text:
    CLIFFORD M. WHEELER v. BRIAN M. FOSTER ET AL.
    (14422)
    O’Coimell, Landau and Daly, Js.
    Argued November 5, 1990
    officially released February 25, 1997

      Brian McCormick, with whom, on the brief, was Michael D. Ryback, for the appellant (plaintiff).

      Robert L. Fisher, Jr., for the appellee (named defendant).
   LANDAU, J.

The plaintiff, Clifford M. Wheeler, appeals from the judgment rendered after a trial to the court finding record title to a parcel of real property in the defendant Brian M. Foster. On appeal, the plaintiff claims that the trial court improperly (1) found that the defendant possessed record title to the disputed parcel of real property, (2) rendered a conflicting judgment, and (3) failed to dispose of all the issues of record title. We affirm the judgment of the trial court.

The trial court could reasonably have found the following facts. In 1938, Golda Rylander Balch (Golda) acquired approximately sixty-seven acres of land in Morris. Prior to her death on August 24, 1980, Golda made five separate conveyances, four of which are relevant to this appeal. The four conveyances are summarized as follows. In 1938, she conveyed approximately twenty-six acres by warranty deed to Charles E. Balch and Pauline K. Balch (Charles and Pauline). At trial, the parties referred to this deed as the “divisional deed,” and we will do the same. In 1961, Golda conveyed 4.1 acres by warranty deed to Carl L. Gartner and Betty S. Gartner, which the plaintiff acquired in 1968. In 1964, she conveyed 1.5 acres by warranty deed to James F. Butler and Nellie F. Butler, which the plaintiff acquired in 1986. The final relevant conveyance by Golda was of approximately twenty-six acres by quit claim deed to the city of Waterbury in 1968.

The parties agree that the central deed in this case is the 1938 conveyance from Golda to Charles and Pauline. The plaintiffs claim of ownership to the disputed parcel by record title is predicated on his claim that Golda still owned a portion of the original sixty-seven acre parcel at the time of her death. He contends that the area in dispute was not included in any conveyance by Golda and that he acquired record title by quit claim deeds from Golda’s heirs in 1993. The defendant contends that the disputed parcel of land was contained within the property conveyed by Golda to Charles and Pauline, and subsequently conveyed to the defendant’s predecessor in title, Sylvia M. Foster.

I

In his first claim, the plaintiff contends that the trial court improperly found that the defendant possessed record title. The plaintiff argues that the trial court’s interpretation of the “divisional deed” and its finding of record title in the defendant were clearly erroneous. We disagree.

As a threshold matter, the parties disagree as to the scope of our review. The plaintiff cites Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982), for the proposition that the interpretation of the language in a deed presents a question of law on which our scope of review is plenary. Conversely, the defendant argues that because the trial court considered, in addition to the 1938 deed, all the documentary evidence and the conflicting testimony of the parties’ experts, issues of fact were determined and the appropriate scope of review is whether the findings of fact were clearly erroneous. “[W]here the testimony of witnesses as to the location of the land described in deeds is in conflict, it becomes a question of fact for the determination of the court which may rely on the opinions of experts to resolve the problem and it is the court’s duty to accept that testimony or evidence which appears more credible.” Feuer v. Henderson, 181 Conn. 454, 458, 435 A.2d 1011 (1980); Ball v. Branford, 142 Conn. 13, 17, 110 A.2d 459 (1954). Thus, we conclude that the appropriate scope of review is whether the trial court’s findings were clearly erroneous.

“[W]e will upset a factual determination of the trial court only if it is clearly erroneous. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. A finding of fact is clearly erroneous when there is no evidence in the record to support it. . .or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Crowell v. Danforth, 222 Conn. 150, 156, 609 A.2d 654 (1992); see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980).” (Internal quotation marks omitted.) Groton v. Yankee Gas Services Co., 224 Conn. 675, 691, 620 A.2d 771 (1993).

The issue on appeal concerns the trial court’s role as fact finder. The trial court thoroughly examined the various deeds and maps and considered the conflicting expert testimony. The parties’ experts testified at length as to the meaning and interpretation of the “divisional deed” along with the location of certain points and the calculation of distances. A thorough review of the record does not support the conclusion that the trial court’s findings of fact were clearly erroneous and did not leave us with a definite and firm conviction that a mistake had been committed. The thrust of the plaintiffs argument is no more than an assertion that the trial court should have credited the plaintiff’s evidence and found in his favor. Moreover, in cases such as this, in which there is conflicting testimony, a great degree of deference to the trial court’s factual findings is appropriate. See United Components, Inc. v. Wdowiak, 239 Conn. 259, 262-63, 684 A.2d 693 (1996). We conclude, therefore, that the trial court’s factual findings were not clearly erroneous.

II

The plaintiff next claims that the trial court improperly rendered a conflicting judgment on the issue of record title in its memorandum of decision. The plaintiff, relying on Marrin v. Spearow, 35 Conn. App. 398, 403, 646 A.2d 254 (1994), argues that because the trial court has rendered a judgment containing inconsistencies it cannot be sustained. The defendant contends that the trial court’s judgment is consistent.

In its memorandum of decision, the trial court found for the defendant on the complaint and for the plaintiff on the counterclaim. The plaintiff argues, therefore, that the trial court found record title in both parties. The plaintiff concedes, however, that an entire reading of the memorandum of decision would lead one to conclude that the trial court found in favor of the defendant on the issue of record title.

It is clear that the trial court found in favor of the defendant on the complaint, but the trial court’s rulings on the counterclaim are not as clear. In his counterclaim, the defendant averred that he possessed record title, that the plaintiff trespassed on his land and that as a result of this dispute he was unable to sell his property. A careful reading of the memorandum of decision reveals that the trial court expressly ruled in favor of the plaintiff on the defendant’s counterclaim seeking damages for the lost sale of his property. The defendant’s first counterclaim, alleging record title, is a “mirror image” of the complaint and, thus, is deemed decided for purposes of appeal. See Martin v. Martin’s News Service, Inc., 9 Conn. App. 304, 306 n.2, 518 A.2d 951 (1986) , cert. denied, 202 Conn. 807, 520 A.2d 1287 (1987) . While it is true that the defendant’s trespass cause of action was not addressed, it is not necessary for the resolution of this appeal where there is a judgment on an entire complaint. Practice Book § 4002A. We conclude, therefore, that the trial court’s memorandum of decision is consistent.

Ill

The plaintiff’s final claim is that the trial court improperly failed to address the issue of record title as to all the property claimed by the parties in their pleadings. The plaintiff claims ownership to a small triangular piece of land northeast of the disputed parcel. The defendant’s response is twofold. First, the defendant contends, and the plaintiff concedes, that the defendant claimed ownership to only the 1.2 acre lot in dispute and not the remaining 0.17 acre to which the plaintiff also claimed ownership. Second, the defendant contends that because the trial court found his expert more credible and found that Golda had conveyed all of her property in the five deeds, no triangular piece of land exists.

At trial, the defendant’s expert, Bradford E. Smith, a licensed land surveyor, testified that he interpreted the five conveyances to be contiguous parcels of land and, as a result, no triangular piece of land exists. The trial court found the defendant’s expert to be more credible and concluded that Golda’s intent was not to exclude the triangular piece of land from the deeds. Our review of the trial court’s memorandum of decision and its revised rectification and articulation leads us to conclude that the trial court disposed of all the issues of record title to all the property claimed by the parties in their pleadings.

The judgment is affirmed.

In this opinion the other judges concurred.

       Frank Balch, Jr., Gay Jackson and Merrilee Chamberlain were named as defendants, but are not parties to this appeal. We refer in this opinion to Brian M. Foster as the defendant.

       In his complaint, the plaintiff alleged that he owned record title to a parcel of land or, in the alternative, that he acquired title to the parcel'of land by adverse possession. The plaintiff does not challenge the trial court’s judgment in favor of the defendant on his adverse possession claim.

       Golda Balch died intestate on August 24, 1980.

       Because the jurisdiction of the appellate courts is restricted to appeals from final judgments, we must review whether the appeal is properly before us. General Statutes § 52-263; Practice Book § 4000. “The finality requirement underlying our appellate review represents a clear and firm policy against piecemeal appeals.” State v. Powell, 186 Conn. 547, 551, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982). We have no authority to address the merits of the plaintiffs appeal unless it is properly before this court. Connecticut Bank & Trust Co., N.A. v. Reckert, 33 Conn. App. 702, 711, 638 A.2d 44 (1994).
      In the present case, the trial court rendered judgment for the defendant on the plaintiffs complaint and for the plaintiff on the defendant’s counterclaim. The trial court ruled on all the causes of action in the plaintiffs complaint. In his counterclaim, the defendant averred that he possessed record title, that the plaintiff trespassed on his land and that as a result of this dispute he was unable to sell his property. While the trial court failed to address all of the claims in the counterclaim, Practice Book § 4002A provides in relevant part that “[wjhen judgment has been rendered on an entire complaint . . . such judgment shall constitute a final judgment.” Thus, the plaintiffs appeal is properly before us.

