author: Shea, J.

text:
    The Griffin Hospital v. Commission on Hospitals and Health Care
    (12604)
    Healey, Shea, Dannehy, Aspell and F. Hennessy, Js.
    Argued March 13
    decision released June 11, 1985

      Thomas J. Ring, assistant attorney general, with whom were Richard J. Lynch, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, and Maite Barainca, assistant attorney general, for the appellant (defendant).

      A. Searle Pinney, with whom, on the brief, were Jeffrey B. Sienkiewicz and Michael S. McKenna, for the appellee (plaintiff).
   Shea, J.

Pursuant to the requirements of General Statutes § 19a-156 (a) the plaintiff hospital submitted to the defendant commission on hospitals and health care for its approval a proposed operating and capital expenditures budget for the fiscal year 1985 (October 1, 1984, through September 30, 1985). The commission disapproved the budget as submitted and ordered substantial reductions in operating expenses, revenues and capital expenditures. The hospital appealed the commission’s order pursuant to General Statutes §§ 19a-158 and 4-183 to the Superior Court. In conjunction with its appeal the hospital applied for a stay of the commission’s order until the appeal should be decided in the trial court. After a hearing the court issued a stay subject to several conditions. From this judgment staying the order until a decision on the merits of the appeal in the trial court, the commission, after obtaining certification under General Statutes § 52-265a on the grounds “that a substantial public interest is involved and that delay may work a substantial injustice,” has appealed to this court.

In claiming that the trial court erred in granting the stay, the commission claims: (1) that the provision of the Uniform Administrative Procedure Act, General Statutes § 4-183 (c), relied upon as authority for the stay, is inapplicable to administrative appeals involving the hospital rate regulation function of the commission; (2) that the trial court in reaching its decision did not employ the appropriate legal standard for staying an order of an administrative agency; and (3) that the stay, even with the conditions imposed, does not adequately protect the interests of patients or uphold the regulatory powers of the commission.

The plaintiff Griffin Hospital is a nonprofit institution that operates a 281 bed acute care general hospital in Derby. Its proposed operating budget for the 1985 fiscal year would provide $42,454,000 of “net patient revenue” and allow $39,210,000 of operating expenses. Its capital expenditures budget was $1,917,000. The defendant commission, after a hearing upon the proposed budget, ordered that net patient revenues be reduced to $31,114,000 and that capital expenditures be limited to $517,000.

Upon the hospital’s appeal from this order and its application for a stay thereof, following an evidentiary hearing that occupied two trial days, the court ordered a stay subject to the conditions that 20 percent of the revenues received in excess of those allowed under the commission’s order should be held in escrow, that patients’ bills contain a notice of possible refunds, and that the hospital report monthly to the commission its revenues and the amount held in escrow.

The hospital had also appealed the commission’s order of reductions in its operating and capital expenditures budget for the 1984 fiscal year. The trial court, Curran, J., had ordered a stay pending the outcome of that appeal and also had imposed conditions similar to those contained in the order before us, including a 20 percent escrow provision. A judgment on the merits of that appeal was rendered on June 19,1984, and the case was remanded to the commission for further proceedings to correct its order concerning the 1984 budget in accordance with the decision.

I

The claim of the commission that § 4-183 (c) of the Uniform Administrative Procedure Act (UAPA) is inapplicable when an appeal is taken from orders relating to hospital budgets is based upon the assumption that, absent commission approval, none of the proposed charges or expenditures may be implemented. The commission analogizes its function in approving hospital budgets to the rate-making authority of the public utilities control authority where a stay pursuant to an appeal by a regulated company merely leaves in effect previously approved rates and does not allow the collection of a requested increase that has been denied by the agency. See Connecticut Light & Power Co. v. Public Utilities Control Authority, 34 Conn. Sup. 172, 175, 382 A.2d 1003 (1977). This feature of rate regulation by that agency is based upon a statutory provision that expressly prohibits a public service company from charging rates in excess of those previously approved. General Statutes § 16-19. No comparable provision is found in the statutes defining the powers of the commission on hospitals and health care; General Statutes §§ 19a-145 through 19a-166; though its ultimate authority to control rates and budgets, after an opportunity for judicial review, cannot be disputed. See Hospital of St. Raphael v. Commission on Hospitals & Health Care, 182 Conn. 314, 317, 438 A.2d 103 (1980).

General Statutes § 19a-158 provides expressly that health care institutions aggrieved by a decision of the commission may appeal in accordance with § 4-183 of the UAPA. Under subsection (c) of § 4-183 such an appeal does not automatically stay enforcement of an agency decision, but either the court or the agency may grant “a stay upon appropriate terms.” See Laurel Park, Inc. v. Pac, 194 Conn. 677, 686, 485 A.2d 1272 (1984). The commission, while recognizing that § 4-183 (c) literally empowers a court to stay a commission order when an appeal is taken, contends that such a stay cannot affirmatively authorize a budget that has been disapproved by that agency. We perceive no such limitation on the broad authority given to a court by § 4-183 (c) to order “a stay upon appropriate terms.” Stays of enforcement of the orders of an administrative agency frequently have the effect of permitting the continuation of activities that normally require a license or other authority from an agency to be conducted legally. When a person appeals from the revocation of or refusal to renew his license or from orders affecting the operation of a business, a stay necessarily sanctions for its duration conduct that has been disapproved by the controlling agency.

The provision for “a stay upon appropriate terms” gives the court broad authority to fashion appropriate relief to protect the interests of all those involved during the pendency of an administrative appeal. The court, therefore, was not confronted with a Hobson’s choice of adopting wholly the budgets favored by either the hospital or the commission. In granting a stay upon “appropriate terms” it could modify those proposals or effectuate its own budgetary plan as a modus vivendi.

II

The commission claims next that the trial court used an erroneous standard in deciding to grant a stay. The court did not file a memorandum of decision but, in announcing the judgment at the conclusion of the testimony and arguments, indicated that a “balancing of the equities” test had been followed. This test was defined as “a test which weighs the equities and balances the harm that may be suffered by the Appellant as the result of the enforcement of the Agency order or the decision, pending the appeal, against the public harm that may result from delaying the effectiveness of the Order or Decision.” The court appears to have followed the language contained in a trial court decision; Connecticut Life & Health Ins. Guaranty Assn. v. Daly, 35 Conn. Sup. 13,16-17, 391 A.2d 735 (1977); which adopted the balancing test suggested in 2 Cooper, State Administrative Law, p. 629. See McCarthy v. Freedom of Information Commission, 35 Conn. Sup. 186, 188-89, 402 A.2d 1197 (1979).

The state argues for a more demanding test in granting a stay, such as that developed by the federal courts in appeals arising under the federal administrative procedure act. Hamlin Testing Laboratories, Inc. v. United States Atomic Energy Commission, 337 F.2d 221, 222 (6th Cir. 1964); Virginia Petroleum Jobbers Assn. v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958). This standard for a stay was applied in another trial court decision, Waterbury Hospital v. Commission on Hospitals & Health Care, 30 Conn. Sup. 352, 354-55, 316 A.2d 787 (1974). The federal standard focuses upon: (1) the likelihood that the appellant will prevail; (2) the irreparability of the injury to be suffered from immediate implementation of the agency order; (3) the effect of a stay upon other parties to the proceeding; and (4) the public interest involved. These concerns are not incompatible with the “balancing of the equities” test used by the trial court. The particular factors specified in the federal standard undoubtedly warrant consideration by the trial court in the balancing process.

In the analogous situation of a temporary injunction to preserve the status quo until the rights of the parties can be determined after a full hearing on the merits, we have said that “the court is called upon to balance the results which may be caused to one party or the other, and if it appears that to deny or dissolve it may result in great harm to the plaintiff and little to the defendant, the court may well exercise its discretion in favor of granting or continuing it, unless indeed, it is very clear that the plaintiff is without legal right.” (Emphasis added.) Olcott v. Pendleton, 128 Conn. 292, 295, 22 A.2d 633 (1941). This criterion necessarily requires consideration of the probable outcome of the litigation. Decisions of our trial courts have frequently referred to the burden of an applicant to show a reasonable degree of probability of success before a temporary injunction to preserve the status quo may be granted. Connecticut State Medical Society v. Connecticut Medical Service, Inc., 29 Conn. Sup. 474, 477-78, 293 A.2d 794 (1971); Hopkins v. Hamden Board of Education, 29 Conn. Sup. 397, 417, 289 A.2d 914 (1971); Torrington Drive-In Corporation v. I.A.T.S.E.M.P.M.O. Local 402, A.F.L., 17 Conn. Sup. 416, 418 (1951) The need to show an irreparable loss unless the status quo is preserved has also been often mentioned. Covenant Radio Corporation v. Ten Eighty Corporation, 35 Conn. Sup. 1, 3, 390 A.2d 949 (1977); Colchester v. Reduction Associates, Inc., 34 Conn. Sup. 177, 185, 382 A.2d 1333 (1977). The cases have also alluded to the harm likely to be sustained by other parties as well as the public from preservation of the status quo. Connecticut Assn. of Clinical Laboratories v. Connecticut Blue Cross, Inc. 31 Conn. Sup. 110, 121, 324 A.2d 288 (1973); Martino v. L. D. DeFelice & Son, Inc., 16 Conn. Sup. 18, 19 (1948).

