author: Lavery, J.

text:
    Marron and Sipe Building and Contracting Corporation et al. v. Holly Flor et al. New Milford Car Wash, Inc. v. Sherman East, Inc.
    (7283)
    Norcott, Foti and Lavery, Js.

      Argued February 27
    decision released August 21, 1990

      Charles F. Brower, for the appellants-appellees (defendants in the first case, plaintiff in the second case).

      Vincent P. McCarthy, for the appellees-appellants (named plaintiff et al. in the first case).

      Gregory J. Pepe, for the appellee (plaintiff in the first case Land Engineering Associates, Inc.).
   Lavery, J.

This is an appeal from judgments in two building contract cases that were consolidated by the court and tried to a jury. Case No. 43905 is a suit for money damages for nonpayment of the balances due for services and materials furnished in the construction of a car wash on Route 7 in New Milford. In that action, the owner filed counterclaims alleging negligence. Case No. 45565 is a suit by the owner against the car wash equipment supplier and installer for negligence. We affirm the trial court’s judgments.

Although the cases were consolidated in the trial court, they have separate case files, and we discuss them separately because they are complicated. In Case 43905 the plaintiffs are James Marrón, Leroy Sipe, the Marrón and Sipe Building and Contracting Corporation (M and S Corp.) and Land Engineering Associates, Inc. (Land Engineering). The defendants are the New Milford Car Wash, Inc. (car wash) and Holly Flor. In case No. 45565 the plaintiff is New Milford Car Wash, Inc. (car wash), and the defendant is Sherman East, Inc. (Sherman East).

All of the parties were involved in the construction of the car wash in 1985. Flor hired M and S Corp., Land Engineering and Sherman East. M and S Corp. was hired to act as general contractor. Land Engineering supplied engineering designs for the septic system. Sherman East supplied car wash equipment, installed it and supplied the design for a trench that was to be constructed through the middle of the car wash. Construction began in June, 1985, and was completed on November 8,1985, when the car wash opened for business. Certain problems that arose after construction were remedied by M and S Corp.

The operation of the car wash is relevant to the various claims made in this appeal. Cars enter the south end of the car wash and exit the north end. There is a front wheel pull conveyor system which transports the cars through the car wash. Beneath the conveyor track is a trench for catching water. A dam in the middle of the trench divides it in two. The southern half of the trench is for catching wash water, which contains various cleaning chemicals. The northern half catches rinse water which contains car wax, but no cleaning chemicals. The northern part is approximately two and one-half feet wide and forty feet long.

The purpose of the dam is to keep the two types of water separate. Wash water is recycled whereas rinse water is discharged into the septic system. State environmental regulations restrict the discharge of cleaning chemicals into the septic system.

Jay Keillor, the president of Land Engineering, designed the septic system for the disposal of rinse water. A twenty foot section of six inch pipe leads from the west side of the northern half of the trench to the outside wall of the car wash. A second pipe leads from the outside wall to the first septic tank. There are two 5000 gallon septic tanks in the disposal system. There are baffles in the septic tanks opposite from where the water enters the tanks, which trap floatable material. The tanks must be pumped clean regularly.

A pipe leads from the second septic tank to a precast gallery. A precast gallery is a large tank similar to a septic tank except its purpose is to disperse filtered water into the ground rather than to trap sediment. The precast gallery at the car wash has holes in its bottom and sits on top of a leaching field consisting of four trenches that are full of rock and concrete. Water from the car wash is returned to the groundwater through the leaching field.

The elevation of the leaching field and the tanks dictates the elevation of the car wash. The pipes leading from the car wash must have a particular minimum pitch in order for water to flow out to the septic system. An imaginary line at the inside bottom of a pipe, where the water flows, is known as the invert of the pipe. The minimum pitch of the invert of the twenty foot pipe inside the car wash is one-eighth inch rise per foot. The pipe was installed so that the invert had a pitch of three-sixteenths inch rise per foot.

The invert enters the car wash six inches from the bottom of the rinse water trench. The top of the dam is two to three inches higher than the invert at the opening of the pipe. If 15,000 gallons of water went into the septic system per eight hour day, the water level in the northern end of the trench would rise one and one-half inch higher than the invert of the pipe. Thus, it appears that there was a great deal of extra capacity built into the drainage system because, as Keillor estimated, the car wash would discharge 5000 gallons of rinse water per twenty-four hour day under ordinary usage.

William Quinlan, the president of Sherman East, supplied and installed the car wash equipment, such as the conveyor track, brushes, etc. Quinlan welded the conveyor track to the floor. He set the passenger side of the track zero to one inch higher than that of the driver’s side, as specified by the equipment manufacturer. Metal plates were installed over the car wash trench. M and S Corp. began to drill and pin those plates to set them in place, but left the project to begin a new construction project. On March 7, 1987, Flor hired Thomas Laramy to inspect and service the car wash equipment. He testified that he found that some of the metal plates were not pinned, that some of the welds on the conveyor track had broken and that the passenger side of the conveyor track was not installed at the appropriate height. He stated that he charged Flor $4554.89 to repair these conditions, but the trial court did not allow Laramy’s bills into evidence.

Case Number 43905

Case number 43905 commenced on May 21, 1986, when M and S Corp. filed a complaint against Flor and the car wash. The complaint had four counts. In the first and second counts, M and S Corp. alleged that it had fully performed under its construction contract with the defendants and was contractually entitled to payment from them of $41,693.33. In the third count, M and S Corp. alleged that the defendants failed to give M and S Corp. a mortgage on property located at 107 Danbury Road as required under paragraph thirteen of the construction contract. The fourth count contained a claim for payment for electrical contracting services. The trial court ordered that this count be severed from the case. After it was severed, the count was then consolidated with case number 290323. See A.J. Masi Co. v. Marron & Sipe Building & Contracting Corporation, 21 Conn. App. 565, 567, 574 A.2d 1323 (1990).

