text:
    State of Connecticut v. Stanley Thompson
    (2964)
    Hull, Borden and Spallone, Js.

      Argued May 9
    decision released September 3, 1985

      Richard, T. Meehan, Jr., with whom, on the brief, was James J. Ruane, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Borden, J.

The defendant was convicted by a jury of manslaughter in the second degree in violation of General Statutes § 53a-56 (a). In this appeal from that conviction, he raises several claims of error: (1) the partial denial of his pretrial motion to suppress his statements to the police; (2) the denial of his motion for judgment of acquittal and postverdict motions for acquittal and mistrial; (3) error in certain evidentiary rulings; and (4) error in the court’s charge to the jury.

We find no error in the denial of his motions for acquittal. We do find error, however, in the pretrial suppression ruling, and do not reach his other claims because it is not clear that they will arise again on retrial.

We first briefly consider the defendant’s claim, raised in the context of the denial of his motions for judgment of acquittal, that the state did not produce enough evidence to establish his guilt beyond a reasonable doubt, even with his challenged statements to the police. We disagree.

The defendant had babysat for the three year old victim, Michelle Anderson, on the evening before her death, which occurred at the Bridgeport Hospital the following morning. As the defendant accurately states in his brief, the state’s theory was that the child died from injuries secondary to blunt force trauma to her abdomen. There was evidence that the child was not injured prior to being left in the defendant’s care, and was in distress and vomiting when her mother returned. The defendant’s statements indicate that, while in his care, the child fell several times, he had used some force on her, and she had vomited and moaned. The surgeon who operated on the child testified that the blunt force causing the child’s internal injuries was inflicted during the time the child was in the defendant’s care, and that her injuries were inconsistent with accidental trauma such as falling. The cumulative effect of the evidence, together with the reasonable inferences drawn therefrom, was sufficient to justify the verdict. State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984).

We now turn to the claim of the defendant that the court erred in partially denying his suppression motion. The defendant took exception to this ruling and the evidence was later admitted at trial over his objection.

The defendant raises four alternative claims of error with respect to the suppression ruling. He claims: (1) he did not effectively waive his Miranda rights prior to making the statement in question; (2) there were insufficient intervening events between the illegal arrest and his statement to dissipate any taint upon that statement; (3) the oral and written statements were tainted by earlier fifth amendment violations; and (4) there was not probable cause for his arrest. The dis-positive claim is that he did not knowingly and intelligently waive his Miranda rights.

The trial court did not file a written memorandum of decision detailing the facts in support of its conclusion. We may, therefore, look to all of the evidence produced in support of that ruling. State v. Martin, 2 Conn. App. 605, 614, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). That evidence is as follows: In the early morning, Joan Anderson brought her daughter to the Bridgeport Hospital. This child had a history of physical abuse. On this occasion, she had multiple bruises on her lower abdomen and genital area which ultimately led to her death in surgery a few hours later. After the attending physician at the hospital diagnosed the child’s case as one of child abuse and initiated the appropriate referrals for investigation, the mother phoned the defendant at his home in Mount Vernon, New York, at 6 a.m. to notify him of the situation. He immediately traveled to the hospital where he was met by a hospital social worker.

The social worker testified that she interviewed the defendant and he informed her that he babysat for the child for two hours the preceding evening. The defendant is the father of Joan Anderson’s other child and he occasionally babysat while Anderson attended night school. He related to the social worker that the child fell off a chair and vomited during this period of time. The social worker notified Detective Paul Bogardis of the Bridgeport police department that the defendant was present in her office. Bogardis went to the hospital with Detective Leo Krusinski to interview the defendant.

Upon meeting the defendant at the hospital, the two detectives requested that he accompany them to the police department and he agreed. He was questioned by Bogardis from his arrival at headquarters at 9 a.m. until 1 p.m. Bogardis began taking a written statement at 11:05 a.m. and, in the midst of this process, he received a phone call from the hospital reporting the child’s death at 11:15 a.m. He pursued the interrogation after receiving this call and completed the statement at 1 p.m. The trial court suppressed this statement because no Miranda warnings had been given.

Bogardis testified that he completed the arrest report indicating the arresting officers as “Captain Fabrizi, et al.,” meaning that Captain Anthony Fabrizi, Lieutenant Frank Nerkowski and he had participated in the arrest. The time of arrest indicated is 2 p.m. Fabrizi testified that after Bogardis completed his interrogation, he confronted the defendant and informed him that he was lying. This confrontation occurred in a small interrogation room. Fabrizi then arranged for a psychological stress evaluator (PSE) test and obtained the defendant's signature on a written consent form. The defendant took the test but the machinery malfunctioned. Nevertheless, Fabrizi confronted the defendant with purported test “results” which he told the defendant proved that the defendant was lying. At this juncture, the defendant admitted that during the time he was babysitting, he slapped the child and she fell, hitting her head on the door jamb. He also admitted forcibly placing her on the toilet several times because she soiled herself and would not stay on the toilet. Fabrizi concluded that he had probable cause to arrest the defendant and placed him under arrest at 2 p.m. The court suppressed “any questions and answers which may have been elicited on the psychological stress evaluator test” because of the lack of Miranda warnings. The parties understood this order to include statements made to Fabrizi during the course of his interrogation.

Fabrizi testified that upon receiving these admissions from the defendant, he obtained the defendant's verbal consent to give a "written statement. He thereupon turned the defendant over to Nerkowski for the purpose of taking the statement. According to Fabrizi, Nerkowski was probably present when the defendant made these admissions to him.

Nerkowski testified that he was assigned to take a statement from the defendant. He first obtained a report from Bogardis in the presence of the defendant with respect to prior statements made. He then took the defendant into an interrogation room and read him the Miranda warnings from a card. This was the first time that the Miranda warnings were given by any of the three arresting officers. After reading the rights, Nerkowski obtained the defendant’s signature on a “Notification of Rights” form. This form was referred to by Nerkowski in court as a “waiver.” Nerkowski testified that the city of Bridgeport has since obtained a new form which specifically includes a notice regarding waiver of rights. With regard to the form used, he testified: “This is a notification of rights form. It’s called a waiver. Mr. Thompson signed it and I witnessed it.” When the defendant signed this form, Nerkowski understood that he was waiving his constitutional rights. After the defendant acknowledged that he understood each of his rights, and after he signed the notification form, there was no further discussion of rights or waiver of rights.

Nerkowski then proceeded to engage the defendant in an interview which lasted approximately one half hour. The substance of this interview was then incorporated into a written statement typed by Nerkowski in a question and answer format. Preparation of this written statement consumed approximately forty minutes. After the document was typed, the defendant read it, deleted a portion of a sentence and signed it. Incorporated in this statement is the question: “Are you making this statement voluntarily and of your own free will?” and the defendant’s answer: “yes.”

The defendant also testified at the suppression hearing. Cf. State v. Pellegrino, 194 Conn. 279, 289 n.17, 480 A.2d 537 (1984) (potentially relevant evidence regarding waiver lacking due to defendant’s failure to testify). He was born, raised and educated to age sixteen in Jamaica. The record of his testimony indicates numerous instances of either his inability to understand questioning or the attorneys’ and court’s inability to understand his responses. When presented with his written statement and the notification of rights form, he demonstrated his ability to read. On cross-examination, he admitted signing the written statement after it was completed and indicated that it was done voluntarily. The testimony of all of the witnesses, including the defendant, indicates that he was obedient and fully cooperative throughout the entire period of interrogation.

The court denied the motion to suppress with regard to these oral and written statements of the defendant to Nerkowski. The court found that “the defendant had knowingly and voluntarily waived his rights prior to the giving of that statement. That statement . . . shows that the defendant . . . even corrected part of the statement to show a distinction between how the young child was being placed on the commode. The court finds that he reads well. He understands well and that there was no reason to find that he did not knowingly, voluntarily waive his Fifth Amendment right.” The defendant took an exception to this ruling. The statement was subsequently admitted at trial as a full exhibit and Nerkowski was permitted to read it verbatim to the jury.

