text:
    Rebecca Preston et al. v. Anthony J. Keith et al.
    (7941)
    Daly, Noecott and Foti, Js.

      Argued December 12, 1989
    decision released February 13, 1990

      Terence S. Hawkins, with whom, on the brief, was Philip M. Schulz, for the appellants (plaintiffs).

      William J. Melley III, for the appellees (defendants).
   Norcott, J.

The named plaintiff, Rebecca Preston, sued the defendants for personal injuries incurred as a result of an automobile accident allegedly caused by the defendant Anthony Keith’s negligence. The jury found that the plaintiff was 50 percent contributorily negligent and returned a verdict in favor of the plaintiff in the amount of $5593.50. Thereafter, the plaintiff made motions for additur, to set aside the verdict and for a new trial. The trial court denied all of the plaintiffs motions and this appeal ensued.

On appeal, the plaintiff claims that the trial court erred (1) in instructing the jury on the issue of the plaintiffs failure to mitigate damages where the evidence did not support such an instruction, and (2) if the evidence did warrant such a charge, in giving a fatally defective charge as to that issue. We find error in part.

The plaintiff first argues that the trial court erred in instructing the jury on the issue of failure to mitigate damages because there was insufficient evidence on that issue. We disagree.

The jury could reasonably have found the following facts. The plaintiff, a thirty-seven year old woman, had been a bus driver for Clark’s Transportation since 1980. In 1982, she was first involved in a motor vehicle accident as she was operating a school bus. She suffered no serious physical injury as a result of that accident and received minimal medical attention. On February 7, 1985, she was involved in another motor vehicle accident, which resulted in a lower back sprain. The plaintiff was treated by an orthopedic surgeon, Christopher Glenney, who referred her to Frank N. Maroski, a physical therapist, for general muscle therapy for her back. Glenney’s concern as to “the best course to take” with the plaintiff was to get her “into a program where she was exercised and where she improved her general physical fitness, where she improved the muscle strength and the mobility of her spine and her lower extremities . . . .” By early May, 1985, Glenney considered her capable of returning to work on a trial basis.

The accident that is the subject of the present appeal occurred on May 15, 1985, when the plaintiff’s school bus and the defendant’s car collided. Glenney diagnosed a reinjury of the plaintiff’s lower back. The plaintiff, again, stayed out of work and returned to physical therapy three times per week.

The evidence adduced at trial clearly showed that the plaintiff’s recommended physical therapy included a regimen of exercises, as well as attendance at lectures regarding proper postural mechanics. The record also reflects that the jury had before it abundant evidence from which it could have concluded that the plaintiff did not fully follow her therapist’s directions. Furthermore, in response to questions regarding the recommended extent of her physical therapy, the plaintiff, at one point, agreed that she was not completely complying with the therapist’s recommendations, and, at another, she could not recall instances of her noncompliance with the therapist’s recommended treatment. “It is the province of the jury to determine the credibility of the witnesses and the weight to be accorded their testimony. Kubeck v. Foremost Foods Co., 179 Conn. 486, 487, 427 A.2d 391 (1980).” Trzcinski v. Richey, 190 Conn. 285, 298, 460 A.2d 1269 (1983). We conclude that the evidence in this record was sufficient to warrant the trial court’s decision to instruct the jury on the plaintiff’s failure to mitigate damages.

The plaintiff next argues that even if there was sufficient evidence to warrant the challenged instruction, the instruction as given by the trial court was fatally defective and constitutes reversible error. The essence of the plaintiff’s claim is that the court erred in failing to address “proximate cause” and the allocation of proof in its charge on the failure to mitigate damages. We agree.

We first note that the defendant urges us to decline review of this claim because of the plaintiff’s failure to preserve it at trial. The defendant correctly points out that the plaintiff’s exception to the charge at trial addressed only the alleged lack of evidence to support an instruction on the failure to mitigate damages. The defendant contends that the claim regarding the form of the instruction was not raised at trial and is therefore unreviewable. We disagree.

Although ambiguous or unarticulated exceptions are insufficient to preserve a claim on appeal; see Swenson v. Sawoska, 18 Conn. App. 597, 600, 559 A.2d 1153, cert. granted, 212 Conn. 810, 564 A.2d 1073 (1989); we find that the plaintiffs failure to except specifically to the form of the instruction as a part of her general exception to the charge on the failure to mitigate damages is not fatal to her claim for appellate review. Because of the nature of the error claimed here, the erroneous instruction on the burden of proof, we review this claim under the so-called “plain error” provisions of Practice Book § 4185.

It is well settled that one who is injured by the negligence of another must use reasonable care “ ‘to promote recovery and prevent any aggravation dr increase of the injuries.’ ” Sette v. Dakis, 133 Conn. 55, 60, 48 A.2d 271 (1946). “ ‘When there are facts in evidence that indicate that a plaintiff may have failed to promote his recovery and do what a reasonably prudent person would be expected to do under the same circumstances, the court, when requested to do so, is obliged to charge on the duty to mitigate damages.’ Jancura v. Szwed, 176 Conn. 285, 288, 407 A.2d 961 (1978); see also Geer v. First National Supermarkets, Inc., 5 Conn. App. 175, 178, 497 A.2d 999 (1985).” Futterleib v. Mr. Happy’s, Inc., 16 Conn. App. 497, 501, 548 A.2d 728 (1988). “[W]hen a prima facie case [has] been made out . . . it becomes incumbent upon the defendant if he seeks to exonerate himself from responsibility for a portion of the consequences to show that some of these had their proximate cause in the failure of the plaintiff to act in good faith in an attempt to promote recovery and avoid aggravation of the initial injury.” Morro v. Brockett, 109 Conn. 87, 94, 145 A. 659 (1929).

In reviewing a challenge to jury instructions, we must examine the charge in its entirety. We do not require that the instructions “be exhaustive, perfect or technically accurate,” as long as they are “correct in law, adapted to the issues and sufficient for the guidance of the jury.” Castaldo v. D’Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1958). Against these standards, the jury instructions in the present case must fail.

An examination of the trial court’s instruction in this case reveals that the court made no mention of proximate cause, but rather, spoke only in general terms regarding the plaintiff’s duty to mitigate damages. Our review of these instructions leads us to conclude that the jury was left without the direction that the plaintiffs failure to follow her doctor’s prescribed course of rehabilitative therapy must be found to have been the proximate cause of a part of the injuries or of the aggravation of the injuries allegedly caused by the defendant.

Even if we were to conclude, however, that the court’s instructions were sufficient with respect to the issue of proximate cause, we find that they must fail as to the burden of proof. The plaintiff argues that the trial court erred in failing to instruct the jury that the defendant bore the burden of proving the plaintiff’s failure to mitigate damages. We agree. In fact, while discussing mitigation of damages, the trial court made no mention whatsoever of the burden of proof. Our review of the record reveals that the court, in its preliminary charge to the jury, stated that “the plaintiff has the burden of proof in the case. The defendant does not have to disprove the plaintiff’s case,” and “only if you find the defendant was negligent do you then consider the special defense. And that’s the one thing that the defendant has the burden of proving.”

Connecticut courts have yet to address specifically whether the plaintiff or the defendant bears the burden of proving the plaintiff’s failure to mitigate damages in a negligence case. The majority rule, however, is that although the defendant need not specially plead it, the defendant “must bring forward evidence that the plaintiff could reasonably have reduced his loss or avoided injurious consequences, and he must finally convince the jury of this in order to succeed on this issue.” C. McCormick, Handbook on the Law of Damages (1935) § 34, p. 130; see also Michaud v. Steckino, 390 A.2d 524, 531 (Me. 1978); Potomac Electric v. Smith, 79 Md. App. 591, 614, 558 A.2d 768 (1989); McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 351, 169 N.E. 605 (1930); 2 M. Minzer, Damages in Tort Actions (1989) §§ 16.10, 16.11.

It is axiomatic that the initial burden of proving and establishing that the defendant’s negligence was the proximate cause of claimed injuries lies with the plaintiff. See Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987). We concur, however, with the leading treatises and aforementioned jurisdictions and believe that the most prudent course to follow is to hold that “[t]he burden of proving that the victim of tortious conduct failed to minimize damages rests with the wrongdoer. To prevail, the wrongdoer must show that the injured party failed to take reasonable action to lessen the damages; that the damages were in fact enhanced by such failure; and that the damages which could have been avoided can be measured with reasonable certainty . . . .” 2 M. Minzer, supra, § 16.10, p. 16-18.

There is error in part, the judgment is set aside only as to the amount of damages awarded and a new trial is ordered limited to that issue.

In this opinion the other judges concurred.

       The plaintiff Richard Preston advanced a claim for loss of consortium for which the jury did not award him any damages. William J. Keith, Sr., the father of Anthony J. Keith, was sued under the auspices of the so-called “family car doctrine.” For purposes of this opinion, we will refer to Rebecca Preston and Anthony J. Keith as the plaintiff and the defendant respectively.

