text:
    Steven J. Manley v. Julius Keszler
    (3274)
    Dupont, C.P.J., Bokden and Daly, Js.

      Argued May 8—decision
    released July 9, 1985

      Frank J. Dumark, with whom was JohnH. Lindsay, for the appellant (plaintiff).

      Ronald D. Williams, with whom, on the brief, was Thomas W. Witherington, for the appellee (defendant).
   Borden, J.

This negligence action was brought to recover damages for the plaintiff’s injuries after he was struck by the defendant’s car. The defendant, by way of a special defense, claimed that the plaintiff was contributorily negligent. The plaintiff denied the special defense.

Prior to trial, the defendant requested leave to amend his special defense to add the claims that the plaintiff was driving while intoxicated in violation of General Statutes § 14-227a at the time of the accident and that the plaintiff “failed to make proper use of his senses and faculties” at the time of the accident. The plaintiff objected to that portion of the proposed amendment which alleged that the plaintiff was driving while intoxicated. The court, Mancini, J., agreed and sustained the plaintiff’s objection as to that portion of the amendment. The remaining allegation was permitted.

Thereafter, the plaintiff filed a motion in limine to exclude from evidence a hospital record which contained results of a blood test indicating the plaintiffs blood alcohol level shortly after the accident. The motion was denied by the court, Celotto, J., without prejudice to being renewed at the time such evidence was offered. At trial, the challenged hospital record was offered into evidence. The plaintiff objected to the offer and renewed his motion in limine. The court overruled the plaintiffs objection and motion and admitted the hospital record into evidence.

The jury returned a verdict for the defendant. The plaintiff appeals, claiming that the trial court erred in admitting the hospital record in light of Judge Mancini’s prior ruling disallowing the amendment to the special defense which alleged that the plaintiff was driving while intoxicated. We find no error.

The plaintiff relies on the doctrine of the law of the case. He argues that the earlier ruling by Judge Mancini prohibiting the claim of driving while intoxicated mandated that no evidence of intoxication be admitted at the trial. The plaintiff, however, seems to disregard the entirety of that ruling. The ruling not only disallowed the claim of intoxication, but allowed the claim that the plaintiff failed to use his senses and faculties properly.

The addition of this second claim to the special defense was enough to permit evidence at the trial of the presence of alcohol in the defendant’s bloodstream regardless of the court’s ruling on the first claim. Evidence of alcohol in the bloodstream may be used to show that the plaintiff’s faculties were impaired. Gulia v. Ortowski, 156 Conn. 40, 49, 238 A.2d 396 (1968). Additionally, evidence of the effect of alcohol is relevant to show lack of control, an allegation contained in the original answer and special defense. The law of the case did not, therefore, require exclusion of all evidence of alcohol in the bloodstream, and the court did not abuse its discretion in admitting such evidence.

There is no error.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Anna D. Cope v. Board of Education of the Town of West Hartford
    (3424)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued May 15—decision
    released July 9, 1985

      Gerald L. Garlick, for the appellant (plaintiff).

      William H. Narwold, with whom, on the brief, was Chase Rogers, for the appellee (defendant).
   Borden, J.

The plaintiff was a teacher in the West Hartford school system. After a full, trial-type hearing, the defendant board of education terminated her contract of employment on the statutory grounds of inefficiency or incompetence, or other due and sufficient cause. General Statutes § 10-151 (d) (1) and (6). In a well reasoned and comprehensive memorandum of decision, the trial court dismissed her appeal. She appeals to this court. We find no error.

I

The plaintiffs principal claim is that the defendant violated her right to due process solely by failing to adopt written procedural rules governing its termination hearings, including hers. At oral argument in this court, she made the following candid concessions: The procedures actually followed, which were explained to her at the hearing but before it started, met due process requirements. These procedures consisted of her right to be represented by counsel which she exercised, the right to hear the superintendent’s witnesses and cross-examine them, and the right to present her own evidence. She did not ask for any further time to prepare once she learned what the procedures were to be. In fact, she conceded, the board’s explanation of the procedures did not tell her any more than what she knew before she entered the hearing. She did not request the board to afford her any additional procedural rights. She also conceded that there is nothing in this record to indicate that this defendant had committed any of the administrative abuses which have prompted some federal district courts to require other administrative agencies to promulgate written rules of procedure. See, e.g., Historic Green Springs, Inc. v. Bergland, 497 F. Sup. 839, 851-56 (E.D. Va. 1980).

Under these circumstances, the plaintiff’s claim is utterly without merit. Written procedural rules are not constitutionally necessary to minimize the risk of an unfair termination. See Pagano v. Board of Education, 4 Conn. App. 1, 7-9, 492 A.2d 197 (1985). Furthermore, she has failed to demonstrate any conceivable prejudice to her from the claimed deficiency. Mauriello v. Board of Education, 176 Conn. 466, 473-74, 408 A.2d 247 (1979).

II

The plaintiff’s second claim, namely, that there was insufficient evidence to justify termination, is equally bereft of merit. As the trial court noted, the record is replete with evidence of the plaintiff’s continual neglect, beginning in 1975 and continuing for several years until her discharge, of her overall teaching responsibilities despite repeated warnings and admonitions. Some of this neglect involved a pattern of failure to supervise her first grade students to the extent that their safety became a very serious concern. The evidence was sufficient to justify the board’s decision, which was within its particular expertise. Pagano v. Board of Education, supra, 9.

There is no error.

In this opinion the other judges concurred.


author: S. Freedman, J.

text:
    Robert Sansone v. Vincent Lettieri et al.
    (2232)
    Dupont, C.P.J., Borden and S. Freedman, Js.
    Argued May 17—decision
    released July 9, 1985

      Charles Angelo, for the appellants (defendants).

      Michael A. Wolak III, with whom, on the brief, was Alan E. Silver, for the appellee (plaintiff).
   S. Freedman, J.

The defendants appeal from a judgment of the court awarding the plaintiff damages for work performed by him at the request of the defendants’ agent. The defendants claim that the court erred in permitting the plaintiff to amend his complaint at the conclusion of the case, in finding that an agency existed, and in finding that a $4000 payment to the plaintiff was irrelevant to the issues in the case.

The claim that the court improperly permitted the plaintiff to amend his complaint lacks merit. “The allowance of an amendment during the course of the trial lies in the sound discretion of the trial court.” DuBose v. Carabetta, 161 Conn. 254, 263, 287 A.2d 357 (1971). In the exercise of that discretion, pleadings may be amended before, during or after trial to conform to the proof, and the trial judge’s ruling will be disturbed only upon a clear showing of abuse of discretion. Connecticut Bank & Trust Co. v. Wilcox, 3 Conn. App. 510, 490 A.2d 95 (1985). The court’s ruling is entitled to great weight on appeal. Bielaska v. Waterford, 196 Conn. 151, 154, 491 A.2d 1071 (1985). There is no showing here sufficient to demonstrate an abuse of discretion.

As to the remaining claims of error, it is apparent that the thrust of the defendants’ attack upon the court’s factual conclusions is an attempt to have us retry this case. “It was for the trial court to weigh the evidence and determine the credibility of the witnesses. This court cannot and will not weigh the evidence contained in the record before us.” Pantlin & Chananie Development Corporation v. Hartford Cement & Building Supply Co., 196 Conn. 233, 237, 492 A.2d 159 (1985). We find no basis for concluding that the trial court erred in its findings or for overturning its factual determinations.

There is no error.

In this opinion the other judges concurred.


author: Dupont, C.P.J.

text:
    Catherine A. Galvin v. Freedom of Information Commission et al.
    (2979)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued March 12—decision
    released July 9, 1985

      Steven Spellman, for the appellants (defendant David W. Schoolcraft et al.).

      Jane S. Scholl, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Richard L. Lynch, assistant attorney general, for the appellee (plaintiff).

      Constance L. Chambers, assistant general counsel for the Freedom of Information Commission, filed a brief as amicus curiae.
   Dupont, C.P.J.

The principal issue to be decided in this case is whether an autopsy report prepared by the office of the chief medical examiner is subject to public disclosure under the Freedom of Information Act (hereinafter FOIA). This case arose from a request by a newspaper reporter for access to an autopsy report. The subject of the report was the victim of a shooting incident between him and a police officer. Access to the autopsy report was denied by the chief medical examiner. At the time of the request, the autopsy was not completed. The newspaper and the reporter appealed the denial of access to the freedom of information commission (hereinafter FOIC).

After a hearing on the matter was conducted, the hearing officer issued a report, proposing that the office of the medical examiner provide a copy of the autopsy report to the newspaper and the reporter. The FOIC adopted that recommendation and the plaintiff chief medical examiner appealed pursuant to General Statutes §§ 1-21i (d) and 4-183, and also obtained a stay of the FOIC’s order. Her appeal to the Superior Court was successful and the defendants, Norwich Bulletin Company and David A. Schoolcraft, (hereinafter defendants) appealed to this court.