The state does not claim that the defendant expressly waived his Miranda rights. The state relies upon the familiar rule established in North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979), that a valid waiver may be inferred from the defendant’s conduct. State v. Zayas, 3 Conn. App. 289, 296-98, 489 A.2d 380 (1985). Our analytical path is illuminated by the United States Supreme Court’s directive that “[t]he courts must presume that a defendant did not waive his rights; the prosecution’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.” North Car olma v. Butler, supra. “ ‘Although the issue is therefore ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence. . . .’ ’’(Citationomitted.)State v. Zayas, supra, 297. “The standard for waiver is that announced in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938): ‘A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege . . . [which] must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ Accord, North Carolina v. Butler, [supra]; State v. Wilson, 183 Conn. 280, 439 A.2d 330 (1981).” State v. Acquin, 187 Conn. 647, 666-67, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983). With these principles in mind, we first examine the trial court’s ruling, the statement ruled admissible and the circumstances surrounding the making of that statement.

In the course of its oral ruling, the court characterized the morning and afternoon interrogations of the defendant as “unconstitutional police conduct.” The court, however, did not excise those portions of the final written statement which were the product of that conduct. Instead, the court found that this statement, viewed apart from prior events, was the product of a knowing and voluntary waiver of the defendant’s Miranda rights. We need not reach the question of whether these prior events rendered the subsequent written statement inadmissible. See Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). We must, however, consider the events preceding the giving of the statement in question as “particular facts and circumstances”; Johnson v. Zerbst, supra; which are relevant to a determination of whether he knowingly and intelligently waived his Miranda rights.

The testimony is clear that Bogardis disclosed his findings to Nerkowski in the defendant’s presence. Fabrizi testified that Nerkowski was “probably” present during Fabrizi’s interrogation when inculpatory statements were made. The final statement taken by Nerkowski specifically includes admissions made by the defendant to the other two officers during prior interrogations. Thus, we do not find a sufficient basis upon which to view the defendant’s conduct with Nerkowski in detached isolation from the day’s prior events, as did the trial court. It is clear that the written statement of the defendant was no more than a continuation of the oral interrogation. “Despite the fact that [Nerkowski] gave warnings at the outset of [his] interview, from [the defendant’s] point of view the warnings came at the end of the interrogation process. In these circumstances an intelligent waiver of constitutional rights cannot be assumed.” Miranda v. Arizona, 384 U.S. 436, 496, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

As we turn to the facts and circumstances surrounding the defendant’s written statement to Nerkowski, we do so with certain well established principles in mind. “[A] valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” North Carolina v. Butler, supra, 373, quoting Miranda v. Arizona, supra, 475. “Waiver is not conclusively established by demonstrating that Miranda warnings were given and understood. . . . Nor is it conclusively rebutted by refusal to sign a form waiving Miranda rights . . . nor by refusal to sign a written statement in the absence of legal counsel.” (Citations omitted.) State v. Zayas, supra, 297, quoting State v. Harris, 188 Conn. 574, 579-80, 452 A.2d 645 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983).

Applying these principles, we note that the defendant was given Miranda warnings which he said he understood. Nerkowski then employed a form entitled “Notification Of Rights” which nowhere suggests the possibility of waiver of those rights. The defendant signed this notification form after reading it and the statement process began immediately without any further discussion of waiver of rights. Nerkowski interviewed the defendant for one half hour during which the defendant made the statements which were then reduced to writing. The actual writing of the statement consumed an additional forty minutes. At the very end of this process, the defendant read and signed the document after deleting a phrase. The court found that “the defendant knowingly and voluntarily waived his rights prior to the giving of that statement.” We are unable to agree with that conclusion on the basis of this record.

When searching the record for evidence that the defendant waived his rights prior to giving the statement, we look in the first instance to that point in time after warnings are given but before the statement process begins. See State v. Wilson, supra (after acknowledging he understood his rights, defendant did not expressly waive his rights; nor did police request waiver or use department’s waiver form). Here, the defendant acknowledged that he understood his rights. Nerkowski, however, never asked if he waived those rights. Instead, Nerkowski relied exclusively upon the rights notification form which he understood to be a waiver. The record is devoid of any evidence that the defendant understood his signature on the notification form represented his “intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, supra, 469; State v. Acquin, supra, 666-67. Nor does this record disclose evidence of an “affirmative act” of waiver after warnings were read by Nerkowski. Cf. State v. Harris, supra, 580. The most that we can find is the silence of the defendant, which cannot be the sole basis of a finding of waiver. State v. Wilson, supra, 284.

Our analysis also includes factors which “traditionally cast doubt upon a finding of knowing and voluntary waiver: e.g., that the interrogation was lengthy or preceded by an incommunicado interrogation; Miranda v. Arizona, supra, 476; that the defendant lacked education; Davis v. North Carolina, 384 U.S. 737, 742, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966); that the defendant exhibited weakness of will or mind; Fikes v. Alabama, 352 U.S. 191, 196-97, 77 S. Ct. 281, 1 L. Ed. 2d 246, reh. denied, 352 U.S. 1019, 77 S. Ct. 553, 1 L. Ed. 2d 561 (1957); or that there were hostilities incident to the defendant’s arrest or custodial interrogation. McDonald v. Lucas, 677 F. 2d 518, 519 (5th Cir. 1982).” State v. Harris, supra, 581-82.

We note in particular the defendant’s difficulties communicating with counsel and the court and his foreign cultural background as suggestive of a lack of true understanding of the significance of his conduct while with Lieutenant Nerkowski. In addition, there is no indication that he was at all familiar with interrogation procedures. Cf. State v. Frazier, 185 Conn. 211, 226, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982).

The present case is clearly distinguishable from those cases where an otherwise valid waiver form was employed and either signed; id., 225; State v. Derrico, 181 Conn. 151, 169, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); or rejected; State v. Harris, supra, 578; by the accused. In those cases, evidence of the mere presence of such a document notifying the accused of the possibility of waiver provided a basis upon which to infer a knowing and intelligent waiver by subsequent conduct. Here, however, the absence of such evidence leaves a void which we are unable to fill. State v. Wilson, supra, 287.

Finally, we disagree with the trial court that the defendant’s eventual correction and signing of the final written statement can suffice as substantial evidence of a valid waiver. Certainly, such evidence cannot be considered as proof of a waiver prior to making the statement. Based upon Nerkowski’s testimony, the actual “statement” made by the defendant occurred during the half hour oral interview. The subsequent reduction of the statement to written form merely constituted a memorialization of this preceding conversation. Thus, there is simply no logical basis upon which to infer from either the defendant’s ability to read this statement, his signature or his correction of it that he fully and validly waived his constitutional rights prior to making it. A valid waiver “will not be presumed . . . simply from the fact that a confession was in fact eventually obtained.” North Carolina v. Butler, supra, quoting Miranda v. Arizona, supra, 475.

On the bases of all of the “particular facts and circumstances surrounding [the] case”; Johnson v. Zerbst, supra; we conclude that “[h]ere, as in Tague v. Louisiana, [444 U.S. 469, 471, 100 S. Ct. 652, 62 L. Ed. 2d 622 (1980)], ‘no evidence at all was introduced to prove that [the defendant] knowingly and intelligently waived his rights before making the inculpatory statement. The statement was therefore inadmissible.’ ” (Emphasis added.) State v. Wilson, supra.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other judges concurred.

       Although we decide that there was sufficient evidence to convict the defendant with his statements, and although we also decide that his statements should have been suppressed, we do not speculate as to whether there was sufficient evidence to convict without those statements. This issue has not been briefed and argued. Furthermore, in fairness the state should on retrial be afforded an opportunity to fill this evidentiary gap, which it had no notice or opportunity to confront until this time.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       At oral argument, the state argued those statements should be deemed admissible because the defendant was not in custody. Oregon v. Mathiason, 429 U.S. 492, 495-99, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977); State v. Ostroski, 186 Conn. 287, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982). The state, however, did not seek to present this issue as an alternate ground upon which to sustain the judgment by filing a statement pursuant to Practice Book § 3012 (a). Because this is a factual determination within the province of the trial court, which was not properly preserved, we decline to review this claim in this appeal. State v. Martin, 2 Conn. App. 605, 614, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985).