On February 11,1987, Land Engineering, which had been made a plaintiff in the action on January 26,1987, also filed a complaint against Flor, alleging that Flor had refused to pay a $8269.17 debt on the ground that she thought M and S Corp. owed the amount to Land Engineering.

Flor filed two counterclaims. The first was filed on August 13, 1987, and named Leroy Sipe and James Marrón individually, and also named M and S Corp. This counterclaim had two counts. In the first count, it charged that the plaintiffs negligently constructed the car wash. The second count alleged that the plaintiffs negligently underestimated the cost of construction by $217,000.

The second counterclaim, filed on May 13, 1987, named Land Engineering and alleged that Land Engineering negligently designed the drainage system of the car wash. M and S Corp. also filed a cross complaint against Land Engineering alleging negligence. Thereafter, Land Engineering filed a cross complaint on January 7,1988, seeking indemnification from M and S Corp. in the event that the court ruled in favor of Flor on Flor’s counterclaim against Land Engineering.

All of the parties made oral motions for directed verdict. The trial court then directed verdicts as follows: (1) in favor of James Marrón and Leroy Sipe on the first count of Flor’s counterclaim against them, which count alleged that M and S Corp. acted negligently and breached its contract with Flor and the car wash; (2) in favor of M and S Corp. on Land Engineering’s January 7,1988 cross complaint against M and S Corp. seeking indemnity; and (3) in favor of Land Engineering on the counterclaim of Flor against Land Engineering alleging negligence.

The trial court submitted the remainder of the charges to the jury on separate verdict forms, and instructed the jury that its foreperson was to sign each form after the jurors had come to an agreement on each count.

After the verdicts were returned, Flor submitted motions to set them aside. The trial court denied all of these motions except her motion to set aside the jury’s verdict on the third count of the complaint of M and S Corp., which awarded M and S Corp. $9229.75 for damages arising out of Flor’s refusal to give M and S Corp. a mortgage.

After the trial court rendered judgment in both cases in July, 1988, Flor and the car wash filed a joint appeal and M and S Corp. filed a cross appeal. Flor and the car wash appealed the judgment rendered on July 26, 1988, in case number 45565 as the plaintiff in the case, and they appealed the judgment rendered on July 28, 1988, in case number 43905 as the defendants in that case. M and S Corp. cross appealed as the plaintiff in case number 43905.

Flor claims in case 43905 that the trial court (1) should not have directed verdicts in favor of Land Engineering and M and S Corp. on those counts that alleged that these contractors acted negligently, (2) should not have disallowed testimony by certain witnesses regarding the operation of the trench drainage system, and (3) should not have admitted appraisals of the car wash into evidence during the cross-examination of Flor. M and S Corp. claims that the trial court should not have overturned the jury’s verdict in its favor on the third count of its complaint in case number 43905, which alleged that Flor had breached her contractual obligation to give M and S Corp. a mortgage on certain of her property.

I

The first claim raised by Flor and the car wash is that the trial court should not have directed verdicts against them on the issue of whether Land Engineering and M and S Corp. were negligent in constructing the car wash. The trial court directed verdicts on the first count of the counterclaim against M and S Corp., James Marrón and Leroy Sipe alleging negligence and breach of contract, and on the counterclaim against Land Engineering alleging that Land Engineering had negligently designed the drainage system of the car wash.

In reviewing the trial court’s decision to grant the motions for directed verdicts in this case we must consider the evidence in the light most favorable to the nonmovant. Iseli Co. v. Connecticut Light & Power Co., 211 Conn. 133, 140, 558 A.2d 966 (1989). A directed verdict is justified if on the evidence the jury could not reasonably and legally reach any other conclusion than that embodied in the verdict as directed or if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party. Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986). On the other hand, “[i]f the evidence presented is in conflict and more than one conclusion is reasonably open to the jury, particularly when it consists of oral testimony, and if the jury may reasonably draw different inferences from the evidence, or if the jury could be called to pass upon the credibility of witnesses or their testimony, a verdict should not be directed by the court.” Johnson v. Flammia, 169 Conn. 491, 496, 363 A.2d 1048 (1975).

A

The trial court directed verdicts in favor of Leroy Sipe and James Marrón on the first count of Flor’s counterclaim. In that count Flor alleged that “the Plaintiffs negligently and carelessly breached [their] contract with the Defendants in that they negligently performed the work in an unworkmanlike manner . . . .” The trial court directed verdicts in favor of Leroy Sipe and James Marrón because the only contractual relationship existed between M and S Corp. and the car wash. Flor and Marrón signed the contract, but Marrón signed in his capacity as president of M and S Corp. Because Leroy Sipe and James Marrón did not sign the contract in their individual capacities, a directed verdict was appropriate on that portion of the count that alleged that they had breached their contract through their negligent conduct.

The trial court submitted to the jury the question whether M and S Corp. breached its contract with Flor through negligent conduct, as alleged in the first count of the counterclaim against M and S Corp. The jury returned its verdict in favor of Flor and awarded damages of $1. (See special verdict number 4 in case number 43905, footnote 3, supra.)

