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    Robert B. Reilly, Sr., Conservator (Estate of Robert B. Reilly, Jr.) v. Carl DiBianco, Sr., et al.
    (3150)
    (3156)
    Dupont, C. J., Hull and Borden, Js.

      Argued October 4, 1985
    decision released March 25, 1986

      Paul E. Pollock, for the appellant-appellee (named defendant).

      David M. Reilly, pro se, the appellee-appellant (substituted plaintiff).

      Roger J. Frechette, for the appellee (defendant Carl DiBianco, Jr.)
   Dupont, C. J.

This case, tried to a jury, is a personal injury action in which the plaintiff sought damages for an assault and battery committed by Carl DiBianco, Jr., and Hector Sein, both alleged by the plaintiff to be employees of Carl DiBianco, Sr. The complaint also alleges that DiBianco, Jr., while acting within the scope, course or authority of his employment, initiated an assault on the plaintiff in which Sein assisted, at the urging and instigation of DiBianco, Jr. Other allegations are that DiBianco, Sr., is vicariously liable for the acts of DiBianco, Jr., and Sein, and that, as a proximate result of a beating, kicking and stabbing, the plaintiff was rendered comatose and suffered permanent brain damage.

The jury returned verdicts in favor of the plaintiff against all three defendants in the total amount of $2,000,000, and returned a verdict of $2,000,000 against DiBianco, Sr., and verdicts of $1,000,000 each against DiBianco, Jr., and Sein.

These verdicts were returned following prior verdicts which were not accepted by the court because they were inconsistent. Interrogatories were then prepared by the court and submitted to the jury with oral instructions to first answer the interrogatories, and then to use whichever one of seven verdict forms they deemed appropriate.

DiBianco, Sr., and DiBianco, Jr., both moved to set aside the verdicts for judgments notwithstanding the verdict and for remittiturs. The trial court denied the motion of DiBianco, Sr., to set aside the verdict, as to him, insofar as it encompassed liability for the acts of Sein, but granted it as to his liability for the acts of DiBianco, Jr., set the verdict against him aside as to damages only, and ordered a new trial, limited to the issue of damages. It denied DiBianco, Sr.’s motions for judgment and for remittitur. The court granted DiBianco, Jr.’s motion to set aside the verdict as to the issue of damages only, ordered a new trial limited to the issue of damages, and denied his other motions.

DiBianco, Sr., has appealed from the judgment of the court, claiming that the court erred (1) in admitting into evidence a written statement of Sein given to the New Haven police department, (2) in failing to render judgment notwithstanding the verdicts because there was insufficient evidence to hold him vicariously liable for the actions of DiBianco, Jr., or Sein, and because the jury could not apportion damages between joint tortfeasors, and (3) in charging the jury concerning future medical bills when there was insufficient evidence to prove their amount. The plaintiff has appealed, primarily claiming that the trial court erred (1) in setting aside, in part, the verdicts as to DiBianco, Jr., and DiBianco, Sr., and (2) in failing to conclude that any error in the apportionment of damages between DiBianco, Jr., and Sein affected the verdicts against both, and affected his right to recover full damages as assessed by the jury. The claims of error of the plaintiff are intertwined with the second claim of error of DiBianco, Sr., and are discussed together with that claim of DiBianco, Sr.

In its memorandum of decision relating to the post-trial motions of DiBianco, Sr., and DiBianco, Jr., the court stated that there was evidence from which the jury could find that both assailants of the plaintiff were employees of DiBianco, Sr., and it reviewed some of the facts which were before the jury.

DiBianco, Sr., owned and operated a gasoline service station on which premises a checkbook used in connection with the business was located. On the date of the assault, DiBianco, Sr., had left DiBianco, Jr., in charge of the business. DiBianco, Jr., told Sein that the plaintiff had stolen the checkbook and they went to the bank which issued the checkbook to look for the plaintiff. Not finding him there, they returned to the station. Shortly thereafter, the plaintiff appeared and was confronted by DiBianco, Jr., with the alleged theft. The plaintiff denied stealing the checkbook and DiBianco, Jr., then punched and kicked him. At the time, DiBianco, Sr., was present, and told his son to stop fighting. Sein subsequently told the police that he worked at the station and became involved in the fight between DiBianco, Jr., and the plaintiff to protect the interest of the station at which he worked, and that he alone had stabbed the plaintiff.

Other facts which the jury could reasonably have found were that the plaintiff was knocked to the ground by DiBianco, Jr., was repeatedly kicked and punched by both him and Sein, was kicked by DiBianco, Jr., while DiBianco, Jr., was wearing workboots, was punched in the mouth by DiBianco, Jr., causing a large amount of blood on the plaintiff’s face, and eventually staggered into a street adjacent to the station where he collapsed. The jury also had evidence that on occasion Sein pumped gas for DiBianco, Sr., and received payment from him from time to time, and that the latter kept no books or receipts for his business, had no cash register, and did not pay any person, including his son, a regular salary. A trail of blood ran from the vicinity of the gas pumps on the station premises to the street where the plaintiff eventually collapsed. A police officer testified that DiBianco, Sr., stated that his son was responsible for the assault on the person in the street. DiBianco, Sr., just prior to the arrival of the police, told his son to go home and take a shower. When DiBianco, Jr., arrived home he did not tell his mother and sister anything because he “didn’t want to upset them.” The plaintiff suffered a penetrating stab wound to his left chest which lacerated his heart. The plaintiffs chest was opened and his heart was sutured. He never regained consciousness, and at the time of the trial was a quadriplegic and in a permanent coma.

I

The first claim of error of DiBianco, Sr., is that the court should not have admitted into evidence a written statement of Sein given to the police. The statement was given approximately two and one-half weeks after the alleged assault on the plaintiff, and was sworn to, by him, before a police officer. The statement was voluntary and was preceded by warnings of Miranda rights which were waived in writing by Sein. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Sein initialled the waiver of each of his rights and acknowledged, in writing, that the statement could be used against him. During the question and answer format of the statement, he stated that he had consumed two short beers before coming to the police station to make the statement, felt good enough to make a statement, and had graduated from high school while in the military service. He further stated that the plaintiff had stolen a checkbook “from the garage where I work,” and that he had accompanied DiBianco, Jr., to a bank to see if the plaintiff was there cashing any checks. About five minutes after returning from the bank, the plaintiff arrived at the garage and was questioned about the checkbook by DiBianco, Jr., who then began hitting the plaintiff. “[W]hen I noticed the struggle going on I jumped in and started hitting him. During the struggle we were on the ground and I started hitting him and seen him reaching for his knife and grabbed it before he did in fear that he would use it on Junior or myself and I used it on him during the fight . ...” He also stated that he became involved in the struggle “[b]ecause I do work at the garage and I do have to protect the interest of the garage also.” He also stated that he came to the station because “Junior’s mother worries a lot and she feels that Junior was responsible for the whole thing of which he was not ...” and that he had consulted with a lawyer prior to giving the statement.

The statement was introduced as evidence against all three defendants as a declaration against penal interest. Such statements are admissible if they are trustworthy. Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). Courts have concluded that the test for admissibility as formulated in Chambers requires a consideration of when the declaration was made and to whom, the existence of corroborating evidence, whether it is, in fact, against penal interest, and the unavailability of the declarant as a witness. State v. Frye, 182 Conn. 476, 479, 438 A.2d 735 (1980).