These considerations involve essentially the application of familiar equitable principles in the context of adjusting the rights of the parties during the pendency of litigation until a final determination on the merits. See Stocker v. Waterbury, 154 Conn. 446, 451, 226 A.2d 514 (1967); Sisters of St. Joseph Corporation v. Atlas Sand, Gravel & Stone Co. 120 Conn. 168, 176-77, 180 A. 303 (1935). We have indicated that the same principles are pertinent to the “due administration of justice” criterion of Practice Book § 3065 in deciding whether a stay following a judgment in the trial court should be terminated while an appeal is pending in this court. Northeastern Gas Transmission Co. v. Benedict, 139 Conn. 36, 42-43, 89 A.2d 379 (1952). It is not possible to reduce all of the considerations involved in stay orders to a rigid formula, however, as the commission claims the federal standards to require.

While we thus approve the “balancing of the equities” test employed by the trial court, we do not in its application eschew such factors as the likely outcome of the appeal, the irreparability of the prospective harm to the applicant, or the effect of delay in implementation of the order upon other parties as well as upon the public interest. We have vested a large measure of discretion in trial judges in terminating or granting stays and, upon review, the issue usually is whether that discretion has been abused. Hartford v. Hartford Electric Light Co., 172 Conn. 13, 14, 372 A.2d 130 (1976); Northeastern Gas Transmission Co. v. Benedict, supra, 41. The court in announcing the judgment from the bench at the conclusion of the trial in this case did not specify what ingredients had entered into the conclusion reached from balancing the equities “that more harm would be suffered by the Griffin Hospital, were the court not to grant the stay, than the other way around.” The parties, however, had filed elaborate trial briefs discussing the very claims raised in this appeal, including the factors to be considered under the federal standard. These were supplemented after completion of testimony by unrecorded oral arguments in which the parties presumably discussed the same contentions. Since no further articulation of the basis for the judgment has been sought from the trial court, we cannot ascertain precisely what factors were considered in arriving at the conclusion that the balance of the equities favored granting a stay upon the conditions specified. “We have frequently indicated that if an appellant requires amplification or clarification of the factual basis of a decision to present his claims of error he should seek a further articulation from the trial court.” Newington v. General Sanitation Service Co., 196 Conn. 81, 84, 491 A.2d 363 (1985). We cannot assume, as the commission contends, that the trial court did not give due weight to such concerns as the probable outcome of the appeal, the irreparability of the loss, and the interests of other parties as well as the public.

In sum, the claim that the court applied the wrong standard must be rejected because we approve the “balancing of the equities” test that was used. Among the “equities” to be placed on the scales, of course, are the general equitable considerations which are involved in the issuance of a temporary injunction to preserve the status quo pendente lite. These include the concerns specified in the federal standard, which appear to have been derived from the same equity source. The failure of the trial court to refer to them specifically in rendering judgment does not, in the absence of a request for further articulation, imply that they were ignored in the balancing process used.

In arguing that the court applied an inappropriate standard, the commission claims that the hospital failed to make “any showing” in respect to (1) irreparable injury and (2) the probability of overturning the agency order. Our review indicates sufficient support for the stay in both these respects. There was testimony that the hospital would experience serious difficulties in rebilling patients for additional charges if its proposed 1985 budget should be upheld on appeal and that substantial amounts of revenue would be irretrievably lost. Many programs and facilities, such as the emergency department, the psychiatric department, the teaching program, and one medical-surgical unit would have to be closed immediately. These services presumably would have to be reestablished if the appeal should be successful.

With respect to the likelihood of success, the hearing on the stay did not purport to explore fully the merits of the hospital’s appeal, but the court did have the benefit of the decision concerning the 1984 budget appeal, in which $2,150,000 was restored to the hospital’s operating budget and $689,000 to its capital budget. Although this 1984 budget decision has since been appealed to this court, where it is still pending, it was significant with respect to the merits of at least some of the issues, because the commission used its 1984 budget order as the basis for its action on the 1985 budget. It does not appear that at the hearing on the stay in this case the commission made any counter proposal to allow the hospital to collect revenues for 1985 in accordance with the 1984 budget decision. Although that decision might well have served as a guideline for the trial court in fashioning the conditions of the stay, in the absence of such a suggestion by the commission, we find no abuse of discretion in the failure to have done so. In any event the earlier decision could be viewed by the court as indicating that some of the hospital’s contentions had substantial merit.

Ill

The remaining claim is that the stay as ordered did not adequately protect the interests of patients or uphold the regulatory powers of the commission. The central issue raised is whether the trial court abused its discretion in concluding from the evidence that the circumstances warranted a stay upon the conditions imposed. See Hartford v. Hartford Electric Light Co., supra, 14; Northeastern Gas Transmission Co. v. Benedict, supra, 41.

The commission claims that, since the purpose of a stay is to preserve the status quo pending the outcome of a suit, the court should have required that all of the revenue collected by the hospital in excess of that authorized in the revised 1985 budget ordered by the commission be placed in escrow instead of only 20 percent, as provided in the stay order. From the testimony presented, however, the court could reasonably have found that the amount ordered to be escrowed would be sufficient to reimburse any patients who might ultimately prove to have been overcharged. It appeared that only 10 percent of the patients paid their charges directly. About 45 percent of hospital revenues came from Medicare patients whose bills were not paid on the basis of the rates established by the hospital but according to a schedule of fixed charges for services set by federal authorities. Blue Cross payments provided 30 percent of patient revenues and these are subject to a discount of 11 percent at the end of the year. Commercial insurers, who ordinarily do business on a continuing basis with the hospital, paid the remaining 15 percent of patient revenues. A 20 percent escrow had been established in the stay order issued pending the appeal of the hospital’s 1984 budget. There was testimony that if both the 1984 and 1985 budget appeals were wholly unsuccessful, the amount of the resulting refund would be $3,800,000, of which $2,400,000 would have accumulated under the 20 percent escrow. Of the balance of $1,400,000 to be refunded, $1,000,000 was presently available from unrestricted funds donated to the hospital, leaving $400,000 to be obtained from lenders or other sources. The evidence, therefore, provides support for the conclusion of the court that the 20 percent escrow, together with other hospital resources, provided sufficient security for any refunds which might ultimately be required. An escrow of the full amount of revenues collected above the amounts authorized by the commission was not required on the basis of the evidence presented to give adequate assurance that any necessary refunds would be made.

The commission argues also that the effect of the stays granted in both the 1984 and 1985 budget appeals, as well as the delays incidental to a final resolution of them, have seriously undermined the commission’s regulatory authority. The basis for this claim is that the failure of the hospital to reduce its expenses to the level approved by the commission by curtailing its staff and services will increase the hardship entailed in the event that compliance with the commission’s orders is ultimately required. While we recognize that the delay in the implementation of the order of the commission does detract from its effectiveness, this consideration must be balanced against the inequity of compelling the hospital to make staff and service reductions which may be found after judicial review to have been unwarranted. Given the large discretion vested in the trial courts in such matters, we cannot say that the delay in implementation of the commission’s order, if it is ultimately upheld, necessarily outweighs all the other considerations involved.

There is no error.

In this opinion the other judges concurred.

        In Laurel Park, Inc. v. Pac, 194 Conn. 677, 678-79 n.l, 485 A.2d 1272 (1984), we determined that appeals certified pursuant to General Statutes § 52-265a are not subject to the final judgment restriction upon our jurisdiction imposed by General Statutes § 52-262.

       This federal standard is similar to the 1981 version of the Model State Administrative Procedure Act, 14 U.L.A. (1985 Sup.) § 5-111 (c), which provides:
      “(c) If the agency has found that its action on an application for stay or other temporary remedies is justified to protect against a substantial threat to the public health, safety, or welfare, the court may not grant relief unless it finds that:
      “(1) the applicant is likely to prevail when the court finally disposes of the matter;
      “(2) without relief the applicant will suffer irreparable injury;
      “(3) the grant of relief to the applicant will not substantially harm other parties to the proceedings; and
      “(4) the threat to the public health, safety, or welfare relied on by the agency is not sufficiently serious to justify the agency’s action in the circumstances.”
      This standard under the 1981 revision is applicable only after an agency has denied a requested stay and claims that such denial “is justified to protect against a substantial threat to the public health, safety, or welfare.” In the present case no such application was made or denied and no such finding is contained in the record. Our own adaptation of the Model Administrative Procedure Act under the title, Uniform Administrative Procedure Act, General Statutes §§ 4-166 through 4-189, has not been amended to incorporate § 5-111 (c) of the 1981 revision.

       It is not clear from the testimony how the amount of the liability of the hospital for refunds to Blue Cross would have been affected by this discount arrangement. If the provision for the discount were applicable only to the charges as billed in accordance with the hospital’s proposed budget and were inapplicable to the rates as established by the commission, there would be a substantial reduction in this potential liability. The failure of the commission to request a further articulation on this point makes it impossible to ascertain what reliance the court placed upon this testimony in determining that a 20 percent escrow was adequate.

       The potential liability of the hospital for refunds to commercial insurers would not differ essentially from its liability to self-payers. The court might have concluded, however, that these institutional payers, by virtue of their ongoing indebtedess to the hospital as a result of their continuing business relationship, required less protections in the form of an escrow than individual self-payers.


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    Stanley P. Wassell et al. v. Wolcott C. Hamblin, Jr.
    (12443)
    Healey, Shea, Dannehy, Santaniello and O’Neill, Js.

      Argued March 15
    decision released June 18, 1985

      Snow Gene Munford, for the appellants (plaintiffs).