B

Flor claims that the trial court should not have directed a verdict in favor of Land Engineering on Flor’s counterclaim against Land Engineering. Flor alleges that Land Engineering negligently designed the septic system, and, as a result, the system was faulty and caused a water backup problem.

In directing a verdict in favor of Land Engineering on Flor’s counterclaim in 43905, the court did not offer an elaboration of its reasoning. Flor, however, had made essentially the same allegations against Land Engineering in her special defenses to Land Engineering’s complaint as she made in her counterclaim against Land Engineering. Flor had an equal burden to prove the allegations in her counterclaim as well as the allegations contained in her special defenses to Land Engineering’s complaint. Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 237, 520 A.2d 1008 (1987). The trial court did not charge the jury on the special defenses contained in Flor’s answer to Land Engineering’s complaint because it concluded that there was no credible evidence that Land Engineering breached a contractual duty.

Flor argues that the invert of the pipe in the rinse water trench should have been installed closer to the bottom of the trench. She believes that because the invert was set six inches from the floor of the trench, the septic system backed up, causing the level of rinse water to rise and overflow the dam, which resulted in a commingling of wash and rinse water. Car wax in the rinse water would become filthy when commingled with wash water, and when sprayed on cars, the dirty wax created a film that was not completely washed off before cars left the car wash. Keillor of Land Engineering specified the position of the pipe in the car wash.

The directed verdict against Flor was appropriate because she presented no evidence that the position of the pipe six inches from the trench floor could cause the septic system to back up. In December of 1985, the month after the car wash opened, Flor saw rinse water coming over the dam into the wash water. In May, 1987, she called the subcontractor who had installed the septic tanks. The subcontractor increased the pitch in the pipe leading from the second septic tank to the precast gallery. In July, 1987, Flor asked Richard Lombardi, a registered professional engineer, to look at the drainage system. Lombardi observed rinse water flowing through a notch in the dam. The bottom of the notch in the dam was lower than the invert of the pipe in the northern side of the trench. Pictures of the dam after construction, which were introduced into evidence by Flor, did not show the existence of the notch at that time. Sipe and Quinlan testified that there was not a notch in the dam as constructed.

Flor contends that the fact that the bottom of the trench fills up with sediment shows that the pipe was not properly placed. If the pipe were at the bottom of the trench, according to Flor, then all of the sediment would exit the trench to the septic tanks. Quinlan wanted to set the pipe lower, but he testified that if the pipe were lowered, it would have to be baffled to prevent heavy particles from clogging the pipe. Quinlan’s plan for a lower pipe with a baffle would itself result in four inches of sediment in the trench. Even with the pipe set at six inches above the trench floor, Flor had to cover the opening with chicken wire after a cloth rag became trapped and caused a backup.

The trial court concluded that the water drainage system occasionally backed up. But because of the evidence that the drainage pipe was set at the proper pitch, that the dam was higher than the invert of the pipe and that the system could dispose of 15,000 gallons of water in eight hours without a backup, it was impossible to reasonably conclude that the water backups were due to defects in the design or construction of the drainage system. There was evidence that Flor did not properly clean the trench or the septic tanks, and there was evidence, in the form of city water bills, that showed that the car wash used two to three times more water than the system was designed to handle during some months. The evidence showed that the water volume was directly proportional to the number of vehicles washed. The evidence, taken in the light most favorable to Flor, could support only the conclusion that Flor washed too many cars per month and did not adequately maintain the septic system in that she failed to remove sediment on a regular basis.

The directed verdict against Flor was appropriate for another reason. Keillor, Quinlan and Sipe met with Flor in the construction trailer at the job site to discuss the positioning of the pipe. Quinlan and Keillor had opposing views on the issue, and Flor adopted Keillor’s position as a result of the meeting. Sipe later installed the pipe as Flor had decided. Thus, even on the assumption that the pipe was installed too high, as Flor contends, she chose where to install it herself.

II

Flor’s second claim is that the trial court unduly restricted the testimony of three of her witnesses concerning their examinations and measurements of the various components of the drainage trench. Through their testimony, Flor sought to show that the trench was defectively designed and constructed. Again, her fundamental claim is that the drainage pipe in the rinse section was installed too high. She also claimed that the notch in the dam was an original feature.

Her witnesses were prepared to testify, among other things, that the bottom of the notch was too close to the level of the invert of the drainage pipe, and, as a result, rinse water would occasionally rise up, flow through the notch and commingle with wash water. Flor specifically claims that it was improper to restrict the testimony of the witnesses because Lombardi testified to the exact same conditions. During Lombardi’s cross-examination, however, counsel for Land Engineering showed him a photograph of the trench, marked defendant’s exhibit forty-nine, which was taken by Laramy six months before Lombardi inspected the car wash. The photograph shows that there was no notch in the dam at that time. Flor’s other witnesses inspected the trench later than Lombardi.

The trial court possesses broad discretionary power in ruling on the relevancy of evidence. State v. Mendez, 15 Conn. App. 531, 536, 545 A.2d 587, cert. denied, 209 Conn. 810, 548 A.2d 441 (1988). Defendant’s exhibit 49 showed that there was not a notch in the dam at the time of Laramy’s inspection. According to Lombardi’s testimony, there was a notch when he inspected the dam. On the basis of this evidence, the trial court correctly concluded that the testimony of Flor’s other witnesses would not be relevant to the condition of the trench as constructed in 1985. No abuse of discretion has been shown.

III

Flor’s third claim is that appraisal reports of the value of the car wash in 1986 constituted inadmissible hearsay because they were admitted into evidence during her cross-examination.

