author: Daly, J.

text:
    State of Connecticut v. Leroy Kemmel Grant
    (3952)
    Dupont, C. J., Borden and Daly, Js.
    Argued April 10
    decision released July 15, 1986

      M. Daniel Friedland, for the appellant (defendant).

      Harry Weller, special assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, Jeremy N. Weingast and Curtissa Cofield Rivera, assistant state’s attorneys, and James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant was convicted by a jury of possession of less than four ounces of a cannabis-type substance, a violation of General Statutes § 21a~279 (c) and of the sale of a controlled substance, a violation of General Statutes § 21a-277 (b). The defendant was found not guilty of possession of a controlled substance with the intent to sell, a violation of General Statutes § 21a-277 (b). In his appeal from the judgment, the defendant challenges the trial court’s disposition of the following: (1) the jury array; (2) the jury selection process; (3) the failure to excuse a juror during trial; and (4) the failure to charge the jury on the defense of entrapment.

From the evidence adduced at trial, the jury could reasonably have found the following facts. On September 5, 1984, Hartford police officer Ann Cody was assigned to attempt the purchase of any type of controlled substance in Keney Park. She drove into the park that morning dressed as a hippie in a motor vehicle with New York registration plates. She had a prerecorded $5 bill with which to effectuate a purchase. Around 11:30 a.m., she approached a man seated in the parking lot and inquired where she could buy marihuana. She was informed to wait and that the “man” would be right out. Subsequently, the defendant appeared at the driver’s side of her vehicle. In return for the $5 bill, she received a plastic envelope from the defendant and left the park.

Cody returned to the parking area with Sergeant Jeffrey Flaherty and Lieutenant Thomas Moore and found the defendant. After Cody identified him as the seller of the marihuana, the defendant was arrested and searched. The $5 bill was found in the defendant’s possession. A search of the nearby wooded area whence the defendant had emerged was instituted because it is customary for dealers to have a supply nearby. The officers eventually located a pile of six plastic bags near the root of a tree, close to the area from which the defendant had entered the parking area. Detective James Chrystal photographed the tree cache. Subsequently, the defendant was charged with the three counts upon which he was tried.

The case was first docketed on the firm jury trial list on November 19, 1984, and reappeared on the list on five other occasions. The defendant was notified each time the case was docketed until the jury selection process commenced, at which time, the defendant orally indicated that he intended to challenge what he claimed to be a group of all white veniremen. Two days later, the defendant filed a written motion to dismiss the array after the jury panel had been selected and the case was ready to proceed to trial. The defendant claimed that the array did not represent a fair cross section of the community.

The trial court properly denied the motion to dismiss for failure to comply with Practice Book § 842 which provides that “[a]ny party may challenge an array on the ground that there has been a material departure from the requirements of law governing the selection and summoning of an array. Such challenge shall be made within five days after notification of the hearing or trial date, unless the defect claimed has arisen subsequent to the time required to make such motion.”

The claim that the jury was not a representative group “is not supported by the record since no evidence pertinent to the issue was introduced. Defense counsel merely stated to the court that it was his belief that the entire jury panel was white and made no effort to substantiate this statement. . . . Substantiation of the claim . . . ‘requires something more than defense counsel’s speculation.’ ” State v. McClain, 171 Conn. 293, 294-95, 370 A.2d 928 (1976).

The defendant next claims that, during the jury selection process, either the state’s attorney or the trial court systematically excluded prospective jurors who believed that the marihuana and narcotics laws were overly harsh. We decline to review this claim because the defendant failed to comply with Practice Book § 3060F (c). That rule provides in relevant part that an appellant’s brief shall contain “[a] statement of the nature of the proceedings and of the facts of the case. The statement of facts shall be in narrative form, and shall be supported by appropriate references to the page or pages of the record or transcript upon which the party relies. The statement of facts should not be detailed or voluminous but must be confined strictly to facts bearing upon the questions raised. An appellant may not rely upon any fact unless it is set forth in his statement of facts or is incorporated into his brief

The defendant also claims error in the failure of the court to select alternate jurors. We disagree. Section 54-82h (a) of the General Statutes provides in pertinent part: “In any criminal prosecution to be tried to the jury in the superior court if it appears to the court that the trial is likely to be protracted, the court may, in its discretion, direct that, after a jury has been selected, two or more additional jurors shall be added to the jury panel, to be known as ‘alternative jurors.’ ” “The trial court, when empaneling a jury, has . . . broad discretion in its rulings.” State v. Ziel, 197 Conn. 60, 65, 495 A.2d 1050 (1985). “In reviewing the correctness of the trial court’s ruling in such a matter, the trial court enjoys the presumption that its decision in a matter of discretion was correct.” State v. Johnson, 188 Conn. 515, 520, 450 A.2d 361 (1982); see Holden & Daly, Connecticut Evidence (1966 and Sup. 1983) § 35. We find no abuse of discretion in the trial court’s decision not to select alternate jurors.

After the trial had progressed for approximately two days, juror Ann Kiessel informed the trial court that she was acquainted with officer Chrystal, whom she had seen in the courthouse. Chrystal had not been mentioned as a possible witness to the jurors because it was not anticipated that he would be called by the state. When the defendant was arrested, he gave his name as “Donald Dickson.” Chrystal was scheduled to be called as a witness to establish the defendant’s identity through fingerprint records. The defendant stipulated, however, that he was the person arrested in Keney Park, thus eliminating the need for Chrystal’s testimony. When the photographs which Chrystal had taken in the park were misplaced, it appeared that he might be a potential witness. The photographs, however, were found and introduced through another police officer, eliminating the need for the state to call Chrystal to testify. The defendant called Chrystal as his own witness and claims that the trial court erred in not allowing him to voir dire Kiessel personally during the course of the trial to determine the extent of her relationship with Chrystal.

The trial court conducted an inquiry of Kiessel who indicated that she felt that she could be fair and impartial as a juror and that her judgment would not be affected if Chrystal were a witness. The defendant moved for a mistrial which was denied. In the motion, he claimed that he had been deprived of the right to examine Kiessel during trial once the apparent bias became known. “ ‘This court does not choose to create a set of unreasonably constricting presumptions that jurors be excused for cause due to certain occupational or other special relationships which might bear directly or indirectly on the circumstances of a given case, where, as here, there is no showing of actual bias or prejudice. . . . [T]his court adheres to the principle that a defendant must “raise a contention of bias from the realm of speculation to the realm of fact.” The trial court, in turn, when empaneling a jury, “has a serious duty to determine the question of actual bias, and a broad discretion in its rulings on challenges therefor.” ’ ” State v. Clark, 164 Conn. 224, 228, 319 A.2d 398 (1973), quoting Mikus v. United States, 433 F.2d 719, 724 (2d Cir. 1970); State v. Ziel, supra.

Unlike the formal pretrial voir dire proceeding where counsel has the right to examine potential veniremen, once a juror is selected and trial has commenced, the issue of any further inquiry by counsel into a juror’s status is subject to the discretion of the trial court and is not a matter of right. It might well be that to allow counsel to examine a juror might itself give rise to prejudice that may taint the trial court proceedings. Here, there was no abuse of the trial court’s discretion.

The defendant claims that Chrystal was a “pivotal, key witness” in the case, therefore, entitling the defense personally to question Kiessel about her potential bias. It should be noted that no prejudice resulted since the only count in which Chrystal participated resulted in a not guilty finding by the jury. If Kiessel’s acquaintance with Chrystal could be considered a form of jury misconduct, the test is “ ‘whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial.’ United States v. Klee, [494 F.2d 394, 396 (9th Cir. 1974)]. A trial court has a large measure of discretion in dealing with a motion for a mistrial; State v. Martinez, 173 Conn. 541, 544, 378 A.2d 517 ( 1977); and its decision as to fairness of the trial must be afforded great weight. . . . ” State v. McCall, 187 Conn. 73, 77, 444 A.2d 896 (1982). The conclusion of the trial court that Kiessel was capable of sitting impartially and rendering a true and just verdict must stand. State v. Bowen, 167 Conn. 526, 531, 356 A.2d 162 (1975). The defendant requested that Chrystal be called as a witness and hence cannot claim error in the action of the trial court which he had induced. State v. Ross, 189 Conn. 42, 47, 454 A.2d 266 (1983).

