author: Palmer, J.

text:
    Cumberland Farms, Inc. v. Dairy Mart, Inc., et al.
    (14638)
    Peters, C. J., Callahan, Berdon, Katz and Palmer, Js.
    Argued March 31
    decision released June 15, 1993

      Paul D. Sanson, with whom was John J. Moroney, for the appellant (plaintiff).

      Wesley W. Horton, with whom were George A. Levine and Alexandra Davis, for the appellee (named defendant).
   Palmer, J.

The plaintiff landlord, Cumberland Farms, Inc., appeals from a judgment for the defendant tenant, Dairy Mart, Inc., in a summary process action seeking possession of certain leased premises for nonpayment of rent, gasoline gallonage rent and real property taxes. The plaintiff claims that the trial court improperly concluded that the doctrine of equitable non-forfeiture applies to this summary process action and therefore improperly refused to grant possession of the premises to the plaintiff. We disagree.

The record discloses the following imbroglio. On August 1, 1975, Sherman Rocklen and Rocklen, Inc., leased property at 528 Main Street, West Haven (premises) to Chevron Oil Company, now known as Chevron USA Inc. (Chevron), for a term of twenty-two years. The lease grants the tenant the options to renew the agreement, to construct buildings and make other improvements on the premises and to purchase the premises for $350,000 after the expiration of the original term of the lease. On July 1,1979, Chevron entered into a written agreement with the defendant to sublease the premises to it from July 1, 1979, to July 31, 1991, and assigned to the defendant the right to exercise the options.

On June 1, 1986, the plaintiff purchased certain assets from Chevron, including Chevron’s interest in the premises. As a result, the defendant became obligated to make payments under the sublease to the plaintiff. The sublease requires that the defendant pay: (1) base rent of $2083.33 per month; (2) additional rent of $.01 per gallon for each gallon of gasoline delivered to the premises in excess of 1,200,000 gallons for each year ending June 30; and (3) real property taxes levied or assessed against the premises.

After the plaintiff had acquired Chevron’s interest in the premises, the plaintiff never formally notified the defendant of the assignment of the sublease, the name and address of the new landlord, or the name and address to which rent payments should be sent. As a result, the defendant continued to send rent payments to Chevron. Because the plaintiff was not prepared immediately to assume the financial accounting responsibilities for all its newly acquired assets, including the premises here, Chevron continued to accept the defendant’s rent payments and forwarded them to the plaintiff from June 1, 1986, until April 1, 1988. In April, 1988, Chevron ceased providing accounting services to the plaintiff and began returning the rent payments to the defendant. Employees of the defendant thereupon initiated contact with the plaintiff in order to verify that payments under the lease were owed to the plaintiff and to determine to whom the payments should be sent in the future. The trial court found that the defendant had demonstrated reasonable diligence in its attempts to determine the reason for the return of its rental payments by Chevron and the name and address to which the rental payments should be sent.

In February, 1989, after repeated telephone inquiries from the defendant, the plaintiff responded, but with a written demand for base rent that misstated certain terms of the assignment. On April 13,1989, the defendant sent the plaintiff copies of canceled rent checks for the period through April, 1988, accompanied by a cover letter noting that subsequent rent checks had been returned by Chevron and summarizing the defendant’s efforts to determine to whom to send the rent payments. The defendant’s letter concluded with a request for a recalculation of the amount of rent due and a promise to forward a check upon receipt of that recalculation. It is undisputed that, despite telephone inquiries from the defendant, the plaintiff did not provide the recalculation until November 6, 1989, when the plaintiff contemporaneously gave the defendant written notice of default under the sublease.

In its letter of November 6, 1989, the plaintiff accepted the defendant’s claim that the defendant had paid rent through April, 1988, but requested another set of copies of the canceled rent checks. The plaintiff’s letter stated that the rent due totaled $39,583.27 and requested, for the first time, gallonage statements for the years ending June 30, 1987, June 30, 1988, and June 30, 1989, as well as gallonage rent, if due, and reimbursement of $23,677.90 for real estate taxes paid by the plaintiff. The letter stated that it served as notice to cure these defaults, but stated no time period within which the defendant must cure. Although the letter indicated that copies of the property tax bills and canceled tax payment checks were enclosed, these materials inadvertently were not enclosed with the letter. On November 14,1989, the defendant received the enclosures that had been omitted. On the same day, an employee of the defendant requested that the accounting department draw a check for rent and taxes and prepare a gallonage statement. On December 1, 1989, the defendant sent the gallonage statement to the plaintiff but did not enclose the gallonage rent payment because it anticipated that the plaintiff would want to verify the amount due. The trial court found that a delay in the preparation of the check for base rent and taxes had been caused, in part, by the defendant’s negligence because the check had been misplaced on an employee’s desk.

On December 15,1989, the defendant telephoned the plaintiff to apologize for the delay in sending the check for rent and taxes and to indicate that the check was ready to be mailed. An employee of the plaintiff responded that the matter had been turned over to legal counsel. The defendant’s employee nonetheless prepared a transmittal letter and mailed it with a check in the amount of $63,065.55 payable to the plaintiff. At approximately 6:15 p.m. on December 15, the defendant received a hand delivered letter from the plaintiff’s general counsel advising the defendant that the sublease would be terminated on December 26, 1989, for nonpayment of rent. On December 20,1989, counsel for the plaintiff prepared and signed a notice to quit. On December 21, 1989, the defendant issued a check in the amount of $2083.33 to the plaintiff for the December base rent. In February, 1990, the defendant paid to the plaintiff $1377.96 for the gallonage rent due for the year ending June 30, 1989. The plaintiff returned both checks to the defendant with the explanation that they could not be accepted because the lease had been terminated.

The dispute between the parties that prompted this action concerns the late tender of the past due rent, real estate taxes and the December, 1989 base rent. The plaintiff alleged that the defendant had failed to pay: (1) base rent, totaling $41,666.60, for the period from May 1,1988, to December 1,1989; (2) gallonage rent, totaling $1377.96, for the year ending June 30, 1989; and (3) real property taxes in the amount of $23,677.90.

The trial court, in its ruling denying the plaintiffs claim for summary process, found that the plaintiff had never given formal notice to the defendant of the assignment of the sublease or the change in landlords under the sublease. Although the trial court noted that the defendant had been negligent in not paying the past due rents, it found that the defendant’s failure to pay the arrearage was not willful. The court observed: “This is not a case where a tenant knowingly neglected to pay its rent for nineteen consecutive months. It is a case where, as a result of a major corporate acquisition involving 600 gasoline stations in ten states, including the sublease for the premises, there was confusion about the identity of the landlord and where to send rental payments. The tenant diligently sought to obtain the necessary information from a confused landlord, who could not calculate the amount owed for seven months after the tenant had requested it. Throughout the entire period of nonpayment the tenant consistently affirmed its intention and willingness to pay the rent and did tender the arrearage within approximately thirty days after calculations were finally provided.” The trial court concluded that the equitable defense against forfeiture applied to the facts of this case and denied the plaintiff’s motion for possession.

“[Ejquitable defenses and counterclaims implicating the right to possession are available in a summary process proceeding. If, then, the tenant’s equitable claim was properly raised, it was properly before the trial court.” Fellows v. Martin, 217 Conn. 57, 62-63, 584 A.2d 458 (1991). The defendant properly raised the issue in the trial court and we proceed to consider it upon review. Id., 64.

Equitable principles barring forfeitures may apply to summary process actions for nonpayment of rent if: (1) the tenant’s breach was not willful or grossly negligent; (2) upon eviction the tenant will suffer a loss wholly disproportionate to the injury to the landlord; and (3) the landlord’s injury is reparable. Id., 66-67. With these principles as our guide, we traverse the thicket presented by the circumstances of this case.

The plaintiff first claims that the trial court should not have relieved the defendant from forfeiture because the court should have held the defendant’s conduct to have been willful or at least grossly negligent. Willful or gross negligence in failing to fulfill a condition precedent of a lease bars the application of the doctrine of equitable nonforfeiture. Fellows v. Martin, supra, 67; Nicoli v. Frouge Corporation, 171 Conn. 245, 247, 368 A.2d 74 (1976); Elliott v. South Isle Food Corporation, 6 Conn. App. 373, 377, 506 A.2d 147 (1986). In circumstances involving the nonpayment of rent, we have construed strictly this threshold requirement in deciding whether to grant equitable relief. Brauer v. Freccia, 159 Conn. 289, 293-94, 268 A.2d 645 (1970); see also Mobilia, Inc. v. Santos, 4 Conn. App. 128, 492 A.2d 544 (1985). We have also stated more recently, however, that “[t]he doctrine against forfeitures applies to a failure to pay rent in full when that failure is accompanied by a good faith intent to comply with the lease or a good faith dispute over the meaning of a lease.” Fellows v. Martin, supra, 69; see also Petterson v. Weinstock, 106 Conn. 436, 138 A. 433 (1927).

In the present case, the trial court examined the conduct of both parties throughout the entire course of their relationship, noted numerous examples of how the defendant had initiated and pursued communications with the plaintiff and found that the defendant had tendered rents and taxes due within approximately thirty days of receiving the plaintiff’s recalculations of those amounts. The trial court concluded that the evidence did not demonstrate willful conduct or gross negligence on the part of the defendant but rather indicated that the defendant had acted diligently in its attempts to obtain the information necessary to eliminate the arrearage. These findings are amply supported by the record.