       We recognize that questions of credibility and “the version of the facts advanced by the defendant” are matters within the province of the trier of fact. State v. Perry, 195 Conn. 505, 516,488 A.2d 1256 (1985). We therefore set forth only those uncontroverted aspects of the defendant’s testimony which are essential to a full understanding of the waiver issue. See id., n.8. In such matters, the trial court’s “discretion must be ‘exercised in accordance with constitutional standards of due process.’ ” State v. Acquin, 187 Conn. 647, 677, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983), quoting State v. Derrico, 181 Conn. 151, 162-63, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    Seven Fifty Main Street Associates Limited Partnership v. Howard Spector
    (2178)
    Dupont, C. J., Hull and Landau, Js.
    Argued May 11
    decision released September 3, 1985

      Barry D. Greene, with whom were Glenn T. Terk and, on the brief, Marvin S. Bloom, for the appellant (defendant).

      David M. Roth, for the appellee (plaintiff).
   Landau, J.

The plaintiff, Seven Fifty Main Street Associates Limited Partnership, brought a summary process action against the defendant, Howard Spector, doing business as Gilbert Lane Personnel Service, also known as Gilbert Lane Personnel Agency, Inc., to recover possession of commercial premises. The lease governing the parties was for a term of sixty months, running from July 1,1977, to June 30,1982. The plaintiff served a notice to quit upon the defendant on or about July 1,1982, and then instituted a summary process action, claiming that the tenancy of the defendant had terminated by lapse of time upon the expiration of the written lease. By way of special defenses, the defendant contended that the lease had been extended or, alternatively, that equitable considerations should permit an extension or renewal of the lease.

The trial court made the following findings: That paragraph thirty of the lease, which provided that the “[tjenant shall have the right to renew this lease for one additional (5)-five year period at the same rate,” was a covenant to renew rather than an agreement to extend the lease, and, as such, required an affirmative act by the defendant to exercise his right to renew; that actions taken by the defendant had not effectively renewed the lease; and that equitable considerations did not dictate a judgment in the defendant’s favor. The defendant appeals from the judgment of possession rendered by the trial court.

“The question of whether a lease grants a covenant to renew or an agreement to extend is a question of intent. ... If the language of the lease is clear and definite, however, the intention of the parties must be gathered from the instrument itself.” Nowesco, Inc. v. Community Petroleum Products, Inc., 38 Conn. Sup. 585, 587-88, 456 A.2d 340 (1982). Although paragraph thirty of the lease speaks in terms of a “right to renew,” such language, in and of itself, is not conclusive. Blanck v. Kimland Realty Co., 122 Conn. 317, 319, 189 A. 176 (1937); Johnson v. Mary Oliver Candy Shops, Inc., 116 Conn. 86, 89, 163 A. 606 (1933); Ackerman v. Loforese, 111 Conn. 700, 704, 151 A. 159 (1930). Paragraph twenty of the lease, however, provides in pertinent part that “[i]n the event that the Tenant shall remain in the demised premises after the expiration of the term of this lease without having executed a new written lease with the Landlord, such holding over shall not constitute a renewal or extension of this lease.”

The lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible. Central New Haven Development Corporation v. LaCrepe, Inc., 177 Conn. 212, 214, 413 A.2d 840 (1979). Under paragraph twenty, a mere holding over would not constitute an extension of the lease.

The lower court did not err in finding that paragraph thirty was a covenant to renew rather than an agreement to extend the lease. As such, an affirmative act on the part of the defendant was necessary to exercise his right to renew. Nowesco, Inc. v. Community Petroleum Products, Inc., supra, 587.

The defendant also claims as error the trial court’s conclusion that he had failed to renew the lease. The trial court found that the defendant orally notified the plaintiff in late December, 1979, or early January, 1980, of his intention to renew the lease. The trial court further found that the defendant mailed a letter to the plaintiff on December 16, 1981, by ordinary mail, informing the plaintiff that he would exercise his right to renew, but that the plaintiff never received the letter. In addition, the trial court found that the defendant had telephoned the plaintiff’s building manager on June 30,1982, after receiving a notice to quit, and had informed her of his desire to renew the lease.

Issues of fact are solely within the province of the trier of fact to decide. Maresca v. Allen, 181 Conn. 521, 523, 436 A.2d 14 (1980). This court will not disturb the factual findings of the trial court as long as the evidence supports those findings.

Paragraph eighteen of the lease provided that “[ajll notices and demands, legal or otherwise, incidental to this lease, or the occupation of the demised premises, shall be in writing.” Paragraph eighteen also provided that “[njotices from the Tenant to the Landlord shall be sent by registered mail or delivered to the Landlord at the place herein before designated for the payment of rent, or to such party or place as the Landlord may from time to time designate in writing.” The trial court held that paragraphs eighteen and thirty of the lease required the defendant to give written notice to the landlord prior to the expiration date of the lease in order effectively to renew it, and that the written notice, if sent by mail, was required to be sent by registered mail. The trial court further found that the actions taken by the defendants did not satisfy the requirements of paragraph eighteen. We agree.

“It is always competent for parties to contract as to how notice shall be given . . . .” Westmoreland v. General Accident Fire & Life Assurance Corporation, Ltd., 144 Conn. 265, 270, 129 A.2d 623 (1967). The parties agreed, in paragraph eighteen of the lease, that notices and demands incidental to the lease should be in writing, and, if mailed, such notices and demands should be sent by registered mail. The trial court did not err in concluding that the defendant’s actions were ineffective in renewing the lease.

The defendant also assigns as error the trial court’s finding that equitable considerations did not dictate a judgment in the defendant’s favor. Equitable relief is extraordinary and not available as a matter of right, but rather it is within the discretion of the court. See Bendell v. Johnson, 153 Conn. 48, 51, 212 A.2d 199 (1965). In reviewing claims that the trial court abused its discretion, great weight is due to the trial court and every reasonable presumption should be given in favor of its correctness. Rokus v. Bridgeport, 191 Conn. 62, 72, 463 A.2d 252 (1983). The ultimate issue is whether the court could reasonably conclude as it did. Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979).

The rule regarding equitable relief from the forfeiture of a lease is that “in cases of wilful or gross negligence in failing to fulfil a condition precedent of a lease, equity will never relieve. But in case of mere neglect in fulfilling a condition precedent of a lease, which does not fall within accident or mistake, equity will relieve when the delay has been slight, the loss to the lessor small, and when not to grant relief would result in such hardship to the tenant as to make it unconscionable to enforce literally the condition precedent of the lease.” Fountain Co. v. Stein, 97 Conn. 619, 626-27, 118 A. 47 (1922); see also R & R of Connecticut, Inc. v. Stiegler, 4 Conn. App. 240, 493 A.2d 293 (1985).

The trial court found that the defendant’s action with respect to renewing the lease did not constitute “wilful or gross negligence.” This factual finding will not be disturbed on appeal. See Maresca v. Allen, supra. The trial court further found that a denial of the tenant’s right to renew the existing lease would result in a loss to the tenant of an extremely advantageous rent, far below the current fair market value, but that there was no evidence that it would cause him to pay more than the current fair rate for the same or similar premises. The court also found that there was not evidence of any shortage of other suitable commercial space readily available in the area into which the defendant could move. By contrast, the court found that the rent provided in the lease, about $5 per square foot, no longer covered the plaintiffs expenses, and that the present fair market value was about $19 per square foot.

“Equity may intervene where the delay has been slight and the loss to the lessor small in order to avoid a substantial hardship upon the tenant.” Danpar Associates v. Falkha, 37 Conn. Sup. 820, 823, 438 A.2d 1209 (1981). The trial court concluded that if equity were to overrule the forfeiture, the loss to the lessor would not be small, nor would the hardship on the tenant be unconscionable. See Fountain Co. v. Stein, supra. The defendant agues, on the basis of the law of other jurisdictions, that the court erred in considering the rental rate in determining the extent of the loss which would be suffered by the plaintiff. This court need not consider this claim by the defendant, because even if the trial court’s consideration of the rental rate was error, it was harmless, since the trial court found that there was no evidence of “such hardship to the tenant as to make it unconscionable to enforce literally the condition precedent of the lease.” Fountain Co. v. Stein, supra, 627. The trial court did not abuse its discretion in refusing to allow equity to overrule the forfeiture of the lease.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Appellate Session of the Superior Court, was transferred to this court. General Statutes § 51-197a (c).


author: Jacobson, J.

text:
    Gloria Geer et al. v. First National Supermarkets, Inc.
    (3081)
    Spallone, Daly and Jacobson, Js.

