author: Foti, J.

text:
    Florence Vinchiarello, Administratrix (Estate of Dolores Thorpe) v. Nirmal Kathuria et al.
    (6708)
    Dupont, C. J., O’Connell and Foti, Js.

      Submitted on briefs December 15, 1988
    decision released May 16, 1989

      Zbigniew S. Rozbicki filed a brief for the appellant (plaintiff).

      Jack G. Steigelfest, Roland F. Young III and Constance L. Epstein filed a brief for the appellees (defendants).
   Foti, J.

In this medical malpractice action, the plaintiff administratrix appeals from the judgment rendered, after a jury trial, in favor of the defendants, Nirmal Kathuria, a psychiatrist, and the Charlotte Hungerford Hospital. The plaintiff claims three errors in the trial court’s instructions to the jury. We find no error.

The jury could reasonably have found the following facts. On July 13,1983, Delores Thorpe died as a result of a self-inflicted overdose of the drug Asendin which was prescribed by the defendant Kathuria. The defendant Kathuria is employed by the hospital, and treated Thorpe for approximately five years prior to her suicide. Thorpe had a history of mental and emotional problems and, in the six years prior to her death, had attempted suicide five times. Kathuria began prescribing Asendin to Thorpe on June 3,1982, in fifty milligram tablets of one hundred units and, on June 23,1983, increased the dosage to one hundred tablets of one hundred milligrams. Thorpe spent some time as an inpatient at the hospital between 1978 and 1981. Following her discharge on May 8, 1981, Kathuria continued to treat Thorpe, as an outpatient, at the hospital psychiatric clinic.

The plaintiff claims that the trial court made three errors in its charge to the jury: (1) in charging the jury not to consider the theory of negligence set forth in sub-paragraph 11 (b) of the complaint; (2) in its instruction on the issue of timeliness with respect to subparagraph 11 (c) of the plaintiffs complaint; and (3) in instructing the jury not to consider the defendants’ failure to keep adequate medical records. We find no error in the court’s charge.

The following procedural facts are relevant to the first issue. The plaintiff’s complaint set forth five theories of negligence. Subparagraph 11 (b) of the complaint alleged that the defendants were negligent in that they prescribed and dispensed the drug Asendin to Thorpe in large dosages “as an outpatient without proper supervision, control and restriction on the dosage and amount of said drug to the plaintiffs decedent in light of the decedent’s recurring severe depressive state and past history of suicide attempts.” Paragraph 11 (e) of the plaintiff’s complaint, which was abandoned by the plaintiff during the trial, alleged that the defendants were negligent in that “[t]hey prescribed and/or dispensed said drug to the plaintiff’s decedent in the described dosages and amounts without control and supervision when due care, under the described circumstances, required such dosages and amounts only be administered in a hospital with professional supervision and control.”

The trial court concluded that subparagraphs 11 (e) and 11 (b) of the complaint alleged the same theory of negligence and interpreted subsection 11 (b) of the complaint to aver that “Asendin should only have been prescribed and administered in a hospital environment and not provided on an outpatient basis.” Because the plaintiff presented no evidence on the issue of whether Asen-din should be prescribed only on an inpatient basis, the trial court instructed the jury to ignore those allegations of negligence. The plaintiff excepted to the charge claiming that the court had misinterpreted subpara-graph 11 (b) of her complaint. The plaintiff argued that, although the emphasis in subparagraph 11 (e), which was abandoned, was that the defendants were negligent in prescribing and dispensing Asendin to an outpatient, subparagraph 11 (b) alleged negligence in the defendants’ failure to monitor properly Thorpe’s ingestion of the drug.

The plaintiff concedes that there was no evidence presented at trial to establish that Asendin should only be prescribed to inpatients. The plaintiff claims that the trial court erred in interpreting subparagraph 11 (b) of the complaint to be limited to the issue of whether the drug should have been prescribed only for inpatient treatment and thereby directing a verdict for the defendant on that theory of negligence, as well as on the theory that the defendants were negligent in failing to monitor properly Thorpe’s care. We do not have to decide whether the trial court erred in its interpretation of subparagraph 11 (b) because we conclude that its decision to direct a verdict on the “monitoring” theory of negligence was nevertheless appropriate. The plaintiff did not present any evidence that the defendants’ failure to monitor and supervise Thorpe was the proximate cause of her death. Thus, under either interpretation of subparagraph 11 (b), a directed verdict was appropriate. We will not reverse the trial court where we find it reached the correct result. Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 301, 552 A.2d 827 (1989).

In a medical malpractice action, “the plaintiff must present medical expert testimony to establish that the defendants’ treatment and care fell short of the required standard [of care] and that the breach proximately caused the plaintiff’s injury. . . . ‘In Connecticut, both [the] breach of the standard of care and proximate cause must be proved by expert testimony.’ Campbell v. Pommier, 5 Conn. App. 29, 32, 496 A.2d 975 (1975). Tt is well settled that the plaintiff cannot prevail unless there was positive evidence of an expert nature from which the jury could reasonably conclude that the defendant was negligent, except where there is manifest such gross want of care or skill as to afford, of itself, an almost conclusive inference of negligence that the testimony of an expert is not necessary.’ Puro v. Henry, 188 Conn. 301, 305, 449 A.2d 176 (1982); Console v. Nickou, 156 Conn. 268, 273-74, 240 A.2d 895 (1968).” (Citation omitted.) Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 520, 509 A.2d 552 (1986).

The plaintiff’s expert testified that Kathuria did not follow an established treatment plan for the decedent’s care between June 24, 1982, and June 24, 1983, and that the number of times Kathuria treated Thorpe during this time fell below the community standard of care. The plaintiff’s expert did not testify, however, that in his opinion there was a causal relationship between Thorpe’s suicide and Kathuria’s failure to monitor her care more frequently. Because the plaintiff did not offer expert testimony to establish that, while the decedent was an outpatient, untimely, improper or inadequate monitoring of the decedent’s care was a substantial factor in causing her death, the trial court acted properly in directing a verdict for the defendants on that issue.

The plaintiff’s next claim is that the trial court erred in instructing the jury that it did not recall any evidence of “untimely” treatment as claimed in subparagraph (c) of the complaint. We disagree. Although the court commented that it could not recall evidence that a failure to provide timely care was a proximate cause of the decedent’s death, it left the ultimate duty of fact-finding to the jury. In reviewing jury instructions the test is whether the charge as a whole fairly presented the case so that no injustice was done. Van Steensburg v. Lawrence & Memorial Hospitals, 194 Conn. 500, 507, 481 A.2d 750 (1980). We conclude the jury charge, read as a whole, sufficiently stated the principle that factual determinations are for the jury to decide, and that the jury was fairly apprised of its obligation to determine whether the plaintiff proved that the defendants’ acts caused the decedent’s death.

The plaintiff’s last claim is that the trial court erred in instructing the jury not to consider any failure by the defendants to keep accurate records as evidence of negligence. Because the plaintiff did not allege that the defendants’ failure to keep proper records was a substantial factor in causing Thorpe’s death, the trial court, throughout the course of the trial, did not permit the plaintiff to introduce evidence on that issue, and denied her request to charge.

The trial court was justified in limiting its charge to those theories specifically pleaded by the plaintiff. “ ‘ “It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.” ’ (Citations omitted.) Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983). ‘What is in issue is determined by the pleadings and these must be in writing.’ Telesco v. Telesco, 187 Conn. 715, 720, 447 A.2d 752 (1982). Once the pleadings have been filed, the evidence proffered must be relevant to the issues raised therein. ... A judgment upon an issue not pleaded would not merely be erroneous, but it would be void.” (Citation omitted.) Tehrani v. Century Medical Center, 7 Conn. App. 301, 308, 508 A.2d 814 (1986). We conclude, therefore, that because the plaintiff did not plead the issue of inadequate record keeping and, as a result, was not allowed to present evidence to support that claim, it was not error for the trial court to instruct the jury not to consider that issue.

There is no error.

In this opinion the other judges concurred.

