text:
    Eastern Bus Lines, Inc. v. Board of Education of the City of Norwich et al.
    (3377)
    Borden, Daly and Bieluch, Js.
    Argued March 19 —
    decision released June 3, 1986

      Thomas M. Bounty, for the appellants (defendants).

      Mary E. Holzworth, with whom, on the brief, was Jackson T. King, Jr., for the appellee (plaintiff).
   Daly, J.

This case involves an action brought by the plaintiff, Eastern Bus Lines, Inc., against the defendants, the city of Norwich and its board of education, claiming damages resulting from the breach of a contract for the transportation of school children during the academic year of 1981-82. The defendants have appealed from a judgment of the trial court awarding damages to the plaintiff.

The facts are not in dispute. The defendant solicited bids by advertising its invitation to bid for the school transportation contract for the three year period commencing in the fall of 1981. The invitation to bid set forth contract specifications and estimated transportation requirements for the 1981-82 school year. In prebid conferences, it was indicated by the defendant that these were estimates of its transportation requirements. The plaintiff submitted a bid which contained its own specifications and which was ultimately accepted by the defendant. The parties entered into a contract in April, 1981.

The contract provided, inter alia: “Base bid for a total of 2,000 miles for thirty-two (32) plus three (3) spare, sixty-six (66) passenger rated capacity buses. . . . The [defendant] reserves the right to fix the schedules and routes and to reduce or increase existing routes or to change the schedules and number of routes. . . . The [defendant] will purchase a maximum of 90,000 gallons of gasoline or 2,650 gallons per vehicle, whichever is less and will have it delivered to the tank provided by the contractor. The cost of any gasoline in excess of 90,000 gallons or 2,650 gallons per vehicle will be the responsibility of the contractor. . . . [The defendant’s charges for mileage adjustments for the first year will be:] $.90 per mile for mileage in excess of 2,000 miles per day plus an added allowance of 1 gallon of gasoline for each 4 miles added. No credit for mileage reductions. ...”

The defendant made all the monthly payments for charges specified by the contract. The plaintiff subsequently sued for services it provided which were not specifically described in the contract. The defendant has not questioned the amounts claimed for the additional services but maintains that these services were within the terms of the contract and, therefore, that the defendant is not liable for them.

The trial court concluded that any mileage over 2000 miles per day was to be compensated and that additional payment for extra runs or mileage could be allowed even if the 2000 mile limit was not exceeded. The trial court found that the defendant was liable for an amount totalling $19,630.80, based on the following: extra kindergarten runs, the community school shuttle bus, St. Bernard’s high school schedule change, and a gasoline allowance for the spare and additional buses.

The defendant has appealed from the judgment claiming that the trial court erred: (1) in ruling that a contract should be construed against the party who drafted it; (2) in concluding that the omission of a provision in the contract specifications was intentional and designed to lull the plaintiff into making a lower bid by leading it to believe that it would be compensated for extra runs; (3) in implying terms in the contract specifications requiring extra compensation to the plaintiff; (4) in construing a contract where only a portion was introduced into evidence; and (5) in considering other contracts made between the defendant and third parties.

On appeal, this court must determine whether the trial court’s conclusions, based on the facts and on the law applied to those facts, are correct and fully supported by the evidence and the record. Practice Book § 3060D; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). “[R]eview of the trial court’s construction of the agreement is an issue of fact subject to review under the limited standard of whether it is clearly erroneous.” Lavigne v. Lavigne, 3 Conn. App. 423, 427, 488 A.2d 1290 (1985). Our Supreme Court has repeatedly held that “what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact.” Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 78, 480 A.2d 499 (1984); Gallicchio Bros., Inc. v. C & S Oil Co., 191 Conn. 104, 107, 463 A.2d 600 (1983). Our review is therefore limited to whether the trial court was clearly erroneous in concluding that the plaintiff was entitled to extra compensation for the bus runs and for gas allotment for the spare buses.

The general rule is that when contract language is ambiguous or susceptible to different interpretations, “the language is to be construed against the [party] who drew it . . . and for whose benefit it was inserted.” Sturman v. Socha, 191 Conn. 1, 9, 463 A.2d 527 (1983). This principle of contract construction is known as the contra proferentem rule, which has no application if the contract term has only one reasonable interpretation and was definitely assented to by both parties. 3 Corbin, Contracts § 559.

In its first claim of error, the defendant maintains that the trial court committed three fundamental errors in applying the contra proferentem rule: (a) by finding that the defendant alone drafted the contract; (b) by failing to find the requisite ambiguity; and (c) by resorting to the rule without first looking to the language of the contract itself to determine the intent of the parties.

The defendant claims that because the plaintiff had participated actively in drafting the contract terms, the contra proferentem rule is not applicable. Centennial Enterprises v. Mansfield Development Co., 568 P.2d 50, 52 (Colo. 1977). The rule was held applicable where “the contract was drawn up in response to the other party’s written proposals, after a lengthy negotiation and while the parties sat in his attorney’s office awaiting it. . . . [The rule recognizes, however, that] the draftsman’s choice of words, the precise phrases and their order are critical elements in the judicial interpretation of contracts.” Ravitch v. Stollman Poultry Farms, Inc., 165 Conn. 135, 146, 328 A.2d 711 (1973). “The premise operating behind the rule would seem to be a psychological one. The party who actually does the writing of an instrument will presumably be guided by his own interests and goals in the transaction. He may choose shadings of expression, words more specific or more imprecise, according to the dictates of these interests.” Id., 146 n.8; see also Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 513, 442 A.2d 920 (1982); 4 Williston, Contracts (3d Ed. Jaeger) § 621, pp. 760-61. The plaintiff’s participation in the contract negotiations did not preclude the application of the contra proferentem rule.

In a case involving a building contract, our Supreme Court rejected a claim by the state that since the contract contemplated a complete building which would not be complete without wiring, the general contractor should be held responsible for the wiring whether or not it was included in the contract plans and specifications. The court rejected this contention and applied the contra proferentem rule against the state. Southern New England Contracting Co. v. State, 165 Conn. 644, 655-56, 345 A.2d 550 (1974). In this case, there was evidence before the trial court here that while the contract contained a provision for the payment of compensation when the mileage exceeded 2000 miles per day, the plaintiff was paid for work which was not included in the specifications and which was unanticipated at the time the specifications were made despite this provision. In order to understand the terms of a contract, a contract must be construed to reflect the parties’ intent which is determined from the language used as applied to the circumstances surrounding the transaction. Sturman v. Socha, supra, 10. The intention of parties to a written agreement is to be “ ‘determined from its language and not on the basis of any intention either [party] may have secretly entertained.’ ... In interpreting contract terms . . . the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” Id.; LarRob Bus Corporation v. Fairfield, 170 Conn. 397, 407, 365 A.2d 1086 (1976). There is an ambiguity in this agreement concerning the payment for extra bus runs and the gas allowance for spare buses.

There is no Connecticut authority to support the defendant’s next claim that the contra proferentem rule is to be applied only as a last resort. 1A Corbin, Contracts § 268. The court in its memorandum of decision indicates that it reviewed the contract and testimony of the parties in great detail as well as the background of the contract. The omission of payment for extra runs was noted. Hence, even if Connecticut did follow the last resort application, it would appear that the contra proferentem rule was applied in this case as strengthening the trial court’s finding concerning the intent of the parties. We do not find that the trial court erred in applying the contra proferentem rule against the defendant.

The defendant challenges the trial court’s conclusion that the defendant intentionally omitted to provide for payment for extra bus runs in order to lull the plaintiff into submitting a lower bid. The trial court buttressed its finding by noting that a similar bussing contract between the parties, servicing special education, explicitly bars compensation for extra bus runs, whereas the contract in question is silent as to compensation for extra work. It makes no difference to the legal aspects of the case that such omissions did not have a sinister purpose. Christie v. United States, 237 U.S. 234, 242, 35 S. Ct. 565, 59 L. Ed. 933 (1915). “Where the parties to a special contract deviate from the original plan agreed upon and the terms of the original contract do not appear to be applicable to the new work, it being beyond what was originally contemplated by the parties, it is undoubtedly to be regarded and treated as work wholly extra, outside the scope of the contract, and may be recovered for as such.” 17 Am. Jur. 2d., Contracts § 353. Any error which the trial court may have made in finding that the defendant intended to lull the bidder into making a lower bid would be harmless.

The defendant next claims that the trial court erred in implying a contract term requiring compensation for the performance of the extra work. “ ‘A term not expressly included will not be read into a contract unless it arises by necessary implication from the provisions of the instrument.’ Texaco, Inc. v. Rogow, 150 Conn. 401, 408, 190 A.2d 48 (1963). . . . ” Heyman v. CBS, Inc., 178 Conn. 215, 227, 423 A.2d 887 (1979). The contract provisions allowing the defendant to make changes in bus routes and schedules was silent as to whether compensation would be paid for extra work. The trial court had to imply a term either requiring or disallowing extra compensation. “The intent of the parties to a contract cannot be found by implication unless a contrary intention cannot be supposed or any other inference made. The implication must be a necessary one and quite as obvious from the terms of the contract as though the intent implied was expressed in fact.” Connecticut Co. v. Divison 425, 147 Conn. 608, 621, 164 A.2d 413 (1960). “As intention is an inference of fact, ‘the conclusion is not reviewable unless it was one which the trier would not reasonably make.’ ” LarRob Bus Corporation v. Fairfield, supra, 403; Hess v. Dumouchel Paper Co., 154 Conn. 343, 347, 225 A.2d 797 (1966); Finlay v. Swirsky, 98 Conn. 666, 671, 120 A. 561 (1923). Here, even though the 2000 mile limit was not exceeded, compensation was warranted.