       The defendant argues that we need not review this claim because the plaintiff has provided an insufficient record for review pursuant to Practice Book § 4061. See McLaughlin v. Bronson, 206 Conn. 267, 276, 537 A.2d 1004 (1988). We do not agree. At the close of the trial, the plaintiff moved that the court set aside the jury verdict on the basis of the same allegedly erroneous instruction. The trial court denied the motion without comment.
      The defendant argues that it was the plaintiffs duty to seek articulation pursuant to Practice Book § 4051. It is clear, however, from a review of the plaintiffs motion and the defendant’s objection thereto that the court refused to accept the plaintiffs position that the instruction was “contrary to the law and the evidence” and that “there was no evidence supporting” the charge. Thus, the only question before the court pursuant to this motion was whether the instruction was legally accurate and whether the evidence supported its submission to the jury. The record before us shows us that those claims of error were clearly presented to and addressed by the trial court and were preserved for appeal. No written memorandum regarding the denial of the plaintiff’s motion for articulation was necessary. The defendant’s argument, therefore, has no merit.

       The jury heard evidence, for example, which the plaintiff either denied or failed to recall, concerning her shooting basketballs some one and one-half months after the May 15 accident and easily pulling a child from a swimming pool in the summer of 1985 during the period in which she was home-bound in rehabilitation.

       At trial the following ensued during the cross-examination of the plaintiff:
      “Q. Are you following a physical therapist’s instructions with regard to exercises that you should do for your back?
      “A. I’m just doing the sit-ups.
      “Q. Just the sit-ups. Isn’t it true that the physical therapist has suggested that you do much more than just sit-ups four times a week?
      “A. Yes. He said — adjusted that.
      “Q. Isn’t it true that the physical therapist suggested that on several occasions? Many occasions.
      “A. I don’t recall.
      “Q. You don’t recall.
      “A. No.
      “Q. Isn’t it true that the physical therapist first started making suggestions about doing exercises before the May accident?
      “A. I don’t remember.”

       The defendant also contends that the general verdict rule precludes appellate review of the trial court’s charge to the jury in this case. That rule provides that if a jury renders a general verdict for one party, and no party has requested interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. We find this argument to be wholly inapplicable here and to require no discussion.

       The plaintiff’s exception to the trial court’s instruction on the mitigation of damages was as follows: “I would also take exception to the court’s charge on failure to mitigate, inasmuch as there was no medical evidence with respect to any failure to mitigate and any effect it may have had on the plaintiff’s well-being.”

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

       The pertinent part of the trial court’s instruction regarding the duty to mitigate damages is as follows: “She also has a duty to mitigate damages as best she can in order to promote her recovery and prevent any increase of injuries. She must act as a reasonable person would be expected to act. This means she must follow doctors’ advice and so on to get the best recovery she can. To the extent that she fails to do that, that means she fails to mitigate damages. If you find that in fact, she did, then you should reduce any award you might give her to such a sum as you think measures the amounts which her damages have been increased by her failure and her duty to mitigate damages and do her best to get better. Now, that’s if you find that there is any such activity on the part of the defendant.”

       The only special defense in the present case concerned the plaintiff’s contributory negligence in causing the accident.

       The closest relevant Connecticut case is Wassell v. Hamblin, 196 Conn. 463, 493 A.2d 870 (1985). In Wassell, a motor vehicle tort action, the defendant specially pleaded that the plaintiffs’ failure to wear seat belts caused some or all of their damages. The Supreme Court ordered a new trial on damages because there was no evidence that the plaintiffs’ nonuse of seat belts contributed to their injuries and that it was error to submit that issue to the jury. The court also noted that, under the circumstances of that case, the defendant “had the burden of proof on the issue so raised by him, and this required that he prove that the damages, or at least a portion of them, were proximately caused by the nonuse of the seat belts . . . .” Id., 469.

       The error here lies only with the trial court’s instruction on mitigation of damages, an issue considered by the jury only after they had determined that liability did in fact exist. Because the issues of damages and liability in this case are so separate and distinct, we order limited remand. Cf. Fazio v. Brown, 209 Conn. 450, 454-58, 551 A.2d 1227 (1988) (where jury’s verdict may have reflected a misunderstanding, and hence an ambiguity, as to liability); Niles v. Evitts, 16 Conn. App. 696, 698-700, 548 A.2d 1352 (1988) (where error in trial court’s charge to jury related directly to issues of comparative negligence and liability).


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    State of Connecticut v. Dolphus Fudge
    (7765)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued December 5, 1989
    decision released February 13, 1990

      John T. Walkley, special public defender, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of the crimes of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-8, larceny in the first degree in violation of General Statutes §§ 53a-119, 53a-122 (a) (2) and 53a-8, and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (4). The defendant claims (1) that the evidence was insufficient to sustain the verdict, (2) that his simultaneous convictions for robbery in the first degree and conspiracy to commit robbery in the first degree violated his double jeopardy rights, and (3) that the court erred in instructing the jury on accomplice liability. We find no error.

The charges against the defendant relate to an armed robbery of a bank in New Haven on June 30,1983. Testimony at trial by the state’s key witness showed that the defendant helped to plan the crime but did not participate in the actual robbery, which was committed by two other participants. The robbery and larceny convictions were based on General Statutes § 53a-8, which provides for accessorial liability. Additional facts are included in the discussion of the first issue.

I

The defendant first argues that the evidence was insufficient to support his convictions for larceny in the first degree and robbery in the first degree. In reviewing a sufficiency of evidence claim, we give the evidence the construction most favorable to sustaining the verdict. State v. Ruth, 16 Conn. App. 148, 153-54, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989). We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Kelly, 208 Conn. 365, 386, 545 A.2d 1048 (1988).

The state proceeded under the theory that the defendant was guilty as an accessory to the crimes of robbery in the first degree and larceny in the first degree and not that he directly participated in their commission. See General Statutes § 53a-8. In support of this theory, the jury could reasonably have found the following facts. The robbery was planned in the apartment of the state’s key witness. The defendant arrived at the apartment the day before the robbery, accompanied by the men later convicted of committing the holdup. The defendant and the others had driven from New York in a van that the witness believed belonged to the defendant. That evening, the defendant and the others discussed the robbery, and the defendant, who was older than the others, did most of the talking. It was decided that the defendant would drive the getaway car while the others entered the bank. The conspirators also decided that they would plant a fake bomb in another location in order to distract the police while the robbery was in progress.

The defendant was present when the fake bomb was prepared. In addition, the next day he twice instructed the witness to call a local television station and report the bomb threat. After the call was made, the defendant and the robbers left the witness’ apartment together.

The defendant does not dispute the sufficiency of the evidence to convict the other men of the actual robbery and larceny. He claims instead that the state failed to show that he intended that conduct constituting a crime be performed.

To justify a conviction as an accessory, the state must prove both that the defendant had the intent to aid the principal and that, in so aiding, he had the intent to commit the crime. State v. Foster, 202 Conn. 520, 525-26, 522 A.2d 277 (1987); In Elieser C., 14 Conn. App. 445, 449, 541 A.2d 528 (1988). “ ‘Mere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the one who commits the crime must be distinguished from the criminal intent and community of unlawful purpose shared by one who knowingly and willingly assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it. State v. Laffin, 155 Conn. 531, 536, 235 A.2d 650 (1967).’ ” State v. Smith, 15 Conn. App. 122, 127, 543 A.2d 301 (1988).

It is the duty of the jury to determine what inferences may properly be drawn from the evidence. State v. Smith, 212 Conn. 593, 602-603, 563 A.2d 671 (1989). We conclude that, on the basis of the evidence available, the jury could reasonably infer that the actions of the defendant were inconsistent with any innocent purpose and that the defendant knowingly and intentionally participated in the crimes of robbery and larceny.

The evidence, therefore, was sufficient to sustain a conviction on the robbery and larceny counts.

II

The defendant next argues that his convictions of conspiracy to commit robbery in the first degree and of being an accessory to the commission of robbery in the first degree violate the constitutional prohibition against double jeopardy. We find no such violation.

The defendant’s claim implicates “ ‘that strand of double jeopardy jurisprudence that “protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).’ ” Slate v. Blackwell, 20 Conn. App. 193, 196, 565 A.2d 549 (1989). The defendant’s double jeopardy rights are violated only if the charges arise out of the same act or transaction and the crimes charged are in fact the same offense. Id. Our analysis here focuses on the second prong. It is fundamental constitutional law that where the charges arise out of the same transaction, they are not the same offense for double jeopardy purposes if each statute requires proof of a fact that the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 2d 306 (1932); State v. Blackwell, supra. The conspiracy charge required proof of an agreement, and the accessory to robbery charge did not. The accessory to robbery charge required proof of an actual larceny, and the conspiracy charge did not.

The defendant tries to surmount this obstacle by arguing that participation in a robbery as an accessory necessarily requires an agreement between the participants. This argument is flawed. One element of the separate and distinct crime of conspiracy is an unlawful agreement. “ ‘There is, however, no such crime as “being an accessory.” . . . The defendant is charged with committing one substantive offense; “[t]he accessory statute merely provides alternate means by which a substantive crime may be committed.” . . .’’’(Citations omitted.) In re Luis R., 204 Conn. 630, 637, 528 A.2d 1146 (1987). It has long been the law of this state that there is no practical distinction in being labelled an accessory or a principal for the purpose of determining criminal responsibility. Id. Thus, the substantive crime with which the defendant was charged was robbery, and an agreement with another person is not an element of robbery.

