text:
    AMY BOWER ET AL. v. DAVID D’ONFRO ET AL.
    (AC 15682)
    Heiman, Hennessy and Spallone, Js.

      Argued January 27
    officially released June 24, 1997

      Roger J. Frechette, with whom were Matthew E. Frechette and Melinda P. Frechette, for the appellantsappellees (defendant Bradley Ausmus et al.).

      Susan M. Cormier, with whom were Wesley W. Horton and, on the brief, Anthony Nuzzo, Jr., for the appellees-appellants (plaintiffs).
   Opinion

SPALLONE, J.

The defendants appeal from the judgment of the trial court granting postjudgment interest to the plaintiffs from the date of the verdict to the date judgment was rendered by the trial court following remand by this court. The defendants claim that the trial court (1) failed to comply with the rescript of Bower v. D’Onfro, 38 Conn. App. 685, 663 A.2d 1061, cert. denied, 235 Conn. 911, 665 A.2d 606 (1995) (Bower I), (2) improperly acted on motions that were untimely made, (3) improperly acted pursuant to a motion for clarification, (4) improperly rejected the defendants’ claims of finality of judgment, res judicata, issue preclusion, collateral estoppel and failure to appeal, and (5) incorrectly concluded that it had the authority to exercise “equity jurisdiction” in ruling suo motu against the defendants. The plaintiffs filed a cross appeal, claiming that the trial court improperly denied their motion for clarification.

We conclude that the trial couit complied with our mandate in Bower I and acted within its discretion in deciding to grant postjudgment interest, but that the award of interest from the date of the verdict was improper because interest should have been awarded from the date that the trial court originally rendered judgment on the verdict.

The following facts are pertinent to the appeal and cross appeal. On March 26, 1992, a jury returned a verdict of $1,000,000 against all the defendants. Ten months later, on January 28, 1993, the trial court rendered judgment for the plaintiffs against the defendants in the amount of $478,326.95. The trial court, acting under the plaintiffs’ offer of judgment, also awarded interest from September 22,1987. See General Statutes § 52-192a. The defendants appealed to this court. In our decision of August 8, 1995, we ruled against the defendants on most of their claims, but reversed the award of prejudgment interest and concluded that the award of economic damages should be reduced from $100,000 to $65,019.40, the amount proven.

On October 17, 1995, the plaintiffs filed a motion in this court seeking to clarify our rescript by asking us to determine the proper commencement date for post-judgment interest. This court, without comment, denied the motion on November 8, 1995.

On November 20, 1995, the plaintiffs filed a motion in the trial court for a modified judgment. The trial court did not act on that motion. On November 27, 1995, the trial court rendered judgment, in accordance with our rescript, in the amount of $460,836.85 without prejudgment interest.

The plaintiffs, on January 11, 1996, filed with the trial court a “motion for clarification” requesting that the trial court “clarify its judgment to state whether [the plaintiffs] are entitled to interest ... at 10% per annum: (1) from the date of the verdict (March 26, 1992) to the date of the judgment ... in the amount of $169,310.19 . . . or (2) from the date of the original judgment (January 28,1993) to the date of the modified judgment (November 27, 1995) in the amount of $130,423.14. . . .” The defendants objected to that motion.

The trial court, on January 31,1996, denied the plaintiffs’ “motion for clarification” and overruled the defendants’ objection. The court, however, invoking its powers of “equitable jurisdiction,” then acted suo motu and reversed itself by ruling that the plaintiffs were entitled to “statutory interest” on the judgment from the date of the verdict, March 26, 1992. This appeal and cross appeal followed.

We first discuss the plaintiffs’ cross appeal. On January 11, 1996, seven weeks after the trial court rendered its judgment in accordance with our remand, the plaintiffs filed their “motion for clarification.” The plaintiffs sought a ruling on their entitlement to postjudgment interest. Even though the plaintiffs’ motion was captioned “motion for clarification,” “we look to the substance of the claim rather than the form”; Whalen v. Ives, 37 Conn. App. 7, 15, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995); and determine that it was a motion for postjudgment interest under General Statutes § 37-3b. Here, the substance of the plaintiffs’ motion was a request for a determination of when post-judgment interest began to accrue.

The trial court in the present case first denied the motion and, later, in the same memorandum, concluded that the plaintiffs were entitled postjudgment interest from March 26, 1992. Although the court originally denied the motion, it effectively overruled itself by granting the relief the plaintiffs sought. The trial court described its action as being suo motu. In reality, it reversed its own decision. Such action is within the discretion of the trial court. “[Although a judge should not lightly depart from a prior ruling on a motion before the same or a different judge, the prior ruling is not binding.” Barnes v. Schlein, 192 Conn. 732, 734, 473 A.2d 1221 (1984). “[A] trial court possesses the inherent power to modify its own judgments during the term at which they were rendered. Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 710, 462 A.2d 1037 (1983); Tyler v. Aspinwall, 73 Conn. 493, 497, 47 A. 755 (1901). During the continuance of a term of court the judge holding it has, in a sense, absolute control over judgments rendered; that is, he can declare and subsequently modify or annul them. Sturdevant v. Stanton, 47 Conn. 579, 580 (1880).” (Internal quotation marks omitted.) Blake v. Blake, 211 Conn. 485, 494, 560 A.2d 396 (1989); see State v. Wilson, 199 Conn. 417, 436, 507 A.2d 1367 (1986). Though this common-law power is now restricted by statute, courts continue to have inherent authority to modify judgments. See Connecticut National Bank v. Oxenhandler, 30 Conn. App. 541, 546, 621 A.2d 300, cert. denied, 225 Conn. 924, 625 A.2d 822 (1993); Batory v. Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990).

The defendants claim that, because the plaintiffs filed the motion approximately seven weeks after judgment had been rendered following our remand, the motion was untimely and the trial court was precluded from granting the motion. Section 37-3b does not provide for any time limits by which a party must seek interest. Nor does any other statute or rule of practice set a time limit. Statutory and case law clearly recognize that motions for postjudgment interest may be made after judgment has been rendered. See generally General Statutes § 52-192a; Balf Co. v. Spera Construction Co., 222 Conn. 211, 214-15, 608 A.2d 682 (1992); IBM Credit Corp. v. Mark Facey & Co., 44 Conn. App. 490, 493-94, 690 A.2d 410 (1997) (regarding postjudgment motions for determination of interest under General Statutes § 37-3a); Edward Denike Tree Co. v. Butler, 21 Conn. App. 366, 369, 573 A.2d 349 (1990). Common sense also dictates that a party seeking an award of postjudgment interest must file a posttrial motion because the award can be determined only after judgment has been rendered. Cf. Paine Webber Jackson & Curtis, Inc. v. Winters, 26 Conn. App. 322, 326, 600 A.2d 1048 (1991) (regarding interest under General Statutes § 52-192a), aff'd, 225 Conn. 146, 622 A.2d 536 (1993). We also note that this court, in Stafford Higgins Industries, Inc. v. Norwalk, 15 Conn. App. 752, 759, 546 A.2d 340 (1988), ruled that interest on a judgment should not be denied solely because judgment was rendered five years earlier. Therefore, the motion to grant interest, filed seven weeks after the judgment was rendered following our remand, was not untimely.

A decision to deny or grant postjudgment interest is “primarily an equitable determination and a matter lying within the discretion of the trial court.” O’Hara v. State, 218 Conn. 628, 643, 590 A.2d 948 (1991); Maluszewski v. Allstate Ins. Co., 34 Conn. App. 27, 38, 640 A.2d 129, cert. denied, 229 Conn. 921, 642 A.2d 1214 (1994). General Statutes § 37-3b provides in relevant part that “interest at the rate of ten per cent a year, and no more, may be recovered and allowed in any action to recover damages for injury to the person, or to real or personal property, caused by negligence, computed from the date of judgment.” “In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Maluszewski v. Allstate Ins. Co., supra, 39. “The court’s determination regarding the award of interest should be made in view of the demands of justice rather than through the application of any arbitrary rule. . . . Whether interest may be awarded depends on whether the money involved is payable . . . and whether the detention of the money is or is not wrongful under the circumstances. ...” (Citations omitted; internal quotation marks omitted.) Id. Here, the trial court, weighing equitable considerations, determined that postjudgment interest was due. We see no reasonable ground upon which to find an abuse of discretion in that determination.

