author: PALMER, J.

text:
    LAKEVIEW ASSOCIATES v. WOODLAKE MASTER CONDOMINIUM ASSOCIATION, INC.
    (15458)
    (15460)
    Callahan, C. J., and Norcott, Katz, Palmer and Peters, Js.
    Argued November 6, 1996
    officially released January 21, 1997

      William R. Breetz, with whom was Brendan T. Flynn, for the appellant in Docket No. 15458, appelleeappellant in Docket No. 15460 (defendant).

      Robert E. Wright, for the appellee in Docket No. 15458, appellant-appellee in Docket No. 15460 (plaintiff).
   PALMER, J.

This case requires us to decide whether the trial court properly concluded that the defendant, Woodlake Master Condominium Association, Inc., must pay for repairs to a private road in Woodbury owned by the plaintiff, Lakeview Associates, under the terms of a conveyance that granted to the defendant an easement over the road. The defendant has appealed from the judgment of the trial court directing it to pay the plaintiff a sum not to exceed $298,400 for repairs to the road. The plaintiff has appealed from the judgment of the trial court awarding it offer of judgment interest under General Statutes (Rev. to 1993) § 52-192a, claiming that the trial court failed to award such interest retroactive to the date of the complaint. The defendant has cross appealed, claiming that the plaintiff is not entitled to any pre judgment interest under § 52-192a. We conclude that the trial court properly required the defendant to pay for the repairs to the private road, but that the plaintiff is not entitled to any offer of judgment interest under § 52-192a.

The following facts are undisputed. The plaintiff is a general partnership that owns seventy-nine acres of undeveloped property in Woodbury and Southbury. Approximately sixty-three acres of that property are located in Woodbury and border on a private road known as Woodlake Road. The defendant is a condominium association, comprised of400 units and approximately 1100 residents, whose property abuts the plaintiffs property along Woodlake Road. Woodlake Road, which is 6400 feet long, provides the only means of ingress and egress to the parties’ properties.

Originally, both properties were owned by Joseph R. Pepe. In January, 1972, Pepe conveyed what is now the defendant’s property to Woodbury Village, Inc. (Wood-bury Village), a joint venture that developed the defendant’s condominium complex and that eventually transferred control of the complex to the defendant. Pepe retained ownership of Woodlake Road for himself and his beneficiaries, but granted an easement over the roadway to Woodbury Village and its heirs, successors and assigns. In October, 1972, Pepe recorded a modified easement that provided in relevant part: “The above granted easement shall continue in full force and effect unless and until the herein described premises shall be dedicated as a public highway and accepted by the Town of Woodbury, at which time this easement shall cease and be of no further force and effect. Provided, however, that by the acceptance hereof, Woodbury Village, Incorporated, its successors and assigns covenant and agree that they will contribute, pro rata to maintain and keep in good repair the road described herein until acceptance thereof by such Town of Woodbury.”

The plaintiff purchased the balance of Pepe’s property in 1988. Because Pepe had retained ownership of Woodlake Road for himself and his beneficiaries, the plaintiff, as Pepe’s successor in title, now owns the road. The defendant has always repaired and maintained the road without any contribution from the plaintiff.

In 1990, the plaintiff requested that the town of Wood-bury accept Woodlake Road as a public highway. In response to the plaintiffs request, the town commissioned a study of Woodlake Road, which stated that the road was generally in poor condition and in need of repair. Upon learning of the results of the study, the plaintiff demanded that the defendant make the necessary repairs or that it otherwise assist the plaintiff in having the road accepted as a public highway by the town. When the defendant failed to cooperate, the plaintiff instituted this action seeking injunctive relief and damages. On July 16, 1993, the plaintiff filed an offer of judgment under § 52-192a in the amount of $175,000. The defendant failed to accept the plaintiffs offer of judgment, and the case proceeded to a court trial.

At the conclusion of the trial, the court determined that, under the terms of the easement, “the plaintiff and [the] defendant are responsible for their pro rata share of all repair and maintenance expenses [required for the upkeep of] Woodlake Road. . . . [T]he pro rata share of each is determined by the number of dwelling units legally using said road. Since there are no such units on the plaintiffs property using said road, and there are 400 condominium units of the defendant using the road, then those 400 condominium units are responsible pro rata for any expense in [the] maintaining, repairing and upkeep of said road. By this the court means that [the] number of units on each property should be added together and each unit is responsible for one share of the total aforesaid expenses relative to the road. . . . Since there are no units on the plaintiffs parcel of land, all maintenance and repairs required for Woodlake Road are the responsibility of the defendant . . . .”

The trial court, construing the terms “repair” and “maintain” according to their ordinary meaning, further concluded that the plaintiff had established by “overwhelming” evidence that Woodlake Road “has deteriorated to a point where it needs more than a maintenance program” and that it “is in serious need of reconstructive repairs at this time.” On the basis of testimony by the plaintiffs two experts regarding the nature and cost of the necessary repairs, the trial court awarded the plaintiff $298,400 and ordered it “to have . . . Woodlake Road repaired . . . within six (6) months of this date or be subject to a penalty which this court can impose for the failure to do so.” The court also ordered that “[i]n the unlikely event that the aforesaid repairs cost less than $298,400.00, then any such excess funds shall be repaid to the defendant by the plaintiff.” The court also awarded the plaintiff prejudgment interest under § 52-192a in the amount of $76,701.20. Finally, the court stated that the defendant shall remain solely responsible for maintaining the road in good repair until such time, if ever, as the plaintiffs property is developed. Additional facts will be set forth as they become relevant.

On appeal, the defendant claims that: (1) the trial court improperly concluded that the defendant is responsible for making the required repairs to Wood-lake Road; (2) even if the defendant bears some responsibility for those repairs, the trial court improperly concluded that the plaintiff does not share equally in that responsibility; and (3) the conditions of the easement are unenforceable because they impose a limitation on the defendant’s rights under the preexisting easement. The plaintiff has appealed, and the defendant has cross appealed, from the trial court’s award of offer of judgment interest under § 52-192a. We conclude that the trial court: (1) properly required the defendant to pay for the repairs to Woodlake Road; and (2) improperly awarded the plaintiff prejudgment interest pursuant to § 52-192a.

I

The defendant first claims that the trial court improperly concluded that the defendant breached a duty to the plaintiff to make repairs to Woodlake Road. Specifically, the defendant argues that its obligation to the plaintiff is limited to maintaining Woodlake Road so as to afford the plaintiff the reasonable use of the road and to prevent injury to the plaintiffs property. The defendant further argues that because the plaintiff did not establish that the defendant’s failure to make repairs to Woodlake Road had either impaired the plaintiffs use of the road or caused injury to the plaintiffs property, the trial court improperly ordered the defendant to pay for the road repairs. We disagree.

It is true that “[w]here the instrument is silent, the owner of an easement has a duty to make such repairs as are necessary for the owner of the land to have the reasonable use of his estate”; Center Drive-In Theatre, Inc. v. Derby, 166 Conn. 460, 464, 352 A.2d 304 (1974); and, further, that the “owner of an easement may be held to have a duty to maintain it where failure to do so would injure the servient estate.” Id., 465. The easement in this case, however, is not silent as to the parties’ obligations concerning the upkeep of Woodlake Road: the conveyance expressly provides that the parties shall “contribute, pro rata to maintain and keep in good, repair [Woodlake Road] until acceptance thereof by [the] Town of Woodbury.”

“For a determination of the character and extent of an easement created by deed we must look to the language of the deed, the situation of the property and the surrounding circumstances in order to ascertain the intention of the parties. American Brass Co. v. Serra, 104 Conn. 139, 142, 132 A. 565 (1926). The language of the grant will be given its ordinary import in the absence of anything in the situation or surrounding circumstances which indicates a contrary intent. [Id.]” Mackin v. Mackin, 186 Conn. 185, 189, 439 A.2d 1086 (1982); see Lago v. Guerrette, 219 Conn. 262, 267-68, 592 A.2d 939 (1991). Because the parties adduced no evidence to suggest that the terms “repair” and “maintain” were intended to have any special or unusual connotation, the trial court properly construed those words according to their ordinary meaning.

Furthermore, the trial court personally inspected Woodlake Road and heard testimony from the plaintiffs experts regarding the extensive work necessary to bring Woodlake Road into a reasonable state of repair. The evidence also indicated that Woodlake Road is a busy thoroughfare used by the defendant’s residents as the sole means of access to and from their homes and, in addition, that the road is used by buses that transport children who reside in the condominium complex to and from school. The question of whether Woodlake Road is in need of repair and, if so, the nature and extent of the repairs necessary to restore the road to a satisfactory condition, raised factual issues to be resolved by the trial court. See Saphir v. Neustadt, 177 Conn. 191, 198, 413 A.2d 843 (1979); see also Kuras v. Kope, 205 Conn. 332, 347-48, 533 A.2d 1202 (1987). Accordingly, the trial court’s conclusion “must stand unless it is legally or logically inconsistent with the facts found or unless it involves the application of some erroneous rule of law material to the case. Belford v. New Haven, 170 Conn. 46, 55, 364 A.2d 194 (1975). Only in the clearest circumstances where the conclusion found could not reasonably be reached will the trier’s determination be disturbed.” Saphir v. Neustadt, supra, 198. Because the evidence supports the trial court’s determination that Woodlake Road is in substantial disrepair and that the reasonable cost of repairing the road is $298,400, the defendant’s challenge to the trial court’s conclusion in that regard is without merit.