      Ralph G. Eddy, with whom, on the brief, was Michael E. Riley, for the appellee (defendant).
   Arthur H. Healey, J.

In this tort action, which arose out of a two-car collision on December 24,1980, the complaint sought damages for personal injuries sustained by the plaintiffs, Gail Wassell and Pia Nordlander, against the defendant Wolcott C. Hamblin, Jr. The Hamblin car crossed over to the wrong side of the highway and struck the Wassell car which was operated at the time by Stanley Wassell. Gail, Stanley’s wife, was a passenger in the front seat and Pia was a passenger seated in the rear at the left. At the time of the accident, neither plaintiff was using the seat belts with which the car in which they were riding was equipped.

Just prior to jury selection, the defendant admitted liability and was permitted, over objection, to amend his answer. The amended answer contained two special defenses, one directed to Gail and the other to Pia. They each alleged: “The Plaintiff[’s] . . . failure to wear seat belts contributed to the damages being claimed by her.” During the trial, the defendant did not call any witnesses or adduce any evidence, but relied solely on his cross-examination of the plaintiffs’ witnesses. At the close of the evidence, the plaintiffs moved to “dismiss” the special defenses on the ground that there was insufficient evidence that the nonuse of seat belts contributed to any of the injuries and damages claimed by either plaintiff. The trial court denied the motion. The trial court charged the jury on the special defenses and the plaintiffs duly excepted. The jury returned a verdict for each of the plaintiffs. The trial court denied the plaintiffs’ motion to set aside the verdicts, again rejecting their claim that the evidence was insufficient to justify the jury instruction on the special defenses of nonuse of seat belts, and further found that, in any event, “[a]ny error claimed” was cured by the general verdict in the case. This appeal followed.

On appeal, the plaintiffs claim that the trial court erred in: (1) allowing the defendant to amend his answer on the day of trial to allege the special defenses of nonuse of seat belts; (2) denying their motion to dismiss the special defenses at the close of the evidence; (3) instructing the jury on this special defense when there was no evidence introduced on this issue and no proof of any causation between the nonuse of the seat belts and the damages claimed; and (4) refusing to set aside the verdicts on the ground that the existence of a general verdict in this case cured any error claimed by the plaintiffs. We find error.

Initially, the plaintiffs claim in this court that the trial court erred in allowing the defendant to amend his answer to include the special defenses, claiming that the amendments were untimely and clearly prejudicial. “The grant or denial of a motion to amend the pleadings is a matter within the discretion of the trial court.” Tedesco v. Julius C. Pagano, Inc., 182 Conn. 339, 341, 438 A.2d 95 (1980); Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983). “In the interest of justice courts are liberal in permitting amendments; unless there is a sound reason, refusal to allow an amendment is an abuse of discretion.” Tedesco v. Julius C. Pagano, Inc., supra. “The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case. ‘The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial.’ ” (Citations omitted.) Wallingford v. Glen Valley Associates, Inc., supra, 161-62, quoting Tedesco v. Julius C. Pagano, Inc., supra, 341-42. At the time the amendments were granted, although the plaintiffs did argue untimeliness, they did not request any continuance nor did they make any claim of prejudice. Under the circumstances, we cannot find an abuse of discretion in granting the amendments.

Turning to the seat belt issue, we point out that the plaintiffs have not challenged the legal sufficiency of the special defenses pleaded in this case, and the parties all agree that these pleadings were interposed solely as a ground for “mitigating” the damages claimed by the plaintiffs. The special defenses alleged that each plaintiff’s “failure to wear seat belts contributed to the damages being claimed by [each of them].” (Emphasis added.) We review this issue on the theory upon which it was presented and decided in the trial court. Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A. 2d 514 (1985), and cases there cited; see Maltbie, Conn. App. Proc. § 42. In their brief, the plaintiffs contend “that notwithstanding the propriety of allowing the nonuse of seat belts to be considered by the jury on the issue of mitigation of damages, the submission in the instant case was error because there was no evidence presented on this issue.” In claiming that the defendant did not sustain his burden on this issue, they maintain that “submission of the special defense . . . was clearly erroneous because of the total lack of evidence linking nonuse of a seat belt to the plaintiffs’ injuries.” On the other hand, the defendant argues that not only was there sufficient evidence on the issue to justify submitting it to the jury but, in any event, the application of the general verdict rule “precludes consideration of the plaintiffs’ claims of error in the jury instruction on the seat belt special defense.” We agree with the plaintiffs.

The plaintiffs’ claim that the trial court erred in submitting the special defenses to the jury because there was no evidence linking the plaintiffs’ nonuse of the seat belts to their injuries is meritorious. The special defenses in their terms, the theory of the case as tried by the parties, and the trial court’s instructions all have the common predicate that the alleged nonuse “contributed” to the damages suffered. The defendant thus had the burden of proof on the issue so raised by him, and this required that he prove that the damages, or at least a portion of them, were proximately caused by the nonuse of the seat belts. After an examination of the record in this case, we agree with the plaintiffs’ claim that there was no evidence that the nonuse of the seat belts had “contributed” to their injuries, and, therefore, the jury was left to sheer speculation on the element of causation. “It is established law that it is error for a court to submit to the jury an issue which is wholly unsupported by the evidence. State v. Rose, 169 Conn. 683, 687, 363 A.2d 1077 [1975].” Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979); see Josephson v. Meyers, 180 Conn. 302, 306, 429 A.2d 877 (1980); Bonner v. Winter, 175 Conn. 41, 48, 392 A.2d 436 (1978); Mack v. Perzanowski, 172 Conn. 310, 313, 374 A.2d 236 (1977).

The error committed by the trial court in submitting the seat belt special defenses to the jury requires that the general verdict claim advanced by the defendant be rejected. See Novak v. Anderson, supra.

There is error, the judgment is set aside and the case is remanded for a new trial limited to the issues of damages of the plaintiffs.

In this opinion the other judges concurred.

       The trial court’s instructions on the special defenses were as follows:
      “Now, when a defendant asserts a Special Defense, he has the burden of proving his allegations by a fair preponderance of the evidence, and you will recall my definition of a fair preponderance of the evidence; additionally the defendant must prove that the plaintiffs’ failure to wear seat belts was the proximate cause which contributed to the damages being claimed by them.
      “The question you should consider is whether the conduct of the plaintiffs in not wearing seat belts was a substantial factor in contributing to their injuries. If so, then the plaintiffs’ conduct may be found to be a proximate cause in contributing to their injuries. If the conduct of the plaintiffs, in not wearing seat belts, was not a substantial factor in contributing to their injuries, then it was not a proximate cause and you may accordingly disregard the defendant’s Special Defense. The burden of proving these two Special Defenses rests upon the defendant. The plaintiffs do not have to disprove them. . . .
      “Now, in evaluating the damages to be awarded to the plaintiffs, you may consider the allegations of the defendant’s special defense, namely that their failure to wear seat belts contributed to the damages being claimed by them.
      “Applying the rules of proof and proximate cause previously charged, if you find that the plaintiffs’ failure to wear seat belts did in fact contribute to their damages, then you may offset from any sum to be awarded, a sum attributable to their failure to fasten their seat belts. In arriving at this sum however, you may not speculate or guess. You must find in the evidence some reasonable basis upon which to arrive at a set-off or discount for failure to wear a seat belt. Whether the plaintiffs’ damages would have been lessened had they been wearing seat belts at the time of the accident, is for you to determine. If on the other hand, you find that the defendant has not proved his special defenses or that the plaintiffs’ damages would have been lessened, then you may disregard the special defense.”
      The plaintiffs’ exception to the instructions was as follows:
      “Mr. Munford: I just have the same exception, Your Honor. Well, not the same I just except to the—
      “The Court: Sure.
      “Mr. Munford: Charge of The Court on the seat belts because there was no evidence to show that the seat belts played any part in the injuries pro or con.”

       In his appellate brief, the defendant states: “Although the seat belt defense has been submitted in some cases as a defense to liability, in this case it is proposed solely as a ground for mitigation of damages. It is the Defendant’s claim that the Plaintiffs’ injuries would have been lessened had they been wearing the seat belts with which their automobile was equipped.”

       Counsel have urged upon us that, in deciding this case, we establish some law on the so-called “seat belt defense.” Our disposition of this case, in the posture in which it is presented to us after the theory upon which it was tried below, does not require that we reach that issue. It is, of course, elementary in our jurisprudence that we do not consider academic questions; Zoning Commission v. Tarasevich, 165 Conn. 86, 92, 328 A.2d 682 (1973); nor do we give advisory opinions. There can be no question that “[l]aw suits are not determined by a consideration of philosophy in the abstract, but by the application of legal principles to the facts of a particular case”; Lomas & Nettleton Co. v. Waterbury, 122 Conn. 228, 234, 188 A. 433 (1936); and that “[tjhis court does not sit to advise on abstract principles. Kellems v. Brown, 163 Conn. 478, 496, 313 A.2d 53 [1972], appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 [1973].” Rosnick v. Zoning Commission, 172 Conn. 306, 308-309, 374 A.2d 245 (1977). We do recognize, however, that we have occasionally, in a proper case, gone “beyond the rather narrow assignment of error” to consider certain matters on their broader aspects where the interests of public welfare and justice so required. Harvey Textile Co. v. Hill, 135 Conn. 686, 691, 67 A.2d 851 (1949); Leary v. Citizens & Manufacturers National Bank, 128 Conn. 475, 478-79, 23 A.2d 863 (1942); Boardman v. Burlingame, 123 Conn. 646, 655, 197 A. 761 (1938). We are keenly aware that a fundamental component of the mission of a state court of last resort is to step up in a proper case and establish precedent and guidelines for future conduct of litigation that comes into our trial courts. This appeal is not such a case. We are not saving the question for another day because the question counsel want answered simply is not here. The exercise of judicial power here is ill-suited to a hypothetical issue resting on abstract assumptions that could not result in any practical relief to the parties in this case who have framed and briefed the issues we have today decided.
      Parenthetically, we note that the “seat belt defense” question has already drawn legislative attention and action in the past. See General Statutes § 14-100a (c). It is not illusory to expect that it presents a fertile area for further legislative attention and action. While courts should act in appropriate circumstances, this, as we have said, is not such a case. As we have previously stated, “[t]he legislature is . . . free to conclude that the risks associated with unsafe driving on modem highways justify different legislative action than was appropriate in the horse-and-buggy circumstances of Camp v. Rogers, 44 Conn. 291 (1877) . . . .” Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 289 n.8, 472 A.2d 306 (1984).