The threshold requirement is the unavailability of the declarant. State v. DeFreitas, 179 Conn. 431, 440-41, 426 A.2d 799 (1980). Here, during the trial, the witness claimed the protection of the fifth amendment to the United States constitution and refused to answer whether he recalled the statement, and then stated that he could not recall it because he was intoxicated at the time. He would not answer if he was working at the garage on the date of the assault, and refused to answer the questions of whether all of his statements to the police were untrue, or whether he had taken any action to protect the station’s checkbook.

Sein was physically present in court but was functionally unavailable because of his exercise of a testimonial privilege. His testimony on crucial issues was unavailable. Sein was both a witness and one of three defendants in a civil action. He was questioned and refused to answer material questions. Although in court statements are capable of being tested by cross-examination and are, therefore, preferred to the use of out-of-court statements against penal interest which are not so subject, when that testing is precluded by the constitutional recalcitrance of a witness, there exists no good reason to exclude such out-of-court statements for use against all defendants, whether in a civil or criminal case, if those statements are trustworthy as defined in Chambers.

Sein’s statement against penal interest was made under oath, voluntarily, with knowledge of the waiver of his constitutional rights, shortly after the events which were the subject of the statement, and corroborating evidence existed as to the statement. The trial court did not abuse its discretion in admitting the statement. The hallmark of such a statement is its trustworthiness, and here that quality was substantial. See State v. Gold, 180 Conn. 619, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980).

II

The charge to the jury, the interrogatories prepared by the court, and the court’s reasons for its actions on the postverdict motions are inextricably tied to those claims of errors of the parties which relate to the partial setting aside of the verdicts for the plaintiff against DiBianco, Sr., and DiBianco, Jr.

The charge to the jury gave the jury three alternatives, once it had determined that both DiBianco, Jr., and Sein were responsible for the injury to the plaintiff. They could have found that the two acted in concert in pursuance of a common purpose, with mutual aid in carrying it out, to produce the ultimate injury to the plaintiff, thus making each responsible for all of the damages incurred by the plaintiff because the legal liability for the acts of one could not be severed from the acts of the other. They could have found that the acts of each were concurrent, independent acts, committed in pursuance of a common goal, and capable of monetary separation or apportionment of damages between them. Lastly, they could have found that each acted independently of the other in two disparate incidents, one incident being totally unrelated to the other, with each actor causing separate and distinct injuries capable of monetary separation.

The court concluded that the jury intended to isolate the involvement of DiBianco, Jr., and Sein, because the answers to the interrogatories stated that neither was legally responsible for all of the damages due the plaintiff. This conclusion was obviously correct. The court then concluded, because of the jury’s isolation of the legal responsibility of each for damages, that the jury had also found that DiBianco, Jr., and Sein had acted in two separate incidents to cause two separate harms. This conclusion was not warranted since the jury could also have found that the acts of each were concurrent and independent, in combination being the proximate cause of the plaintiff’s injury, but that the total damages due the plaintiff were capable of apportionment between them.

Having concluded as it did, the court then set aside the verdict as to DiBianco, Jr., on the reasoning that he had punched and kicked the plaintiff but was not the actor in the stabbing which was the direct cause of the plaintiff’s condition. The court therefore found that the award as to DiBianco, Jr., was grossly excessive, and disproportionate to any injury inflicted by him, and ordered a new trial as to damages only. The court set aside the verdict as to DiBianco, Sr., as to damages only because his liability for the acts of DiBianco, Jr., was vicarious. The court denied DiBianco, Sr.’s motion for remittitur, because, until a second trial can establish the amount of damages which DiBianco, Jr., should pay to the plaintiff, it cannot be known by what amount the verdict against DiBianco, Sr., should be reduced.

This case contains extremely complex issues in a recently expanding area of law. This is the first appellate case in which a trial court had actually to apply the infrequently stated principle in this state that where the tortious intentional conduct of two or more persons combines to bring about harm to a plaintiff and one of the actors seeks to limit his liability because the harm is capable of apportionment between or among them, the burden of proof as to such apportionment is upon that actor. Gutowski v. New Britain, 165 Conn. 50, 327 A.2d 552 (1973); 2 Restatement (Second), Torts § 433 (B) (2). If there is a basis upon which a jury can apportion damages between and among joint tortfeasors who have committed concurrent but independent acts which are the proximate cause of one harm, there is no logical reason to prevent the jury from doing so. Prosser, Torts (4th Ed.) § 52, pp. 313-14.

As stated previously, the court’s charge allowed the jury to find that DiBianco, Jr., and Sein were acting in concert, that is together, pursuant to a common plan, mutually aiding each other to produce one assault, making each responsible for all of the damages, regardless of the degree of participation of either. See Lamb v. Peck, 183 Conn. 470, 441 A.2d 14 (1981); Gervais v. Foehrenbach, 149 Conn. 461, 181 A.2d 253 (1962). Had this been the jury’s finding it would have stated that each was responsible for all of the damages incurred by the plaintiff in answer to the interrogatories and the verdict against each would have been $2,000,000. It is clear that the jury did not so find.

The jury could also have found that DiBianco, Jr., and Sein acted independently of each other in two separate incidents, causing two separate harms to the plaintiff, with each being liable only for the harm caused by him; see Grzybowski v. Connecticut Co., 116 Conn. 292, 294, 164 A. 632 (1933); or it could have found that their concurrent, independent acts were the proximate cause of a single injury, capable of monetary apportionment between them, if the defendants sustained their burden of proving a limitation on liability. Gutowski v. New Britain, supra. The interrogatories did not ask questions sufficient to determine which finding the jury made.

Gutowski and the Restatement (Second) of Torts, which it follows, state an exception to the common law doctrine of joint and several liability between and among joint tortfeasors, and to the common law corollary that there is no contribution between and among joint tortfeasors. “The rule that there cannot be contribution between joint tort-feasors is subject to definite limitations.” Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 541, 52 A.2d 862 (1947). The Gutowski principle is limited to those rare cases where the independent acts of two or more persons combine to bring about one injury and one of the actors seeks to isolate his monetary liability by proving the damages arising from his particular involvement in the harm to a plaintiff. Ordinarily, if two or more persons unite by concerted, or independent, intentional tortious acts to cause one injury, each is liable for the whole injury and damages may not be apportioned among them. Lamb v. Peck, supra.

In Gutowski, two police officers used concurrent force to assault the plaintiff. One hit the plaintiff on the left side of the face, the other twisted his right arm and hit him on the right shoulder. One hit the plaintiff while the other held him and the injuries were inflicted at different times and places in the police station. The trial court concluded that the officers were acting concurrently, were joint tortfeasors and were jointly and severally liable, that the plaintiff did not have to prove how much of his injury was inflicted by each, but that the defendants could seek to apportion the total damages between them if they sustained their burden of proof as to the apportionment.

