author: Glass, J.

text:
    F & W Welding Service, Inc. v. ADL Contracting Corporation
    (14068)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued December 5, 1990
    decision released February 26, 1991

      Charles A. Sherwood, for the appellant (plaintiff).

      Lawrence J. Carboni, for the appellee (garnishee town of Orange).
   Glass, J.

The sole issue in this appeal is whether the money retained (retainage) until completion and acceptance of a contractor’s performance under the terms of a municipal construction contract constitutes a “debt due” for purposes of garnishment under General Statutes § 52-329 before the contractor completes and the municipality accepts performance. The trial court determined that because the performance of ADL Contracting Corporation (ADL) had not been completed or accepted as required under the unambiguous terms of its contract with the town of Orange (town) at the time that ADL’s creditor, F & W Welding Service, Inc. (F & W), served the town with a writ of garnishment, the retainage was not a “debt due” to ADL within the meaning of the statute. We affirm the judgment of the trial court.

The relevant facts are as follows. F & W is a Connecticut corporation engaged in the business of selling, renting and servicing heavy construction equipment. ADL is a New York corporation engaged in the business of construction. In 1986, ADL agreed to construct sewer pipelines for the town under the Boston Post Road in Orange. ADL and the town executed a unit price contract, the terms of which required ADL “to fully complete the project within 400 consecutive calendar days” of the date of commencement of performance to be specified in a written “Notice to Proceed.” The town’s obligation to pay ADL was primarily governed by the General Conditions section of the contract, and particularly paragraph 25 of the General Conditions entitled “Payments to Contractor.”

In paragraph 25 (1) (a), the town agreed to make partial payments to ADL in accordance with requisitions submitted by ADL and approved by the town’s engineer. The amount of each partial payment was to be calculated by adding the total value of the work then completed to the value of certain stored materials, and deducting the amount of all previous payments as well as the scheduled amount of retainage. The retainage schedule in paragraph 25 (1) (b) provided that the town would retain up to 10 percent of each partial payment claimed until the project was 50 percent complete, after which the retainage would be reduced to 5 percent of each partial payment “provided that [ADL] is making satisfactory progress and there is no specific cause for greater withholding.” When the project was “substantially complete,” meaning “operational or beneficial occupancy,” the retainage was to be reduced below 5 percent “to only that amount necessary to assure completion of the contract work.”

“Final payment” was governed by paragraph 25 (2) (a) of the contract. In this provision, it was agreed that “after final inspection and acceptance by the [town] of all work under the Contract,” ADL would prepare a requisition for final payment. The amount of the final payment was to be determined by adding the unit prices specified in the contract documents for the computed quantity of each item of work, and deducting the amount of all previous payments. It was further agreed that the town would pay “[t]he entire balance found to be due [ADL] including the retained percentages, but except such sums as may be lawfully retained by the [town] . . . within thirty (30) days of completion and acceptance of the Contract.”

During 1987, ADL rented equipment from F & W for use in constructing the pipelines, and F & W serviced that equipment and other equipment used by ADL. Thereafter, in 1988, F & W demanded that ADL pay the amount of $21,069.89 owed for the rental and servicing of the equipment. ADL refused to pay the amount demanded. F & W then applied to the Superior Court pursuant to § 52-329 for a prejudgment remedy authorizing foreign attachment of $25,000 of the retainage held by the town. On July 14,1988, the court found probable cause to sustain F & W’s claim against ADL and entered an order authorizing garnishment of the retainage as requested. On July 28,1988, the town was served with a writ of garnishment in the amount of $25,000. At that time, the pipelines had been constructed to the extent that sewage could have been pumped through them if the necessary pump stations had been built, but ADL had not yet resurfaced the numerous driveways on the Boston Post Road that had been dug up to allow the installation of the pipelines, and therefore, the pipelines remained exposed. The town had budgeted $94,637.70 for completion of the contract.

Subsequently, ADL encountered financial difficulties and was unable to resurface the driveways. ADL therefore obtained a subcontractor, the Empire Paving Company (Empire), to do the resurfacing work. Empire resurfaced the driveways sometime in early December, 1988, and the town paid for the work on December 15, 1988, with a joint check payable to ADL and Empire in the amount of $90,000. Once the driveways had been resurfaced, on December 21,1988, the town viewed the contract as “substantially completed.”

In late 1988 or early 1989, however, a dispute arose regarding road crossings constructed by ADL that the town’s engineers considered defective. On April 14, 1989, ADL notified the town that it would not complete the contract.

In the meantime, F & W had filed an action in the Superior Court seeking to collect from ADL $21,069.89 owed for the rental and servicing of the equipment. On June 9,1989, the court rendered judgment by stipulation in favor of F & W, and awarded damages to F & W in the amount of $25,153.34. F & W then applied for an execution of the judgment as provided for under General Statutes § 52-356a (a). The execution was issued on July 20,1989. When the town refused to pay the execution, F & W filed a motion in the Superior Court pursuant to General Statutes § 52-356b* ****** for a turnover order directing the town to pay the amount of the judgment plus interest and costs.

The court held an evidentiary hearing on F & W’s motion on October 6,1989. After the hearing, the court determined that the plain and unambiguous language of the contract permitted the town to hold retainage necessary to ensure full performance of the contract, and did not permit release of the retainage upon substantial completion of performance. Since the contract had not been fully performed at any time up to and including the date of the hearing, the court concluded that the retainage was not due to ADL on the date of garnishment, and as a consequence, the retainage was not garnishable by F & W under § 52-329 for satisfaction of its judgment against ADL. The court found further that even if it were to conclude that the retainage had been due upon substantial completion of performance of the contract in December, 1988, F & W’s derivative right to the retainage was subordinate to and would be defeated by the town’s claims against ADL for completion of performance and correction of defective work, claims that exceeded the total amount of retainage held. Accordingly, the court denied F & W’s motion.

F & W appealed from the order denying its motion to the Appellate Court, and we transferred the appeal to this court in accordance with Practice Book § 4023. F & W now raises two issues for our consideration: (1) whether the court improperly determined that the retainage held by the town was not a “debt due” to ADL under § 52-329; and (2) whether the court improperly determined that its right to garnishment was defeated by the town’s claims against ADL since those claims were not liquidated either on the date of garnishment or the date that the court heard F & W’s motion for a turnover order. Because we affirm the judgment on the ground that the retainage did not constitute a “debt due” to ADL under § 52-329, and thus F & W’s garnishment of the retainage was ineffective, it is unnecessary to address the second of these issues.

While F & W’s arguments are somewhat unclear, its basic claim seems to be that the contract contained no provision concerning the town’s use of the retainage, and therefore, the court improperly determined that the town could withhold retainage necessary to ensure full performance of the contract. F & W appears to argue that, rather than to ensure full performance, the retainage was meant to be used by the town to set off any future claim it might have against ADL for work defectively performed. F & W accordingly characterizes the town’s obligation to pay the retainage as subject to a condition subsequent, i.e., the debt, although subject to defeasance if the town’s subsequent claims exceeded the total amount of retainage held, was nonetheless due on the date of garnishment. F & W also advances the alternative contention that because ADL had substantially completed performance of the contract on the date of garnishment, ADL could have sued the town for recovery of the retainage on that date. F & W therefore claims that for this additional reason, the retainage was a debt due to ADL that it was entitled to garnish as subrogee to the rights of ADL.

The town responds that under the terms of the contract, its obligation to pay the retainage to ADL was subject to dual conditions precedent, namely, ADL’s completion of performance of the contract and the town’s acceptance of all work required under the contract. In light of ADL’s abandonment of the contract prior to completing performance, the town argues that at the time of garnishment, none of these conditions had been satisfied. The town therefore maintains that when it was served with the writ of garnishment, the retainage was not a “debt due” to ADL within the meaning of § 52-329. We agree with the town.

“A writ of garnishment subjects to the claims of a creditor only a debt which, at the time of garnishment, was due to the underlying debtor. Dorr-Oliver, Inc. v. Willett Associates, 153 Conn. 588, 595, 219 A.2d 718 (1966); Seigel v. Heimovitch, 128 Conn. 543, 544, 24 A.2d 481 (1942).” Hospital of St. Raphael v. New Haven Savings Bank, 205 Conn. 604, 608, 534 A.2d 1189 (1987); see William M. Raveis & Associates, Inc. v. Kimball, 186 Conn. 329, 334, 441 A.2d 200 (1982); Wilber v. New Haven Water Co., 37 Conn. Sup. 877, 879-80, 441 A.2d 863 (1982). The disposition of this appeal therefore turns upon whether the retainage was a debt due to ADL on July 28,1988, the date that the town was served with the writ of garnishment.