“[U]pon determining that interest was appropriate, [however] the court had no discretion to start its accrual from any time other than the date of judgment.” Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 386, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988). The jury rendered a verdict on March 26, 1992. The trial court rendered judgment for the plaintiffs on January 28,1993. The trial court improperly determined that interest was to run from the date of the verdict. The court had no authority to start accrual of interest from any date other than January 28, 1993. We, therefore, affirm the trial court’s determination that interest was due, but direct that the judgment be modified so that interest runs from January 28, 1993.

We reject the defendants’ claim that the trial court did not follow our remand. In reviewing decisions of a trial court following remand by an appellate court, the question is whether the trial court correctly interpreted the mandate on remand. See Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 522, 686 A.2d 481 (1996). “In carrying out a mandate . . . the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. . . . The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein.” (Emphasis in original; internal quotation marks omitted.) Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 65, 689 A.2d 1097 (1997); Bauer v. Waste Management of Connecticut, Inc., supra, 522.

The rescript in Bower I states: “The judgment is reversed in part and the case is remanded with direction to render a judgment of $460,836.85 without any prejudgment interest.” Bower I, supra, 38 Conn. App. 709. This rescript directs the trial court to render judgment in the amount of $460,836.85. This the trial court did, on November 28, 1995. The “reversal in part” ordered in Bower I concerned only the award of prejudgment interest and an arithmetical mistake in the calculation of collateral source payments. In every other respect, the judgment was affirmed. Whether postjudgment interest should run, and, if so, for what period, is unrelated to any issue previously decided by this court and is unrelated to our rescript in Bower I. The trial court complied with the mandate of this court by rendering judgment in the correct mathematical amount, exclusive of prejudgment interest.

The defendants also argue that the trial court improperly rejected their claims of finality of judgment, res judicata, issue preclusion, collateral estoppel and failure to appeal. The defendants’ argument, essentially, is that the trial court was precluded from acting on a question that had already been addressed and decided. Postjudgment interest, however, is an issue that, by its nature, can be addressed only after judgment has been rendered following the remand. Neither the trial court in the first instance nor the Appellate Court in Bower I “had occasion to consider the question of [postjudgment] interest . . . .” (Citation omitted.) Manchester Modes, Inc. v. Ellis, 2 Conn. App. 261, 263 n.4, 477 A.2d 164 (1984); cf. Nowell v. Nowell, 163 Conn. 116, 122-23, 302 A.2d 260 (1972); cf. Mazzotta v. Bornstein, 105 Conn. 242, 244-45, 135 A. 38 (1926) (trial court, after remand, improperly considered issue of interest, which had been “considered and determined by the trial court and its judgment including such interest had been sustained upon appeal”). The issue could not have been addressed by either this court, via the plaintiffs’ motion for exercise of judicial powers of October 17, 1995, or the trial court, by the plaintiffs’ motion for modified judgment in accordance with the Appellate Court rescript of November 20, 1995. We denied the former motion and the trial court declined to act on the latter motion because the question of the award of postjudgment interest could not be addressed until judgment was rendered on remand. Since postjudgment interest had not been previously addressed, the trial court was not precluded from considering the issue.

The judgment is reversed in part and the case is remanded with direction to award postjudgment interest from January 28,1993, the date the original judgment was rendered on the verdict, until the date on which payment of was made to the plaintiffs.

In this opinion the other judges concurred.

       Consideration of the defendants’ second, third and fifth claims is subsumed in our discussion of the cross appeal.

       The jury found the defendants Bradley D. Ausmus and Lin Ausmus 50 percent negligent and the defendant David V. D’Onfro 50 percent negligent. Having settled with the plaintiffs prior to trial, the defendant David V. D’Onfro, also known as David V. D’Onfrio, is not a party to this appeal. Bradley D. Ausmus and Lin Ausmus are referred to as the defendants in the present appeal.

       That amount, with interest from November 27, 1995, to the date of payment, has been paid by the defendants to the plaintiffs. At the time of payment, the plaintiffs reserved the right to pursue the interest issue and the defendants reserved their right to contest it. No satisfaction of judgment has been filed.

       The plaintiffs, also on January 11, 1996, filed a “supplemental bill of costs and interest” for interest from the date of the verdict to the date of the judgment. The defendants filed an objection. The chief clerk, stating that interest is not taxable as costs, denied the plaintiffs’ request on January 24, 1996.

      The plaintiffs were awarded postjudgment interest, and thus have no ground for a cross appeal because they are not aggrieved. See Practice Book § 4005. Rather, the plaintiffs have raised an alternate ground for affirming the judgment of the trial court under Practice Book § 4013 (a) (1) (A). In the absence of aggrievement, claims made on cross appeal may be treated as alternate grounds for affirmance where such consideration did not prejudice the opposing side. See Labbe v. Pension Commission, 229 Conn. 801, 815, 643 A.2d 1268 (1994); Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 547 n.l, 522 A.2d 796 (1989); see also Whalen v. Ives, 37 Conn. App. 7, 15, 654 A.2d 798, cert, denied, 233 Conn. 905, 657 A.2d 645 (1995).
      The plaintiffs present, as an alternate ground for affirmance, the claim that the trial court acted within its discretion in granting the relief the plaintiffs sought. Here, the issue has been briefed by the parlies and, therefore, there is no prejudice to the parties resulting from a treatment of the plaintiffs’ cross appeal as an alternate ground for affirmance.

       Even if this motion were treated as one for clarification, the motion would not be untimely. “There is no time restriction imposed on the filing of a motion for clarification. See Barnard v. Barnard, [214 Conn. 99, 100, 570 A.2d 690 (1990)] (motion for clarification filed sixteen months after judgment); Cattaneo v. Cattaneo, [19 Conn. App. 161, 163, 561 A.2d 967 (1989)] (motion for clarification filed six and one-hall years after judgment). ’’ Holcombe v. Holcombe, 22 Conn. App. 363, 366, 576 A.2d 1317 (1990) (motion for clarification filed nineteen months after judgment was timely); see also Zadravecz v. Zadravecz, 39 Conn. App. 28, 30, 664 A.2d 303 (1995).

       General Statutes § 37-3b provides: “For a cause of action arising on or after October 1, 1981, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in any action to recover damages for injury to the person, or to real or personal property, caused by negligence, computed from the date of judgment.”

       See, e.g., General Statutes § 52-350d, which provides: “Jurisdiction of Superior Court, (a) For the purposes of postjudgment procedures, the Superior Court shall have jurisdiction over all parties of record in an action until satisfaction of the judgment or, if sooner, until the statute limiting execution has run, except the Superior Court shall have jurisdiction at any time to determine exemption rights and grant appropriate relief.
      “(b) This section shall not be construed to allow opening of a judgment other than within four months succeeding the date on which it was rendered as provided by section 52-212a or as otherwise provided by law.”
      No satisfaction of the judgment has been filed. See footnote 3.

       The reasoning in that case was based on the applicable statute of limitations, General Statutes § 52-598, which provides that execution may issue upon judgment for money damages for up to twenty years from the date of judgment.

       Furthermore, in other contexts, statutes that are silent as to time limits for their enforcement have been interpreted as requiring action within a reasonable time. For instance, we recently concluded that, under the Uniform Administrative Procedure Act, postjudgment motions for attorney’s fees must be filed within a reasonable time of the entering of the final judgment and that the determination of what constitutes a reasonable time is a matter within the discretion of the trial court See McDonald v. Rowe, 43 Conn. App. 39, 41, 682 A.2d 542 (1996); Oakley v. Commission on Human Rights & Opportunities, 38 Conn. App. 506, 517, 662 A.2d 137, aff'd, 237 Conn. 28, 675 A.2d 851 (1996). General Statutes § 4-184a “contains no express time limitations and the parties did not claim that they were prejudiced or unfairly surprised by the trial court’s ruling.” McDonald v. Rowe, supra, 41.
      The defendants in the present case could not reasonably claim prejudice or surprise by the court’s decision to grant postjudgment interest. Cf. Patron v. Konover, 43 Conn. App. 645, 653, 685 A.2d 1133 (1996). In the absence of such a claim, a trial court does not abuse its discretion in acting on postjudgment motions for interest filed within a reasonable time after judgment has been rendered. We conclude, as the trial court impliedly did, that seven weeks after the date that judgment had been rendered following remand is a reasonable time.

       The trial court has already complied with our remand in Bower I and judgment in that amount was already rendered by the trial court.

       See footnote 3.


