between top administrators and second and third level administrators is an intimate one based upon trust, confidence, and cooperation.. . . Administrators have no vested rights to administrative positions, but only to their respective classroom positions . . . and the converse is also true. That is, no classroom teacher threatened with layoff has a right to usurp the position of an administrator because the administrator’s position on the teachers’ seniority list is junior to his. Nor can it be seriously contemplated that the administrative position should be left vacant after the incumbent is perforce discharged to comply with appellants’ theory [that the statute requires layoff of less senior administrators unless there are no teachers with greater seniority who could perform the duties of the administrator]. ... If a district must risk invalidating dozens of otherwise proper layoffs in order to choose its administrators, the discretion to select administrative personnel becomes very limited.” (Citations omitted; internal quotation marks omitted.) These considerations are no less applicable to the interpretation of our Teacher Tenure Act. See Delagorges v. Board of Education, supra.

Accordingly, the plaintiff’s challenge to the board’s decision to terminate his teaching contract must fail.

II

The plaintiff’s next claim requires little discussion. The plaintiff contends that the trial court improperly concluded that the board did not violate the his due process rights when it denied his request to submit a posthearing brief. We disagree.

Due process “does not guarantee any particular form of state procedure. Due regard must be had to the nature of the proceeding and the individual right affected by it.” Katz v. Brandon, 156 Conn. 521, 537, 245 A.2d 579 (1968). Nonetheless, “[constitutional principles permit an administrative agency to organize its hearing schedule so as to balance its interests in reasonable, orderly and nonrepetitive proceedings against the risk of erroneous deprivation of a private interest.” Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 486, 576 A.2d 510 (1990). Thus, due process is afforded where the opportunity to present argument in support of a claim is either oral or written. Morgan v. United States, 298 U.S. 468, 481, 56 S. Ct. 906, 80 L. Ed. 1288 (1936).

Here, the board denied the plaintiff’s request to submit a written brief, noting that “there has been sufficient notice of the hearing and adequate time to prepare and to present to the board of education whatever arguments and positions and case law or citation that you (the plaintiff) feel is necessary.” The plaintiff does not dispute these conclusions. While we do not disagree that, as a tenured teacher, the plaintiff had a property interest in continued employment protected by constitutional due process; Lee v. Board of Education, 181 Conn. 69, 72, 434 A.2d 333 (1980); we conclude that the plaintiffs opportunity to be heard was adequately protected by the opportunity to present oral argument to the board at the conclusion of the hearing.

The judgment is affirmed.

In this opinion the other judges concurred.

       Following initial release of Palos Verdes Faculty Assn. v. Governing Board, 183 Cal. Rptr. 196 (Cal. Ct. App. 1982), the California Supreme Court directed that it be omitted from publication in the official reports. See 132 Cal. App. 477 (1982). The reasoning of that decision is nonetheless applicable to the issue presented in the present appeal.

       The plaintiffs reliance on Bengal v. State Board of Pharmacy, 2 Pa. Commw. 347, 279 A.2d 374 (1971), is misplaced. The requirement of a posthearing brief recognized in Bengal was based primarily on statutory grounds. To the extent that the Bengal court recognized a constitutional basis for its decision, it did so under circumstances where less than the full board was present at the hearing. Under such circumstances, a posthearing brief may be necessary to fulfill the due process requirement that “[t]he one who decides must hear.” Morgan v. United States, 298 U.S. 468, 481, 56 S. Ct. 906, 80 L. Ed. 1288 (1936); Stevens v. Hartford Accident & Indemnity Co., 29 Conn. App. 378, 385, 615 A.2d 507 (1992). In this case, unlike Bengal, only those board members present for the entire hearing were allowed to participate in the decision-making process.


text:
    State of Connecticut v. Gilberto Colon State of Connecticut v. Carmen Perez
    (11454)
    (11693)
    Dupont, C. J., Heiman and Schaller, Js.
    Argued April 26
    decision released August 10, 1993

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, chief state’s attorney, Joan K. Alexander and Paul E. Murray, assistant state’s attorneys, and Adam Scott and Mark Tallo, law student interns, for the appellant (state).

      Kent Drager, assistant public defender, for the appellees (defendants).
   Schaller, J.