This court has liberally construed the word “due” in § 52-329* to mean “owing” rather than presently payable. Molloy v. Prudential Ins. Co. of America, 129 Conn. 251, 253-54, 27 A.2d 387 (1942); Parker, Peebles & Knox v. El Saieh, 107 Conn. 545, 554, 141 A. 884 (1928). A debt is owing and thus available for garnishment if the garnishee has an existing obligation to pay the debtor either in the present or the future. Ransom v. Bidwell, 89 Conn. 137, 141, 93 A. 134 (1915). An obligation to pay the debtor in the future is “existing” if the garnishee’s liability to pay the obligation is certain. Id., 141-42; see generally E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 66a; 6 Am. Jur. 2d, Attachment and Garnishment §§ 120, 126. If an obligation is certain as to liability, it is not rendered uncertain merely because the debt is unliquidated, that is, the amount that the garnishee ultimately will be obligated to pay is presently uncertain. Calechman v. Great Atlantic & Pacific Tea Co., 120 Conn. 265, 270, 180 A. 450 (1935); see Chambers v. Blickle Ford Sales, Inc., 313 F.2d 252, 259 (2d Cir. 1963). Furthermore, the garnishee’s otherwise certain liability is not made uncertain because the obligation may be diminished or defeated by a condition subsequent. See Calechman v. Great Atlantic & Pacific Tea Co., supra.

Where, however, the garnishee’s obligation is subject to a condition precedent, it is not an existing obligation because the condition renders the liability to pay the obligation uncertain in the sense that the condition may never be satisfied, and therefore, the garnishee may never become liable to pay the debtor. See Molloy v. Prudential Ins. Co. of America, supra, 254; Ransom v. Bidwell, supra, 142; .see also Dick Warner Cargo Handling Corporation v. Aetna Business Credit, Inc., 700 F.2d 858, 862 (2d Cir. 1983); First Central Coast Bank v. Cuesta Title Guarantee Co., 143 Cal. App. 3d 12,15-17,191 Cal. Rptr. 433 (1983); Fico, Inc. v. Ghingher, 287 Md. 150, 160-61, 411 A.2d 430 (1980); see generally E. Stephenson, supra. Consequently, the garnishee’s debt is neither owing nor due until the condition is satisfied, and before that time, any attempted garnishment of the debt necessarily fails. See, e.g., Finch v. Great American Ins. Co., 101 Conn. 332, 335-36,125 A. 628 (1924); Sand-Blast File-Sharpening Co. v. Parsons, 54 Conn. 310, 312-13, 7 A. 716 (1886). This principle defeats garnishment of a debt where the garnishee’s obligation is conditioned upon further performance; see 6 Am. Jur. 2d, Attachment and Garnishment § 129; and as we have stated in the particular. context of construction contracts, “money to become due upon the completion of a building contract is not subject to garnishment before the contract is completed.” Calechman v. Great Atlantic & Pacific Tea Co., supra, 271; see Cunningham Lumber Co. v. New York, New Haven & Hartford R. Co., 77 Conn. 628, 631-33, 60 A. 107 (1905); Coburn v. Hartford, 38 Conn. 290, 293 (1871); see also Brady v. Lichter, 328 Mass. 124, 128, 102 N.E.2d 402 (1951); see generally 6 Am. Jur. 2d, supra, § 130.

Because the town’s obligation to pay the retainage to ADL originates in the contract, the validity of F & W’s attempted garnishment depends on the nature of that obligation as defined by the terms of the contract. “ ‘Whether the performance of a certain act by a party to a contract is a condition precedent to the duty of the other party to act depends on the intent of the parties as expressed in the contract and read in light of the circumstances surrounding the execution of the instrument.’ ” Christophersen v. Blount, 216 Conn. 509, 512, 582 A.2d 460 (1990); Ravitch v. Stollman Poultry Farms, Inc., 165 Conn. 135,149, 328 A.2d 711 (1973); Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951). In searching for the intent of the parties as expressed in a contract, all relevant provisions of the contract must be considered together. Bialowans v. Minor, 209 Conn. 212, 217, 550 A.2d 637 (1988). “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” Barnard v. Barnard, 214 Conn. 99,110, 570 A.2d 690 (1990).

The terms of the contract unambiguously impose duties upon both parties to perform certain acts before the town would have a duty to pay the retainage to ADL. The contract expressly states that the retainage, as part of the balance ultimately found due to ADL, shall be paid to ADL “within thirty (30) days of completion and acceptance of the contract.” That “completion” and “acceptance” meant full performance and acceptance of that full performance is evident from the fact that the parties envisioned payment of the retainage to accompany the “final payment” to ADL, the requisition for which was to be submitted by ADL “after final inspection and acceptance by the [town] of all work under the contract.” The parties’ intent that ADL complete performance of the contract before the town was obliged to pay the retainage is further expressed in the contract provisions governing the calculation and deduction of retainage. The retainage provisions distinctly tie the systematic reduction of retainage deducted to the various stages of the contract as it progressed toward completion, and contemplate the withholding of retainage beyond the point of substantial completion “to only that amount necessary to assure completion of the contract work.” There is no indication that the purpose for withholding retainage was to provide the town with a fund that it could use to set off any future claim against ADL for defective performance.

In view of these unambiguous provisions, we conclude that the parties intended to make ADL’s completion of performance of the contract and the town’s acceptance of that completed performance conditions precedent to the town’s obligation to pay the retainage to ADL. Since these conditions had not been satisfied on the date of garnishment, the town had no existing obligation to pay the retainage to ADL and hence no debt due to ADL that could be reached by garnishment process under § 52-329. Accordingly, the trial court properly determined that the retainage was not subject to garnishment by F & W for satisfaction of its judgment against ADL.

We are likewise unpersuaded by F & W’s alternative contention that the retainage was nonetheless a debt due to ADL since ADL substantially completed performance of the contract before the date of garnishment and thus could have sued the town to recover the retainage on the date of garnishment. While there is support in our case law and that of other jurisdictions for the proposition that the money payable to a contractor who substantially completes performance of a contract may constitute a debt due to the contractor under certain circumstances; see Ransom v. Bidwell, supra; see also Able Distributing Co. v. Lampe, 160 Ariz. 399, 403, 773 P.2d 504 (1989), and authorities cited therein; F & W ignores the court’s specific factual finding that the contract was not substantially completed until December, 1989, some five months after the date of garnishment. Consequently, even if ADL could in fact have recovered the retainage upon substantial performance of the contract, any possible cause of action by ADL against the town would not have accrued until after the date of garnishment. The validity of a garnishment, as we have stated, must be determined not from hindsight, but by evaluating the status of a debt at the time of service of the writ of garnishment. Hospital of St. Raphael v. New Haven Savings Bank, supra.

Furthermore, F & W’s claim is premised upon the assumption that because ADL did not directly perform any work for the town after the date of garnishment, ADL’s role in the substantial completion of the contract dates back before service of the writ of garnishment to the date that the town made its last partial payment for work directly performed by ADL on June 24, 1988. While ADL did not directly perform the resurfacing work that effectuated substantial completion of the contract, that work was required of ADL under the contract, and was performed by a subcontractor obtained by ADL and paid with a check upon which ADL was named as a joint payee. Even if we were to agree with F & W, notwithstanding these factors, that ADL’s performance consists only of the work directly performed by ADL, it would follow that directly, ADL never substantially performed the contract. Therefore, the logical extension of the very premise underlying F & W’s claim prevents it from successfully invoking the authorities concerning garnishment of money payable upon substantial performance of a construction contract.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-329. process of foreign attachment. When the effects of the defendant in any civil action in which a judgment or decree for the payment of money may be rendered are concealed in the hands of his agent or trustee so that they cannot be found or attached, or when a debt is due from any person to such defendant, or when any debt, legacy or distributive share is or may become due to such defendant from the estate of any deceased person or insolvent debtor, the plaintiff may insert in his writ, subject to the provisions of sections 52-278aio 52-278g, inclusive, a direction to the officer to leave a true and attested copy thereof and of the accompanying complaint, at least twelve days before the return day, with such agent, trustee or debtor of the defendant, or, as the case may be, with the executor, administrator or trustee of such estate, or at the usual place of abode of such garnishee; and from the time of leaving such copy all the effects of the defendant in the hands of any such garnishee, and any debt due from any such garnishee to the defendant, and any debt, legacy or distributive share, due or that may become due to him from such executor, administrator or trustee in insolvency, not exempt from execution, shall be secured in the hands of such garnishee to pay such judgment as the plaintiff may recover.”

       Paragraph 25 (1) (b) also provided that after the project was 50 percent complete, a cash bond or irrevocable letter of credit “may be accepted in lieu of all or part of the cast retainage . . . .”

       The total amount of retainage then held by the town was $101,415.41.

       The contract did not require ADL to construct the pump stations.

       The town withheld $5842.41 of retainage in excess of this payment.

       The town also maintained that ADL had not done or had improperly done certain landscaping and curbing work required under the contract.

