author: STOUGHTON, J.

text:
    RELIANCE INSURANCE COMPANY v. GEORGE M. REIDER, JR., INSURANCE COMMISSIONER
    (AC 18058)
    Lavery, Hennessy and Stoughton, Js.
    Argued February 25
    officially released June 29, 1999

      William J. Prensky, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

      Ralph G. Elliot, for the appellee (plaintiff).
   Opinion

STOUGHTON, J.

The defendant, George M. Reider, Jr., insurance commissioner of the state of Connecticut (commissioner), appeals from the trial court’s judgment reversing his decision ordering the plaintiff, Reliance Insurance Company (Reliance), to pay a loss under a manufacturer’s output insurance policy issued by Reliance to Mariano Brothers, Inc. (Mariano). The commissioner claims that the trial court improperly concluded that (1) the coverages under the policy were severable and (2) Reliance’s failure to file timely notice of cancellation with the Interstate Commerce Commission and the state department of transportation did not extend the cancellation date of the entire policy. We agree and reverse the judgment of the trial court.

The facts as set out in the memorandum of findings and recommendation issued by the insurance department hearing officer, on which the commissioner relied, are not in dispute and may be summarized as follows. In August, 1994, Reliance renewed and issued to Mariano, an interstate motor carrier, three insurance policies effective July 27, 1994, to July 27, 1995. One of these policies, the manufacturer’s output policy, contained various coverage provisions.

Mariano financed that policy and the other two policies through a premium financing agreement with A.I. Credit Corporation (finance company). Pursuant to that agreement, the finance company was appointed as Mariano’s attomey-in-fact, with authority to cancel the policies for nonpayment of premiums. In the event of nonpayment, the agreement required the finance company to mail notice of its intent to cancel a policy to Mariano, after which Mariano would have ten days to cure the overdue premiums to prevent cancellation of a policy.

On November 2, 1994, the finance company mailed Mariano notice of its intent to cancel all three insurance policies because of Mariano’s failure to pay premiums. A notice of cancellation was subsequently mailed to Mariano and Reliance on November 16, 1994, with an effective date of November 17, 1994, unless the unpaid premiums were paid in full on or before that date. Mariano did not pay the overdue premiums, and the policies were canceled on November 17, 1994.

On January 3, 1995, the finance company directed Reliance to reinstate all three of the policies previously canceled because Mariano had then paid the overdue premiums. Reliance refused to reinstate the manufacturer’s output policy. Reliance notified Mariano’s insurance broker on January 12, 1995, that that policy remained canceled as of November 17, 1994, and that coverage would not be reinstated until Reliance received deductible reimbursements from Mariano. Reliance indicated that once the reimbursements were received, a thirty day binder would be issued to allow the broker time to obtain other insurance for Mariano.

After Mariano paid the outstanding deductible amounts to Reliance, Reliance issued the thirty day binder, which provided coverage under the manufacturer’s output policy through February 26, 1995. That coverage was then extended to March 12, 1995. On March 31, 1995, the finance company issued to Mariano and Rebanee another notice of cancebation for ab three pobcies for nonpayment of premiums.

On April 4,1995, Mariano’s warehouse sustained damage from a windstorm. On April 11, 1995, the finance company requested that Rebanee reinstate the pobcies because the finance company had received the delinquent premiums from Mariano. On that same date, Rebanee notified the Interstate Commerce Commission and the state department of transportation of its cancebation of the motor carrier portion of Mariano’s manufacturer’s output pobey. On April 21, 1995, the Interstate Commerce Commission notified Mariano that effective May 13, 1995, Mariano’s certificate of insurance for cargo coverage would be canceled. Rebanee informed the finance company in a letter dated May 9, 1995, that the manufacturer’s output pobey had not been reinstated.

Rebanee ultimately denied coverage for Mariano’s claim regarding the windstorm damage to his warehouse. On May 17, 1995, Mariano filed a letter of complaint with the state department of insurance. Fobowing an investigation, the commissioner issued a cease and desist order against Reliance on November 7, 1996. Rebanee then requested a hearing pursuant to General Statutes § 38a-19, which was held on January 22, 1997. The department hearing officer issued a decision on February 20, 1997, concluding that the finance company’s November 16, 1994 notice of cancellation failed to effect cancellation because timely notice had not been sent to the Interstate Commerce Commission, as required by 49 C.F.R. 1043.7 (d) and General Statutes § 38a-170 (a) and (d). It is undisputed that Reliance did not notify either the state department of transportation or the Interstate Commerce Commission of the cancellation until April 11, 1995.

In an order issued February 21, 1997, the commissioner adopted the hearing officer’s findings and recommendations, modified his November 7, 1996 order and directed Reliance to “honor all of its contractual obligations under [the manufacturer’s output policy] through May 13,1995, due to Reliance’s failure to strictly comply with [General Statutes] § 38a-170 (d).” Reliance appealed from the commissioner’s decision to the trial court, and the trial court reversed the commissioner’s decision. This appeal followed.

As a threshold matter, it is well established that “[t]he standard of review in appeals from the decisions of administrative agencies is clearly delineated. Judicial review of [an administrative agency’s] action is . . . very restricted. . . . With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. . . . Judicial review of the conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Although the interpretation of statutes is ultimately a question of law . . . it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Citations omitted; internal quotation marks omitted.) State Board of Labor Relations v. Freedom of Information Commission, 244 Conn. 487, 493-94, 709 A.2d 1129 (1998). With this standard in mind, we now address the commissioner’s claims.

I

The commissioner first claims that the trial court improperly concluded that the warehouse liability portion of the manufacturer’s output policy was severable from the truck cargo provisions of that policy with the result that the insurer’s failure to give notice to the Interstate Commerce Commission, as required under federal law with regard to the cancellation of truck cargo liability coverage, saved only the truck cargo provisions of that policy from cancellation. The commissioner contends that the trial court improperly reversed the decision of the commissioner by concluding that the manufacturer’s output policy coverages were severable when, in fact, the manufacturer’s output policy was not severable as a matter of law. We agree.

When interpreting a statute, courts “should accord a statutory enactment its plain meaning. . . . Moreover, the meaning of statutory language must be determined from a reading of the statute as a whole.” (Citations omitted.) State v. Jimenez, 228 Conn. 335, 341, 636 A.2d 782 (1994). We may not, by construction, “read a provision into legislation that is not clearly stated therein.” State v. Fiasconardo, 25 Conn. App. 643, 645, 595 A.2d 945 (1991).

Our review of the record persuades us that the manufacturer’s output policy was not severable. First, it was entitled “Renewal Policy,” which by definition suggests a single contract. Second, Mariano paid one annual premium for the manufacturer’s output policy. Third, there was no allocation of the annual premium between the various coverages under the manufacturer’s output policy. Fourth, the premium finance agreement between Mariano and the finance company lists the manufacturer’s output policy as a single policy, separate from the automobile and general liability policies. Fifth, the finance company’s March 31, 1995 notice of cancellation purportedly canceled the manufacturer’s output policy as a whole, not a particular- coverage provision within that policy.

The statutory language of § 38a-170 clearly refers to the cancellation of an “insurance contract or contracts,” not specific coverage provisions within those contracts. According the statute its plain meaning, we thus conclude that the finance company could and purported to cancel the entire manufacturer’s output policy, and not just the warehouse liability provision within that policy. We further conclude that the finance company’s cancellation of the manufacturer’s output policy could not become effective until Reliance notified the state department of transportation and the Interstate Commerce Commission as required by § 38a-170 (d), because the manufacturer’s output policy contained a nonseverable truck cargo liability provision.

Our review of the record reveals that on February 21, 1997, the commissioner modified his November 7, 1996 cease and desist order by directing Reliance to “honor all of its contractual obligations under [the manufacturer’s output policy] through May 13, 1995 . . . .” On the basis of the undisputed facts in the record, we conclude that the commissioner acted reasonably and legally and did not abuse his discretion in ordering Reliance to honor its contractual obligations under the manufacturer’s output policy through May 13,1995. The trial court, therefore, improperly reversed the decision of the commissioner on this ground.

II

The commissioner’s final claim is that the trial court improperly concluded that Reliance’s failure to file a timely notice of cancellation with the Interstate Commerce Commission and the state department of transportation pursuant to General Statutes § 38a-170 (d) did not extend the cancellation date of the entire manufacturer’s output policy. We agree.

