author: Norcott, J.

text:
    State of Connecticut v. Frank McClain
    (8278)
    Dupont, C. J., Spallone and Norcott, Js.
    Argued June 6
    decision released August 28, 1990

      Joseph M. Shortall, chief public defender, with whom was Charles D. Hines, assistant public defender, for the appellant (defendant).

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Keith Duboff, deputy assistant state’s attorney, for the appellee (state).
   Norcott, J.

After a jury trial, the defendant was convicted of the crimes of assault in the second degree in violation of General Statutes § 53a-60 (a) (5) and interfering with an officer in violation of General Statutes § 53a-167a. On appeal, the defendant challenges the trial court’s (1) partial denial of his motion in limine to exclude prior convictions, (2) admission into evidence of the sentences imposed for the defendant’s prior convictions, and (3) admission into evidence of hearsay testimony by a state police officer concerning statements made to him by a prison inmate. We affirm the trial court’s judgment.

The jury could reasonably have found the following facts. At approximately 9:15 p.m., on December 21, 1988, the defendant, an inmate at the Enfield medium security prison, engaged in a fight with another inmate, Elwell McPhail. The fight occurred in the game room of a dormitory at the prison. In the course of the fight, the two inmates fell to the floor. Officer Ernest J. Nameth attempted to break up the fight, and the defendant then struck him in the mouth, knocking him backwards.

I

On appeal, the defendant first challenges the trial court’s partial denial of his motion in limine requesting that, should he testify, the trial court prevent the state from using evidence of his prior convictions for impeachment purposes. The trial court granted the motion in part, ruling that the defendant’s convictions of assault in the first degree and assault in the second degree be referred to only as “unspecified felonies.” The trial court allowed into evidence, however, the defendant’s twelve convictions of robbery in the first degree.

Because the trial court had denied his motion in limine with respect to the robbery convictions, the defendant testified on direct examination that he had been convicted of robbery twelve times. The defendant claims that the sheer number of convictions of such a violent crime so prejudiced the jury against him as to preclude their admission into evidence.

This is an issue that both this court and our Supreme Court have dealt with many times. It is axiomatic that evidence that a criminal defendant has been convicted of crimes on prior occasions is generally not admissible. State v. Geyer, 194 Conn. 1, 5, 480 A.2d 489 (1984). It has been long recognized, however, that “[i]f a defendant in a criminal case has previously been convicted of crimes punishable by imprisonment for more than one year, a trial court may allow the state to introduce those convictions at a trial on subsequent charges as evidence related to the defendant’s credibility, where credibility is in issue.” State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985). A trial court may properly admit such evidence only when its prejudicial effect does not “far outweigh” its probative value. State v. Harrell, 199 Conn. 255, 260, 506 A.2d 1041 (1986); State v. Braswell, supra; State v. Nardini, 187 Conn. 513, 521, 447 A.2d 396 (1982).

In balancing the probative value of evidence concerning prior convictions against the prejudicial effect of its admission, a trial court must consider three factors: “(1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime in indicating untruthfulness; and (3) its remoteness in time.” State v. Nardini, supra, 522. “A trial court’s decision denying a motion to exclude a witness’ prior record, offered to attack his credibility, will be upset only if the court abused its discretion.” State v. Binet, 192 Conn. 618, 623, 473 A.2d 1200 (1984).

“In moving to bar introduction of prior convictions a defendant in a criminal case bears the burden of demonstrating the specific harm that will occur if the convictions are introduced.” State v. Braswell, supra, 308. In this case, the defendant argued at trial that his robbery convictions should be excluded, first, because the number of convictions would unduly prejudice the jury, and, second, because the convictions of robbery, a violent crime, were so like the offense being tried as to create a high degree of prejudice.

It is clear that the trial court considered both the defendant’s arguments and the three criteria set forth by our Supreme Court before ruling on the defendant’s motion in limine. The trial court specifically noted that, because the underlying crime of robbery is larceny, the defendant’s robbery convictions were “highly probative of his truthfulness and veracity.” See State v. Harrell, supra, 263; State v. Geyer, supra, 12. In addition, the trial court performed the requisite balancing when it sanitized the defendant’s assault convictions. See State v. Geyer, supra, 16. The trial court did not abuse its discretion in denying the defendant’s motion in limine. Therefore, we do not disturb its ruling.

II

The defendant next challenges the admission into evidence of the sentences imposed for his prior convictions. After ruling on the defendant’s motion in limine, the trial court held that sentences imposed for each of the defendant’s fourteen convictions could be revealed to the jury. Subsequently, the defendant testified on direct examination that he had received a total sentence of twelve years for his twelve convictions of robbery and of two unspecified felonies. The defendant claims that, because he admitted to his prior convictions, the “customary inquiry” concerning impeachment should be limited to “the name of the crime and the date of conviction.” State v. Geyer, supra, 8.

Although this is an issue of first impression in Connecticut, courts in other jurisdictions have addressed this issue and have come to different conclusions as to its resolution. In some states, courts have allowed questioning as to the sentence imposed for a conviction when that conviction is introduced to impeach the defendant. See, e.g., State v. Washington, 383 S.W.2d 518 (Mo. 1964); State v. Sinclair, 57 N. J. 56, 269 A.2d 161 (1970); Webb v. State, 445 P.2d 531 (Okla. Crim. App. 1968); Jackson v. State, 161 Tex. Crim. 561, 279 S.W.2d 354 (1955). Other states have held that such an inquiry is absolutely prohibited. See, e.g., People v. Rappuhn, 390 Mich. 266, 212 N.W.2d 205 (1973); Murray v. State, 266 So. 2d 139 (Miss. 1972), cert. denied, 411 U.S. 907, 93 S. Ct. 1534, 36 L. Ed. 2d 196 (1973). Still a third group of states has held that a criminal defendant may not be questioned as to his sentence for a prior conviction when he has admitted the fact of that conviction. See, e.g., People v. Chestnut, 42 App. Div. 2d 594, 345 N.Y.S. 2d 79 (1973); State v. Corn, 215 S.C. 166, 54 S.E.2d 559 (1949). We find this last rule to be most sound, and we therefore adopt it in this case.

When a criminal defendant testifies at trial, evidence of his prior convictions is allowed so that the jury may fully assess his credibility. State v. Braswell, supra, 307. The relevance of the sentence imposed for any prior conviction to the issue of credibility is, however, questionable at best. People v. Rappuhn, supra, 273. The sentence imposed is an “uncertain sequel” to the defendant’s acts that sheds no genuine light on his credibility. Id. This is especially true when the defendant admits that he has been convicted of a particular crime. People v. Chestnut, supra.

Furthermore, evidence of the defendant’s punishment would tend to confuse, rather than clarify, the meaning of the defendant’s prior conduct to the jury. Sentencing is based on a number of factors, only one of which relates to the seriousness of the crime charged, and varies from tribunal to tribunal and from judge to judge. People v. White, 26 Mich. App. 35, 39-40, 181 N.W.2d 803 (1970). To a lay jury, the likely conclusion is simply that the greater the sentence, the more serious the crime. To prevent this possible misplaced conclusion, the trial judge would be forced to explain to the jury the complexities and vagaries of sentencing. The jury might still be unable to grasp the true meaning of the sentence absent an examination of the transcript of the defendant’s sentencing. Only through such scrutiny could the jury be expected properly to assess the significance, if any, of the sentence imposed.

The value of evidence of the defendant’s punishment for prior crimes is limited, particularly when the defendant, on direct or cross-examination, has admitted to those convictions. Therefore, we hold that the trial court improperly allowed the defendant to be questioned about his sentences for his prior convictions.

Our inquiry does not end with this conclusion, however. Because the defendant’s claim does not involve the violation of a constitutional right, he bears the burden of demonstrating that the trial court’s action was harmful. State v. Talton, 197 Conn. 280, 290, 497 A.2d 35 (1985). Therefore, we now consider whether the admission of the testimony “was so prejudicial to the rights of the defendant as to deprive him of a fair trial”; State v. Ruth, 181 Conn. 187, 196, 435 A.2d 3 (1980); that is, “whether the claimed erroneous action of the court would have been likely to affect the result.” State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).

We conclude that the trial court’s admission of the sentences imposed for the defendant’s prior convictions was harmless under the circumstances of this case. After learning that the defendant had been convicted of fourteen separate felonies, the jury could not have been significantly impacted by the information that the defendant was sentenced to a total of twelve years in prison. If anything, the jury’s knowledge of the defendant’s relatively light sentence could have mitigated in his favor.

We cannot conclude that the defendant has met his burden of demonstrating the harmfulness of the trial court’s ruling. State v. Taitón, supra.