       “[General Statutes] Sec. 52-356a. execution against certain nonexempt PERSONAL PROPERTY, (a) PROCEDURE. LEVYING OFFICER’S RESPONSIBILITIES. (1) On application of a judgment creditor or his attorney, stating that a judgment remains unsatisfied and the amount due thereon, and subject to the expiration of any stay of enforcement and expiration of any right of appeal, the clerk of the court in which the money judgment was rendered shall issue an execution pursuant to this section against the nonexempt personal property of the judgment debtor other than debts due from a banking institution or earnings. The application shall be accompanied by a fee of six dollars payable to the clerk of the court for the administrative costs of complying with the provisions of this section which fee may be recoverable by the judgment creditor as a taxable cost of the action. In the case of a consumer judgment, the application shall indicate whether, pursuant to an instalment payment order under subsection (b) of section 52-356d, the court has entered a stay of execution and, if such a stay was entered, shall contain a statement of the judgment creditor or his attorney as to the debtor’s default on payments. The execution shall be directed to any levying officer.”

       General Statutes § 52-356b provides: “court order for transfer of specified property OR evidence, (a) If an execution is issued, the judgment creditor may apply to the court for an order in aid of the execution directing the judgment debtor, or any third person, to transfer to the levying officer either or both of the following: (1) Possession of specified personal property that is sought to be levied on; or (2) possession of documentary evidence of title to property of, or a debt owed to, the judgment debtor that is sought to be levied on.
      “(b) The court may issue a turnover order pursuant to this section, after notice and hearing or as provided in subsection (c), on a showing of need for the order. If the order is to be directed against a third person, such person shall be notified of his right pursuant to section 52-356c to a determination of any interest claimed in the property.
      “(c) The court may issue a turnover order against a judgment debtor, without notice or hearing, upon affidavit by the judgment creditor or another competent affiant stating facts from which the court concludes that there is a reasonable likelihood that the judgment debtor is about to remove the property from the state or is about to fraudulently dispose of the property with intent to hinder, delay or defraud his creditors. The court shall expeditiously hear and determine any motion by the judgment debtor to dissolve such an ex parte order.
      “(d) Unless directed to a person who is before the court, any turnover order shall be personally served and shall contain a notice that failure to comply therewith may subject the person served to being held in contempt of court.”

       Along with its motion for a turnover order, F & W had filed a motion for a determination of interest in the retainage pursuant to General Statutes § 52-356e for the purpose of establishing the priority of its interest in the retainage over the interests claimed by ADL’s other creditors. The court found the issue of priority of interests in the retainage moot in light of its determination that the town’s claims against ADL exceeded the total amount of retainage held.

       The town also claims that ADL’s preparation of a requisition for final payment and the town’s final inspection of all work under the contract were additional conditions precedent to its obligation to pay the retainage to ADL. Because we agree with the town that completion and acceptance of the contract were conditions precedent to the town’s obligation, and we hold below that the absence of satisfaction of those conditions on the date of garnishment was sufficient to defeat the attempted garnishment, we need not consider this claim.

       See footnote 1, supra.

       In this respect, we note that the record reveals that ADL did in fact directly perform work required under the contract subsequent to the date of garnishment. ADL submitted a requisition for partial payment for this work on February 2, 1989. The requisition was approved by the town on June 1,1989, but not paid due to the various claims against the retainage asserted by ADL’s creditors.


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Howard B. Hillman v. Town of Greenwich
    (14048)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.

      Argued December 13, 1990
    decision released February 26, 1991

      James M. Macauley, for the appellant (defendant).

      James C. Riley, for the appellee (plaintiff).
   Hull, J.

The plaintiff, Howard B. Hillman, brought an action for damages and injunctive relief against the defendant, the town of Greenwich, alleging that unlawful and unreasonable drainage of surface storm water by the defendant had damaged the plaintiff’s property. The trial court, Hauser, J., rendered judgment, in part, for the plaintiff and the defendant appealed to the Appellate Court. We transferred the appeal to ourselves pursuant to Practice Book § 4023.

The following facts are not in dispute. The plaintiff owns two adjacent parcels of real property in the town of Greenwich, the first located at 29 Taconic Road and the second at 564 North Street. The parcels were purchased by the plaintiff in 1974 and 1981 respectively. Catch basins and storm drains built and maintained by the defendant on North Street collect surface storm water which is drained into a brook that flows naturally over the plaintiff’s North Street property. Eventually, the water flows over a dam and into the lower of two ponds located on the plaintiff’s Taconic Road property and then over a second dam where it finally exits under Taconic Road. The water flow causes erosion on the plaintiff’s North Street property, which in turn causes the deposit of silt into the ponds located on the plaintiff’s Taconic Road property.

The plaintiff’s second amended complaint, pursuant to which this case was tried, alleged that because of the construction of catch basins and storm drains on North Street by the defendant and the development of properties in the nearby Dewart Road and Alpine Road subdivisions that were approved by the defendant, the surface storm water collected and diverted over the plaintiff’s property was in excess of that which would naturally flow and drain over it and that, therefore, the drainage was unlawful and unreasonable. The complaint set forth four counts in support of the plaintiff’s claim as follows: (1) continuing trespass; (2) private nuisance; (3) violation of General Statutes § lSa-138; and (4) negligence. The trial court rendered judgment, in part, for the plaintiff, having found that the defendant had violated § 13a-138 and had created and maintained a private nuisance. The trial court awarded damages to the plaintiff and, thereafter, enjoined the defendant from maintaining the nuisance and ordered the defendant to take the measures necessary to abate the nuisance.

On appeal, the defendant claims that the trial court should have: (1) dismissed the original complaint because it was not accompanied by a writ of summons; (2) concluded that the plaintiffs cause of action under § 13a-138 was time-barred; (3) concluded that the defendant had not violated § 13a-138, even if the plaintiffs cause of action thereunder was timely; (4) rejected the plaintiffs private nuisance claim, since the sole allegation offered in support of that claim, a violation of § 13a-138, was barred; (5) concluded that the plaintiff had the obligation to pass the water through the brook on his property; (6) stricken the plaintiffs testimony regarding damage caused by the brook, because allegations concerning the brook were at variance with his pleadings; and (7) found that the town had acquired prescriptive rights to drain water into the brook.

I

A

We consider the first three claims together. The defendant first claims that because the plaintiffs first complaint was not accompanied by a writ of summons, the trial court should have dismissed it. We agree.

On September 15,1986, the plaintiff served the original complaint in this action on the defendant without a writ of summons. On October 28,1986, the defendant filed a timely motion to dismiss the complaint for lack of personal jurisdiction, because there was no writ of summons attached to the complaint. On November 13, 1986, the plaintiff served the first amended complaint, with a return date of October 14, 1986, on the defendant. The first amended complaint was identical to the original complaint in all respects, except that it included a writ of summons. Thereafter, the trial court, Emmet, J., denied the defendant’s motion to dismiss the original complaint and the defendant filed a notice of its intention to appeal the trial court’s decision.

Practice Book § 49 provides that “[mjesne process in civil actions shall be a writ of summons . . . describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff’s complaint. Such writ . . . shall be signed by a commissioner of the superior court .... [Tjhe writ of summons shall be on a form substantially in compliance with . . . Form 103.1 (JD-CV-1) . . . .” See also General Statutes § 52-45a. “ ‘In ordinary usage of the term, [a summons is the] original process upon a proper service of which an action is commenced and the defendant therein named brought within the jurisdiction of the court . . . .’Ballentine’s Law Dictionary (3d Ed.). A summons is part of a citation. ‘The citation . . . is a command to a duly authorized officer to summon the [defendant] . . . to appear in court on a specific day to answer the [complaint].’ Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 338-39, 170 A.2d 732 (1961).” State v. One 1981 BMW Automobile, 5 Conn. App. 540, 543-44, 500 A.2d 961 (1985).

It is undisputed that the complaint served by the plaintiff on September 15,1986, did not include a writ of summons in compliance with Form 103.1. Moreover, our examination of the original complaint reveals only a bare bones complaint, totally lacking in any direction to the proper officer for service or a command to summon the defendant to appear in court. This cryptic complaint is in marked contrast to Form 103.1, which contains detailed instructions and notice to each defendant that should convey to all but the most obtuse his exact rights and obligations. Nevertheless, the trial court denied the defendant’s motion to dismiss for lack of jurisdiction.

The trial court considered Village Creek Homeowners Assn. v. Public Utilities Commission, supra, 339, wherein we held that “[t]he citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command. . . . Without it, the officer would be little more than a deliveryman. Hartley v. Vitiello, 113 Conn. 74, 79, 154 A. 255 [1931].” (Citations omitted.) The trial court distinguished, however, our upholding of the dismissal for lack of jurisdiction in Village Creek Homeowners Assn, from the present case, on the ground that the then existing statutory procedure for instituting an appeal from the public utilities commission included the specific requirement that such an appeal be brought with a proper citation. The court then denied the motion to dismiss because all of the essential information required by § 49, including a description of the parties, the court to which it is returnable, the return date, the complaint and the signature of a commissioner of the Superior Court, had been included in the plaintiff’s initial complaint.