The defendant’s claim that the trial court failed to construe the written agreement in its entirety was not properly preserved at trial for review on appeal. Here, we will enforce the rule that claims not made at the trial court will not be considered on appeal. Practice Book § 285A; Latimer Point Management Corporation v. Anderson, 1 Conn. App. 310, 315, 471 A.2d 670 (1984). The defendant further failed to except to the plaintiff’s questioning of the defendant’s superintendent of schools about the special education contract. The interpretation of the additional special education contract depends on the intention of the parties. We find that the question of the parties’ intent is not reviewable here because the trial court’s finding was based on reasonable inferences and was not clearly erroneous.

There is no error.

In this opinion the other judges concurred.

       The contract involved a three year period commencing in September, 1981. In this case we are concerned only with the first year of the contract.

       We will refer to the named defendant, the Norwich board of education, as the “defendant,” as it has been agreed that any judgment rendered in favor of the plaintiff would be entered against the defendant city of Norwich rather than against the board of education.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    State of Connecticut v. Richard J. Fantasia
    (2937)
    Dupont, C. J., Borden and Daly, Js.
    Argued April 8 —
    decision released June 3, 1986

      Kenneth L. Shluger, with whom, on the brief, was John P. McKeon, for the appellant (defendant).

      James G. Clark, deputy assistant state’s attorney, with whom, on the brief, was John Bailey, state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from a judgment of conviction, after a jury trial, of illegal possession with intent to sell more than one kilogram of marihuana in violation of General Statutes (Rev. to 1981) § 19-480a (b), now General Statutes § 21a-278 (b), of illegal possession of more than four ounces of marihuana in violation of General Statutes (Rev. to 1981) § 19-481 (b), now General Statutes § 21a-279 (b), and of illegal possession of a narcotic substance in violation of General Statutes (Rev. to 1981) § 19-481 (a), now General Statutes § 21a-279 (a). He claims that the court erred in denying his motion for a mistrial and in an evidentiary ruling. We find no error.

The defendant put his character in issue by producing his wife as a witness and asking her whether she had ever known him “to be engaged in any type of drug activity.” She answered, “No.” On cross-examination the state asked her, without objection, whether her opinion would change if she knew that the defendant was convicted of possession of a controlled substance on March 28, 1980. She answered, “No.” The state then asked her whether her opinion would change if she knew that, on October 25,1982, approximately one year prior to the trial, he was charged with possession of cocaine. The court sustained the defendant’s objection to the question on the basis that its prejudicial effect outweighed its probative value, but denied the defendant’s motion for a mistrial and gave an immediate curative instruction to the jury.

The defendant’s claim that the question involved prosecutorial misconduct, and thus required a mistrial, is utterly meritless. There is persuasive authority to permit such a question. See Michelson v. United States, 335 U.S. 469, 482, 69 S. Ct. 213, 93 L. Ed. 168 (1948); Tait & LaPlante, Handbook of Connecticut Evidence § 8.4. The assistant state’s attorney specifically relied on that authority when he asked the question. The trial court’s ruling was favorable to the defendant and was followed by a curative instruction. We can hardly find, therefore, that the asking of the question constituted misconduct amounting to “conduct inside . . . the courtroom which results in substantial and irreparable prejudice to the defendant’s case.” Practice Book § 887.

We have reviewed the defendant’s claim of evidentiary error and find it equally without merit. The defendant claims that the state could not impeach its own witness. The defendant has confused impeachment of one’s own witness, which the court has the discretion to permit under some circumstances; see Plawecki v. Angelo Tomasso, Inc., 1 Conn. App. 48, 51-52, 467 A.2d 944 (1983), cert. denied, 192 Conn. 801, 470 A.2d 1218 (1984); with contradiction of the testimony of one party’s witness by testimony of another witness produced by the same party, which the court also has the discretion to permit. Delfino v. Warners Motor Express, 142 Conn. 301, 307, 114 A.2d 205 (1955). The ruling of the trial court was correct.

There is no error.


author: Bieluch, J.

text:
    City of Hartford v. Anderson Fairoaks, Inc., et al.
    (3368)
    Borden, Spallone and Bieluch, Js.
    Argued February 10 —
    decision released June 3, 1986

      Louis R. Pepe, for the appellant (plaintiff).

      Louis B. Blumenfeld filed a brief for the appellees (defendants John W. Huntington et al.).
   Bieluch, J.

This appeal arises out of a judgment for the defendants John W. Huntington, Henry Darbee and John L. Dollard, who were the architects employed by the plaintiff in connection with the construction of the Burgdorf Health Center in Hartford. The plaintiff has appealed to this court after its motion to set aside a defendants’ verdict was denied. The plaintiff claims error in several of the trial court’s rulings, and in its charge to the jury. We find error.

The jury could have reasonably found the following facts. In 1966, the plaintiff contracted with the defendants for their design and construction services pertaining to the Burgdorf Health Center. Pursuant to that contract, the defendants provided the plaintiff with drawings and specifications for the project. The plaintiff then solicited bids for its construction. All of the bids received exceeded the amount which had been appropriated by the plaintiff for the facility, however, and the bids consequently were rejected.

The defendants, in particular Henry Darbee, then reworked the plans and specifications for the project subsequently built. These reworked plans included variations in the design and specifications of the built-up roof system for the building. While both designs consisted of a level structural roof to permit the subsequent addition of more floors, they were otherwise substantially different. The first design, drawn principally by Dollard, was to be based upon precast concrete planks while the second design called for a series of nine poured concrete slabs, each connected to adjoining slabs by expansion joints. Above this concrete structural roof, the two built-up roof designs each provided for several layers of material to ventilate, insulate and waterproof the roof.

As built in accordance with the second set of plans and specifications, the layers of roofing, from bottom to top, consisted of a Dyzone ventilating board, covered by lightweight aggregate concrete insulation known as Zonolite, two layers of asbestos felt sheeting alternating with two layers of asphalt, and a topping of gravel. This built-up roof incorporated two addenda which had been issued separately during the final bid period: (1) the Dyzone ventilating board was substituted for urethane insulation between the roof deck and the lightweight aggregate fill; and (2) two layers of asbestos felt replaced three layers of rag felt sheeting in the roofing membrane. The Dyzone ventilating board was a new product in 1967; Zonolite was not.

The Zonolite lightweight aggregate fill used in the construction of the built-up roof was a form of cement poured into place after being mixed with large quantities of water. Darbee specified the product by name in the second design and specifications.

The focus of the plaintiffs claim for relief is upon the defendants’ use of Zonolite in the construction of the built-up roof. The plaintiff claimed at trial that the defendants failed to acquaint themselves fully with the characteristics of Zonolite before using it in their design; that their design was defective because it did not permit sufficient ventilation to allow the Zonolite fill to dry properly; and that they failed to inspect the work adequately as it progressed on the project to insure the proper use and drying of the Zonolite. The plaintiff claims that these professional failures of the defendants constituted both negligence and breach of contract. After a lengthy trial, the jury returned its verdict in favor of the defendants. The plaintiff’s motion to set the verdict aside was denied, and this appeal followed the judgment rendered on the verdict.

I

The first error claimed by the plaintiff is the court’s submission to the jury of three interrogatories drafted by the defendants. The plaintiff asserts that those interrogatories misstated the issues before the jury and omitted vital facts in the characterization of the roofing system in question, thereby confusing and misleading the jury. We agree.

Where two or more counts have been alleged in a complaint, or when two or more causes of action are incorporated in one count, as here, the defendant has the right to save himself from the implication of a general verdict by seeking from the jury answers to apt and proper interrogatories. Sheeler v. Waterbury, 138 Conn. 111, 114-15, 82 A.2d 359 (1951). In such situations, it is the duty of the trial court, upon request, to submit such interrogatories as would accomplish this purpose. Pentino v. Gallo, 107 Conn. 242, 244, 140 A. 105 (1928).

This duty arises from the “general verdict” rule. Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 125, 412 A.2d 311 (1979); Sheeler v. Waterbury, supra; Pentino v. Gallo, supra, 244. Under that rule, “[a] general verdict for [a party] imports that the jury resolved all of the disputed issues in favor of [that party].” Eagar v. Barron, 2 Conn. App. 468, 472, 480 A.2d 576 (1984). Hence, if any of the theories alleged in a complaint could properly support a plaintiffs verdict, that verdict will not be overturned, even where there is error relating to another of the theories alleged. See Meyer v. Barnes, 2 Conn. App. 485, 489, 479 A.2d 1236 (1984). Nonetheless, the trial court has broad discretion regarding the number and content of such interrogatories. Freedman v. New York, N.H. & H. R. Co., 81 Conn. 601, 613-14, 71 A. 901 (1909).

Only broad general rules exist to guide the trial court in submitting jury interrogatories: “They should generally be few in number, and never so numerous as to confuse or perplex the jury in rendering their verdict. They should be so clear and concise as to be readily understood and answered by the jury. Each question should call for a finding of but a single fact. When practicable each question should be so framed as to call for a categorical answer. Each question should ask for the finding of a fact and never for a conclusion of law. No question should ask for the finding of a purely evidential fact nor of an uncontroverted fact. Although not wholly covering, nor necessarily controlling, the determination of any issue framed, the fact sought to be elicited must be pertinent to some issue, and one which maybe of material weight in deciding it. No interrogatory should be permitted, the response to which cannot serve either to limit or explain a general verdict, or aid in proceedings for a subsequent review of the verdict or judgment which may be rendered.” Id., 614.