The defendant lastly claims that the trial court should have granted his request to charge the jury on the defense of entrapment. Entrapment is the inducement by a public servant or police officer of a person to engage in criminal conduct that had not been contemplated by him, for the sole purpose of instituting criminal prosecution against him. The defense is available to the defendant only if he would not have engaged in the proscribed conduct but for the inducement of a police officer. General Statutes § 53a-15; State v. Avery, 152 Conn. 582, 583, 211 A.2d 165 (1965). “Entrapment is inconsistent with guilt in a criminal case and if it existed entitles the defendant to acquittal. . . . Although entrapment is generally referred to as a defense, it is more properly treated as a fact inconsistent with guilt.” State v. Whitney, 157 Conn. 133, 135, 249 A.2d 238 (1968). There is, in the present case, no evidence that the defendant either admitted to committing a crime or that he was induced by the police to commit a crime in which he would not have engaged except for such inducement. Therefore, the court did not err in refusing to instruct the jury on the defense of entrapment. State v. Hawkins, 173 Conn. 431, 436, 378 A.2d 534 (1977); State v. Avery, supra, 584; State v. Piland, 2 Conn. App. 513, 515, 480 A.2d 588 (1984).

There is no error.

In this opinion the other judges concurred.

       Practice Book § 887 provides in pertinent part: “Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case. ...”


source: Caselaw Access Project

license: Public Domain

text:
    Edward Ferrier v. Personnel and Pension Appeals Board of the Town of Wallingford
    (3697)
    Dupont, C. J., Borden and Daly, Js.
    Argued April 9
    decision released July 15, 1986

      Joseph P. Patrucco, for the appellant (plaintiff).

      Richard R. Brown, for the appellee (defendant).
   Daly, J.

The plaintiff appeals from the judgment of the Superior Court dismissing his appeal from the decision of the Wallingford personnel and pension appeals board (board). The court’s judgment sustained the action of the town’s mayor in discharging the plaintiff as the planning coordinator for the Wallingford planning and zoning commission (commission).

The factual situation does not appear to be in dispute. The plaintiff served as the town’s planning and zoning coordinator for approximately six years, when he was discharged from that position by the town’s mayor by means of a letter delivered on June 15, 1983. The discharge was effective the following day. The basis for the discharge was the plaintiff’s failure to disclose his financial interests in matters before the commission, giving the appearance of a conflict of interest with his public duties. On June 17, the plaintiff appealed his discharge to the board, claiming that the mayor did not have the authority to discharge him, and that there was no just cause for the mayor’s actions. After conducting an evidentiary hearing lasting several days, the board issued its decision, dated December 1,1983, finding that the mayor had the authority to discharge the plaintiff and that he had done so for just cause. The plaintiff appealed the board’s decision to the Superior Court. See General Statutes § 7-422. The court dismissed the appeal by its judgment and memorandum of decision filed on October 26,1984, finding that the board’s decision was supported by the record. The plaintiff then filed this appeal.

The plaintiff has presented to this court the following issues: (1) whether the mayor had the authority to discharge the plaintiff; (2) whether the plaintiff was given adequate notice of such discharge; and (3) whether the plaintiff had been discharged for just cause. Before we address each of these claims, however, we shall summarize the proper scope of appellate review under General Statutes § 7-422.

An appellate court, in reviewing a decision from a local personnel and pension appeals board, may not adjudicate facts or otherwise substitute its judgment for that of the board. See Finkenstein v. Administrator, 192 Conn. 104, 112-13, 470 A.2d 1196 (1984); Raybestos-Manhattan, Inc. v. Planning & Zoning Commission, 186 Conn. 466, 469, 442 A.2d 65 (1982); Denby v. Commissioner, 6 Conn. App. 47, 52, 502 A.2d 954 (1986). The court’s function is limited to the examination of the record to determine whether the ultimate decision was factually and legally supported to ensure that the board did not act illegally, arbitrarily or in abuse of its discretion. See Finkenstein v. Administrator, supra, 113; Greenwich v. Liquor Control Commission, 191 Conn. 528, 534, 469 A.2d 382 (1983).

The plaintiff claims on appeal that the mayor of Wallingford lacks the legal authority to discharge the town’s planning and zoning coordinator. In presenting this argument, the plaintiff relies on chapter V, § 3, of the town charter, which excepts from the mayor’s authority the power to discharge “employees in the offices of elected officers or boards . . . .’’The plaintiff contends that this section also precludes the mayor from discharging employees in the offices of local commissions. In Carruthers v. Vumbacco, 4 Conn. App. 168, 171-72, 493 A.2d 259 (1985), we held that the term “boards,” as used in the Wallingford town charter, does not include commissions and that the mayor had the authority to discharge employees of the commission. We hold, therefore, for the reasons stated in Carruthers v. Vumbacco, supra, 170, that the trial court did not err in determining that the board was correct in finding that the mayor had the legal authority to discharge the plaintiff.

The plaintiff has also challenged the adequacy of notice afforded him prior to his discharge. He complains that by giving him less than twenty-four hours notice, the mayor violated rule XII, § 2, of the personnel rules which requires that an employee be given two weeks written notice prior to the effective date of dismissal. The plaintiff complains further that the board erred in failing to rule specifically on this issue. The record demonstrates that the issue of notice was mentioned in the plaintiffs brief, as well as during portions of the testimony. Even if we assume that the board erred in failing to decide this issue, such error was not harmful to the plaintiffs claim for reinstatement. Had the board found in his favor on the issue of notice, the most to which the plaintiff would have been entitled was two weeks pay, not reinstatement. Such a finding would be insufficient to upset the board’s determination after factually adequate notice and a full hearing before the board. The error alleged by the plaintiffs second claim is harmless.

Having resolved the issue of whether the mayor had the right to discharge the plaintiff, we consider whether the board properly affirmed the decision of the mayor to discharge the plaintiff for just cause. The board found that the plaintiffs position required a high degree of independent judgment and provided the commission with timely and meaningful input based on his expertise. The board also found that the plaintiff was involved with five profitable projects which he had reviewed for the commission. The commission approved all five projects without the knowledge of the plaintiff’s financial interests therein. Conversely, when the plaintiff’s son-in-law had projects before the commission, the plaintiff recused himself.

The board concluded that the plaintiff’s interests were incompatible with the proper discharge of his official duties in the public interest, tended to impair his independence of judgment or action in the performance of his official duties and failed to avoid the appearance of conflict between his public duties and private interests. We agree with the Superior Court that the decision of the board is reasonably supported by the evidence in the record. See Finkenstein v. Administrator, supra; Greenwich v. Liquor Control Commission, supra; Madow v. Muzio, 176 Conn. 374, 376, 407 A.2d 997 (1978).

There is no error.

In this opinion the other judges concurred.


author: Borden, J.

text:
    Michael J. Zotta v. J. William Burns, Commissioner of Transportation
    (3852) (3853)
    Borden, Daly and Bieluch, Js.
    Argued June 10
    decision released July 15, 1986

      Louis B. Blumenfeld, with whom, on the brief, was John T. Scully, for the appellant (defendant in both cases).

      R. Bartley Halloran and John F. Nagle, for the appellee (plaintiff in both cases).
   Borden, J.

The defendant, the commissioner of transportation, appeals from the trial court’s judgments in favor of the plaintiff. In these combined actions, the plaintiff claimed damages for personal injuries and for property damage arising out of a one car accident on a state highway. The principal issue in these appeals is whether the trial court erred by finding as a matter of law that the plaintiff had provided the defendant with sufficient notice to meet the requirements of General Statutes § 13a-144. We find error.

Certain facts are not in dispute. On March 23,1982, the plaintiff was injured as a result of a one car accident in which his automobile was also damaged. The accident occurred on Camp Meeting Road in Bolton. One month later, the plaintiff’s attorney purported to give the requisite statutory notice of his injuries and losses to the defendant. See footnote 1, supra. This notice, however, described the place of the accident as route 6 in Bolton instead of Camp Meeting Road, and failed to state the time of the accident.

After receiving this notice, an employee of the defendant wrote to the plaintiff, on May 6,1982, advising him to submit all further correspondence to the defendant’s insurance company. Within the ninety day notice period required by General Statutes § 13a-144, the plaintiff’s attorney sent the following items to the defendant’s insurance company: the police accident report, an investigator’s diagram of the area, photographs of the accident site, and a cover letter. The police accident report properly described the time and place of the accident. The diagram and photographs, however, incorrectly identified the accident site as route 6. The cover letter made no reference to the time or place of the accident, nor did it state that it was a supplement to or substitute for the original notice of the plaintiff’s claims. The defendant does not dispute that his insurance carrier received these items within the statutory ninety day notice period.

The plaintiff’s personal injury complaint was issued on September 14,1982, and the property damage complaint was issued on June 22, 1983. Both complaints alleged that the accident occurred on route 6 and that statutory notice was provided to the defendant on April 21, 1982. The defendant moved for summary judgment in both actions on the ground that the notice was defective as a matter of law. Attached to these motions was, inter alia, a map and a sworn affidavit of a department of transportation official which indicated that Camp Meeting Road and route 6 are two distinct and separately maintained highways. The plaintiff argued, inter alia, that the items sent to the defendant’s insurer were sufficient as a matter of law to meet the statutory notice requirements and that the defendant should be estopped from challenging the validity of that notice because the defendant’s employee had informed the plaintiff to submit all correspondence to the insurance company. The trial court, Hale, J., denied the motions for summary judgment.

