source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Richard K. Fruin v. Colonnade One at Old Greenwich Limited Partnership et al.
    (13185)
    Dupont, C. J., and Lavery and Hennessy, Js.

      Argued April 25
    decision released July 11, 1995

      Peter M. Ryan, for the appellant (plaintiff).

      Paul L. McCullough, for the appellees (defendants).
   Dupont, C. J.

The plaintiff appeals from a judgment rendered for the defendants in this breach of contract action. The plaintiff claims that he is entitled to a refund of his down payment on a condominium because (1) the contract between the parties is void as violative of the statute of frauds, and (2) the defendants violated the Common Interest Ownership Act (CIOA). We affirm the judgment of the trial court.

Certain facts are relevant to this appeal. In May, 1989, the plaintiff contracted with the defendants to purchase a condominium unit yet to be constructed. The purchase price for the unit was $255,000. The plaintiff gave the defendants a check in the amount of $25,000 as a down payment. The contract contained a default clause allowing the defendants to retain the down payment as liquidated damages if the plaintiff reneged on the agreement. The contract contained no contingencies and specified a closing date of August 15, 1990. The contract also provided that the defendants could extend the closing for a period not to exceed ninety days, and, if the defendants did choose to extend the closing, the defendants had to provide the plaintiff with a notice to close by a date within the extension period. If the closing was extended, the closing had to take place within ten days of the notice to the plaintiff.

When it became apparent that the defendants would not complete construction of the unit in question by the original closing date, the plaintiff and the defendants exchanged several letters regarding a closing date. The plaintiff wrote to the defendants in June, 1990, indicating that he was “not in a hurry to close.” In reply, the defendants indicated that the closing could be extended at least into September, 1990, and that it might be possible “to push the closing back another couple of weeks . . . but this cannot be guaranteed at this time.”

In the meantime, the plaintiff had enlisted the aid of the defendants’ sales office in an attempt to sell the unit to a third party. On August 10, 1990, the defendants wrote to the plaintiff that the closing could be delayed until October 15,1990, but that the closing had to take place on that date whether a new purchaser for the plaintiffs unit was found. The plaintiff countersigned the letter and returned it to the defendants.

On September 26,1990, almost sixteen months after the execution of the contract to buy the condominium unit, the plaintiff wrote to the defendants requesting “an indefinite extension” of the closing date. The stated reason was that the plaintiff was an officer in a reserve unit of the United States Army and he thought that he might be called to active duty because of the Persian Gulf crisis. The defendants’ attorney responded by letter stating that the defendants would agree to a postponement, but that the closing had to take place no later than January 15,1991. The plaintiff rejected the offer by the defendants to extend the closing date to January 15, 1991, and again mentioned the possibility of being called to active military duty, and noted the inability of the defendants’ sales agency to resell the unit on his behalf.

The plaintiff failed to close on January 15,1991, and the defendants exercised the default clause in the contract and retained the down payment of $25,000 as liquidated damages. The plaintiff then instituted this action to recover the $25,000. In his complaint, the plaintiff alleged that (1) because the defendants had been unable to close on October 15, 1990, as provided by the contract, the defendants were in breach and the contract had accordingly been terminated, (2) the contract had been mutually rescinded, (3) the contract violated the statute of frauds because the purchase price and closing date were too indefinite, (4) the defendants breached the implied covenant of good faith and fair dealing, (5) the defendants committed eleven violations of CIOA, General Statutes § 47-200 et seq., (6) the defendants violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., (7) the defendants engaged in a civil conspiracy to damage the plaintiff by violating CIOA in a number of ways, including the publication of a misleading and illegal public offering statement, (8) the defendants were unjustly enriched, and (9) there were material variances between the public offering statement and the recorded declaration of condominium.

The case was tried to the court. The court concluded that the plaintiff had forfeited his deposit and that each of the nine counts in the complaint was without merit.

In its memorandum of decision, the court found that it became impossible for the defendants to meet the original closing date of August 15, 1990, due to construction delays, but that the contract provided for an extension of up to ninety days after August 15, 1990, and that the defendants offered to close on October 15, 1990, which was within this extension period. The court also found that the plaintiff initially accepted the October 15,1990 closing date, but then asked for an indefinite extension. The court found that the defendants rejected that proposal but did offer to close on January 15, 1991, and that the plaintiff failed to close by that date. The court concluded from these facts that the plaintiff breached the contract and had no right to recover his $25,000 down payment.

The court also concluded from the plaintiff’s testimony that the sole reason for his default was that he changed his mind about purchasing the condominium unit, partially because he had been unable to sell his New York home. In reaching this conclusion, the court found that the contract had no contingencies, and that the plaintiff had the financial resources to purchase the defendants’ condominium unit without selling his other home. With regard to the plaintiff’s testimony that he anticipated being called to active military duty, the court found that if that had in fact occurred, a different result might arise under federal legislation, but that because the plaintiff had not been called to active duty and had kept his civilian job, his reserve status did not affect the resolution of the case.

I

Statute of Frauds

The plaintiff claims that the contract between the parties was violative of the statute of frauds, General Statutes § 52-550, because the purchase price was indefinite. The contract sets the purchase price at $255,000. A rider to the contract provided in relevant part that “[i]f any one bedroom end unit in Old Greenwich Gables having a floor plan and comparable footage as that of [this unit] is sold for a lower price than the price áet forth in this Agreement, then the price of the subject unit will be reduced to said lower price, provided such other one bedroom end unit is purchased by a third party who is not directly or indirectly related to the [plaintiff].” The plaintiff argues that the term “comparable” is not definite enough to avoid the proscription of the statute. We are not persuaded.

Section 52-550 (a) provides in relevant part: “No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged ... (4) upon any agreement for the sale of real property or any interest in or concerning real property . . . .” In Connecticut, therefore, any agreement for the sale of real property or any interest therein must be in writing and signed by the party to be charged. See Hieble v. Hieble, 164 Conn. 56, 59, 316 A.2d 777 (1972).

The statute of frauds requires that the essential terms and not every term of a contract be set forth therein. Scinto v. Clericuzio, 1 Conn. App. 566, 568, 474 A.2d 102 (1984). The essential provisions of a contract are the purchase price, the parties, and the subject matter for sale. Lynch v. Davis, 181 Conn. 434, 438, 435 A.2d 977 (1980). In order to be in compliance with the statute of frauds, therefore, “an agreement must state the contract with such certainty that its essentials can be known from the memorandum itself, without the aid of parol proof . . . .” Breen v. Phelps, 186 Conn. 86, 92, 439 A.2d 1066 (1982). The statute of frauds is also satisfied where the contract or memorandum contains by reference some other writing or thing certain. Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 12-13, 420 A.2d 1142 (1979). The plaintiff argues that the use of the word “comparable” in the purchase agreement at issue here makes it impossible to calculate the purchase price. The plaintiff claims that a comparison between living units is subjective rather than objective and involves a value judgment, and that, therefore, the contract is void because the purchase price is indefinite.

Our courts prefer interpretations that find agreements sufficiently definite to satisfy the statute of frauds. See Montanaro Bros. Builders, Inc. v. Snow, 190 Conn. 481, 485-86, 460 A.2d 1297 (1983). Moreover, “a contract is enforceable, despite the statute [of frauds], when, subsequent to the making of the contract, there has been conduct that amounts to part performance.” Heyman v. CBS, Inc., 178 Conn. 215, 222, 423 A.2d 887 (1979). The exchange of correspondence between the parties after the signing of the contract confirms the existence of a contractual relationship between them. Furthermore, we agree with the trial court’s conclusion that the purchase price in this contract is unequivocally $255,000, unless a unit similar to the plaintiff’s was sold at a lesser price, in which case the plaintiff could purchase his unit at that price. The price of the plaintiff’s unit could, therefore, be ascertained with reasonable certainty, and there is no violation of the statute of frauds.

II

Alleged CIOA Violations

The plaintiff claims that his duty to perform the contract was excused by the defendants’ alleged noncompliance with CIOA, and he is therefore entitled to a refund of his down payment. The plaintiff cites numerous instances of the defendants’ alleged noncompliance with CIOA. These claimed violations essentially present one issue, namely, whether violations of CIOA are alone sufficient to excuse a purchaser from performance, or whether there must be a nexus between the claimed violations of CIOA and the plaintiffs breach of the purchase agreement. We hold that such a nexus must exist, and agree with the trial court that in this case the plaintiffs breach of the purchase agreement had no relation to any violations of CIOA by the defendants, and that, therefore, the plaintiff is not entitled to a refund of his down payment.