The ability of one tortfeasor to obtain payment from another tortfeasor, that is, contribution, usually arises after a judgment in an underlying tort action has been satisfied, in whole or in part, in an amount disproportionate to the harm caused by the tortfeasor who satisfied the judgment. See Fidelity & Casualty Co. v. Jacob Ruppert, Inc., 135 Conn. 307, 63 A.2d 849 (1949); Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., supra. Contribution was originally denied between and among intentional wrongdoers, and subsequently the rule of no contribution among intentional tortfeasors was expanded to negligent tortfeasors. See note, “Does Connecticut Comparative Negligence Statute Abrogate Common Law No-Contribution Rule?,” 10 Conn. L. Rev. 526 (1978). Although most actions for contribution arise after the underlying action has concluded, leaving the plaintiff with his verdict and payment of it intact, there is nothing conceptually irrational about Gutowski. If all of the defendants are parties in an underlying action of a plaintiff, each defendant may establish that portion of the plaintiffs judgment, if any, for which each is liable, if the harm is capable of division between and among them because each defendant has engaged in independent acts of harm.

Connecticut has not, by statute, abolished the rule of no contribution between and among joint tortfeasors, but, by judicial decision, has allowed a variation of that theme, apportionment, when it is capable of being proved. Gutowski v. New Britain, supra.

In many states, the advent of allowing a trier to assess comparative negligence between a plaintiff and a defendant has bred the related doctrine of assessing comparative negligence among joint tortfeasors. The latter doctrine abrogates the rule of no contribution among joint tortfeasors to the extent that it interferes with the plaintiffs right to collect his entire damages from only one of the tortfeasors or affects the legal ability of one tortfeasor to obtain reimbursement from another tortfeasor for damages paid to a plaintiff. Some states, by statute, have allowed apportionment among negligent tortfeasors. See 53 A.L.R.3d 184, 190; 46 A.L.R.3d 801; 8 A.L.R.3d 722. Others have done so by judicial decision, and have allowed contribution among joint tortfeasors in proportion to the percentage of causal negligence of each joint tortfeasor. See Ladwig v. Ermanco Inc., 504 F. Sup. 1229 (E.D. Wis. 1981).

Even where such contribution is allowed, however, a passive defendant, liable only vicariously, is not involved in the apportionment or allocation, and remains liable for the whole, insofar as he stands in the shoes of the particular tortfeasor or tortfeasors. See id.

Nothing in Gutowski implies that the plaintiff is limited in his rights to obtain the whole amount of the damages from one vicariously liable for all of the damages. Here, the jury, before assessing damages against any defendant, stated, by its answer to one of the interrogatories, that the plaintiff was entitled to damages of $2,000,000. The verdicts against the other defendants cannot interfere with the right of the plaintiff to collect $2,000,000 from DiBianco, Sr., because, if we assume that the jury could have properly found him vicariously liable for the assaults of the other two defendants, he would remain vicariously liable for the whole, no matter how the damages were apportioned between DiBianco, Jr., and Sein.

Cases from other jurisdictions, based on facts similar to this case, albeit sometimes pursuant to statutes, generally hold that apportionment between defendants should be allowed when the damages are capable of being apportioned. This allocation of responsibility among active independent wrongdoers leaves the total responsibility owed to the plaintiff intact, and in no way deprives the plaintiff of the opportunity for, and the benefit of a damages award equal to the entire damage sustained by him. See Safeway Stores, Inc. v. Nest-Kart, 21 Cal. 3d 322, 579 P.2d 441, 146 Cal. Rptr. 550 (1978); Lincenberg v. Issen, 318 So. 2d 386 (Fla. 1975); Tolbert v. Gerber Industries, Inc., 255 N.W.2d 362 (Minn. 1977); Rogers v. Dorchester Associates, 32 N.Y.2d 553, 300 N.E.2d 403, 347 N.Y.S.2d 22 (1973); Dole v. Dow Chemical Co., 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972); Embrey v. Borough of West Mifflin, 257 Pa. Super. 168, 390 A.2d 765 (1978).

Apportionment is really a separate cause of action of the defendants, tried in the primary case for the benefit of the defendants but which may operate to the detriment of the plaintiff in that, although the total award of damages remains fixed, payment from each defendant may only be obtained in the amount of the damages attributable to each defendant.

The new trial ordered by the court to ascertain the damages due by DiBianco, Jr., would be an unusual proceeding. It could not affect the damages owed by Sein since no new trial was ordered as to him. In effect, the new trial would be a reassessment of how to apportion the damages between two joint tortfeasors because the issue will be the degree of fault of DiBianco, Jr. It would be a trial to determine the amount of damages which one of two joint tortfeasors should pay the plaintiff, without the presence of the other joint tortfeasor.

Damages may not be apportioned between an employer and an employee because the employer and the employee are not joint tortfeasors and the employer is vicariously liable for all of the harm caused by the employee because of public policy reasons. See Stulginski v. Cizauskas, 125 Conn. 293, 5 A.2d 10 (1939); Estate of Canale v. Binghamton Amusement Co., 45 App. Div. 2d 424, 427, 357 N.Y.S.2d 931 (1974), aff’d, 37 N.Y.2d 875, 340 N.E.2d 729, 378 N.Y.S.2d 362 (1975).

The jury found all three defendants liable here, and found the total damages to be $2,000,000. Its verdict against the employer, DiBianco, Sr., for the acts of his employees, was $2,000,000. By finding the damages excessive as to DiBianco, Jr., while simultaneously finding that the total damages were not excessive and in leaving undisturbed the verdict of $1,000,000 against Sein, the court, in effect, has apportioned damages between the employer and his employees.

As previously discussed, the jury’s verdicts are capable of two interpretations. The jury either concluded that the two tortfeasors had acted independently, but in combination with each other, to produce one injury, and apportioned or limited the damages of each to one half of the total damages, or they concluded that each had engaged in two independent acts, in two separate incidents, each incident unrelated to the other incident, and assessed the damages arising from each incident in equal amounts. The latter finding is less likely, however, because this is not the usual case of independent incidents where joint tortfeasors, previously unknown to each other, happen, by circumstance of time and place, to cause harm to another by independent tortious acts. Grzybowski v. Connecticut Co., supra. If such a finding were the only possible interpretation of the jury’s verdicts, the court would have been correct in setting the verdicts against him and DiBianeo, Sr., aside as to damages, because no evidence was produced that DiBianeo, Jr., had stabbed the plaintiff. It would then, however, have had to set aside the verdict against Sein also, because if the total damages were intended by the jury to be $2,000,000, the verdict against Sein could not stand once the verdict against DiBianco, Jr., was set aside as excessive. If $2,000,000 is the total damages awarded by the jury, and $1,000,000 is the verdict against one defendant, and $1,000,000 is excessive as to the other, obviously $2,000,000 can no longer be the total.

In this case, however, the jury could have reasonably concluded that each active tortfeasor acted independently and concurrently to produce one injury, and then concluded that the liability of each should be limited in accordance with the court’s instructions which were based on Gutowski.

The court did not find the total assessment of damages to be excessive nor was the jury told to limit its apportionment of damages to any particular percentage of the whole or to apportion damages in disparate amounts.

The evidence was that the direct cause of the plaintiff’s primary injury, the laceration to his heart, was caused by the stabbing by Sein. The jury, however, could have believed the Sein version of events which was that he joined DiBianco, Jr., to compound the assault while the latter was punching and kicking the plaintiff. The jury could have believed that the plaintiff, weakened by the facial blows and kickings inflicted by DiBianco, Jr., was unable to defend himself from Sein’s assault with a knife. Their concurrent, but independent, acts could have been found by the jury to be the proximate cause of the ultimate, lethal injury.