The chief medical examiner claimed, and continues to claim, that the prefatory clause of General Statutes § 1-19 (a) read in conjunction with General Statutes § 19a-411 and the regulations promulgated thereunder exempts the autopsy report from disclosure, and that the autopsy report is, in addition, exempted from disclosure, under either § 1-19 (b) (1), § 1-19 (b) (2), or § 1-19 (b) (3). The trial court decided that the report was not exempt from disclosure under the exemptions claimed applicable in § 1-19 (b), but that the report was exempt under the prefatory clause of § 1-19 (a).

The defendants, on appeal, claim that the trial court erred in concluding (1) that the chief medical examiner was an aggrieved party, (2) that the prefatory clause of § 1-19 (a) exempted the autopsy report from the disclosure provisions of the FOIA, and (3) that the FOIC committed errors in law or findings and entered orders which were erroneous, in light of the evidence adduced at the administrative hearing.

The defendants’ argument that the trial court erred in finding that the chief medical examiner was an aggrieved party must first be resolved. The office of the chief medical examiner functions under the direction of the commission on medicolegal investigations. General Statutes § 19a-403. The regulations pertaining to access to the records of the office of the chief medical examiner provide that all requests for such records be addressed to the chief medical examiner. Regs., Conn. State Agencies § 19-525-10 (c).

General Statutes § 19a-406 describes the powers and duties of the chief medical examiner. The FOIC’s order in this case is directed to the chief medical examiner. By implication, the head of an administrative agency to whom an FOIC’s disclosure order is directed, is an aggrieved party. Maher v. Freedom of Information Commission, 192 Conn. 310, 472 A.2d 321 (1984). Therefore, the trial court did not err in concluding that the chief medical examiner was an aggrieved party.

The defendants argue that the autopsy report was not exempt under the prefatory clause of § 1-19 (a), and, therefore, the trial court erred in failing to disclose it. They mount a twofold challenge to the trial court’s conclusion, asserting that General Statutes § 19a-411 does not provide the commission on medicolegal investigations with authority to promulgate regulations which override the expressed legislative intent of disclosing a public agency’s records embodied in General Statutes § 1-19. Alternatively, they argue that any such authority pursuant to General Statutes (Rev. to 1981) § 19-535, the predecessor of General Statutes § 19a-411, was repealed by implication upon the enactment of Public Acts 1975, No. 75-342.

In order to place the defendants’ claims in perspective, it is appropriate to look at the legislative history of General Statutes § 19a-411. The office of the chief medical examiner was established in 1969 and, at that time, the predecessor of what is now General Statutes § 19a-411, which involves the records of the chief medical examiner and their disclosure, was enacted. Public Acts 1969, No. 699. Section 12 of that act became General Statutes (Rev. to 1981) § 19-535, and provided: “The office of medicolegal investigations shall keep full and complete records properly indexed, giving the name, if known, of every person whose death is investigated, the place where the body was found, the date, cause and manner of death, and all other relevant information concerning the death, and a copy of the death certificate. The full report and detailed findings of the autopsy and toxicological and other scientific investigation, if any, shall be a part of the record in each case. The office shall promptly notify of such death and deliver to the state’s attorney and the coroner having jurisdiction over the case copies of all pertinent records relating to every death as to which further investigation may be advisable. Any state’s attorney, coroner, chief of police or other law enforcement official may, upon request, secure copies of such records or other information deemed necessary by him to the performance of his official duties. Any person may obtain copies of such records upon such conditions and payment of such fees as may be prescribed by the commission, provided no person with a legitimate interest therein shall be denied access to such records. Upon application by the chief medical examiner or state’s attorney to the superior court for the county in which the death occurred, or to any judge of the superior court in such county when said court is not then sitting, said court or such judge may limit such disclosure to the extent that there is a showing by the chief medical examiner or state’s attorney of compelling public interest against disclosure of any particular document or documents. In the discretion of the commission, pub-lie authorities, professional, medical, legal or scientific bodies or universities or similar research bodies may have access to all records upon such conditions and payment of such fees as may be prescribed by the commission. Where such information is made available for scientific or research purposes, such conditions shall include a requirement that the identity of the deceased persons shall remain confidential and shall not be published.”

That statute, fairly read, provided the commission on medicolegal investigations with authority to withhold these records from disclosure to the general public. The statute provided that “no person with a legitimate interest therein shall be denied access to such records.” By implication, one can infer that the commission, in prescribing the conditions for access to such records, could deny access to those records to those not having a legitimate interest. The cross-reference to General Statutes § 1-19 was added in 1971. Public Acts 1971, No. 412, § 6.

General Statutes (Rev. to 1981) § 19-585 was thereby amended by replacing the phrase “medicolegal investigations” with “the medical examiner” and by inserting the following sentence: “The report of examinations conducted by the chief medical examiner, deputy medical examiner or an authorized assistant medical examiner, and of the autopsy and other scientific findings may be made available to the public only through the office of the medical examiner and in accordance with the regulations of the commission and of section 1-19.”

The sentence was added to provide that records in cases investigated by the medical examiner were only available to the public through the office of the medical examiner. See remarks of Senator Jay W. Jackson, 14 S. Proc., Pt. 4, 1971 Sess., pp. 1696-97, and the remarks of Representative James F. Bingham, 14 H.R. Proc., Pt. 7,1971 Sess., p. 3085. The amendment was not intended to strip the commission of its authority to prescribe the conditions and the fees for copies of the office of the chief medical examiner’s records. At the time, General Statutes § 1-19 (a) exempted from disclosure, records so exempted by administrative regulations.

The language of General Statutes § 19a-411 evinces a legislative intent that the commission would have the authority to regulate the disclosure of its records to the general public.

Regulations adopted by the commission on medicolegal investigations concerning access to the records of the chief medical examiner’s office have the force of a statute. Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 449, 370 A.2d 1006 (1976); Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 604, 362 A.2d 847 (1975); Citerella v. United Illuminating Co., 158 Conn. 600, 608, 266 A.2d 382 (1969). It is therefore concluded that until 1975 the commission had the authority to promulgate regulations restricting access to the records of the office of the chief medical examiner.

The defendants argue that any authority to restrict access to the records of the chief medical examiner’s office given to the commission on medicolegal investigations by promulgating regulations pursuant to General Statutes (Rev. to 1981) § 19-535 was repealed, by implication, by the enactment of Public Acts 1975, No. 75-342, § 2. That act amended the prefatory clause of General Statutes § 1-19 (a) to add, “[e]xcept as otherwise provided by any federal law or state statute.” Prior to that amendment, records exempted by administrative regulation were included within the terms of the statute. The defendants assert that this amendment clearly evinced a legislative intent to prohibit the regulations of state agencies from barring access to records and, therefore, any authority for such regulations was repealed by implication. East Haven v. New Haven, 159 Conn. 453, 468-70, 271 A.2d 110 (1970). The defendants’ reliance on that doctrine is questionable when its contemporaneous legislative history is examined.

“Repeal by implication is not favored. Knights of Columbus Council v. Mulcahy, 154 Conn. 583, 591, 227 A.2d 413 [1967]; Costa v. Reed, 113 Conn. 377, 385, 155 A. 417 [1931]” Hirschfeld v. Commission on Claims, 172 Conn. 603, 606, 376 A.2d 71 (1977). The legislative history indicates that in response to a question propounded by a legislator as to whether an applicant for parole could receive, under this bill, detailed information as to his status, the sponsor of the bill commented: “[T]here is a general exclusion in the Bill itself concerning records, reports and statements exempted by state statutes. There is a further exclusion concerning records of law enforcement agencies. It would be possibly, I guess on my part, but I would say that, because I don’t know what the parole statutes say, we certainly didn’t peruse every section of the General Statutes in dealing with this Bill. But if they are privileged and exempt from inspection, as they now exist, then they would continue to be so under the blanket exclusion . . . .” 18 H. R. Proc., Pt. 8, 1975 Sess., pp. 3904—3905 (remarks of Representative Martin B. Burke). This point was emphasized when the same sponsor of the bill later stated: “[As] I have indicated on several occasions, the Committee did not make an attempt, nor do I possess sufficient knowledge of the entire General Statutes to know what records, reports and statements are exempted from public disclosure.” 18 H. R. Proc., Pt. 8, 1975 Sess., p. 3907 (remarks of Representative Martin B. Burke).

The United States Supreme Court, in interpreting the federal Freedom of Information Act, addressed a similar issue. Administrator, FAA v. Robertson, 422 U.S. 255, 95 S. Ct. 2140, 45 L. Ed. 2d 164 (1975). Federal decisions regarding the federal Freedom of Information Act have given Connecticut courts a decisional path in the interpretation of its state legislation on the same subject. Wilson v. Freedom of Information Commission, 181 Conn. 324, 333, 435 A.2d 353 (1980). In the former case, the federal aviation administration refused to release certain reports to the respondents, claiming that the records sought were exempt from disclosure by statute and thus were within 5 U.S.C. 552 (b) (3) (1976), which provided in pertinent part: “This section does not apply to matters that are . . . (3) specifically exempted from disclosure by statute . . . .” (Emphasis added.)