The procedural rule for submitting interrogatories to a jury is found in Practice Book § 312, which provides: “The court may submit to the jury interrogatories for the purpose of explaining or limiting a general verdict, which shall be answered and delivered to the clerk as a part of the verdict. The clerk will take the verdict and then the answers to the several interrogatories, and thereafter he will take the court’s acceptance of the verdict returned and the questions as answered, and proceed according to the usual practice. The court will not accept a verdict until the interrogatories which are essential to the verdict have been answered.” (Emphasis added.) It is the duty of the court to examine the substance of jury questionnaires to verify their appropriateness to the evidence and issues presented to the jury. If jury questionnaires are improper in form or content, it is incumbent upon the court to rephrase the interrogatories in order that they will guide the jury in reaching a proper verdict. In such event, it is preferable for the court to provide counsel with copies of its interrogatories prior to oral argument. Gaulton v. Reno Paint & Wallpaper, Co., supra, 130.

Turning to the interrogatories in the present case, we first note that, although the plaintiff claims all three of them were erroneous, we find that only the last two were improper. The first interrogatory simply requested that the jury find whether or not the roof was defective. Although the defect was not admitted in the defendant’s answer, the plaintiff acknowledges that this issue was uncontested at trial, and the jury’s response simply confirmed that the basic defect upon which this case was predicated did exist. While such confirmation by the jury was unnecessary, this finding was preliminary to the jury’s ultimate verdict, and therefore, it was not error for the court to submit this question.

The remaining two interrogatories, however, were improper for two reasons. First, both interrogatories 2a and 3a failed to present adequately the facts and issues of the case to the jury. Interrogatory 2a did so by failing to include, in its summary of the design of the roof, the structural poured concrete base of the roof upon which the remaining elements of the roof were built and the lack of an attachment or adhesive between the concrete deck and the layers of built-up roofing above it. There was professional evidence that the solid concrete structural roof provided inadequate ventilation for the moisture in the Zonolite fill which was located above it and trapped by the watertight asbestos felts in the roofing membrane. The wet Zonolite was effectively sealed into the roof by the waterproof layers above and below it. The lack of an adhesive between the structural concrete base and the built-up layers above it permitted those upper layers to expand and contract, eventually causing them to crack. Interrogatory 3a similarly failed to state the factual basis for the defendants’ undefined, unexplained and unlimited “duty to inspect and supervise.” Both interrogatories, by misdirecting the jury’s attention and by failing to direct the jury adequately to all of the relevant facts, effectively directed the jury to ignore the missing facts. The court’s charge did not clarify or discuss the substance of the interrogatories. Thus, they were effectively sanctioned by the court. As such, the misdirection which the interrogatories caused to the jury was of undeniable prejudice to the plaintiff.

The second impropriety in these interrogatories is that they failed to direct the jury to other claims upon which the plaintiff’s case was based. The interrogatories did not ask the jury to find whether the defendants had been negligent in using roofing products which they had not properly researched for adequacy and effectiveness in their built-up roof design. Further, the interrogatories omitted all reference to the plaintiff’s breach of contract claim. These interrogatories could only have had the effect of implying to the jury that, once they answered the submitted questions, they need do no more to reach their verdict. That implication would inevitably cause the jury to ignore the two other possible theories upon which the plaintiff might have recovered. Thus, the court’s decision to submit the interrogatories to the jury as written was clearly erroneous.

II

On December 1, 1983, the defendants individually responded to the plaintiff’s interrogatories, one of which sought a disclosure of those experts whom the defendants expected to call as witnesses during the trial. Their responses to this interrogatory were each a brief, “Not yet determined.” These responses were supplemented, however, before overnight adjournment on February 22,1984, at the close of the plaintiff’s case after approximately three weeks of trial. Their consolidated belated response listed five experts, including the defendants Dollard and Darbee, Christopher Winsor, an architect formerly of the defendants’ firm, Richard Butterfield, also an architect, and Burton Karp, a roofer. The defendants asserted that these “experts” were not retained until shortly prior to their disclosure to the plaintiff. On the next day, February 23, 1984, the plaintiff objected to the admission of any expert testimony through the five named witnesses. After lengthy arguments on this issue and a brief conference in chambers, the court ruled that “to present the Court with a list of five expert witnesses in a case this old after we have been on trial for about three weeks, and after the plaintiff has finished [its] case is just too late, and I’m not going to allow these five people to testify as experts. I think it would be prejudicial to the case and that is my ruling.” (Emphasis added.) The court then modified its ruling to allow the witnesses to testify as “fact witnesses” without giving any expert opinion. That modified ruling was well within the court’s discretionary power to limit the scope of their testimony pursuant to Practice Book § 231 (d). Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 65-66, 504 A.2d 1376 (1986); Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 107-108, 476 A.2d 1074 (1984).

During the presentation of the defendants’ case, however, their counsel virtually ignored this ruling despite repeated objections and, at one point, the admonition of the court. At the beginning of his direct examination of several of these witnesses, defense counsel inquired as to their educational background, professional qualifications and credentials, as would be necessary and relevant to qualify them as experts. Prohibited expert opinion testimony and improper questioning were allowed over objection. Their qualifications and testimony could not fail to impress upon the jury their standing in the witness box as experts. For example, Dollard was asked whether he would “customarily” look into the possibility of substituting materials for those specified in the design of a building. Robert W. Bounds, a structural engineer who was part of the design team involved in the planning of the Burgdorf Health Center, was questioned hypothetically whether he would have limited any “objections” regarding the built-up roof design to structural engineering aspects of the design with which he was involved, such as the structural portion of the roof. This question was asked over the plaintiff’s objection, and despite Bounds’ prior statement that he had no “objection” to the built-up roof design. Further, counsel asked Karp, who had recommended that the organic rag felt sheeting originally specified in the discarded design and specifications be changed to the asbestos felt sheeting subsequently used, if he considered asbestos felt to be “appropriate” for use with Zonolite.

Each of these questions constituted incursions into the area of expert testimony which the court had previously forbidden, yet the court permitted the witnesses to respond over the plaintiff’s objections despite its earlier ruling and express finding of prejudice by such expert testimony. This court has expressly decried trial by ambush techniques in the past. See Alpha Crane Service, Inc., v. Capitol Crane Co., supra, 64-66. “The [defendants’] claim that [their witnesses were not retained as experts until just prior to the supplemental disclosure] is a tactical subterfuge, which, if left unchallenged by the court, would seriously undermine the salutary effect of the rules of discovery and production concerning expert testimony .... The rules of discovery are designed to make a ‘ “trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.” ’ United States v. Procter & Gamble, 356 U.S. 677, 682, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958).” Sturdivant v. Yale-New Haven Hospital, supra, 106.

In this case, the court’s unenforced ruling barring the defendants from eliciting expert testimony from these witnesses had the effect of restricting the scope of the plaintiff’s cross-examination of them, since they were shielded from their status as experts by the court’s contradictory rulings. The lateness of the court’s rulings allowing the subsequent testimony of these “non-expert” witnesses also prevented the plaintiff from seeking to obtain rebuttal experts of its own. Indeed, had the court’s initial ruling under the broad umbrella of discretion been to permit expert testimony, the result to the plaintiff would have been far more equitable for it would have put the plaintiff on notice and permitted it to prepare its case and its cross-examination of the experts properly.

We have reviewed the remainder of the plaintiffs claims of error and we consider them to be without merit. The errors already found in the judgment make it unnecessary for us to identify and discuss these claims further.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other judges concurred.

       On December 23, 1976, the defendant Huntington died. His executrix was substituted as a defendant on July 1, 1977.

       Prior to trial, a settlement of this case was reached between the plaintiff, the named defendant and all of the remaining defendants except the appellees, Huntington, Darbee and Dollard. A substitute complaint filed after this settlement was completed named only the appellees as defendants. Hence, the named defendant and the other original defendants are not parties to this appeal.

       The jury interrogatories and the responses thereto were as follows: “1. Did you find that the roof was defective? Yes.
      “2.a. Do you find that the defendants were negligent in specifying a roofing system with dyfoam vent board, zonolite fill, a vensulation felt and a J-M 601 membrane? No.
      “b. If ‘yes,’ was that conduct a substantial factor in causing the harm? [No response.]
      “3.a. Do you find that the defendants had a duty to inspect and supervise? Yes.
      “b. If so, do you find that the defendants breached that duty? No.
      “c. If you find that they breached that duty, do you find that breach to have been a substantial factor in the cause of the roof failure? [No response.]”

       The plaintiff's third claim of error is that Butterfield should not have been permitted to testify at all since he had no role whatsoever in the construction or design of the project at issue and the substance of his testimony was unrelated to this litigation. We note, however, that the plaintiff made no objection to his testimony at trial and we, therefore, conclude that this claim of error has not properly been preserved. Practice Book § 3068.

       Although Bounds was named in the same supplemental response to the plaintiffs interrogatories as were the other five witnesses, his name was mentioned solely as a structural engineer who was also involved in the design of the subject facility along with the defendants. Thus, even in their supplemental disclosure, the defendants never declared their intent to call Bounds as an expert witness.


author: Daly, J.

text:
    Spyros Giannopoulos et al. v. Mary Corbin
    (3745)
    Borden, Daly and Bieluch, Js.
    Argued March 19 —
    decision released June 3, 1986

      James W. Shea, for the appellant (defendant).

      Brian M. Gildea, with whom, on the brief, was Charles M. Batt, for the appellees (plaintiffs).
   Daly, J.

This appeal arises from a summary process action brought by the plaintiffs claiming possession, under a warranty deed, of certain real estate. At trial, the defendant made an objection to the admission of the warranty deed into evidence which was overruled by the trial court. From the trial court’s judgment in favor of the plaintiffs for possession of the premises, the defendant appeals claiming that, pursuant to General Statutes § 47-6, the deed was defective on the ground that it was not witnessed by two disinterested, competent witnesses.

