author: Peters, C. J.

text:
    Andrew B. Bowman v. 1477 Central Avenue Apartments, Inc., et al.
    (12992)
    Peters, C. J., Healey, Shea, Santaniello and Schaller, Js.
    Argued March 10
    decision released April 21, 1987

      Francis T. Mandanici, for the appellants (defendants).

      George J. Markley, for the appellee (plaintiff).
   Peters, C. J.

The principal issue on this appeal is whether the defendants implicitly consented to the reference of their case to an attorney referee by failing to object to the reference until after the referee had rendered his decision. The plaintiff, Andrew B. Bowman, brought an action in three counts against the defendants, 1477 Central Apartments, Inc. (1477 Central), and John C. Mandanici, Jr., president of 1477 Central. The action sought damages for the defendants’ refusal to pay legal fees that they allegedly owed the plaintiff. The case was referred to attorney Phillip Baroff, an attorney referee appointed pursuant to General Statutes § 52-434 (a) (4). Following a hearing and the submission of briefs by the parties, the referee issued a report finding for the plaintiff on all three counts of his complaint. The trial court, Jacobson, J., rendered judgment in accordance with the referee’s report. The defendants appealed to the Appellate Court. This court subsequently transferred the appeal to itself. We find no error.

The record discloses the following facts. From 1982 to 1984, the plaintiff, an attorney in private practice, rendered various legal services to the defendants. The plaintiff represented the defendant 1477 Central in connection with certain business matters. He also represented the defendant Mandanici in a criminal trial before the United States District Court for the District of Connecticut, and in the appeal of the judgment in that case to the Second Circuit Court of Appeals.

The plaintiff’s complaint, dated April 9,1985, alleged in the first count that the defendant 1477 Central had failed to pay $2112.50 in legal fees that it owed the plaintiff. In the second and third counts, the complaint alleged that the defendant Mandanici had failed to pay approximately $17,000 in legal fees that he owed for the plaintiff’s services in connection with the criminal trial and the appeal, respectively. The defendants’ answer admitted that the plaintiff had rendered legal services pursuant to the defendants’ request, but denied that it owed the plaintiff any legal fees.

Following its assignment to the trial list, the case was referred to an attorney referee. Neither party raised any objection to the referral, either before or during the hearing before the designated referee. Following the hearing, which took place on December 12 and 13,1985, and the submission of posttrial memoranda of law, the defendants obtained, over the plaintiff’s objection, permission to file an amended answer. The amended answer included a special defense to the third count of the complaint on behalf of the defendant Mandanici. The special defense alleged that the plaintiff had failed substantially to perform his agreement to represent the defendant Mandanici on the criminal appeal because he had failed to allow the defendant and his brother, Attorney Francis T. Mandanici, an opportunity to review and contribute to the appellate brief.

Thereafter, on April 1, 1986, the referee issued a report finding for the plaintiff on all counts and ordering the defendants to pay the plaintiff approximately $19,000, plus costs and interest. The defendants filed a motion to correct the report, which the referee denied.

On May 12, 1986, for the first time, the defendants objected to the referral of the case to an attorney referee. The defendants claimed that our decision in Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986), released on April 29,1986, had “[made] it clear” that referral to the referee was improper without the consent of the parties. The defendants requested “that the matter be assigned to a judge for a full evidentiary trial ab initio.” (Emphasis added.) The trial court, Jacobson, J., overruled the objection. On June 10, 1986, the trial court rendered judgment for the plaintiff in accordance with the referee’s report. This appeal followed.

On appeal, the defendants claim that the trial court erred in: (1) failing to obtain their consent before referring the case to an attorney referee, and overruling their post-report objection to the reference; (2) rendering judgment without ruling on the defendants’ objections and exceptions to the referee’s report; and (3) rendering judgment in accordance with the referee’s finding that the defendant Mandanici had failed to prove his special defense. We will consider each of these claims in turn.

I

The defendants’ first claim is that the trial court violated their state and federal constitutional rights by failing to obtain their consent to the referral of the case to an attorney referee. See Seal Audio, Inc. v. Bozak, Inc., supra. In Seal Audio, Inc., we held that General Statutes § 52-434 (a) (4), governing the appointment of attorney referees, requires that the parties consent to the referral of their case to a referee. Id., 513-15. Our decision was based on the legislative history of the statute and the juxtaposition of § 52-434 (a) (4) with other portions of § 52-434 that specifically require such consent. Id., 512-14. Because § 52-434 (a) (4) requires the parties’ consent before a case may be referred to an attorney referee, we held, such referrals do not violate the parties’ rights to due process of law. Id., 515.

The defendants argue that because they never expressly consented to the referral of their case to an attorney referee, the referral deprived them of due process of law and other state and federal constitutional rights. We disagree. The defendants “utterly neglected” to raise the issue of their lack of consent until after the hearing had ended and the referee had filed his report. Id., 516. “[T]he failure to raise the issue of a referee’s disqualification either before or during the trial ‘can be construed as the functional equivalent of “consent in open court.” ’ ” Id., 517, quoting Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985). The defendants, therefore, are deemed to have given their implicit consent to the referral by failing to raise their objection in a timely fashion. Seal Audio, Inc. v. Bozak, Inc., supra; see also Herrmann v. Summer Plaza Corporation, 201 Conn. 263, 274, 513 A.2d 1211 (1986); Timm v. Timm, supra. The fact that the defendant did not expressly consent to the referral did not deprive the referee of authority to hear and decide the case. Seal Audio, Inc. v. Bozak, Inc., supra, 516.

The defendants argue that their objection to the referral was timely because they raised it before the trial court rendered judgment. In Seal Audio, Inc., by contrast, the defendant did not raise the issue of lack of consent until after final judgment had been rendered and an appeal filed. Id., 517. This is a distinction without a difference. If the defendants had objections to the referral, they were obliged to raise them “with reasonable promptness after learning the ground” for their objection. Henderson v. Department of Motor Vehicles, 202 Conn. 453, 462, 521 A.2d 1040 (1987); see Postemski v. Landon, 9 Conn. App. 320, 323, 518 A.2d 674 (1986); Christ-Janer v. A.F. Conte & Co., 8 Conn. App. 83, 90-91, 511 A.2d 1017 (1986). The appropriate time to object in this case would have been at the time of the referral, or at least prior to the commencement of the hearing before the referee. “We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967); Seal Audio, Inc. v. Bozak, Inc., supra. We conclude, in these circumstances, that the referral to an attorney referee did not deprive the defendants of their constitutional rights.

II

The defendants’ second claim is that the trial court erroneously rendered judgment in accordance -with the attorney referee’s report without first ruling on their objections and exceptions to the report. The facts underlying this claim are as follows. After the referee had issued his report and denied the defendants’ motion to correct the report, the defendants, within the time limits imposed by Practice Book §§ 439 and 441, filed exceptions and objections to the report with the trial court. Before these papers had been filed, at a June 2, 1986 hearing on the defendants’ objection to the referral, the trial court, after overruling the objection, was about to render judgment “as per the report [of the referee].” Defense counsel informed the court, however, that the defendants intended to file their exceptions and objections to the report later that day. The trial court said that it would rule on the exceptions and objections once they were filed and once the defendants had provided him with a transcript of the hearing before the referee. On June 10, 1986, the trial court formally rendered judgment in accordance with the referee’s report.

On July 17,1986, the defendants filed a motion with the trial court requesting it to articulate whether it had reviewed and ruled on the defendants’ objections and exceptions, and reviewed the transcript of the hearing before the referee, before rendering judgment. The trial court denied the motion. Upon the plaintiff’s motion, however, it agreed to reconsider its denial. At an August 21,1986 hearing on the defendants’ motion for articulation, the plaintiff’s attorney pointed out that there was no indication on the record that the trial court had overruled the defendants’ exceptions and objections, and suggested that this might have been the result of a clerical error. The trial court indicated that it would not have rendered judgment without first ruling on the defendants’ objections and exceptions. The trial court said that its “normal procedure” was to issue such rulings before rendering judgment, adding: “Who can remember that far back, but I normally do that. So, I did it.” The trial court indicated that the articulation hearing transcript would serve as its articulation.

The defendants claim that they were entitled to express prejudgment rulings from the trial court on their exceptions and objections, and that the trial court’s articulation was an insufficient substitute for such express rulings. The defendants argue, therefore, that they were denied their state and federal constitutional rights to due process of law and the equal protection of the laws, and are entitled to a new trial before a “real judge.” We disagree.

A party’s right to object and except to a referee’s factual findings includes the right to trial court rulings on these objections and exceptions before judgment is rendered. Walker v. Ambulance Service of Manchester, Inc., 7 Conn. App. 191, 193, 508 A.2d 446 (1986). In Walker, on which the defendants rely, the Appellate Court held that, where the record revealed no evidence that a party’s objection to a referee’s report had been ruled upon prior to judgment, the objecting party was entitled to a new hearing on the objection. Id. In this case, by contrast, the record does contain evidence, adduced at the August 21, 1986 hearing on the defendants’ motion for articulation, that the trial court did rule on the defendants’ exceptions and objections prior to judgment. In the absence of a contrary showing by the defendants, we presume that the trial court’s statement that it had overruled the defendants’ exceptions and objections before rendering judgment was accurate. State v. Jones, 193 Conn. 70, 89 n.13, 475 A.2d 1087 (1984). Public officers acting in their official capacity are presumed to have acted legally and properly. Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 6, 513 A.2d 1218 (1986); Parham v. Warden, 172 Conn. 126, 134, 374 A.2d 137 (1976); Connecticut State Employees Assn. v. Board of Trustees, 165 Conn. 757, 766, 345 A.2d 36 (1974).

