Brown v. Smarrelli

617 A.2d 905, 29 Conn. App. 660, 1992 Conn. App. LEXIS 443
CourtConnecticut Appellate Court
DecidedDecember 15, 1992
Docket11077
StatusPublished
Cited by13 cases

This text of 617 A.2d 905 (Brown v. Smarrelli) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Smarrelli, 617 A.2d 905, 29 Conn. App. 660, 1992 Conn. App. LEXIS 443 (Colo. Ct. App. 1992).

Opinion

O’Connell, J.

The plaintiff appeals from a judgment in favor of the defendant following a jury trial. The plaintiff claims that the trial court (1) improperly granted the defendant a continuance, and (2) improperly refused to take judicial notice of a city speed limit. We affirm the judgment of the trial court.

The following facts are pertinent to this appeal. The plaintiff and the defendant were operators of vehicles involved in an accident at an intersection in Hartford. The plaintiff brought the present action claiming that he suffered physical injuries as a result of the defendant’s negligence in causing the accident. Trial commenced on Tuesday, October 1, 1991, and on Friday, October 4, the plaintiff completed his case-in-chief. It was anticipated that the defendant would commence his case when the trial resumed on Tuesday, October 8, 1991. Sometime after court adjourned on October 4, the defendant suffered a severe heart attack requiring emergency open-heart bypass surgery.

Defense counsel seasonably informed the court and the plaintiff’s counsel of the situation and moved for a continuance when court reconvened on Tuesday, October 8. The court denied the motion as to any witness other than the defendant and, accordingly, defense counsel proceeded with his case. On October 10, when the defendant’s case had concluded except for the defendant’s testimony, defense counsel moved for a [662]*662continuance until the defendant was able to testify. The motion was oral and unaccompanied by an affidavit. See Practice Book § 280.1

The plaintiff’s counsel objected to the continuance due to the lack of an affidavit, whereupon the court ordered defense counsel to produce such an affidavit. On the following day, defense counsel reported that he had prepared an affidavit but objected to filing it.2 He claimed that under the circumstances, Practice Book § 280 did not apply because, inter alia, the peculiar circumstances of the case made it impossible for him to confer with his client while preparing the affidavit. His arguments proved persuasive and the trial court reversed its prior ruling and granted a continuance without requiring defense counsel to produce an affidavit.

On October 16, the defendant’s treating physician testified that the defendant’s condition would render him unable to testify for several weeks. Following argument from both sides, the court ordered the defendant’s deposition to be taken on October 28, 1991, with trial to resume on October 29. Pursuant to that order, the defendant’s videotaped deposition was taken at his home and played for the jury on the following day, October 29.

[663]*663In his deposition, the defendant testified concerning his speed at the time of the accident. That testimony prompted the plaintiffs counsel to ask the trial court to take judicial notice of a Hartford city ordinance relating to speed limits on city streets. The court denied that request.

No further evidence was offered by either side. The jury returned a verdict for the defendant and the trial court denied the plaintiffs motion to set the verdict aside. The plaintiff appealed.

I

The plaintiff first claims that Practice Book § 280 is mandatory and, therefore, that the defendant’s motion for a continuance without a supporting affidavit required denial of the continuance. The relevant portion of § 280 provides: “Whenever a motion is made for the . . . continuance of a cause assigned for trial on account of the absence of a material witness, such motion . . . shall be supported by an affidavit. . . .” (Emphasis added.) The principles of statutory construction apply to the interpretation of the rules of practice. Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984).

In support of his argument, the plaintiff relies on the general rule of statutory construction that “shall” connotes a mandatory duty as contrasted with “may,” which implies permissive action. Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986). Connecticut courts have consistently demonstrated “a disposition to look through the literal meaning of words and forms of procedure to the essential purposes to be served.” (Internal quotation marks omitted.) Tramontano v. Dilieto, 192 Conn. 426, 433, 472 A.2d 768 (1984), quoting Connors v. New Haven, 101 Conn. 191, 198, 125 A. 375 (1924). “The use of the word ‘shall,’ though significant, does not invariably create a mandatory duty [664]*664. . . .” Weiss v. Newtown, 4 Conn. App. 200, 203, 493 A.2d 273 (1985), quoting Tramontano v. Dilieto, supra, 433.

We determine whether a statute is mandatory or directory by testing “whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the statutory provision is mandatory. ... If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.” (Citations omitted; internal quotation marks omitted.) In re Adrien C., 9 Conn. App. 506, 510, 519 A.2d 1241, cert. denied, 203 Conn. 802, 522 A.2d 292 (1987), quoting Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985).

The purpose of § 280 is to allow trials to proceed without unnecessary delay caused by absent witnesses.3 Thus, because it is “designed to secure order, system and dispatch in the proceedings”; In re Adrien C., supra; it meets the test of being directory in nature. This is especially true where, as here, the provision is stated in affirmative terms unaccompanied by negative terms and without any provision that would “invalidate action upon a failure to comply.” (Internal quotation marks omitted.) In re Adrien C., supra, 511.

[665]*665The plaintiffs argument for a strict construction of § 280 neglects a fundamental tenet of trial jurisprudence. It is axiomatic that the judge must have wide discretion and control of the proceedings before the court and the granting or denial of a continuance will be set aside only if a clear abuse of the trial court’s discretion is shown. On appeal, we will make every reasonable presumption in favor of the proper exercise of the trial court’s discretion. Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980); see 1 B. Holden & J. Daly, Connecticut Evidence § 35, p. 162; annot., 68 A.L.R.2d 470.

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Bluebook (online)
617 A.2d 905, 29 Conn. App. 660, 1992 Conn. App. LEXIS 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-smarrelli-connappct-1992.