Ill

In his third claim of error, the defendant argues that the trial court’s instruction on accessorial liability was erroneous because it failed to include reference to the dual intent requirement. The defendant neither requested an instruction on dual intent nor took an exception to the charge as given. He now, however, seeks review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). See also State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). At oral argument, the defendant conceded that this claim is not reviewable if we find State v. Foshay, 12 Conn. App. 1, 23-24, 530 A.2d 611 (1987), to be applicable. The Foshay court considered a claim identical to the one presented here. In both Foshay and the present case, the trial court read General Statutes § 53a-8 in full to the jury. The Foshay court held that such a claim was not truly of constitutional proportion and accordingly was not reviewable under the Evans doctrine. Since Foshay is directly on point and is controlling, the defendant’s third claim of error is not reviewable.

There is no error.

In this opinion the other judges concurred.

       The defendant, in his statement of issues, also claimed that the evidence was insufficient to support his conspiracy conviction. He failed, however, to develop this claim in his brief. “ ‘ “Assignments of error which are merely mentioned but not briefed beyond a statement óf the claim will be deemed abandoned and will not be reviewed by this court.” ’ ” Aillon v. Meachum, 211 Conn. 352, 356 n.4, 559 A.2d 206 (1989).

       General Statutes § 53a-8 provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender. ’ ’

       Although this claim was not properly preserved at trial, the state concedes that it is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1923). See also State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We agree and thus review the claim.

       The Blockburger test is not a conclusive presumption but a rule of statutory construction. State v. Blackwell, 20 Conn. App. 193, 197, 565 A.2d 549 (1989); State v. Delgado, 19 Conn. App. 245, 255, 562 A.2d 539 (1989). The defendant may rebut the Blockburger presumption “by showing a clear legislative intent that the two statutes be treated as one for double jeopardy purposes.” State v. Blackwell, supra. The defendant has failed to make any effort to prove such intent on the part of the legislature.


author: Foti, J.

text:
    Town Council of the Town of Rocky Hill v. Freedom of Information Commission et al.
    (7822)
    Borden, Foti and Lavery, Js.
    Argued November 2, 1989
    decision released February 13, 1990

      Constance L. Chambers, assistant general counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      Donald V. Romanik, with whom, on the brief, was Mark K. Ostrowski, for the appellee (plaintiff).

      Phillip H. Schnabel, pro se, the appellee (defendant).
   Foti, J.

The named defendant freedom of information commission (FOIC) appeals from the judgment rendered sustaining an administrative appeal by the plaintiff from a final FOIC decision. The FOIC claims that the trial court erred (1) in failing to find that the plaintiff violated the rights of the defendant Phillip H. Schnabel, the police chief of the town of Rocky Hill, by convening in executive session, (2) in holding that the FOIC’s failure to examine a certain memorandum in camera was error, (3) in reevaluating the evidence in the administrative record, and (4) in considering evidence outside the administrative record. In view of our disposition of the second claim of error, we need not decide the other claims.

The parties stipulated to the following facts before the FOIC. Schnabel is the police chief of the town of Rocky Hill and his salary, as with other employees of the town who are not in a bargaining unit, is set by action of the plaintiff, the Rocky Hill town council (council). Beginning in April, 1987, a controversy arose in Rocky Hill over a decision to recall a cruiser after it had been dispatched, and whether concerns over racism justified that recall. In May and June, 1987, members of the council expressed dissatisfaction to the town manager concerning Schnabel’s performance as the town’s police chief, including his handling of the cruiser incident. The town manager requested that Thomas Mooney, the town’s labor attorney, prepare an opinion letter concerning the free speech rights of public employees, and the relation of those legal issues to actions that the town council might consider with respect to Schnabel’s employment. The actions to be considered were to include the withholding of Schnabel’s pay increase. Mooney provided his written opinion in a letter dated June 25, 1987.

After the town manager received Mooney’s opinion letter, he invited the attorney to discuss the contents of the letter on June 30,1987, at a special council meeting in the event the council chose to convene in executive session. In response to Schnabel’s inquiry prior to the special council meeting, the town manager informed him that his presence was not required.

On June 30,1987, the plaintiff held its special meeting and Schnabel was present. The council adjourned into executive session to discuss the opinion letter with Mooney shortly after a member of the council expressed a desire to do so in order to discuss personnel matters. While in executive session, the council, the town manager and Mooney discussed Mooney’s opinion letter. This discussion included such matters as Schnabel’s performance in relation to the legal issues discussed in the opinion letter, and any possible action the council could take with respect to Schnabel’s employment, including his salary increases. Schnabel was not notified that his performance or evaluation would be discussed in the executive session.

After spending forty-two minutes in executive session, the plaintiff reconvened in open session. At this time, Schnabel addressed the council concerning a possible study of police operations. The council voted to authorize a preliminary study. Later in the open session, when it acted on nonbargaining salaries, the council voted to withhold any pay increase for Schnabel pending conclusion of a consultant’s study.

Schnabel filed a letter of complaint with the FOIC stating that the council had considered a personnel matter in executive session without giving him the chance to request that the discussion of his performance, which led to the withholding of his raise, be open to the public. The FOIC found for Schnabel, holding that the council had failed to prove that the privileged material contained in Mooney’s opinion letter could not have been separated from its discussion of Schnabel’s work performance and his pending salary increase. The FOIC also found that the council had violated General Statutes § l-18a (e) (1) when it failed to notify Schnabel of his right to require that the discussion of his performance be held in public.

The council appealed the FOIC’s decision to the trial court. The court held that the FOIC erred in its refusal to conduct an in camera review of Mooney’s opinion letter. The court found that “[t]he declination by the hearing officer was error that deprived the council of an available mechanism by which [it] would have further sustained the burden of proving the applicability of the exemption set out in General Statutes § 1-19 (b) (10).” The court held that the FOIC’s order was null and void.

The general rule under the Freédom of Information Act favors disclosure. The burden of establishing the applicability of an exemption to this rule rests squarely on the party claiming the exemption. New Haven v. Freedom of Information Commission, 205 Conn. 767, 775, 535 A.2d 1297 (1988). Here, before the FOIC could deal with a potential conflict between the defendant police chief’s rights under General Statutes § l-18a (e) (l) and the council’s rights under §§ l-18a (e) (5) and 1-19 (b) (10), it was incumbent on the council to convince the FOIC that it was unable to separate its discussion of the chief’s performance from its discussion of the privileged material contained in Mooney’s opinion letter during the executive session. In attempting to meet this burden, the council requested that the FOIC perform an in camera inspection of the document. The FOIC refused, citing its regulations, and consequently forced the plaintiff to attempt to meet its burden through other means.

“Where the nature of the documents, and, hence, the applicability of an exemption, is in dispute it is not only within the commission’s power to examine the documents themselves, it is contemplated by the act that the commission do so.” Wilson v. Freedom of Information Commission, 181 Conn. 324, 339-40, 435 A.2d 353 (1980). Unless the character of the documents in question is conceded, or an in camera inspection would be burdensome on the commission or ineffective because of the absence of the adversarial process, such a review may be essential to the proper resolution of a dispute under the Freedom of Information Act. Id., 340.

Although our Supreme Court merely voiced an admonishment after the FOIC’s refusal to perform in camera inspection in Wilson, that court held that a similar refusal by the FOIC was reversible error in Board of Education v. Freedom of Information Commission, 210 Conn. 590, 556 A.2d 592 (1989). That court held that the failure to perform an in camera inspection hindered the FOIC’s ability to balance the employee’s right of privacy against the public’s right to know.

In light of the relevant case law, we conclude that the trial court did not err in holding that the FOIC’s failure to examine the written opinion in camera was error, but that it went too far in declaring the FOIC order null and void without remanding the matter for an in camera examination of the opinion. Although Board of Education v. Freedom of Information Commission, supra, was decided after this case was tried, all parties agreed at oral argument that that case would govern the outcome of this case if we conclude that the FOIC erred in refusing to view the opinion letter in camera. To be in full accord with Board of Education therefore, the case will be remanded to the trial court with direction to order the FOIC to conduct an in camera inspection of Mooney’s opinion letter. The FOIC will also be given the opportunity properly to balance the parties’ competing rights.

There is error in part, the judgment is set aside and the case is remanded to the trial court with direction to order the FOIC to conduct an in camera inspection of the opinion letter and to consider any further evidence the parties may submit as may be deemed necessary, in accordance with this opinion.

In this opinion the other judges concurred.

       “[General Statutes] Sec. l-18a. definitions. As used in this chapter, the following words and phrases shall have the following meanings, except where such terms are used in a context which clearly indicates the contrary . . . (e) ‘Executive sessions’ means a meeting of a public agency at which the public is excluded for one or more of the following purposes: (1) Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting. . . .”

       General Statutes § l-18a (e) provides in pertinent part: “(5) discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-19.”

       General Statutes § 1-19 (b) provides in pertinent part: “Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (10) . . . communications privileged by the attorney-client relationship.”


author: Dupont, C. J.

text:
    Connecticut State Employees Association v. Department of Administrative Services et al.
    (7854)
    Dupont, C. J., Foti and Lavery, Js.

      Argued October 31, 1989
    decision released February 13, 1990

      Robert J. Krzys, for the appellant (plaintiff).

      Taka Iwashita, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, and Charles A. Overend, assistant attorney general, for the appellees (defendants).
   Dupont, C. J.

The sole issue of this appeal is whether an action against the state, as an employer, for the payment of interest on an arbitration award states a cause of action pursuant to General Statutes § 5-276 (b) or is barred by the doctrine of sovereign immunity.

