text:
    Kenneth Sims v. Honda Motor Company, Ltd., et al.
    (14565)
    Peters, C. J., Callahan, Borden, Norcott and Katz, Js.
    Argued January 6
    decision released April 20, 1993

      Elizabeth A. Gallagher, with whom, on the brief, was William F. Gallagher, for the appellant (plaintiff).

      Jeremy G. Zimmermann, with whom were Elizabeth P. Gilson and, on the brief, Robert A. Calinoff, pro hac vice, for the appellees (defendants).
   Peters, C. J.

The sole issue in this case, on certification from the United States District Court, is whether, pursuant to General Statutes § 52-572e, an alleged tortfeasor is, as a matter of law, discharged from liability to an injured party by virtue of a general release agreement executed by the injured party that purports to release not only a specifically named tortfeasor, but also all other potentially liable parties, for consideration paid by the named tortfeasor. The plaintiff, Kenneth Sims, filed a product liability action in the United States District Court for the District of Connecticut, alleging that the defendants, Honda Motor Company, Ltd., Honda Research and Development, Ltd., American Honda Motor Company, Inc., and Freedom Corporation, doing business as Freedom Honda, were liable for injuries that Sims sustained while riding a Honda motorcycle. Honda filed an amended answer and asserted special defenses alleging, inter alia, that Sims’ claim was barred because Sims, in his settlement with another tortfeasor in the motorcycle accident, had executed a general release of all potential tortfeasors. Sims denied the allegations made in the special defenses, and Honda thereafter moved for summary judgment on the basis of the release. The District Court subsequently certified to this court, pursuant to General Statutes § 51-199a and Practice Book § 4168, several questions relating to the effect of the release. We accepted the certified questions, and now hold that the effect of the release depends upon the contracting parties’ intent regarding the release of other potentially liable parties.

The District Court record reveals the following facts, which were alleged by Sims in his complaint or stipulated to by the parties. In 1986, Sims purchased a new Honda motorcycle. On May 29,1987, while riding the Honda motorcycle, Sims was struck by a vehicle owned and operated by Emanuel Byrd. As a result of injuries sustained in the collision, Sims’ left leg was amputated above the knee. Sims also suffered severe shock to his nervous system, severe pain, mental anguish, nervousness and permanent scarring.

After the collision, Sims, represented by counsel, entered into negotiations with Byrd’s insurer, and subsequently executed a release of claims that Byrd’s insurer had prepared. The release provided that Sims would receive $50,000 from Byrd and his insurers in consideration for Sims’ agreement to “release, acquit and forever discharge” Byrd and his insurers, as well as “any and all” other parties, from “any and all” claims arising out of the May 29,1987 collision. Honda was neither a party to the negotiations that led to the execution of the release, nor did it contribute to the consideration given to Sims.

In response to Honda’s motion for summary judgment in the District Court, the attorney who had represented Sims in the negotiations with Byrd’s insurers filed an affidavit stating that the product liability action against Honda had been under consideration at the time Sims had executed the release. The attorney also stated that he had never intended that Sims would release Honda from liability by signing the release. Sims also filed an affidavit in the District Court stating that, when he had signed the release, he had had no intention of releasing Honda from liability.

In his brief in this court, Sims claims that the release is not effective to discharge Honda from liability as a matter of law because, under § 52-572e, only those tortfeasors expressly named in a release are discharged from liability, unless the releasing party manifestly intended to release unnamed tortfeasors. Sims contends, therefore, that the language, “any and all other persons, firms and corporations,” in the release that he executed is ambiguous as to whether it releases Honda and, accordingly, that it must be construed in his favor.

Honda claims, on the other hand, that the language of § 52-572e does not require a release to designate expressly those tortfeasors that the parties sought to discharge from liability. Honda asserts, therefore, that the language in question is effective to release it from liability. Honda also contends, in the alternative, that the language of the release must be interpreted in light of the parties’ intent and that the release executed by Sims must, as a matter of law, be held effective to discharge Honda, a potential tortfeasor known to Sims at the time he executed the release.

The certified issue is one of first impression in this court, although it has been addressed in other jurisdictions and in one published Superior Court decision. We conclude that a general release like that signed by Sims, which provides for the release of “any and all other persons, firms and corporations,” discharges only those joint tortfeasors whom the contracting parties actually intended to be released.

I

At common law in Connecticut, a release of one joint tortfeasor operated as a release of all joint tortfeasors. See Dwy v. Connecticut Co., 89 Conn. 74, 77, 92 A. 883 (1915). “The traditional rationale given for this rule was that where two or more tortfeasors acted in concert to cause an injury, the act of one became the act of all and a single cause of action, with each participant being liable for the entire loss sustained by the plaintiff.” Neves v. Potter, 769 P.2d 1047, 1049 (Colo. 1989). This common law rule was widely criticized by courts and commentators as unjust because it served as a trap for unknowing plaintiffs, barring them from suing additional tortfeasors and, in some cases, from obtaining fall relief for their injuries. See, e.g., McInnis v. Harley Davidson Motor Co., 625 F. Sup. 943, 947 (D.R.1.1986) (applying Rhode Island law); Moore v. Missouri Pacific Railroad, 299 Ark. 232, 239-40, 773 S.W.2d 78 (1989); Bjork v. Chrysler Corporation, 702 P.2d 146, 152-54 (Wyo. 1985); W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 49, p. 333; R. Satter, “Changing Roles of Courts and Legislatures,” 11 Conn. L. Rev. 230, 236 (1979); see also Fulmore v. Coleman, 41 Conn. Sup. 353, 354, 574 A.2d 1337 (1989) (.Berdon, J.).

In 1969, the Connecticut legislature abrogated the common law rule by enacting General Statutes § 52-572e, which derives from the Uniform Contribution Among Tortfeasors Act. Public Acts 1969, No. 69-143. Section 52-572e provides in relevant part: “(b) A release by the injured person, or his legal representative, of one joint tortfeasor does not discharge the other tortfeasors unless, and only to the extent, the release so provides.” (Emphasis added.)

As the Illinois Supreme Court noted regarding a statute similar to § 52-572e, “[t]he legislature intended to abolish the common law rule that produced an involuntary discharge of joint tortfeasors.” (Emphasis added.) Alsup v. Firestone Tire & Rubber Co., 101 Ill. 2d 196, 201, 461 N.E.2d 361 (1984). Moreover, the Illinois court held that, if a general release were construed to discharge all tortfeasors regardless of whether their release had been contemplated by the contracting parties, “an important purpose of the [statute] would be thwarted by the unintended release of persons who were strangers to the release contract.” Id. Accordingly, we conclude that § 52-572e reflects a legislative preference for preserving an unknowing injured party’s opportunity to seek relief from responsible tortfeasors and a policy against enforcing an injured party’s involuntary discharge of responsible tortfeasors.

II

The primary issue in this case is one of contract interpretation: does the general release executed by Sims provide for the release of Honda within the meaning of § 52-572e? In jurisdictions with statutes similar to § 52-572e, courts interpreting releases with all-inclusive language, like that in the release executed by Sims, have generally taken one of three approaches, none of which appears to have captured a majority.

A

Some courts have adopted a “flat bar” rule, holding that, as a matter of law, a release “provides” for the discharge of all potential joint tortfeasors if it purports to discharge not only the named tortfeasors, but also any and all other parties. See, e.g., Mussett v. Baker Material Handling Corporation, 844 F.2d 760, 762 (10th Cir. 1988) (applying Oklahoma law); State Farm Mutual Automobile Ins. Co. v. Reynolds, 676 F. Sup. 106, 107 (W.D. Va. 1987) (applying Virginia law); Doganieri v. United States, 520 F. Sup. 1093, 1097 (N.D. W. Va. 1981) (applying West Virginia law); Peters v. Butler, 253 Md. 7, 9-10, 251 A.2d 600 (1969); Battle v. Clanton, 27 N.C. App. 616, 621, 220 S.E.2d 97 (1975), cert. denied, 289 N.C. 613, 223 S.E.2d 391 (1976); Hasselrode v. Gnagey, 404 Pa. 549, 552-53, 172 A.2d 764 (1961). The “flat bar” rule yields a broad construction of both the “so provides” language of the statute and the “any and all” language of the release.

Most “flat bar” courts hold that, because a release purporting to discharge all other parties from liability is unambiguous, it must be construed with reference only to the language used and not to any extrinsic evidence of the parties’ intent. See Mussett v. Baker Material Handling Corporation, supra, 762; State Farm Mutual Automobile Ins. Co. v. Reynolds, supra, 107; Doganieri v. United States, supra, 1097; Peters v. Butler, supra, 10; Hasselrode v. Gnagey, supra, 552. Reading the language within the four corners of the agreement, these courts determine that the parties manifested their intent, as a matter of law, that the release discharge all potential tortfeasors from liability.

In adopting the “flat bar” rule under Virginia law, the District Court for the Western District of Virginia noted that the unnamed joint tortfeasor is not necessarily freed from liability for the injured party’s damages. State Farm Mutual Automobile Ins. Co. v. Reynolds, supra, 107-108. The court held that, despite the release’s discharge of the nonsettling joint tortfeasor’s liability to the injured party, the nonsettling joint tortfeasor may nonetheless be liable to the settling joint tortfeasor for contribution. The Reynolds court concluded that the “flat bar” rule would thus hasten payment to the injured party, leaving the liable parties to litigate their respective faults afterward. Id., 108.