II

The defendant also claims that .the trial court improperly construed the easement as placing upon the defendant the full responsibility for making the repairs to Woodlake Road. We disagree.

The following additional facts are necessary to a resolution of this claim. At trial, the parties disputed the meaning of the provision in the easement requiring Woodbury Village, its successors and assigns “to contribute, pro rata” to the maintenance and repair of Woodlake Road. The defendant claimed that the easement unambiguously requires the plaintiff and the defendant to shar e equally the cost of maintaining and repairing the road. The plaintiff, focusing on the fact that the easement makes express reference only to Woodbury Village, its successors and assigns, claimed that the easement unambiguously applies only to the defendant, as the successor in interest of Woodbury Village, and not to the plaintiff. In the alternative, the plaintiff argued that the easement requires the homeowners on each of the two parcels to pay for the repair and maintenance of Woodlake Road according to the number of dwelling units on each property relative to the total number of units on both properties.

In support of its alternative interpretation of the easement, the plaintiff, over the defendant’s objection, elicited the testimony of Jonathan Bowman, the lawyer who had drafted the easement on behalf of Woodbury Village in 1972. Bowman explained that the words “contribute, pro rata” were intended to ensure that the cost of maintaining and repairing the road would be fairly apportioned among those persons actually using the road, namely, the homeowners on both properties. The trial court accepted Bowman’s explanation of the intent of the parties to the instrument and, accordingly, concluded that so long as the plaintiffs property remains undeveloped, the defendant is solely responsible for maintaining Woodlake Road in good repair.

The defendant asserts that the easement unambiguously requires each of the parties to pay for one half of the cost of repairing and maintaining Woodlake Road and, therefore, that the trial court improperly permitted the plaintiff to elicit Bowman’s testimony regarding the easement’s meaning. We are not persuaded.

The principles governing the construction of instruments of conveyance are well established. “In construing a deed, a court must consider the language and terms of the instrument as a whole. . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties. ... In arriving at the intent expressed ... in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence. . . . The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in the light of the surrounding circumstances. . . .” (Citations omitted; internal quotation marks omitted.) Hare v. McClellan, 234 Conn. 581, 593-94, 662 A.2d 1242 (1995). Thus, if the meaning of the language contained in a deed or conveyance is not clear, the trial court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity. Id., 594-97. Finally, our review of the trial court’s construction of the instrument is plenary. Id., 594; Carbone v. Vigliotti, 222 Conn. 216, 222, 610 A.2d 565 (1992).

With these principles in mind, we turn to the defendant’s claim that the trial court misconstrued the terms of the easement. As the trial court noted, the adverb “pro rata” means “proportionately according to some exactly calculable factor (as share, liability, period of time): in proportion.” Webster’s Third New International Dictionary. Thus, it is plain that the original parties to the easement intended that Woodbury Village and its successors in interest shall contribute proportionately to the repair and maintenance of Woodlake Road. The instrument, however, contains no express indication whether that contribution is to be apportioned among Woodbury Village’s successors in interest or, rather, in some manner between its successors and the owner or owners of the servient estate. Since the easement is facially susceptible of either interpretation, the trial court properly overruled the defendant’s objection to Bowman’s testimony concerning the intention of the parties. Bowman, who drafted the language in question, testified unequivocally that the parties intended to apportion the cost of repairing and maintaining Woodlake Road equally among the homeowners on each of the two properties, and the defendant introduced no evidence to the contrary. In light of Bowman’s uncontradicted testimony, we agree with the trial court’s determination with respect to the parties’ intended meaning of the term “pro rata,” and, accordingly, we reject the defendant’s claim that the plaintiff is obligated to contribute to the cost of repairing Wood-lake Road.

Ill

The defendant next contends that the easement is unenforceable insofar as it requires the defendant to “contribute, pro rata” to the repair and maintenance of Woodlake Road because that requirement constitutes a condition or limitation on the defendant’s preexisting right to use the road secured in the original deed in violation of standard 4.2 of the Connecticut Standards of Title. We decline to consider this claim. The defendant not only failed to raise the claim in the trial court; see Practice Book §§ 4061 and 285A; but the parties also expressly stipulated at trial that “the covenant to ‘contribute, pro rata to maintain and keep in good repair the road’ as stated in [the easement] is in the chain of title for the condominiums and binds the Master Association.” (Emphasis added.) The defendant is therefore foreclosed from raising a contrary claim on appeal.

IV

Finally, the plaintiff appeals, and the defendant cross appeals, from the judgment of the trial court awarding the plaintiff prejudgment interest under § 52-192a. The plaintiff claims that it is entitled to prejudgment interest retroactive to the filing of the complaint, and the defendant claims that the plaintiff is not entitled to any interest under § 52-192a. We agree with the defendant and, accordingly, we do not reach the issue raised by the plaintiffs appeal.

The following additional facts are relevant to the defendant’s claim. The plaintiff filed its original complaint on July 29, 1991. The defendant filed a request to revise the complaint, which was granted over the plaintiffs objection, and the plaintiff filed an amended complaint on January 29, 1992. Thereafter, on July 16, 1993, the plaintiff filed its offer of judgment in the amount of $175,000.

After the trial court had rendered judgment for the plaintiff, the plaintiff sought prejudgment interest under § 52-192a. The plaintiff claimed that it should be awarded such interest from the date of the original complaint because it had submitted a valid offer of judgment within eighteen months of the filing of the amended complaint. The defendant argued that the plaintiff was not entitled to any interest under § 52-192a because “the court’s judgment is, in effect, an order to restore Woodlake Road rather than an award of money damages to the [plaintiff].” Although the trial court acknowledged that its judgment was “in the form of an injunction,” the court nevertheless concluded that an award of interest was mandated under § 52-192a because the plaintiff had received money damages in excess of its $175,000 offer of judgment. See footnote 12. The trial court further concluded that the interest was to be calculated from the date the plaintiff filed its offer of judgment and not, as the plaintiff had claimed, from the date of the original complaint. Accordingly, the trial court awarded the plaintiff $76,701.20 in interest pursuant to § 52-192a. Finally, the trial court stated that if the repairs to Woodlake Road cost less than $298,400, then the defendant shall be entitled to (1) a refund of the difference between the actual cost of the repairs and $298,400, and (2) a refund of the offer of judgment interest on that amount.

We conclude that the plaintiff is not entitled to offer of judgment interest. Although it is true that the trial court’s judgment requires the defendant to pay money to the plaintiff, the judgment further requires that the plaintiff shall use that money solely to repair Woodlake Road and, in addition, that it may expend only so much of the $298,400 as will be necessary to make those repairs. Moreover, the trial court ordered the plaintiff to repair the road within six months or be subject to the court’s contempt power for failure to comply with its judgment. Thus, as the defendant maintains, the trial court’s judgment is in the nature of a mandatory injunction directing the defendant to discharge its duty under the easement and not, as the trial court concluded, an award of money damages. See footnote 12. We are aware of no authority, and the plaintiff has provided us with none, to support a claim that § 52-192a applies in circumstances where, as here, the relief granted is not simply the award of a sum certain but, rather, an equitable remedy not available at law. We conclude, therefore, that the trial court improperly awarded the plaintiff prejudgment interest under § 52-192a.

With respect to the defendant’s appeal, the judgment is affirmed. With respect to the plaintiff’s appeal and the defendant’s cross appeal, the judgment is reversed and the case is remanded to the trial court with direction to deny the plaintiffs motion for prejudgment interest pursuant to § 52-192a.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1993) § 52-192a provides: “Offer of judgment by plaintiff. Acceptance by defendant. Computation of interest, (a) After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plantiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment’, the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiffs ‘offer of judgment.’. Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such 'offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his 'offer of judgment.', the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1, 1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the 'offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”

       The parties appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeals to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The defendant’s property also abuts the balance of the plaintiff’s property, which is located in Southbury.

       The deed provided that the transfer of the property was made “[tjogether with and to be used in common with all others to whom such right may hereafter be granted by the grantor, his heirs, successors and assigns, the right to use the fifty (50) foot roadway adjacent to the said premises on the easterly and westerly side thereof extending from Transylvania Road to and through said premises for all lawful purposes including access and egress to and from said premises by motor vehicle and otherwise and for the installation and maintenance therein of utility lines, storm and sanitary sewers.”

       Unless otherwise indicated, all references hereinafter to the easement are to the modified easement recorded in October, 1972.

       Because the plaintiff’s property remains undeveloped, Woodlake Road has been used almost exclusively by condominium residents and their guests.