Ill

Finally, the defendant claims that his constitutional right to confront the witnesses against him was violated when Trooper Stephen P. Snow of the state police testified concerning statements made to him by McPhail, the inmate who had been fighting with the defendant just prior to the incident in question. The defendant concedes that he failed to preserve this claim properly during trial, but argues that it should be reviewed under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), or the plain error doctrine. Practice Book § 4185.

We will review an unpreserved claim under the Evans bypass doctrine only where that claim is of constitutional magnitude, alleging the violation of a fundamental right. State v. Golding, 213 Conn. 233, 238-40, 567 A.2d 823 (1989). Here, the defendant’s claim is primarily an evidentiary one. “[A] defendant’s right of confrontation is not violated despite the absence of the out-of-court declarant if the statement ‘bears sufficient indicia of reliability to assure the trier of fact an adequate basis for evaluating the truth of the declaration . . . .’ ” State v. Vessichio, 197 Conn. 644, 658, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). Inmate McPhail’s statement bears some indicia of reliability in that it merely corroborated Nameth’s statement, as well as portions of the defendant’s own testimony. The defendant, therefore, has failed to allege the violation of a fundamental right, and Evans review is therefore unwarranted.

Similarly, the defendant’s claim is not reviewable as plain error under Practice Book § 4185. “Such review is reserved for the truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). We conclude that this testimony was purely cumulative. We cannot say that the admission of purely cumulative hearsay eyidence impaired the fairness or integrity of the defendant’s trial. We, therefore, decline to review further the admission of the hearsay evidence in question.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant testified that he also had been convicted of “two other” felonies. On appeal, however, he challenges the admission of only the robbery convictions.

       The trial court “sanitized” the assault convictions, ordering that they be referred to as unspecified felonies, to avoid undue prejudice to the defendant.

       The testimony of which the defendant complains reads:
      “[State’s Attorney]: Now, did you speak to anyone else about the incident in question?
      “[Trooper Snow]: I spoke with an inmate McPhail, who was also present at the time the assault took place.
      “[State’s Attorney]: And did he give you a statement?
      “[Trooper Snow]: He did orally. He wouldn't give me anything in writing. He refused to give me anything in writing. He refused to give me anything in writing, but he stated orally, basically, the same statement that was given by correctional officer Nameth.
      “[State’s Attorney]: So as to what occurred, he was consistent with that?
      “[Trooper Snow]: Exactly.”


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Oak Leaf Marina, Inc., et al. v. Peter M. Ertel
    (8086)
    Borden, O’Connell and Foti, Js.
    Argued April 11
    decision released August 28, 1990

      Richard Paladino, for the appellant (defendant).

      Steven L. Richards, with whom, on the brief, was Raymond T. DeMeo, for the appellees (plaintiffs).
   Foti, J.

The defendant appeals from the trial court’s judgment rendered in favor of the plaintiffs. The parties own abutting tracts of waterfront realty in Old Saybrook, and dispute the scope of their riparian rights. The plaintiffs sought and were granted relief in three areas: the littoral areas to the north and south of the defendant’s parcel, and a right-of-way easement over one of the plaintiffs’ parcels.

The plaintiffs operate a marina on several waterfront properties, including a tract owned by Connecticut Light and Power (CL&P), for which they have a license to the upland rights. The defendant owns an eighteen by twenty foot riverfront plot, that abuts the plaintiffs’ marina on the north and west, and the licensed CL&P property on the south, and is accessed by way of a twenty foot wide right-of-way easement over the plaintiff’s property to the west.

The root of the conflict is the reconstruction of the defendant’s dock. The rickety 155 foot wharf used by the defendant and his predecessor in title, Charles Parnum, as well as their families and friends, was converted to a more substantial dock that was 215 feet long and had twenty-two slips. These slips were leased to paying customers. This reconstruction included the placement of outhaul pilings thirty-two feet from the center line of the dock that the court found to violate the permits required by the department of environmental protection and the United States Army Corps of Engineers. It was these pilings and the commercial vehicular traffic over the defendant’s easement that prompted the plaintiffs to institute this action.

The plaintiffs sought a judgment declaring that the defendant’s dock system exceeded his littoral area and rights, and that the defendant had overburdened the right-of-way over the plaintiffs’ land. The plaintiffs also sought compensatory damages, injunctive relief against the obstruction of and the interference with their littoral rights, the overburdening of the easement, as well as any other appropriate legal or equitable relief.

The defendant pleaded several special defenses and a counterclaim. These included allegations of the defendant’s adverse possession of the littoral areas to the north and south of his dock, a prescriptive right to an enlarged use of the easement, and a right to the use of his easement for the commercial traffic under the grant. He also alleged laches and unclean hands on the part of the plaintiffs in the construction of their dock.

The court found the defendant’s defenses and counterclaim to be without merit, and granted the relief requested by the plaintiffs. The defendant challenges the trial court’s decision (1) denying his claim to a right through adverse possession to the littoral area to the north of his dock system, (2) enjoining him to remove the outhaul pilings south of his dock, and (3) finding that he had neither an express nor prescriptive right to use his easement for the vehicular traffic associated with his marina.

The defendant challenges the trial court’s denial of his special defense and counterclaim of adverse possession regarding the twenty-two foot encroachment of his outhaul pilings into the plaintiffs’ littoral area. Adverse possession must be proven by the claimant; Roche v. Fairfield, 186 Conn. 490, 498, 442 A.2d 911 (1982); Loewenberg v. Wallace, 147 Conn. 689, 699,166 A.2d 150 (1960); by clear and convincing evidence. Robinson v. Myers, 156 Conn. 510, 517, 244 A.2d 385 (1968); see also Huntington v. Whaley, 29 Conn. 391, 398 (1860). The elements that must be established “ ‘are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner.’ ” County Federal Savings & Loan Assn. v. Eastern Associates, 3 Conn. App. 582, 586, 491 A.2d 401 (1985); General Statutes § 52-575. The question of adverse possession is a question for the trier of fact. Roche v. Fair-field, supra.

The trial court found that the defendant did not establish adverse possession of the plaintiffs’ littoral area or rights. The trier of fact is best able to judge credibility of witnesses and draw necessary inferences therefrom. Kukanskis v. Jasut, 169 Conn. 29, 32-33, 362 A.2d 898 (1975); State v. Navikaukas, 12 Conn. App. 679, 683, 533 A.2d 1214 (1987), cert. denied, 207 Conn. 804, 540 A.2d 74 (1988). This court will not retry the facts found by the trial court when they are amply supported by the evidence and are not clearly erroneous. Halepas v. Malerba, 3 Conn. App. 403, 404, 488 A.2d 847 (1985).

The defendant challenges the trial court’s order to remove the pilings to the south of his dock on two grounds, neither of which is meritorious. First, the defendant argues that the plaintiffs have no standing to complain of the outhaul pilings south of his dock because the upland property belongs to CL&P and the littoral rights are licensed to the defendant. Second, the defendant argues that the plaintiffs’ claim was insufficiently pleaded.

The doctrine of standing affords a party the right to request an adjudication of issues that affect him and his rights in particular. Kaplan v. Ellis, 1 Conn. App. 368, 370, 472 A.2d 28 (1984). Unless a plaintiff can establish aggrievement, he will have no standing. See Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 509, 242 A.2d 705 (1968). The concept of standing as presented here by the question of aggrievement is a practical and functional one, designed to limit jurisdiction to those with a genuine and legitimate interest in the outcome. See Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 484, 338 A.2d 497 (1973). First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision as distinguished from the general interest of the community as a whole. Second, the party claiming aggrievement must establish that this specific personal and legal interest has been specifically and injuriously affected. Beckish v. Manafort, 175 Conn. 415, 420, 399 A.2d 1247 (1978); see also Lewin v. United States Surgical Corporation, 21 Conn. App. 629, 575 A.2d 262 (1990).

The injury alleged by the plaintiffs is the interference with their right of access to and navigation in their own littoral area. It is well settled that this right to access is distinct from any general right of the public, and the fundamental riparian right upon which all others depend. McGibney v. Waucoma Yacht Club, Inc., 149 Conn. 560, 563,182 A.2d 622 (1962); Rochester v. Barney, 117 Conn. 462, 468,169 A. 45 (1933); see also East Haven v. Hemingway, 7 Conn. 186, 202 (1828). This gives the plaintiffs standing to enforce their right to access to their littoral area, and to seek an injunction to enforce this right, despite the fact that the offending obstacles were located in CL&P’s littoral area.