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    NORBERT MAYER v. BIAFORE, FLOREK AND O’NEILL ET AL.
    (AC 16156)
    Landau, Schaller and Spear, Js.
    Argued March 19
    officially released June 24, 1997

      Douglas P. Mahoney, with whom, on the brief, was Robert R. Sheldon, for the appellant (plaintiff).

      Karen K. Clark, with whom was Jennifer A. Osowiecki, for the appellees (defendants).
   Opinion

LANDAU, J.

The plaintiff, Norbert Mayer, appeals from the judgment that followed the trial court’s granting of the defendants’ motion to dismiss in this legal malpractice action. On appeal, the plaintiff argues that the trial court improperly dismissed the action for lack of subject matter jurisdiction on the basis of ripeness. We affirm the judgment of the trial court.

The following facts are necessary for the resolution of this appeal. On March 30, 1989, the plaintiff was operating his motor vehicle when he was struck by a taxicab owned by Diene Bassirou and operated by Diop Ahmadou (tortfeasors). On May 9, 1989, the plaintiff retained the defendants to pursue a negligence action against the tortfeasors, claiming personal injuries. In May, 1994, the defendants settled the plaintiffs personal injury claim with the tortfeasors for $10,000, thereby exhausting the liability limits of the tortfeasors’ insurance policy.

At the time of the accident, the plaintiff was insured under a personal automobile policy issued by Aetna Casualty and Surety Company (Aetna). The policy included provisions for uninsured-underinsured motorist coverage. Although the plaintiff requested underinsured motorist benefits from Aetna, to date, he has not filed suit against Aetna under the underinsured motorist provision in his insurance policy.

On August 30,1995, the plaintiff commenced this legal malpractice action, sounding in negligence, against the defendants. In his complaint, the plaintiff alleged that he has lost his underinsured motorist claim for monetary damages because the defendants allegedly failed to file an underinsured motorist claim against Aetna within the six year time limit prescribed by Connecticut law and the plaintiffs insurance contract. The defendants also allegedly failed to commence an action against Aetna within 180 days from the date of exhaustion of the tortfeasors’ policy limits as provided in No. 93-77, § 2, of the 1993 Public Acts.

The defendants filed a motion to dismiss the complaint, claiming that the trial court lacked subject matter jurisdiction because the plaintiffs claim was not yet ripe for adjudication. The trial court granted the defendants’ motion to dismiss, concluding that until a court, having the proper parties before it, has decided whether the plaintiffs underinsured motorist claim is time barred, the plaintiffs action against the defendants is premature and, therefore, not yet ripe for adjudication.

The trial court properly concluded that the plaintiffs action against the defendants is premature. “The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 (1986); Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983); W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 30, pp. 164-65.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). Here, the plaintiff claims that he lost his underinsured motorist claim against Aetna as a result of the defendants’ negligent failure to file a timely action. Because the question of whether the plaintiffs claim against Aetna is time barred has yet to be adjudicated in an action between the plaintiff and Aetna, the issue of whether the defendants breached a duty owed to the plaintiff, assuming a duty to act existed, cannot be determined. If we assume arguendo that Aetna will prevail against the plaintiff, only then can the plaintiff pursue an action against the defendants for legal malpractice.

“Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute: Courts exist for determination of actual and existing controversies, and under the law of this state the courts may not be used as a vehicle to obtain judicial opinions on points of law. Harkins v. Driscoll, 165 Conn. 407, 409, 334 A.2d 901 (1973) ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. . . . State v. Nardini, 187 Conn. 109, 111-12, 445 A.2d 304 (1982).” (Internal quotation marks omitted.) Hallas v. Windsor, 212 Conn. 338, 347, 562 A.2d 499 (1989). Courts are established to decide actual controversies and an appellate court has no jurisdiction to adjudicate cases that are not justiciable. State v. Nardini, supra, 111. Here, because the plaintiffs claim against Aetna has not been adjudicated, and consequently no determination has been made that the plaintiff is time barred from pursuing his claim against Aetna, no actual controversy exists between the parties in this dispute. We conclude, therefore, that the trial court properly granted the defendants’ motion to dismiss due to its lack of subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.

       Martin J. O'Neill, an attorney with the law firm of Biafore, Florek and O’Neill, is also a defendant in this action.

       The plaintiff claims that he has suffered damages in excess of $10,000.

       The plaintiff asserts that to require him, in this legal malpractice action, to exhaust every available remedy may result in his forever losing his claim. In other words, by the time that, a court determines that he has no claim against Aetna, which he maintains is the likely course, the statute of limitations applicable to legal malpractice actions may run. See General Statutes § 52-577.
      We note that the consideration of any issues not germane to a determination of the trial court’s jurisdiction over the subject matter is not warranted. This includes the consideration of whether the statute of limitations applicable to attorney malpractice suits could run prior to the resolution of a suit against Aetna if the plaintiff brought such a suit. Even if such issues were properly raised, they lack merit. Subject matter jurisdiction may not be conferred in a matter that is not ripe for adjudication merely because the statute of limitations may run before resolution of the underinsured motorist claim against Aetna. Connecticut law has consistently recognized that a statute of repose may on occasion operate to bar an action even before it accrues. See Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988); Sanborn v. Greenwald, 39 Conn. App. 289, 301-302, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995).


author: DUPONT, C. J.

text:
    COLONIAL PENN INSURANCE COMPANY v. D. EUGENE BRYANT D. EUGENE BRYANT v. ROYAL INSURANCE COMPANY D. EUGENE BRYANT v. COLONIAL PENN INSURANCE COMPANY
    (AC 15518)
    (AC 15519)
    Dupont, C. J., and Schaller and Ronan, Js.
    Argued February 28
    officially released June 24, 1997

      Frederick L. Murolo, with whom was Jeffrey L. Fisher, for the appellant-appellee (plaintiff in the first case, defendant in the third case).

      Dennis A. Ferdon, with whom, on the brief, was Lori M. Serra-Comforti, for the appellee-appellant (plaintiff in the second and third cases, defendant in the first case).

      Constance L. Epstein, with whom, on the brief, was Matthew D. Gilmond, for the appellee (defendant in the second case).
   Opinion

DUPONT, C. J.

These appeals arise from a consolidation of three cases. In the first case, Colonial Penn Insurance Company (Colonial) applied to the trial court to vacate or modify an arbitration award involving it and D. Eugene Bryant (Bryant). Bryant is the insured on a policy issued by Colonial that provided him with uninsured and underinsured motorist coverage. At issue is the amount of coverage that policy provided. Colonial claims that the coverage is $40,000, whereas Bryant and the Royal Insurance Company (Royal), which issued a policy to Biyant that provides excess coverage, claim it is $200,000. The arbitrators determined that the coverage of the Colonial policy is $200,000.

The second and third cases were brought by Bryant against Royal and Colonial. In those cases, Bryant sought to confirm the award in his favor against Colonial and to vacate a separate award in which it was determined that Bryant’s claim against Royal was moot due to Colonial’s liability for all of the damages. Bryant claimed that, if the court vacated the award against Colonial, it should also vacate the award in favor of Royal.

The arbitration hearing established that Bryant sustained damages in the amount of $180,000 and that he had recovered $25,000 from a third party tortfeasor. The balance of $155,000 was found by the arbitrators to be due from Colonial, with no portion of the award being payable by Royal as the excess insurer. Bryant filed a motion to confirm the award in his case against Colonial. In the action by Bryant against Royal, Bryant seeks to vacate the award in Royal’s favor and to obtain coverage from Royal in the amount of $140,000, in the event Colonial is found to be responsible for only $15,000 ($40,000 of coverage less the $25,000 from the third party tortfeasor). The trial court confirmed the award of the arbitrators in favor of Bryant against Colonial in the amount of $155,000.

The facts are not in dispute. Bryant and his wife, Judith Bryant, were named insureds under Colonial’s policy, which covered two vehicles. Before March 15, 1988, the policy provided for $100,000 uninsured-under-insured motorist coverage per vehicle. When the policy was renewed on that date, Bryant signed a form requesting a reduction in coverage to $20,000 per vehicle but his wife did not sign the form. The cars were owned by both husband and wife, and Bryant was driving one of them at the time of the accident on September 20, 1989. These cases do not concern whether Bryant will receive underinsured motorist coverage consonant with his injuries but whether his damages are the sole responsibility of Colonial.