       Under local zoning regulations, the plaintiff cannot subdivide its property unless that property is accessible by public road.

       Prior to the town’s study of Woodlake Road, children who resided in the condominium complex were transported to and from school over that road by the bus company hired by the town. See General Statutes § 10-220c (municipality may transport public school children over private road if road owner agrees and road meets municipality’s specifications). The bus company ceased all travel on Woodlake Road, however, after the plaintiff complained that the town’s study had indicated that the road did not meet town standards. The buses resumed their travel on Woodlake Road after the defendant and the bus company entered into an agreement pursuant to which the defendant it self hired the company to transport the condominiums’ schoolchildren and agreed to hold the company harmless for any claims arising from the buses’ use of Woodlake Road.

       The complaint is in two counts. The first count alleges that the plaintiff has been irreparably harmed by the defendant’s failure to maintain Woodlake Road properly because: “(a) Woodlake Road and the abutting woodland are worth less than they otherwise would be; (b) [t]he risk of injury to all who travel Woodlake Road has been increased; and (c) [the plaintiffs] potential liability for such injuries has been increased.” The second count alleges that the defendant and its members have forfeited their right to use Woodlake Road and, consequently, that their continued use of the road constitutes a trespass. The complaint seeks either an injunction requiring the defendant “to maintain Woodlake Road and keep it in good repair” or an injunction prohibiting the defendant and its members from using the road, and damages.

       “The verb 'repair’ has been defined to mean ‘to restore to a sound or healthy state; to make good.’ Webster, Third New International Dictionary. The verb ‘maintain’ means ‘to keep in a state of repair, efficiency or validity; to sustain against opposition or danger.’ [Id.]” John A. Errichetti Associates v. Boutin, 183 Conn. 481, 490, 439 A.2d 416 (1981).

       The plaintiffs expert witnesses were Jack E. Stephens, a consultant and retired college professor, and William A. Brennan, the secretary-treasurer of a local construction company. Stephens testified that he had inspected Woodlake Road on several occasions between 1991 and 1994 and that, in his opinion, Woodlake Road has not been properly maintained, it is no longer useable as a roadway, and a new road is necessary. Brennan testified that his company had built, a portion of Woodlake Road and that he is very familiar with the road. In Brennan’s opinion, the damage to Woodlake Road was due largely to the improper maintenance of the road’s drainage system. Brennan further testified that Woodlake Road is in need of extensive road repairs and a new drainage system. According to Brennan, there are several different methods that may be employed to repair the road and its drainage system, the least costly of which will require an expenditure of $298,400.

       Although the trial court rendered judgment for the plaintiff on count one of the complaint; see footnote 9; the court expressly stated that it had rejected the plaintiff’s application for injunctive relief because the plaintiff had not established that it had been irreparably harmed and, further, that the plaintiff had “an adequate remedy at law, namely, money damages . . . .” The trial court rendered judgment for the defendant on count two of the complaint. The plaintiff has not appealed from that portion of the court’s judgment.

       The trial court also concluded that the offer of judgment interest is to be recomputed in the event that the actual cost of the repairs is less than $298,400.

       The defendant presented no expert testimony regarding the condition of Woodlake Road.

       The evidence also established that the residents of the condominium complex comprise approximately 10 percent of all of the residents of the town of Woodbury.

       Although the defendant claims that the plaintiff failed to establish that the defendant had breached its duty under the easement, the defendant does not contest the trial court’s judgment on the ground that the cost of repairing Woodlake Road is, as a matter of law, an improper measure of the award to which the plaintiff is entitled under the plaintiff’s construction of the easement. See, e.g., Bachman v. Fortuna, 145 Conn. 191, 194, 141 A.2d 477 (1958) (in action for breach of agreement to repair road, damages may be determined by ascertaining cost of necessary repairs).

       Earlier in the trial, the court had inquired as to the identity of the attorney who had prepared the easement and whether that attorney was available to testify regarding the meaning of the instrument’s “pro rata” language. The court, having been informed that Bowman had drafted the document and could be made available to testify, indicated that it might wish to call him as a “court witness.” The plaintiff, however, apparently in response to the court’s expression of interest in Bowman’s testimony, called Bowman as its own witness.

       We note that the plaintiff entered into a stipulation at trial providing, inter alia, that “its obligations pursuant to [the easement] are as stated by Attorney Bowman.” Because the plaintiffs property has not been developed, however, the plaintiff has no greater responsibility to maintain and repair Woodlake Road under Bowman’s interpretation of the easement than it does under its alternative construction that the repair and maintenance obligations under the instrument apply only to Woodbury Village, its successors and assigns.

       See footnote 4.

       Standard 4.2 of the Connecticut Bar Association, Connecticut Standards of Title (1980), provides in pertinent part that “[a] grantor who has conveyed by an effective, unambiguous deed cannot by executing a subsequent deed, make a substantial change in the name of the grantee, decrease the size of the premises or the extent of the estate granted, impose a condition or limitation upon the interest granted, or otherwise deviate from the first deed, even though the latter deed purports to correct or modify the former.” As the Appellate Court has recently noted, however, “[t]he standards of title ‘establish the custom in the legal community . . . [but] are not controlling, contractually or otherwise.’ Carter v. Girasuolo, 84 Conn. Sup. 507, 510, 373 A.2d 560 (1976).” Cardillo v. Cardillo, 27 Conn. App. 208, 212 n.5, 605 A.2d 576 (1992).

       Practice Book § 4061 provides in relevant part that an appellate “court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” Practice Book § 285A provides in relevant part: “If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the appellate court to decide the claim.”

       "Section 52-192a (b) requires a trial court to award interest, to the prevailing plaintiff from the date of the filing of a complaint to the date of judgment whenever: (1) a plaintiff files a valid offer of judgment within eighteen months of the filing of the complaint in a civil complaint for money damages; (2) the defendant rejects the offer of judgment; and (3) the plaintiff ultimately recovers an amount greater than or equal to the offer of judgment.” Loomis Institute v. Windsor, 234 Conn. 169, 180, 661 A.2d 1001 (1995). The purpose of § 52-192a is to encourage pretrial settlements by penalizing a party that fails to accept a reasonable offer of settlement in “any civil action based upon contract or seeking the recovery of money damages.” See Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 687 A.2d 506 (1997).

       The trial court also indicated that because the plaintiff is not entitled to payment from the defendant in excess of $298,400 even if the cost to repair Woodlake Road exceeds that sum, the defendant is not responsible for offer of judgment interest on any amount expended by the plaintiff for road repairs in excess of $298,400.

       We do not question, however, the trial court’s sensible conclusion that it is preferable, in the circumstances, to place responsibility on the plaintiff for implementing the repairs to Woodlake Road. At trial, the court explained why it had fashioned its judgment in such a manner: “[T]he reason, very frankly, I ordered [the plaintiff] to [repair the road] is because obviously [the parties] can’t get along, so if I’m going to have [the defendant] fixing [the plaintiffs] property, [there are] going to be more problems . . . .”

       Although the ad damnum clause of the complaint contained a claim for damages, the primary relief sought by the plaintiff was “[a]n injunction requiring [the defendant] to maintain Woodlake Road and keep it in good repair, or, alternatively, an injunction prohibiting [the defendant] and its members from further use of [Woodlake Road].” See Clipfel v. Kantrowitz, 143 Conn. 184, 189, 120 A.2d 416 (1956) (“where the asserted essential right is equitable in nature and damages are sought in lieu of equitable relief or as complementary or supplemental to it in order to make the relief complete, the whole action still remains one in equity”). Moreover, the trial court did not award any money damages to the plaintiff on its trespass claim; see footnotes 9 and 12; but, instead, awarded the plaintiff a sum not to exceed $298,400 solely for the purpose of repairing the road. Finally, the plaintiff, in light of the defendant’s ongoing duty under the easement to maintain Woodlake Road in good repair, has not challenged any of the equitable conditions placed on its use of the $298,400.

        See Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 159, 645 A.2d 505 (1994) (equity is “ ‘a. system of positive jurisprudence founded upon established principles which can be adapted to new circumstances where a court of law is powerless to give relief”); Harper v. Adametz, 142 Conn. 218, 223, 113 A.2d 136 (1955) (same).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    TIMOTHY R. E. KEENEY, COMMISSIONER OF ENVIRONMENTAL PROTECTION v. TOWN OF OLD SAYBROOK
    (15205)
    Callahan, C. J., and Berdon, Norcott, Katz and Peters, Js.
    Officially released January 21, 1997

      Jeremiah Donovan, for the appellant (defendant).

      Richard F. Webb, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Joseph Rubin, assistant attorney general.
   PER CURIAM.