“The Common Interest Ownership Act [General Statutes § 47-200 et seq.j is a comprehensive legislative scheme regulating all forms of common interest ownership that is largely modeled on the Uniform Common Interest Ownership Act.” Nicotra Wieler Investment Management, Inc. v. Grower, 207 Conn. 441, 447, 541 A.2d 1226 (1988). It “is a detailed statutory scheme governing the creation, organization and management of common interest communities and contemplates the voluntary participation of the owners. It entails the drafting and filing of a declaration describing the location and configuration of the real property, development rights, and restrictions on its use, occupancy and alienation; General Statutes §§ 47-220, 47-224; the enactment of bylaws; General Statutes § 47-248; and the establishment of a unit owners’ association; General Statutes § 47-243; and an executive board to act on its behalf. General Statutes § 47-245. It anticipates group decision-making relating to the development of a budget, the maintenance and repair of the common elements, the placement of insurance, and the provision for common expenses and common liabilities. General Statutes §§ 47-244,47-245, 47-255,47-249.” Wilcox v. Willard Shopping Center Associates, 208 Conn. 318, 326-27, 544 A.2d 1207 (1988).

The CIOA further provides in relevant part: “If a declarant or any other person subject to this chapter fails to comply with any of its provisions or any provision of the declaration or bylaws, any person or class of persons adversely affected by the failure to comply has a claim for appropriate relief. Punitive damages may be awarded for a wilful failure to comply with this chapter. . . .” General Statutes § 47-278. Remedies under CIOA are to be liberally construed so that an aggrieved party may be put in as good a position as if the other party had fully performed. Greg v. Coastal States Holding Co., 22 Conn. App. 497, 504-505, 578 A.2d 1080, cert. denied, 216 Conn. 817, 380 A.2d 57 (1990). CIOA also provides that supplemental general principles of law are applicable in interpreting the act. General Statutes § 47-207.

There is, however, a paucity of reported case law in Connecticut on causes of action commenced and remedies awarded under CIOA, and the issue raised by the plaintiff is one of first appellate impression in Connecticut. At oral argument before this court, the plaintiff analogized his claim to one brought under the Home Improvement Act (HIA), General Statutes § 20-418 et seq. Although the language of CIOA is not similar to that in HIA, HIA is similar to CIOA in that its “objective ... is to promote understanding by the consumer, to ensure his ability to make an informed decision and to protect him from substantial work by an unscrupulous contractor. See Habetz v. Condon, 224 Conn. 231, 239, 618 A.2d 501 (1992). Both statutes, then, are essentially consumer protection statutes. We, therefore, turn to cases interpreting HIA to guide our resolution of the present case.

The plaintiff argues that in Connecticut absent bad faith on the part of the homeowner, HIA permits no recovery by a home improvement contractor under theories of quantum meruit or unjust enrichment if the home improvement contract fails to comply with the statutory requirements of the act. See id., 239-40. The plaintiff urges that we adopt a similar rule for contracts that fail to comply with CIOA, and, accordingly, reverse the trial court’s ruling that the plaintiff is not entitled to a refund of his down payment.

Homeowners may not, however, as the plaintiff suggests they may, repudiate any contract that fails to meet HIA’s criteria. See Dinnis v. Roberts, 35 Conn. App. 253, 257, 644 A.2d 971, cert. denied, 231 Conn. 924, 648 A.2d 162 (1994). “ ‘[P]roof of a homeowner’s bad faith will preclude that homeowner from repudiating with impunity a home improvement contract that violates the act.’ ” Id. “Bad faith” is defined in HIA cases as involving “actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive.” (Emphasis added; internal quotation marks omitted.) Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 248, 618 A.2d 506 (1992).

The general principle behind the bad faith exception in the HIA cases is that an individual should not profit from his own neglect to fulfill a contractual obligation that is completely unrelated to any violation of the statute. “The question is not whether the legislature specifically carved out this bad faith exception . . . but whether, in the absence of specific legislative indication otherwise, a doctrine founded on public policy and containing a strong strain of estoppel can prevent a misbehaving party from invoking the benefits of a statute which is absolute on its face. To deny the contractor any opportunity of recovery after he has completed his end of the bargain if he has persuaded the trier of fact that a statutory remedy is being invoked by a homeowner in bad faith would be to countenance a gross injustice and indeed to encourage its perpetuation and to assure its success.” Habetz v. Condon, supra, 224 Conn. 240.

“A bad faith exception is designed to prevent a party’s disavowal of previous conduct if such repudiation would not be responsive to demands of justice and good conscience. The law does not permit the exercise of a right to repudiate a contract when the exercise of such a right in bad faith would work an injustice. Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. ... To demand this implicit component but do nothing about its absence would be at best incongruous, and, more accurately, grossly unfair. Thus, a contractor, otherwise precluded from recovering moneys owed for his work because of a violation of [HIA], must be permitted to assert that the homeowner’s bad faith precludes him from safely repudiating the contract and hiding behind [HIA] in order to bar the contractor’s recovery.” (Citations omitted.) Id., 238.

This is not a case in which the plaintiff brought the alleged CIOA violations to the defendants’ attention prior to a closing date or a case where the plaintiff, prior to his breach of the contract, claimed violations concerning the quality, condition, or appurtenances of the unit bargained for, as, for example, the use of a particular parking space, or a physical change in the unit. Whether there actually were any violations of CIOA in this case is irrelevant because the plaintiff did not assert these violations until after he had breached the agreement by refusing to close on the property. Had the plaintiff been in breach by anticipatory repudiation of his contract, which is not the case here, the defendants would have had the choice either of correcting the alleged CIOA violations or of rescinding the contract. See Pullman, Comley, Bradley & Reeves v. Tuck-it away, Bridgeport, Inc., 28 Conn. App. 460, 611 A.2d 435, cert. denied, 223 Conn. 926, 614 A.2d 825 (1992); see also Sagamore Corp. v. Willcutt, 120 Conn. 315, 180 A. 464 (1935).

The plaintiff in this case testified at trial that the sole reason for his default was that he changed his mind about purchasing the defendants’ condominium unit, and that the progress of construction, the contents of the public offering statement, and the contents of the recorded declaration of condominium had no effect on his decision to default on his contractual obligations. As discussed above, CIOA is intended to afford protection to consumers as potential purchasers of condominium units. That protection extends to a prompt disavowal of the contract because § 47-269 (a) provides that a purchaser may cancel a contract within fifteen days of the execution of the contract. Such cancellation does not require a nexus between the reason for cancellation and any violation of CIOA, nor does it require that there be a violation at all. Other than this provision, the act was not intended as a vehicle for purchasers to avoid a purchase agreement by citing alleged violations bearing no relationship to the defaulting purchaser’s acts. As in the HIA cases, allowing the plaintiff to use CIOA to shield his refusal to perform his contractual duties “would not be responsive to demands of justice and good conscience.” Habetz v. Condon, supra, 224 Conn. 238. We, therefore, incorporate the HIA’s “bad faith” exception to apply to CIOA cases.

We agree with the trial court’s conclusion that the plaintiff’s repudiation of this contract had no relation to any violation of CIOA by the defendants. We further conclude that a violation of CIOA does not, per se, allow the plaintiff to unilaterally rescind the contract and have his deposit returned.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff actually presents his claims as four “points” of error: (1) the contract between the parties is void as violative of the statute of frauds; (2) due to variances in the initial public offering statement and final recorded declaration of condominium, the defendants did not construct the unit for which the plaintiff contracted; (3) the defendants violated the CIOA; and (4) there were material variances between the recorded declaration of condominium and the copy set forth in the public offering statement. These last three claims of error overlap, and, therefore, we will discuss them together under the rubric of claimed violations of the CIOA.

       The trial court found “the relevance of this attempt to resell or assign his contract of sale to the resolution of this case is that it illustrates that plaintiff had, by the summer of 1990, decided that he did not wish to purchase [the unit].”

       At trial, the plaintiff introduced as an exhibit a memorandum written by the adjutant of his reserve unit, dated August 15, 1990, to the effect that the “unit has been placed on alert ... for possible use in rail load-out operations. While this is not an activation, it is a good time to review your personal affairs.”

       The trial court found: “With respect to the contention that the defendants violated CIOA, and that the [public offering statement] and recorded Declaration of Condominium were at variance, the plaintiff testified: (i) that he had read both documents; (ii) that he was represented by an attorney . . . at the time he signed the purchase agreement; (iii) that he asked questions of his lawyer about these documents and the purchase agreement; (iv) that he was fully satisfied with the answers received from his lawyer; and (v) violations of CIOA or variations between the [public offering statement] and the Declaration, if any, played no role at all in his decision to terminate the contract. As a result, I have not analyzed each and every alleged violation of CIOA, except to note that they appear overly technical in nature, and serve no role in resolving the issue before the court, which is simply whether the plaintiff is entitled to a refund of his down payment, or whether he breached the purchase agreement and is not so entitled.”

       See Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C. § 501 et seq. (1990).