       Tlio plaintiff also claims that the trial court improperly considered and relied on noneontemporaneous evidence in making its findings of record title. The plaintiff, however, did not object to the admission of the non-contemporaneous deeds and maps considered by both parties’ experts at trial. Therefore, we decline to review this unpreserved claim. See Practice Book § 4061; State v. Oden, 43 Conn. App. 480, 487, 684 A.2d 1195 (1996). The plaintiff further claims that the trial court improperly failed to articulate that its site visit was not a significant factor in its findings of record title. In its memorandum of decision, the trial court clearly set. forth the evidence on which it relied in making its factual findings of record title. Because the determination of whether the trial court relied on the site visit is of no consequence to this appeal, the plaintiffs claim has no merit.

      “ The plaintiff moved the trial court for an articulation and rectification of this alleged conflict, but the motion was denied by the trial court. This courl granted the plaintiffs motion for review of the trial court’s refusal to articulate and rectify, but denied the relief requested on this issue.

       Our holding on this issue is limited to the factual issues in dispute between these parties as framed by the pleadings in this case.


source: Caselaw Access Project

author: HEIMAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. BOBBY JONES
    (14430)
    Dupont, C. X, and Landau and Heiman, Js.
    Argued November 4, 1996
    officially released February 25, 1997

      J. Brendan Sharkey, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a). On appeal, the defendant asserts that the trial court improperly (1) denied his motion for judgment of acquittal based on his claim that the evidence was insufficient, (2) admitted evidence of acts of prior misconduct by the defendant, and (3) denied his motion for mistrial. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On April 27, 1993, at about 9 p.m., Ticey Brown was walking on the sidewalk in front of 75 County Street in New Haven when he was struck by two bullets, one in his head, the other in his chest. As a result of those gunshot wounds, Brown died.

The shots that caused Brown’s death were fired from a vacant lot on the side of 75 County Street. They were fired from two different weapons. Immediately before the shooting, the victim was walking along County Street toward Goffe Street with Ephraim Gillard and Sam Hook. Because the shots were fired from the side of 75 County Street and Gillard and Hook were walking behind the victim, neither could see who had fired the shots.

About fifteen minutes before the shooting, Antonio West, while walking through a parking lot at 200 Goffe Street, observed Bobby Jones, Willie Harris and Darryl McIntyre sitting in a burgundy Ford Mustang. West had seen Jones driving the automobile on prior occasions. The parking lot at 200 Goffe Street was situated so as to permit a person to walk through an alleyway alongside 75 County Street to County Street itself.

West saw the three men get out of the vehicle. He observed that Jones was taller than the other two men. Jones was dressed all in black, Harris was wearing blue jeans and a hooded sweatshirt, and McIntyre was wearing black jeans and a black army coat. West saw Jones and McIntyre don black masks. The men exited the parking lot, crossed the street and walked in the direction of 75 County Street. Harris spoke to West as they passed each other. West went into the building at 58 Orchard Street and the other three men continued in the direction of 75 County Street.

A few minutes before Brown was shot, Simone Blake, while walking from her home on Shelton Avenue, passed by 75 County Street. She saw three young black men standing in the alleyway along the side of 75 County Street. She observed that one of the young men was taller than the other two and that they were all wearing dark clothing. She saw Brown walking toward her after she had passed the alleyway and they exchanged pleasantries as they passed each other. Blake continued to walk until she heard gunshots coming from the area where she had observed the three young men. She saw Brown fall to the ground and went to his assistance. She did not see anyone run from the alleyway to County Street nor had she seen anyone else in the alley other than the three young men.

Latisha Lewis lives on the second floor at 610 Orchard Street and a window in her apartment overlooks the rear of 75 County Street. At about 9 p.m. on April 27, 1993, Lewis was looking out her window when she saw three men in the area of 75 County Street. All three men were wearing dark clothing. One of the men was taller than the other two. Lewis saw the three men run down the path to the rear of 75 County Street and at that point she heard gunshots and saw gunfire coming from the hands of two of the three men. The firing stopped and the taller man and one of the other men ran toward Goffe Street and the third man ran directly under Lewis’ window toward Orchard Street.

Priscilla Harris heard gunshots, looked out of her window and observed two individuals running toward Goffe Street and another person running toward Orchard Street. She identified Willie Harris as the person whom she had seen running toward Orchard Street.

On June 16,1993, warrants were issued for the arrests of Jones, Harris and McIntyre. The police were not able to locate Jones or Harris. On June 22, 1993, the New Haven police executed a search and seizure warrant that permitted them to search a red Ford Mustang registered to Mae Jones. The police found and took into possession a sweatshirt and mask.

On November 9, 1993, the police, while searching a residence pursuant to a warrant, discovered Jones hiding under a bed in a darkened room. The police took the defendant into custody pursuant to the arrest warrant.

I

The defendant first asserts that the trial court improperly denied his motion for judgment of acquittal based on his claim that the evidence was insufficient to support a verdict of guilty to a charge of conspiracy to commit murder. He posits that the evidence was insufficient to support proof of (1) the existence of an agreement, (2) the commission of an overt act in furtherance of the conspiracy, and (3) intent. He farther claims that his conviction of the crime of conspiracy was premised on the improper use of inferences and the defendant’s mere presence near the scene of the crime. We are unpersuaded.

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Citations omitted; internal quotation marks omitted.) State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993). Even in the most serious of criminal cases, the identification of the perpetrator may be proved by circumstantial rather than direct evidence. See id., 201.

“The jury’s sole province as the trier of fact is to draw all reasonable and logical inferences from the facts as it finds them to exist. . . . The jury also has the sole and absolute responsibility to weigh conflicting evidence and to determine the credibility of the witnesses. . . . The issue of the identification of the accused as the perpetrator of the crime is peculiarly one of fact to be resolved by the jury. ... ‘If evidence, whether direct or circumstantial, should convince ajury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction.’ ” (Citations omitted.) Id., 201-202.

“To establish the crime of conspiracy under § 53a-48 of the General Statutes, it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. . . . Further, the prosecution must show both that the conspirators intended to agree and that they intended to commit the elements of the underlying offense.” (Citations omitted; internal quotation marks omitted.) State v. Lewis, 220 Conn. 602, 606-607, 600 A.2d 1330 (1991). Thus, in order to sustain its burden, the state was obligated to prove beyond a reasonable doubt that (1) the defendant, McIntyre and Harris agreed to cause the death of another person, (2) at the time that they entered into the agreement, they intended that the death be caused, and (3) that one of the conspirators committed an overt act in furtherance of the conspiracy.

“The gravamen of the crime of conspiracy is the unlawful combination and an act done in pursuance thereof, not the accomplishment of the objective of the conspiracy. . . . Conspiracy is an inchoate offense the essence of which is an agreement to commit an unlawful act. . . . The prohibition of conspiracy is directed not at the unlawful object, but at the process of agreeing to pursue that object. . . . Conspiracy is an anticipatorial offense distinguished by a corrupt agreement by two or more persons to commit a specific objective crime.” (Internal quotation marks omitted.) State v. Haggood, 36 Conn. App. 753, 764-65, 653 A.2d 216, cert. denied, 233 Conn. 904, 657 A.2d 644 (1995).

“The state is not obligated to prove the existence of a formal agreement among the parties, but must prove that the parties engaged knowingly in a plan to commit a forbidden act. . . . As a consequence, circumstantial evidence may be used to provide the proof necessary to establish the existence of the agreement because conspiracies, by their veiy nature, are formed in secret and only rarely can be proved by other than circumstantial evidence.” (Citations omitted; internal quotation marks omitted.) Id., 765.

Our review of the evidence convinces us that on the basis of the direct and circumstantial evidence before it, the jury could have reasonably found the existence of an agreement among the defendant and his coconspirators to work together for the unlawful purpose of committing a murder, that one of the conspirators committed an overt act, and that the defendant intended that conduct constituting the crime of murder be performed.

The jury could have reasonably found that the three conspirators arrived in the general area where the murder took place about fifteen minutes before the murder occurred. They traveled to the scene of the crime together in an automobile operated and ordinarily used by the defendant. The automobile was parked about one block from the scene of the murder.