“[I]n case of mere neglect in fulfilling a condition precedent of a lease . . . equity will relieve when the delay has been slight, the loss to the lessor small, and when not to grant relief would result in such hardship to the tenant as to make it unconscionable to enforce literally the condition precedent of the lease.” F.B. Fountain Co. v. Stein, 97 Conn. 619, 626-27, 118 A. 47 (1922); see also Brauer v. Freccia, supra, 295-96; R & R of Connecticut, Inc. v. Stiegler, 4 Conn. App. 240, 243, 493 A.2d 293 (1985). The plaintiffs conduct contributed significantly to the delayed payment of rents and taxes. The trial court properly concluded, in the circumstances of this case, that the delay solely attributable to the defendant’s conduct, although negligent, was slight and was not sufficient to entitle the plaintiff to possession.

We next consider the impact of forfeiture on the parties. The trial court evaluated the loss to each party in the event of forfeiture and concluded that the impact on the defendant would be wholly disproportionate to the injury suffered by the plaintiff. See Fellows v. Martin, supra, 66. The trial court determined that the defendant’s interest, in the event of forfeiture, included the value of the option to purchase the premises and the value of capital improvements it had made to the premises. The sublease granted to the defendant the option to purchase the premises for $350,000. Moreover, the defendant had made a “substantial investment in the leasehold”; id., 72 (.Peters, C. J., concurring); by having improved the premises at a total cost of approximately $420,000. On the other hand, the arrearages totaling $63,065.55 comprised the plaintiff’s potential injury.

The plaintiff argues, however, that the trial court improperly failed to consider, in its valuation of the parties’ interests, two further factors affecting the equities between the parties. The plaintiff maintained that it would be harmed if it could not exercise the option to purchase the premises. Furthermore, the plaintiff had offered to compensate the defendant for the book value of its capital improvements to the premises. We are unpersuaded.

The plaintiff cites neither authority nor evidence to substantiate its claim that it has a right to the option to purchase the premises. The option was granted to the defendant by the plaintiff’s predecessor and was not, therefore, equally available to the plaintiff. Only upon the termination of the sublease as originally negotiated between Chevron and the defendant would the defendant forfeit its option to purchase the premises. The plaintiff cannot lose that to which it has no right. The trial court, therefore, properly excluded the value of the option to purchase the premises when it calculated the plaintiff’s injury.

The plaintiff also contends that its offer to reimburse the defendant for the book value of the improvements to the premises ought to have been considered by the trial court in evaluating the defendant’s loss in the event of forfeiture. We are not persuaded that the trial court had to consider an offer made during the course of litigation in the absence of its acceptance by the offeree. Even assuming the availability of proper compensation for the capital improvements, the trial court could properly have concluded that the loss of the option to purchase the premises would nonetheless make the loss to the defendant wholly disproportionate to the injury caused to the plaintiff by nonpayment of rents and taxes.

The plaintiff claims finally that the trial court improperly found that its losses were reparable. In support of its claim, the plaintiff reiterates its argument that the trial court improperly refused to include its purported loss of the option to purchase the premises. For the reasons stated above, we conclude that the trial court properly excluded the value of the option to purchase the premises in calculating the loss to the plaintiff.

The plaintiff argues alternatively that the defendant did not tender interest on the arrearage and that the trial court improperly failed to order it to do so. It is undisputed that the defendant owed the plaintiff unpaid rents and taxes and that the trial court made no finding concerning interest.

The failure to tender an indeterminate amount of discretionary interest is not fatal to the defendant’s request for equitable relief from forfeiture. See Fellows v.Martin, supra, 67 n.10; Thompsons. Coe, 96 Conn. 644, 655, 115 A. 219 (1921); Danpar Associates v. Falkha, 37 Conn. Sup. 820, 823 n.l, 438 A.2d 1209 (1981). The record does not indicate that the nonpayment of interest was an issue material to the litigation between the parties. Moreover, in light of the sums and the time periods in this case, the amount of interest involved could not be sufficient to alter our conclusion that forfeiture would result in a loss to the defendant wholly disproportionate to the injury caused to the plaintiff by the defendant’s nonpayment of interest. The trial court concluded that the doctrine of equitable nonforfeiture shields the tenant from forfeiture on these facts. The record supports that determination. Fellows v. Martin, supra, 68.

We conclude, therefore, that the defendant is entitled to equitable relief from the forfeiture of the sublease conditioned upon its timely payment of any interest found to be due to the plaintiff. A further hearing is required, however, to establish whether interest is due to the plaintiff and, if so, the amount thereof.

The judgment is affirmed and the case is remanded for further proceedings regarding interest in accordance with this opinion.

In this opinion the other justices concurred.

       The defendant Jeffrey R. Kopp is a subtenant of Dairy Mart, Inc. The defendant Chevron USA Inc., the predecessor to Cumberland Farms, Inc., on the lease at issue was known as Chevron Oil Company at all times relevant to this appeal. Unless otherwise indicated, references to the defendant in this opinion are to Dairy Mart, Inc.

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

       During the pendency of this case, the plaintiff filed for Chapter 11 relief in the bankruptcy court. The appeal in this court had been stayed pursuant to the automatic stay provisions of the federal bankruptcy code. See 11 U.S.C. § 362 (a). Upon motion by the defendant, the bankruptcy court lifted the automatic stay to permit this appeal and any subsequent trial court proceedings resulting therefrom. In re Cumberland Farms, Inc., Debtor, U.S. Bankruptcy Court for the District of Massachusetts, Western Division, Docket No. 92-41305-JFQ (January 21, 1993).

       In 1986, the plaintiff purchased Chevron’s “marketing assets” including approximately 600 gasoline stations in ten northeastern states.

       Section 27 of the sublease agreement between Chevron and the defendant provides in relevant part: “Until further notice from CHEVRON, all payments to be made and all notices to be given to CHEVRON hereunder shall be made or given to CHEVRON at 1200 State Street, Perth Amboy, New Jersey 08861. . . . Notices to DAIRY MART hereunder shall until further notice by or on behalf of DAIRY MART, be addressed to DAIRY MART at 240 South Road, Enfield, Connecticut 06082. All notices shall be delivered personally or deposited in the United States mail [properly] addressed as aforesaid, with postage fully paid for delivery by certified mail.”

       The trial court heard testimony concerning the difficulties that the defendant had encountered in maMng rent payments. For example, the plaintiffs own internal error caused it to terminate all billing to the defendant and consequently the plaintiff was unable to determine whether rent was due. In another instance, the defendant canceled a contract with the plaintiff for the supply of gasoline to the premises. The plaintiff accordingly ceased billing the defendant for gasoline but also erroneously canceled all billing, including invoices for rent, to the defendant.

       Prior to June, 1986, the town of West Haven sent real property tax bills to Rocklen in care of Chevron. Chevron thereupon paid the taxes and billed the defendant. After June, 1986, the plaintiff paid the property taxes but did not seek reimbursement from the defendant until November 6,1989.

       The defendant calculated that it owed gallonage rent of $1573.58.

       No evidence was offered as to when the notice to quit was served and therefore the trial court made no finding with respect to the date of its service.

       No gallonage rent was due for the years ending June 30, 1987, or June 30, 1988.

       Since December, 1989, the defendant has paid to the plaintiff base rent, gallonage rent and real property taxes as required by the sublease.

       The sublease requires that a statement of the number of gallons delivered accompany each gallonage rent payment and the plaintiff alleged that the defendant had failed to provide such statements for the years ending June 30. 1987. June 30. 1988. and June 30. 1989.

       The defendant filed several special defenses: lack of notice, equitable nonforfeiture, equitable estoppel, laches, and waiver of alleged default and renewal of sublease. The trial court concluded that the doctrine of equitable nonforfeiture was dispositive and did not, therefore, address the merits of the defendant’s other special defenses.

       The trial court stated: “Although Dairy Mart was negligent in not paying the rent, Dairy Mart personnel acted diligently to attempt to obtain the information needed to correct the nonpayment situation when Chevron started returning the rent checks. Dairy Mart’s diligence was not met, however, with like diligence on the part of Cumberland, which consumed months simply to determine the amount of rent which was owed.”

       The parties have stipulated that the fair market value of the premises at the time of trial was $800,000.

       The defendant paid $63,065.55 to the plaintiff on October 21, 1992. The recalculation of amounts due provided by the plaintiff did not include interest. The plaintiff conceded, at oral argument, that the issue of interest was not raised until it had submitted its posttrial memorandum. The defendant acknowledges that it did not tender interest and, at oral argument, conceded that a judgment in its favor would properly be conditioned upon further proceedings to determine whether interest is due to the plaintiff in these circumstances. See Fellows v. Martin, 223 Conn. 152, 154-55, 611 A.2d 412 (1992).


source: Caselaw Access Project

author: Borden, J. Peters, C. J.,

license: Public Domain

text:
    Vicki S. Curry v. J. William Burns, Commissioner of Transportation
    (14551)
    Peters, C. J., Callahan, Borden, Berdon and Katz, Js.

      Argued February 8
    decision released June 15, 1993

      James H. Lee, for the appellant (plaintiff).

      Raymond J. Plouffe, Jr., for the appellee (defendant).

      Neil W. Sutton filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Borden, J.

The dispositive issue of this appeal is the continued viability of the application of the general verdict rule to the denial of factually distinct elements of a single cause of action, as previously articulated by this court in Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 201-204, 520 A.2d 208 (1987). The plaintiff appeals, upon our grant of certification, from the judgment of the Appellate Court; Curry v. Burns, 27 Conn. App. 439, 606 A.2d 731 (1992); affirming the judgment of the trial court upon the ground that the general verdict rule precluded appellate consideration of her claims of trial court error. We now reverse.