The plaintiff Connecticut State Employees Association and the state entered into arbitration pursuant to General Statutes § 5-276a. The arbitrator issued an award in favor of the plaintiff. Subsequently, the plaintiff brought an action in the trial court, pursuant to § 5-276b (b), against the state claiming that the monies awarded to the plaintiff by the arbitrator were not paid within the statutorily prescribed time. The state moved to dismiss the action on the grounds that the action was barred by the doctrine of sovereign immunity and that the plaintiff had failed to exhaust its administrative remedies. The trial court granted the motion to dismiss on both grounds, and this appeal followed.

The doctrine of sovereign immunity bars suit against the state except where the state, by appropriate legislation, authorizes or consents to suit. To constitute a waiver of sovereign immunity, a statute must clearly indicate an intention to allow a suit against the state “ ‘ “by the use of express terms or by force of a necessary implication.” ’ ” Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972). “In interpreting a statute the court must ascertain and give effect to the intent of the legislature” by looking at the language in which the act is framed. White v. Burns, 213 Conn. 307, 311, 567 A.2d 1195 (1990).

The legislature has provided for a claims commissioner who is empowered to hear and decide all claims against the state; General Statutes § 4-142; or, alternatively, to authorize suit against the state on any cause of action that could be brought against the state if it were a private person. General Statutes § 4-160. Certain claims, however, are not within the power of the claims commissioner to hear and determine. General Statutes § 4-142. A claim against the state upon which suit is otherwise authorized by law is one such exception to the power of the commissioner to hear and determine. General Statutes § 4-142 (2).

A claim for interest on an alleged late payment of an arbitration award is authorized by § 5-276b (b). Prior to codification, the section was part of a public act entitled “An Act Concerning Payment of Arbitration Settlements to State Employees.” Public Acts 1987, No. 87-335. Section 5-276b (b) provides that “[wjhenever a monetary settlement is awarded pursuant to a state employee grievance arbitration proceeding, and payment is not made in accordance with the terms of such settlement within thirty days of the date such award was issued, the party liable for such payment shall be required to pay interest, at the rate of five per cent per annum, on such overdue payment, calculated from the date the award was issued.” (Emphasis added.) The state argues that this provision does not apply to it because the language of the statute does not refer specifically to the state. This argument is disingenuous because the only possible parties to whom the statute could be referring are the state and its employees. The only possible meaning of the words “the party liable” is the state or the state’s employees. Furthermore, the provision cannot reasonably be read to say that interest is payable only if the employee is the liable party.

The state relies on Struckman v. Burns, 205 Conn. 542, 557-58, 534 A.2d 888 (1987). In that case, the statute at issue provided for recovery of damages for injuries sustained on state highways or sidewalks, and specifically excluded imposition of costs or judgment fees on the state, making no provision for the payment of interest in the event of a late payment. There is no such exclusion in § 5-276b (b), and payment of interest is specifically provided for in the event of late payment of arbitration awards. The fact that § 5-276b (b) provides for the payment of interest at a rate of 5 percent rather than the 10 percent rate set by General Statutes § 37-3a for civil actions and arbitrations is further support for the conclusion that the interest provision of § 5-276b (b) applies to awards against the state.

The state also argues that the interest provision applies only if the employee’s payment is late. The legislative history of § 5-276b (b), however, indicates that it was the concern of the legislature with the frequent tardiness of the state, not its employees, in paying monies awarded against it in arbitration that led the legislature to include the interest provision.

Section 5-276b (b) is a statutory exception to the power of the claims commissioner to hear and determine claims against the state or to authorize suit against the state. The plaintiff, therefore, did not fail to exhaust its administrative remedies by its failure to seek redress from the commissioner, because its remedy lay with the court, not with the claims commissioner. The statute constitutes a legislative waiver of sovereign immunity with respect to interest due on late payment by the state of monies due under arbitration awards. Thus, the motion to dismiss should not have been granted.

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

In this opinion the other judges concurred.

       The claims commissioner is required to make his or her recommendations to the General Assembly for payment of or refusal to pay claims in excess of $7500. The General Assembly then determines what action is to be taken. General Statutes § 4-159.

       The plaintiffs also argue that the state’s failure to pay the interest is a failure for which they have redress because there is no sovereign immunity defense when the state acts in excess of its statutory authority, such as by failing to comply with a statute, namely General Statutes § 5-276b (b). Because we otherwise find error, we need not address this issue.


text:
    Sheldon M. Atlas v. Edward D. Miller
    (7622)
    Borden, Norcott and Foti, Js.

      Argued October 11, 1989
    decision released February 13, 1990

      David S. Grossman, for the appellant (defendant).

      William C. Franklin, for the appellee (plaintiff).
   Foti, J.

The plaintiff sued the defendant alleging breach of contract with respect to the construction of a pool house on the plaintiff’s property in Warren. After a court trial, the court rendered judgment for the plaintiff in the amount of $9138 plus interest at 10 percent from June 21, 1986, to the date of judgment amounting to $2228.16. The defendant appeals, claiming that the trial court erred (1) in finding that the plaintiff was a proper party, (2) in finding that the damages were proven, and (3) in awarding interest to the plaintiff. We find no error.

The trial court found the following facts. Over a two year period, the parties had entered into three separate and distinct contracts. The first was for the construction of the plaintiff’s main house, the second for the construction of a deck to be affixed to the main house, and the third, which is the subject of this action, for the construction of a pool house approximately 400 feet from the main house.

The parties’ third contract was entered into on August 13,1984. By the terms of this agreement, the defendant agreed, inter alia, to construct a pool house for the plaintiff. The defendant began building the pool house in accordance with the contract, but ceased construction after the plaintiff refused to make the final payment on the contract for the main house. When the defendant did not return to complete his work on the pool house by the date set for its completion, the plaintiff hired another contractor to finish the job.

The parties originally agreed upon a total contract price of $45,000 for the defendant’s completion of the pool house. The actual total cost of the finished pool house was $65,403; $11,900 for work completed by the . defendant before he refused to return and complete his contractual obligations, $42,742 paid to the substitute contractor by the plaintiff, and $10,761 claimed as extras that were not included in the substitute contract. The evidence demonstrated that the pool house, as constructed, was in fact upgraded during the negotiations with the second contractor.

The defendant first claims that the court erred in rendering judgment for the plaintiff because the plaintiff is not the owner of the real estate and therefore not a real party in interest. He points out that although the complaint alleged that the plaintiff, Sheldon M. Atlas, was the owner of the property in Warren, at trial title was admitted to be in the name of a corporation in which the plaintiff and his wife were the sole stockholders. The defendant argues that the subject matter of the contract went to the improvement of real estate and that only the owner of that real estate could be a party to this action because that owner was the only party benefited or harmed by a breach of that agreement.

It is axiomatic that the parties to a contract or a contemplated beneficiary thereof may sue to enforce the promises of that contract. Here, the contract in dispute is between the plaintiff Atlas and the defendant Miller; the corporation is not a party to that agreement, although its name appears on the agreement which was prepared by the defendant. “ ‘A contract is an agreement between parties whereby one of them acquires a right to an act by the other; and the other assumes an obligation to perform that act.’ ” Boland v. Catalano, 202 Conn. 333, 336, 521 A.2d 142 (1987), quoting Skelly v. Bristol Savings Bank, 63 Conn. 83, 87, 26 A. 474 (1893). “A contract is a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” 1 Restatement (Second), Contracts § 1.

In the present case, the question of who holds title to the property is irrelevant because the contract created a right in both parties sufficient for either to proceed in a cause of action for the breach of that contract. The issue of whether the corporation that holds the title to the property can be considered a third party beneficiary of the contract was never raised or litigated at trial. The court did not err in its finding that the plaintiff was a proper party to this action.

The defendant next claims that the court erred in awarding damages to the plaintiff, in that they could not be proven with reasonable certainty and there was no reasonable basis to measure a loss.

A review of the record discloses that there was sufficient evidence at trial to support the court’s conclusion that the pool house the parties contracted for and the one actually built by a different contractor were substantially the same, even after the upgrading. Both construction contracts were for specific dollar amounts, with the cost of extras and the cost of partial construction being ascertainable by the court. Further, the evidence showed that the defendant never viewed the completed pool house and, therefore, he was unable to testify as to whether it was in any way different from the pool house that was called for by his contract.

At the base of this claim is the question of whether the trier abused its discretion in light of the evidence presented to the court. We cannot retry the facts in this case. Arbour v. McCullough, 186 Conn. 280, 285-86, 440 A.2d 980 (1982); Kalleher v. Orr, 183 Conn. 125, 128, 438 A.2d 843 (1981). We have reviewed the evidence relating to the upgrading of the structure, including the extras that were added during construction, and other various items involved. Our review leads us to conclude that the decision of the trial court with respect to each of these aspects was not clearly erroneous. See Practice Book § 4061. Because the legal conclusions of the trial court are legally and logically correct and supported by the facts recited in the memorandum of decision, and because the facts in the memorandum of decision are supported by the evidence and are not clearly erroneous in light of the evidence presented and the pleadings in the whole record, we reject the defendant’s claim of error. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The defendant’s last claim is that the court abused its discretion in awarding interest to the plaintiff. The interest awarded by the court runs from the date the plaintiff made his final payment to the substitute contractor to the date of judgment. The defendant argues that the court abused its discretion by awarding interest in a situation where the defendant claims the court found that he had a compelling practical reason not to honor his contractual commitment, that damages were not readily ascertainable, and that no proof was presented as to when the plaintiff made his last payment to the substitute contractor.