In the original appeal in this case, we held that a municipality violates the Water Pollution Control Act; General Statutes § 22a-427; and the Environmental Protection Act; General Statutes § 22a-14 et seq.; if the municipality, although it has not affirmatively caused water pollution, has engaged in prolonged conduct that manifests its intentional failure to abate a public nuisance. Keeney v. Old Saybrook, 237 Conn. 135, 160-66, 676 A.2d 795 (1996). We remanded the case to the trial court for an articulation with respect to whether the evidence produced at trial by the plaintiff, Timothy R. E. Keeney, commissioner of the department of environmental protection (commissioner), demonstrated that the defendant, the town of Old Saybrook (Old Saybrook), had intentionally failed to abate the public nuisance created by pollution emanating from septic systems in the town. Id., 167. On remand, the trial court articulated its finding that Old Saybrook’s failure to abate pollution resulted from conduct by Old Saybrook that was intentional. Having reviewed the record and the supplemental briefs filed by the parties with respect to the propriety of this articulation, we conclude that, because the trial court’s finding was not clearly erroneous, the judgment in favor of the commissioner, as previously modified, must be affirmed.

In its original memorandum of decision, the trial court found that Old Saybrook had caused water pollution “by not abating the pollution which it can best abate.” (Internal quotation marks omitted.) Keeney v. Old Saybrook, supra, 237 Conn. 166. “The trial court grounded this finding in Old Saybrook’s failure to implement the sewer avoidance program set forth in [various pollution abatement orders]. Specifically, despite its acquiescence in the validity of these orders, Old Saybrook has failed to implement the appropriate programs to inspect area septic systems, monitor contamination of area groundwater and surface waters, regulate the pumping of septic systems through a permit system, effect maintenance of septic systems by residential property owners through an enforcement system, and has failed to report its compliance with these orders to the commissioner. Furthermore, Old Saybrook has failed to build a regional wastewater treatment facility without challenging the adequacy of the financial contributions to be made by neighboring towns or the scientific validity of the engineering study that had found that failing septic systems were polluting the Connecticut River in a manner that could be remedied best by the construction of such a regional wastewater treatment facility.” Id., 166-67.

We concluded that the trial court’s finding required articulation “with respect to whether Old Saybrook’s continuing conduct over time in creating a public nuisance, in light of the various orders, rose to the level of intentional conduct under § 825 of the Restatement (Second) of Torts.” Id., 167. Under the Restatement, “an interference with the public right, is intentional if the [municipality] . . . knows that it is resulting or is substantially certain to result from [the municipality’s] conduct.” 4 Restatement (Second), Torts § 825 (1979); Keeney v. Old Saybrook, supra, 237 Conn. 163. “ ‘It is the knowledge that the actor has at the time [the actor] acts or fails to act that determines whether the invasion [of the public right] resulting from [its] conduct is intentional or unintentional. It is not enough to make an invasion intentional that the actor realizes or should realize that [its] conduct involves a serious risk or likelihood of causing the invasion. [The actor] must either act for the purpose of causing it or know that it is resulting or is substantially certain to result from [the actor’s] conduct.’ ... 4 Restatement, supra, § 825, comment c. If the invasion results from continuing or recurrent conduct, ‘the first invasion resulting from the actor’s conduct may be either intentional or unintentional; but [if] the conduct is continued after the actor knows that the invasion is resulting from it, further invasions are intentional.’ . . . Id., § 825, comment d.” Keeney v. Old Saybrook, supra, 163-64.

Responding to our request for articulation in light of the existing record, the trial court found that Old Saybrook had acted intentionally by failing to abate the public nuisance of pollution in the town. It found specifically that “Old Saybrook intentionally created the public nuisance because it knew that the public nuisance was resulting or substantially certain to result from its conduct . . . .” The court further found that Old Saybrook’s “conduct continued after it knew by the issuance of [department of environmental protection] orders and by the conclusions of its own engineering reports that failing septic systems within the town were creating the public nuisance by causing pollution.” The subordinate factual findings upon which the court relied included various engineering studies, dating back more than fifteen years, that documented the existence of a community pollution problem emanating from the repeated and apparently uncorrectible failure of many local septic systems and that recommended the construction of a wastewater treatment facility. In materials prepared by Old Saybrook in 1989 to provide information to its townspeople in conjunction with a town referendum, Old Saybrook had stated: “Pollution problems have been identified over the past fifteen years. Many septic systems have failed and are creating a public health hazard.” The voters’ rejection of the referendum caused Old Saybrook to commission a further study that again determined “that there is a serious problem that requires a structural solution.” Old Say-brook nonetheless undertook no structural response to the water pollution problems that continue to exist.

Our review of the trial court’s finding of fact that Old Saybrook intentionally created a public nuisance is limited to a determination of whether the court’s finding was clearly erroneous. See Practice Book § 4061; 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 301, 685 A.2d 305 (1996); Commissioner of Motor Vehicles v. DeMilo & Co., 233 Conn. 254, 278-79, 659 A.2d 148 (1995); Keeney v. L & S Construction, 226 Conn. 205, 212, 626 A.2d 1299 (1993). We are persuaded that the record at trial provides ample support for the finding of the trial court. Accordingly, the judgment of the trial court in favor of the plaintiff is affirmed except -with respect to modified order 4116, as noted in our prior opinion and mandate. See Keeney v. Old Saybrook, supra, 237 Conn. 169.

The judgment is reversed in part as previously ordered; with respect to the remaining orders in favor of the plaintiff, the judgment is affirmed.

       General Statutes § 22a-427 provides: “Pollution or discharge of wastes prohibited. No person or municipality shall cause pollution of any of the waters of the state or maintain a discharge of any treated or untreated wastes in violation of any provision of this chapter.”

       On June 24,1996, this court denied Old Saybrook’s motion for reargument, or reconsideration, in which Old Saybrook sought permission to present additional evidence to the trial court on remand.

       With respect to the probative value of this evidence, we observed, in Keeney v. Old Saybrook, supra, 237 Conn. 160 n.22: “Under other circumstances, the water pollution caused by individual septic systems could perhaps be remedied by repairing and maintaining those systems. [Specially commissioned environmental reports] however, indicated that Old Saybrook could not remedy its pollution problem simply by repairing and maintaining the individual septic systems because of (lie high groundwater table and the small size of many residential lots. Indeed, [one] report specifically concluded that a regional wastewater treatment facility would be the best solution. Old Saybrook has never questioned the scientific validity of these studies.”

         In response to our request for briefs from the parties with respect to the validity of the trial court’s articulation, Old Saybrook has sought to raise further issues that allegedly put into question the trial court’s subject matter jurisdiction to address the merits of the commissioner’s claim under General Statutes §§ 22a-427 and 22a-14 et seq. We decline to consider these issues because they are beyond the scope of our order for additional briefing, which was limited to the merits of the trial court’s articulation. For present purposes, it suffices to observe that affixing the label of subject matter jurisdiction to an issue does not suffice to cast doubt upon the actual jurisdiction of the Superior Court. See Keeney v. Old Saybrook, supra, 237 Conn. 142 n.7.


text:
    DEPARTMENT OF ADMINISTRATIVE SERVICES v. WILLIAM GERACE
    (15423)
    Callahan, C. J., and Berdon, Norcott, McDonald and Peters, Js.
    Argued December 10, 1996
    officially released January 21, 1997

      Robert A. Nagy, assistant attorney general, with whom were Denise S. Mondell, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellant (plaintiff).

      David M. Poirot, with whom was Steven F. Meo, for the appellee (defendant).
   PER CURIAM.

The defendant, William Gerace, an attorney, represented a client in a personal injury action. The client was a parent whose family had been the beneficiary of payments made through the Aid to Families with Dependent Children (AFDC) program. On July 14,1992, the plaintiff, the department of administrative services, notified Gerace by letter of its statutory lien pursuant to General Statutes (Rev. to 1991) § 17-SSe to recover AFDC payments from any proceeds of a judgment or settlement of the personal injury action. The letter informed Gerace that upon recovery he was to send a letter to the plaintiff requesting a final statement of the amount of the state’s hen. The plaintiffs letter further indicated that if the plaintiff did not send a final statement within thirty days of such a request, Gerace would be free to release the entire proceeds. See General Statutes § 17b-94 (a). On September 4, 1992, following settlement of the personal injury action, Gerace sent a one line letter to the plaintiff stating simply: “Please provide me with the amount of the state’s lien.” Forty days later, not having received a response to his letter, Gerace disbursed the entire amount of the settlement.

Subsequently, the plaintiff commenced this action claiming that Gerace had violated the plaintiffs statutory lien rights to the proceeds of the settlement. In its complaint, the plaintiff alleged that Gerace had failed to comply with the provisions of General Statutes (Rev. to 1991) § 17-83f in that he had failed to notify the plaintiff of the settlement and had disbursed the proceeds of the settlement in violation of the plaintiffs lien rights and thereby had “effected a conversion.” The plaintiffs claim was that, without reference to a final figure, Gerace’s one line letter was insufficient notice to it that the action had been settled and that a final figure as to the amount of its lien was requested. His letter, therefore, was claimed to have given inadequate notice to the plaintiff that a reply was required within thirty days.