       Because of the claims of the parties as well as the theory upon which the case was tried, we need not discuss whether, in the absence of an applicable statute requiring the use of seat belts, the defendant could employ the special defense in this case for anything more than “mitigating” the plaintiffs’ damages. At the time of the accident in this case, Connecticut had no statute requiring the use of seat belts. We do note, however, that when this case was tried in 1984, there was a statute entitled “Seat safety belts. Child restraint systems” to which subsection (c) was added by Public Acts 1982, No. 82-292, which provides: “Any person who transports a child under the age of four years in a motor vehicle on the highways of this state shall provide and require the child to use a child restraint system approved pursuant to regulations adopted by the department of motor vehicles in accordance with the provisions of chapter 54. For any child between the ages of one year and four years, a seat safety belt in the rear seat of the motor vehicle which complies with the provisions of subsection (b) of this section may be used in lieu of a child restraint system. As used in this subsection, motor vehicle does not mean a recreational vehicle of the truck or van type or a truck or bus having a tonnage rating of one ton or more. Failure to use a child restraint system shall not be considered as contributory negligence nor shall such failure be admissible evidence in any civil action. Violation of this subsection shall be an infraction. The court shall waive any fine imposed on a person who violates this subsection if such person provides proof that he acquired and installed a child restraint system meeting the requirements of this subsection on or before the court appearance date.” (Emphasis added.)
      The record in this case indicates that neither of the plaintiffs would fall within subsection (c).

       At the trial, during which the defendant did not call any witnesses, the evidence on the seat belt issue came from the cross-examination of the plaintiffs. On cross-examination, the plaintiff Gail Wassell testified as follows:
      “Q. Mrs. Wassell, where were you seated in the vehicle just prior to the crash?
      “A. In the passenger side.
      “Q. And were you looking ahead at the time?
      “A. No, I think I was looking down and then all of a sudden my eyes glanced up and I just saw the headlights.
      “Q. Did you have glasses on at the time?
      “A. Yes, I did.
      “Q. And the glass that injured your eye was from the windshield?
      “A. No, actually the cut that I got from my eye was my glasses that came back and broke on the corner here and went into the corner of my eye.
      “Q. Did you have a seat belt on at the time?
      “A. No, I did not.
      “Q. Did you hit the dashboard as a result of the crash?
      “A. Yes, my knee was — well, we had Fiat car and the car’s small anyway and I had to have my seat up as — moved up as far as I could for the passengers in the back for their legs.
      “Q. After you were removed from the vehicle, after the crash you were taken to Hartford Hospital?”
      On cross-examination, the plaintiff Pia Nordlander testified as follows:
      “Q. You were seated in the back of the car on the left side?
      “A. Yes, I was.
      “Q. And the window is what caused the cut on your left cheek?
      “A. Yes, I believe it was.
      “Q. Did you have a seat belt on at that time?
      “A. No.
      “Q. Now you mentioned before that your health was good up until the time that the accident had happened and what was . . . .”
      The defendant refers to the evidence of the nature of the impact in which the plaintiffs’ vehicle was hit and the movements of the plaintiffs within their car at the time of impact. Such evidence is no basis for any finding by the jury on the element of the proximate cause of any injury to either plaintiff resulting from the nonuse of seat belts.
      We also note the mechanics of this collision did not result in either plaintiff being thrown from their car. Cf. generally Caiazzo v. Volkswagenwerk A.G., 468 F. Sup. 593 (E.D.N.Y. 1979), aff’d in part, rev’d in part and remanded, 647 F.2d 241 (2d Cir. 1981).


text:
    State of Connecticut v. One 1977 Buick Automobile
    (12485)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.

      Argued March 14
    decision released June 18, 1985

      Timothy C. Moynahan, for the appellants (owner and operator).

      Peter D. Markle, assistant state’s attorney, for the appellee (state).
   Shea, J.

This is an appeal from a judgment declaring a 1977 Buick automobile to be a nuisance and ordering the automobile forfeited to the state. The appellants are the owner of the automobile, Joyce DeLorenzo, and the person whose alleged criminal use of the automobile led to its adjudication as a nuisance, William McNellis. The appellants claim that the judgment of forfeiture must be overturned because (1) a statutory-prerequisite to forfeiture, seizure pursuant to a search warrant, was not met, (2) McNellis was unlawfully excluded from the in rem proceeding, (3) evidence obtained through an unlawful search was admitted, (4) the evidence did not support the judgment, (5) forfeiture would unduly punish the innocent owner of the vehicle, and (6) the acquittal of McNellis on related criminal charges should have barred the subsequent forfeiture action. We find no error and affirm the forfeiture order.

The trial court could reasonably have found the following facts from the conflicting evidence. As a result of a prior investigation, a warrant was issued on January 29, 1982, for the arrest of William McNellis on charges of gambling activity. On February 24, 1982, Trooper Jules Lloyd, a member of the state police then assigned to the Statewide Organized Crime Investigative Task Force, recognized McNellis as the driver of a 1977 Buick automobile traveling on Springdale Street in Meriden. There was a female passenger in the automobile with McNellis. The trooper was aware of the outstanding warrant for the arrest of McNellis and caused the Buick to be pulled over to the side of the road. Lloyd radioed his location and situation to headquarters in Meriden, and other troopers were dispatched with a copy of the arrest warrant for McNellis. Meanwhile, Lloyd approached the Buick, noticing as he did so that McNellis was partially turned away from the driver’s side window of the vehicle, concealing his activities from the trooper. Lloyd informed McNellis that he had a warrant for McNellis’ arrest and requested that McNellis step out of the Buick. McNellis asked to see the warrant. Lloyd repeated that he had a warrant and again asked McNellis to get out of the vehicle. At this point, McNellis, while still in the automobile, ripped up a piece of white paper and put the pieces in the Buick’s glove compartment, together with what looked like a bank book. McNellis then turned to his companion, Robin McClellan, and stated either “I don’t want them to fool with my books” or “I don’t want them to get my books . . . .” McNellis slammed the glove compartment door shut. McNellis eventually exited the vehicle and was arrested by Lloyd. The Buick was towed to the state police office in Meriden.

Lloyd then prepared an application for a warrant to search the Buick for gambling records. The warrant was issued, and the trooper retrieved the torn pieces of paper, and also a bank book and an address book, from the Buick’s glove compartment. While a summons to the in rem proceeding was served upon both DeLorenzo and McNellis, only DeLorenzo, the owner of the car, was made a party defendant in the forfeiture action. At the trial, Trooper John Drescher testified that the torn pieces of paper found in the glove compartment constituted “a tally sheet, a record of amounts) of money owed in connection with previously placed wagers.” The trial court concluded that the Buick had been used “to store or conceal gambling records” as defined in General Statutes § 53-278a (5), which constituted criminal conduct under then General Statutes § 53-278c (e) (now § 53-278c [f]). The court adjudicated the Buick a nuisance and ordered it forfeited to the state pursuant to General Statutes § 54-33g (c). McNellis was eventually acquitted of the crimes for which he was arrested on February 24,1982.

I

We first address the appellants’ claim that the forfeiture order was erroneous because a statutory prerequisite to forfeiture under General Statutes § 54-33g (c), seizure pursuant to a search warrant, was not met. In this case, the car was seized when the police took McNellis into custody on an arrest warrant. After the Buick had been towed to the Meriden police station, a search and seizure warrant for gambling records was obtained, and the torn slips of paper were retrieved from the glove compartment. The in rem proceeding was then instituted. The appellants argue that, at the time of the proceeding below, General Statutes § 54-33g provided for forfeiture only of property seized “pursuant to subdivision (1) of subsection (b) of section M-33&.” General Statutes § 54-33a (b) (1) provides that a judge of the Superior Court may issue a warrant permitting the search for and seizure of listed property that had allegedly been “possessed, controlled, designed or intended for use or which is or has been used or which may be used as the means of committing any criminal offense . . . ,” While the torn tally sheet was recovered pursuant to a warrant authorizing the search of the 1977 Buick, the warrant listed as its subject gambling records, not the vehicle itself, which was already in police custody. The appellants claim that it was necessary for the police to seize the vehicle pursuant to a search warrant before attempting to confiscate it.