The defendant’s second claim challenges the adequacy of the plaintiffs’ pleading. The sufficiency of the notice provided by a complaint is determined in each case with reference to the character of the wrong complained of and the underlying purpose of the rule, which is to prevent surprise upon the defendant. Waterbury Petroleum Products, Inc. v. Caanan Oil & Fuel Co., 193 Conn. 208, 223 n.16, 477 A.2d 988 (1984); Smith & Egge Mfg. Co. v. Webster, 87 Conn. 74, 83-84, 86 A. 763 (1913). The plaintiffs asked for a determination of their littoral rights, sought an injunction preventing encroachment upon these rights, and sought any additional legal or equitable relief that the court deemed appropriate. These requests for relief, and the allegation of the interference of the defendant’s “dock system,” provided the defendant with adequate notice to defend against these claims. Because the trial court had a sound basis for ordering the removal of the pilings from the south side of the defendant’s dock arising from the plaintiffs’ right to access their littoral area, it is unnecessary to reach the issues raised by the defendant concerning the effects of his violation of his permits from the department of environmental protection and the United States Army Corps of Engineers. Therefore, the defendant’s challenge of the order to remove the pilings south of his dock is without merit.

Regarding the defendant’s use of the right-of-way easement over the plaintiffs’ property, the trial court found that the defendant had no right to vehicular usage, either by grant or by prescriptive right. In determining the character and extent of an easement created by deed, the ordinary import of the language will be accepted as indicative of the intention of the parties, unless there is something in the situation of the property or the surrounding circumstances that calls for a different interpretation. Mackin v. Mackin, 186 Conn. 185, 189, 439 A.2d 1086 (1982); American Brass Co. v. Serra, 104 Conn. 139, 142, 132 A. 565 (1926). The trial court found that the conditions at the time of the grant limited the grant to the nonvehicular use of the easement by the residents of the house located on the larger of the two parcels now held by the defendant. The trial court’s findings as to the facts and surrounding circumstances present at the making of this grant are supported by evidence, and are not clearly erroneous. Cf. American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 574 A.2d 796 (1990). We will not disturb the trial court’s determination that the grant that created this right-of-way easement did not include a grant of vehicular use. Halepas v. Malerba, supra.

The acquisition of the right to use an easement for vehicular traffic is essentially a question of fact. Cf. Sachs v. Toquet, 121 Conn. 60, 66, 183 A. 22 (1936). To establish a prescriptive right to a vehicular use, the claimant must show that the use was exercised under a claim of right. Id. The court found that the defendant did not hold under a claim of right because he recognized the limitation of his easement to nonvehicular traffic. This was evidenced by his purchase of a golf cart to keep his customers from driving their cars on the easement. The trial court found as a matter of fact that the defendant had not satisfied the requirements necessary to acquire a prescriptive use.

Because this issue and the remaining issue raised by the defendant as to his counterclaim and defenses turn primarily on issues of fact, and the defendant has not carried the burden of showing the trial court’s findings to be clearly erroneous, his challenges to the limitation of his use of his easement and the trial court’s other findings challenged in this appeal, must likewise fail. See Halepas v. Malerba, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Oak Leaf Marina, Inc., Scott Masse and Sherry Masse. The Masses are the shareholders of Oak Leaf Marina, Inc. Because they all represent essentially one corporate entity, for the purpose of this appeal they are treated together.

       The defendant also challenges the trial court’s failure to order the plaintiffs to remove their docks, pilings and travel lift. This is wholly grounded in fact and the defendant failed to show that the trial court was clearly erroneous in its factual findings.


text:
    Sandra Carlson Bucy v. Paul C. Bucy
    (8480)
    Dupont, C. J., Spallone and Nokcott, Js.
    Argued June 6
    decision released September 4, 1990

      Paul C. Bucy, pro se, the appellant (defendant).

      Sandra Carlson, pro se, the appellee (plaintiff).

      Alfred J. Garofolo filed a brief for The Connecticut Psychological Association, Inc., as amicus curiae.

      Clifford D. Stromberg, Jeffrey G. Schneider, Richard F. Orr, and Susan A. Quinn filed a brief for The American Psychological Association as amicus curiae.
   Norcott, J.

This appeal arises from the trial court’s partial grant of the plaintiff’s postjudgment motion for contempt and for the reimbursement of expenses. The defendant appeals from the trial court’s order that he must pay for psychological services rendered to his daughter, claiming that the trial court’s postjudgment ruling incorrectly interpreted the dissolution decree as creating that obligation. He further claims that the trial court should not have ordered him to pay attorney’s fees to the plaintiff.

The parties’ marriage was dissolved in September, 1978. The dissolution decree contained a provision obligating the defendant to pay “all medical, dental, and orthodontia expenses for the children not covered by insurance and in excess of $100.00 per child per year

From the evidence presented at the hearing on this motion, the trial court found the following facts. In October, 1985, the plaintiff took the parties’ minor daughter to Kathleen Keman, a licensed psychologist, because the child was losing weight, looked thin, was emotionally fragile, was easily confused and upset and appeared to be in a state of minor depression. Kernan diagnosed her as being bulimic and, at times, anorexic. She also diagnosed her as having an “adjustment disorder with mixed emotional features.” Both bulimia and anorexia can seriously harm bodily functions and, if not properly treated, can be fatal. Kernan specializes in the treatment of bulimia and anorexia.

Part of the recommended treatment of an adolescent who is suffering from bulimia and anorexia is to work with the parents. In December, 1985, Kernan spoke with the defendant about his daughter’s problems. Kernan had the impression that the defendant was anxious to help, although he never attended any sessions. During the course of treatment, Kernan held thirty-three individual sessions with the plaintiff, the main purpose of which was to work on stress management in the home, to provide a proper environment for the child and to monitor her progress. Kernan also held sixty-three joint sessions with the plaintiff and her daughter. She also sent bills for nine telephone sessions with the child and for sixteen canceled sessions, two with the plaintiff and fourteen with the child. Kernan also charged $120 for a phone session with the defendant. Kernan sent bills to the plaintiff and, at times, to both the plaintiff and the defendant.

■ By a note dated April 30,1986, the plaintiff informed the defendant of Kernan’s total charges of $14,295 and requested reimbursement. The defendant has refused to pay for any of the charges, claiming that the services rendered by Kernan were not medical éxpenses, and that he, therefore, has no obligation to pay them.

The trial court, concluded that the expenses incurred for the treatment of the child by Kernan are, in fact, medical expenses within the meaning of the dissolution decree. The court then held the defendant liable for all psychotherapeutic treatment directly and properly related to the child. It held, however, that the defendant was not responsible for payment for the canceled sessions because those charges were not directly and properly related to his daughter’s treatment, but, rather, were more in the nature of a penalty. The court also refused to hold the defendant in contempt, finding that his failure to pay arose from a legitimate dispute over the interpretation of the decree and was not, therefore, wilful.

I

We must first address the defendant’s claim that the services rendered by Kernan, a nonmedical doctor, to his daughter are not medical expenses within the meaning of the dissolution decree. We note that there are no Connecticut Appellate or Supreme Court cases on this issue. We agree with the trial court’s conclusion that the expenses in question are “medical expenses” within the meaning of the dissolution decree.

A

We accept the general principle applied by the trial court that, in order to determine whether certain expenses are medical in nature, the court must decide whether the services rendered are a necessary part of the overall treatment of the child. That conclusion comports with the established concept that the practice of medicine is an expansive one. Medicine is “[t]he science of diagnosing, treating, or preventing disease or other damage to the body or mind.” American Heritage Dietionary (New College Ed. 1981). In this regard, we cannot accept the defendant’s narrow construction of the term “medical expenses.”

Other jurisdictions have followed the reasoning that we employ here. See, e.g., Kahn v. Kahn, 23 Ariz. App. 269, 532 P.2d 541 (1975) (expenses for services rendered by clinical psychologist and psychiatric social worker were held to be medical expenses even though neither was a medical doctor); Jones v. Jones, 116 Cal. App. 2d 604, 254 P.2d 67 (1953) (bills for eyeglasses held to be medical expenses); Sulman v. Sulman, 510 So. 2d 908 (Fla. App. 1987) (bills for psychological counseling held to be medical' expenses); Davis v. Davis, 8 Mich. App. 104,153 N.W.2d 879 (1967) (bills from clinical psychologist held to be medical expenses). The common thread that runs through these cases is the preliminary determination of whether “ ‘the expenditure was made in connection with the diagnosis, cure, mitigation or prevention of disease or for the purpose of affecting any structure or function of the body or mind.’ ” The term “medical expense,” as used in dissolution decrees, must be interpreted broadly because such decrees generally provide for the maintenance of the former wife and children. Jones v. Jones, supra, 609. “[C]oncern for a child’s mental health is equally as important as the necessities of food, shelter, physical health, and clothing. The proper care and maintenance of the [children] of the parties include tending to [their] emotional and psychological problems as well as to [their] physical problems.” Davis v. Davis, supra, 108.