The documents were claimed to be protected from disclosure by virtue of § 1104 of the Federal Aviation Act of 1958, 49 U.S.C. § 1504. Administrator, FAA v. Robertson, supra, 257-58. That section permitted the withholding of information where the administration deemed that the interests of the objecting party would be adversely affected and the interests of the public do not require disclosure. Id., 259. Delegations of such authority by statute to agencies to withhold information prior to the passage of the Freedom of Information Act were not repealed by implication. Id., 265. Congress subsequently amended 5 U.S.C. § 552 (b) (3) in 1976 by Pub. L. 94-409, 90 Stat. 1247. That amendment defined more particularly those statutes that specifically exempted material from disclosure, thereby overruling the above cited decision. Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 121-22 n.18, 100 S. Ct. 2051, 64 L. Ed. 2d 766 (1980). One commentator has stated that “an observer is compelled to note that the Supreme Court was both legally and historically correct in Robertson . . . .”1 O’Reilly, Federal Information Disclosure § 13.05, p. 13-13.

This court, however, has the benefit of a subsequent amendment to General Statutes § 1-19, which sheds light on the construction of the prefatory exemption intended by the legislature. The pertinent language in General Statutes § 1-19 (a) was amended by Public Acts 1984, No. 84-112, § 1, which added the following sentence to General Statutes § 1-19 (a): “Any agency rule or regulation or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.”

The legislative history of this amendment to General Statutes § 1-19 is illuminating. Senator John C. Daniels, commented on the floor of the senate: “This bill is important in that it provides for the [nullification] of agency rules or regulations that conflict with the Connecticut Freedom of Information Act as presented in Section l-19a of the Connecticut General Statutes. This bill ultimately protects the rights of the public to have access to agency records that have not been exempted by the Legislature. ... In summary, Mr. President, the bill would specify any agency rule or regulation that conflicts with or diminishes the right of access to public records would be void.” (Emphasis added.) 27 S. Proc., Pt. 2, 1984 Sess., pp. 668-69.

A subsequent legislative act may clarify the legislative intent of an earlier related act. Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 539-41, 489 A.2d 363 (1985); Baker v. Norwalk, 152 Conn. 312, 317, 206 A.2d 428 (1965). This subsequent amendment demonstrates that the legislature intended to have General Statutes § 1-19 as amended by Public Acts 1975, No. 75-342, supersede any agency regulation limiting the public’s access to an administrative agency unless the exemption was set forth by the legislature in a statute. The trial court, therefore, erred in deciding that the regulations supersede the disclosure provisions of General Statutes § 1-19.

It is, however, necessary to address the plaintiff’s claims involving alternate grounds upon which the judgment may be affirmed.

The plaintiff argues that the autopsy report was exempt from disclosure under General Statutes § 1-19 (b) (1) because the report was incomplete at the time of the request and that the chief medical examiner, by following the regulations of the commission, had determined that the public interest in withholding the information clearly outweighed the public interest in disclosing the information.

The defendants do not dispute, and the trial court found based on the record before the FOIC, that the report was incomplete at the time of the request. The issue is whether the plaintiff correctly weighed the public interest in withholding the records against the public interest in disclosing the records so as to conclude that the former clearly outweighed the latter. An agency must indicate the reasons for such a determination and “those reasons must not be frivolous or patently unfounded.” Wilson v. Freedom of Information Commission, supra, 339. The plaintiff argues, in her brief, that the commission’s regulations established that the agency weighed the pros and cons of disclosure. In effect, the plaintiff through the guise of a statutory exemption, by virtue of General Statutes § 1-19 (b) (1), restates the identical argument pressed with regard to the prefatory clause of General Statutes § 1-19 (a), and urges that the regulation supersedes the statute. The regulation must give way to the statute. The trial court, noting the standard of judicial review of the administrative agency’s actions, pursuant to General Statutes § 4-183 (g), properly decided that the FOIC did not err in finding that the plaintiff failed to sustain her burden of proving the applicability of this statutory exemption.

The plaintiff also argues that the trial court and the FOIC erred in not finding the autopsy report exempt from disclosure under General Statutes § 1-19 (b) (2) and that, therefore, the trial court’s decision may be upheld on that ground. General Statutes § 1-19 (b) provides in pertinent part: “Nothing in [section] . . . 1-19 . . . shall be construed to require disclosure of . . . (2) personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .” The FOIC classified the autopsy report as a personnel, medical or similar file within the meaning of § 1-19 (b) (2), but found that the disclosure of the autopsy report would not constitute an invasion of personal privacy.

The Supreme Court of Colorado in a similar factual context considered, on appeal, whether the trial court erred in ordering autopsy reports released to a newspaper. Denver Publishing Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974). In that case, the parties stipulated that the city pathologist would testify that autopsy reports in general might contain information which, if public, would embarass the family of the deceased. Id., 292. The Colorado Supreme Court advocated examining the specific autopsy reports in question as opposed to looking at autopsy reports in general to conclude whether the autopsy reports should be disclosed. Here, the trial court noted that an autopsy report in general may be embarrassing but concluded, on the basis of the administrative record, that such had not been established with regard to this autopsy report.

Connecticut, prior to the amendment of General Statutes § 1-19 by Public Acts 1975, No. 75-342, addressed a somewhat similar claim. In Meriden Record Co. v. Browning, 6 Conn. Cir. Ct. 633, 294 A.2d 646 (1971), a town clerk and registrar of vital statistics refused to provide a newspaper with a certified copy of an individual’s death record. The exemption at issue here was raised as a defense to disclosure there, and the argument advanced in support thereof was that a diagnosis of the cause of death if made public might constitute an invasion of personal privacy. Id., 634. General examples of embarrassing causes of death were supplied. The trial court rejected that argument in the abstract and inspected, in camera, the particular death record to determine whether its release would constitute an invasion of personal privacy. Id., 637-38. Similarly, our review of the record indicates that the trial court and the FOIC did not err in finding § 1-19 (b) (2) inapplicable here.

The plaintiff lastly argues that the trial court and the FOIC erred in concluding that the autopsy report was not exempt from disclosure under § 1-19 (b) (3), and that, consequently, the trial court’s judgment should be affirmed on that ground. General Statutes § 1-19 (b) provides in pertinent part: “Nothing in [section] . . . 1-19 . . . shall be construed to require disclosure of ... (3) records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of a crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known, (B) information to be used in a prospective law enforcement action if prejudicial to such action, (C) investigatory techniques not otherwise known to the general public . . . . ”

A virtually identical argument was pressed in Denver Publishing Co. and rejected by that court. Denver Publishing Co. v. Dreyfus, supra. The plaintiff premises her claim that the office of the chief medical examiner is a law enforcement agency on the office’s statutory responsibility to investigate deaths which fall within one of the categories enumerated in General Statutes § 19a-406 and on the office’s close working relationship with the state’s attorney’s office. A similar claim was made by the department of income maintenance and was found to be an insufficient factual basis from which to conclude that a public agency was a law enforcement agency for the purposes of the FOIA. Maher v. Freedom of Information Commission, 192 Conn. 310, 316-17, 472 A.2d 321 (1984). The transmission of information to a law enforcement agency does not, in and of itself, make the agency transmitting the information a law enforcement agency. Id.

Even if we assume, arguendo, that the office of the chief medical examiner was a law enforcement agency for the purposes of the FOIA, the plaintiffs defense to disclosure would continue to be unpersuasive. The second hurdle of the exemption is that the records are not otherwise available to the public. Under General Statutes § 19a-411, absent a court order, any person with a legitimate interest in the records of the chief medical examiner’s office is given access to such records by statute. The trial court properly left undisturbed FOIC’s finding that the § 1-19 (b) (3) did not apply to the plaintiff.

There is error, the judgment is set aside and the case is remanded with direction to dismiss the appeal of the plaintiff.

In this opinion the other judges concurred.

       The Freedom of Information Act is set forth in General Statutes §§ 1-15, l-18a, 1-19 through l-19b, 1-21, l-21a, and l-21c through l-21k.

       The FOIC did not appeal the trial court’s decision. Rather, it filed a brief as an amicus curiae, which discussed solely the trial court’s and the FOIC’s findings regarding General Statutes §§ 1-19 (b) (1), 1-19 (b) (2), and 1-19 (b)(3).

       General Statutes § 1-19 (a) provides, in pertinent part: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly. . . . Any agency rule or regulation or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place .... Any certified record hereunder attested as a true copy by the clerk, chief or deputy of such agency or by such other person designated or empowered by law to so act, shall be competent evidence in any court of this state of the facts contained therein. ...”