The plaintiff, Vicki S. Curry, brought this action against the defendant, the commissioner of transportation, pursuant to General Statutes § lSa-144, for injuries allegedly incurred as a result of a defective highway. The case was tried to a jury. At trial, the defendant denied both that: (1) he had breached his statutory duty to maintain the highway; and (2) the plaintiff had given proper notice as required by § 13a-144. Id., 441. No interrogatories were submitted to the jury, which returned a general verdict in favor of the defendant. Id., 441-42. The trial court denied the plaintiffs motion to set aside the verdict, and rendered judgment for the defendant on the verdict.

On appeal to the Appellate Court, the plaintiff raised claims only with respect to the statutory notice issue. She claimed that the trial court had improperly: (1) quashed two subpoenas; (2) redacted the statutory notice given by the plaintiff; and (3) failed to instruct the jury as requested. Id., 440. The Appellate Court declined to address the plaintiff’s claims because it concluded, in justified reliance upon the general verdict rule as articulated and applied in Finley, that any such error would have been harmless. Accordingly, the Appellate Court concluded that the trial court’s judgment must be affirmed. Id., 443.

We granted certification on the following issue: “Does the denial of an allegation of the furnishing of a required statutory notice constitute a clearly distinct defense for purposes of the general verdict rule?” Curry v. Burns, 223 Conn. 904, 610 A.2d 176 (1992). We conclude that our decision in Finley unduly broadened the general verdict rule and that, therefore, that portion of Finley concerning the application of the general verdict rule should be overruled. Accordingly, the judgment of the Appellate Court, which was based upon that portion of Finley, must be reversed, and the case remanded to the Appellate Court for consideration of the plaintiffs claims.

As it has generally been understood, and to the extent that it is not in dispute in this case, “[t]he so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982); Colucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981). The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action; see Matthews v. FM.C. Corporation, 190 Conn. 700, 706, 462 A.2d 376 (1983); or distinct defenses. See Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964). A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury. Alternatively, if the action is in separate counts, a party may seek separate verdicts on each of the counts. Ziman v. Whitley, 110 Conn. 108, 113-15, 147 A. 370 (1929). Finley v. Aetna Life & Casualty Co., [supra, 202-203].” (Internal quotation marks omitted.) Curry v. Burns, supra, 27 Conn. App. 441 n.3.

In Finley, the plaintiff filed a one count complaint for breach of an employment contract, raising two principal claims: (1) that a contract existed; and (2) that the defendant’s termination of the plaintiff’s employment constituted a breach. The defendant’s answer denied both claims, placing them both in issue. Finley v. Aetna Life & Casualty Co., supra, 201. No interrogatories were submitted to the jury, which returned a general verdict for the defendant. Id. On appeal, the plaintiff attacked only the trial court’s instructions on the first claim. We held that the general verdict rule precluded our consideration of the plaintiff’s claims regarding the instructions and required that the judgment of the trial court rendered upon the general verdict be affirmed. Id., 204.

We acknowledged in Finley that the general verdict rule does not apply if “a plaintiff submits to the jury several different specifications of negligent conduct in support of a single cause of action for negligence . . . .” Id., 203. The rationale for declining to apply the rule in such a situation “is that ‘the various grounds of negligence alleged are often so interlocked as to make it difficult to consider them separately,’ and formulating interrogatories to obtain separate findings on the various claims would ‘complicate the work of court, jury and counsel.’ Ziman v. Whitley, supra, 115.” Id., 203. We also acknowledged, however, that where a plaintiff submits separate causes of action to a jury, the general verdict rule does apply, “whether or not the claims are pleaded in separate counts. [Ziman v. Whitley, supra,] 116-17 . . . .’’Id.

We reasoned in Finley that “[t]he application of the general verdict rule, however, does not depend on the niceties of pleading but on the distinctness and sever-ability of the claims and defenses raised at trial.” Id. “[I]t is the distinctness of the defenses raised, and not the form of the pleading, that is the decisive test governing the applicability of the general verdict rule. Meglio v. Comeau, 137 Conn. 551, 553-54, 79 A.2d 187 (1951). Tf the defenses are clearly distinct, the fact that one has not been specially pleaded . . . will not prevent the application of the rule.’ Royal Homes, Inc. v. Dalene Hardwood Flooring Co., supra, 466; accord LaFleur v. Farmington River Power Co., 187 Conn. 339, 342, 445 A.2d 924 (1982); Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 410, 363 A.2d 86 (1975).” Finley v. Aetna Life & Casualty Co., supra, 203-204. Under this analysis, the defendant’s denial of both the plaintiff’s claims—existence of a contract, and a breach thereof— “presented the jury with distinct and severable defenses to the plaintiff’s claims.” Id., 204. Because the plaintiff had not requested interrogatories “in order to obtain separate jury findings on the [two] controverted issues,” the general verdict rule applied, precluding consideration of the plaintiff’s claims of error regarding the trial court’s instructions on whether a contract existed, and the “verdict for the defendant [had to] be sustained.” Id.

Against this background, the plaintiff in this case argues that: (1) Finley notwithstanding, for purposes of the general verdict rule mere denials are not “distinct defenses”; and (2) in the alternative, the “defenses” in this case were interlocked and, therefore, Finley is distinguishable. See Hall v. Burns, 213 Conn. 446, 484-85 n.9, 569 A.2d 10 (1990) (in action under § 13a-144, denial of both defect in highway and that defect was proximate cause not distinct and sever-able defenses for purposes of general verdict rule). The defendant responds that his denial of both the highway defect claimed by the plaintiff and the adequacy of the statutory notice given by her raised distinct and sever-able defenses, and that, therefore, the Appellate Court properly applied the general verdict rule. The amicus curiae, The Connecticut Trial Lawyers Association, argues that: (1) the defendant’s denial did not raise distinct and severable defenses; and (2) in the alternative, we should overrule Finley.

We agree with the defendant that his denial at trial of the claims that he had failed to perform his statutory duty to maintain the highway, and that the plaintiff had given him adequate statutory notice, raised separate and distinct factual issues such that, under Finley, the general verdict rule would apply. We agree with the plaintiff and the amicus, however, that Finley extended the general verdict rule farther than is wise, and that it should therefore be overruled.

I

The general verdict rule has deep roots in our jurisprudence. It was first articulated by Chief Justice Swift in 1817: “[I]t may be remarked, that though in England the rule has prevailed, that where there are several counts in a declaration, and a general verdict is found, if any of the counts are bad, the verdict shall be set aside, because it cannot be known, that the damages were not assessed on the bad counts; yet in this state the practice has been different; and it has ever been considered to be the rule, that if any of the counts are good, it shall be presumed the damages were assessed on those counts, and the verdict shall stand. . . . The most eminent jurists in England have lamented that the rule was ever established there; as verdicts have often been set aside upon mere technical objections. As we have experienced no inconvenience from our practice, it would be strange for us to alter it, and borrow a rule from a country where its existence has been regretted. In a case where there are good and bad counts in a declaration, if the defendant wishes to question the sufficiency of any of them, verdicts can be taken on each count separately, which will give him an opportunity: and unless such reason should exist, it will be found most convenient, in practice, to allow the verdict to be given, generally, on all the counts, where they are for the same thing.” (Emphasis in original.) Wolcott v. Coleman, 2 Conn. 324, 337-38 (1817).

The rule rests on the sound policy of conservation of judicial resources, at both the appellate and trial levels. On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that, is under appellate review. In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have adjudicated. Declining in such a case to afford appellate scrutiny of the appellant’s claims is consistent with the general principle of appellate jurisprudence that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated. See, e.g., McLaughlin v. Bronson, 206 Conn. 267, 277-78, 537 A.2d 1004 (1988).

In the trial court, the rule relieves the judicial system from the necessity of affording a second trial if the result of the first trial potentially did not depend upon the trial errors claimed by the appellant. Thus, unless an appellant can provide a record to indicate that the result the appellant wishes to reverse derives from the trial errors claimed, rather than from the other, independent issues at trial, there is no reason to spend the judicial resources to provide a second trial.

II

With this background in mind, we turn to the plaintiffs claims that the general verdict rule, as articulated in Finley, does not apply in this case because: (1) mere denials by the defendant do not constitute distinct defenses for purposes of the general verdict rule; and (2) the defenses in this case were interlocked. These claims in effect raise the issue that we certified, namely, whether the denial of an allegation of statutory notice pursuant to § 13a-144 constitutes a distinct defense for purposes of the general verdict rule. We conclude that, contrary to the plaintiffs arguments, Finley does control and that, under Finley, the general verdict rule would apply.

In Finley, we applied the general verdict rule to the defendant’s denial of two factually distinct elements of the plaintiff’s cause of action: the existence of a contract and the defendant’s breach thereof. The Finley defendant’s denial of these two factual issues raised no less “distinct and severable defenses to the plaintiff’s claims”; Finley v. Aetna Life & Casualty Co., supra, 204; than did the defendant’s denial in this case of the plaintiff’s claims that (1) she furnished the defendant with a proper notice pursuant to § 13a-144, and (2) the defendant breached his duty of care regarding the maintenance of the highway. Put another way, the denial in this case by the defendant of these two issues, on both of which the plaintiff bore the burden of persuasion, raised factual issues that were no less distinct and severable, and no more factually interlocked, than the two factual issues in Finley.