Because Judith Bryant did not sign the form reducing coverage, the arbitration panel determined that the form was invalid, and that the prior coverage of $100,000 per vehicle remained intact. It relied on General Statutes (Rev. to 1989) § 38-175c (a) (2)and Nationwide Mutual Ins. Co. v. Pasion, 219 Conn. 764, 594 A.2d 468 (1991), to reach that conclusion. Colonial argues that Pasión does not apply because it is factually different in that neither of the coinsureds, but rather a passenger in their car, was the injured party, whereas in this case, the insured party that had signed the form opting for the lower coverage was the injured party. The trial court, however, rejected Colonial’s argument and rendered judgment confirming the arbitration award. The trial court, relying on Dugas v. Lumbermens Mutual Casualty Co., 217 Conn. 631, 587 A.2d 415 (1991), also held that Colonial was entitled to reimbursement for basic reparations it had paid to Bryant in the amount of $5000.

At the time Bryant signed the reduction form requesting coverage of $20,000, on March 15, 1988, Pasión had not yet been decided, but § 38-175c (a) (2) had been passed, applying to policies issued or renewed after July 1, 1984. Pasión clearly holds that coowners of a car who are named insureds on an automobile liability insurance policy must both sign the authorization for a reduction in coverage, regardless of the relationship between the coowners, in order for a reduction in coverage to be effective when a passenger in the insureds’ car, driven by the nonsigning owner suffers injuries. Nationwide Mutual Ins. Co. v. Pasion, supra, 219 Conn. 771. The rationale of the court was that “[t]o permit the signature of one named insured to bind other, possibly uninformed, named insureds would circumvent the legislature’s intent that the decision to reduce uninsured motorist coverage by consumers be an informed one.” Id. The question we must decide is whether Pasión’s holding, in view of that rationale, is limited to situations where one coinsured has not signed the reduction form and a third party is injured while that coinsured was driving the insured car, or whether it also applies to situations, as here, where the coinsured who did sign the form is the one suffering injuries.

Because the legislature’s intent was to make certain that a consumer make an informed decision before electing reduced coverage, that purpose is fulfilled when a “consumer” has made such a decision by signing the form. The consumer in this case is the one who elected lower coverage. As to him, the election was not uninformed. We, therefore, conclude that Pasión does not apply to this case.

There is another more compelling reason, however, to conclude that the coverage reduction form was effective and binding on both coinsureds. Pasión interpreted General Statutes (Rev. to 1989) § 38-175c (a) (2), which was subsequently amended and is now General Statutes § 38a-336 (a) (2). Colonial argues that the amendment should be applied retroactively and cites Reliance Ins. Co. v. American Casualty Co. of Reading, Pennsylvania, 238 Conn. 285, 679 A.2d 925 (1996), as authority for a retroactive application. The question is whether the language of § 38a-336 (a) (2) modified § 38-175c (a) (2) and, if so, whether the modifying language should control. Section 38-175c (a) (2) at the time Pasión was decided, and on the date the reduction form was signed, used the terms “insured” and “named insured.” Section 38a-336 (a) (2) substitutes the term “any named insured” for those terms. (Emphasis added.) Colonial argues that the word “any” reflects the legislative intent to clarify that only one named insured needs to sign a reduction form in order for it to be effective, and that such was always the legislative intent. Colonial, therefore, claims that the change in the wording was the legislature’s direct response to the interpretation of § 38-175c (a) (2) in Pasión, which interpretation never reflected the original legislative intent.

We must first determine whether the language “any named insured” has a meaning different from “insured” or “named insured.” If it does, we must next determine whether the purpose of the amendment was to clarify what had always been the law or to change the law substantively. If it is a clarification, it may be applied retroactively; if not, it may not be applied retroactively. These questions have not yet been determined by any appellate court. Previous decisions have mentioned § 38a-336 (a) (2) as successor legislation to § 38-175c (a) (2) but have interpreted the legislative history of only the latter, without reference to the change in language as discussed in this opinion.

“Any” is defined as “one or some indiscriminately of whatever kind . . . .” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993). “Any” also has a diversity of meanings when used in a statute and may mean “all,” “every,” “some” or “one” because its meaning in a statute depends on the context and subject matter of the statute. Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 328-29, 142 A.2d 524 (1958). To determine which definition should apply, we examine the original wording of the statute, the nature of the change, and the legislative history. Here, the legislative history is not revealing. The words themselves, however, provide some guidance. “Any” in the phrase “any named insured” modifies or describes “named insured.” The addition of the word “any” alters the meaning of “insured.” If there is more than one insured, “any” can mean the smallest quantity or smallest number of two or more. Because the original wording of the statute was changed after Pasión, we conclude that the change was in response to Pasión’s holding, and that the addition of the word “any” should be construed as meaning “one.”

Legislation, when prompted by a particular case, which clarifies language construed by that case contrary to the original intention of the legislature, operates as the legislature’s declaration of the meaning of the original act. See Turner v. Turner, 219 Conn. 703, 717, 595 A.2d 297 (1991). Such legislation is a restatement of legislative intent and may be applied retroactively. Reliance Ins. Co. v. American Casualty Co. of Reading, Pennsylvania, supra, 238 Conn. 291. For us to conclude that the legislature intended, by the passage of subsequent legislation, to clarify a prior act, the legislative history of the subsequent legislation need not refer to the particular case in which the prior legislation was misinterpreted. See Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540-41, 489 A.2d 363 (1985); see also State v. Magnano, 204 Conn. 259, 280, 528 A.2d 760 (1987). “The legislature has the power to make evident to us that it never intended to provide a litigant with the rights that we previously had interpreted a statute to confer.” State v. Magnano, supra, 284. If an amendment clarifies the original intent of an earlier statute, of necessity it has a retroactive effect. Id. “According to well established principles of statutory construction, an amendment that construes and clarifies a prior statute operates as the legislature’s declaration of the meaning of the original act.” Turner v. Turner, supra, 717.

We conclude that § 38a-336 (a) (2) makes it clear that either one of the coinsureds may elect to obtain lower coverage, with that election being binding on all the coinsureds. It was within the power of the legislature to conclude that when there is one policy, and one premium, one election of lower coverage by one of two or more coinsureds will be effective as to the others.

The judgment is reversed in part and the case is remanded with direction to render judgment vacating the award against Colonial in part and requiring Colonial to pay Bryant $15,000 less any sum not yet repaid by Bryant as a result of the basic reparation reimbursement due Colonial, and vacating the award in favor of Royal and requiring Royal to pay the balance of the award not paid by Colonial, namely $140,000.

In this opinion the other judges concurred.

      In appeal 15518, Colonial challenges the confirmation of the award against it. In appeal 15519, Bryant challenges the confirmation of the award in favor of Royal.

       One arbitrator of the three person panel dissented.

       The parties stipulated that the Colonial policy was primary and because two vehicles were involved, the underinsured motorist coverage could be stacked to provide $200,000 in coverage or $40,000, depending on the effectiveness of the execution of the form.

       General Statutes (Rev. to 1989) § 38-175c (a) (2) provides in pertinent pari.: ‘'Notwithstanding any provision of this section to the contrary, every [automobile liability insurance] policy issued or renewed on and after July 1, 1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from 1he liability imposed by law unless the insured requests in writing a lesser amount .... Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.” (Emphasis added.)

       Bryant has withdrawn his cross appeal as to that holding.

        Reliance Ins. Co. v. American Casualty Co. of Reading, Pennsylvania, supra, 238 Conn. 285, is not cited for the proposition that § 38a-336 (a) (2) effectively overruled Nationwide Ins. Co. v. Pasion, supra, 219 Conn. 764. Reliance Ins. Co. does not involve a coverage reduction form.

       The judgment of the trial court in this case was rendered on November 29, 1995, after the amendment’s effective date of January 1, 1994.

       General Statutes § 38a.-336 (a) (2) provides: “Notwithstanding any provision of this section to the contrary, each automobile liability insurance policy issued or renewed on and after January 1,1994, shall provide uninsured and underinsured motorist coverage with limits for bodily ipjury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless any named insured, requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured. No such written request for a lesser amount shall be effective unless any named insured has signed an informed consent form which shall contain: (A) An explanation of uninsured and underinsured motorist insurance approved by the commissioner; (B) a list of uninsured and underinsured motorist, coverage options available from the insurer; and (C) the premium cost for each of the coverage options available from the insurer. Such informed consent form shall contain a heading in twelve-point type and shall state: ‘WHEN YOU SIGN THIS FORM, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PURCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY. IF YOU ARE UNCERTAIN ABOUT HOW THIS DECISION WILL AFFECT YOU, YOU SHOULD GET ADVICE FROM YOUR INSURANCE AGENT OR ANOTHER QUALIFIED ADVISOR.’ ” (Emphasis added.)