The defendants claim that the trial court’s articulation was equivocal, not the “express ruling” to which they were entitled. Although the record of the articulation hearing indicates that the trial court had difficulty recalling whether it had ruled on the defendants’ objections and exceptions, the trial court ultimately concluded that it had done so. The defendants concede that there is no direct evidence on the record to refute this conclusion. The mere fact that the rulings were never noted in the court file does not rebut the presumption of regularity afforded the official actions of the trial court. The record suggests that the absence of such notations was the result of a clerical error, rather than an omission by the trial court. We conclude, therefore, that the defendants have not met their burden of showing that the trial court failed to rule on their objections and exceptions before rendering judgment.

III

The third and final claim on this appeal, raised solely on behalf of the defendant Mandanici (the defendant), is that the trial court erred in accepting, over the defendant’s objections and exceptions, the referee’s finding that he had failed to prove his special defense to the third count of the complaint. That special defense alleged that the plaintiff had violated terms of his agreement to represent the defendant under which he was allegedly required to allow the defendant and his attorney brother to review and contribute to the appellate brief. The defendant claims that the evidence at trial indisputably shows that these terms were part of the agreement, and that the plaintiff failed to honor them. We disagree.

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book, 1978, § 3060D [now § 4061]. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous. ” (Emphasis added.) Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Cookson v. Cookson, 201 Conn. 229, 242-43, 514 A.2d 323 (1986).

The defendant’s claim involves two principal questions: (1) whether the plaintiffs agreement to represent the defendant on the criminal appeal required an opportunity for the defendant and his brother to review and contribute to the appellate brief; and (2) whether the plaintiff breached the contract by failing to comply with these conditions. These are matters of contract interpretation, and questions of fact. Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981). Our review of the record indicates that, contrary to the defendant’s claim, conflicting evidence was adduced on these questions. Where the evidence is in conflict, its probative force is for the trier of fact to determine. Robert Lawrence Associates, Inc. v.Del Vecchio, 178 Conn. 1, 14, 420 A.2d 1142 (1979); Kowalsky Properties, Inc. v. Sherwin-Williams Co., 7 Conn. App. 136, 140, 508 A.2d 43 (1986). The referee’s factual findings in favor of the plaintiff on the third count of the complaint, and his concomitant finding that the defendant had not proved his special defense, were not unsupported or mistaken as a matter of law. See Cookson v. Cookson, supra, 243; Koizim v. Koizim, 181 Conn. 492, 498, 435 A.2d 1030 (1980). Because the referee’s findings were not clearly erroneous, the trial court did not err in rendering judgment in accordance with the report.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 52-434 (a) (4) provides in relevant part: “state REFEREES. (a) APPOINTMENT OF RETIRED JUDGES AND MEMBERS OF THE BAR. CASES REFERRED. ... (4) In addition to the state referees who are appointed pursuant to subdivision (1), (2) or (3) of this section, the chief justice may appoint, from qualified members of the bar of the state, as many state referees as he may from time to time deem advisable or necessary. No appointment of a member of the bar may be for a term of more one year.”

       The record does not indicate the date of the referral, or the name of the trial court that ordered it.

       In support of their claim, the defendants invoke the due process clauses of the federal and state constitutions; U.S. Const., arts. V, XIV; Conn. Const., art. 1, §§ 8, 10; and the equal protection clauses of both constitutions. U.S. Const., art. XIV; Conn. Const., art. I, § 20, and amend. XXI. The defendants also claim that they had a state constitutional right to have their case heard before a judge nominated by the governor and appointed by the General Assembly, by virtue of the Connecticut Constitution, article fifth, § 2, as amended by amendment twenty, which provides: “Sec. 2. Section 2 of article fifth of the constitution is amended to read as follows: The judges of the supreme court, of the appellate court and of the superior court shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed. They shall hold their offices for the term of eight years, but may be removed by impeachment. The governor shall also remove them on the address of two-thirds of each house of the general assembly.”
      The defendants’ claim based on article fifth, § 2, as amended, is disposed of by our opinion in Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986). See footnote 5, infra. As to the equal protection claim, the defendants do not argue that the statutory scheme for the referral of cases to referees, either facially or as applied in this case, establishes a classification, arbitrary or otherwise. See generally State v. Reed, 192 Conn. 520, 531, 473 A.2d 775 (1984). “Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. Cheney v. Strasburger, 168 Conn. 135, 142, 357 A.2d 905 (1975). . . .” Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984).

       General Statutes § 52-434 (a) (1) through (3), which provide for the appointment of retired judges as state referees, allow for references to such referees “with the written consent of the parties or their attorneys.”

       We also held that, because attorney referees are factfinders with no power to render judgments, their appointments did not violate the Connecticut Constitution, article fifth, § 2. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 507-508, 508 A.2d 415 (1986).

       The defendants attempt to excuse their failure to object to the referral in a timely fashion by pointing out that our decision in Seal Audio, Inc., was not released until April 29,1986, after the attorney referee had rendered his decision. Seal Audio, Inc., however, did not announce a new rule of law, but made clear that an existing rule, embodied in General Statutes § 52-434 (a) (4), required that referrals to attorney referees be made with the consent of the parties. The timing of Seal Audio, Inc., has no bearing on our decision in this case.
      The defendants also claim that the reference to an attorney referee deprived them of a hearing before an impartial arbiter, because the referee may have had an “unconscious bias” in favor of the plaintiff, “a brother [practicing] attorney.” The defendants, however, raised no claim of bias at any time prior to the rendering of judgment. In fact, they expressly waived a potential conflict of interest claim based on the referee’s prior representation of the defendant Mandanici. The defendants are therefore deemed to have waived any possible claim of bias. See Practice Book § 3063 (now § 4185); Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 517, 508 A.2d 415 (1986); Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985); Krattenstein v. G. Fox & Co., 155 Conn. 609, 615-16, 236 A.2d 466 (1967).

         “[Practice Book] Sec. 439. exceptions to report or finding
      “If a committee fails to correct a report or finding in compliance with a motion to correct, the moving party may, within ten days after the decision on the motion to correct, file exceptions seeking corrections by the court in the report or finding. The court will not consider an exception unless ts subject matter has been submitted to the committee in a motion to correct, provided that this requirement shall not apply to exceptions taken to corrections in the report or finding made after it was filed; nor will the court correct a finding of fact unless a material fact has been found without evidence or the committee has failed to find an admitted or undisputed fact, or has found a fact in such doubtful language that its real meaning does not appear. A party excepting on these grounds must file with his exceptions a transcript of the evidence taken before the committee, except such portions as the parties may stipulate to omit.”
      “[Practice Book] Sec. 441. time to pile objections
      “Objections to the acceptance of a report shall be filed within two weeks after the filing of the report or finding, or if a motion to correct the report or finding has been made, within two weeks from the filing of the decision on the motion.”

       In their brief, the defendants suggest that their right to a prejudgment ruling on their exceptions and objections required that these matters appear and be heard on the short calendar before judgment. In this case, the matters at issue did appear on the short calendar, but not until after judgment had been rendered. At oral argument, however, the defendants expressly disavowed any claim that the absence of a short calendar hearing deprived them of legally protected procedural rights. We note, moreover, that the defendants raised no objection when the trial court indicated, at the June 2, 1986 hearing on the defendants’ objection to the reference, that it would rule on the exceptions and objections as soon as it had received the papers and the transcript. Accordingly, the defendants are deemed to have waived any potential claim of prejudice arising from their deprivation of a prejudgment short calendar hearing. See Practice Book § 3063 (now § 4185); Herrmann v. Summer Plaza Corporation, 201 Conn. 263, 274, 513 A.2d 1211 (1986).

       In addition to challenging the trial court’s judgment in this regard, the defendant claims error in the referee’s finding on his special defense and his denial of the defendant’s motion to correct this finding. The right of appeal, however, lies only from a “final judgment.” Practice Book § 4000 (formerly § 3000). An attorney referee is “simply a factfinder whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court.” Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 502, 508 A.2d 415 (1986). While we must consider the merits of the referee’s findings in the course of reviewing the trial court’s actions, the dispositive issue on appeal is whether the trial court erred in overruling the defendant’s objections and exceptions and rendering judgment in accordance with the report. See Midland Ins. Co. v. Universal Technology, Inc., 199 Conn. 518, 521-22, 508 A.2d 427 (1986).


source: Caselaw Access Project

author: Dannehy, J.

license: Public Domain

text:
    Courtney Lane v. Aetna Casualty and Surety Company
    (12824)
    Peters, C. J., Dannehy, Santaniello, Callahan and F. Hennessy, Js.
    Argued January 13
    decision released April 21, 1987

      William F. Gallagher, with whom, on the brief, were Robert C. Mirto and Evelyn A. Barnum, for the appellant (plaintiff).

      Randolph E. Richardson II, with whom, on the brief, was John V. Griffin, Jr., for the appellee (defendant).
   Dannehy, J.

The dispositive issue in this appeal is whether the plaintiffs failure to exhaust the liability coverage of a tortfeasor is a coverage issue to be decided by arbitration, or is a threshold issue to be decided by the court. The undisputed facts of the case indicate that the plaintiff, Courtney Lane, was injured in an automobile collision that occurred on April 9, 1983, while she was a passenger in a vehicle which was parked in the driveway of her home (plaintiff’s vehicle). The vehicle which struck the plaintiff’s vehicle was owned by Stephen Esposito and was operated at the time of the collision by Mark Esposito. Two other persons seated in the plaintiff’s vehicle were also injured in the collision. Both vehicles were insured by Aetna Casualty and Surety Company, the defendant in this action.