       General Statutes § 19a-411 provides, “The office of the chief medical examiner shall keep full and complete records properly indexed, giving the name, if known, of every person whose death is investigated, the place where the body was found, the date, cause and manner of death and containing all other relevant information concerning the death and a copy of the death certificate. The full report and detailed findings of the autopsy and toxicological and other scientific investigation, if any, shall be a part of the record in each case. The office shall promptly notify the state’s attorney having jurisdiction of such death and deliver to him copies of all pertinent records relating to every death in which further investigation may be advisable. . . . The report of examinations conducted by the chief medical examiner, deputy chief medical examiner, an associate medical examiner or an authorized assistant medical examiner, and of the autopsy and other scientific findings may be made available to the public only through the office of the chief medical examiner and in accordance with section 1-19 and the regulations of the commission. Any person may obtain copies of such records upon such conditions and payment of such fees as may be prescribed by the commission, provided no person with a legitimate interest therein shall be denied access to such records. Upon application by the chief medical examiner or state’s attorney to the superior court for the judicial district in which the death occurred, or to any judge of the superior court in such judicial district when said court is not then sitting, said court or such judge may limit such disclosure to the extent that there is a showing by the chief medical examiner or state’s attorney of compelling public interest against disclosure of any particular document or documents. Public authorities, professional, medical, legal or scientific bodies or universities or similar research bodies may, in the discretion of the commission, have access to all records upon such conditions and payment of such fees as may be prescribed by the commission. Where such information is made available for scientific or research purposes, such conditions shall include a requirement that the identity of the deceased persons shall remain confidential and shall not be published.”

       Regs. Conn. State Agencies § 19-525-10 provides, in pertinent part:
      “(a) Reports of investigations and of autopsies are prepared on standard forms issued by the Office of the Medical Examiner. The original reports of investigations, reports of hospital deaths, and of authorized autopsies are transmitted to the Office of the Medical Examiner and copies are obtainable only from the Chief Medical Examiner. . . .
      “(b) Retention of records; inspection of records. The Office of the Medical Examiner keeps full and complete records of every death reported and investigated. These records pursuant to Section 1-19 of the Connecticut General Statutes, are not open to public inspection. They are retained at the Office of the Medical Examiner for a period of ten years from the date when the death is first reported to it; after which time, the complete files are microfilmed and the original records disposed of.
      “(c) Inquiries and requests for copies of records. Inquiries concerning a death may be made in person or by letter to the Chief Medical Examiner .... Copies of records are furnished to those having a legitimate interest therein upon completion of the investigation into the death and final certification of the cause of death. Certified copies of such records are admissible as evidence in any court in the State. . . .”
      “(1) Requests for copies of records should be in writing addressed to the Chief Medical Examiner, . . .
      “(2) Requests for records sought by an attorney acting on behalf of an estate should be accompanied by a duly executed authorization by the executor or administrator of the estate.
      Requests by attorneys, insurance claims agents or other interested parties, other than the next of kin or persons acting on behalf of the next of kin, should state reasons for which records are required.
      “(3) Upon receipt of request from defense counsel of record in a criminal case for copies of reports in said case, the Chief Medical Examiner shall promptly notify the Office of the State’s Attorney which has jurisdiction of such request and shall release without charge therefor, within seven working days, to the defense attorney such copies as requested unless the Chief Medical Examiner is notified within said period of time that an application limiting disclosure has been made by the State’s Attorney pursuant to provisions of Section 19-535 of the Connecticut General Statutes.

        “The Chief Medical Examiner shall not release the records in a criminal case to anyone else requesting them until such time as the State’s Attorney has indicated in writing no objection. . . .
      “(5) The records of the Office of the Medical Examiner may also contain copies of records of hospitalization, reports of police investigation, coroner’s findings and copies of certificates of death. Copies of such records and reports cannot be obtained from the Office of the Medical Examiner, but must be requested from the hospitals, police departments and coroners issuing the records and reports. Copies of certificates of death must be obtained from the registrars of vital statistics of the towns in which the deaths occurred. . . .”

       General Statutes § 1-19 (b) provides: “Nothing in sections 1-15, l-18a, 1-19 to 1-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of (1) preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure; (2) personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy; (3) records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known, (B) information to be used in a prospective law enforcement action if prejudicial to such action, (C) investigatory techniques not otherwise known to the general public, (D) arrest records of a juvenile, which-shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes or (E) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof . . . .”

       The plaintiff, pursuant to Practice Book $ 3012, filed a preliminary statement of issues presenting alternative grounds upon which the judgment may be affirmed. Those issues involved the applicability of the exemptions to disclosure provided in § 1-19 (b) (1), § 1-19 (b) (2) and § 1-19 (b) (3).

       General Statutes § 4-183 provides in pertinent part: “(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

       The trial court as an alternate ground for its holding concluded that the invasion of privacy referred to in § 1-19 (b) (2) applied solely to living persons. Although there is support for that determination in the language of the exemption and the interpretation of similar language in the federal Freedom of Information Act; Providence Journal Co. v. F.B.I., 460 F. Sup. 778, 793 (D.R.I.1978), rev’d on other grounds, 602 F.2d 1010 (1st Cir. 1979), cert. denied, 444 U.S. 1071, 100 S. Ct. 1015, 62 L. Ed. 2d 752 (1980); 2 O’Reilly, Federal Information Disclosure § 20, p. 20-18; there is implicitly lower court support in this state for the contrary. Meriden Record Co. v. Browning, 6 Conn. Cir. Ct. 633, 294 A.2d 646 (1971). 3 Restatement (Second), Torts § 6521 provides, “Except for the appropriation of one’s name or likeness, an action for invasion of privacy can be maintained only by a living individual whose privacy is invaded.” General Statutes § 19a-411 provides that if the records of the chief medical examiner’s office are made available to research groups the identity of the deceased shall remain confidential. In light of our disposition of this claim of error, we need not and do not reach this issue.


text:
    Joseph G. Mihalek v. Paul M. Cichowski et al.
    (3052)
    Dupont, C.P.J., Hull and Daly, Js.

    Argued May 10—decision
    released July 9, 1985

      Kenneth J. Mulvey, Jr., with whom, on the brief, was Robert J. Enright, for the appellant (named defendant).

      Joseph M. Delaney, with whom, on the brief, was Earl F. Dewey II, for the appellee (plaintiff).
   Dupont, C.P.J.

The plaintiff brought this action against the defendant Paul Cichowski and the defendant Angelo Ghezzi to recover damages for injuries which the plaintiff sustained when an automatic pistol was accidentally discharged and the bullet struck the plaintiff. After a jury trial, a verdict was returned for the plaintiff. This appeal followed the trial court’s denial of the defendant’s motion to set aside the verdict.

On appeal, the defendant claims that the trial court erred in charging the jury (1) without sufficiently relating the facts of the case to the applicable law, (2) on damages for loss of earning capacity where the plaintiff failed to adduce sufficient evidence at trial on damages for loss of earning capacity, and (3) on the credibility of witnesses in light of prior inconsistent statements without specifically refering to Ghezzi.

The defendant’s first claim of error is that the trial court erred in its charge to the jury since the trial court failed sufficiently to instruct and guide the jury in relating the facts of this case to the applicable law. This claim is not properly reviewable because the defendant failed to satisfy the requirements of Practice Book §§ 315 and 3063.

Although the exception taken by the defendant alerted the trial court to the matter objected to, it did not distinctly state the ground of the objection. The ground for objection voiced was that “[y]ou have to work some facts in as you go through the basic structure of the charge to make that flow.” Counsel excepting to the trial court’s charge “shall state distinctly the matter objected to and the ground of objection.” Practice Book § 315; Giglio v. Hamilton Heights, Inc., 1 Conn. App. 165, 167, 469 A.2d 416 (1984). “The purpose for this rule is to alert the trial court so that it can ‘cure any defects or ambiguities in the charge.’ ” Id. The complaint that the trial court’s charge did not flow was insufficient to apprise the trial court of the claim made on appeal, that the trial court’s charge insufficiently instructed the jury concerning the application of the law to facts.

The defendant’s second claim of error is that the trial court erred in instructing the jury on damages insofar as they involved a loss of earning capacity. Certain facts are relevant to this issue. The plaintiff testified as to what he believed was the monetary loss he incurred because of the injuries sustained. Further, he introduced into evidence his income tax returns from 1977 through 1982. The jury verdict was returned on November 7, 1983. The trial court limited the jury to determining the loss of earning capacity from the date of the injury to the date of trial.