To effect cancellation of the manufacturer’s output policy, Reliance first had to give notice to the Interstate Commerce Commission and the state department of transportation pursuant to § 38a-170. Pursuant to § 38a-170 (d), Reliance was required to provide notice to those regulatory agencies “on or before the second business day after the day [the insurer] receives the notice of cancellation from the insurance premium finance company . . . .” Additionally, as we discussed in part I of this opinion, § 38a-170 (a) provides that insurance contracts listed in a premium finance agreement that grants a power of attorney to the finance company “shall not be canceled” by the finance company “unless such cancellation is effectuated in accordance with the provisions of this section.” (Emphasis added.)

Here, the finance company issued notice to Reliance and Mariano on March 31,1995, that the manufacturer’s output policy was canceled. Reliance, however, did not notify the Interstate Commerce Commission or the state department of transportation of the cancellation until April 11,1995, well after the statutory mandate of § 38a-170, i.e., the second business day from the date it received the notice of cancellation from the finance company. Accordingly, Mariano’s April 4,1995 loss was covered under the manufacturer’s output policy because the cancellation was not effective without the appropriate notice mandated by § 38a-170.

The judgment is reversed and the case is remanded with direction to render judgement dismissing the plaintiffs appeal.

In this opinion the other judges concurred.

       These three policies were the manufacturer’s output policy, an automobile liability policy and a general liability policy.

       The record reveals that the manufacturer’s output policy was a commercial, multiperil policy that insured Mariano against a number of different types of risks. These included coverage against warehouse legal liability, which covered damage to certain properties owned by Mariano, and truck cargo liability. Mariano paid a single premium of $42,325 for this coverage.

       The commissioner’s orders of November 7,1996, and February 21,1997, directed Reliance to stop its illegal practice of canceling policies for nonpayment of deductible reimbursements. The commissioner determined that such a practice was illegal because it was based on the occurrence of an event not specified by General Statutes § 38a-324.

       The November 7, 1996 cease and desist order directed Reliance (1) to discontinue the illegal practice of canceling policies for nonpayment of deductible reimbursements, (2) to reinstate the manufacturer’s outputpolicy and (3) to pay the losses that Mariano incurred on April 4, 1995.

       At the time of the trial court’s decision, this section was recodified to 49 C.F.R. 387.313 (d), which provides in relevant part: “Cancellation notice. Except as provided in paragraph (e) of this section . . . certificates of insurance ... or agreements shall not be canceled or withdrawn until 30 days after written notice has been submitted to the [Interstate Commerce] Commission at its offices ... by the insurance company . . . motor carrier, broker, or other party thereto . . . which period of thirty (30) days shall commence to run from the date such notice ... is actually received by the Commission.”

       General Statutes § 38a-170 provides in relevant part: “(a) When an insurance premium finance agreement contains a power of attorney enabling the insurance premium finance company to cancel any insurance contract or contracts listed in the agreement on account of any default on the part of the insured, the insurance contract or contracts shall not be cancelled by the insurance premium finance company unless such cancellation is effectuated in accordance with the provisions of this section.
      “(d) All statutory, regulatory, and contractual provisions or restrictions providing that the insurance contract may not be cancelled unless notice is given to a governmental agency ... or other third parly shall apply where cancellation is effected under the provisions of this section. The insurer shall give the prescribed notice in behalf of itself or the insured to any such governmental agency ... or other third party on or before the second business day after the day it receives the notice of cancellation from the insurance premium finance company and shall determine the effective date of cancellation taking into consideration the number of days notice required to complete the cancellation. . . .”

       The department of transportation and the Interstate Commerce Commission are authorized to regulate motor contract carriers pursuant to General Statutes §§ 13b-410 and 13b-410a, respectively.

       See footnote 6.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AURIC ANSWERING SERVICE, INC. v. GLENAYRE ELECTRONICS, INC., ET AL.
    (AC 17597)
    O’Connell, C. J., and Schaller and Spear, Js.
    Argued March 2
    officially released June 29, 1999

      Alexander Scheirer, for the appellant (plaintiff).

      Laura Gold Becker, for the appellee (defendant Lease Acceptance Corporation).
   Opinion

PER CURIAM.

The plaintiff appeals from the summary judgment rendered in favor of the defendant Lease Acceptance Corporation on the second and fourth counts of the plaintiffs second revised complaint. The plaintiff claims that the trial court improperly (1) failed to recognize material issues of fact and (2) tried one of several issues of fact instead of simply determining whether any issues of fact existed. We affirm the judgment of the trial court.

This case involves a contract dispute between the parties. On May 27, 1997, the defendant Lease Acceptance Corporation filed a motion for summary judgment accompanied by a memorandum of law and supporting affidavit. The plaintiff responded with an objection, memorandum of law and supporting affidavit. The trial court held a hearing on August 4,1997, at the conclusion of which the court wrote on page two of the motion, “Granted only as to summary judgment.”

When the appeal was heard before this court on March 2, 1999, the record before us did not contain either a written memorandum of decision or a transcribed copy of an oral decision, signed by the trial court, stating its reasons for granting the motion for summary judgment. See Practice Book § 64-1. Further, the plaintiff never sought to have the trial court articulate the basis on which it granted summary judgment. Id. The word “Granted” does not tell us anything concerning the trial court’s conclusions of law or why the trial court concluded that no genuine issue of material fact existed. “The duty to provide [the Appellate Court] with a record adequate for review rests with the appellant.” Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). This court has frequently declined to review claims where the appellant has failed to provide us with an adequate record for review. See id., 609; Emigrant Savings Bank v. Erickson, 46 Conn. App. 51, 53-54, 696 A.2d 1057, cert. denied, 243 Conn. 921, 701 A.2d 341 (1997).

Twenty-two days after the appellate hearing, the plaintiff filed a transcript of the entire trial court proceedings with this court. The transcript was signed by the administrative judge for the judicial district of New Haven. Practice Book § 64-1 (a) provides that if the decision of the trial court is oral, and if there is an appeal, “the trial court shall create a memorandum of decision for use in the appeal by ordering a transcript of the portion of the proceedings in which it stated its oral decision [which portion] shall be signed by the trial judge . . . .” (Emphasis added.) The official commentary to Practice Book § 64-1 makes it clear that the rule was not intended as authority for the trial judge to sign an entire transcript of a proceeding and submit the signed transcript in lieu of a written decision. The commentary further emphasizes that “the mere ‘autographing’ of the transcript of a proceeding is not what is contemplated by the rule.”

Just as the word “Granted” does not tell us anything concerning the trial court’s conclusions of law, a forty-two page autographed colloquy between the trial court and trial counsel is likewise inadequate. In this case, the record is inadequate for review because we have not been provided with either a written memorandum of decision or a transcribed copy of an oral decision, signed by the trial court, stating its reasons for granting summary judgment. Because the plaintiff has not provided us with an adequate record for review, we decline to review this claim. State v. Anderson, 209 Conn. 622, 633, 533 A.2d 589 (1989).

The judgment is affirmed.

       The second and fourth counts of the plaintiffs second revised complaint alleged, inter alia, that Lease Acceptance Corporation was the agent for Glenayre Electronics, Inc., for providing leasing terms and conditions of telephone switching equipment leased by the plaintiff, and that Lease Acceptance Corporation wrongly deprived the plaintiff of its contractual right to purchase certain equipment for the lease end payoff price in accordance with the lease agreement.

       The words "only as to summary judgment” were apparently intended to mean that the trial court was not granting the defendant its requested attorney’s fees.

       The appellant has not provided any authority for the submission of such material after conclusion of the appellate hearing and without an opportunity for the opposing party properly to respond.

       The trial judge who presided over this case had left office by the time of the Appellate Court hearing. It is not necessary, however, that we decide the effect, if any, of the administrative judge’s signature, because even the signature of the original trial judge on the entire transcript would not have satisfied Practice Book § 64-1.


author: SPEAR, J.

text:
    ROBERT C. FLANAGAN v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (AC 17127)
    Landau, Spear and Hennessy, Js.
    Argued January 26
    officially released June 29, 1999

      Roger J. Frechette, with whom, on the brief, were Matthew E. Frechette and Franz P. Frechette, for the appellant (plaintiff).

      Charles Krich, commission counsel, for the appellee (named defendant).

      Eliot D. Prescott, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Carolyn K. Querijero and Susan Quinn Cobb, assistant attorneys general, for the appellee (defendant Moira Butler).