We find the trial court’s distinction unpersuasive. Contrary to the trial court’s finding, a writ of summons is a statutory prerequisite to the commencement of a civil action. General Statutes § 52-45a. A writ of summons is analogous to a citation in an administrative appeal; Sheehan v. Zoning Commission, 173 Conn. 408, 412, 378 A.2d 519 (1977); State v. One 1981 BMW Automobile, supra, 544; it is an essential element to the validity of the jurisdiction of the court. Village Creek Homeowners Assn. v. Public Utilities Commission, supra; State v. One 1981 BMW Automobile, supra. Although the writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book; see McQuillan v. Department of Liquor Control, 216 Conn. 667, 671-73, 583 A.2d 633 (1990); the plaintiff’s complaint must contain the basic information and direction normally included in a writ of summons. Because the plaintiff in this case failed to comply in any fashion with these basic requirements, we conclude that the trial court should have granted the defendant’s motion to dismiss the complaint filed September 15, 1986, for lack of personal jurisdiction over the defendant.

The court, further, should not have concluded that the amended complaint “cured” the absence of a writ of summons from the original complaint. Sheehan v. Zoning Commission, supra, 413; Village Creek Homeowners Assn. v. Public Utilities Commission, supra, 340. Contrary to the trial court’s determination, the defect was jurisdictional, not circumstantial in nature and, thus, the pleading was not precluded from abatement under General Statutes § 52-123. “ ‘[Section 52-123] is used to provide relief from defects in the text of the writ itself but is not available to cure irregularities in the service or return of process.’ [Rogozinski v. American Food Service Equipment Corporation, 211 Conn. 431, 434, 559 A.2d 1110 (1989)].” Pack v. Burns, 212 Conn. 381, 386, 562 A.2d 24 (1989). We conclude, therefore, that the trial court should not have found that the service of a writ of summons with the amended complaint on November 13,1986, “cured” the absence of service of process on September 15, 1986.

B

The defendant next claims that because the plaintiffs action was not commenced until the service of the second complaint, which contained a writ of summons, on November 13, 1986, the action under § 13a-138 was barred as untimely. We agree.

General Statutes § 13a-138a provides in part that after October 1,1986, “[n]o action shall be brought by the owner of land adjoining a public highway ... for recovery of damage to such property ... by reason of any draining of water into or through such land by any town ... of the state pursuant to subsection (a) of section 13a-138 ... if such drainage first occurred prior to October 1,1981 . . . .” “ ‘In Connecticut, an action is commenced on the date of service of the writ upon the defendant. . . .’ ” (Citations omitted.) McGaffin v. Roberts, 193 Conn. 393, 401-402 n.9, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985); see also Lacasse v. Burns, 214 Conn. 464, 475, 572 A.2d 357 (1990). It is undisputed that the drainage in this case first occurred prior to October 1,1981, and that the writ of summons was served upon the defendant on November 13,1986. The plaintiff having failed to commence the action before October 1,1986, we conclude that the plaintiffs cause of action pursuant to § 13a-138 was barred as untimely under § 13a-138a.

C

The defendant next claims that the trial court should not have concluded that the defendant had violated § 13a-138. In view of our conclusion that the plaintiff’s action under § 13a-138 was barred, we do not reach this claim.

II

A

We need not tarry in considering the defendant’s remaining claims. The defendant claims that because the trial court’s finding of a violation of § 13a-138 was the sole basis supporting its finding of a private nuisance, the judgment must be reversed. We do not agree.

In finding that a private nuisance existed, the court determined that the defendant’s “use of the land [was] unreasonable and unlawful.” (Emphasis added.) Furthermore, in its judgment of April 24, 1990, the trial court stated that in its judgment of September 1,1989, it had found the issue of monetary damages for the plaintiff, based on the alternate theories of private nuisance and violation of § 13a-138. Thus, the court made it clear that the finding of a nuisance was not dependent on its finding of a violation of § 13a-138. We conclude, therefore, that the finding of a private nuisance, alone, supports the trial court’s judgment for the plaintiff.

B

The defendant next claims that the trial court should have found that the plaintiff had an obligation to pass the water in the brook through his property. The defendant has offered two arguments in support of this claim. Neither persuades us.

First, the defendant argues that unknown and unnamed downstream and upstream property owners may have prescriptive rights to have the water flow through the brook as it has for some years. “It has long been recognized that a person is not ‘entitled to set the machinery of the courts in operation except to obtain redress for an injury he has suffered or to prevent an injury he may suffer, either in an individual or a representative capacity.’ Bassett v. Desmond, 140 Conn. 426, 430, 101 A.2d 294 (1953).” Nye v. Marcus, 198 Conn. 138, 141-42, 502 A.2d 869 (1985); see also University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 389, 512 A.2d 152 (1986); Maloney v. Pac, 183 Conn. 313, 321, 439 A.2d 349 (1981). We conclude, therefore, that the defendant is without standing to raise the speculative claims of unknown persons who are not parties to this action.

The defendant next argues that the plaintiff had impliedly agreed to pass the water in those quantities and velocities that have flowed since he purchased the property. The basis for this argument is that the plaintiff purchased the North Street property after the recording of a subdivision map of the property, which noted that subsequent grantees agreed “to maintain the watercourse so as to permit the free flowing of the water therein.” The plaintiff does not contest that the volume and velocity of water presently causing damage to his property was essentially the same at the time that he purchased the property. Nevertheless, an agreement to maintain a watercourse to permit the free flow of the water therein is not a commitment to permit the flow of an unreasonable, possibly torrential volume of water that others may direct into the watercourse. We conclude that the only common sense interpretation of this phrase is that grantees of the North Street property are obligated to maintain the watercourse so as to permit the lawful and reasonable free flowing of the water therein. The recorded notation in no way establishes immunity for the defendant from liability for a nuisance.

C

The defendant next claims that because the plaintiff used the phrase “surface storm water” repeatedly in his complaint when describing the cause of the damage to his property, and surface storm water is legally distinguishable from a brook, the plaintiffs testimony regarding damage caused by the drainage of the brook should have been stricken as at variance with the pleadings. The trial court denied this claim stating that “[t]his court’s review of the original complaint, amended complaint, disclosure of experts, exhibits entered during trial, special defenses filed by the defendant, the plaintiff’s deposition given several months before trial, etc. leads it to the conclusion that a variance, if any, was immaterial and the defendant’s request that the plaintiff’s testimony be stricken is denied.” We agree with the trial court.

‘A variance is a departure of the proof from the facts as alleged. Not every variance, however, is a fatal one since immaterial variances are disregarded under our practice. Practice Book § [178] .... Only material variances, those which disclose a departure from the allegations in some matter essential to the charge or claim, warrant the reversal of a judgment. . . . ’ Strimiska v. Yates, 158 Conn. 179, 183, 257 A.2d 814 (1969); Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 359-60, 525 A.2d 57 (1987);Fuessenich v.DiNardo, [195 Conn. 144,151-52, 487 A.2d 514 (1985)]; O’Connor v. Dory Corporation, 174 Conn. 65, 68, 381 A.2d 559 (1977).” Tedesco v. Stamford, 215 Conn. 450, 461, 576 A.2d 1273 (1990). Although the second amended complaint frequently refers to surface storm water, our examination of it indicates that it was this surface storm water flowing through the plaintiffs brook in unreasonable volume and velocity that the plaintiff claimed as the cause of the damage to his property. Furthermore, the defendant did not claim that it “was prejudiced in maintaining [its] defense on the merits, or that [it] was surprised by the plaintiffs proof, or that [it] was misled by the allegations in the complaint.” Strimiska v. Yates, supra, 184. Accordingly, we conclude that because the variance was immaterial, the trial court properly denied the defendant’s request to strike the testimony of the plaintiff regarding the brook.

D

In its counterclaim the defendant asserted that it had prescriptive rights to drain into the brook. The trial court rejected this claim, citing Lawton v. Herrick, 83 Conn. 417, 424, 76 A. 986 (1910). We agree with the trial court.