The defendant essentially argues that the evidence adduced at trial was insufficient to support the plaintiffs claim for damages for loss of earning capacity. The defendant relies on Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 359-60, 374 A.2d 1047 (1977), to buttress his argument. That case, however, is factually inapposite since the court there relied on a combination of factors, such as the plaintiffs inability to estimate his lost earning capacity, his wife’s illness which took him away from work, his employee’s illness, and the taking of his property for redevelopment purposes, to conclude that damages pertaining to loss of earning capacity were too speculative. Id., 360. The case of Delott v. Roraback, 179 Conn. 406, 411-12, 426 A.2d 791 (1980), is factually apposite. In that case, there was a sufficient evidentiary basis for awarding damages for loss of earning capacity where the plaintiff testified that the accident curtailed her ability to demonstrate her products, her income tax returns showed a net loss for the year in which the accident occurred and the year after, and she testified that she would have showed a net profit for those years if her activities were not curtailed by the accident. Id. The trial court in the present case correctly charged the jury that the loss of earning capacity was an appropriate element of damages, that the loss of net profits of the plaintiff from his business was one measure of determining the amount of the loss, and that the amount of the loss could not be ascertained with exactness but could be considered as long as all of the evidence afforded a basis for a reasonable estimate.

The defendant’s last claim of error involves the trial court’s charge to the jury on the credibility of the witnesses. In particular, the defendant argues that the trial court erred in not specifically mentioning, in accordance with his request to charge, Ghezzi as a witness whose credibility was impeached by prior inconsistent statements. The opposite situation has been addressed, that is, where error is claimed because the trial court’s charge on the credibility of the witnesses specifically referred to a particular witness and thereby unduly emphasized the extent of the impeachment of that witness. State v. Stepney, 191 Conn. 233, 246-49, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984); State v. Moynahan, 164 Conn. 560, 575, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973). In both cases, the trial court’s comments on the evidence were held to be within the wide discretion vested in the trial court. State v. Stepney, supra, 246-48; State v. Moynahan, supra, 575-76. The trial court here refused specifically to mention Ghezzi since it likely believed such comment would unduly emphasize the extent of Ghezzi’s impeachment. Further, the trial court indicated in the charge that counsel for the parties discussed the facts of the case at great length in final argument. The trial court’s latitude of discretion in commenting on the evidence does not mandate a discussion of particular testimony, especially where the issues were clearly delineated at trial and reviewed in the closing argument of counsel. Bruneau v. Quick, 187 Conn. 617, 628-29, 447 A.2d 742 (1982). Under the circumstances, this court does not find that the trial court abused the wide discretion vested in it.

There is no error.

In this opinion the other judges concurred.

       The action was withdrawn as to Angelo Ghezzi after judgment on the jury verdict was rendered. Paul Cichowski is the only defendant involved in this appeal and is hereinafter referred to as the defendant.

       The defendant also raised in the preliminary statement of issues four other issues, of which three were not briefed and are deemed abandoned. County Federal Savings & Loan Assn. v. Eastern Associates, 3 Conn. App. 582, 583 n.1, 491 A.2d 401 (1985). The defendant raised in his preliminary statement of issues and briefed whether the trial court erred in refusing to set aside the verdict because of the alleged errors in the trial court’s charge to the jury. The defendant concedes that the claimed errors in the trial court’s charge are those pressed on appeal. It is, therefore, unnecessary to consider this claim separately.


author: Spallone, J.

text:
    Stephen C. Eldridge v. Phyllis Eldridge
    (2797)
    Hull, Spallone and Daly, Js.
    Argued April 2—decision
    released July 16, 1985

      Wesley W. Horton, with whom, on the brief, were Mark A. Rubenstein and Alexandra Davis, for the appellant (plaintiff).

      Arthur E. Balbirer, with whom, on the brief, was Gaetano Ferro, for the appellee (defendant).
   Spallone, J.

The plaintiff brought this action for the dissolution of the parties’ seventeen and one-half year marriage. The trial court rendered judgment dissolving the marriage and entered certain financial orders from which the plaintiff now appeals.

The parties were married on February 19,1966, and have two minor children, one bom in 1969 and the other in 1971. When the parties were married, the plaintiff was in his third year of law school. After he completed law school, he obtained a master’s degree in taxation from New York University and became a certified public accountant. At present, he is a partner in a New York accounting firm which he joined in 1968, becoming a partner in 1975. His gross earnings for the fiscal year which ended on September 30, 1982, were $155,250. The defendant works as a teacher’s aide, receiving a gross amount of approximately $90 per week over the course of a forty-two week school year. On an infrequent basis, she also works as a substitute teacher at a per diem rate of $35.

The trial court found that the marriage had broken down irretrievably and that the breakdown was caused by the plaintiff’s conduct. The court awarded custody of the minor children to the defendant, with liberal visitation rights granted to the plaintiff. It further awarded the defendant $65,000 per year in unallocated alimony and child support, provided that this sum would be reduced by $15,000 per year when each child reached the age of eighteen; the family residence with all furnishings, except for the plaintiff’s personal belongings and effects; $50,000 in lump sum alimony, payable over five years at $10,000 per year; and counsel fees of $5000. The court ordered the plaintiff to provide medical insurance for the children and to pay one half of their uninsured medical expenses until they reach the age of eighteen. It also ordered the plaintiff to continue in effect all life insurance policies shown on his financial affidavit filed with the court, with the defendant and both children as irrevocable beneficiaries, until the eighteenth birthday of the youngest child.

In addition, the decree contained the following order: “It is contemplated at this time that the defendant will continue her present part-time employment and that in the future she will be employed full-time, however such employment shall not be considered a change of circumstances until her gross annual income from earnings shall exceed Twenty-Five Thousand Dollars. One-half of the amount by which her earnings exceed Twenty Five Thousand Dollars shall be deducted from the periodic unallocated alimony and support herein-before awarded.”

On appeal, the plaintiff attacks the totality of the financial awards. Specifically, he claims that the trial court erred in awarding both periodic and lump sum alimony, in ordering security for support payments "far” in excess of the amount of maximum possible future payments, in circumscribing the discretion of a later court in determining what constitutes a substantial change in circumstances, and in awarding counsel fees.

Our courts have repeatedly held that the trial court must have broad discretion in fashioning awards in dissolution of marriage cases. See, e.g., Sweet v. Sweet, 190 Conn. 657, 662, 462 A.2d 1031 (1983); Katreczko v. Katreczko, 1 Conn. App. 686, 687, 475 A.2d 323 (1984). That discretion is a result of the equitable nature of such matters. Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982); Osborne v. Osborne, 2 Conn. App. 635, 643, 482 A.2d 77 (1984). The action of a trial court will not be disturbed on appeal unless that court abused its legal discretion. This is so because the trial court has a "distinct advantage over an appellate court in dealing with domestic relations, where all the surrounding circumstances and the appearance and attitude of the parties are so significant.” LaBella v. LaBella, 134 Conn. 312, 318, 57 A.2d 627 (1948), quoted in Sands v. Sands, 188 Conn. 98, 101, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148,103 S. Ct. 792, 74 L. Ed. 2d 997 (1983). Thus, when financial awards in a dissolution action are questioned on appeal, great weight is given to the trial court’s judgment because of its unique opportunity to observe the parties and the evidence. Timm v. Timm, 195 Conn. 202, 206, 487 A.2d 191 (1985). As a result, our review in a case such as this is restricted to determining whether the trial court correctly applied the law and could reasonably have concluded as it did. Id., 210. In this case, we find no error.

There is no merit in the plaintiff’s first claim of error in which he challenges the award of both periodic and lump sum alimony. The amount and type of alimony which may be awarded under General Statutes § 46b-82 is for the court to determine within the exercise of its wide judicial discretion. Carpenter v. Carpenter, 188 Conn. 736, 742, 453 A.2d 1151 (1982). If, in exercising this discretion, the trial court determines that equity would best be served by awarding both lump sum and periodic alimony, it may do so. See Holley v. Holley, 194 Conn. 25, 30-32, 478 A.2d 1000 (1984). Notwithstanding our reluctance to disturb awards of alimony, a trial court risks reversal upon appeal for not awarding both lump sum and periodic alimony if such an order is clearly supported by the evidence. See, e.g., Deteves v. Deteves, 2 Conn. App. 590, 594, 481 A.2d 92 (1984).

The plaintiff next argues that the court erred in ordering security for payments “far” in excess of the amount of the maximum future support for which he could be liable. The security which the plaintiff claims is excessive consisted of life insurance policies which were shown on his affidavit as having a value of $650,000. The plaintiff’s argument that the security is excessive is premised upon the assumption that the order regarding life insurance was intended as security for child support. Had the order, in fact, been so intended, the plaintiff’s position would be plausible. The order, however, did not extend only to child support. The court stated in its memorandum of decision that the life insurance policies were to be continued “with the defendant and the two children as irrevocable beneficiaries . . . .” (Emphasis added.) In articulating its decision upon motion by the defendant, the court stated that the order regarding life insurance was intended to “protect” the awards of periodic alimony and support. When the plaintiffs maximum possible obligation to the children and the defendant is considered, the order was not excessive.

The third claim of error raised by the plaintiff is that the trial court erred in circumscribing the discretion of a later court in determining what constitutes a substantial change of circumstances. The order which the plaintiff maintains had this effect was the order that the defendant’s full-time employment shall not be considered a change of circumstances until her gross annual income from those earnings exceeds $25,000. The plaintiff acknowledges that alimony can be made partially or wholly nonmodifiable under General Statutes § 46b-86 (a). He contends, however, that the court exceeded the authority conferred by that statute in making this order.