The court’s computation of the time period over which interest should be awarded was not clearly erroneous. “Interest ‘may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes due and payable.’ General Statutes § 37-3a. The allowance of interest is primarily an equitable determination within the discretion of the trial court. Milgrim v. DeLuca, 195 Conn. 191, 201, 487 A.2d 522 (1985); Bertozzi v. McCarthy, 164 Conn. 463, 467, 323 A.2d 553 (1973).” Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 483, 542 A.2d 692 (1988).

Here, the court did not find legal justification for the defendant’s refusal to honor the contract between the parties. Likewise, it did not find that damages were not ascertainable. Further, evidence was presented as to the last date on which the plaintiff made payment to the substitute contractor.

Our review of the record reveals no abuse of discretion. The trial court, therefore, did not err in awarding the plaintiff prejudgment interest.

There is no error.

In this opinion the other judges concurred.

       The memorandum of decision states: “While there may have been compelling reasons why the defendant decided to avoid further conflict with the plaintiff with respect to payment, the defendant’s action was not legally justifiable, and did subject the plaintiff to damages as a result of his noncompliance.”


author: Norcott, J.

text:
    Design Development, Inc. v. Timothy Brignole et al.
    (8052)
    Daly, Norcott and Foxi, Js.

      Argued December 12, 1989
    decision released February 20, 1990

      Kevin F. Bowen, with whom, on the brief, was Michael Grossman, for the appellants (defendants).

      Dennis G. Hersh, for the appellees (plaintiffs).
   Norcott, J.

The defendants, Timothy Brignole and Michael Greci, appeal from the judgment of the trial court awarding damages to the plaintiffs, Design Development, Inc., and John Cazzetta, its president, in a breach of contract action. The defendants claim that the trial court erred in awarding damages to the plaintiffs despite its finding that the plaintiffs were in violation of General Statutes §§ 20-290 and 20-297. We find error.

The trial court found the following undisputed facts. The defendants were a partnership interested in developing an office building on their property. In March, 1985, the defendants hired Cazzetta to prepare drawings, stamped by an engineer, for the construction and renovation of a building of approximately 11,700 square feet on their property. Brignole was aware that Cazzetta was not a licensed architect or engineer.

Cazzetta prepared preliminary plans and delivered them to the defendants on August 26, 1985. Because the plans were not acceptable to zoning authorities without an engineer’s stamp, Cazzetta paid $2500 to acquire the appropriate stamp. The defendants paid the plaintiffs $1000, but refused to pay for the final plans that Cazzetta had prepared. The plaintiffs then brought an action for breach of contract. The defendants raised illegality of the contract as a defense.

The trial court found that Cazzetta violated General Statutes § 20-290 by holding himself out as an architect and designing a building in excess of 5000 square feet. The court awarded damages, however, because it found that the defendant Brignole was in pari delicto with Cazzetta regarding any violation of General Statutes § 20-290. The court based this ruling on the fact that Brignole knew that Cazzetta was not a licensed architect but hired him anyway. The trial court rendered judgment for the plaintiffs for $5000. From this ruling the defendants appeal.

The defendants claim that because the trial court found Cazzetta to be in violation of § 20-290, it could not award him damages. They argue that because the rendering of architectural services by Cazzetta was illegal and punishable by a criminal penalty, the agreement for such, services was void and unenforceable, and, hence, no damages could be awarded.

The trial court found that Cazzetta was in violation of General Statutes § 20-290 because he was not licensed, as required by that section, and yet he performed services as and held himself out as an architect. Once the trial court found that Cazzetta “practiced as” and “held himself out as” an architect, Cazzetta became subject to a criminal penalty; General Statutes § 20-297; and his contract with the defendant was rendered illegal, void as against public policy and unenforceable. See Douglas v. Smulski, 20 Conn. Sup. 236, 239, 131 A.2d 225 (1957); Lapuk v. Blount, 2 Conn. Cir. Ct. 271, 279, 198 A.2d 233 (1963).

The plaintiffs claim that the defendants cannot assert the alleged illegality of the contract as a defense because they knew that Cazzetta was not a licensed architect. They further assert that should they be denied relief, the defendants will be unjustly enriched and, therefore, that the trial court was correct in ruling that they should be able to recover based upon quantum meruit. We do not agree.

The plaintiffs’ argument and the trial court’s finding that recovery should be permitted on the basis of quantum meruit or unjust enrichment is without merit. “ ‘When the illegality, either in whole or in part, is in the thing which the party seeking to recover was to do, then there can be no recovery upon a quantum meruit.’ ” McKnight v. Gizze, 119 Conn. 251, 256, 175 A. 676 (1934); Douglas v. Smulski, supra.

The defendants also argue that the trial court erred in finding that they were in pari delicto and that, even if they were in pari delicto, the trial court erred in awarding damages because the contract would still be rendered unenforceable. We agree.

The doctrine of in pari delicto holds that where the parties to an illegal agreement or transaction are equally at fault, the court will leave the parties as it finds them and will not enforce the agreement against one over the other. Ballentine’s Law Dictionary (3d Ed. 1969); see also Vaszauskas v. Vaszauskas, 115 Conn. 418, 423, 161 A. 856 (1932). The doctrine, therefore, is, as the defendants claim, a defensive doctrine. Even if we assume that the court was correct in finding that the parties were in pari delicto in this case, it could not properly enforce this contract against the defendants. “In case any action is brought in which it is necessary to prove the illegal contract in order to maintain the action, courts will not enforce it, nor will they enforce any alleged right directly springing from such contract, but if both parties are in pari dilecto, the law will leave them where it finds them.” Vaszauskas v. Vaszauskas, supra.

This doctrine has been applied in Connecticut for many years, and the rationale was well articulated by our Supreme Court in 1881. “At first blush it might seem unequal, and therefore unjust, to give the defendant the privilege of setting up his own participation in the illegal contract, resulting in his gain, and deny the privilege to the plaintiff, to his loss. . . . ‘The objection that a contract is immoral or illegal as between plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is not for his sake however that the objection is ever allowed, but is founded in general principles of policy which the defendant has the advantage of, contrary to the real justice as between him and the plaintiff, by accident . . . ” (Citations omitted.) Funk v. Gallivan, 49 Conn. 124, 128 (1881); see also Beit v. Beit, 135 Conn. 195, 199-200, 63 A.2d 161 (1948).

Having found the plaintiff in violation of General Statutes § 20-290, and having found further that the parties were in pari delicto, the trial court erred in enforcing the contract and awarding damages to the plaintiff.

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

In this opinion the other judges concurred.

       At the start of trial, the trial court granted the named plaintiff’s motion to amend the complaint to add John Cazzetta as a party plaintiff.

       General Statutes § 20-290 provides in pertinent part: “In order to safeguard life, health and property, no person shall practice architecture in this state ... or use the title ‘architect,’ or display or use any words, letters ... or other device to indicate that such person, practices or offers to practice architecture, unless such person has secured a license as provided in this chapter . . . .”
      General Statutes § 20-297 provides in pertinent part: “Any person who knowingly, wilfully or intentionally violates any provision of this chapter shall be fined not more than five hundred dollars or imprisoned not more than one year or be both fined and imprisoned.”

       The plaintiffs argue that Cazzetta’s conduct did not violate § 20-290. We note that the plaintiffs did not properly raise this claim as an alternate ground upon which the judgment could be affirmed. See Practice Book § 4013. We will not, therefore, consider this claim.

       We are hesitant to agree with the trial court that the parties were, in fact, in pari delicto. The defendants are members of the class that the legislature sought to protect with the enactment of General Statutes § 20-290; see, e.g., Keyes v. Brown, 155 Conn. 469, 474-75, 232 A.2d 486 (1967); and they did nothing that was in and of itself wrong or illegal. See Vaszauskas v. Vaszauskas, 115 Conn. 418, 423, 161 A. 856 (1932). Further, § 20-290 is a mandatory section, the violation of which carries a criminal penalty. General Statutes § 20-297; Lapuk v. Blount, 2 Conn. Cir. Ct. 271, 279, 198 A.2d 233 (1963); cf. Taft v. Amsel, 23 Conn. Sup. 225, 228, 180 A.2d 756 (1962).

       The defendants also claim that the trial court erred in its computation of the damages awarded. Because we have found error in the awarding of damages itself, however, we need not reach this second issue.


author: Spallone, J.

text:
    State of Connecticut v. Kevin Maslak
    (8039)
    Borden, Spallone and Foti, Js.
    Argued December 19, 1989
    decision released February 20, 1990

      Philip N. Walker, with whom, on the brief, was John L. Laudati, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, were Frank S. Maco, state’s attorney, and David Shepack, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals his conviction, after a trial to the court, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The defendant claims that the trial court erred (1) in convicting him without sufficient evidence, and (2) in admitting evidence of his refusal to submit to a blood alcohol level test, thereby violating his protection against self-incrimination. The defendant’s first claim of error is without merit, and we decline to review his second claim.

The evidence introduced at trial reasonably supports the following facts. On November 20, 1988, at about 5:30 p.m., Roderick Ives and his family were in their stopped automobile, waiting to make a left turn across traffic into a driveway. The Ives vehicle had been stopped for twenty to thirty seconds when it was struck in the rear by a vehicle driven by the defendant.