The defendant, when speaking with the police during the investigation of the homicide, denied that he was near the area where the murder took place. He asserted that he, Harris and McIntyre were together at a basketball court at Chapel and James Streets at about 9 p.m. on the night of the murder. Moreover, when Harris was interviewed by the police as to his whereabouts on the night of the murder, he asserted that he was at the basketball court together with the defendant and McIntyre.

Witnesses, however, positively identified all three alleged conspirators and placed all three of them together in the area of the murder at about the time the shooting took place. The color and type of clothing worn by the defendant and his two coconspirators was described by West as he observed them about fifteen minutes before the murder. Further, three men matching the description of the defendant and his two coconspirators were observed walking through back lots in the direction of 75 County Street. At the time of the murder, two men wearing black clothing and a third wearing a green sweatshirt were observed standing in a lot at the back of 75 County Street and two of the men fired weapons in the direction of 75 County Street. Thus, the jury could have reasonably found from the evidence before it that the three men observed in the rear of 75 County Street were the defendant, Harris and McIntyre and that two of them shot the victim in the head and chest.

Shortly after the shooting, Tanisha Bundy and Sean Bradley identified the defendant’s Ford Mustang as having been parked in a parking lot off Goffe Street, in the general area of the shooting. Further, Priscilla Harris testified that immediately after the murder, she saw two individuals run in the direction of Goffe Street and a third individual run toward Orchard Street. She identified the third individual as Willie Harris.

The state also produced evidence that, if believed by the jury, supported a claim that the defendant, Harris and McIntyre had been involved together on a daily basis in selling cocaine in the area of Dickerman, Orchard and Goffe Streets. Jeffrey Covington testified that the defendant supplied him daily with drugs for resale. He established that he would obtain drugs by calling the defendant on his pager. On the night Brown was murdered, Covington attempted to contact the defendant on his pager. The defendant did not respond. Covington attempted to contact the defendant for three days after the murder without success. Covington never saw the defendant or Harris again after the night Brown was killed.

Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the evidence presented to the jury was sufficient to have permitted it to find the defendant guilty of the crime of conspiracy. Thus, we reject the defendant’s claim that the evidence was insufficient to support a verdict of guilty of the crime of conspiracy.

II

The defendant next asserts that the trial court improperly admitted into evidence testimony concerning prior acts of criminal misconduct by the defendant and his coconspirators. The state claimed that the testimony was admissible as highly probative evidence of the existence of a relationship among the three individuals. The defendant asserted that it was not relevant or material to any of the exceptions under which such evidence is deemed admissible, and, if it met the test of relevance, the probative value of such evidence was outweighed by its prejudicial effect. We disagree.

This claim was fully addressed and rejected by this court in the companion case, State v. Harris, 43 Conn. App. 830, 832-37, 687 A.2d 544 (1996). That decision is dispositive of this claim.

III

Finally, the defendant claims that the trial court improperly denied his motion for a mistrial that was predicated on the jury’s exposure to a weapon that the state could not link to this prosecution. We are unpersuaded.

Certain additional facts are necessary to an understanding of our resolution of this claim. At trial, the state called Detective Christopher Grice of the New Haven police department, who testified that he arrived at the scene of the Brown shooting, secured the area, took photographs and engaged in a search for evidence. He also testified that he took into his possession and control certain items that he discovered at the scene. Some of those items were admitted into evidence as exhibits.

In the course of his testimony, Grice was handed a yellow envelope that had been marked as a state’s exhibit for identification and was asked if he recognized its contents. In the presence of the jury, the witness took a gun out of the envelope to read the serial number. The witness indicated that he did recognize the item contained in the envelope. Grice was then asked whether he had taken “some action relative to that item.” The defendant’s counsel objected and requested that the jury be excused.

In the absence of the jury, the court asked counsel where the weapon had come from and the state’s attorney responded that the .44 caliber handgun had been found on County Street a few days after the shooting. The state’s attorney further explained that one of the bullets taken from the victim’s body was determined to be from a .44 caliber handgun. The police, however, had been unable to link the gun positively to the case. The state then argued that the defendant could not be surprised by the presence of the gun because the defendant knew of the gun’s existence and had requested that the gun be made available for examination by his ballistics expert. The defendant then moved for a mistrial on the ground that the display of the gun itself was “incredibly prejudicial.” The trial court denied the motion.

When the jury returned to the courtroom, the state, without objection, was permitted to place Grice’s testimony before the jury that the handgun was not found on April 27, 1993, but was found on County Street by another detective on April 30,1993. Further, Grice testified that the handgun and certain ammunition were processed for the existence of latent fingerprints and that no identifiable prints were found. The trial court then instructed the jury that the gun was not an exhibit, there was no evidence linking the gun with the murder, and, at that point, the gun had nothing to do with the case before the jury.

During the remainder of the trial, neither the state nor the defendant, nor the codefendant Harris made any reference to the handgun. It was never admitted as a full exhibit, nor was it ever connected to the murder of Brown or to either the defendant or the codefendant.

In the course of its charge to the jury, the trial court, without specifically referring to the handgun, charged the jury that it was to disregard any evidence that was stricken or any evidence that was offered and refused. The defendant did not take any exceptions to the trial court’s charge.

“The decision as to whether to grant a motion for a mistrial ... is one that requires the trial court to exercise its judicial discretion. . . . Our review of the trial court’s exercise of its discretion is limited to questions of whether the court corr ectly applied the law and could reasonably have concluded as it did. . . . Every reasonable presumption will be given in favor of the trial court’s ruling. . . . It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion.” (Internal quotation marks omitted.) State v. Lasky, 43 Conn. App. 619, 635, 685 A.2d 336 (1996).

Applying this standard of review to the defendant’s claim, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial. We note that the trial court took swift and proper curative action to dissipate completely any potential prejudice to the defendant by the display of the handgun. The curative instruction was given by the court, sua sponte, and made clear to the jury that the handgun had, at that point in time, no connection with the case against the defendant and could not be considered by the jury as evidence in the case. Moreover, the trial court properly included in its charge to the jury the admonition that it was not to consider any evidence that it had been directed to disregard or that had not been admitted as a full exhibit. “In the absence of a clear indication to the contrary, juries are presumed to follow the instructions that they are given.” State v. Guess, 39 Conn. App. 224, 235, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995).

The burden rests on the defendant to establish that, in the context of the proceedings as a whole, the action of which he complains was so prejudicial as to deprive him of a fair trial. See State v. Lasky, supra, 43 Conn. App. 636. Here, the trial court determined that the handgun was improperly taken out of the envelope, but the trial court took decisive action by promptly delivering a curative instruction to the jury. We have not had the opportunity that the trial court had to observe the circumstances in which the gun was exposed, the length of time that the jury had an opportunity to observe the gun, or whether the jury even saw the gun. We conclude that the trial court did not abuse its discretion when it determined that the display of a handgun to the jury was not sufficiently prejudicial to the defendant as to require a mistrial, especially when the display was followed by a clear and concise cautionary instruction to the jury. See id; State v. Person, 20 Conn. App. 115, 132, 564 A.2d 626 (1989), aff'd, 215 Conn. 653, 577 A.2d 1036 (1990), cert. denied, 498 U.S. 1048, 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-48 (a.) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       The state’s attorney explained that the gun had been “found on County Street, behind someone’s house a few days after the shooting. The police took custody of it, they brought it down, they didn’t know if it had anything to do with this particular crime. One of the bullets that was taken from Mr. Brown’s body was determined to be a .44. This is a .44 caliber handgun. What they tried to do was tried to link this gun up with any other evidence in the case. They were not able to make a comparison that was positive. They couldn’t rule it out, they couldn’t rule it in.”

       “[Defense Counsel]: The only other remedy is to ask for mistrial, and I suppose for the record I should ask for one.
      “The Court: [Addressing counsel for the codefondant Harris] Do you want one?
      “[The Defendant Harris’ Attorney]: No.

        “The Court: Your motion is denied. I do not think with a suitable instruction to the jury there is any prejudice to the defendant which would warrant a mistrial.”

       At the conclusion of the state’s explanation, defense counsel stated: “It’s not a surprise. The point is that when that gun is properly identified—my intention was to object to it because there’s no connection. Now to bring in an I.D. officer who ran fingerprints and have him pull it out of a paper bag I think is incredibly prejudicial.”

       See footnote 4.

       In giving the curative instruction concerning the display of the handgun, the trial court stated: “Ladies and gentlemen, I want to remind you that the weapon which you saw, and probably should have stayed in the envelope, but it came out, you saw it was a gun that has not been marked as a full exhibit in this case, there is no evidence connecting it to this case in any way whatsoever, and you’re to frankly disregard that it was a gun unless and until there is further evidence about it, which may or may not happen. But as far as you’re concerned, that gun, exhibit thirty-one for identification, at this point in time has got nothing to do with this case.”