Provisions which preclude modification of alimony tend to be disfavored. See, e.g., Cummock v. Cummock, 180 Conn. 218, 222, 429 A.2d 474 (1980); Calorossi v. Calorossi, 4 Conn. App. 165, 168, 493 A.2d 257 (1985); Bronson v. Bronson, 1 Conn. App. 337, 339, 471 A.2d 977 (1984). Where an order purporting to preclude modification of alimony is ambiguous, the award will be treated as modifiable. McGuinness v. McGuinness, 185 Conn. 7, 9, 440 A.2d 804 (1981); Scoville v. Scoville, 179 Conn. 277, 280, 426 A.2d 271 (1979); Bronson v. Bronson, supra. Where a provision which precludes or restricts a later court’s power to modify financial orders is clear and unambiguous, however, it will be upheld. See, e.g., Solo v. Solo, 2 Conn. App. 290, 478 A.2d 255 (1984).

In this case, the court, in the exercise of its discretion, designated a dollar amount above which it felt the defendant’s self earned income signified an adequate level of independence to constitute a change in circumstances. At that point, her entitlement to alimony under the initial award would be subject to modification upon motion by the plaintiff. The condition, which limits but does not preclude a later court from modifying the plaintiff’s alimony obligation, is clear and unambiguous. The decree spells out with certainty the extent to which modification is precluded, and we will not inject into its language ambiguities which are not there.

The plaintiff’s final claim of error is that the trial court erred in awarding the defendant counsel fees of $5000. The determination of whether to award counsel fees falls within the discretion of the trial judge. General Statutes § 46b-62; Weiman v. Weiman, 188 Conn. 232,236, 449 A.2d 151 (1982). “That a party has sufficient funds to pay the attorney does not preclude an award for counsel fees. Arrigoni v. Arrigoni, 184 Conn. 513, 519, 440 A.2d 198 (1981). Rather, the question the court must address is whether the defendant had ample liquid funds to pay counsel fees. Koizim v. Koizim, 181 Conn. 492, 435 A.2d 1030 (1980). If the court could reasonably have concluded that the defendant’s financial resources, even when supplemented by the financial orders contained in the judgment, were necessary to meet her future needs and therefore were not available to pay counsel fees, there was no abuse of discretion.” Id., 236-37. Having considered the totality of the circumstances reflected in the court’s financial awards, we conclude that the award of counsel fees fell within the parameters of the trial court’s judicial discretion. Vaiuso v. Vaiuso, 2 Conn. App. 141, 151, 477 A.2d 678, cert. denied, 194 Conn. 807, 483 A.2d 275 (1984).

There is no error.

In this opinion the other judges concurred.

       At oral argument before this court, the plaintiff withdrew a claim of error regarding the award of custody.


text:
    Fairfield Lease Corporation v. Romano’s Auto Service et al.
    (2651)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued April 3—decision
    released July 16, 1985

      Richard P. Weinstein, for the appellants (defendants).

      Irving B. Shurberg, for the appellee (plaintiff).
   Spallone, J.

This action was brought by the plaintiff to enforce a judgment by default rendered by a New York court in an action based upon a commercial lease agreement. The lease provided that all actions arising out of the agreement were to be litigated only in courts located in New York and that the lessee agreed to the jurisdiction of those courts. The lease also provided that the lessee waive personal service in favor of service by registered mail.

The defendants counterclaimed in the present action asserting that the New York court lacked jurisdiction to render judgment against them because the consent to jurisdiction clause in the lease was unconscionable. The plaintiff moved to strike the counterclaim on the ground that unconscionability should have been raised as a defense to the action in New York and is not a basis upon which to collaterally attack that judgment. The trial court granted the plaintiff's motion to strike and rendered summary judgment for the plaintiff. The defendants now appeal from the granting of the plaintiff’s motion to strike and the rendering of summary judgment. We find no error.

“[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action. See Ballentine’s Law Dictionary (3d Ed.) p. 279.” Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 160, 459 A.2d 525 (1983); see Conservation Commission v. Price, 193 Conn. 414, 433, 479 A.2d 187 (1984). A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim. Practice Book § 152.

In our review of the trial court’s striking of the defendant’s counterclaim, we must determine whether the facts expressly pleaded and those which could necessarily be implied and fairly proved under the allegations set forth therein would support a cause of action if the defendant had sued the plaintiff in a separate action. See Schmidt v. Yardney Electric Corporation, 4 Conn. App. 69, 74, 492 A.2d 512 (1985). In arriving at our determination, we are mindful that “a motion to strike does not admit legal conclusions or the truth or accuracy of opinions stated in the pleading at which the motion is directed. [Greene v. Metals Selling Corporation, 3 Conn. App. 40, 42, 484 A.2d 478 (1984)]; 1 Stephenson, Conn. Civ. Proc. § 116(c).”Sheiman v. Lafayette Bank & Trust Co., 4 Conn. App. 39, 42, 492 A.2d 219 (1985).

A judgment of one state will be recognized and given the force of a judgment in another only if the court purporting to render the original judgment had the power, that is, jurisdiction, to render such a judgment. Williams v. North Carolina, 325 U.S. 226, 229, 65 S. Ct. 1092, 89 L. Ed. 1577 (1945); Krueger v. Krueger, 179 Conn. 488, 491, 427 A.2d 400 (1980). “[E]very presumption favors the jursidiction of a court; Six Carpenters, Inc. v. Beach Carpenters Corporation, 171 Conn. 1, 6, 372 A.2d 123 (1976); and the regularity of its processes. Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 260, 259 A.2d 598 (1969). The modern law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal. James & Hazard, Civil Procedure (2d Ed. 1977) § 13.16, esp. 695-97; Restatement (Second), Judgments § 15 (Tent. Draft No. 5 1978).” Monroe v. Monroe, 177 Conn. 173, 177-78, 413 A.2d 819 (1979); Meinket v. Levinson, 193 Conn. 110, 114, 474 A.2d 454 (1984). Consequently, “[a] subsequent challenge to subject matter jurisdiction, when that issue was not actually litigated in the prior action, is authorized only if the litigant can show that ‘the tribunal’s excess of authority was plain or has seriously disturbed the distribution of governmental powers or has infringed a fundamental constitutional protection.’ 1 Restatement (Second), Judgments § 12, comment d; 2 Restatement (Second), Judgments § 69; Vogel v. Vogel, [178 Conn. 358, 362-63, 422 A.2d 271 (1979)].” Meinket v. Levinson, supra, 114-15.

The sole ground upon which the defendants claim that the New York court acted in excess of its authority is that the consent to jurisdiction clause in the lease was unconscionable. Parties to a contract may make it part of their arrangement that disputes arising between them shall be determined by a particular tribunal. The parties may agree “to submit to the jurisdiction of a given court, to permit notice to be served by the opposing party, or even to waive notice altogether.” National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 316, 84 S. Ct. 411, 11 L. Ed. 2d 354 (1964); see Insurance Corporation of Ireland, Ltd. v. Compagnie Des Bauxites de Guinee, 456 U.S. 694, 703-704, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982); The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10-11, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972). When the court selected is reasonably appropriate, and where there is no indication that “the parties had such greatly disproportionate bargaining power that the agreement could be regarded as unconscionable, the tendency is to give effect to such agreements.” James & Hazard, Civil Procedure (2d Ed. 1977) § 12.21.

“[T]he question of unconscionability is a matter of law to be decided by the court based on all the facts and circumstances of the case.” Iamartino v. Avallone, 2 Conn. App. 119, 125, 477 A.2d 124 (1984); see Hamm v. Taylor, 180 Conn. 491, 493, 429 A.2d 946 (1980). Superior bargaining power in itself is not enough to strike down a resultant contract as unconscionable. Additional elements must be present, such as, “a lack of meaningful choice as in the case of an industry wide form contract heavily weighted in favor of one party and offered on a take it or leave it basis, or [exploitation] by a stronger party who has control of the negotiations due to the weaker party’s ignorance, feebleness, unsophistication as to interest rates or similar business concepts or general naivete.” Calamari & Perillo, Contracts (2d Ed.) § 9-40, p. 326.

The counterclaim alleges that the lease was a “boiler plate agreement” and is unconscionable and unenforceable. It contains no allegations of fact as to the commercial setting in which the lease was entered or the relative bargaining power of the parties. It merely shows that the defendants entered into a lease for a coffee machine, that the lease contained a provision by which the lessee consented to jurisdiction of the courts of New York, and that the plaintiff, “upon information and belief,” had obtained a default judgment against the defendant. Beyond this, its allegations are conclusions of law. Absent sufficient alleged facts to support these conclusions, the counterclaim is subject to a motion to strike. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285-86, 449 A.2d 986 (1982); Sheiman v. Lafayette Bank & Trust Co., supra, 46.