      Barbara G. Lifton, pro se, the appellee (defendant).

      Penny Tackach, pro se, the appellee (defendant Penny P. Ross).
   Opinion

SPEAR, J.

The plaintiff, Robert C. Flanagan, appeals from the judgment of the trial court that dismissed his complaint for injunctive relief and money damages. We affirm the judgment of the trial court.

The plaintiff filed this action against (1) the state commission on human rights and opportunities (CHRO), (2) Attorney Mercedes Alonzo, assistant corporation counsel for the CHRO, (3) Moira Butler, affirmative action program coordinator for the Connecticut judicial branch, (4) Penny P. Ross and (5) Attorney Barbara G. Lifton, a hearing officer for the CHRO who also represents Ross. The plaintiff seeks to enjoin proceedings on a complaint that Ross filed against him with the CHRO. Ross’ complaint alleged illegal sexual discrimination on the part of the plaintiff.

In his complaint, the plaintiff alleges that (1) the actions of the defendants deprived him of certain civil rights in violation of 42 U.S.C. §§ 1983 and 1985 and General Statutes § 46a-58, (2) the CHRO complaint should be dismissed because the actions of the defendants constituted a multiplicity of lawsuits in violation of the public policy of the state of Connecticut, (3) the doctrines of collateral estoppel and res judicata apply to bar further litigation before the CHRO, (4) the actions of the defendants denied him due process and the equal protection of the law and (5) it would be an act of futility to proceed before the CHRO. The trial court granted the defendants’ motions to dismiss the complaint and this appeal followed.

“The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998).

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648, 109 A.2d 260 (1954). Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983). Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiffs] claim.” (Internal quotation marks omitted.) Johnson v. Dept. of Public Health, 48 Conn. App. 102, 107-108, 710 A.2d 176 (1998). “We first note that, because ‘[a] determination regarding a trial court’s subject matter jurisdiction is a question of law,’ our review is plenary. Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998).” Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999).

The Superior Court has no jurisdiction to act where there is an adequate administrative remedy that has not been exhausted. Raymond v. Rock Acquisition Ltd. Partnership, 50 Conn. App. 411, 415, 717 A.2d 824 (1998). “There are some exceptions to the exhaustion doctrine, although we have recognized such exceptions only infrequently and only for narrowly defined purposes. . . . We have recognized that a party aggrieved by a decision of an administrative agency may be excused from exhaustion of administrative remedies if: recourse to the administrative remedy would be futile or inadequate . . . the procedures followed by the administrative agency are constitutionally infirm . . . or injunctive relief from an agency decision is necessary to prevent immediate and irreparable harm.” (Citations omitted; internal quotation marks omitted.) Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 561, 630 A.2d 1304 (1993). Our Supreme Court has continued “to limit any judicial bypass of even colorable constitutional claims to instances of demonstrable futility in pursuing an available administrative remedy.” Pet v. Dept. of Health Services, 207 Conn. 346, 356, 542 A.2d 672 (1988).

With the exception of the claims under 42 U.S.C. §§ 1983 and 1985, the plaintiffs claims should properly be brought in the administrative proceedings before CHRO. It is clear that the plaintiff has failed to exhaust his administrative remedies. Our inquiry, however, does not end there. We must next determine if the plaintiff satisfies any of the limited exceptions to the exhaustion doctrine. Proceedings before the CHRO would not be futile because the plaintiffs claims can be addressed by way of defenses to Ross’ complaint. The plaintiff can also petition for declaratory rulings pursuant to § 46a-54-122 of the Regulations of Connecticut State Agencies. We also note that it is particularly appropriate for the CHRO to determine whether the defendants have deprived the plaintiff of any rights pursuant to General Statutes § 46a-58. This statute is part of chapter 814c, which governs the CHRO.

After reviewing the record, we conclude that the plaintiff has failed to demonstrate that the administrative remedy is futile or inadequate, that the procedures followed by the administrative agency are constitutionally infirm or that injunctive relief from an agency decision is necessary to prevent immediate and irreparable harm. Therefore, the trial court was without subject matter jurisdiction to hear the plaintiffs claims and properly dismissed those counts of the complaint.

We next turn to the portion of the plaintiffs complaint alleging a violation of 42 U.S.C. §§ 1983 and 1985.

The defendants filed several motions to dismiss the plaintiffs complaint, relying in part on the plaintiffs failure to state a claim and federal case law in support of their arguments. In his opposition to the motions to dismiss, the plaintiff claimed that the defendants’ arguments were procedurally improper and should have been presented in a motion to strike. Alternatively, the plaintiff argued that he had alleged sufficient facts on which claims under §§ 1983 and 1985 could have been made. The trial court agreed with the defendants and dismissed the counts alleging violations of §§ 1983 and 1985 for failure to state a claim. On appeal, the plaintiff failed to raise the issue of the defendants’ alleged procedural fault. In addition, the plaintiff and the defendants briefed only whether the complaint alleged sufficient facts to state a claim under §§ 1983 and 1985. Furthermore, the plaintiff has raised this issue only in the context of injunctive relief and failed to address the dismissal of his claim for monetary damages. We will, therefore, address this claim only in the context of the plaintiffs request for injunctive relief.

“Exhaustion of administrative remedies ... is not required before bringing a claim pursuant to 42 U.S.C. § 1983. Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 516, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982); Fetterman v. University of Connecticut, 192 Conn. 539, 549, 473 A.2d 1176 (1984). Thus, a failure by the plaintiff to exhaust his administrative remedies would not dispose of an otherwise valid § 1983 claim.” Paul v. New Haven, 48 Conn. App. 385, 389-90, 710 A.2d 798 (1998). When the claim is for injunctive relief, however, our Supreme Court has noted, “[I]n Laurel Park, Inc. v. Pac, [194 Conn. 677, 691, 485 A.2d 1272 (1984)], which included a § 1983 count, that notwithstanding Patsy v. Board of Regents of the State of Florida, supra, [516] the fundamental requirement of inadequacy of an available legal remedy in order to obtain injunctive relief remains in full force.” Pet v. Dept. of Health Services, supra, 207 Conn. 368-69. The plaintiff cannot avoid the exhaustion requirement in his claim for injunctive relief. Because, as stated previously, the plaintiff failed to exhaust his administrative remedies, the trial court was without jurisdiction to consider the request for injunctive relief. Therefore, the plaintiffs claim was properly dismissed.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs? claims are based on the fact that the Judicial Review Council heard and disposed of a complaint against him and the state’s attorney did not prosecute him for sexual assault. He views these events as precluding any action by CHRO, but offers no persuasive analysis as to why they have any bearing on the issues before the CHRO.

       Section 46a-54-94 of the Regulations of Connecticut State Agencies provides in relevant part: “(b) The answer shall admit or deny each and every allegation of the complaint or amended complaint. . . . Affirmative defenses, such as res judicata, release, statute of limitations or otherwise, must be specially plead. . . .”

       Section 46a-54-122 of the Regulations of Connecticut State Agencies provides in relevant part: “(a) The Commission or any person may petition for a declaratory ruling as to: (1) the validity of any Commission regulation; or (2) the applicability to specified factual circumstances of any provision of the Connecticut General Statutes enforced by the Commission, any regulation promulgated by the Commission or a final decision on any matter within the Commission’s jurisdiction. ...”

       General Statutes § 46a-58 (a) provides: “It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, blindness or physical disability.”

       The defendants’ reliance on federal case law is misplaced. The case law cited supports the proposition that failure to allege certain facts warrants dismissal of the counts under §§ 1983 and 1985. Under rule 12 (b) (6) of the Federal Rules of Civil Procedure, failure to state a claim is a valid ground for dismissal. Under Connecticut practice, however, it is not. “A motion to dismiss ... is available only to raise the question whether, on the face of the record, the court lacks jurisdiction.” Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648, 109 A.2d 260 (1954). A motion to strike is the proper procedural vehicle to test the legal sufficiency of the complaint. Practice Book § 10-39. The trial court’s dismissal of these counts for failure to state a claim would be procedurally improper. In its memorandum of decision, however, the trial court treated the issue as a motion to strike. On appeal, the parties have done the same. We have decided, without in any way condoning or approving the procedural irregularity, to consider the issue as treated by the parties and the trial court. See McCahill v. Town & Country Associates, Ltd., 185 Conn. 37, 40, 440 A.2d 801 (1981); Mitchell v. King, 169 Conn. 140, 145, 363 A.2d 68 (1975); DeForest & Hotchkiss Co. v. Planning & Zoning Commission, 152 Conn. 262, 271, 205 A.2d 774 (1964); Anselmo v. Cox, 135 Conn. 78, 79, 60 A.2d 767, cert. denied, 335 U.S. 859, 69 S. Ct. 132, 93 L. Ed. 2d 405 (1948).