       The legislative history of § 38a-336 (a) (2) is silent as to any reason for the change in language.


author: SCHALLER, J.

text:
    ALPHONSO VALLE v. COMMISSIONER OF CORRECTION
    (AC 16015)
    Dupont, C. J., and Landau and SchaUer, Js.
    Argued January 16
    officially released June 24, 1997

      Madeline A. Melchionne, assistant attorney general, with whom, on the brief, was Richard Blwmenthal, attorney general, for the appellant (respondent).

      Christopher C. Sheehan, assistant public defender, for the appellee (petitioner).
   Opinion

SCHALLER, J.

This is an appeal from the granting of an application for a writ of habeas corpus by the petitioner, Alphonso Valle. On appeal, the respondent commissioner of correction claims that the trial court improperly granted the petitioner’s writ of habeas corpus. We affirm the judgment of the habeas court.

The facts are not in dispute. On June 16, 1992, the petitioner was held in pretrial confinement in Docket No. CR92-133946 on a charge of burglary in the third degree in violation of General Statutes § 53a-103. The petitioner remained in pretrial confinement for this offense for 253 days, until February 24, 1993, when he pleaded guilty and was sentenced to a four year term of imprisonment.

On June 30, 1992, while the petitioner was held in presentence confinement and awaiting trial on Docket No. CR92-133946, the state charged him under Docket No. CR14-368284 with violating his probation, a violation of General Statutes § 53a-32. The petitioner remained in pretrial confinement on this charge for 239 days, until February 24, 1993, the date the petitioner was sentenced on his guilty plea in Docket No. CR92133946. The petitioner pleaded guilty to the charge of violating his probation and was sentenced to a term of four years to run concurrent with the four year sentence imposed in Docket No. CR92-133946. The petitioner was not sentenced in Docket No. CR14-368284, however, until March 3, 1993, one week after the sentence imposed in Docket No. CR92-133946. On January 7, 1994, under Docket No. 93-13-92281-S, the petitioner was also sentenced to an additional eighteen months to ran consecutive to the sentences imposed in Docket Nos. CR92-133946 and CR14-368284.

Upon the petitioner’s commitment, the respondent calculated the petitioner’s jail credit and good time credit pursuant to General Statutes § 18-98d. On Docket No. CR92-133946, the respondent applied fourteen days jail credit and four days good time credit. On Docket No. CR14-368284, the respondent applied 239 days jail credit and eighty days good time credit. On the basis of this application, the respondent determined that the petitioner’s release date under Docket No. CR92-133946 was February 6, 1997; that is, February 24, 1997, less fourteen days jail credit and four days good time credit. The respondent further determined that the release date for Docket No. CR14-368284 was April 18, 1996; that is, March 3, 1997, less 239 days jail credit and eighty days good time credit. Since the sentence imposed under Docket No. CR14-368284 was ordered to run concurrent with the sentence imposed under Docket No. CR92-133946, the respondent determined, pursuant to General Statutes § 53a-38, that the petitioner’s effective release date for the two sentences was February 6, 1997.

Subsequent to the respondent’s determination, the petitioner filed an amended petition seeking a writ of habeas corpus. The issue raised by the amended petition was whether the respondent correctly calculated the petitioner’s jail credit and good time credit. The petition alleged that the respondent had improperly calculated the effective release date of the petitioner’s two four year concurrent sentences. The habeas court concluded that the respondent had incorrectly calculated the petitioner’s effective release date and granted the amended petition. This appeal followed.

We agree with the habeas court that the respondent should have examined the pretrial confinement time under each docket pursuant to § 18-98d and then chosen as the effective release date the longer of the two sentences pursuant to § 53a-38. “[T]he determination of the discharge date by this method reflects a correct construction of the two applicable statutes.” Payton v. Albert, 209 Conn. 23, 32, 547 A.2d 1 (1988). In the present case, the four year sentence imposed in Docket No. CR92-133946, when adjusted for the 253 days jail credit and the corresponding eighty-four days good time credit, would be satisfied on March 23, 1996. The four year sentence imposed in Docket No. CR14-368284, when adjusted for the 239 days jail credit and the corresponding eighty days good time credit, would be satisfied on April 18, 1996. The two sentences having been ordered to run concurrently, § 53a-38 provides that the sentences merge and directs that the petitioner serve the longer of the two sentences. April 18, 1996, therefore, becomes the petitioner’s effective release date.

The respondent contends that his practice for determining jail time credit is different when a defendant is given concurrent sentences on different dates as opposed to when a defendant is given concurrent sentences on the same date. In the same date scenario, the respondent concedes that he calculates the time for jail credit under each docket and then chooses as the effective release date the longer of the two sentences. He argues, however, that when concurrent sentences are given on separate dates, he cannot calculate jail time in this manner because such a calculation would necessarily result in double counting in direct violation of § 18-98d. The respondent’s contention is flawed because double counting is prevented by the proper application of § 53a-38. See Payton v. Albert, supra, 209 Conn. 32 (“While § 18-98d deals with the calculation of sentences in general, it does not specifically take up the matter of concurrent, sentences. General Statutes § 53a-38 [b] does.”). The analysis in Payton does not support, the claim that the respondent should treat differently concurrent sentences imposed on different dates from concurrent sentences imposed on the same date. See id.

We conclude that the habeas court properly determined that the petitioner’s release date for the concurrent sentences imposed in Docket Nos. CR92-133946 and CR14-368284 is April 18, 1996.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner and the respondent agree that this sentence does not affect the issue raised in this appeal.

       General Statutes § 18-98d provides in relevant part: “Presentence confinement credit for confinement resulting from an offense committed on or after July 1, 1981. (a) Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1,1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of his sentence equal to the number of days which he spent in such facility from the time he was placed in presentence confinement to the time he began serving the term of imprisonment imposed; provided (1) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement; and (2) the provisions of this section shall only apply to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for his presentence confinement, except that if a person is serving a term of imprisonment at the same time he is in presentence confinement on another charge and the conviction for such imprisonment is reversed on appeal, such person shall be entitled, in any sentence subsequently imposed, to a reduction based on such presentence confinement in accordance with the provisions of this section. In the case of a fine each day spent in such confinement prior to sentencing shall be credited against the sentence at the rate of ten dollars. ...”

       General Statutes § 53a-38 (b) provides in relevant part: “A definite sentence of imprisonment commences when the prisoner is received in the custody to which he was sentenced. Where a person is under more than one definite sentence, the sentences shall be calculated as follows: (1) If the sentences run concurrently, the terms merge in and are satisfied by discharge of the term which has the longest term to run . . . .”

       The respondent offered the following explanation for his calculation of the petitioner’s release date. The fourteen days of credit representing the time spent confined from June 16,1992 to June 30,1992, was clearly attributable only to Docket No. CR92-133946 and was applied to that sentence. The remaining 239 days spent in pretrial confinement was spent under the mittimuses in both Docket No. CR92-133946 and Docket No. CR14-368284. Thus, because the 239 days common to both dockets were originally applied when the first sentence was imposed on February 24, 1993, in Docket No. CR92-133946, they could not be applied again when the second sentence was imposed on March 3, 1993, in Docket No. CR14-368284 because of the prohibition of double counting in § 18-98d. Therefore, because all the common jail credit, namely the 239 days, had been applied to the earlier imposed sentence in Docket No. CR92-133946, the result would have been no practical reduction for presentence confinement for the subsequent four year concurrent sentence imposed in Docket No. CR14-368284. Instead of giving the petitioner no credit on Docket No. CR14-368284, which would have resulted in his effective release date being March 3,1997, the respondent claims that he gave the petitioner the most practical benefit possible by applying fourteen days of credit in Docket No. CR92-133946, contrary to his usual practice.


text:
    ARSEN LAZAROS ET AL. v. CITY OF WEST HAVEN ET AL.
    (AC 14376)
    Heiman, Schaller and Spear, Js.
    Argued January 22
    officially released July 1, 1997

      Charles A. Sherwood, for the appellants (plaintiffs).

      Joseph L. Rini and Bradford J. Rieger, for the appellees (defendants).
   Opinion

SCHALLER, J.