We decline to adopt the “flat bar” approach because it perpetuates the inequities of the common law rule and contravenes the legislative preference, expressed in § 52-572e, for preserving the opportunity of an unknowing injured party to seek relief. By presuming that the actual intent of parties was fully incorporated into the release, the “flat bar” rule precludes án injured party from seeking further relief from a nonsettling joint tortfeasor.

B

A second group of courts has adopted a “specific designation” rule under which, as a matter of law, a general release discharges only those tortfeasors that are expressly identified. See, e.g., Moore v. Missouri Pacific Railroad, supra, 240; Alsup v. Firestone Tire & Rubber Co., supra, 201; Aid Ins. Co. v. Davis County, 426 N.W.2d 631, 633 (Iowa 1988); Beck v. Cianchetti, 1 Ohio St. 3d 231, 235, 439 N.E.2d 417 (1982); Bjork v. Chrysler Corporation, supra, 163; see also Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 419 (Tex. 1984) (adopting the “specific designation” rule in the absence of a statute similar to § 52-572e). Courts adopting this rule generally hold that naming the released parties is not necessary if those parties are sufficiently described with terms such as “employees” or “the driver of the car.” See, e.g., Moore v. Missouri Pacific Railroad, supra; Aid Ins. Co. v. Davis County, supra, 633-34; Beck v. Cianchetti, supra. This approach yields a narrow construction of both the release and the statute’s “so provides” language.

Adoption of the “specific designation” rule is generally supported by reference to the historical development of the law of releases. Courts adopting the “specific designation” rule generally conclude that interpreting a general release to discharge from liability all tortfeasors, whether named in the release or not, would, in effect, perpetuate the inequity of the common law rule. See, e.g., Alsup v. Firestone Tire & Rubber Co., supra, 201; Aid Ins. Co. v. Davis County, supra, 634; Beck v. Cianchetti, supra, 235. Moreover, “specific designation” courts base their adoption of this approach on their determination that this rule provides the best means of ascertaining the parties’ intent. See, e.g., Moore v. Missouri Pacific Railroad, supra, 240; Bjork v. Chrysler Corporation, supra, 162-63.

We reject the “specific designation” approach because, in our view, it reads § 52-572e more expansively than the legislature intended. This approach interprets § 52-572e as effectively prohibiting general releases, rather than merely abolishing the automatic legal effect of a release of one tortfeasor. Because the “specific designation” approach does not seek to ascertain the parties’ actual intent, but simply replaces the legal construct of the common law rule with another legal presumption, this approach is inconsistent with the legislature’s choice not to prohibit general releases per se.

Moreover, we note that courts adopting the “specific designation” rule appear to view the question of the effect of the release as one of statutory interpretation: what does “provide” mean? We consider the certified issue to raise instead a question of contract interpretation: to what did the parties agree? For these reasons, we reject the “specific designation” rule.

c

Other courts have taken a third approach to the construction of general releases: the “intent” rule. Rather than presume that the parties’ intent was fully expressed within the four corners of the release or that, despite the broad language of the release, the parties did not intend it to discharge all joint tortfeasors from liability, these courts consider extrinsic evidence of the parties’ intent to determine the scope of the release. See, e.g., McInnis v. Harley-Davidson Motor Co., supra, 957 (applying Rhode Island law); Neves v. Potter, supra, 1053; Flanagan v. Department of Transportation, 532 So. 2d 714, 715 (Fla. App. 1988) (citing Hurt v. Leatherby Ins. Co., 380 So. 2d 432, 434 [Fla. 1980]); Williams v. Physicians & Surgeons Community Hospital, Inc., 249 Ga. 588, 590, 292 S.E.2d 705 (1982). These jurisdictions note that the “intent” rule provides a middle road.between the more extreme “flat bar” and “specific designation” rules, both of which employ legal fictions regarding the parties’ intent. See, e.g., McInnis v. Harley-Davidson Motor Co., supra, 949. “Logically, it is the intentions of the actors, rather than the presence or absence of buzzwords, which should govern.” Id., 955.

“Intent” rule jurisdictions justify consideration of extrinsic evidence of the parties’ intent on various grounds. For example, the Florida Supreme Court held that a general release was ambiguous because of the presence of written and printed language in a single form, thereby warranting admission of extrinsic evidence to interpret that ambiguity. Hurt v. Leatherby Ins. Co., supra, 434. Other courts, however, have held, even without a prior determination that the release is ambiguous, that extrinsic evidence is admissible to aid the court in ascertaining the parties’ intent because a stranger to a contract (the nonsettling joint tortfeasor) cannot prevent the introduction of extrinsic evidence for that purpose. McInnis v. Harley-Davidson Motor Co., supra, 952; Neves v. Potter, supra, 1054.

D

We are persuaded that the “intent” rule best implements the goals of § 52-572e. By abrogating the common law rule that a release of one tortfeasor discharges, by operation of law, all joint tortfeasors, § 52-572e preserves the right of the injured party to choose to release one or all joint tortfeasors in accordance with the intent of the negotiations between the injured party and the settling tortfeasor. Under § 52-572e, therefore, the contracting parties’ intent, not the operation of a legal rule, determines the scope of a release. See McInnis v. Harley-Davidson Motor Co., supra, 949 (“intent” rule court noting importance of ascertaining parties’ intent); Hasselrode v. Gnagey, supra, 552 (“flat bar” rule court noting that intent of the parties, as expressed within four corners of release, governs scope of release); Bjork v. Chrysler Corporation, supra, 161 (“specific designation” rule court noting the importance of ascertaining parties’ intent).

The “intent” rule best furthers the purpose of § 52-572e because it enables courts to ascertain the parties’ actual intent. Free of irrebuttable presumptions regarding the intended scope of often boilerplate releases, this approach provides for consideration of extrinsic evidence of the parties’ actual intent and does not confine interpretation of the release to its four corners.

The consideration of extrinsic evidence of the parties’ intent regarding the scope of the release, whether ambiguous or not, is appropriate because such consideration will best further the purpose of § 52-572e, which in our view is to permit the release of one joint tortfeasor to effect the release of other joint tortfeasors only if the settling parties so intended. In light of this statutory purpose, the “boilerplate” nature of the general release language in the agreement executed by Sims raises the specter of an adhesion contract; cf. Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 416-18, 538 A.2d 219 (1988) (notice provisions of adhesion contract not literally enforced); or at least cautions against presuming that the language of the release reflects the parties’ intent regarding its scope. See also Hurt v. Leatherby Ins. Co., supra, 433-34. We are, therefore, disinclined to allow the mere presence of words of general release to frustrate the purpose of § 52-572e.

Analogous cases from other jurisdictions support our conclusion that extrinsic evidence of intent is appropriately considered in determining the scope of a general release. For example, in interpreting two “dragnet clauses” that purported to secure payment of “ ‘any and all other indebtedness of Borrower to [the bank giving the loan],’ ” the Mississippi Supreme Court held that the language, “ ‘any and all other indebtedness,’ ” did not encompass all debts owed by the borrower to the bank. Merchants National Bank v. Stewart, 608 So. 2d 1120, 1125 n.4 (Miss. 1992). The court reached this conclusion after ascertaining the parties’ probable intent by determining each party’s awareness of the various debts and after noting that the clauses were “ ‘boilerplate’ in nature.” Id., 1126. The court ended its discussion of the dragnet clauses by stating, “the fact that these notes were otherwise fully secured, further indicates that they were not intended to be included under the . . . agreements.” (Emphasis added.) Id., 1127; see also Wong v. Beneficial Savings & Loan Assn., 56 Cal. App. 3d 286, 293, 128 Cal. Rptr. 338 (1976) (“California courts have rather consistently tended to prefer a construction that is more faithful to the parties’ actual expectations than to the literal wording of the clause.” [Emphasis omitted; internal quotation marks omitted.]); First Security Bank of Utah v. Shiew, 609 P.2d 952, 957 (Utah 1980) (refusing to enforce the literal terms of dragnet clause because “[t]here is not a scintilla of evidence to support the inference the parties intended the second loan to be under the security of the first loan”).

We recognize that our conclusion is a departure from the general rule of contract construction that unambiguous contract provisions are to be given their plain meaning without reference to evidence outside the four corners of the agreement. See Aetna Casualty & Surety Co. v. CNA Ins. Co., 221 Conn. 779, 786, 606 A.2d 990 (1992); F &W Welding Service, Inc. v. ADL Contracting Corporation, 217 Conn. 507, 517, 587 A.2d 92 (1991). Rigid application of that general rule would, however, frustrate the purposes of § 52-572e, which counsels against uncritical enforcement of boilerplate general release language and, therefore, justifies treating such language differently from how we treat other contractual provisions. Accordingly, we hold that, in light of the purposes of § 52-572e, general releases like that executed by Sims are not subject to that traditional rule of contract construction. Cf. State v. Cain, 223 Conn. 731, 738-39, 613 A.2d 804 (1992) (“[w]e conclude . . . that despite the fact that the language of Practice Book ^749 [2], read literally, would cover the tape recording of a 911 telephone call, it is not within the intent of that language to cover such a tape recording and that, therefore, a tape recording of a 911 telephone call is not a ‘statement’ within the meaning of § 749 [2]”).