       The plaintiff claims that the defendants (1) placed a limitation on their obligation to abide by warranties and failed to disclose adequately these limitations in contravention of General Statutes § 47-264 (a) (10), (2) failed to disclose monetary encumbrances in violation of General Statutes § 47-264 (a) (8), (3) failed to disclose the existence of a lawsuit, (4) failed to hold the plaintiff’s deposit in an escrow account in contravention of General Statutes § 47-264 (a) (13), (5) failed to disclose all of the necessary financing arrangements made to complete the project in contravention of General Statutes § 47-264 (a) (17), (6) disclaimed its obligation to pay common expenses on any unit it continued to own in contravention of General Statutes § 47-257 (g), (7) limited statutory warranties in contravention of both General Statutes § 47-276 (a) and the Uniform Commercial Code, and (8) “badly” organized the public offering statement in contravention of General Statutes §§ 47-263 and 47-264.
      The plaintiff also claims that, in violation of the CIOA, (1) the unit for which he had contracted was not built by the defendants in that there were variances in the dimensions of the kitchen, dining room, and living room in the unit contracted for and the unit actually built, as reflected in the original document of condominium (DOC) included in the public offering statement and the recorded DOC and (2) there were other material variances between the original DOC and the recorded DOC, including a change in the number of units to be constructed and the elimination of assigned parking spaces, and that the plaintiff was not informed of these changes because the defendants never provided him with amendments to the DOC as required by General Statutes §§ 47-269 (a) and 47-264 (b).

       General Statutes § 47-207 provides: “The principles of law and equity, including the law of corporations and unincorporated associations, the law of real property, and the law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause supplement the provisions of this chapter, except to the extent inconsistent with this chapter.”

       General Statutes § 20-429 provides in pertinent part: “(a) No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740 [the Home Solicitation Sales Act, General Statutes § 42-134a et seq.], (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor . . . .”

       Similarly, HIA requires compliance with the Home Solicitation Sales Act, which in turn requires a statement allowing the buyer to cancel the transaction within three days. See General Statutes § 42-135a.


author: Foti, J.

text:
    State of Connecticut v. Heriberto Lopez
    (14042)
    Foti, Heiman and Hennessy, Js.
    Argued April 17
    decision released July 11, 1995

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a, and possession of a weapon in a motor vehicle in violation of General Statutes § 29-38. The defendant claims that the trial court improperly (1) excluded evidence related to an out-of-court statement, (2) excused a seated juror, and (3) instructed the jury on the concept of reasonable doubt. He also claims that the state improperly impeached a defense witness on the basis of the witness’ pretrial silence, and that the evidence was insufficient to sustain his conviction of possession of a weapon in a motor vehicle. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 8,1991, at approximately 7:30 p.m., the victim, Elvis Crnkovic, and his brother Paul Crnkovic, were playing basketball at the corner of Winthrop and Davenport Avenues in New Haven. Elvis, who was sixteen years old, and Paul, who was seventeen years old, lived across the street from a vacant building on which a basketball rim was nailed. While they were playing, a brown car drove up with the defendant in the front passenger seat holding a .38 caliber revolver. A second car, a gray Mazda, also approached. The Mazda was driven by Jorge Orta, and David Morales was a passenger. Shots were fired from both cars and Elvis was hit in the back as he and his brother attempted to run away. The bullet was a “hollow point” that entered his lower back and came to rest just beneath the skin of his left collarbone. Elvis was taken to the hospital where he died as a result of his wounds. The defendant was one of the shooters.

I

The defendant first claims that the trial court improperly excluded an out-of-court statement that allegedly was the confession of a third party. We disagree.

The facts giving rise to this claim are as follows. The state produced a witness at trial named Lenise Nes-tir. Nestir was seventeen years old at the time of the trial. She testified that in May, 1991, she knew the defendant, Morales, Orta, and a fourth person named Alex Romero. Approximately fifteen to twenty minutes before the crime, Nestir saw Romero in the vicinity of Rosette and Button Streets. Romero had arrived in a brown car and announced to the defendant and others that he had a gun. He asked if anyone wished to go with him to Davenport Avenue. The defendant got into the vehicle and left with Romero. Knowing that there was going to be a shooting, Nestir and a friend walked to the Davenport Avenue area to watch. When she arrived, she saw the Crnkovic brothers playing basketball and then noticed the brown car arrive. After the shooting, Nestir walked back to Rosette and Button Streets where she observed Romero and the brown car. Romero took her behind a building where the defendant lived and gave her a gun. He told her to get rid of it because it was “hot.” Instead, she kept the gun, intending to trade it for a car. The gun was subsequently seized from Nestir and determined to be the murder weapon.

At the defendant’s trial, Nestir testified for the state. On May 14,1993, Nestir was excused following her testimony. Prior to leaving the building, Nestir was served with a subpoena by the defense, summoning her to return on May 17, 1993. When she failed to appear, the defendant requested, and the trial court ordered, that a capias be issued to compel her appearance.

The state rested on May 19, 1993. Outside of the jury’s presence, the defendant made an offer of proof as to the testimony of a woman named Robin Shade. Shade indicated that Nestir had told her that Nestir had killed the victim. She also testified that Nestir had been known to lie to her. The out-of-court statement was not allowed. In questioning whether defense counsel had made a tactical decision not to bring up the alleged statement during his cross-examination of Nes-tir, and the circumstances of the service of the subpoena, the court determined that Nestir, the declarant, was not unavailable. The court also determined that even if she were unavailable, the trustworthiness of the statement could not be found.

“A trustworthy third party statement exculpatory of the accused and against the penal interests of the declarant is admissible at the trial of the accused if the declarant is unavailable.” (Emphasis in original.) State v. Rosado, 218 Conn. 239, 243-44, 588 A.2d 1066 (1991). The requirement of unavailability is the prerequisite to any examination as to the trustworthiness of the statement. State v. Rivera, 221 Conn. 58, 69 n.5, 602 A.2d 571 (1992). The trial court found that the declarant was not unavailable, and the court need not have gone further. It did, however, go further and found that the statement was not trustworthy.

Whether sufficient trustworthiness exists is a question that lies in the sound discretion of the court. Id., 69. Three relevant considerations when examining the trustworthiness of a declaration against penal interest are: “ ‘(1) the time of the declaration and the party to whom the declaration was made; (2) the existence of corroborating evidence in the case; and (3) the extent to which the declaration is really against the declarant’s penal interest.’ ” Id., quoting United States v. Guillette, 547 F.2d 743, 754 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S. Ct. 132, 54 L. Ed. 2d 102 (1977).

The trial court made no findings relative to the first two factors; see State v. Reis, 33 Conn. App. 521, 530, 636 A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d 118 (1994); and there was no motion for articulation. Although the record might be sufficient to determine when such a statement may have been made and to whom, it is not sufficient to determine whether the person to whom the statement was made was one in whom the declarant would naturally confide; State v. Hernández, 204 Conn. 377, 392, 528 A.2d 794 (1987); whether Nestir and Shade had a close and confidential relationship; State v. Sanchez, 200 Conn. 721, 726, 513 A.2d 653 (1986); and whether corroborative evidence existed that was more than a minimal amount or speculative in nature. State v. Rivera, supra, 221 Conn. 71.

On the basis of the record before us, we are unable to conclude that the trial court abused its broad discretion in finding the proffered statement to be untrustworthy.

II

The defendant next claims that the trial court abused its discretion when it excused, without good cause and over objection, a seated juror. The defendant also alleges that the trial court’s actions violated his rights to due process and equal protection.

On April 29, 1993, T was selected to be a member of the jury panel. She was excused that day and told to return on May 6, 1993, when trial was expected to commence. On May 3, 1993, while jury selection was still proceeding, T left a message with the clerk’s office that she would not be able to serve. Later that day, the clerk of the court spoke to T and reported that T had indicated that she is a member of the Black Panthers, “[a]nd she doesn’t know if that’s going to have any bearing.” She also indicated that she had been arrested in the past. This had been noted on T’s voir dire form. Her final concern was that she had been notified of acceptance in an educational training program at the Area Cooperative Educational Services.

The trial court was concerned about the job training program and requested that the clerk call T to obtain more specific information about the program. The clerk later reported that the program was scheduled to begin the next day and would meet every Tuesday, from 9 a.m. to 11 a.m. T did not know whether she would be able to reapply for the program.

At defense counsel’s request, T was recalled. She appeared in court on May 5, 1993, and the court conducted an inquiry. T stated that after she had been selected as a juror, she learned that she had been accepted into the training program. She had attended the first session and indicated that she would like to continue with the training. If jury service prevented her from attending every session, she would nevertheless go to the remaining sessions. When asked if she felt she should not serve on the jury, T responded “not necessarily.” She stated that she would not be resentful if she had to serve on the jury. When asked if she wanted to serve on the jury, T stated “not particularly.”