       Paragraph 11 of the plaintiff’s amended complaint sets forth the following allegations: “The plaintiffs decedent’s described ingestion and overdoses of said drugs and the resulting suffering and death were directly and proximately caused by the defendants’ negligence. The said defendants failed to exercise that degree of care and skill ordinarily exercised by a psychiatrist engaged in the practice of psychiatry in the State of Connecticut in one or more of the following ways:
      “a) They prescribed and dispensed the drug Asendin in a large dosage and amount and thereby ignored the necessary precaution and such drug should only be prescribed in the smallest suitable amount to patients with severe depression and history of suicide attempts and threats.
      “b) They prescribed and dispensed said drug in large dosages and amounts on an outpatient basis without proper supervision, control and restriction on the dosage and amount of said drug to the plaintiffs decedent in light of the decedent’s reoccurring severe depressive state and past history of suicide attempts.
      “c) They failed to provide Dolores Thorpe with proper and timely psychiatric care and treatment.
      “d) They prescribed and/or dispensed said drug in such large dosages and quantity that the same was dangerous and potentially lethal when they knew, or should have known, of past suicide attempts by this patient with other prescribed drugs for depression. They knew or should have known, that said drug, under the described circumstances, with its pharmaceutical properties and precautions, was likely to cause death if taken in overdose amounts by a patient.
      “e) They prescribed and/or dispensed said drug to the plaintiff’s decedent in the described dosages and amounts without control and supervision when due care, under the described circumstances, required that such dosages and amounts only be administered in a hospital with professional supervision and control.”

       The court’s instructions were as follows: “Now, as far as paragraph c is concerned, they failed to provide Dolores Thorpe with proper and timely psychiatric care and treatment.
      “In that regard, that is a general allegation which goes into the other two specific allegations of whether or not the psychiatric care-, which was provided to Dolores Thorpe, was proper.
      “I do not recall evidence that would result in the proximate cause of this patient’s death of not being in a timely fashion, but again, those are factual inferences for you to determine and bear in mind as you consider the entire charge.

        “If you find that either subparagraph a or d constituted a duty of care owed to Dolores Thorpe by Dr. Kathuria, and if you further find that it is more likely than not that the death of Dolores Thorpe resulted from the defendant’s failure in one of the respects, or one of these failures was a substantial factor in the production of her death, then the plaintiff will have prevailed on the issue of negligence.”

       The plaintiff does not challenge the trial court’s evidentiary rulings excluding evidence regarding the defendants’ record keeping. Consequently, we will not review those rulings. Practice Book § 4185.


source: Caselaw Access Project

license: Public Domain

text:
    Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., et al.
    (6652)
    Dupont, C. J., O’Connell and Foti, Js.

      Argued December 14, 1988
    decision released May 16, 1989

      Timothy S. Hollister, for the appellant-appellee (plaintiff).

      M. Katherine Webster-0 Keefe, with whom, on the brief, was Vincent P. McCarthy, for the appellee-appellant (defendant Anthony Cerruto).
   Foti, J.

The plaintiff appeals and the defendant Anthony Cerruto cross appeals from the judgment rendered by the trial court awarding the plaintiff damages for the defendants’ breach of a commercial lease.

The plaintiff claims that the trial court erred (1) in denying a substantial portion of its claim for posteviction losses of rental income, and (2) in denying its claim for expenses. In the defendant’s cross appeal, he claims that the trial court erred in awarding the plaintiff posteviction damages. We find error on the plaintiff’s second claim and no error on the cross appeal.

The trial court found the following facts. On May 16, 1985, the parties entered into a lease agreement under which the defendant agreed to lease the plaintiffs commercial property for a three year term beginning on June 24, 1985. According to the lease, the defendant agreed to pay the plaintiff a monthly rent of $3400 for the first year, $3700 per month for the second year and $3850 per month for the third year. The lease further obligated the defendant to pay the real estate taxes, water and sewer charges, fire district taxes, and any maintenance charges. Under the lease, the defendant was to pay these expenses “within fifteen (15) days after presentation to the lessee of the bill for same.” With respect to assignment, the lease provided: “No assignment of this lease by Lessee shall release the lessee of his obligations under this lease.”

On June 4, 1985, the defendant assigned his inter- • est in the lease to Connecticut Eating Enterprises, Inc. (Eating Enterprises). Beginning August 1, 1986, the defendant’s assignee stopped paying rent. In September, 1986, Eating Enterprises vacated the premises and neither the defendant nor his assignee paid any further amounts under the terms of the lease. In November, 1986, the plaintiff obtained a judgment of possession of the premises after a summary process proceeding.

On March 12,1987, the plaintiff executed a two year lease with a new tenant, effective May 1, 1987. The lease obligated the tenant to pay rent in the amount of $2800 per month for the first year, and $3400 per month for the second year.

The parties stipulated that the defendant was liable for breaching the lease and agreed to a hearing on damages only. At the hearing, the parties further stipulated that prior to the summary process judgment the defendant was liable for damages in the amount of $12,787.49. At the hearing, the parties focused on damages occurring after the summary process judgment was rendered, including posteviction rent, a real estate broker’s commission, tax claims, and attorney’s fees.

The trial court awarded the plaintiff $11,100 in posteviction damages representing three of the six months of lost rental income, but denied the plaintiffs claim for additional damages for lost and diminished rent finding that the plaintiff had failed to make reasonable efforts to mitigate its damages. In addition, the trial court denied the plaintiff’s claim for expenses finding that the plaintiff had failed to present the bills for such expenses to the defendant as required by the terms of the lease.

The plaintiff’s first claim is that the trial court erred in denying it rent for three of the six months between the date the defendant was evicted and the beginning of the successor tenant’s lease term, and for the difference between the rental amounts in the old and the new leases. In his cross appeal, the defendant claims that the plaintiff was not entitled to any posteviction damages. In light of the nature of the defendant’s claim, we must first address the defendant’s cross appeal before turning to the plaintiff’s claims.

The defendant argues, in essence, that the plaintiff, by exercising its right under General Statutes § 47a-23 to sue for possession of the premises, waived its right to recover damages that it incurred after the entry of a judgment of possession. We disagree.

When the lessee breaches a lease for commercial property, the lessor has two options: (1) to terminate the tenancy; or (2) to refuse to accept the surrender. Sagamore Corporation v. Willcutt, 120 Conn. 315, 317-18, 180 A. 464 (1935); Dewart Building Partnership v. Union Trust Co., 4 Conn. App. 683, 687, 496 A.2d 241 (1985). Where the landlord elects to continue the tenancy, he may sue to recover the rent due under the terms of the lease. Under this course of action, the landlord is under no duty to mitigate damages. Dewart Building Partnership v. Union Trust Co., supra. When the landlord elects to terminate the tenancy, however, the action is one for breach of contract; Sagamore Corporation v. Willcutt, supra; and, when the tenancy is terminated, the landlord is obliged to mitigate his damages. Dewart Building Partnership v. Union Trust Co., supra. When the tenancy ends, the tenant is released from his obligations under the lease and is, therefore, no longer obliged to pay rent. Feneck v. Nowakowski, 146 Conn. 434, 436, 151 A.2d 891 (1959).

The defendant relies on Feneck v. Nowakowski, supra, for the proposition that because the plaintiff opted to terminate the tenancy, his obligation to pay rent was discharged and, therefore, he cannot be liable to pay rent due after the judgment of possession was rendered. The defendant’s reliance on Feneck is misplaced. Although the termination of the tenancy releases a tenant from his obligations under the lease, such release does not leave the landlord without legal recourse to recover damages. Where a landlord, as in this case, elects to terminate the tenancy and to regain possession of the premises, although he cannot institute an action for rent due under the lease, he may sue for a breach of the lease. Where the action is one for breach of the lease, basic contract principles apply.

As the trial court correctly concluded: “A lease is nothing more than a contract. Robinson v. Weitz, 171 Conn. 545, 551, [370 A.2d 1066 (1976)]. Thus, as in any other contract action the measure of damages is that the award should place the injured party in the same position as he would have been in had the contract been fully performed. Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 404-405, [365 A.2d 1086 (1976)]. As a consequence, the unpaid rent, while not recoverable as such, may be used by the court in computing the losses suffered by the plaintiff by reason of the defendant’s breach of contract of lease. The plaintiff would be entitled to recover the damages which would naturally follow from such a breach. Sagamore Corporation v. Willcutt, [supra, 320].” See also Danpar Associates v. Somersville Mills Sales Room, Inc., 182 Conn. 444, 445-46, 438 A.2d 708 (1980); 49 Am. Jur. 2d, Landlord and Tenant § 183. We conclude that the trial court correctly determined that, in an action for breach of a lease, the amount of rent agreed to by the parties is a proper measure of damages. There is, therefore, no error on the defendant’s cross appeal.