The Esposito policy afforded total liability coverage of $100,000 to the three persons injured in the accident. The plaintiff received $43,000 in settlement of her claim, and an additional $47,000 was received by the other injured persons for a total settlement of $90,000. In addition, property damage claims were settled for $7353.61, leaving a balance of $2646.39 unpaid under the Esposito policy.

After the third party settlement, the plaintiff asserted a claim for payment and demanded arbitration pursuant to the underinsured motorist provision of the policy held by her father, James A. Lane (Lane policy), with the defendant. The Lane policy provides that the insurer “will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury: (1) sustained by a covered person; and (2) caused by an accident.” The plaintiff is a “covered person” under the policy, and an underinsured motor vehicle is included in the definition of an “uninsured motor vehicle” in the policy. The policy provides liability coverage for two vehicles of $500,000 per accident and underinsured motor vehicle coverage of $40,000 per accident. With stacking, the total amount of underinsurance coverage is $80,000.

An amendment to the policy’s uninsured motorist coverage provisions states that the insurer “will pay under this coverage only after the limits of liability of any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.” Similar “exhaustion” language is found in General Statutes § 38-175c (b) (1). Another amendment to the policy provides that “any insurance we provide with respect to a vehicle you do not own, to which other similar insurance is applicable, shall be excess over such other applicable insurance.” Finally, the policy contains an arbitration provision which provides that if the insurer and a covered person disagree: “1. Whether that person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle; or 2. On the amount of damages; The covered person may make a written demand for arbitration . . . .”

Pursuant to the arbitration provision, the plaintiff applied for an order to proceed with arbitration, and a hearing on the application was held before a state trial referee in July, 1985. At the hearing, the plaintiff maintained that an arbitrable question existed as to whether she should receive payment under the uninsured motorist coverage of the policy even though there was $2646.39 remaining under the Esposito policy. She argued that her claims and those of the others injured in the same accident were worth well over $100,000 but that the defendant, as insurer under the Esposito policy, had refused to settle the claims for the full $100,000 limit of the Esposito policy. According to the plaintiff, the defendant withheld a small portion of the monies available under the Esposito policy in order to discourage the parties from pursuing their liability claims at trial. In this way the defendant might also defeat a claim for underinsured motorist coverage under the Lane policy by arguing that the Esposito policy had not been exhausted. The defendant’s response to these allegations was simply that the exhaustion language of General Statutes § 38-175c (b) (1) had not been satisfied and therefore the plaintiff was precluded from attempting to compel arbitration of her underinsured motorist claim.

The court denied the plaintiff’s application to proceed with arbitration, ruling first that the question of whether the plaintiff could compel arbitration when there still was $2646.39 remaining under the Esposito policy was a threshold question for the court to decide. The court then decided the merits of the question in the defendant’s favor. In an articulation filed in May, 1986, the court stated that “the plaintiff’s failure to exhaust the underlying automobile liability coverage precluded her from attempting to compel the defendant to submit to arbitration of the underinsured motorist coverage claim.” The court also noted that the appropriate action to assert a claim that the defendant had negotiated in bad faith would be a suit for fraud rather than an action to compel arbitration.

It is from the denial of her application to proceed with arbitration that the plaintiff appeals. She maintains that the court erred: (1) in holding that her failure to exhaust the liability coverage of the tortfeasor was not a coverage issue to be decided by arbitration; (2) in ruling that the underinsured benefits were not available to her because of the money remaining under the Esposito policy; and (3) in refusing to find that the underinsured motorist provision in the Lane policy which required exhaustion of the liability limits of the tortfeasor is void as contrary to public policy. We agree with the plaintiff that the question of whether the $2646.39 remaining under the Esposito policy precludes the plaintiff from attempting to collect under the underinsured motorist provision of the Lane policy, is essentially a question of coverage which must be submitted to arbitration. Because of this holding, we need not consider the plaintiffs two remaining claims.

The arbitrability of a particular dispute is a question for the court to decide. The duty to arbitrate, however, may be created by contract or by statute. Security Ins. Co. of Hartford v. DeLaurentis, 202 Conn. 178, 182-83, 520 A.2d 202 (1987); W. J. Megin, Inc. v. State, 181 Conn. 47, 49, 434 A.2d 306 (1980). Unless a statute provides otherwise, “[t]he answer to the question whether or not the court shall direct a party to proceed with arbitration is embodied in the insurance contract.” Visselli v. American Fidelity Co., 155 Conn. 622, 624, 237 A.2d 561 (1967).

The insurance policy involved in the present appeal states that a demand for arbitration may be made if there is a disagreement concerning (1) whether the covered person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle, or (2) the amount of damages. The question involved in the present appeal does not appear to fall into either of these categories. General Statutes § 38-175c (a) (1), however, provides that every policy “issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding.” This language, which was added to § 38-175c (a) in 1979, legislatively overruled our holding in Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 231 A.2d 531 (1967), that an insurer could contractually limit the uninsured motorist issues to be decided by arbitration and thus exclude coverage questions. See Wilson v. Security Ins. Group, 199 Conn. 618, 623, 509 A.2d 467 (1986). The intent and effect of the quoted language of § 38-175c (a) (1) “is to remove from the court and to transfer to the arbitration panel the function of determining, in the first instance, all issues as to coverage under automobile liability insurance policies containing uninsured motorist clauses providing for arbitration.” (Emphasis added.) Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 42, 434 A.2d 304 (1980).

Our prior decisions make clear that because of the language of § 38-175c (a) (1), policies like the one at issue here which do not expressly provide for the resolution of coverage disputes by arbitration must nonetheless be construed to include such a provision. See Wilson v. Security Ins. Group, supra; Oliva v. Aetna Casualty & Surety Co., supra, 41-42. If the question of whether the plaintiff should receive payment under the uninsured motorist provision of the Lane policy even though $2646.39 remains under the Esposito policy is one of coverage, then such a question should not have been decided by the court but instead should have been submitted to arbitration.

In determining whether the question presented here involves a coverage dispute, we look for guidance to several previous decisions of this court which interpret the scope of § 38-175c. We recently concluded that the issue of whether a policy’s uninsured motorist coverage provision extended benefits to accidents involving underinsured vehicles was essentially a coverage question. Security Ins. Co. of Hartford v. DeLaurentis, supra, 188. Similarly, in Wilson v. Security Ins. Group, supra, 623-24, we held that questions involving whether fleet policies could be stacked and whether uninsured motorist benefits should be set off by the amount of workers’ compensation benefits collected were ones of coverage. More importantly, in a case factually similar to the present one, we determined that the question of whether the nonfulfillment of a policy provision concerning the timely presentation of claims bars recovery, was essentially one of coverage. Oliva v. Aetna Casualty & Surety Co., supra, 41.

The defendant maintains that the present case differs from prior cases like Oliva and its progeny, in that the question in those cases dealt with the policy itself and not with statutory language. See, e.g., Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 453 A.2d 1158 (1983). According to the defendant, therefore, those cases did not present threshold issues of law for decision before requiring arbitration but instead involved matters to be considered by the arbitrator. In the present case, however, the defendant contends that the language of § 38-175c (b) (1) which provides that uninsured motorist coverage is available only after the limits of the tortfeasor’s liability coverage “have been exhausted by payment of judgments or settlements,” sets forth an absolute statutory prerequisite to arbitration.

The weakness of this argument is that the exhaustion language embodied in § 38-175c (b) (1) has been incorporated into the Lane policy and therefore the issue presented involves interpreting both statutory and policy language. In Wilson v. Security Ins. Group, supra, we construed the language of § 38-175c (a) (1) providing for final determination of insurance coverage by arbitrators to make “no distinction between coverage issues governed wholly by the policy language and those which may also require the application of statutes or regulations in order to resolve them.” We further explained that “[t]he legislative purpose in providing arbitration as an expeditious method of dispute resolution . . . would be thwarted” if arbitrators were required to interpret policy language in one proceeding while the courts determined the effect of a statute in another. Id., 624. A contrary conclusion would contravene our holding in Oliva v. Aetna Casualty & Surety Co., supra, 42, that § 38-175c (a) (1) transfers to the arbitration panel “all issues as to coverage” where a policy includes a provision for arbitrating any uninsured claim. We see no reason to depart from the dictates of Wilson merely because in the present case the language of the policy essentially tracks the statutory provision.

Recently, in Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54, 523 A.2d 477 (1987), we held that the issue of whether motorcycle policies are governed by General Statutes § 38-175a et seq. was a threshold question to be determined by the court and not by arbitration. Our reasoning was that the dispute presented in that appeal concerned whether § 38-175c (a) was applicable to the policies in question; the dispute was not merely about the scope of coverage mandated by that section. Beloff v. Progressive Casualty Ins. Co., supra. In the present case, it is not disputed that § 38-175c applies to the policy in question. The defendant in its brief, in fact, relies entirely on the statutory language. It claims that under § 38-175c (a) (1), a party must exhaust underlying liability coverage as a prerequisite to the availability of underinsured motorist coverage benefits. The defendant asserts that because “[u]nder no definition may it be said that coverage provided by the underlying automobile liability policy was exhausted,” the trial court’s denial of the application for arbitration was proper.

