text:
    Pasquale M. Dinardo v. James F. Gelormino et al.
    (2283)
    Dannehy, C.P.J., Hull and Dupont, Js.
    Argued March 8
    decision released July 10, 1984

      Zbigniew S. Rozbicki, for the appellants (defendants).

      William C. Franklin, for the appellee (plaintiff).
   Per Curiam.

This is an action seeking the foreclosure of a mortgage. The defendants filed an answer containing three special defenses and filed a counterclaim. A state trial referee, acting as the trial court, rendered a judgment of strict foreclosure on the plaintiff’s complaint and rendered judgment for the defendants on their counterclaim in the amount of $325. From the judgment, the defendants appeal. The defendants claim that the trial court committed error in concluding (1) that the terms of the promissory note executed by the parties represented their complete agreement for its payment and (2) that the defendants had failed to establish the existence of an oral agreement obligating the plaintiff to complete the construction of roads and the installation of utilities for an entire subdivision, of which the defendants’ real estate was a part, as a condition precedent to payment of the promissory note.

Some of the facts are undisputed. The plaintiff conveyed a lot in a subdivision to the defendants. The defendants executed a promissory note secured by a mortgage on the lot which provided that it would be due within one year of its execution or when the real estate which was secured by the note was sold, whichever event occurred sooner. The note was not paid. A house was built on the land, but it was not sold. The plaintiff had not completed construction of all of the roads in the subdivision as of the date of trial.

The trial court found as facts that the land in question was located on an accepted highway, although it fronted on a road which had not been accepted by the town; that the plaintiff had filed a bond to insure the acceptance of the proposed streets; that the note was not conditional upon the acceptance by the town of the streets; and that there was no express agreement of the parties as to the completion or acceptance of the roads nor was there any misrepresentation by the plaintiff to the defendants. The trial court further found that the plaintiff had agreed in writing to install underground utilities to service the defendants’ realty but had not done so promptly, causing the defendants to expend an additional $325.

The conclusion of the trial court that the promissory note of the parties contained the entire agreement of the parties was not clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). A review of the transcript indicates that the plaintiff refused, before execution of the nóte, to modify its terms to provide that it would only be due upon sale of the mortgaged premises. The plain meaning of the words in the promissory note was the final word on the rights of the parties. Zullo v. Smith, 179 Conn. 596, 601, 427 A.2d 409 (1980).

The further conclusions of the trial court that there was no condition precedent to payment of the note and no oral agreement requiring the plaintiff to complete the road and utility work of the entire subdivision are not clearly erroneous. These conclusions are supported by the pleadings and the record as a whole and should not be disturbed.

There is no error.

       The first special defense alleges that the terms of the promissory note as executed were waived and modified to provide that the note would not be due until the house constructed by the defendants on the realty was sold; the second special defense alleges that the plaintiff breached his agreement to complete the construction of roads and the installation of underground utilities needed in order to make the defendants’ realty marketable; the third special defense asserts that such completion was a condition precedent to the payment of the note.

       The counterclaim incorporates the special defenses and seeks damages for the breach of the alleged agreement of the parties.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Zoning Board of Appeals of the Town of Sherman et al. v. Harold Bemis
    (2377)
    Dannehy, C.P.J., Hull and Borden, Js.
    Argued April 12
    decision released July 10, 1984

      AlanM. Kosloff, with whom, on the brief, were Austin K. Wolf and David L. Grogins, for the appellants (plaintiffs).

      Warren P. Joblin, with whom, on the brief, was Samuel J. Henderson, for the appellee (defendant).
   Per Curiam.

At oral argument, counsel for the plaintiffs, who filed the appeal in this case, candidly admitted to the court that the legal claims they advance here were never presented to the trial court; and that the trial court decided the case on the basis of the claims, theories and evidence presented to it by them. Furthermore, our examination of the record indicates that the claims presented to us in the plaintiffs’ brief and argument were totally unrelated to those presented in their preliminary statement of issues on appeal under Practice Book § 3012 (a). Under these circumstances we decline to consider the plaintiffs’ claims.

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).


text:
    New York Life Insurance Company v. Hartford National Bank & Trust Co. et al.
    (2315)
    Dannehy, C.P.J., Dupont and Hull, Js.
    Argued January 31
    decision released July 10, 1984

      Martin A. Gould, for the appellant (third party defendant trustee in bankruptcy).

      John B. Nolan, with whom, on the brief, was James J. Tancredi, for the appellee (plaintiff).
   Per Curiam.

This is an action originally brought by New York Life Insurance Company against Hartford National Bank to recover $180,000 for the failure of the bank to honor a letter of credit issued for James Minges and Richard Gordon, doing business as Talcott Village Company. New York Life Insurance Company and Talcott Village Company had executed an agreement pursuant to which a mortgage commitment was given to Talcott Village Company. The agreement also provided for a liquidated damages deposit of $180,000, in the event Talcott Village Company did not enter into a mortgage with the insurance company. In lieu of the deposit required, the bank issued an irrevocable letter of credit to the insurance company in that amount. Judgment was rendered for the insurance company against the bank in the primary action. New York Life Ins. Co. v. Hartford National Bank & Trust Co., 173 Conn. 492, 378 A.2d 562 (1977). The bank impleaded Minges and Gordon as third party defendants, claiming that both had guaranteed payment of the $180,000, and they counterclaimed against the bank. These claims have been settled. The trustee in bankruptcy for Minges in the present action alleges by its cross complaint against the insurance company that the company is not entitled to keep the entire $180,000. The sole issue on appeal is whether the trial court erred in holding that the liquidated damages provision in the loan commitment contract of the insurance company and Talcott Village Company was enforceable and that, therefore, the trustee could not recover any of the amount awarded to the insurance company.

Three conditions must be met in order to uphold a contractual provision for liquidated damages. They are (1) that the damages are uncertain or difficult to prove; (2) that the parties intended to liquidate damages in advance; and (3) that the amount is reasonable because it is not greatly disproportionate to the amount of damage which the parties assumed at the time of their contract would be sustained if the contract were breached. Norwalk Door Closer Co. v. Eagle Lock & Screw Co., 153 Conn. 681, 686, 220 A.2d 263 (1966). The trial court found that all three conditions were met on the basis of the facts of this case. The facts found were not clearly erroneous. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The damages arising from the failure of Talcott Village Company to borrow nine million dollars at an interest rate of 9 percent per annum were uncertain and would be difficult to prove. Walter E. Heller & Co. v. American Flyers Airline Corporation, 459 F.2d 896, 899 (2d Cir. 1972). The liquidation clause itself shows that the parties intended to fix for themselves, without judicial intervention, a sum acceptable to both which would prevail as damages in the event of a breach of contract. The amount of the liquidated damages set by the parties was reasonable, and not plainly disproportionate to the possible loss. Liquidated damages in the amount of 2 percent of the loan commitment is presumptively a reasonable sum to be retained upon breach of the contract. Vines v. Orchard Hills, Inc., 181 Conn. 501, 512, 435 A.2d 1022 (1980). Liquidated damages clauses in loan commitment agreements are valid if the actual damages are difficult to determine and the sum stipulated bears a rational relationship to the loss contemplated at the time the contract was executed. Walter E. Heller & Co. v. American Flyers Airline Corporation, supra; Harding v. Pan American Life Ins. Co., 452 F. Sup. 527 (E.D. Va. 1978); New York Life Ins. Co. v. G.H.C. Properties, Ltd., 361 F. Sup. 311 (M.D. Fla. 1972).

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       On appeal, New York Life Insurance Company raises the issue of whether the trustee has standing to assert the invalidity of the liquidated damages clause. The trial court does not discuss standing in its memorandum of decision. The insurance company did not file a cross appeal nor did it file a preliminary statement of issues. The failure to do either precludes review. Practice Book §§ 3003, 3012 (a); Lynch v. Davis, 181 Conn. 434, 437, 435 A.2d 977 (1980).


author: Hull, J.

text:
    Linda Slicer Young v. American Fidelity Ins. Co.
    (2378)
    Dannehy, C.P.J., Hull and Dupont, Js.
    Argued March 8
    decision released July 10, 1984

      JillE. Clayton, with whom, on the brief, was Richard A. Fuchs, for the appellant (plaintiff).

      George D. Royster, Jr., with whom, on the brief, was John W. Lemega, for the appellee (defendant).
   Hull, J.

This case raises the issue of whether, in order to recover insurance proceeds under a family combination automobile policy, the claimant has the burden of proving that the “nonowned automobile” in question had not been furnished for the regular use of the named insured or of any relative. This precise question is a matter of first impression in Connecticut.