This consolidated appeal arises from the action of the trial court in rendering judgments of dismissal in two criminal cases. The judgments followed orders suppressing evidence in both cases for the reason that the document purporting to be an affidavit supporting the search and seizure warrant involved in both cases lacked a completed jurat. The court gave permission to the state to appeal both judgments. The state presents the following issues on appeal: (1) whether the lack of a completed jurat on the document offered to support a search and seizure warrant renders the resulting warrant invalid; and (2) whether, if the warrant is invalid, the evidence obtained pursuant to that warrant should be suppressed by the application of the exclusionary rule. We affirm the judgments of the trial court.

The following facts are not in dispute. On February 6, 1992, Detectives Michael Perodeau and Stephen Grabowski of the Hartford police department appeared before Superior Court Judge Carmen Espinosa, the issuing magistrate, and submitted an application for a search and seizure warrant using the standard six page form (Form JD-CR-61, Rev. 12-89). Pages two and three of the form provided space for the affidavit to support the warrant. Page four of the form provided space for an affidavit to support a request to delay the delivery of the entire warrant application to the owner of the property to be searched. Page five was the actual search and seizure warrant, and page six provided space for an inventory of the items seized pursuant to the warrant. While both Perodeau and Grabowski signed and dated the document supporting the warrant on page three, the issuing magistrate did not sign or date the jurat. The affidavit supporting the request to delay delivery, including the jurat, was properly signed and dated by Perodeau, Grabowski, and the issuing magistrate. In addition, the issuing magistrate signed and dated the search and seizure warrant itself.

Unaware that the court had not signed or dated the jurat on the document supporting the warrant, Perodeau and Grabowski, relying on the validity of the warrant, conducted a search of the premises described in the warrant. The detectives found narcotics on the premises. The state then charged both Gilberto Colon and Carmen Perez with crimes involving narcotics violations.

I

The state first argues that the lack of a completed jurat on the document offered to support the search warrant does not render invalid the search warrant. We are not persuaded.

As a threshold matter, we note that these cases involve General Statutes § 54-33a (c), which states in pertinent part that “[a] warrant may issue only on affidavit sworn to by the complainant or complainants before the judge and establishing the grounds for issuing the warrant . . . .” (Emphasis added.) The federal and state constitutions form the background of § 54-33a (c) by requiring that a search warrant be based on “probable cause” that is “supported by oath or affirmation.” Section 54-33a (c), however, offers more specific criteria for the issuance of a valid search warrant, including the requirement of an affidavit.

We have previously held in a civil context that a document lacking the formalities of an affidavit is not an affidavit. Willametz v. Susi Contracting Co., 9 Conn. App. 1, 6-7, 514 A.2d 383, cert. denied, 201 Conn. 814, 517 A.2d 631 (1986). In Willametz, the purported affidavit lacked “any attestation that the statements contained therein were made under oath before some person authorized by law to administer an oath,” and, as a result, the court concluded that “the mere fact that the plaintiff described this document as an affidavit did not make it one.” Id., 7. Thus, we have concluded that the definition of an affidavit in this civil context includes the jurat, or “attestation.” Without the jurat, the document is not an affidavit.

Our Supreme Court has often repeated the view that “[wjhen we have occasion to construe the rules of criminal procedure, they ‘are to be strictly construed to protect the fundamental constitutional right to liberty.’ ” State v. Genotti, 220 Conn. 796, 807, 601 A.2d 1013 (1992), quoting State v. Cook, 183 Conn. 520, 522, 441 A.2d 41 (1981). In addition, our courts have specified that strict construction is essential with regard to search and seizure provisions. “The court must regard provisions of our statutes pertaining to search warrants with more than ordinary strictness and be ever mindful of the constitutional guarantee to citizens to be free from unreasonable search and seizure.” State v. Alimori, 3 Conn. Cir. Ct. 641, 644, 222 A.2d 820 (1966) (lack of lawful signature on warrant renders warrant invalid); see also State v. Surowiecki, 184 Conn. 95, 98, 440 A.2d 798 (1981). We note that our Supreme Court, in a similar case where the warrant had not been lawfully signed, chose to adopt the “analysis and conclusion” of Alimori. State v. Surowiecki, supra.