      Argued May 2
    decision released September 10, 1985

      Bonn A. Swift, for the appellant (defendant).

      Paul E. Pollock, with whom was Peter Kent, for the appellees (plaintiffs).
   Jacobson, J.

The defendant is appealing from a jury verdict in favor of the plaintiffs.

The defendant claims that the trial court erred (1) in allowing expert testimony with regard to permanent injuries where the witness lacked sufficient knowledge of the named plaintiff to reach a reasonable opinion, (2) in not instructing the jury that the named plaintiff had a duty to mitigate her damages by seeking reasonable medical care, (3) in refusing to instruct the jury on the proper law regarding prior falls at the scene of the accident, and (4) in refusing to instruct the jury to disregard the arguments of the plaintiffs’ attorney concerning prior falls.

The plaintiff wife brought an action in negligence for injuries she sustained from a fall in a supermarket owned by the defendant. The plaintiff husband sought damages for loss of consortium and economic loss for medical bills. After a trial to a jury, a plaintiffs’ verdict was returned and judgment rendered for the wife in the amount of $49,000 and for the husband in the amount of $20,000.

The defendant did not move to set aside the verdict.

The failure of the defendant to file a motion to set aside the verdict limits appellate review to the ascertainment of whether there has been “plain error.” Practice Book § 3063; Pietrorazio v. Santopietro, 185 Conn. 510, 513-14, 441 A.2d 163 (1981); Rozbicki v. Pelletier, 2 Conn. App. 87, 88, 476 A.2d 1069 (1984).

The first issue raised by the defendant concerns the qualifications of a doctor the plaintiffs utilized as a medical expert to testify as to the plaintiff wife’s injuries. The defendant claims that the testimony of Patrick D. Carolan, an orthopedic surgeon, should not have been admitted since Carolan did not examine the plaintiff wife or her records prior to the fall, and that, because the plaintiff wife suffered from a pre-existing condition of arthritis and had a history of lupus, which contributed to her medical condition, it was not possible for Carolan to have a proper basis from which to reach an opinion. Thus, the defendant reasons, the testimony of Carolan concerning the plaintiff wife’s medical condition should be ruled inadmissible. We disagree. The defendant’s objection goes more to the weight to be given the doctor’s testimony rather than to its admissibility.

“Whether a witness is qualified to testify as an expert with respect to a certain matter is a decision to be made by the trial court. . . . That decision will not be disturbed on appeal unless there has been an abuse of discretion or there was a clear error involving a misconception of the law. ... It is rare for this court to find that a trial court has erred in a ruling permitting expert testimony. . . . Once the trial court has determined that the witness has reasonable qualifications to testify as an expert on the question presented, the objection goes to the weight rather than the admissibility of the testimony.” (Citations omitted.) McKiernan v. Caldor, Inc., 183 Conn. 164, 167-68, 438 A.2d 865 (1981); see also Spoto v. Hayward Mfg. Co., 2 Conn. App. 663, 669-70, 482 A.2d 91 (1984). Accordingly, we find no error in allowing the plaintiffs’ expert to testify.

The defendant also appeals the court’s decision not to instruct the jury on the duty of the plaintiff wife to mitigate damages. The defendant argues that the plaintiff wife’s decision not to pursue a treatment plan advised by the defendant’s medical expert was evidence of her failure to use reasonable care to mitigate her damages. Where one has been injured and fails to promote recovery as a reasonably prudent person, the trial court is obliged to charge on the issue of mitigation. Jancura v. Szwed, 176 Conn. 285, 288, 407 A.2d 961 (1978). We agree with the trial court’s conclusions that it was not unreasonable for the plaintiff wife to follow the treatment recommendations of her own doctor and that her actions were those of a reasonably prudent person. The trial court’s decision not to charge the jury on the duty to mitigate does not constitute plain error.

The defendant’s final issues on appeal go to the trial court’s refusal to instruct the jury on the law of prior falls and to disregard comments made by the plaintiffs’ attorney regarding prior falls. The defendant claims comments made by opposing counsel during closing argument required such a charge. This the court refused to do, overruling the defendant’s objections. The trial court is vested with a large discretion over matters occurring in the conduct of the trial. While this is a judicial discretion and therefore subject to some degree of review and control, its exercise will not be interfered with unless it has been clearly abused to the manifest injury of a litigant. Wooster v. Wm. C.A. Fischer Plumbing & Heating Co., 153 Conn. 700, 702, 220 A.2d 449 (1966). “The trial judge . . . is in a better position to sense the atmosphere of the trial and therefore can apprehend far better than we can the effect of certain remarks on the jury.” Pisel v. Stamford Hospital, 180 Conn. 314, 322, 430 A.2d 1 (1980).

In overruling the defendant’s objection, the trial court stated a corrective remark would distort the jury’s impression of prior falls. We find that the court did not abuse its discretion in refusing to give the required instructions and its decision does not constitute plain error necessitating a new trial. We note that the defendant’s request for corrective charges was not in writing as mandated by Practice Book § 315 and that the defendant failed to take any exception to the charge at its conclusion. See Deedy v. Marsden, 172 Conn. 568, 570, 375 A.2d 1032 (1970). The defendant cannot be silent at the close of a charge and then appeal because of inadequacies in the charge following an unfavorable verdict. Gigliotti v. United Illuminating Co., 151 Conn. 114, 121, 193 A.2d 718 (1963).

There is no error.

In this opinion the other judges concurred.


author: Daly, J.

text:
    Peter P. Ryiz v. Federal Insurance Company
    (3251)
    Dupont, C. J., Borden and Daly, Js.

      Argued June 13
    decision released September 10, 1985

      David A. Piskorski, for the appellant (plaintiff).

      Theodore J. Tucci, with whom, on the brief, were John E. Tener and Marc Rigrodsky, for the appellee (defendant).
   Daly, J.

The plaintiff instituted this action against the defendant, claiming that an extended coverage provision of his fire insurance policy issued by the defendant covered certain losses sustained by him. From a judgment rendered in favor of the defendant, the plaintiff has appealed.

The parties stipulated to certain facts. On August 25, 1976, the defendant issued to the plaintiff a policy insuring his dental office located on the second floor of 24 North Main Street in Southington. As of February 20, 1980, the policy coverage was increased from $100,000 to $150,000 for professional and personal property. The policy provided for extended coverage. On August 22, 1980, the plaintiffs office was destroyed by fire.

On August 1,1979, the plaintiff acquired office space leasing the entire second floor of the building known as 20-26 North Main Street in Southington. During the fall of 1979 and through February of 1980, the plaintiff expanded his office in the area leased. Thereafter, on or about July 1, 1980, the plaintiff began a second expansion of his office. The plaintiff purchased office equipment and furniture at a cost of $34,352.29 between July 1, 1980, and August 21, 1980, and continued the building improvements during that period.

The plaintiff did not pay any additional premiums for the building improvements, office equipment or furniture when it was acquired or purchased, or pay any premium to cover such property at any time thereafter. The defendant did not bill or send an additional premium statement concerning the improvements at any time to the plaintiff. The defendant’s agent took no action which would have led the plaintiff to reasonably believe that his newly acquired equipment and furniture was covered under the terms of the existing policy. The defendant’s agent was not informed by the plaintiff of the specific extent of the expansion of the plaintiff’s office which commenced on or about July 1,1980, until the time of the loss. The plaintiff’s secretary, Sally Diaz, wrote a letter to the adjuster, pursuant to his request, informing him that she was unable to adjust the coverage to protect the additional equipment and improvements prior to August 22, 1980. The plaintiff did not notify the defendant that he desired increased coverage under the policy for newly acquired property and equipment with respect to the equipment and improvements commencing July 1,1980, until the date of the loss.