The trial court excused the juror. In response to the defendant’s objections, the trial court stated: “Well, the record is not going to show [the] long pauses between her responses and my questions. She was obviously struggling with this a great deal. It’s a [seven] session course as I understand it, and she would have [missed] two out of the seven sessions at least, if not more. I thought it was appropriate, I’ll note your exception.”

The defendant categorizes the court’s action as a “capricious intrusion” into his right to “build a jury around those jurors already selected by both sides.” He argues that T said nothing when she returned to court to justify excusing her from the jury.

“The trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion.” State v. Cubano, 203 Conn. 81, 88-89, 523 A.2d 495 (1987). The court’s determination, based on observation of and conversation with the juror, is entitled to reasonable deference. Id., 93. In this case, the record discloses that T did not particularly want to sit as a juror and that her jury duty would have caused her to miss some of the training sessions. The trial court observed and spoke to T. The court was in the best position to view the demeanor of that juror; State v. Esposito, 223 Conn. 299, 311, 613 A.2d 242 (1992); and the record cannot portray that basis for assessment.

The defendant attempts to support his claim by pointing out that the trial court refused to allow another seated juror, B, to be excused despite claims that jury duty would interfere with her ability to meet the residency requirements of her medical training. The defendant argues that by excusing T and not excusing B, the trial court’s actions can be seen to be an abuse of discretion. We do not agree. B never asked to be excused; the request came from her director of residency. The court excused T while jury selection was still in progress, while B’s situation arose when the jury selection process had been completed. The court acted differently for reasons that do not demonstrate an abuse of discretion.

The defendant also alleges that the trial court’s actions deprived him of his due process and equal protection rights. The defendant states: “It is unclear to what extent racial and/or gender considerations entered into the decision to remove [T] from the jury.” The defendant makes constitutional claims on appeal that were not raised before the trial court. No record exists that supports the defendant’s claim that the trial court’s excusal of T was argued as depriving him of his due process and equal protection rights. Nor was the issue of discrimination ever mentioned prior to appeal. We, therefore, cannot afford appellate review to these claims, which were not raised before the trial court. State v. Zollo, 36 Conn. App. 718, 726, 654 A.2d 359 (1995).

III

The defendant next raises an issue based on a claim of fundamental fairness. He argues that the state improperly impeached the testimony of one of the defense witnesses on the basis of that witness’ pretrial silence. The facts relevant to this claim are as follows. One of the defense witnesses was Jeanette Ayala, a cousin of the defendant who also claimed to be a good friend to the victim and his family. She testified that she had witnessed the shooting and that the defendant was not involved. She further testified that someone else had been the shooter, and that neither Nestir nor anyone else was standing on the corner of Davenport Avenue. During cross-examination, Ayala admitted that at no time did she go to the police with her information, nor did she tell the victim’s family about what she had seen. During final argument to the jury, the state’s attorney argued that Ayala was not credible and emphasized Ayala’s testimony relative to her pretrial silence. The defendant argues that his constitutional rights to due process, to a fair trial, and to present a defense were violated by the state’s attempts to impeach Ayala’s testimony.

This claim was not properly preserved at trial. The defendant seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and as plain error pursuant to Practice Book § 4185.

Under Golding, a defendant can prevail on a claim not preserved at trial, only if all of the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40. We conclude that the defendant cannot satisfy the second or third prongs of Golding.

Our Supreme Court has rejected the claim that cross-examination of a witness regarding pretrial silence for the purpose of impeachment implicates a fundamental constitutional right. State v. Mailings, 202 Conn. 1, 14-15, 519 A.2d 58 (1987). In Mailings, the court noted that it has “never recognized any fundamental right of a defendant not to have his witnesses discredited.” Id., 15. The defendant’s claim does not implicate a fundamental constitutional right, nor was the defendant’s right to a fair trial clearly violated. State v. Golding, supra, 213 Conn. 239-40; see also State v. Jones, 205 Conn. 723, 738, 535 A.2d 808 (1988). This unpreserved claim does not warrant review under Golding.

The defendant has also requested review under the plain error doctrine. Practice Book § 4185. “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). We see no such manifest injustice here; there is no plain error in this case.

IV

The defendant next claims that the evidence was insufficient to sustain his conviction under General Statutes § 29-38. We disagree.

A person violates § 29-38 when he or she “knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued as provided in section 29-28 or section 53-206, or has not registered such weapon as required by section 53-202 . . . .” General Statutes § 29-28 describes the procedure for obtaining a pistol permit. The defendant argues that the state failed to produce sufficient evidence that he did not have a state permit.

It is fundamental that any person accused of a crime is presumed innocent unless and until the state has proven his guilt by establishing each essential element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Nelson, 17 Conn. App. 556, 561, 555 A.2d 426 (1989). Our Supreme Court has concluded that the lack of a proper permit is an essential element of the crime of having a weapon in a vehicle pursuant to § 29-38 and, therefore, the state is required to prove beyond a reasonable doubt that a defendant did not have a proper permit for the weapon as provided in § 29-28. State v. Beauton, 170 Conn. 234, 240, 365 A.2d 1105 (1976).

The state presented evidence tending to show that the defendant did not have a local permit. In attempting to prove that the defendant did not have a state permit, the state presented the testimony of Trooper Thomas Brazzell of the state police. Brazzell testified that the state police keep records of people who have been issued permits to carry pistols in Connecticut. On direct examination, Brazzell was asked if he had checked the records to see “whether or not an individual by the name of Heriberto Lopez with the date of birth of September 22, 1974, had a valid state permit to carry a pistol on May 8, 1991.” Brazzell responded that he had checked the records and had not found “any individual with that name or with that date of birth.” (Emphasis added.) On cross-examination, Brazzell was asked to spell the defendant’s name. He spelled the defendant’s name as “Herberto.” The defendant argues that the trooper’s record search was made for a “Her-berto” Lopez, rather than for “Heriberto” Lopez, and the fact that someone with a name similar to that of the defendant and with the defendant’s birthday did not have a permit was insufficient to establish the defendant’s guilt.

If we were allowed to speculate, we might say that the witness intended to say “and” and not “or.” We might further speculate that the date of birth is merely a backup form of identification in the event that more than one person with the same name has been issued a permit. In that case, we would agree that the evidence presented was insufficient to prove that Heriberto Lopez, the defendant, had not been issued a permit to carry a pistol in this state. We must, however, accept the record as it exists. The essence of the testimony is that as of May 8, 1991, no one with that date of birth had been issued a permit to carry a pistol. The defendant concedes that the date of birth used by the witness was correct. It follows that the evidence was sufficient to support the claim that the defendant did not have a permit to carry a pistol on May 8,1991. The evidence was thus sufficient to sustain the conviction.

y

As a final claim, the defendant argues that the court improperly instructed the jury on the concept of reasonable doubt. The court defined reasonable doubt as a doubt for which a valid reason can be assigned, and as one that “in the serious affairs which concern you in every day life you would pay some attention to. It is the kind of doubt that would cause reasonable people such as yourselves to hesitate to act in the more serious and important affairs in your lives.” No exception was taken. The defendant’s request to charge contained similar language. The defendant claims that the reasonable doubt instructions shifted or diminished the state’s burden of proof thereby presenting a constitutional question reviewable under State v. Golding, supra, 213 Conn. 233, and Practice Book § 4185.

Our Supreme Court has rejected the same or similar challenges. State v. Kelley, 229 Conn. 557, 643 A.2d 854 (1994); State v. Campbell, 225 Conn. 650, 626 A.2d 287 (1993); State v. Adams, 225 Conn. 270, 623 A.2d 42 (1993); State v. Thomas, 214 Conn. 118, 570 A.2d 1123 (1990); see also State v. Brown, 35 Conn. App. 699, 647 A.2d 17, cert. denied, 231 Conn. 932, 649 A.2d 254 (1994); State v. Goodman, 35 Conn. App. 438, 646 A.2d 879, cert. denied, 231 Conn. 940, 653 A.2d 834 (1994). When read in the context of the complete charge, the challenged instruction did not reduce the state’s burden of proof. We conclude that the defendant has failed to demonstrate a violation of a fundamental constitutional right.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023 and General Statutes § 51-199 (c), the Supreme Court transferred the appeal to this court.

       General Statutes § 53a-54a provides in relevant part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

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

       General Statutes § 29-38 provides in relevant part: “Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued as provided in section 29-28 or section 53-206, or has not registered such weapon as required by section 53-202, as the case may be, shall be fined ... or imprisoned . . . and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. ...”

       We need not determine whether the trial court abused its discretion in ruling on the availability of the declarant. In finding Nestir not to be unavailable, the court examined the efforts made to locate her to determine whether they were reasonable efforts. The court also recognized that Nestir had testified at the trial but had not been cross-examined about the alleged statement. The court noted that no explanation had been offered about why Nestir was placed under subpoena after testifying, giving rise to the question of whether this was a tactical decision that precluded a claim of unavailability.