The difficulty with the defendant’s position is that it shifts the focus from whether the particular issue presents a coverage question to whether the answer to the question itself will most likely be in the defendant’s favor. As we explained in Security Ins. Co. of Hartford v. DeLaurentis, supra, 187, “[t]he determination of arbitrability is dependent upon the scope of the agreement to arbitrate, not upon the relative strength or weakness of a party’s position on the disputed claim.” In Oliva v. Aetna Casualty & Surety Co., supra, for example, the plaintiff conceded that she had failed to comply with a policy provision concerning notice. Nevertheless, she applied for an order compelling arbitration of her claim for uninsured motorist coverage benefits. The trial court denied the application on the ground that the giving of notice was a condition precedent to arbitration. We found error, explaining that the question of whether nonfulfillment of a policy provision bars recovery is essentially one of coverage. Id., 41.

This reasoning applies with equal force to the present case. The Lane policy conditions the availability of uninsured motorist coverage benefits on the exhaustion of the limits of the tortfeasor’s liability policy. Whether the $2646.39 remaining under the Esposito liability policy precludes her from recovering uninsured motorist coverage benefits is, in essence, a question of coverage. The trial court should not have decided the question but should have required the parties to submit it to arbitration. The denial of the plaintiff’s application to proceed with arbitration was therefore erroneous.

There is error, the judgment is set aside and the case is remanded with direction to render judgment ordering that the defendant proceed with arbitration.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1985)] Sec. 38-175c. uninsured motorist coverage. . . .(b)(1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.”

       “[General Statutes (Rev. to 1985)] Sec. 38-175c. UNINSURED motorist coverage, (a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or Underinsured motor vehicle owned by such insured. Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1, 1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.”


author: Callahan, J. Peters, C. J.,

text:
    Manchester Sand and Gravel Company, Inc., et al. v. Town of South Windsor
    (12811)
    Peters, C. J., Healey, Shea, Callahan and F. Freedman, Js.
    Argued December 9, 1986
    decision released April 21, 1987

      Richard M. Rittenband, town attorney, with whom was Barry Guliano, for the appellant (defendant).

      James H. Throwe and Thomas W. Fahey, Jr., with whom was Anita D. Cobb, for the appellees (plaintiffs).
   Callahan, J.

This action was commenced to enjoin the town of South Windsor from enforcing a town ordinance passed on December 17, 1984, which prohibits trucks with a gross vehicle weight (gvw) in excess of 15,000 pounds from traveling over Rye Street, Graham Road, Troy Road, Nevers Road, Miller Road and Niederwerfer Road in South Windsor except while on a trip with a point of origin from or a destination on those streets or certain neighboring streets within the town. The action was commenced by the named plaintiff, Manchester Sand and Gravel Company, Inc., which obtained a temporary restraining order prohibiting the enforcement of the ordinance. Prior to a hearing on the named plaintiffs request for a permanent injunction, the town of East Windsor filed a substitute complaint and the city of New Britain, on motion, was allowed to intervene and file a substitute complaint. Both East Windsor and New Britain claimed an interest in the action and also requested injunctive relief.

The trial court, after hearing extensive testimony and viewing numerous exhibits, granted the plaintiffs’ request for a permanent injunction. The trial court filed a memorandum which indicated that it rested its decision on three grounds: (1) the ordinance violates the equal protection clauses of both the federal and state constitutions; (2) the ordinance regulates through truck traffic and such regulation has been preempted by the state by virtue of General Statutes § 14-298; and (3) there are no reasonable alternative routes available for through truck traffic.

We conclude that the South Windsor ordinance is invalid because it constitutes a regulation of through truck traffic, a function reserved to the state traffic commission by General Statutes § 14-298. Since this issue is dispositive of the case, it is unnecessary to address the other two issues. “Constitutional issues are not considered unless absolutely necessary to the decision of a case . . . .” State v. DellaCamera, 166 Conn. 557, 560-61, 353 A.2d 750 (1974); Alexander v. Robinson, 185 Conn. 540, 548, 441 A.2d 166 (1981).

The facts necessary for our determination may be stated briefly. Manchester Sand and Gravel Company, Inc. (Manchester Sand & Gravel), operates a concrete manufacturing and sand and gravel processing plant in Manchester, just south of the boundary between Manchester and South Windsor. It also has a sand and gravel pit in East Windsor, north of the north-south boundary line between East Windsor and South Windsor from which it obtains raw material to operate the plant in Manchester. Prior to the enactment of the ordinance in question, Manchester Sand & Gravel utilized trucks with a gvw in excess of 15,000 pounds to haul material between its pit in East Windsor and its plant in Manchester. The route normally taken by its trucks in making the trip took them through South Windsor and over Graham Road in South Windsor, one of the streets specified in the ordinance as prohibited to trucks with a gvw in excess of 15,000 pounds.

In addition, trucks with a gvw well in excess of 15,000 pounds were used by the city of New Britain, which is located about twenty miles southwest of South Windsor, to haul refuse from New Britain to the North Capitol Region landfill (NORCAP), which is located in East Windsor, at a site a short distance north of the South Windsor-East Windsor boundary line. The route normally traveled by these trucks also took them through South Windsor and over Rye Street in South Windsor, another of the streets specified in the ordinance as prohibited to trucks with a gvw in excess of 15,000 pounds. The trucks hauling for both Manchester Sand & Gravel and the city of New Britain made numerous daily trips.

The South Windsor ordinance, if valid, effectively closes, to trucks with a gvw in excess of 15,000 pounds, all roads that run directly between South Windsor and East Windsor on the north, except U.S. Route 5, which is located near the westerly boundary of both towns and Scantic Road, which is almost entirely in East Windsor, but intersects with Route 5 in South Windsor at its northerly boundary with East Windsor. East Windsor complains that if South Windsor is allowed to accomplish that result by ordinance it will route all through trucks emanating from points south of East Windsor, with a gvw in excess of 15,000 pounds and with a destination in East Windsor, over roads and bridges in East Windsor, particularly those leading to the NORCAP landfill and the sand and gravel pit, that are unsuitable and unsafe for heavy truck traffic. Manchester Sand & Gravel and the carrier for New Britain complain that any alternate routes they are forced to travel, if their trucks are prohibited from using their normal routes through South Windsor, are circuitous and will cost them time and money.

South Windsor contends that its ordinance is not an attempt to regulate through trucks because it applies to all trucks in excess of 15,000 pounds, whether through or intratown, and that the ordinance is a reasonable regulation to promote safety and to prevent deterioration of town streets. A review of the transcript, however, makes it abundantly clear that the impetus leading to the passage of the ordinance, and its principal target, is the through truck traffic generated by Manchester Sand & Gravel and the NORCAP landfill. Whatever its purpose, the effect of the ordinance is to prohibit, through the medium of a weight limit, all through trucks weighing more than 15,000 pounds from every street in South Windsor that crosses the South Windsor-East Windsor boundary except Route 5 and Scantic Road. The result is local regulation of through truck traffic.

“The fact that a local ordinance does not expressly conflict with a statute enacted by the General Assembly will not save it when the legislative purpose in enacting the statute is frustrated by the ordinance.” Dwyer v. Farrell, 193 Conn. 7, 14, 475 A.2d 257 (1984).

A review of the policy and purposes behind General Statutes § 14-298, as evidenced by the legislative history of the statute, is necessary to determine whether the legislature intended to vest the ultimate authority to regulate through truck traffic in the state traffic commission. See Dwyer v. Farrell, supra, 12; Sullivan v. Town Council, 143 Conn. 280, 284, 121 A.2d 630 (1956). In the 1955 legislative session, special acts were passed which gave the cities of Hartford and New Haven the power to regulate through truck traffic on local streets. In the 1957 legislative session, both special acts were repealed. In the same session, General Statutes (1949 Rev.) § 2517, which established a state traffic commission and defined its duties, was repealed and the following language was added by substitute House Bill 501 to No. 331 of the 1957 Public Acts, the predecessor of General Statutes § 14-298 which contains similar language: “Said [state traffic] commission shall also make rules and regulations, in cooperation and agreement with local traffic authorities, respecting the use by through truck traffic on streets and highways within the limits of, and under the jurisdiction of, any city, town or borough of this state for the protection and safety of the public; and any rules and regulations so adopted may be amended in the same manner.”

The statement of purpose accompanying substitute House Bill 501 at the time of its introduction in the General Assembly was “[t]o eliminate conflicting regulations arising from local restrictions as to the use of streets by through truck traffic.” Substitute H.B. 501 (1957 Reg. Session). The statement of purpose of a bill, on its introduction into the legislature, may be considered in determining its intent. Seals v. Hickey, 186 Conn. 337, 345, 441 A.2d 604 (1982); Miller v. Board of Education, 166 Conn. 189, 194, 348 A.2d 584 (1974).

In moving for the passage of substitute House Bill 501, after a favorable report from the committee on roads and bridges, Representative Gennaro W. Frate, chairman of the committee, stated: “This bill would permit the State Traffic Commission to route truck traffic in cooperation with the local officials of the towns involved. The reason for this bill, in the 1955 session there were two special acts passed, one for the city of Hartford and one for the city of New Haven, which gave these two cities the powers to route truck traffic. This year four more cities requested the same powers. The committee on roads felt this power should be handled by the State Traffic Commission, on page 10, file 840, there is a bill that would repeal these two special acts.” (Emphasis added.) 7 H.R. Proc., Pt. 4, 1957 Sess., p. 2056. The statement of the legislator who reported the bill out of committee carries particular weight and deserves careful consideration. Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 15 n.4, 434 A.2d 293 (1980).