The plaintiffs, Spyros and Angelo Giannopoulos, instituted this summary process action to recover possession of the first floor apartment at 23-25 North Street located in Hamden. The plaintiffs had purchased the premises on April 19, 1983 from the defendant. One of the conditions of sale was that the plaintiffs were to share occupancy of the first floor apartment with the defendant for six months. When the defendant failed to grant occupancy of the premises, the plaintiffs issued a notice to quit possession and upon the defendant’s failure to vacate, instituted this action. From a judgment rendered in favor of the plaintiffs, the defendant has appealed.

In support of her claim that the warranty deed was not witnessed by two disinterested, competent witnesses, the defendant relies on Winsted Savings Bank v. Spencer, 26 Conn. 194 (1857), as the prevailing law. There, the court held that the land statute which provides that the signing by the grantor shall be attested by two witnesses has always been considered “as requiring that deeds should be attested by disinterested or competent witnesses; witnesses who could testify in court in respect to the execution, upon any controversy that might arise in respect to it.” Id., 199. In Winsted, for example, a stockholder in a private corporation was not deemed to be disinterested.

General Statutes § 47-6, which the defendant maintains is applicable to corporate transactions only, provides: “Conveyances of real estate made to or by any corporation . . . may be attested by witnesses interested therein, and may be acknowledged before properly authorized persons who are so interested.” Even if we assume that the defendant is correct, the enactment of General Statutes § 52-145 (a), which provides in relevant part that “[a] person shall not be disqualified as a witness in any action because of, (1) his interest in the outcome of the action as a party or otherwise ...” overcomes the objection since interest no longer disqualifies one from being a witness in a case or from being able to testify to the execution of a deed.

Any defect in the witnessing, moreover, was cured by the validating act of 1983; Spec. Acts 1983, No. 83-7, § 12; which provides in pertinent part: “any deed . . . made for the purpose of conveying . . . real property in any way . . . which . . . (d) was attested by one witness or by no witnesses . . . [is] validated.” The deed was, therefore, properly admitted into evidence.

There is no error.

In this opinion the other judges concurred.

       The defendant’s attorney and real estate agent were the witnesses to the execution of the deed.

       All issues in this action and in a companion case were resolved in favor of the plaintiffs.


author: Dupont, C. J.

text:
    Marilyn Krattenstein v. John M. Thomas et al.
    (3711)
    Dupont, C. J., Borden and Daly, Js.
    Argued February 5 —
    decision released June 10, 1986

      Gregory C. Willis, with whom was David W. SJcolnicJc, for the appellant (plaintiff).

      Michael D. Neubert, for the appellee (defendant Norman Gahm).
   Dupont, C. J.

The plaintiff appeals from the judgment rendered pursuant to a jury verdict for the defendant physician, Norman Gahm, in this medical malpractice action. The plaintiff filed a motion to set aside the verdict which was denied. All of the issues on appeal concern the trial court’s charge to the jury. The plaintiff claims that the trial court erred: (1) in charging the jury that a physician is not liable for bona fide errors in judgment; (2) in charging the jury on the definition of the term “immediate”; (3) in failing to charge the jury on the issue of a physician’s vicarious liability; (4) in failing to instruct the jury that they could find negligence based upon the defendant’s own testimony; and (5) in failing to instruct the jury as to the duration of a surgeon’s duty of care to his patient.

Certain relevant facts are not in dispute. The plaintiff suffered from back pain as early as February, 1973. She consulted the defendant who was then a practicing neurological surgeon with six years experience. He suggested that she undergo further testing at Hartford Hospital. The plaintiff was admitted to the hospital where it was determined that the plaintiff suffered from a herniated disc in her lower back. The defendant operated on the plaintiff, which involved the removal of ruptured disc material. Following this surgery, the plaintiff experienced a temporary inability to void, a common condition following such an operation. The plaintiff regained normal bladder function after a few days. She was discharged from the hospital on April 19, 1973.

Approximately eleven months later, the plaintiff was still experiencing back pain. On March 10, 1974, she was admitted to Hartford Hospital, still under the care of the defendant. More tests were performed which indicated an extradural defect in approximately the same area as the prior surgery. On March 12,1974, the defendant operated on the plaintiff for the second time, again removing ruptured disc material. The plaintiff’s substituted complaint alleges that it was during this second operation and the attendant postoperative care that the defendant acted negligently.

The plaintiff alleged that during this operation, the defendant retracted certain dura matter in such a way as to injure those nerves which control the bladder. Following this second operation, the plaintiff again experienced an inability to void. This condition necessitated catheterization to relieve the plaintiff’s overdistended bladder. The condition, however, did not go away as it had before. On March 19,1974, Bert B. Berlin, a urologist, examined the plaintiff at the defendant’s request, to determine the cause of the plaintiff’s difficulty. Subsequent to the initial consultation by Berlin, the plaintiff continued to experience an inability to void. The plaintiff was discharged from the hospital on April 10, 1974. She continued to experience an inability to void which required the continued use of a Foley catheter. She visited the defendant’s office after her discharge from the hospital. She was readmitted to the hospital on July 10,1974, for one week under the care of Berlin. She was last seen by the defendant on September 24, 1974. Since that time, she contends that her condition has deteriorated and that she will require further surgery to remedy her bladder dysfunction, including procedures resulting in the insertion of a permanent artificial pathway for urination.

I

The plaintiff’s first claim on appeal is that the trial court erred when it charged the jury that a physician is ordinarily not liable for bona fide errors in judgment. The plaintiff claims that such a charge is erroneous and serves only to confuse the jury by implying that the defendant will not be liable for negligent conduct, absent evidence that he acted in bad faith. The plaintiff cites Logan v. Greenwich Hospital Assn., 191 Conn. 282, 299, 465 A.2d 294 (1983) in support of this claim.

It is clearly error for a trial court to instruct a jury that a physician is not liable for bona fide errors in judgment. See Logan v. Greenwich Hospital Assn., supra; Levett v. Etkind, 158 Conn. 567, 576, 265 A.2d 70 (1969); Green v. Stone, 121 Conn. 324, 330, 185 A. 72 (1936); Sleavin v. Greenwich Gynecology & Obstetrics, P.C., 6 Conn. App. 340, 346, 505 A.2d 436, cert. denied, 199 Conn. 807, 508 A.2d 32 (1986). Such a statement is inaccurate and tends to obfuscate the minimum standard of professional conduct. “Errors in judgment which occur with the best intentions constitute negligence if they result from a failure to use reasonable care.” Logan v. Greenwich Hospital Assn., supra. A determination that the instruction was erroneous, however, does not end our inquiry. See Sleavin v. Greenwich Gynecology & Obstetrics, P.C., supra, 347. We must consider the charge as a whole to determine whether the inclusion of the erroneous statement so distorted the charge as to preclude a fair presentation of the case to the jury, thereby resulting in an injustice. Magnon v. Glickman, 185 Conn. 234, 244, 440 A.2d 909 (1981). “ ‘The charge will ordinarily be sustained if it meets this test, although it may not be exhaustive, perfect or technically accurate. Castaldo v. D ’Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1953).’ Farley v. T.R.W., Inc., 4 Conn. App. 191, 193-94, 493 A.2d 268 (1985).” Sleavin v. Greenwich Gynecology & Obstetrics, P.C., supra, 344.

The jury charge on the defendant’s standard of care was as follows: “Negligence on the part of a physician or surgeon is a failure to exercise that degree of reasonable and ordinary care, diligence and skill in diagnosis and treatment of his patient that is ordinarily possessed and exercised by physicians engaged in the same line of practice. ... A physician or surgeon is ordinarily not liable for bona fide errors in judgment unless he has failed to use proper and reasonable care in the exercise of his operation and [during the] postoperative days. He is liable only if he fails to use a proper degree of skill and care in making a diagnosis and treating a patient.” There was no allegation in the complaint that the defendant acted in bad faith. Nor does the plaintiff allege that such a claim was made during the trial. We also note that the trial court correctly stated the applicable standard of care three times in its charge. Only once did it include the erroneous language regarding bona fide errors in judgment. From our review of the charge as a whole, we conclude that the erroneous instruction could not have misled or confused the jury. See Megin v. Carney, 148 Conn. 130, 133, 167 A.2d 855 (1961); Sleavin v. Greenwich Gynecology & Obstetrics, P.C., supra, 348.

II

The plaintiffs second claim of error concerns the trial court’s instruction regarding the scope of the defendant’s duty of care to the plaintiff during the “immediate postoperative period.” The plaintiff complains that the trial court’s definition of the term “immediate” as meaning “presently, without any substantial interval of time elapsing” was too narrow and precluded the jury from finding liability based upon allegedly negligent acts occurring several days after the surgery. In charging the jury on this claim, the trial court instructed the jury as follows: “In deciding the [issue of the defendant’s negligence during] the immediate postoperative period, it will be your duty to determine what responsibility there was during that period and for how far that period extended. You are the triers of fact, the ultimate arbiters as to what those terms mean. ...” The court assisted the jury in its deliberation on this issue by reading to the jurors two definitions of the term “immediate,” one from Webster’s Third New International Dictionary and another from O’Brien v. Wise & Upson Co., 108 Conn. 309, 313, 143 A.2d 155 (1928). The O’Brien case concerned an injury resulting in an immediate inability to work. The trial court’s quote from the O’Brien case was as follows: “ ‘The word “immediately” does not mean instantly, in the sense that a man shall be totally disabled from the very second of the accident which has caused the injury. . . . “Immediately” means presently or without any substantial interval of time elapsing. ’ ” (Emphasis added.) The court concluded its instruction on this issue by pointing out the conflicting arguments as to the duration of the defendant’s responsibility for care of the plaintiff’s bladder problem. The court summarized the evidence as allowing a finding that the defendant was no longer responsible for the plaintiff’s bladder problem as early as when Berlin was called in as a consultant or as late as her discharge from the hospital. The court left the resolution of this discrepancy “for you [the jury] to determine from all the evidence in the case.”