       Any assignment of error as to the dismissal of his claims for monetary damages under § § 1983 and 1985 are waived because they have not been raised in the plaintiffs appeal to this court. See Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 292 n.2, 533 A.2d 208 (1987); Furtney v. Zoning Commission, 159 Conn. 585, 589, 271 A.2d 319 (1970); Nazarko v. Conservation Commission, 50 Conn. App. 548, 550 n.2, 717 A.2d 850, cert. denied, 247 Conn. 940, 723 A.2d 318 (1998).


text:
    JOHN F. PERRITT v. KAREN PERRITT
    (AC 17968)
    Landau, Schaller and Dupont, Js.
    Argued April 27
    officially released June 29, 1999

      Karen Perritt, pro se, the appellant (defendant).

      John F. Perritt, pro se, the appellee (plaintiff), filed a brief.
   Opinion

PER CURIAM.

The sole issue of this appeal is whether the assignment to a spouse, awarded in a dissolution of marriage judgment, of one half of a pension due on retirement to the other spouse, entitles the assignee spouse to one half of the assignor spouse’s disability payments arising from a disability that occurred subsequent to the dissolution of marriage but before retirement. We hold, on the facts of this case, that the assignee spouse is not entitled to one half of the other spouse’s disability payments and affirm the judgment of the trial court.

The marriage of the parties was dissolved on November 17, 1994. An agreement of the parties was incorporated into the judgment. It stated that the plaintiffs pension through the United States Naval Undersea Warfare Center shall be divided equally by way of a Qualified Domestic Relations Order. At the date of the dissolution, the plaintiff was in his mid-thirties. On March 2, 1996, as a result of an unexpected disability, the plaintiff began receiving a disability annuity.

The plaintiff argues that the agreement of the parties and the judgment of the dissolution court did not involve his disability payments but only his pension benefits. The defendant argues that she is entitled to keep a Qualified Domestic Relations Order presently in effect, which gives her one half of the plaintiffs disability retirement payments. The defendant argues that she is presently entitled to one half of these payments because the plaintiffs disability payments are, in essence, payments arising from early retirement and because the provision of the settlement agreement at issue is an assignment of property that is nonmodifiable.

We agree with the carefully drafted and reasoned memorandum of decision of the trial court. We agree with the defendant that an assignment of property is nonmodifiable but disagree that any modification of the agreement is involved here. The plain words of the agreement indicate that the parties intended to divide a retirement benefit when a normal retirement age is reached. In this case, that benefit will be available when the plaintiff reaches age sixty-two, undiminished by the payment to the plaintiff of disability benefits. The plaintiff does not dispute the defendant’s entitlement to one half of his retirement benefits when he reaches age sixty-two. The plaintiffs disability payments are subject to his ongoing support obligations under the dissolution judgment, and the defendant does not dispute that fact.

A disability payment is a payment in lieu of wages and a substitute for the income that would have been earned by the recipient. A pension is a sum payable upon retirement. Here, the defendant is entitled only to one half of the plaintiff’s pension.

The judgment is affirmed.

       The trial court sought and received information from the United States Office of Personnel Management before deciding this matter. The court verified that, in this case, the amount of the plaintiffs retirement benefit plan assigned to the defendant will not be affected in any way by the fact that the plaintiff is presently receiving a disability annuity.


author: SCHALLER, J.

text:
    CAROLYN ORMSBY v. EMIL FRANKEL, COMMISSIONER OF TRANSPORTATION
    (AC 17621)
    O’Connell, C. J., and Schaller and Sullivan, Js.
    Argued March 24
    officially released July 6, 1999

      Louis B. Blumenfeld, with whom, on the brief, was William J. Scully, for the appellant (defendant).

      Kathryn Calibey, with whom was Douglas W. Hammond, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Emil Frankel, commissioner of transportation, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Carolyn Ormsby, on her complaint brought pursuant to General Statutes § 13a-144, the defective roads and highway statute. The defendant claims that the trial court improperly (1) admitted evidence pertaining to actual and constructive notice, (2) denied his motions to set aside the verdict and for a directed verdiet where there was insufficient evidence to support a finding of actual notice and constructive notice and (3) instructed the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On Saturday, February 20, 1993, between 2 and 3 p.m., the plaintiff was driving westbound on Route 6 in Farmington over Rattlesnake Mountain. Route 6 is a state highway, and, as such, the department of transportation (department) is responsible for its maintenance. The plaintiff was driving at approximately forty-five miles per hour in a forty-five mile per hour zone. In the course of her descent down Rattlesnake Mountain, she approached a lefthand curve. A department warning sign on the side of the highway, placed prior to the curve, informed drivers of the curve. Additionally, there was an advisory speed placard indicating that the recommended speed in the curve was forty miles per hour.

On February 20, 1993, the temperature was below freezing and the road was dry. The plaintiff entered the curve and encountered a large ice patch approximately 250 feet long in the westbound lane that had not been sanded or salted by the department. The plaintiff had no warning that the ice patch was on the curve and could not see it prior to encountering it. After the plaintiff crossed the ice patch, she lost control of her car and tapped her brakes two or three times to attempt to regain control of her vehicle. Her efforts were unsuccessful and she attempted to steer to regain control. Her car fishtailed approximately 180 degrees and ended up in the eastbound lane where her car collided with another vehicle driving eastbound up the hill. The plaintiff suffered serious injuries as a result of the collision.

An eyewitness to the accident, Jennifer White, was traveling westbound behind the plaintiffs car at a distance of approximately one to two car lengths. She was also traveling at approximately forty-five miles per hour. As she entered the curve and crossed the ice patch, she also began to lose control, but eventually managed to regain it.

The first police officer on the scene, Charles Pritchard, approached the accident from the east. He approached the curve at approximately five to ten miles per hour, a much slower speed than the plaintiff or White, because he did not know the exact location of the accident. He also was unaware of the ice patch until he encountered it and his police cruiser slid on the ice. Additional facts will be set forth where necessary to the resolution of this appeal.

I

The defendant first claims that the trial court improperly admitted evidence regarding actual and constructive notice. Specifically, the defendant claims that the trial court improperly admitted evidence concerning (1) ice on Route 6 at times prior to the accident, (2) a prior accident at the same location and (3) hearsay testimony. We are not persuaded by the first two claims but agree with the third.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [party raising the challenge] of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Emphasis added; internal quotation marks omitted.) Pacific Land Exchange v. Hunts, 52 Conn. App. 362, 363-64, 727 A.2d 1281 (1999).

A

The defendant first claims that the trial court improperly admitted evidence of prior ice patches at the same location. We disagree.

The plaintiff presented evidence from various Farmington police officers and dispatchers that the area where the accident occurred was notorious for icing in the winter. The defendant claims that the testimony, which was admitted over objection, is “irrelevant to the question of whether the defendant had notice of the ice/water condition that existed at the time of the accident.”

Evidence is admissible only if it is relevant. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable.” (Internal quotation marks omitted.) First Federal Bank, FSB v. Gallup, 51 Conn. App. 39, 41, 719 A.2d 923 (1998). Although relevant, evidence will not be admitted if its probative value is outweighed by its prejudicial effect. See Berry v. Loiseau, 223 Conn. 786, 804, 614 A.2d 414 (1992). “It is well settled that questions of relevance are committed to the sound discretion of the trial court.” (Internal quotation marks omitted.) First Federal Bank FSB v. Gallup, supra, 41-42.

In highway defect cases, the notice required “is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it. ‘Notice of another defect, or of the existence of a cause likely to produce the defect, is not sufficient.' Smyth v. Bangor, 72 Me. 249, 252 [1881]; Pendelton v. Northport, 80 Me. 598, 600, 16 A. 253 [1888]; Ryerson v. Abington, 102 Mass. 526, 532 [1869].” (Emphasis added.) Carl v. New Haven, 93 Conn. 622, 628, 107 A. 502 (1919).