       The trial court specifically charged on this issue as follows: “Frequently you would hear a bit of testimony and I would order it stricken and you would be told to disregard it. You are to consider only the evidence which was admitted and if some evidence was stricken and then you were told to disregard it, or some evidence was offered and refused, you are not to consider it. You must erase it from you minds. . . .”


author: SHEA, J.

text:
    ANNA ROLLER SCHUCHMANN v. CITY OF MILFORD ET AL.
    (15275)
    Spear, Hennessy and Shea, Js.
    Argued December 6, 1996
    officially released February 25, 1997

      Matthew B. Woods, with whom was Cynthia C. Anger, assistant city attorney, for the appellants (defendants).

      John F. Fallon, with whom, on the brief, was Robert Hoyt, for the appellee (plaintiff).
   SHEA, J.

In this action, the plaintiff, Anna Roller Schuehmann, sought a writ of mandamus ordering the defendant sewer commission of the city of Milford to approve her application for a sewer permit for property at 952 Boston Post Road, which she and other members of her family owned. The commission had denied the application on the ground that the sewage being discharged from businesses on adjoining land also owned by plaintiff and her family already exceeded the limit established by the Milford sewer regulations for the acreage of both the adjoining property and the land that was the subject of the application. The trial court concluded that the regulations did not prohibit the issuance of a sewer permit for that property and ordered the commission to issue the permit. The defendants, the city, the sewer commission and the individual commissioners, have appealed from the judgment. The principal issue raised in the appeal involves the application to subdivided land of sewer regulations that limit the volume of sewage that may be discharged into the municipal sanitary sewerage system from a particular property according to its acreage and its zoning classification.

The trial court held that a subdivided parcel was entitled to a sewage discharge permit for the estimated quantity of sewage to be generated from the proposed use of that parcel as long as the limit established by the sewer regulations for its acreage and zoning classification was not exceeded. The court ruled that the circumstance that, as a result of the subdivision, the quantity of sewage being discharged from the two buildings on the remainder of the land owned by the plaintiff would exceed the limit applicable to its reduced acreage did not affect her entitlement to a sewer permit for the subdivided parcel based on its acreage and zoning classification as provided by the regulations. We agree with that determination. As another ground for its judgment, the court ruled that the provision of the sewer regulations on which the defendant commissioners had relied did not apply to commercial property, such as 952 Boston Post Road. Although we affirm the judgment, we disagree with that conclusion.

There is no dispute about the facts. The plaintiff owns a triangular parcel of land, approximately one acre in area, situated at the intersection of Boston Post Road and Locust Street in Milford, on which there are three commercial buildings known as 952,962 and 972 Boston Post Road. The building at 952 Boston Post Road is presently vacant, but the plaintiff proposes to lease it for use as a retail bakery and coffee shop, for which she needs a sewer permit. A pizza restaurant is operated in the building at 962 Boston Post Road, and other businesses are conducted at 972 Boston Post Road.

In May, 1993, the plaintiff applied to the Milford sewer commission for a permit to connect a proposed retail bakery and coffee shop at 952 Boston Post Road to the existing sewerage system. A lateral sewer pipe extends from the main sewer line in Locust Street almost to the street line at the rear of that building. The defendants have not controverted the statement in the plaintiffs brief that the building is connected to the sewerage system and that the commission has allowed it to use the system in the past. The commission denied the application because the estimated additional sewage that would have been generated by the proposed business would have caused the total quantity of sewage from the three buildings on the property to exceed the amount allowed by the sewer regulations for the acreage of the property. The plaintiff did not appeal from that determination.

In August, 1993, the plaintiff applied to the Milford planning and zoning board for permission to subdivide the entire property on which the three buildings are located into two one-half acre parcels. The building at 952 Boston Post Road would be situated on the west parcel, and the other two buildings would be on the east parcel. The city engineering bureau approved the map filed with the application and the planning and zoning board approved the subdivision application on September 7,1993. No representative of the sewer commission appeared at the public hearing to oppose the plaintiffs application for the subdivision.

On January 10, 1995, more than one year later, the plaintiff once again applied to the Milford sewer commission for permission to connect the building at 952 Boston Post Road to the main sewer line in Locust Street for the proposed use of operating a retail bakery and coffee shop. The application indicated that the estimated sewage that would be discharged into the sewerage system would be 587 gallons per day and that the maximum daily discharge allowed by the sewer regulations for a one-half acre property was 764 gallons. On March 2, 1995, at the conclusion of the public hearing on the application, the commission voted to deny the application on the ground that the additional sewage from the two buildings on the east parcel, when added to that to be discharged from the proposed bakery and coffee shop, would exceed the amount allowed by the regulations for the entire property. The commissioners were not persuaded that the plaintiff, despite the subdivision, was entitled to have the two parcels considered separately for the purpose of determining the maximum sewage discharge limit under the regulations.

Because there is no provision for an appeal from the denial of a sewer permit application by the Milford sewer commission, the plaintiff brought this mandamus action seeking an order directing the sewer commission to issue a sewer permit for 952 Boston Post Road in accordance with her application. The trial court held that, because the property was now subdivided, the sewer commission could not lawfully add the amount of sewage from the buildings on the east parcel to the estimated amount of discharge from 952 Boston Post Road in determining whether the regulations would be violated by granting the permit. Since it was undisputed that the maximum discharge limit would not be exceeded without the addition of the sewage generated by the buildings on the east parcel, the court ordered the sewer commission to issue the permit.

I

The charter of the city of Milford provides for the appointment of a sewer commission of five members and vests in that commission “all the rights, duties and authority of sewer commissions as set out in the general statutes.” Milford City Charter, art. IV, § 9. That commission also acts as the city’s water pollution control authority pursuant to General Statutes § 7-247, which authorizes such an agency to “establish and revise rules and regulations for the supervision, management, control, operation and use of a sewerage system, including rules and regulations prohibiting or regulating the discharge into a sewerage system of any sewage or any stormwater runoff which in the opinion of the water pollution control authority will adversely affect any part or any process of the sewerage system . . . .” This provision does not vest the commission with the discretion to deny an application that complies with its regulations because of considerations not set forth in the regulations, but requires that the statutory powers of a water pollution control authority be exercised through the regulations it is directed to adopt.

The commission claims that it was entitled to ignore the decision of the planning and zoning board approving the subdivision that separated 952 Boston Post Road from the remainder of the plaintiffs property because the plaintiff has circumvented its decision denying her first application, at which time the sewage discharge from the entire property had to be considered. It claims that in 1985 regulations were adopted at a public hearing that were designed to prevent landowners from discharging amounts of sewage exceeding the capacity of the sewerage system and causing overflows and back-flows that would endanger the public health. The regulations allocated to each property, according to its acreage and its zoning classification in 1985, a maximum volume of sewage discharge that could not be increased. The commission relies on the following provision of the adopted regulations: “Any parcel of land proposed to increase the density of its use must submit calculations indicating that the outflow of sewage from the proposed use will be the same as or less than the present existing zoning classification will allow . . . .” For a commercial zone, such as that in which the plaintiffs property is situated, the regulations establish a limit of “1500 gallons per day per acre multiplied by the total acreage.” No provision of the regulations, however, authorizes the commission to deny an application for a sewer permit by an owner of property that conforms to the sewage limit applicable to its acreage and zoning classification simply because other property of the owner violates the regulations.

It is undisputed that the sewer commission regulations establish 1500 gallons per day as the maximum amount of sewage per acre that a commercially zoned property may discharge into the sewerage system. The west parcel, on which 952 Boston Post Road is situated, comprises 0.51 acre and, therefore, would have a sewage discharge limit of 764 gallons per day. The plaintiffs application indicated that the proposed use would generate 554 gallons of sewage per day in addition to the prior water usage of 33 gallons per day, resulting in a total sewage discharge of 587 gallons per day, an amount substantially less than the limit applicable to the property.

The concern of the commission that the subdivision of property not have the consequence of enabling a property owner to circumvent the sewage discharge limits established by the regulations might properly have been voiced at the hearing on the subdivision creating 952 Boston Post Road as a separate parcel. The sewer commission was given notice of the hearing by letter as well as by publication. The fact that the sewage discharge from buildings on the remaining property of the plaintiff will substantially exceed the limit for the reduced acreage of that property resulting from the subdivision, however, does not authorize the denial of a sewer permit for a property well within its sewage discharge limit. There is nothing in the record before us to indicate that the sewer commission is precluded from enforcing the discharge limits with respect to any properties that exceed those limits.