The plaintiff objected to the reading of a portion of the O’Brien case without also reading the sentence which followed. That excluded portion stated “[a]s judicially construed, however, [‘immediately’] is a word of relative significance, much in subjection to its grammatical connection, and used with more or less latitude according to the subject to which it is applied.” O’Brien v. Wise & Upson Co., supra, 312. We find that the trial court’s charge was sufficient to allow the jurors to conclude that they could find that the defendant was responsible for the treatment of the plaintiff’s bladder problem as late as the date she left the hospital. Reviewing the charge as a whole, we find that it was accurate and fairly presented the plaintiffs case to the jury. Herb v. Kerr, 190 Conn. 136, 138-39, 459 A.2d 521 (1983); Magnon v. Glickman, supra, 244-45.

III

The plaintiff’s third claim of error is that the trial court erred in failing to instruct the jurors as requested that they could find the defendant liable “for all the wrongful acts or omissions of [the consulting physician] which [the defendant] observes and lets go on without objection, or which in the exercise of reasonable diligence under the circumstances he should have observed.” The defendant argues that such a charge was not warranted by the pleadings and as such was properly denied.

“ Tt is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. Nash Engineering Co. v. Norwalk, 137 Conn. 235, 239, 75 A.2d 496 [1950].’ ” Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983). A plaintiff, therefore, may not claim as error the trial court’s refusal to grant a request to charge on any issue not reasonably given rise to by the pleadings. See Hally v. Hospital of St. Raphael, 162 Conn. 352, 358, 294 A.2d 305 (1972). The pleadings are to be read “broadly and realistically, rather than narrowly and technically.” DeMartin v. Yale-New Haven Hospital, 4 Conn. App. 387, 390,494 A.2d 1222, cert. denied, 197 Conn. 813, 499 A.2d 62 (1985).

In the present case, there were several amendments to and substitutions of the complaint. None, however, even mention the consulting physician, Berlin, or allege that he was negligent in his treatment of the plaintiff. The issues arising from the plaintiff’s claim of vicarious liability are substantively different from the claim in the complaint of the defendant’s negligence. In this case, the claim of vicarious liability would require proof that Berlin was negligent. It would also require proof of what Gahm observed or should have observed in the exercise of reasonable care. Even a broad reading of the plaintiff’s complaint did not give the defendant notice of these additional issues. See Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 223-24 n.16, 477 A.2d 988 (1984). It is also relevant that the plaintiff was given ample opportunity to amend her pleadings to include this claim if she wished. While the plaintiff cites evidence to show that the defendant was responsible for the care of the plaintiff’s bladder problem up to the time she left the hospital, she does not allege, nor did she present evidence, that the defendant observed or should have observed in the exercise of reasonably prudent care Berlin’s allegedly negligent conduct. We cannot find, therefore, that the trial court’s refusal to charge on this issue was improper.

IV

The plaintiff’s fourth claim of error is that the trial court erred in failing to instruct the jurors that they could “base a finding of negligence upon the expert testimony of the defendant doctor himself as well as that of other experts.” We agree that the defendant’s own expert testimony could provide the jury with a basis upon which to find the appropriate standard of care. See Dinnerstein v. United States, 486 F.2d 34, 36 (2d Cir. 1973); Levett v. Etkind, supra, 575; Console v. Nickou, 156 Conn. 268, 274, 240 A.2d 895 (1968). The requested charge was correct in law and reasonably adapted to the issues. In viewing the charge given as a whole, however, we cannot find that the failure to give the charge misled the jury. See Herb v. Kerr, supra, 138-39; Magnon v. Glickman, supra, 245. It was undisputed that the defendant possessed the necessary credentials to practice neurological surgery and therefore is a qualified expert in the field. It is also apparent that the defendant was allowed to testify as to the applicable standard of care for retracting the dura during surgery. Because the defendant’s qualifications as an expert were undisputed, the trial court’s charge on the issue of the standard of care owed to the plaintiff and the importance of expert testimony in establishing that standard encompassed the defendant’s testimony. The fact that the trial court did not specifically mention the defendant’s testimony during the charge is of no consequence. Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981). The trial court did not err in refusing this request to charge.

V

The plaintiffs fifth claim of error alleges that the trial court erred in refusing to grant the following request to charge: “In the instant case the agreement between the plaintiff, a private patient of the defendant, and the defendant doctor, necessarily included the defendant’s obligation to skillfully perform the surgery and to provide competent and proper post-operative care while the plaintiff remained hospitalized.

“The obligation of the defendant as the operating surgeon to provide competent and proper post-operative care continues even after the consultant, Dr. Berlin, entered upon the case on March 19,1974. This responsibility, from that point on, continues until either the patient is discharged or is transferred from the defendant’s service to the service of another physician.”

As to those portions of the requested charge relating to a surgeon’s duty to render competent care, a similar instruction was already given. The exclusion of those portions of the request, therefore, was not error. See Herb v. Kerr, supra. Those portions of the requested charge relating to the duration of the defendant’s duty to the plaintiff assume facts which were properly reserved for determination by the jury. The trial court’s refusal to grant those portions of the charge was also proper. See Trzcinski v. Richey, 190 Conn. 285, 296, 460 A.2d 1269 (1983). The trial court’s refusal to give the plaintiff’s requested charge was proper.

There is no error.

In this opinion the other judges concurred.

       The action against John M. Thomas, an anesthesiologist, was withdrawn. As used in this opinion, the “defendant” refers to Norman Gahm.

       Dura matter is the outermost membrane enveloping the spinal cord. See Schmidt, Attorney’s Dictionary of Medicine D-118.

       The court quoted part of the definition of the word “immediate” as follows: “Near to or related to. . . . Not secondary or remote. . . . Occurring without intervention of other object or cause.” See Webster, Third New International Dictionary.

       Our review of the record discloses only a broad statement by the plaintiff’s expert witness that the treatment which the plaintiff received was below that standard of care exercised by neurosurgeons and urologists.


text:
    Shorehaven Dodge, Inc. v. Robert Costa
    (4127)
    Sfallone, Daly and Bieluch, Js.
    Argued March 21 —
    decision released June 10, 1986

      Roy D. Moss, for the appellant (plaintiff).

      John Wayne Fox, with whom, on the brief, was Susan L. Stratton, for the appellee (defendant).
   Daly, J.

The plaintiff initiated this action to recover a deficiency judgment under a retail installment contract for the purchase of an automobile. The defendant moved to require the plaintiff to amend its complaint to cite in Chrysler Credit Corporation (Chrysler Credit) and Chrysler Corporation (Chrysler) as additional parties plaintiff, which motion was granted by the trial court, McGrath, J. After a hearing, the trial court, West, J., granted the defendant’s motion to nonsuit the plaintiff for failure to comply with the order of Judge McGrath. The plaintiff has appealed from the entry of nonsuit.

The following facts are not in dispute. On June 24, 1983, the defendant Robert Costa purchased a new 1983 Dodge Charger automobile from the plaintiff, Shorehaven Dodge, Inc. A retail installment contract was executed between the plaintiff and the defendant in connection with the purchase. On July 6, 1983, the plaintiff assigned all of its rights in the installment contract to Chrysler Credit. The defendant’s car apparently was experiencing mechanical problems which were brought to the attention of the plaintiff and the Chrysler consumer satisfaction board. The problems were not resolved and the defendant defaulted on making his payments under the contract. Chrysler Credit then repossessed the car. Subsequently, the plaintiff paid $8616.46 to Chrysler Credit for which the plaintiff received an assignment of the contract and title to the vehicle. The plaintiff then proceeded, under General Statutes § 42-98 et seq., to sell the automobile for less than the balance due and the expenses incurred. The plaintiff thereafter instituted this action to recover a deficiency of $2086.54 from the defendant.

On appeal, the plaintiff claims that the trial court abused its discretion in ordering it to cite in Chrysler and Chrysler Credit as additional parties. The plaintiff argues that compliance with the order was impossible because it had not brought a cause of action against these parties nor had the parties consented to be joined as parties plaintiff.

General Statutes § 52-107 provides in pertinent part: “The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the court may direct that such other parties be brought in.” “The decision whether to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court.” Lettieri v. American Savings Bank, 182 Conn. 1, 13, 437 A.2d 822 (1980). “Judicial review of an alleged abuse of discretion centers on the question of whether the court could reasonably have concluded as it did.” Smith v. Smith, 185 Conn. 491, 494, 441 A.2d 140 (1981); Long v. Schull, 184 Conn. 252, 255, 439 A.2d 975 (1981). “The real issue in any motion for joinder is the presence of all the interested parties, either as plaintiffs or as defendants, to enable the court to make a complete determination of all of the matters in controversy.” Lettieri v. American Savings Bank, supra, 13. Apparently, a complete determination is possible in this case without Chrysler and Chrysler Credit because the defendant instituted a separate action against these parties arising out of the same transaction.

General Statutes § 52-101 provides in pertinent part: “All persons having an interest in the subject of a civil action . . . may be joined as plaintiffs . . . and, if one who ought to be joined as plaintiff declines to join, he may be made a defendant, the reason therefor being stated in the complaint.” If a party is a necessary party to an action, he must be made a defendant, but no person may be made a party plaintiff in an action unless his consent is obtained. Kessler v. Lerner, 15 Conn. Sup. 288, 289, (1948).

Even if we assume arguendo that Chrysler and Chrysler Credit are parties who should be joined, there is no indication that they assented to be joined as parties plaintiff and, therefore, they may be made defendants. Yet, the trial court’s order limited their appearance to that of plaintiffs. The defendant should have proposed a third party complaint to the court and moved for permission to implead the parties as defendants. “The principle that a plaintiff may rely only upon what he has alleged is basic.” Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983). In light of these circumstances, we conclude that the trial court’s action was an abuse of its discretion.