Given the viability of both Finley and Hall, however, we would be constrained to apply Finley rather than Hall. It is true that, as the plaintiff points out, we held in Hall v. Burns, supra, that the defendant’s denial of the plaintiffs claim, in an action under § 13a-144, of both a highway defect and proximate cause did not invoke the general verdict rule. Analytically it is difficult to reconcile Hall v. Burns, supra, with Finley, because it is difficult to see why the issue of whether there was a highway defect is not factually distinct and severable from the issue of whether that defect caused the plaintiff’s injuries. See infra. That is the analysis we employed in Finley. It is arguable, however, that the issues in Hall v. Burns, supra, are more like the factually interlocked issues of different specifications of negligence; see Ziman v. Whitley, 110 Conn. 108, 147 A. 370 (1929); than they are like the totally distinct issues of statutory notice and highway defect.

Ill

We turn, therefore, to the suggestion of the plaintiff and the amicus that we reexamine Finley. Having done so, we conclude that Finley extended the reach of the general verdict rule beyond appropriate bounds, and that, to the extent that Finley applied the rule to the denial of elements of a single cause of action, it should be overruled.

The history of the rule is illuminating. As noted above, this court first applied it, in Wolcott v. Coleman, supra, to preclude appellate consideration of the defendant’s claims of error following a general verdict for the plaintiff on a multicount complaint of the plaintiff. Thereafter, in Ziman v. Whitley, supra, in an opinion by Justice William Maltbie, we traced the evolution of the rule from 1817; Wolcott v. Coleman, supra; to 1929.

We had theretofore applied the rule to cases, like Wolcott, in which there had been a general verdict for the plaintiff on a multicount complaint, and to cases in which two distinct defenses, namely, payment and the statute of limitations, had been raised. Ziman v. Whitley, supra, 113. The application of the rule to cases involving different counts of the complaint and separate defenses continued. Id., 113-14. The rule had also been applied in cases in which there had been only a one count complaint but in which various grounds of recovery had been claimed. Id., 114.

In Ziman, however, we recognized that “[t]he increasing frequency of cases in which appeal is made to the rule and the desirability of a definitive statement of its proper application and limitations have led us to re-examine it.” Id., 114. We also recognized that “[i]t is not easy for counsel and the court to frame [interrogatories] properly in the hurry of the trial and couched as they almost necessarily must be in technical language, separated from the explanations contained in the charge, they may well be stumbling blocks in the way of a jury.” Id., 115.

We thus recognized that, although the general verdict rule applies on appeal to preclude consideration of certain claims, it has a definite effect on the trial. It requires trial counsel to anticipate its application on appeal in the event that the verdict will be adverse to the client’s case, and to frame for approval by the trial court appropriate interrogatories that will insulate the verdict on appeal from the application of the rule. Furthermore, it requires the trial court to examine such interrogatories and to submit to the jury only interrogatories that will enlighten, rather than confuse, the jury in its deliberations. This process, moreover, of necessity ordinarily takes place in the brief period of time between the end of the presentation of evidence, on the one hand, and the final arguments and jury instructions, on the other hand. Thus, although the rule has significant benefits, as outlined above, it also imposes costs on the trial court and the parties.

We attempted, therefore, to outline relatively definite parameters for the proper application of the rule. Because separate allegations of negligence are often interlocked, applying the rule to such allegations “would . . . complicate the work of court, jury and counsel.” Ziman v. Whitley, supra, 115. At the same time, “[w]here a complaint is properly divided into separate counts,” and “where in an answer separate defenses are properly pleaded,” the rule would apply. Id. Similarly, “where in a complaint or answer, although separate counts or defenses are not stated, reliance is placed upon grounds of action or defenses which are distinct, not because they involve specific sets of facts forming a part of the transaction but in the essential basis of the right relied upon,” the rule would apply. Id. An example of this latter case would be if “a cause of action for wanton misconduct and one for negligence are stated in the complaint in a single count.” Id., 116.

This was to be contrasted, however, to a case in which “different specifications of fact are alleged in support of one essential right,” in which case the rule would not apply. Id. Thus, the court in Ziman overruled, as contrary to “sound policy,” cases in which it had previously applied the rule to such different specifications of fact. Id. Finally, the court in Ziman suggested forms of verdicts to be used in cases in which an answer contained both a general denial or denials and admissions, and a special defense. Id., 115-16.

After Ziman, therefore, the rule could fairly be said not to apply to the denial of separate factual allegations made in support of a single cause of action. It could fairly be said to apply, however, to four situations: (1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; and (4) denial of a complaint and pleading of a special defense. This was the state of the law until its refinement in Knight Realty Co. v. Caserta, 126 Conn. 162, 10 A. 2d 597 (1939).

In Knight Realty Co., the complaint alleged that the plaintiff, a real estate broker engaged by the defendants to sell certain real estate, had secured a buyer ready, willing and able to purchase the property on terms agreeable to the defendants, and that the defendants had thereafter refused to sell the property. Id., 168. The defendants filed a general denial. Id. As the case was tried, however, two principal issues were presented: (1) whether the defendants had offered to sell the property on the terms to which the prospective purchasers agreed; and (2) if the defendants had so offered, whether they had withdrawn that offer and, if so, whether that withdrawal occurred before or after the plaintiff had procured the prospective purchaser. Id., 166.

We then revisited the issue of the proper contours of the general verdict rule. We again acknowledged “the practical difficulties which might result in the absence of a definitive statement of the situations where the rule would apply and the danger of confusion in the issues presented should interrogatories be required where the issues to be determined are not clearly defined.” Id., 167. Recognizing that applying the rule to “various grounds of defense admissible under mere denials of a complaint would be to produce the very evils we were seeking to avoid, as regards complaints, by our decision in Ziman v. Whitley, [supra],” we concluded that the rule “should not be applied to grounds advanced to defeat the claimed cause of action which are admissible under mere denials of facts alleged in the complaint.” Knight Realty Co. v. Caserta, supra. We also concluded, however, that the rule “should be applied between such matters [i.e., grounds admissible under mere denials,] and matters which are or should be specially pleaded or upon two or more defenses of the latter class.” (Emphasis added.) Id., 167-68.

Knight Realty Co., therefore, added to the four categories outlined in Ziman a fifth category of cases for the application of the general verdict rule: if, under a general denial, a ground of defense had been asserted, as the case was tried, that should have been specially pleaded. This category for the application of the rule was further illustrated in Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 199 A.2d 698 (1964).

In Royal Homes, Inc., the plaintiff claimed in its complaint that the defendant had negligently caused a fire in a dwelling house that the plaintiff was constructing. The defendant filed a general denial. As the case was tried, however, the defendant advanced two defenses: (1) the fire was not caused by negligence; and (2) any negligence was that of an independent contractor hired by the defendant, for whom the defendant was not liable. The jury returned a general verdict for the defendant. Id., 466.

On appeal, this court declined to review the plaintiffs claims that the trial court improperly instructed the jury regarding the independent contractor defense. Relying on Knight Realty Co. v. Caserta, supra, 168, we stated: “If the defenses are clearly distinct, the fact that one has not been specially pleaded, though it should have been, will not prevent the application of the [general verdict] rule.” (Emphasis added.) Royal Homes, Inc. v. Dalene Hardware Flooring Co., supra, 466. This was the state of our law until our decision in Finley v. Aetna Life & Casualty Co., supra.

In Finley, as noted above, we applied the general verdict rule to a general denial of the plaintiffs one count complaint in which he had claimed that (1) a contract existed between him and the defendant, and (2) the defendant had breached the contract. To reiterate, we stated: “[I]t is the distinctness of the defenses raised, and not the form of their pleading, that is the decisive test governing the applicability of the general verdict rule. Meglio v. Comeau, 137 Conn. 551, 553-54, 79 A.2d 187 (1951). Tf the defenses are clearly distinct, the fact that one has not been specially pleaded . . . will not prevent the application of the rule.’ Royal Homes, Inc. v. Dalene Hardwood Flooring Co., supra, 466; accord LaFleur v. Farmington River Power Co., 187 Conn. 339, 342, 445 A.2d 924 (1982); Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 410, 363 A.2d 86 (1975).” Finley v. Aetna Life & Casualty Co., supra, 203-204. On the basis of this analysis, we applied the general verdict rule, because the defendant, under its general denial of the plaintiff’s single count complaint, had controverted both of the plaintiff’s principal claims—existence of a contract, and a breach thereof—thus presenting “the jury with distinct and severable defenses to the plaintiff’s claims.” Id., 204.

We now conclude, however, that the analysis we employed in Finley was flawed. Several considerations lead us to that conclusion.

First, Finley’s quotation from Royal Homes, Inc., omitted what theretofore had been regarded as a significant limitation on the application of the general verdict rule. Whereas in Royal Homes, Inc., we stated that “[i]f the defenses are clearly distinct, the fact that one has not been specially pleaded, though it should have been, will not prevent the application of the rule”; (emphasis added) Royal Homes, Inc. v. Dalene Hardwood Flooring Co., supra, 466; in Finley we substituted ellipses for the italicized phrase. That italicized phrase, however, was significant, because it was that phrase that incorporated the fifth category of cases for the application of the rule that had been added by Knight Realty Co. That phrase also served to differentiate the application of the rule, in a case involving a general denial followed by ground of defense that should have been specially pleaded, from the nonapplication of the rule, in the usual case involving a general denial of separate factual allegations of a complaint. It was that differentiation, moreover, that was designed to minimize the risk to which we had referred in Knight Realty Co.: “[T]o apply the rule concerning a general verdict to various grounds of defense admissible under mere denials of a complaint would be to produce the very evils we were seeking to avoid, as regards complaints, by our decision in Ziman v. Whitley, [supra].” Knight Realty Co. v. Caserta, supra, 167.