Having determined that the plaintiff’s suit for posteviction damages under a breach of contract theory is actionable, we turn to the plaintiff’s first claim on appeal that the trial court erred in finding that it failed fully to mitigate its damages. We find no error.

It is well established that in an action for damages for breach of a lease, the injured party is under a duty to mitigate his or her damages. Danpar Associates v. Somersville Mills Sales Rooms, Inc., supra, 446. The duty to mitigate requires a landlord to “make reasonable efforts” to minimize damages; id.; which includes taking steps to relet the premises. What constitutes reasonable efforts is a question of fact for the trier. Id. We will not reverse the findings of the trial court unless we conclude they are clearly erroneous. Practice Book § 4185; Gallicchio Bros., Inc. v. C & S Oil Co., 191 Conn. 104, 107, 463 A.2d 600 (1983); Elliott v. Estate of Nellie Galaske, 17 Conn. App. 823, 824, 552 A.2d 1225 (1989). The trial court’s findings of fact are clearly set forth in an exhaustive and well reasoned memorandum of decision.

In determining that the plaintiff failed to mitigate some of its claimed damages, the trial court found the following acts or omissions determinative. First, the trial court found that the plaintiff did not hire a real estate broker until almost four months after the defendant’s default and provided no explanation for this delay. The trial court found that this unexplained delay was unreasonable. In addition, the plaintiff did not introduce any evidence by the broker to establish what efforts were made by him to lease the premises. Further, the trial court found that the unexplained decrease in the rental value of the property was unreasonable in view of the fact that there was evidence presented that established that the value of the property had increased. We conclude, on the basis of these factors, that the trial court’s finding that the plaintiff failed to make reasonable efforts to mitigate its damages was well within its discretion.

The plaintiff’s second claim is that the trial court erred in denying his claim for “additional rent” or expenses on the ground that the plaintiff had failed to present the bills to the defendant as required by the lease. The plaintiff argues that any obligation it may have had to present bills to the defendant was vitiated by the defendant’s breach of the lease, and its subsequent notice to the defendant to quit the premises. We agree with the plaintiff and find error on this claim.

As stated above, a lease is a contract; Sandrew v. Pequot Drug, Inc., 4 Conn. App. 627, 629, 495 A.2d 1127 (1985); and the “rules applying to contracts generally with respect to breach, the right to damages for breach, and the measure of damages, apply to leases as well as contracts.” 49 Am. Jur. 2d, Landlord and Tenant § 176. It is a general rule of contract law that a total breach of the contract by one party relieves the injured party of any further duty to perform further obligations under the contract. Batter Building Mate rials Co. v. Kirschner, 142 Conn. 1, 10, 110 A.2d 464 (1954); 4 A. Corbin, Contracts § 946; 17 Am. Jur. 2d, Contracts § 428; J. Calamari & J. Perillo, Contracts (3d Ed.) § 11-18; 2 Restatement (Second), Contracts §§ 237 and 243; see also Vesce v. Lee, 185 Conn. 328, 334, 441 A.2d 556 (1981). When a breach of contract occurs, “[t]he contract is not put out of existence, though all further performance of the obligations undertaken by each party may cease. It survives for the purpose of measuring the claims arising out of the breach . . . .” Batter Building Materials Co. v. Kirschner, supra.

The defendant in this case materially breached the lease by terminating rental payments and abandoning the property. The plaintiff, as the injured party, therefore, was not responsible for performing its remaining duties under the lease, including presenting bills' for taxes and other expenses to the defendant. Since the defendant refused to pay rent, it was not likely that he would agree to pay the taxes and other expenses. The taxes and other expenses were designated as additional rent in the lease. The law does not require a party to engage in an act that would be futile. Vachon v. Tomascak, 155 Conn. 52, 57, 230 A.2d 5 (1967); Connecticut Light & Power Co. v. Costello, 161 Conn. 430, 441, 288 A.2d 415 (1971). We conclude that the trial court erred in finding that after the defendant committed a material breach, the plaintiff was required to conform to the terms of the lease.

There is error on the plaintiffs appeal, the judgment is set aside as to the award of damages and the case is remanded for a hearing to determine what additional damages may be due the plaintiff relating to the plaintiffs’ claim for expenses. There is no error on the cross appeal.

In this opinion the other judges concurred.

       The named defendant, Connecticut Eating Enterprises, Inc., (Eating Enterprises) was defaulted for failure to appear. On May 1,1987, the trial court rendered judgment in favor of the plaintiff on its claim against Eating Enterprises and awarded the plaintiff damages in the amount of $71,159.21. The defendant Eating Enterprises has not appealed. References to “the defendant” apply to the defendant Anthony Cerruto.

       Paragraph 8 of the lease provides: “That the Lessee shall pay as additional rent all real estate taxes, assessments, water and sewer charges, and fire district taxes which are assessed or imposed upon the leased premises or any part thereof, which may become payable during this term of this lease. Said additional rent shall be paid to the Lessor by the Lessee within fifteen (15) days after presentation to the Lessee of the bill for same. Lessee shall have the right to contest by legal proceedings, instituted and conducted by the Lessee at Lessee’s own expense and free of expense to the Lessor, any such expenses constituting additional rent. In addition, Lessee agrees to pay any additional interest, costs, or fees incurred by Lessee’s failure to make timely payments hereunder.”

       General Statutes § 47a-23 (a) provides: “When a rental agreement or lease of any land or building or of any apartment in any building, or of any dwelling unit, or of any trailer, or any land upon which a trailer is used or stands, whether in writing or by parol, terminates by lapse of time or by reason of any expressed stipulation therein, or under the provisions of section 47a-15, or as a result of a violation of section 47a-ll, or where such premises, or any part thereof, is occupied by one who has no right or privilege to occupy such premises, or where one originally had the right or privilege to occupy such premises but such right or privilege has terminated, and the owner or lessor, or his legal representatives, or his attomey-atlaw, or in-fact, desires to obtain possession or occupancy of the same, at the termination of the rental agreement or lease, if any, or. at any subsequent time, he or they shall give notice to each lessee or occupant to quit possession of such land, building, apartment or dwelling unit, at least eight days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy.”

       The plaintiff also claims that the trial court denied its claim for damages for heat and exterminator expenses on the same ground. The plaintiff argues that the “presentation” requirement in paragraph eight of the lease; see footnote 2, supra; applies to bills for real estate taxes, and sewer and fire district charges only and does not include general maintenance expenses such as heat.
      There is nothing in the trial court’s memorandum to suggest that it included heat as an element of "additional rent” under paragraph eight of the lease. The court obviously considered other claims for damages because it awarded the plaintiff miscellaneous damages. Furthermore, because the plaintiff did not seek articulation, it cannot now be heard to complain that this award for miscellaneous claims does not apply to general maintenance expenses such as heat. Practice Book §§ 4051 and 4061.


author: Norcott, J.

text:
    Seymour Housing Authority Tenants Association et al. v. Housing Authority of the Town of Seymour et al.
    (6322)
    Spallone, Norcott and Foti, Js.
    Argued November 10, 1988
    decision released May 16, 1989

      Richard P. Gilardi, for the appellants (plaintiffs).

      Louis A. Silverstein, for the appellees (defendants).
   Norcott, J.

The plaintiffs, the Seymour Housing Authority Tenants Association (association) and some members of the association in their individual capacity, appeal a decision by the trial court in an action brought against the defendants, the housing authority of the town of Seymour (authority) and Norman Ray, its executive director.

After some members of the association received eviction notices from the authority, the plaintiffs brought this action alleging that the defendants had arbitrarily set the maximum allowable income limits for residence in the moderate income housing project in violation of General Statutes § 8-72a. They contended that this allegedly improper determination resulted in their being overcharged for the continued occupancy of their apartments and improperly subjected them to eviction. In their prayer for relief, the plaintiffs requested, inter alia, a declaratory judgment that § 8-72a is unconstitutional, an injunction restraining the authority from attempting to evict them, an order that the income limits were arbitrary, unreasonable, unlawfully determined and void, an accounting of the improper surcharges paid by the plaintiffs and a distribution thereof to the plaintiffs.