       The defendant did not exhaust his peremptory challenges.

       Practice Book § 4185 provides in relevant part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       Even if we were to consider the defendant’s claim, we would find it without merit. See State v. Jones, 205 Conn. 723, 535 A.2d 808 (1988); State v. Mullings, supra, 202 Conn. 1; State v. Ghere, 201 Conn. 289, 513 A.2d 1226 (1986).

       See footnote 4.

       General Statutes § 29-28 (b) provides in pertinent part: “Upon the application of any person having a bona fide residence or place of business within the jurisdiction of any such authority or upon the application of any bona fide resident of the United States having a permit or license to carry any firearm issued by the authority of any state or subdivision of the United States, such chief of police, warden or selectman may issue a permit to such person to carry a pistol or revolver within the jurisdiction of the authority issuing the same . . . .Said commissioner may, upon application, issue, to any holder of any such permit, a permit to carry a pistol or revolver within the state. . . .”

       The defendant’s request to charge, as pertinent, states: “Reasonable doubt is a standard used in our law to define the degree of certainty which the State must meet in proving its case. The State must proof each element to such a degree that it eliminates any reasonable doubt. Reasonable doubt certainly is not met simply by tipping the scales slightly or by a preponderance of the evidence. Reasonable doubt is such a doubt as would cause a juror, after careful, candid and impartial consideration of all the evidence and as would cause a reasonable person to hesitate or pause in the graver or more important transactions of life. The certainty which must exist must exclude such doubt. In order to establish the guilt of the accused beyond a reasonable doubt, there must be enough proof to exclude every reasonable presumption or hypotheses of innocence in the minds of each juror.”

       See footnote 7.


author: Heiman, J.

text:
    Cheri L. Bilodeau v. City of Bristol
    (13154)
    Foti, Heiman and Hennessy, Js.
    Argued April 17
    decision released July 18, 1995

      Kathryn Calibey, for the appellant (plaintiff).

      Scott M. Karsten, for the appellee (defendant).
   Heiman, J.

In this action sounding in nuisance, the plaintiff appeals from the judgment rendered after the trial court directed the jury to return a verdict in favor of the defendant. On appeal, the plaintiff claims that the trial court improperly (1) directed the jury to return a defendant’s verdict, (2) refused to permit the introduction into evidence of § 16-1 (b) of the code of the city of Bristol and (3) effectively barred the plaintiff from arguing money damages pursuant to General Statutes § 52-216b. We agree that the trial court acted improperly in directing a verdict in favor of the defendant and reverse the judgment of the trial court.

The jury could reasonably have found the following facts. On May 16, 1989, at approximately 7:30 p.m., the plaintiff was driving a motor vehicle west on Memorial Boulevard near its intersection with Mellon Street, both public highways in the city of Bristol. As the plaintiff was proceeding on Memorial Boulevard, a large branch that overhung the west bound lane of travel from the north side of the highway fell from an oak tree and struck the roof of the plaintiff’s automobile, crushing the roof of the car almost to the level of the door. After the branch hit the car roof, the plaintiff’s automobile crossed the median divider in the center of Memorial Boulevard, grazed a pole and ultimately struck another oak tree where the vehicle came to rest.

As a result of the incident, the plaintiff suffered various injuries, including lacerations on her nose and forehead, a displaced and comminuted left clavicle fracture, fractures of the right side sixth, seventh and eighth ribs, a left ankle sprain, and pain in the midback. The injuries to the shoulder girdle, thoraco-scapula, midback area, and left ankle are permanent. As a result of these injuries, the plaintiff was out of work from the date of the accident until August 14,1989, and incurred various expenses for hospital and medical care.

The branch that struck the plaintiff had broken off of one of the many oak trees that had been planted by the city of Bristol along Memorial Boulevard as a veterans memorial. It appeared to be in poor health and was rotted in the area of pruning cuts.

The property on which the trees were planted belongs to the defendant and employees of the defendant are responsible for maintaining and caring for the trees along Memorial Boulevard. The only records available revealed that the oaks on Memorial Boulevard were pruned in the spring of 1986. It is uncertain as to when any work was done on that area prior to that time. The pruning was carried out in flush cuts and did not comport with generally accepted methods for the pruning of such oak trees. Such improper pruning can create large wounds in the trees, which provide points of entry for decay. The branch that fell on the plaintiffs automobile showed pruning cuts in close proximity; the decay between the cuts had coalesced, which weakened the entire branch.

The case was submitted to the jury with interrogatories and the jury returned a plaintiff’s verdict in the amount of $50,000 and answers to the interrogatories. The trial court accepted the answers to the interrogatories but declined to accept the plaintiff’s verdict. The trial court then directed the jury to return a verdict in favor of the defendant and the trial court accepted and rendered judgment on the directed verdict. The plaintiffs motion to set the directed verdict aside was denied. This appeal followed.

I

The plaintiff first asserts that the trial court improperly directed a verdict in favor of the defendant on the basis of an apparent inconsistency between the jury’s answer to one of the interrogatories submitted to it and the plaintiff’s verdict. The plaintiff asserts that under the circumstances of this case the trial court should not have directed a verdict but should have invalidated the entire verdict proceedings or returned the jury for further deliberations after a recharge as to the law in order to dispel any confusion that might have existed. We agree.

Certain additional procedural facts are necessary to a proper resolution of this claim. The trial court submitted to the jury six interrogatories. In the course of its charge, the trial court instructed the jury that the burden was on the plaintiff to establish by a fair preponderance of the evidence the five elements of nuisance and also that the nuisance was created by the positive act of the defendant or its employees. The trial court did not, however, expressly instruct the jury that it had to answer each of the interrogatories in the affirmative before it could return a verdict in favor of the plaintiff.

The jury returned with the answers to the six interrogatories and with a plaintiff’s verdict in the amount of $50,000. The trial court examined the interrogatories and found that the jury had answered five of the six in the affirmative but had answered interrogatory number three, “Was the use of the land unreasonable?” in the negative. The verdict was read by the clerk but was not ordered accepted and recorded by the trial court. The trial court directed the clerk to read the interrogatories and the answers to them as returned by the jury. Upon inquiry after the answers to the interrogatories were read to them, the jurors indicated that the answers read constituted their answers to the interrogatories. The trial court ordered the answers to the interrogatories accepted and recorded and directed that the answers as accepted and recorded be read again. The jury again acknowledged the answers to the interrogatories.

The trial court excused the jury from the courtroom and heard argument by counsel regarding the effect of the inconsistency between the answers to the interrogatories and the verdict. After consideration, the trial court recalled the jury and informed it that its finding that the use of the land was not unreasonable necessitated a verdict for the defendant. The jury complied with the court’s direction and returned a verdict in favor of the defendant.

“The rules controlling appellate review of a directed verdict are well settled. Directed verdicts are not generally favored. A trial court’s decision to direct a verdict can be upheld only when the jury could not reasonably and legally have reached any other conclusion.” (Internal quotation marks omitted.) Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 285-86, 587 A.2d 1056 (1991); see also Bleich v. Ortiz, 196 Conn. 498, 500-501, 493 A.2d 236 (1985). We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff. Giles v. New Haven, 228 Conn. 441, 444, 636 A.2d 1335 (1994); Berry v. Loiseau, 223 Conn. 786, 819-20, 614 A.2d 414 (1992).

In light of these standards, we conclude that the trial court improperly directed a verdict in favor of the defendant.

“To justify the entry of a judgment contrary to a general verdict upon the basis of answers to interrogatories, those answers must be such in themselves as conclusively to show that as a matter of law judgment could only be rendered for the party against whom the [general] verdict was found . . . .” (Internal quotation marks omitted.) Sullivan v. Norwalk, 28 Conn. App. 449, 459, 612 A.2d 114 (1992); see Belchak v. New York, N. H. & H. R. Co., 119 Conn. 630, 634, 179 A. 95 (1935); Murteza v. State, 7 Conn. App. 196,201, 508 A.2d 449 (1986).

Here, the trial court should not have directed a verdict in favor of the defendant because the jury’s initial response to the interrogatories did not conclusively negate an essential element of the plaintiff’s cause of action. The jury’s answer to the third interrogatory was clearly at variance with its responses to the other interrogatories and its rendition of a plaintiffs verdict, and, thus, the jury never made a conclusive finding that the use of the land by the defendant was reasonable.