The pertinent terms of the policy are:

“I. personal and professional property. Coverage under this dentist’s insurance schedule is extended to include: Newly acquired property for a period of 90 days following date of acquisition or until more specific insurance has been placed (whichever occurs first), subject to the following limits of liability and all other forms and conditions. $25,000 on personal and professional property at newly acquired locations owned, leased or controlled by the insured. If newly acquired property is to be covered under this insurance, additional premium shall be payable from the date of acquisition.”

The question before the trial court was whether the plaintiff could recover under the extended coverage provisions of the policy for the office equipment and furniture purchases and building improvements made between July 1,1980, and August 21,1980, which was the day before the fire. The trial court found that the existence of the property at a “newly acquired location” was a condition precedent to recovery by the plaintiff, that the ninety day limitation on coverage of “newly acquired property” also applied to define the period of a “newly acquired location,” and that the plaintiff’s failure to comply with the condition precedent barred him from recovery.

On appeal, the plaintiff has challenged the trial court’s conclusion that a “newly acquired location” as defined by the trial court is a condition precedent to recovery.

An insurance policy is a contract and the risks covered by the policy are determined by the intention of the parties as manifested in the contract. A person bargains for a certain protection when taking out insurance, and the insurer, for a consideration, agrees to furnish that protection. Fogarty v. Fidelity & Casualty Co., 120 Conn. 296, 302-303, 180 A. 458 (1935). The insurer is bound by the express terms of its contract, but liability beyond these terms is not to be extended by implication. Miller Brothers Construction Co. v. Maryland Casualty Co., 113 Conn. 504, 513, 155 A. 709 (1931). The general rules of contract construction govern when the terms of an insurance policy are to be construed. When the terms are clear and unambiguous, then the language must be accorded its natural and ordinary meaning. Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 512-13, 442 A.2d 920 (1982); Weingarten v. Allstate Ins. Co., 169 Conn. 502, 509-510, 363 A.2d 1055 (1975).

“A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings. ... A policy is to be taken as a whole, and all its relevant provisions considered in connection with each other. . . . Every provision is to be given effect, if possible, and no word or clause eliminated as meaningless, or disregarded as inoperative, if any reasonable meaning consistent with the other parts of the policy can be given to it.” (Citations omitted.) Downs v. National Casualty Co., 146 Conn. 490, 494-95, 152 A.2d 316 (1959); Marcolini v. Allstate Ins. Co., 160 Conn. 280, 283-84, 278 A.2d 796 (1971); A. M. Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 622, 220 A.2d 32 (1966).

“It is a basic principle of insurance law that policy language will be construed as laymen would understand it and not according to the interpretation of sophisticated underwriters, and that ambiguities in contract documents are resolved against the party responsible for its drafting; the policyholder’s expectations should be protected as long as they are objectively reasonable from the layman’s point of view.” Cody v. Remington Electric Shavers, 179 Conn. 494, 497, 427 A.2d 810 (1980).

A reading of the pertinent extended coverage provision in this case indicates that it applies to “[n]ewly acquired property for a period of 90 days . . . subject to the following limits of liability and all other forms and conditions. ” (Emphasis added.) “Subject” means “likely to be conditioned, affected, or modified in some indicated way: having a contingent relation to something . . . .” Webster, Third New International Dictionary.

“Whether a proviso constitutes a condition precedent, a condition subsequent, or simply a covenant is to be determined with reference to the intent of the parties in light of the terminology as a whole and surrounding circumstances.” Simses v. North American Co. for Life & Health Ins., 175 Conn. 77, 86, 394 A.2d 710 (1978). “A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. ... If the condition is not fulfilled, the right to enforce the contract does not come into existence.” (Citations omitted.)Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951); Brauer v. Freccia, 159 Conn. 289, 293, 268 A.2d 645 (1970).

It is clear and unambiguous that there is a limit of $25,000 on newly acquired property, contingent upon it being at a newly acquired location owned, leased or controlled by the insured. The defendant had already issued a basic fire insurance policy for $100,000 which had been increased by the plaintiff earlier in the year to $150,000. There was no reason for the plaintiff to believe that the defendant would be assuming an additional, open-ended liability commitment. The actions of the plaintiffs secretary indicated an awareness of the situation and an inability to adjust the coverage to protect the additional equipment and improvements prior to the date of the fire.

We agree with the trial court that the plaintiff intended to receive, and the defendant intended to afford him, a defined coverage against liability for fire damage or destruction of property of the plaintiff at 24 North Main Street, Southington, and coverage of newly acquired property for ninety days at a newly acquired location. The coverage claimed by the plaintiff was not within the express terms of the policy.

There is no error.

In this opinion the other judges concurred.

       This appeal only involves the extended coverage provisions since the defendant has paid the plaintiff $150,000 as its full obligation under the basic fire insurance policy.


author: Stoughton, J.

text:
    Sondra Levy v. Mark Levy
    (3237)
    Spallone, Daly and Stoughton, Js.
    Argued June 14
    decision released September 10, 1985

      Wesley W. Horton, with whom were Susan M. Cormier and, on the brief, Richard L. Goldblatt, for the appellant (plaintiff).

      James R. Greenfield, for the appellee (defendant).
   Stoughton, J.

The plaintiff has appealed from the financial orders incident to a judgment dissolving her marriage to the defendant. The only issue in this appeal is whether the trial court abused its discretion in entering those orders. Specifically, the court ordered that the plaintiff be permitted to live rent free in a condominium owned by the defendant for a period of three months ending on August 1,1984; that she be awarded the entire contents of that condominium, including furniture, furnishings and works of art or decoration; that she surrender to the defendant a Mercedes automobile which the defendant had permitted her to use; and that the defendant pay the plaintiff lump sum alimony of $15,000, out of which she was to purchase an automobile and pay counsel fees. The court also awarded the plaintiff periodic alimony of $600 per week, nonmodifiable, for three years, unless she remarried or cohabited with another male before the expiration of that period.

The trial court found the following facts: The length of the parties’ marriage was a few months over six years. There were no children of the marriage. The plaintiff, who was employed by a car rental agency when she met the defendant, contributed no tangible property to their combined estate. Her only contribution to the assets of the marriage was the time she spent as purchasing agent for the defendant’s fire extinguisher company. She was an employee of the company for five or six years, first as a clerical worker and later as its purchasing agent. She also assisted with company business on some of the business trips the parties made together. She drew a substantial salary, but the actual value of her services to the continuing financial success of the business was somewhat doubtful.

The trial court attributed the cause of the breakdown of the marriage largely to the fast lifestyle which both parties enjoyed. It found that neither party was totally at fault, although the elements of fault weighed to some extent against the plaintiff. At the time of trial, the plaintiff was thirty-three years old and the defendant was thirty-six. Each was in good health, attractive and college-educated. The plaintiff’s financial affidavit showed weekly gross wages of $437.80, and net wages of $338.30. This salary was paid by the defendant’s company, although the plaintiff was not at that time doing any work. In addition, the defendant was paying the plaintiff $362 per week as temporary alimony, thus providing her with a total weekly income of $700.30. The defendant’s gross wages were $3000 per week and his net wages came to $1751.30 per week. His affidavit showed assets which he valued at about $10,000,000, of which $9,000,000 represented the value of his company. His liabilities totalled $194,000.

Since the separation, the plaintiff had continued an extravagant way of life on the payments made to her by the defendant. She listed weekly expenses of $1781.87, despite the fact that she had the free use of the defendant’s condominium, on which the defendant paid the mortgage, condominium fees, and utilities, and a Mercedes which the defendant rented for her at a cost of almost $1000 per month. The court found that all of these payments by the defendant to or on behalf of the plaintiff during the pendency of this action amounted to about $75,000 per year, and that in addition she had received approximately $50,000 in furs and jewelry as gifts from the defendant during their relationship. Her affidavit listed $3000 in a checking account and shares of stock valued at $7816. The furniture, furnishings and other items which were awarded to her were valued on her affidavit at $50,000. Although the trial court made no specific findings as to the increase in value of the defendant’s fire extinguisher company over the years, the parties agreed that the fair market value of the business increased from $1,000,000 in 1977 to $6,000,000 or $7,000,000 in 1982, and to $9,000,000 in 1984.