At trial, the plaintiff presented his cases without introducing any evidence regarding the notice given to the defendant. The defendant moved for directed verdicts at the close of the plaintiff’s cases and, later, after all the evidence had been introduced. After the plaintiff rested, the trial court, Allen, J., held a hearing on the notice issue outside of the jury’s presence in order to preserve this issue for purposes of appeal. The plaintiff marked three items as exhibits for identification: the original letter of notice dated April 21, 1982, the defendant’s letter of May 6,1982, to the plaintiff advising him to forward all correspondence to the defendant’s insurer, and the cover letter from the plaintiff to the defendant dated May 24,1982. The trial court held that, as a matter of law, the plaintiff had provided the defendant with sufficient notice to meet the requirements of General Statutes § 13a-144. Consequently, the trial court denied the defendant’s motions for directed verdicts and charged the jury that as a matter of law the plaintiff had provided adequate notice to the defendant. The defendant excepted to the charge to the jury.

The jury returned verdicts for the plaintiff and judgments were rendered accordingly. The trial court denied the defendant’s motions for judgment notwithstanding the verdicts and to set aside the verdicts, and these appeals followed. The defendant first claims that because the evidence of statutory notice was insufficient, the trial court erred by refusing to direct verdiets, by failing to render judgments notwithstanding the verdicts, and by denying his motions to set aside the verdicts. The plaintiff concedes that the original notice of April 21, 1982, to the defendant was inadequate but argues that the other items, which were sent to the defendant’s insurer, were sufficient as a matter of law to provide the defendant with notice. In addition, the plaintiff asserts that because the defendant advised the plaintiff to forward all correspondence to the insurer, the defendant should be estopped from challenging the validity of that notice. We disagree.

General Statutes § 13a-144 created a cause of action “wholly unauthorized by the common law.” Wethersfield v. National Fire Ins. Co., 145 Conn. 368, 371, 143 A.2d 454 (1958). “In view of the fact that Section [13a-144] is in derogation of the common law and that during its successive reenactments a saving clause has not been inserted, the statute must be strictly construed.” Wright & Fitzgerald, Conn. Law of Torts (2d Ed.) § 95, p. 224; cf. General Statutes § 13a-149 (notice savings clause in municipal highway liability statute). “The giving of the statutory written notice of injury is a condition precedent to the cause of action, whether the action is against the state or any subdivision thereof.” Wethersfield v. National Fire Ins. Co., supra.

Ordinarily, the question of the adequacy of notice “is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case.” Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947). Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice “patently meets or fails to meet”; id; the statutory requirements. In the present case, the trial court correctly removed the threshold question of the validity of the statutory notice from the jury. The court erred, however, by determining that the notice in question was legally sufficient to meet the requirements of General Statutes § 13a-144.

General Statutes § 13a-144 requires, inter alia, that notice properly describing the place where the alleged injury occurred “[be] given in writing within ninety days thereafter to the commissioner.” As the plaintiff concedes, his first purported notice, which was timely sent to the defendant, failed properly to describe the place where the accident occurred. Similarly, the items subsequently forwarded to the defendant’s insurer failed properly to describe the place where the accident occurred. At best, those items were ambiguous with respect to the description of the accident location. The police accident report properly described the site of the accident as Camp Meeting Road, but the diagram and photographs indicated that the accident occurred on route 6.

Even if we were to assume that such an ambiguous notice was sufficient to meet the threshold requirements of General Statutes § 13a-144 so as to permit the question of validity to go to the jury, it is clear that this notice was not sent “to the commissioner” as the statute requires. Construing the statutory requirements strictly, as we must, we conclude that the plaintiff’s correspondence, which was forwarded to the defendant’s insurance company, failed to meet the requirement Of notice “to the commissioner.”

We also reject the plaintiff’s claim that the defendant should be estopped from claiming that the subsequent notice materials were not sent “to the commissioner.” This claim is based on the May 6,1982 letter from the defendant’s employee to the plaintiff advising the plaintiff to forward all further correspondence to the defendant’s insurance company. The defendant argues that the plaintiff has failed to meet the criteria necessary to invoke estoppel against a governmental defendant. We agree.

Estoppel against a governmental agency may be invoked only in limited instances and with great caution. Greenwich v. Kristoff, 2 Conn. App. 515, 522, 481 A.2d 77 (1984). “Under our well-established law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury.” Zoning Commission v. Lescynski, 188 Conn. 724, 731, 453 A.2d 1144 (1982). In order to invoke a claim of estoppel against a government agent, the claimant must also show that the government agent who induced the detrimental reliance had authority to act in such matters and that special circumstances exist which make it highly inequitable or oppressive to enforce the applicable law. West Hartford v. Rechel, 190 Conn. 114, 121, 459 A.2d 1015 (1983). Further, the party claiming estoppel in such cases must establish that he exercised due diligence in ascertaining the legality of his conduct, “and that he not only lacked the knowledge of the true state of things but had no convenient means of acquiring that knowledge.” Greenwich v. Kristoff, supra.

Even if we assume that the evidence was sufficient to establish that the defendant’s employee intended to induce the plaintiff to believe that the plaintiff could send the statutorily required notice to the insurance company instead of to the defendant, and that the plaintiff relied to his detriment upon that inducement, the evidence is insufficient to warrant the application of the estoppel doctrine against this defendant. There is no evidence that the plaintiff “lacked both knowledge of the true state of things and a convenient way to ascertain it.” Id., 523. To the contrary, it is clear that had the plaintiff “exercised due diligence in ascertaining the legality” of his conduct; id., 522; he would have known that the statute specifically required notice to the defendant rather than to the defendant’s insurance carrier. This is not, therefore, one of those limited instances in which estoppel may be invoked against a government agent.

There is error, the judgments are set aside and the cases are remanded to the trial court with direction to render judgments for the defendant.

In this opinion the other judges concurred.

       General Statutes § lSa-144 provides in pertinent part: “No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner.”

       The attorney who gave this notice was not the attorney who represented the plaintiff in this appeal.

       The defendant also moved to strike the property damage complaint on the ground that the notice failed to include a general description of the damage to the plaintiffs automobile and failed to specify the time of the accident. The trial court, Kelly, J., denied the motion to strike without prejudice, indicating that “[wjhile the notice comes exceedingly close to being insufficient, the court is unable to conclude that it [is] insufficient as a matter of law.”

       Because this issue is dispositive of these appeals, we do not reach the other issues raised by the defendant.


author: Per Curiam.

text:
    State of Connecticut v. Earl Rucker
    (4295)
    Borden, Daly and Bieluch, Js.
    Argued June 12
    decision released July 22, 1986

      Terrence J. Murphy, Jr., public defender, for the appellant (defendant).

      James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from his conviction, after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). His sole claim on appeal is that the evidence was insufficient to sustain the conviction. We find no error.

The state’s evidence, which the jury was free to believe, was that the defendant struck the victim on the head at least three times with a hammer, causing a depressed skull fracture which resulted in traumatic epilepsy and traumatic labyrinthitis, an inner ear disability. The defendant assaulted the victim as she was kneeling in front of her kitchen sink after getting some nails which the defendant, a neighbor, had asked her to give him for repairs which he was making. The appeal of the defendant, who claimed self-defense, does no more than ask us to substitute his version of the incident for the contrary and compelling evidence which the jury believed.

There is no error.


author: Spallone, J.

text:
    State of Connecticut v. Daniel Jones
    (3602)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 4
    decision released July 22, 1986

      R. William Bohonnon, with whom, on the brief, were David M. Bohonnon and K. Wynne Bohonnon, for the appellant (defendant).

      Christopher Malany, deputy assistant state’s attorney, with whom, on the brief, was John J. Kelly, chief state’s attorney, for the appellee (state).
   Spallone, J.

After a trial to a jury, the defendant was convicted of two counts of kidnapping in the first degree, a violation of General Statutes § 53a-92 (a) (2) (A), and two counts of sexual assault in the first degree, a violation of General Statutes § 53a-70 (a). From the judgment rendered following the verdicts, the defendant appeals, claiming that the trial court erred (1) by permitting the state’s handwriting expert to testify as an alibi rebuttal witness despite the failure of the state to notify the defendant in advance pursuant to Practice Book § 764, and (2) by allowing the state’s handwriting expert to testify from writing samples that were never authenticated.

The evidence adduced at trial could reasonably support the following facts. On Saturday, September 3, 1983, at about 11:45 p.m., the victims, two fourteen year old boys, were walking home from a movie in Milford. The defendant, driving a four door Dodge sedan, pulled his car to the side of the road, exited from the car and identified himself to the victims as a Bridgeport juvenile officer. The defendant ordered the boys to the side of his car, handcuffed them, pushed them in the car, fastened them in with seatbelts, and drove off. While driving, he purported to read the boys their Miranda rights and radio into juvenile authorities. The defendant drove into Bridgeport and pulled into a parking lot. At that point, the defendant got out of the car, pulled one of the boys from the back seat, and forced him into the trunk. The defendant pulled a sweater over the other boy’s head and drove off.