The police arrived and spoke to the defendant. Suspecting that the defendant had recently consumed alcohol, the police administered field sobriety tests. The defendant failed to recite the alphabet properly, failed the finger-to-nose test, failed the balance test and failed the pick-up test. The defendant refused to take any additional field tests and, after arrest, refused to submit to any blood chemical testing. During the defendant’s trial, an investigating officer testified that the defendant refused to submit to a blood alcohol level test. The defendant was convicted, and this appeal followed.

The defendant first claims that there was insufficient evidence to convict him of drunken driving. The record and transcripts disclose otherwise. The appropriate standard of review with respect to a sufficiency claim “ ‘ “is whether the [court] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” ’ ” State v. Ruth, 16 Conn. App. 148, 153, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989), quoting Stale v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981).

Eyewitnesses to the collision and the investigating officers testified to the defendant’s agitation, his need to be physically restrained, his failed field sobriety tests, his mood swings, his belligerent and hostile demeanor, and the strong smell of liquor on his breath. This evidence is sufficient to support the defendant’s conviction of a violation of General Statutes § 14-227a.

In his second claim of error, the defendant for the first time argues that the admission of evidence of his refusal to submit to a blood alcohol test violated his right against self-incrimination under the constitution of Connecticut, article first, § 8. An unpreserved claim of constitutional error at trial will not be reviewed unless the record supports a claim alleging a violation of a fundamental right. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Pursuant to General Statutes § 14-227b, a motor vehicle operator is deemed to have consented to a blood chemical analysis and, if arrested for driving under the influence of alcohol, shall be informed that a refusal to submit to such analysis may be used against him in a criminal prosecution. The defendant here has no constitutional right to refuse a chemical analysis of his blood and no constitutional right to exclude from his trial the evidence of his refusal. See Volck v. Muzio, 204 Conn. 507, 512-13, 529 A.2d 177 (1987); Clark v. Muzio, 14 Conn. App. 212, 214, 540 A.2d 1063, cert. denied, 208 Conn. 809, 545 A.2d 1105 (1988). Because the defendant’s unpreserved claim is patently not of constitutional magnitude, we will not review it.

There is no error.

In this opinion the othe judges concurred.


text:
    In re John C.

    (7549)
    Borden, Spallone and Daly, Js.
    Argued December 15, 1989
    decision released February 20, 1990

      Ann M. Guillet, assistant public defender, for the appellant (defendant).

      Bruce A. Tonkonow, state’s advocate, for the appellee (state).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Spallone, J.

The defendant appeals from his adjudication as a delinquent for having committed the offense of risk of injury to a child in violation of General Statutes § 53-21. He claims that, as applied to the facts of this case, § 53-21 is unconstitutionally vague. We find no error.

The evidence produced at trial reasonably supports the following facts. On an evening in May, 1988, the victim’s mother was caring for the eight year old victim and the thirteen year old defendant. She discovered the children alone in a bedroom, the defendant standing before the victim with his hands on her head and his erect penis exposed. The defendant was subsequently tried and found guilty of a violation of General Statutes § 53-21. The court determined that there was insufficient evidence to find that the children had engaged in sexual intercourse, but did find that sexual contact had occurred. On the basis of this violation, the defendant was adjudicated a delinquent, and committed to the department of children and youth services. This appeal followed.

The defendant claims that § 53-21 is vague as applied to him and, therefore, that his prosecution under that statute was in derogation of his due process rights under the state and federal constitutions. A claim that a statute is void for vagueness implicates the right to have notice that an activity is prohibited by a criminal statute. See, e.g., State v. Schriver, 207 Conn. 456, 460, 542 A.2d 686 (1988); State v. Perruccio, 192 Conn. 154, 165, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984). The test of unconstitutional vagueness is whether the law as applied to the circumstances of a particular defendant creates doubt about the legality of his particular conduct. State v. Proto, 203 Conn. 682, 696, 526 A.2d 1297 (1987).

I

The defendant first claims that he had no notice that the statute applies to the actions of one who is himself a minor. We cannot agree. Section 53-21 provides that “any person” who engages in the proscribed conduct is in violation of the statute. Statutory language clear on its face will be construed for what it says. State v. Roque, 190 Conn. 143, 150, 460 A.2d 26 (1983). The statute does not limit the definition of “any person” to adults. The legislature was free to, and did not, define violators in terms of age. See, e.g., General Statutes § 21a-278a (a) (scope of offense of illegal sale of controlled substance to minors limited to sellers at least eighteen years old). The defendant cannot contest the fact that he is in the class of “any person,” nor is there any merit to his claim that he is the first juvenile to fall within the statute’s purview. See In re Michael B., 41 Conn. Sup. 229, 566 A.2d 446 (1989).

The defendant argues that, as a matter of policy, § 53-21 should not apply to violators who are minors since they are themselves within the class of children protected by the statute. Despite the defendant’s assertion that interpreting § 53-21 to include acts between children would criminalize instances of “playing doctor,” we will not interpret the law to give minors license to sexually molest other minors. It is contrary to the law’s intent, and to common sense, to establish a policy that withdraws the law’s protection from the victim in order to protect the violator, even one who is a minor.

II

The defendant also claims that § 53-21 is vague as applied to the facts of this case because he had no notice that his conduct was within the ambit of the acts proscribed. Relying on State v. Schriver, supra, the defendant claims that his conviction for impairing a minor’s morals cannot stand because there was no proof that he deliberately touched the victim’s private parts.

Our Supreme Court has determined that while the language of § 53-21 fails to provide an objective definition of proscribed conduct, judicial decisions have provided sufficient guidelines to save the statute from its facial invalidity. Id., 462. The defendant here was charged with committing an act upon the victim likely to impair the victim’s morals, one of two general types of behavior proscribed by § 53-21. See State v. Laracuente, 205 Conn. 515, 521-22, 534 A.2d 882, cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1987); State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). The controlling standard for defining acts likely to impair morals is provided by State v. Pickering, 180 Conn. 54, 428 A.2d 322 (1980). “This court’s opinions pursuant to § 53-21 make it clear that the deliberate touching of the private parts of a child under the age of sixteen in a sexual and indecent manner is violative of the statute.” Id., 64.

In reiterating this standard, the court in Schriver rejected the argument that the judicial gloss oí Pickering did not exhaustively define the reach of the statute. State v. Schriver, supra, 463. The court refused to construe the statute to proscribe conduct that is merely “sexually suggestive”; id., 463-64; as it is not “the type of lewd conduct that § 53-21 proscribes.” Id., 466. The defendant here would have us follow the Schriver gloss on § 53-21 so narrowly as to hold that because he touched the victim with his private parts, rather than on her private parts, he did not commit an act likely to impair her morals. This we cannot accept.

While the defendant here did not touch the victim’s private parts, his act does constitute the type of “lewd conduct” within the reach of § 53-21. The trial court expressly found that the defendant’s penis touched the victim’s mouth. Such contact falls within the definition of sexual contact under General Statutes § 53a-65 (3), which includes not only “any contact with the intimate parts of a person not married to the actor” but “any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor.” (Emphasis added.) The court in Schriver recognized the desirability of reconciling the scope of § 53-21 with similar provisions of the penal code, and our conclusion that § 53-21 encompasses the defendant’s conduct is consistent with the general principles of creating a consistent body of law. State v. Schriver, supra, 463 n.4.

The import of the Schriver decision was to resist the broadening of the scope of the acts that violate § 53-21 in order to provide the objective criteria for enforcement necessary to save the statute from unconstitutional vagueness. We hold here that acts likely to impair the morals of a minor include the deliberate touching of a child under sixteen years old with one’s private parts in a sexual and indecent manner. We conclude that this conduct is sufficiently definite and objective so as to provide the required enforcement standards. The trial court correctly concluded that the defendant had committed an act from which the legislature, by its enactment of General Statutes § 53-21, sought to protect the minor children of the state, and thus properly adjudicated him a delinquent.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53-21 provides: “INJURY OR risk op INJURY to, OR impairing morals op, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The defendant was originally charged with the crimes of sexual assault in the first and second degrees and risk of injury to a child. The sexual assault charges were dismissed at trial. An adjudication of delinquency based on the crime of sexual assault in the third degree was subsequently dismissed upon the defendant’s motion to open the judgment.

       For the purposes of prosecutions under General Statutes § 53-21, the terms “private parts” and “intimate parts” are synonymous. State v. Schriver, 207 Conn. 456, 463 n.4, 542 A.2d 686 (1988). General Statutes § 53a-65 (8) defines intimate parts as “the genital area, groin, anus, inner thighs, buttocks or breasts.”


text:
    Walter Golembeski et al. v. Metichewan Grange No. 190 et al.
    (7776)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued December 5, 1989
    decision released February 20, 1990

      Robert J. Guendelsberger, with whom, on the brief, was James K. Smith, for the appellants (plaintiffs).

      Anthony M. Fitzgerald, for the appellee (defendant John Lillis).
   O’Connell, J.

The plaintiffs appeal from a judgment rendered after a directed verdict in favor of the defendant John Lillis. The plaintiffs’ action alleged that the defendant tortiously interfered with their opportunity to purchase real property from the Metichewan Grange (Grange).

The plaintiffs claim that the court erred (1) in granting the defendant’s motion for a directed verdict when there was evidence from which the jury could reasonably have found in favor of the plaintiffs, (2) in granting the motion before the plaintiffs had rested their case. We find no error.