The case law of this state provides some support for the appellants’ contention. In State v. Sabia, 1 Conn. App. 315, 471 A.2d 673 (1984), the court concluded that General Statutes § 54-33g (c), “read strictly, as it must be, requires that the issuance of the warrant, pursuant to which the property sought to be confiscated is seized, precede the seizure and that the seizure take place pursuant to that warrant. See State v. Bucchieri, [176 Conn. 339, 348, 407 A.2d 990 (1978)]; State v. Anonymous (1980-8), 36 Conn. Sup. 551, 559, 421 A.2d 867 (1980).” State v. Sabia, supra, 318; see also State v. Rosarbo, 2 Conn. Cir. Ct. 399, 404-407, 199 A.2d 575 (1963). Similarly, in State v. Pierro, 192 Conn. 98, 103 n.5, 470 A.2d 240 (1984), we noted that “§ 54-33g relates only to property which has been seized pursuant to a search warrant issued under General Statutes § 54-33a (b) (1) . . . .” The 1977 Buick at issue in this case was initially seized incident to an arrest, rather than pursuant to a warrant, and the warrant that eventually did issue called only for the search of the vehicle and the seizure of any gambling records found therein, not the seizure of the car itself. We must conclude that the appellants are correct in their assertion that the provision of § 54-33g (c) creating a preliminary requirement of seizure pursuant to § 54-33a (b) (1) has not been complied with.

This does not end our inquiry, however. It would make little sense if property lawfully seized without a warrant could never be forfeited simply because some alternative legal method of seizure was also available, and the legislature has mandated no such result. In State v. Anonymous (1980-8), supra, 559-60, the court noted that General Statutes § 54-36a, which applies to “property seized in connection with a criminal arrest” in addition to property “seized pursuant to a search warrant,” provides that seized property must be returned to its owner “[%t\nless such seized property is adjudicated a nuisance in accordance with section 54-33g, or unless the court finds that such property shall be forfeited or is contraband or a controlled substance . . . . ” (Emphasis added.) General Statutes (Rev. to 1979) § 54-36a (c). While this provision is not without ambiguity, we read it as authorizing the state to seek adjudication as a nuisance, and thereupon forfeiture, of all “such seized property,” that phrase encompassing “property seized in connection with a criminal arrest” as well as that “seized pursuant to a search warrant.” Thus General Statutes § 54-36a (c) authorizes the forfeiture in this case and instructs the courts to follow the procedures of § 54-33g in adjudicating it. This conclusion is reinforced by the legislative history accompanying a 1984 amendment to § 54-33g explicitly including in that statute property “seized as a result of a search incident to an arrest, a warrant-less arrest or a search warrant . . . . ” Public Acts 1984, No. 84-540, § 4. In explaining the need for this seeming expansion of the scope of § 54-33g to nonwarrant situations, the sponsor of the amendment appeared to be concerned about the effect of State v. Sabia, supra, when he referred to “a decision . . . which changes the process of notification for the defendant and lays out certain procedures which must be followed.” (Emphasis added.) 27 H. R. Proc., Pt. 15,1984 Sess., p. 5359 (remarks of Rep. Alfred J. Onorato). The effect of the Sabia opinion, which limited forfeitures under § 54-33g (c) to property seized under a search warrant, was overturned by the amendment, which expressly made the prescribed forfeiture procedure applicable to property “seized as a result of a search incident to an arrest.” We view this recent enactment as a legislative declaration of what § 54-33g (c), when read in conjunction with § 54-36a (c), was originally intended to mean. See Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540-41, 489 A.2d 363 (1985); Neyland v. Board of Education, 195 Conn. 174, 180, 487 A.2d 181 (1985); Lee v. Board of Education, 181 Conn. 69, 74-76, 434 A.2d 333 (1980). Thus we conclude that this forfeiture action was authorized by General Statutes § 54-36a (c), and the trial court properly proceeded pursuant to the procedural directions of § 54-33g (c)

II

The appellants also claim that the trial court erred in refusing to make McNellis, the driver of the 1977 Buick at the time of its seizure, a party to the forfeiture action and in excluding him from the courtroom during the testimony of other witnesses. It is claimed that these actions violated General Statutes § 54-33g (b) and the due process guarantees of the fifth and fourteenth amendments to the United States constitution.

The appellants have failed to file a transcript of the proceedings before the trial court, Ramsey, J., in which the question of McNellis’ status was resolved. At the subsequent hearings, the court, Glass, J., specifically stated that it would not go behind the previous ruling, and the issue was not discussed during those hearings. The appellants have placed before us only the transcripts of the later hearings. Thus we do not know what issues were presented to Judge Ramsey or the basis for his ruling. “The significant gap in the record . . . limits our review and presents obstacles to reviewing the [appellants’] claim of error on this appeal. See Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713-14, 462 A.2d 1037 (1983); H. B. Sanson, Inc. v. Tax Commissioner, 187 Conn. 581, 586, 447 A.2d 12 (1982). It is the appellants’] burden to ensure that we are provided with an adequate appellate record to support [their] claims of error. See DeMilo v. West Haven, 189 Conn. 671, 681, 458 A.2d 362 (1983). It is important to recognize that a claim of error cannot be predicated on an assumption that the trial court acted incorrectly. Long v. Loughlin, 171 Conn. 291, 292-93, 370 A.2d 925 (1976); Giamattei v. DiCerbo, 135 Conn. 159, 162, 62 A.2d 519 (1948); Maltbie, [Conn. App. Proc.] § 311. Rather, it must be assumed that the trial court acted properly. Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979); Giamattei v. DiCerbo, supra; Maltbie, supra.” Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407-408, 480 A.2d 552 (1984). On the record before us, we can perceive nothing clearly erroneous in the trial court’s ruling. Practice Book § 3060D. The fact that a summons was sent to McNellis pursuant to General Statutes § 54-33a would not require that he be made a party. General Statutes § 54-33g (b), which limits the parties in an in rem action to those with a financial “interest” in the property to be forfeited, is less broad than the notice provision of § 54-33g (a), which refers to those included in § 54-33g (b) and additionally “all others whom [the forfeiture action] may concern.” McNellis expressly disclaimed any of the financial interests that would support party status at the subsequent hearings before Judge Glass. His attempt on appeal to broaden the basis for his attack on the ruling cannot be countenanced given his failure to present this court with an adequate record to review the claim. Practice Book §§ 3060D; 3060V.

Our decision to uphold the refusal of the trial court to make McNellis a party in the in rem action also disposes of the appellants’ claim of unlawful sequestration. McNellis, not being a party, has no standing to raise this claim. And DeLorenzo, the owner of the vehicle, is likewise barred by her attorney’s failure to object to the sequestration order. Indeed, the order was prompted by DeLorenzo’s attorney’s request that all state’s witnesses be sequestered, which elicited a counter request of the same nature from the state’s attorney to which no objection was offered. Thus the sequestration issue cannot properly be raised before this court by the appellants.

III

The appellants also contend that the torn papers recovered from the 1977 Buick’s glove compartment were seized pursuant to a defective warrant, rendering them inadmissible in the in rem proceeding. The appellants made no motion to suppress the evidence in this case, nor did they take exception when their objection to its admission was overruled. “Since the [appellants] took no exception to the ruling, as required by Practice Book § 288, [they are] not entitled to appellate review of this ruling.” State v. Anonymous (83-FG), 190 Conn. 715, 730, 463 A.2d 533 (1983); Kavanaugh v. Lewis, 187 Conn. 534, 535-36, 447 A.2d 6 (1982); Williams v. Vista Vestra, Inc., 178 Conn. 323, 331, 422 A.2d 274 (1979). The appellants make no claim that this issue arises under such exceptional circumstances as to justify appellate review despite the failure properly to preserve it. See State v. Evans, 165 Conn. 61, 67, 327 A.2d 576 (1973). Therefore we decline to address the merits of the claim. State v. Miller, 186 Conn. 654, 672, 443 A.2d 906 (1982); Practice Book § 3063.

IV

The appellants further argue that the evidence presented in the in rem proceeding was insufficient to support the judgment. Citing two federal cases, the appellants assert that a “substantial connection” must exist between the criminal activity and the property to be forfeited when the property is only “derivative contraband.” Our forfeiture statute contains no such requirement. General Statutes § 54-33g (c), under which forfeitures pursuant to § 54-36a (c) are directed to proceed, provides that if “property has been possessed, controlled or designed for use, or is or has been or is intended to be used, with intent to violate or in violation of any of the criminal laws of this state,” it shall be a nuisance subject to forfeiture. The full range of conduct implicated by this language is not before us. For purposes of this case, we need only decide whether one who conceals gambling records in an automobile and thereby possesses, stores or transports them in violation of General Statutes (Rev. to 1983) § 53-278c (e) has used that vehicle “in violation of any of the criminal laws of this state . . . . ” In this regard, State v. Connelly, 194 Conn. 589, 483 A.2d 1085 (1984), is instructive. In Connelly, we upheld an adjudication of nuisance when a small quantity of cocaine was found hidden in a door compartment of a car. General Statutes (Rev. to 1981) § 19-481 (a) made it a crime to possess or control “any quantity of any narcotic substance . . . .” We concluded that the use of the car to store the contraband was a use “in violation of . . . the laws of this state,” rendering the vehicle subject to forfeiture under General Statutes § 54-33g (c). The same reasoning applies here. General Statutes (Rev. to 1983) § 53-278c (e) provides that “[a]ny person who knowingly . . . possesses, stores or transports any gambling record” has committed a crime. (Emphasis added.) If the evidence was sufficient to establish that the torn pieces of paper constituted a gambling record, the statute supports the forfeiture.