Approximately one-half hour later, the defendant arrived at a building and parked his car inside. When in the building, the defendant forced the victim from the trunk, pulled a shirt over his head, and handcuffed him to a pole. The defendant removed the shirt from the boy’s head and placed masking tape over the boy’s eyes. The boy was nevertheless able to peep out and identify certain features of the building. The defendant then removed the other boy from the car, handcuffed him to a different pole, and taped his eyes shut. This boy was also able to see out under the tape.

The defendant then brought the first victim into another room and sat him in a chair. The defendant, who was now nude, sat on a desk and interrogated the victim. He asked the victim his name, address, telephone number, date of birth, nickname, his parents’ names and their places of employment, and the name of his school and grade. The victim was able to observe the defendant writing down the information on a piece of paper. The defendant then returned to the other victim and asked the same biographical questions. The victim was able to see out under the tape and observed the defendant write the information onto a pad of yellow paper. The defendant then brought the victims into a different room and sexually assaulted them.

After the sexual assault, the defendant replaced the tape blindfolds with bandages and allowed the boys to get dressed. He then drove them back to Milford and let them off, where they were found by the Milford police.

Both claims of error raised by the defendant focus on the testimony of the state’s handwriting expert, William Duane. The circumstances surrounding Duane’s testimony require some explanation. As part of its casein-chief, the state introduced a yellow sheet of paper that had been seized from the defendant’s desk pursuant to a valid search warrant. The paper contained certain biographical information of the victims. After the victims testified that the color of the paper and the information contained on it were the same as that used and elicited by the defendant on the night of the abduction, the trial court admitted the document. To further corroborate this evidence, the state offered an admission by the defendant that the exhibit was in his handwriting and had been in his bedroom. Upon the defendant’s motion to suppress, however, the court ruled these statements inadmissible. This ruling was made on Thursday, August 2,1984. The following Tuesday, August 7, the state disclosed that it intended to call Duane as a handwriting expert to testify regarding the handwriting on the sheet of paper. At the same time, the state filed a supplemental disclosure with the defendant’s counsel listing Duane as a rebuttal witness to the defendant’s alibi testimony. The disclosure was made pursuant to Practice Book § 764, which requires the state to disclose the identity of witnesses who will testify in response to the defendant’s alibi defense after the defendant has disclosed his alibi witnesses. The defendant moved to exclude Duane from testifying because the state had not disclosed timely his identity as an alibi rebuttal witness pursuant to Practice Book § 764. The state’s attorney responded that the state was unaware of the need for a handwriting expert until the unfavorable ruling on the motion to suppress, and that it had not received Duane’s report until that day and had promptly provided defense counsel with a copy. The state’s attorney also noted that the disclosure of Duane as a witness was made within ten days of receiving the defendant’s written notice of alibi witnesses, and indicated that he would have no objection to a request by defense counsel for a continuance to prepare for cross-examination. The trial court then allowed Duane to testify.

The defendant’s first claim reiterates his argument that the state violated Practice Book § 764 by failing to file timely a notice of the state’s intent to call Duane as a witness. Section 764 provides: “If the written demand and notice have been filed pursuant to Sec. 763, the prosecuting authority, within ten days after filing of the notice, but in no event less than ten days before the trial unless the judicial authority otherwise directs, shall file a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant’s presence at the scene of the alleged offense and any other witnesses to be relied upon to rebut testimony of any of the defendant’s alibi witnesses.”

The state argues that even though Duane, out of an abundance of caution, was listed as an alibi rebuttal witness in the state’s supplemental disclosure, he should not, under § 764, be considered such a witness. The state points out that Duane’s testimony was presented as part of its case-in-chief, that Duane himself did not purport to have any knowledge of the defendant’s whereabouts, and that Duane’s testimony served only to confirm testimony of the victims, who did know where the defendant had been.

We agree that Duane was not an alibi rebuttal witness under Practice Book § 764. Section 764 requires the state to disclose the identity of witnesses who will either “establish the defendant’s presence at the scene of the alleged offense [or] . . . rebut testimony of the defendant’s alibi witnesses.” Duane’s testimony fell into neither of these categories. His testimony, if credited, would tend to establish the defendant’s authorship of the evidence in question. It could not, without more, establish the defendant’s presence or absence at the scene of the crime. Duane cannot therefore be classified as an alibi rebuttal witness. Cf. United States v. Givens, 767 F.2d 574, 584 (9th Cir. 1985), cert. denied, 474 U.S. 953, 106 S. Ct. 321, 88 L. Ed. 2d 304 (1985).

Even if Duane were considered an alibi rebuttal witness, the state in this case did not know of its need to use Duane until the defendant’s motion to suppress was granted in the midst of trial. Where a new alibi or alibi rebuttal witness is discovered in the midst of trial, disclosure requirements are governed by Practice Book § 765. Section 765 provides: “If prior to or during the trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under Secs. 763 or 764, the party shall promptly notify the other party or his counsel of the existence and identity of such additional witness.” (Emphasis added.) There is no question that the state’s disclosure of Duane complied with this section.

Finally, although defense counsel claimed he was surprised by the witness and would need more time to find a rebuttal expert, he did not request a continuance. “If the defendant felt that he had insufficient time to prepare, his remedy would have been to request a continuance, which he did not do.” State v. Villafane, 171 Conn. 644, 669, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). The trial court did not abuse its discretion by allowing Duane to testify. See State v. Boucino, 199 Conn. 207, 216, 506 A.2d 125 (1986).

The defendant’s second claim is that the trial court erred by allowing Duane to utilize exemplars of the defendant’s handwriting which the defendant alleges were not properly authenticated. The state was allowed to introduce as exhibits several business and employment records bearing the name of the defendant. Duane used these exhibits in determining that the handwriting on the yellow sheet was that of the defendant. The defendant claims that the state failed to prove that these exemplars were in his handwriting.

It is undisputed that where an issue is raised regarding the authenticity of a writing, proof of authenticity may be made by a comparison of the disputed writing with another writing, an exemplar, the authenticity of which has been established. Shakro v. Haddad, 149 Conn. 160, 163, 177 A.2d 221 (1961); Tyler v. Todd, 36 Conn. 218, 222 (1869). The authenticity of the exemplar may be proved by circumstantial evidence. McCormick, Evidence (3d Ed.) § 222; annot., 41 A.L.R.2d 575, 589 § 8. The state claims that the authenticity of the signatures on business and employment records was established by their nature and contents, as well as by testimony of the defendant’s fiancee on cross-examination that the handwriting on the exemplars was that of the defendant.

We conclude that the trial court did not abuse its discretion by admitting the exemplars into evidence. Courts have generally held that handwriting on employment or business records may serve as exemplars where the employee would normally be expected to place his signature on such documents. See United States v. Mangan, 575 F.2d 32, 41-42 (2d Cir. 1978) (personnel file); United States v. Greiser, 502 F.2d 1295, 1298-99 (9th Cir. 1974) (motel registration cards, employment applications); United States v. Reed, 439 F.2d 1, 3 (2d Cir. 1971) (W-4 tax withholding form); United States v. Swan, 396 F.2d 883, 885 (2d Cir. 1968), cert. denied, 393 U.S. 923, 89 S. Ct. 254, 21 L. Ed. 259 (1968) (student’s university records); United States v. Liquor, 373 F.2d 304, 305 (2d Cir. 1967) (employment and lease applications, automobile registration); Shapiro v. Equitable Life Assurance Society, 76 Cal. App. 2d 75, 87, 172 P.2d 725 (1946) (signature on loan application); State v. Clark, 552 S.W.2d 256, 264-67 (Mo. App. 1977), aff'd, 592 S.W.2d 709 (Mo. 1979) (employment application, personnel file). Here, the defendant never contended that the exemplars were not genuine, nor did he advance any argument as to who else may have signed the documents. In fact, the defendant’s fiancee, on cross-examination at a later point in the trial, confirmed the authenticity of the exemplars. Under these circumstances, there was no error in allowing the exemplars to be introduced into evidence.

There is no error.

In this opinion the other judges concurred.

       Although the defendant appealed to this court, the appeal was transferred to the Supreme Court pursuant to Practice Book § 2003 because the subject matter of the appeal is within the direct jurisdiction of the Supreme Court. General Statutes §§ 51-199 (b) (3), 53a-92 (b), 53a-35a (3). On review, however, the Supreme Court elected to transfer the matter to this court. General Statutes § 51-199 (c).