On the floor of the House of Representatives, just prior to the passage of substitute House Bill 501, Representative Frederick Pope, Jr., remarked: “Mr. Speaker, I would just like to say that I don’t quite understand why there’s so much question on this bill. I think it stands to reason that the State Traffic Commission has to be in on this; otherwise you would have 169 towns solving a state-wide problem in separate ways. You can well imagine that if one town routed the traffic on one road, and the town adjoining picked another road, you would have an almost impossible situation. So the State Traffic Commission has to come in in cooperation and agreement with the various towns to set up an over-all plan.” 7 H.R. Proc., Pt. 4, 1957 Sess., p. 2059. Statements made on the floor of the house, although not controlling, may be judicially noticed and are a strong indication of legislative intent. Robinson v. Unemployment Security Board of Review, supra, 8; Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 245, 377 A.2d 305 (1977).

This court must construe statutes in a manner which gives effect to the apparent intention of the legislature. In re Robert H., 199 Conn. 693, 704, 509 A.2d 475 (1986); Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 231, 477 A.2d 988 (1984). The apparent intention of the legislature, as evidenced by the legislative history of the relevant provision of General Statutes § 14-298, which was engrafted on that statute by substitute House Bill 501 in the 1957 session of the legislature, was to facilitate a harmonious routing of truck traffic through the various towns of this state in accord with rules and regulations made and adopted by the state traffic commission in cooperation with local traffic authorities. It is equally apparent that, if that intention is to be carried out and the policy and purpose behind the legislative enactment is to be implemented, the ultimate authority to make such rules and regulations must rest solely with the state traffic commission. Otherwise, uncoordinated local ordinances which have the effect of prohibiting through truck traffic on certain streets, whether by imposing a locally determined weight limit or some other locally determined standard, would conflict with and totally frustrate the legislative intent. When the state has, by statute, demonstrated an intent to occupy a field of regulation, as it has in this instance, a local ordinance that conflicts with or frustrates the purpose of the legislature in enacting the statute cannot stand. Shelton v. Commissioner, 193 Conn. 506, 517-18, 479 A.2d 208 (1984); Dwyer v. Farrell, supra, 14.

We conclude, therefore, that the legislature has, by statute, reserved to the state traffic commission the ultimate authority to regulate through truck traffic. Accordingly, the South Windsor ordinance, which has the effect of regulating through truck traffic by imposing a locally determined weight limit, is invalid.

Neither Pizzuto v. Newington, 174 Conn. 282, 386 A.2d 238 (1978), nor C. White & Son, Inc. v. Rocky Hill, 181 Conn. 114, 434 A.2d 949 (1980), require, as the defendant claims, a different result. Pizzuto held only that the town council of Newington could close Kimberly Road through the installation of concrete barriers at the Newington-West Hartford line to all traffic by adopting a resolution under the authority of General Statutes § 7-194. The defendant argues that, since Newington could close a street to all traffic, a fortiori, towns must possess the lesser authority to impose weight limits which affect only certain vehicles using their streets. Pizzuto, however, is devoid of any indication that Kimberly Road was used by through truck traffic, as that term has been previously defined, or that its closure affected through truck traffic in the least. Further, the fact that Newington, under the circumstances of Pizzuto, might have the authority to close a street does not mean that South Windsor can regulate through truck traffic on its streets that remain open to other traffic.

C. White & Son, Inc., concerned the validity of a Rocky Hill ordinance which prohibited commercial vehicles weighing more than 6000 pounds from using Forest Street, an interior street in Rocky Hill. That case is inapposite because it did not involve through truck traffic. C. White & Son, Inc. v. Rocky Hill, supra, 121 n.5. There, we held that the town of Rocky Hill could differentiate between “non-through-traffic trucks weighing more than 6000 pounds and other vehicles under the authority of § 7-194 (8) and (17), ” (emphasis added) and exclude such traffic from an interior street. C. White & Son, Inc. v. Rocky Hill, supra, 124-25. We noted, however, that in 1957 the General Assembly “reserved authority to regulate through truck traffic to the state in the following manner in General Statutes § 14-298: ‘state traffic commission. . . . Said commission shall also make regulations, in cooperation and agreement with local traffic authorities, respecting the use by through truck traffic of streets and highways within the limits of, and under the jurisdiction of, any city, town or borough of this state for the protection and safety of the public.’ ” (Emphasis added.) C. White & Son, Inc. v. Rocky Hill, supra, 124. We indicated, moreover, that since “the General Assembly only reserved power in the state respecting the use of‘through truck traffic, ’ not ‘truck traffic’ nor just ‘traffic’ (emphasis added) id.; Rocky Hill could regulate nonthrough truck traffic on an interior street. Id., 124-25.

It is true that a municipality has broad powers relating to the use, maintenance and control of its streets and highways under General Statutes § 7-148. A municipality, however, may only regulate and prohibit traffic and the operation of vehicles on its streets and highways in a manner not inconsistent with the General Statutes. See General Statutes § 7-148 (b) (7) (B) (i). To allow South Windsor to regulate “through truck traffic” by a town ordinance would be inconsistent with § 14-298 which vests that power in the state traffic commission. We are not unsympathetic to the problem that through trucks apparently pose in South Windsor. The remedy, however, lies with the state traffic commission or the legislature.

There is no error.

In this opinion Healey, Shea and F. Freedman, Js., concurred.

Peters, C. J.,

concurring. I disagree that the town of South Windsor was statutorily precluded from enacting an ordinance prohibiting all trucks exceeding a designated gross weight from traveling over designated town streets. The trial court implicitly concluded that there was no such blanket statutory disability when it ruled, in the plaintiffs’ favor, that this ordinance was defective because it failed to provide truckers a reasonable alternative route and because it included exemptions that were unconstitutionally discriminatory in favor of town users and town providers of trucking services. The majority opinion does not reach these possible infirmities in the South Windsor ordinance.

In my view, the statutory analysis contained in the majority opinion fails to take sufficient account of the contrary analysis contained in this court’s opinion in C. White & Son, Inc. v. Rocky Hill, 181 Conn. 114, 434 A.2d 949 (1980). The C. White & Son, Inc., discussion of the relevant statutes does not turn on the artifact that the plaintiffs truck, in that case, happened not to be a through truck. Instead, that case emphasized that, in precluding local authorities from regulating through truck traffic, the legislature was concerned, as this court had been in cases such as Adley Express Co. v. Darien, 125 Conn. 501, 7 A.2d 446 (1939), and Darien v. Stamford, 135 Conn. 71, 60 A.2d 764 (1948), with local ordinances that unreasonably singled out through traffic for adverse regulation. C. White & Son, Inc. v. Rocky Hill, supra, 121-22, 124. The legislature has taken no further action to correct this interpretation, if indeed we were then in error, and its acquiescence is usually understood as validating our interpretation of what it had intended to accomplish. Herald Publishing Co. v. Bill, 142 Conn. 53, 63, 111 A.2d 4 (1955); Forman Schools, Inc. v. Litchfield, 134 Conn. 1, 6, 54 A.2d 710 (1947); Cashman v. McTernan School, Inc., 130 Conn. 401, 408, 34 A.2d 874 (1943); Coombs v. Darling, 116 Conn. 643, 646, 166 A. 70 (1933).

In addition, the record in this case supports a narrower construction of General Statutes § 14-298 than that adopted by the majority opinion. The statute, by its own terms, only empowers the state traffic commission to act “in cooperation and agreement with local traffic authorities.” Operationally, the commission has apparently construed this language to preclude any intervention without the consent of all of the towns affected by through traffic. In this case, the commission refused categorically to consider the request of the defendant town for an appropriate regulation of through traffic because the neighboring town, which benefitted from the use of the defendant’s streets, refused to agree to any consideration of such a request, regardless of its terms. It seems to me unlikely that, to avoid balkanization of through traffic, the legislature intended to deprive communities of any effective remedy whatsoever when they find themselves adversely affected by through trucks. Yet that appears to be the result of this court’s holding today.

1 would nonetheless uphold the judgment of the trial court, for a different reason. The trial court’s determination that the defendant town’s ordinance failed to provide the plaintiff truckers with a reasonable alternative route was either a finding of fact or so mixed a finding of fact and law that we should overturn it only if we are persuaded that it was clearly erroneous. Practice Book § 4061 (formerly § 3060D). Although a close question, I do not think that the trial court’s resolution was clearly erroneous in view of the evidence and pleadings in the record as a whole.

Accordingly, I concur in the judgment that there is no error.