It is familiar law that, for the plaintiff to prevail in an action of mandamus, she must establish three elements: “(1) that [she] has a clear legal right to the performance of a duty by the defendant; (2) that the defendant has no discretion with respect to performance of that duty; and (3) that the plaintiff has no adequate remedy at law.” (Internal quotation marks omitted.) Harlow v. Planning & Zoning Commission, 194 Conn. 187, 196, 479 A.2d 808 (1984). Since this plaintiffs application complied with the sewer regulations governing the amount of sewage that may be discharged into the sewerage system from 952 Boston Post Road, the defendant sewer commission clearly had a duty to issue the necessary sewer permit. The commission had no discretion to refuse to issue a permit when the application complied with the regulations that it had promulgated, as we have determined. The defendant has suggested no legal remedy available to the plaintiff, and this court is aware of none.

II

As an additional ground for the judgment, the trial court opined that the provision of the regulations requiring that a property not exceed the sewage discharge limit applicable to its acreage and zoning classification does not pertain to commercial properties, such as 952 Post Road. That conclusion was based on the fact that the only example given in that provision of the application of the regulations related to residential property. We construe that provision of the regulations to apply to all the zoning classifications of property for which other provisions establish maximum sewage discharge limits, as is true of commercial property. It would serve no purpose to establish such limits for nonresidential property if the regulations applied only to residential property. The example of how the discharge limit would apply to residential property was intended to be illustrative, not exclusive. In their briefs both parties agree that the example given in the regulation does not have the effect of removing commercial property from the application of the sewer regulations.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff and other members of her family own 952 Boston Post Road and the adjoining land as tenants in common. Only the plaintiff applied for the sewer permit and brought this action.

       The total area of the entire parcel of land was 0.999 acres. After the subdivision, the west portion, on which 952 Boston Post Road was situated, contained 0.51 acre and the east portion contained 0.489 acre.

       General Statutes § 7-247 provides in relevant part: “Powers of water pollution control authority to acquire, construct and operate sewerage system. Obligation to consider feasibility of sewage as energy source. Any municipality by its water pollution control authority may acquire, construct and operate a sewerage system or systems; may enter upon and take and hold by purchase, condemnation or otherwise the whole or any part of any real property or interest therein which it determines is necessary or desirable for use in connection with any sewerage system; may establish and revise rules and regulations for the supervision, management, control, operation and use of a sewerage system, including rules and regulations prohibiting or regulating the discharge into a sewerage system of any sewage or any stormwater runoff which in the opinion of the water pollution control authority will adversely affect any part or any process of the sewerage system; may enter into and fulfill contracts, including contracts for a term of years, with any person or any other municipality or municipalities to provide or obtain sewerage system service for any sewage, and may make arrangements for the provision or exchange of staff services and equipment with any person or any other municipality or municipalities, or for any other lawful services. . . .”

       The adopted regulation provides: “Any parcel of land proposed to increase the density of its use must submit calculations indicating that the outflow of sewage from the proposed use will be the same as or less than the present existing zoning classification will allow, i.e., one-family residential use proposed to multi-family use is computed on the maximum allowable single-family structures times 300 gallons per day per one-family residential structure. The total from this in gallons per day must be the limiting factor on the number of dwelling units in the proposed multi-family use, taking into consideration the use of water-saving devices.”

       See footnote 4.


author: SPEAR, J. HEIMAN, J.,

text:
    GARY PURZYCKI ET AL. v. TOWN OF FAIRFIELD ET AL.
    (15166)
    O’Connell, Heiman and Spear, Js.

      Argued December 3, 1996
    officially released February 25, 1997

      Theodore R. Tyma, for the appellants (plaintiffs).

      Tracey C. Kammerer, with whom were Thomas J. Walsh, Jr., and, on the brief, Matthew M. Hausman, and for the appellees (defendants).
   SPEAR, J.

The plaintiffs appeal from the judgment notwithstanding the verdict rendered by the trial court after it granted the defendants’ motion to set aside the verdict. The plaintiffs claim that the trial court improperly determined that they failed to establish the imminent harm aspect of the identifiable person-imminent harm exception to the defendants’ qualified governmental immunity. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The plaintiff Jason Purzycki was an eight year old second grade student at Roger Sherman School in Fairfield. School rules required that teachers escort students to an all-purpose room, which served as a cafeteria during lunchtime. While eating lunch, the students were supervised by two adults. After eating lunch, the students were dismissed on a table by table basis to go to the playground for recess. To get to the playground from the lunch room, the students proceeded down a hallway. The hallway was not monitored, but teachers in the classrooms abutting the hallway were instructed to keep their doors open in order to hear or see any activity in the hallway. This process was in accordance with the policies, rules and regulations promulgated by school officials.

On June 13,1989, at approximately 12:30 p.m., Jason, along with the rest of his class, was escorted to lunch by a teacher. After being dismissed for recess, Jason proceeded to his locker, where he removed his coat and hat. He then ran down the hallway, and, as he neared the exit door, another student extended his leg and tripped him. Jason fell, head first, through the wire mesh window of the exit door and sustained injuries.

The relevant procedural history is as follows. The plaintiffs filed a personal injury action against the defendants, sounding in negligence and nuisance. The defendants alleged as a special defense that they were shielded from liability pursuant to the doctrine of qualified governmental immunity. After a trial, the jury rendered a verdict in favor of the plaintiffs. In answers to special interrogatories, the jury stated that the defendants were 60 percent negligent, the plaintiff Jason Purzycki was 40 percent negligent and the defendants’ negligence subjected Jason to imminent harm. The defendants moved to set aside the jury verdict, asserting that the plaintiffs failed to prove their claim that the imminent harm exception to the qualified governmental immunity doctrine applied to this case. The trial court granted the defendants’ motion and rendered judgment notwithstanding the verdict. This appeal followed.

A trial court may set aside a jury verdict if the court finds the verdict to be against the law or the evidence. Caciopoli v. Acampora, 30 Conn. App. 327, 331, 620 A.2d 191 (1993). The trial court’s decision to set aside a jury verdict will not be reversed on appeal unless the trial court abused its discretion. Davis v. Druks, 43 Conn. App. 453, 454, 683 A.2d 745 (1996). “While the trial court has broad discretion to set aside verdicts, it should be mindful that [ljitigants have a constitutional right to have factual issues resolved by the jury.” (Internal quotation marks omitted.) Caciopoli v. Acampora, supra, 331, quoting Berry v. Loiseau, 223 Conn. 786, 807, 614 A.2d 414 (1992); Donahue v. State, 27 Conn. App. 135, 140, 604 A.2d 1331 (1992). “Every reasonable presumption should be indulged in favor of the correctness of the trial court’s decision to set aside the verdict because a trial court is in a better position than an appellate court to determine whether a jury’s verdict was improperly influenced.” Caciopoli v. Acampora, supra, 330. “ ‘[T]he role of the trial court on a motion to set aside the jury’s verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did.’ ” Id., 332.

With this standard of review in mind, we turn now to the law concerning municipal immunity. “ ‘The doctrines that determine the tort liability of municipal employees are well established. Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct. . . (Citations omitted.) Beach v. Regional School District Number 13, 42 Conn. App. 542, 553, 682 A.2d 118 (1996). Municipal employees now have qualified immunity in the performance of governmental duties, but may be liable if they misperform a ministerial act, as opposed to a discretionary act. Id. Ministerial duties are those that can “be performed in a prescribed manner without the exercise of judgment or discretion. ...” (Citations omitted; internal quotation marks omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).

The plaintiffs concede that any duty owed was discretionary in nature. For the plaintiffs to succeed on their claim, the case must fit within one of the following exceptions: “first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.” (Citations omitted.) Id.

The identifiable person-imminent harm exception is the only one relevant to this case. Our courts have recognized that this exception includes not only identifiable individuals, but also includes narrowly defined classes of foreseeable victims. See Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994); Sestito v. Groton, 178 Conn. 520, 527-28, 423 A.2d 165 (1979). The defendants do not claim that Jason is not a member of a narrowly defined class of foreseeable victims or that the harm was not foreseeable. Rather, they claim that the trial court properly granted their motion to set aside the verdict because, on the basis of the evidence adduced at trial, the jury could not have reasonably concluded that the lack of supervision subjected Jason to imminent harm.