Second, the authorities on which Finley relied for its broad and flexible formulation of the rule do not support that formulation. Indeed, all of those authorities involve either a ground of defense that should have been specially pleaded but was litigated under a general denial; Royal Homes, Inc. v. Dalene Hardwood Flooring Co., supra; or a denial of the allegations of the complaint and a separately pleaded special defense; LaFleur v. Farmington River Power Co., supra (denial of negligence and special defense of contributory negligence); Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., supra (denial of allegation of contract and special defense of unenforceability for lack of mutuality).

Third, experience has shown that the Finley formulation eliminates a degree of certainty regarding when the rule will apply that is necessary for the guidance of trial counsel and the trial court. In Hall v. Burns, supra, an action under General Statutes § 13a-144 for injuries allegedly caused by a highway defect, we declined to apply the rule to a general denial of allegations that the highway was defective and that the defect was the proximate cause of the plaintiffs injuries. In doing so, we distinguished Finley on the ground that, unlike Finley, the defendant’s claims were not distinct and severable but were “mere denials of components of the only cause of action the plaintiff has alleged.” Hall v. Burns, 213 Conn. 446, 484-85 n.9, 569 A.2d 10 (1990).

Upon reflection, we find that distinction unsatisfactory. It is true that, as in Finley, the issues of whether there was a contract and whether such a contract was breached are factually and legally distinct. They are no more distinct, however, than, as in Hall v. Burns, supra, the issues of whether a highway was defective and whether such a defect was the proximate cause of the plaintiff’s injuries. The issue of whether a highway was defective would ordinarily center around the physical condition of the highway at the time of the accident and the reasonableness of the highway commissioner’s conduct, or lack thereof, with respect to that condition. See Cohen v. Hamden, 27 Conn. App. 487, 607 A.2d 452 (1992). The issue of whether such a defect proximately caused the plaintiff’s injuries would ordinarily center around the nature of those injuries and around whether the injuries claimed by the plaintiff derived from the accident in question or from some preexisting physical condition. We can see no principled difference between these inquiries, on the one hand, and the inquiries we deemed to be separate and distinct in Finley, on the other hand.

This conflict between the application of the general rule in Finley and its nonapplication in Hall v. Burns, supra, highlights the flaws in the Finley formulation. The appropriate use of the general verdict rule in our jurisprudence requires a substantial degree of certainty as to when it applies and when it does not. Otherwise, trial counsel, in the hurry of the trial, may be forced to err on the side of prudence by requesting interrogatories whenever there are factually distinct issues that have been litigated, even though those issues stem solely from denials of different factual allegations of the complaint.

In sum, we conclude that the formulation and application of the general verdict rule in Finley imposes more costs on the trial of cases than the benefits it bestows. By blurring the relatively clear prior parameters of the rule, it diminished the necessary degree of certainty required at the trial level, thus rendering the already difficult task of trial management, by court and counsel, unnecessarily burdensome. To the extent, therefore, that Finley expanded the application of the general verdict rule beyond its prior parameters, as explained herein, it is overruled.

Those prior parameters, which we now affirm, limit application of the rule to the following scenarios: (1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.

It follows from this analysis that the application of the rule by the Appellate Court in this case, based as it was on Finley, is no longer proper. The defendant’s denial of the plaintiff’s claims of liability and proper statutory notice by the plaintiff falls squarely within the rubric of a denial by the defendant of separate factual allegations in support of a single cause of action. The general verdict rule does not apply. The case must therefore be remanded to the Appellate Court for consideration of the plaintiff’s claims.

The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings consistent with this opinion.

In this opinion Callahan, Berdon and Katz, Js., concurred.

Peters, C. J.,

dissenting. In 1987, this court unanimously decided to invoke a functional rather than a pleadings oriented test for the applicability of the general verdict rule. I am unpersuaded that anything other than a change in the composition of this court has intervened to provide a justification for overruling Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 520 A.2d 208 (1987), and I therefore respectfully dissent.

Stare decisis is not an end in itself. If a decision reflects a public policy that is no longer viable, we should not adhere to a precedent in “ ‘blind imitation of the past.’ ” Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 555, 610 A.2d 1260 (1992). As a general rule, however, stare decisis serves the important function of preserving stability and certainty in the law. Recognizing the importance of these fundamental values to an ordered system of jurisprudence, we have often acknowledged that “a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. Maltbie, Conn. App. Proc., p. 226.” Herald Publishing Co. v. Bill, 142 Conn. 53, 62, 111 A.2d 4 (1955); see also State v. Somerville, 214 Conn. 378, 384-85, 572 A.2d 944 (1990); White v. Burns, 213 Conn. 307, 335-36, 567 A.2d 1195 (1990). This is not such a case.

If we are to continue to have a general verdict rule, the issue of its applicability in this case lends itself to precisely the kind of functional analysis that we endorsed in Finley v. Aetna Life & Casualty Co., supra. That analysis was by no means a revolutionary departure from past rulings on this subject. Finley relied on Meglio v. Comeau, 137 Conn. 551, 553-54, 79 A.2d 187 (1951), in which this court described the Connecticut general verdict rule as follows: “If there is no error in the instructions as to one of two distinct defenses, a general verdict for the defendant should be sustained. ... To qualify under this definition, the defenses must be distinct. That is the decisive test.” (Citations omitted.)

Applying the test of Meglio and Finley in the circumstances of this case establishes that the parties were at issue about two independent and distinct defenses. From the outset of the pleadings, the defendant has denied its liability to the plaintiff on two grounds: the absence of any breach in the defendant’s duty to maintain the highway and the insufficiency of the statutory notice that General Statutes § 13a-144 required the plaintiff to provide to the defendant. The factual issues underlying these two defenses have no significant evidentiary overlap. In accordance with our precedents, the general verdict rule should apply to bar a retrial that may well result in another defendant’s verdict.

The majority criticizes this result because it hypothesizes the difficulty of crafting “interrogatories that will enlighten, rather than confuse, the jury in its deliberations.” Without challenging the wisdom of this observation in general, I do not understand how it applies in the circumstances of this case. It denigrates the professional skill of competent counsel to suggest their inability to draft interrogatories that would have informed the jury that it should make two separate findings, one concerning breach and the other concerning notice. Furthermore, because these independent and distinct defenses were raised in the initial pleadings, the record does not support the majority assumption that appropriate interrogatories could not have been drafted well in advance of the close of trial. If there are practical difficulties that flow from Meglio v. Comeau, supra, and Finley v. Aetna Life & Casualty Co., supra, this case does not demonstrate them. In the absence of “cogent reasons and inescapable logic,” we should adhere to precedent.

The general verdict rule unquestionably has its admirers and its detractors. Having created it, this court undoubtedly has the authority to abolish it. Until we determine that abolition is appropriate, we should apply the rule functionally. That was the holding of Meglio v. Comeau, supra, and Finley v. Aetna Life & Casualty Co., supra, from which we should not cavalierly depart.

Accordingly, I respectfully dissent.

       General Statutes § 13a-144 provides: “damages foe injuries sustained on state highways OE sidewalks. Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the attorney general and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.”

       Although the plaintiff, in her main brief, came close to requesting that we overrule Finley v. Aetna, Life & Casualty Co., 202 Conn. 190, 520 A.2d 208 (1987), she did not specifically make such a request. In her reply brief, however, she joined the amicus’ request that we do so.
      The amicus also suggests that we abandon the general verdict rale altogether. In view of our conclusion that Finley should be overruled, and in view of the limited scope of the certified issue in this case, we decline to consider this suggestion.

       We do not use the phrase “elements of a single cause of action” in any technical sense. We recognize, for example, that in this case the plaintiff’s obligation to establish statutory notice may be characterized as a jurisdictional requirement, at least under some circumstances; see, e.g., Lauer v. Zoning Commission, 220 Conn. 455, 462, 600 A.2d 310 (1991); rather than as a substantive element of her cause of action under General Statutes § 13a-144. We use the phrase, instead, in the more general sense of any factual issue that the plaintiff must establish before the jury, either by itself or as part of some other factual issue.

       Indeed, in a recent case, highly experienced trial counsel and a highly experienced trial judge nonetheless encountered the difficulty of formulating appropriate interrogatories in the turmoil of a hotly contested and complicated dental malpractice trial, resulting in what the trial judge characterized as the jury’s being “ ‘hopelessly confused.’ ” Robbins v. Van Gilder, 225 Conn. 238, 247, 622 A.2d 555 (1993).

       Applying this analysis, we concluded that, because the defendants’ claim that the offer had been withdrawn was a matter in avoidance that should have been specially pleaded, the general verdict rule applied. Knight Realty Co. v. Caserta, 126 Conn. 162, 168, 10 A.2d 597 (1939).

       Because the two grounds of defense—lack of negligence, and independent contractor—asserted by the defendant under its general denial were distinct, and because under Practice Book (1963) § 120 the defense of independent contractor should have been specially pleaded, the general verdict rule applied to preclude appellate consideration of the plaintiffs claims. Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 199 A.2d 698 (1964). The current Practice Book provisions regarding such pleading requirements are §§ 160, 163, 164 and 167.

       “ ‘If the defenses are clearly distinct, the fact that one has not been specially pleaded . . . will not prevent the application of the rule.’ Royal Homes, Inc. v. Dalene Hardwood Flooring Co., [151 Conn. 463, 466, 199 A.2d 698 (1964)].” Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 204, 520 A.2d 208 (1987).


author: Berdon, J.

text:
    Audubon Parking Associates Limited Partnership v. Barclay and Stubbs, Inc., et al.
    (14431)
    Peters, C. J., Callahan, Borden, Berdon and Katz, Js.
    Argued January 7
    decision released June 15, 1993

      Carter LaPrade, with whom, on the brief, was Margaret A. Little, for the appellant (plaintiff).