The record shows that the following events led up to the admission of the reports into evidence. M and S Corp. began to cross-examine Flor concerning four appraisal reports. Three were prepared at Flor’s request and one was prepared for Flor’s bank. Counsel for Flor objected because of lack of relevancy. In an offer of proof, M and S Corp. argued that the 1986 appraisals would be relevant to damages as evidence of market value. The court allowed the cross-examination.

When M and S Corp. asked Flor what dollar amount is indicated on an appraisal dated November, 1986, counsel for Flor objected, claiming that that information was hearsay. The court asked M and S Corp. if the person who performed the November, 1986 appraisal, John Garrity, would be called to testify in the case. M and S Corp. answered affirmatively.

The court ruled that the November, 1986 report itself would be admissible for the nonhearsay purpose of showing merely that Flor had received it. M and S Corp. offered the document into evidence as an exhibit. The court instructed M and S Corp. that it should not ask questions as to the content of the appraisal until after Garrity was called to testify as a witness. Garrity was never called.

On the next day of trial, M and S Corp. offered a January, 1986 appraisal as an exhibit and counsel for Flor objected as before. The trial court admitted the report into evidence and allowed M and S Corp. to cross-examine Flor as to its contents even though no one from the business that had conducted the appraisal, Edward F. Herberger Associates, was called to testify. In response to a question from M and S Corp., Flor stated that the November 1986 report indicates that the market value of the car wash was $655,000.

The appraisal reports contained statements of fact as to the market value of the car wash, which became hearsay evidence when the documents were introduced through Flor, who did not conduct the appraisals and who had no personal knowledge of the value of the facility. See United States v. Williams, 661 F.2d 528, 530 (5th Cir. 1981). M and S Corp. contends that because the appraisals were prepared for Flor at her request and were used by her to obtain bank financing, they constitute her business records and are therefore admissible pursuant to General Statutes § 52-180.

For a document to be admitted as a business record, it must meet the following criteria: (1) the document was made in the regular course of business; (2) it was the regular course of business to make such a record; and (3) the record was made when the act, transaction or event occurred, or shortly thereafter. State v. Damon, 214 Conn. 146, 156-57, 570 A.2d 700 (1990). In the present case, the trial court made no such findings because M and S Corp. did not present the argument that the appraisal reports were Flor’s business records. Compliance with the three qualifications is a prerequisite to admissibility. State v. Kwaak, 21 Conn. App. 138, 150, 572 A.2d 1015 (1990). “[W]e can consider the propriety of the trial court’s ruling only on the basis of what was said at trial.” DuBose v. Carabetta, 161 Conn. 254, 265, 287 A.2d 357 (1971). By instructing M and S Corp. that it could not cross-examine Flor as to the contents of the November, 1986 appraisal report until after Garrity was called to testify, the trial court, in effect, ruled that the contents of that report were inadmissible hearsay. It appears that the court inadvertently allowed cross-examination as to the contents of the January, 1986 report the next day. We disagree with the contention of M and S Corp.

M and S Corp. cites Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468, 531 A.2d 177 (1987), for the proposition that the appraisal reports were business records because Flor used them to obtain bank financing. In Crest Plumbing, we stated: “There is no requirement in § 52-180 . . . that the documents. . . be prepared by the organization itself to be admissible as that organization’s business records.” Id., 475. The records involved in Crest Plumbing were six engineering reports prepared by a construction management firm at the behest of a bank. Because an officer of the bank testified that it was in the bank’s general course of business to keep a record of the reports; id., 473; we held that “such a record could reasonably be found to have been made in the course of the bank’s business.” Id., 476. The present case is distinguishable in that no employee of the car wash testified that it was within the general course of business of the car wash to keep records of the appraisal reports.

Although Flor was qualified, as the owner of the car wash, to offer an opinion as to its market value; Misisco v. La Maita, 150 Conn. 680, 684, 192 A.2d 891 (1963); M and S Corp. did not seek to cross-examine her as to her own opinion, but as to the opinions she received from others through the appraisal reports.

The trial court should not have allowed M and S Corp. to cross-examine Flor as to the contents of the January, 1986 appraisal report and should not have admitted the reports into evidence as exhibits in the absence of testimony from those who made the appraisals. We next consider whether that evidence was harmful to Flor. Casalo v. Claro, 147 Conn. 625, 630, 165 A.2d 153 (1960).

The appraisal reports were evidence of market value, and market value was a fact relevant to the issue of damages for breach of contract. Flor argued that the measure of damages should be the cost of repairing the alleged defects in the car wash as constructed. M and S Corp. argued that Flor should not be allowed to recover the cost of restoration unless there was evidence that that measure of damages was lower than the diminished value of the car wash because of the defects. In Levesque v. D & M Builders, Inc., 170 Conn. 177, 181, 365 A.2d 1216 (1976), our Supreme Court adopted the rule that damages for breach of contract with respect to real property are limited to the diminished value of the property whenever expectation damages greatly exceed that amount. The purpose of this rule is to avoid unreasonable economic waste. Spera v. Audiotape Corporation, 1 Conn. App. 629, 633, 474 A.2d 481 (1984).

M and S Corp. introduced the evidence of the appraisal reports for the purpose of showing that the value of the car wash increased from 1985 to 1986 despite the alleged defects. From this, M and S Corp. argued that Flor did not suffer any diminished value in her car wash and that, therefore, in light of Levesque, she should not recover the cost of restoration. This argument fails to take into consideration that contract damages are measured from the time of the breach, and that the breaching party cannot benefit from a subsequent rise in the market value of the contract res. Vines v. Orchard Hills, Inc., 181 Conn. 501, 513, 435 A.2d 1022 (1980). It also disregards the rule that “diminution in value may be determined by the cost of restoration, if that cost does not exceed the former value of the property and if the restoration does not enhance the value of the property over what it was before the injury.” Spera v. Audiotape Corporation, supra.