There is no merit in the defendants’ claim that the trial court erred in rendering summary judgment for the plaintiff. “A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979). . . . When a motion for summary judgment is supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by [Practice Book] § 380, must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant. Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 51, 357 A.2d 484 (1975).” Bartha v. Waterbary House Wrecking Co., 190 Conn. 8, 11-12, 459 A.2d 115 (1983).

Here, the motion for summary judgment was accompanied by an affidavit of the president of the plaintiff company, who stated that on January 11, 1982, the plaintiff had obtained a judgment in New York in the amount of $1905.94. Attached to the affidavit was a copy of the transcript of that judgment. The defendants did not submit a counteraffidavit or attack the plaintiff’s affidavit as insufficient in form, or as made in bad faith, or that facts essential to justify their opposition were unavailable. Practice Book §§ 381 through 383; Bartha v. Waterbury House Wrecking Co., supra, 12. The trial court was entitled to rely upon the affidavit before it.

There is no error.

In this opinion the other judges concurred.


text:
    Edwin R. Green et al. v. Zoning Board of Appeals of the Town of Westport
    (3183)
    Dupont, C.P.J., Borden and Spallone, 3s.

    Argued April 9—decision
    released July 16, 1985

      Jan A. Marcus, with whom, on the brief, was G. Kenneth Bernhard, for the appellant (defendant).

      Joseph M. Brophy, for the appellees (plaintiffs).
   Dupont, C.P.J.

This is an appeal from a judgment of the trial court sustaining the plaintiffs’ appeal from a decision of the defendant zoning board denying a variance. Upon our grant of certification, the defendant appealed to this court. The plaintiffs sought a variance from the zoning regulations of Westport to permit them to use their residentially zoned dwelling for offices. The record discloses that in 1977 the plaintiffs purchased the subject property which included a parcel of land and a two-story frame house located on Myrtle Avenue in Westport. The property is zoned “residence A” and is adjacent to the Westport town hall which had previously been used as a junior high school.

The plaintiffs, desiring to use their property for a law office and an insurance office, filed applications requesting variances of certain Westport zoning regulations. A public hearing was held at which evidence was presented in support of, and in opposition to, the plaintiffs’ application. The defendant board denied the application, on the basis that the plaintiff had failed to demonstrate a sufficient hardship pursuant to General Statutes § 8-6 (3).

The trial court sustained the plaintiffs’ appeal, which was taken pursuant to General Statutes § 8-8, holding that the board’s denial of a variance to the plaintiffs was not supported by the record, and, therefore, the board acted arbitrarily, illegally and abused its discretion. On appeal, the defendant board, in effect, raises one claim of error, that the trial court erred in finding that the board’s denial of the variance was not reasonably supported by the record.

General Statutes § 8-6 (3) provides the board with authority to grant a variance, if that variance would not substantially affect the comprehensive zoning plan, and the application of the zoning ordinances to the particular parcel of land causes an unusual hardship, unnecessary to implement the general purpose of the zoning plan. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 655, 427 A.2d 1346 (1980); Grillo v. Zoning Board of Appeals, 4 Conn. App. 205, 493 A.2d 275 (1985). The board’s reasons for denying the variance are examined to determine whether they are reasonably supported by the record and are a relevant basis on which to act on the application. Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 152-53, 365 A.2d 387 (1976). If one of the reasons provided by the board is sufficient to support the denial of the variance, the board’s decision must be upheld. Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 49, 484 A.2d 483 (1984).

The reasons advanced by the board in this case were that the plaintiffs’ reference to the other variances in the area which had previously been granted, except one where the property was unique, required some residential use, that the plaintiffs purchased the property knowing that the adjoining property was to become a town hall, and that the property was not the sole residence in the neighborhood.

The trial court found that the board misperceived the plaintiffs’ claim of hardship. The trial court, after reviewing the transcript of the public hearing, decided that the plaintiffs advanced certain claims of hardship. These were that the subject property is uniquely situated, adjacent to town hall, isolated from the rest of the neighborhood, and thereby adversely affected by the evening activities at town hall, the neighborhood had become commercialized, and that the enforcement of the zoning regulations to this property greatly diminished its economic value. This is contrary to the plaintiffs’ allegations in their complaint. Paragraph five of the plaintiffs’ complaint alleges that the hardship claimed was the financial loss sustained by the plaintiffs as a result of the zoning ordinances. In support of that claim, they alleged the property was unsuited for single family residential use because of its close proximity to the Westport town hall, its isolation from the surrounding neighborhood because of a newly constructed multi-lane roadway and the frequent evening activities conducted at the town hall.

A “hardship must be different in kind from that generally affecting properties in the same zoning district . . . .” Smith v. Zoning Board of Appeals, 174 Conn. 323, 327, 387 A.2d 542 (1978). The board stated that there were other single family residences in the immediate vicinity. The transcript of the hearing before the board reveals that the thrust of the plaintiffs’ argument for a use variance was that other variances were granted to owners in the immediate neighborhood for reasons simiiiar to those advanced by the plaintiffs. The board responded at the hearing and in its decision by pointing out that with one exception, those variances were coupled with continued residential use of the property. The board, therefore, could conclude, as it did, that the hardship claimed by the plaintiffs was not different from that affecting other properties in the neighborhood. The board’s decision was supported by the record which contained a relevant basis on which to deny the variance.

The presence and continued use of other properties in the vicinity as single family residences also undermines the plaintiffs’ claim of financial hardship, particularly where no evidence was adduced before the board to establish that the plaintiffs were presently losing money in their rental of the premises. The trial court, therefore, erred in holding that the record did not support the board’s action.

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

In this opinion the other judges concurred.

       General Statutes § 8-6 provides in pertinent part: “The zoning board of appeals shall have the following powers and duties: ... (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed.”


text:
    Shirley Rose Bratz v. Michael Bratz
    (2577)
    Borden, Spallone and Daly, Js.
    Argued April 12—decision
    released July 16, 1985

      Ross Lessack, with whom, on the brief, was Edward T. Dodd, Jr., for the appellant (defendant).

      Joseph T. Gormley, Jr., for the appellee (plaintiff).
   Spallone, J.

The defendant raises three claims of error in this appeal from the judgment dissolving his marriage to the plaintiff. He claims that the trial court erred in its distribution of the marital assets, in refusing to disqualify itself because of a conflict of interest, and in awarding counsel fees to the plaintiff to defend this appeal.

The following facts are undisputed. The parties were married in 1977. Shortly after their marriage, they purchased a house in Watertown for $65,000. The house, which was placed in both names upon purchase, stood solely in the name of the plaintiff at the time of this action. The parties paid for the house with a down payment of $5000, which came from the proceeds of the sale of a house owned by the defendant prior to the marriage, and $15,000, which was loaned to them by the plaintiffs parents. The balance of the purchase price was financed through a first mortgage. Before the parties separated, the plaintiff signed a second mortgage to her father for the $15,000 loan.

At the time of trial, the plaintiff was twenty-five years old and worked as a sales manager at a manufacturing company owned by her father. Her net salary was approximately $280 per week. The defendant, a self-employed roofer, earned a net income of about $300 per week. The defendant individually owned two apartment buildings, purchased prior to the marriage, which produced approximately $1300 in monthly rental income. The parties had no children.

In bringing this action, the plaintiff made no claim for alimony. Nor did she claim any interest in the defendant’s business, rental properties, antique, coin or other collections, or furniture which she had not already removed from the Watertown residence.

At trial, the plaintiff testified that she had been continuously employed throughout the marriage and that she used her earnings to pay for food, short vacations and household expenses. Because of the seasonal nature of the defendant’s business, she saved what remained for times “when things were slow.” The defendant testified that he contributed approximately $30,000 of his own money toward the improvement of the Watertown property and that, being a roofer, he did a substantial amount of work on the property himself. He also testified that he paid the mortgage, utilities, insurance and taxes on that property.

In rendering its judgment of dissolution, the trial court ordered that the Watertown property was to be sold, and from the net proceeds the defendant was to receive $7500 with the balance going to the plaintiff. The defendant, who was living in the house, was to be responsible for paying the first mortgage, taxes, insurance and utilities until the premises were sold. Except for a pool table and an antique clock, all the remaining personal property, including motor vehicles, was to go to the defendant.

The defendant’s first claim of error, which concerns the distribution of assets, focuses primarily on the distribution of the proceeds from the sale of the Water-town residence. The defendant argues that the award of $7500 from the proceeds of the sale was unreasonably low because he contributed almost all of the equity in the property. It is his position that the trial court, in making that award, abused its discretion in applying General Statutes § 46b-81 (c), which requires the court to consider “the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.” We disagree.