       Practice Book § 763 provides: “Upon written demand filed by the prosecuting authority stating the time, date, and place at which the alleged offense was committed, the defendant shall file within ten days, or at such other time as the judicial authority may direct, a written notice of his intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.” The state had previously made a demand pursuant to this section, and the defendant had disclosed to the state the names of alibi witnesses he intended to call in his defense.

       The state claims that review of this claim should be precluded by the failure of the defendant to comply with the procedures set forth in Practice Book § 3060F (d) (3) regarding the form of the appellant’s brief. In the interests of justice and in view of the fact that the reply brief of the defendant sets forth an adequate factual summary, however, we will review the claim. Practice Book § 3164; see Pisel v. Stamford Hospital, 180 Conn. 314, 330, 430 A.2d 1 (1980); Vaiuso v. Vaiuso, 2 Conn. App. 141, 145, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984).

       The exhibits are: (1) a Cablevision employment application and two W-4 forms; (2) a Pepperidge Farms employment application, a Manpower employee record and three receiving forms; (3) receiving reports and purchase orders from Cablevision; (4) a photographic enlargement with side-by-side comparison of key words from the yellow sheet with the victim’s biographical information and a composite of the same letters taken from the business and employment records; and (5) a Manpower job application.

       The exhibits were admitted under the business record exception to the hearsay rule. General Statutes § 52-180. Although the business record rule obviates the hearsay objection, it does not render all business records competent for whatever purpose they may be offered. See State v. Waterman, 7 Conn. App. 326, 341-42, 509 A.2d 518 (1986). Thus, the admission of the document did not, in and of itself, establish the authenticity of the defendant’s signatures on the documents.


text:
    Garwood & Sons Construction Company, Inc. v. Centos Associates Limited Partnership et al.
    (4385)
    Dupont, C. J., Hull and Daly, Js.
    Argued May 2
    decision released July 22, 1986

      Marlene E. Macauda, with whom, on the brief, was David M. McHugh, for the appellant (plaintiff).

      David M. Wallman, for the appellee (named defendant).
   Daly, J.

This appeal arises from an action in two counts to recover damages for carpentry services rendered. The first count alleged breach of contract and the second, unjust enrichment. The trial court found for the plaintiff, Garwood and Sons Construction Company, on the first count adjudging a recovery from the defendant Rock Development, Inc. (Rock), of $22,757.04, plus interest. On the second count, that of unjust enrichment, the trial court found for the named defendant, Centos Associates Limited Partnership (Centos). The plaintiff challenges that latter finding on appeal. The plaintiffs sole claim is that the trial court erred in concluding that there was insufficient evidence presented by the plaintiff to prove that Centos was unjustly enriched. We find no error.

The facts are not in dispute. In September, 1982, the plaintiff subcontractor entered into a contract with Rock, a general contractor, to provide carpentry work and materials on premises owned by Centos and located at 489 Post Road East, Westport. After a dispute regarding payment, the plaintiff left the job on March 14, 1983, without fully performing. The plaintiff’s performance until that date had been satisfactory.

The plaintiff instituted this action in June, 1983, at which time an attachment against Centos was ordered and a complaint was served on Rock and Centos. At trial, Centos introduced no witnesses. The second count, which is the focus of this appeal, alleged that because Centos, as owner of the premises, had received the benefit of the plaintiffs services, Centos had been unjustly enriched. The trial court found for Centos on the ground that no evidence was produced by the plaintiff as to payments or lack of payments made by Centos to Rock.

The equitable remedy of unjust enrichment may be invoked when justice requires that a party be compensated “ ‘for property or services rendered under a contract, and no [legal] remedy is available by an action on the contract.’ 5 Williston, Contracts (Rev. Ed.) § 1479.” Cecio Bros., Inc. v. Greenwich, 156 Conn. 561, 564, 244 A.2d 404 (1968); Bolmer v. Kocet, 6 Conn. App. 595, 612, 507 A.2d 129 (1986). As an equitable right, unjust enrichment is based on the principle that in a given situation, “it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff.” National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985), quoting Schleicher v. Schleicher, 120 Conn. 528, 534, 182 A. 162 (1935); see Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 246, 287 A.2d 379 (1971). “All the facts of each case must be examined to determine whether the circumstances render it ‘just or unjust, equitable or inequitable, conscionable or unconscionable,’ to apply the doctrine.” Bolmer v. Kocet, supra, 613.

To recover under unjust enrichment, the plaintiff must demonstrate: (1) that the defendant has benefited from the transaction or has received something of value; and (2) that the benefit was unjust, that is, was not paid for by the defendant, to the detriment of the plaintiff. Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 665-66, 368 A.2d 6 (1976); Bolmer v. Kocet, supra, 612-13. The burden of proving unjust enrichment was placed on the plaintiff in Montanaro Bros. Builders, Inc. v. Snow, 190 Conn. 481, 490, 460 A.2d 1297 (1983), where the court remanded stating that a hearing should be held to determine whether “the plaintiffs have made out a case of unjust enrichment. . . . ” Id., 490-91; see also Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 48, 492 A.2d 223 (1985).

In this case, the plaintiff clearly demonstrated that Centos derived a benefit from the plaintiffs agreement with Rock, that is, carpentry services properly performed on the premises. Yet, if Centos paid its contractor, Rock, for these services, then the enrichment, in the absence of fraud, was not unjust. The record does not demonstrate that the defendant failed to pay, or that there was any fraud involved. While the plaintiff has proved enrichment, it has failed to prove that enrichment to be unjust, and the judgment must stand.

There is no error.

In this opinion the other judges concurred.

       Centos Associates Limited Partnership was not a party to the contract between the plaintiff and Rock.


text:
    State of Connecticut v. Barbara Olson
    (4485)
    Borden, Daly and Bieluch, Js.
    Argued June 10
    decision released July 22, 1986

      Rachel Lee Cavell, for the appellant (defendant).

      Barbara Farrell, legal intern, with whom was James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from the judgment of her conviction by the trial court of owning dogs which by their excessive barking caused a nuisance and were a source of annoyance to a sick person residing in the immediate vicinity, in violation of General Statutes § 22-363. The defendant claims on appeal (1) that the trial court misconstrued the statute, and (2) that there was insufficient evidence to support the conviction.

When reviewing the judgment of a trial court, our standard of review is the same whether the trier of fact is a judge, a panel of judges or a jury. State v. D'Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982). "When a verdict is challenged because of insufficient evidence, the issue is whether the [trier] could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985), quoting State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980).

Our review of the record and briefs establishes that the challenged facts; namely, that the complainant was a sick person residing in the immediate area who suffered from migraine headaches, and who was subjected to annoyance from the excessive barking by the defendant’s seven dogs; are supported by the evidence and justify the conviction. The court’s conclusions based on those facts are legally and logically correct. From the cumulative effect of this evidence, together with reasonable inferences, the trial court could reasonably have concluded beyond a reasonable doubt that the defendant was guilty of violating General Statutes § 22-363.

There is no error.

       The trial court found that the defendant committed a violation of General Statutes § 22-363 but, being the defendant’s first offense, considered it an infraction. The court ordered a sentence of unconditional discharge.

       General Statutes § 22-363 provides: “No person shall own or harbor a dog or dogs which is or are a nuisance by reason of vicious disposition or excessive barking or other disturbance, or by such barking or other disturbance, is or, are a source of annoyance to any sick person residing in the immediate vicinity. Violation of any provision of this section shall be an infraction for the first offense and such person shall be fined not more than one hundred dollars or imprisoned not more than thirty days or both for each subsequent offense and the court or judge may make such order concerning the restraint or disposal of such dog or dogs as may be deemed necessary.”


author: Dupont, C. J.

text:
    State of Connecticut v. James C. Daniels
    (4119)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 3
    decision released July 22, 1986

      Kerry A. Lawrence, special public defender, for the appellant (defendant).

      Marcia B. Smith, assistant state’s attorney, with whom, on the brief, was John A. Connelly, state’s attorney, for the appellee (state).
   Dupont, C. J.

After a conviction by a jury of sexual assault in the first degree in violation of General Statutes § 53a-70, and threatening in violation of General Statutes § 53a-62, the defendant appeals and claims that the trial court erred in refusing to allow him to introduce evidence of the victim’s prior sexual conduct.

The jury could reasonably have found the following facts. The fifteen year old victim was at her home with two male friends, both minors, when the defendant, who was twenty-one years old, arrived. Everyone smoked a joint of marihuana before going to the defendant’s home. At his home, everyone drank some beer in the defendant’s bedroom. After some time had passed, the defendant ordered one of the boys to undress the victim, threatening the boy with violence if he did not comply. With the victim seated on his bed and partially nude, the defendant ordered the two boys to leave the house. After the two boys left, the defendant threw the victim down on the bed, held her down, and proceeded to have sexual intercourse with her. The victim and the defendant then dressed and left the house. The next day, the victim and her mother went to the police and filed a complaint, resulting in the defendant’s arrest shortly thereafter. The defendant denied having any sexual contact or intercourse with the victim on the day in question.