We agree with the trial court that “there was no evidence that [Jason], in traveling the brief distance from the ‘all-purpose’ room to the playground, was in imminent harm. True, the principal knew that if children were not watched they might run in the hall, and that if they ran in the hall, they could get hurt. But to regard this as imminent harm would be to equate that term with mere foreseeability, and to thereby transfer the governance of elementary schools . . . from the principal’s office ... to the [courtroom] . . . . ”

The plaintiffs argue that this case is analogous to Burns v. Board of Education, supra, 228 Conn. 646. Burns, a high school student, incurred injuries when he slipped and fell on a patch of ice located in the school courtyard. He filed an action against the superintendent, the board of education and the principal, alleging that the defendants were negligent in failing to salt and sand the courtyard properly. The defendants claimed governmental immunity as a special defense. The plaintiff claimed that he was a member of a foreseeable class of victims, and entitled to the benefit of an exception to the doctrine of immunity. Our Supreme Court held that a defendant “bears the responsibility for failing to act to prevent the risk of imminent harm to school children as an identifiable class . . . .” (Emphasis added.) Id., 649. Furthermore, the court found that there was a risk of imminent harm: “Unlike the incident in Evon v. Andrews, supra, 211 Conn. 501, this accident could not have occurred at any time in the future; rather, the danger was limited to the duration of the temporary icy condition in this particularly ‘treacherous’ area of the campus.” (Emphasis added.) Burns v. Board of Education, supra, 650.

We conclude that this case is analogous to Evon v. Andrews, supra, 211 Conn. 508. In Evon, a decedent’s administratrix alleged that the city of Waterbury and various city officials were negligent in failing to inspect the decedent’s dwelling reasonably, properly and adequately and, as a result of such negligence, failed to prevent the occurrence of a fire. The defendants claimed that they were shielded from liability pursuant to the doctrine of governmental immunity. In holding that the identifiable person-imminent harm exception did not apply, our Supreme Court concluded that “[t]he risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future. . . . [T]he plaintiffs’ decedents were not subject to ‘imminent harm.’ This is clearly not the situation in which a police officer stood by and watched a public brawl that resulted in a person being shot. See Sestito v. Groton, supra, [178 Conn. 528], The present allegations do not even rise to the level of the imminence we rejected in Shore v. Stonington, [187 Conn. 147, 444 A.2d 1377 (1982)], in which a police officer permitted a drunk driver to continue on his way, resulting in the death of the plaintiffs decedent. In the present instance, the fire could have occurred at any future time or not at all. We cannot accept the proposition that the plaintiffs’ decedents in this case were . . . subject to imminent harm. As we obseived in Shore v. Stonington, supra, 157, ‘[t]he adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society.’ ” Evon v. Andrews, supra, 508.

The plaintiffs argue that imminent harm was proved because Jason was compelled by statute to attend school and the risk of harm was limited to the one-half hour lunch recess every school day. Jason, however, could have been injured at any time in the future while traveling from lunch to recess, or not at all. In fact, the record contains uncontroverted evidence that in the twenty-two years prior to Jason’s injury, students using the hallway to go to recess were unsupervised and no other injuries had occurred. Unlike Bums, where the icy condition alone created a risk of imminent harm, the lack of supervision claimed here, standing alone, did not create such risk. A combination of the lack of supervision, Jason’s own conduct and the conduct of another student caused the injuries. While it may have been foreseeable that Jason might run in the hallway, any risk of harm that did exist required a confluence of events and did not rise to the level of imminence necessary to overcome the defendants’ immunity. Accordingly, we conclude that the jury could not reasonably have found that Jason was subjected to a risk of imminent harm.

The judgment is affirmed.

In this opinion O’CONNELL, J., concurred.

HEIMAN, J.,

dissenting. The majority concludes that the jury could not reasonably have found that the minor plaintiff was subjected to a risk of imminent harm. Accordingly, it affirms the trial court’s decision to grant the defendants’ motion to set aside the verdict and to render judgment notwithstanding the verdict. I believe that the result reached by the majority is incorrect, and, thus, I respectfully dissent.

Our Supreme Court has repeatedly held that the resolution of the question of the existence of imminent harm is a factual issue for the jury to determine. See Evon v. Andrews, 211 Conn. 501, 507, 559 A.2d 1131 (1989); Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982); Sestito v. Groton, 178 Conn. 520, 528-29, 423 A.2d 165 (1979). “[T]he constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded [persons] passed upon by the jury and not by the court.” State v. Wooten, 227 Conn. 677, 696, 631 A.2d 271 (1993). “ ‘Thus, the role of the trial court on a motion to set aside the jury’s verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did.” Caciopoli v. Acampora, 30 Conn. App. 327, 332, 620 A.2d 191 (1993).

Contrary to the majority, I believe that, on the basis of the evidence presented at trial, the jury could reasonably have found that Jason was subjected to a risk of imminent harm. At trial, the principal of the elementary school admitted that if elementary schoolchildren are not supervised, they tend to run and engage in horseplay that often results in injuries. Children on their way to recess are often especially excited and in a hurry to get out to play and are thus even more likely to run, to engage in horseplay and ultimately to be injured. At trial, the principal acknowledged that because of these natural tendencies of young children, his elementary schoolchildren are supervised for almost the entire time that they are on school grounds. The children are supervised while at recess, while eating lunch, and are even teacher escorted when traveling from classroom to classroom or from classroom to recess.

In the face of this, the principal admitted that when his elementary schoolchildren left the lunch room and traveled to recess, excited and in a hurry, they were not directly supervised as they were at other critical times. “In considering the evidence introduced in a case, [j]uries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Cintron, 39 Conn. App. 110, 119, 665 A.2d 95 (1995). Therefore, I conclude that here the issue of imminent harm presented an issue of fact as to which there was room for a reasonable difference of opinion among fair-minded persons, and thus the jury could have reasonably concluded that Jason was subjected to a risk of imminent harm.

Moreover, recent case law supports the jury’s conclusion that Jason was subjected to a risk of imminent harm. Contrary to the majority’s opinion, I believe that this case is controlled by Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994), not Evon v. Andrews, supra, 211 Conn. 501. In Evon, a decedent’s administratrix alleged that the city of Waterbury was negligent in failing to reasonably inspect a multifamily rental unit in which the decedent was living and, as a result of such negligence, failed to prevent the occurrence of a fire. In Evon, the Supreme Court concluded that, “[t]he class of possible victims of an unspecified fire that may occur at some unspecified time in the future is by no means a group of ‘identifiable persons.’ ” Evon v. Andrews, supra, 508. In Burns, however, as here, the plaintiff fell “during school hours, while the child was compelled by statute to be on those school grounds.” Burns v. Board of Education, supra, 650. Thus, the plaintiff in Bums, like the minor plaintiff here, “was one of a class of foreseeable victims” to whom the school principal and the board of education owed a duty of protection from dangers that may reasonably be anticipated. Id.

The majority concludes that this case is controlled by Evon, not Burns, because the accident here could have occurred at any time in the future, or not at all, and thus the danger in this case was not limited or temporary in duration. I disagree.

In my opinion, the risk of injury at issue here is similar to the risk of injury that our Supreme Court found to constitute “imminent harm” in Burns. In Bums, icy conditions “in this particularly ‘treacherous’ area of the campus” existed for temporary periods of time every winter. Burns v. Board of Education, supra, 228 Conn. 649. Here, the lack of supervision of the hallway between the lunch room and the outside playground occurred every school day during that particularly treacherous half hour when the young children were hurriedly and excitedly trying to get out to recess. Thus, the threat of injury here was just as “limited” and “temporary” as was the threat of injury in Bums. Further, the potential for harm from a fall on ice and the potential for harm from unsupervised second graders hurriedly and excitedly running out to recess are equally significant and foreseeable. See id.

The majority further distinguishes this case from Bums by concluding that in Burns, the risk of imminent harm was created by the icy condition alone, while here, the risk of harm was created by a combination of the lack of supervision, Jason’s own conduct and the conduct of another student, and thus did not rise to the level of exposure to imminent harm. I disagree.

In Bums, the icy condition alone did not create the risk of imminent harm. The plaintiff in Bums slipped and fell because (1) there was ice, (2) the head custodian failed to salt and sand that area of the campus, and (3) the student chose to walk in that particularly treacherous area of the school when the conditions were icy. Thus, both here and in Bums, the risk of imminent harm required a confluence of events.

Therefore, viewing the evidence in the light most favorable to the plaintiffs, I conclude that the jury reasonably could have found that the lack of supervision subjected Jason to a risk of imminent harm.I would reverse the judgment and remand this case with direction to deny the defendants’ motion to set aside the verdict and to render judgment on the jury verdict.

       Jason Purzycki and his father, Gary Purzycki, are the plaintiffs in this case.

       The defendants on appeal are Joseph Walsh, principal of Roger Sherman School, and the Fairfield board of education. The town of Fairfield was originally a defendant, but the plaintiffs withdrew their claim against the town prior to trial. We refer in this opinion to Walsh and the board of education as the defendants.