There is error, the judgment is set aside and the case is remanded with direction to vacate the order citing in Chrysler and Chrysler Credit as additional parties.

In this opinion the other judges concurred.

       The parties have treated this as a judgment of nonsuit. Therefore, we consider it as such for purposes of this appeal.

       The court, McGrath, J., ordered that “the plaintiff amend its complaint to state facts showing the interest of CHRYSLER CREDIT CORPORATION and CHRYSLER CORPORATION in this action and summon CHRYSLER CREDIT CORPORATION and CHRYSLER CORPORATION to appear as plaintiffs in this action.”

       While this appeal was pending, the defendant filed a separate action. Superior Court, Judicial District of Stamford-Norwalk, No. CV85-77034.


text:
    Robert J. Chevette v. U-Haul Company of New Mexico et al.
    (3935)
    Dupont, C. J., Daly and Bieluch, Js.
    Argued March 21 —
    decision released June 10, 1986

      Roy W. Moss, for the appellant (plaintiff).

      Robert B. McLaughlin, for the appellees (defendants).
   Dupont, C. J.

The dispositive issue in this case is whether the trial court erred in dismissing this action because the plaintiff failed to allege in his complaint facts sufficient to establish personal jurisdiction over the defendants.

The complaint alleged that the plaintiff entered into an agreement in New Mexico, whereby he rented a truck from the defendant U-Haul Company of New Mexico (U-Haul), a New Mexico corporation. The agreement provided that the truck was to be returned to U-Haul in Connecticut. Other allegations of the complaint were that the contract contained a “memorandum of insurance” which provided insurance coverage through the defendant Old Republic Insurance Company (Old Republic), a Pennsylvania corporation, for medical expenses and property damage. The complaint further alleged that the plaintiff, while operating the rented truck, was involved in a collision in Delaware in which he was injured and the cargo in the truck was damaged. After the accident, the plaintiff filed a claim under the insurance provision of the rental agreement, but payment was never made on his claim, although he fulfilled all of the requirements for submitting the claim.

The plaintiff brought this action in two counts, one against U-Haul for breach of contract for failing to honor his insurance claim, and the other against Old Republic for “willfully, recldessly and in bad faith” failing to pay that claim. The defendants jointly moved to dismiss the action for lack of personal jurisdiction. The trial court granted this motion, finding that the plaintiff failed to set forth facts in his complaint sufficient to bring either U-Haul or Old Republic within its jurisdiction. Specifically, the court held that, in the absence of allegations that Old Republic did business within this state, that it had appointed the insurance commissioner as its agent for service and that the plaintiff had duly served process on the commissioner, there could be no jurisdiction over it, in accordance with General Statutes § 38-23. It further held that there could be no jurisdiction over U-Haul pursuant to General Statutes § 38-411 (c) (1) because the plaintiff had not alleged that his contract with U-Haul was executed in Connecticut or was to be performed in this state. The trial court also held that the defendants were not required to answer the plaintiffs request for admissions pending its decision on whether the defendants were subject to the court’s jurisdiction. The plaintiffs position is, essentially, that any failure to allege jurisdictional facts in his complaint would have been cured if the matters contained in his requests for admission were taken as true.

The plaintiff appeals from the judgment of dismissal, claiming that the trial court erred (1) in holding that it lacked personal jurisdiction over Old Republic, (2) in holding that it lacked personal jurisdiction over U-Haul, and (3) in refusing to consider the factual matters in his request for admissions to which neither defendant ever responded.

The writ, summons and complaint, the sheriff’s return of service and the plaintiff’s request for admissions of facts were before the court when it granted the defendants’ motion to dismiss. The return of service indicated that copies of the original writ, summons and complaint as to Old Republic had been left with the insurance commissioner of the state and that the commissioner was the duly authorized agent and attorney to accept service for it. The return further stated that copies of the original writ, summons, and complaint had been left with the secretary of state as the duly authorized agent and attorney for service upon U-Haul.

Among the facts which the plaintiff requested that the defendants admit were the following: (1) that Old Republic was duly authorized and/or licensed to do business in Connecticut; (2) that Old Republic offered insurance coverage for renters and/or clients of U-Haul; and (3) that U-Haul knew or had reason to believe that the plaintiff intended to drive the rented vehicle to Connecticut. Appended to the request was a copy of the printed U-Haul rental agreement which had been executed by the plaintiff and U-Haul. The plaintiff requested, with regard to the agreement, that the defendants admit that the agreement was a copy of the rental contract which he entered into with U-Haul and that Old Republic agreed to provide insurance coverage to him pursuant to that agreement. The defendants never objected or responded to the request for admissions.

In its memorandum of decision granting the motion to dismiss, the trial court stated that the plaintiff bore the burden of alleging facts necessary to establish jurisdiction. It found, however, that the defendants were not required to answer the plaintiff’s discovery request until the question of its jurisdiction was resolved, and dismissed the action solely on the basis of the allegations of the complaint. The plaintiff argues that the factual matters contained in the request are deemed admitted under Practice Book § 239 and should have been considered by the trial court.

Through his request for admissions, the plaintiff sought to establish that our long-arm statute, General Statutes § 33-411, conferred jurisdiction over U-Haul because the one-way rental contract with the plaintiff was to be at least partially performed in Connecticut since the vehicle was to be returned to U-Haul's agent in Bridgeport, and therefore that U-Haul knew or had reason to believe that the plaintiff intended to drive the rented vehicle to Connecticut. He also attempted to establish that Old Republic was authorized to do business in Connecticut.

In determining whether to assert jurisdiction over a foreign corporation, a trial court must engage in a two-part inquiry. It must first decide whether, under the facts of the case, our long-arm statute authorizes the exercise of jurisdiction. It must then decide whether the assertion of jurisdiction would offend due process. Frazer v. McGowan, 198 Conn. 243, 246, 502 A.2d 905 (1986). Both prongs of this analysis require the establishment by the plaintiff of facts pertaining to jurisdiction. Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 250, 460 A.2d 481 (1983).

The familiar standard set forth in International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), by which state court jurisdiction is evaluated, requires that an out of state defendant have minimum contacts with the forum state “ ‘such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ . . . International Shoe Co. v. Washington, supra, 316.” Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 52, 459 A.2d 503 (1983).

“Whether sufficient minimum contacts exist for a court to have jurisdiction is clearly dependent on the facts of each particular case. ‘Like any standard that requires a determination of “reasonableness,” the “minimum contacts” test of International Shoe is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite “affiliating circumstances” are present. Hanson v. Denckla, 357 U.S. 235, 246 [78 S. Ct. 1228, 2 L. Ed. 2d 1283] (1958).’ Kulko v. California Superior Court, 436 U.S. 84, 92, 98 S. Ct. 1690, 56 L. Ed. 2d 132, reh. denied, 438 U.S. 908, 98 S. Ct. 3127, 57 L. Ed. 2d 1150 (1978).” Standard Tallow Corporation v. Jowdy, supra.

When jurisdiction “is not clear on the face of the record because service is had under the long-arm statutes, additional facts establishing the ‘minimum contacts’ required by due process may need to be shown. It has not been the practice in this state to require these minimum contacts to be made a part of the allegations in the complaint.” (Footnotes omitted.) Standard Tallow Corporation v. Jowdy, supra, 52-53. Discovery may thus be used to show whether a court has personal jurisdiction. Id., 57; see Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 227, 429 A.2d 478 (1980).

“ ‘A court must have jurisdiction to determine its own jurisdiction, especially where, as here, the defendants have by their appearance put that question into issue.’ Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., [supra]. The court may even apply sanctions for failure to obey a discovery order intended to establish or to refute jurisdiction. Id.; accord Ins. Corporation of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 709,102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982).” Standard Tallow Corporation v. Jowdy, supra, 57 n.7.

By filing his request for admissions of facts pertaining to jurisdiction, the plaintiff was attempting to respond to the defendants’ contention that the trial court lacked personal jurisdiction. “Having put the issue in question, the [defendants] did not have the option of blocking the reasonable attempt of [the plaintiff] to meet [his] burden of proof.” Ins. Corporation of Ireland v. Compagnie des Bauxites, supra. The failure of the defendants to answer or object to the request for admissions rendered the plaintiff unable to establish folly the extent of the defendants’ contacts with Connecticut. This warrants the imposition of the sanction contained in Practice Book § 239 which deems admitted matters contained in such a request if the request is not answered or objected to within thirty days of its filing. That this sanction might establish facts resulting in a particular legal consequence, that is, personal jurisdiction, in no way affects the appropriateness of its application. Id. We conclude that the trial court erred in dismissing this action without considering the factual matters deemed admitted in the plaintiff’s request.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       Although the complaint stated that a copy of the rental agreement was annexed thereto as an exhibit, it was not.

       Practice Book § 239 provides in part: “Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after the filing of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney.”

       Even without considering the matter contained in the request, the record reveals that the trial court had personal jurisdiction over Old Republic. The sheriffs return shows that personal service was made upon Old Republic by service upon the insurance commissioner of the state of Connecticut. This was in compliance with General Statutes § 38-23, which provides that nonresident insurance companies must, as a prerequisite to doing business in this state, appoint the insurance commissioner as their agent for service of process. The receipt of process by the commissioner and his collection of the statutory fee, coupled with the presumption that he lawfully and correctly performs his duties, allows the inference to be made that he was authorized to accept service of process as the agent of Old Republic. Reade v. Indemnity Ins. Co., 121 Conn. 309, 311-12, 184 A. 646 (1936). Valid personal service upon the insurance commissioner pursuant to General Statutes § 38-23 established, prima facie, personal jurisdiction over Old Republic in Connecticut. Id.


author: Spallone, J. Bieluch, J,

text:
    Jane S. Neal v. Arnold R. Neal
    (3820)
    Hull, Spallone and Bieluch, Js.
    Argued April 1 —
    decision released June 10, 1986

      Ralph C. Crozier, for the appellant (defendant).