The court denied the defendant’s motions to offer evidence of the victim’s prior consensual sexual conduct with him. Offers of proof were made pursuant to General Statutes § 54-86f (3) and (4). In the absence of the jury, the defendant testified that he had consensual intercourse with the victim three days prior to the date on which the sexual assault of which the defendant stands convicted took place. The defendant asserts that his right of confrontation of the witness was unduly restricted by the exclusion of such evidence because it would have shown that the victim was biased and had a motive to falsely accuse the defendant of sexual assault. After a lengthy colloquy during which the defendant had ample opportunity to link the prior conduct evidence to the issue of the victim’s bias and motive, the trial court excluded the evidence as irrelevant. The defendant’s argument focuses upon exception (4) of General Statutes § 54-86f, the “constitutional rights” subsection of the statute. See Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); State v. Jones, 8 Conn. App. 44, 510 A.2d 467 (1986). His argument also involves subsection (3) of the same statute.

General Statutes § 54-86f provides: “no evidence of the prior sexual conduct of the victim may be admissible unless such evidence is . . . (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.” If the proffered testimony is not relevant to a material issue in the case, the defendant’s right to confront his accuser is not affected. The fact that the victim may or may not have had prior consensual intercourse with the defendant indicates nothing about a motive to falsely accuse him of forcible sexual intercourse at a later time. See State v. Franko, 199 Conn. 481, 486-88, 508 A.2d 22 (1986); State v. Esposito, 192 Conn. 166, 172, 471 A.2d 949 (1984); State v. Cassidy, 3 Conn. App. 374, 384, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985). This evidence was not offered to show a recent pattern of conduct of a particular mode of consensual sexual relationship. See State v. Cassidy, supra, 384.

The right of the defendant to confront and cross-examine witnesses against him is not absolute; Chambers v. Mississippi, supra, 295; State v. Franko, supra, 488; “but may bow to ‘other legitimate interests in the criminal trial process.’ Chambers v. Mississippi, supra, 295; State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985); State v. Mastropetre, 175 Conn. 512, 521, 400 A.2d 276 (1978). Such an interest is the trial court’s ‘right, indeed, duty, to exclude irrelevant evidence.’ State v. Mastropetre, supra, 521; State v. Talton, [197 Conn. 280, 283-85, 497 A.2d 35 (1985)]; State v. Randolph, 190 Conn. 576, 594, 462 A.2d 1011 (1983); State v. Johnson, [190 Conn. 541, 551, 461 A.2d 981 (1983)]; State v. Gaynor, 182 Conn. 501, 509 n.8, 438 A.2d 749 (1980). Since the defendant failed to establish that the testimony he sought to elicit was relevant to a material issue in the case, he cannot complain that his constitutional rights were violated when that testimony was excluded. Accordingly, the trial court did not err in prohibiting this inquiry.” State v. Franko, supra, 488.

The only aspect of the cross-examination of the victim restricted by the trial court was in regard to prior sexual conduct between the victim and the defendant. The cross-examination was otherwise virtually unrestricted, and the victim’s testimony spanned a period of two days. The defendant was permitted to question the victim in detail about the events of the assault, about events prior to the assault on that same date, and about her subsequent revelation and reporting of the assault. On this record, it cannot be said that the cross-examination was insufficient for compliance with the sixth amendment to the United States constitution.

The defendant failed to establish the relevance of the prior consensual sexual conduct, if it occurred at all, and failed to establish the probative value of such evidence. Rulings on relevancy are within the discretion of the trial court and upon review every reasonable presumption should be given in favor of the trial court’s ruling. State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982). The relevance of this evidence was “ ‘so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case. State v. Bassett, 151 Conn. 547, 551, 200 A.2d 473 [1964].’ State v. Mahmood, 158 Conn. 536, 540, 265 A.2d 83 (1969). We have reiterated that evidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case.” State v. Talton, supra, 284-85. As the defendant has failed to establish the relevance of the proffered testimony to the issue of non-consensual sexual intercourse, the testimony was properly excluded.

The defendant also claims that the trial court erred by excluding testimony offered under General Statutes § 54-86f (3), which allows the trial court to admit evidence of prior sexual conduct of the victim if other conditions of the statute are met, “when consent is raised as a defense by the defendant . ” The defendant argues, in essence, that the statute cannot be read to exclude such evidence in cases where consent has not been raised as a defense since such a reading would be an overly restrictive interpretation of its language and put the defendant in an unfair position. In the present case, the defense of consent was not raised by the defendant, but rather, he denied the occurrence of any sexual intercourse on the date on which the sexual assault was alleged to have occurred.

In State v. Mastropetre, supra, a defendant charged with sexual assault denied sexual contact with the victim but claimed that the victim’s prior sexual conduct was relevant on the issue of consent to intercourse. The relevance of the victim’s prior conduct on the issue of consent, that defendant claimed, arose because non-consent is an essential element of the crime charged. Mastropetre, which predates General Statutes § 54-86f, commonly known as the rape shield statute, held that when a defendant denies the occurrence of sexual relations with a victim, “consent was not truly an issue in the case.” State v. Mastropetre, supra, 516. The defendant in this case would seek to overturn the reasoning of Mastropetre, and go even further, to read the language of General Statutes § 54-86f as allowing the introduction of evidence of prior sexual conduct whenever a defendant is charged with sexual assault.

This subsection of the rape shield statute must be read in such a way as to uphold the integrity of the statutory scheme and must be construed so that it carries out the intent of the legislature. State v. Belton, 190 Conn. 496, 505, 461 A.2d 973 (1983). While penal statutes must be strictly construed, the rule of strict construction does not require an interpretation which would involve absurdity or frustrate the evident design of the legislature. State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985); State v. Belton, supra, 506. General Statutes § 54-86f (3) unequivocally states that evidence of prior sexual conduct may only be offered “when consent is raised as a defense.” The defendant’s failure to raise consent as a defense in this case precludes the introduction of evidence of prior sexual conduct under subsection three of the statute. If the defendant’s contention were to be sustained, the purpose of the statute, which is “specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault ... for policy purposes”; State v. Cassidy, supra, 379; would be subverted by making admissible all evidence of a victim’s prior sexual conduct in any prosecution for assault except under General Statutes § 53a-71 (a), the only section to which § 54-86f applies which does not involve nonconsensual intercourse.

There is no error.

In this opinion the other judges concurred.

       The defendant made two offers of proof, one prior to trial and the other during trial. The first related to allowing this testimony during his direct examination, and the second to allowing questions relating to this prior conduct during the cross-examination of the victim.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . . ”

       The unfair position claimed by the defendant is that defendants who would otherwise deny the fact that any sexual intercourse took place, when charged with sexual assault, would be coerced into falsely admitting sexual intercourse and raising the affirmative defense of consent in order to attempt to introduce evidence of prior sexual conduct. To state this claim is to refute it.

       General Statutes § 53a-71 (a), as amended by Public Acts 1985, No. 85-341, § 2, provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age, or (2) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual intercourse, or (3) physically helpless, or (4) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (5) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person.”


text:
    Maureen Cianci v. Connecticut Council for American Federation of State, County and Municipal Employees
    (4672)
    Dupont, C. J., Hull and Spallone, Js.
    Submitted on briefs May 27
    decision released July 22, 1986

      John A. Stewart filed a brief for the appellant (plaintiff).

      J. William Gagne, Jr., filed a brief for the appellee (defendant).
   Spallone, J.

The plaintiff is appealing from the judgment rendered after the trial court dismissed her action for lack of subject matter jurisdiction.

The facts are largely undisputed. The plaintiff, Maureen Cianci, was formerly employed by the state department of human resources (DHR) and was a member of the defendant union, Connecticut Council for American Federation of State, County and Municipal Employees, Local 884, AFL-CIO (AFSCME). In August, 1979, the plaintiff was issued a warning regarding her job performance. Pursuant to the bargaining agreement, the plaintiff instituted grievance procedures during the course of which she was represented by the defendant. Following the procedures outlined in the agreement, the plaintiff, just prior to entering the final stage of the grievance proceedings, settled her dispute with DHR by agreeing to accept a ninety day leave of absence during which she would undergo counseling. On or about February 9,1980, the plaintiff requested reinstatement. DHR refused to reinstate the plaintiff on the ground that she violated the settlement agreement by not undergoing counseling.

On or about September 18, 1980, the plaintiff filed a complaint against DHR, the state of Connecticut and AFSCME with the Connecticut state board of labor relations (board). She alleged that the defendants conspired to deny her her rights and to obtain her dismissal. She alleged also that AFSCME breached its duty of fair representation owed to her. In December, 1981, while her administrative proceedings were pending, the plaintiff brought this separate action in Superior Court against AFSCME alleging, as she had in her complaint before the board, that the defendant breached its duty of fair representation and conspired with DHR to secure her dismissal from her employment.