The Grange is a fraternal organization that owns a meeting hall in New Milford. The plaintiffs submitted a written offer to buy the property for $150,000, and the Grange retained the defendant, an attorney, to represent and advise it in the potential sale. The defendant expressed several reservations about the sale. Specifically, he was concerned about the adequacy of the sale price as well as the Grange’s compliance with its bylaws concerning disposition of assets.

In the course of handling the matter, the defendant advised the master of the Grange that he might be interested in forming a partnership and purchasing the property himself. He made it clear that if he became a purchaser he would withdraw from representing the Grange and another attorney would have to be retained to handle the sale. Subsequently, the person with whom the defendant had briefly considered forming a partnership offered, on his own behalf, $180,000 for the property. The defendant took no part in this offer nor did he ever make any offer to purchase the property. The defendant advised the Grange to reject both the $180,000 and $150,000 offers, and to place the property for sale on the open market. The Grange accepted this advice and rejected both offers.

As a threshold matter, we note that the plaintiffs failed to file a motion to set aside the verdict under Practice Book § 820. “In the absence of a motion to set aside the verdict, we consider the plaintiff[s’] claims under the plain error doctrine, which provides that the Supreme and Appellate Courts ‘may in the interests of justice notice plain error not brought to the attention of the trial court.’ Practice Book § 4185 . . . .” Dunham v. Dunham, 204 Conn. 303, 311, 528 A.2d 1123 (1987); Daley v. Gaitor, 16 Conn. App. 379, 383, 547 A.2d 1375, cert. denied, 209 Conn. 824, 550 A.2d 430 (1988). While we recognize that the plain error doctrine should be invoked sparingly; State v. Scott, 10 Conn. App. 347, 353, 522 A.2d 1245, cert. denied, 204 Conn. 824, 528 A.2d 1152 (1987); here, because the claimed error implicates the fairness and integrity of, and public confidence in, judicial proceedings and attorneys, it is a proper matter for such review.

I

The plaintiffs’ first claim that they had introduced sufficient evidence to require submission of the case to the jury and, therefore, the trial court erred in directing a verdict for the defendant. The general rule in Connecticut is that “[a] trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion.” Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986); see also Daley v. Gaitor, supra, 384. When this court reviews a directed verdict for the defendant, the evidence must be considered in the light most favorable to the plaintiff. Daley v. Gaitor, supra.

The central question is whether a lawyer who advises a client that it is not legally bound to sell property can be held liable to a disappointed prospective purchaser for tortious interference with a business expectancy. An action for tortious interference with a business expectancy is well established in Connecticut. The plaintiff need not prove that the defendant caused the breach of an actual contract; proof of interference with even an unenforceable promise is enough. Id. “A cause of action for tortious interference with a business expectancy requires proof ‘that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously.' ” (Citations omitted.) Jones v. O’Connell, 189 Conn. 648, 660, 458 A.2d 855 (1983). It is also true, however, that “not every act that disturbs a contract or business expectancy is actionable.'' Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983). A defendant is guilty of tortious interference if he has engaged in “improper” conduct. Id., 261; see 4 Restatement (Second), Torts §§ 766, 766B, 767 (1979). “[T]he plaintiff [is required] to plead and prove at least some improper motive or improper means.” Kakadelis v. DeFabritis, 191 Conn. 276, 279, 464 A.2d 57 (1983); Blake v. Levy, supra, 262.

The plaintiffs argue that the defendant improperly interfered with their expectancy of a profit by advising the Grange that it was not required to consummate the agreement with the plaintiffs. They claim that this case presents a situation where the defendant attorney, motivated by self interest, prevented the completion of a real estate transaction between his client and the plaintiffs. The trial court’s decision, they argue, sanctions “insider trading” by attorneys in real estate transactions.

The defendant, on the other hand, contends that he acted properly in giving honest advice to the Grange as part of his obligation to counsel his client on the sale. See Kecko Piping Co. v. Monroe, 172 Conn. 197, 202, 374 A.2d 179 (1977), citing 4 Restatement (Second), Torts § 772 (1979) (no liability for tortious interference when party gives honest advice within the scope of a request for advice). We agree with the trial court that the plaintiffs failed to produce sufficient evidence to justify sending the case to the jury.

Stated simply, to substantiate a claim of tortious interference with a business expectancy, there must be evidence that the interference resulted from the defendant’s commission of a tort. “ ‘[A] claim is made out [only] when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself.’ ” Blake v. Levy, supra, 262, quoting Top Service Body Shop, Inc. v. Allstate Ins. Co., 283 Or. 201, 209, 582 P.2d 1365 (1978). The plaintiffs introduced no evidence to prove that the defendant was guilty of fraud, misrepresentation, intimidation, molestation or malice. Although the plaintiffs emphasize that the defendant expressed some interest in purchasing the property himself, they failed to offer any evidence that he delayed the completion of, or otherwise interfered with, their deal so that he could make his own bid. While the defendant fully apprised the Grange that he was interested in a possible purchase, he never took any further steps toward making an offer. The record indicates that the second offeror acted solely on his own behalf when he placed his bid of $180,000 before the Grange and was not acting in concert with the defendant.

While it is true that the defendant did "interfere” in that he advised the Grange not to sell to the plaintiffs, “[e]very act of interference is not . . . tortious.” Blake v. Levy, supra, 261. To conclude otherwise could possibly expose every attorney to liability for good faith advice to his client and could at least put a chill on the willingness of attorneys to advise clients not to proceed with questionable undertakings. We conclude that the trial court did not commit plain error in directing a verdict for the defendant.

II

In their second claim of error, the plaintiffs assert that the trial court granted the motion for a directed verdict before they had rested. The record does not support this claim.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs withdrew the action against the Metichewan Grange immediately before the commencement of the presentation of evidence. Therefore, when we refer to the defendant we mean John Lillis.

       The action was first recognized in Bulkley v. Storer, 2 Day (Conn.) 531, 536 (1807).

       4 Restatement (Second), Torts § 767 states that the following factors should be considered when assessing whether an actor has “improperly” interfered with a contract or prospective contractual relation of another:
      “(a) the nature of the actor’s conduct,
      “(b) the actor’s motive,
      “(c) the interests of the other with which the actor’s conduct interferes,
      “(d) the interests sought to be advanced by the actor,

        “(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
      “(f) the proximity or remoteness of the actor’s conduct to the interference and
      “(g) the relations between the parties.”


text:
    Sylvester Cocivi et al. v. Plan and Zoning Commission of the Town of Fairfield et al.
    (8022)
    Borden, Spallone and Lavery, Js.
    Argued December 14, 1989
    decision released February 20, 1990

      George J. Markley, for the appellant (named plaintiff).

      John F. Fallon, with whom, on the brief, were Jay S. Kogan and Barbara J. OBrien, for the appellee (defendant Donald Scinto).
   Spallone, J.

The named plaintiff appeals from the trial court’s dismissal of the plaintiffs’ appeal from the granting by the plan and zoning commission of the town of Fairfield (commission) of a zone change and a special permit to the defendant Donald Scinto. The dis-positive issue on appeal is whether the court erred in holding that a published notice stating an incorrect date for the public hearing to be held by the commission satisfied the statutory notice requirement. We find error.

The following facts are uncontested. The public hearing on the applications filed by Donald Scinto was scheduled by the commission for September 30,1986. As mandated by General Statutes §§ 8-3 (a) and 8-3c (b), notices of the time and place of the hearing were published in the Bridgeport Post on September 19 and September 26,1986. The heading of the notice of September 19 correctly identified the hearing date as September 30 but the text of the notice stated the hearing date as July 22,1986. The second notice, published on September 26, did not contain this error.

On appeal to the Superior Court from the commission’s subsequent granting of the variance and the special permit, the plaintiffs claimed, inter alia, that the September 19 publication constituted improper notice because the defect in the date was misleading. The commission argued that because the published date of July 22,1986, had long since passed as of the September 19 publication, no one reading the notice could have been misled. The court agreed with the commission, finding that “[t]he error on the notice was not so misleading as to prevent the public from receiving effective notice.” The court dismissed the plaintiffs’ appeal and this appeal followed.

We cannot agree that this notice, defective as to the announced date of the public hearing, satisfied the statutory notice requirements. Those requirements are for the protection of property interests and therefore implicate rights of due process. Brazo v. Real Estate Commission, 177 Conn. 515, 518, 418 A.2d 883 (1979). Our courts have consistently refused to consider the adequacy of public notice to be a merely procedural matter and have unwaveringly treated failure to give proper public notice as a jurisdictional defect. Wright v. Zoning Board, 174 Conn. 488, 491, 391 A.2d 146 (1978); Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 44, 301 A.2d 244 (1972); Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 109, 291 A.2d 721 (1971). Compliance with the notice procedures requiring that the time of a scheduled public hearing be published at least twice, is a prerequisite to valid zoning authority actions. Bombero v. Planning & Zoning Commission, 17 Conn. App. 150, 154, 550 A.2d 1098 (1988). Without proper public notice, zoning authority actions are null and void. Brazo v. Real Estate Commission, supra; Jarvis Acres, Inc. v. Zoning Commission, supra; see, e.g., Aurora v. Zon ing Board of Appeals, 153 Conn. 623, 625, 220 A.2d 277 (1966) (notice failed to comply with mandated publication intervals).

A notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing. Kleinsmith v. Planning & Zoning Commission, 157 Conn. 303, 310, 254 A.2d 486 (1968); Bombero v. Planning & Zoning Commission, supra, 157-58. Not all flaws in the notice are fatal; for example, the notice need not describe the proposed action with exactitude. Welles v. East Windsor, 185 Conn. 556, 559-60, 441 A.2d 174 (1981). A defect, however, may not be misleading. Cavallaro v. Durham, 190 Conn. 746, 749, 462 A.2d 1042 (1983).

The notice in question, advising the public that the hearing was scheduled for July 22,1986, was misleading. Readers could have been justifiably confused as to whether the hearing had already taken place, whether the entire notice was published late, or whether the notice was issued in error and no meeting was scheduled at all. Far from giving the average reader reasonable warning of a hearing; Planning & Zoning Commission v. Gaal, 9 Conn. App. 538, 545, 520 A.2d 246, cert. denied, 203 Conn. 803, 522 A.2d 294 (1987); this notice invited speculation. The commission, moreover, took no corrective action but merely ignored the mistake. The public is entitled to constructive notice of commission hearings and a defect is not cured merely because some members of the public received actual notice or in fact appeared at the hearing. Jarvis Acres, Inc. v. Zoning Commission, supra, 47. Nor was the defect cured by the second, correct notice published on September 26,1986, because a single publication does not satisfy the statutory mandate. Id., 47-48.

We conclude that the defect in the published date of the proposed hearing rendered this notice insufficient to confer jurisdiction upon the commission to act on the applications before it. The court, therefore, erred in dismissing the plaintiffs’ appeal from the action of the commission.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment sustaining the appeal.

In this opinion the other judges concurred.

       The plaintiffs are Sylvester Cocivi, Elizabeth Gary, Mildred Deaso, Frank Zilinyi and Joyce Zilinyi, all of whom are owners of property within 500 feet of the property that is the subject of the applications before the commission.

       In view of our disposition of this issue, we need not reach the named plaintiff’s other claims of error.

       General Statutes § 8-3 (a), relevant to hearings on zoning variances, provides in pertinent part: “Notice of the time and place of such hearing shall be published ... in a newspaper having a substantial circulation . . . at least twice at intervals of not less than two days, the first not more than fifteen days nor less than ten days, and the last not less than two days, before such hearing . . . .” The notice requirements of General Statutes § 8-3c (b), relevant to hearings on special permits, are the same as those of § 8-3 (a).

       The text of the notice of September 19,1986, as it appeared in the newspaper, was in pertinent part:
      “NOTICE OF PUBLIC HEARING SEPTEMBER 30, 1986
      The Town Plan and Zoning Commission of the Town of Fairfield, Connecticut, hereby gives notice of a public hearing to be held on July 22,1986 at 8:35 P.M., D.S.T., in Riverfield School, Mill Plain Road, Fairfield, Connecticut, to consider the following amendment to the zoning map and zoning districts of the Town and Special Permit applications in conjunction therewith . . . .” (Emphasis added.)


text:
    Larry Williams et al. v. Campanaro Construction Company, Inc.
    (7933)
    Daly, Norcott and Foti, Js.
    Argued December 11, 1989
    decision released February 27, 1990

      Brian J. Casey, for the appellant (defendant).

      Kevin J. Pohl, for the appellees (plaintiffs).
   Norcott, J.

The defendant appeals from the trial court’s judgment rendered in favor of the plaintiffs in the amount of $6809.60 for compensatory damages resulting from the rupture of a sewer pipe in Milford.

The following facts áre not in dispute. In November, 1985, the defendant, Campanaro Construction Company, entered into a construction contract with the state to build a flood control channel at the Great Creek Silver Sands State Park in the city of Milford. In connection with this project, the defendant entered into a subcontractor agreement with Northeast Dredging, Inc., under which Northeast was to furnish all labor and equipment necessary to construct the new Great Creek Channel. On or about August 19,1986, a sewer pipe ruptured in the area of the Great Creek Silver Sands Park where Northeast was working.

The named plaintiff, Larry Williams, is a commercial shellfisherman who leases shellfish beds in the Connecticut waters off the coast of Milford. As a result of the pipe rupture, sewage was discharged into the surrounding waters causing the closure, from August 19 to September 3,1986, of shellfish beds leased by the plaintiffs.

The case was referred to an attorney trial referee who, after a hearing, issued a report recommending that judgment be rendered in favor of the plaintiffs on the negligence count of the complaint in the amount of $6809.60, which was the amount of damages to which Williams had testified. The trial court accepted the referee’s recommendation and rendered judgment accordingly.

On appeal, the defendant claims that the trial court erred in accepting the referee’s conclusion that the evidence introduced at trial established a cause of action in negligence against the defendant. Specifically, the defendant argues that the evidence failed to establish (1) that the sewer pipe was ruptured due to the negligent conduct of the defendant, and (2) that Northeast was an agent of the defendant company. We find error.

A review of the record reveals that, in her report, the referee made absolutely no reference to agency, negligence or negligent conduct. The defendant filed a motion to correct the memorandum of decision requesting that the referee address these deficiencies. The referee, in denying the defendant’s motion, articulated that “evidence adduced at trial” led her to conclude that Northeast “was an agent and under contract with the defendant and that the sewer line rupture was caused while Northeast Dredging Company, Inc., was in performance of its contract with the defendant.”

The function of this court is to determine whether the trial court’s findings are clearly erroneous. Practice Book § 4061; Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256-57, 524 A.2d 610 (1987); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). On appeal, we must determine whether the legal conclusions of the trial court are “ ‘legally and logically correct and whether they find support in the facts set out in the memorandum of decision ....’” Bowman v. 1477 Central Avenue Apartments, Inc., supra, 256. “ ‘In reviewing the evidence ... we must give it the most favorable construction in support of the verdict of which it is reasonably capable.’ ” Shelnitz v. Greenberg, 200 Conn. 58, 67, 509 A.2d 1023 (1986).

Our review of the record reveals that there was insufficient evidence to support a finding of liability for negligence against the defendant. “Recovery of damages in negligence requires proof by a fair preponderance of the evidence that the actor owed a duty of care to the victim, which was breached by the actor’s failure to meet the standard of care arising therefrom and that the breach was the proximate cause of actual harm suffered by the victim.” (Emphasis added.) Coburn v. Lenox Homes, Inc., 186 Conn. 370, 372, 441 A.2d 620 (1982). “[T]he trier may not decide an issue which is wholly unsupported by the evidence.” New Haven Savings Bank v. West Haven Sound Development, 190 Conn. 60, 71-72, 459 A.2d 999 (1983).

At best, the evidence before the trial referee established (1) that Northeast and the defendant had entered into a general contractor-subcontractor relationship that related to dredging work in the waters off of the Great Silver Sands State Park area, (2) that a sewer pipe ruptured in the area where Northeast was working, and (3) that the state of Connecticut closed the shellfish beds leased by the plaintiffs, causing them to lose certain revenues during the period of closure. It is clear from the record, however, that the plaintiffs presented insufficient evidence to establish that Northeast or Campanaro was responsible for the rupture. The referee heard absolutely no evidence from which she could conclude that the sewer pipe ruptured due to a deviation from an applicable standard of care by either Northeast or the defendant. Indeed, there is no evidence regarding the nature of Northeast’s dredging operations. Furthermore, the record reveals no evidence as to the circumstances under which the sewer pipe ruptured.

While the trial referee recognized during the hearing that “proximate causation . . . is the issue here” and while she requested posthearing briefs on “whatever duty you feel that you, the general contractor, owed the plaintiff[s],” she ignored these issues in her final decision. In the final analysis, there was no evidence upon which the court could have logically concluded as to how the pipe broke, who broke it or under what circumstances it broke. “There is no question but that a plaintiff must remove the issues of negligence and proximate cause from the field of conjecture and speculation.” Cruz v. Drezek, 175 Conn. 230, 236, 397 A.2d 1335 (1978). Because we find that the trial referee’s conclusions rest not on sufficient evidence but on speculation, the plaintiffs cannot prevail.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment in favor of the defendant.

In this opinion the other judges concurred.

       The other plaintiff in this action is Jesse D., Inc., a Connecticut corporation that operates a shellfish harvesting business in the waters off Milford and that is wholly owned by and employs the plaintiff.

       The plaintiffs’ complaint sought recovery based on theories of negligence, nuisance, trespass and violation of General Statutes § 22a-427, which prohibits pollution or discharge of wastes in any of the waters in the state. The referee’s memorandum of decision made no mention of the nuisance and trespass counts. Accordingly, we must conclude that the referee found no basis in the evidence to support those allegations.

       This case is distinguishable from Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 567 A.2d 1250 (1989) (where it was error for the trial court, sua sponte, to substitute its own factual findings for those of the factfinders). In this case, we take the facts as found by the trial referee, and we conclude that those facts are insufficient to support a conclusion of negligence.

       The essence of this insufficiency was captured during the following portion of the plaintiffs’ cross-examination of Robert Campanaro, vice president of operations of the defendant company:
      “Q: Did Northeast Dredging break the pipe?
      “A: I don’t know, sir.”
      In addition, we are not persuaded by the plaintiffs’ argument that Robert Campanaro’s statement at the hearing, that “Northeast was responsible for the break,” was a concession of negligence. We conclude from our review of the record that the statement was not based on anything other than speculation.

       In light of our decision on this issue, we need not reach the defendant’s claim that there was insufficient evidence from which the referee could have concluded that an agency relationship existed between the defendant and Northeast.

       See Dills v. Enfield, 210 Conn. 705, 713, 557 A.2d 517 (1989).