Finally, the parol evidence rule does not prevent consideration of extrinsic evidence of the parties’ intent in the interpretation of the scope of general releases. The parol evidence rule is a substantive rule of contract law that “prohibits the use of extrinsic evidence to vary or contradict the terms of an integrated written contract.” TIE Communications, Inc. v. Kopp, 218 Conn. 281, 287-88, 589 A.2d 329 (1991); see also General Statutes § 42a-2-202 (Uniform Commercial Code). The parol evidence rule, however, is not absolute, but admits of various exceptions, some of which are based on equitable considerations. For instance, Connecticut allows extrinsic evidence of the parties’ intent to show that a written contract is founded in mistake or fraud. See, e.g., TIE Communications, Inc. v. Kopp, supra, 289; Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 742, 557 A.2d 525 (1989). In addition, other jurisdictions have held that the parol evidence rule does not bar extrinsic evidence of the parties’ intent if it is a stranger to the contract who seeks to prevent the introduction of extrinsic evidence. See, e.g., McInnis v. Harley-Davidson Motor Co., supra, 952; Neves v. Potter, supra, 1054. These courts take an “unsympathetic position toward parties who seek to take gratuitous advantage of an agreement when they are not parties to the agreement.” Neves v. Potter, supra.

General releases like that executed by Sims present a compelling case for creating a limited exception to the parol evidence rule because at least one of the purposes underlying that rule does not apply in the context of such releases. For example, one purpose of the parol evidence rule is “to secure business stability.” J. Calamari & J. Perillo, Contracts (3d Ed. 1987) § 3-2 (b), p. 137. Because the negotiation of a release in settlement of personal injury claims, however, is more akin to a consumer transaction than a commercial transaction, this purpose is not dispositive in this case. Cf. Harlach v. Metropolitan Property & Liability Ins. Co., 221 Conn. 185, 190, 602 A.2d 1007 (1992) (“The contractual nature of insurance and the commercial relationship between insurer and insured are not altered by any peculiarities of uninsured motorist coverage. The relationship between the insured and the insurer clearly is contractual in nature, and we find nothing in [the uninsured motorist statute] that alters the traditionally commercial setting in which insurance policies are purchased.” [Emphasis in original; internal quotation marks omitted.]). We conclude, therefore, that it is appropriate, in the circumstances of this case, to create a limited exception to the parol evidence rule.

In adopting the “intent” approach to interpreting general releases in Connecticut, we are not unaware of the criticism that the application of this rule may deprive the settling tortfeasor of some important protection that, for the settling tortfeasor’s own sake, may have been part of the bargain memorialized by the release. This criticism arises out of the possibility that a settling tortfeasor may be impleaded by a nonsettling joint tortfeasor in a subsequent suit against that joint tortfeasor by the injured party or may be subject to contribution to a joint tortfeasor who makes some payment to the injured party. We are not persuaded by this criticism.

The possibility that a settling tortfeasor may incur further liability to another tortfeasor is not fanciful. Although the common law of this state entirely prohibited contribution among joint tortfeasors; see Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 95, 429 A.2d 808 (1980); Gomeau v. Forrest, 176 Conn. 523, 524, 409 A.2d 1006 (1979); the legislature has enacted statutes allowing a tortfeasor to implead, in certain circumstances, potentially liable joint tortfeasors. See, e.g., General Statutes §§ 52-572o (e) and 52-102a (a); see also Malerba v. Cessna Aircraft Co., 210 Conn. 189, 195-96, 554 A.2d 287 (1989). A settling tortfeasor therefore runs the potential risk of being held liable to a joint tortfeasor if the injured party subsequently elects to pursue a claim against such a joint tortfeasor.

The possibility that a settling tortfeasor may have a personal interest in the execution of a general release is not, however, a persuasive argument against the “intent” rule. In searching for the intent of the parties at the time of the execution of the release, the trier of fact must inquire into the intent of all the participants. The trial will, therefore, afford a full opportunity for evidence to be heard that a general release was precisely what the settling tortfeasor intended. Indeed, in order to meet the burden of proof regarding the scope of the release, the injured party may have to persuade the finder of fact that the settling tortfeasor intended that the release would not discharge any other tortfeasor.

Finally, we note that the potential vulnerability of the settling tortfeasor to a joint tortfeasor in the future is not addressed by either the “specific designation” rule or the “flat bar” rule. Neither of these approaches is premised, in any way, on the settling tortfeasor’s motivation to include general release language in order to avoid liability for contribution to another potentially liable joint tortfeasor.

Accordingly, because it “comports with equity and, therefore, is in harmony with the beneficent purposes of § 52-572e”; Fulmore v. Coleman, 41 Conn. Sup. 353, 355-56, 574 A.2d 1337 (1990); we adopt the “intent” rule as a guide to interpreting general releases like that executed by Sims. The trial court may consider extrinsic evidence of the parties’ intent regarding the scope of the release regardless of whether the court determines that the language of the release is ambiguous.

Ill

The certified questions asked: “1. Whether unspecified tortfeasors are effectively discharged pursuant to preprinted language in a general form release, where said tortfeasors neither participated in negotiations resulting in the release nor contributed to the consideration for which the release was given; 2. Whether the preprinted language in a general form release releasing ‘any and all other persons, firms and corporations’ provides for the discharge of other tortfeasors known to the other releasing party or his representative at the time the release was executed; 3. Whether a release’s preprinted language releasing ‘any and all other persons, firms and corporations’ provides for the discharge of other tortfeasors where the releasing party did not intend to release said tortfeasors and where the release was in a form required and prepared by the insurer of the tortfeasor to be released; and 4. Whether § 52-572e (b) of the Connecticut General Statutes precludes the release of a joint tortfeasor unless that tortfeasor is expressly designated.”

As to the first certified question, the answer is “Yes, unless the parties did not actually so intend.” As to the second certified question, the answer is “Yes, unless the parties did not actually so intend.” As to the third certified question, the answer is “No, if the released tortfeasor did not have a contrary intent.” As to the fourth certified question, the answer is “No.”

No costs will be taxed in this court to either party.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-572e. release op joint tortfeasor. (a) For the purposes of this section the term ‘joint tortfeasors’ means two or more persons jointly or severally liable in tort for the same injury to person or property whether or not a judgment has been recovered against all or any of them.
      “(b) A release by the injured person, or his legal representative, of one joint tortfeasor does not discharge the other tortfeasors unless, and only to the extent, the release so provides.”

       We will herein refer to the defendants collectively as Honda.

       General Statutes § 51-199a provides in relevant part: “uniform certification OF QUESTIONS OF LAW ACT. . . .
      “(b) The supreme court may answer questions of law certified to it by ... a United States district court when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.”

       Practice Book § 4168 provides: “[certified questions from federal COURTS]-IN GENERAL
      “The supreme court may answer questions of law certified to it by the supreme court of the United States, a court of appeals of the United States or a United States district court when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.”

       The District Court certified the following questions of law to this court:
      “1. Whether unspecified tortfeasors are effectively discharged pursuant to preprinted language in a general form release, where said tortfeasors neither participated in negotiations resulting in the release nor contributed to the consideration for which the release was given;
      “2. Whether the preprinted language in a general form release releasing ‘any and all other persons, firms and corporations’ provides for the discharge of other tortfeasors known to the other releasing party or his representative at the time the release was executed;
      “3. Whether a release’s preprinted language releasing ‘any and all other persons, firms and corporations’ provides for the discharge of other tortfeasors where the releasing party did not intend to release said tortfeasors and where the release was in a form required and prepared by the insurer of the tortfeasor to be released; and
      “4. Whether § 52-572e (b) of the Connecticut General Statutes precludes the release of a joint tortfeasor unless that tortfeasor is expressly designated.”

       The release provides in its entirety:
      “RELEASE OF ALL CLAIMS
      FOR AND IN CONSIDERATION OF the payment to me/us of the sum of Fifty Thousand Dollars and xx/100 Dollars ($50,000.00), and other good and valuable consideration, I/we, being of lawful age, have released and discharged, and by these presents do for myself/ourselves, my/our heirs, executors, administrators and assigns, release, acquit and forever discharge Emanuel Byrd, AIU Insurance Company and American International Adjustment Company and any and all other persons, firms and corporations of and from any and all actions, causes of action, claims or demands for damages, costs, loss of services, expenses, compensation, consequential damage or any other thing whatsoever on account of, or in any way growing out of, any and all known and unknown personal injuries and death and property damage resulting or to result from an occurrence or accident that happened on or about the 29th day of May. 1987. at or near Bassett Street. New Haven. Connecticut
      I/we hereby acknowledge and assume all risk, chance or hazard that the said injuries or damage may be or become permanent, progressive, greater, or more extensive than is now known, anticipated or expected. No promise or inducement which is not herein expressed has been made to me/us, and in executing this release I/we do not rely upon any statement or representation made by any person, firm or corporation, hereby released, or any agent, physician, doctor or any other person representing them or any of them, concerning the nature, extent or duration of said damages or losses or the legal liability therefor.
      I/we understand that this settlement is the compromise of a doubtful and disputed claim, and that the payment is not to be construed as an admission of liability on the part of the persons, firms and corporations hereby released by whom liability is expressly denied.

        This release contains the ENTIRE AGREEMENT between the parties hereto, and the terms of this release are contractual and not a mere recital.
      I/we further state that I/we have carefully read the foregoing release and know the contents thereof, and I/we sign the same as my/our own free act.
      WITNESS my hand and seal this 2 day of February. 1988 CAUTION! READ BEFORE SIGNING Is/ Kenneth L. Sims”
      (Those portions of the release that were typewritten on preprinted lines appear herein as underlined. All other portions of the release were preprinted.)
      Two individuals witnessed the agreement.