The jury awarded nominal damages to Flor on three separate counts, but none of those awards was based on the argument espoused by M and S Corp. that the cost of restoration was not the measure of damages because of the evidence of an increase in market value. The jury awarded nominal damages to Flor in the second count of her complaint against Sherman East in case number 45565. On that count, the trial court instructed the jury that there was no evidence that Flor suffered any damages as a result of the alleged breach of contract on the part of Sherman East in installing car wash equipment. The trial court’s instruction was based on the fact that Flor’s witnesses, who testified to damages, did not inspect the car wash until 1987. The instruction was not based on the argument that the cost of repair should not be the measure of damages in this case.

The jury also awarded nominal damages in two separate verdicts against M and S Corp. in case number 43905. In her counterclaim against M and S Corp., Flor alleged in one count that M and S Corp. had breached its contract and, in another count, that M and S Corp. had misrepresented the total cost of construction in order to induce Flor into hiring M and S Corp. The court interpreted the count alleging misrepresentation as alleging intentional misrepresentation, or fraud. This determination was based on Flor’s use of the terms “fraud” and “intentional misrepresentation” in her second, fourth and seventh special defenses to the complaint of M and S Corp.

The trial court properly instructed the jury that the measure of contract damages for intentional misrepresentation is the amount of diminution in the value of the bargain suffered by Flor because of the alleged nondisclosure. See Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 410, 456 A.2d 325 (1983); Miller v. Appleby, 183 Conn. 51, 57, 438 A.2d 811 (1981). At trial, the court ruled that evidence relating to the appraisal reports would be “probative to this jury to determine the reasonableness of the building costs in view of the value of the [completed] project.” Also, it was clear from the court’s instruction to the jury that the appraisal reports were to be used by the jury in determining the amount of damages Flor would receive for misrepresentation. On the basis of the trial court’s instructions, the jury returned a verdict for Flor, but awarded only nominal damages.

The same result would have occurred had the evidence of the appraisal reports not been admitted. Flor had the burden of proving damages for intentional misrepresentation. Pacelli Bros. Transportation, Inc. v. Pacelli, supra. Consequently, she had to produce evidence of the market value of the car wash in November, 1985, when construction was completed. Flor chose not to introduce her appraisal reports into evidence for tactical reasons. Had the reports not been admitted by the trial court through cross-examination of Flor, there would have been no evidence of an element of damages for intentional misrepresentation. Thus, we find that the admission of those reports was harmless with respect to the count alleging misrepresentation.

Finally, we consider whether the admission of the reports was harmless with respect to the count in Flor’s counterclaim alleging breach of contract on the part of M and S Corp. The court instructed the jury that the sole issue with respect to this count was whether M and S Corp. breached its contract with Flor by negligently installing drainage piping from the car wash to a drainage trench on the property of Tobin. The court specifically instructed the jury that the measure of damages would be the actual cost of removing the pipes and constructing a trench in another location. The appraisal reports had nothing whatsoever to do with this count.

IV

We now consider the claim made by M and S Corp. M and S Corp. claims that the trial court should not have overturned the jury’s verdict in its favor on the third count of its complaint in case number 43905, which alleged that Flor had breached her contractual obligation to give M and S Corp. a mortgage on certain of her property.

The trial court ordered that separate verdicts be submitted to the jury in order to avoid the implication of a general verdict. See Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987). In Booker v. Stern, 19 Conn. App. 322, 328, 563 A.2d 305 (1989), the trial court instructed the jurors prior to submitting separate verdicts to them, that two of the verdicts contained alternative theories of liability and that if they found in favor of the plaintiff on one theory, they should not consider the other. We therefore look to the trial court’s jury instructions concerning how to answer the separate verdict forms corresponding to the counts in the complaint of M and S Corp. to determine if they provide a basis for the court’s decision to overturn the jury’s verdict as to the third count.

On the basis of the trial court’s instructions, we conclude that the jury’s verdicts on counts one and three are inconsistent and that the trial court correctly overturned the verdict as to the third count, rather than the verdict as to the first count.

“Although consistency of verdicts in criminal cases is not required; Harris v. Rivera, 454 U.S. 339, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981); Hamling v. United States, 418 U.S. 87, 101, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974); Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 2d 356 (1932); State v. Rosado, 178 Conn. 704, 709, 425 A.2d 108 (1979); in civil cases when a verdict rests upon a factual finding contradictory to another finding of the same issue by the trier the judgment cannot stand. Marko v. Stop & Shop, Inc., 169 Conn. 550, 556, 364 A.2d 217 (1975); Fabrizi v. Golub, 134 Conn. 89, 94, 55 A.2d 625 (1947); O’Brien v. Connecticut Co., 97 Conn. 419, 422, 117 A. 498 (1922); 76 Am. Jur. 2d, Trial § 1154.” Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 577, 479 A.2d 781 (1984). The court instructed the jury that the first and second counts were alternative theories of liability. The first count sought recovery based on a contract, while the second count sought the reasonable value of goods and services in case the jury found that no contract existed. The court did not explain that if they found for Flor on the first count, based on a conclusion that no contract existed, then they could not find for M and S Corp. in the third count. However, because of the court’s instruction that the second count contained an alternative theory of liability to that contained in the first count, and because the jury found for M and S Corp. in the second count, the trial court had a reasonable basis for concluding that the jury had found that no contract existed. Thus, the trial court simply acted to effect the jury’s intent when it overturned the verdict on the third count.