A court, on a motion to set aside a verdict, should review the evidence in the manner most favorable to sustaining the verdict. Bielaska v. Waterford, 196 Conn. 151, 491 A.2d 1071 (1985); State v. Marsala, 1 Conn. App. 647, 651, 474 A.2d 488 (1984). Since the verdicts were capable of being sustained as to the damages, and were not inconsistent, it was error for the court to have set them aside.

Ill

The defendant, DiBianco, Sr., also claims as error the trial court’s denial of his motion to render judgment for him notwithstanding the verdicts because the evidence was insufficient to establish his vicarious liability as the employer of Sein and DiBianco, Jr. DiBianco, Sr., admitted in his answer to the plaintiff’s complaint that DiBianco, Jr., was his employee.

An employer is responsible for the wilful torts of his employee, committed within the scope of his employment, and in furtherance of the employer’s business. These are questions of fact to be determined by the jury. Pelletier v. Bilbiles, 154 Conn. 544, 227 A.2d 251 (1967). There was evidence from which the jury could find that DiBianco, Jr., was in charge of the gas station for a portion of the day on which the events of the case occurred, that DiBianco, Jr., attempted to retrieve a business checkbook which he believed the plaintiff had stolen, that the assault occurred, or at least began, on the premises of the business, that the employer was present at the time, and that the assault was committed in defense of the employer’s property. The jury could reasonably have found that DiBianco, Jr., engaged in the assault within the scope of his employment and in furtherance of DiBianco, Sr.’s business.

There was evidence from which the jury could conclude that Sein was an employee of DiBianco, Sr., Sein’s own statement was that the plaintiff had stolen a “checkbook from the garage where I work,” and that he became involved in the physical struggle between the plaintiff and DiBianco, Jr., “[b]ecause I do work at the garage and I do have to protect the interest of the garage also.” There was testimony that Sein pumped gas at the station and was paid money for doing so, that he went to the station every other day for four years, and that he was asked by DiBianco, Jr., while the latter was in charge of the station, to accompany him in an attempt to find the plaintiff and the missing checkbook. The trial court was correct in concluding that the jury had evidence from which it could have found that Sein was in the employ of DiBianco, Sr., and committed the assault within the scope of his employment and in furtherance of the employer’s business.

IV

The final claim of error of DiBianco, Sr., is that the charge to the jury regarding future medical expenses was improper because there was insufficient evidence presented on this issue. In its charge to the jury, the trial court stated that the medical expenses incurred by the plaintiff up to the date of trial and those further expenses likely to be incurred in the future could be included in the jury’s determination of damages. The court also reminded the jury of the amount of medical expenses incurred to the date of the trial and of the plaintiff’s life expectancy. Both of these facts were in evidence and were undisputed.

In awarding future medical expenses, a jury’s determination must be based upon an estimate of reasonable probabilities, not possibilities. Jerz v. Humphrey, 160 Conn. 219, 224, 276 A.2d 884 (1971). Such evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable. See Healy v. White, 173 Conn. 438, 442, 378 A.2d 540 (1977); Nash v. Hunt, 166 Conn. 418, 428, 352 A.2d 773 (1974); Hanauer v. Coscia, 157 Conn. 49, 53, 244 A.2d 611 (1968). Here, evidence was presented regarding the nature and extent of the plaintiff’s injuries, including evidence that the plaintiff’s coma was irreversible. “Speaking broadly, the jury had the opportunity to appraise his condition and the probable future consequences of it.” Boland v. Vanderbilt, 140 Conn. 520, 523, 102 A.2d 362 (1953). Furthermore, even if there were no medical testimony expressly substantiating the permanency of the plaintiff’s injuries, a trier of fact can conclude, by inference, that an injury will be permanent. See Robinson v. ITT Continental Baking Co., 2 Conn. App. 308, 313, 478 A.2d 265 (1984). It defies common sense to state that an irreversible coma is not permanent. Under the circumstances, both the instruction to the jury with regard to future medical expenses and the evidence presented on the issue were sufficient for the jury to assess damages should it find liability.

There is error in part, the judgment is set aside insofar as it ordered new trials on the issue of damages as to Carl DiBianco, Sr., and Carl DiBianco, Jr., and the case is remanded with direction to reinstate the verdicts, and to render judgment in favor of the plaintiff against the defendant, Carl DiBianco, Sr., in the amount of $2,000,000, and against the defendant, Carl DiBianco, Jr., in the amount of $1,000,000.

In this opinion the other judges concurred.

       The suit was originally brought by the conservator of the estate of Robert Reilly, Jr. Subsequent to the trial, Robert Reilly, Jr., died and the administrator of his estate was substituted as the plaintiff. The plaintiff and the defendant Carl DiBianco, Sr., have both appealed. Neither of the employee defendants, Hector Sein and Carl DiBianco, Jr., have appealed. The word plaintiff, as used in this decision, refers to the decedent, unless otherwise specified.

       The first verdicts were that the jury found the issues in favor of the plaintiff against all three defendants in the amount of $2,000,000, and further found that the plaintiff should recover $1,000,000 of DiBianco, Sr., and $500,000 each of DiBianco, Jr., and Sein.

       The interrogatories, the answers thereto, and the instructions were as follows:
      “1. Was the conduct of Carl DiBianco, Jr., such as to render him legally liable to the plaintiff?
      “A: Yes.
      “2. If the answer to Interrogatory #1 is yes, was Carl DiBianco, Jr., acting in the furtherance of the interests of the business of Carl DiBianco, Sr., and within the scope of his employment?
      “A: Yes.
      “3. Was Hector Sein an employee of defendant Carl DiBianco, Sr., at the time of the events referred to in the complaint?
      “A: Yes.
      “4. Was the conduct of Hector Sein such as to render him legally liable to the plaintiff?
      “A: Yes.
      “5. If answer to Interrogatory #4 is yes, was Hector Sein acting in furtherance of the interests of the business of Carl DiBianco, Sr., and within the scope of his employment?
      “A: Yes.
      “6. What are total damages due to the plaintiff?

        “A: Two Million Dollars.
      “7. Is Carl DiBianco, Jr., legally liable for all damages due the plaintiff?
      “A: No.
      “8. If answer to Interrogatory #7 is no, then specify damages for which Carl DiBianco, Jr., is liable.
      “A: One Million Dollars.
      “9. Is Hector Sein legally liable for all damages due the plaintiff?
      “A: No.
      “10. If answer to Interrogatory #9 is no, then specify damages for which Hector Sein is liable.
      “A: One Million Dollars.
      “11. What is the amount of damages, if any, for which Carl DiBianco, Sr., is legally liable to the plaintiff?
      “A: Two Million Dollars.
      “Instructions: (1) the amount specified in #8 and #10 should total amount specified in #6. (2) The amount specified in #11 may not exceed amount specified in #6. It may be the amount specified in #8 or #10 or a total of both, or to the amount to which #7 refers or to the amount to which #9 refers.”

       The seven verdict forms provided the jury with the alternatives of finding that the plaintiff should recover (1) against all three defendants, or (2) against DiBianco, Jr., or (3) against Sein, or (4) against DiBianco, Jr., and Sein, or (5) against DiBianco, Sr., and Sein, or (6) against DiBianco, Sr., and DiBianco, Jr., or (7) of finding in favor of all three defendants. These forms were available to the jury both before and after the first verdicts.