       Honda has made no claim that Sims’ complaint is barred because his recovery from Byrd and Byrd’s insurers constituted full compensation for his injuries. Cf. Bjork v. Chrysler Corporation, 702 P.2d 146, 156 (Wyo. 1985); W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 49, p. 335 (“Where there has been such full satisfaction ... no claim should remain as to any other tortfeasor; but these are questions of fact, and normally to be determined by the jury, where the amount of the claim is unliquidated.”).

       Section 4 of the Uniform Contribution Among Tortfeasors Act (1955 Rev.) provides in relevant part: “When a release ... is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
      “(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide . . . .”12 U.L.A. 98 (1975).

       The parties agree that Honda is a joint tortfeasor within the meaning of General Statutes § 52-572e.

       Some proponents of the “specific designation” rule assert that that approach properly construes the statutory term “provides” narrowly, in accordance with the prevailing canon of construction that a statute in derogation of the common law be narrowly construed. See, e.g., Bjork v. Chrysler Corporation, 702 P.2d 140, 162 (Wyo. 1985); see generally Union Trust Co. v. Heggelund, 219 Conn. 620, 626, 594 A.2d 464 (1991); but see generally Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., 217 Conn. 361, 364, 585 A.2d 1210 (1991) (statute in derogation of common law is to be liberally construed if its purpose is remedial). If this rule of construction were applicable in this case at all, however, it would seem to support adoption of the “specific designation” rule. The rule of statutory construction that encourages narrow construction of statutes in derogation of the common law generally promotes narrow construction of the statute’s change in the common law. “[N]o statute is to be construed as altering the common law, farther than its words import.” (Internal quotation marks omitted.) Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 137, 479 A.2d 231 (1984). In this case, therefore, that rule of construction would seem to advise against the “specific designation” rule, which moves further from the common law rule than General Statutes § 52-572e necessarily suggests, and in favor of the “flat bar” rule, which allows the common law rule to continue to the extent possible under the statute.

       A “dragnet clause” is “a mortgage provision which purports to make the real estate security for other, usually unspecified debts [and which frequently . . . is included in the printed language of mortgages drafted by the mortgagee.” First Security Bank of Utah v. Shiew, 609 P.2d 952, 954 (Utah 1980). A typical “dragnet clause” provides that the mortgage “ ‘secure[s] the payment of any and all claims or demands . . . which the said mortgagee . . . may have or hold against the mortgagors or either of them ....”’ Id., 953.

       It is appropriate to impose the burden of proof on the injured party seeking to recover from a joint tortfeasor because the injured party, having settled with the first tortfeasor and having executed the release, has relatively better access to evidence of its own intentions and the intentions of the settling tortfeasor. Moreover, our adoption of the “intent” approach to interpreting general releases serves to benefit an injured party who may not have intended to release all the world, notwithstanding the agreement’s unambiguous boilerplate language stating that “any and all persons, firms and corporations” are discharged. This approach thus allows the injured party to introduce extrinsic evidence that varies the release’s language. Given this unusual opportunity to introduce extrinsic evidence, it would be anomalous to assign the burden of proof regarding the parties’ intent to the joint tortfeasor, who would in any case prefer to prohibit the introduction of extrinsic evidence and to rely instead on the unambiguous language of the release. But see Williams v. Physicians & Surgeons Community Hospital, Inc., 249 Ga. 588, 591, 292 S.E.2d 705 (1982).


source: Caselaw Access Project

author: Berdon, J.

license: Public Domain

text:
    Martin Ginsberg et al. v. John Fusaro et al.
    (14471)
    Peters, C. J., Borden, Berdon, Norcott and F. X. Hennessy, Js.
    Argued October 28, 1992
    decision released April 27, 1993

      Daniel E. Ryan III, with whom, on the brief, was Laureen J. Vitale, for the appellant-appellee (named plaintiff).

      Edward V. O’Hanlan, with whom, on the brief, was James A. Wade, for the appellee-appellant (defendant Rita Fusaro).
   Berdon, J.

These appeals arise out of an action brought by the plaintiff dentists, Martin Ginsberg and Robert Miller, seeking to recover from the defendant Rita Fusaro the reasonable value of dental services rendered to her. Although the case started as a collection case, it developed into a dental malpractice case when Fusaro filed a counterclaim alleging that Ginsberg and Miller had been negligent in performing the dental services. The jury found the issues for Fusaro on both the complaint and the counterclaim, and awarded Fusaro $5000 damages against Miller and “zero” damages against Ginsberg. The verdicts were accepted by the court without objection and the jury was dismissed.

Fusaro subsequently filed separate motions to set aside the verdicts against Ginsberg and Miller, or in the alternative, for a new trial. The trial court granted Fusaro’s motion to set aside the verdict against Ginsberg as to liability and damages, but denied the motion to set aside the verdict against Miller. Ginsberg filed an appeal in the Appellate Court upon the granting of Fusaro’s motion to set aside the verdict. Fusaro then filed a cross appeal. While these appeals were pending, Ginsberg filed a motion to correct the jury verdict, which was denied by the trial court. Ginsberg subsequently amended his appeal in order to challenge the denial of his motion to correct.

The jury could reasonably have found the following facts. In 1979, Fusaro’s regular dentist, Miller, extracted from her mouth a decayed tooth that he later replaced with a permanent bridge. Throughout the hour long process of permanently cementing the bridge to her natural teeth, Miller continually admonished Fusaro to keep her mouth open. Miller leaned on her and pulled her lower jaw down with his hand to keep her mouth open. Miller also improperly ground down her teeth in order to adjust her bite—that is, the angle and manner in which the upper and lower teeth meet. During the six weeks after the bridge was installed, Fusaro called Miller several times because she had been experiencing great pain, but was told that her symptoms were not out of the ordinary and would abate in time.

After the six week period, Miller referred Fusaro to his partner, Ginsberg, who specialized in a disorder of the temporomandibular joint commonly referred to as “TMJ.” The temporomandibular joint is the juncture where the jaw joins the skull. According to Fusaro, Ginsberg diagnosed her condition as TMJ. Ginsberg treated Fusaro by prescribing pain medication and preparing a splint for her to wear on her teeth. The splint, however, was not delivered to her for another six weeks. Shortly afterward, Fusaro discontinued treatment with Ginsberg.

At trial, Fusaro presented two dentists as expert witnesses, Brendan Stack and Barry Rudolph, both of whom had treated her for TMJ. Both experts testified that Miller’s rough treatment of Fusaro and negligent adjustment of the bite had caused her to develop TMJ. They also opined that Miller was negligent in having failed to refer Fusaro to a TMJ specialist for immediate treatment, and that the delay diminished her chances of recovering from TMJ and resulted in permanent injury. Miller denied that there were any problems relating to the fixation of the bridge or that he was negligent in the adjustment of Fusaro’s bite.

Stack and Rudolph also testified that Ginsberg was negligent by allowing an additional six week delay before applying the splint, further diminishing her chances for full recovery from TMJ. Ginsberg denied that Fusaro had TMJ or that he was negligent. He testified that when he examined and treated Fusaro, she had been suffering from myofacial pain dysfunction, which is a muscle inflammation and spasm.

I

The Verdict Against Ginsberg

On appeal, the parties raise three issues involving the verdict against Ginsberg. First, Ginsberg claims that the trial court should not have set aside the verdict on the counterclaim, which found the issues in favor of Fusaro, but awarded zero damages. Alternatively, Ginsberg claims that the verdict should have been corrected. Finally, Fusaro claims that the verdict against Ginsberg should have been set aside as to damages only, but not as to liability.

The following verdict form was submitted to and completed by the jury on Fusaro’s counterclaim for damages resulting from Ginsberg’s alleged malpractice:

“In this case, the jury finds the issues for the defendant, Rita Fusaro and against the plaintiff Martin Ginsberg, in accordance with the following calculation:
“1. Fair, just and reasonable compensation for the defendant’s injuries, if any: 0 dollars;
“2. The amount, if any, that #1 should be reduced by reason of defendant, Rita Fusaro’s failure to minimize damages: 0 dollars.
“Subtract #2, if any from #1, if any: Verdict 0 dollar damages.”

This verdict form was signed by the foreperson of the jury, accepted in open court after two readings and recorded by the trial court.

Ruling on Fusaro’s motion to set aside the verdict against Ginsberg, the trial court concluded, in light of its instructions, that the verdict finding the issues of negligence, causation and damages in favor of Fusaro, but awarding zero damages, was inconsistent. We agree with the trial court’s ruling.

We have often held that “[t]he decision to set aside the verdict entails the exercise of a broad legal discretion that, in the absence of clear abuse, we shall not disturb. O’Brien v. Seyer, [183 Conn. 199, 208, 439 A.2d 292 (1981)].” Palomba v. Gray, 208 Conn. 21, 24, 543 A.2d 1331 (1988); American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 607 A.2d 418 (1992); State v. Hammond, 221 Conn. 264, 270, 604 A.2d 793 (1992). In our review of the exercise of this discretion, we accord great weight to the trial court’s decision; Labatt v. Grunewald, 182 Conn. 236, 240-41, 438 A.2d 85 (1980); so long as the trial court’s exercise of its discretion does not infringe on the constitutional rights of the litigants to have issues of fact determined by a jury. Seals v. Hickey, 186 Conn. 337, 350, 441 A.2d 604 (1982). This right is an “obviously immovable limitation on the legal discretion of the court to set aside a verdict . . . .” Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970).