The matter was heard by a fact finder who recommended that judgment be rendered in favor of Gerace. The trial court accepted the fact finder’s report and rendered judgment in accordance with the fact finder’s recommendation. The plaintiff appealed to the Appellate Court, which affirmed the judgment of the trial court. Commissioner of Administrative Services v. Gerace, 40 Conn. App. 829, 673 A.2d 1172 (1996). We granted certification limited to the following issue: “What information must an attorney present to the commissioner of administrative services, pursuant to General Statutes § 17b-94, to trigger the thirty day period for advising the attorney of the amount of the state’s lien against the proceeds of a cause of action?” Commissioner of Administrative Services v. Gerace, 237 Conn. 916, 676 A.2d 397 (1996).

After having read the record and the appellate briefs of the parties and having considered their arguments, we have determined that certification of this matter was improvidently granted.

The appeal is dismissed.

       Now codified as General Statutes § 17b-93.

       Now codified as General Statutes § 17b-94.


author: BORDEN, J.

text:
    HOUSING AUTHORITY OF THE CITY OF STAMFORD v. CYNTHIA DAWKINS ET AL.
    (15469)
    Borden, Norcott, Katz, McDonald and Peters, Js.
    Argued December 4, 1996
    officially released January 21, 1997

      Abram Heisler, for the appellants (named defendant et al.).

      Eric M. Higgins, for the appellee (plaintiff).
   BORDEN, J.

The dispositive issue of this appeal is whether, despite the execution of a facially valid search warrant, the exclusionary rule embodied in General Statutes § 54-33f applies in a summary process action. The named defendant, Cynthia Dawkins, appeals from the judgment of possession rendered in favor of the plaintiff, the housing authority of the city of Stamford. The defendant challenges the refusal of the trial court to hold a hearing on her motion to suppress evidence of illegal drug dealing that was gathered pursuant to the execution of a search warrant for the apartment leased by the plaintiff to the defendant. We hold that the exclusionary rule does not apply in these circumstances and, accordingly, we affirm the trial court’s judgment.

The relevant facts and procedural history are undisputed. The plaintiff owns a public housing project in Stamford known as Southfield Village, in which the defendant had leased an apartment on May 10, 1994. The lease specifically prohibited the defendant from engaging in, or permitting others to engage in, drug related criminal activity on the premises. On or about May 20, 1994, and again later that week, the Stamford police, through an informant, made two controlled buys of cocaine in the defendant’s apartment. On the basis of these two transactions, the police secured a search and seizure warrant authorizing the search of the apartment for evidence of the sale or use of narcotics. The warrant was executed by several Stamford police officers, as well as by Larry Cece, who was both a Stamford police officer and the chief investigator for the plaintiff. The execution of the warrant yielded marijuana and cocaine, as well as a scale, a pager, plastic sandwich bags, and many small, red plastic “zip-lock” bags commonly used to package cocaine.

Ultimately, the plaintiff brought this summary process action against the defendant, alleging that she had violated various provisions of the lease by permitting Horace Burrell; see footnote 2; to engage in drug related criminal activity in her apartment. Relying on her rights under the federal and state constitutions, and on General Statutes § 54-33c (a), the defendant moved to suppress the evidence gathered as a result of the execution of the search warrant claiming that the warrant had been illegally executed because one of the six pages of the warrant had not been given to her at the time of the search and seizure.

The trial court, however, ruled that the exclusionary rule did not apply to this case and, accordingly, denied the motion to suppress without holding a hearing thereon. Thereafter, the court, after a trial, rendered judgment of possession for the plaintiff on its complaint. This appeal followed.

The defendant makes three closely related claims, all of which rest on the premise that the exclusionary rule should apply to this case. We disagree, and conclude that the trial court was correct in its determination that the exclusionary rule does not apply to this case.

This case is controlled by our recent decision in State v. Jacobs, 229 Conn. 385, 641 A.2d 1351 (1994). In Jacobs, we held that the exclusionary rule did not apply to a revocation of probation proceeding in which the search of the probationer’s residence was conducted pursuant to a search warrant. Id., 392. We concluded that, at least in the absence of a showing that the warrant “was so patently defective that no reasonable police officer would have requested it and no reasonable judge would have issued it”; id., 394; the very presence of a warrant, even if not perfectly executed, “sufficiently guards against the risk that, unless the exclusionary rule applies, the officers will not be deterred from performing an illegal search.” Id., 392. The summary process action in this case is a fortiori guided by the same principle. We conclude, therefore, that the exclusionary rule does not apply to this case. Accordingly, the trial court properly ruled that it did not have to hold a hearing on the defendant’s motion to suppress the evidence yielded by the search.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 54-33f provides: “Motion for return of unlawfully seized property and suppression as evidence, (a) A person aggrieved by search and seizure may move the court which has jurisdiction of his case or, if such jurisdiction has not yet been invoked, then the court which issued the warrant, or the court in which his case is pending, for the return of the property and to suppress for use as evidence anything so obtained on the ground that: (1) The property was seized without a warrant, or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed. In no case may the judge who signed the warrant preside at the hearing on the motion.
      “(b) The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.
      “(c) The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial.”

       There were two other defendants, Larry Dawkins and Horace Burrell, named in the complaint. Larry Dawkins did not appeal from the judgment. The basis of the judgment against Burrell was that the plaintiffs lease of the premises in question was with Cynthia Dawkins and that Burrell had no right or privilege to occupy the premises. That basis is unrelated to the sole claim on appeal, namely, the applicability of the exclusionary rule to this case. Therefore, we regard Cynthia Dawkins as the only appropriate appellant in this case and refer to her alone as the defendant.

       The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       Specifically, the plaintiff alleged that the defendant had violated three lease provisions. In paragraph 7 (c) of the lease, the tenant agreed to require other persons on the premises with the tenant’s consent “to conduct themselves in a manner which does not impair the safety, comfort or welfare of other tenants” in the housing project. Paragraph 9 (a) (9) of the lease required the tenant to “cause other persons who are on the premises with [her] consent to conduct themselves in a manner which . . . will be conducive to maintaining the development in a decent, safe and sanitary condition . . . .” Paragraph 9 (a) (10) (ii) of the lease prohibited the tenant or her guest from engaging in “[a]ny drug-related criminal activity on or near” the apartment.

       General Statutes § 54-33c provides in relevant part: “Application for warrant. Execution and return of warrant. Copy of affidavit to be given to owner, occupant or person named in warrant; exceptions. Disclosure of affidavit limited by prosecuting attorney, when, (a) The applicant for the search warrant shall file a copy of the application for the warrant and all affidavits upon which the warrant is based with the clerk of the court for the geographical area within which the search will be conducted no later than the next business day following the issuance of the warrant. Prior to the execution and return of the warrant, the clerk of the court shall not disclose any information pertaining to the application for the warrant or any affidavits upon which the warrant is based. The warrant shall be executed within ten days and returned with reasonable promptness consistent with due process of law and shall be accompanied by a written inventory of all property seized. A copy of such warrant shall be given to the owner or occupant of the dwelling, structure, motor vehicle or place designated therein, or the person named therein. Within forty-eight hours of such search, a copy of the application for the warrant and a copy of all affidavits upon which the warrant is based shall be given to such owner, occupant or person. The judge may, by order, dispense with the requirement of giving a copy of the affidavits to such owner, occupant or person at such time if the applicant for the warrant files a detailed affidavit with the judge which demonstrates to the judge that (1) the personal safety of a confidential informant would be jeopardized by the giving of a copy of the affidavits at such time, or (2) the search is part of a continuing investigation which would be adversely affected by the giving of a copy of the affidavits at such time, or (3) the giving of such affidavits at such time would require disclosure of information or material prohibited from being disclosed by chapter 959a. If the judge dispenses with the requirement of giving a copy of the affidavits at such time, such order shall not affect the right of such owner, occupant or person to obtain such copy at any subsequent time. No such order shall limit the disclosure of such affidavits to the attorney for a person arrested in connection with or subsequent to the execution of a search warrant unless, upon motion of the prosecuting authority within two weeks of such person’s arraignment, the court finds that the state’s interest in continuing nondisclosure substantially outweighs the defendant’s right to disclosure.

       The defendant’s claims are: (1) the court improperly failed to hold a hearing on her motion to suppress; (2) the exclusionary rule should apply to summary process proceedings because there would be a strong marginal deterrent effect as a result of such an application; and (3) the rale should apply to this case because it is quasi-criminal in nature and because Cece played a dual role, as both a police officer and an officer of the plaintiff.

       We specifically did not decide whether such circums! anees would require the application of the exclusionary rule to probation revocation proceedings. State v. Jacobs, supra, 229 Conn. 392.


text:
    LUMBER MUTUAL INSURANCE COMPANY v. WARD HOLMES
    (15410)
    Borden, Berdon, Katz, Palmer and Peters, Js.
    Argued December 5, 1996
    officially released January 21, 1997

      Donna L. Buttler, for the appellant (defendant).

      Joel M. Fain, with whom was Ann Grunbeck Monaghan, for the appellee (plaintiff).
   PER CURIAM.