The facts are not disputed.

On July 18, 1972, the plaintiff was riding as a passenger on a motorcycle in Manchester. While standing at a stop sign, the motorcycle was hit from behind by an automobile owned by Dennis Quigley of Manchester and driven by his brother David Quigley, who resided with his parents in South Windsor. As a consequence of the collision, the plaintiff sustained severe injuries including the loss of her left leg below the knee.

The plaintiff brought suit against both Quigley brothers and against a passenger in the Quigley automobile. See Slicer v. Quigley, 180 Conn. 252, 429 A.2d 855 (1980). The jury in that action found the defendants liable and rendered a judgment in favor of the plaintiff for $264,500. She subsequently collected the $20,000 face value of an insurance policy covering the automobile involved in the collision. The remaining $244,500 of the judgment remains unsatisfied.

The plaintiff brought the present action under General Statutes § 38-175 seeking to recover from the defendant insurer a portion of the unsatisfied judgment under a “Family Combination Automobile Policy” issued by the defendant to the parents of David Quigley, the driver of the car. The policy covered all relatives living at home who drive any nonowned automobiles. The defendant admits that David Quigley was a relative living at home. The policy also defines a nonowned automobile as “an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative . . . .”

The defendant raised the special defense that the driver, David Quigley, was furnished the car, a Fiat, for his regular use and was therefore not covered under the policy. At the conclusion of the plaintiffs case at trial, the defendant moved for a directed verdict which the court denied. In its charge to the jury, the court stated that the plaintiff had the burden of proof on the “regular use” issue. The jury returned a general verdict for the plaintiff and awarded her the full amount of the defendant’s $25,000 policy. On motion by the defendant, the court, M. Hennessey, J., set aside the verdict and rendered judgment for the defendant, stating that “the jury could not have reached the conclusion they did under the court’s charge.” The plaintiff appeals from the judgment notwithstanding the verdict.

The plaintiff briefed two principal issues: (1) whether the trial court erred in granting the defendant’s motion for judgment notwithstanding the verdict; and (2) whether the trial court improperly placed the burden of proving an exception to coverage on the plaintiff, rather than on the defendant.

We will first consider the question of burden of proof since our conclusion that the court erroneously allocated to the plaintiff the burden of proving that the nonowned Fiat was not furnished for the regular use of David Quigley, substantially disposes of the case.

The general rule in Connecticut was stated in Harty v. Eagle Indemnity Co., 108 Conn. 563, 565, 143 A. 847 (1928), as follows: “Under Hennessy v. Metropolitan Life Ins. Co., 74 Conn. 699, 703, 52 Atl. 490 [1902], Vincent v. Mutual Reserve Fund Life Asso., 77 Conn. 281, 286, 58 Atl. 963 [1904], Benanti v. Delaware Ins. Co., 86 Conn. 15, 18, 84 Atl. 109 [1912], Martoni v. Massachusetts Fire & Marine Ins. Co., 106 Conn. 519, 520, 138 Atl. 462 [1927], and Sortito v. Prudential Ins. Co., 108 Conn. 163, 142 Atl. 808 [1928], it has become the established law of this State that one instituting an action upon an insurance policy is only obliged to allege in his complaint, in general terms, that the various conditions precedent stated in the policy have been fulfilled; that it is then incumbent upon the defendant, by way of special defense, to set up such failures to comply with such conditions as it proposes to claim; that the burden rests upon the plaintiff to prove compliance with the conditions so put in issue, but that, as to other conditions precedent, compliance is presumed, without offer of proof by the plaintiff. . . . The Vincent and Benanti cases . . . recognize the underlying reason for the rule, that, in the interest of economy of time and effort and of simplicity of procedure, the plaintiff should be relieved of the necessity of pleading and proving facts which the defendant never proposes to put in actual issue.”

“In a case of this kind the plaintiff is not required to negative every possible defense under the policies. In the absence of special defenses his burden is satisfied when he proves his interest, his loss and compliance with the policy requirements as to proof of loss. Benanti v. Delaware Ins. Co., 86 Conn. 15, 18, 84 Atl. 109 [1912]. Where, however, the defendant raises the issue of violation of some particular condition of the policy by a special defense, the burden of proving this issue is on the plaintiff.” Manthey v. American Automobile Ins. Co., 127 Conn. 516, 519, 18 A.2d 397 (1941); accord Rochon v. Preferred Accident Ins. Co., 118 Conn. 190, 195, 171 A. 429 (1934).

On the other hand, the burden of proving an exception to a risk is on the insurer. O’Brien v. John Hancock Mutual Life Ins. Co., 143 Conn. 25, 29, 119 A.2d 329 (1955). A condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed. Black’s Law Dictionary (5th Ed.). “The object of an exception is to exclude that which would otherwise be included, to take special cases out of a general class.” Black’s Law Dictionary (5th Ed.). “By ‘exception’ of course is meant an exclusion of one or more of the risks otherwise generally insured against . . . .” Kirkby v. Federal Life Ins. Co., 35 F.2d 126 (6th Cir. 1929).

In Hill v. Employers’ Liability Assurance Corporation, 122 Conn. 193, 202, 188 A. 277 (1936), the defendant insurer had issued a blanket public liability policy which insured against loss or damage sustained by persons other than employees of the insured who were injured while on the insured premises. Following the issuance of the policy, a tenant of the insured was injured on a stairway in the insured’s building. The insurer pleaded as a special defense that the insured had undertaken structural alterations or repairs on the insured premises, that these alleged repairs had been done without the permission of the insurer, that the policy did not cover injuries due to hazardous conditions created by unauthorized alterations or repairs, and that the tenant-claimant’s injuries arose from hazardous conditions created by unauthorized repairs. The Hill court stated: “When a policy insures generally against a particular risk but contains a clause exempting the insurer from liability for a loss caused or arising in a specified manner, but which otherwise would have fallen within the general terms of the policy, that clause is to be regarded as having been inserted by way of proviso, and not as constituting a condition precedent, and should be so pleaded. . . . The clause here relied on was clearly such an exclusion, rather than a condition breach of which would entirely void the policy, and should have been pleaded and treated as such.” (Citations omitted.) Id; see also Firestine v. Poverman, 388 F. Sup. 948 (D. Conn. 1975); Fogarty v. Fidelity & Casualty Co., 120 Conn. 296, 299-300, 180 A. 458 (1935); Lounsbury v. Protection Ins. Co., 8 Conn. 458, 466 (1831).

A very similar question was involved in Rathbun v. Aetna Casualty & Surety Co., 144 Conn. 165, 128 A.2d 327 (1956). The court in that case stated: “The case has been reserved for advice upon the construction of a clause excluding coverage in an automobile liability insurance policy.” Id., 166. The stipulated facts were as follows: “The plaintiffs were passengers in a Willys private passenger automobile registered under the motor vehicle laws of this state in the name of Ina F. Rathbun and were injured on January 1, 1942, when this automobile, driven by Ina’s brother, Joseph A. Rathbun, Jr., struck a tree in Plainville. The injured passengers brought suit against the administratrix of Joseph, who was killed in the accident, and recovered judgments against her in her representative capacity. On the date of the accident, Joseph, as the owner of a Ford roadster, was insured with the defendant against liability for injuries caused in the operation of the Ford. The policy also contained a clause insuring Joseph in the operation of any other private automobile, provided, however, that this extended coverage did not apply ‘to any automobile [other than the one described in the policy] registered in the name of the named Insured or any member of the household thereof.’ ” Id., 166-67.

Although the court treated the matter as an exception, it did not allude to the burden of proof in deciding as a matter of law that, on the stipulated facts, Joseph’s sister, Ina, was a member of Joseph’s household within the meaning of the insurance policy.

The defendant in this case did not claim that the regular user provision is not an exception. Rather, it claimed that, on the authority of Rochon v. Preferred Accident Ins. Co., 118 Conn. 190, 171 A. 429 (1934), and Manthey v. American Automobile Ins. Co., 127 Conn. 516, 18 A.2d 397 (1941), the burden of proof should be on the plaintiff.

The defendant’s reliance on these cases is misplaced. In Rochon, the insurance policy included within its provisions any person operating the car of the insured with his permission. The operator of the car was only an insured if permission were proven. Likewise, in Manthey, the policy provided coverage only if the use were commercial. In each of these cases, the initial existence of coverage depended upon a finding of permission or commercial use. These requirements were clearly conditions precedent so that the burden of proof was on the claimant.