       Thus, the judgment against DiBianco, Sr., is before us by virtue of his appeal. The judgment ordering a new trial as to DiBianco, Sr., and DiBianco, Jr., are before us by virtue of the plaintiffs appeal. The judgment against Sein is not before us because neither he nor the plaintiff appealed from it.

       This statement was contained in a written statement given to the police by Sein and is the subject of DiBianco, Sr.’s first claim of error, discussed hereinafter. DiBianco, Jr., was asked during his trial testimony if he had stabbed the plaintiff, and answered “I doubt it.”

       See footnote 6, supra.

       Common forms of unavailability are listed in rule 804 (a) of the Federal Rules of Evidence. Fed. R. Evid. 804. Among them is the situation where the court has ruled that the defendant has a testimonial privilege.

       The verdicts here awarded separate recoveries against three defendants. The judgment pursuant to the verdicts would conclude all of the rights of the parties, including the right of the plaintiff to collect the whole of the damages from either active defendant, as well as the rights of DiBianco, Jr., and Sein to obtain contribution from each other. Cox v. Cooper, 510 S.W.2d 530 (Ky. 1974).
      If liability is apportioned, the action becomes like any other civil action in which two defendants are sued in one action and found liable for different amounts. Subsequent suits for contribution would be redundant, because the amount of liability of each is already established. In effect, “contribution” has occurred within the primary case. When apportionment is not obtained, a judgment against joint tortfeasors establishes their liability to the plaintiff for the entire amount of the damages but does not adjudicate their responsibility between and among themselves to pay the judgment. Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 52 A.2d 862 (1947).


source: Caselaw Access Project

author: Bieluch, J.

license: Public Domain

text:
    Hartford National Bank and Trust Company v. Paul T. DiFazio et al.
    (3120)
    Hull, Daly and Bieluch, Js.
    Argued November 13, 1985
    decision released March 25, 1986

      Robert L. Hirtle, Jr., for the appellants (defendants).

      Thelma A. Santos, with whom were Stephen R. Humphrey and Christine I. Andrew, for the appellee (plaintiff).
   Bieluch, J.

This appeal arises out of the second trial on the defendants’ counterclaim against the plaintiff bank. The defendants claim as error the trial judge’s failure to recuse himself and a variety of subsequent evidentiary issues arising out of the retrial. We find no error.

The defendants, Paul T. DiFazio and his mother, Edith A. DiFazio, were the owners of a five building apartment complex located in the city of Hartford known as Broadview Gardens. The plaintiff bank financed construction by a mortgage loan on the complex. In 1973, as a result of increasing losses from the project, the DiFazios attempted to convert the apartment complex into condominium units with the assistance of state and federal “home ownership” programs. Pursuant to these programs, the Connecticut housing finance authority (CHFA) was to provide mortgages to the purchasers of individual condominium units to be insured by the federal department of housing and urban development (HUD). HUD imposed conditions upon the project before agreeing to provide mortgage insurance. These conditions included, among others, requirements that the DiFazios (1) complete capital improvements valued at nearly $100,000; (2) settle all outstanding financial obligations prior to the closing of the first sale; and (3) presell 80 percent of the value of the units in the complex. This last requirement was the major condition and, on application of the defendants, was later reduced by HUD to 65 percent of each type of unit involved in the project. HUD’s commitment to provide insurance for the venture, if these conditions were met, was issued for one year, but was extendable if circumstances dictated.

The defendants employed, as their agent for the sale of the units, Invest Management Group, Inc. In 1974, after another processing agent withdrew, the plaintiff bank undertook to handle the processing of condominium purchase applications for an origination fee of .75 percent of the principal amount of mortgages closed. The bank’s first mortgage was then in default. The plaintiff assigned Thomas Kelly, a junior mortgage official, to the responsibility of screening applications. During his association with the defendants for about three months, Kelly spent the greater portion of his time embezzling in excess of $100,000 from the bank until he departed on a vacation from which he never returned. When he voluntarily left the bank and his responsibility to the defendants, Kelly took with him their file containing unprocessed mortgage applications submitted to the bank by Invest. These documents were subsequently recovered a few weeks later from a Hartford parking garage. The bank then assigned another of its officers, William McCue, in replacement for Kelly, to process the condominium applications. McCue retained this duty until the condominium conversion project was abandoned in January, 1975, no sale of a condominium unit having been completed.

In August, 1975, the present action was instituted by the bank to foreclose the defendants’ mortgage. The defendants counterclaimed against the plaintiff seeking damages for the failure of the condominium project. After trial, judgment was rendered for the plaintiff on the foreclosure and also on the counterclaim. The defendants appealed only from the judgment on their counterclaim. By its decision, reported in 177 Conn. 34, 411 A.2d 8 (1979), the Supreme Court remanded the counterclaim for a new trial.

On retrial, the court, Gaffney, J., held that Kelly’s failure to process the applications while he pursued his embezzlement scheme was not a material factor in the failure of the defendants’ venture. Rather, the court concluded that Kelly’s role in the project’s collapse was “of only peripheral significance,” and that the true cause of the failure of the defendants’ condominium conversion project was their unwillingness and financial inability to comply with HUD’s preconditions for mortgage insurance to finance the unit sales, especially its requirement “that the total outstanding financial obligations [which] are in the neighborhood of $780,000 . . . would have to be settled prior to the closing of the first sale.”

The defendants’ first claim of error is that Judge Gaffney should have granted their motion that he recuse himself from trying the case. In support of this assignment, they recite a long litany of the political rivalry between the Gaffney and DiFazio families in New Britain. They also maintain that Judge Gaffney was acquainted with William McCue, the plaintiffs officer, who was placed in charge of the mortgage applications upon Kelly’s abandonment of his employment and who was a principal witness in the case. The defendants failed to support these allegations at trial, with the exception of Judge Gaffney’s acquaintance with the DiFazio family and McCue. Counsel for the defendants stated, prior to the introduction of evidence at trial, that Pasquale DiFazio, husband of the defendant Edith A. DiFazio and father of the defendant Paul T. DiFazio, “recalled that he had been acquainted with you and other members of the Gaffney family over the years, and was also under the impression that Your Honor was acquainted with Mr. William McCue, who will be a witness in the case.” In response to the defendants’ motion for rectification of this appeal, the court filed an addendum to its memorandum of decision, stating as follows: “Counsel did not elaborate further on the ground of the motion or request permission to present evidence in reference thereto. Moreover, at no time was it expressly claimed that Mr. DiFazio’s acquaintanceship with the court and other family members or the court’s acquaintanceship with witnessMcCue would cause the court to become biased or infringe on the appearance of impartiality. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 744-46 [444 A.2d 196] (1982).” (Footnote omitted.)

On the basis of the record before us, we are unable to conclude that Judge Gaffney erred in failing to recuse himself. We cannot go beyond the proper record before us in the determination of issues presented on appeal. Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983); Burkert v. Petrol Plus of Naugatuck, Inc., 5 Conn. App. 296, 300 n.3, 497 A.2d 1027 (1985).

While proof of actual bias is not required in order to obtain a judge’s recusal; Cameron v. Cameron, 187 Conn. 163, 170, 444 A.2d 915 (1982); the record must “give fair support to [the] claim [of actual bias].” Szypula v. Szypula, 2 Conn. App. 650, 656, 482 A.2d 85 (1984). The mere assertion of an acquaintance between the court and two of the witnesses before it, in this case, constitutes nothing more than “vague and unverified assertions of opinion and speculation” regarding the court’s impartiality. Id.