      Brian J. Farrell, for the appellee (plaintiff).
   Spallone, J.

The defendant has appealed from the trial court’s modification of an alimony award.

On October 21, 1983, after a hearing, the trial court, F. Freedman, J., granted a dissolution of the parties’ forty-one year marriage and ordered the defendant, Arnold Neal, to pay to the plaintiff, Jane Neal, the sum of $60 per week as periodic alimony “until such time as the plaintiff is or should be a recipient of Social Security. Plaintiff to make [her] best effort to become a recipient.” On September 25,1984, the court, DeMayo, J., granted the plaintiffs motion to modify the judgment and ordered that the alimony of $60 per week continue after the defendant became a recipient of social security benefits, which status she had attained prior to having moved to modify the judgment. On October 31, 1984, the court granted the defendant’s motion to reargue the plaintiff’s previously granted motion to modify the judgment and entertained the defendant’s motion to terminate alimony. After a hearing and argument, the court denied the defendant’s motion to terminate alimony, and modified the alimony payments from $60 to $40 per week.

On appeal, the defendant claims (1) that the court lacked jurisdiction to extend the alimony beyond the date that the plaintiff became a recipient of social security benefits, and (2) that the court erred in ruling that there existed a substantial change in circumstances warranting the allowance of alimony after the plaintiff became eligible to receive social security payments.

General Statutes § 46b-86 (a) gives the Superior Court the power to modify alimony orders, which power is limited only to the extent that the decree itself precludes modification or where there is no showing of a substantial change in the circumstances of either party outside of their contemplation. The judgment contains no language limiting the power of the court to modify the alimony. It must be construed in the same manner as other written instruments. The intention of the court is to be gleaned from a reading of the entire document. Scoville v. Scoville, 179 Conn. 277, 282, 426 A.2d 271 (1979). If the decree is meant to be nonmodifiable, it must contain language to that effect. Cummock v. Cummock, 180 Conn. 218, 222-23, 429 A.2d 474 (1980); Lilley v. Lilley, 6 Conn. App. 253, 256, 504 A.2d 563 (1986). The trial court’s ruling that the judgment is modifiable is reinforced by the highly unusual procedure agreed to by the parties wherein Judge DeMayo, who modified the judgment, contacted Judge Freedman, who rendered the original judgment, and asked whether Judge Freedman intended the alimony to be modifiable after social security payments to the plaintiff commenced. Judge Freedman responded in the affirmative. His response was put in the form of a memorandum by Judge DeMayo, was made an exhibit, and was read into the record. This procedure, albeit extraordinary, effectively arrived at a solution to the disputed issue. We treat the question relayed to Judge Freedman by Judge DeMayo as a motion to clarify the original alimony order, and we agree with the court’s conclusion that the alimony order was modifiable.

The defendant’s second claim challenges the court’s modification of the alimony award on the ground that there was no basis for such modification. The essence of the defendant’s argument is that the original alimony award terminated upon the occurrence of a fact certain, i.e., the receipt by the plaintiff of social security benefits. This argument is not persuasive. The language of the decree is ambiguous and an argument can be made that the alimony of $60 per week is to continue until the plaintiff receives social security benefits and that upon such occurrence the award becomes subject to modification to reflect the parties’ financial status at that time. This interpretation supports the court’s modification of the award since the plaintiff’s receipt of social security was a change of circumstance expressly contemplated in the original award. The parties contended for different interpretations of the language used. The court found the disputed issue in favor of the plaintiff. The trial court’s conclusion that the language used did not foreclose modifiability cannot be disturbed. On review, this court cannot retry the case. We are limited to a determination of whether the decision made is legally and logically consistent and supported by the evidence. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Brey v. Brey, 1 Conn. App. 397, 399, 472 A.2d 354, cert. denied, 193 Conn. 806, 477 A.2d 659 (1984). This court will not substitute its view of the facts for that of the trial court, nor will it reverse the decision of that court unless the decision is found to be “clearly erroneous in light of the evidence and the pleadings in the record as a whole.” Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983), cert. denied, 192 Conn. 802, 470 A.2d 1218 (1984). The trial court’s decision to modify the alimony finds ample support under the facts and circumstances in this case.

There is no error.

In this opinion, Hull, J., concurred.

Bieluch, J,

dissenting. I dissent because I conclude that the trial court’s original alimony award terminated when the plaintiff began receiving social security benefits and that the court was thereafter without authority to reinstate alimony.

“[0]nce terminated, alimony cannot be restored by subsequent judicial action.” Connolly v. Connolly, 191 Conn. 468, 476 n.6, 464 A.2d 837 (1983); see also Ridolfi v. Ridolfi, 178 Conn. 377, 379, 423 A.2d 85 (1979) (court entered nominal alimony order of one dollar per year to retain power to grant appropriate alimony at a later date). In the present case, despite the majority’s claim that the parties argued over an alleged ambiguity in the original decree regarding the duration of the alimony award, such ambiguity is simply not demonstrated by the record before us. The record reveals that, in her motion to modify the judgment, the plaintiff “pray[ed] that this Court reopen [the] judgment and extend the period during which she may receive alimony. ” (Emphasis added.) It is clear from this claim for relief in the plaintiff’s own motion that she did not find any ambiguity whatsoever in the original decree. Nor can the majority’s position that the decree was ambiguous be supported by the transcript of the hearing on the motion to modify, since no such transcript has been supplied to us. Thus, I would conclude that the original decree unambiguously terminated the plaintiff’s alimony award when she became a recipient of social security benefits prior to her application to the court to reinstate the already expired alimony order.

In addition, even if the trial court did have the authority to “modify” the expired alimony award in this case, it could not do so on the record before us. “General Statutes § 46b-86 (a) permits a court to continue, set aside or modify any final order for periodic or pendente lite alimony or support ‘upon a showing of a substantial change in the circumstances of either party.’ To warrant a modification, the substantial change in circumstances must have occurred subsequent to the entry of the decree and must have been uncontemplated by the parties at the rendition of the initial decree. Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977); Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976).” Connolly v. Connolly, supra, 473. No such finding was made by the court in this case.

The defendant sought clarification of the trial court’s order requesting (1) that the court determine the amount of arrearage, and (2) “what ‘substantial change in circumstances’ had occurred since the original Judgment justifying the Court’s orders.” The court simply responded that there was no arrearage as of the date of the previous order and completely failed to make a finding of any “substantial change in circumstances.” Without such a finding in the record, the modification cannot stand.

The only basis claimed by the plaintiff for restoring the expired award of alimony in this case was that she was “of the opinion that even with Social Security benefits she will need support from the Defendant.” The plaintiffs receipt of social security benefits was not only within the declared contemplation of the parties when the original dissolution decree and limited alimony order were entered, but the award of such benefits was expressly made the event which would effectuate the termination of the plaintiffs alimony. In agreement with this, indeed the majority acknowledges that “the plaintiffs receipt of social security was a change in circumstance expressly contemplated in the original award.”

The record before us does not show any substantial change in the circumstances of either party not within the contemplation of the parties at the rendition of the initial decree and order of limited alimony which might have warranted reinstatement or “modification” of the previously expired alimony order. The amount of the plaintiffs weekly social security benefits was greater than the original alimony order which she had been receiving until that time. Thus, the plaintiff cannot claim that her financial position has changed to her detriment after entitlement to social security. Upon the record before us, any resurrection of the original alimony order after its expiration would put the plaintiff in a better financial position than the original decree and award had done without any change in circumstances, substantial or otherwise, to justify such an improvement.

For these reasons I dissent.


text:
    Kevin A. Coles, Executor (Estate of Mary E. Baker) v. John M. Baker
    (4172)
    Dupont, C. J., Borden, and Daly, Js.
    Argued April 8 —
    decision released June 10, 1986

      Kevin A. Coles, with whom, on the brief, was Thomas W. Witherington, for the appellants (plaintiffs).

      Robert R. Petrucelli, for the appellee (defendant).
   Per Curiam.

The plaintiffs initiated this action claiming that the defendant wrongfully converted assets belonging to the decedent’s estate. From a judgment rendered in favor of the defendant pursuant to the report and findings of an attorney trial referee, the plaintiffs have appealed.

The referee made a detailed finding in a memorandum of decision and concluded that the decedent, Mary E. Baker, had made a completed inter vivos gift of funds to the defendant. The plaintiffs challenge the judgment on the basis of the referee’s findings and conclusions.

With respect to the various claims of error relating to the merits of the referee’s factual findings, as well as the judgment rendered by the trial court on the basis of those findings, the plaintiffs are precluded from full appellate review by their failure to file a motion to correct the report of the referee, pursuant to Practice Book § 438, or their failure to file an objection to acceptance thereof, pursuant to Practice Book § 440. Because the plaintiff filed no such motion or objection, and because the facts found and the conclusions reached by the referee are adequate to support the judgment, the judgment must stand. Blessings Corporation v. Carolton Chronic & Convalescent Hospital, Inc., 7 Conn. App. 364, 367, 508 A.2d 829 (1986); Kowalsky Properties, Inc. v. Sherwin-Williams Co., 7 Conn. App. 136, 140, 508 A.2d 43 (1986).