Although the court is obligated to base its award upon and be guided by the statutory criteria established in General Statutes § 46b-81; Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982); it is not required to make express findings as to each. Sweet v. Sweet, 190 Conn. 657, 661, 462 A.2d 1031 (1983). “A ritualistic rendition of each of those elements would serve no useful purpose. Carpenter v. Carpenter, 188 Conn. 736, 740, 453 A.2d 1151 (1982).” Osborne v. Osborne, 2 Conn. App. 635, 642, 482 A.2d 77 (1984).

“The power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of marriage.” Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975); quoted in Vaiuso v. Vaiuso, 2 Conn. App. 141, 147, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984). For that reason, the court is called upon to exercise its broad discretion in formulating awards in such an action. As a reviewing court, we are limited to determining whether the trial court abused its discretion in making those awards. Barnes v. Barnes, 190 Conn. 491, 495, 460 A.2d 1302 (1983); Vaiuso v. Vaiuso, supra. For us to conclude that the trial court abused its discretion, we must find that the court “either incorrectly applied the law or could not reasonably conclude as it did. Beede v. Beede, 186 Conn. 191, 194, 440 A.2d 283 (1982).” Sweet v. Sweet, supra, 664. Having reviewed the record in this case, we conclude that the distribution of property challenged by the defendant was made in accordance with law and was amply supported by the evidence. Id.

The defendant next argues that the trial judge should have disqualified herself because a law firm with which she had once been associated had, at an earlier time, represented the plaintiffs father. This fact was brought to the attention of the parties by the trial judge soon after the trial commenced. The defendant’s trial counsel did not seek the judge’s disqualification and, in fact, stated that he had no objection to her presiding over the trial.

No question was raised as to this matter until after judgment was rendered and this appeal was pending. At a post-trial hearing on a motion by the defendant to open the judgment, based in part upon the judge’s failure to disqualify herself, the trial judge amplified upon her earlier statement. She stated that she had never met the plaintiff until trial; that other members of her law firm, and not herself, had represented the plaintiff’s father; and that the representation had occurred about fifteen years earlier. She denied the motion to open the judgment, finding no merit in the disqualification claim or the other grounds raised by the defendant.

The disqualification of judges is addressed in General Statutes § 51-39. That statute provides, in pertinent part: “(a) Except as provided in this section, a judge is disqualified to act ... if he may receive a direct pecuniary benefit by the determination of any proceeding before him. . . . (c) When any judge is disqualified to act in any proceeding before him, he may act if the parties thereto consent in open court.” The only basis for a claim of statutory disqualification in this case is that the trial judge had a potential interest in the outcome of the proceeding. There is no merit to this claim.

The interest in the potential outcome of a case that will disqualify a judge must be a present one. It must be direct, certain and immediate, and not one which may have formerly existed. 46 Am. Jur. 2d, Judges §§ 99, 100. General Statutes § 51-39 (a) requires disqualification if the judge may receive “direct pecuniary benefit” by the determination of the proceeding. Since the representation in this case involved the plaintiffs father and had occurred approximately fifteen years prior to trial, we see no infraction of General Statutes § 51-39 (a).

Furthermore, even assuming that the facts were otherwise, General Statutes § 51-39 (c) allows a judge who is disqualified, to act in a proceeding with the parties’ consent. As we have noted, the trial court gave the parties ample opportunity, early in the proceeding, to object to her presiding over the trial. Although the parties, on the record, did not expressly agree that she could preside, the defense counsel never sought her disqualification. By failing to object or raise the disqualification issue, the conduct of the defendant “can be construed as the functional equivalent of ‘consent in open court’ . . . .” Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985); see Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967); Verissimo v. Verissimo, 3 Conn. App. 222, 224, 486 A.2d 1134 (1985). We strongly disfavor that conduct by which, for whatever reason, a party fails to object to errors which occur during trial until it is too late for them to be corrected, and then assigns such errors as grounds of appeal if the outcome of the trial is unsatisfactory. Timm v. Timm, supra.

The defendant’s third claim of error is that the trial court abused its discretion in awarding the plaintiff $2000 in attorney’s fees to defend this appeal. The defendant argues that the plaintiff’s financial position was superior to his because, at the time of the hearing on the plaintiff’s motion for counsel fees, he was not working steadily. He claims that because of their disparate financial abilities, the court erred in its award.

The allowance of counsel fees, and if so in what amount, falls within the sound discretion of the trial court. Anderson v. Anderson, 191 Conn. 46, 58, 463 A.2d 578 (1983); Vaiuso v. Vaiuso, supra, 151. “In making its determination regarding attorney’s fees on appeal, we deem it appropriate for the court in the exercise of its broad judicial discretion to consider the statutory criteria set out in General Statutes §§ 46b-62 and 46b-82 and the respective financial abilities of the parties. Koizim v. Koizim, [181 Conn. 492], 501, [435 A.2d 1030 (1980)]; see Murphy v. Murphy, 180 Conn. 376, 380, 429 A.2d 897 (1980).” Anderson v. Anderson, supra, 58-59. Having considered the totality of the circumstances as reflected in the awards, which includes the financial ability of each party, we cannot conclude that the trial court abused its discretion in granting the plaintiff appellate counsel fees.

There is no error.

In this opinion the other judges concurred.

       Because the defendant did not amend this appeal to include a challenge to the denial of his motion to open, we need not address the question of whether the court’s action on that motion was correct.


author: Noren, J.

text:
    International Harvester Credit Corporation v. John R. Gillis
    (2755)
    Dupont, C.P.J., Borden and Noren, Js.

      Argued April 18—decision
    released July 16, 1985

      Steven M. Reilly, for the appellant (defendant).

      Kathleen C. Stone, for the appellee (plaintiff).
   Noren, J.

This is an appeal from the granting, after an evidentiary hearing, of a prejudgment remedy of replevin pursuant to the provisions of General Statutes §§ 52-278a to 52-278d. The defendant has appealed on the ground that the plaintiff did not meet its burden of establishing probable cause to sustain the validity of its claim.

Before discussing the merits of the appeal, it is necessary to deal with the plaintiffs motion to dismiss the appeal which was made prior to oral argument in this court. The defendant does not contest that subsequent to the hearing in the trial court it petitioned the United States Bankruptcy Court pursuant to 11 U.S.C. §§ 1301 through 1330, and that a trustee in bankruptcy has been appointed. No motion has been made for substitution of the trustee to pursue this appeal, either by the trustee or by the defendant. The plaintiff argues that the defendant has lost the capacity to prosecute this appeal and that the appeal should be dismissed for failure to prosecute. Practice Book § 3109. The plaintiff does not argue that this court is without jurisdiction to hear the appeal or that the appeal is stayed, but that the appeal has not been pursued with diligence because of the failure of the trustee to be substituted as a party. Since an appeal filed by a debtor need not be stayed because of the pendency of a bankruptcy petition, and may be pursued by the debtor, rather than the trustee in bankruptcy, the motion to dismiss the appeal is denied. Knights of Columbus Federal Credit Union v. Salisbury, 3 Conn. App. 201, 211 n.10, 486 A.2d 649 (1985).

We turn now to the merits of the appeal. Evidence was presented in the trial court that the plaintiff had sold to the defendant, pursuant to a retail installment sales contract, a model TD20E bulldozer. By means of cross collaterizing, the plaintiff obtained a security interest in several other pieces of equipment. Eventually the dozer was repossessed and sold, the plaintiff claiming a deficiency of $14,186.95. Among the other pieces of equipment cross collaterized was a crawler tractor which is the subject of this replevin and of this appeal.

The defendant claims that the trial court was required to make a determination that the sale of the dozer, which is not the subject of the replevin, was reasonable, in order to establish a deficiency owed to the plaintiff. The duty of the trial court at a hearing on an application for a prejudgment remedy is “limited to a determination of whether or not there is probable cause to sustain the validity of the plaintiff’s claim.” General Statutes § 52-278d. “The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff’s claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977).” Three S. Development Co. v. Santore, 193 Conn. 174, 175-76, 474 A.2d 795 (1984).

A review of the transcript reveals that the trial court did take some testimony regarding the reasonableness of the sale of the dozer and the other collateral, and then heard evidence regarding how the amount of the deficiency claimed was calculated. It concluded that probable cause existed to sustain the plaintiffs claim that a debt was owed and that the plaintiff was entitled to replevy the tractor. It was not necessary for the court explicitly to determine the reasonableness of the sale of the dozer in making its determination of probable cause.

“In discussing the trial court’s role in determining probable cause in a prejudgment remedy hearing, the Supreme Court stated the appellate rule as follows: ‘In reaching its determination of probable success on the merits it is essentially weighing probabilities, and in this it must have a broad discretion. In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.’ Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977); see also Three S. Development Co. v. Santore, 193 Conn. 174, 176, 474 A.2d 795 (1984); Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393-94, 480 A.2d 561 (1984).” Santini v. Deeb, 2 Conn. App. 683, 685, 483 A.2d 615 (1984).

Under the circumstances of the present case, given the extremely limited scope of our review, we conclude that the decision of the trial court did not constitute clear error.

There is no error.

In this opinion the other judges concurred.