The plaintiff argues on appeal that the division of property was totally unjustified, given the trial court’s finding that she “undoubtedly is entitled to claim credit for a modest contribution to the value of the business,” and its findings as to the remaining statutory criteria. She claims that the orders constituted an abuse of discretion.

“In fixing the nature and value of the property assigned, and in determining whether alimony shall be awarded, and the duration and amount of the award, the court shall consider the length of the marriage, the causes for the dissolution of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties. General Statutes §§ 46b-81 (c), 46b-82; McPhee v. McPhee, 186 Conn. 167, 170-71, 440 A.2d 274 (1982).” Szilagyi v. Szilagyi, 3 Conn. App. 25, 28, 484 A.2d 469 (1984). The memorandum of decision reveals that the trial court weighed the factors set forth in those statutes in arriving at the property division and the duration and amount of alimony.

“We must read the language of the trial court in the context of its entire memorandum of decision, declining to find reversible error solely because of what may be an inappropriate choice of words. Coe-Park Donuts, Inc. v. Robertshaw Controls Co., 1 Conn. App. 84, 87-89, 468 A.2d 292 (1983).” Fisher v. Fisher, 4 Conn. App. 97, 100, 492 A.2d 525 (1985). It is clear from the memorandum of decision that the trial court concluded that the plaintiff contributed little to her comparatively brief relationship with the defendant and that the value of her contribution to the increasing success of his business was slight indeed. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts.” McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982); Gallo v. Gallo, 184 Conn. 36, 50, 440 A.2d 782 (1981); Szilagyi v. Szilagyi, supra. In this case we cannot conclude that the trial court abused its discretion or that its findings had no reasonable basis in the facts.

There is no error.

In this opinion the other judges concurred.


author: Cioffi, J.

text:
    Tennessee Gas Pipeline Company v. Avon Fish & Game Club, Inc., et al.
    (2893)
    Borden, Daly and Cioffi, Js.
    Argued May 17
    decision released September 10, 1985

      Thomas W. Mochnick, with whom, on the brief, was F. Timothy McNamara, for the appellant (plaintiff).

      Jack Rubin, with whom was John D. Liberator, for the appellees (defendants).
   Cioffi, J.

This appeal arises out of the taking of an interest in the defendants’ land by the plaintiff pursuant to its power of eminent domain. See General Statutes § 16-263. Pursuant to General Statutes § 16-266, the court, Bernstein, J., appointed a committee of three for the determination of condemnation damages. After a hearing, the committee issued its original report.

The plaintiff filed an exception to the original report, requesting that it be rejected because it was based upon mathematical and conceptual errors. Specifically, the plaintiff claimed that the committee erred (1) by including a pre-existing easement in the pre-taking valuation and excluding it from the after-taking valuation, (2) by assigning a specific damage award to the easement, and (3) by incorrectly calculating the total easement acreage. The court, Dwpont, J., pursuant to Practice Book § 443, overruled the plaintiff’s exceptions, ruled that the committee had sufficient evidence to determine a pre-taking value, but returned the report to the committee for consideration of the claimed mathematical errors, including any error in its inclusion in damages of the value of a pre-existing easement. The committee thereafter filed an amended report.

The plaintiff filed its objection to acceptance of the amended committee report, claiming that there was an insufficient factual basis for the committee’s conclusion as to the value of the condemned land and that the court lacked authority to return the report to the same committee for consideration of the mathematical errors. The court, Edelberg, J., rendered judgment accepting the amended report. The plaintiff appeals from that judgment.

The issues presented on appeal are whether the trial court, Dupont, J., violated General Statutes § 16-266 by returning the report to the same committee for reconsideration of claimed mathematical errors, including any error in its inclusion in damages of the value of a preexisting easement, and whether the committee’s conclusion as to the value was supported by the evidence.

The plaintiff first argues that the trial court erred in returning the report to the same committee because the claimed errors were errors of law and, pursuant to General Statutes § 16-266, the court must determine what the law is and whether the committee properly applied it. The plaintiff claims that if the court determines that the committee did not properly apply the law, the court must reject the report for irregular or improper conduct and refer it to a different committee with a mandate as to what law to apply. We disagree.

General Statutes § 16-266, which governs the procedure for determining damages following a taking of property by eminent domain, provides in pertinent part: “[The] court or judge shall appoint a committee of three disinterested persons, who shall be sworn before commencing their duties. Such committee after giving reasonable notice to the parties shall view the property in question, hear the evidence, ascertain the value, assess just damages to the owner or owners of such property and report its doings to said court or judge. Said court or judge may accept such report or may reject it for irregular or improper conduct by such committee in the performance of its duties. If the report is rejected, said court or judge shall appoint another committee, which shall proceed in the same manner as the first committee was required to proceed.”

This statute must be read in conjunction with Practice Book §§ 428 through 445, which govern the procedure in matters referred to committees designated to make reports to the court. Practice Book § 443 provides: “The court shall render such judgment as the law requires upon the facts in the report as it may be corrected. If the court finds that the committee has materially erred in its rulings or that by reason of material corrections in its findings the basis of the report is subverted or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another committee for a new trial or revoke the reference and leave the case to be disposed of in court. . . .” (Emphasis added.)

General Statutes § 16-266 requires the court to appoint a new committee only if the original committee’s report is rejected for irregular or improper conduct by the committee in the performance of its duties. We need not decide in this case the full scope of the meaning of the phrase, “irregular or improper conduct by such committee in the performance of its duties.” It is clear to us, however, that it does not mean, as the defendant urges, simply making errors of law or mathematical computation. Those errors do not require the appointment of a new committee. When the committee has made those errors, the court may reject the report and refer it back to the same committee, as it did here, refer the case to a new committee for a new trial or retain the case for disposition by the court. Practice Book § 443.

In the present case the court rejected the original report of the committee not because the committee engaged in irregular or improper conduct, but because during the course of the performance of its duties the committee erred. Therefore, pursuant to Practice Book § 443, the court was authorized to refer the matter back to the same committee.

Finally, the plaintiff claims that the court erred in concluding that there was sufficient evidence regarding the pre-taking value before the committee. It is the appellant’s burden to provide the court with an adequate appellate record. Accurate Forging Corporation v. UAW Local No. 1017, 189 Conn. 24, 28, 453 A.2d 769 (1983). In the present case, there is no transcript of evidence before this court from which we can evaluate the plaintiff’s claim. See Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 714, 462 A.2d 1037 (1983); Grunschlag v. Ethel Walker School, Inc., 190 Conn. 679, 680, 462 A.2d 1 (1983). We, therefore, have no basis on which to find error on this claim.

There is no error.

In this opinion the other judges concurred.


text:
    Caryn Luddie v. Foremost Insurance Company et al.
    (2582)
    Borden, Spallone and Daly, Js.
    Argued June 12
    decision released September 10, 1985

      Joseph A. Broder, with whom, on the brief, was William F. Magnan, Jr., for the appellant (plaintiff).

      Robert M. Brennan, for the appellees (defendants).
   Daly, J.

This is an appeal by the plaintiff employee from the decision of the compensation review division reversing an award for the plaintiff by the workers’ compensation commissioner. On appeal, the plaintiff claims that the review division erred in concluding that her injury did not arise during the course of her employment.

Both the commissioner and the review division made identical findings of fact. The plaintiff was employed as a field claims adjuster for the named defendant, Foremost Insurance Company, and covered an area consisting of Connecticut, Massachusetts, Rhode Island, New Hampshire and southern Maine, while working out of her home in Marlborough, Connecticut. At approximately 5:30 p.m. on May 29,1981, the plaintiff received a telephone call from a policyholder who had not located a draft in excess of $12,000 which had been mailed to him to cover a fire loss. In response to the call, the plaintiff drove to New London in an automobile provided by the defendant, arriving about 6:30 p.m., and met the insured, a resident of Saugus, Massachusetts. After discussing the draft problem and ascertaining that the insured had no transportation home, the plaintiff agreed to drive him to Hartford where he could make connections for Saugus.