Unlike the claimants in Rochon and Manthey, David Quigley was admittedly an insured under the policy in this case as a relative of the insured parties, living at home and operating a nonowned automobile. The insurance policy sets forth the general insurance protection providing for the operation of nonowned automobiles by relatives. It is only in the definition of a nonowned automobile in the policy that it states that a nonowned automobile is one not furnished for the regular use of a relative.

We conclude that the regular use provision in the policy in this case is an exception to coverage, which the defendant insurer must allege and prove at the trial.

The question of whether or not the court erred in granting the defendant’s motion for judgment notwithstanding the verdict is determined by our decision on the issue of the burden of proof. Because the court erroneously placed the burden of proof on the plaintiff, its conclusion that she failed to meet this burden is nugatory. The court erred in setting aside the verdict.

Concerning the appropriate remedy, the plaintiff claims that there was sufficient evidence that the Fiat was not furnished for the regular use of David Quigley which would justify reinstating the verdict. In the memorandum of decision on the defendant’s motion for judgment notwithstanding the verdict, the only facts found by the court which are pertinent to this issue are (1) that the Fiat was owned by David Quigley’s brother Dennis, who lived in Manchester; (2) that the operator, David Quigley, lived in South Windsor; (3) that David Quigley’s parents owned two cars, a Comet and a Toyota, which he was permitted to use; and (4) that David Quigley did not use one automobile more than the other. At trial, neither party offered any other evidence on the question of regular use since each claimed that the other party had the burden of proof on this issue.

The evidence before the jury in the unusual stance of this case fell far short of that necessary to sustain the plaintiffs verdict. Although the jury, in its answer to a special interrogatory, found that the plaintiff had proven that David Quigley was not operating the 1971 Fiat as part of his regular use, it also found, in its answer to another special interrogatory, that the plaintiff had not proven the circumstances under which David Quigley had permission to operate the Fiat on July 18, 1972.

“ ‘[Although it is within the province of the jury to draw reasonable, logical inferences from the facts proven, they may not resort to speculation and conjecture.’ ” State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980).

There is error, the judgment is set aside and the case is remanded to the trial court for a new trial.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       In answer to a special interrogatory, the jury found that David Quigley was an additional insured under the policy.

       The plaintiff also claimed that the trial court erred in failing to instruct the jury that the plaintiff was entitled to a presumption of coverage because the defendant’s insurance policy was ambiguous. We do not find the policy ambiguous.

       As in Rathbun v. Aetna Casualty & Surety Co., 144 Conn. 165, 128 A.2d 327 (1956), we find it of no significance whether the exclusory language is found under the label of exclusions or within the list of definitions. It is the operative effect of the provision that determines whether it is a precondition or an exclusion.

       The defendant also relies upon other jurisdictions for authority. There is, however, a split of authority nationwide. The defendant cites Harter v. Country Mutual Ins. Co., 20 Ill. App. 2d 413, 419, 156 N.E.2d 243 (1959), as authority for the proposition that even where the regular use provision is interpreted as an exception, the burden of proof is on the claimant. The defendant also cites Kunze v. State Farm Mutual Automobile Ins. Co., 197 N.W.2d 685, 689 (N.D. 1972), and Boedigheimer v. Taylor, 178 N.W.2d 610, 614 (Minn. 1970), both of which do not specifically characterize a regular use provision as a condition precedent or an exception, but imply that such a provision is a condition precedent. These courts concluded that the burden of proof is on the claimant. See also 12A Couch, Insurance 2d § 45, p. 1087 (favors placing burden of proof concerning “regular use” provision on claimant).
      The plaintiff, on the other hand, cites Kenilworth Ins. Co. v. Cole, 587 S.W.2d 93 (Mo. Ct. App. 1979), Keplinger v. Mid-Century Ins. Co., 115 Ariz. 387, 565 P.2d 893 (1977), State Automobile & Casualty Underwriters v. Ishmael, 87 S.D. 49, 202 N.W.2d 384 (1972), and Giokaris v. Kincaid, 331 S.W.2d 633 (Mo. 1960), all of which treat the provision as an exception, placing the burden of proving regular use on the insurer.


text:
    James A. Solo v. Judith A. Solo
    (2303)
    Dannehy, C.P.J., Hull and Dupont, Js.
    Argued April 4
    decision released July 10, 1984

      Cynthia C. George, with whom, on the brief, were Samuel V. Schoonmaker III and Jonathan D. Elliot, for the appellant-appellee (plaintiff).

      Richard G. Kent, for the appellee-appellant (defendant).
   Per Curiam.

Each party to this dissolution of marriage action filed motions for modification of the unallocated alimony and support award in the original judgment. Each appeals from the court’s order which reduced the unallocated alimony and support award by $397 per month.

At the time of the dissolution on October 24, 1979, the plaintiff was ordered to pay $1400 per month as unallocated alimony and support, and to make the $700 monthly second mortgage payments on the parties’ residence until the mortgage was reduced to $37,500. The decree provided that the plaintiff husband could seek a modification of the court’s order only if the defendant earned more than $8500 per year. The plaintiff moved to modify the award downwards because the defendant obtained full-time employment four months after the original decree was rendered and because she was receiving additional rental income not available to her at the time of the decree. The defendant, on the other hand, moved to modify the award upwards because of the plaintiff’s increased earnings and her increased living expenses.

The trial court carefully considered the financial circumstances of the parties at the time of the original decree and at the time of the hearing on the requested modifications of the award. The court found a basis for modifying the award downwards because the defendant’s earnings at the time of the hearing exceeded the threshold amount provided in the decree.

In modifying the order, the court stated that its intent was to keep the parties in relatively the same financial position in which they had been placed by the prior order, giving appropriate consideration to the changed circumstances. The court used a formula to achieve this objective. The court found that the defendant’s income had increased $9459 annually, which amounted to a 526 percent increase since the dissolution was granted, and that her annual living expenses had increased $872 per month or 28 percent over such expenses regularly incurred by her at the time of the decree. In order to achieve its goal of placing the parties in relatively the same position in which they were put by the original decree, the court added $392 (representing 28 percent of the previous monthly award) to the original award of $1400 per month, thus amounting to $1792 per month. The court then subtracted $789 (representing the percentage of increase in the defendant’s monthly income) from that figure ($1792) and therefore reduced the award of $1400 per month to $1003 per month unallocated alimony and support.

Both parties thereafter filed motions to correct the order. The plaintiff claimed that the court erred in computing its order because the court included in the defendant’s monthly expenses her claim on her financial affidavit of a $700 monthly payment on the second mortgage which she claimed on her financial affidavit, but which the plaintiff was paying under the court order. The defendant moved to correct the order because the court’s computation of her increased income failed to consider income which she had at the time of the decree. She also argued in response to the plaintiff’s claim about the $700 monthly payment on the second mortgage that the payment should also have been excluded from the court’s calculations of the defendant’s 1979 expenses.

The court found that it had included the mortgage payment as an item of expense in both the 1979 and 1980 affidavits in calculating the change in the defendant’s expenses. The court stated that although it may have acted improperly in including the $700 item, it did not represent any change in the defendant’s expenses. Therefore, “so long as it was either included or excluded on both ends of the calculation, it would not significantly affect the result.” The court also found no merit in the defendant’s motion to correct. The court declined to correct or change its order of January 13, 1981, in any way.

The plaintiff’s appeal does not challenge the court’s formula. The plaintiff narrowly claims that the court erred in its calculation and that the court’s refusal to correct its modification by a greater reduction constituted an abuse of discretion. The defendant urged the upholding of the order on the basis of the use of the court’s formula but, in her cross appeal, she claimed various errors in the court’s application of the formula.

We agree with the court’s conclusion that the inclusion or exclusion of $700 monthly payment made no significant difference in the result as long as it was handled the same way in the 1979 and 1980 affidavits of the defendant. We conclude that the court’s modification order of January 13, 1981, and its refusal to change it violated neither law, logic nor reason. Sanchione v. Sanchione, 173 Conn. 397, 402, 378 A.2d 522 (1977). “This court may reject a factual finding if it is clearly erroneous, in that as a matter of law it is ‘unsupported by the record, incorrect, or otherwise mistaken.’ ” Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984), quoting Garrison v. Garrison, 190 Conn. 173, 176, 460 A.2d 945 (1983); see Practice Book § 3060D.

Because of the trial court’s advantageous position to assess the credibility factors significant to its determination, its decision will not be disturbed on appeal unless it acted illegally or unreasonably. Cummock v. Cummock, 188 Conn. 30, 35, 448 A.2d 204 (1982); Moore v. Moore, 187 Conn. 589, 591, 447 A.2d 733 (1982); Tutalo v. Tutalo, 187 Conn. 249, 251-52, 445 A.2d 598 (1982).

