Michalski v. Hinz, (AC 27040) (Conn. App. 4/10/2007)
| Decision Date | 10 April 2007 |
| Docket Number | (AC 27040),(AC 27041) |
| Court | Connecticut Court of Appeals |
| Parties | RICHARD W. MICHALSKI ET AL. <I>v.</I> ROBERT HINZ |
Appeal from Superior Court, judicial district of Danbury, Frankel, J.
Frederick A. Lovejoy, for the appellant in AC 27040, appellee in AC 27041 (defendant).
Gary J. Strickland, for the appellees in AC 27040, appellants in AC 27041 (plaintiffs).
Gruendel, Harper and Pellegrino, Js.
In the late evening of July 9, 2001, two vessels collided on Candlewood Lake in New Fairfield and a civil action followed. All parties now appeal from the judgment of the trial court. In AC 27040, the defendant, Robert Hinz, claims that the court improperly (1) found him negligent due to his failure to pass port to port in violation of General Statutes § 15-131, (2) found him negligent due to his failure to sound his horn, (3) applied certain federal inland navigation rules, (4) declined to apply the doctrine of error in extremis and (5) denied his motion for a judgment of dismissal. In AC 27041, the plaintiffs, Richard W. Michalski and Maija Andross, contend that the court failed to comply with General Statutes § 52-257 in awarding costs. We affirm in part and reverse in part the judgment of the trial court.
The underlying facts are largely undisputed. On the evening of July 9, 2001, the plaintiffs fished at various locations on Candlewood Lake aboard a nineteen foot motorboat. That same evening, the defendant celebrated his fiftieth birthday with family and friends, culminating with a jaunt aboard his twenty-four foot sailboat. Operating his vessel under motor due to calm skies, a terrible end to that evening approached.
At approximately 11:30 p.m., the sailboat proceeded in a northerly direction on the lake. At that time, the plaintiffs, who had been fishing at a location to the north of the sailing vessel, set off for another location. They headed in a southerly direction, traveling approximately twenty miles per hour. The two vessels were on a collision course.
Less than thirty seconds passed between the time that the defendant and his guests first glimpsed the motorboat and impact. When the defendant saw the motorboat, he took evasive maneuvers, first steering his vessel to starboard in an effort to pass the motorboat on his port side. Seconds later, the defendant abruptly changed course, turning the vessel to port in an attempt to pass the motorboat on his starboard side, to no avail. The vessels collided head on.
In the wake of those events, litigation ensued. The plaintiffs brought an action sounding in negligence and recklessness against the defendant concerning the events of July 9, 2001, as set forth in an amended complaint filed April 8, 2005. In response, the defendant filed an answer and special defenses that alleged, inter alia, that the plaintiffs' negligence proximately caused the collision. Following a trial, the court found the defendant negligent in failing to pass port to port and in failing to sound his horn. The court further found the plaintiffs negligent in traveling at an unsafe speed and in failing to maintain a proper lookout. The court found no recklessness on the part of any party. It apportioned liability equally between the defendant and the plaintiffs. The court awarded Michalski a total of $12,850 in damages, reduced by 50 percent to $6425, against the defendant. The court awarded Andross a total of $83,382 in damages, reduced by 50 percent to $41,691, against the defendant. The court further ordered that "[e]ach party shall bear their own costs and expenses." The plaintiffs subsequently filed a motion to assess costs, which the court denied. The defendant thereafter filed a motion for review with this court, which we granted, ordering an articulation. In response, the court issued a "Supplemental Memorandum of Decision in Response to Order for Articulation." These consolidated appeals followed.