Instead of driving directly to Hartford, they journeyed to the Plainfield dog track and remained there until 11:30 p.m. While en route to Hartford and seeking a restaurant, the plaintiff became lost. When she discovered she was on route 6, the plaintiff decided to return home, get something to eat, take a shower and then deliver the insured to Hartford. On route 6 in Andover, at about 3 a.m., while driving to her home, the plaintiffs vehicle struck a guard rail in attempting to avoid a deer. As a result of the impact, she injured her back.

The commissioner made an award holding that the plaintiff was, at the time of the accident, within the scope of her employment and in furtherance of her employee’s business. The review division held that the plaintiff’s departure from the scope of her duties was so radical and so prolonged that the employment nature of the trip was abandoned long before the injury occurred, and reversed the decision of the commissioner.

The issue before us is whether the review division properly concluded that the plaintiff’s injury was not one “arising out of and in the course of [her] employment” within the meaning of General Statutes § 31-284 and therefore not compensable.

Awards under workers’ compensation law are determined by a two part test. The employee must prove that the injury claimed (1) arose out of the employment, and (2) occurred in the course of employment. McNamara v. Hamden, 176 Conn. 547, 550, 398 A.2d 1161 (1979). “There must be a conjunction of the two requirements, ‘in the course of the employment’ and ‘out of the employment’ to permit compensation. The former relates to the time, place and circumstance of the accident, while the latter refers to the origin and cause of the accident.” Stakonis v. United Advertising Corporation, 110 Conn. 384, 389, 148 A. 334 (1930).

The plaintiff claims that her injury met the requirement that it happen “within the course of employment.” “In order to come within the course of the employment, an injury must occur (a) within the period of the employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it.” McNamara v. Hamden, supra, 550-51.

The immediate question before us is whether the review division’s conclusion that the plaintiff’s injury did not arise out of or occur in the course of employment, when considered on the basis of the subordinate facts, was so unreasonable and illegal as to be an abuse of discretion. The conclusion must stand unless it results “from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979).

The determinative question is whether the plaintiff, at the time of her injury, was engaged in the line of her duty in the business or affairs of her employer. Ohmen v. Adams Brothers, 109 Conn. 378, 385, 146 A. 825 (1929). The general rule is that “[a]n injury sustained on a public highway while going to or from work is ordinarily not compensable.” Dombach v. Olkon Corporation, 163 Conn. 216, 222, 302 A.2d 270 (1972); McKiernan v. New Haven, 151 Conn. 496, 498-99, 199 A.2d 695 (1964). The exceptions to the general rule “arise in situations where the contract of employment itself involves, in its actual performance, or as an incident annexed to it with the knowledge and consent of the employer, the use of the public highways”; id., 499; or that the employer contracts to furnish transportation to or from work. Lake v. Bridgeport, 102 Conn. 337, 343, 128 A. 782 (1925).

In determining whether an unauthorized deviation from the employment is so slight as not to relieve the employer from liability, or of such a character as to constitute a temporary abandonment of the employment, “[t]he true test is analogous to that applied to determine whether a deviation in agency terminates that relationship.” Herbst v. Hat Corporation of America, 130 Conn. 1, 7, 31 A.2d 329 (1943). “[T]he trier must take into account, not only the mere fact of deviation, but its extent and nature relatively to time and place and circumstances, and all the other detailed facts which form a part of and truly characterize the deviation, including often the real intent and purpose of the servant in making it.” Ritchie v. Waller, 63 Conn. 155, 165, 28 A. 29 (1893).

Even if we assume that the plaintiffs meeting with the insured in New London was within the scope of her authority to placate policyholders, the review division’s findings are still devoid of any facts which would support a conclusion that the subsequent junket to the Plainfield dog track was within the scope of her employment, or in any way related to that employment. True v. Longchamps, Inc., 171 Conn. 476, 479, 370 A.2d 1018 (1976). Under the plaintiffs theory, if she had driven her automobile to any point in or out of the state that evening, the moment she started toward Hartford with the intention of bringing the insured to a transportation center, she would have brought herself back into the course of an employment which had long since terminated for the day. Woodley v. Rossi, 152 Conn. 1, 6, 202 A.2d 136 (1964). In taking her course for the purpose intended (to take a shower), the plaintiff was doing nothing incidental to her employment. Her injury did not arise in the course of her employment. We find that the review division did not err in reversing the conclusion of the commissioner.

There is no error.

In this opinion the other judges concurred.

       The other defendant is the Liberty Mutual Insurance Company.

       General Statutes § 31-284 of the Workers’ Compensation Act provides, in pertinent part: “(a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees . . . .”


text:
    Cynthia D. Ammirata v. Michael T. Ammirata
    (3469)
    Borden, Spallone and Daly, Js.
    Argued June 12
    decision released September 10, 1985

      Marcella Gereg, for the appellant (plaintiff).

      Stephen C. Gallagher, with whom, on the brief, was Edward J. Gallagher, for the appellee (defendant).
   Daly, J.

On June 16,1980, a judgment was rendered dissolving the marriage of the parties. The trial court ordered the defendant to transfer to the plaintiff his interest in the parties’ jointly owned residence. The plaintiff was ordered to execute three mortgages secured by the real estate conveyed to her. The first mortgage was to the defendant in the amount of $10,000, and the second mortgage, also in the amount of $10,000, was to the defendant’s mother. The third mortgage is not at issue here. The mortgages were to be paid when the property was sold, which was to occur when, inter alia, the plaintiff died, cohabited with a man in the subject premises, or remarried.

In addition, the defendant was ordered to pay the plaintiff, as unallocated alimony and support, the sum of $11,200 per year. This sum was to be paid until the plaintiff died, remarried, or cohabited with another person. In the event of the plaintiff’s remarriage or cohabitation, the payment was to be reduced to $8000 per year if the children were still minors.

On or about November 8,1983, the defendant moved to modify the judgment, alleging cohabitation by the plaintiff and seeking to have the unallocated alimony and support payment reduced to $8000 per year. After several postponements, the motion appeared on the short calendar on January 10,1984. Counsel are in dispute as to what transpired at the end of that day. Counsel for the defendant claims that the parties reached an agreement on that date and that the court requested it be reduced to writing. Counsel for the plaintiff contends that there were negotiations and that the motion was marked “off” the calendar. The oral stipulation the defendant claims was reached was that alimony payments would be modified as of November 28,1983, and that two new mortgages would be executed providing for payment on September 1, 1984, instead of immediately. The defendant further claims that the court ordered that the stipulation be filed in writing. There is no transcript or other record of these proceedings.

On or about June 22, 1984, the defendant filed a motion for compliance indicating that the plaintiff had failed to comply with the stipulation and requested that she be ordered to execute the mortgages. The plaintiff denied that there was any such agreement or any cohabitation. On August 6,1984, the trial court ordered the plaintiff to execute the mortgages and to sign the stipulation on or before August 13,1984. The plaintiff has appealed from this judgment.

On appeal, the plaintiff claims that the trial court (1) did not have jurisdiction to modify the portion of the dissolution judgment dealing with the assignment of property under General Statutes § 46b-81, (2) erred in terminating the plaintiffs periodic alimony award without a hearing and finding under General Statutes § 46b-86 (b), and (3) erred in finding that the parties had reached an agreement modifying their dissolution decree and in ordering the plaintiff to sign the defendant’s stipulation concerning the modification.

Portions of a dissolution decree may be modified by the court pursuant to General Statutes § 46b-86 (a). That section provides: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law.” Upon a showing of a substantial change in the circumstances of either party, therefore, the court has continuing jurisdiction to modify orders for the periodic payment of permanent or pendente lite alimony or support, except where precluded by the decree. “By its terms, the statute deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party under General Statutes § 46b-81.” Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980).