The ultimate test of the abuse of discretion standard is whether the court could reasonably conclude as it did. Koizim v. Koizim, 181 Conn. 492, 497, 435 A.2d 1030 (1980). We conclude that the court did not abuse its discretion and acted neither illegally or unreasonably.

There is no error concerning the appeal or the cross appeal.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Although this motion is unknown to the Connecticut Practice Book, its usage is common in domestic cases and was pressed by both parties. The court stated in its memorandum of decision on the motions to correct that it was “unaware of the existence of any procedural vehicle known as a motion to correct” by which it would have authority to change such an order. Since the court declined to correct or change the order of January 13,1981, we need not consider the propriety of this procedural creation of the domestic relations bar.

       This is not in dispute. The defendant never claimed that she had made any of the $700 monthly payments.


author: Dupont, J.

text:
    Nicholas Kavarco et al. v. T.J.E., Inc., et al.
    (2342)
    Hull, Dupont and Borden, Js.
    Argued February 7
    decision released July 17, 1984

      Harry Cohen, for the appellants (named defendant et al.).

      Michael J. Mannion, with whom, on the brief, was Karin NeJame, for the appellees (plaintiffs).
   Dupont, J.

The plaintiffs, alleging that they would not have purchased their unimproved lot in a certain subdivision absent a representation by the defendants that single family houses would be built on lots surrounding their land, sought to set aside the conveyance of that land to them. The trial court rendered judgment for the plaintiffs, ordering that they reconvey the real estate to the defendant T.J.E., Inc., and that the defendants repay them the original purchase price. From this judgment, the defendants appeal. The trial court also rendered judgment for a third party defendant, the real estate agent of the defendants, on a third party complaint in which the defendant, T.J.E., Inc., sought damages from the agent in an amount equal to any judgment rendered against it in favor of the plaintiffs.

The plaintiffs’ complaint alleges all of the elements of fraudulent misrepresentation. These are that a false representation was made as to a statement of fact, that it was untrue and known by the defendants to be untrue, that it was made to induce the plaintiffs to buy the realty, and that they acted upon the false representation to their detriment. J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983); Wedig v. Brinster, 1 Conn. App. 123, 132, 469 A.2d 783 (1983). The trial court made findings of fact in the plaintiffs’ favor regarding these allegations of the complaint. The trial court did not, however, state in its memorandum of decision what standard of proof was used in arriving at the findings.

Connecticut law has firmly established that fraud must be proven by a standard more exacting than that of a fair preponderance of the evidence. J. Frederick Scholes Agency v. Mitchell, supra. The standard of proof for some cases such as those involving the acquisition of title by adverse possession, the termination of parental rights, libel, fraud, or reformation of a deed or contract is that of clear and convincing proof, a standard greater than proof by a fair preponderance of the evidence but less than proof beyond a reasonable doubt. J. Frederick Scholes Agency v. Mitchell, supra; In re Juvenile Appeal (83-AB), 189 Conn. 58, 60, 454 A.2d 271 (1983); Lopinto v. Haines, 185 Conn. 527, 534-35, 441 A.2d 151 (1981); Dacey v. Connecticut Bar Assn., 170 Conn. 520, 534-37, 368 A.2d 125 (1976); Clark v. Drska, 1 Conn. App. 481, 486, 473 A.2d 325 (1984).

The trial court found various facts. Among them were that the defendants represented to the plaintiffs, through documents delivered by the defendants to their real estate agent, that the subdivision would be limited to single family residences, that the agent was duly authorized to so represent and did nothing to exceed his authority, that the plaintiffs would not have purchased the lot except for the representation that it would be surrounded by single family residences, and that the plaintiffs were damaged by the purchase of the realty.

On appeal, the defendants claim error in the trial court’s findings, in its failure to find other facts as requested in a motion “to reopen judgment [and] rectify records, ” and in the standard of proof required by the trial court to support a judgment for the plaintiffs.

The claim for relief of the plaintiffs is basically one seeking the equitable remedy of rescission. Their complaint alleges that their purchase was induced by the representation of the defendants to them that the defendants would develop or allow to be developed the surrounding lots in the subdivision as single family residences. It is undisputed that at the time of the conveyance to the plaintiffs all of the lots, including the one conveyed to them, were actually located in a multiple family zone under existing zoning laws, and that the warranty deed conveying title to them stated that the premises were conveyed subject to the “limitations of use imposed by governmental authority.” The offer to purchase signed by the parties stated that the buyers did not rely on any representations not contained in the document.

The litigants and the factfinder must know at the onset of the trial what standard of proof is to be applied. In re Juvenile Appeal (83-AB), supra, 60 n.2. In the event that the memorandum of the trial court is silent as to the standard of proof used, it will be assumed that the one ordinarily applied in most civil cases, that of a fair preponderance of the evidence, was used. Id., 59. If the trial court neither states nor implies that it is applying the proper standard of proof, it is impossible for an appellate court to determine whether the trial court, had it applied the required standard of proof, would still have rendered judgment as it did. Lopinto v. Haines, supra, 539. Whether the trial court has held a party to a less exacting standard than that which the law requires is a question of law, and, as such, is reviewable. Id., 536. Here, the court has found facts to substantiate its judgment, but it is impossible to glean from any language in the opinion what standard of proof was applied in order to find those facts. In such instances, a new trial is necessary.

Since the case must be retried, some of the claims raised by the defendants will be considered because they will recur. The defendants, on appeal, claim that rescission was improperly granted. Rescission of a contract is an appropriate remedy if there has been a material misrepresentation of fact upon which a party relied and which caused it to enter the contract. State v. Hartford Accident & Indemnity Co., 136 Conn. 157, 167, 70 A.2d 109 (1949). The material misrepresentation, when made in connection with the sale of land, may be an innocent misrepresentation. Slocum v. Leffler, 272 Or. 700, 701, 538 P.2d 906 (1975); see Albany Motor Inn & Restaurant, Inc. v. Watkins, 85 App. Div. 2d 797, 798, 445 N.Y.S.2d 616 (1981). At the option of the defrauded party, where there has been fraud in the inducement of the contract, the contract is voidable or subjects the defrauding party to a suit for damages. A. Sangivanni & Sons v. F.M. Floryan & Co., 158 Conn. 467, 472, 262 A.2d 159 (1969). The party defrauded has the option of electing either to rescind the contract or to claim damages for the breach of the contract. Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 409-10, 456 A.2d 325 (1983). To seek rescission is to waive any claim for damages arising from a breach of the contract. Duksa v. Middletown, 192 Conn. 191, 197, 472 A.2d 1 (1984). The remedy of rescission and restitution is an alternative to damages in an action for breach of contract. 12 Williston, Contracts (3d Ed. Jaeger) § 1455, p. 14. Rescission, simply stated, is the unmaking of a contract. It is a renouncement of the contract and any property obtained pursuant to the contract, and places the parties, as nearly as possible, in the same situation as existed just prior to the execution of the contract. A condition precedent to rescission is the offer to restore the other party to its former condition as nearly as possible. Duksa v. Middletown, supra; Keyes v. Brown, 155 Conn. 469, 476, 232 A.2d 486 (1967).

The defendants, in claiming that a judgment for rescission and restitution was unsupported by the law and evidence, raise the subsidiary question of whether the plaintiffs must prove that they were monetarily damaged by the conveyance to them. The equitable remedy of rescission is not barred because of the fact that the defrauded party suffered no pecuniary loss. Brett v. Cooney, 75 Conn. 338, 341-42, 53 A. 729 (1902); 1 Restatement (Second), Contracts § 164, comment c. The purchase of real estate for a residence happens infrequently in the lifetime of the average family. The very fact that the land did not have the fundamental characteristics which were attributed to it by the seller is sufficient in and of itself to show that the buyer suffered damage or irreparable harm. See Benassi v. Harris, 147 Conn. 451, 457,162 A.2d 521 (1960); Morrow v. Ursini, 96 Conn. 219, 221, 113 A. 388 (1921); 12 Williston, Contracts (3d Ed. Jaeger) § 1522. If damages would be inadequate for justice in a particular case, rescission and restitution is the proper remedy. Maruca v. Phillips, 139 Conn. 79, 83, 90 A.2d 159 (1952).