       On December 17, 1984, the South Windsor town council adopted the following ordinance, effective December 31,1984: “An Ordinance Prohibiting Truck Traffic on Rye Street and Troy, Graham, Nevers, Miller and Niederwerfer Roads in the Town of South Windsor.
      “(a) Definition: Truck means every motor vehicle, other than emergency, public safety and education vehicles and vehicles owned or leased by or operating under contract with the Town of South Windsor, having a gross vehicle weight of fifteen (15) thousand pounds or over and designed, used and maintained primarily for the transportation of property and includes a motor vehicle designed and used for the purpose of drawing a semi-trailer, as well as the vehicle drawing the semi-trailer and the semi-trailer.
      “(b) No person shall operate any truck on Rye Street within the Town of South Windsor except while on a trip with a point of origin from or destination on said Rye Street within the Town of South Windsor, no person shall operate any truck on Graham Road within the Town of South Windsor except while on a trip with a point of origin from or destination on said Graham Road within the Town of South Windsor; no person shall operate any truck on Troy Road within the Town of South Windsor except while on a trip with a point of origin from or destination on said Troy Road within the Town of South Windsor; no person shall operate any truck on Nevers Road within the Town of South Windsor except while on a trip with a point of origin from or destination on said Nevers Road within the Town of South Windsor; no person shall operate any truck on Miller Road within the Town of South Windsor except while on a trip with a point of origin from or destination on said Miller Road within the Town of South Windsor; and no person shall operate any truck on Niederwerfer Road within the Town of South Windsor except while on a trip with a point of origin from or destination on said Niederwerfer Road within the Town of South Windsor; and except as follows:
      “If the point of origin from or destination is on any of the following streets: Abar Lane, Abbe Road, Abbe Road Extension, Alexander Place, Alison Drive, Ann Road, Apple Orchard Lane, Ash Road, Ayers Road, Barber Hill Road, Benjamin Way, Berle Road, Bramblebrae, Brook Street, Brookfield Street, Cherry Blossom Lane, Christine Lane, Doria Lane, Dower Road, Farmstead Drive, Famham Road, Fox Hill Road, Fox Meadow Lane, Garnet Lane, George Road, Gordon Drive, Grace Road, Graham Road, Greenfield Drive, Griffin Road, Harvest Lane, Hayes Road, Hazel Street, Henry Road, Herman Way, High Tower Road, Joseph Lane, June Drive, Lake Street, Lewis Drive, Locust Street, Mark Drive, Maskel Road, McGrath Road, Meadow Road, Meryl Road, Miller Road, Nevers Road, Niederwerfer Road, Norma Road, Old Farm Road, Overlook Road, Pear Tree Lane, Plum Lane, Poplar Drive, Riverside Drive, Robert Drive, Rockledge Drive, Rosemary Lane, Rustic Lane, Rye Street, Scantic Meadow Road, Thomas Street, Troy Road, Wendy Drive, Wentworth Drive, Windshire Drive, Windsorvill Road, Wood Pond Drive.
      “(c) Penalty: Any person violating the terms of this Ordinance shall be fined $99.00 for each offense.”

       The ordinance was passed in response to heavy truck traffic on Rye Street and Graham Road; the four other streets were added for fear a ban on truck traffic on Rye Street and Graham Road would shift the problem to those other streets.

       The trial court judgment recites only the constitutional grounds. In its initial brief, the defendant town of South Windsor did not address the issue of the applicability of General Statutes § 14-298 and the plaintiffs did not file a Practice Book § 3012 (a) (now § 4013 [a]) statement. The plaintiffs did, however, raise § 14-298 in their brief and oral argument and the defendant addressed the issue in its reply brief and oral argument. Under the circumstances, we do not see how the defendant was prejudiced by the lack of a § 3012 (a) statement and, in view of the fact that § 14-298 is dispositive of this case, we will address this issue.

       There is no statutory definition of the term “through truck traffic.” It should, therefore, be interpreted in accord with its usual meaning. Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 174, 479 A.2d 1191 (1984); Brown v. New Haven Taxi Cab Co., 92 Conn. 252, 254, 102 A. 573 (1917). Patently, it refers to trucks which travel from a point outside the limits of a city, town or borough in this state, through such city, town or borough without any scheduled stop in the locality in question. C. White & Son, Inc. v. Rocky Hill, 181 Conn. 114, 121-22 n.5, 434 A.2d 949 (1980); see 30 Reports & Opinions of the Attorney General (1957) p. 68.

       New Britain’s refuse is first taken to its transfer station in the town of Berlin, which is also southwesterly of South Windsor, and then transported by contract carrier to NORCAP. New Britain, by contract, also hauls refuse to NORCAP for the towns of Berlin and Southington.

       Trucks hauling refuse from West Hartford and private haulers also use South Windsor’s streets to reach NORCAP.

       There are other streets that cross the South Windsor-East Windsor boundary line and are not prohibited streets in the ordinance; they cannot be reached, however, except by travel on a prohibited street.

       See 27 Spec. Acts 644, No. 663; 27 Spec. Acts 235, No. 282.

       See 28 Spec. Acts 404, No. 324.

       See General Statutes (Cum. Sup. 1935) § 73c; General Statutes (Cum. Sup. 1937) § 119e.

       “[General Statutes] Sec. 14-298. state traffic commission. There shall be within the department of transportation a state traffic commission. Said traffic commission shall consist of the commissioner of transportation, the commissioner of public safety and the commissioner of motor vehicles. For the purpose of standardization and uniformity, said commission shall adopt and cause to be printed for publication regulations establishing a uniform system of traffic control signals, devices, signs and markings consistent with the provisions of this chapter for use upon the public highways. Taking into consideration the public safety and convenience with respect to the width and character of the highways and roads affected, the density of traffic thereon and the character of such traffic, said commission shall also adopt regulations, in cooperation and agreement with local traffic authorities, governing the use of state highways and roads on state-owned properties, and the operation of vehicles including but not limited to motor vehicles, as defined by section 14-1, and bicycles, as defined by section 14-286, thereon. A list of limited-access highways shall be published with such regulations and said list shall be revised and published once each year. A list of limited-access highways opened to traffic by the commissioner of transportation in the interim period between publications shall be maintained in the office of the state traffic commission and such regulations shall apply to the use of such listed highways. Said commission shall also make regulations, in cooperation and agreement with local traffic authorities, respecting the use by through truck traffic of streets and highways within the limits of, and under the jurisdiction of, any city, town or borough of this state for the protection and safety of the public. Said commission may place and maintain traffic control signals, signs, markings and other safety devices, which it deems to be in the interests of public safety, upon such highways as come within the jurisdiction of said commission as set forth in section 14-297. The traffic authority of any city, town or borough may place and maintain traffic control signals, signs, markings and other safety devices upon the highways under its jurisdiction, and all such signals, devices, signs and markings shall conform to the regulations established by said commission in accordance with this chapter, and such traffic authority shall, with respect to traffic control signals, conform to the provisions of section 14-299.” (Emphasis added.)

       General Statutes § 14-298 is silent as to the procedure to be followed in the event local traffic authorities refuse to cooperate and agree with the state traffic commission with respect to the use of local streets and highways by through truck traffic. However, “[i]t is not our function to substitute our own ideas of what might be a wise provision in the place of a clear expression of the legislative will.” Frazier v. Manson, 176 Conn. 638, 644, 410 A.2d 475 (1979).

       General Statutes § 7-194 granted specific powers to towns, cities and boroughs. Public Acts 1981, No. 81-219, transferred most powers under the section to § 7-148, effective October 1, 1982.

       General Statutes (Rev. to 1979) § 7-194 (8) and (17) provide in part that “all towns, cities or boroughs which have a charter . . . shall have the following specific powers in addition to all powers granted . . . under the constitution and general statutes . . . (8) to . . . control and operate streets . . . (17) to regulate and prohibit the . . . use or opening of streets.”

       See General Statutes § 7-148, titled Scope of Municipal Powers, particularly § 7-148 (b) (6) (C).

       General Statutes § 7-148 (b) (7) (B) (i) provides: “traffic, (i) Regulate and prohibit, in a manner not inconsistent with the general statutes, traffic, the operation of vehicles on streets and highways and off-street parking .. . .”


author: Shea, J.

text:
    Louis R. Pepe et al. v. City of New Britain
    (12950)
    Peters, C. J., Healey, Shea, Santaniello and Kulawiz, Js.

      Argued February 6
    decision released April 21, 1987

      Joseph E. Skelly, Jr., for the appellant (defendant).

      Thomas F. Parker, with whom was Brenda M. Bergeron, for the appellees (plaintiffs).
   Shea, J.

The plaintiffs, a law firm and one of its members, brought this action to recover the reasonable value of legal services rendered on behalf of the common council of the defendant, the city of New Britain. The trial court, Allen, J., found that, because the corporation counsel was disqualified from representing the common council in its dispute with the mayor, the common council had implied authority to engage independent counsel at the city’s expense. Finding further that the council properly exercised that implied authority by retaining the plaintiffs pursuant to a resolution it had adopted, the court granted the plaintiffs’ motion for summary judgment in respect to liability. After a further hearing on the issue of damages before the trial court, Aspell, J., the plaintiffs recovered the sum of $23,513.74 and costs from the defendant. The defendant contests only the issue of liability. We find no error.

In 1976 and 1977 the defendant was receiving funds from the federal government pursuant to the Housing and Community Development Act of 1974, Pub. L. No. 93-383, 88 Stat. 633 (1974). A majority of the common council challenged the authority of New Britain’s mayor, Matthew Avitabile, individually to execute on behalf of the city contracts requiring the expenditure of such funds. The council insisted that its approval was a requisite to any such expenditure, and therefore to the making of those contracts. Deciding that legal action was necessary to effectuate its challenge, the council, on January 4, 1977, over the mayor’s veto, adopted “Resolution No. 12349.” The resolution provided, “that effective upon passage of this resolution, the Common Council, upon approval of a select committee to be appointed by the Mayor Pro Tern and the Majority Leader, has the authority to retain legal counsel when it deems necessary and only for purposes involving City business; be it further resolved, that the powers conferred by this resolution, be and are hereby terminated on November 1, 1977.”

In a memorandum dated February 2,1977, Salvatore Gionfriddo, the majority leader of the common council, requested, “on behalf of the Common Council as a whole,” the approval of the select committee “in order to retain Louis R. Pepe, Esq., of the firm of Alcorn, Bakewell & Smith.” After the select committee had approved the retention of Pepe, ten members, or a two-thirds majority, of the common council, which had been informally polled, endorsed the selection. Five remaining members objected to representation by Alcorn, Bakewell & Smith, and instead requested the corporation counsel to appoint a special assistant corporation counsel to represent them.