The defendant relies on Carl for the proposition that evidence of prior alleged defective conditions is irrelevant. That reliance is misplaced. Carl makes clear that the question of prior conditions goes to the issue of sufficiency rather than relevancy. Both our Supreme Court and this court have dealt with cases where evidence of prior conditions was admitted. In those cases, neither court declared the evidence inadmissible, but dealt with the sufficiency of the evidence to prove constructive notice. See Prato v. New Haven, 246 Conn. 638, 640, 717 A.2d 1216 (1998) (evidence of prior bonfires at intersection every July 3, for fifteen consecutive prior years before court “not sufficient notice”); Aaronson v. New Haven, 94 Conn. 690, 692, 110 A. 872 (1920) (prior toppling over of silent policeman entered in evidence); Pajor v. Wallingford, 47 Conn. App. 365, 372 n.3, 704 A.2d 247 (1997), cert. denied, 244 Conn. 917, 714 A.2d 7 (1998) (“[s]uch evidence would often be relevant to prove the existence of the defect relied upon, its nature and the time when it should have been observed by the municipality”).

The plaintiffs evidence that icing existed on prior occasions at the location of her accident is relevant to whether the department had constructive notice of the icing at the time of the accident. Moreover, we conclude that the admission of the evidence of prior icing conditions was not so prejudicial to the defendant as to outweigh its probative value. Whether it sufficiently proved that the department had constructive notice is a question of fact that the trial court properly left to the jury. The trial court did not abuse its discretion as evidentiary gatekeeper.

B

The defendant next claims that the trial court improperly admitted evidence of a prior accident at the same location. We disagree.

“A party attempting to offer evidence of prior accidents or evidence of the experience of others has the burden of proving that the circumstances were substantially the same as those under which the plaintiff was injured, and that the use by others was substantially similar to that of the plaintiff. . . . Moreover, [e]vidence of prior occurrences will be admitted only if the proffering party first lays a sufficient foundation of substantial similarity of conditions between the immediate and the prior happenings. . . . The question whether the essential preliminaries have been established is for the court, and the court’s decision will not be disturbed unless there is clear and manifest error.” (Citations omitted; internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 452, 569 A.2d 10 (1990); see also Claveloux v. Downtown Racquet Club Associates, 246 Conn. 626, 630, 717 A.2d 1205 (1998); Sacks v. Connecticut Co., 109 Conn. 221, 238-39, 146 A.2d 494 (1929) (prior accident evidence admissible to show defendant knew or should have known of hazard created by particular condition or danger); Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 216, 645 A.2d 557, cert. denied, 231 Conn. 915, 648 A.2d 154 (1994).

The plaintiff offered the following facts, outside the presence of the jury, to establish the similarities between the prior accident and the plaintiffs accident. One day prior to the plaintiffs accident, on February 19, 1993, between 2 and 3 p.m., Matthew Eagan was driving westbound on Route 6 over Rattlesnake Mountain. He was driving approximately forty to forty-five miles per hour, and the roads were dry. As he entered the same curve where the plaintiffs accident occurred on February 20, 1993, he encountered an unsanded patch of ice approximately twenty-five to thirty feet long. When he encountered the ice patch he lost control of his car and, as a result, crashed into the guardrail on the westbound side of the road, spun around and stopped in the eastbound lane. As Corporal Paul Lemieux of the Farmington police department arrived to investigate Eagan’s accident, a department truck was sanding the ice patch. Lemieux further testified that the ice patches on February 19 and February 20, 1993, were in the same location. When questioned by the trial court, Lemieux testified that the ice patch was the same condition and in substantially the same location as the ice patch involved in the plaintiffs accident.

“In Facey v. Merkle, [146 Conn. 129, 148 A.2d 261 (1959), our Supreme Court] stated that ‘in laying the foundation that the material conditions were substantially identical, two aspects are involved. One is that the [place] itself must have been substantially in the same condition. The other is that the use made of it must have been substantially identical in all material respects with the use which was actually involved in the case and was reasonably to be anticipated.’ Id., 136.” (Emphasis added.) Hall v. Burns, supra, 213 Conn. 453.

The plaintiffs accident occurred at approximately the same time of day, under the same road conditions and at the same location as the prior accident. In addition, both vehicles were traveling at approximately the same rate of speed when the patch of ice caused them to crash. We conclude that, following the authority of Hall and Facey, the trial court properly determined that the two accidents were substantially similar and, accordingly, properly admitted the prior accident testimony to prove that the department had constructive notice of the alleged defect. It is within the trial court’s sound discretion to admit evidence of prior accidents. “Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law . . . (Internal quotation marks omitted.) Hall v. Burns, supra, 213 Conn. 455. Given the overwhelming similarities between the two accidents, we conclude that it was not “manifest error” for the trial court to have admitted the prior accident evidence.

C

The defendant next claims that the trial court improperly admitted hearsay testimony elicited from Christina Russell to prove actual notice. We agree.

The following facts are necessary to a disposition of this claim. Russell lives on Rattlesnake Mountain near the accident scene. On February 20, at approximately noon, as she was driving eastbound on Route 6, she noticed the patch of ice in the westbound lane that caused the plaintiffs accident. She considered it a dangerous situation and called the Farmington police department to report the condition.

The following colloquy took place between both parties’ counsel, the court and the witness.

“[Plaintiffs Counsel]: Okay. Now when you called the police department sometime around noon after you got home from the post office, what was the response that you received to the call that you made?

“[Russell]: They thanked me.

“[Defense Counsel]: Objection. Hearsay.

“The Court: Basis of the objection is hearsay.

“[Plaintiffs Counsel]: It’s not—I’m not claiming it for the truth but for what happened.

“[Defendant’s Counsel]: It’s hearsay. He can bring the dispatcher in who took the call or the tape or whatever to—

“The Court: All right. I understand the objection. The objection is overruled. You can respond to the question ....

“[Russell]: The dispatcher thanked me and said they would call the [department].”

The plaintiffs counsel stated at trial that he was not offering the statement for the truth of the matter asserted. The dispatcher’s statement, therefore, was not offered initially to show that the dispatcher had, in fact, notified the department of the ice on the curve on Route 6. The trial court, however, did not instruct the jury as to the limited use for which the testimony could be considered at the time it was proffered. The trial court also did not address this evidence in its charge. We assume, therefore, for purposes of our discussion, that the jury considered this evidence as it considered all other properly admitted evidence to which the trial court did not limit its deliberation.

The defendant argues that “[e]ven if the evidence was properly admitted, as limited, it was incumbent upon the court to instruct the jury on the limited purpose for which that evidence could be used. Specifically, it was incumbent upon the court to instruct the jury to consider the statement only on the issue of the declarant’s intentions.”

Because we conclude that the jury was allowed to consider this evidence without limitation, we address the plaintiffs argument that the statement was admissible as an exception to the hearsay rule. The plaintiff, in her brief, claims that Russell’s testimony is admissible as an exception to the hearsay rule as a statement of present intent to prove a future action. The plaintiff cites State v. Santangelo, 205 Conn. 578, 592, 534 A.2d 1175 (1987), for the proposition that “[a] declaration indicating a present intention to do a particular act in the immediate future, made in good faith and not for self-serving purposes, is admissible to prove that the act was in fact performed.” Santangelo, however, does not apply in this situation. Our Supreme Court stated in that case that “[t]he hearsay statements of an unavailable declarant ... [to prove future acts] are admissible . . . .” (Emphasis added.) Id. Further, this court has acknowledged the Supreme Court’s rule requiring the declarant to be unavailable. State v. Jurgensen, 42 Conn. App. 751, 757, 681 A.2d 981, cert. denied, 239 Conn. 931, 683 A.2d 398 (1996).

The plaintiff made no showing that the dispatcher who answered Russell’s call was unavailable as our courts have defined that concept. Evidence was presented that that dispatcher is retired, but no evidence was presented that the dispatcher could not be located and subpoenaed. We conclude that the trial court exceeded its discretion in admitting Russell’s testimony as to what the dispatcher said. This conclusion does not automatically lead to a new trial, however. “We have often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result.” (Citations omitted; internal quotation marks omitted.) Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990). Russell’s statement regarding the dispatcher’s intention to notify the department was offered as evidence that the department had actual notice of the defective condition of the highway so that it could be found liable under the defective highway statute. In part II of this opinion, we hold that the department was liable under the statute because it had constructive notice of the defect. The hearsay portion of Russell’s statement, which concerned the dispatcher’s intention to notify the department, is immaterial to the issue of constructive notice, and we find that its admission was harmless error because it was unlikely to have affected the result of the trial.