The trial court’s exercise of its discretion in this case finds support in Malmherg v. Lopez, 208 Conn. 675, 681, 546 A.2d 264 (1988), in which we held that a verdict finding the issues for the party seeking to recover damages but awarding zero damages was inherently ambiguous. In the present case, the trial court instructed the jury that a finding for Fusaro on the issue of liability included the issues of negligence, causation and damages. Under these circumstances, we can only speculate as to why the jury failed to award damages in her favor; therefore, the jury’s verdict creates an ambiguity.

Ginsberg argues that Fusaro should be estopped from claiming that the verdict should be set aside as inconsistent because she failed to assert that claim before the verdict was accepted and recorded and the jury dismissed. Although it is clear that the trial judge has the authority to return the jury for reconsideration of the verdict under General Statutes § 52-223, we have never held that a party is obliged to request reconsideration as a prerequisite to challenging the validity of the verdict on a motion to set aside the verdict. Nor is such a condition precedent set forth in the rules of court or the statutes, which allow either party to move, within certain time limitations, to set aside the verdict. The power to return the jury to reconsider its verdict a second and a third time must be left to the discretion of the trial court. Szlinsky v. Denhup, 156 Conn. 159, 165, 239 A.2d 505 (1968). Indeed, we have made it clear that the trial court has the inherent power to set aside the verdict even when no motion by either party is made. Belchak v. New York, N.H. & H. R. Co., 119 Conn. 630, 637, 179 A. 95 (1935). Accordingly, we reject Ginsberg’s claim.

Several months after the trial court set aside the verdict against Ginsberg, and while these appeals were pending, Ginsberg sought to have the trial court vacate its order setting aside the verdict and correct the original jury verdict. Ginsberg claimed that the jury was unanimous in its decision to render a verdict in favor of Fusaro and against Miller and Ginsberg for a total of $5000, but made an error in filling out the verdict form. Ginsberg predicated this claim on identical typewritten sworn affidavits from the jurors that had been solicited by Ginsberg and that stated in relevant part: “After deliberation with the other jurors . . . it was my decision and the unanimous decision of the jury, that Rita Fusaro had proved that fair, just and reasonable compensation for the damages she had incurred as a result of her treatment from Dr. Robert Miller and Dr. Martin Ginsberg, was the amount of $5,000. The amount of $5,000 represents the total amount of damages that I and the other jurors decided by unanimous decision was fair, just and reasonable compensation for all damages to Rita Fusaro which were proximately caused by either Dr. Robert Miller or Dr. Martin Ginsberg. Although Rita Fusaro incurred expenses and suffered damages in an amount exceeding $5,000,1 and the other jurors decided by unanimous decision that Rita Fusaro had not proved [that] damages beyond $5,000 were proximately caused by either Dr. Robert Miller or Dr. Martin Ginsberg.” The trial court denied Ginsberg’s motion to correct the verdict, noting that even if the affidavits could be considered, the jurors’ intentions were still ambiguous. The “$5,000 could be $5,000 against Dr. Miller and nothing against Dr. Ginsberg, which is exactly the verdict disapproved by this court.... We simply do not know.”

On appeal, Ginsberg argues for the first time that the jury made a clerical error by failing to complete the verdict form in favor of him on the counterclaim. He argues: “Given that $5,000 was awarded [Fusaro] as against . . . Miller, an award of zero damages against . . . Ginsberg is a clear finding that [Fusaro] failed to prove any other damages proximately caused by Dr. Ginsberg. Such a finding, demonstrated by the affidavits and consistent with the evidence presented at trial, fully explains any perceived ambiguity or inconsistency in the verdict. In this circumstance, as a matter of law the jury’s verdict should have been a verdict in favor of Ginsberg, since the jury found, as instructed, that [Fusaro] should not prevail since no injuries were proved to have been proximately caused by [Dr. Ginsberg]. The jury’s failure to use the appropriate form to announce such a verdict, is simply due to a clerical error of a formal nature, which should be corrected to reflect the jury’s true intent and prevent an injustice.”

This claim is untenable. Even if we were to consider the affidavits of the jurors, which we are not inclined to do, they fly in the face of the claim. According to the affidavits, the jurors intended to find liability on the counterclaim against both Ginsberg and Miller and award damages of $5000 on a joint and several basis. A judgment of $5000 against only one dentist does not satisfy that intention.

Since this is not a case of mere clerical error whereby the jury completed the wrong verdict form, it is clear that the verdict could be corrected in this case only on the basis of the trial court examining the jurors’ mental processes in rendering the verdict. We have made it clear that the rule that prohibits the examination of the jurors’ mental process “excludes, as immaterial, evidence as to the expressions and arguments of the jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations generally, in arriving at their verdict. McCormick, Evidence (2d Ed.) § 68, p. 148.” (Internal quotation marks omitted.) Aillon v. State, 168 Conn. 541, 550, 363 A.2d 49 (1975); see also 1 C. McCormick, Evidence (4th Ed.) § 68, p. 260.

Finally, Fusaro claims that the verdict should have been set aside as to damages only and that therefore the trial court should have ordered a hearing in damages. We disagree. Malmberg v. Lopez, supra, 681-82, held that “[a]n explicitly stated award of zero damages differs from an award of nominal damages. A plaintiffs verdict with a nominal damage award ordinarily suggests that the jury found that despite the defendant’s liability, the plaintiff failed to prove damages. . . . The jury’s intent in rendering a plaintiff’s verdict with zero damages . . . is far less clear.” (Citations omitted; emphasis in original.) Accordingly, we affirm the trial court’s decision to set aside the verdict against Ginsberg as to both liability and damages.

II

The Verdict Against Miller

Fusaro claims that the trial court should have set aside the verdict of $5000 against Miller or ordered an additur because the verdict was inadequate. Although the $5000 verdict is arguably inadequate as a matter of law when compared to Fusaro’s claims that, as a result of Miller’s negligence, she incurred medical expenses of $56,859.74, experienced great pain and suffering, and sustained a permanent injury, her claims for an additur cannot be sustained.

The trial court’s refusal to set aside the verdict or to order an additur “is entitled to great weight and every reasonable presumption should be given in favor of its correctness.” Kalleher v. Orr, 183 Conn. 125, 127, 438 A.2d 843 (1981). “In reviewing the action of the trial court in denying the motions for additur and to set aside the verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict they did. Rood v. Russo, 161 Conn. 1, 3, 283 A.2d 220 (1971).” Fabrizio v. Smith, 164 Conn. 385, 386, 321 A.2d 467 (1973). The trial court’s decision is significant because “the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. . . . Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury. . . . The focus of our inquiry is the action of the trial court in setting aside the verdict.” (Citations omitted.) Palomba v. Gray, supra, 24-25. Our task is to determine whether the “total damages awarded falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case . . . .” Briggs v. Becker, 101 Conn. 62, 66-67, 124 A. 826 (1924); Nichols v. Coppola Motors, Inc., 178 Conn. 335, 349, 422 A.2d 260 (1979).

In the present case, the trial court denied the motion to set aside the verdict without a memorandum of decision. Fusaro never requested an articulation. Accordingly, we do not have the benefit of the basis for the trial court’s denial. It is clear that “[wjhere the factual basis of the court’s decision is unclear, proper utilization of the motion for articulation serves to dispel any such ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. It remains the appellant’s responsibility to secure an adequate appellate record, and under normal circumstances we will not remand a case to correct a deficiency the appellant should have remedied.” (Internal quotation marks omitted.) Berlin v. Commissioner of Revenue Services, 207 Conn. 289, 295, 540 A.2d 1051 (1988). Moreover, it should be noted that the issue of whether Fusaro’s damages were causally related to the negligence of Miller or were incurred for the cosmetic purpose of correcting Fusaro’s preexisting overbite was hotly contested. On the basis of the scant record before us, and the dispute as to whether the damages were causally related to the TMJ, we summarily affirm the trial court’s refusal to order an additur and its denial of the motion to set aside the verdict against Miller.

In sum, we affirm the trial court’s decision granting Fusaro’s motion to set aside the verdict against Ginsberg as to both liability and damages, the denial of Ginsberg’s motion to correct the verdict against him, and the denial of Fusaro’s motion to set aside the verdict against Miller.

The decision of the trial court is affirmed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       John Fusaro was also named as a defendant in the plaintiffs’ complaint. The jury returned a verdict in favor of John and Rita Fusaro on the complaint; however, that verdict is not at issue in this appeal.

       We transferred the appeals to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       After discontinuing treatment with Ginsberg, Fusaro consulted Brendan Stack, a TMJ specialist. She then consulted other specialists and underwent numerous surgical procedures to correct the problem. Stack testified at trial that Fusaro’s decision to undergo surgery was appropriate, but he also suggested that the treatment was at least in part cosmetic to correct her preexisting overbite.

       The jury completed all blank portions of the verdict form by inserting zeros. Thus, they completed the verdict form to allow (1) zero as the fair, just and reasonable compensation for the defendant’s injuries, (2) zero as Fusaro’s failure to minimize damages, and (3) zero as the final verdict.

       In its memorandum of decision, the trial court stated the following: “The Court agrees that the verdict form, as amended by counsel, is perhaps not a model of clarity. The Court further agrees with counsel that the ‘issues’ referred to in that verdict form and as defined by the Court in its charge to the jury, included issues of negligence, causation and damages. The jury would seem to have found those ‘issues’ for the defendant when it rendered a defendant’s verdict on the counterclaim verdict form. Having found negligence, proximate cause, and damages, the jury in then awarding zero damages entered a verdict that this court concludes must be set aside.”
      The court instructed the jury as follows: ‘ ‘To prevail on her counterclaim, Mrs. Fusaro must prove by a fair preponderance of the evidence . . . whether direct or circumstantial, that either or both of the dentists were negligent and that that negligence was the proximate cause of her injury, uninterrupted by any intervening cause. That sums up liability.”