Before the common council initiated its contemplated suit in opposition to Avitabile’s assumption of control over the federal funds, three taxpayers brought an action challenging the validity of Resolution No. 12349. Grogan v. Common Council, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 208674-3 (January 10, 1977). In order to avoid a conflict of interest in that taxpayers’ suit, the corporation counsel declined to represent the common council, which consequently retained the plaintiff firm of Alcorn, Bakewell & Smith. The parties to the taxpayers’ suit arrived at a settlement prior to trial, entering into a stipulation that the resolution would be in effect only in respect to the particular dispute between the council and the mayor.

The common council, again represented by Pepe of Alcorn, Bakewell & Smith, subsequently brought suit against Avitabile in the United States District Court. Common Council v. Avitabile, United States District Court at Hartford, Docket No. H-77-231 (October 28, 1977). After that court rendered summary judgment in favor of Avitabile, the plaintiffs in the present case submitted their bills to the city of New Britain for services rendered on behalf of the council in both the taxpayers’ suit and the federal suit. When the city refused to pay those bills, the plaintiffs, in 1980, brought the action that is now before us. In this appeal from the summary judgment rendered in favor of the plaintiffs, the defendant claims that, because the common council did not retain the plaintiffs by “a vote of the majority pursuant to a duly noticed and held meeting,” which, the defendant maintains, is a general requirement of the city charter incorporated in Resolution No. 12349, such retention of the plaintiffs was not authorized by the resolution and was therefore illegal.

I

At the outset we address the contention of the plaintiffs that the issue raised by the defendant is not properly before us and that this appeal should therefore be dismissed. The plaintiffs first assert that the failure of the defendant to plead specially pursuant to Practice Book § 164 that the common council had not complied with Resolution No. 12349 precluded it from subsequently raising the issue at the summary judgment hearing. Prior to the day of that hearing, the only theory presented by the defendant, as alleged in its special defense, had been that the retention of the plaintiffs had contravened the city charter, which establishes the circumstances under which outside counsel may be employed. At the hearing, however, the defendant presented an affidavit and certain memoranda in which the assertion was made that the council had not properly followed the resolution. The plaintiffs did not object to the introduction of those materials.

It is clear that in deciding a motion for summary judgment the trial court may consider, in addition to the pleadings, “affidavits and any other proof submitted” by the parties. Practice Book § 384; see Orticelli v. Powers, 197 Conn. 9, 15, 495 A.2d 1023 (1985). Practice Book § 381 provides in part that “[supporting and opposing affidavits shall . . . set forth such facts as would be admissible in evidence . . . .” This court has often held that the failure to file a special defense may be treated as waived when no objection has been raised to the offer of evidence on the issue. See Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 132, 523 A.2d 1266 (1987); Damora v. Christ-Janer, 184 Conn. 109, 112, 441 A.2d 61 (1981); Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964). Because the plaintiffs did not object to the defense proffered by the defendant regarding Resolution No. 12349, which arguably should have been pleaded specially, facts relating to that defense would have been admissible in evidence. Thus, the defendant’s failure to plead specially noncompliance by the common council with Resolution No. 12349 did not preclude the consideration by the trial court of that issue as presented in the affidavit and memoranda, because the failure of the plaintiffs to object thereto waived the pleading deficiency.

The plaintiffs’ related assertion is that because the defendant introduced materials raising the noncompliance issue on the day of the summary judgment hearing, that issue was not timely raised and therefore not properly before the court. The relevant rule, found in Practice Book § 380, which deals with proceedings upon summary judgment motions, is that “[t]he adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence.” (Emphasis added.) Relying upon this court’s recent decision in Hughes v. Bemer, 200 Conn. 400, 510 A.2d 992 (1986), the plaintiffs maintain that the use of the word “shall” in § 380 makes mandatory the filing of evidence prior to the day of the summary judgment hearing.

In Hughes v. Bemer, supra, this court construed the language of Practice Book § 155, which provides that an adverse party who fails to file a timely memorandum of law in opposition to a motion to strike “shall be deemed by the court to have consented to the granting of the motion.” We ruled that such a filing is mandatory under § 155; Hughes v. Bemer, supra, 402; and therefore that the failure to file a memorandum in opposition to the motion to strike was a sufficient alternative ground upon which to uphold the granting of the motion. We declined to consider the substantive ground relied upon by the trial court, although the moving parties, as in this case, had not raised in the trial court noncompliance with the rule as a ground for granting the motion. Although § 380 declares that materials in opposition to a motion for summary judgment “shall” be filed the day before the hearing, it does not contain any provision corresponding to the dictate of § 155 that the consequence of noncompliance with the rule is that the delinquent party “shall be deemed by the court to have consented to the granting of the motion.” In Batick v. Seymour, 186 Conn. 632, 645-46, 443 A.2d 471 (1982), we held that, despite the prescription of § 380 that “ ‘[t]he adverse party . . . shall file opposing affidavits,’ ” the plaintiffs’ failure to do so was not fatal under the circumstances of that case. Although Batick dealt with the failure to file an opposing affidavit, whereas the case before us involves the timeliness of such a filing, the sentence from § 380, and therefore the word “shall,” applies in both instances. We therefore adhere to our prior construction of the relevant language of § 380 and decline to construe such language as a jurisdictional barrier that the parties cannot waive or the court may not excuse under any circumstances. Cf. Blancato v. Feldspar Corporation, 203 Conn. 34, 36 n.3, 522 A.2d 1235 (1987) (language in Practice Book § 154 that each motion to strike raising any claim of legal insufficiency “shall distinctly specify the reason or reasons for each such claimed insufficiency” not considered jurisdictional).

We conclude that by failing to raise the defendant’s noncompliance with § 380 in the trial court, the plaintiffs waived the exclusion of materials not filed “prior to the day” of the summary judgment hearing. Had the objection been timely raised, the trial court might well have postponed the hearing if either party had requested additional time. Since the trial court did not rely upon the late filing in granting the plaintiffs’ motion for summary judgment, the court effectively excused the defect without objection by the plaintiffs and thus properly considered on its merits the defendant’s contention that the retention of the plaintiffs as legal counsel was not authorized by Resolution No. 12349. Accordingly, we decline to dismiss the present appeal.

II

We next turn to the merits of the defendant’s appeal. It is important to note first that all of the parties agree that, in the dispute between the mayor of New Britain and the common council, representation by the corporation counsel of either side would have entailed a conflict of interest. Moreover, the defendant does not challenge the trial court’s ruling that, where such a conflict of interest exists, the common council has implied authority to engage separate legal counsel. See Krahmer v. McClafferty, 282 A.2d 631, 633 (Del. Super. 1971); Scottsbluff v. Southern Surety Co., 124 Neb. 260, 267, 246 N.W. 346 (1933); Judson v. Niagara Falls, 140 App. Div. 62, 67, 124 N.Y.S. 282 (1910); Hanna v. Rewkowski, 81 Misc. 2d 498, 500, 365 N.Y.S.2d 609 (1975); Coventry School Committee v. Richtarick, 411 A.2d 912, 916 (R.I. 1980). Finally, there is no contention that Resolution No. 12349, authorizing the common council to retain legal counsel, was either invalid or improperly adopted.

A

Resolution No. 12349 authorizes the common council, upon approval of a select committee, to retain legal counsel. The crux of the defendant’s claim is that both the charter of the city of New Britain and our case law on the subject of municipal corporations mandate an interpretation of the resolution that requires the council to convene in a formal meeting in order to effectuate the retention of the particular legal counsel it has chosen. The defendant points first to § 502 of the charter, which provides in part: “All meetings of said common council duly warned and held, at which a majority of the members are present, shall be valid meetings, and the members present may proceed to transact any business properly before them .... All acts of said common council, at any meeting, shall be done by a vote of a majority of the members present.” The defendant next refers to this court’s decision in Jack v. Torrant, 136 Conn. 414, 420, 71 A.2d 705 (1950), in which we said: “ 'It is a well-settled rule that when municipal councils or boards of any kind are called upon to perform legislative acts or acts involving discretion and judgment in administering the public affairs, they can only act at authorized meetings duly held. The council or board must meet and act as a board or council. The members cannot make a valid determination binding upon the corporation by their assent separately and individually expressed.’ ” (Emphasis in original.) 2 J. Dillon, Municipal Corporations (5th Ed.) § 501, p. 825; see also Ziomek v. Bartimole, 156 Conn. 604, 612, 244 A.2d 380 (1968); Martin v. Lemon, 26 Conn. 192, 193 (1857).

The plaintiffs, on the other hand, argue that their retention, once approved by the select committee, “was a fait accompli.” Thus they agree with the trial court’s assertion that “[i]t was unnecessary for the Common Council to meet again formally in order to approve the Select Committee’s choice.” It is evident that this view accords with the council’s understanding of the process required by the resolution it had just adopted. In the area of administrative law it is a well established principle that courts should “ ‘accord great deference to the construction given the statute by the agency charged with its enforcement.’ ” Hartford Principals’ & Supervisors’Assn. v. Shedd, 202 Conn. 492, 509, 522 A.2d 264 (1987); Board of Education v. Connecticut State Board of Labor Relations, 190 Conn. 235, 241, 460 A.2d 1255 (1983). Similarly, the interpretation of provisions of a city charter by the city council or other town authorities has been given considerable weight by courts construing and applying such provisions. See Burwell v. Board of Selectmen, 178 Conn. 509, 518, 423 A.2d 156 (1979); see also Castaneda v. Holcomb, 114 Cal. App. 3d 939, 945-46, 170 Cal. Rptr. 875 (1981); Van Cleve v. Wallace, 216 Minn. 500, 508, 13 N.W.2d 467 (1944); Morey Engineering & Construction Co. v. St. Louis Artificial Ice Rink Co., 242 Mo. 241, 261-62, 146 S.W. 1142 (1912); 2 E. McQuillin, Municipal Corporations (3d Ed. 1979) § 9.22, p. 686.