The board, meanwhile, continued its proceedings with respect to the plaintiffs complaint. All parties were represented by counsel before the board. On April 26, 1983, the board dismissed the plaintiffs complaint on the ground that the allegations therein were not supported by the evidence. The plaintiff did not appeal from the board’s final order as was her right; General Statutes §§ 5-274 (d) and 31-109 (d); but pursued her claims against her union in Superior Court by way of the action she had instituted previously. The court ultimately dismissed the plaintiff’s action for lack of subject matter jurisdiction.

On appeal, the plaintiff claims that the granting of the defendant’s motion to dismiss was erroneous. She argues that the trial court had jurisdiction to entertain the underlying action, and that the dismissal deprived her of the right to have her case decided on the merits. Although we recognize the trial court’s jurisdiction to entertain the matters involved in the underlying action; see Fetterman v. University of Connecticut, 192 Conn. 539, 557, 473 A.2d 1176 (1984); we conclude that the trial court properly dismissed the action.

Because the plaintiff was employed by the state, any complaints initiated by her or in her behalf regarding collective bargaining were controlled by General Statutes §§ 5-270 et seq. These provisions confer jurisdiction on the board to handle complaints of prohibited practices engaged in by employers and employee organizations. The remedies available to a complainant through the board, however, are not exclusive. Fetterman v. University of Connecticut, supra.

In Fetterman v. University of Connecticut, supra, the plaintiff brought an action in Superior Court against, among others, her union alleging, as was done here, that the union had violated § 5-272 by failing to represent her fairly. The trial court dismissed the action on the ground that it lacked subject matter jurisdiction to entertain the case in that the plaintiff had failed to pursue and exhaust the administrative remedies available to her prior to commencing the action. On appeal, the Supreme Court concluded that the board’s remedies were not exclusive and, consequently, that the trial court erred in dismissing the plaintiffs’ claim that the union had violated § 5-270 et seq.

The court’s ruling demonstrates that the Superior Court and the board have concurrent jurisdiction over matters involving certain labor disputes. “Typically, the creation of [an administrative] agency means the addition to the legal system of a new lawmaking and law applying authority, with no explicit subtraction from the previously-existing power of courts.” 4 Davis, Administrative Law (1983) § 22:1, p. 81. In such cases, the doctrine of “primary jurisdiction” dictates that the dispute be directed to the board so as to take advantage of the board’s specialized skills and procedures; Sharkey v. Stamford, 196 Conn. 253, 255-56, 492 A.2d 171 (1985); 4 Davis, supra, 81-82; although in Fetterman the Supreme Court remanded the case and directed the trial court to exercise its own jurisdiction over the subject matter. Fetterman v. University of Connecticut, supra.

Because the plaintiff in Fetterman invoked only the trial court’s concurrent jurisdiction over the subject matter of her complaint, she was not required to exhaust the administrative remedies initially available to her. In contrast, the plaintiff in the present action elected initially to proceed before the board, thereby taking advantage of the specialized skills and procedures enjoyed by it. She did not invoke the court’s concurrent jurisdiction.

By her election, the plaintiff was constrained to exhaust the remedies available in the manner prescribed, including the manner by which to appeal. She could not, subsequent to having initiated the administrative proceedings, bring an independent action to test the very issue which the statutory appeal was designed to test. Laurel Park, Inc. v. Pac, 194 Conn. 677, 685, 485 A.2d 1272 (1984); Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979); Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33, 193 A.2d 483 (1963); State Water Commission v. Norwich, 141 Conn. 442, 447, 107 A.2d 270 (1954); Davis v. Yudkin, 3 Conn. App. 576, 578, 495 A.2d 714, cert. denied, 197 Conn. 805, 499 A.2d 57 (1985). This requirement “ ‘foster[s] an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions.’ ” Sharkey v. Stamford, supra, 256, quoting Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977).

The plaintiff’s election to pursue the administrative remedies available to her did not foreclose judicial review of her claims, but rather had the effect of postponing such review until the board issued its final order. See General Statutes §§ 5-274 (d) and 31-109 (d). Having failed to follow the dictates of General Statutes §§ 31-109 and 5-274 (d) by not taking an appeal from the final order of the board within two weeks from the date of its order, the plaintiff is now precluded from attacking the findings and conclusions of the board and is bound by its rulings. The plaintiffs claims were fully heard and litigated before the board and the dismissal of her complaint by the trial court did not deprive her of her right to have the action heard on its merits.

There is no error.

In this opinion the other judges concurred.

       The basis of the trial court’s decision was that the plaintiff waived her statutory right to appeal in that she did not file such an appeal within two weeks from the issuance of the board’s final order, as is prescribed by statute. See General Statutes §§ 5-274 (d) and 31-109 (d). Having found that the plaintiff waived her statutory right to appeal, the court concluded that it lacked subject matter jurisdiction over the action which was before it. Although the legal analysis and policy consideration espoused in this opinion vary from those employed by the trial court in reaching its decision, we sustain the court’s ultimate judgment. See Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 405-406, 480 A.2d 552 (1984).

       General Statutes § 5-272 provides in part: “(a) Employers or their representatives or agents are prohibited from: (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed in section 5-271 including a lockout; (2) dominating or interfering with the formation, existence or administration of any employee organization; (3) discharging or otherwise discriminating against an employee because he has signed or filed any affidavit, petition or complaint or given any information or testimony under sections 5-270 to 5-280, inclusive; (4) refusing to bargain collectively in good faith with an employee organization which has been designated in accordance with the provisions of said sections as the exclusive representative of employees in an appropriate unit; including but not limited to refusing to discuss grievances with such exclusive representative; (5) discriminating in regard to hiring or tenure of employment or any term or condition of employment to encourage or discourage membership in any employee organization; (6) refusing to reduce a collective bargaining agreement to writing and to sign such agreement; (7) violating any of the rules and regulations established by the board regulating the conduct of representation elections.
      “(b) Employee organizations or their agents are prohibited from: (1) Restraining or coercing employees in the exercise of the rights guaranteed in subsection (a) of section 5-271; (2) restraining or coercing an employer in the selection of his representative for purposes of collective bargaining or the adjustment of grievances; (3) refusing to bargain collectively in good faith, with an employer, if it has been designated in accordance with the provisions of sections 5-270 to 5-280, inclusive as the exclusive representative of employees in an appropriate unit; (4) violating any of the rules and regulations established by the board regulating the conduct of representation elections; (5) refusing to reduce a collective bargaining agreement to writing and sign such agreement.”

       In that courts and administrative agencies often have concurrent jurisdiction, the common law doctrine of primary jurisdiction “is designed to guide a court in determining whether and when it should refrain or postpone the exercise of its own jurisdiction so that an agency may first answer some questions presented.” 4 Davis, Administrative Law (1983) § 22:1, p. 81.

       General Statutes § 5-274 provides in part: “(d) For the purposes of hearings and enforcement of orders under sections 5-270 to 5-280, inclusive, the board shall have the same power and authority as it has in sections 31-107, 31-108 and 31-109, and the employer and the employee organization shall have the right of appeal as provided therein.”
      General Statutes § 31-109 provides in part: “(d) Any person aggrieved by a final order of the board granting or denying in whole or in part the relief sought may obtain a review of such order in the superior court for the judicial district where the unfair labor practice was alleged to have occurred or in the judicial district wherein such person resides or transacts business by filing in the court, or, if said court is not in session, with any judge thereof, within two weeks from the date of such order, a written petition in duplicate praying that the order of the board be modified or set aside. The clerk of the superior court shall thereupon mail the duplicate copy to the board. The board shall then file in said court a transcript of the entire record in the proceeding, certified by the board, including the pleadings, testimony and order of the board. Upon such filing said court or such judge shall proceed in the same manner as in the case of a petition by the board under this section and shall have the same exclusive jurisdiction to grant to the person such temporary relief or restraining order as it deems just and suitable, and in like manner to make and enter a decree enforcing or modifying and enforcing as so modified or set aside, in whole or in part, the order of the board.”


text:
    Mariannina DiSorbo v. Grand Associates One Limited Partnership
    (3920)
    Düpont, C. J., Hull and Spallone, Js.
    Argued June 4
    decision released July 22, 1986

      Charles J. Riether, for the appellant (defendant).

      James L. Radda, with whom, on the brief, was Richard Damiani, for the appellee (plaintiff).
   Spallone, J.

The defendant appeals from the judgment of a trial referee, acting as the trial court, which granted the plaintiff a prescriptive easement over the defendant’s land and enjoined the defendant from interfering with the plaintiff’s use and enjoyment of the easement. The defendant claims that the court erred (1) in determining that there was sufficient evidence to support the finding that the plaintiff’s use of the land was adverse to the defendant, and (2) in refusing to allow a witness of the defendant to testify as to the detrimental effect of granting a permanent injunction. We find no error.