In Cameron v. Cameron, supra, the court was faced with such an undeniable record of the trial court’s actual bias toward the defendant that review of the claim, even under the “plain error” doctrine of Practice Book § 3063, mandated reversal. Id., 168-71. In the present case, however, the record does not even indicate the presence of a situation which would justify the necessary “suspicion as to the fairness of the court’s administration of justice” which is required in order to make a claim of actual bias. Krattenstein v. G. Fox & Co., 155 Conn. 609, 615, 236 A.2d 466 (1967). Hence, we cannot find error based upon the record before us.

With regard to two of the defendants’ other claims of error, specifically claims eight and nine of the defendants’ brief asserting that the trial court gave undue weight to the HUD presale requirements and the testimony of Joseph DiPaolo, an employee of the plaintiff, we note that these claims were not noticed in the defendants’ preliminary statement of issues as required by Practice Book § 3012 (a). We, therefore, decline to review those claims.

Of the remaining claims of error, the first to be considered is the claim that the court gave undue weight to the testimony of Barbara Kamanitz, an employee of Invest, concerning the reasons she assigned, in a letter to the defendants’ counsel, for the project’s failure, and that the court ignored the evidence offered by the defendants that Kamanitz was pressured by the plaintiff not to disclose that the negligence of the bank and the fraud of its employee precipitated the project’s failure. In evaluating the evidence, the court found the contents of this letter to be “particularly illuminating.” The court, in its memorandum of decision, noted that “[t]he defendants are critical of the letter which they assert was orchestrated by Richard Clinton, an officer of the Bank, who insisted it contain no reference to Kelly and whatever responsibility might be attributable to him for failure of the project.” Nonetheless, it found as follows: “Apart from the lack of reference to the role of Thomas Kelly in the collapse of the project, a role which this court deems of only peripheral significance, the court perceives Miss Kamanitz’s letter as an honest and straight-forward statement of fact. Her observations, particularly the first quoted paragraph, constitute a valid appraisal of built-in problems which, it soon become apparent, were of unsurmountable magnitude.”

It has long been held that the evaluation of witnesses and their credibility is peculiarly within the province of the trier of fact. Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 621, 495 A.2d 1006 (1985); Jazlowiecki v. Cyr, 4 Conn. App. 76, 77, 492 A.2d 516 (1985). We cannot conclude here that the trial judge’s evaluation of the Kamanitz letter was clearly erroneous. Nor can we say, as the defendants would have us do, that the court “blatantly ignore[d]” Kamanitz’s testimony regarding the bank’s request that Kelly’s role not be mentioned in the letter then proposed to be written to HUD. The court expressly noted the defendants’ criticisms of the letter. We find no error on this claim.

Similarly, we conclude that the court’s refusal to admit a letter, written by Kelly to his sentencing judge, requesting clemency and sentence reduction in 1975 was not an abuse of discretion. The letter was written almost one year after the events in question, and was obviously drafted in an effort to portray Kelly in the best possible light. The court, having read the letter, concluded that “the ramblings of the writer have absolutely no probative significance” and upheld the objection to its admission. We cannot conclude that this was error.

The defendants next claim that the court erred in excluding, in part, the testimony of Henry Newberry, president of New Britain National Bank during the time of the events at issue. Specifically, the court ruled that Newberry could not testify regarding the substance of a telephone conversation between himself and an employee of the plaintiff bank named DeMeara expressing the plaintiff’s confidence in the success of the undertaking, on the ground that no evidence was offered to prove that DeMeara was an agent authorized to speak on behalf of the plaintiff.

The defendants assert that sufficient foundation was laid for Newberry’s testimony as to the statements of DeMeara after he had testified that he telephoned the plaintiff and spoke to an employee there. This argument intermixes two separate, but related, evidentiary rules concerning the identity of a speaker and the subject of a conversation.

There is a general evidentiary rule under which “proof of proper placing of a call plus self-identification of the speaker . . . [is] sufficient proof of authenticity to admit the substance of the call.” McCormick, Evidence (3d Ed.) § 226 (1984). That rule, however, relates to authentication of the identity of the recipient of the call, rather than to the admissibility of any hearsay testimony which was involved in the telephonic conversation. Thus, the argument in the defendants’ brief is inapposite, for this rule relates to the authentication of the parties to the call, rather than to any hearsay objections raised with regard to the substance of the call. See International Brotherhood v. Commission on Civil Rights, 140 Conn. 537, 546, 102 A.2d 366 (1953). For testimony regarding the substance of the call to rise above hearsay objection, another test must be satisfied. A broad statement of that rule is that the statement of an agent is admissible as an admission against his principal “if the statement concerned a matter within the scope of the declarant’s employment and was made before that relationship was terminated.” McCormick, supra, § 267. Thus, in another case cited by the defendants; Collins v. Lewis, 111 Conn. 299, 149 A. 668 (1930); the court ruled that a telephone conversation between the plaintiff’s attorney and the defendant’s attorney was binding on the plaintiff since “[t]he ostensible authority of the plaintiff’s attorney to speak for the plaintiff in this conversation with the defendant’s attorney, under the well known rules of agency, is undoubted.” Id., 305.

In the present case, the true identity and office of the plaintiff’s alleged “agent” is in doubt, as well as the scope of any agency relationship between him and the plaintiff. “Before evidence can be admitted to show what an agent said, it must be established that the agent was authorized by the principal to make an admission. ... No evidence relating to such authority was offered by the defendants.” Robles v. Lavin, 176 Conn. 281, 284, 407 A.2d 959 (1978). Thus, the court did not err in excluding Newberry’s testimony of his telephone conversation with an employee of the plaintiff.

The defendants next claim that the court erred in failing to apply evidentiary presumptions supporting the qualification and number of mortgage applicants to meet HUD requirements. They argue that the plaintiff was unable to produce in court the applications which had been forwarded to it by the defendants’ sales agent. As a result, they maintain that the court should have presumed that the applications would have been approved by HUD, rather than concluding that “the evidence is far from clear that the plaintiff at the latter juncture was readily able to obtain necessary verification and credit information to satisfy HUD requirements,” leading to delays at best, and disqualification at the worst. We fail to see the merit to this argument, or how it aids the defendants’ position. The court concluded that a variety of problems led to the downfall of this project, only one of which was the disputed number of qualified applicants. In fact, the court expressly concluded that the failure of the project was “due largely to the myriad of governmental requirements and [was] complicated by the defendants’ tenuous financial stability . . . .” The court’s doubt over individual applicants’ qualifications for lack of credible evidence was of minor significance and does not warrant reversal of the judgment.

Finally, the defendants claim error (1) in the granting of the plaintiffs motion to strike the retrial from the jury docket by Judge O’Neill; and (2) in the subsequent denial by Judge Gaffney of their motion to restore the case to the jury docket at the commencement of trial. We find that the court’s rulings on both motions were correct.