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

       Practice Book § 326 provides in part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.”

       General Statutes § 52-225 provides: “The court shall render judgment on all verdicts of the jury, according to their finding, with costs, unless the verdict is set aside; and in all cases where judgment is rendered otherwise than on a verdict, in favor of the plaintiff, the court shall assess the damages which he shall recover.”

       See Josephson v. Meyers, 180 Conn. 302, 310-11, 429 A.2d 877 (1980) (an “ ‘affidavit to avoid the verdict may not be received to show any matter which does essentially inhere in the verdict itself, as that the juror did not assent to the verdict; that he misunderstood the instruction of the court; the statements of the witnesses or the pleadings in the case; that he was unduly influenced by the statements or otherwise of his fellow jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror’s breast’ ”) (emphasis in original); see also id., 310-12, for subsequent discussion relative to Aillon v. State, 168 Conn. 541, 363 A.2d 49 (1975).

       “[T]he various policies behind the rule were to give stability to the verdicts of jurors, to minimize the temptation for jury-tampering, and to prevent inquisition into the arguments and reasoning of the jurors that go into their ultimate verdict.” Aillon v. State, 168 Conn. 541, 550, 363 A.2d 49 (1975); State v. Freeman, 5 Conn. 348, 351-52 (1824).

       “Accordingly, it is today universally agreed that on a motion to set aside a verdict and grant a new trial the verdict cannot be affected, either favorably or unfavorably, by the circumstances; that one or more jurors misunderstood the judge’s instruction; or were influenced by an illegal paper or by an improper remark of a fellow juror; or assented because of weariness or illness or importunities; or assented under an erroneous belief that the judge would use clemency or have the legal right to vary the sentence; or had been influenced by inadmissible evidence; or had decided upon grounds which rendered newly discovered evidence immaterial; or had omitted to consider important evidence or issues; or had miscalculated accounts by errors of fact or of law; or had by any other motive or belief been led to their decision. (Emphasis omitted.) 8 Wigmore (McNaughton Rev.), Evidence § 2349, and cases cited therein.” (Internal quotation marks omitted.) Aillon v. State, 168 Conn. 541, 550 n.3, 363 A.2d 49 (1975).

       See footnote 3.


author: Callahan, J.

text:
    Leo Fedus and Sons Construction Company, Inc., et al. v. Zoning Board of Appeals of the Town and Borough of Colchester et al.
    (14547)
    Peters, C. J., Callahan, Berdon, Katz and F. X. Hennessy, Js.

      Argued December 1, 1992
    decision released April 27, 1993

      Charles L. Howard, with whom was Gregory T. D’Auria, for the appellants (defendants).

      David F. Sherwood, for the appellees (plaintiffs).
   Callahan, J.

The dispositive issue in this appeal is whether the plaintiffs, Leo Fedus and Sons Construction Company, Inc., et al., were entitled to the automatic approval of their site plan application to permit the construction of an asphalt plant in Colchester because the Colchester zoning board of appeals, believing that it did not have jurisdiction over their appeal, did not hold a public hearing within the time limits set forth in General Statutes § 8-7d (a). The defendants, the zoning board of appeals for the town and borough of Colchester (board) and Robert Bourassa, its chairperson, appealed to the Appellate Court from the judgment of the trial court granting the plaintiffs a writ of mandamus ordering the board to issue a certificate approving the plaintiffs’ site plan application for the construction of an asphalt plant on their property. The Appellate Court affirmed the trial court’s judgment. Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 27 Conn. App. 412, 606 A.2d 725 (1992). We granted the defendants’ petition for certification to appeal. We now reverse the judgment of the Appellate Court.

The relevant facts upon which the Appellate Court relied are set forth in its opinion. “On August 3,1988, at a regular meeting of the Colchester planning and zoning commission (commission), the commission interpreted the town’s zoning regulations to allow an asphalt plant as a permitted use on the land involved under § 12.2-12 of the Colchester zoning regulations. On June 5,1989, the plaintiffs submitted an application to the commission for a Class 2 site plan approval for the construction of an asphalt plant on their property. On August 2,1989, the commission held a public hearing on the application. On August 10, 1989, the commission denied the application. Although not stipulated to by the parties, the record reveals that the reasons for the denial were (1) the plaintiffs’ failure to comply with a regulation requiring department of environmental protection approval prior to submitting the plan, and (2) their failure to present sufficient information about traffic volume and controls, the protection of groundwater, and the protection of neighboring property values.

“On September 1,1989, the plaintiffs filed an application with the board, appealing from the denial of its site plan application by the commission. Shortly after the appeal was filed with the board, the commission determined at its meeting on September 6,1989, that asphalt plants ‘were no longer allowed in Colchester.’ No notice of the commission’s intention to reconsider its prior interpretation of the regulations, namely, that such plants were a permitted industrial use, was given to either the plaintiffs or the public prior to the meeting, nor was its outcome promulgated by publication. The reinterpretation occurred more than one year after the commission had originally determined that an asphalt plant was a permitted use in an industrial zone.

“On October 24, 1989, the board notified the plaintiffs that a public hearing would be held on the appeal application on November 9,1989, and duly advertised the public hearing in a local newspaper. On November 3, 1989, the board notified the plaintiffs that the public hearing had been canceled. Although not stipulated to by the parties, the letter sent by the board to the plaintiffs and contained in the record stated that the board felt that the commission’s action of September 6, 1989, had left it with no jurisdiction to act on the appeal. The board did not hold a public hearing on the plaintiffs’ application, nor did it render a decision on that application. The plaintiffs sought a writ of mandamus to compel the board to issue a certificate approving their site plan application and be ordered to sustain the appeal filed with it by the plaintiffs. The trial court granted the plaintiffs the relief requested.” Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, supra, 413-15.

The first certified question is: “Does the ‘automatic approval’ doctrine applicable to a zoning commission that fails to issue timely decisions on site plan or subdivision applications under General Statutes §§ 8-3 (g) and 8-26, also apply to a zoning board of appeals that fails to hold a hearing on an appeal under General Statutes § 8-7d (a)?” Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 222 Conn. 911, 608 A.2d 694 (1992). We conclude that it does not.

General Statutes § 8-7d (a) provides: “Except as provided in subsection (b) of this section, in all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals under this chapter and a hearing is required on such petition, application, request or appeal, such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. The petitioner or applicant may consent to one or more extensions of any period specified in this subsection, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection, or may withdraw such petition, application, request or appeal.”

It is undisputed that the board did not hold a hearing on the plaintiffs’ appeal within sixty-five days after its receipt of their application. It is also undisputed that the board, believing that it had no jurisdiction to hear the plaintiffs’ appeal because of the zoning commission’s action, canceled the public hearing on the appeal by letter within sixty-five days of the receipt of the plaintiffs’ application and never rescheduled it.

The Appellate Court agreed with the trial court that the time requirements of § 8-7d (a) could be satisfied only by the commencement of a public hearing within sixty-five days after the receipt by the board of the plaintiffs’ appeal and that the failure of the defendant board to hold such a hearing resulted in the automatic approval of the plaintiffs’ site plan application, approval of which had been denied by the zoning commission. The Appellate Court, relying principally on Vartuli v. Sotire, 192 Conn. 353, 363-64, 472 A.2d 336 (1984), and Carr v. Woolwich 7 Conn. App. 684, 695, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986), concluded that the language in § 8-7d (a) is mandatory rather than directory, and ordained that automatic approval of the plaintiffs’ site plan application must follow from the failure of the board to hold a timely hearing. Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, supra, 27 Conn. App. 420.

In Vartuli v. Sotire, supra, a coastal site plan review was required under General Statutes § 22a-109. Section 22a-109 (g) provided: “The coastal site plan review required under this section shall be subject to the same statutory requirements as subsections (a) and (b) of section 8-7d for the purposes of determining the time limitations on the zoning commission in reaching a final decision.” Section 8-7d (b), the applicable section in Vartuli, provided: “[A] decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such plan.” We determined that § 8-7d (b) was “further implemented by General Statutes § 8-3 (g), under which ‘[ajpproval of a site plan [by a zoning commission] shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d. . . .’ ” Id., 358-59. We concluded: “Reading the three sections together compels the conclusion that . . . the legislature has expressly made approval of a coastal development plan mandatory upon failure to disapprove an application within the specified time period.” Id., 362. We also noted in Vartuli that § 8-7d (b) requires an applicant’s consent for an extension of the statutory time period, thus leading to an inference that the time limits contained in § 8-7d (b) are mandatory. Id., 363-64.

Section 8-7d (a) contains similar consent language. The consent language in § 8-7d (a), the Appellate Court determined, required an inference that the time limits of § 8-7d (a) are mandatory in this case. It consequently concluded that the board’s failure to comply with those time limits resulted in the automatic approval of the plaintiffs’ application. Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, supra, 27 Conn. App. 420.