The plaintiffs appeal from the judgment of the trial court rendered after a jury verdict in favor of the defendants. The plaintiffs claim that the trial court improperly (1) granted five of the defendants’ motions to strike and (2) denied their motion to set aside the verdict and for a new trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1966, the West Haven city council (city) approved a redevelopment plan previously adopted by the defendant West Haven redevelopment agency. The redevelopment plan called for the construction of highrise apartment houses and office buildings.

In 1977, the plaintiffs purchased a parcel of land, parcel L, in the redevelopment area and opened a restaurant there. They claimed that they were motivated to buy the land and to open the restaurant, in part, by the defendant city’s representation that the surrounding area would be redeveloped with apartments and highrise condominiums. Shortly after the plaintiffs opened their restaurant, they were notified by the redevelopment agency that it desired to modify the original redevelopment plan to partial development. This modification called for twenty-five acres of land, which was previously designated for commercial development, to be acquired by the city and maintained as open space and park and recreation areas. Initially, the plaintiffs contested this modification claiming that it would have a detrimental effect on their restaurant, but agreed to the modification on the condition that they were to receive the option to buy and develop parcel M, the parcel adjacent to parcel L.

Subsequently, the plaintiffs submitted plans to the redevelopment agency that called for the construction of a condominium complex on parcel M. The redevelopment agency approved their plans and designated the plaintiffs as the developers of parcel M. When the plaintiffs’ redevelopment plans were submitted to the city for final approval, however, the city refused to approve the plans. Eventually, the plaintiffs’ restaurant failed and they commenced a suit against the city and the redevelopment agency claiming that they suffered damages due to the city’s failure to approve their plan and due to the city’s and the redevelopment agency’s failure to implement the modified redevelopment plan.

The plaintiffs instituted their original complaint on December 2, 1988, and submitted a six count revised complaint dated November 22, 1993. The city and the redevelopment agency filed answers on December 17 and December 22, 1993, respectively. Prior to trial, the trial court and counsel for all parties agreed that the appropriate procedural vehicle to identify the critical issues in this case was a motion to strike directed to various allegations in the plaintiffs’ amended complaint. Thereafter, the defendants filed five motions to strike seeking to test the legal sufficiency of the plaintiffs’ causes of actions and claims for relief. After a hearing on the motions to strike, the trial court, Hon. John C. Flanagan, judge trial referee, granted five of the defendants’ motions to strike by memorandum of decision dated August 24,1994. The case proceeded to trial on the sole remaining issue of whether there had been a financial detriment to the plaintiffs’ parcel L as a result of the defendants’ failure to implement the modified plan for redevelopment. The case was tried to a jury, and the jury rendered a verdict in favor of both defendants. The plaintiffs filed motions to set aside the verdict and for a new trial, which were denied by the trial court. This appeal followed.

I

We address first the plaintiffs’ claim that the trial court improperly refused to set aside the jury verdict and to grant their motion for a new trial. The crux of their claim is that the trial court directed the jury to render a defendant’s verdict in favor of the city. We disagree.

When the jury returned with its verdict, it indicated in response to the interrogatories that the city had breached the modified plan of redevelopment and that the breach was a legal cause of any loss that the plaintiffs may have sustained. The jury, however, used a plaintiffs verdict form, which stated: “The jury hereby finds the issues in favor of the plaintiffs against the City of West Haven and therefore finds for the plaintiffs to recover of the City of West Haven zero damages.” (Emphasis added.) The trial court recognized the inherent ambiguity in the jury’s verdict, that the intent of such a verdict is known only to the jurors and that such ambiguity, left unresolved, could result in the necessity of a full trial on both liability and damages. Malmberg v. Lopez, 208 Conn. 675, 683, 546 A.2d 264 (1988); see also Ginsberg v. Fusaro, 225 Conn. 420, 426-27, 623 A.2d 1014 (1993); Fox v. Colony T.V. & Appliance, Inc., 37 Conn. App. 453, 456, 656 A.2d 705 (trial court properly set aside verdict and granted new trial where plaintiffs verdict for zero damages); but cf. DiBartolomeo v. Hill, 41 Conn. App. 355, 359, 675 A.2d 1373 (1996) (on loss of consortium claim in personal injury action plaintiffs verdict with zero damages award not necessarily inadequate or ambiguous). The trial court, therefore, acted properly by directing the jury to retire and reconsider its verdict. See General Statutes § 52-223; Ginsberg v. Fusaro, supra, 425 n.5; see also Practice Book § 311.

After the jury returned with its amended verdict in favor of the city, the trial court was confronted with the dilemma that the verdict was not unanimous. Again, the trial court took the appropriate action. It instructed the jury that the verdict had to be unanimous and properly directed the jury to retire and reconsider its verdict. Contrary to the plaintiffs’ assertions, the court did not limit the jury as to the verdict that it could render, but, instead, provided the jury with the interrogatories and verdict forms for both a plaintiffs verdict and a defendant’s verdict and instructed that “whatever your decision is ... it has to be unanimous.” We conclude that, under the circumstances of this case, the trial court properly had the jury retire and reconsider its verdict. Moreover, after our review of the record, we conclude that at no time did the trial court direct the jury to render a verdict in favor of the city.

“The trial court’s refusal to set aside a verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness. ... If, on the evidence, the jury could reasonably have decided as they did, [the reviewing court] will not find error in the trial court’s acceptance of the verdict . . . .” (Citations omitted; internal quotation marks omitted.) Malmberg v. Lopez, supra, 208 Conn. 679. Amotion for a new trial requires the trial court to exercise appropriate judicial discretion. On appeal, the appropriate standard of review is abuse of discretion. State v. Hammond, 221 Conn. 264, 269-70, 604 A.2d 793 (1992). We conclude that the trial court properly accepted the jury’s final verdict and, thereafter, properly refused to set aside the verdict or to grant a new trial.

II

The plaintiffs’ second claim is that the trial court improperly granted five of the defendants’ motions to strike. We disagree.

We are persuaded by our examination of the record, briefs and arguments of the parties that the judgment of the trial court granting the motions to strike in favor of the defendants should be affirmed. In a thoughtful and comprehensive memorandum of decision, dated August 24, 1994, the trial court analyzed the facts and law in a manner consistent with our statutes and case precedents. Nothing would be accomplished by our recitation of what the trial court has already so ably stated. Accordingly, we adopt the trial court’s well reasoned decision; Lazaros v. West Haven, 45 Conn. Sup. 11, 697 A.2d 724 (1994); as a statement of the applicable law on these issues. See Southeastern Connecticut Regional Resources Recovery Authority v. American Ref-Fuel Co., 44 Conn. App. 728, 730, 692 A.2d 832 (1997).

The judgment is affirmed.

In this opinion the other judges concurred.

       We address this claim first given our decision to adopt the trial court’s memorandum regarding the motions to strike.

       We note that it is undisputed that the jury was unanimous in its conclusion that there was no breach and no causation as to the redevelopment agency and that the jury properly executed a verdict in favor of the redevelopment agency. Therefore, our discussion will focus on the jury’s verdict as it pertains to the city.

       General Statutes § 52-223 provides: "Jury may be three times returned to consider verdict. The court may, if it judges the jury has mistaken the evidence in the action and has brought in a verdict contrary to the evidence, or lias brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for the same reason may return them to a third consideration. The jury shall not be returned for further consideration after a third consideration.”

       Practice Book § 311 provides: "Jury Returned for Reconsideration
      “The court may, if it determines that the jury have mistaken the evidence in the cause and have brought, in a verdict contrary to it, or have brought in a verdict contrary to the direction of the court in a matter of law, return them for a second consideration, and for the like reasons may return them to a third consideration, and no more.”


author: FOTI, J.

text:
    THEODORE PAQUETTE v. NANCY L. HADLEY, COMMISSIONER OF MOTOR VEHICLES
    (AC 16094)
    Foti, Schaller and Spear, Js.
    Argued April 28
    officially released July 1, 1997

      John J. Carta, Jr., for the appellant (plaintiff).

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff appeals from the judgment of the trial court affirming the decision of the commissioner of motor vehicles (commissioner) to suspend his license pursuant to General Statutes § 14-227b and dismissing his administrative appeal. The plaintiff claims that the trial court improperly determined that (1) the police report was properly admitted into evidence, (2) sufficient evidence was presented to support the finding that probable cause existed to arrest the plaintiff, and (3) sufficient evidence was presented to support the finding that the plaintiff refused to submit to a blood alcohol test. We affirm the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. On July 8, 1995, at approximately 10 p.m., the plaintiff was involved in a motor vehicle accident in Groton. The plaintiff, who had been operating the vehicle, exchanged seats with a woman passenger before the arresting police officer arrived. The officer observed that the plaintiffs speech was slurred and that he had an odor of alcohol on his breath. The officer conducted a number of field sobriety tests that the plaintiff either failed or refused to perform. The plaintiff was arrested at the scene and transported to police headquarters. He was afforded an opportunity to contact an attorney. He was also advised of the mandatory alcohol testing requirements of the implied consent law. The officer completed a police report, including an A-44 report form, indicating that the plaintiff refused to be tested for his blood alcohol content.