The issue in this certified appeal arises from the trial court’s denial of the defendant’s Decernber 16, 1994 motion to cite in certain parties as defendants for purposes of liability apportionment pursuant to General Statutes §§ 52-102 and 52-572h. The defendant appealed from that denial to the Appellate Court, which dismissed the appeal for lack of a final judgment. We granted certification to appeal to review the propriety of the Appellate Court’s ruling. See Lumber Mutual Ins. Co. v. Holmes, 237 Conn. 908, 675 A.2d 456 (1996).

While this case was pending, however, the legislature enacted No. 95-111 of the 1995 Public Acts, which is applicable to civil actions filed on or after July 1, 1995. That public act has, among other things, altered the procedure applicable to the type of motion and ruling at issue in this appeal. Although the defendant’s motion was filed prior to the enactment of Public Act 95-111, which does not apply retroactively to the motion, we conclude that the significance of this appeal has been undermined significantly by this legislation and, therefore, that the appeal should be dismissed because certification to appeal was improvidently granted. See, e.g., In re Romance M., 229 Conn. 345, 358, 641 A.2d 378 (1994) (appeal dismissed where, subsequent to granting of certification, promulgation of new rule of practice “firmly established] the applicable policy” for future cases).

The appeal is dismissed.

       General Statutes § 52-102 provides: “Joinder of persons with interest adverse to plaintiff and of necessary persons. Upon motion made by any party or nonparty to a civil action, the person named in the party’s motion or the nonparty so moving, as the case may be, (1) may be made a party by the court if that person has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein; provided no person who is immune from liability shall be made a defendant in the controversy.”

       General Statutes § 52-572h provides in relevant part: “Negligence actions. Doctrines applicable. Liability of multiple tortfeasors for damages, (a) For the purposes of this section: (1) ‘Economic damages’ means compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages; (2) ‘noneconomic damages’ means compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering; (3) ‘recoverable economic damages’ means the economic damages reduced by any applicable findings including but not limited to set-offs, credits, comparative negligence, additur and remittitur, and any reduction provided by section 52-225a; (4) ‘recoverable noneconomic damages’ means the non-economic damages reduced by any applicable findings including but not limited to set-offs, credits, comparative negligence, additur and remittitur.
      “(b) In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section.
      “(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.
      “(d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party’s percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (f) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction.
      “(e) In any action to which this section is applicable, the instructions to the jury given by the court shall include an explanation of the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party. . .

       Public Acts 1995, No. 95-111, provides: “AN ACT CONCERNING APPORTIONMENT OF LIABILITY.
      “Section 1. (NEW) (a) A defendant in any civil action to which section 52-572h of the general statutes applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiffs damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiffs original complaint. The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the superior court on or before the return date specified in the apportionment complaint. The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h of the general statutes.
      “(b) The apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed. The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party. If the apportionment complaint is served within the time period specified in subsection (a) of this section, no statute of limitation or repose shall be a defense or bar to such claim for apportionment, except that, if tire action against the defendant who instituted the apportionment complaint pursuant to subsection (a) oí this section is subject to such a defense or bar, the apportionment defendant may plead such a defense or bar to any claim brought by the plaintiff directly against the apportionment defendant pursuant to subsection (d) of this section.
      "(c) No person who is immune from liability shall be made an apportionment defendant nor shall such person’s liability be considered for apportionment purposes pursuant to section 52-572h of the general statutes. If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiff’s injuries or damage and the plaintiff has previously settled or released the plaintiff’s claims against such person, then a defendant may cause such person’s liability to be apportioned by filing a notice specifically identifying such person by name and last known address and the fact that the plaintiff’s claims against such person have been settled or released. Such notice shall also set forth the factual basis of the defendant’s claim that the negligence of such person was a proximate cause of the plaintiff s injuries or damages. No such notice shall be required if such person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action.
      “(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint.
      “(e) When a counterclaim is asserted against a plaintiff, he may cause a person not a party to the action to be brought in as an apportionment defendant under circumstances which under this section would entitle a defendant to do so.
      “(f) This section shall be tire exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h of the general statutes for a proportionate share of the plaintiffs damages as a party to the action.
      “(g) In no event shall any proportionate share of negligence determined pursuant to subsection (f) of section 52-572h of the general statutes attributable to an apportionment defendant against whom the plaintiff did not assert a claim be reallocated under subsection (g) of said section. Such proportionate share of negligence shall, however, be included in or added to the combined negligence of the person or persons against whom the plaintiff seeks recovery, including persons with whom the plaintiff settled or whom the plaintiff released under subsection (n) of section 52-572h of the general statutes, when comparing any negligence of the plaintiff to other parties and persons under subsection (b) of said section.
      “Sec. 2. This act shall take effect July 1, 1995, and shall be applicable to any civil action filed on or after said date.”


author: NORCOTT, J.

text:
    THERESA HIGGINS, ADMINISTRATRIX (ESTATE OF STEPHANIE FREEMAN), ET AL. v. HERBERT KARP, EXECUTOR (ESTATE OF ETHEL KARP), ET AL. HERBERT KARP, EXECUTOR (ESTATE OF ETHEL KARP) v. DRZISLAV CORIC, ADMINISTRATOR (ESTATE OF ROBERT FREEMAN)
    (15435)
    (15441)
    Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, Js.

      Argued October 29, 1996
    officially released January 28, 1997

      Wesley W. Horton, with whom were Susan M. Cormier and Paul A. Lange, for the appellant (defendant Drzislav Coric, administrator of the estate of Robert Freeman).

      Eric P. Smith, with whom were Stephen I. Traub, David Thomas Ryan and, on the brief, Bradford S. Babbitt, for the appellees (plaintiffs).

      Richard Blumenthal, attorney general, and Carolyn K. Querijero, assistant attorney general, filed a brief for the attorney general as amicus curiae.

      Steven D. Ecker filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

      Jack G. Steigelfest filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.
   NORCOTT, J.

The dispositive issue in this appeal is the extent to which the trial court, in ruling on motions to set aside defaults entered against the defendant for failure to plead, may attribute the conduct of the defendant’s insurer to the defendant. The appeal of the defendant Drzislav Coric, the administrator of the estate of Robert Freeman, arises from the April 12, 1993 crash of a Piper aircraft en route from Groton, Connecticut, to Cortland, New York. The plane crashed near Ithaca, New York, on approach to Cortland airport during inclement weather conditions. Three of the five people on board the plane died, including the two pilots, Robert Freeman and Ethel Karp, and a rear seat passenger, Stephanie Freeman, the daughter of Robert Freeman.

On February 19, 1994, the plaintiff, Theresa Higgins, the mother of Stephanie Freeman, brought, both individually and as administratrix of her daughter’s estate, the first action in this appeal against Herbert Karp, the executor of the estate of Ethel Karp, and against Coric. Higgins alleged on behalf of her daughter’s estate that the negligence of Ethel Karp and Robert Freeman had caused the wrongful death other daughter. Higgins also individually alleged a claim of loss of filial consortium against Ethel Karp and Robert Freeman. In his answer to Higgins’ complaint, Herbert Karp cross claimed against Coric for contribution and indemnification. On May 17, 1994, Herbert Karp, as executor of the estate of Ethel Karp, brought the second action involved in this appeal against Coric for the wrongful death of his wife. On July 21, 1994, pursuant to General Statutes § 52-192a, Higgins, both individually and in her capacity as administratrix of her daughter’s estate, filed a $2 million offer of judgment against Coric and another $2 million offer of judgment against Herbert Karp. Neither Coric nor Karp accepted Higgins’ offers of judgment. In their respective actions against Coric, both Higgins and Karp moved for, and were granted, defaults for failure to plead.

On May 19, 1995, Coric moved, pursuant to Practice Book § 376, to set aside the two defaults entered against him. The trial court denied Coric’s motions and, on June 9, 1996, the court issued a memorandum of decision addressing the reasons for the denial. On June 12, 1996, Coric submitted his notice of defenses pursuant to Practice Book § 367, which the trial court subsequently allowed to be stricken.

The two actions against Coric were consolidated, and Higgins’ action against Herbert Karp was severed. Between August 23 and August 30, 1995, the two actions brought by Higgins and Karp as representatives of the respective estates were tried, as a hearing in damages, to the jury, which returned verdicts against Coric in favor of Higgins and Karp. The jury awarded damages of $3,936,933 to Higgins and $1,405,895 to Kaip. The trial court did not permit Higgins’ individual action against Coric for loss of filial consortium to go to the juiy. On October 6, 1995, the trial court denied Coric’s motions for remittitur and to set aside the verdicts and rendered judgments against Coric on the verdicts in favor of Higgins in her representative capacity and in favor of Karp, and in favor of Coric against Higgins individually. Over Coric’s objections, the trial court, pursuant to § 52-192a, added 12 percent prejudgment interest to Higgins’ damage award from the date of the filing of the complaint on February 19, 1994, to the date of the denial of the motion to set aside the verdict on October 6, 1995. Coric appealed from the judgments of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

On appeal, Coric contends that the trial court abused its discretion when it: (1) denied his motions to set aside the defaults entered against him for failure to plead; (2) sustained Higgins’ objections to his notices of defenses, which notices were filed more than ten days after he had received notice of the entry of judgments of default; (3) denied his request to apply New York law rather than Connecticut law to the case; and (4) awarded Higgins prejudgment interest under § 52-192a. We agree with Coric’s first claim, and because it is dispositive of the appeal, we reverse the judgments of the trial court and remand the cases for further proceedings.