In Lawton, the plaintiff, an owner of a saw mill and ice harvesting operation, brought an action for damages and injunctive relief against the defendant, an upstream cider mill operator, for discharging into a brook sawdust, pomace and other refuse, which flowed down to and polluted the plaintiff’s mill pond. Id., 419. The defendant claimed a prescriptive right to use the brook to carry off the refuse resulting from the operation of his mill. Id., 423. In concluding that the defendant was not entitled to a jury charge to that effect, we stated that “[a] riparian proprietor cannot acquire by any prescription a right to maintain a nuisance . . . . Platt Bros. & Co. v. Waterbury, 72 Conn. 531, 548, 45 Atl. 154 [1900]; Morgan v. Danbury, 67 Conn. 484, 493, 35 Atl. 499 [1896]. The claim of such a right in another’s land is unnatural and unreasonable, and is not sanctioned by law. A prescription to be valid must be reasonable. Merwin v. Wheeler, 41 Conn. 14, 25 [1874].” Id., 424-25. The defendant has brought forth no authority from any jurisdiction to the contrary. We conclude, therefore, that the trial court properly denied the defendant’s counterclaim.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 13a-138 (a) provides: “Persons authorized to construct or to repair highways may make or clear any watercourse or place for draining off the water therefrom into or through any person’s land so far as necessary to drain off such water and, when it is necessary to make any drain upon or through any person’s land for the purpose named in this section, it shall be done in such a way as to do the least damage to such land.”

       The second amended complaint, pursuant to which the case was tried, was filed on January 5, 1989.

       General Statutes § 52-45a provides: “Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day and the date and place for the filing of an appearance. The writ shall be accompanied by the plaintiffs complaint. The writ may run into any judicial district and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable.”

       General Statutes § 52-123 provides: “circumstantial defects not to abate pleadings. No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”


author: Borden, J.

text:
    Horton Spitzer v. Haims and Company et al.
    (13857)
    Shea, Glass, Hull, Boeden and F. X. Hennessy, Js.

      Argued December 14, 1990
    decision released February 26, 1991

      Lawrence M. Lapine, with whom, on the brief, was Christopher R. Bello, for the appellant (plaintiff).

      William 0. Riiska, with whom was Gregory T. DAuria, for the appellees (named defendant et al.).

      Duncan B. Hume, for the appellees (defendant W. Parker Seeley et al.).
   Borden, J.

The principal issue in this appeal is whether the trial court properly allowed the jury to ask questions of the witnesses. The plaintiff, Horton Spitzer, brought a professional malpractice suit against his former lawyers, the defendants W. Parker Seeley and Seeley’s law firm, Pullman, Comley, Bradley and Reeves, and against his former accountants, the defendants William Amone and Arnone’s accounting firm, Haims and Company, to recover losses incurred in the sale of his business. During the trial, the court allowed the jurors, after direct and cross-examination of each witness, to submit written questions to be asked of the witness after review of the questions by the court and counsel. The court placed a continuing objection and exception to this procedure on the record for all parties. The jury found for all the defendants in a general verdict, and the plaintiff moved to set aside the verdict. The trial court denied the motion and rendered judgment in accordance with the verdict. The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023.

The plaintiff claims that the trial court improperly: (1) permitted the jury to ask questions of the witnesses; (2) failed to set aside the verdict as against the weight of the evidence; and (3) charged the jury regarding Amone’s contributory negligence. We hold that a trial court has the discretion to permit the jurors to ask questions of witnesses. We conclude that in light of the manner in which the trial court permitted juror questioning in this case, the court did not abuse its discretion in doing so. We also conclude that the plaintiff’s remaining claims are meritless. We therefore affirm the judgment.

The jury could reasonably have found the following facts. In 1969, the plaintiff and his partner founded the Watchguard Corporation (Watchguard), a company involved in selling burglar and fire alarm systems. After buying out his partner in 1978, the plaintiff was the sole shareholder and president of Watchguard until 1983 when he sold his interest to the National Guardian Corporation (National Guardian) for the price of $2.2 million. Prior to the sale, the plaintiff engaged the services of the defendants Seeley and Pullman, Cornley, Bradley and Reeves to assist him in negotiating the contract of sale. Additionally, the defendants Amone and Haims and Company, accountants who had performed the limited services of compiling annual financial statements and advising on matters of corporate and personal income tax planning for the plaintiff and Watchguard, were asked numerous questions relating to the sale by Seeley and the plaintiff.

Section 2.2.4 of the proposed contract of sale provided that after National Guardian reviewed Watch-guard’s accounting books, adjustments in the purchase price would be made for “deferred income.” Because the nature of Watchguard’s business required that customers pay in advance for services to be rendered by Watchguard in the future, Watchguard placed a portion of the advance payments in a “deferred income” account. This deferred income account was reflected as a liability on the balance sheet. Not all of the advance payments, however, were treated as deferred income; some were reflected as current income. As a result of these differing accounting treatments of advance payments, a discrepancy existed on Watchguard’s books regarding the amount of future services for which it had already been compensated.

During the course of negotiations of the contract, the plaintiff was concerned about the effect that § 2.2.4 would have on the ultimate purchase price. The plaintiff expressed these concerns to Seeley, who was representing the plaintiff, and the plaintiff and Seeley also expressed these concerns to Arnone.

There were numerous discussions among the parties concerning § 2.2.4 and the effect that it would have on the purchase price. In particular, Seeley wrote to Arnone requesting that he review the contract, specifically § 2.2.4, for any problems. Arnone, upon being phoned by Seeley and the plaintiff, responded that there were “no problems” with the agreement, meaning that the provision was not uncommon or unfair in this type of buy-out arrangement. The plaintiff and Seeley, however, understood this statement to mean that there would not be a price adjustment based upon this provision. The plaintiff signed the final contract of sale and, six months later, National Guardian informed the plaintiff of a reduction of $158,522 in the purchase price pursuant to § 2.2.2 of the final contract that was required to reflect income that Watchguard had received for future services but was not reflected in the deferred income account.

Although claiming that he was unaware that there would be such an adjustment in this case, the plaintiff was familiar with Watchguard’s accounting practices regarding the treatment of its deferred income and knew that the total amount of deferred income was not listed in the deferred income account. The plaintiff had often considered the tax consequences of the deferred income account when participating in tax discussions concerning Watchguard. Furthermore, the plaintiff had contacted three other individuals who had sold their security businesses to National Guardian and had learned that National Guardian had made adjustments with respect to deferred income of those businesses after the purchase.

I

At the start of the trial, the court informed counsel that this case, with the approval of the judicial department, was to be part of a program being conducted by the American Judicature Society whereby jurors would be allowed to ask questions of witnesses. The court explained the procedure to be used, and noted a standing objection and exception on the record for all parties.

The procedure implemented by the court was as follows. The court asked the jurors, at the conclusion of direct and cross-examination of each witness, whether they had any questions for that witness. If so, the court instructed the jury to retire to the deliberation room where any jurors who had questions wrote them down for submission to the court through the sheriff. Outside the presence of the jury, the court reviewed the questions, allowed the attorneys to object, and ruled on any objections. The court instructed the jury that it could not draw any adverse inference should the court refuse to ask a particular objectionable question. After the court had posed the jurors’ questions to the witnesses, counsel were allowed to ask follow-up questions of the witnesses.

The court explained to the jury that “it is the primary responsibility of the lawyers to ask questions. So you are not encouraged to ask a large amount of questions.” During the course of trial, the jury submitted sixteen questions to Amone and eleven questions to Seeley. The majority of the questions sought clarification of facts or repetition of testimony.

The plaintiff does not challenge any of the jurors’ questions that the court permitted. The plaintiff claims that the procedure implemented by the trial court: (1) violated his constitutional right to trial by jury guaranteed by article first, § 19, of the Connecticut constitution; (2) infringed upon the separation of powers provision of article second of the Connecticut constitution; (3) exceeded the power of the trial court by effecting a change in the rules of court without compliance with General Statutes § 51-14; (4) violated his right to due process of the law under the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution; and (5) violated his right to an impartial jury under article first, § 8, of the Connecticut constitution by encouraging the jury to deliberate prematurely.

The plaintiffs first claim is that by permitting the jurors to ask questions, a procedure not previously practiced in Connecticut, the court violated his constitutional right to trial by jury because the form of the trial was altered. We disagree.

The Connecticut constitution provides that “[t]he right of trial by jury shall remain inviolate.” Conn. Const., art. I, § 19. The prohibition on the abridgement of the right to jury trial “mandates that, given a recognized cause of action to which the right to trial by jury attached prior to the existing constitution, the right to trial by jury must always be available in the trial of that cause.” Gentile v. Altermatt, 169 Conn. 267, 299, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976); see also Bishop v. Kelly, 206 Conn. 608, 618, 539 A.2d 108 (1988).