The defendants also claim that the alleged misrepresentation of the defendants related to a promise to act in the future which was not proven to be coupled with a present intention not to fulfill the promise. A representation about a promise to do something in the future, when linked with a present intention not to do it, is a false representation. Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970). Here, the defendants represented through two documents supplied to its real estate agent that only one family dwellings would be built on the remaining lots in the subdivision. After the conveyance to the plaintiffs, the defendants, in fact, constructed a multifamily dwelling within the subdivision and obtained permits to construct multi-family dwellings on other lots within the subdivision. A promise which relates to a future event may constitute actionable fraud if it is blended with a misrepresentation of a material fact and an evasion of the very promise, after the promisee has performed. 12 Williston, Contracts (3d Ed. Jaeger) § 1496, p. 374. On these facts, a reasonable inference is that the defendants had no intention at the time of the sale to the plaintiffs to develop or to allow the development of the surrounding lots for one family residences. Whether that conclusion will still obtain when the standard of proof by clear and convincing evidence is used remains to be determined upon a new trial.

The defendants assert that the plaintiffs should have learned for themselves that the realty conveyed to them was in an area zoned for multi-family homes. The plaintiffs claim that this issue cannot be raised on appeal because it was not pleaded as a special defense and was not raised in the defendants’ preliminary statement of issues. It is not raised per se in the statement of issues except insofar as it is included in the issue of whether the trial court erred in failing to make the findings requested in the defendants’ “motion to reopen judgment, rectify records and reargue.” One of the findings requested was that the plaintiffs should have sought protection from their attorney by having a restrictive covenant placed in the offer to purchase, in the contract, or in the deed, and that the plaintiffs were at fault in relying on the documents given by the defendants to their real estate agent. Since the defendants did raise as an issue the failure of the trial court to make a finding on this issue, it has been preserved for review on appeal.

The recent weight of authority is that the right to rescind a contract for the sale of land, or a contract for the sale of a business, or a lease, is not necessarily destroyed because the buyer failed to make an independent investigation which would have revealed that the representation upon which he relied was false. See Pacelli Bros. Transportation, Inc. v. Pacelli, supra, 409; Besett v. Basnett, 389 So. 2d 995, 998 (Fla. 1980); National Conversion Corporation v. Cedar Building Corporation, 23 N.Y.2d 621, 627-28, 246 N.E.2d 351, 298 N.Y.S.2d 499 (1969); Slocum v. Leffler, supra, 704; Wilson v. Zimmerman, 261 Or. 528, 532-33, 495 P.2d 713 (1972).

To shield a seller with a buyer’s negligence in not finding out whether the representation was true or false would be to give a seller the fruit of his falsehood. The defendants’ argument raises the issue of whether the law should choose either to allow the person who fraudulently misrepresented a basic fact to use the armament of caveat emptor to escape liability, or not to require the person to whom the misrepresentation was made to conduct an independent investigation as to the truth of an ascertainable fact. The Restatement chooses the latter. 2 Restatement (Second), Torts § 540. This court does also.

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

In this opinion the other judges concurred.

       The defendants are T.J.E., Inc., and Davis and Sunderland, Inc. The former corporation is a successor corporation to the latter. The plaintiffs purchased the realty from Davis and Sunderland, Inc., which later conveyed the remaining lots in the subdivision to T. J.E., Inc. In this opinion, the word “defendants” applies to both corporations.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       No appeal was taken from the judgment for the third party defendant.

       The plaintiffs argue that the defendants may not raise this issue, having not filed a motion to strike the legal sufficiency of the plaintiffs’ prayer for relief. Practice Book § 152 (2). A claim that a judgment of rescission is not supported by the law and the evidence is different from a claim that the particular cause of action as alleged in a complaint will not support the claim for relief. The former claim relates to the failure of proof after a trial and the latter to a claim, before trial, that, assuming the truth of the allegations in the complaint, the relief sought could not be legally awarded to the plaintiff. The plaintiffs sought damages and rescission. There are instances, not applicable here, where the evidence is such that both remedies are available. If, for example, repudiation of the contract requires that restitution for sums paid prior to rescission are the direct consequence of the fraudulent act of which the plaintiff complains, damages are also recoverable. National Conversion Corporation v. Cedar Building Corporation, 23 N.Y.2d 621, 629, 246 N.E.2d 351, 298 N.Y.S.2d 499 (1969). A defrauded party may affirm the contract and sue for damages, seek rescission and restitution of any consideration paid, or seek rescission and any consequential damages. 13 Am. Jur. 2d, Cancellation of Instruments § 16; 12 Williston, Contracts (3d Ed. Jaeger) §§ 1523 through 1525.

       In the present case, the plaintiffs offered, at a prior hearing, to reconvey the lot for the same price at which it had been purchased, and they tendered a deed at the trial. Although better practice would be to plead the condition precedent, there is evidence, as herein stated, that the plaintiffs had attempted to comply with the condition. See Duksa v. Middletown, 192 Conn. 191, 197 n.5, 472 A.2d 1 (1984).


text:
    Vincent A. Esposito v. Eleanor Cohen et al.
    (2396)
    Dannehy, CP.J., Dupont and Borden, Js.
    Argued May 1
    decision released July 17, 1984

      Joseph F. SJcelley, Jr., with whom, on the brief, was Peter Dorsey, for the appellants (defendants).

      David M. Reilly, with whom was Anthony J. Lósala, for the appellee (plaintiff).
   Per Curiam.

There is no error.


author: Dannehy, C.P.J.

text:
    Jerome W. Geckle, Trustee v. Orest T. Dubno, Commissioner of Revenue Services
    (2438)
    Dannehy, C.P.J., Dupont and Borden, Js.
    Argued April 5
    decision released July 17, 1984

      Charles B. Milliken, with whom were Thomas M. Divine and, on the brief, Charles L. Howard, for the appellant (plaintiff).

      Richard K. Greenberg, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Dannehy, C.P.J.

The only issue in this appeal is whether the Connecticut sales tax applies to a dollar-for-dollar reimbursement by a lessee to a lessor of ad valorem personal property taxes assessed against and paid by the lessor. ■

The plaintiff is the trustee of the D. L. Peterson Trust which leases motor vehicles on a net-lease basis to customers located within the state of Connecticut. The lessees are required to pay a monthly rental fee and sales tax based on that amount. The lessees are also required to pay other costs incurred in connection with the use of the vehicles during the lease term including but not limited to all taxes (except any tax measured by the net income of the lessor) on or relating to the vehicles. It is the plaintiff’s custom to pay ad valorem personal property taxes directly to the various towns in which the vehicles are located and to bill the lessees for the precise amount of the taxes he pays.

For the tax periods ending March 31,1978, through February 28,1981, the plaintiff did not pay sales taxes on the amounts received from the lessees as reimbursement for personal property taxes under the foregoing arrangement. The defendant commissioner of revenue services consequently imposed a deficiency assessment for those periods. The plaintiff’s subsequent petition for a reassessment was denied, and he then appealed to the Superior Court which dismissed the action, finding that the deficiency assessments had been properly imposed. The plaintiff now appeals from that judgment.

The plaintiff does not question that the lease of the vehicles is taxable as a “sale” under the Sales and Use Tax Act. Rather, he disputes that the reimbursement is an item of the “sales price” or “gross receipts” and therefore subject to the tax. He bases his argument on the premise that such payments are unrelated to the actual transfer arising through the “leasing or rental of tangible personal property . . . .”

The operative phrase “sales price” is defined in General Statutes § 12-407 (8) as “the total amount for which tangible personal property is sold ... or the total amount of payment or periodic payments received for leasing or rental of tangible personal property . . . without any deduction on account of any of the following: (a) The cost of the property sold; (b) the cost of materials used, labor or service cost, interest charged, losses or any other expenses . . . .” (Emphasis added.)

“Gross receipts” is defined in General Statutes § 12-407 (9) as “the total amount of the sales price . . . or the total amount of payment or periodic payments received for leasing or rental of tangible personal property . . . without any deduction on account of any of the following: (a) The cost of the property sold. . . . (b) the cost of the materials used, labor or service cost, interest paid, losses or any other expense . . . .” (Emphasis added.) Section 12-407 (9) also sets forth items which are not to be included and, significantly, lists as the only tax excluded “the amount of any tax . . . imposed by the United States upon or with respect to retail sales . . . .”

It is the law that taxing statutes are to be strictly construed. Naylor v. Brown, 166 Conn. 581, 587, 353 A.2d 709 (1974). “If there is no ambiguity in the language of the statute, it does not become ambiguous merely because the parties contend for different meanings. In the absence of ambiguity, it is unnecessary to resort to principles of statutory construction such as the resolution of ambiguity in favor of the taxpayer. Harris Data Communications, Inc. v. Heffernan, 183 Conn. 194, 198, 438 A.2d 1178 (1981).” Caldor, Inc. v. Heffernan, 183 Conn. 566, 571, 440 A.2d 767 (1981).