The trial court here found, from the record before it, that psychotherapy is an appropriate and effective method of treating bulimia and anorexia, both of which can be fatal. There was no evidence presented that there is a better method, or, for that matter, another valid method for the treatment of these disorders. In light of this evidence, the trial court correctly found that the psychotherapy provided by Kernan was, indeed, a medical expense covered by the dissolution decree. The treatment rendered here was a “necessary part of the overall treatment of the child” and “ ‘was made in connection with the diagnosis, cure, mitigation or prevention of disease.’ ” Further, there was no evidence that Kernan was not competent to perform these services. See Kahn v. Kahn, supra, 273. On the contrary, she was a specialist in this area of treatment.

It is clear from the terms of the decree, which provide for partial payment of all “medical, dental, and orthodontia expenses,” that the parties intended the defendant to be financially responsible for any health problems that might arise concerning his children. See Kahn v. Kahn, supra. The record in this case supports the finding that the effects of bulimia and anorexia may be no less disabling than a physical injury or illness. Cf. Jones v. Jones, supra, 609 (court, holding a bill for eyeglasses to be a medical expense under the dissolution decree, stated “[djefective vision may be no less disabling than a physical injury or illness”).

We conclude, therefore, that the trial court correctly found that the expenses incurred were medical within the meaning of the dissolution decree even though Kernan was not a medical doctor.

B

The defendant claims that even if the trial court correctly found these expenses to be medical, it should have considered two other provisions in the parties’ separation agreement and found that he was not obligated to pay. In essence, these paragraphs provide that the parties would confer on all important matters relating to the children and that, if either party knew of any circumstances affecting the health or welfare of the children, that party would promptly notify the other.

The defendant acknowledges that compliance with these provisions is not a condition precedent to his obligation to pay medical expenses and also that these provisions were not incorporated into the dissolution decree. He argues, rather, that the plaintiffs failure to notify him promptly of their daughter’s problems and her failure to discuss the matter with him indicates that the plaintiff did not consider the problem to be a matter of importance pertaining to the child’s health or welfare.

This claim requires little discussion. The trial court found that the psychotherapeutic services rendered by Kernan were a necessary part of the daughter’s treatment for possibly fatal disorders. The court further found that the defendant received notice of the treatment within two months after it had commenced and was invited to participate in treatment. The defendant cannot defeat his obligation to pay merely because the plaintiff may not have immediately understood the severity of her child’s condition and did not notify him immediately after her first appointment with Kernan.

C

The defendant next claims that Kernan’s assertion of the psychologist-patient privilege pursuant to General Statutes § 52-146c should preclude recovery by the plaintiff. He claims that his right to cross-examine was greatly curtailed and that, because of the assertion of this privilege, it was impossible to determine whether Kernan’s sessions with the plaintiff alone were related to the daughter or rather to the plaintiff’s own problems.

This court will not disturb the action of the trial court unless it has abused its legal discretion. Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103,108, 476 A.2d 1074 (1984). “ ‘In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.’ ” Id.

Here, the trial court reasonably concluded from the testimony presented that all thirty-three sessions for which the plaintiff sought reimbursement were properly related to treatment of the child. When Kernan felt that she was dealing with only the plaintiff’s problems, she billed those sessions to the plaintiff separately and did not bill them as part of the child’s treatment. The court further noted that Kernan was capable of “separating out those sessions [that] were not directly or properly related to [the daughter].”

The trial court obviously found Kernan to be a credible witness. Assessing the credibility of witnesses and determining the weight to be accorded to their testimony is the function of the trial court. Ottaviani v. Pechi, 16 Conn. App. 705, 708-709, 548 A.2d 1354 (1988); Jazlowiecki v. Cyr, 4 Conn. App. 76, 77, 492 A.2d 516 (1985). This court will not retry the facts of the case. Ernst Steel Corporation v. Reliance Ins. Co., 13 Conn. App. 253, 258, 536 A.2d 969 (1988). The trial court’s findings here are supported by the record and are not, therefore, clearly erroneous. Practice Book § 4061; Greene v. Greene, 13 Conn. App. 512, 515, 537 A.2d 537, cert. denied, 207 Conn. 809, 541 A.2d 1238 (1988).

II

The defendant’s final claim is that the trial court should not have awarded the plaintiff counsel fees to defend this appeal because he did not have the ability to pay them. Again, we disagree with the defendant.

The plaintiff filed a motion for counsel fees to defend against the defendant’s appeal, requesting a sum of $10,000. The trial court awarded the plaintiff $3500 in counsel fees, noting that it had considered the provisions of General Statutes §§ 46b-62 and 46b-82. The court cited Greene v. Greene, supra, 516-17, as authority for this award.

In Greene, we held that “[t]he trial court may, pursuant to General Statutes § 46b-62, award counsel fees to a party in a dissolution action in accordance with [the parties’] respective financial abilities and the criteria set forth in § 46b.-82. . . . ‘[T]he question the court must address is whether the defendant had ample liquid funds to pay counsel fees.’ ” Id., 516.

We went on to hold that “ ‘[t]he allowance and amount of counsel fees is left to the exercise of judicial discretion, and the availability of funds with which to pay the attorney’s fees of the spouse claiming the allowance is not an absolute standard for denying the award. . . .’ Lev v. Lev, 10 Conn. App. 570, 574, 524 A.2d 674 (1987). Further, a posttrial award of attorney’s fees to defend an appeal is allowable.” Id.

Against these standards we find no abuse of discretion here. Accordingly, we affirm the judgment of the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       The daughter attained the age of majority in May, 1987. The plaintiff made no claim for expenses incurred for treatment rendered after the daughter reached majority, and, hence, those expenses are not the subject of this dispute.

       Bulimia is a cycle of food binging and purging. Anorexia involves the fear of becoming fat and the avoidance of food.

       It was Kernan’s policy to charge for a missed session unless she was able to schedule someone else in that time. The total charge for the missed appointments was $1845.

       We note with approval the trial court’s ruling that the defendant was not in contempt. The trial court fairly found that the defendant’s challenge was made in good faith and his behavior was not a wilful disobedience of a court order. See Sulrnan v. Sulman, 510 So. 2d 908 (Fla. App. 1987).

       Paragraph 3.5 of the separation agreement provides: “The parties shall confer with each other on all major matters of importance pertaining to the children’s health, welfare, education and upbringing.”
      Paragraph 3.7 of the same agreement provides in pertinent part: “[I]f either [party] has knowledge of any illness or accident or other circumstances seriously affecting the health or welfare of the children, that party shall promptly notify the other party.”


author: La very, J.

text:
    Bio-Polymers, Inc. v. Joseph D'Arrigo
    (8360)
    Dupont, C. J., La very and Landau, Js.
    Argued June 5
    decision released September 4, 1990

      Neil Johnson, for the appellant-appellee (defendant).

      Jeffrey J. Mirman, with whom, on the brief, was Maura L. Hughes, for the appellee-appellant (plaintiff).
   La very, J.

This is an appeal from a judgment of the trial court confirming in part and vacating in part an arbitration award arising out of a dispute over an employment contract. The dispositive issue is whether the arbitrators exceeded their authority under General Statutes § 52-418 (a) (4). The trial court concluded that they did. We disagree.

The trial court noted the following background facts in its memorandum of decision. On June 6, 1985, the . defendant, Joseph D’Arrigo, received a letter from the plaintiff, Bio-Polymers, Inc., containing an offer of employment. The letter provided that Bio-Polymers would make available to D’Arrigo 4000 shares of Bio-Polymers common stock as a “hiring bonus.” On June 25, the parties entered into a written one year employment agreement. That agreement did not include any reference to the 4000 shares of stock. The June 25 agreement contained a general arbitration clause, which provided: “In the event of any dispute under this agreement, it shall be resolved through binding arbitration in accordance with the rules of the American Arbitration Association . . . .’’In addition, the June 25 agreement contained a clause that read: “This constitutes the entire agreement between the parties. Any modification must be in writing.”

D’Arrigo began his employment at Bio-Polymers on July 1, 1985. On January 2, 1986, he was discharged for allegedly poor performance. He brought suit, alleging that Bio-Polymers had breached the employment contract. Upon motion by Bio-Polymers, the court ordered the parties to proceed to arbitration pursuant to the arbitration clause in the employment agreement. Because they were unable to agree on a submission, each party presented its own submission to the panel of three arbitrators, which convened on several dates in May, June and July, 1988.