The provision that “[t]he right of trial by jury shall remain inviolate”; Conn. Const., art. I, § 19; does not carry with it, however, the corresponding right that all court rules, procedures and methods current in 1818 would remain unchanged. Indeed, “[i]n speaking to the command of the seventh amendment to the federal constitution that ‘the right of jury trial shall be preserved’ the United States Supreme Court (Brandéis, J.) said that the seventh amendment ‘does not require that old forms of practice and procedure be retained .... It does not prohibit the introduction of new methods for determining what facts are actually in issue, nor does it prohibit the introduction of new rules of evidence. Changes in these may be made. New devices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice. Indeed, such changes are essential to the preservation of the right. The limitation imposed by the Amendment is merely that enjoyment of the right of trial by jury be not obstructed, and that the ultimate determination of issues of fact by the jury be not interfered with.’ (Footnote and citations omitted.) Ex Parte Peterson, 253 U.S. 300, 309-10, 40 S. Ct. 543, 64 L. Ed. 919 (1920).” Seals v. Hickey, 186 Conn. 337, 351, 441 A.2d 604 (1982). We conclude, therefore, that the change in procedure alone did not violate the plaintiff’s constitutional right to trial by jury.

The plaintiff also claims that the court, by implementing this procedure without statutory authority, “infringed upon the constitutionally protected province of the legislature” that has the responsibility of maintaining jury trials in substantially the same form as existed at common law. In support of this assertion, the plaintiff relies on State v. Perella, 144 Conn. 228, 129 A.2d 226 (1957), State v. Gannon, 75 Conn. 206, 52 A. 727 (1902), and State v. Main, 69 Conn. 123, 37 A. 80 (1897). This reliance is misplaced.

In Perrella, this court rejected a constitutional challenge to a statute providing for a jury of six in a criminal case unless the defendant elected a jury of twelve at the time of pleading. State v. Perella, supra, 232. We held that “[i]t is not violative of the constitutional guarantee of the right to a jury trial for the legislature to enact a statute which changes the form of jury procedure if it still maintains the substance of the institution.” (Emphasis added.) Id., 231. In Gannon and Main, this court declined to read a procedural statute requiring the court to “submit to [the jury’s] consideration both the law and the facts”; General Statutes (1888 Rev.) § 1630; so as to require the jury, rather than the court, to determine the constitutionality of the substantive statute at issue in the case; see State v. Main, supra; or to determine the law generally applicable to the case; see State v. Gannon, supra; because to do so would impinge on the essential characteristics of the right to jury trial. These cases stand only for the proposition that the legislature may enact changes in the procedures governing jury trials, provided that the essential form remains intact. They hardly hold, as the plaintiff argues, that only the legislature, and not the courts, may bring about such changes. We conclude, therefore, that the trial court did not infringe upon the province of the legislature in implementing the new procedure.

The plaintiff next argues that, if the asking of questions by jurors is deemed a procedural change within the judicial power, the trial court nonetheless exceeded its power because the new procedure was not promulgated pursuant to General Statutes § 51-14. The plaintiff also argues that, because § 51-14 provides for notice and a public hearing for proposed new rules or changes in existing rules, the action of the trial court constituted a violation of the plaintiffs due process rights under the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. We reject the plaintiff’s claims.

Parallel to the publication provisions of General Statutes § 51-14, Practice Book § 7 provides as follows: “Each rule hereafter adopted shall be promulgated by being published once in the Connecticut Law Journal. Such rule shall become effective at such date as the judges of the superior court shall prescribe, but not less than sixty days after its promulgation. Prior to such adoption, there shall be published in the Connecticut Law Journal a summary of the proposed rules and a statement that a copy of those proposed rules will be mailed to any person upon request. The published notice of the proposed rules shall also state the time when, the place where and the manner in which interested persons may present their views thereon.”

The plaintiff’s focus on § 51-14 ignores the fundamental principle that in our state the primary authority over matters of practice and procedure lies within the judicial branch. State v. Clemente, 166 Conn. 501, 353 A.2d 723 (1974). Even that principle is not absolute, however, since under appropriate circumstances legislative and judicial powers may constitutionally overlap. See Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 522, 461 A.2d 938 (1983); Fishman v. Middlesex Mutual Assurance Co., 4 Conn. App. 339, 353, 494 A.2d 606 (1985). Assuming without deciding that the plaintiff’s claim implicates both General Statutes § 51-14 and Practice Book § 7, we conclude that neither provision applied to the trial court’s action in this case.

General Statutes § 51-14 (a) refers to “rules and forms regulating pleading, practice and procedure in judicial proceedings . . . .” Practice Book § 7 refers, in similar vein, to “[ejach rule hereafter adopted [by the judges of the Superior Court] . . . .’’There is no rule, nor has there ever been a rule, regulating or prohibiting the court’s exercise of discretion in permitting jurors to ask questions of witnesses. Although there are circumstances where the action of an individual trial judge may constitute an impermissible attempt at rule-making; see Fattibene v. Kealey, 18 Conn. App. 344, 355-56, 558 A.2d 677 (1989); this is not such a case.

Moreover, there is nothing in either General Statutes § 51-14 or Practice Book § 7 that prohibits a trial court from implementing a new procedure without its formal adoption as a rule. Such an interpretation would result in an overly burdensome restriction on the trial court’s control and authority over the efficient management of the case before it. Furthermore, in this situation, where the Connecticut judicial department, at the behest of the American Judicature Society, specifically approved of the procedure permitting jurors to ask questions, within the strict confines of the precautions taken and the instructions given, we do not agree that the procedure must, as a matter of due process of law, be subject to the formal adoption procedures set forth in General Statutes § 51-14 and Practice Book § 7.

The plaintiff also argues that the procedure employed permitted the jurors to begin the deliberative process before the case was submitted to them, in violation of the plaintiff’s right to an impartial jury under article first, § 8, of our constitution. We disagree.

The plaintiff relies upon State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980), where we held that “it is error of constitutional magnitude [under article first, § 8,] for the trial judge expressly to instruct the jurors that they may discuss the case among themselves prior to its submission to them . . . .’’See also State v. Castonguay, 194 Conn. 416, 433, 481 A.2d 56 (1984). Central to that holding, however, was the notion that the court expressly sanctioned the beginning of deliberations by discussion among the jurors. “Discussion is an integral part of deliberation.” State v. Washington, supra, 428.

We properly expect jurors to refrain from deliberating on a case until it is submitted to them. Id. Deliberation in this sense, however, means articulating and exchanging views, albeit preliminary, with one’s fellow jurors. Id. It does not mean the absence of thought, however preliminary. We cannot expect jurors to be totally passive receptors of information who are not permitted even to think about what they have heard. A rule that rests on such a futile requirement, as the plaintiff’s argument suggests, would be a rule without foundation in reality. “The trial court is expected to prevent premature deliberation, not harness the human mind.” State v. Johnson, 784 P.2d 1135, 1145 (Utah 1989).

The principal evils of permitting premature discussion by jurors are that the jurors may thereby consider evidence unaided by the court’s instructions, and that a juror who has expressed his opinion publicly to his fellow jurors may become irretrievably committed to that point of view despite evidence to the contrary. State v. Washington, supra, 426. These evils, which flow primarily from the jurors’ premature discussion of the case, are not inherent in a properly safeguarded procedure of permitting jurors’ questions. Permitting jurors to ask questions about what they have heard and seen does not transform their inevitable mental processes into constitutionally impermissible deliberation. Furthermore, in this case, the trial court explicitly instructed the jurors not to discuss the case among themselves, further ensuring against the risk of premature deliberation.

Implicit in the plaintiff’s constitutional contention is the further claim that the procedure should not be permitted as a matter of judicial policy. We disagree. We conclude that whether to permit such a procedure is within the discretion of the trial court. We also conclude that, in light of the safeguards employed in this case, the court did not abuse its discretion.

In examining this issue of first impression in our state, we note that the overwhelming majority of jurisdictions that have considered the issue conclude that, although the practice of juror questions should not be encouraged, it is within the discretion of the trial court to permit such a procedure. The principal risks articulated by the courts are that: (1) counsel may be inhibited from objecting to questions for fear of offending the jurors; People v. McAlister, 167 Cal. App. 3d 633, 645, 213 Cal. Rptr. 271 (1985); (2) interruptions by jurors would disrupt courtroom decorum; Sparks v. Daniels, 343 S.W.2d 661, 667-68 (Mo. App. 1961); Superior & Pittsburg Copper Co. v. Tomich, 19 Ariz. 182,188,165 P. 1101 (1917); (3) questions asked by the jurors may not be relevant to the issues; State v. Howard, 320 N.C. 718, 725-26, 360 S.E.2d 790 (1987); and (4) asking questions may distort the jurors' objectivity. People v. McAlister, supra.

In this case, however, the procedure implemented by the trial court operated to avoid most of these risks. The jurors wrote out their questions in the jury room, and the judge and attorneys reviewed them outside the presence of the jury, where the attorneys were allowed to voice their objections. This procedure avoided the risks that an attorney might decline to object for fear of offending the jury and that jurors’ questions would interrupt the court or the attorneys during the trial. Furthermore, the court instructed the jurors at the beginning of the trial that they could not draw any adverse inferences from the fact that a particular question was disallowed. Reviewing and ruling on the questions outside the presence of the jury dispelled any likelihood that an impermissible question would be asked.