We conclude that the jury returned a verdict for M and S Corp. on the third count out of confusion that arose because of the trial court’s failure to instruct the jury as to the logical relationship between the first and third counts. Under the circumstances of this case, therefore, we hold that the decision to overturn the verdict in the third count was proper.

Case Number 45565

Case number 45565 began on April 9, 1987, when Flor sued Sherman East, alleging in one count that Sherman East supplied the car wash with defective equipment, in a second count that Sherman East negligently installed that equipment and in a third count that Sherman East breached an implied warranty of merchantability by supplying and installing defective equipment. The trial court directed verdict in favor of Sherman East on the first and third counts and submitted the second count to the jury. The jury found in favor of Flor and awarded $1 as damages. On February 23, 1988, the trial court denied the plaintiff’s motion to set aside the directed verdict.

The trial court directed a verdict against Flor and the car wash on the first and third counts of the complaint against Sherman East for supplying and installing defective car wash equipment. Flor claims that the trial court should not have directed verdict on these counts, and, also, that the court should not have excluded evidence offered by Laramy, an employee of Sherman East.

Flor fails to supply this court with any reason to disturb the trial court’s decision to direct a verdict in favor of Sherman East on the first and third counts. Flor states in her brief that the trial court should not have directed a verdict against her on the issue of whether Sherman East negligently installed a sediment pipe in the car wash. The only mention of negligence in Flor’s complaint, however, appears in the second count, which the trial court submitted to the jury. The jury returned the following verdict: “On the Second Count of the complaint of Plaintiff New Milford Car Wash, Inc. claiming negligent installation, the jury finds the issues for the Plaintiff New Milford Car Wash, Inc. and against the Defendant $1.00 damages.”

Flor’s second claim concerns the second count of her complaint against Sherman East for negligent installation of car wash equipment in case number 45565. This count was submitted to the jury and the jury returned a verdict for Flor but awarded damages of only $1. Flor claims that the court should have allowed the testimony of Laramy on the cost of repairing improperly installed car wash equipment. She states in her brief that if this testimony had been allowed, “it is likely that the jury would have awarded . . . damages.”

Before turning to the merits of Flor’s second claim we note, for the sake of clarification, that the jury awarded Flor nominal damages of $1 based on the trial court’s instructions. The court charged the jury that, “[f]or whatever reason, there was no evidence presented as to what these damages Holly Flor and New Milford Car Wash sustained as a result of any negligence by Sherman East. In such a case, even though no actual damages have been proved, that does not end the matter because this is one of those cases where the law provides for what are sometimes called nominal damages. In other words, if you find Sherman East was negligent, then you must bring in a verdict for Holly Flor and New Milford Car Wash stating some nominal amount.” If there was no evidence as to damages, then this instruction was proper because it is improper for a court to submit to the jury an issue that is wholly unsupported by the evidence. Wassell v. Hamblin, 196 Conn. 463, 470, 493 A.2d 870 (1985). Moreover, “[t]o authorize a recovery of more than nominal damages, facts must exist and be shown by the evidence which affords a reasonable basis for measuring the plaintiffs’ loss.” Johnson v. Flammia, supra, 501.

Flor does not challenge the trial court’s finding that there was no evidence on damages. Rather, she claims that the reason there was no evidence on damages is that the court improperly excluded Laramy’s testimony on that issue. The trial court has broad discretion in ruling on the admissibility of evidence, and, absent a showing of clear abuse of discretion, we will not disturb the trial court’s determinations as to the relevancy of evidence. State v. Parker, 197 Conn. 595, 601, 500 A.2d 551 (1985).

Flor sought to submit an exhibit into evidence that consisted of billings Laramy had sent to Flor for the work he had done to repair various problems with the conveyor system. Damages are measured as of the date of the breach of contract. Levesque v. D&M Builders, Inc., supra. Because the conveyor system was installed in 1985, Sherman East’s contract with Flor was breached, if at all, at that time. Laramy found that some of the welds on the conveyor track were broken, but his inspection occurred in 1987. Laramy’s bills were not evidence of the cost of repair at the time of the alleged breach of contract, and, therefore, the trial court was within its discretion to exclude the bills from evidence as irrelevant to any material issue. See Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 749-50, 535 A.2d 1287 (1988).

The judgment is affirmed.

In this opinion the other judges concurred.

      A water main broke on two occasions, and was mended both times. A cloth rag lodged in a drain pipe, causing water to back up, and M and S Corp. dislodged it. Also, Land Engineering had connected drain pipes from the car wash to a drainage trench on the property of an adjoining landowner, Joseph Tobin. Those pipes were subsequently removed, and another trench was constructed in a new location.

       Flor and the car wash have acted jointly in this case in filing a complaint, two counterclaims, various motions and an appeal. Hereafter, rather than continuously referring to Flor and the car wash, we shall simply refer to Flor alone.