The arbitration panel made the following conclusions in its award: (1) the June 6 letter offering employment and the June 25 employment agreement constituted the basis of D’Arrigo’s employment; (2) Bio-Polymers’ termination of D’Arrigo on January 2, 1986, was improper; (3) as a result of the improper termination D’Arrigo was entitled to receive his salary for the remaining contract period, all employee benefits to which he would otherwise have been entitled, and 4000 shares of Bio-Polymers nonvoting stock, or the cash equivalent, as a “hiring bonus” promised in the offer letter; (4) the parties were to share equally all administrative fees and expenses, as well as all arbitrators’ compensation and expenses. Any fees caused by postponements were to be borne by the party requesting the postponement.

Bio-Polymers applied to vacate the award and D’Arrigo moved to confirm the award as to the issues of liability and damages and to vacate the award as to administrative fees and expenses. The trial court vacated that portion of the award granting D’Arrigo the 4000 shares of stock and confirmed the remainder of the award. D’Arrigo appealed and Bio-Polymers cross appealed.

The dispositive issue here is whether the trial court correctly found that the arbitrators exceeded their authority under General Statutes § 52-418 (a) (4). The court based this finding on the fact that the arbitrators, in determining the conditions of D’Arrigo’s employment, looked to the provisions of both the June 6 offering letter and the June 25 employment agreement despite the integration clause in the June 25 employment agreement. Because that agreement was by its terms self-limiting, the trial court concluded, the arbitrators had authority to render a decision based only on the terms stated in that agreement. The court further determined that the only question properly before the arbitrators was whether the employment contract was breached by Bio-Polymers.

We disagree with the portion of the trial court’s decision that limited the scope of the arbitration to the four corners of the June 25 contract. The arbitration proceeding in this case was a creature of contract; see Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 583-84, 440 A.2d 774 (1981); and the scope of the arbitration issues was set by the parties in the contract, not after the fact by the trial court. Id. The parties, having provided in the June 25 agreement that “any dispute . . . shall be resolved through binding arbitration,” proceeded to dispute the scope of the arbitration. The broad language of the June 25 agreement, however, placed before the arbitrators all contractual disputes, including the initial dispute as to the proper scope of the submission. See College Plaza, Inc. v. Harlaco, Inc., 152 Conn. 707, 708, 206 A.2d 832 (1965). Because the arbitrators were authorized to resolve this initial dispute, their decision is beyond judicial review. O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133,154-55, 523 A.2d 1271 (1987); see also A. Sangivanni & Sons v. F. M. Floryan & Co., 158 Conn. 467,473,262 A.2d 159 (1969).

The arbitrators determined that the proper scope of the arbitration concerned the entire issue of the termination of D’Arrigo’s employment. The arbitrators then determined that both the June 6 offer letter and the June 25 employment agreement “constitute^] the basis of employment. The offer letter reinforce[d] the employment contract.” This was a decision on a legal question. It is of no moment whether the trial court agreed with the arbitrators’ .legal conclusions; the only issue before the trial court was whether the decision was one the arbitrators were authorized to make. Bic Pen Corporation v. Local No. 134, supra. The arbitration clause in the contract squarely placed this issue before the arbitrators.

The judgment is reversed and the case is remanded with direction to render a judgment in favor of the defendant on his motion to confirm the arbitration award; the judgment is affirmed as to the issues on the cross appeal.

In this opinion the other judges concurred.

       General Statutes § 52-418 (a) provides in pertinent part: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       During oral argument, Bio-Polymers challenged the timeliness of D’Arrigo’s appeal from the order vacating the award in part. The proper time to challenge the timeliness of an appeal, however, is within the first ten days after the appeal is filed. Otherwise, such objections are deemed to be waived. Practice Book § 4056.

       General Statutes § 52-418 (a) prescribes a very narrow scope of judicial review on appeal from an arbitration award. The trial court, basically, is limited to determining whether the award is procedurally sound. See footnote 1, supra.

       The arbitrators cited the broad arbitration clause in the contract as the scope of their authority, and went on to say, “[tjhis matter centers around the discharge of the Petitioner by the Respondent, the Respondent’s position being that the petitioner breached their employment agreement.”


author: Dupont, C. J.

text:
    James A. Damon v. Carole Cox Damon
    (8635)
    Dupont, C. J., Spallone and Norcott, Js.

      Argued June 6
    decision released September 4, 1990

      Gary I. Cohen, with whom was Sarah D. Eldrieh, for the appellant (plaintiff).

      James Wu, with whom was Amy B. Levy, for the appellee (defendant).
   Dupont, C. J.

In this dissolution action, the plaintiff claims that the judgment is flawed because the trial court (1) abused its discretion by considering only fault in the property distribution and by ordering the plaintiff to pay the counsel fees of the defendant wife, (2) assumed facts not in evidence, (3) allegedly delegated its responsibility to distribute personal property, and (4) provided for an automatic future modification of its judgment.

The court, in its memorandum of decision, stated that it had considered all of the factors enumerated in General Statutes §§ 46b-81 (c) and 46b-82 in making its award. It then made “special mention” of the cause of the dissolution, namely, the plaintiffs extramarital affairs, of which the defendant had been unaware until shortly before the separation of the parties. The transcript and the memorandum of decision very clearly indicate that the court considered all of the statutory factors, and that there was no abuse of discretion in the judgment, as to either the distribution of assets or the payment of the defendant’s counsel fees.

The parties married when they were teenagers and had been married for more than thirty-four years at the time of the dissolution. They had seven children in a period of nine years. At the time of trial, the plaintiff was fifty-three years of age, and the defendant was fifty-two. The plaintiff has a college education, and the defendant has a high school education. The plaintiff’s salary was twice that of the defendant. The primary asset of the parties was their home, which was acquired by using the proceeds from the sales of previous homes. Their first home had been purchased with a down payment supplied by the defendant’s mother. The equity in those prior homes, at the time of their sales, and the fair market value of and equity in the present marital home were largely due to appreciation in real estate values.

The court awarded the contents of the home and the home, subject to the existing mortgage, to the defendant. The other orders basically track the ownership of each particular asset or the source of the liability. The defendant was also awarded $200 per week as periodic alimony until her death or remarriage, and $7500 as counsel fees. Although the assets awarded to the defendant equaled more than 85 percent of the total marital assets, that is not a per se abuse of discretion. Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983). This order and the other orders were consonant with the court’s vast discretion.

The plaintiff argues that the order to transfer title of the family home to the defendant was premised on evidence not before the court. Specifically, he claims that the court orally articulated its reasons for the order by stating it did not want to force a sale in a depressed market, and that such a statement was not grounded on any evidence. The transcript reveals, however, that the court’s decision was primarily influenced by the tax consequences of the award and not by the condition of the real estate market. A court may consider the tax consequences of its orders in dissolution actions. Powers v. Powers, 186 Conn. 8, 10, 438 A.2d 846 (1982).

The plaintiff complains that the judgment, providing that the contents of the home “shall become the sole property of the defendant unless within one month of the date of the Judgment the parties agree on a division of said contents between themselves,” is an improper delegation of the court’s power to make the distribution. The essential meaning of these words is that the defendant would be the owner of the personalty unless she chose to give the plaintiff some of it. The court did not, therefore, delegate its authority to distribute assets.

The last claim of the plaintiff is that the court made impermissible future orders concerning medical insurance. The court ordered the defendant to pay for medical insurance for the plaintiff until he enrolled in his employer’s plan. It further ordered that “if, at any time during the period when the periodic alimony is payable, the defendant’s employer shall no longer provide her with medical coverage, whether because of termination of employment or otherwise, the plaintiff shall provide a comparable coverage for the defendant, provided such coverage is available as an incident of his employment or former employment.” An order to provide medical coverage for the duration of the time that periodic alimony is due is no more a future order than the order of the periodic alimony itself; see Costa v. Costa, 11 Conn. App. 74, 77, 526 A.2d 4 (1987); and is as modifiable as the award of the periodic alimony.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    Michael Weatherly v. Town Plan and Zoning Commission of the Town of Fairfield et al.
    (8466)
    (8470)
    Spallone, Daly and Foti, Js.
    Argued February 28
    decision released July 26, 1990

      Donal C. Collimore, assistant town attorney, with whom were Roy H. Ervin, town attorney, and, on the brief, Roy H. Ervin, Jr., and Peter J. Strassberger, for the appellants (named defendant et al.).

      John F. Fallon, with whom, on the brief, was Ronald J. Pacacha, for the appellee (plaintiff).
   Foti, J.