In his brief, the plaintiff has urged us to consider the law of Ohio when interpreting the Connecticut sales tax statute. This we have done in recognition of the fact that our state's sales and use tax is based substantially on the Ohio statutes and, therefore, “the decisions of that court have more than passing interest in the examination and applicability of our sales and tax statutes.” Columbia Pictures Industries, Inc. v. Tax Commissioner, 176 Conn. 604, 610, 410 A.2d 457 (1979). We fail, however, to find in the Ohio cases cited by the plaintiff any support for the position he maintains.

In particular, Material Contractors, Inc. v. Donahue, 14 Ohio St. 2d 19, 235 N.E.2d 525 (1968), dealt with an arrangement whereby equipment was leased at a fixed rent with additional payments required for maintenance, repairs, fuel and license fees. In holding that only the amounts paid as rent could be considered in determining the sales price, the court relied upon the language of the Ohio sales tax statute which expressly excluded the additional payments in question. Bunker-Ramo Corporation v. Porterfield, 21 Ohio St. 2d 231, 257 N.E.2d 365 (1970), addressed the issue of whether the transmission for a monthly fee of stock and commodity information to subscribers by way of electronic equipment was a personal service transaction and, therefore, not subject to the sales tax. Having decided that those activities were taxable, the court allowed a reduction of the tax to the extent that the taxpayer collected and remitted exchange fees from its subscribers to the commodity exchanges. In doing so, it was acting “merely as a collecting agent for the exchanges.” Id., 238. The third case cited by the plaintiff, Copeland Corporation v. Lindley, 50 Ohio St. 2d 33, 361 N.E.2d 1344 (1977), held that a monthly charge as consideration for a lessor’s transfer of licenses and registrations to its lessees was taxable. None of these cases involved payments to a lessor for personal property taxes, and none involved expenses which the taxpayer was, by law, required to pay.

We thus find that the Ohio cases to which our attention had been drawn so differ on their facts from this case that they shed no light on the question before us.

The plaintiff here was himself responsible for listing the personal property with the tax assessor of each town in which the property was located, and for the payment of the taxes imposed thereon. General Statutes §§ 12-32, 12-71 and 12-71b; Consolidated Diesel Electric Corporation v. Stamford, 156 Conn. 33, 39, 238 A.2d 410 (1968). Unlike the other out-of-pocket items for which the leases required reimbursement, such as parking and operating tickets, the plaintiff was statutorily obligated to pay the personal property taxes on the vehicles as an expense integral to his business. We consequently find that the payments by the lessees to the plaintiff under the reimbursement arrangement comprise part of the total amount of payment or periodic payments received for the rental of personal property and thus fall within the definitional language of the Sales and Use Tax Act. We are bound to conclude, therefore, that those payments are subject to the sales tax.-

There is no error.

In this opinion the other judges concurred.

       Two of the three lease agreements used by the plaintiff contain the following provision: “9. Expenses, Fees, Taxes The lessee shall pay all costs, expenses, fees and charges incurred in connection with the titling and registration of vehicles and the use and operation of vehicles during the lease terms thereof, including but not limited to gasoline, oil, grease, repairs, maintenance, tires, tubes, storage, parking, tolls, fines, registration and license fees and tags, and all taxes whatsoever by whomsoever payable (except any tax measured by the net income of the Lessor) on or relating to the vehicles leased hereunder and the purchase, sale, rental, use or operation thereof. The Lessee shall reimburse to the Lessor upon demand as additional rent the amount or amounts of any such costs, expenses, fees, charges and taxes paid by the Lessor . . . .” The third lease agreement contains similar language.

       The plaintiff engages in this practice to ensure that the taxes are timely paid and thereby to avoid any possible penalties which might arise from the failure to do so.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       General Statutes §§ 12-406 et seq. The sales tax was imposed in accordance with § 12-408 (1): “For the privilege of making any sales as defined in subsection (2) of section 12-407, at retail, in this state for a consideration, a tax is hereby imposed on all retailers at the rate of seven and one-half per cent of the gross receipts of any retailer from the sale of all tangible personal property, except as hereinafter provided, sold at retail . . . .”
      Section 12-407 (2) provides in relevant part: “ ‘Sale’ and ‘selling’ mean and include . . . (j) the leasing or rental of tangible personal property of any kind whatsoever, including but not limited to motor vehicles . . . .”

       No claim was made that the sales tax was due on the amounts paid for license fees. Material Contractors, Inc. v. Donahue, 14 Ohio St. 2d 19, 23, 235 N.E.2d 525 (1968).

       Ohio Rev. Code Ann. § 5739.01 et seq.


text:
    Dona Robinson v. ITT Continental Baking Co.
    (2413)
    Dannehy, C.P.J., Hull and Borden, Js.
    Argued April 10
    decision released July 24, 1984

      Jesse M. Frankl, with whom was Dean F. Radke, for the appellant (defendant).

      Gilbert Shasha, with whom, on the brief, was Barry J. Ward, for the appellee (plaintiff).
   Hull, J.

The defendant appeals from a judgment rendered for the plaintiff in the amount of $22,500 after a jury trial, and from the denial of both its motion to dismiss and its motion to set aside the verdict.

In July of 1979, the plaintiff, Dona Robinson, commenced this action to recover damages for personal injuries which she suffered after swallowing a cupcake made by the defendant that contained slivers of glass. The plaintiff, who injured her throat, filed a four count complaint alleging negligence, breach of express and implied warranties and products liability. The plaintiff, a resident of Maryland, purchased the cupcake in Maryland. The cupcake was manufactured in Massachusetts by the defendant, a corporation organized and incorporated under the laws of the state of Delaware. The defendant corporation was authorized to do business in Connecticut.

In August of 1979, the defendant’s counsel entered an appearance, and thereafter filed answers to the complaint and engaged in extensive discovery proceedings as well as a pretrial conference. On February 24,1982, approximately one and one half years after the suit was instituted, the defendant filed a motion to dismiss alleging a lack of both subject matter and personal jurisdiction. The trial court denied the motion to dismiss. In so doing, the court addressed only the claim regarding absence of personal jurisdiction while remarking that the motion to dismiss was somewhat “ambiguous as to the ground asserted.” The court found that the defendant had waived any right to assert lack of personal jurisdiction because the issue of personal jurisdiction was not raised by way of a motion to dismiss within thirty days of the filing of the defendant’s appearance.

On appeal, the defendant claims that the court erred (1) in holding that the motion to dismiss asserted only a lack of personal jurisdiction; (2) in failing to grant the motion to dismiss for either a lack of subject matter jurisdiction or under the doctrine of forum non conveniens; (3) in that the award of damages was clearly excessive and the motion to set aside the verdict should have been granted; and (4) in opening the judgment to add interest.

I

Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. England v. Coventry, 183 Conn. 362, 364, 439 A.2d 372 (1981); Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 111-12, 438 A.2d 834 (1981). A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., supra, 112. In determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction shall be indulged. Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 421 n.3, 426 A.2d 1324 (1980); Diaz v. Board of Directors, 2 Conn. App. 43, 476 A.2d 146 (1984). The source of the jurisdiction of a court is the constitutional and statutory provisions by which the courtis created. C.S.E.A., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 456, 334 A.2d 909 (1973). The Superior Court of Connecticut “shall be the sole court of original jurisdiction for all causes of action . . . .” General Statutes § 51-164s; see LaBella v. LaBella, 134 Conn. 312, 316, 57 A.2d 627 (1948). The plaintiffs cause of action in this case is recognized under the statutes of this state. See General Statutes §§ 42a-2-313 through 42a-2-315 (breach of express and implied warranties); General Statutes § 52-5721 (negligence); General Statutes § 52-572n (product liability). There is no question that the court had subject matter jurisdiction over this cause of action.

As to the claim regarding a lack of personal jurisdiction, the court quite properly found this claim to be waived as a result of the defendant’s failure to raise it within thirty days from the filing of its appearance. Practice Book § 142.

The defendant, however, further contends that the court should have granted the motion to dismiss under the doctrine of forum non conveniens. We find that the defendant cannot prevail on this claim for two reasons. First, the defendant asserts that under certain circumstances, after considering the probability that the court may be unable to enforce its decree and whether complete justice can be done in the present forum, the court may decline to accept jurisdiction over the case. The defendant cites Frick v. Hartford Life Ins. Co., 98 Conn. 251, 256, 119 A. 229 (1922), as support for this claim. Under this theory, the exercise of jurisdiction would be a matter of discretion, the abuse of which we do not find in this case.