Litigants cannot completely ignore established procedures designed for the protection of their rights, as these plaintiffs have done, and expect to be entitled to full appellate review. We, therefore, decline to review the judgment of the trial court. Midland Ins. Co. v. Universal Technology, Inc., 199 Conn. 518, 521-22, 508 A.2d 427 (1986); Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 498, 508 A.2d 415 (1986); Harbor Construction Corporation v. D. V. Frione & Co., 158 Conn. 14, 20, 255 A.2d 823 (1969).

There is no error.

       The executor of the estate was joined by the decedent’s brother, Rudy Baker, who became an intervening plaintiff.


author: Borden, J.

text:
    Kevin Pierce et al. v. Zoning Board of Appeals of the Town of Harwinton et al.
    (4204)
    Dupont, C. J., Hull and Borden, Js.
    Argued April 9 —
    decision released June 10, 1986

      John L. Gerardo, with whom, on the brief, was William T. Barrante, for the appellants-appellees (plaintiffs).

      H. James Stedronsky, with whom, on the brief, was John J. McGrath, Jr., for the appellee-appellant (named defendant).

      Thomas F. Wall, Jr., for the appellee (defendant Frances Mazzochi).
   Borden, J.

The plaintiffs appeal and the named defendant cross appeals from the trial court’s judgment in favor of the defendants. In the plaintiffs’ appeal, the decisive issue is whether the trial court erred by finding that the plaintiffs failed to give proper notice of their declaratory judgment action to “all persons having an interest in the subject matter of the complaint” pursuant to Practice Book § 390 (d). Because we find no error in the trial court’s conclusion regarding Practice Book § 390 (d), the named defendant’s cross appeal, which pertains to additional findings of the trial court, is rendered moot.

On March 18,1984, the defendant, Frances Mazzochi, applied to the defendant Harwinton zoning board of appeals (the board) for a lot size variance to construct a house on her undersized lot in that town. On April 2 and April 7, 1984, prior to the hearing on Mazzochi’s application, the board published notices of a public hearing in a local newspaper. The notices stated that the hearing pertained to “Frances Mazzochi, Spring Hill Road, Harwinton, Connecticut, requesting a variance from section 13 to build a single family residence.” The property which was the subject of the hearing was Mazzochi’s lot thirty-four on Woodland Drive in Harwinton. There was no indication in the notices that lot thirty-four on Woodland Drive was the subject of the hearing.

The hearing was held on August 11,1984. The named plaintiff, Kevin Pierce, whose land abuts lot thirty-four, had seen the hearing notice and he attended the hearing, assuming that the notice pertained to lot thirty-four. On April 25,1985, the board published notice of its decision to grant Mazzochi’s application. Thereafter, Pierce and his wife initiated this declaratory judgment action claiming that the board’s notices were defective and, therefore, that the board’s decision was null and void. The trial court granted the plaintiffs’ motion for an order of notice of the declaratory judgment action to six landowners of property abutting or across the street from lot thirty-four. These landowners were subsequently served with notice by certified mail. The trial court also granted the motion of three persons, who owned two parcels of land near lot thirty-four, to be added as plaintiffs.

The court rendered judgment in favor of the defendants on the ground that the plaintiffs had failed to comply with the notice requirements of Practice Book § 390 (d). This appeal followed.

“Practice Book, 1978, § 390 (d) governing actions for declaratory judgment requires all persons having an interest in the subject matter of the complaint to be parties to the action or have reasonable notice thereof. Failure to observe this requirement deprives the court of jurisdiction over the case. State ex rel. Kelman v. Schaffer, 161 Conn. 522, 526-27, 290 A.2d 327 (1971).” Pinnix v. LaMorte, 182 Conn. 342, 343, 438 A.2d 102 (1980). We have consistently required strict adherence to this rule. Echo Four v. Hill, 3 Conn. App. 118, 122-23, 485 A.2d 926, cert. denied, 195 Conn. 801, 487 A.2d 564 (1985).

The subject matter of the plaintiffs’ complaint was the alleged invalidity of the board’s hearing notices and its decision on the Mazzochi application. General Statutes § 8-7, which governs, inter alia, the notice requirements for hearings before zoning boards of appeals provides, in part, that “[njotice of the time and place of such hearing shall be published in a newspaper having a substantial circulation in [the] municipality . . . Notice of the decision of the board shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to any person who appeals to the board . . . .” The defendants claim that because the subject matter of the plaintiffs’ complaint pertained to the issue of the validity of the board’s notices, all those individuals who were entitled to that notice, namely the general public of Harwinton, were entitled to be notified of the declaratory judgment action. In contrast, the plaintiffs contend that only those persons who own land abutting or within 100 feet of lot thirty-four were due notice of this declaratory judgment action. We agree with the defendants, but for reasons different from those advanced by them.

General Statutes § 8-8 (a) provides in part that “[a]ny person or persons severally or jointly aggrieved by any decision of [a zoning] board, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board . . . may . . . take an appeal to the superior court . . . .’’Thus, pursuant to General Statutes § 8-8 (a), a person may derive standing to appeal based solely upon his status as an abutting landowner or as a landowner within 100 feet of the subject property. Nick v. Planning & Zoning Commission, 6 Conn. App. 110, 112, 503 A.2d 620 (1986). This type of aggrievement has been referred to as “statutory aggrievement.” Id., Ill n.3. Such persons are not, however, the only ones who are or may be entitled to appeal from the decision of a zoning agency. Other persons may be found to be aggrieved if they “ ‘successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. [In addition], the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.’ ” Walls v. Planning & Zoning Commission, 176 Conn. 475, 477-78, 408 A.2d 252 (1979). This type of aggrievement has been referred to as “classical aggrievement.” See Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 491-93, 400 A.2d 726 (1978).

We agree with the plaintiffs that a person’s interest in the subject matter of the complaint, for purposes of the notice requirements of Practice Book § 390 (d), is defined by and limited to those who are aggrieved because such persons may “ ‘demonstrate [an] interest in the subject matter of the decision.’ ” Walls v. Planning & Zoning Commission, supra. We disagree, however, that the number of such aggrieved persons is further limited to those who are statutorily aggrieved by virtue of their status as abutting landowners or landowners within 100 feet. Because the concept of aggrievement includes persons beyond those who are aggrieved by virtue of their status as abutting landowners or landowners within 100 feet; Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393 (1972); the persons interested in the subject matter of the plaintiffs’ complaint are not limited to those who are statutorily aggrieved. Those persons who are interested in the subject matter of the complaint do not automatically include, however, all persons in the “community as a whole”; Walls v. Planning & Zoning Commission, supra; contrary to the defendants’ argument, because all members of the community as a whole could not demonstrate the requisite specific interest in the property, as distinguished from a general community interest. Id.

Thus, even if we assume that the plaintiffs have given notice to those persons who own land “which abuts or is within a radius of one hundred feet of [lot thirty-four]”; General Statutes § 8-8 (a); the plaintiffs still have not met the requirements of Practice Book § 390 (d) because these persons are not the only ones who have an interest in the determination of the subject matter of the complaint. See Tazza v. Planning & Zoning Commission, supra. Those members of the general public who might be able to establish classical aggrievement were also entitled to be notified of the pendency of the plaintiffs’ action. The only practical way to ensure that those persons received notice was to publish a notice “in a newspaper having a substantial circulation in [Harwinton].” General Statutes § 8-7.

This does not mean that any member of the Harwinton general public automatically has standing to appeal from the board’s decision. See Walls v. Planning & Zoning Commission, supra. There is a distinction between those persons who are due notice, pursuant to Practice Book § 390 (d), of the plaintiffs’ complaint, which seeks a judgment declaring the invalidity of a public notice issued pursuant to General Statutes § 8-7, and those persons who are or may be considered to be aggrieved within the meaning of General Statutes § 8-8 (a). The determination of aggrievement involves the question of whether a person has standing to appeal; Tazza v. Planning & Zoning Commission, supra; whereas the notice requirements of Practice Book § 390 (d) involve the question of whether the court has subject matter jurisdiction over a declaratory judgment action. Echo Four v. Hill, supra. In this case, however, there is an overriding practical consideration, namely, that the requirement of notice in conformity with the requirements of General Statutes § 8-7 is the only practical means by which to insure due notice of this declaratory judgment action to all persons who arguably could assert classical aggrievement by the action of the board and who, therefore, were interested in being apprised of the hearing and action of the board. Because the plaintiffs failed to give the notice required pursuant to Practice Book § 390 (d), the trial court lacked jurisdiction to hear the complaint.

On the appeal, there is error in the form of the judgment only, the judgment is set aside and the case is remanded with direction to render judgment dismissing the complaint. The cross appeal is dismissed as moot.

In this opinion the other judges concurred.

       The trial court also reached the merits of the complaint in addition to deciding the issues which pertain to the Practice Book’s notice requirements, and rendered judgment for the defendants. Because we agree with the court’s conclusion that a declaratory judgment was improperly invoked and that the action should have been dismissed, these latter conclusions, which go to the merits of the plaintiffs’ complaint, are surplusage. Therefore, the form of the judgment must be modified. See Benz v. Walker, 154 Conn. 74, 80, 221 A.2d 841 (1966) (dismissal is appropriate remedy where plaintiffs in declaratory judgment action failed to give proper notice).

       The court also rendered a default judgment against the purchasers of Mazzochi’s property, who were joined as defendants pursuant to the plaintiffs’ amended complaint. This judgment is not involved in this appeal.

       The plaintiffs argue that the only persons interested in this declaratory judgment action are they and the defendants, because the action simply seeks to return lot thirty-four to its status quo before the decision of the board. Thus, they claim, no one else could possibly have an interest in what they seek to do. We disagree. This argument overlooks the fact that there may be persons who were classically aggrieved by the decision of the board, and thus interested in the subject matter of this action, who would want to join with the plaintiffs in seeking to overturn the board’s decision. These persons were entitled to notice of this action.