The defendants contend that the statutes and cases relied on by the Appellate Court relate only to commissions and do not mandate that the automatic approval doctrine apply to the Colchester zoning board of appeals as a consequence of its cancellation of the public hearing on the plaintiffs’ appeal. They argue that because neither § 8-7d (a), nor § 8-7, the statute governing zoning appeals, contains provisions expressly requiring that the inaction of a zoning board of appeals result in the automatic approval of an application, we should not interpret § 8-7d (a) to require that the Colchester board’s cancellation of the plaintiffs’ hearing result in the automatic approval of the plaintiffs’ application. The defendants assert that it is not the role of the judiciary to supply omissions in the statutes and that, if the legislature had intended that the failure of a zoning board of appeals to hold a hearing within sixty-five days was to effect the automatic approval of an application, it would simply have said so in § 8-7 as it has in §§ 8-3 (g) and 8-26 regarding zoning and planning commissions respectively.

Section 8-3 (g), which specifically applies to zoning commissions, provides in pertinent part: “Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d.” Section 8-26, which applies to planning commissions, provides in pertinent part that the failure of a commission to act on a subdivision application within the time limits prescribed in § 8-26d “shall be considered as an approval.” Section 8-7d (a), however, contains no provision expressly mandating automatic approval of a site plan application that is the subject of an appeal, nor does § 8-7, which incorporates the time limits of § 8-7d, contain any such provision.

In Donohue v. Zoning Board of Appeals, 155 Conn. 550, 235 A.2d 643 (1967), we held that a decision by a zoning board of appeals that had been rendered beyond the applicable time period, did not result in the automatic approval of the appellant’s application. Donohue, however, construed § 8-7 prior to its amendment in 1977, an amendment that incorporated the time limits of § 8-7d into § 8-7. Prior to 1977, § 8-7 provided in pertinent part that “[s]aid board shall decide such appeal within sixty days after the hearing.” General Statutes (Rev. to 1966) § 8-7. We concluded, in Donohue, that § 8-7 related to procedure and was directory and not mandatory. We noted, in support of our conclusion, that the “statute contains nothing which expressly invalidates a belated decision or which inferentially makes compliance therewith a condition precedent.” Donohue v. Zoning Board of Appeals, supra, 554; see also Morningside Assn. v. Planning & Zoning Board, 162 Conn. 154, 157, 292 A.2d 893 (1972).

The first certified question requires us to revisit Donohue to determine whether the automatic approval doctrine applies to a zoning board of appeals for its failure to hold a public hearing in view of the present statutory scheme of § 8-7d (a) that includes language of consent and prescribes time limits, and is now contained in § 8-7d (a) and incorporated in the present § 8-7. To resolve this difficult question, we must reconcile two conflicting lines of reasoning. On the one hand, we held, in Vartuli, that the failure of a zoning commission to act within the time constraints of § 8-7d (b) resulted in the automatic approval of an application for a coastal management act site plan by a zoning commission, principally because of the mandatory language in § 8-26, but in part also because § 8-7d (b) contained language requiring the applicant’s consent for an extension of the statutory time period. We reasoned in that case that the language requiring the applicant’s consent to an extension of time permitted the inference that the time constraints in the statute were mandatory. Section 8-7d (a) contains similar language requiring an applicant’s consent for an extension of the time limits contained in the statute, suggesting that the time limits in § 8-7d (a) are mandatory and that the board’s failure to comply with them resulted in the automatic approval of the plaintiff’s application.

On the other hand, applicable tenets of statutory construction counsel us to ascribe significance to the absence, in § 8-7d (a), of the explicit provisions for automatic approval found in §§ 8-3 (g) and 8-26. It is a principle of statutory construction that a court must construe a statute as written. Zachs v. Groppo, 207 Conn. 683, 690, 542 A.2d 1145 (1988); Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987). “Courts may not by construction supply omissions . . . or add exceptions merely because it appears that good reasons exist for adding them.” (Internal quotation marks omitted.) State ex rel. Kennedy v. Frauwirth, 167 Conn. 165, 168, 355 A.2d 39 (1974); see also State v. Bunkley, 202 Conn. 629, 640, 522 A.2d 795 (1987); State v. One 1977 Buick Automobile, 196 Conn. 471, 485, 493 A.2d 874 (1985). “The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say.” Burnham v. Administrator, 184 Conn. 317, 325, 439 A.2d 1008 (1981). “ Tt is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature.’ Duart v. Axton-Cross Co., 19 Conn. Sup. 188, 190, 110 A.2d 647 (1954).” State v. Perruccio, 192 Conn. 154, 163 n.4, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984). It is also a tenet of statutory construction that the legislature is presumed to be aware of existing statutes. Plourde v. Liburdi, 207 Conn. 412, 416-17, 540 A.2d 1054 (1988); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.12. Because §§ 8-3 (g) and 8-26 expressly provide for the automatic approval of applications when a zoning commission or planning commission do not act within prescribed time periods, it can be inferred that had the legislature intended that the failure of a zoning board of appeals to hold a hearing within sixty-five days results in automatic approval, the legislature would have so provided. Plourde v. Liburdi, supra, 417. Moreover, if a mandate for automatic approval is to be inferred from the consent language in § 8-7d (a), that construction would render the specific automatic approval language in §§ 8-3 (g) and 8-26 “mere surplusage and such an interpretation has been proscribed by this court.” Morgan v. East Haven, 208 Conn. 576, 583 n.9, 546 A.2d 243 (1988).

Our most recent case addressing the application of the automatic approval doctrine to zoning boards of appeals appears to have resolved the tension that exists between the consent language of § 8-7d and the rules of statutory construction. In Koepke v. Zoning Board of Appeals, 223 Conn. 171, 177, 610 A.2d 1301 (1992), we determined that because the Coventry zoning board of appeals had failed to publish adequate notice of a hearing, the hearing and subsequent revocation of the plaintiff’s permit were invalid. We then addressed “the consequences that flow from a zoning board’s invalid hearing and subsequent ruling on an appeal from a decision of a zoning enforcement officer.” Id. On that issue we stated: “While the board’s failure to give proper notice of its public hearing nullified its subsequent actions, that default had no further automatic consequences. Even if a failure to give proper notice were deemed the equivalent of a failure to take timely action within the time constraints of § 8-7, that statute, contrary to General Statutes §§ 8-3 (g) or 8-26, does not make inaction tantamount to approval either of the challenged zoning permit or of the challenged appeal. ‘The statute contains nothing which expressly invalidates a belated decision or which inferentially makes compliance [with time constraints for board decisions] a condition precedent.’ Donohue v. Zoning Board of Appeals, supra, 554.” (Emphasis added.) Id., 178-79.

To paraphrase the conclusions of the court in Keopke, it would be inappropriate to permit the plaintiffs in the present case to obtain their site plan approval solely because of the board’s impression, even if mistaken, that it did not have jurisdiction to hear the plaintiffs’ appeal. The plaintiffs were initially denied site plan approval by the zoning commission because of safety and environmental concerns. Without a clear statutory mandate to do otherwise, those concerns should be addressed rather than automatically ignored. “The rationality of land use planning procedures is strengthened by the disposition of zoning appeals on their merits. Caserta v. Zoning Board of Appeals, [219 Conn. 352, 362, 593 A.2d 118 (1991)].” Id., 179-80.

The plaintiffs argue that the language in Koepke that militates against their position is dictum. Moreover, they assert that Koepke was based on Donohue v. Zoning Board of Appeals, supra, a decision that is no longer applicable to the issue of automatic approval because Donohue was decided prior to 1977, before § 8-7 was amended. The amendment to § 8-7 now links the disposition of matters before the zoning board of appeals directly to the time periods set forth in § 8-7d. This statutory change, the plaintiffs assert, makes Koepke’s reliance on Donohue misplaced, thus rendering Koepke ’s dictum an inaccurate statement of the current law because, prior to 1977, § 8-7 did not contain the language now present in § 8-7d (a) requiring the applicants’ consent for the extension of the prescribed time limits. We disagree.

Although the factual predicate in Koepke was inadequate notice of a public hearing, Koepke directly confronted the issue of the failure of the board to take timely action within the time constraints of § 8-7d. Keopke v. Zoning Board of Appeals, supra, 178-79. Furthermore, a resolution of that issue was necessary to our decision in Koepke because we declared the hearing “void,” a declaration that equated the hearing in Koepke with no hearing at all having been held, the exact situation in this case on appeal. Moreover, to the extent that Donohue is cited for the proposition that automatic approval is not expressed in, or to be inferred from, the present statutory scheme embodied in §§ 8-7 and 8-7d as it relates to zoning boards of appeals, reliance on Donohue is not misplaced.

The plaintiffs also argue, citing Vartuli v. Sotire, supra, 362, and Carr v. Woolwich, supra, 691-92, that if this court does not apply the automatic approval doctrine, an inconsistent body of law will be created because, in all other instances of land use decision-making, the automatic approval doctrine applies because of either §§ 8-3 (g) or 8-26. Moreover, the plaintiffs contend that the legislature clearly intended that the time limits applicable to all land use agencies be uniform. We noted in Vartuli, however, that “[t]he issue of continued appellate jurisdiction is of course not identical with the issue of timely response to initial land use applications.” Vartuli v. Sotire, supra, 361. Zoning boards of appeals do not perform the same functions as zoning commissions. Zoning boards of appeals do not adjudicate initial land use applications, but review those already acted upon by a municipality’s zoning commission or enforcement officer. The defendant board in this case, after duly advertising the public hearing in a local newspaper, notified the plaintiffs by letter that the public hearing originally scheduled was canceled. The board canceled the hearing because it believed, apparently in good faith and relying on the advice of counsel, that the commission’s action of reinterpreting its regulations regarding asphalt plants had left the board with no jurisdiction to act on the plaintiffs’ site plan application, and no choice but to cancel the hearing. The board’s appellate function is not advanced by the substitution of an automatic approval for a decision of an appeal on its merits. Koepke v. Zoning Board of Appeals, supra, 179.