Second, the defendant did not raise the issue of forum non conveniens in its motion to dismiss. The defendant’s motion was based upon an express claim of lack of subject matter jurisdiction; yet, the substance of the defendant’s argument, in its motion, reflected a claim of lack of personal jurisdiction. The defendant did not claim in its motion that the court did have jurisdiction but should decline it, in the interests of justice, on the ground that Connecticut was not the best forum for deliberation of the merits of the suit. We will not, therefore, consider this claim now. For this court to consider an issue on appeal, that issue must be distinctly raised below, not just briefly suggested. Practice Book § 3063; McKiernan v. Caldor, Inc., 183 Conn. 164, 166, 438 A.2d 865 (1981).

II

The plaintiff was awarded $22,500 in damages for the injuries which she sustained. The defendant claims that this award was excessive and argues that the court, as a result, should either find error in the court’s denial of the defendant’s motion to set aside the verdict or, in the alternative, order a reasonable remittitur. The defendant did not request a remittitur below. The defendant contends that there was no evidence presented concerning the permanency of the injuries sustained by the plaintiff nor any evidence concerning the duration of pain. The plaintiff suffered a laceration to her left pyriform sinus and a swelling of the surrounding area including the larynx. Contrary to the defendant’s contention, there was testimony concerning the effect of the injuries upon the strength, audibility and octave level of her voice. It is axiomatic that a resolution of the credibility of witnesses is strictly a matter for the trier of facts. Williams v. Salamone, 192 Conn. 116, 123, 470 A.2d 694 (1984).

The matter of damages is peculiarly within the province of the trier of fact. Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978); Jonap v. Silver, 1 Conn. App. 550, 560, 474 A.2d 800 (1984). The court should not interfere with the jury’s determination except when the verdict is plainly excessive or exorbitant. Pisel v. Stamford Hospital, 180 Conn. 314, 342-43, 430 A.2d 1 (1980); Jonap v. Silver, supra. “A trier of facts can conclude, by inference, that an injury will be permanent even though there is no medical testimony expressly substantiating permanency.” Royston v. Factor, 1 Conn. App. 576, 577, 474 A.2d 108 (1984). Damages in personal injury cases cannot be computed mathematically, nor does the law furnish any precise, definite rule for their assessment. Royston v. Factor, supra. The trier of fact must evaluate the elements of damages relevant to the case and place a monetary value on them. Kiniry v. Danbury Hospital, 183 Conn. 448, 461, 439 A.2d 408 (1981); Royston v. Factor, supra. The award of damages in this case was not excessive or exorbitant and in no way shocked the sense of justice. Kiniry v. Danbury Hospital, supra.

The defendant further asserts that in November of 1982, several months after the filing of this appeal, the plaintiff filed a motion to open and correct the judgment, requesting that the court add interest to the judgment pursuant to Practice Book § 350. The court granted the motion over the defendant’s objection and corrected the judgment to include interest in the amount of $2388 in the award.

A motion to open judgment is addressed to the discretion of the court. Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466-67, 440 A.2d 159 (1981). Upon review, this court is limited to a determination of whether the trial court abused its discretion in opening the judgment and we must make every reasonable presumption in favor of its action. Id., 467.

It must be noted that this issue, the opening of the judgment for purposes of adding interest to the award, arose subsequent to the filing of the appeal. The record does not reflect the proceedings. The defendant, furthermore, failed to file an amended appeal pursuant to Practice Book § 3062 or to file an amended preliminary statement of issues pursuant to Practice Book § 3012. This court will not consider issues which are brought to the court’s attention for the first time by way of the appellant’s brief.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The defendant's motion to dismiss was brought “pursuant to Sections 142 and 145 of the Connecticut Practice Book.” Section 142 is the general procedural section and § 145 deals specifically with claims concerning lack of subject matter jurisdiction. The court found that while the defendants, by citing § 145, alleged a lack of subject matter jurisdiction, the motion itself read more like a personal jurisdiction claim. The court stated that the defendant has “not characterized the issue before the Court as subject matter jurisdiction and it does not appear to be so.”

       Practice Book § 142 provides in part: “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.”
      Practice Book § 145, however, provides that “[a]ny claim of lack of jurisdiction over the subject matter cannot be waived . . . .”

       There is authority for the proposition that where a post judgment motion and order are not in the printed record but are in the file, the court may take judicial notice of the contents of the file. Friedlander v. Friedlander, 191 Conn. 81, 84 n.2, 463 A.2d 587 (1983); Krawiec v. Kraft, 163 Conn. 445, 451, 311 A.2d 82 (1972).

       Practice Book § 3062 provides: “Should the trial court, subsequent to the filing of the appeal, make a ruling which the appellant desires to have reviewed by the supreme court, the appellant shall amend his appeal, filing notice thereof with the chief clerk of the supreme court within twenty days from the issuance of notice of the ruling. The appellant may file an amendment to his preliminary statements of issues to present any claimed errors of law arising out of such a ruling at the time he files the notice.” The failure to comply with § 3062 constitutes a ground for the court to refuse to consider the claim of error. Costello v. Costello, 186 Conn. 773, 778-79, 443 A.2d 1282 (1982).
      Likewise, the failure to set out a claim of error in the preliminary statement of issues may be fatal to its consideration on appeal. See State v. Ouellette, 190 Conn. 84, 101 n.13, 459 A.2d 1005 (1983); Presutti v. Presutti, 181 Conn. 622, 626, 436 A.2d 299 (1980). Finally, the failure to comply with § 3062 has been found to be a sufficient ground to refuse review even where an amended preliminary statement of issues has been filed. Brown v. Brown, 190 Conn. 345, 350-51, 460 A.2d 1287 (1983).


author: Dannehy, C.P. J.

text:
    Joyce Nodden Ritcher v. Donald E. Childers
    (2414)
    Dannehy, C.P.J., Hull and Dupont, Js.
    Argued February 29
    decision released July 24, 1984

      John A. Ackerly, with whom, on the brief, was James W. Kaufman, for the appellant (defendant).

      John Keogh, Jr., with whom, on the brief, was Robert L. Genuario, for the appellee (plaintiff).
   Dannehy, C.P. J.

The plaintiff brought this action against the defendant, her former husband, to obtain arrearages in child support. It is undisputed that the plaintiff and the defendant were granted a divorce by the Superior Court of DeKalb, Georgia, on March 12, 1974. The judgment incorporated a written agreement of the parties providing in pertinent part that the defendant would pay $850 a month as child support. The present action was instituted by writ and complaint dated March 13, 1981, and made returnable to the Superior Court in the judicial district of Fairfield at Bridgeport. The defendant filed an answer which amounted to a general denial. In addition, he filed a two count counterclaim. The first count of the counterclaim is the pleading in issue here. It alleged, inter alia, that on or about October 16, 1977, John Russell Childers, a minor child of the parties, was killed in an automobile accident in Georgia; that the plaintiff, without advising the defendant, commenced an action in Georgia for the wrongful death of the child; that the plaintiff settled the case on April 23,1981, for the sum of $40,000; and that the plaintiff has refused to share the proceeds with the defendant as required by law.

The pleading is grounded on § 74-108 (b) of the Georgia Code, as amended in 1980. This statute provides for shared recovery between parents for the wrongful death of a minor child and became effective March 25, 1980, while the plaintiffs wrongful death action was still pending. The plaintiff denied that she was required by law to share recovery with the defendant and asserted as a special defense Ga. Code § 105-1307, Georgia’s wrongful death statute in effect at the time of the death which reposed the right of recovery in the mother alone. The defendant’s reply contested the applicability of § 105-1307 since the statute had been repealed prior to the plaintiffs institution of the wrongful death suit on October 2, 1979.

Thereafter, with the pleadings closed, the plaintiff moved for summary judgment on the first count of the defendant’s counterclaim. The trial court granted the plaintiff’s motion and rendered judgment on the first count of the counterclaim, and the defendant appealed.

This was a proper case for summary judgment procedure. The pleadings, affidavits and other proof submitted demonstrated that no genuine issue of fact existed which warranted trying the first count of the counterclaim. Neither party disputed that Georgia law applied. The sole question for determination was which Georgia wrongful death statute, Ga. Code § 105-1307, repealed effective April 4, 1979, or Ga. Code § 74-108 (b), as amended in 1980, applied. On the authority oí McDaniel v. Bliss, 156 Ga. App. 166, 274 S.E.2d 138 (1980), the trial court concluded that § 105-1307, the wrongful death statute in effect on October 16, 1977, the date of the child’s death, was the operative statute and that the plaintiff was entitled to judgment as a matter of law with regard to count one of the counterclaim.