       The completed separate verdict forms read as follows: “(1) On the First Count of the complaint of Plaintiffs Marrón, Sipe and Marrón and Sipe Building & Contracting Corp. claiming breach of contract the Jury finds the issues for the Defendants Holly Flor and The New Milford Carwash, Inc. (2) On the Second Count of the complaint of Plaintiffs Marrón, Sipe and Marrón and Sipe Building & Contracting Corp. claiming reasonable value of services rendered, the Jury finds the issues for the Plaintiffs Marrón, Sipe and Marrón and Sipe Building & Contracting Corp. and against the Defendants $39,209.25 damages. (3) On the Third Count of the complaint of Plaintiffs Marrón, Sipe and Marrón and Sipe Building & Contracting Corp. claiming damages for refusal to give a mortgage, the Jury finds the issues for the Plaintiffs Marrón, Sipe and Marrón and Sipe Building & Contracting Corp. and against the Defendants $9,229.75 damages. (4) On the First Count of the [counterclaim] of Defendants Holly Flor and The New Milford Car Wash, Inc. against Marrón and Sipe Building & Contracting Corp. claiming breach of contract, the Jury finds the issues for the Defendants Holly Flor and The New Milford Carwash, Inc. and against Marrón and Sipe Building and Contracting Corp. $1.00 damages. (5) On the Second Count of the [counterclaim] of defendants Holly Flor and The New Milford Car Wash, Inc. against Marrón, Sipe and Marrón and Sipe Building & Contracting Corp. claiming negligent misrepresentation, Jury finds the issues for the Defendants Holly Flor and The New Milford Carwash, Inc. against Marrón and Sipe Building & Contracting Corp. $1.00 damages. (6) On the complaint of Plaintiff Land Engineering Associates Inc. against Holly Flor and The New Milford Car Wash, Inc. claiming the value of services rendered, the Jury finds the issues for the Plaintiff Land Engineering Associates, Inc. against the Defendants $$,269.17 damages. (7) On the cross complaint of Plaintiffs Marrón, Sipe and Marrón and Sipe Building & Contracting Corp. against Plaintiff Land Engineering Associates, Inc. claiming negligence, the Jury finds the issues for the Plaintiff Land Engineering Associates, Inc.”

       See verdict number 3 in footnote 3, supra.

       See footnote 3, supra.

       Gary Leavitt, Graham Curtis and Serge Demers.

       Gary Leavitt inspected the car wash on May 17, 1987, Serge Demers on August 12, 1987, and Graham Curtis on August 19, 1987.

       The court instructed the jury as follows: “[Tjhe defendants must show [that] what they received in the car wash land plus building and equipment, was worth less than they paid for, that the defendant did not get what they bargained for. This is measured by the difference in value of the property at the time the car wash was completed than one would have been worth if [constructed as] represented. You first have to determine the value of the property at the time of the completion of the car wash, price paid by the defendant, including cost of construction. You must determine the total cost of the car wash on July 16, 1985, of the entire car wash. And from the amounts determined, you must deduct what the value of the property was actually in light of all the facts when the plaintiffs completed the car wash. This is the property’s market value, and you must properly regard that market value as the measure of the true value of the property. The difference between these two amounts is the measure of damages the defendants are entitled to recover. In other words, did the defendants get less than they bargained for, was the market value of the property less than what they actually received, or did they receive what they bargained for and more? If you determine that all the necessary elements of a misrepresentation had been proven by Holly Flor and New Milford Car Wash by a preponderance of the evidence, you then still must determine that the value of the property exceeds the total cost of construction or not. If it does, then Holly Flor and New Milford Car Wash had not proven damages. Therefore, again, you would find only the nominal damages, for example, than one dollar.”

       In its memorandum, the trial court explained its action as follows: “The jury rendered a verdict in the amount of $9229.75 on said count. The jury also found in the first count of the same complaint that the defendants were not liable to the plaintiffs on any contractual basis. Rather, the jury found for the plaintiffs on a quantum meruit basis only. The jury was charged that if there was no ‘contract obligation to give a mortgage’ they were to check the appropriate box on the verdict form. The court concludes that the jury was mistaken in the apparently conflicting verdicts regarding the matter of contractual obligations. It cannot disallow recovery under an alleged contract in one instance and in another instance allow recovery under a term of that alleged contract. Further, the court, upon reflection, finds that there was insufficient evidence upon which the jury could have concluded that the mortgage claim of the plaintiffs was proven on any other basis. Accordingly, the verdict on count three of the amended complaint is set aside.”

       On July 27,1987, the trial court granted Flor’s motion to consolidate cases number 43905 and 45565.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Herbert M. Heller v. Naomi Heller
    (7718)
    O’Connell, Norcott and Foti, Js.
    Argued May 10
    decision released May 16, 1990

      Maureen D. Dennis, with whom was P. Benedict Fraser, for the appellant (plaintiff).

      Harold E. Stuart, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Anne M. Saltus v. Donald Saltus
    (8229)
    O’Connell, Norcott and Foti, Js.
    Argued May 10
    decision released May 16, 1990

      Mary Badoyannis, for the appellant (defendant).

      Anthony A. Piazza, with whom, on the brief, was Shelagh M. Neary, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Superior Steel Products Corporation v. Peerless Nuclear Corporation
    (8361)
    Daly, O’Connell and Foti, Js.
    Argued May 9
    decision released May 16, 1990

      Antoinette Leone Ruzzier, for the appellant (plaintiff).

      Susan L. Stratton, with whom was Frederick M. Tobin, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Derek Person v. Melodie Slocum
    (8384)
    Dupont, C. J., Laveky and Landau, Js.
    Argued May 1
    decision released May 30, 1990

      Maria R. Altieri, for the appellant (defendant).

      Joseph P. Ganim, with whom, on the brief, was Raymond W. Ganin II, for the appellee (plaintiff).
   Per Curiam.

This is an appeal by the defendant mother from the trial court’s award of sole custody to the plaintiff father of their minor child. We affirm.