The plaintiff requested an administrative hearing. After the hearing, the hearing officer determined affirmatively, pursuant to § 14-227b (f), that the police officer had probable cause to arrest the plaintiff for operating a motor vehicle while under the influence of intoxicating liquor, that the plaintiff was placed under arrest, that the plaintiff was operating the vehicle and that the plaintiff refused to submit to a test of the alcohol content of his blood. The plaintiffs operator’s license was suspended for two years.

The plaintiff appealed the decision to the Superior Court pursuant to General Statutes § 4-183. After considering the plaintiffs claims, essentially the same three claims raised in this appeal, the trial court dismissed the appeal. This appeal followed.

I

The plaintiff first claims that the police report, prepared and filed by the arresting officer, should not have been admitted into evidence because it relied on hearsay. He specifically argues that because the arresting officer did not personally observe the accident or the plaintiff operating the vehicle, and relied on the statements of two eyewitness bystanders, his A-44 report form and the narrative supplement to it, which included an admission by the plaintiff that he was operating the motor vehicle at the time of the accident, should not have been admitted as evidence. We disagree.

“The plaintiff bears the burden of demonstrating that a hearing officer’s evidentiary ruling is arbitrary, illegal or an abuse of discretion. Connecticut Natural Gas Corporation v. Public Utilities Control Authority, 183 Conn. 128, 139, 439 A.2d 282 (1981).” O’Sullivan v. DelPonte, 27 Conn. App. 377, 382, 606 A.2d 43 (1992). The plaintiff has failed to sustain his burden.

The provisions of General Statutes § 14-227b (c) and § 14-227b-19 of the Regulations of Connecticut State Agencies permit the admission of the police report on a form approved by the defendant, as the A-44 form has been, together with additional sheets or materials necessary to explain the report, which are considered part of the report.

Moreover, we have previously determined that a police report containing the hearsay statements of witnesses may be properly admitted at such an administrative hearing without requiring the witnesses’ presence at the hearing. See O’Sullivan v. DelPonte, supra, 27 Conn. App. 381. While police reports are normally admissible under the business records exception to the hearsay rule, statements of witnesses repeated in the report do not fall within this exception. Hutchinson v. Plante, 175 Conn. 1, 4-5, 392 A.2d 488 (1978). The plaintiffs statement, however, contained in that report is admissible as an admission. See Swenson v. Sawoska, 215 Conn. 148, 151, 575 A.2d 206 (1990). Furthermore, hearsay evidence itself is not prohibited in administrative proceedings by the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., which permits the introduction of oral or documentary evidence. Tomlin v. Personnel Appeal Board, 177 Conn. 344, 348, 416 A.2d 1205 (1979). We, therefore, conclude that the introduction of the police report into evidence was not improper.

II

The plaintiff next claims that the evidence was insufficient to support the finding that probable cause existed to arrest him. We do not agree.

“Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . .The determination of whether substantial evidence exists is subject to de novo review by this court. . . . Substantial evidence exists if the administrative record demonstrates a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Citations omitted; internal quotation marks omitted.) Labenski v. Goldberg, 33 Conn. App. 727, 732-33, 638 A.2d 614 (1994). If the commissioner’s determination to suspend the plaintiffs license is supported by substantial evidence in the record, that determination must be sustained. O’Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 507, 636 A.2d 409, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994).

The arresting officer, on the basis of current information from an eyewitness bystander that a motor vehicle had been involved in an accident and that the driver was attempting to evade responsibility, detained the plaintiffs vehicle, which had fresh damage to the left rear bumper. The officer asked the plaintiff, who was identified by two witnesses as the driver and who eventually admitted to being the operator, to exit the automobile. On the bases of the information supplied and his own observation of the plaintiff, including the plaintiffs performance of a field sobriety test, the officer arrested him for operating a motor vehicle while under the influence of intoxicating liquor. See Clark v. Muzio, 14 Conn. App. 212, 213, 540 A.2d 1063, cert. denied, 208 Conn. 809, 545 A.2d 1105 (1988). “Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that [an offense] had been committed.” (Internal quotation marks omitted.) State v. Torres, 182 Conn. 176, 189, 438 A.2d 46 (1980). We conclude, on the basis of the facts presented, that probable cause existed for the arrest of the plaintiff.

Ill

The plaintiff argues that the evidence was insufficient to support a determination that he refused to submit to the blood alcohol test. He argues that, although the A-44 report form contained a statement that he refused to submit to such a test, along with the name and signature of a witness to the refusal, there is no “factual explanation, description or basis for that conclusion” and the hearing officer could not make that a separate finding of fact. We do not agree.

The record before the hearing officer supports the determination that the police officer fully explained the testing procedure to the plaintiff and the consequences of a refusal to take the test, and that the plaintiff refused to take the test. The trial court noted “that there was no other evidence for the hearing officer to consider in this case. In particular, there was no evidence to contradict any of the evidence that was contained in the police report.” The evidence presented, therefore, would clearly support a finding that the plaintiff failed to take the test because he refused to do so. Any claim that the plaintiff failed to take the test because he was incapable is not supported by the record.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs license was suspended for a period of two years pursuant to General Statutes § 14-227b (h) due to his refusal to submit to a chemical alcohol test following his arrest for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a.

       The passenger, Maria Paquette, was the registered owner of the vehicle. Although the police officer did not personally observe the accident or the plaintiff operating the vehicle, two witnesses informed him that the plaintiff was operating the vehicle at the time of the accident. The plaintiff later admitted to the officer that he was operating the vehicle.

       The plaintiff was unable to perform successfully the horizontal gaze nystagmus, the walk-turn and the finger to nose tests. He refused to perform the one-leg stand test.

       General Statutes § 14-227b (a) provides in relevant part: “Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine . . . .”

       The A-44 report form is a form approved by the department of motor vehicles for processing individuals arrested for driving while under the influence of intoxicating liquor.

         General Statutes § 14-227b (f) provides in relevant part: “The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drag or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. . . .”

       General Statutes § 14-227b (c) provides in relevant part: “The police officer shall prepare a written report of the incident. . . on a form approved by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty or false statement ... by the arresting officer. . . .”

       Section 14-227b-19 of the Regulations of Connecticut State Agencies provides that the written report filed by the arresting officer shall be admissible into evidence at the hearing if it conforms to the requirements of General Statutes § 14-227b (c).

       We recognize, however, that “[i]f hearsay evidence is insufficiently trustworthy to be considered ‘substantial evidence’ and it is the only evidence probative of the plaintiffs culpability, its use to support the agency decision would be prejudicial to the plaintiff, absent a showing . . . that the appellant knew it would be used and failed to ask the commissioner to subpoena the declarants.” Carlson v. Kozlowski, 172 Conn. 263, 267, 374 A.2d 207 (1977). In the present case, the police officer included in his report of the incident the statements of eyewitnesses. The plaintiff knew the report existed and was highly likely to be introduced at the hearing. He, nevertheless, failed to subpoena the witnesses to impeach the report. The plaintiff has not sustained his burden of showing that the hearing officer’s evidentiary ruling was improper. See O’Sullivan v. DelPonte, supra, 27 Conn. App. 384.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. CHRISTOPHER DWYER
    (AC 16111)
    Foti, Schaller and Harrigan, Js.
    Argued February 21
    officially released July 1, 1997

      Dante R. Gallucci, for the appellant (defendant).

      SusannE. Gill, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smriga, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

After a jury trial, the defendant was convicted of murder in violation of General Statutes § 53a-54a and criminal possession of a firearm in violation of General Statutes § 53a-217. On appeal, he claims that the trial court abused its discretion by precluding a line of inquiry during the defendant’s direct examination, thereby depriving the defendant of a fair trial. We affirm the judgment of conviction.