This is an appeal from the judgment of the trial court sustaining the plaintiff’s appeal from the denial of his application to the defendant town plan and zoning commission of the town of Fairfield (commission) for approval of a two lot subdivision and special permit. Upon our grant of certification, the defendants appealed to this court claiming that the trial court improperly held (1) that General Statutes § 8-25 does not authorize planning commissions to adopt subdivision regulations governing existing streets, (2) that the first reason given by the commission in denying the application was vague, (3) that the subdivision regulation considered in Reed v. Planning & Zoning Commission, 12 Conn. App. 153, 529 A.2d 1338 (1987), aff’d, 208 Conn. 431, 544 A.2d 1213 (1988), was substantially different from § 2.1.10 of the Fairfield subdivision regulations, and (4) that neither the zoning nor the subdivision regulations of the town of Fairfield permit the denial of a subdivision application on the basis of an adverse impact upon public views and vistas. We agree with the defendants and reverse the judgment of the trial court.

The plaintiff is the owner of a parcel of land at 1036 Harbor Road, Fairfield, located in an R-3 residential zone. Under that town’s zoning regulations, an R-3 zone requires, a 20,000 square foot minimum area for a residential lot. Harbor Road separates the property from the Mill River and Southport Harbor into which that river drains.

The plaintiff submitted a subdivision application proposing to divide his land into two parcels. The first proposed parcel, lot 1A, is 37,000 square feet, has access to Willow Street to the southwest and has a residence on it. The second parcel, lot IB, is proposed to have 22,300 square feet and access to Harbor Road. The plaintiff planned to build a single-family residence on lot IB. When he applied for this proposed subdivision, the plaintiff also filed a related application for a special permit to excavate and fill in a regulated area pursuant to § 24 of that town’s zoning regulations.

After holding a public hearing on the subdivision application, the commission denied the plaintiff’s application on the following grounds:

“1. The proposed resubdivision would be inconsistent with Sect. 2.1.10 of the Subdivision Regulations of the Town of Fairfield entitled ‘Existing Streets’. The proposed resubdivision is abutting an existing Town street which is not fifty feet in width.
“2. The proposed resubdivision is inconsistent with the requirements for turnarounds as per Sect. 2.1.7 for a dead end street.
“3. Upon evaluation of the public views and vistas, it is determined by the Commission that the construction of the house as per the resubdivision will create an adverse impact.”

The plaintiff appealed to the Superior Court from the denial of his application for approval of the two lot subdivision and his application for a special permit. That court sustained his appeal, holding that each of the commission’s stated reasons for denying the application was invalid. The defendants were granted certification to this court and this appeal ensued.

The defendants claim that the court improperly determined that the first reason given by the commission for denying the plaintiff’s application was improper. We agree. Because our conclusion supports one of the commission’s reasons for denial, there is no need for us to reach the merits of the defendants’ additional claims.

The commission stated that the proposed subdivision would be inconsistent with § 2.1.10 of the town’s subdivision regulations because it abuts an existing town street that is less than fifty feet wide. The court held that because General Statutes § 8-25 permits a planning and zoning commission to develop regulations for proposed streets only, it was beyond the realm of the commission’s statutory power to adopt § 2.1.10 to regulate existing streets. The court further stated that the commission’s first reason for denial was “vague, uncertain in meaning and provided no information to the plaintiff to enable [him] to know wherein the plan submitted failed to satisfy the requirements of the regulations” and consequently deprived the plaintiff of property without due process of law. The court found § 2.1.10 distinguishable from the subdivision regulation of the town of Chester that was considered by both this court and the Supreme Court in Reed v. Planning & Zoning Commission, supra.

When a planning commission grants or denies a subdivision application it is acting in an administrative capacity and it must approve the plan if it complies with the applicable regulations. Reed v. Planning & Zoning Commission, supra, 208 Conn. 433; Westport v. Norwalk, 167 Conn. 151,155, 355 A.2d 25 (1974); Gagnon v. Municipal Planning Commission, 10 Conn. App. 54, 57, 521 A.2d 589 (1987). “[T]he trial court, in reviewing the action of a planning commission regarding a resubdivision application, may not substitute its judgment on the facts for that of the planning commission. Oakwood Development Corporation v. Zoning Board of Appeals, 20 Conn. App. 458, 460, 567 A.2d 1260 (1990). The conclusions of the commission must stand if even one of the stated reasons is reasonably supported by the record.” R. B. Kent & Son, Inc. v. Planning Commission, 21 Conn. App. 370, 373, 573 A.2d 760 (1990).

The commission’s function in reviewing a subdivision application is neither legislative nor judicial. Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 674, 236 A.2d 917 (1967). “Because a commission is not a court of law, its authority is stringently limited. It can only apply its regulations to the proposals which appear before it. It cannot make law.” Gagnon v. Municipal Planning Commission, supra.

The decision of the commission denying the plaintiff’s application was administrative. Therefore, if that application did not conform to the requirements of the subdivision regulations, then the trial court’s judgment sustaining the plaintiff’s appeal must be reversed. Reed v. Planning & Zoning Commission, supra, 208 Conn. 431.

General Statutes § 8-25 requires commissions to adopt subdivision regulations and grants them the power to govern the subdivision of land. The court determined that “[tjhis statute only permitted regulations relating to 'proposed’ streets that are to be developed as part of the subdivision. The statute does not authorize regulations to make provision for existing roads, or to permit the commission to require a subdivision on an existing road to make provision for the property owner to provide for the widening of an existing town highway.” This is contrary to the opinions of both the Supreme and Appellate Courts in Reed.

In Reed v. Planning & Zoning Commission, supra, 12 Conn. App. 153, we recognized the validity of the town of Chester’s subdivision regulation § 3.3.6 under General Statutes § 8-25. In that matter the plaintiff applied for a subdivision for a parcel of land that abutted a partially unpaved public road. The application was denied because the road was deemed inadequate for access to the proposed lots. The trial court’s findings sustaining the plaintiff’s appeal were affirmed. We determined that § 3.3.6 of Chester’s subdivision regulations directly addressed the situation by requiring the applicant to deed sufficient land to the town to enable it to widen the road to the appropriate width. “Thus, while it might have been possible, consistent with the power granted to municipalities under General Statutes § 8-25, for the town of Chester to adopt more stringent subdivision regulations that would require an applicant to ensure that existing streets provide adequate access to and from the subdivision, the present subdivision regulations do not require such action.” Reed v. Planning & Zoning Commission, supra, 12 Conn. App. 157-58.

While it is true that the subdivision regulations of' the town of Fairfield do not contain a provision requiring the abutting landowner to deed sufficient land to the town to enable widening of the road, as do the regulations of the town of Chester, our holding in Reed is sufficient to show that General Statutes § 8-25 authorizes commissions to adopt subdivision regulations that can require an applicant to provide for widening an existing street abutting the proposed subdivision. It follows then that under § 8-25 the commission had the authority to adopt § 2.1.10' of the town’s subdivision regulations and require that subdivision applicants provide for the proper widening of abutting streets to fifty feet or the width required in accord with the classification given to the road.

In an attempt to distinguish the Reed decisions from the present case, the trial court points to the fact that the applicant in Reed did not question the validity of the regulation as it pertained to existing streets. This distinction is inconsequential. One who seeks to avail-himself of the benefits of a zoning regulation is precluded from raising the question of that regulation’s constitutionality; Bierman v. Planning & Zoning Commission, 185 Conn. 135, 139, 440 A.2d 882 (1981); or of that regulation’s validity; Cristofaro v. Planning & Zoning Commission,, 11 Conn. App. 260, 263, 527 A.2d 255, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987); in the same proceeding. “One who chooses to engage in subdividing land by that decision chooses also to be subject to the reasonable regulation of the local planning commission.” Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 661, 427 A.2d 1346 (1980).

We conclude that the commission had the authority to adopt § 2.1.10 to regulate the width of both proposed and existing streets that abut proposed subdivisions. We further conclude that the plaintiffs failure to designate a portion of his proposed subdivision for the widening of Harbor Road was sufficient ground for the commission to find that he did not meet the requirements of § 2.1.10. Because the conclusions of the commission are supported by this stated reason, its decision must stand.

The plaintiff’s remaining argument is that § 2.1.10 is vague and that its application constitutes a taking without due process of law or just compensation because it places an unfair obligation on the applicant to undertake and pay for improvements to a town road. We do not agree.

Because the imposition of subdivision controls benefits the health, safety, morals and general welfare of the community, it is an exercise of the town’s police power; Raybestos-Manhattan, Inc. v. Planning & Zoning Commission, 186 Conn. 466, 471, 442 A.2d 65 (1982); and as such does not require the exercise of the power of eminent domain. Id. Where reasonable and impartial, a commission’s power to regulate the use of land does not constitute a taking without due process of law. or just compensation. Id.