Coric argues that the trial court improperly denied his motions to set aside the defaults entered against him for failure to plead. “Pursuant to Practice Book § 376 [a] motion to set aside a default when no judgment has been rendered may be granted by the court for good cause shown upon such terms as it may impose. The determination of whether to set aside [a] default is within the discretion of the trial court. See White’s Appeal, 75 Conn. 314, 318, 53 A. 582 (1902). Skyler Limited Partnership v. S.P. Douthett & Co., 18 Conn. App. 245, 248-49, 557 A.2d 927, cert. denied, 212 Conn. 802, 560 A.2d 984 (1989).” (Internal quotation marks omitted.) Voluntown v. Rytman, 21 Conn. App. 275, 283, 573 A.2d 336, cert. denied, 215 Conn. 818, 576 A.2d 548 (1990). The scope of review by this court on a claim that the trial court abused its discretion is well settled. “[Ejvery reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) Suffield Bank v. Berman, 228 Conn. 766, 783, 639 A.2d 1033 (1994).

With these principles in mind, we turn to the facts and circumstances relevant to Coric’s first claim. On April 21, 1995, attorney Paul Lange entered an appearance on behalf of Coric in lieu of Thomas Wilson, the attorney who had represented Coric up to that point. Lange subsequently filed motions to set aside the defaults that had been entered against Coric. In support of the motions, Lange submitted a memorandum of law and Wilson’s affidavit setting forth the reasons why he had not answered the complaints brought against Coric in a timely fashion. In the affidavit, Wilson stated that the death of Robert Freeman and the insolvency of Freeman’s estate had hindered his ability to conduct an investigation of the crash and thereby prevented him from formulating adequate defenses. Wilson further stated that he was hampered by the fact that he had not received the National Transportation Safety Board report until late 1994, and that he believed that AIG Aviation, the insurer of E.G. & H., Inc., should and would provide representation and liability coverage for Coric, which it had failed to do.

On June 5, 1995, a hearing was held before the trial court on Coric’s motions to set aside the defaults. The trial court denied the request to set aside the defaults and issued a memorandum explaining the reasons for its decision. In the memorandum, the trial court repeatedly made reference to the conduct of AIG Aviation, stating: “[T]he insurer ordered Wilson not to defend the case, in effect forbidding him to file a pleading. ... It is clear to the court . . . that AIG [Aviation] denied coverage to the defendant, Freeman, and declined to defend the case. . . . Since AIG [Aviation], the insurer, ordered Wilson not to defend the case, his failure to do so is hardly a justification for the defendant’s failure to plead.” Finding that a “conscious and calculated decision was made by AIG [Aviation] not to defend these cases,” the trial court determined that the “reversal of the company’s decision to defend [was not an] adequate reason to [set aside the defaults].” On the basis of these findings of improper conduct on the part of AIG Aviation, the trial court, in resolving the motions to set aside the defaults, concluded that Coric “not only failed to state good cause for its failure to answer, but also failed to give any reason at all, alone sufficient] to mandate [the] denial of the motion [s] to [set aside] the defaults].”

Our careful review of the trial court’s decision regarding the refusal to set aside the defaults reveals that the trial court did not consider the reasons that Wilson had set forth in his affidavit on behalf of Coric for failing to plead, but instead focused exclusively on the conduct of AIG Aviation, a nonparty to the litigation. In thus viewing Wilson as a representative of the insurer, AIG Aviation, rather than as a representative of the defendant, Coric, the trial court ignored the principle, well settled in our jurisprudence, that “[a]n attorney’s allegiance is to his client, not to the person who happens to be paying for his services.” Martyn v. Donlin, 151 Conn. 402, 414, 198 A.2d 700 (1964). This rule applies with equal force in the context of the relationship between an attorney, an insured, and the insurer. Thus, even when an attorney is compensated or expects to be compensated by a liability insurer, his or her duty of loyalty and representation nonetheless remains exclusively with the insured. Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 571-72, 316 A.2d 394 (1972). In denying the motions to set aside the defaults entered against Coric, the trial court arrived at its decision based on the perceived improper actions of AIG Aviation in initially denying coverage, then later deciding to defend. In so doing, the trial court improperly imputed the actions of AIG Aviation to Coric.

This does not mean that the conduct of the defendant’s attorney may not be attributed to his client for this purpose. Indeed, ordinarily the attorney’s conduct in representing his client is attributed to his client for such purposes. Nor does this mean that an insurer’s conduct may never be considered in the context of a motion to set aside a default. There may be instances where the conduct of the insurer is so intertwined with or directly related to the conduct of the insured or attorney that attribution may be appropriate. This, however, is not such a case.

Because the trial court disregarded the fact that Wilson, as Coric’s attorney, did not represent AIG Aviation, the trial court relied on factors irrelevant to the determination of whether good cause existed to set aside the defaults entered against Coric. The trial court did not, as it should have, evaluate the merits of the motions according to the reasons that Wilson put forth on Coric’s behalf, namely, the obstacles raised by Robert Freeman’s death and the insolvency of Freeman’s estate. Although we are mindful of the deferential standard by which we review a discretionary ruling denying a motion to set aside a default, we nevertheless conclude that the trial court exceeded the scope of its discretion by focusing on factors irrelevant to whether there was good cause to set aside the defaults.

The judgments are reversed, the orders denying the motions to set aside the defaults are vacated and the cases are remanded to the trial court to determine, on the basis of factors other than the conduct of AIG Aviation, whether good cause exists to set aside the defaults entered against Coric. We retain jurisdiction of the cases for the purposes of appellate review of the other issues on appeal in the event that the trial court, in considering factors consistent with this opinion, does not find good cause to set aside the defaults.

In this opinion the other justices concurred.

       The initial complaint also named as defendants E.G. & H., Inc., the owner of the aircraft, and Gary M. Bertman, one of the directors and stockholders of E.G. & H., Inc. The claims against these two defendants, however, were subsequently withdrawn on March 15, 1995.

       Stephanie Freeman was domiciled in New York where her estate is being administered.

       Ethel Karp and Robert Freeman were domiciled in Connecticut where their estates are being administered.

       General Statutes § 52-192a provides: “(a) After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment’ and prior to the rendering of a verdict by the jury or an award by the court, the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiffs ‘offer of judgment,’. Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such 'offer of judgment' and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed t,o accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1, 1981, the interest shall be computed from the date the complaint in the civil action was filed with the court: if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”

       Higgins also made offers of judgment to Gary Bertman and to E.G. & H., Inc., which were rejected. See footnote 1.

       Practice Book § 376 provides in relevant part: “A motion to set aside a default where no judgment has been rendered may be granted by the court for good cause shown upon such terms as it may impose. As part of its order the court may extend the time for filing pleadings or disclosure in favor of a party who has not been negligent. . . .”

       Practice Book § 367 provides in relevant part: “In any hearing in damages upon default, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiffs complaint, except such as relate to the amount of damages, unless notice has been given to the plaintiff of the intention to contradict such allegations and of the subject matter which the defendant intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall the defendant be permitted to prove any matter of defense, unless written notice has been given to the plaintiff of the intention to deny such right or to prove such matter of defense. . . .”

       On May 13, 1996, Higgins, individually and as administratrix, withdrew all claims against. Herbert Karp.

       Higgins originally filed an appeal from the judgment denying her recovery for loss of filial consortium, which she subsequently withdrew.


text:
    STATE OF CONNECTICUT v. CHARLES MCCLENDON
    Decided September 18, 1996

      Elizabeth M. Inkster, assistant public defender, in support of the petition.

      Christopher T. Godialis, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court (AC 15529) is dismissed.


text:
    LEWIS J. BUSCONI ET AL. v. RONALD DIGHELLO ET AL.
    Decided September 18, 1996

      Mami Smith Katz, in support of the petition.
   The defendants’ petition for certification for appeal from the Appellate Court (AC 15751) is dismissed.


text:
    PAUL KOSTAK v. ADELE KOSTAK
    Decided September 18, 1996

      Henry D. Marcus, in support of the petition.

      Lynn D. Wittenbrink, in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 15836) is denied.


text:
    STATE OF CONNECTICUT v. PAULA CORRIGAN
   The defendant’s petition for certification for appeal from the Appellate Court, 40 Conn. App. 359 (AC 13332), is denied.

Decided September 18, 1996

Michael A. Blanchard, in support of the petition.

Timothy J. Sugrue, executive assistant state’s attorney, in opposition.


text:
    STATE OF CONNECTICUT v. VICTOR TORRES
    Decided September 18, 1996
    The Supreme Court docket number is SC 15513.