The adequacy of the expert testimony relating to that issue is the second point of attack by the appellants. Without questioning the qualifications of Trooper Drescher as an expert, the appellants contend that there was an insufficient factual foundation for his conclusion that the torn pieces of paper represented “a tally sheet.” We agree that the facts upon which an expert opinion is based are important in considering the relevance, and hence the weight, as well as the admissibility of the testimony. See Going v. Pagani, 172 Conn. 29, 34, 372 A.2d 516 (1976). Nevertheless, we do not find the foundation inadequate in this case. Drescher based his testimony on his direct observation of the slip of paper, together with his expertise, which is not challenged, and certain information he had previously obtained from a wiretap investigation of illegal gambling in the Waterbury area. The appellants claim that because the wiretap information had been obtained two months before the seizure of the Buick and did not permit the trooper to decipher fully the writing on the paper, the trooper’s testimony had an insufficient factual basis. We do not agree. We conclude that the two month delay did not require a finding of changed circumstances such as to render the wiretap information too attenuated from the events of the day of the seizure to have probative value. Thus we do not agree “that the uncertainties in the essential facts on which the witness’ opinion was predicated were such as to make an opinion based on them without substantial value.” Going v. Pagani, supra, 35. We therefore find the testimony adequate to support the trial court’s conclusion.

The appellants’ brief also refers to several alleged misstatements of the evidence in the trial court’s memorandum. It is not clear that any of these comments exceeded the authority of the trial court to interpret the evidence. In any event, we consider them too trivial to warrant discussion and not material to the outcome. Cf. Berndston v. Annino, 177 Conn. 41, 45, 411 A.2d 36 (1979). The evidence adequately supported the trial court’s conclusion that the Buick was a nuisance.

V

The appellants argue in addition that the Buick should not be forfeited because forfeiture would unduly punish the innocent owner of the vehicle. This argument misapprehends the function of our forfeiture laws. “This statute is not a criminal statute, but provides for a civil action in rem for the condemnation and forfeiture of the car which was used in violation of the law. Pickett, Pros. Atty. v. Marcucci’s Liquors, [112 Conn. 169, 151 A. 526 (1930)]. In such an action the guilt or innocence of the owner of the vehicle is not in issue. The only issue is whether the vehicle was used in violation of law. This follows from the nature of the action which is one against the res, an action in rem .... The effective enforcement of the law may require legislation making property used for illegal purposes subject to forfeiture. When the statute provides for such forfeiture in unequivocal language, making no exceptions in favor of the claims of innocent owners . . . it must be assumed that the legislature deemed that such enactment was necessary effectively to curb violation of the law, and we cannot impute to it an intent to make the statute less drastic and effective by adopting a strained construction of the language used, and reading into it an exception which does not there appear. The forfeiture is the owner’s misfortune much as if the property had been destroyed, and he is remitted to his remedy against the person to whom he entrusted the property.” Alcorn, State's Attorney v. Alexandrovicz, 112 Conn. 618, 623-24, 153 A. 786 (1931); State v. Connelly, supra, 592. Any hardship suffered by an innocent owner is incidental to the state’s valid exercise of its sovereign authority to protect its citizens through means reasonably calculated to reduce the violation of the criminal laws.

Nevertheless, as we noted in State v. Connelly, supra, there may be some instances in which forfeiture would violate the due process rights of an innocent owner. Quoting Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974), we noted that “it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. . . . Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property. ...” State v. Connelly, supra, 593 n.4. In this case, the trial court specifically concluded that no evidence was presented that McNellis had the automobile without the owner’s consent or knowledge, and found that he had used the Buick on other occasions. In addition, no evidence was presented by the owner that she was unaware of McNellis’ criminal activities involving the use of her car. Thus the record does not support the contention that the innocence of the owner should bar the forfeiture of the automobile.

VI

The appellants’ final claim is somewhat difficult to follow. As we understand it, the appellants claim that the acquittal of McNellis of the gambling charges recited in the arrest warrant relating to his criminal activities prior to February 24,1982, the day on which the seizure of the Buick took place, should somehow prevent the forfeiture of the vehicle at issue here. The appellants are far off base. The fact that McNellis was acquitted of those charges, based upon events that occurred long before that date, even though they related to gambling, is completely irrelevant to the issues presented by the in rem action which related wholly to the events of that date, and has no preclusive effect on the adjudication of nuisance.

There is no error.

In this opinion the other judges concurred.

       When the forfeiture proceeding was instituted, General Statutes § 54-33g provided: “Sec. 54-33g. summons to owner on seizure of property. IN REM ACTION FOR ADJUDICATION AS NUISANCE. DISPOSITION OF property, (a) When, pursuant to subdivision (1) of subsection (b) of section 54-33a, any property has been seized, which the state claims to be a nuisance and desires to have destroyed or disposed of in accordance with the provisions of this section, the judge or court issuing the warrant shall, within ten days after such seizure, cause to be left with the owner of, and with any person claiming of record a bona fide mortgage, assignment of lease or rent, lien or security interest in, the property so seized, or at his usual place of abode, if he is known, or, if unknown, at the place where the property was seized, a summons notifying the owner and any such other person claiming such interest and all others whom it may concern to appear before such judge or court, at a place and time named in such notice, which shall be not less than six nor more than twelve days after the service thereof, then and there to show cause why such property should not be adjudged a nuisance and ordered to be destroyed or otherwise disposed of as herein provided. Such summons may be signed by a clerk of the court or his assistant and service may be made by a local or state police officer. It shall describe such property with reasonable certainty and state when and where and why the same was seized.
      “(b) If the owner of such property or any person claiming any interest in the same appears, he shall be made a party defendant in such case. Any state’s attorney or assistant state’s attorney may appear and prosecute such complaint.
      “(c) If the judge or court finds the allegations made in such complaint to be true and that the property has been possessed, controlled or designed for use, or is or has been or is intended to be used, with intent to violate or in violation of any of the criminal laws of this state, he shall render judgment that such property is a nuisance and order the same to be destroyed or disposed of to a charitable or educational institution or to a governmental agency or institution provided, if any such property is subject to a bona fide mortgage, assignment of lease or rent, lien or security interest, such property shall not be so destroyed or disposed of in violation of the rights of the holder of such interest. When any money or valuable prize has been seized upon such warrant and condemned under the provisions of this section, such money or valuable prize shall become the property of the state, provided any such property, which at the time of such order is subject to a bona fide mortgage, assignment of lease or rent, lien or security interest shall remain subject to such mortgage, assignment of lease or rent, lien or security interest. When any property or valuable prize has been declared a nuisance and condemned under this section, the court may also order that such property be sold by sale at public auction in which case the proceeds shall become the property of the state; provided, any person who has a bona fide mortgage, assignment of lease or rent, lien or security interest shall have the same right to the proceeds as he had in the property prior to sale. Final destruction or disposal of such property shall not be made until any criminal trial in which such property might be used as evidence has been completed.
      “(d) If the judge or court finds the allegations not to be true or that the property has not been kept with intent to violate or in violation of the criminal laws of this state or that it is the property of a person not a defendant, he shall order the property returned to the owner forthwith and the party in possession of such property pending such determination shall be responsible and personally liable for such property from the time of seizure and shall immediately comply with such order.
      “(e) Failure of the state to proceed against such property in accordance with the provisions of this section shall not prevent the use of such property as evidence in any criminal trial.”

       When the forfeiture proceeding was instituted, General Statutes § 54-33a (b) provided in part:
      “Upon complaint on oath of any state’s attorney or assistant state’s attorney or by any two credible persons, to any judge of the superior court, that he or they have probable cause to believe that any property (1) possessed, controlled, designed or intended for use or which is or has been used or which may be used as the means of committing any criminal offense . . . is within or upon any place, thing or person, such judge . . . may issue a warrant commanding a proper officer to enter into or upon such place or thing, search the same or the person and take into his custody all such property named in the warrant.”

       The appellants have made no challenge to the legality of the arrest, or the ensuing search, on any grounds; nor would the fact that the officer who arrested McNellis did not have on his person a copy of the arrest warrant support such a challenge. See State v. Delgado, 161 Conn. 536, 543-46, 290 A.2d 388, remanded for resentencing, 408 U.S. 940, 92 S. Ct. 2879, 33 L. Ed. 2d 764 (1971).

       Our conclusion that the statutes authorize the forfeiture in this instance is further fortified by General Statutes § 53-278c (c), upon which the state appeared to rely at the forfeiture proceeding as an alternative to forfeiture pursuant to § 54-33g. General Statutes § 53-278c (c) provides that “[a]ll furnishings, fixtures, equipment and stock, including without limitation . . . equipment and stock for . . . transporting [and] safekeeping . . . used in connection with professional gambling . . . shall be subject to seizure, immediately upon detection, by any peace officer, and shall, unless good cause is shown to the contrary by the owner, be ordered by the court to be destroyed or disposed of . . . .” The requirements of § 53-278c (c) are less stringent than those of § 54-33g, and might very well support the forfeiture in this instance. Because we have interpreted §§ 54-36a and 54-33g as authorizing the forfeiture of the res at issue, we have no need to consider the specific application of § 53-278c (c) to the facts of this case, an undertaking that was also avoided by the trial court.