Where answers to interrogatories are inconsistent, the trial court has the duty to attempt to harmonize the answers. Norrie v. Heil Co., 203 Conn. 594, 606, 525 A.2d 1332 (1987). Here, the trial court made no attempt to harmonize the answer, nor did it, as caution dictated, return the jury to consider its verdict in light of the obvious inconsistency. See General Statutes § 52-223. Further, considering the fact that the trial court had not specifically instructed the jury that it needed to answer all of the interrogatories in the affirmative in order to return a plaintiff’s verdict, caution dictated that the jury be so instructed and given an opportunity to make its verdict clear. See Robbins v. Van Gilder, 225 Conn. 238, 252, 622 A.2d 555 (1993).

Section 52-223 provides the trial court with the authority to return the jury to consider its verdict a second or third time if the court judges that the jury has mistaken the evidence or has brought in a verdict contrary to the direction of the court in a matter of law. Here, while the trial court did not expressly charge the jury that it could return a plaintiff’s verdict only if it answered all six interrogatories in the affirmative, it had done so by implication. Thus, it clearly appears that the verdict of the jury was facially contrary to the direction of the court in a matter of law. See General Statutes § 52-223. The rules of practice provide further authority to the trial court to return the jury for further consideration of its verdict. Practice Book § 311. The trial court here did not avail itself of either modality.

Thus, we conclude that under the circumstances of this case, the trial court acted improperly in directing a verdict for the defendant.

II

The plaintiff next asserts that the trial court improperly excluded from evidence § 16-1 (b) of the Bristol code. We are unpersuaded.

In the course of the trial, the plaintiff attempted to introduce into evidence § 16-1 (b) of the Bristol city code concerning the establishment of a proper memorial to Bristol’s veterans of all wars. The specific portion of the code that the plaintiff sought to have admitted into evidence required the board of park commissioners to maintain the park as a memorial and to preserve the stand of oaks along the boulevard. The trial court declined to admit the document, stating that in order to be admissible in a nuisance case there must be some causal relationship between the ordinance and the injury.

“The rules for determining the admissibility of evidence are well settled. The trial court has broad discretion to determine both the relevancy and remoteness of evidence. . . . Only upon a showing of a clear abuse of discretion will this court set aside on appeal rulings on evidentiary matters. ... In considering the relevancy of evidence, we ask whether it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. . . . Because there is no precise and universal test of relevancy, however, the question must ultimately be addressed on a case-by-case basis in accordance with the teachings of reason and judicial experience.” (Internal quotation marks omitted.) Larsen Chelsea Realty Co. v. Larsen, 232 Conn. 480, 520-21, 656 A.2d 1009 (1995), quoting Dunham, v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987).

Applying these principles, we conclude that the trial court did not abuse its considerable discretion in sustaining the defendant’s objection to the offer into evidence of § 16-1 (b) of the Bristol code. The establishment and preservation of the park as a memorial is unconnected to the claims of the plaintiff and the trial court properly exercised its discretion to exclude the evidence.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The interrogatories submitted to the jury were as follows:
      “1. Did the defendant create a condition that had a natural tendency to create damage and inflict injury on persons or property?
      “2. If such condition was created was it a continuous one?
      “3. Was the defendant’s use of its land unreasonable?
      “4. Was the existence of the condition created the proximate cause of the plaintiffs injuries?
      “5. Was the plaintiff in the exercise of a public right when she was injured?
      “6. Were the pruning cuts a positive act of the City or its employees?”

       The trial court specifically charged the jury regarding the definition and elements of a claim for nuisance: “A nuisance generally may be defined as a condition the natural tendency of which is to create danger and inflict injury upon person or property. To establish a nuisance claim against a municipality, we need five separate things. The plaintiff has to prove five things. The condition that is created must have a natural tendency to create danger and inflict injury upon person or property. That’s number one. The danger created and the condition of that danger must be continuous. All nuisance cases of the kind that we are talking about are in regard to use of the land. This case is in regard to use of land by the city of Bristol, basically of that strip along the side of the boulevard or strips on each side. Actually, it’s only about one side in our case because that’s the only place the tree in question was. But the number three on our list of five is, the use of the land was unreasonable, is what the city was doing was unreasonable. Four, the existence of the nuisance was the proximate cause of the plaintiff’s injury. And, five, the plaintiff was in the exercise of some public right.
      * * *
      “To establish liability against a municipality, it must be shown that the condition was created by some positive act of the municipality or its employees, and I might say to you if I talk about the city or the municipality, it is responsible and held responsible for the acts of all of its employees unless you find from the evidence in this case that some, one of these people, was out on a frolic and detour of his own but I don’t think we have anything like that. I think the trimmers and tree people were pretty clearly — you don’t have to find it but they were acting in a regular city capacity for the city. If you find that they did these things, then the city is responsible for what they did.
      “In this place, the plaintiff claims that the city created a dangerous condition and, additionally, the plaintiff says that the city maintained the dangerous condition. You heard the testimony from the expert witnesses and from the city personnel. If you find that the dangerous condition was created by the cuts, the pruning methods used by the city, then the plaintiff will have proven that the condition was created by a positive act. What the city created, according to the plaintiff, I guess, is that the city created a wound on the branch of a tree because it didn’t cut it far enough out, cut it too bad, something like that. And the question is, in regard to reasonable use of the land, is it reasonable for the city to do that, to do what it did, to make this cut, trim this tree and I guess it trimmed other trees, but they are not part of our case. What the question for you that you have to have in mind is what dangerous condition, after the cut continued, the wounds, but the damage done by the wounds, allowed the decay to enter, according to the witnesses, over a period of four to eight to even, I heard, twenty years, is that a continuation of the danger or is something new being added?
      * * *
      “To constitute a nuisance in the use if land, it must appear not only that a certain condition by its very nature is likely to cause injury but the use is unreasonable. Whether a particular condition of which the plaintiff [says] eonstitutes a nuisance does not depend merely upon the inherent nature of the conditions, that involves a consideration of all relevant facts, location, beneficial for the memorial, the city, the shade, the nice appearance, the aesthetics, all of those together with the size of the tree, etc. It is your role to determine whether the condition created, if any, was unreasonable either due to the nature of the branch itself or due to the city’s maintenance of it and that condition, the plaintiff must also prove to you by a fair preponderance of the evidence, that the fall of the branch, the nuisance, the condition, caused her injuries. I don’t think there is any question that the fall of the branch caused this accident but that’s only half of the causation picture. Caused the accident — I don’t think that [defendant’s counsel] would disagree for a minute that the falling branch caused the accident. He doesn’t agree as to why it fell or the reasonableness and that sort of thing but it did fall on her car, I guess.”

       In addition to the trial court’s charge on the elements of the cause of action as set out in footnote 2, the trial court also addressed the issue of the interrogatories as follows: “Now, the last thing we have on our agenda here is the interrogatories, which I think I gave you as well. They are entitled interrogatories to jury, and they are to help us help you in focusing on ornease and I’m going to go over those interrogatories one at a time. First one is, did the defendant create a condition that had a natural tendency to create damage and inflict injuries on persons or property? You will see that these six, the first five anyway, are our first five items that the plaintiff must prove in regard to proving a nuisance case and she is required to prove those first five.
      “So, I ask you to answer each of them, if the condition was created, was it continuous, was the defendant’s use of the land unreasonable . . . [w]as the existence of the condition created the proximate cause of the plaintiff s injuries and, in regard to that one, I would tell you in order to be the proximate cause, it must be a substantial factor but it need not be the sole, substantial factor. And, was the plaintiff in the exercise of the public right when she was injured. I think you could put a yes in that box without any complaint. The last one is a question that, as I indicated to you in the charge, the creation of this nuisance must be by a positive act and so the question is, were the pruning cuts a positive act of the city or its employees?”

       This verdict included $16,000 in compensation for economic damages and $34,000 for noneconomic damages.

       The trial court stated as follows: “Ladies and gentlemen, we have your verdict for the plaintiff, which I have not accepted, and the reason I have not accepted it is because in answers to the interrogatories you said, “No,” in regard to interrogatory number 3. As I directed you in the charge, in order to find for the plaintiff you had to say yes to all five of those first questions and what you have said is the defendant’s use of the land was reasonable because you said it was not unreasonable. If it’s not unreasonable, then the verdict must be for the defendants. Therefore, I must return you to the jury room with a direction that, in accordance with your interrogatories, to which you all assented twice, you must come in with a verdict for the defendant and I so direct you.
      “Would you take the jury out and give them the defendant’s verdict form?”
      Despite the contrary contentions of the trial court, the trial court did not expressly charge the jury that it must answer all of the interrogatories in the affirmative in order to find for the plaintiff. This failure further evidences the jury’s unawareness or confusion regarding the relationship between the interrogatories and the verdict.

       General Statutes § 52-223 provides: “The court may, if it judges the jury has mistaken the evidence in the action and has brought in a verdict contrary to the evidence, or has brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for the same reason may return them to a third consideration. The jury shall not be returned for further consideration after a third consideration.”