The trial court determined that the authority had violated § 8-72a by not considering the average wage for the town of Seymour in its computation of the maximum income limits, and granted the injunctive relief requested, restraining the defendants from attempting to evict the plaintiffs until the defendants properly determined the maximum income limits. Although the court held that it lacked jurisdiction to make a declaratory judgment because proper notice had not been given to all interested parties, it nevertheless held that the statute in question was not unconstitutional on either due process or equal protection grounds or as an unconstitutional delegation of legislative power. The court also held that the plaintiffs did not have a constitutionally protected property interest in retaining their incomes that required due process protection, and that the plaintiffs were not entitled to an accounting and distribution of the unlawfully accumulated surcharge.

On appeal, the plaintiffs claim that the trial court erred in determining (1) that the plaintiffs did not have property interests entitled to constitutional protection and (2) that they were not entitled to an accounting and distribution of any excessive surcharges paid. We find error in part.

The trial court’s memorandum of decision reflects that the parties stipulated to the following facts relevant to this appeal. Since 1976, some resident plaintiffs have earned annual incomes purportedly exceeding the maximum limits set out in General Statutes § 8-72a. Those plaintiffs have continued to occupy their units since that time, with the approval of the defendants, under a surcharge arrangement that requires over-income residents to pay, in addition to their rent, a monthly surcharge of 2 percent of their incomes that is in excess of the maximum limit. The maximum income limit has remained at $11,000 since 1981. In 1982, 46 percent of the tenants were classified as over-income. Prior to 1982, the authority made no attempt to evict over-income tenants. Also prior to 1982, the plaintiffs questioned the basis and formula for setting maximum income limits and surcharges.

In 1982, the authority moved to evict all tenants who had been classified as over-income for at least two years. Without prior notice or an opportunity for tenants to be heard, the authority, in March, 1982, issued sixty-day notices to vacate pursuant to General Statutes § 8-73. Despite the parties’ reported agreement to suspend further action pending a meeting among them to discuss the evictions and the policy on setting maximum income limits, some, but not all, over-income tenants received notices to quit before the meeting took place. No further action pursuant to these notices had been taken by the time of trial.

The procedure for setting maximum limits has not changed in twenty years. No policies or guidelines are given to authority members who set the limits, nor is there a schedule for reconsidering or adjusting the limits. When a commissioner moves to set a limit, the authority’s executive director consults an accountant for an economic overview of the project and then reports to the state housing commissioner. The report contains the dollar amount of the maximum limit requested by the executive director and the number of vacancies and pending applications for admission to the project. In the time that this procedure has been followed, the state department of housing has approved every request for a particular income limit submitted by the defendant authority. Neither the executive director nor any commissioner or other authorized person has ever considered the average wage for the town of Seymour in computing the maximum limit.

The parties have also stipulated to the existence of an amount of annual income derived from the rental of seventy-two units that has remained the same since 1977. They also agreed on the total amount of the surcharges paid by over-income tenants since 1977, and on the amount of cash and additional total reserves accumulated by the authority since 1977.

I

The plaintiffs’ first claim is that the trial court erred in finding that they did not have property interests protected under the federal and state constitutions. Although the plaintiffs have withdrawn their appeal on the issue of the facial unconstitutionality of the statute, they still claim a constitutional violation in the failure of the defendants to consider all statutorily mandated factors, and seek a remedy of return of the improperly collected surcharges. The plaintiffs’ approach to this issue is a confusing one, with intertwined claims of right and remedy, and of equal protection and due process violations; the latter seemingly encompassing both procedural and substantive due process claims and the procedural claim containing both notice and confiscation arguments.

The only discernible constitutional claim supported by any legal authority appears to be the plaintiffs’ proposition that tenants of government subsidized housing projects have certain constitutionally protected property interests requiring procedural due process protections. The cases cited by the plaintiffs in support of this claim stand for the proposition that such tenants have property interests in not having their rent increased and in continued residence in public housing, and that these interests are subject to limited constitutionally mandated process. Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir. 1970), cert. denied, 400 U.S. 853, 91 S. Ct. 54, 27 L. Ed. 2d 91 (1970); Owens v. Housing Authority of City of Stamford, 394 F. Sup. 1267 (D. Conn. 1975); Burr v. New Rochelle Municipal Housing Authority, 347 F. Sup. 1202 (S.D.N.Y. 1972), modified, 479 F.2d 1165 (2d Cir. 1973); Housing Authority v. McKenzie, 36 Conn. Sup. 515, 412 A.2d 1143, cert. denied, 179 Conn. 751, 405 A.2d 673 (1979). The process found due such tenants consists of varying forms of notice and varying levels of hearing rights before eviction or before rent or additional charges may be levied. These cases, however, are inapposite to the plaintiffs’ claims on appeal, which, although asserting protected property interests, do not allege violations of their rights to prior notice or an opportunity to be heard, but rather request reimbursement of improperly paid surcharges based on a claimed constitutional right to retain their incomes.

Because of the plaintiffs’ shotgun approach to the constitutional issue, they have not squarely presented an argument that the limited procedural process provided by some courts to tenants of government subsidized housing should be extended to encompass a constitutional due process right to have the defendants comply with the procedures for determining the maximum income limits as set out in General Statutes § 8-72a, and a constitutional right to a monetary remedy for a statutory violation. We therefore do not find this an appropriate case for determining the extent of any constitutional procedural safeguards to which tenants of government subsidized housing may be entitled.

Even assuming the plaintiffs have a property interest in retaining their incomes that might require some due process protection, we conclude that the allegations in their complaint do not correspond to the facts that gave rise to the constitutional remedies in the cases that they cite in support of their claim. Therefore, even if it were erroneous for the trial court not to recognize any such protected interest, it was not error to refuse the constitutionally based remedy requested. We also note that the plaintiffs’ wholesale constitutional attack on the court’s holding implies their belief that the failure of the authority to comply with the requirements of § 8-72a necessarily violates some constitutional right. Such a belief ignores the fact that we are a nation of limited government and that not every statutory violation implicates constitutional rights. See Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54 (2d Cir. 1985).

II

The plaintiffs also claim that it was error for the trial court to refuse to order an accounting and distribution of the funds collected by the defendants from the plaintiffs in violation of § 8-72a.

The trial court found that the plaintiffs did not meet the requirements necessary for an action for accounting and therefore that they were not entitled to a distribution of the illegally obtained surcharge payments. This treatment of the request for an accounting and distribution as an “action” for accounting was improper. The plaintiffs’ prayer for relief included a request for “an accounting of the surplus accumulated by the Defendant Authority as a result of the illegal surcharges paid by the Plaintiffjs] to said Authority [and a] distribution to the Plaintiffs of any unlawfully accumulated surplus received by the Defendants from the Plaintiffs.” The pleadings and arguments in the trial court indicate that the request for a “distribution” was, in effect, a request for the return of any surcharges collected in violation of General Statutes § 8-72a or as a consequence of the application of the allegedly unconstitutional statute.

Because of the complexity of the financial data involved in the assessment of the surcharges, at the time the plaintiffs filed the complaint they did not know how much they had paid in improper charges. They therefore requested a calculation or “accounting” to determine the amount of money, if any, that was to be returned to each plaintiff if the court found them entitled to reimbursement.

The trial court’s mischaracterization of the request for relief led it both to misapply the law of an action for accounting and to conclude erroneously that because the plaintiffs were not entitled to relief in an action for accounting, they were not entitled to a distribution. A decision on whether the plaintiffs are entitled to a distribution — in this case a reimbursement— of improperly collected money, is not dependent upon whether they are entitled to an accounting or calculation of the amount of such money. The plaintiffs’ entitlement to recovery must be determined before reaching the issue of whether a calculation by the defendants is necessary to allocate properly any funds to be distributed among the plaintiffs.

Although we have concluded that the plaintiffs have not presented a constitutional route by which they may recover the improperly collected funds, there remain other possible means of recovery. These include statutory and equitable considerations. A statutory remedy does not appear to be available in this case because there is no language in chapter 128 that provides or indicates legislative intent to provide a remedy, monetary or otherwise, for violations of § 8-72a. Had the legislature intended to provide such a statutory remedy, it would have specifically written it. into the statute. See In re Petition of State’s Attorney, Cook County, Illinois, 179 Conn. 102, 106, 425 A.2d 588 (1979). “ ‘[I]t is not the province of a court to supply what the legislature chose to omit.’ ” Glastonbury Co. v. Gillies, 209 Conn. 175, 181, 550 A.2d 8 (1988), quoting Federal Aviation Administration v. Administrator, 196 Conn. 546, 549, 494 A.2d 564 (1985).