II

The defendant next claims that the trial court improperly denied his motions to set aside the verdict and for a directed verdict because there was insufficient evidence for the jury reasonably to have found that the department had either actual or constructive notice of the alleged defect. Because we conclude that there was sufficient evidence for the jury reasonably to have found that the department had constructive notice of the alleged defect, we do not discuss the defendant’s claim regarding actual notice.

“Our role in reviewing an appeal based on the sufficiency of the evidence is well defined. Where the claim is that the evidence produced did not satisfy the burden of proof factually, the duty of an appellate court is well established. An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . . Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law. . . . The probative force of conflicting evidence is for the trier to determine. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987).” (Citations omitted; internal quotation marks omitted.) Jones v. Ippoliti, 52 Conn. App. 199, 206-207, 727 A.2d 713 (1999). “[W]e must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict . . . .” (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 113, 708 A.2d 937 (1998).

The defendant next claims that there was insufficient evidence to support a finding that the department had either actual or constructive notice of the defect. Because the interrogatories show that the jury found that the department had both actual and constructive notice and because we find in this opinion that there was sufficient evidence to support the finding that the department had constructive notice of the defect, there is no need for us to reach the issue of whether the evidence was sufficient to support a finding of actual notice.

As we have already noted, the state must have notice of the actual defect, not the underlying conditions that naturally produce that defect, for the plaintiff to succeed. See Carl v. New Haven, supra, 93 Conn. 628. “Whether or not the defect had existed for a length of time sufficient to constitute constructive notice is a question of fact for the jury and unless the period of time is such that but one conclusion could be found, its determination should be left to the trier.” Baker v. Ives, 162 Conn. 295, 307, 294 A.2d 290 (1972). The defendant can be charged with having constructive notice of a defect when “it is of such a nature and duration that a reasonable inspection would have disclosed the risk.” (Emphasis in original; internal quotation marks omitted.) Hall v. Burns, supra, 213 Conn. 479.

“The defendant’s subduty to make a reasonable inspection, i.e., investigation or detection, of a dangerous condition on the highway is therefore a factor to be considered in determining whether the defendant received actual or constructive notice of the alleged defect and had a reasonable opportunity to remedy it. The extent of the duty to inspect varies with the particular circumstances of the case. . . . The duty to make a reasonable inspection . . . absent actual notice, depends upon the nature of the defect and the length of time it existed. The circumstances of each case must be examined.” Id., 479-80.

The juiy had before it evidence of the Eagan accident, which occurred only twenty-four hours prior to the plaintiffs accident. The Eagan accident, as previously noted, was remarkably similar to the plaintiffs. In fact, when Richard Ross, the Farmington police dispatcher, called the department regarding the ice patch on February 19, 1993, he told the department that, “we have the usual icy condition on Route 6 just in the area of Reservoir Road.”

An internal department memorandum regarding the plaintiffs notice of claim provides: “The area in question is located in a shaded area and is sanded and monitored on a daily basis during the winter season.” Additionally, the department had a snow and ice policy manual that was also entered in evidence. Section 2.10 of the manual regarding isolated ice patches provides: “When the main body of the travelway is bare, ice may form at isolated or disconnected locations following thawing, frost action or seepage. Wherever possible an attempt shall be made to eliminate these isolated ice patches at their source. Where this is not possible such ice patches must be kept thoroughly sanded. Hazardous conditions developing at such locations should be anticipated at the time of lowering temperatures and treated by sanding wet pavement areas in advance of actual ice formation. It is a function of the General Supervisor to investigate the causes of such ice formations and to eliminate the source.” (Emphasis added.) Paul Zagorski, general supervisor of the department’s Farmington garage, originally testified that he did not consider the area of the accident a “problem area,” but on direct examination the plaintiff asked him to repeat his deposition testimony to the same question. Zagorski, in his deposition, had stated: “[T]his was a more problem area.”

The department’s garage is approximately three miles from the accident site. The jury had evidence that the ice patch existed at least two and one-half hours prior to the plaintiffs accident. Zagorski admitted that, outside of business hours, the response time to a call would be within one hour.

We emphasize again that whether the department had reasonable time to discover the ice patch and to correct the defect is a proper element for the jury to consider in determining whether the department had constructive notice. See Lemonious v. Burns, 23 Conn. App. 735, 740, 583 A.2d 1328, cert. denied, 218 Conn. 903, 588 A.2d 1078 (1991). The jury had before it evidence of the department’s policy actively to seek out and treat isolated ice patches. Furthermore, the department, in its internal memorandum, stated that the accident site was to be inspected daily. Whether the two and one-half hour time period between Russell’s discovery of the ice patch and the accident was a reasonable time for the department to discover the problem is a question solely for the jury. While there may be conflicting evidence as to what is a reasonable time, there is no lack of evidence to suggest that a failure to discover the defect in two and one-half hours is unreasonable. The jury interrogatory form indicates that the jury specifically found that the defendant had a reasonable time in which to correct the defect. Our function is not to retiy the case. We conclude that the jury had sufficient evidence on which to conclude that the department had constructive notice of the ice patch that caused the plaintiffs accident.

Ill

The defendant next claims that the trial court improperly failed to charge the jury regarding General Statutes § 14-314 and improperly charged the jury on the issues of (1) notice, (2) the melting and refreezing of ice, (3) the defendant’s duty to inspect and (4) the emergency doctrine. We conclude that the charge, when read as a whole, in light of the evidence, was proper.

We begin with our standard of review. “A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.” Wagner v. Clark Equipment Co., 243 Conn. 168, 187, 700 A.2d 38 (1997). “When reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Edwards, 247 Conn. 318, 328-29, 721 A.2d 519 (1998).

A

The defendant first claims that the trial court improperly failed to instruct the jury on the applicability of General Statutes § 14-314. We are not persuaded.

The defendant claims that because there was evidence suggesting that the plaintiff was traveling above the warning sign’s recommended speed for the curve where her accident occurred, she was in violation of § 14-314. The defendant, therefore, claims that he was entitled to an instruction concerning a violation of § 14-314. While we agree with the defendant that the advisory sign and advisory speed placard are signs that the population should heed, we do not agree that an instruction with respect to § 14-314 was warranted in the present case.

The plaintiff points out that the Regulations of Connecticut State Agencies delineate between the types of signs that the state traffic commission uses and their meaning. The defendant would have us read § 14-314 to provide the state with a method of charging the driving public with an infraction for failing to obey an advisory sign. Section 14-314 indicates that the statute and the regulations are to be read so as to create a cohesive body of law. See footnote 8. Reading General Statutes § 14-314 and §§ 14-298-504 and 14-298-506 of the Regulations of Connecticut State Agencies together does not allow such a result. In further support of the plaintiffs position is the evidence from the police witnesses that a driver’s failure to follow a warning sign’s advice does not give rise to an infraction with which a driver can be cited. Additionally, Clifford Ferris, a department general supervisor of signs and markings, responded, “No,” when asked,”[A]re yellow diamond-shaped signs used for any other purpose than warning?” The evidence clearly established that the warning sign was not enforceable. The trial court properly declined to instruct on § 14-314.

The defendant also argues that he was prejudiced because the trial court had informed him, prior to closing arguments, that it intended to instruct on § 14-314. Because of the trial court’s statement of intention, the defendant claims that he was improperly induced to focus on § 14-314 in his closing argument. His claim of prejudice is without merit.

We first note that the closing arguments are not included in the transcripts provided by the parties. We therefore, have no way of knowing what actually was said in closing arguments. It is the appellant’s duty to provide an adequate record for review. Practice Book § 61-10. The transcript provided does reflect, however, that the trial court, after closing arguments had been presented, allowed the defendant two additional minutes to address the issue. When the defendant indicated that two minutes was insufficient, the trial court offered him five minutes to address the jury. The defendant replied: “I don’t think it would be of any value.” On the basis of the record provided, we conclude that the defendant failed to establish that he was prejudiced by the trial court’s decision not to instruct the jury on § 14-314.

B

The defendant claims that the trial court improperly instructed the jury on the issue of actual and constructive notice, specifically, that it improperly instructed on the issues of (1) prior icing, (2) the Eagan accident and (3) the snow and ice policy manual. We disagree.