      William F. Gallagher, with whom was Barbara L. Cox, for the appellees (defendants).
   Berdon, J.

The issues in this case arise from a settlement agreement reached by the parties in an action brought by the plaintiff, Audubon Parking Associates Limited Partnership, against the defendants, Barclay and Stubbs, Inc., and Benjamin S. Morris, to recover damages for breach of a commercial lease.

The following facts are relevant to the disposition of this appeal. The plaintiff brought the present action against the defendants seeking damages for breach of the terms of the lease. The plaintiff also alleged that it was entitled to attorney’s fees and expenses under the terms of the lease and to attorney’s fees and expenses incurred in pursuing a summary process action against Barclay. During jury selection, the parties represented on the record, in open court before the trial judge, Licari, J., that they had agreed to settle the entire matter, including the claims asserted in the complaint and the counterclaim, for a sum of $50,000. The defendants stated before the trial judge that they agreed with the settlement terms.

After the settlement agreement had been outlined and agreed to by both parties, the trial judge requested that counsel file withdrawals of the complaint and counterclaim before they left the courtroom. The court then stated that “[sjhould this matter unravel and the parties choose not to proceed on the settlement . . . I will allow the matter to be reinstated without costs and without prejudice.” Counsel for the defendants then said: “I do want the record to be clear that we do have a settlement.” The trial judge clarified that he was requesting the withdrawals at that time for administrative convenience.

After the defendants failed to abide by the terms of the settlement, the plaintiff moved to restore the case to the docket by filing a motion to open. The plaintiff also sought attorney’s fees incurred in enforcing the terms of the settlement agreement. The motion, along with a covering letter to defense counsel, stated that the plaintiff was reserving the right either to enforce the settlement contract or to prosecute the original action. The trial court granted the motion to open and ordered jury selection to begin on a subsequent date.

On August 20, 1990, the plaintiff filed a motion for judgment in accordance with and enforcement of the settlement contract, and for attorney’s fees incurred as a result of the defendants’ failure to abide by the settlement accord. The trial court, after hearing the parties’ arguments, rendered judgment against the defendants in accordance with the settlement agreement. The trial court concluded that the parties had intended to enter into a binding settlement, that the court, in accepting the settlement and obtaining the withdrawal, “never intended to give the defendants] the option to unilaterally negate the settlement,” and that the trial court’s comments about the possibility of the agreement unraveling were intended only to allow both parties, in the event of mutual agreement on avoiding the settlement, to put the matter back on the jury trial list. The trial court denied that portion of the motion that related to attorney’s fees.

The defendants appealed to the Appellate Court and the plaintiff filed a cross appeal challenging the trial court’s refusal to award attorney’s fees. The Appellate Court reversed the judgment of the trial court, holding that the court had deprived the defendants of their right to a jury trial by rendering judgment for the plaintiff in accordance with the settlement contract. The court pointed out that the plaintiff could have elected to proceed to trial on the underlying claim or could have instituted a separate action based on the breached accord; in either case the defendants would have been entitled to a jury trial. The Appellate Court also dismissed the plaintiffs cross appeal. Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 26 Conn. App. 181, 183-85, 599 A.2d 395 (1991). We granted the plaintiffs petition for certification as to the following issues: “(1) In the circumstances of this case, did the parties agree to a binding settlement of their dispute in open court? (2) If the parties did so agree, what were the enforcement rights of the plaintiff when the defendants] withdrew from the settlement? (3) If the parties did so agree, what right did the defendants] have to a jury trial on the underlying claim on the settlement agreement?” Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 221 Conn. 906, 600 A.2d 1359 (1992).

I

We begin our analysis by clarifying the nature of the defendants’ claim. The defendants do not dispute that the parties entered into a binding settlement contract on May 17,1990. Rather, the gravamen of the defendants’ claim is that the plaintiff, once it filed a motion to open the judgment, had elected to pursue its claim under the lease and was therefore precluded from seeking enforcement of the settlement contract. The defendants argue that they were deprived of their right to due process of law and to a jury trial when the trial court summarily enforced the settlement agreement after the plaintiff allegedly had elected to pursue its claim under the lease. We reject both of the defendants’ claims.

“An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor’s existing duty. Performance of the accord discharges the original duty.” 2 Restatement (Second), Contracts § 281 (1982); W. H. McCune, Inc. v. Revzon, 151 Conn. 107, 109, 193 A.2d 601 (1963). If there is a breach of the accord, the obligee has the option of either seeking enforcement of the original duty or seeking enforcement of any obligation under the accord. 2 Restatement (Second), Contracts § 281 (1982); see also Montgomery v. Smith, 40 Conn. Sup. 358, 361, 499 A.2d 444 (1985); Girasulo v. Consolidated Motor Lines, Inc., 5 Conn. Sup. 245, 247-48 (1937). Thus, in the present case, the plaintiff had the option of either pursuing its claim for breach of the lease agreement or enforcing the duties under the accord.

The initial question, then, is whether the plaintiff elected to enforce the original lease agreement. The defendants do not claim that the plaintiff was required to decide at the outset whether to proceed under the lease agreement or under the settlement contract. Rather, the defendants claim that the plaintiff made an election and was accordingly bound.

The record indicates that the plaintiff informed the defendants on at least three occasions that it was reserving the right to enforce the settlement contract. Both in its motion to open and in a cover letter sent to the defendants, the plaintiff specifically reserved its right to proceed under either the original lease or the accord. After the trial court granted the plaintiffs motion to open, the plaintiff again asserted the right to enforce the settlement contract. Upon granting the plaintiff’s motion for judgment in accordance with enforcement of the settlement contract, the trial court stated: “I don’t think the argument of the defendant[s], that counsel for the plaintiff or that the plaintiff has somehow waived the right to seek such relief, was established or is established because of the prior effort of the plaintiff to open the judgment. The motion to open the judgment clearly reserves to the plaintiff the right to seek either option. Obviously, the withdrawal had to be vacated before any further relief could be granted.” We agree with the trial court and the Appellate Court that the plaintiff did not elect to proceed under the lease agreement when it filed its motion to open.

The defendants also claim that they were deprived of their right to trial by jury when the trial court summarily rendered judgment on the accord. We disagree. Under Connecticut law, it is clear that “[Tjitigants . . . have a constitutional right to have issues of fact determined by a jury. Mather v. Griffin Hospital, [207 Conn. 125, 138, 540 A.2d 666 (1988)]; Seals v. Hickey, 186 Conn. 337, 350, 441 A.2d 604 (1982); Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980).” Palomba v. Gray, 208 Conn. 21, 25, 543 A.2d 1331 (1988). The corollary to this constitutional right is that if there is no issue of fact, there is no right to a jury trial. In the present case, there was no issue of fact concerning the terms of the accord reached by the parties in open court. Indeed, the parties agree that the terms of the agreement were clear and unambiguous.

Notwithstanding the agreement, the defendants argue that the plaintiff was required to institute a separate action for breach of the accord in order to enforce it. The plaintiff argues that the trial court has the power to enforce summarily the settlement agreement within the proceedings initiated to resolve the underlying claim for breach of the lease. We have not previously considered this narrow question and turn to the federal courts for guidance.

A trial court has the inherent power to enforce summarily a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous. Gatz v. Southwest Bank of Omaha, 836 F.2d 1089, 1095 (8th Cir. 1988); see also J. Fischer, “Enforcement of Settlements: A Survey,” 27 Tort & Ins. L.J. 82, 92 (1991). “Agreements that end lawsuits are contracts, sometimes enforceable in a subsequent suit, but in many situations enforceable by entry of a judgment in the original suit. A court’s authority to enforce a settlement by entry of judgment in the underlying action is especially clear where the settlement is reported to the court during the course of a trial or other significant courtroom proceedings.” Janus Films, Inc. v. Miller, 801 F.2d 578, 583 (2d Cir. 1986); see also Janneh v. GAF Corporation, 887 F.2d 432, 436-37 (2d Cir. 1989), cert. denied, 498 U.S. 865, 111 S. Ct. 177, 112 L. Ed. 2d 141 (1990); Meetings & Expositions, Inc. v. Tandy Corporation, 490 F.2d 714, 717 (2d Cir. 1974).

In Janus Films, Inc. v. Miller, supra, 583, Judge Newman, writing for the majority of the Second Circuit Court of Appeals, noted the important policy behind a court’s power to enforce summarily a settlement agreement: “Due regard for the proper use of judicial resources requires that a trial judge proceed with entry of a settlement judgment after affording the parties an opportunity to be heard as to the precise content and wording of the judgment, rather than resume the trial and precipitate an additional lawsuit for breach of a settlement agreement. This authority should normally be exercised whenever settlements are announced in the midst of a trial.”

Summary enforcement is not only essential to the efficient use of judicial resources, but also preserves the integrity of settlement as a meaningful way to resolve legal disputes. When parties agree to settle a case, they are effectively contracting for the right to avoid a trial. “The asserted right not to go to trial can appropriately be based on a contract between the parties.” Janneh v. GAF Corporation, supra, 436. “The essence of that right [cannot] be vindicated effectively after the trial has occurred.” Id. To hold that a jury trial is a necessary predicate to enforcement of a settlement agreement would undermine the very purpose of the agreement. We hold that a trial court may summarily enforce a settlement agreement within the framework of the original lawsuit as a matter of law when the parties do not dispute the terms of the agreement. The defendants did not have a right to a jury trial in this case and the trial court properly rendered judgment in accordance with the settlement contract.