This leaves the issue of equitable considerations. Equity will intervene when legal relief is unavailable or inadequate. Norwich v. Lebanon, 200 Conn. 697, 711, 513 A.2d 77 (1986). Because the determination of what equity requires in a particular case is a matter within the discretion of the trial court; Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982); Hall v. Dichello Distributors, Inc., 6 Conn. App. 530, 540, 506 A.2d 1054, cert. denied, 200 Conn. 807, 512 A.2d 230 (1986); it is not for this court to determine such issues for the first time on appeal. The plaintiffs’ prayer for relief requested, inter alia, “any other relief appropriate in law and equity.” A general prayer for equitable relief is broad enough to permit “the long arm of equity” to include whatever relief “the court may from the nature of the case deem proper. Any relief can be granted under a general prayer which is consistent with the case stated in the complaint and is supported by the proof ‘provided the defendant will not be surprised or prejudiced thereby.’ 1 Whitehouse, Equity Practice (1915 Ed.) § 119, p. 223.” Cottrell, v. Cottrell, 106 Conn. 411, 420, 138 A. 458 (1927); Pellegrino v. O’Neill, 193 Conn. 670, 692, 480 A.2d 476 (Peters, J., dissenting), cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984).

Because the trial court erroneously determined that the plaintiffs were not entitled to reimbursement of improperly collected funds solely because they did not meet the requirements for an action for accounting, the trial court did not consider the possibility of return of the improperly collected funds on the basis of any equitable considerations supported by the facts alleged and proved at trial. For this reason, we find error and remand for the trial court to determine whether there are equitable grounds that require the return of the improperly calculated surcharges. The court will be in a position to view the impact of such a remedy on the plaintiffs as well as on the defendant authority and, by balancing the equities, “fashion relief ‘molded to the needs of justice.’ Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 54, 492 A.2d 223 (1985).” Hall v. Dichello Distributors, Inc., supra.

If, on remand, the court determines that equity requires reimbursement of the improperly collected funds, we note that due to the complicated nature of the financial transactions among the parties, the plaintiffs would be entitled to an accounting by the defendants to determine the amount to be returned to each of the plaintiffs.

Although at trial the authority produced a calculation of the amounts paid as surcharges during the plaintiffs’ tenancies for the years 1976 through 1986, the more complicated aspect of the calculation involved in this case, and the one that the plaintiffs are unable to ascertain, is the proper determination of the maximum allowable income limits for the period of 1976 through 1986. Although General Statutes § 8-72a provides factors for the authority to consider in setting the limits, it was admitted at trial that there is no mathematical formula for computing these limits. Without such a basis for weighing the various factors, the statutory determination of the proper limits is complex and vests the defendants with a degree of latitude and discretion in their determination.

The court’s order that the defendants compute the proper income limits before proceeding with evictions of over-income tenants required a determination solely of the correct current limits. If equity is to require reimbursement of funds already paid, it will be necessary to determine not only the proper current income limits, but also the proper limits and surcharges for the years 1976 through 1986. It will also be necessary to compute any setoffs to this amount; for instance, what amounts the tenants would have paid in additional rent, given lower surcharges. Clearly such complicated determinations require computation by the defendants.

Ill

The defendants contend, for the first time on appeal, that the plaintiffs are guilty of laches because they have questioned the basis and formula for setting the maximum income limits since 1970 but did nothing about it until they brought this suit in 1982. First, we note that any relief the plaintiffs could receive would be based on the 1976 date set out in their complaint. See footnote 10, supra.

“A party may . . . be barred from seeking equitable relief by the defense of laches, which applies only if there has been an unreasonable, inexcusable and prejudicial delay in bringing suit. ‘A conclusion that a plaintiff has [not] been guilty of laches is one of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law.’ Papcun v. Pap-cun, 181 Conn. 618, 621, 436 A.2d 282 (1980).” (Citations omitted.) Dunham v. Dunham, 204 Conn. 303, 327, 528 A.2d 1123 (1987). “ ‘Delay alone is not sufficient to bar a right’; the delay in bringing suit must be ‘unduly’ prejudicial.” Cummings v. Tripp, 204 Conn. 67, 88, 527 A.2d 1230 (1987), quoting Owens v. Doyle, 152 Conn. 199, 207, 205 A.2d 495 (1964). “The burden is on the party alleging laches to establish that defense.” Cummings v. Trip, supra. “ ‘The principal element in applying the doctrine of laches is the resulting prejudice to a defendant, rather than the delay itself.’ ” Id., 89, quoting 3 A. Rathkopf & D. Rathkopf, Law of Zoning and Planning § 45.06, p. 45-73. The defendants do not argue that the delay in bringing this action caused any prejudice, but only that it was inexcusable. We will not, therefore, conclude on appeal that it is inevitable as a matter of law that the plaintiffs are guilty of laches.

There is error in part and the case is remanded with direction to determine whether equitable considerations require reimbursement of improperly collected surcharges, and, if so, for a calculation of the amount to be reimbursed to each plaintiff.

In this opinion the other judges concurred.

       The plaintiffs withdrew the appeal as to the other defendants, the Connecticut housing commission and the Connecticut department of housing.

       General Statutes (Rev. to 1983) § 8-72a provided: “Maximum income limits: Factors to be considered. In fixing maximum income limits under section 8-72, the authority or the developer and the commissioner of housing shall take into consideration (1) the latest average wage as computed by the labor commissioner for the city or town served by the authority, (2) the number of vacancies in the projects under the authority’s control, and (3) the number of applications for admission to tenancy which are refused because of income disqualification.” The legislature amended the statute in 1984 to add another factor, the town’s latest median income. The amendment does not apply, however, to this action.

       Additionally, the prayer for relief requested both an order directing the authority to remedy allegedly hazardous conditions in the apartments and an award of attorney’s fees. The plaintiffs do not raise the hazardous conditions issue on appeal and, although they mention that the trial court denied their requests for attorney’s fees, they do not brief the issue. We therefore deem these claims abandoned. See Morning Star Holding Co. v. Kostopoulos, 12 Conn. App. 593, 595, 533 A.2d 569 (1987).

       The plaintiffs claim that the court’s denial of the requested accounting and distribution was based on its erroneous determination of their constitutional claim. We do not find support, however, in the memorandum of decision for this assertion.

       General Statutes (Rev. to 1989) § 8-73 provides: “eviction of families HAVING INCOME OVER MAXIMUM LIMITS. WAIVER OF EVICTION REQUIREMENTS. (a) A tenant in a moderate rental housing project shall vacate the dwelling unit occupied by him not later than sixty days after the housing authority or developer has mailed to such tenant, properly addressed, postage prepaid, written notice that the annual income of such tenant’s family, determined under section 8-72, is in excess of that permitted for continued occupancy of such dwelling unit under said section. Upon the failure of such tenant to vacate such dwelling unit on or before the expiration of such sixty-day period and so long as such tenant continues to occupy such dwelling unit after the expiration thereof, such tenant shall be obligated, notwithstanding the provisions of section 8-72, to pay to the authority or developer monthly as rent for such dwelling unit an amount equal to the going rental therefor as fixed by the authority or developer plus an amount equal to two per cent of the excess of the annual income of such family over that permitted for continued occupancy of such dwelling unit under section 8-72.

        “(b) Notwithstanding the provisions of subsection (a), if the eviction of such tenants would result in or increase the number of vacancies in such project, the housing authority or developer may request approval of the commissioner of housing to permit continued occupancy by tenants having an annual income over the maximum limits established for such project and rental of existing vacant units to tenants having an annual income over such maximum limits. If the commissioner finds that the vacancy rate which would result from refusal to grant such approval may result in an inability of the project to provide an income adequate for debt service, if any, administration, including the state service charge, other operating costs and reserves for repairs, maintenance, replacements and collection costs, he may approve such occupancy for a period of one year, subject to renewal for additional one-year periods. The amount fixed as rent for units so occupied pursuant to this subsection shall be determined as provided in subsection (a) but in no event shall such rent be in excess of one hundred thirty-three percent of the going rental as established pursuant to said section 8-72.”

       Although the plaintiffs claim a violation of their due process rights under both the federal and state constitutions, they have not provided a separate analysis of their state claim. We will therefore consider only the federal claim. State v. Mercer, 208 Conn. 52, 67 n.9, 544 A.2d 611 (1988); State v. Hall, 17 Conn. App. 502, 505 n.1, 554 A.2d 746 (1989).