       The in rem action was initially filed in the judicial district of New Haven at Meriden because the arrest of McNellis and seizure of the 1977 Buick took place there. On March 12,1982, counsel appeared in response to the summons at geographical area number seven in Meriden before Ramsey, J., who determined that the proper venue was Waterbury, the site of McNellis’ alleged gambling activities and the source of the arrest warrant executed in Meriden. See General Statutes § 54-33g (c). The action was transferred to the Waterbury judicial district, where it proceeded before the court, Glass, J., on April 2, 1982, and certain dates thereafter. It appears that before ordering the change of venue, Judge Ramsey reached the question of McNellis’ status that is now raised as error on appeal. The appellants have filed transcripts of only the April hearings before Judge Glass.

       The continued reference to the “appellants” in the plural throughout this opinion is employed only for the sake of continuity and is not meant to indicate in any manner that McNellis, who was not properly a party to this proceeding, had any standing to contest anything but the determination of his party status.

       Indeed, even an extremely broad reading of the federal cases cited by the appellants hardly supports the proposition for which the cases are cited. In United States v. One 1974 Cadillac Eldorado Sedan, 548 F.2d 421, 423 (2d Cir. 1977), the court upheld the forfeiture of an automobile that had been used to transport two drug dealers to a location where they negotiated a sale of drugs that did not even take place at that time. The court specifically stated that it was looking for either a “direct or indirect relationship” (emphasis added) between the drug charges and the vehicle, a relationship that could be satisfied by “facilitation in any manner” (emphasis in original) of the drug deal by the automobile. The second case, United States v. One 1974 Cadillac Eldorado, 575 F.2d 344 (2d Cir. 1978), relied heavily on the first, and the forfeiture was overturned only because there was literally no credible connection between the drug sale and the automobile, which appeared momentarily at the site of the sale with the dealer’s family inside. Neither court made reference to “derivative contraband” in either case, nor was the term “substantial connection” employed.

       We note that the United States Supreme Court has recently held that even an acquittal of criminal charges upon which the government relies in a forfeiture action would not bar the forfeiture of the property in a subsequent civil proceeding. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361-62, 104 S. Ct. 1099, 79 L. Ed. 2d 361 (1984).


text:
    City of Hartford v. Faith Center, Inc.
    (12505)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued April 3
    decision released June 18, 1985

      Gordon T. Allen, for the appellant (defendant).

      Richard M. Cosgrove, deputy corporation counsel, with whom, on the brief, were Richard H. Goldstein, corporation counsel, and Paul H. Burnham, assistant corporation counsel, for the appellee (plaintiff).
   Shea, J.

The plaintiff city of Hartford instituted this action pursuant to General Statutes § 12-161 in six counts against the defendant, Faith Center, Inc., for the collection of property taxes owed on the tax lists of 1976 through 1980. The defendant filed a special defense, alleging the unconstitutionality of the tax assessments, and also a counterclaim against the plaintiff seeking equitable relief from the allegedly illegal tax. From judgment in favor of the plaintiff, the defendant appeals, claiming that the trial court erred (1) in granting the plaintiff’s motion to strike the special defense, (2) in ordering summary judgment in favor of the plaintiff on counts three through six of the complaint, and (3) in granting the plaintiff’s motion to strike the counterclaim. We find no error.

This controversy involves the same property at issue in Faith Center, Inc. v. Hartford, 192 Conn. 434, 472 A.2d 16, cert. denied, 469 U.S. , 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984) (Faith Center II). In that case, Faith Center, Inc., sought relief from taxes levied on the list of October 1, 1976, pursuant to General Statutes § 12-119 and a declaratory judgment that the property at issue was not taxable. We affirmed the decision of the trial court, Hon. Charles S. House, state trial referee, that Faith Center had failed to sustain its burden of showing that the exemption from taxation for “[pjersonal property within the state owned by . . . a Connecticut religious organization ... if the principal or income is used or appropriated for religious or charitable purposes or both” applied to the property at issue, a television station operated by Faith Center. Faith Center, Inc. v. Hartford, 39 Conn. Sup. 142, 144, 473 A.2d 342 (1982) (Faith Center I). We therefore found no error in the denial of the relief sought pursuant to General Statutes § 12-119 or in the refusal to declare the property exempt from taxation.

The present case involves the taxes assessed on the lists of 1977 through 1980. The defendant never challenged the assessments on these lists, either independently or by amending its complaint in Faith Center I to include them. The defendant chose, for unknown reasons, to await the attempts of the plaintiff to collect the taxes before raising as a special defense its claim that the taxes were illegally assessed. In moving to strike this special defense the plaintiff essentially challenged the propriety of raising such a defense in an action to collect taxes pursuant to General Statutes § 12-161, and the trial court relied upon this ground in granting the motion. We find no infirmity in that ruling.

“It is not to the advantage of the State that those whom it seeks to tax should refuse to pay their taxes in order to test their validity. Such a course, if largely followed, might cause the State more than an inconvenience in the disturbance of the budget upon which the payments of its governmental obligations depended. The more orderly course is a compliance with the law by a payment, reserving the right to contest the validity of the required payment.” Underwood Typewriter Co. v. Chamberlain, 92 Conn. 199, 204, 102 A. 600 (1917). Because this reasoning applies with equal force to municipal taxes, the courts of this state have consistently held that, in collection actions pursuant to General Statutes § 12-161 and its predecessors, the validity of the tax may not be questioned. West Haven v. Aimes, 123 Conn. 543, 549, 196 A. 774 (1938), aff'g 4 Conn. Sup. 391, 392 (1937); McCourt v. Anemostat Corporation, 25 Conn. Sup. 462, 465, 207 A.2d 585 (1965); Southington v. Kass, 7 Conn. Sup. 16, 21 (1939).

The defendant argues that because General Statutes § 12-161 states that “[a]ll taxes properly assessed shall become a debt due from the person, persons or corporation against whom they are respectively assessed,” (emphasis added) all questions relating to the validity of the assessment, including the availability of a statutory exemption, can be raised in a collection action. We reject this interpretation of the statute because it would permit a taxpayer wholly to disregard the remedies established by the legislature prescribing the routes by which seasonable challenges to tax assessments may be pursued. “The claim that the property had been wrongfully or excessively assessed could have been appealed in one of two ways: (1) to the board of tax review and from there, within two months, to the Superior Court pursuant to [General Statutes] § 12-111 and § 12-118; or (2) by direct action to the court within one year from the date when the property was last evaluated for purposes of taxation pursuant to § 12-119.” Norwich v. Lebanon, 193 Conn. 342, 346-48, 477 A.2d 115 (1984). The defendant in fact pursued the latter remedy in Faith Center I in challenging the assessment on its property based on the list of 1976, but failed to sustain its burden of proof as to the applicability of the statutory exemption. Given that the statutory procedures provide “a convenient and effective opportunity” to procure “complete relief” from an illegal assessment; Norwich v. Lebanon, supra, 348; we see no reason to allow a taxpayer who has failed to utilize the available statutory remedies to assert, in an action to collect a tax under General Statutes § 12-161, that the tax has not been “properly assessed.” Cf. National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985); see also Zizka v. Water Pollution Control Authority, 195 Conn. 682, 690, 490 A.2d 509 (1985).

Since the claim of unlawful assessment raised in the special defense could have been redressed through an appeal from the board of assessors under § 12-111 or an application to the court under § 12-119 within the specified time limitations, it could not properly be raised in this action to collect taxes under § 12-161. Accordingly, the court did not err in granting the plaintiffs motion to strike the.special defense.

The defendant’s argument that the trial court erred in granting the plaintiff’s motion for summary judgment as to counts three through six of the complaint relies heavily on the claimed error in striking the special defense discussed above. Without that defense, the defendant does not assert that there remains a contested question of fact that would render summary judgment impermissible. See Practice Book § 384. It follows from our holding that the special defense was properly struck that the trial court did not err in rendering summary judgment in favor of the plaintiff.

The defendant’s final claim of error relates to the trial court’s action in granting the plaintiff’s motion to strike the defendant’s counterclaim. The counterclaim asserted the illegality of the tax assessed on the lists of 1977 through 1980 in two counts and requested as relief only “[a] restraining order preventing the Plaintiffs from enforcing collection of personal property taxes allegedly to be due from the Defendant . . . .” The trial court granted the motion to strike without memorandum, and no articulation was sought. We agree with the result reached by the trial court.

We note initially the unusual character of the counterclaim, which purports to be an action in equity to enjoin the collection of a tax. Such a remedy is not generally available, but may be rendered only in “extreme cases.” L. G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 512-13, 356 A.2d 144 (1975); Arnold v. Middletown, 39 Conn. 401, 405-406 (1872). We need not decide the propriety of such relief based on the allegations of the counterclaim, however, as we conclude that no claim of the type brought by the defendant may properly be made a counterclaim to an action under § 12-161 to collect taxes.