A reasonable assumption following from this principle of interpretation is that, having properly performed its legislative function in adopting Resolution No. 12349 in accordance with the formalities mandated by the city charter, the common council concluded it had delegated the further administrative task of retaining counsel to the select committee. In other words, the council appears to have construed the resolution as embodying such a delegation. This court has stated that although a town council cannot delegate its legislative powers to others, “this rule is modified by the equally well supported and understood qualification that powers of a purely ministerial, administrative, or executive nature, may be delegated to a committee or some appropriate officer.” Donnelly v. New Haven, 95 Conn. 647, 653, 111 A. 897 (1921); see also Baker v. Kerrigan, 149 Conn. 596, 600, 183 A.2d 268 (1962).

The actions of the common council in retaining the legal services of the plaintiffs upon approval of the select committee, but without a confirmatory majority vote taken at a formal meeting, therefore favor a construction of Resolution No. 12349 different from that advocated by the defendant. Nevertheless, the actions of the council in implementing their resolution do not unambiguously favor a construction consonant with that endorsed by the plaintiffs. That the members of the common council were polled, albeit informally, after the select committee had approved the retention of the plaintiffs indicates that the council did not consider such approval alone as sufficient to implement the resolution. If we adhere to the notion that the common council’s construction of the resolution it enacted, as indicated by its subsequent actions, ought to be accorded substantial deference, this circumstance tends to support the defendant’s position that Resolution No. 12349 required action by the council subsequent to the approval given by the select committee. If further council action were necessary, however, such action, to be valid, could occur only at an authorized meeting duly held. Jack v. Torrant, supra.

Because we uphold the judgment of the trial court on an alternative ground, we need not pursue further the sinuous route to a definitive construction of Resolution No. 12349.

B

Although the plaintiffs as appellees have filed a statement of alternate grounds upon which to uphold the judgment rendered on damages; see Practice Book § 3012 (a) (now § 4013 [a] [1]); they have not done so in respect to the judgment on liability, at issue in this appeal. Nevertheless, this court is authorized to rely upon alternative grounds supported by the record to sustain a judgment. Henderson v. Department of Motor Vehicles, 202 Conn. 453, 461, 521 A.2d 1040 (1987); W. J. Megin, Inc. v. State, 181 Conn. 47, 54, 434 A.2d 306 (1980). Even if we were to have concluded that the trial court based its judgment on erroneous grounds, we would properly affirm the judgment “if the same result is required by law.” A & H Corporation v. Bridgeport, 180 Conn. 435, 443, 430 A.2d 25 (1980); Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978).

It is clear that, under the circumstances of the present case, the common council had the authority to employ outside legal counsel. As stated, the inevitability of a conflict of interest effectively precluded the office of the corporation counsel from representing either the mayor or the common council in their dispute. The sole issue is whether the council adhered sufficiently to any formalities mandated by the city charter in acting to retain the plaintiffs. Because we hold that the defendant is equitably estopped from denying liability to the plaintiffs, we need not resolve that issue.

“Contracts beyond the powers of a municipality are void.” Sheehan v. Altschuler, 148 Conn. 517, 526, 172 A.2d 897 (1961). When an action of a municipal corporation is ultra vires because it represents an attempt to exercise powers the city does not possess, the doctrine of estoppel will not be applied to hold the city to promises made. The reason is that the city “cannot do indirectly what [it] cannot [do] directly, and [if] no power or authority [is] vested by law ... no [ultra vires act of the city, or its officers or agents,] can be cured by aid of the doctrine of estoppel.” Edwards v. Kirkwood, 147 Mo. App. 599, 615, 127 S.W. 378 (1910).

“Where the contract is one which the municipality had the power to make, [however,] it is possible for a court to hold that the municipality has, by taking the benefit of the contract, ratified it, or estopped itself from claiming it was not executed according to law.” Bridgeport Brass Co. v. Drew, 102 Conn. 206, 215, 128 A. 413 (1925); see Vito v. Simsbury, 87 Conn. 261, 265, 87 A. 722 (1913); Rocky Hill v. Hollister, 59 Conn. 434, 447, 22 A. 290 (1890); see also John J. Brennan Con struction Corporation, Inc. v. Shelton, 187 Conn. 695, 712, 448 A.2d 180 (1982); State ex rel. Gaski v. Basile, 174 Conn. 36, 40, 381 A.2d 547 (1977). “A contract, invalid because made at a special meeting of which certain members had no notice, but which is legitimate and proper and within the scope of the council’s power, will be enforced against the city where it has received the benefit of the contract. . . .” 1 J. Smith, Commentaries on the Modern Law of Municipal Corporations (1903) § 745, p. 746; see also Hitchcock v. Galveston, 96 U.S. 341, 351, 24 L. Ed. 659 (1877).

The record does not indicate that any objection to the representation of the council by the plaintiffs was made during either the taxpayers’ suit or the federal action brought by the common council against the mayor. It was not until the plaintiffs had fully rendered the necessary legal services and had presented their bills for payment that the defendant contested the legality of the contracts by which they had been retained. Because benefits have certainly been conferred upon the defendant, it would not be just to allow the defendant to escape its obligation to compensate the plaintiffs for the reasonable value of their services by asserting that their retention had not been in accordance with required formalities. See Trull v. Lobelville, 554 S.W.2d 638, 642 (Tenn. 1976); Denison v. Foster, 28 S.W. 1052, 1053 (Tex. 1894); 1A C. Antieau, Muncipal Corporation Law (1987) § 10.56; cf. Seif v. Long Beach, 286 N.Y. 382, 36 N.E.2d 630 (1941) (where city council had not adopted resolution authorizing appointment of special counsel, and where mayor had no alternative source of express or implied authority to retain such counsel, city not estopped from challenging validity of employment contract). Accordingly, we affirm the judgment of the trial court.

There is no error.

In this opinion the other justices concurred.

       Although the defendant, in its preliminary statement of issues, raised claims of error dealing with the damages award, it has not pursued such claims on appeal and thus is deemed to have abandoned them. See Blancato v. Feldspar Corporation, 203 Conn. 34, 36 n.3, 522 A.2d 1235 (1987); McHugh v. McHugh, 181 Conn. 482, 490, 436 A.2d 8 (1980).

       Although that stipulation has not been filed as a part of the record in this case, the plaintiffs, in oral argument, said that this limitation upon the effectiveness of Resolution No. 12349 comprised the crux of the stipulation. In his sworn affidavit, dated May 23,1985, Louis R. Pepe stated “[t]hat it was the intention of this stipulation, and it was so drawn, to permit the Common Council to employ the law firm of Alcorn, Bakewell & Smith to represent the Common Council in the taxpayers’ suit and the suit to be brought against the Mayor regarding his authority under the Community Development Fund to act without Council approval and to permit payment by the City for the expenses and fees incurred therein.”

       Practice Book § 164 provides: “No facts may be proved under either a general or special denial except such as show that the plaintiff’s statements of fact are untrue. Pacts which are consistent with such statements but show, notwithstanding, that he has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be his own.”

        Batick involved an automobile accident between the parties resulting in personal injuries sustained by the plaintiff. In the second count of his complaint, the plaintiff sought to set aside an allegedly fraudulent conveyance of real property from the named defendant to his wife on the ground that the defendant’s intent in making the transfer was to conceal such assets from the plaintiff. Discussing the plaintiff’s failure to file an opposing affidavit in the summary judgment proceeding, we noted: “There is no reason to suppose that the plaintiff had personal knowledge of any of the facts relating to the transfer. His proper course would have been to file an affidavit stating that he could not, ‘for reasons stated, present facts essential to justify his opposition . . . .’ Practice Book § 382.” Batick v. Seymour, 186 Conn. 632, 645, 443 A.2d 471 (1982). We nevertheless did not regard as fatal the plaintiffs failure to follow the procedure of explaining his predicament in accordance with § 382, “since his inability to file an opposing affidavit was obvious.” Batick v. Seymour, supra, 646.

       We note that in the taxpayers’ suit the corporation counsel’s office appointed Attorney Paul McQuillan as special assistant corporation counsel to represent the treasurer. In the subsequent federal suit by the common council against the mayor, Attorney Edward Lynch was retained by the city as a special assistant corporation counsel to represent the mayor.

       Compliance with § 134 of the charter of the city of New Britain, which may have been an alternative source of express authority for the common council to engage separate legal counsel in this conflict of interest case, is therefore not presently at issue. Section 134 provides: “Any board or commission of the city of New Britain, in any case in which a dispute exists between it and one or more other boards or commissions of said city, shall have the right to engage legal counsel to represent it in court in the event that it would be improper for the office of the corporation counsel to do so; provided the legal fee to be paid shall be subject to the prior approval of the chairman of the board of finance and taxation.”

         Although the line between ratification and estoppel has been called “shadowy”; 10 E. McQuillin, Municipal Corporations (3d Ed. 1981) § 29.103, p. 475; ratification that is implied from the conduct of a municipality generally involves “the element of estoppel . . . either as a minor or major element.” Id.; cf. Turney v. Bridgeport, 55 Conn. 412, 418, 12 A. 520 (1887).