II

The plaintiff also challenges the trial court’s refusal to award attorney’s fees in addition to the damages specified in the settlement agreement. The plaintiff relies on three different authorities to support its claim for attorney’s fees. First, the plaintiff claims that the lease itself provides for the award of attorney’s fees. The plaintiff relies on our holding in Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 246, 440 A.2d 306 (1982), in which we reversed the trial court’s decision not to award attorney’s fees and held that the plaintiff had a clear contractual right to attorney’s fees. See also Pacelli Bros. Transportation, Inc. v. Pocelli, 189 Conn. 401, 415-16, 456 A.2d 325 (1983). These cases are inapposite, however, because the plaintiff has chosen not to proceed under the original lease agreement. As previously noted, “[pjerformance of the accord discharges the original duty” under the contract. 2 Restatement (Second), Contracts § 281 (1982). In this case, the entry of judgment in accordance with the settlement contract discharged the defendants’ obligations under the lease agreement, including any obligation to pay attorney’s fees.

The plaintiff also claims entitlement to attorney’s fees under General Statutes § 52-236, which allows a party to submit proof of damages that have accrued from a cause of action after the action has commenced. As we stated above, the entry of judgment in accordance with the settlement agreement discharged the defendants from any obligations arising under the lease. Furthermore, the plaintiff concedes that the settlement agreement did not contain a provision regarding the award of attorney’s fees. Accordingly, § 52-236 does not support the claim for attorney’s fees under the settlement agreement.

Finally, the plaintiff relies on General Statutes § 52-257 (e), which authorizes the trial court to award taxable costs in an equitable action. “ ‘Costs are the creature of statute . . . and unless the statute clearly provides for them courts cannot tax them.’ ” Verrastro v. Sivertsen, 188 Conn. 213, 217, 448 A.2d 1344 (1982); see also Hartford v. Public Utilities Commission, 30 Conn. Sup. 244, 251, 309 A.2d 844 (1973). The plaintiff points to no authority to suggest that attorney’s fees are included in the taxable “costs” referred to in § 52-257 (e). We agree with the Appellate Court that the plaintiff was not entitled to an award of attorney’s fees.

The judgment of the Appellate Court is reversed in part and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion the other justices concurred.

       Benjamin S. Morris, president of Barclay and Stubbs, Inc., executed a written guarantee of the company’s performance under the lease. Morris also filed a counterclaim, in which he alleged that he had suffered money damages after the plaintiff attached real property that he owned without first affording him notice and an opportunity for a hearing or bond.

       The settlement agreement, as established on the record, included the following terms: “There is an agreement between the parties that the matter will be settled by a release and withdrawal, the condition being that there is to be twenty-five thousand dollars which is to be paid in good funds at the time of the exchange of the release and withdrawal.
      “Also, after the exchange and release and withdrawal there will be a twenty-five thousand dollar irrevocable letter of credit payable in six months with interest at ten percent and the irrevocable letter of credit is to be canceled in the event that the second twenty-five thousand dollars is prepaid.”

       We take judicial notice of the practice among presiding trial judges to require counsel to submit withdrawals when the in-court settlement is reached, prior to the execution of the settlement agreement. This practice provides an efficient method of clearing the court’s docket. The trial court often instructs the parties that if difficulties arise upon effectuating the settlement, either party may request that the case be restored to the docket provided it is requested during the time period in which the court maintains jurisdiction. See, e.g., General Statutes § 52-212a. Either party may then proceed under the original jurisdiction of the court without the necessity of instituting another cause of action.

       The Appellate Court held that the trial court had deprived the defendants of their right to a jury trial, even though the issue had not been raised before the trial court. Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 26 Conn. App. 181, 184-85, 599 A.2d 395 (1991).

       Although the defendants concede that they entered into a binding settlement agreement, they argue that remarks made by the trial judge gave them a unilateral right to withdraw from the settlement agreement. This claim has no merit. As noted in the facts above, immediately after the trial court asked the parties to file withdrawals and assured them that the court would retain jurisdiction should the parties choose not to proceed on the settlement, defense counsel stated: “I do want the record to be clear that we do have a settlement.” The trial court’s words could not alter the nature of the agreement negotiated, reached and acknowledged by the parties in this case.

       The doctrine of election of remedies is equitable in nature and “is largely a survival from the formulary procedure of the common law which necessarily demanded consistency as an end in itself; [the] doctrine does not entirely accord with the modem conception of procedure which sacrifices consistency so far as is necessary to the attainment of substantial justice; and . . . the doctrine is a harsh one not to be extended.” (Internal quotation marks omitted.) National Transportation Co. v. Toquet, 123 Conn. 468, 479, 196 A. 344 (1937). The doctrine is not intended to prevent recourse to any remedy, but to prevent double redress for a single wrong. 25 Am. Jur. 2d, Election of Remedies § 1; see also National Transportation Co. v. Toquet, supra; DeLucia v. Burns, 11 Conn. App. 439, 527 A.2d 1234, cert. denied, 205 Conn. 803, 531 A.2d 935 (1987).

       The letter, dated July 16,1990, stated in part: “This Motion to Reopen does not constitute an election on our part that we will only pursue the case in chief. It simply constitutes the first action we intend to take to resolve this matter. We reserve the right at all times to either sue upon the contract of settlement or to reopen the original claim. As to either action, we are seeking all attorneys fees so expended.”

       General Statutes § 52-236 provides: “In any action founded on contract, for the recovery of damages, the plaintiff may offer evidence of any damages that may have accrued from the same cause of action subsequent to the bringing of the action, provided he shall have given reasonable notice to the defendant of the damages which he intends to prove, and may recover judgment for the full amount of damages he may prove that he has sustained. The plaintiff, upon giving such notice, may, by leave of the court, increase the statement of amount in demand in the writ subject to the provisions of sections 52-91 and 52-259.”

       General Statutes § 52-257 (e) provides: “The provisions of this section shall not interfere with the discretion of the court in taxing costs in actions in which equitable relief is demanded.”


text:
    Francis Harrington v. Lawrence DelPonte, Commissioner of Motor Vehicles
    Decided January 14, 1993
    The Supreme Court docket number is SC 14676.

      Donald G. Leis, Jr., in support of the petition.

      Robert T. Morrin, assistant attorney general, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 582 (AC 10830), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that there was substantial evidence in the record to support the finding that the arresting officer was certified to administer the breathalyzer test?”


text:
    Lamberto Lucarelli v. Freedom of Information Commission
    Decided February 4, 1993

      Lamberto Lucarelli, pro se, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 547 (AC 10925), is denied.


text:
    Frank J. Brown v. Mario Smarrelli
    Decided February 4, 1993

      Steven L. Seligman, in support of the petition.

      Robert E. Kiley and Lois B. Tanzer, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 660 (AC 11077), is denied.


text:
    State of Connecticut v. Robert Mercer
    Decided February 4, 1993

      Thomas M. Conroy, special public defender, in support of the petition.

      Susann E. Gill, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 679 (AC 10890), is denied.


text:
    State of Connecticut v. Thomas R. O’Brien
    Decided February 4, 1993

      Deborah Del Prete Sullivan, assistant public defender, in support of the petition.

      Timothy J. Sugrue, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 724 (AC 10736), is denied.


text:
    Garrett Smith v. Leonard Barbieri, Warden
    Decided February 4, 1993

      Denise Ansell, special public defender, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
   The petitioner Garrett Smith’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 817 (AC 10865), is denied.


text:
    Fleet Bank of Connecticut v. Allan J. Breed et al.
    Decided February 4, 1993

      Richard P. Weinstein, in support of the petition.

      Anna R. Hoyt, in opposition.
   The defendants Allan J. Breed, Joseph D. Maher and Lawrence J. Levesque’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 924 (AC 10873), is denied.


text:
    State of Connecticut v. Keith M. Commerford
    Decided February 4, 1993

      Suzanne Zitser, assistant public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 26 (AC 10475), is denied.


text:
    First Charter National Bank v. Robert A. Ross Et Al.
    Decided February 8, 1993
    The Supreme Court docket number is SC 14688.

      Richard L. Newman, in support of the petition.

      Michael S. McKenna, in opposition.
   The defendant Ann Ross’ petition for certification for appeal from the Appellate Court, 29 Conn. App. 667 (AC 11063), is granted, limited to the following issue:

“Was the Appellate Court correct when it reversed the trial court’s determination that Robert A. Ross acted as the plaintiff’s agent and, as such, his fraud should be imputed to the plaintiff?”


author: Berdon, J.,

text:
    State of Connecticut v. George Maxwell
    Decided February 11, 1993

      Thomas Ullman, public defender, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 704 (AC 10006), is denied.

Berdon, J.,

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


text:
    State of Connecticut v. James Willey Young
    Decided February 11, 1993

      Denise M. Cloutier and Robert S. Melvin, special public defenders, in support of the petition.

      Lawrence J. Tytla, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 754 (AC 10278), is denied.


text:
    Alan Amore et al. v. Emil Frankel, Commissioner of Transportation
   The defendant commissioner’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 565 (AC 10677), is granted, limited to the following issues:

“1. Does the duty of the commissioner of transportation to maintain highways, bridges and sidewalks under General Statutes § 13a-144 extend to driveways?

Decided February 11, 1993

The Supreme Court docket number is SC 14689.

Michael 0 ’Sullivan, in support of the petition.

Robert J. Enright, in opposition.