       The parties have not cited any of the cases that have held that the leasehold interests of government subsidized tenants do not require constitutional due process protection. See Ellis v. United States Department of Housing & Urban Development, 551 F.2d 13 (3d Cir. 1977); Grace Towers Tenants Assn. v. Grace Housing Development Fund Co., 538 F.2d 491 (2d Cir. 1976); Harlib v. Lynn, 511 F.2d 51 (7th Cir. 1975); Paulsen v. Coachlight Apartments Co., 507 F.2d 401 (6th Cir. 1974); Tenants’ Council of Tiber Island-Carrollsburg Square v. Lynn, 497 F.2d 648 (D.C. Cir. 1973), cert. denied, 419 U.S. 970, 95 S. Ct. 235, 42 L. Ed. 2d 186 (1974); McKinney v. Washington, 442 F.2d 726 (D.C. Cir. 1970); People’s Rights Organization v. Bethlehem Associates, 356 F. Sup. 407 (E.D. Pa. 1973), affd., 487 F.2d 1395 (3d Cir. 1973).

       Although the plaintiffs are claiming that they have protected property interests in both continued residence and in retention of their incomes, because they received the relief requested enjoining their pending evictions until a proper income limit is set, the former interest is not an issue in this appeal.

       An issue to be considered by the court in weighing the equities of this case would include the impact of a judgment for the plaintiffs on the authority’s ability to continue to provide moderate income housing. This issue involves consideration of the extent and propriety of the authority’s reserve accounts, the statutory prohibition against attaching the authority’s property; General Statutes § 8-65; the statutory requirement that the authority operate on a not for profit basis; General Statutes § 8-72; and whether any of these considerations could result in the authority’s either being unable to pay the judgment or passing any judgment costs on to the plaintiffs or any future tenants of the project in higher rent charges.

       Although the plaintiffs claim that they are entitled to a calculation of amounts improperly paid from 1970 through 1976, we find that their complaint alleged improper action and requested a remedy only for action taken by the defendants from 1976 through 1986. Because the right of a plaintiff to recover is limited to the allegations in the complaint; Matthews v. E.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983); Krattenstein v. Thomas, 7 Conn. App. 604, 610, 509 A.2d 1077 (1986); the plaintiffs in this case are not entitled to a calculation or recovery of money paid from 1970 to 1975. Even though the stipulation of facts as set out by the trial court relates to the prel976 actions of the defendants, “ ‘[fjacts found but not averred cannot be made the basis for a recovery.’ Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952).” Savin v. National Personnel Consultant, Inc., 4 Conn. App. 563, 567, 495 A.2d 1109 (1985).


author: Borden, J.

text:
    State of Connecticut v. Leroy Whittingham
    (6722)
    Borden, O’Connell and Stoughton, Js.

      Argued January 4
    decision released May 23, 1989

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, Robert Katz, assistant state’s attorney, and Jay Huntington, former deputy assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of marihuana with intent to sell, in violation of General Statutes § 2 la-277 (b). The defendant claims that the trial court erred (1) in denying the defendant’s motion to sever and allowing the joint trial of two legally unrelated drug cases, (2) in failing to conclude as a matter of law that there was insufficient evidence to support the conviction of possession of marihuana with intent to sell, and (3) in denying him due process by sentencing him not only for the charge of which he was convicted but also for the charges on which he was acquitted. We find no error.

The jury could reasonably have found the following facts. In October, 1986, the Norwalk police obtained a search warrant for the defendant’s person and his van. The police located the van parked in front of a small, two unit apartment house. Its tires were flat and the van appeared to have been parked there for a long time. After the police approached the van, they noticed the defendant, whom they recognized, watching them from a window in the second floor apartment. The police asked the defendant to come down to the van, and the defendant complied. When he arrived at the van, there was an odor of marihuana on his person. The defendant was held at gun point while being searched for weapons, and was detained while the search of the van was executed.

The search of the van yielded a clear plastic bag containing ten packages of marihuana, specifically, seven small “nickel bags” and three larger bags containing equal amounts of marihuana, rolled up like cigars. The marihuana found in the van totalled 1.6 ounces in weight. The police arrested the defendant.

Two of the officers then entered the apartment building in order to inform the defendant’s girlfriend that the defendant was being taken into custody. One of the officers approached the door of the second floor apartment while the other waited at the bottom of the stairs. The officer knocked and someone in the apartment opened the door “a crack.” The officer asked to speak with the defendant’s girlfriend, and an occupant in the apartment disavowed any knowledge of her whereabouts. The officer noticed the odor of marihuana wafting out of the apartment. The officers left, posting one officer at the first floor entrance to the premises.

Two hours later, the police returned with a search warrant for the apartment. In searching the apartment, the police discovered drug paraphernalia, a sawed-off twelve-gauge shotgun and ammunition, a scale, and a locked briefcase containing an adding machine, $700 in small denominations, a department store receipt bearing the defendant’s name and seventeen ounces of marihuana packaged for sale.

The defendant was charged with possession of marihuana and possession of marihuana with intent to sell in connection with the marihuana found in the van; in connection with the evidence found in the apartment, he was charged with possession of four or more ounces of marihuana, possession of drug paraphernalia, possession of a sawed-off shotgun, and possession of marihuana with intent to sell. While the defendant was being booked, he was advised that a briefcase had been seized in the apartment. Without being told of the contents of the briefcase, the defendant asked for “his $700.” The two informations were joined for trial. The jury convicted the defendant of possession of marihuana with intent to sell in connection with the van, and acquitted him of all the charges involving the apartment. This appeal followed.

I

The defendant first claims that the court erred in denying his motion to sever the two cases, arguing (1) that there was no connection between him and the evidence seized in the apartment that would make the evidence in the apartment case admissible against him in the van case, (2) that the state’s failure to present the evidence in the two cases in an orderly and separate fashion prejudiced his right to a fair trial, and (3) that the court failed to cure this prejudice through its instructions to the jury. Our examination of the first of these arguments is dispositive of this claim.

“Pursuant to [Practice Book] § 829 and [General Statutes] § 54-57 a trial court may order a joint trial of charges involving offenses of the same character. Section 829, however, should be read in the light of Practice Book § 828, which permits severance ‘[i]f it appears that a defendant is prejudiced by a joinder of offenses . . . .’ See State v. King, 187 Conn. 292, 296, 445 A.2d 901 (1982) .... Similarly, in construing § 54-57, we have stated that the question of severance lies within the discretion of the trial court, which should not be interfered with unless it has been manifestly abused. . . . ‘The discretion of a court to order separate trials should be exercised only when a joint trial will be substantially prejudicial to the rights of the defendant, and this means something more than that a joint trial will be less advantageous to the defendant.’ State v. Silver, 139 Conn. 234, 240, 93 A.2d 154 (1952). ‘[A]n accused bears a heavy burden to show that the denial of severance resulted in substantial injustice . . . .’ State v. King, supra, 302 . . . .” (Citations omitted.) State v. Pollitt, 205 Conn. 61, 67-68, 530 A.2d 155 (s1987).

The basis for the defendant’s challenge to the joinder of charges is that the offenses alleged in the informa-tions were legally and factually separate. The defendant argues that the factual similarities between the two cases, though insufficient to make the evidence in each case substantively admissible at the trial of the other, were significant enough to impair the defendant’s right to the jury’s fair and independent consideration of the evidence in each case. See State v. Boscarino, 204 Conn. 714, 723, 529 A.2d 1260 (1987). We agree, however, with the interpretation of the trial court and the state, namely, that the offenses charged in the two informa-tions arose from what was essentially a single transaction. Moreover, we conclude that at least part of the evidence found in the apartment was substantively admissible against the defendant for the charges connected to the van case.

When the defendant left the apartment house to join the police on the street outside his van, the police detected the odor of marihuana on his person. Because the police had seen the defendant at the window of the second floor apartment moments before his odorous appearance on the street, they reasonably suspected that a felony was being committed in the apartment. They investigated the situation by knocking on the door of the second floor apartment and conversing with one of the occupants thereof. Thus, contemporaneously with their search of the van, the police uncovered the first link in the chain of evidence leading to the search of the apartment, namely, that the defendant’s odor of marihuana suggested that illegal activity was taking place in the apartment. Although the process of procuring a search warrant delayed the search of the apartment for several hours, the crimes were connected in time and place. Compare State v. Boscarino, supra, 717-20.