The plaintiff and her husband operate a bakery on Grand Avenue in New Haven. The defendant is the present owner of the adjacent parcel on Grand Avenue. Since opening the bakery in 1963, the plaintiff and her husband have used a driveway on a portion of the property now owned by the defendant. Vehicles would travel down the 150 foot driveway and turn right across the back of the defendant’s land to reach the rear of the plaintiff’s bakery. Since 1963, the driveway and crossover have been used by the plaintiff’s baking suppliers when making deliveries, by the plaintiff’s private trash collector when emptying her dumpsters, and by the plaintiff and her husband when making pickups and deliveries for their business. In the late 1970’s, the plaintiff and her husband resurfaced the driveway at their own expense.

Neither the plaintiff nor her husband ever requested permission to use the driveway or crossover, nor did anyone ever order them to cease their use. The plaintiff and her husband simply used the driveway and crossover as they wished. At no time were the plaintiff and her husband served with the statutory notice for disputing easements as set forth in General Statutes §§ 47-38 et seq.

On appeal, the defendant’s first claim is that there was insufficient evidence to support the referee’s finding that the plaintiff’s use of the driveway was adverse to the defendant or its predecessors. We find no merit to this claim.

To acquire a right of way by prescription, a party must establish that a use is open, visible, continuous, and uninterrupted for fifteen years and made under a claim of right. General Statutes § 47-37; Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 618, 495 A.2d 1006 (1985). In claiming that the evidence failed to support a finding that the plaintiff’s use was adverse, the defendant focuses on the requirement that the use be under a “claim of right.” See Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 515-16, 227 A.2d 83 (1967); Sachs v. Toquet, 121 Conn. 60, 66, 183 A. 22 (1936). “Use under a claim of right means ‘without recognition of the rights of the owner of the servient tenement.’ ” Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 464, 338 A.2d 470 (1973); Klar Crest Realty, Inc. v. Rajon Realty Corporation, 190 Conn. 163, 168, 459 A.2d 1021 (1983). To establish a claim of right, it is not necessary that a claim be actually made and brought to the attention of the owner in fee. Robert S. Weiss & Co. v. Mullins, supra, 619; Phillips v. Bonadies, 105 Conn. 722, 726, 136 A. 684 (1927).

In the present case, the plaintiffs husband testified that he used the driveway and crossover whenever he wanted to and that he never sought permission to use the driveway. The plaintiff offered similar testimony. Where, as here, there is neither proof of express permission of the landowner, nor proof of an express claim of right by the person using the way, the character of the use, whether adverse or permissive, is to be determined as an inference from the circumstances of the parties and the nature and character of the use. Putnam, Coffin & Burr, Inc. v. Halpern, supra, 516; Phillips v. Bonadies, supra, 727. “ ‘Whether the requirements for such a right have been met in a particular case presents a question of fact for the trier of facts.’ ” Roberts. Weiss & Co. v. Mullins, supra, 618; Wadsworth Realty Co. v. Sundberg, supra, 464. The trier’s determination of facts will be disturbed only when those findings are clearly erroneous. Practice Book § 3060D; Robert S. Weiss & Co. v. Mullins, supra, 618; Russo v. Terek, 7 Conn. App. 252, 256-57, 508 A.2d 788 (1986). After a review of the record and transcript, we conclude that the trial referee’s findings were not clearly erroneous.

The defendant’s second claim is that the court improperly excluded testimony of one of the defendant’s witnesses. The witness, a general partner of the defendant, a limited partnership, was asked about the financing of a building project located on the defendant’s property. The court sustained an objection of the plaintiff on the grounds that such information was irrelevant to the issue of whether the plaintiff had established a prescriptive easement.

The defendant now claims that the witness would have testified “that the mortgage commitment with CHFA for permanent financing [of the project] would be lost in the event a permanent injunction was granted to the plaintiff allowing use by the plaintiff over the driveway of the defendant by way of large trucks, including tractor trailors.” The defendant asserts that such testimony was relevant as part of the balancing of the equities that must occur whenever injunctive relief is sought.

“Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had.” Practice Book § 288. Our rules require that counsel clearly state the grounds upon which he is relying either to admit or to object to the proffered evidence. Mays v. Mays, 193 Conn. 261, 268, 476 A.2d 562 (1984); Johnson v. Rockaway Bus Corporation, 145 Conn. 204, 210, 140 A.2d 708 (1958). Here, the court excluded the evidence on the ground that it was irrelevant to the issue of the establishment of a prescriptive easement. The defendant does not dispute this reasoning but contends that the testimony was relevant on the issue of determining whether injunctive relief should be granted. Although the contention may be sound; see Peckheiser v. Tarone, 186 Conn. 53, 60-61, 438 A.2d 1192 (1982); it was never asserted at trial court as required by our rules of practice. Once the court stated that the general partner’s testimony would be excluded because it was irrelevant on the issue of the establishment of an easement, it was incumbent upon the defendant, to preserve the claim on appeal, to point out how the testimony would be relevant to the issue of injunctive relief. Had the defendant done so, the court would have had the opportunity of correcting any error. “ ‘Error does not lie in the exclusion of evidence claimed on an inadmissible ground even though it might have been admissible had it been claimed on another and different ground.’ ” Mays v. Mays, supra, 268; Johnson v. Rockaway Bus Corporation, supra, 210. A contrary policy would allow trial court proceedings to become “ ‘a Kafkaesque academic test which [the trial judge] may be determined to have failed because of questions never asked of him or issues never clearly presented to him.’ ” State v. Hansen, 8 Conn. App. 26, 28-29, 510 A.2d 465 (1986). Accordingly, the defendant cannot prevail on this claim of error.

There is no error.

In this opinion the other judges concurred.

       The trial referee, Hon. Harold M. Mulvey, is a retired judge of the Superior Court and as such is authorized to “exercise the powers of the superior court in respect to trial, judgment and appeal.” Practice Book § 430; see Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 503 n.4, 508 A.2d 415 (1986).

       “[Mr. Riether]: Is the project financed, Mr. Prete?
      “Mr. Damiani: Objection, Judge.
      “The Court: Sustained.
      “Mr. Riether: Your Honor—
      “The Court: What’s your claim?
      “Mr. Riether: Your Honor, it’s the type of financing is very important to this moderate income apartment project that—
      “The Court: What has that got to do with whether or not there is a prescriptive easement here?
      “Mr. Riether: And the mortgage commitment is conditioned upon what type of use this property is used for.
      “The Court: Well, that may be, but I have nothing to do with that. The only question before me is whether or not these people have established prescriptive rights to use that driveway leading out on to Grand Avenue. That’s the only question I have and what any agreements somebody made with a bank or some other financial institution, what kind of agreement they made has nothing to do with the determination of that. That determination depends upon the evidence that was displayed in this courtroom. That’s it. I’ll sustain your objection.
      “Mr. Damiani: Thank you.
      “[Mr. Riether]: Do you know who the previous owners were to the property?
      “[Mr. Prete]: A Gentleman by the name of Frolley (Phonetic) I believe. Well, I should say the City of New Haven is the previous owner, purchased from the City of New Haven with no easement and with the understanding—
      “Mr. Damiani: Objection.
      “The Court: Sustained. The city of New Haven can’t bind me either.
      “Mr. Riether: May I have an exception?
      “The Court: Certainly.”

       The defendant incorrectly states the nature of the injunctive relief sought by the plaintiff. The plaintiff did not seek, and the trial referee did not grant, an injunction “allowing use by the plaintiff over the driveway.” Such permission is implicit in the findings of a prescriptive easement, and no injunction is necessary to authorize such use. Rather, the injunction prohibited the defendant from interfering with the plaintiffs use and enjoyment of the easement.

       In Peckheiser, our Supreme Court stated that “ ‘[injunction is the proper remedy to stop interference with an owner’s use and enjoyment of an easement.’ It is an equitable form of relief, however, which does not follow automatically upon establishment of a strict legal right where such a remedy would not be compatible with the equities of the case.” (Citation omitted.) Peckheiser v. Tarone, 186 Conn. 53, 60-61, 438 A.2d 1192 (1982). Although an injunction does not automatically follow from the finding of an easement, it is generally granted unless it would enact a severe hardship upon the servient property owners. See Waterbury Trust Co. v. G.L.D. Realty Co., 124 Conn. 191, 198-99, 199 A. 106 (1938) (upholding trial court denial of injunction to enforce an easement where injunction would require defendant to tear down a building that had been unknowingly erected upon plaintiffs easement and where plaintiff suffered little if any injury from erection of the building); Dobbs, Remedies (1973) § 5.6, pp. 355-57 (damages sometimes granted in lieu of injunction where injunction would require sevient property owners to tear down buildings that were unknowingly made to interfere with easement); note, 28 A.L.R. 2d 672 (regarding mandatory injunctions to compel removal of encroachments by adjoining landowner).