The last concern voiced by some courts, namely, that the jury would lose its objectivity, is equivalent to the constitutional claim of the plaintiff that we have rejected. As we have noted, we do not believe that the process implemented by the trial court impaired the jurors’ objectivity by permitting them to engage in premature deliberation.

We find guidance in the approach taken by the Second Circuit Court of Appeals. In United, States v. Witt, 215 F.2d 580, 584 (2d Cir. 1954), the court stated that the issue of juror questioning is a matter within the discretion of the trial judge, similar to questioning of a witness by the trial judge. It is undisputed that in Connecticut a judge is allowed to ask questions of witnesses in order to bring out the facts more clearly and to determine the truth; see, e.g., State v. Smith, 200 Conn. 544, 549, 512 A.2d 884 (1986); State v. Fernandez, 198 Conn. 1, 11, 501 A.2d 1195 (1985); and that “[i]ts exercise will not be reviewed unless it abused its discretion.” Hutchinson v. Plante, 175 Conn. 1, 3, 392 A.2d 488 (1978). In this case, the questions asked by the jurors appear to have been intended to clarify the facts and to determine the truth.

Simply stated, asking questions by jurors may reasonably be viewed by a trial judge, who has the responsibility for the orderly and just conduct of the trial, as a useful tool in advancing the truth-seeking function of our adversarial system of justice. The trial judge who takes that view in any given case should therefore be permitted the discretion to employ such a tool.

The court did not abuse that discretion here. The court employed ample safeguards to guard against the risks normally perceived by courts in such cases and to prevent any unfairness to a party. The jurors wrote out the questions, and submitted them to the court for review and objection outside the presence of the jury. The court then read the questions to the witnesses, and the attorneys were allowed follow-up questions. We note, moreover, the propriety of the trial court’s instruction that questions by the jury, while permitted, are not encouraged. Such an instruction properly ensures that the questions of jurors do not overwhelm the traditional procedure of the trial.

II

The plaintiff next claims that the trial court incorrectly failed to set aside the verdict as against the weight of the evidence. In essence, the plaintiff argues that the jury was required to believe his testimony and the testimony of his expert witnesses supporting his claim of liability, and that, therefore, the jury was required to find that one or both of the individual defendants, and not the plaintiff, was negligent. We disagree.

The conclusion of the trial court on a motion to set aside a verdict will not be disturbed unless there is a clear abuse of discretion. Malmberg v. Lopez, 208 Conn. 675, 679, 546 A.2d 264 (1988). “The trial court’s refusal to set aside a verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness.” Id.; see also Todd v. Glines, 217 Conn. 1, 5, 583 A.2d 1287 (1991). If, on the evidence, the jury reasonably could have decided as it did, a reviewing court will not disturb the trial court’s acceptance of the verdict. Malmberg v. Lopez, supra. It is the duty of the reviewing court, however, to set aside a verdict when it finds that “ ‘it does manifest injustice, and is . . . palpably against the evidence. . . .’ ” Id., 679-80.

There was sufficient evidence to support the jury’s conclusion that either the defendants were not negligent or the plaintiff was contributorily negligent. The defendants presented expert testimony that, in light of the circumstances, both Amone and Seeley acted within the standard of care applicable to their professions. Furthermore, there was evidence that the plaintiff was aware of the manner in which Watchguard reported its deferred income and that the amount posted did not reflect the actual amount of deferred income received. The plaintiff was asked numerous times by Seeley to contact Arnone to verify the deferred income account, yet the plaintiff never did so. In fact, the deferred income account was maintained by the plaintiff’s own comptroller, and the plaintiff did not question him about the actual amount in that account. Seeley reviewed the contract with the plaintiff and explained that the provision meant that if the advanced payments of customers under deferred income were not accurate there would be an adjustment. Also, the plaintiff was aware from speaking with three other individuals who had sold security businesses to National Guardian that adjustments based upon deferred income occurred in those sales.

Nor is this a case where the manifest injustice of the verdict is so plain and palpable as clearly to denote that the jury made some mistake in applying the legal principles, or to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality. A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200,206-207, 579 A.2d 69 (1990). The plaintiff’s argument that partiality and prejudice may have resulted because the jury was allowed to ask questions is unsupported by our review of the questions asked during the trial. See Part I, supra. The plaintiff makes no other claim of prejudice, corruption, or partiality, nor does the record support any such conclusion.

In light of the conflicting evidence presented by the parties, “[t]he jury, in determining the facts and the reasonable inferences therefrom, could reasonably conclude as it did.” Trzcinski v. Richey, 190 Conn. 285, 299, 460 A.2d 1269 (1983). The trial court, therefore, did not abuse its discretion in refusing to set aside the verdict.

Ill

The plaintiff next claims that the trial court incorrectly charged the jury regarding Arnone’s special defense of contributory negligence. In light of the general verdict rule, we need not review this claim. “The so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982); Collucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981). The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action; see Matthews v. F.M.C. Corporation, 190 Conn. 700, 706, 462 A.2d 376 (1983); or distinct defenses. See Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466,199 A.2d 698 (1964). A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury. Alternatively, if the action is in separate counts, a party may seek separate verdicts on each of the counts.” Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202-203, 520 A.2d 208 (1987); see also Hall v. Burns, 213 Conn. 446, 484-85 n.9, 569 A.2d 10 (1990).

The plaintiffs complaint alleged that Arnone was professionally negligent. Arnone asserted as special defenses that: (1) the plaintiff acquiesced in all actions taken with regard to the allegations in his complaint; (2) any damage to the plaintiff was proximately caused by his own negligence; and (3) any damage to the plaintiff was proximately caused by separate and intervening acts or failure to act on the part of persons other than himself and his firm. The plaintiff did not submit interrogatories to the jury in order to determine its findings on each of the plaintiffs claims, and the jury rendered a general verdict for the defendants.

In accordance with the general verdict rule, we “presume that the jury found every issue in favor of the prevailing party.” Finley v. Aetna Life & Casualty Co., supra, 202. Therefore, irrespective of any finding of the jury regarding the plaintiffs contributory negligence, we presume that: (1) the plaintiff did not prove that Arnone was negligent; (2) any actions taken by Arnone were done with the full knowledge, acquiescence and participation of the plaintiff; and (3) any damage to the plaintiff was caused as the result of the negligence of persons other than Arnone. Because of these presumptions, any possible error of the trial court in instructing the jury on Arnone’s special defense of contributory negligence would be harmless.

The judgment is affirmed.

In this opinion the other justices concurred.

       Section 2.2.2 of the final contract provided: “Undisclosed ‘Deferred Income’. The Purchase Price will be reduced in an amount equal to the aggregate amount of money (if any) received by the Company, directly or by any of its employees or agents, at or prior to the Closing Date, which is attributable to services to be rendered subsequent to the Closing Date, except to the extent that any of such money received has been included in an amount set forth on the Closing Balance Sheet . . . .” Section 2.2.4 of the proposed contract became § 2.2.2 of the final contract, with some minor changes.

       Arnone and Haims and Company were not retained to represent the plaintiff for the purposes of the buy-out, but answered certain specific questions when requested to do so. Arnone and Haims and Company were the accountants that reviewed Watchguard’s books at the end of the year using the financial data provided by Watchguard’s own comptroller. Haims and Company did not regulate Watchguard’s deferred income account, and when requested to verify the account for purposes of the buy-out, would not do so because they had not prepared or examined the account.

       The full instruction to the jurors by the trial court was as follows: “[I]n this case you will be given the opportunity to ask written questions of any of the witnesses who are called to testify in this case. Please keep in mind, however, some parameters. Asking questions [is] the primary responsibility of the lawyers. That is what they are getting paid for, to ask questions of the witnesses. You won’t be hearing me ask too many questions. Every once in a while I do in a jury case because I feel that there is some kind of ambiguity.
      “But it is true, talking with jurors after a case, they have said to me on several occasions, we were dying to ask a witness a question. And it just never came out and so forth. Because I have told jurors in the past, well, you have to remember as skilled technicians these lawyers may want to bring out certain evidence in another witness. In other words, X may be on the stand and you are dying to know something but they would just as soon have it brought out for their own purposes by witness Y.
      “So I have said, generally speaking, please be patient and hopefully by the end of the case all your questions will have been answered. Nonetheless it is true that quite often jurors have said, we wish we could ask some questions of witnesses. Well, we are going to give you the opportunity to ask questions of the witnesses in this case. But as I say, under some parameters, keeping in mind please that it is the primary responsibility of the lawyers to ask questions. So you are not encouraged to ask a large amount of questions.
      “After the lawyers have finished questioning a witness what I am going to do is, I am going to ask any of you if you have any questions of the witnesses. I will just say, anybody have any questions of witness X, and that includes the alternates. If you do, just raise your hand and then we will send you into your headquarters there with a written pad and write down the questions because the questions must be in writing. When I get the question[s] back I will go over [them] with the lawyers.
      “Now, it may be that your question cannot properly be asked under our Connecticut laws. You say why. Well, you have to remember that . . . we have a lot of law on what kind of questions can be asked and what kind can’t. It is not an attempt to keep you away from knowing what is going on. It is an attempt that has been going on for years and years ... to make sure that the trial is fair. . . .
      “So we do have a lot of rules about evidence which is why I will go over your question with the lawyers. It may be that it can’t properly, under our rules, be asked. Sol will bring you back and tell you, sorry about that question. We can’t ask it. And I don’t want anybody to be disturbed. It is not that it wasn’t—I’m sure it would be an intelligent question and a good question but it may not be able to be asked. So please don’t infer from that that it was some question that really wasn’t a good question. It just means it violates one of our numerous rules of evidence. . . .
      “So if you hear a witness and listen to a witness and there is something you still feel you really want to know then we will give you that opportunity.”