Certain of the crimes in the two informations were also legally related. Evidence of a defendant’s other criminal offenses is admissible in the trial of another case when “ ‘ “the collateral crime tends directly to prove the commission of the principal crime, or the existence of any element of the principal crime . . . .” ’ State v. Esposito, 192 Conn. 166, 169, 471 A.2d 949 (1984).... Consistent with this rule, the state may introduce evidence of other crimes to establish a defendant’s intent, identity, malice, motive, or system of criminal activity. See State v. Williams, [190 Conn. 104, 107, 159 A.2d 510 (1983)].” (Citations omitted.) State v. Boscarino, supra, 722.

Officer Brian Liddy of the Norwalk police department testified that the defendant, while he was being booked, was advised that a briefcase had been seized in the apartment. The defendant then spontaneously asked if he could have his $700. That amount of cash was found in the locked briefcase, along with seventeen ounces of marihuana, packaged for sale. In light of testimony by the state’s expert that drug dealers routinely keep most of their inventory separate from the smaller amount that they possess for sale on the street, the evidence of the seventeen ounce quantity was relevant to the issue of whether the defendant intended to sell the 1.6 ounces of marihuana found in the van. See State v. Pollitt, supra, 69; see also State v. Boscarino, supra, 722; State v. Avila, 166 Conn. 569, 572-73, 353 A.2d 776 (1974) (element of intent to sell narcotic in prosecution for possession of narcotic with intent to sell may be proved by circumstantial evidence); State v. Iovieno, 14 Conn. App. 710, 715-16, 543 A.2d 766, cert. denied, 209 Conn. 805, 548 A.2d 440 (1988).s

Thus, the evidence of the seventeen ounces of marihuana in the briefcase was admissible in the van case. This fact, as well as our agreement with the trial court that the two cases were factually and legally related, lead us to conclude that the defendant was not prejudiced by the joint trial. This belief is further buttressed by “the very fact that the jury acquitted the defendant” of the charges relating to the apartment case. State v. Iovieno, supra, 722. “By acquitting the defendant of this one count, the jury demonstrated that it was not simply cumulating evidence in order to decide the case before them, but rather demonstrated that each count was analyzed separately. State v. Lo Sacco, 11 Conn. App. 24, 27, 525 A.2d 977, cert. denied, 204 Conn. 812, 528 A.2d 1158 (1988).” State v. Iovieno, supra, 722; State v. Saraceno, 15 Conn. App. 222, 234, 545 A.2d 1116 (1988).

II

The defendant next claims that the trial court erred in falling to set aside the conviction on the second count, possession of marihuana with intent to sell, because the evidence was insufficient to establish that charge beyond a reasonable doubt. “The two-fold test for determining the sufficiency of the evidence to justify a conviction is well established. We first view all of the evidence in the light most favorable to the verdict. We then determine whether a jury could have reasonably concluded, from that evidence and all the reasonable inferences which it yields, that the defendant was guilty beyond a reasonable doubt. State v. DiStefano, 7 Conn. App. 726, 731, 510 A.2d 995 (1986).” State v. Parent, 8 Conn. App. 469, 472-73, 513 A.2d 725 (1986).

The defendant claims that the state did not prove intent, a necessary element of the crime, beyond a reasonable doubt. We disagree. Proof of a defendant’s intent generally takes the form of circumstantial evidence, from which the jury is free to draw such inferences that are logical and reasonable. State v. Napoleon, 12 Conn. App. 274, 284, 530 A.2d 634 (1986), cert. denied, 205 Conn. 809, 532 A.2d 78 (1987).

From the evidence presented at trial, the jury could logically and reasonably find that the defendant intended to sell the marihuana in the van. Although the amount of marihuana in the van may be regarded as somewhat small, 1.6 ounces, that fact alone would not preclude a finding that the defendant intended to sell it. See State v. Uribe, 14 Conn. App. 388, 393, 540 A.2d 1081 (1988). The state presented expert testimony that the marihuana was packaged in seven very small “nickel bags” and three larger baggies, in a manner consistent with its being sold. The state’s expert further testified that 1.6 ounces would be a large purchase for personal consumption, and that it would be more usual for one purchasing such an amount for personal use to purchase one larger bag, rather than ten small ones. The state also presented evidence that the defendant maintained three addresses, and expert testimony that such behavior was characteristic of drug dealers. “[Tjhere was sufficient cumulative evidence of the defendant’s intent to sell marihuana to support the jury’s verdict. It is ‘ “[t]he cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” State v. Perez, [183 Conn. 225, 227, 439 A.2d 305 (1981)]. . . .’State v. Sinclair, 197 Conn. 574, 576-77, 500 A.2d 539 (1985).” State v. Uribe, supra, 394.

Ill

The defendant finally claims that the trial court erred by sentencing him, not only for the charge on which he was convicted but also for the charges on which he was acquitted. The court’s sentence, the defendant argues, constitutes a deprivation of due process of law in violation of the fifth and fourteenth amendments to the federal constitution.

The factual basis for this claim is a single word uttered by the trial court at the sentencing hearing. After hearing argument from the state, the defense counsel and the defendant himself, the court announced its sentence in a monologue which included the following passage: “I think what [the defendant] is being sentenced for, is possession of marihuana with intent to sell, which is a felony calling for a penalty of up to seven years. In this case, sixteen ounces.” (Emphasis added.) The defendant was convicted of possessing 1.6 ounces in the van with intent to sell, and was acquitted of possessing the 17.05 ounces discovered in the briefcase. The defendant argues that the judge mistakenly sentenced him for possessing sixteen ounces, and points to the severity of the sentence — four years incarceration — as evidence of the court’s confusion. There is no merit to this claim.

A sentence imposed within statutory limits is generally not subject to review. State v. McNellis, 15 Conn. App. 416, 445, 546 A.2d 292 (1988). In determining the statutorily limited sentence to be imposed, the trial court exercises wide discretion as to the sources and types of information it will consider. Id.; State v. Huey, 1 Conn. App. 724, 734, 476 A.2d 613 (1984), aff’d, 199 Conn. 121, 505 A.2d 1242 (1986). Prior to making a sentencing decision, a judge may appropriately conduct a broad inquiry, largely unlimited as to the kind of information he or she may consider. United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972). That information may appropriately include information that would have been inadmissible for the purpose of determining guilt; United States v. Baylin, 696 F.2d 1030, 1039 (3d Cir. 1972); State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986); evidence of crimes for which the defendant was indicted but neither tried nor convicted; United States v. Bowdach, 561 F.2d 1160, 1175 (5th Cir. 1977); State v. Huey, supra; and evidence bearing on charges for which the defendant was acquitted. State v. Mancinone, 15 Conn. App. 251, 288, 545 A.2d 1131 (1988).

As a matter of due process, however, information may be considered as a basis for a sentence only if it has some minimum indicium of reliability; id.; and a defendant would be denied due process of law if he is prejudiced by the prosecutor’s submission of misinformation regarding his prior criminal record, or by the court’s careless misreading of the record. Townsend v. Burke, 334 U.S. 736, 740-41, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948); State v. McNellis, supra, 447-48. We will therefore examine the record to determine whether the trial court did in fact misread the record, and if so, whether that misstep prejudiced the defendant.

The marihuana found in the van weighed 1.6 ounces, the marihuana in the apartment weighed 17.05 ounces, and the aggregate of the two weighed 18.6 ounces. Thus, there is no basis in the record for the court to consider an amount of marihuana weighing sixteen ounces. We agree with the state’s explanation, namely, that it is most likely that the court misread its notes, omitting the decimal in “1.6.” Our examination of the record, however, reveals that this misreading did not materially prejudice the defendant..

The court only once mentioned the amount of marihuana the defendant was convicted of possessing with the intent to sell. Moreover, in context, the reference to sixteen ounces appears to be an afterthought; the court’s principal concern was not the amount the defendant possessed but the fact that he intended to sell the drugs in his possession. The court stated: “There is a war against drugs, and, as a deterrent, it is very important that the word go out . . . that the drug pushers are to be dealt with very severely in the courts.....When anyone decides voluntarily to traffic in drugs he is going to suffer. Hopefully that will be a deterrent to others who are contemplating selling marihuana.” The sentence imposed, four years imcarceration, was well within the statutory maximum, and the defendant was not deprived of due process of law.