       The plaintiffs withdrew their claim for nuisance prior to trial.

       The principal testified that abutting the hallway at issue were classrooms in which teachers were teaching. The principal explained that the teachers in these classrooms were instructed to leave their classroom doors open in order to be able to be of assistance if there was a problem in the hallway. It seems clear, however, that a jury could reasonably find that teachers busy teaching in their own classrooms can hardly be considered to be adequately monitoring an adjacent hallway.

       Inherent in the majority opinion is the implication that if we allowed the jury to find that the failure to supervise a hallway where young children hurriedly traveled from lunch to recess created a risk of imminent harm, we will have transferred the governance of elementary schools from the principal’s office to the courtroom and thereby crimped the exercise of official discretion beyond the limits desirable in our society. I disagree.
      As our Supreme Court reiterated in Bums, our case law has consistently recognized that, “children require special consideration when dangerous conditions are involved.” Burns v. Board of Education, supra, 228 Conn. 650. Moreover, “during school hours on school days, when parents are statutorily compelled to relinquish protective custody of their children to a school board and its employees, the superintendent has the duty to protect the pupils in the board’s custody from dangers that may reasonably be anticipated.” Id., 649.


author: FOTI, J.

text:
    MARION D. LORD v. FRANKLIN L. LORD, JR.
    (14478)
    Foti, Landau and Heiman, Js.
    Argued December 17, 1996
    officially released February 25, 1997

      Franklin L. Lord, Jr., pro se, the appellant (defendant).

      Rob Cary, Jr., with whom, on the brief, was Barbara M. Quinn, for the appellee (plaintiff).

      Charles C. Anderson, for the minor child.
   FOTI, J.

The defendant appeals from the judgment of dissolution. He claims that the trial court improperly (1) awarded lump sum alimony, (2) granted custody of the minor child, (3) awarded child support, (4) found facts not supported by the evidence, (5) failed to uphold a prenuptial agreement, (6) entered various orders, including financial orders and an award of attorney’s fees and (7) failed to remove counsel for the minor child. The defendant also claims that the trial court abused its discretion by acting in a biased manner toward him, holding a hearing on a motion for contempt and making a finding of contempt and setting an arrearage without a factual basis. We affirm the judgment of the trial court.

The parties were married on February 26,1983, and at the time of the trial had one minor child. The defendant appeared pro se at trial. The trial court, Teller, J., filed a well reasoned and thorough forty-one page memorandum of decision after a six day trial. The court determined that the prenuptial agreement was unenforceable due to, inter alia, the informality of the agreement. It further opined that both parties had engaged in a number of actions that were symbolic of the level of animosity and lack of communication between them. The court found that the marriage had broken down irretrievably and that the parties were equally responsible for the breakdown. On January 9,1995, the trial court rendered judgment dissolving the parties’ marriage, awarding joint legal custody of the minor child to both parties with primary physical custody to the plaintiff, and issuing a number of financial orders.

On January 23,1995, the defendant filed a motion for stay of execution of the financial orders, arguing that the imposition of these orders during the appeal period would undermine his due process rights and cause economic hardship. On February 6, 1995, the trial court ordered that counsel fees be stayed, but denied the defendant’s motion regarding support payments.

On January 30, 1995, the plaintiff filed a motion for contempt, arguing that the defendant had failed to pay pendente lite support of $150 per week during the proceedings and had not made the child support payments of $170 per week ordered January 9,1995. On February 6, 1995, the defendant filed a motion to recuse the trial judge, arguing that he was biased as evidenced by his failure to find the defendant’s testimony credible. The trial court denied this motion on the same day. On February 14,1995, the defendant filed this appeal pro se.

On August 7,1995, the trial court, Hendel, J., granted the plaintiffs January 30,1995 motion for contempt and ordered the defendant to pay the arrearage of $3197.96 on or before September 5, 1995. The defendant filed a motion to open and reverse that decision on August 10, 1995. The trial court, Hendel, J., denied that motion on August 21, 1995. On September 5, 1995, the pro se defendant filed an amended appeal, challenging the contempt decision.

On October 2, 1995, the plaintiff, the defendant, and counsel for the minor child entered into a stipulation that the total child support arrearage was $3775. The defendant agreed to pay the present support order of $150 per week with an additional $50 per week allotted to the arrearage. The stipulation indicates that it was in satisfaction of the contempt motion and any present claim for counsel fees regarding that motion. The stipulation was approved by the trial court, Levine, J.

I

We first address the defendant’s claim that the trial court improperly awarded the plaintiff lump sum alimony. The defendant argues that the trial court’s award of lump sum alimony under the claim for relief entitled “such other relief as the court deems appropriate” is improper, that notice was lacking and that no factual basis existed to support such an award. We do not agree that the trial court lacked authority or abused its discretion in awarding lump sum alimony.

We have often stated that the power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances that arise out of the dissolution of a marriage. Tessitore v. Tessitore, 31 Conn. App. 40, 45, 623 A.2d 496 (1993). These equitable powers give the court the authority to consider all the circumstances that “may be appropriate for a just and equitable resolution of the marital dispute.” (Internal quotation marks omitted.) Sands v. Sands, 188 Conn. 98, 105, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983). The trial court may award alimony to a party even if that party does not seek it and has waived all claims for alimony. Id., 102 (court free to reject stipulation of parties for no alimony as unfair and inequitable and to award $1 per year alimony). A trial court may award alimony as part of the court’s general equitable power. LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983).

Our review of the record reveals that during the course of the trial, the plaintiff expressly waived periodic alimony, but did not waive lump sum alimony. The defendant did not request a continuance at this point, but he now claims, on appeal, that he was prejudiced by a lack of “notice” that the court would be awarding lump sum alimony. He does not claim, however, that this belated claim for alimony by the plaintiff hampered his preparation of the case or his defense of the matter. We must conclude that the defendant’s claim that his constitutionally protected due process rights were violated is without merit. Our review of the record also discloses that the defendant’s claim that the trial court abused its discretion in awarding lump sum alimony is without merit. The record provides a factual basis for the trial court’s decision to award lump sum alimony. We cannot say as a matter of law that the court’s findings are not reasonably supported by the record.

II

We next address the defendant’s argument that the trial court abused its discretion by failing to remove the attorney for the minor child. This claim is controlled by our decision in Taff v. Bettcher, 35 Conn. App. 421, 646 A.2d 875 (1994). The defendant has no standing to raise a claim on behalf of the minor child, who is represented by a court-appointed attorney to protect that child’s best interest. The defendant’s motion to dismiss the attorney appointed by the court to represent the child claimed that the attorney negligently and incompetently represented the minor child. The defendant did not claim, nor did he demonstrate to the trial court, that his request was made to prevent prejudice to his own case. See Schult v. Schult, 40 Conn. App. 675, 687 n.10, 672 A.2d 959, cert. granted on other grounds, 237 Conn. 912, 675 A.2d 885 (1996).

Ill

The defendant’s remaining claims can perhaps best be categorized as a valiant but futile attempt to retry the case in this court. No novel principles of law or appellate procedures are involved, and to discuss these claims would serve no useful purpose. See Byrne v. Trice, 170 Conn. 442, 365 A.2d 1063 (1976); DeVincentis v. DeVincentis, 39 Conn. App. 931, 667 A.2d 570 (1995). Our standard of review is very narrow, and we will afford great deference to the trial court’s rulings. Roach v. Roach, 20 Conn. App. 500, 505, 568 A.2d 1037 (1990). We will not reverse the judgment of the trial court unless it can be shown that the trial court misapplied the law or could not reasonably have reached its conclusions as it did. Curzi v. Curzi, 21 Conn. App. 5, 7, 570 A.2d 1134, cert. denied, 215 Conn. 802, 574 A.2d 217 (1990). We also recognize that “because every family situation is unique, the trial court drafting a dissolution decree has wide discretion to make suitable orders to fit the circumstances.” Passamano v. Passamano, 228 Conn. 85, 91, 634 A.2d 891 (1993). The credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact. Grayson v. Grayson, 4 Conn. App. 275, 293, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987). We review the findings to determine whether they could legally and reasonably be found, thereby establishing that the trial court could reasonably have concluded as it did. Zolan, Bernstein, Dworken & Klein v. Milone, 1 Conn. App. 43, 47, 467 A.2d 938 (1983). We have fully considered the defendant’s claims and have thoroughly reviewed the briefs and the record of this case. Having applied the appropriate standard of review, we conclude that the trial court’s findings are not clearly erroneous, that it did not abuse its discretion and that its decision, including the contempt finding, conforms to the applicable law.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court ordered the defendant to pay $150 per week for child support, plus an additional $20 per week for as long as the child is enrolled in private school. The defendant was also ordered to pay a child support arrearage of $461.26 within thirty days, and attorney’s fees of $4500 to the plaintiffs counsel and $4067 to the child’s counsel. The trial court ordered the defendant to pay the plaintiff lump sum alimony in the amount of $65,000, payable in equal monthly amounts of $500 beginning February 1, 1995. The award was to be secured by a mortgage deed and note on two properties owned by the defendant. In the event the defendant failed to pay any installment within thirty days, or defaulted on the note and mortgage securing those payments, the unpaid balance would accelerate and become due immediately.