The original trial of the foreclosure action and the defendants’ counterclaims was held before the court without a jury. When a case is remanded by the Supreme Court “for a new trial, it goes back to the same docket as before.” Rowell v. Ross, 91 Conn. 702, 708, 101 A. 333 (1917). It properly remained there on retrial, unless a new issue of fact was joined which would permit the parties to move for a transfer to the jury docket pursuant to General Statutes § 52-215. The mere fact that the case is being retried does not alone permit either party the option of re-evaluating the mode of trial. If a case was originally tried to the court without a jury, that is where the retrial belongs in the absence of any new issue of fact. There was no new issue of fact raised in this case on its retrial. Although the original counterclaim of the defendants considered by the Supreme Court on appeal contained seven counts and their substituted counterclaim filed on retrial contained only five counts, the latter raised no new issues of fact. Section 52-215 provides that within ten days after an issue of fact has been joined, the case may be claimed by either party for the jury docket. “Where such a claim has not been made at the original close of the pleadings, the mere filing of amended [or substituted] pleadings which raise no new issues of fact does not give rise to a further opportunity to claim a case for the jury. Atta v. Cutner, 95 Conn. 576[, 111 A. 847 (1920)].” Stawicki v. Fraiser, 36 Conn. Sup. 343, 344, 420 A.2d 913 (1980).

There is no error.

In this opinion the other judges concurred.

       In the original action, Hartford National Bank and Trust Company foreclosed its mortgage on the property at issue herein. The defendants counterclaimed against the bank alleging, in seven counts, claims of breach of contract and fiduciary duty, fraud and negligence. The trial court held for the plaintiff on the complaint and on the counterclaim. On appeal from the judgment on the counterclaim, the Supreme Court found error and remanded for a new trial limited to the counterclaim after finding material facts challenged by the defendants were unsupported by the evidence. Hartford National Bank & Trust Co. v. DiFazio, 177 Conn. 34, 411 A.2d 8 (1979).

       Kelly was subsequently convicted and sentenced after pleading guilty to charges of embezzlement and conspiracy to commit embezzlement.

       Paul T. DiFazio became medically incapacitated prior to the retrial of this counterclaim. His father acted on his behalf with power of attorney.

       While the assertions in the defendants’ brief suggest a justification for recusal, this court cannot consider them in the absence of these facts from the trial record.

       The disqualification of judges in Connecticut is governed by General Statutes § 51-39 and Canon 3 (C) of the Code of Judicial Conduct. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 744, 444 A.2d 196 (1982); Szypula v. Szypula, 2 Conn. App. 650, 654, 482 A.2d 85 (1984). “Although Canon 3 (C) states the substantive norm for disqualification . . . it does not articulate the procedural standards which a litigant must meet.” Szypula v. Szypula, supra.
      Practice Book §§ 995 through 997 set forth the procedure for disqualifying a judge in criminal cases; see State v. Weber, 6 Conn. App. 407, 411-13, 505 A.2d 1266 (1986); however, there are no parallel provisions in our civil rules of practice which would govern the present case. See Szypula v. Szypula, supra.

       The letter, admitted into evidence as Plaintiffs Exhibit J, reads, in pertinent part, as follows:
      “January 28, 1975
      Mr. Marty Webber Webber, DiFazio, Webber 661 Wethersfield Avenue Hartford, Connecticut
      RE: Broadview Gardens
      Dear Marty:
      Broadview Gardens is a unique apartment complex - unique because of its repetitive problems that have continually confronted the ability to achieve financial stability from the initial conception. These problems are distinct, yet interrelated and [have affected] the complex by compounding the problems and by preventing financial corrective measures ....
      We are now forced to terminate the condominium project for the following reasons:
      1. Market conditions - [Although] we had an attractive financial package for prospective buyers, the economic crisis of inflation and of tight-money narrowed the number of buyers.
      2. Applicant qualifications - Many of the prospective buyers were borderline cases who subsequently had difficulties in meeting their financial responsibilities.
      3. High turnover of purchases - This was related to the applicants’] housing history. Most of these applicants were never able to distinguish the apartment concept from the ownership concept. They expected two-day processing of the applications which is the traditional time frame for renters - they could not completely understand the time element or the processing procedures required by the bank, HUD and CHFA. Many were looking for immediate housing and would not move into the complex until they were officially accepted by the various institutions; the time element conflicted with their immediate needs.
      4. High maintenance costs - In order to convert the complex, we have had to spend money. Money on refurbishing of the exterior and interior of the complex as a unit and of the individual apartments. This area has also increased because of the high turnover of purchases - we had much movement in and out of the same apartment units by different buyers which was requiring additional maintenance work because of the damage or neglect caused in the short period of time during the tenant-owner residency period ....
      We have sent copies of this letter to Mr. DiFazio and to Hartford National Bank.
      Sincerely yours,
      Barbara L. Kamanitz Vice President”

       This name, given a phonetic spelling by the court reporter, appears nowhere else in this record. We use that phonetic spelling here in the interest of clarity.


author: Spallone, J.

text:
    Valley Surgical Group, P.C. v. Administrator, Unemployment Compensation Act, et al.
    (4031)
    Hull, Spallone and Daly, Js.
    Argued January 17
    decision released March 25, 1986

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert E. Walsh, assistant attorney general, for the appellant (named defendant).

      Gregory J. Stamos, for the appellee (plaintiff).
   Spallone, J.

The defendant, administrator of the unemployment compensation act, is appealing from the judgment rendered by the trial court sustaining the plaintiffs appeal from the decision of the employment security board of review.

Elizabeth A. Piccioli (claimant) was employed by the plaintiff, Valley Surgical Group, P.C., as a receptionist earning $5.20 per hour. She left her job to accept a position at the Southford Medical Center as office manager at a pay of $6.50 per hour. Her leaving was voluntary and was made in an effort to avail herself of a higher job classification and the attendant higher wages. Within two months after beginning her new position, the claimant was laid off. Thereafter, she applied and was found eligible for unemployment compensation benefits by the defendant. The benefits awarded were chargeable to the plaintiff’s account. The plaintiff appealed the defendant’s decision to an appeals referee; General Statutes § 31-237j; who affirmed the decision after a hearing de novo. Thereafter, the plaintiff appealed to the board of review which also affirmed the defendant’s decision. See General Statutes § 31-249. The plaintiff then appealed to the Superior Court; General Statutes § 31-249b; which reversed the decision. The defendant now appeals to this court.

The sole issue before this court is whether the claimant was entitled to unemployment benefits under General Statutes § 31-236 (2) (A) after she had left her job voluntarily to accept a better position at higher pay and was subsequently laid off by her new employer. Section 31-236 provides that “[a]n individual shall be ineligible for benefits ... (2) (A) if, in the opinion of the administrator, he has left suitable work voluntarily and without sufficient cause connected with his work, provided no individual shall be ineligible for benefits if he leaves suitable work for cause . . . .”

While our statutes permit an appeal from the decision of the employment security board of review, the trial court does not try the matter de novo. DaSilva v. Administrator, 175 Conn. 562, 564, 402 A.2d 755 (1978). The court is bound by the finding of subordinate facts and reasonable factual conclusions made by the appeals referee where, as here, the board of review adopted the findings and affirmed the decision of the referee. Howell v. Administrator, 174 Conn. 529, 533, 391 A.2d 165 (1978). The trial court’s function is to determine, on the record, whether the referee acted unreasonably, arbitrarily or illegally. Conclusions of law reached by the referee must stand if they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. DaSilva v. Administrator, supra; Guevara v. Administrator, 172 Conn. 492, 495, 374 A.2d 1101 (1977). Such conclusions of law, however, cannot stand if the court determines that they resulted from an incorrect application of the law. Id.