       Thus, contrary to the plaintiff’s assertion, the trial court did not “encourage” questions by the jury.

       General Statutes § 51-14 provides: “rules of court, disapproval of by general assembly, hearings, (a) The judges of the supreme court, the judges of the appellate court, and the judges of the superior court shall adopt and promulgate and may from time to time modify or repeal rules and forms regulating pleading, practice and procedure in judicial proceedings in courts in which they have the constitutional authority to make rules, for the purpose of simplifying proceedings in the courts and of promoting the speedy and efficient determination of litigation upon its merits. The rules of the appellate court shall be as consistent as feasible with the rules of the supreme court to promote uniformity in the procedure for the taking of appeals and may dispense, so far as justice to the parties will permit while affording a fair review, with the necessity of printing of records and briefs. Such rules shall not abridge, enlarge or modify any substantive right nor the jurisdiction of any of the courts. Subject to the provisions of subsection (b), such rules shall become effective on such date as the judges specify but not in any event until sixty days after such promulgation.
      “(b) All statutes relating to pleading, practice and procedure in existence on July 1,1957, shall be deemed to be rules of court and shall remain in effect as such only until modified, superseded or suspended by rules adopted and promulgated by the judges of the supreme court or the superior court pursuant to the provisions of this section. The chief justice shall report any such rules to the general assembly for study at the beginning of each regular session. Such rules shall be referred by the speaker of the house or by the president of the senate to the judiciary committee for its consideration and such committee shall schedule hearings thereon. Any rule or any part thereof disapproved by the general assembly by resolution shall be void and of no effect and a copy of such resolution shall thereafter be published once in the Connecticut Law Journal.
      “(c) The judges or a committee of their number shall hold public hearings, of which reasonable notice shall be given in the Connecticut Law Journal and otherwise as they deem proper, upon any proposed new rule or any change in an existing rule that is to come before said judges for action, and each such proposed new rule or change in an existing rule shall be published in the Connecticut Law Journal as a part of such notice. A public hearing shall be held at least once a year, of which reasonable notice shall likewise be given, at which any member of the bar or layman may bring to the attention of the judges any new rule or change in an existing rule that he deems desirable.
      “(d) Upon the taking effect of such rules adopted and promulgated by the judges of the supreme court pursuant to the provisions of this section, all provisions of rules theretofore promulgated by the judges of the superior court shall be deemed to be repealed.”

       The constitution of Connecticut, article first, § 8, provides in pertinent part: “In all criminal prosecutions, the accused shall have a right to . . . [a] public trial by an impartial jury.” Although by its terms this provision applies only to criminal cases, we assume that the general right to a jury trial embodied in article first, § 19, includes the right to an impartial jury.

       In this respect, we disagree with the suggestion of the court in DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 517 (4th Cir. 1985), on which the plaintiff relies, that when a juror’s question reflects consideration of the evidence, “the questioning juror has begun the deliberating process with his fellow jurors.”

       See United States v. Johnson, 914 F.2d 136,137-39 (8th Cir. 1990) (practice within discretion of trial court, but criticized); United States v. Nivica, 887 F.2d 1110, 1123 (1st Cir. 1989), cert. denied, 494 U.S. 1005, 110 S. Ct. 1300, 108 L. Ed. 2d 477 (1990) (practice within discretion of trial court, but not favored); United States v. Land, 877 F.2d 17, 19 (8th Cir. 1989), cert. denied, 493 U.S. 894,110 S. Ct. 243,107 L. Ed. 2d 194 (1989) (practice matter of discretion for trial judge, but procedure implemented was “somewhat troubling”); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 516-17 (4th Cir. 1985) (procedure within discretion of trial court, but practice implemented was “fraught with peril”); United States v. Witt, 215 F.2d 580, 584 (2d Cir.), cert. denied sub nom. Talanker v. United States, 348 U.S. 887, 75 S. Ct. 207, 99 L. Ed. 697 (1954) (like witness questioning by judge, procedure within judge’s discretion); State v. LeMaster, 137 Ariz. 159,163-65, 669 P.2d 592 (1983) (within discretion of trial judge, but problems noted); State v. Taylor, 25 Ariz. App. 497, 499-500, 544 P.2d 714 (1976) (discretion of trial court; practice of exercising discretion encouraged); Nelson v. State, 257 Ark. 1, 4, 513 S.W.2d 496 (1974) (trial court did not err in allowing questions by jurors); Ratton v. Busby, 230 Ark. 667, 682-83, 326 S.W.2d 889 (1959) (not error to permit questions by jurors); People v. McAlister, 167 Cal. App. 3d 633, 644, 213 Cal. Rptr. 271 (1985) (discretion of trial judge; proper procedure to have jurors write out questions and have court and counsel review prior to submission to the witness); Ferrara v. State, 101 So. 2d 797, 801 (Fla. 1958) (in appropriate circumstances, questioning proper); Gonzalez v. Prestress Engineering Corporation, 194 Ill. App. 3d 819, 826, 551 N.E.2d 793 (1990) (denial of right of jurors to ask questions in discretion of trial court); Carter v. State, 250 Ind. 13,15-16, 234 N.E.2d 650 (1968) (procedure should not be encouraged, but should not be forbidden); Matheis v. Farm Feed Construction Co., 553 N.E.2d 1241 (Ind. App. 1990) (procedure proper; in trial court’s discretion); Louisville

        Bridge & Terminal Co. v. Brown, 211 Ky. 176, 183, 277 S.W. 320 (1925) (procedure likely to “aid the jury in finding out and learning the real facts” and in understanding the evidence); People v. Heard, 388 Mich. 182,184-88, 200 N.W.2d 73 (1972) (discretion of trial court to allow practice; may aid fact-finding process); People v. Stout, 116 Mich. App. 726, 731-33, 323 N.W.2d 532 (1982) (practice within discretion of trial judge and should be permitted because it aids fact-finding process); Lucas v. State, 381 So. 2d 140, 144-45 (Miss. 1980) (should be used only where, in trial court’s discretion, it would aid jury in understanding material issue); Sparks v. Daniels, 343 S.W.2d 661, 666-68 (Mo. App. 1961) (procedure similar to judge asking questions of witness; caution must be used); State v. Rodriguez, 107 N.M. 611, 615, 762 P.2d 898 (1988) (court must carefully consider prejudice when procedure used with criminal defendant); Sitrin Bros., Inc. v. Deluxe Lines, Inc., 35 Misc. 2d 1041, 1042-43, 231 N.Y.S.2d 943 (1962) (not error for trial court to allow juror questioning); State v. Howard, 320 N.C. 718, 725-26, 360 S.E.2d 790 (1987) (practice within trial court’s discretion; better practice for jurors to write questions); Reese v. Pittsburgh, 313 Pa. 32, 34, 169 A. 366 (1933) (questioning by jurors proper); State v. Barrett, 278 S.C. 414, 418-19,297 S.E.2d 794 (1982), cert. denied, 460 U.S. 1045, 103 S. Ct. 1445, 75 L. Ed. 2d 800 (1983) (suggest jurors write out questions and court and attorneys view outside hearing of jury; court should discourage juror questions); Raynor v. State, 1 Tenn. Crim. App. 556, 561-62, 447 S.W.2d 391 (1969) (potential problems with practice listed); State v. Johnson, 784 P.2d 1135, 1144-45 (Utah 1989) (practice not encouraged, but court should not “harness the human mind”); compare Matchett v. State, 257 Ga. 785, 786, 364 S.E.2d 565 (1988) (“direct questions from a juror to a witness are generally not permitted in this state”); State v. Williamson, 247 Ga. 685, 686, 279 S.E.2d 203 (1981) (“[i]n Georgia, the practice [of jurors directly questioning witnesses] is not permitted”).

       All of the questions submitted were, in fact, allowed by the trial court.