“2. Did the Appellate Court properly reverse the trial court’s dismissal of this action on the basis that the complaint stated a cause of action under General Statutes § 13a-144, notwithstanding the affidavits of the defendant indicating that the defendant had no duty to keep the area in question in repair?”


text:
    O & G Industries, Inc. v. Town of New Milford
    Decided February 11, 1993
    The Supreme Court docket number is SC 14690.

      Robert E. Mansfield, in support of the petition.

      Linda L. Morkan and George C. Hastings, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 783 (AC 11048), is granted, limited to the following issue:

“Under General Statutes § 49-41, does a municipality owe a duty to a subcontractor or material supplier to obtain a payment bond from the general contractor?”


text:
    Sandra Halliday v. Daw’s Critical Care Registry, Inc., et al.
    Decided February 18, 1993

      David C. Davis, in support of the petition.
   The defendants Darien Convalescent Center and Employers Insurance of Wausau’s petition for certification for appeal from the Appellate Court (AC 11770) is denied.


text:
    Santina Calabro v. Estate of Joseph Calabro et al.
    Decided February 18, 1993

      Max F. Brunswick, in support of the petition.

      Timothy Brignole, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court (AC 11451) is dismissed.


text:
    State of Connecticut v. Charles Christiano, Sr.
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 642 (AC 10587), is granted, limited to the following issues:

“1. Did the Appellate Court correctly decide that the defendant’s right to confrontation was not violated when the trial court refused to admit evidence of the complainant’s prior sexual conduct?
“2. Did the Appellate Court correctly decide that evidence of the complainant’s prior sexual behavior was not admissible to show a pattern of conduct of a particular mode of consensual sexual relationships within family settings?
“3. Did the Appellate Court correctly examine the record and determine that the testimony of Dr. Horowitz was not evidence of child sexual abuse accommodation syndrome that was being offered to identify the complainant as suffering from child sexual abuse accommodation syndrome, to bolster the credibility of the complainant, to identify the defendant as fitting a particular criminal profile, and as evidence of prior uncharged crimes?
“4. Did the Appellate Court correctly decline to address the issue of whether the prior sexual conduct of the complainant should have been admitted to show that the defendant was not the source of the complainant’s psychological disease, i.e., child sexual abuse accommodation syndrome?”

Decided February 18, 1993

The Supreme Court docket number is SC 14692.

Lawrence S. Dressier and W. Paul Flynn, in support of the petition.

John A. East III, deputy assistant state’s attorney, in opposition.


text:
    Old Stone Bank v. Barbara Ann Murray et al.
    Decided February 18, 1993

      Barbara Ann Murray, pro se, in support of the petition.

      William K. Eisenman, in opposition.
   The named defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 927 (AC 10886), is denied.


text:
    State of Connecticut v. Juan Velez
    Decided February 18, 1993

      Paula Mangini Montonye, assistant public defender, in support of the petition.

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 9 (AC 11326), is denied.


text:
    Essex Savings Bank v. Martin Frimberger et al.
    Decided February 18, 1993

      John T. O’Reilly, pro se, in support of the petition.
   The defendant John T. O’Reilly’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 911 (AC 11091), is denied.


text:
    State of Connecticut v. Istvan Toth
    Decided February 24, 1993

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

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 843 (AC 10387), is denied.


text:
    State of Connecticut v. Istvan Toth
    Decided February 24, 1993

      Frederick W. Fawcett, assistant state’s attorney, in support of the petition.

      Elizabeth M. Inkster, assistant public defender, in opposition.
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 843 (AC 10387), is denied.


text:
    Kathleen B. Borkowski v. John J. Borkowski
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 925’ (AC 10882), is granted, limited to the following issue:

Decided February 24, 1993

The Supreme Court docket number is SC 14705.

Wesley W. Horton and Alexandra Davis, in support of the petition.

Averum J. Sprecher, in opposition.

“When a party files a motion to modify which seeks termination of alimony after a prior modification of alimony, may the trial court consider any change of circumstances arising since the date of the original decree?”


text:
    State of Connecticut v. Jon Ong
    Decided February 24, 1993

      Roger J. Frechette, in support of the petition.

      James M. Ralls, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 45 (AC 10808), is denied.


text:
    C. Michael Budlong v. James H. Nadeau
    Decided February 24, 1993

      James H. Nadeau, pro se, in support of the petition.

      Kathleen A. Murrett, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 61 (AC 10612), is denied.


text:
    Nathan Cohen v. Robert B. Crim
    Decided February 24, 1993

      Robert B. Crim, pro se, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court (AC 11635) is denied.


text:
    State of Connecticut v. William Hamilton, Jr.
    Decided February 24, 1993
    The Supreme Court docket number is SC 14704.

      Elizabeth M. Inkster, assistant public defender, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 68 (AC 10692), is granted, limited to the following issue:

“Did the Appellate Court improperly commingle direct appeal and collateral review standards and thereby arrive at the erroneous and harmful legal conclusion that in order to prevail on a direct appeal claim that the trial court erred in denying the defendant’s motion for a continuance to obtain new counsel, the defendant must demonstrate ‘specific prejudice’ or claim ‘ineffective assistance of counsel’?”


text:
    Thomas Cohn et al. v. Peter R. Johl et al.
    Decided March 4, 1993

      Peter R. Johl, pro se, in support of the petition.
   The named defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 906 (AC 10293), is denied.


text:
    Louise Giles v. City of New Haven et al.
    Decided March 4, 1993
    The Supreme Court docket number is SC 14709.

      Constance L. Epstein and Richard J. Kenny, in support of the petition.

      Steven J. DeFrank and David A. Leff, in opposition.
   The defendant Otis Elevator Company’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 148 (AC 10952), is granted, limited to the following issue:

“In the circumstances of this case, did the Appellate Court properly apply the doctrine of res ipsa loquitur?”


text:
    State of Connecticut v. Wallace Joyce
    Decided March 4, 1993
    The Supreme Court docket number is SC 14708.

      John R. Williams, in support of the petition.

      James A. Killen, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 164 (AC 9896), is granted, limited to the following issue:

“In the circumstances of this case, were the police, while lawfully in custodial possession of the defendant’s clothing, required by either the federal or state constitution to obtain a warrant before transferring the clothing to a state laboratory and subjecting it to chemical analysis?”


text:
    Holly Hill Holdings v. George D. Lowman et al.
    Decided March 4, 1993
    The Supreme Court docket number is SC 14707.

      Ronald W. Lindlauf, Jr., in support of the petition.

      Harold B. Finn III, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 30 Conn. App. 204 (AC 10746/11135), is granted, limited to the following issues:

“1. Does the Underground Storage Tank Regulation, General Statutes § 22a-449, apply to a temporarily out-of-service facility?
“2. If the answer to the first question is yes, under the circumstances of this case did the failure of the plaintiff to comply with that regulation give rise to either a special defense or a private right of action in the defendants?”


text:
    State of Connecticut v. David A. Cleary
    Decided March 11, 1993

      David A. Cleary, pro se, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court (AC 11869) is denied.


text:
    Franklin L. Frank v. Leon E. Cooper et al.
    Decided March 11, 1993

      Leon E. Cooper, pro se, and Mary P. Cooper, pro se, in support of the petition.

      Kevin L. Burns, in opposition.
   The defendants Leon E. Cooper and Mary P. Cooper’s petition for certification for appeal from the Appellate Court (AC 12021) is denied.


text:
    Barbara Ezikovich v. Caren Linden et al.
    Decided March 11, 1993

      Theodore A. Harris, in support of the petition.

      Karen L. Murdoch, in opposition.
   The defendants Caren Linden and Robert Linden’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 1 (AC 10923), is denied.


text:
    Carabetta Builders, Inc. v. Hotz Corporation Hotz Corporation v. Carabetta Builders, Inc.
    Decided March 11, 1993

      Thomas E. Katon, in support of the petition.

      Thomas G. Librizzi and Linda J. Cannata, in opposition.
   The petition of Carabetta Builders, Inc., for certification for appeal from the Appellate Court, 30 Conn. App. 157 (AC 11163), is denied.


text:
    State of Connecticut v. Julio Rivera
    Decided March 11, 1993

      Susan Brown, assistant public defender, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 224 (AC 10362), is denied.


text:
    Janak S. Dave v. Dennis C. Cavanaugh et al.
    Decided March 11, 1993

      Sanatkumar V. Pandit, in support of the petition.

      Robert W. Lotty, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 903 (AC 11347), is denied.


text:
    Joel Paul Berger et al. v. 280 Railroad Avenue Associates Limited Partnership et al.
    Decided March 11, 1993

      Paul L. Bollo, in support of the petition.

      Louis Ciccarello, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 30 Conn. App. 904 (AC 11305), is denied.


text:
    Housatonic Bank and Trust Company v. Buselli Associates et al.
    Decided March 11, 1993

      Paul R. Kraus, in support of the petition.

      Elizabeth B. Leete, in opposition.
   The defendants Norman J. Voog, Walter J. Lewis, Jr., Victor J. Buselli, Buselli Associates and LWJ Corporation’s petition for certification for appeal from the Appellate Court, 30 Conn. App. 908 (AC 11223), is denied.

Berdon, J.,

dissenting. I would grant the defendants Norman J. Voog, Walter J. Lewis, Jr., Victor J. Buselli, Buselli Associates and LWJ Corporation’s petition for certification.


text:
    Lewis A. Lizotte v. Rick C. Welker et al.
    Decided March 25, 1993

      James W. Sherman, in support of the petition.

      Stuart G. Blackburn, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 922 (AC 11244), is denied.