       Practice Book § 311 provides: “The court may, if it determines that the jury have mistaken the evidence in the cause and have brought in a verdict contrary to it, or have brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for like reason may return them to a third consideration, and no more.”

       Although our resolution of the plaintiff’s claim that the trial court improperly directed a verdict for the defendant is dispositive of this appeal, we address this evidentiary claim because it is likely to occur in the course of a new trial. We do not, however, address the plaintiff’s third claim that the trial court “effectively barred the plaintiff from arguing damages to the jury,” as it is unlikely to occur on remand. See Falby v. Zarembski, 221 Conn. 14, 26-27, 602 A.2d 1 (1992).

       Section 16-1 (b) of the code of the city of Bristol provides in pertinent part: “The board of park commissioners shall give special care in maintaining said park as a fitting memorial and preserving the rows of memorial oaks which border the boulevard. . . .”


author: Spear, J.

text:
    Charles Fabrizio v. Howard Glaser
    (13293)
    Foti, Lavery and Spear, Js.
    Argued March 20
    decision released July 18, 1995

      Carey B. Reilly, for the appellant (plaintiff).

      Craig A. Fontaine, with whom was Paul T. Edwards, for the appellee (defendant).
   Spear, J.

In this medical malpractice action arising out of the defendant’s alleged failure to obtain the plaintiff’s informed consent, the plaintiff appeals from the judgment of the trial court rendered after a jury verdict for the defendant. On appeal, the plaintiff asserts that the trial court improperly denied his motion for a directed verdict and his motion to set aside the ver-diet because, contrary to the jury's conclusion, the plaintiff in fact commenced his action within three years of the act or omission complained of, as required by General Statutes § 52-584. The defendant argues, as an alternate ground for affirmance, that the general verdict rule applies to this case and precludes appellate review of the plaintiff’s claim. We agree with the defendant and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 16, 1987, the plaintiff consulted the defendant, a dentist, concerning the extraction of his wisdom teeth. During this consultation, the plaintiff was advised of the material risks, benefits and alternatives to the extraction. The defendant recommended that the plaintiff have all four wisdom teeth removed. The plaintiff agreed to the extraction and signed a document entitled “Informed Consent for Impacted or Unerupted Teeth” that outlined the risks of the proposed extraction procedure. On April 24, 1987, after the plaintiff signed a consent to operation form, his wisdom teeth were extracted. As a result of this surgery, the plaintiff claims to have suffered permanent nerve injury, including pain and numbness.

The plaintiff commenced this medical malpractice action on April 19, 1990. At trial, the plaintiff’s sole claim was that the defendant had failed to obtain his informed consent prior to extracting his wisdom teeth. The defendant denied that he had failed to obtain the plaintiff’s informed consent and asserted, by way of special defenses, that the plaintiffs action was barred by both the two and three year limitations of § 52-584.

The following procedural history is relevant to this appeal. At the conclusion of the presentation of the evidence, the plaintiff moved for a directed verdict on the basis of both the two and three year limitation provisions of § 52-584. He claimed that the evidence clearly showed that the plaintiff commenced the action within three years from the act or omission complained of and within two years of the time when the plaintiff knew or should have known of the injury. The court denied the motion.

Upon the completion of the presentation of the evidence, the trial court instructed the jury on the essential elements of a cause of action premised on the failure to obtain informed consent and the defendant’s statute of limitations special defenses. Additionally, the trial court submitted two interrogatories to the jury. The jury returned a verdict in favor of the defendant. The jury also answered the interrogatories, finding that the plaintiff had commenced the action within the required two years from his discovery of the injury, but had failed to commence the action within three years of the complained of act or omission as required by § 52-584. On January 27,1994, the plaintiff moved to set aside the verdict, arguing that the jury’s finding that he had failed to commence the action within three years of the act or omission was not reasonable or legally possible. The trial court denied the plaintiff’s motion to set aside the verdict and rendered judgment. This appeal ensued.

We first consider the defendant’s contention that the general verdict rule precludes our review of the plaintiffs claim. “As it has generally been understood . . . [t]he so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. Stone v. Bastarache, 188 Conn. 201, 204, 499 A.2d 142 (1982); Colucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981).” (Internal quotation marks omitted.) Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993).

In Curry, our Supreme Court delineated the parameters of the general verdict rule and held that the rule applies in the following five situations: “(1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” Id., 801. In this case, the defendant’s denial of the plaintiff’s claim of medical malpractice and his special defense that the statute of limitations had run fall into the fourth category contemplated by the Curry court. Therefore, this case presents a factual situation to which, absent interrogatories that reveal the basis for the verdict, the application of the rule is appropriate.

Two interrogatories were submitted to the jury by the defendant, and the plaintiff argues that this fact alone precludes the application of the general verdict rule. The plaintiff is correct in asserting that it is well established that “[a] party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury.” Id., 786. Furthermore, “the use of interrogatories has long been accepted practice in this state, and . . . their use to avoid the implications of a general verdict has long been favored by this court.” Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 125, 412 A.2d 311 (1979).

Although interrogatories were submitted to the jury, the defendant argues that the answers do not necessarily determine the grounds for the verdict, and, therefore, the general verdict rule should be applied. Thus, we are presented with the issue of whether the general verdict rule is applicable when the interrogatories relate solely to the defendant’s special defense and the answers to the interrogatories do not reveal whether the jury considered the merits of the case.

To resolve this issue, we first review the underlying rationale that supports the application of the general verdict rule in certain circumstances. “The rule rests on the sound policy of conservation of judicial resources, at both the appellate and trial levels. On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have adjudicated. Declining in such a case to afford appellate scrutiny of the appellant’s claims is consistent with the general principle of appellate jurisprudence that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated. See, e.g., McLaughlin v. Bronson, 206 Conn. 267, 277-78, 537 A.2d 1004 (1988).

“In the trial court, the rule relieves the judicial system from the necessity of affording a second trial if the result of the first trial potentially did not depend upon the trial errors claimed by the appellant. Thus, unless an appellant can provide a record to indicate that the result the appellant wishes to reverse derives from the trial errors claimed, rather than from the other, independent issues at trial, there is no reason to spend the judicial resources to provide a second trial.” Curry v. Burns, supra, 225 Conn. 790.

We conclude that it is crucial for an appellant to provide us with a record that enables us, as a reviewing court, to determine which claims or defenses the jury resolved and in whose favor they resolved them. It is not the mere submission of interrogatories that enables us to make that determination; rather, it is the submission of properly framed interrogatories that discloses the grounds for the jury’s decision. Therefore, the efficacy of the interrogatories and the preclusion of the general verdict rule depends on their being framed in such a way that this court is able to determine the grounds for the jury’s decision.

In this case, the plaintiff relies on the submission of two interrogatories to preclude the application of the general verdict rule. The interrogatories both concern the defendant’s special defense that the plaintiff failed to commence the action before the statute of limitations had run. They do not refer to the plaintiff’s malpractice claim. The defendant’s denial of negligence and his allegation of a special defense constituted two separate and distinct defenses, either of which would have supported the verdict for the defendant. When there are alternative bases for the verdict, it is necessary for the interrogatories to reveal the actual grounds for the jury’s verdict in order for the general verdict rule to be precluded.

Instead of being provided with a record that shows the grounds for the verdict, we are left to speculate whether the jury: (1) found on the merits for the plaintiff but found that the defendant prevailed on his statute of limitations defense, (2) answered the interrogatories first, finding that the defendant prevailed on his statute of limitations defense, and never reached the merits or (3) found for the defendant on both the merits and the statute of limitations defense.

The plaintiff asserts that the first alternative is the most likely to have occurred. In support of this argument, the plaintiff states that the court’s charge to the jury, which discussed the liability issues first and then the interrogatories, shows that the jury must have first considered the merits of the case, finding in favor of the plaintiff, and then answered the interrogatories. Our review of the record finds no support for this contention. To the contrary, in its charge to the jury the court specifically stated that “[t]he order in which the instructions are given to you have no significance whatsoever as to their importance in the case.” This instruction undermines the plaintiff’s claim that the jury necessarily found in favor of the plaintiff on the merits of the case and then answered the interrogatories. We are, therefore, left with no indication of the order in which the jury examined the issues.

An additional reason why we are not persuaded by the plaintiff’s claim that the jury necessarily discussed the liability issues first is that it would also have been reasonable for the jury to have considered the interrogatories first. This would have been an efficient way for the jury to proceed because, if a statute of limitations barred the action, the merits would not have to be considered. There is no way of knowing if that, in fact, occurred. The trial court did not instruct the jury to proceed in that fashion and to assume that it did so because that would have been the most logical and efficient approach is speculation. The third alternative, that the jury found for the defendant on the merits and the special defense, was also a reasonable course of action for the jury, especially in light of the court’s instruction to “consider the entire charge as [a] whole.” The jury may well have felt obligated to address all of the issues in the case because it was not told to do otherwise.