The assignment to the plaintiff of the jointly owned home subject to the existing mortgages was an assignment of property within General Statutes § 46b-81 (a). That portion of the judgment which the defendant sought to have modified was not a final order for the periodic payment of permanent alimony or support as specified in General Statutes § 46b-86 (a). Bunche v. Bunche, supra, 289. Hence, the trial court had no jurisdiction to alter the terms of the property assignment.

The plaintiff claims that her alimony was terminated without a hearing. “Our rules of practice require that every motion directed toward pleading or procedure, unless relating to procedure during the course of a trial, be in writing. Practice Book § 196 . . . .” Connolly v. Connolly, 191 Conn. 468, 475, 464 A.2d 837 (1983). “It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved.” Costello v. Costello, 186 Conn. 773, 776-77, 443 A.2d 1282 (1982). The defendant’s motion for compliance only sought an order compelling the plaintiff to execute two $10,000 mortgages calling for a set due date. In his motion for modification, the defendant alleged cohabitation by the plaintiff.

“The public allegation that a woman is living with a man out of wedlock and is enjoying a financial benefit from that arrangement is one which is not lightly made and, even in this day, may carry an innuendo of disrepute. In addition, a judicial determination that such an allegation is true may have repercussions affecting persons other than the litigants and matters other than alimony. These considerations, which are reflected in the special notice and hearing requirement, support the conclusion that the trial court cannot on its own initiative consider § 46b-86 (b) as a ground for the termination of alimony.” (Footnote added.) Connolly v. Connolly, supra, 478.

The motion for compliance did not raise the necessary allegations under General Statutes § 46b-86 (b), and the court did not hold a proper hearing. It was error, therefore, for the court to terminate the plaintiffs alimony.

The order compelling the plaintiff to sign the stipulation was also outside the parameters of the motion to compel and should not have been entered.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiff.

In this opinion the other judges concurred.

       General Statutes § 46b-81 provides in pertinent part: “(a) At the time of entering a decree annulling or dissolving a marriage . . . the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.”

       General Statutes § 46b-86 (b) provides in pertinent part: “In an action for divorce, [or] dissolution of marriage . . . brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the superior court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.”


author: Higgins, J.

text:
    Air-Care N.O. Nelson Company v. William Patchet
    (2522)
    Spallone, Wagnek and Higgins, Js.
    Argued March 1
    decision released September 10, 1985

      Charles A. Sherwood, for the appellant (plaintiff).

      William Patchet, pro se, the appellee (defendant).
   Higgins, J.

From the sparse record before us, it appears that this action was brought by the plaintiff to collect for materials provided to the defendant in the amount of $4362.32. The action was returned to the trial court on October 7, 1980. Sometime prior to July, 1981, the parties reached an agreement of settlement, whereby the defendant was to pay $1000 to the plaintiff in full settlement of the claim. The defendant made only one payment of $500 to the plaintiff in July, 1981.

The first and only trial assignment was on September 1,1983. At that time, it was reported to the court that the case had been settled two years earlier. The plaintiff claimed that the settlement contract had been breached by the defendant because it had not been paid the agreed upon amount. The plaintiff asserted that the settlement was no longer acceptable and that it was ready to proceed to trial on the merits. The trial court dismissed the matter because of the parties’ failure to file a withdrawal of the action. From the judgment rendered on that dismissal, the plaintiff has appealed.

The dispositive issue herein is whether the court erred in dismissing the action, sua sponte, without an evidentiary hearing to determine whether the settlement agreement itself or full performance of that agreement constituted satisfaction of the underlying claim. We find error.

Apparently, the trial court assumed that the settlement agreement itself constituted full satisfaction of the underlying claim. The court stated that the plaintiff should enter the settlement on the record and collect the balance due by execution. The plaintiff requested permission to proceed to trial on the original claim. This request was denied and the matter was dismissed.

Satisfaction of a claim may be found in either the promise to settle or the full performance of that promise. Connecticut law comports with the view that the intention of the parties is determinative of whether a settlement agreement constitutes an executory accord or a substitute agreement. Halloran v. Fischer, 126 Conn. 44, 46, 9 A.2d 290 (1939). The finding of error herein is predicated on the failure of the trial court to make an evidentiary determination of the intention of the parties.

It is frequently difficult to determine as a matter of fact whether the parties agreed that the settlement agreement itself constituted satisfaction of the original cause of action, or whether the performance of the agreement was intended to be the satisfaction. 15 Williston, Contracts (3d Ed. Jaeger) § 1847. Whether the new agreement was per se accord and satisfaction of the original debt depends upon the intention of the parties. Halloran v. Fischer, supra; Becker & Goldstein v. MacFarlane, 13 Conn. Sup. 302, 303 (1945). It is strongly presumed, however, that a plaintiff, who is claiming a substantially undisputed amount to be due, would not accept a mere promise to pay a much smaller sum in discharge of a claim for a larger amount. Halloran v. Fischer, supra; see Milici v. DiFrancesco, 122 Conn. 267, 188 A. 884 (1936). “[I]t is not a probable inference that a creditor intends merely an exchange of his present cause of action for another. It is generally more reasonable to suppose that he bound himself to surrender his old rights only when the new contract of accord was performed.” 15 Williston, supra, § 1847.

The intent of the parties to a contract is generally considered to be a question of fact. Albert Mendel & Son, Inc. v. Krogh, 4 Conn. App. 117, 123-24, 492 A.2d 536 (1985). Nothing in the record or transcript of this case indicates that the trial court received any evidence or considered the question of whether the parties intended the agreement itself or the performance of the agreement to constitute satisfaction of the original claim. In the event that the parties intended that performance of the new agreement was to be the satisfaction of the claim, “there can be no doubt that the creditor may, on default in performance of the accord by the debtor, sue either on the orignal cause of action, or, it would seem, if he prefers to do so, on the contract of accord.” (Emphasis added.) 15 Williston, supra, § 1848; see L & A Drywall, Inc. v. Whitmore Construction Co., 608 P.2d 626, 629 (Utah 1980).

Since the intent of the parties to the settlement agreement is crucial to the proper disposition on this case, we find that an evidentiary hearing devoted to this question would best serve the interests of justice. We hold that the trial court erred in dismissing this action without determining whether, by merely entering into the settlement agreement, the plaintiff intended to surrender its right to pursue the underlying claim.

There is error, the judgment of dismissal is set aside and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The transcript reveals the following exchange:
      “The Court: Well, if it’s settled, why should there be a trial?
      “Mr. Sherwood [counsel for the plaintiff]: Because the settlement was in lieu of the trial at the time, and he never paid it ... .
      “The Court: There’s a remedy for that, Mr. Sherwood.
      “Mr. Sherwood: Another lawsuit?
      “The Court: No. You should enter the settlement on the record and collect the balance due by execution.
      “Mr. Sherwood: The settlement was a substantial discount. There was a total amount of four thousand dollars claimed, and the settlement at that time was one thousand dollars as opposed to going to a trial. It was with the understanding that it would be paid in thirty days. It was not paid. Two and a half years has [sic] now passed and, of course, at this time my client is not willing to accept such a substantial discount as far as the settlement.
      “The Court: Well, why didn’t you pursue the collection of the balance two and a half years ago?
      “Mr. Sherwood: I did. I wrote to Mr. Dimenstein [counsel for the defendant] quite a few times. . . .

        “The Court: Why shouldn’t there be a judgment entered now for the balance due of five hundred dollars?
      “Mr. Sherwood: Because at this point, after two and a half years and this acceleration of the Consumer Price Index, the settlement is not acceptable. . . .
      “The Court: Mr. Sherwood, if the matter was settled, there was an agreement.
      “Mr. Sherwood: There was also an agreement that the matter was to be paid within thirty days, which it wasn’t.
      “The Court: And then would you have the right, sir, to get a judgment and collect the balance.
      “Mr. Sherwood: For five hundred dollars?
      “The Court: Yes sir.
      “Mr. Dimenstein: May it please the Court, my records indicate that my client gave me five hundred dollars to forward to Attorney Sherwood, and that was on July 17,1981. So it was two years and one and a half months; not two and a half years.”

       The transcript states:
      “The Court: That request is denied. This case is dismissed. Sue on the agreement.”