      Harry Weller, assistant state’s attorney, in support of the petition.

      Susan M. Hankins, assistant public defender, in opposition.
   The petition by the state of Connecticut for certification for appeal from the Appellate Court, 41 Conn. App. 495 (AC 14279), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the evidence was insufficient to support the conviction of the defendant of conspiracy to commit murder?”


text:
    CHARLES G. GIBSON ET AL. v. JOHN A. CAPANO ET AL.
    The Supreme Court docket number is SC 15514.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 41 Conn. App. 548 (AC 13625), is granted, limited to the following issue:

“In order to impose liability on a seller of real estate for innocent misrepresentation, is specialized knowledge by the seller required?”

Decided September 18, 1996

Edward J. Holahan, Jr., in support of the petition.

Douglas M. Cott, in opposition.


text:
    STATE OF CONNECTICUT v. ANDRE HUCKABEE
    Decided September 18, 1996

      Rita M. Shair, assistant state’s attorney, in support of the petition.

      Mary Miller Haselkamp, assistant public defender, in opposition.
   The petition by the state of Connecticut for certification for appeal from the Appellate Court, 41 Conn. App. 565 (AC 13930), is denied.


text:
    JAMES NESTOR v. TRAVELERS INDEMNITY COMPANY
    Decided September 18, 1996

      David M. Reilly, in support of the petition.

      Robin S. Linker and Louis A. Ricciuti, Jr., in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 41 Conn. App. 625 (AC 14576), is denied.


text:
    STATE LIBRARY v. FREEDOM OF INFORMATION COMMISSION ET AL. CITY OF NORWICH ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
   The petition by the plaintiffs city of Norwich, Richard Abele and James McGeowan for certification for appeal from the Appellate Court, 41 Conn. App. 641 (AC 14415/14416), is granted, limited to the following issue:

Decided September 18, 1996

The Supreme Court docket number is SC 15523.

Marc S. Mandell, in support of the petition.

James C. McGuire, in opposition.

“In the circumstances of this case, did the Appellate Court properly conclude that the plaintiffs failed to prove their aggrievement?”


text:
    STATE LIBRARY v. FREEDOM OF INFORMATION COMMISSION ET AL. CITY OF NORWICH ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    Decided September 18, 1996
    The Supreme Court docket number is SC 15522.

      Linsley Barbato, assistant attorney general, in support of the petition.

      James C. McGuire, in opposition.
   The petition by the plaintiff State Library for certification for appeal from the Appellate Court, 41 Conn. App. 641 (AC 14415/14416), is granted, limited to the following issue:

“In the circumstances of this case, did the Appellate Court properly conclude that the plaintiffs failed to prove their aggrievement?”


text:
    BRUCE CIRILLO ET AL., COADMINISTRATORS (ESTATE OF NICHOLAS J. CIRILLO) v. FREDERICK E. SARDO ET AL.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 41 Conn. App. 664 (AC 14047), is denied.

Decided September 18, 1996

Jonathan J. Einhom, in support of the petition.

S. Dave Vatti, in opposition.


text:
    JOHN DOE v. STATEWIDE GRIEVANCE COMMITTEE
    Decided September 18, 1996
    The Supreme Court docket number is SC 15533.

      Darlene F. Reynolds and Elizabeth F. Collins, in support of the petition.

      James A. Wade, Craig A. Raabe and Dina S. Fisher, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 671 (AC 14174), is granted, limited to the following issue:

“Did the Appellate Court properly conclude the failure of the statewide grievance committee to comply with the timing requirements of General Statutes § 51-90g (g) and Practice Book § 27J (i) deprives the court of subject matter jurisdiction over a complaint for attorney misconduct?”


text:
    DEWITT LEWIS ET AL. v. MICHAEL MATTEO ET AL.
    Decided September 18, 1996

      Margaret J. Slez, in support of the petition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 41 Conn. App. 684 (AC 14029), is denied.


text:
    REPUBLIC INSURANCE COMPANY v. PAT DINARDO AUTO SALES, INC., ET AL.
    Decided September 18, 1996

      Heidi Clark, in support of the petition.

      Steven A. Levy, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 41 Conn. App. 686 (AC 14562), is denied.


text:
    STATE OF CONNECTICUT v. ABARA ROSE
    Decided September 18, 1996

      William A. Lichtenfels, in support of the petition.

      Christopher T. Godialis, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 701 (AC 13394), is denied.


text:
    PATRICIA BURNS v. ROGER J. BURNS
    Decided September 18, 1996

      William H. Narwold and Charles D. Ray, in support of the petition.

      Kathleen A. Hogan, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 716 (AC 13490), is denied.


text:
    WILLIAM J. MILARDO v. COMMISSIONER OF CORRECTION
    Decided September 18, 1996

      Denise Ansell, in support of the petition.

      Marjorie Allen Dauster, assistant state’s attorney, in opposition.
   The petitioner William J. Milardo’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 749 (AC 14409), is denied.


text:
    STATE OF CONNECTICUT v. ALLAN DEGOURVILLE
    Decided September 18, 1996

      Melvin A. Simon, in support of the petition.

      James M. Ralls, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 772 (AC 13289), is denied.


text:
    CARL J. HERZOG FOUNDATION, INC. v. UNIVERSITY OF BRIDGEPORT
    The Supreme Court docket number is SC 15526.
   The defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 790 (AC 14623), is granted, limited to the following issue:

“Does the Connecticut Uniform Management of Institutional Funds Act; General Statutes §§ 45a-526 through 45a-534; establish statutory standing for a donor to sue to enforce the terms of a charitable gift?”

Decided September 18, 1996

Frederick S. Gold and Ellen A. Jawitz, in support of the petition.

John F. Lambert, in opposition.


author: BERDON, J.,

text:
    STATE OF CONNECTICUT v. LUCY CRUZ
    Decided September 18, 1996

      Elizabeth M. Inkster, assistant public defender, in support of the petition.

      Rita M. Shair, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 809 (AC 15177), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification to appeal.


text:
    STATE OF CONNECTICUT v. JOHN L. MOALES
    Decided September 18, 1996

      H. Jeffrey Beck, in support of the petition.

      Denise B. Smoker, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 817 (AC 14456), is denied.


text:
    STATE OF CONNECTICUT v. LINDA RICCIO
   The defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 847 (AC 14545), is denied.

Decided September 18, 1996

Judith F. Machuga, assistant public defender, in support of the petition.

Michele C. Lukban, deputy assistant state’s attorney, in opposition.


text:
    ANNETTE BARRETTA v. OTIS ELEVATOR COMPANY ET AL.
    Decided September 18, 1996
    The Supreme Court docket number is SC 15516.

      L. Douglas Shrader, in support of the petition.
   The named defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 856 (AC 14659), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the judgment must be reversed because of the failure of the trial court to charge on the doctrine of res ipsa loquitur?”


text:
    SHARON DOBOZY v. JOHN DOBOZY
    The Supreme Court docket number is SC 15528.
   The plaintiffs petition for certification for appeal from the Appellate Court, 41 Conn. App. 861 (AC 14436), is granted, limited to the following issue:

“Whether in a case arising under General Statutes § 46b-62 the trial court may properly award reasonable attorney’s fees to a parent prosecuting a contempt motion concerning the care and support of a minor child when the parent prevails but the court does not adjudicate the respondent to be in contempt?”

Decided September 18, 1996

James A. Trowbridge, in support of the petition.

Johnpatrick C. O’Brien, in opposition.


text:
    LINDA LABENSKI v. LOUIS GOLDBERG, COMMISSIONER OF MOTOR VEHICLES
    Decided September 18, 1996

      Lawrence Berliner, in support of the petition.

      Alan Ponanski, assistant attorney general, in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 41 Conn. App. 866 (AC 14548), is denied.


text:
    STATE OF CONNECTICUT v. ROBERT KORHN
    Decided September 18, 1996

      Albert E. Goring, in support of the petition.

      Michele C. Lukban, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 874 (AC 14345), is denied.


text:
    LINDA AYRES v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
   The plaintiffs petition for certification for appeal from the Appellate Court, 41 Conn. App. 903 (AC 14739), is denied.

Decided September 18, 1996

Linda Ayres, pro se, in support of the petition.

Alice Carey, in opposition.


text:
    STATE OF CONNECTICUT v. NNAMDI CLARKE
    Decided September 18, 1996

      G. Douglas Nash, public defender, in support of the petition.

      Michele Lukban, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 916 (AC 14621), is denied.


text:
    STATE OF CONNECTICUT v. JOSEPH WIXTED
    Decided September 18, 1996

      Louis S. Avitabile, in support of the petition.

      Lisa Herskowilz, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 916 (AC 14585), is denied.


text:
    STATE OF CONNECTICUT v. JAMES D. LINLEY

      Michael S. Hillis, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 917 (AC 15190), is denied.

Decided September 18, 1996

Ronald G. Weller, assistant state’s attorney, in opposition.