There is no error.

In this opinion the other judges concurred.

       General Statsutes § 21a-277 (b) provides: “(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marihuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

       There was conflicting testimony on the issue of the police’s purpose in entering the apartment building the first time. Officer Brian Liddy of the Norwalk police department testified that he entered the building to advise the defendant’s girlfriend that the defendant had been arrested, and that he would be at police headquarters. The defendant testified that before he was taken from the scene in custody, Liddy asked the defendant if he could search the apartment. The defendant said he could not give permission because he did not live there. This testimony, although facially in conflict, nonetheless supports the trial court’s conclusion that the van case and the apartment case formed two parts of a single transaction.


text:
    Wilfred Morin et al. v. John DiMarco et al.
    (6847)
    Dupont, C. J., Stoughton and Norcott, Js.
    Argued March 9
    decision released May 23, 1989

      Thomas E. Minogue, Jr., with whom, on the brief, was Kimberly A. Grillo, for the appellants (defendants).

      William F. Gallagher, with whom, on the brief, were Michael J. Hayes and Kerrie C. Dunne, for the appellees (plaintiffs).
   Norcott, J.

This appeal involves a summary process action brought by the plaintiff landlords, based on the defendants’ nonpayment of rent in violation of the terms of a lease. At trial, the defendants contended that the plaintiffs had breached the lease by wrongfully permitting a third party to occupy the premises to the exclusion of the defendants. The defendants appeal from the judgment of the trial court in favor of the plaintiffs. On appeal, the dispositive question is whether the trial court erred in not holding that the plaintiffs were estopped from declaring a forfeiture of the lease. We find no error.

The following facts are relevant to this appeal. The plaintiffs, Wilfred and Ann Morin, own commercial property suitable for conducting a gas station and motor vehicle repair business, located at 675 Bridgeport Avenue in Milford. On January 31,1986, the plaintiffs entered into a written lease with Meadows End, Inc. The lease was for a period of five years, commencing on February 1, 1986, and providing for a monthly rent of $850 with an option to renew and a right of first refusal to purchase the premises. The lease further provided that the tenant would be in default if payment of the rent was not made by the tenth of each month.

On November 13,1986, Meadows End, Inc., assigned its interest in the premises to Muriel Raster. Later in November, Raster in turn assigned her interest to the defendants, John and RoseAnn DiMarco, for $30,000.

Wesley Wheaton, president of Meadows End, Inc., made monthly payments of $850 to the plaintiffs through November, 1986. On December 10,1986, the plaintiffs received a check for the December rent from the defendants. The plaintiffs, unaware of who the defendants were, returned the check to Wheaton. On December 18, 1986, Wheaton notified the plaintiffs by letter that he had assigned the lease to Raster. On January 10, 1987, the defendants delivered another check to the plaintiffs who again refused to accept the payment.

At trial, the plaintiff Ann Morin testified that she began negotiations in December with John Sorrentino, a long time friend of hers, after she believed that Whea-ton had terminated his lease agreement. The plaintiffs gave Sorrentino permission to occupy the premises, and he began to move his automotive service equipment onto the premises in January, 1987.

After receiving the assignment of the lease from Raster in November, 1986, the defendants changed the locks to the premises. The defendant John DiMarco testified that, at a later date, he returned to the premises to find the locks broken and Sorrentino occupying the site.

In March, 3987, the defendants brought an action against Sorrentino and, on June 4,1987, the trial court, Kulawiz, J., determined that the defendants were the owners of a possessory leasehold interest and permanently enjoined Sorrentino from occupying the premises. Thereafter, on advice of counsel, Sorrentino began to move his equipment off the premises.

The defendant John DiMarco testified that Sorren-tino was still on the property after the injunction was issued. Both Sorrentino and Ann Morin testified that the plaintiffs had, in fact, requested that Sorrentino keep the keys to the property and “show a presence” around the premises to discourage vandalism. On July 2,1987, the defendants filed a motion for contempt against Sorrentino for violating the court’s order enjoining him from entering onto the property. On July 20, 1987, the trial court, Kulawiz, J., held a hearing to show cause on the defendants’ contempt motion at which Sorrentino testified that he had vacated the property on June 19 or 20. The court entered no rulings or orders on the motion. On September 24, 1987, the defendants tendered to the plaintiffs a check in the amount of $1700, with a letter stating that the check was in payment of the August and September rent. The plaintiffs returned the check. The plaintiffs never received a check for the July rent. On October 20,1987, the plaintiffs began eviction proceedings against the defendants based on the failure to pay the July rent. The trial court, Hon. Thomas J. O’Sullivan, state trial referee, rendered judgment for the plaintiffs on March 2, 1988.

The defendants contend that, under the circumstances of this case, the trial court should have held that the plaintiffs were estopped from claiming possession of the premises. In Connecticut, it is well settled that equitable defenses are available in a summary process action. Mobilia, Inc. v. Santos, 4 Conn. App. 128, 492 A.2d 544 (1985); Zitomer v. Palmer, 38 Conn. Sup. 341, 344, 446 A.2d 1084 (1982); Danpar Associates v. Falkha, 37 Conn. Sup. 820, 823, 438 A.2d 1209 (1981). The essential elements of estoppel are that “ ‘the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. . . .’ ” (Citations omitted.) Brown v. Employer’s Reinsurance Corporation, 206 Conn. 668, 677, 539 A.2d 38 (1988), quoting West Hartford v. Rechel, 190 Conn. 114, 121, 459 A.2d 515 (1983).

In this case, the trial court found (1) that Sorrentino had vacated the premises on June 20,1987, (2) that the defendants were in peaceful possession of the premises as of that date, (3) that the defendants thereby had the obligation under the lease to pay the July rent, and (4) that no tender of the rent for July was ever made to the plaintiffs. The trial court’s findings of fact will not be disturbed on appeal unless the findings are clearly erroneous and are not supported by the whole record. Nor’easier Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988); Schultz v. Barker, 15 Conn. App. 696, 700, 546 A.2d 324 (1988). Our review of this record does not lead us to conclude that the court’s findings were erroneous. Furthermore, although the trial court made no specific findings in its memorandum of decision on the issue of estoppel, the defendants did not request an articulation regarding that omission. Accordingly, none of the facts upon which the defendants rely for the estoppel defense was found. “It remains the appellant’s responsibility to furnish an adequate appellate record. Practice Book § 4061.” McLaughlin v. Bronson, 206 Conn. 267, 278, 537 A.2d 1004 (1988). Because the appellant should have remedied any deficiency in the record, we will not review this claim. See id.

We do note, however, that a review of the defendants’ own actions indicates that their claim of estop-pel is without merit. “The party asserting estoppel ‘must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge.’ Spear-Newman, Inc. v. Modern Floors Corporation, 149 Conn. 88, 91, 175 A.2d 565 [1961].” Eighth Utilities District v. Manchester, 176 Conn. 43, 53, 404 A.2d 898 (1978). Measured against this standard, the defendants’ claim must fail. As of June 4, 1987, the defendants had obtained a permanent injunction against Sorrentino’s presence on the premises. Yet, it was not until July 2,1987, that they sought a court order for contempt against Sor-rentino. In the interim, it does not appear that the defendants took any action to enforce the injunction when they allegedly saw Sorrentino still on the property. We are unpersuaded by the defendants’ argument that, until the July 20,1987 order to show cause hearing, they were unaware that Sorrentino had vacated the premises and that it was the plaintiffs’ responsibility to inform them that Sorrentino had vacated the property. Even if their contention were true, the defendants have exhibited a lack of diligence in ascertaining the true situation and in acting to protect their $30,000 investment and their rights as tenants.

The defendants also contend that the trial court erred in concluding that they had a duty to pay a portion of the July rent. This claim is predicated on the trial court’s memorandum of decision dated February 26, 1988, in which the court, without finding whether Sor-rentino vacated the premises on June 20 or by mid-July of 1987, determined that the defendants, who had not tendered any rent for July, were responsible for rent either for the entire month or a portion thereof. The defendants, however, fail to note the court’s articulation, dated May 26,1988, in which the court specifically found that Sorrentino had vacated the premises on June 20, and that the defendants were in peaceful possession of the premises thereafter, and were therefore responsible for paying the full rent for the month of July. As a result of that finding, the defendants’ second claim of error is moot.

There is no error.

In this opinion the other judges concurred.