       While it may be argued that the defendant’s entry into the stipulation without specifically conditioning that agreement on his right to pursue an amended appeal constituted a waiver of any defects in the contempt finding, we conclude that the amended appeal is not rendered moot on this account because the finding of contempt in this case may have future collateral consequences. See Sgarellino v. Hightower, 13 Conn. App. 591, 593-95, 538 A.2d 1065 (1988).

       The defendant claims that the plaintiff did not allege such a claim for relief in her complaint, and that her claims for relief, in not asking for alimony, waived any right to an award of alimony.

       “The equitable consideration in Sands was the state’s interest in alimony where one party may apply for welfare assistance while the other has sufficient funds for support of both parties. . . . The powers of a court of equity, however, are obviously not limited to cases where there is a state interest.” LaCroix v. LaCroix, 189 Conn. 685, 689 n.5, 457 A.2d 1076 (1983).

       The following exchange took place during the trial:
      “The Court: This claim, roman numeral four, says the plaintiff waives any and all her claim to alimony, that means either periodic or lump sum alimony.
      “Plaintiffs Counsel: Just periodic, Your Honor.
      “The Court: Just periodic. And the reason you’re stating that and the evidence you’ve elicited from her with respect to periodic alimony claim is that she has some fear or apprehension that Mr. Lord may not abide by a court order, is that it?
      “Plaintiffs Counsel: Yes, that’s one aspect of it.”

       The trial court stated the following: “The court notes that the wife is in need of support for herself as she has a substantial shortfall between her present net income and her child support when compared to her net weekly expenses and debt service. The alimony order set forth is expressly intended for the wife’s support and for no other purpose and is intended to be actually in the nature of alimony as that term is used in 11 U.S.C. 523 (a) (5), so that it is the intent of this order that the alimony not be affected by any discharge in bankruptcy. Although the plaintiff did not claim alimony in her complaint and appears to waive it in her proposed orders, I find that the lump sum alimony award entered is the most appropriate way to secure the support needed by the wife in the future.”


author: HENNESSY, J.

text:
    ROCCO D’ARCANGELO v. HARTFORD CASUALTY INSURANCE COMPANY
    (15352)
    Schaller, Spear and Hennessy, Js.
    Argued December 17, 1996
    officially released February 25, 1997

      Jam,es M. Kearns, for the appellant (plaintiff).

      Philip F. von Kuhn, for the appellee (defendant).
   HENNESSY, J.

This is an appeal from the judgment of the trial court rendered after the granting of a motion for summary judgment in favor of the defendant, Hartford Casualty Insurance Company. The plaintiff, Rocco D’Arcangelo, claims that the trial court, in ruling that the tortfeasor’s vehicle was not underinsured, improperly construed General Statutes (Rev. to 1991) § 38a-336 (d) and case law by comparing the per occurrence limit of the tortfeasor’s single limit liability insurance policy with the per person limit of the plaintiffs split limit underinsured motorist policy.

The trial court found the following facts. On August 29,1992, the plaintiff was a passenger in a vehicle driven by August Wildman. Wildman’s vehicle collided with a vehicle driven by Judith Nicolari, the tortfeasor. Nicolari’s liability insurance has a single limit of $500,000.

In his two count complaint, the plaintiff sought to recover underinsured motorist benefits. In count one, the plaintiff made a claim under a policy issued by the defendant to Florindo D’Arcangelo and Malfado D’Arcangelo (D’Arcangelo policy), which provides $100,000 coverage per person and $300,000 per accident for three vehicles. In count two, the plaintiff made a claim under a policy issued by the defendant to Wildman (Wildman policy), which provides $250,000 coverage per person and $500,000 per accident.

The defendant filed a motion for summary judgment on the ground that Nicolari’s vehicle is not underinsured with respect to either the D’Arcangelo policy or the Wildman policy. The court granted the motion and this appeal followed.

The plaintiff contends that in order to assess whether Nicolari’s vehicle is underinsured, the tortfeasor’s insurance limit must be compared against the per accident limit of each underinsured motorist policy. Thus, the plaintiff argues that because he has $300,000 per accident coverage on each of his three vehicles under the D’Arcangelo policy, the stacked per accident limit is $900,000 and, therefore, Nicolari’s vehicle is under-insured.

The trial court ruled that the plaintiff could collect only the total per person limits, not the per accident limits. It found that the plaintiffs policy has a total $300,000 per person underinsured limit and concluded that Nicolari is not underinsured. We agree.

“Courts construing statutes . . . that compare uninsured motorist coverage limits with tortfeasor liability limits have generally held that the legislative objective was simply to give an insured who is injured in an accident the same resource he would have had if the tortfeasor had carried liability insurance equal to the amount of the insured’s uninsured motorist coverage. Where an underinsured motor vehicle is statutorily defined as an insured motor vehicle with applicable liability limits less in amount than the injured person’s uninsured motorist’s limits, it is clear that the underinsured motorist coverage is not applicable if the insured person’s uninsured motorist limits are equal to, or less than, the tortfeasor’s liability limits.” (Internal quotation marks omitted.) American Motorists Ins. Co. v. Gould, 213 Conn. 625, 632, 569 A.2d 1105 (1990). Where the insurance policy is a split limit policy, “the total of the per person limit is the amount of liability insurance available to the claimant . . . .” Covenant Ins. Co. v. Coon, 220 Conn. 30, 34, 594 A.2d 977 (1991).

We conclude that the decision in Coon is dispositive of the issue on appeal. In Coon, the defendant Ernestine Coon, a passenger in a vehicle owned and operated by Robert Sabo, sustained injuries when the vehicle was struck by another vehicle. Coon owned an insurance policy with underinsured motorist coverage of $20,000. Sabo owned a policy with underinsured coverage of $50,000. The tortfeasor had liability insurance with liability limits of $25,000 per person and $50,000 per accident. The Supreme Court held that “even though [the tortfeasor] had $50,000 per accident liability limits, Coon never had more than $25,000 of this coverage potentially available to her. Thus, it is consistent with our earlier interpretation of § 38a-336 to conclude that the total of the per person limit is the amount of liability insurance available to the claimant, i.e. $25,000.” Id., 34.

In the present case, the plaintiff had a stacked total of $900,000 per accident uninsured motorist coverage, but he never had more than the stacked total of $300,000 per person uninsured motorist coverage available to him. Thus, the total amount of underinsured coverage available to the plaintiff was $300,000, not $900,000. See id. The trial court, therefore, correctly concluded that Nicolari’s vehicle, covered by a single limit of $500,000, was not underinsured pursuant to General Statutes (Rev. to 1991) § 38a-336.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1991) § 38a-336 (d) provides: “For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section.”

       A split limit policy sets the maximum liability amount both per person and per accident or per occurrence.

       The estate of a deceased occupant of Nicolari’s vehicle received $400,000 under Nicolari’s policy. After arbitration between the plaintiff and two other claimants, the plaintiff received $43,500.

       At oral argument the plaintiff conceded that if he were not successful under count one, count two would also fail.

       The plaintiff cites Stride v. Allstate Ins. Co., Superior Court, judicial district of Waterbury, Docket No. 0115903 (August 4, 1994) (12 Conn. L. Rptr. 142), in support of his proposition that in order to determine whether a vehicle is underinsured, the tortfeasor’s single limit should be compared to the underinsured motorist coverage limit per occurrence rather than per person. The case, however, was cited without analysis and cannot overrule the Supreme Court decision in Coon.

      The plaintiff also cites decisions from several foreign jurisdictions in order to support his position. After a review of these cases we find that they are not persuasive. None of the cases cited involves statutes with the same wording as the statute in place in Connecticut as it applies to the facts in the matter before us.

       The plaintiff attempts to distinguish this case from Coon by arguing that it does not apply when there are multiclaimants or when the per occurrence limits of both underinsured motorist and liability policies are not the same. We find that the Coon decision also involved multiclaimants and, therefore, this distinction does not exist. We also find that Coon's rationale applies even where the policies have different per occurrence limits.