Practice Book § 168 provides that “[i]n any case in which the defendant has either in law or in equity or in both a counterclaim . . . against the plaintiffs demand, he may have the benefit of any such . . . counterclaim by pleading the same as such in his answer, and demanding judgment accordingly . . . .” The defendant’s counterclaim for equitable relief from taxes assessed is governed by the principles enunciated in General Statutes § 12-119, as that statute is “declaratory of existing legal and equitable rights . . . . ” Connecticut Light & Power Co. v. Oxford, 101 Conn. 383, 392, 126 A. 1 (1924); L. G. DeFelice & Son, Inc. v. Wethersfield, supra, 512-13. General Statutes § 12-119 provides in part that “the pendency of such application [questioning the legality of a tax] shall not suspend action upon the tax against the applicant.” (Emphasis added.) To allow a defendant in a collection action to attack the legality of the assessment by a counterclaim seeking injunctive relief would result in just such an interruption in the collection of the tax as is expressly barred in the codification of the taxpayer’s equitable rights in § 12-119. While an action questioning the legality of a tax may be brought independent of a pending collection action if the time period within which the tax may be challenged has not expired, the law does not permit such a claim to interfere with the orderly prosecution of the municipality’s suit to collect the tax pursuant to § 12-161. “The object of that statute was to give a simple remedy for the collection of taxes by an ordinary action and to dispense with prolixity in pleading.” Waterbury v. Schmitz, 58 Conn. 522, 526, 20 A. 606 (1890).

Thus the counterclaim filed by the defendant did not state facts upon which relief could be granted given the context in which it was filed, and the trial court did not err in striking it.

There is no error.

In this opinion the other judges concurred.

       The defendant initially had also challenged the adverse judgment on counts one and two relating to certain taxes assessed on the 1976 list, but at oral argument defense counsel withdrew this claim, stating “I’m not contesting the list of October 1,1976,” and maintained this position after questioning by the court. This concession may have been based on recognition of the preclusive effect on those counts of Faith Center, Inc. v. Hartford, 192 Conn. 434, 472 A.2d 16 (1984), concerning which the United States Supreme Court denied certiorari on November 13,1984, three months after the defendant’s appellate brief in this case was filed. 469 U.S. , 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984).

       Other jurisdictions have reached the same result; see, e.g., Commonwealth v. Atlantic & Gulf Coast Stevedores, Inc. 422 Pa. 442, 221 A.2d 128 (1966); Dike v. McCormick, 128 Vt. 349, 264 A.2d 769 (1970); save where statutory provisions mandate a different conclusion. See Spink v. Heinold Hog Market, Inc., 299 N.W.2d 811, 812 (S.D. 1980) (statute provided that “ ‘[t]he defendant may set up by way of answer any defense which he may have to the collection of the taxes’ ”).

       The provision of Practice Book § 187 declaring that “[a]ny claimed informality, irregularity or invalidity in the assessment or attempted collection of the tax, or in the lien filed, shall be matter of affirmative defense to be alleged and proved by the defendant” is not authority to the contrary. This provision, rather than allowing a taxpayer to raise the sort of defense attempted here, is merely a necessary corollary to the rule dispensing with the burdensome and formalistic requirement that a municipality prove the regularity of every action leading to the imposition of the tax. See Practice Book § 187. Thus a claimed failure specifically to identify the taxed property or a challenge to the authority of an agent whose actions contributed to the tax may be raised as special defenses; Windsor v. Bedortha, 128 Conn. 551, 555-56, 24 A.2d 474 (1942); but those challenges encompassed by the statutory remedies may not.

       Circumstances have overtaken the holding in State v. New York, New Haven & Hartford R.R. Co., 60 Conn. 326, 335, 22 A. 765 (1891), wherein we permitted the defendant in a collection action to raise as a defense “the validity of the tax, as a whole or as to any part of it.” That ruling in 1891 could not take into account the eventual legislation establishing alternate means of contesting a tax or the public policy supporting the streamlining of tax collection procedures. To the extent that State v. New York, New Haven & Hartford R.R. Co., supra, is contrary to our ruling today, we are constrained to overrule it.

       We note that when this counterclaim was filed on September 20,1983, the one year limit provided in § 12-119 for a suit to challenge a tax assessment had expired as to all of the tax assessments referred to in the counterclaim, the last assessment having appeared on the list of October 1,1980.


author: Dannehy, J.

text:
    Robert D. Leone v. Eugene A. Knighton
    (12498)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued April 3
    decision released June 18, 1985

      Snow Gene Munford, for the appellant (plaintiff).

      Ralph G. Eddy, with whom, on the brief, was Michael E. Riley, for the appellee (defendant).
   Dannehy, J.

The principal question raised by this appeal relates to the denial of the plaintiff’s motion to amend his complaint. It clearly appears there was no error in denying the motion.

This action was brought to recover damages for injuries sustained as a result of an automobile collision on Route 84 in East Hartford. The plaintiff claimed that the collision was caused by the negligent operation of the defendant’s automobile. The defendant denied negligence and, in a special defense, charged contributory negligence by the plaintiff. Before commencement of the trial, the defendant admitted liability and the case was tried upon the issue of damages only. On March 13, 1984, the plaintiff recovered a verdict. Eight days later, on March 21, 1984, the plaintiff moved to amend his complaint by inserting therein such facts as would bring the case within the provisions of § 14-295 of the General Statutes and by striking all allegations of negligence not applicable to that statute. The trial court, Brenneman, J., denied the motion and the case comes to this court on the plaintiff’s appeal, claiming error by the trial court in denying the motion to amend, and sundry errors incidental to that contention.

We cannot hold, under the rule announced in Broschart v. Tuttle, 59 Conn. 1, 21 A. 925 (1890), as amplified and explained in Tillinghast v. Leppert, 93 Conn. 247, 105 A. 615 (1919), and followed in Alaimo v. Royer, 188 Conn. 36, 448 A.2d 207 (1982), that the trial court erred in denying the motion to amend the complaint. We have long recognized certain rules governing actions seeking to recover double or treble damages under § 14-295 of the General Statutes. We require that the complaint clearly state such facts as will bring the case within the provisions of the statute. Additionally, we require that the claim for relief be specifically based upon the statutory remedy. We also require the proof to indicate that the verdict was necessarily founded upon a violation of the statute authorizing the extraordinary damages. And we have held that it must clearly appear that the jury found for the plaintiff under the statutory cause of action authorizing these extraordinary damages, and not for any other alleged cause of action. Tillinghast v. Leppert, supra, 250. The plaintiff attempted to address these concerns by moving to amend his complaint after a verdict had been returned. “The trial court has wide discretion in granting or denying amendments before, during, or after trial.” Lawson v. Godfried, 181 Conn. 214, 216, 435 A.2d 15 (1980). Given the fact that the plaintiff sought, in effect, totally to transform his cause of action after a jury verdict had already been returned, we cannot say that the trial court abused its discretion in denying the motion. See Practice Book §§176 through 180.

The remaining question, then, is whether the complaint as it stood at the time of trial and verdict clearly states any facts which would entitle the plaintiff to multiple damages under the statute. The complaint is in one count. It alleges several different acts in the operation of the defendant’s automobile as negligence which caused the injuries for which this action was brought. There is but one cause of action, although several distinct acts are relied upon as constituting negligence. Prior to the trial the defendant admitted he was to blame for the accident in which the plaintiff was injured. Because of this, in committing the action to the jury, the trial court directed the jury to find for the plaintiff and against the defendant. The only question of fact submitted to the jury was how much the verdict should be, and that was the matter and the only matter which was tried in the course of the proceedings. It should be noted in passing that there is no claim that the jury failed to understand the law applicable to damages. Further, the plaintiff presented no evidence to prove the negligent operation of the automobile by the defendant. The trial resulted in a general verdict for the plaintiff. Thereupon the plaintiff filed a motion that he be allowed to amend his complaint in order, first, “[t]o more specifically define and demarcate the claim of double or treble damages under Sec. 14-295 of the Conn. General Statutes,” second, “[t]o more specifically define and demarcate the claim of the Plaintiff for double or treble damages under the statute in accordance with discussions on same [with] Judge Kelly before the trial and with Judge Brenneman before trial, during trial, and after the jury verdict was received and recorded but before the hearing on liability was commenced,” and third, “[t]o have [the] defendant make the pleadings conform with the proof.” The court denied the motion.

It is clear from the allegations contained in the complaint that no facts are stated that would suffice for recovery under the provisions of § 14-295. The complaint does not expressly invoke § 14-295. See Practice Book § 109A; Alaimo v. Royer, supra, 43. It contains no statement of facts to bring the plaintiff’s claim within the boundaries of that statute. Moreover, there is no proof to indicate that the verdict was necessarily founded upon a violation of the statute authorizing extraordinary damages. In fact, as we have already noted, that factual issue was never submitted to the jury. The only question before the jury was the determination of damages. Unless the plaintiff could establish that he was injured because of a violation of one of the so-called “rules of the road” enumerated in § 14-295, and not for any other alleged cause of action, he had no remedy under that statute. Obviously, that necessary and required proof was fatally lacking.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 14-295. DOUBLE OR TREBLE DAMAGES. Bach person who, by neglecting to conform to any provision of sections 14-230 to 14-242, inclusive, or section 14-245, or 14-247, causes any injury to the person or property of another, shall be liable to the party injured in double or treble damages if, in the discretion of the court in which any action is pending, double or treble damages are just, with the costs of such action.”

       The plaintiff has provided us with no record of the discussions with Judge Kelly before the trial and with Judge Brenneman before trial, during trial, and after the jury verdict was received. “While a true picture may not be presented here because of [discussions] that took place in chambers, the case, nevertheless, must be decided on the record. Cohn v. Mt. Zion Baptist Church, 130 Conn. 362, 366, 34 A.2d 129 (1943).” Hasbrouck v. Hasbrouck, 195 Conn. 558, 560, 489 A.2d 1022 (1985).