Under § 54-33a (c), a valid search warrant must be supported by an affidavit sworn to by the complainants. In the civil context, we determined that the jurat is considered a part of the affidavit, making the affidavit a self-proving document. Willametz v. Susi Contracting Co., supra, 6-7. Strict construction of the term “affidavit” in the criminal context, where we are concerned with the liberty of our citizens, certainly requires no less. Thus, the term “affidavit” in the substantive requirements for the issuance of a valid search warrant in § 54-33a (c) includes the jurat. As applied to these facts, the document signed by Grabowski and Perodeau is not an affidavit. It follows that the requirement set forth in § 54-33a (c) that a warrant be supported by an affidavit of the complainants has not been met, rendering the warrant invalid.

II

In the alternative, the state posits that, even if the warrant is invalid, the exclusionary rule is not the proper remedy. We disagree. The general remedy for evidence seized pursuant to an invalid warrant is the exclusion of that evidence. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). Our Supreme Court has also recognized that the exclusionary rule is the appropriate remedy for evidence obtained through searches and seizures declared invalid pursuant to the Connecticut constitution. State v. Dukes, 209 Conn. 98, 110, 547 A.2d 10 (1988). The affidavit supporting a search warrant is clearly an integral part of the substance of § 54-33a (c), which protects the liberties of our citizens through specific provisions concerning the warrant issuing process. As we have said, the completion of the jurat on a document purporting to be an affidavit is essential to the creation of an actual affidavit. Absent the jurat, the document is not an affidavit. The substantive requirements of the warrant issuing process not having been met, the warrant is invalid. It follows that, unless an exception to the exclusionary rule applies, the suppression of evidence obtained as a result of an invalid search warrant is the appropriate remedy.

The United States Supreme Court has provided a “good faith” exception to the general exclusionary rule regarding invalid search warrants. United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); Massachusetts v. Sheppard, 468 U.S. 981, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984). Our Supreme Court, however, has chosen to reject this “good faith” exception under our state constitution where a search warrant is invalid. State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990). In addition, the court has found that the deterrent effect of the exclusionary rule need not fall solely on the police, but that it is “also appropriately directed at the warrant issuing process. . . .” Id., 167. By extending the exclusionary rule to the actions of judges and magistrates, the court sought to “ ‘preserve the integrity of the warrant issuing process as a whole.’ ” Id., 169, quoting S. Wasserstrom & W. Mertens, “The Exclusionary Rule on the Scaffold: But Was It a Fair Trial?” 22 Am. Crim. L. Rev. 85, 109 (1984).

Because the issuing magistrate did not sign and date the jurat of the document offered to support the search and seizure warrant in these cases, the warrant is invalid. Accordingly, the trial court properly suppressed the evidence obtained pursuant to that warrant.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 3-94a (2) provides: “ ‘Jurat’ means a notarial act in which a notary public certifies that a signatory, whose identity is personally known to the notary public or proven on the basis of satisfactory evidence, has made, in the notary public’s presence, a voluntary signature and taken an oath or affirmation vouching for the truthfulness of the signed document.”

       Colon filed a motion to suppress evidence on April 29,1992, which the court granted on May 4, 1992. On May 12, 1992, the state filed a motion to open and reconsider the suppression decision in order to “present affidavits and testimony of Judge Espinosa and Officers Grabowski and Perodeau . . . in order to establish the administration of the oath on February 6,1992.” The court also granted that motion. In Judge Espinosa’s affidavit, she stated that although she did not sign the jurat, that inaction “was an oversight. The officers swore to the truth of the contents of the affidavit in my presence and I used that sworn affidavit to support my probable cause finding necessary for the issuance of the Search and Seizure Warrant on page 5 of form JD-CR-61.”
      Perez filed a motion to suppress evidence on July 16,1992. The state presented similar evidence in this case, including Judge Espinosa’s affidavit.

       General Statutes § 54-33a (c) provides: “A warrant may issue only on affidavit sworn to by the complainant or complainants before the judge and establishing the grounds for issuing the warrant, which affidavit shall be part of the arrest file. If the judge is satisfied that the grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person, place or thing to be searched. The warrant shall be directed to any police officer or a regularly organized police department or any state policeman or to a conservation officer, special conservation officer or patrolman acting pursuant to section 26-6. It shall state the grounds or probable cause for its issuance and it shall command the officer to search within a reasonable time the person, place or thing named, for the property specified.”

       The fourth amendment to the constitution of the United States provides: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This provision was made applicable to the states by virtue of the due process clause of the fourteenth amendment to the United States constitution in Wolf v. Colorado, 338 U.S. 25, 28, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949).
      Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”