During direct examination of the defendant, defense counsel inquired whether there came a time when the victim and a friend of the defendant named “Hagler” stopped living at the defendant’s house. The defendant answered affirmatively. When defense counsel asked why that occurred, the defendant responded “[b]ecause of what I heard they did.” The state objected on grounds of hearsay and relevance. After defense counsel argued as to relevance, the state asked for an offer of proof. The defendant agreed to present an offer of proof but the court declined, ruling, “It’s collateral,” and instructing defense counsel to “get to the events.” Defense counsel continued the examination on other matters relating to the shooting incident and the defendant’s relationship with Leeton Wright, the brother of the victim, and Hagler.

The defendant claims that the trial court improperly precluded him from offering testimony that would have revealed bias on the part of Wright. “ [E] very evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error. . . . The defendant’s rights to confront and cross-examine witnesses and to present a defense do not give him the right to have admitted any evidence he chooses. ... In the exercise of his rights, the defendant, as well as the state, must comply with the established rules of evidence and procedure. . . . Excluding certain evidence does not vitiate the defendant’s constitutional right to present a defense.

“We will not overturn a trial court’s evidentiary ruling unless there is an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . With respect to the trial court’s discretion, great weight is accorded the trial court’s decision and every reasonable presumption will be indulged in favor of its correctness. . . .” (Citations omitted; internal quotation marks omitted.) State v. Smith, 35 Conn. App. 51, 57-58, 644 A.2d 923 (1994).

In this case, the trial court, in ruling on the relevance of a single question and answer, did not preclude the defendant from pursuing an entire line of inquiry. The defendant was not prevented from pursuing the subject of Wright’s alleged bias through other questions on direct examination or through other evidence and other witnesses. Accordingly, we conclude that the trial court neither abused its discretion nor infringed the defendant’s right to a fair trial.

The judgment is affirmed.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.


author: SPEAR, J.

text:
    PETER GURAL v. DARLENE R. FAZZINO
    (AC 15931)
    O’Connell, Foti and Spear, Js.
    Submitted on briefs March 24
    officially released July 1, 1997

      Richard S. Cramer filed a brief for the appellant (plaintiff).

      Leon M. Kaatz filed a brief for the appellee (defendant).
   Opinion

SPEAR, J.

The sole issue in this case is whether the Home Improvement Act (act) bars an unjust enrichment claim for improvements that the plaintiff, a registered home improvement contractor, made to a house owned by the defendant, where the improvements were made during the time in which the plaintiff and the defendant lived together in the house. We conclude that the plaintiffs claim is outside the purview of the act and, accordingly, reverse the trial court’s judgment for the defendant.

The plaintiff commenced this action by way of a three count complaint alleging that (1) the defendant breached her promise to live with him for life in the subject property or in a house bought with the proceeds from the sale of the subject property, (2) the defendant misrepresented that she would live with him for life, inducing him to rely thereon and voluntarily to improve the subject property and (3) the defendant put him out of her house in contravention of their plan to live together permanently and she was unjustly enriched by the improvements that the plaintiff had made to the house.

The case was tried to the court. At the conclusion of the plaintiffs case, the court dismissed the second count of the complaint and rendered judgment for the defendant on the first and third counts. The plaintiff appeals only from the judgment for the defendant on the third count claiming unjust enrichment.

The trial court found the following relevant facts. The plaintiff and the defendant cohabited at premises owned by the defendant at 29 Penny Comer, Portland, from November, 1986, until late 1991. During that time, the plaintiff was a registered home improvement contractor. He made extensive improvements to the defendant’s house at a cost of approximately $52,000, not including the cost of labor. The termination of the parties’ relationship precipitated this action.

The trial court concluded that because there was no written contract for the improvements, the act precluded an award of damages for unjust enrichment. The trial court stated that cases from the Supreme Court and this court make clear that the act will “bar a contractor from recovering under every imaginable legal theory where a written contract either does not exist or fails to conform to the requirements of the [act]” except where there is bad faith on the part of the owner.

Whether the act applies to the circumstances of this case is a matter of statutory construction. “In interpreting the language of a statute, the words must be given their plain and ordinary meaning and their natural and usual sense unless the context indicates that a different meaning was intended. . . . When the language is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. . . . Indeed, [a] basic tenet of statutory construction is that when a statute ... is clear and unambiguous, there is no room for construction. . . .” (Citations omitted; internal quotation marks omitted.) Cashman v. Cashman, 41 Conn. App. 382, 385-86, 676 A.2d 427 (1996).

We conclude that the words of the applicable statutes are clear and we will apply them according to their plain meaning. We turn first to the definition section. General Statutes § 20-419 (5) defines a home improvement contract as “an agreement between a contractor and an owner for the performance of a home improvement.” General Statutes § 20-429 (a) (1) provides in pertinent part: “No home improvement contract shall be valid or enforceable against an owner unless it . . . [i]s in writing . . . .” The dispositive question on appeal is whether the alleged agreement constitutes a home improvement contract. We conclude that it does not.

First, nowhere in the third count, or indeed the entire complaint, does the plaintiff allege that there was an agreement between him and the defendant for the performance of a home improvement or that the improvements were a quid pro quo for the defendant’s promise to live with the plaintiff for life. Nor does the evidence disclose such an agreement or exchange. The “agreement” about which the plaintiff complains is an alleged plan that the parties would live together for life at the Penny Corner address “or in a house to be built on adjacent property with proceeds from the sale of said home.” The alleged wrong of which the plaintiff complains is not a refusal to pay for the improvements made by the plaintiff. Rather, the plaintiff complains that the defendant put him out of the house and refused to continue to live with him according to the plan.

In all of the cases discussed in the defendant’s brief and in the trial court’s memorandum of decision, the relationship that generated the dispute was that of contractor and owner. In all of the cases, the contractor was attempting to enforce an agreement to perform home improvements. See Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 576 A.2d 149 (1990) (refusal to enforce deficient agreement under theory of implied contract); A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 576 A.2d 464 (1990) (refusal to enforce nonconforming home improvement agreement under theory of quasi contract); Barrett Builders v. Miller, 215 Conn. 316, 576 A.2d 455 (1990) (refusal to enforce nonconforming home improvement agreement under theory of unjust enrichment); Caulkins v. Petrillo, 200 Conn. 713, 513 A.2d 43 (1986) (refusal to allow recovery under doctrine of full performance where home improvement agreement did not meet requirements of statute); Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn. App. 162, 604 A.2d 1339, aff'd, 224 Conn. 240, 618 A.2d 506 (1992) (refusal to enforce defective home improvement agreement under theory of waiver, estoppel or consent); Sidney v. DeVries, 18 Conn. App. 581, 559 A.2d 1145 (1989), aff'd, 215 Conn. 350, 575 A.2d 228 (1990) (refusal to enforce agreement under theory of quantum meruit). The outcome in each of those cases resulted from a failure to comply with the act. The Supreme Court and this court rejected alternative theories of liability and barred recovery by the contractor in each case.

Here, the termination of the relationship between “live-in lovers” spawned the dispute. It was not a dispute over the home improvements. We fail to see how a relationship of this nature would in any way constitute an agreement for the performance of a home improvement and thus bring the dispute within the act.

We are further persuaded that the act does not apply because of General Statutes § 20-419 (4), which provides in relevant part: “ ‘Home improvement’ does not include . . . (E) any work performed without compensation by the owner on his own private residence . . . .” Section 20-419 (6) defines owner as a person who “resides in a private residence . . . .” Pursuant to § 20-419 (4) and (6), what the plaintiff did was not a home improvement because he was an owner as defined in the statute and he did not seek or receive compensation for the work.

We also note that the puipose of the act is to protect home owners from unscrupulous contractors. The claimed improvements were not made pursuant to a contractor-owner relationship. Nothing in the allegations or evidence here triggers the need for the protection of the act.

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion to dismiss on the ground of the Home Improvement Act and for further proceedings according to law.

In this opinion the other judges concurred.

       General Statutes §§ 20-418 through 20-432 constitutes chapter 400 of the General Statutes known as 1he Home Improvement Act. The specific statutes that are relevant to this appeal will be set out as necessary in the opinion.

       The defendant made an oral motion to dismiss at the conclusion of the plaintiffs case. Practice Book § 302 provides in relevant part: “If, on the (rial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. . . .”

       General Statutes § 20-419 (4) defines home improvement as, inter alia: “[T]he repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation . . . of . . . any . . . building . . .

         That is the phrase the trial court used to describe the parties’relationship.

       The defendant offers no rebuttal to the plaintiff’s claim that what he did was not a home improvement because of § 20-419 (4) (E) and (6).