The defendant first claims that the court's finding that he failed to pass port to port in violation of § 15-131 improperly served as a basis for its finding of negligence on his part.1 He contends that, because the plaintiffs' complaint neither pleaded that statute nor contained such a factual allegation, the court's finding improperly figured into its negligence determination. We agree with the defendant.2
Because the interpretation of pleadings presents an issue of law, our review is plenary. Maloney v. PCRE, LLC, 68 Conn. App. 727, 746, 793 A.2d 1118 (2002). "It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [its] complaint." (Internal quotation marks omitted.) Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496, 646 A.2d 1289 (1994). More than one century ago, our Supreme Court held that "[w]hen the facts upon which the court in any case founds its judgment are not averred in the pleadings, they cannot be made the basis for a recovery." Whiting v. Koepke, 71 Conn. 77, 79, 40 A. 1053 (1898). The vitality of that bedrock principle of Connecticut practice is unquestionable. See, e.g., Lundberg v. Kovacs, 172 Conn. 229, 233, 374 A.2d 201 (1977); Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952); Monetary Funding Group, Inc. v. Pluchino, 87 Conn. App. 401, 414, 867 A.2d 841 (2005); Criscuolo v. Mauro Motors, Inc., 58 Conn. App. 537, 545, 754 A.2d 810 (2000); O'Brien v. Coburn, 39 Conn. App. 143, 149, 664 A.2d 312 (1995); Francis v. Hollauer, 1 Conn. App. 693, 695, 475 A.2d 326 (1984).
The plaintiffs' complaint alleged several grounds for its claims of negligence. It was silent as to the defendant's failure to pass port to port. In addition, although Practice Book § 10-3 (a) requires in relevant part that "[w]hen any claim made in a complaint . . . is grounded on a statute, the statute shall be specifically identified by its number," the plaintiffs' complaint did not identify § 15-131. Although our courts repeatedly have recognized that the rule embodied in Practice Book § 10-3 is directory and not mandatory; see, e.g., Steele v. Stonington, 225 Conn. 217, 221 n.7, 622 A.2d 551 (1993); Fleet National Bank v. Lahm, 86 Conn. App. 403, 405 n.3, 861 A.2d 545 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005); notice is the critical consideration in such instances. As this court has observed, "[a]s long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3 (a) will not bar recovery." (Citation omitted; internal quotation marks omitted.) Spears v. Garcia, 66 Conn. App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003). In Spears, the plaintiffs failed to plead the protections of General Statutes § 52-557n in their complaint. Spears v. Garcia, supra, 676. Because the plaintiffs relied on that statute in their memorandum of law in opposition to the defendants' motion for summary judgment and in oral argument before the trial court, we concluded that the defendants were sufficiently apprised of the nature of the action. Id. By contrast, the plaintiffs in the present case never alleged a violation of § 15-131 at any stage of the proceedings. On that record, we cannot conclude that the defendant was sufficiently apprised that § 15-131 was at issue.
In the present case, the plaintiffs made no factual allegation concerning the defendant's failure to pass port to port in their negligence claims.3 Because they may rely only on what they have alleged, the plaintiffs may not recover for any negligence resulting from the defendant's failure to pass port to port.
The plaintiffs do not dispute that pleading deficiency.4 Rather, they claim an immaterial variance.5 (Citations omitted; internal quotation marks omitted.) Commissioner of Motor Vehicles v. DeMilo & Co., 233 Conn. 254, 275-76, 659 A.2d 148 (1995). To be material, a variance must relate to the cause of action alleged. LaFaive v. DiLoreto, 2 Conn. App. 58, 61, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984). "[A] variance which alters the basic nature of a complainant's cause of action cannot be condoned." (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 63, 717 A.2d 77 (1998). The critical inquiry is whether the opposing party was on notice of the variance. See Tedesco v. Stamford, 215 Conn. 450, 463, 576 A.2d 1273 (1990) (), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev'd, 222 Conn. 233, 610 A.2d 574 (1992); see also Normand Josef Enterprises, Inc. v. Connecticut National Bank, supra, 230 Conn. 496 ().
The plaintiffs misunderstand the defendant's argument on appeal. The defendant is not alleging a variance between the plaintiffs' pleadings and their proof offered at trial. Rather, he alleges that the court, in rendering judgment, did so on a ground never claimed by the plaintiffs. We agree.
"A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief." (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 129, 788 A.2d 83 (2002). The pertinent...
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