1

The defendant claims that the trial court improperly charged the jury regarding the evidence of prior icing. We disagree.

The trial court charged: “Let me address first the evidence regarding an ice patch alleged to be present on Route 6 at Rattlesnake Mountain on February 19, 1993. The uses to which you can put this testimony depend upon whether you determine that the ice patch which allegedly existed on February 19, 1993, is the same ice patch as that which allegedly existed at the time of the [plaintiffs] accident. ... If you find . . . that it was not the same ice patch, but a wholly new and different ice patch, you may not consider it as evidence of actual notice but you may consider it for the limited purpose of determining whether and when the defendant should have known of the ice patch which the plaintiff claims caused her accident on February 20, 1993. . . . Turning now to the evidence regarding conditions at times other than February 19 and 20,1993, you may consider any such evidence only with regard to the issue of constructive notice.”

We have concluded that the evidence of prior icing conditions at the accident location is admissible. The trial court’s instructions adequately reflect the state of the law. In view of that conclusion, we cannot conclude that the trial court’s instruction on the issue of prior icing conditions was improper.

2

The defendant next claims that the trial court’s instruction regarding the Eagan accident was improper. We disagree.

The trial court instructed the jury: “You have also heard testimony regarding an automobile accident involving Matthew Eagan on February 19, 1993. You may consider that evidence only on the issue of whether the defendant had notice of the allegedly defective condition of the road prior to the plaintiffs accident and for no other purpose.” The trial court’s limiting instruction regarding the Eagan accident properly contained the jury’s deliberation on the issue of constructive notice. Unless there is evidence to the contrary, a jury is considered to have followed the trial court’s instructions. State v. Moye, 199 Conn. 389, 396, 507 A.2d 1001 (1986). The trial court’s instruction was proper.

3

The defendant’s argument that the trial court’s instruction regarding the snow and ice policy manual also must fail.

The trial court instructed the jury: “This testimony in evidence was also admitted into evidence for a limited purpose. Proof of a violation of provisions of the manual does not in and of itself establish plaintiffs case, nor does the manual itself set forth the law regarding the standard of care against which the defendant is to be judged.

“As I hope these instructions to you make clear, plaintiff must prove all four elements of her claim to prevail which alleges a statutory violation of General Statutes § 13a-144. However, you may consider the testimony and evidence relating to the snow and ice policy manual as a factor to be considered as you evaluate the methods and procedures the commissioner has used in attempting to fulfill his responsibility to reasonably investigate and detect highway defects. You may also consider the ice and [snow] policy manual insofar as it relates to the issue of whether the defendant had constructive notice of the defect alleged in this complaint.”

The defendant argues that the trial court’s instruction “permitted the jury to conclude, contrary to the law, that the defendant was required to anticipate hazardous conditions.” The defendant cites Carl v. New Haven, supra, 93 Conn. 628, for the proposition that the department’s duty is reactive, not anticipatory. While the defendant’s reading of Carl is correct, the trial court limited the jury’s deliberation to the issue of whether the department acted reasonably. The jury was entitled to consider the manual in determining whether the department responded within a reasonable amount of time. “What constitutes a reasonable length of time within which the defendant should have learned of the defect . . . [is] to be determined in the light of the particular circumstances of each case.” (Emphasis added; internal quotation marks omitted.) Lemonious v. Burns, supra, 23 Conn. App. 740. The trial court’s instruction, when read as a whole, was proper.

C

The defendant next claims that the trial court improperly instructed the jury regarding the issue of the melting and refreezing of ice. After a thorough review of the charge, and reading it as a whole, we conclude that the defendant’s claim lacks merit.

D

The defendant next claims that the trial court improperly instructed the jury on the issue of reasonable inspection.

The trial court instructed: “You may also consider the general proposition that the greater the likelihood of danger, the greater is the amount of care required in the exercise of the duty to make reasonable inspections.” The trial court’s instruction does not impose a heightened duty on the defendant. It merely states that the level of care must take into consideration the given circumstances. The instruction specifically states that the department must maintain a reasonable standard. Accordingly, the trial court’s instruction was proper.

E

The defendant finally claims that the trial court improperly instructed the jury on the sudden emergency doctrine.

“Whether a charge on the doctrine of sudden emergency was applicable is determined by the claims of proof advanced by the parties.” Miller v. Porter, 156 Conn. 466, 468, 242 A.2d 744 (1968). “Evidence was required which would be sufficient to support a finding (1) that an emergency actually existed, (2) that the perilous situation was not created by the [plaintiff], and (3) that the [plaintiff], confronted with the emergency, chose a course of action which would or might have been taken by a person of reasonable prudence in the same or a similar situation.” Id., 469.

There was evidence that the plaintiff encountered an emergency that she did not create. In response, she attempted to tap her brakes to regain control of her car and, when that failed, she attempted to steer to regain control. Each of the three elements of Miller has been met.

The trial court instructed: “Now, in your deliberations if you find that the plaintiff . . . was confronted with an emergency not of her own making, that does not excuse her from the use of due care, but it is a factor and you may consider it a significant factor in judging her conduct. The test would be the care of an ordinarily prudent person situated as [the plaintiff] was situated and confronted with such an emergency.” The trial court’s instruction accurately reflected the sudden emergency doctrine and correctly informed the jury concerning the plaintiffs duty to exercise reasonable care under the emergent circumstances. The trial court’s instruction, when read in its entirety, does not misstate the facts or the relevant law and, accordingly, we conclude that it was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13a-144 provides in relevant part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is Ihe duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court,. No such action shall be brought except within two years from the date of such injury, nor unless notice of such ipjury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. . . . The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.”

       Wo discuss the issue of whether the evidence presented was sufficient, to prove constructive notice in part II of this opinion.

       Connecticut has adopted the definition of unavailabilily found in Federal Rule of Evidence 804 (a). See State v. Middlebrook, 51 Conn. App. 711, 726, 725 A.2d 351, cert. denied, 248 Conn. 910, 731 A.2d 310 (1999).

       The jury was given interrogatoi'ies. The jury answered yes to both of the separate questions as to whether the department had actual and constructive notice of the alleged defect.'

       The jury answered yes to the following interrogatory: “Do you find that the defendant failed to use reasonable care to correct the very defect alleged, and that he had reasonable time to correct the defect?”

       “Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one [issue . . . Multiplying assignments of error will dilute and weaken a good case and will not save a bad one. . . . Most cases present only one, two, or three significant questions. . . . Usually ... if you cannot win on a few major points, the others are not likely to help. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones.” (Internal quotation marks omitted.) Jones v. Ippoliti, supra, 52 Conn. App. 201 n.4.

       General Statutes § 14-314 provides in relevant part: “Any person . . . failing to comply with any order made pursuant to any provision of this chapter shall be fined not more than five thousand dollars or imprisoned .... Any person . . . failing to comply with any traffic control signal, sign, marking or other device placed and maintained upon the highway, or with any regulation adopted pursuant to any provision of this chapter, by the State Traffic Commission or the traffic authority of any city, town or borough shall be deemed to have committed an infraction, if no otherpenalty is provided by law. Traveling at a greater rate of speed than is reasonable as provided in section 14-218a shall not be deemed to be a failure to comply with the provisions of this section but shall be deemed to be the commission of an infraction within the provisions of said section 14-218a.”

       Section 14-298-504 of the Regulations of Connecticut State Agencies provides: “(a) Regulatory signs give notice of traffic laws or regulations.
      “(b) Warning signs call attention to conditions on or adjacent to a highway or street that are potentially hazardous to traffic operations.
      “(c) Guide signs show route designations, destinations, directions, services, points of interest and other geographical, recreational or cultural information.”
      Section 14-298-519 (a) of the Regulations of Connecticut State Agencies provides: “Regulatory signs shall be used to inform highway users of traffic laws or regulations that apply at given places or on given highways, disregard of which is punishable by law.” (Emphasis added.)
      Section 14-298-526 (a) of the Regulations of Connecticut State Agencies provides in relevant part: “The Speed Limit sign shall display the limit established by law, or by regulation . . . .”
      Section 14-298-553 of the Regulations of Connecticut State Agencies provides: “Warning signs shall be used for the purpose of warning traffic of existing potentially hazardous conditions either on or adjacent to the road.” (Emphasis added.)