We agree with the trial court’s ruling that, in this case, there was a misapplication of the law by the referee and the board of review. The Supreme Court has given us guidance in this area when, in Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 434 A.2d 293 (1980), it thoroughly analyzed the meaning of the phrase “leaving suitable work for cause” which is contained in the statute. In jRobinson, the court upheld the decision to grant benefits to a married woman who voluntarily terminated her employment of twelve years to join her husband who earlier had been transferred to Georgia. In defining the parameters of good cause, the court held that claimants must show that they left employment for reasons which would impel the ordinary reasonable person to leave and which provide the individual with no reasonable alternative but to terminate his employment. Id., 23.

In this case, the trial court in applying Robinson ruled that although voluntarily leaving work for better pay “might impel the ordinary prudent person to leave employment,” that fact standing alone is not sufficient to establish the requisite good cause. In its memorandum of decision, the court followed the holding in Robinson and concluded that in addition to the existence of factors that might impel the ordinary prudent person to leave employment, there must be a showing by the claimant that she had “no reasonable alternative but to terminate [her] employment.” The court expressly refused to expand the holding in Robinson to encompass merely leaving a job for greater pay. The trial court concluded that without the additional showing that the claimant had no reasonable alternative but to terminate her employment, the board of review could not have found that the claimant left suitable work for good cause.

The trial court’s reasoning is persuasive. There is nothing in the record to indicate that termination of the claimant’s employment for better pay was her only reasonable option. We cannot speculate that there were other options or alternatives available to the claimant. It was her burden, under Robinson, to prove that no such reasonable alternative existed. In the absence of such proof, the appeals referee and the board of review misapplied the statutory rule as enunciated in Robinson.

We cannot say that the decision of the trial court was clearly erroneous under the circumstances in this case. We hold that its decision was logically correct and was in accordance with the law.

There is no error.

In this opinion the other judges concurred.

       Elizabeth A. Piccioli, although a named defendant in the trial court, is not a party to this appeal. Where we refer to the defendant, it is in reference to the administrator only.


author: Daly, J.

text:
    Helen Samrov v. Stephen Samrov
    (3918)
    Hull, Spallone and Daly, Js.

      Submitted on briefs January 14
    decision released March 25, 1986

      Pasquale Young filed a brief for the appellant (defendant).

      Brian T. Fischer and Herbert D. Fischer filed a brief for the appellee (plaintiff).
   Daly, J.

The plaintiff, who was formerly married to the defendant, moved to foreclose a judgment lien against the defendant’s interest in real estate located in West Haven. The defendant claimed that the default judgment for support arrearage upon which the judgment lien is based was void since the court lacked jurisdiction over the defendant. From the judgment of strict foreclosure, the defendant has appealed.

The facts are not in dispute. Subsequent to the dissolution of their marriage, each of the parties owned a one-half interest in premises known as 117 Prospect Avenue, West Haven. On February 14,1972, the plaintiff commenced an action for support against the defendant and attached the defendant’s interest in these premises. On February 22,1972, the defendant, then a resident of Florida, was given due notice of the attachment action in an order of notice issued by the court pursuant to General Statutes § 52-284. The defendant actually received the notice and appeared specially on November 13, 1973, to contest jurisdiction. On July 16,1974, the plaintiff obtained a support judgment by default against the defendant in the amount of $11,150. Thereafter, on August 20, 1974, the plaintiff filed a judgment lien on the West Haven land records against the real estate.

The present action to foreclose the judgment lien ensued and a judgment of strict foreclosure was rendered on January 8,1985. The defendant has appealed claiming that the support judgment was void for lack of in personam and quasi in rem jurisdiction over the defendant. We disagree.

The defendant contends that the original support judgment of July 16,1974, which resulted in the judgment lien now being foreclosed, was invalid and rendered without jurisdiction because the defendant was not personally served. The plaintiff concedes that there was no personal service on the defendant. “While a court is powerless to enter a personal decree against a nonresident defendant based solely on constructive service, it has power to deal with the defendant’s property within the jurisdiction of the court. Constructive service of process upon a defendant in a proceeding against specific property of that defendant within the jurisdiction will enable the court to render a decree binding on the property. The judgment, when rendered, constitutes a charge to be satisfied out of the property which has been seized. The judgment is quasi in rem.” Carter v. Carter, 147 Conn. 238, 241, 159 A.2d 173 (1960); Robertson v. Robertson, 164 Conn. 140, 144, 318 A.2d 106 (1972). An action in rem is an action brought to apply the property to satisfy a personal claim. Hodge v. Hodge, 178 Conn. 308, 313, 422 A.2d 280 (1979).

“In order that a valid judgment may be rendered against a nonresident upon whom it is claimed that constructive service has been made, § 52-284 must be strictly observed and the facts showing compliance with it must appear of record.” Carter v. Carter, supra, 243. The defendant has not claimed that the plaintiff did not strictly comply with § 52-284. The plaintiff had a valid quasi in rem judgment against the defendant’s interest in real estate, which is subject to being foreclosed.

Finally, the defendant claims the plaintiff did not perfect her attachment in compliance with General Statutes § 52-278g which provides in relevant part: “Any such prejudgment remedy which is not perfected on or before October 1, 1977, shall be void and of no effect.” The defendant claims that since the attachment in the support action was not perfected on or before October 1,1977, it is void and hence renders the judgment nugatory for lack of jurisdiction. Section 52-278g mentions “prejudgment remedy.” “ ‘Prejudgment remedy’ means any remedy or combination of remedies that enables a person by way of attachment . . . to deprive the defendant in a civil action of, or affect the use, posession or enjoyment by such defendant of, his property prior to final judgment but shall not include a temporary restraining order.” (Emphasis added. General Statutes § 52-278a (d).

The attachment of February 14, 1972, would have melded into the final judgment of July 16, 1974, and thus, does not fall within the purview of § 52-278g.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-284 provides: “attachment against nonresident. When the defendant is not a resident or inhabitant of this state and has estate within the same which has been attached, a copy of the process and complaint, with a return describing the estate attached, shall be left by the officer with the agent or attorney of the defendant in this state if known; and when land is attached, a like copy shall be left in the office of the town clerk of the town where the land lies. In addition, the court to which such action is returnable, or any judge, clerk or assistant clerk thereof shall make such order of notice to the defendant as is deemed reasonable to apprise him of the institution or pendency of such complaint and attachment. Such notice, having been given and proved, shall be deemed sufficient service of process in such action, and such attachment shall thereupon become effective against such estate and the defendant in such action.”

       The record is silent as to any ruling made thereon.

       General Statutes § 52-278g provides: “motion to preserve existing PRE judgment remedies. A plaintiff who has secured a prejudgment remedy prior to May 30,1973, may make a motion to the court in which such action is pending for a hearing as set forth in section 52-278d with notice thereof to the defendant or his attorney. If the court, upon consideration of the facts before it, finds that the plaintiff has shown probable cause to sustain the validity of his claim, such prejudgment remedy secured shall be effective from the date of such hearing and an order to that effect shall be issued by the court. Any such prejudgment remedy which is not perfected on or before October 1, 1977, shall be void and of no effect.”