Consistent with our opinion in Koepke, therefore, we conclude that a zoning board of appeals is not subject to the automatic approval doctrine because it fails to hold a public hearing within the time limits contained in § 8-7d (a). It is unnecessary, therefore, to address in depth the second certified question concerning whether the “automatic approval” doctrine applies when a zoning board of appeals timely issues a decision that it would not hold a hearing because it believed It lacked jurisdiction to do so. We answer both certified questions in the negative.

The judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to remand the case to the trial court with direction to remand the plaintiffs’ appeal to the defendant board in order to allow the board to conduct a hearing on the merits of the plaintiffs’ application.

In this opinion Peters, C. J., Katz and F. X. Hennessy, Js., concurred.

Berdon, J., concurring. I concur in the result.

       Michael T. Fedus, Theodore L. Fedus, and Leo Fedus and Sons Construction Company, Inc., are the plaintiffs. Michael and Theodore Fedus own the subject real estate and lease it to the construction company.

       This court granted the defendants’ petition for certification to appeal from the decision of the Appellate Court limited to the following issues:
      “1. Does the ‘automatic approval’ doctrine, applicable to a zoning commission that fails to issue timely decisions on site plan or subdivision applications under General Statutes §§ 8-3 (g) and 8-26, also apply to a zoning board of appeals that fails to hold a hearing on an appeal under General Statutes § 8-7d (a)?
      “2. Does the ‘automatic approval’ doctrine apply when the zoning board of appeals timely issues a decision that it would not hold a hearing because it believed it lacked jurisdiction?” Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 222 Conn. 911, 911-12, 608 A.2d 694 (1992).

       General Statutes § 8-26 applies to planning commissions rather than zoning commissions.

       General Statutes § 8-7d (a) expressly provides that in order to invoke the time constraints in that subsection, it must first be determined whether a “hearing is required on such petition, application, request or appeal. . . .” The parties dispute whether a hearing was in fact required to be held by the board on the plaintiffs’ appeal.
      Section 17.1 of the Colchester zoning regulations, however, provides that “[a]ny person may appeal to the Zoning Board of Appeals when it is alleged that there is an error in any order, requirement, or decision made by the Commission or the Zoning Enforcement Officer related to the enforcement of these Regulations.” General Statutes § 8-6 also states that one of the duties of a zoning board of appeals is that it shall “hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter . . . .” The defendants contend that nowhere in § 17.1 or General Statutes § 8-6 is it stated that the board must hold a hearing when a party has alleged an error in a decision made by the zoning commission. The contention that neither provision requires a public hearing would render these provisions empty shells. These provisions clearly require that a right to an appeal embraces a right to a meaningful appeal in which a public hearing is held. Such a public hearing was required under the facts of this case.

       Although the Appellate Court in Carr v. Woolwich, 7 Conn. App. 684, 695, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986), concluded that General Statutes § 8-7d (a) did not apply to the facts of that case, and its conclusion was therefore dicta, it stated that § 8-7d (a), like § 8-7d (b), mandates the automatic approval of an application by a zoning commission that failed to act in a timely manner.

       Senator Louis Cutillo remarked: “Mr. President, the bill imposes . . . uniform time periods for commencing hearings, completing hearings and rendering decisions for specified zoning petitions. Applications, requests or appeals before a zoning commission. The combined planning and zoning commission or a zoning board of appeals. It imposes uniform time periods for commencing hearings, completing hearings and rendering decisions in all matters when a formal application request or appeal is submitted to a planning commission. It requires the decision on an application for approval or a site plan be rendered within 65 days after date of receipt of the site plan and permit the extension of such time period for an additional 130 days but only with the consent of the applicant.” 20 S. Proc., Pt. 8, 1977 Sess., pp. 2999-3000.
      Representative Janet Polinsky stated: “Simply stated, this bill proposes that all public hearings must be held within 35-65 days of official receipt of a request for such hearing; further, that the public hearing shall be completed within thirty days after it begins and this thirty day period would, of course, only apply in those very few cases where the subject matter is so controversial as to cause the hearing to be conducted over several sessions. And lastly, that the decision must be rendered within 65 days after the public hearing is completed.
      “This bill would also permit extensions of each of the uniform time periods specified but only where the applicant consents to such extension and in no event could an extension exceed twice the time period specified.” 20 H.R. Proc., Pt. 6, 1977 Sess., pp. 2513-14.

        Vartuli v. Sotire, 192 Conn. 353, 472 A.2d 336 (1984), is restricted to its facts, i.e., a site plan application to a zoning commission. Both Vartuli and Carr v. Woolwich, 7 Conn. App. 684, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986), to the extent that they are inconsistent with this opinion only, are overruled.

       The board’s refusal to hold a hearing could have been addressed by the plaintiffs’ petition to the trial court for a writ of mandamus or a mandatory injunction compelling the defendant board to hear and decide their appeal. See Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 480-82, 447 A.2d 1 (1982).

       Although not an issue in either of the certified questions before us, we note that the Appellate Court did determine that the board had jurisdiction to hear the plaintiffs’ appeal. Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 27 Conn. App. 412, 417, 606 A.2d 725 (1992).


author: Per Curiam.

text:
    Fleet Bank of Connecticut v. Vincent J. Dowling, Jr. Fleet Bank of Connecticut v. Vincent J. Dowling, Sr.
    (14610)
    Peters, C. J., Callahan, Berdon, Katz and Palmer, Js.
    Argued March 31
    decision released April 27, 1993

      Kerry M. Wisser, with whom was Jennifer C. Jaff for the appellants (defendants).

      Robert A. Izard, Jr., with whom were Denise M. Cloutier and, on the brief, Linda L. Morkan, for the appellee (plaintiff).
   Per Curiam.

We granted a petition for certification in these cases to permit the defendants, Vincent J. Dowling, Jr., and Vincent J. Dowling, Sr., to challenge the sufficiency of the evidence adduced by the plaintiff, Fleet Bank of Connecticut, to establish probable cause for the issuance of a prejudgment remedy. The plaintiff’s complaints allege that each of the defendants, in violation of his contractual and statutory obligations, has failed to reimburse the plaintiff for payments made to designated third party beneficiaries pursuant to two irrevocable letters of credit. The Appellate Court concluded that the trial court had not committed clear error in its determination that the plaintiff had established probable cause to sustain the validity of its claims because the plaintiff had presented evidence that the defendants either had caused the plaintiff to issue the letters of credit or had requested their issuance. Fleet Bank of Connecticut v. Dowling, 28 Conn. App. 221, 225-26, 610 A.2d 707 (1992).

The question that we certified is: “Did the plaintiff establish probable cause in its application for a prejudgment remedy, in which it alleged that the defendants had agreed to reimburse the plaintiff for the amounts drawn under letters of credit issued by the plaintiff?” Fleet Bank of Connecticut v. Dowling, 223 Conn. 921, 614 A.2d 821 (1992). In their appeal to this court, the defendants argue that this question should be answered in the negative because, before the trial court, the only evidence of any reimbursement agreement was an allegation in an affidavit of a bank officer. The defendants argue that an affidavit cannot, on its own, constitute a sufficient basis for a finding of probable cause for issuance of a prejudgment remedy. The plaintiff maintains, however, that the certified question is not dispositive of this appeal because, in light of the statutory obligation to reimburse contained in General Statutes § 42a-5-114 (3); Armac Industries, Ltd. v. Citytrust, 203 Conn. 394, 398-99, 525 A.2d 77 (1987); the absence of express reimbursement agreements is not fatal to the plaintiffs prejudgment remedy applications. As the plaintiff correctly observes, the Appellate Court, in sustaining the prejudgment remedies, relied on a number of factors tending to establish the defendants’ statutory duty to reimburse the plaintiff in addition to the challenged reimbursement agreements. See Fleet Bank of Connecticut v. Dowling, supra, 28 Conn. App. 225-26.

The ultimate issue is not the validity of one allegation adduced by the plaintiff to establish its claim to a prejudgment remedy but the validity of the prejudgment remedy in its entirety. This dispositive issue has been fully considered in the opinion of the Appellate Court and it would serve no useful purpose for us to repeat the discussion therein contained. After examining the record on appeal and after considering the briefs and the arguments of the parties, we have concluded, therefore, that the appeal in this case should be dismissed on the ground that certification was improvidently granted. See Booth v. Flanagan, 220 Conn. 453, 454-55, 599 A.2d 380 (1991); Lawler v. Lawler, 212 Conn. 117, 119, 561 A.2d 128 (1989).

The appeal is dismissed.

       General Statutes § 42a-5-114 provides in relevant part: “issuer’s duty AND PRIVILEGE TO HONOR; RIGHT TO REIMBURSEMENT. . . .
      “(3) Unless otherwise agreed an issuer which has duly honored a draft or demand for payment is entitled to immediate reimbursement of any payment made under the credit and to be put in effectively available funds not later than the day before maturity of any acceptance made under the credit.”

       The plaintiff also contends that this court should not address the sufficiency of the affidavit to establish probable cause because this issue was not raised by the defendants either in the trial court or before the Appellate Court. In view of our disposition of this appeal, we need not address this contention.