In McDaniel v. Bliss, supra, the Georgia Court of Appeals held that the right of recovery for loss of services by the father of an injured child is governed by the statute in effect at the time of the injury. The defendant claims that the trial court erred in relying exclusively on McDaniel v. Bliss, supra, and that it overlooked the case of Harden v. United States, 485 F. Sup. 380 (S.D. Ga. 1980), where it was held that the wrongful death statute enacted during the pendency of the litigation applied even though § 105-1307 was the statute in effect at the time of the death and at the time suit was instituted.

The theory upon which a case is tried in the trial court cannot be changed on review, and an issue not presented to or considered by the trial court cannot be raised for the first time on review. Moreover, an appellate court should not consider different theories or new questions if proof might have been offered to refute or overcome them had they been presented at trial. Neither the record nor the defendant’s brief and appendix discloses that the defendant, during argument on the plaintiff’s motion, sought to have the court take judicial notice of Harden or of any other reported decision of Georgia. “Where another jurisdiction’s law is applicable, it is the duty of counsel to supply the court with a clear understanding of that foreign law.” Angier v. Barton, 160 Conn. 204, 211, 276 A.2d 782 (1970). Matter claimed under our rules for judicial notice; General Statutes §§ 51-32, 52-163 and 52-164; must be called to the attention of the court and authoritative sources provided. We cannot fault the trial court for failing to undertake an original examination of foreign law.

We are not persuaded in any event that the holding of Harden v. United States, supra, dictates a result different from that reached by the trial court. The issue involved in that case was the applicability of revisions made by the Georgia legislature to its wrongful death statute in 1979 during the course of the trial. Under the 1979 amendment, § 105-1307 was repealed and in substitution a version of § 74-108 (b), which preceded the 1980 amendment in issue here, was enacted to provide for a right of action by both parents, unless divorced, and, if divorced, by the custodial parent of the deceased child. The Harden court found it applied retroactively and ordered the father joined as a necessary party.

Section 74-108 (b) was subsequently amended in 1980 to provide for shared recovery between parents regardless of their marital status. The defendant claims that the trial court should have concluded that the 1980 statute, like the 1979 statute, applied retroactively. There lies an important distinction between the two acts. By express provision, the 1979 act applied its effect to “actions then pending.”1979 Ga. Laws, No. 86, § 49. There is no similar expression of legislative intent under the 1980 revision and, when the legislature is silent, the statute is presumed to be prospective in effect. Biddle v. Moore, 87 Ga. App. 524, 526, 74 S.E.2d 552 (1953).

A further reason for applying the 1980 act prospectively only is provided under the constitution of the state of Georgia which prohibits the passage of retroactive laws. 1976 Constitution of the State of Georgia, Article I, section 1, paragraph VII, Ga. Code § 2-107. This rule against retroactive application has, as to substantive rights, been rigidly enforced by the courts of Georgia. Enger v. Erwin, 245 Ga. 753, 267 S.E.2d 25 (1980). The right of action for wrongful death is a substantive property right which vests at the time of death and remains unchanged by subsequent legislation. Biddle v. Moore, supra.

It is unnecessary to decide whether the trial court erred in finding § 105-1307 in effect at the time of the wrongful death suit, rather than the 1979 statute. The ultimate conclusion of the trial court that the defendant’s claim was barred may be sustained under either statute.

There is no error.

In this opinion the other judges concurred.

       It should be noted that the defendant did not comply with our rule of practice that when a claim made in a pleading is grounded on a statute, the statute shall be specifically identified by its number. Practice Book § 109A.

       Ga. Code § 74-108 (b), as amended in 1980, provides in pertinent part: “(1) In every case of the homicide of a child, minor or sui juris, there shall be some party entitled to recover the full value of the life of the child either as provided in this section or as provided in Chapter 105-13. (2) If the deceased child does not leave a spouse or child, the right of recovery shall be in the parent or parents, if any, given such a right by this paragraph. (A) If the parents are living together and not divorced, such right shall be in the parents jointly. (B) If either parent is deceased, such right shall be in the surviving parent. (C) If both parents are living but divorced, separated, or living apart, such right shall be in both parents. Provided, however, in the event the parents are divorced, separated, or living apart and one parent refuses to proceed or cannot be located to proceed to recover for the wrongful death of a child, then, in either of these events, the other parent shall have the right to contract for representation on behalf of both parents, thereby binding both parents, and to proceed on behalf of both parents to recover for the homicide of the child with any ultimate recovery to be shared by the parents as if they were not separated or living apart.”
      The term “homicide” as used in the statute includes wrongful death. Harden v. United States, 485 F. Sup. 380 (S.D. Ga. 1980).

       Ga. Code § 105-1307, repealed effective April 4,1979, provided in pertinent part: “A mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui juris, unless said child shall leave a wife, husband or child. The mother or father shall be entitled to recover the full value of the life of such child. In suits by the mother the illegitimacy of the child shall be no bar to a recovery.”

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Under our choice of law rules, the distribution of amounts recovered under a wrongful death statute is governed by the law of the state where the tort was committed. Hornstein v. Marks, 21 Conn. Sup. 233, 153 A.2d 923 (1958).

       Ga. Code § 74-108 (b), as amended in 1979, provided in pertinent part: “The parents, when not divorced, may recover for the homicide of a child, minor or sui juris, unless said child shall leave a wife, husband, or child. The parents shall be entitled to recover the full value of the life of such child. If either parent is deceased, the surviving parent shall be entitled to recover the full value of the life of such child. If the parents are divorced, the parent with custody of the child may recover for the homicide of the child. In suits for recovery, the illegitimacy of the child shall be no bar to recovery.”
      The intent of the 1979 revisions, as stated in the preamble to the act, was to “modernize certain laws . . . so as to comply with those standards of equal protection under the law announced in the United States Supreme Court decision in the case of Orr v. Orr, [440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306] decided March 5,1979.” 1979 Ga. Laws, No. 86, § 1, p. 469.

       1979 Ga. Laws, No. 86, § 49 provides in pertinent part: “This Act shall become effective upon its approval by the Governor or upon its becoming law without his approval and shall govern all proceedings in actions brought after it takes effect and also all further proceedings in actions then pending.”

       In light of this constitutional prohibition, the constitutionality of 1979 Ga. Laws, No. 86, § 49 and the decision in Harden v. United States, 485 F. Sup. 380 (S.D. Ga. 1980), applying the 1979 version of § 74-108 (b) retroactively may be questioned. The Supreme Court of Georgia had held § 49 unconstitutional to the extent that it repealed retroactively the cause of action for alienation of affection. Enger v. Erwin, 245 Ga. 753, 267 S.E.2d 25 (1980).

       Had the trial court concluded that the 1979 act applied, the plaintiff would still be the sole person entitled to recover since she was the custodial parent of the deceased child. See footnote 5, supra.


text:
    City of Hartford v. Valentina Mejias et al.
    (2229)
    Dupont, Borden and Spallone, Js.
    Argued May 10
    decision released July 24, 1984

      Robert J. Kor, with whom, on the brief, was David A. Pels, for the appellants (named defendant et al.).

      William J. Prensky, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (defendant commissioner of housing).

      Joseph M. Lugo, assistant corporation counsel, with whom, on the brief, were Richard H. Goldstein, corporation counsel, and Dennis L. Pieragostini, assistant corporation counsel, for the appellee (plaintiff).
   Per Curiam.

This is an appeal from the trial court’s determination that the defendants were not entitled to relocation assistance benefits under the Uniform Relocation Assistance Act (URAA). General Statutes §§ 8-266 through 8-282. The trial court ruled that the defendants were forced to move as a result of housing code enforcement activities and not as a result of building code enforcement activities, a requirement under the URAA.

The single issue posed herein is whether persons who are forced to move as a result of housing code enforcement activities are “displaced persons” entitled to relocation benefits under the URAA.

The Supreme Court has answered that question in the affirmative in its recent decision in Dukes v. Durante, 192 Conn. 207, 212-221, 471 A.2d 1368 (1984), holding that “building code” in the URAA includes “housing code.” The decision is controlling and dispositive of this appeal.

Counsel appeared for argument and filed with this court a written stipulation executed by the parties in which the parties agreed that there was error and that this case was to be remanded to the Superior Court with direction to dismiss the plaintiffs appeal.

There is error, the judgment is set aside and the case is remanded to the trial court with direction that the appeal be dismissed.

       This appeal was originally filed in the Appellate Session of the Superior Court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 (c).