The requirements of § 2.1.10 are clear and unequivocal as to existing streets. As applied by the commission, § 2.1.10 is reasonable and impartial in that it neither obligates an applicant to pay for the required road widening nor requires any off-site improvements. The applicant may satisfy this section of the regulations by dedicating a portion of his property to the town so it may widen the road to its own specifications. The application in question here did not fail to meet the requirements of § 2.1.10 because the plaintiff neglected to improve the road. Rather, the application failed because it did not set aside a portion of the proposed subdivision to allow for the expansion of Harbor Road to the required width of fifty feet. Because the application did not meet the requirements of § 2.1.10, it must be denied. See Westport v. Norwalk, supra, 157-58.

The trial court incorrectly determined that the first reason stated by the commission in denying the plaintiff’s application was improper. The judgment is reversed and the case is remanded to the court with direction to render judgment reinstating the ruling of the commission.

In this opinion the other judges concurred.

       The defendants named in the plaintiff’s complaint were the planning and zoning commission of the town of Fairfield and the Fairfield town clerk.

       The defendants challenge the trial court’s decision with respect to the first and third reasons stated in the denial of the plaintiffs subdivision application. They have abandoned their challenge to the second specified reason, i.e., that Harbor Road has an insufficient “turnaround.”

       The commission, by letter of decision dated March 10,1988, denied both the subdivision application and the special permit application, but addressed reasons for its denial solely to the subdivision application.

      Section 2.1.10 of the Fairfield subdivision regulations provides: “Existing Streets: Proposed subdivisions abutting an existing Town street shall provide for proper construction and widening of said street to 50 feet or to a greater width depending upon the classification given said street by the Commission.”

       General Statutes § 8-25 provides in relevant part: “Such regulations shall provide . . . that the proposed streets are in harmony with existing or proposed principal thoroughfares . . . and so arranged and of such width, as to provide an adequate and convenient system for present and prospective traffic needs.”

       Section 3.3.6 of the Chester subdivision regulations provides: “Existing Streets: Proposed subdivision^ abutting on an existing Town street or State Highway shall provide for proper widening of the right of way of such street or highway to the width appropriate for the classification given such street or highway by the Commission. Such provision shall be in the form of a deed dedicating sufficient land to the Town to enable the Town to widen the street or highway to the appropriate width from the center line of the street or highway to the proposed property lines of the subdivision.”


author: O’Connell, J.

text:
    State of Connecticut v. Robert Calovine
    (8007)
    O’Connell, Norcott and Foti, Js.

      Argued May 10
    decision released September 4, 1990

      Steven W. Varney, special public defender, with whom, on the brief, was Kathleen M. Zapata, for the appellant (defendant).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Richard Palombo, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals his conviction, after a jury trial, of the crimes of burglary in the third degree in violation of General Statutes §§ 53a-8 and 53a-103, interfering with an officer in violation of General Statutes § 53a-167a(a), reckless endangerment in the second degree in violation of General Statutes § 53a-64, larceny in the sixth degree in violation of General Statutes § 53a-125b, possession of narcotics in violation of General Statutes § 21a-279 (a) and possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). The defendant claims that the trial court (1) should have granted his motion to suppress evidence seized during a warrantless search of his automobile, and (2) should have allowed the defendant access to a Bridgeport police department internal affairs report. We affirm the judgment of the trial court.

At about 3 p.m. on June 24,1988, Officer Paul Wargo of the Bridgeport police department was preparing to go to work when a strange noise attracted his attention to a car parked in front of his house. He saw one of the car’s two occupants, the passenger, leave the car and enter Wargo’s next door neighbor’s house. Wargo knew that his neighbor would normally be at work at that hour. Dressed in his blue police uniform trousers and a tee shirt, Wargo took his badge and pistol and went to the street to investigate. As he approached the car from the rear, he observed that the license plate was covered and that two television sets, one of which he thought he recognized as belonging to his neighbor, were on the back seat.

At that point, the passenger came out of the neighbor’s house carrying a stereo receiver and a barometer, which he started to hand through the open passenger window. In response to Wargo’s request for an explanation, the man told him to mind his own business and ran away. Wargo then reached through the open passenger window, identified himself as a police officer and grabbed the defendant by his shoulder. At the same time he pulled his gun from his pocket and told the defendant that he was under arrest. The defendant responded by putting the car in gear and starting off down the street. This caused Wargo, who had leaned through the window, to fall halfway into the car.

As he drove down the street with Wargo hanging out ■ of the passenger window, the defendant began searching for something under his thigh. Wargo, fearing that the defendant was reaching for a weapon, shot the defendant once in the waist area, causing him to slam on the brakes. Unharmed, Wargo was thrown from the car. He then yanked the defendant from the vehicle and held him face down on the ground until other officers arrived and handcuffed him.

Wargo found a fully loaded syringe under the defendant when he rolled him over to inspect for wounds. The defendant refused to identify himself, so Wargo entered the car to look for its registration and found another syringe on the floor. The court denied the defendant’s motion to suppress all evidence seized from his automobile.

I

In his first claim, the defendant argues that the discovery of the single syringe did not provide the officer with probable cause to search the motor vehicle. We do not agree.

In denying the defendant’s motion to suppress, the trial court properly relied on two exceptions to the fourth amendment search warrant requirement. First, a search can be justified as incident to a lawful custodial arrest; New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); and second, a warrant is not required where there is probable cause to believe that a motor vehicle contains evidence pertaining to a crime. United States v. Ross, 456 U.S. 798, 823, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982).

Both exceptions apply in the present case. “ ‘ “ ‘Probable cause exists when the facts and circumstances within the knowledge of the officer . . . are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed.’ ” ’ ” State v. Dennis, 189 Conn. 429, 431, 456 A.2d 333 (1983). Here, Wargo reasonably believed that his neighbor’s home was being burglarized and that stolen items were being placed in the defendant’s car. Thus, Wargo had probable cause to effect a warrant-less arrest and to search the car incident to this lawful arrest.

Additionally, Wargo saw what he reasonably believed to be stolen property being put into the car. This observation gave him probable cause to search the car, since he believed it contained evidence pertaining to a crime. See United States v. Ross, supra. A warrantless search is lawful if “ ‘ “(1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” ’ ” (Emphasis in original.) State v. Badgett, 200 Conn. 412, 429, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), quoting State v. Delmonaco, 194 Conn. 331, 337, 481 A.2d 40, cert. denied, 469 U.S. 1036,105 S. Ct. 511, 83 L. Ed. 2d 401 (1984). Both prongs of this test are clearly met here.

The defendant next argues that a search warrant was required because the defendant was shot in the waist, handcuffed behind his back and lying face down on the sidewalk awaiting an ambulance. We disagree. A car may be searched even if the defendant is removed from the vehicle and handcuffed. State v. Hull, 210 Conn. 481, 497, 556 A.2d 154 (1989). A warrantless search of the passenger compartment of a motor vehicle is permissible prior to the defendant’s removal from the scene. See State v. Badgett, supra. The right to search the car does not terminate until the defendant physically departs from the scene. Id., 426.

The defendant disingenuously contends that the bullet in his body amounted to his constructive departure from the scene. We do not agree, and the defendant cites no authority for this novel proposition. If the defendant is out of the vehicle and immobilized, the car can be searched. It makes no difference how the immobilization came about, from handcuffs, bullet or both. The trial court properly concluded that Wargo’s search of the defendant’s automobile passed constitutional muster.

II

The second claim raised by the defendant is that the trial court wrongly quashed his subpoena for an internal affairs police report. The report detailed a routine internal police investigation into a shooting incident involving Wargo, which occurred several months after the defendant’s arrest in this case. The defendant argues that without this document, he was unable to attack Wargo’s credibility effectively. The record does not support this argument.

InState v. Januszewski, 182 Conn. 142,172,438 A.2d 679 (1980), cert. denied, 453 U.S. 922,101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981), our Supreme Court held that “[n]o criminal defendant has the right to conduct a general ‘fishing expedition’ into the personnel records of a police officer. Any request for information that does not directly relate to legitimate issues that may arise in the course of the criminal prosecution ought to be denied.” The trial court allowed the defendant access to all relevant information concerning his arrest and shooting. See State v. Jones, 22 Conn. App. 665, 667-68, 578 A.2d 667 (1990) (defendant’s rights are protected when he is allowed access to all relevant information).

The trial court also conducted an in camera review of the report and determined that the information contained therein addressed a collateral matter. In State v. Januszewski, supra, 172-73, the court concluded that a defendant’s rights are safeguarded when a trial judge conducts an in camera inspection of a report to determine the material relevancy of the information to the prosecution. In the present case the court did not abuse its discretion when it denied the defendant access to the report. State v. Jones, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       Wargo, as a member of the Bridgeport police department, is authorized to arrest any person he has reasonable grounds to believe is committing a felony in his jurisdiction. See General Statutes § 54-lf.


text:
    Eleanor E. Wilcox et al. v. Willard Shopping Center Associates et al.
    (8085)
    (8106)
    Daly, O’Connell and Foti, Js.