Because we are unable to determine whether the case was decided on the merits and the special defenses or on the special defense only, the general verdict rule applies and, accordingly, we will “presume that the jury found every issue in favor of the prevailing party.” Curry v. Burns, supra, 225 Conn. 786. If we did not apply the general verdict rule and reversed the trial court on the statutes of limitations claim, the plaintiff would be getting a second opportunity to prove a case that may well have been decided against him on the merits. Such a result would be contrary to the notion of judicial economy and the prohibition against unnecessarily relitigating issues that underpin the general verdict rule.

The spirit of the rule and the underlying policy of conservation of judicial resources would be thwarted if we were to hold that interrogatories that do not clarify the basis for the jury’s verdict nevertheless preclude application of the rule. From the jury’s answer to the interrogatories, we are able to discern only that the jury found that the plaintiff did not commence the action within three years of the act or omission complained of, as required by § 52-584. The answers to the interrogatories do not reveal whether the jury found for or against the plaintiff on his medical malpractice claim. Without having the grounds for the jury’s verdict elicited through properly framed interrogatories and because the verdict reasonably could have been rendered on more than one distinct defense, we apply the general verdict rule and presume that the jury found every issue in favor of the defendant. See Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-584 provides in pertinent part: “No action to recover damages for injury to the person . . . caused by negligence, or by reckless or wanton misconduct, or by malpractice of a . . . dentist . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . .

       In his brief, the defendant refers to the extraction of the plaintiffs third molars. For the sake of consistency, we will use the term wisdom teeth.

       The interrogatories were: “You must answer question #1 before answering question #2.

      “1. Do you find that plaintiff commenced his action within two years of when he knew or should have known that he suffered actionable harm? If yes, then go on to answer question #2. If no, then you must return a verdict for the defendant.
      “2. Do you find that the plaintiff commenced his action within three years of the act or omission complained of? If yes, then I instruct you, as a matter of law, that the defendant has not prevailed on his statute of limitations defense. If the answer is no, then I instruct you, as a matter of law, that you must return a verdict for the defendant.”

       The jury answered yes to the first interrogatory and no to the second. See footnote 3.

       See footnotes 3 and 4.


author: Schaller, J.

text:
    Nicholas G. Melfi et al. v. City of Danbury et al.
    (13623)
    Dupont, C. J., and Heiman and Schaller, Js.
    Argued May 2
    decision released July 18, 1995

      Nancy Burton filed a brief for the appellants (plaintiffs).

      Dominick J. Rutigliano, with whom, on the brief, was Lisa Ann Rich, for the appellees (defendants Robert Lupi et ah).
   Schaller, J.

The plaintiffs appeal from the judgment of the trial court in favor of the defendants in this action seeking damages for alleged obstruction of a public highway, creation and maintenance of a nuisance, and intentional infliction of emotional distress, as well as injunctive relief against future obstruction of the highway. The plaintiffs claim that the trial court improperly (1) found that the plaintiffs’ evidence was not credible to establish that they were entitled to an award of money damages, and (2) refused to award damages. Because we dismiss the appeal, sua sponte, we do not reach these issues.

The following facts are relevant to our disposition of this appeal. In July, 1991, the defendants, Robert Lupi and Phyllis Lupi, purchased two adjoining parcels of land; one parcel was located on Old Ball Pond Road in New Fairfield, the second on Old Ball Pond Road in Danbury. The Lupis built a house and began living there in early 1992.

Soon after moving into their new home, the Lupis were concerned about traffic on the road. The city of Danbury, in response to these concerns, authorized the closing of the road to through traffic. A gate was erected across Old Ball Pond Road by Robert Lupi. The gate had posts at either end that were cemented into the ground and was secured by a padlock that required a key. It was effective in blocking all vehicular traffic. The Lupis refused to furnish the plaintiffs with a key to the padlock. The gate was removed after seventeen days.

On October 26,1992, the plaintiffs brought this action against the Lupis and the city of Danbury seeking an injunction against future obstruction of Old Ball Pond Road by the Lupis or others, as well as damages and other relief. On December 15,1992, the plaintiffs made a motion to default the Lupis for failure to appear. The motion was granted on December 23, 1992. The trial court, Fuller, J., granted the plaintiffs’ motion for judgment on January 19,1993, and ordered the case to proceed to a hearing in damages as to the Lupis. The case was still pending as to the defendant city of Danbury. On April 22,1994, the trial court, McGrath, J., by memorandum of decision, denied the plaintiffs any recovery of damages, finding the plaintiffs’ evidence not credible. The plaintiffs have appealed from this judgment.

Because the case is still pending as to the city of Dan-bury, our analysis of the issues presented must be arrested to permit an inquiry as to whether a final judgment has been rendered in this case. “ ‘The lack of a final judgment is a threshold question that implicates the subject matter jurisdiction of this court.’ Schick v. Windsor Airmotive Division/Barnes Group, 31 Conn. App. 819, 822, 627 A.2d 478 (1993), citing Walton v. New Hartford, 223 Conn. 155, 162 n.9, 612 A.2d 1153 (1992). Where there is no final judgment, we cannot reach the merits of the appeal. General Statutes § 52-263; Practice Book § 4000; Smith v. Otis Elevator Co., 33 Conn. App. 99, 102, 633 A.2d 731 (1993).” Akerson v. Bridgeport, 36 Conn. App. 158, 159, 649 A.2d 796 (1994). “ ‘The finality requirement underlying our appellate review represents a clear and firm policy against piecemeal appeals. State v. Powell, 186 Conn. 547, 551, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838,103 S. Ct. 85, 74 L. Ed. 2d 80 (1982).’ ” T.P. Brewer Construction Co. v. F & G Associates, 34 Conn. App. 714, 715, 643 A.2d 308 (1994).

“Practice Book § 4002 enumerates the circumstances under which an appeal may be taken from a judgment disposing of only some of the counts of a complaint. Pursuant to § 4002, judgments disposing of some of the counts of a complaint are final if such judgments dispose of counts that are directed against a party against whom no relief is sought in the remaining counts. This provision, however, is limited by its terms to actions in which judgment on fewer than all of the counts has been rendered by rulings on motions to strike, motions for summary judgment or motions to dismiss. See Practice Book § 4002 (b) and (c).” C & P Excavating Contractors, Inc. v. Ardmare Construction Co., 37 Conn. App. 222, 225-26, 655 A.2d 278 (1995). The rules of practice do not address the present situation where a partial judgment has been rendered upon a default of one of the parties.

We considered a similar situation in C & P Excavating Contractors, Inc. v. Ardmare Construction Co., supra, 37 Conn. App. 222, where a partial judgment had been rendered after trial. In considering the application of Practice Book § 4002 to the situation inC&P Excavating, we determined that “[i]t might be argued that the types of judgments set out in § 4002 are merely illustrative of the ways final judgments may be obtained and that the reasons behind the rule apply as well to judgments rendered after trial that dispose of only some of the counts of a complaint. Prior to 1992, § 4002 provided that ‘a judgment disposing of certain of the issues between the parties or of part or all of the issues between some of them in such a manner as to be final but not terminating the litigation, such as a judgment rendered pursuant to subsection (b), (c) or (d) of this rule, may be treated as a final judgment for the purpose of an appeal . . . .’ (Emphasis added.) Subsection (c) provided for appeals from partial judgments, rendered pursuant to motions to strike, to dismiss or for summary judgment, that disposed of counts directed against a party against whom no relief was sought in the remaining counts. In 1992, the ‘such as’ language was deleted from the rule, indicating an intention that the types of judgments listed in subsection (c) are meant to be exclusive.” Id., 226. The court in C&PExcavating concluded that § 4002 did not apply in that case. Id., 226.

We conclude that Practice Book § 4002 does not apply to this situation, and must next consider the two-prong test of finality set forth in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id., 31.

The first prong of Curdo is not implicated in this case. The trial court’s judgment against the Lupis did not terminate a separate and distinct proceeding when it left undecided the claim against the city of Danbury.

The second prong of Curdo “focuses not on the proceeding involved, but on the potential harm to the appellant’s rights.” Id., 33. The trial court’s ruling in the matter involving the Lupis did not so conclude the rights of the plaintiffs that disposition of the remaining cause of action against the city of Danbury cannot affect them. There is no doubt that a judgment against the city of Danbury in the pending action would affect the rights of the plaintiffs. For these reasons, we conclude that the second prong of Curdo is not satisfied. Because there is no final judgment in this case, this court lacks jurisdiction to hear the appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       We note that the rights of the Lupis would also be affected by such a judgment because they are alleged joint tortfeasors with the city of Dan-bury, and a judgment against the city could have an impact on the nature and amount of liability incurred by the Lupis.