       We limit our analysis to whether the charge was proper with respect to the issue of constructive notice.


author: LAVERY, J.

text:
    NEW ENGLAND SAVINGS BANK v. MAUREEN CLARK
    (AC 18161)
    Laveiy, Schaller and Spear, Js.
    Argued March 22
    officially released July 6, 1999

      Paul M. Geraghty, for the appellant (plaintiff).

      Maureen Clark, pro se, the appellee (defendant), with whom, on the brief, was Charles J. Irving.

   Opinion

LAVERY, J.

The plaintiff, New England Savings Bank, appeals to this court following the trial court’s denial of its motion for postjudgment attorney’s fees filed pursuant to General Statutes § 52-400c. On appeal, the plaintiff claims that the trial court improperly denied it due process of law by (1) failing to refer the motion to the original finder of fact, (2) failing to hold an evidentiary hearing on the motion and (3) abusing its discretion in denying the motion. We reverse the judgment of the trial court.

The case has a lengthy history and only the following facts are relevant to our review. The defendant, Maureen Clark, signed a promissory note in favor of the plaintiff in March, 1988. Although the plaintiff made demand on the note in August, 1989, the defendant failed to make payment in full. The parties engaged in considerable motion practice before June, 1992, when judgment was rendered in favor of the plaintiff pursuant to the parties’ written stipulation. In March, 1995, the plaintiff initiated postjudgment discovery. In May, 1995, the defendant filed a motion to open the judgment. The motion to open was denied by the trial court, Austin, J., in March, 1996, following a three day hearing. Judge Austin issued a twenty-seven page memorandum of decision concluding, in part, that the defendant was not credible. On April 1, 1996, the defendant appealed following the denial of her motion. On April 30, 1996, the plaintiff filed a motion for attorney’s fees, pursuant to § 52-400c (3), claiming that the motion to open was filed for purposes of harassing or delaying the plaintiffs right to execute the judgment. The motion for fees was stayed pending the appeal.

This court affirmed the trial court’s denial of the defendant’s motion to open in a per curiam opinion. Thereafter, on January 7,1998, the plaintiff filed another motion for fees, adding to the ground previously claimed that the appeal also was taken for purposes of harassing or delaying the plaintiffs right to execute the judgment. The first page of the 1998 motion for fees contained the words “oral argument requested/testimony will be required.” The defendant objected to the 1998 motion for fees to which the plaintiff responded, in part, by asking that the motion be referred to Judge Austin. The 1998 motion for fees was assigned to the trial court, Handy, J., pursuant to short calendar procedures. Judge Handy denied the motion for fees without hearing oral argument from the parties or receiving testimony. Subsequently, in response to the plaintiffs request for a statement of decision filed pursuant to Practice Book § 64-1, Judge Handy issued a memorandum of decision stating, in part: “Section 52-400c of the General Statutes specifies that requests for such fees are ‘in the discretion of the court.’ In this court’s discretion, the plaintiff failed to establish a convincing argument that the motion to [open] was frivolous. While the plaintiff and even this very court may question the defendant’s motives, there is not enough information in this court’s record to establish either a meritless motion or a meritless appeal. The plaintiffs ‘saying it’s so’ does not ‘make it so.’ ” (Emphasis added.) Judge Handy also denied the plaintiffs motion for reconsideration. This appeal followed.

On appeal, the plaintiff claims that it was denied due process of law because Judge Handy improperly (1) abused her discretion in failing to refer the 1998 motion for fees to Judge Austin, (2) denied the plaintiff an evidentiary hearing on its motion for fees and (3) abused her discretion in denying the motion for fees. Only the second claim is a due process claim, which we have reformulated to ask whether the trial court was required to hold an evidentiary hearing on the plaintiffs § 52-400c (3) motion for fees.

The interpretation of a statute is a question of law requiring plenary review. See Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 458, 704 A.2d 222 (1997). Section 52-400c provides in relevant part: “In the discretion of the court, a reasonable attorney’s fee may be allowed to the prevailing party ... (3) for counsel at any other hearing that is reasonable and necessary for the enforcement of rights pursuant to a postjudgment procedure that is held on a claim or defense that the court determines was made for the purpose of harassment or solely for the purpose of delay.” (Emphasis added.) To determine whether the plaintiff was entitled to attorney’s fees, a question separate from the amount of attorney’s fees to which a party may be entitled, the trial court had to determine whether the defendant’s motion to open and her appeal were for the purpose of harassment or solely for delay, which is a question of fact.

“Generally, when the exercise of the court’s discretion depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Internal quotation marks omitted.) Woodward v. Woodward, 44 Conn. App. 99, 103, 686 A.2d 1010 (1997). It is fundamental that “when . . . issues of fact . . . are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Internal quotation marks omitted.) Nelson v. Nelson, 13 Conn. App. 355, 367, 536 A.2d 985 (1988).

Although neither the parties nor this court can find any law holding that a hearing is required with respect to a § 52-400c motion, the plaintiff looks to dissolution of marriage statutes where the trial court is permitted to award attorney’s fees, particularly General Statutes §§ 46b-62 and 46b-82, and relies heavily on Diamond v. Diamond, 32 Conn. App. 733, 744, 631 A.2d 1157 (1993). Although the factual question in Diamond is not on point, the case is instructive, as are Barco Auto Leasing Corp. v. House, 202 Conn. 106, 120, 520 A.2d 162 (1987) (plaintiff denied undisputed right to litigate reasonableness of attorney’s fees); Bizzoco v. Chinitz, 193 Conn. 304, 310, 476 A.2d 572 (1984) (insufficient evidence before trial court about services performed or time spent by counsel); and Appliances, Inc. v. Yost, 186 Conn. 673, 680, 443 A.2d 486 (1982) (no award for attorney’s fee may be made when evidence insufficient). Although the issue in none of those cases was whether a healing was required to determine whether attorney’s fees were warranted, they nonetheless support the proposition that a party is entitled to an evidentiary hearing on a question of fact. See also Housing Authority v. Lamothe, 225 Conn. 757, 767, 627 A.2d 367 (1993).

Judge Handy’s memorandum of decision states, in part: “In this court’s discretion, the plaintiff failed to establish a convincing argument that the motion to [open] was frivolous. While the plaintiff and even this veiy court may question the defendant’s motives, there is not enough information in this court’s record to establish either a meritless motion or a meritless appeal.” Despite the absence of information in the record and her own questions concerning the defendant’s motive, Judge Handy denied the plaintiff the opportunity to present evidence that either the motion to open or the appeal was taken to harass or delay the execution of the plaintiff s judgment. The failure to grant the plaintiff an evidentiary hearing is a denial of due process.

Where the record reveals that a party sought to present evidence to the court on a question of fact and the trial court itself comments on the lack of information in the record, a hearing is required. See Cromwell Commons Associates v. Koziura, 17 Conn. App. 13, 17, 549 A.2d 677 (1988). Here, the trial court should have held a hearing to determine whether the defendant filed her motion to open or took an appeal for the purpose of harassing or solely for the purpose of delay. Without a factual finding, there is no basis on which the trial court could exercise its discretion in determining whether attorney’s fees are warranted.

We hold that the plaintiff was denied due process of law because the trial court failed to hold a evidentiary hearing on its motion for fees. We, therefore, cannot determine whether the trial court improperly exercised its discretion in denying the plaintiff attorney’s fees, i.e., the plaintiffs third claim.

The denial of the plaintiffs motion for fees is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       During the pendency of this law suit, the plaintiff failed and was taken into receivership by the Federal Deposit Insurance Corporation, which assigned the loan to National Loan Investors, LP, the real party in interest.

       General Statutes § 52-400c provides in relevant part: “In the discretion of the court, a reasonable attorney’s fee may be allowed to the prevailing party ... (3) for counsel at any other hearing that is reasonable and necessary for the enforcement of rights pursuant to a postjudgment procedure that is held on a claim or defense that the court determines was made for the purpose of harassment or solely for the purpose of delay.”

        New England Savings Bank v. Clark, 44 Conn. App. 920, 690 A.2d 435 (1997).

       See Practice Book § 11-18 (a) (2).

       During the pendency of the appeal, Judge Austin’s status changed from that, of senior judge to judge trial referee.

       We note that this is a factual determination different from that made by Judge Austin in denying the defendant’s motion to open. Judge Austin was required to determine whether the judgment entered was the result of fraud, mistake or accident.