      Argued May 9
    decision released September 4, 1990

      Howard C. Kaplan, with whom were Eileen I. Eliott and, on the brief, PaulN. Gilmore and Matthew J. Forstadt, for the appellants-appellees (plaintiff and named defendant).

      J. Paul Johnson, with whom, on the brief, was Holly K. Dustin, for the appellees-appellants (defendant Edward Almond et al.).
   O’Connell, J.

These consolidated appeals arise out of an action for partition by sale that was the subject of a prior decision by our Supreme Court. Wilcox v. Willard Shopping Center Associates, 208 Conn. 318, 544 A.2d 1207 (1988). In its decision, the court remanded the matter to the trial court to set a new judicial sale date. Id., 329.

On remand, the trial court set a new date and the committee published legal notice of the sale. The notice provided in part that the successful bidder would be required to make a $100,000 deposit and to sign a contract providing for forfeiture of the deposit if the balance was not paid within thirty days of the court’s approval of the sale. A bidder’s information package, which furnished further information about the sale, indicated that “the deposit can be refunded only upon order of the court and there is a strong likelihood that it will be declared forfeited if the successful bidder did not consummate the sale within thirty days of court approval.” Both the sample contract accompanying the bid package and the actual contract were silent as to forfeiture or damages.

The sale took place on October 15,1988, and Edward Almond and his partner, Michael Flaherty (the bidders), successfully bid $4.5 million. Following the sale, they signed the contract to purchase the property. Shortly thereafter, however, the bidders learned that the property was not connected to sewers but instead relied on a defective septic system. They also discovered that instead of their planned 60,000 square foot building, zoning regulations would allow only a 12,000 square foot building.

Concluding that the property was worth considerably less than their $4.5 million bid, the bidders informed the committee in charge of the sale that they would not complete the sale. At the hearing to confirm the sale, the trial court found that there was no justification for discharging the bidders or rescinding the contract. Consequently, the court confirmed the sale but limited the bidders’ liability to forfeiture of the $100,000 deposit. It then ordered that a new sale be held, which brought a high bid of $3,430,000.

The plaintiff Robert Sandolo and the named defendant, owners of the property (the owners), join in bringing this appeal, the gravamen of which is that the court should have ordered the resale of the property for the account of the bidders, charging them with any resulting deficiency. The bidders have cross appealed, claiming that the trial court should not have confirmed the sale but instead should have returned their $100,000 deposit and limited their liability to the expenses of the second sale.

I

We first consider the bidders’ cross appeal because if they prevail, we need not reach the owners’ claims. The bidders assert that they should be allowed to rescind the contract and recover their deposit on the ground of unilateral mistake caused by Almond’s mental illness. In the alternative, they argue that the committee and the court-appointed receiver of rents improperly withheld information about material defects in the property. “It is generally recognized that the grounds which would warrant a court’s refusal to approve a sale are fraud, misrepresentation, surprise or mistake.” Jefferson v. Karpowicz, 10 Conn. App. 198, 200, 522 A.2d 322 (1987). None of these conditions exists in this case.

Almond, a certified public accountant, bid on behalf of the partnership. The trial court found that, at the time of the sale, Almond was in the manic phase of a manic depressive psychosis from which he suffered. On the basis of expert medical testimony, the court also found that a person in Almond’s condition would be inclined to bid wildly and compulsively and believe that he was invincible. The court concluded, however, that although Almond’s judgment may have been impaired, he still possessed the capacity to appreciate the fact that he was bidding to purchase real estate at a public auction. The court further found that this mental condition was not known to the committee in charge of the sale nor to Almond’s partner, who observed and approved of Almond’s actions. We are satisfied that the trial court properly concluded that Almond had the mental capacity to bid.

The bidders’ misunderstanding concerning the property’s condition and zoning regulations was not a sufficient ground for not approving the sale. The property was sold “as is” and the bidders do not claim that anyone connected with the sale was guilty of intentional misrepresentation. Furthermore, sophisticated investigation would not have been required for the bidders to discover these defects and limitations.

The court was correct in finding that none of the required conditions for disapproval of a contract was present in this case and that the sale should therefore be approved and the deposit forfeited. Accordingly, there is no merit to the bidders’ cross appeal seeking a reversal of the forfeiture order and a return of their deposit.

II

We turn now to the question of whether the trial court was required to order that the resale be held for the account of the bidders and that the bidders be held liable for any deficiency. The owners’ claims are subsumed under the larger question of whether, under the facts of this case, a defaulting buyer’s liability at a public sale is limited to forfeiture of his deposit.

The owners rely on Mariners Savings Bank v. Duca, 98 Conn. 147, 155-56, 118 A. 820 (1922), which sets out three courses of action open to a court that is confronted with a defaulting bidder. The court may (1) discharge the original sale and order a new sale, (2) confirm the original sale and order the purchaser to pay according to his bid, enforcing payment with its contempt powers, or (3) confirm the sale and order a resale for the account of the purchaser, holding the purchaser liable for any deficiency and applying the deposit to the deficiency. Id.

The owners complain that the court ignored these alternatives and fashioned its own remedy. This argument assumes that the three possible courses of action are hard and fast rules that leave the trial court with no flexibility or discretion. They cite no authority for this proposition but instead rely on cases involving conventional contract disputes.

The owners’ position ignores the fact that a partition action is not a conventional contract action but rather is equitable in nature. Land Enterprises, Inc. v. Dorman, 17 Conn. App. 4,10, 549 A.2d 672 (1988). As such, this case is “governed by the general law pertaining to judicial sales consequent upon an equitable decree, unless in some way modified by statute, or by a proper rule of court having a like effect . . . .” Mariners Savings Bank v. Duca, supra, 152. Here, the court’s general equitable powers were supplemented by General Statutes § 52-502 (a) which provides in part that “the court . . . may make any order necessary to protect the rights of all parties in interest and to carry the sale into effect.” The bidders clearly are parties in interest here. Mariners Savings Bank v. Duca, supra, 161-62.

In fashioning its remedy, the trial court considered (1) that the newspaper advertisement specified only a forfeiture of the $100,000 deposit if the successful bidder did not complete the purchase, (2) that the bidder’s package stated that in the event of default, “there is a strong likelihood” that the $100,000 deposit would be declared forfeited by the court, and (3) that the contract was silent on what would happen to the deposit in the event of default.

Moreover, the court found, from expert testimony, that the reasonable value of the property was “at least $2,500,000 but most likely not too much more” and that to hold the bidders responsible for any deficiency from the resale would allow the owners to reap a huge and inequitable windfall. From all of this the court concluded that a reasonable person in the position of the bidders would have believed that his liability upon default would be limited to a forfeiture of his $100,000 deposit. The action of the trial court was appropriate given “the exigencies and equities of the case.” Mariners Savings Bank v. Duca, supra, 155.

The court properly exercised its equitable powers in ordering the bidders’ deposit forfeited and in limiting their liability to that amount.

The judgment is affirmed with respect to the issues raised on the appeals and the cross appeals.

In this opinion the other judges concurred.

       The advertisement read in pertinent part: “The highest bidder will be expected to sign a contract for Purchase with the Committee at the conclusion of the bidding. Such contract will contain no financing contingencies in favor of the purchaser and will provide for the forfeiture of the deposit upon the failure of the purchaser to pay to the Committee the balance of the purchase price within 30 days from the date of Court approval of said sale.”

       The notice to bidders read in pertinent part: “The premises are being sold subject to no financing contingency. In the event the successful bidder is either unable or unwilling to consummate the same within 30 days from the date of court approval of said sale or upon the passing of the deed, whichever may first occur, the deposit can be refunded only upon order of the Court, and there is a strong likelihood that it will be declared forfeited.”

       The owners’ specific claims are: “Did the Trial Court Err By Not Requiring Edward Almond and Michael Flaherty to Pay the Difference Between Their Bid ($4,500,000.) and the Highest Bid at the Second Sale ($3,430,000.) for a Total of $1,070,000. as Against Which They Would Receive Credit for Their Deposit of $100,000?
      “(A) Did the Trial Court Err by Failing to Apply Any of the three Available Remedies Permissible Under Settled Connecticut Law?
      “(B) Did the Trial Court Err by Imputing a ‘Forfeiture’ Provision to the Contract?
      “(C) Did the Trial Court Err in Ruling that the ‘Forfeiture’ Provision Constituted a Liquidated Damages Provision?
      “(D) Did the Trial Court Err by Invoking its Equitable Powers to Limit The Bidder’s Liability to Their $100,000.00 Deposit?”