The child was born on May 26,1985, to the plaintiff and the defendant who are unmarried. The plaintiff and the defendant resided together for a short period of time after the birth of the child and soon thereafter disagreed about the child’s care.

This matter has been extensively litigated by the parties. There have been two child custody investigations by the family relations department of the Superior Court and the child has had his own counsel who was appointed by the court to represent his best interests throughout the proceedings. The family relations department and the child’s attorney are in agreement that the court acted in the best interest of the child in awarding custody to the plaintiff father. In reviewing a decision as to what is in the best interests of a child, the trial court is vested with broad discretion. We cannot interfere with the exercise of that discretion in the absence of a showing that some legal principle or right has been violated, resulted in an abuse of that discretion. Adamson v. Adamson, 181 Conn. 172, 180, 195 A.2d 418 (1963); Palmieri v. Palmieri, 171 Conn. 289, 290, 370 A.2d 926 (1976); General Statutes § 46b-56. No such circumstance appears in the record before us.

The judgment is affirmed.


text:
    Malcolm Arnold et al. v. Residential Inspection Technology, Inc.
    (8709)
    Foti, Laveky and Landau, Js.
    Argued June 5
    decision released June 13, 1990

      Herbert F. Rosenberg, for the appellant (defendant).

      Donald N. Carlow, for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    Jose Diaz v. Warden, State Prison
    (8461)
    Norcott, Foti and Landau, Js.
    Argued June 11
    decision released June 13, 1990

      Benjamin F. Cardinez, for the appellant (petitioner).

      James M. RAlls, deputy assistant state’s attorney, with whom, on the brief, was Kevin McMahon, assistant state’s attorney, for the appellee (respondent).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Sam Barnes
    (8037)
    Daly, O’Connell and Cretella, Js.
    Argued June 18
    decision released June 22, 1990

      Mary Miller Haselkamp, deputy assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Earl Richards, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Louis Goldberg et al. v. Howard A. Fromson et al.
    (8408)
    Spallone, O’Connell and Cretella, Js.
    Argued June 14
    decision released June 22, 1990

      Michael P. Foley, Jr., for the appellants (plaintiffs).

      Glen A. Canner, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Harry L. Swift v. Maria A. Swift
    (8650)
    O’Connell, Foti and Cretella, Js.
    Argued June 12
    decision released June 20, 1990

      Bruce S. Beck, for the appellant (defendant).

      Kevin M. O’Brien, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Robert R. MacDonald v. Lynn M. MacDonald
    (8577)
    Daly, Cretella and Landau, Js.
    Argued June 13
    decision released June 27, 1990

      Edward E. Moukawsher, for the appellant (plaintiff).

      Lloyd L. Langhammer, with whom, on the brief, was Jeffrey W. Hill, for the appellee (defendant).
   Per Curiam.

This is an appeal by the plaintiff from the trial court’s financial and property award in a dissolution action. We affirm the judgment of the trial court.

In this appeal, the plaintiff attacks the discretionary and factfinding functions of the trial court. In reaching its decision, the trial court properly considered the criteria set forth in General Statutes § 46b-81 and the evidence and financial affidavits of the parties. Our review of the record, transcripts and briefs fails to disclose any abuse of discretion. The trial court’s conclusions were in accordance with applicable law. “A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in . . . dividing property as long as it considers all relevant statutory criteria.” Crocker v. Crocker, 13 Conn. App. 129, 131, 534 A.2d 1251 (1987). Our review of a trial court’s exercise of discretion is limited in domestic relations cases to “ ‘ “whether the [trial] court correctly applied the law and could reasonably have concluded as it did.” ’ Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Russo v. Russo, 1 Conn. App. 604, 607, 474 A.2d 473 (1984).” O’Connor v. O’Connor, 20 Conn. App. 812, 812-13, 567 A.2d 1230 (1989).

We find that the trial court correctly applied the law and could reasonably have concluded as it did.

The judgment is affirmed.


text:
    State of Connecticut v. Miguel Martinez
    (8569)
    Spallone, Daly and Norcott, Js.
    Submitted on briefs June 14
    decision released June 27, 1990

      Lauren Weisfeld, assistant public defender, and G. Douglas Nash, public defender, filed a brief for the appellant (defendant).

      Mary H. Lesser, deputy assistant state’s attorney, John T. Redway, state’s attorney, and.Bernadette Cow-way, assistant state’s attorney, filed a brief for the appellee (state).
   Per Curiam.

The defendant is appealing his conviction of a violation of probation. This court reversed the defendant’s conviction of certain drug charges in State v. Martinez, 21 Conn. App. 813, 573 A.2d 353 (1990). Because the defendant’s violation of probation was based solely on that conviction, the conviction of the violation of probation must also be reversed. State v. Soltes, 20 Conn. App. 342, 347, 566 A.2d 1374 (1989); State v. Drouin, 12 Conn. App. 101, 102 n.1, 529 A.2d 740 (1987).

The judgment is reversed and the case is remanded with direction to dismiss the charge of violation of probation.


text:
    State of Connecticut v. Lawrence Buell
    (8552)
    Spallone, Daly and Norcott, Js.
    Argued June 14
    decision released June 27, 1990

      D. Kirt Westfall, with whom, on the brief, were JohnR. Williams, Sue L. Wise, and David B. Bach-man, for the appellant (defendant)

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Per Curiam.

The defendant in this appeal complains that the trial court lacked the authority to impose a sentence for the original offense that ran consecutive to the sentence for the subsequent offense and, that in doing so, the trial court violated his federal and state constitutional rights against double jeopardy.

In essence, the defendant claims that the trial court could not impose a sentence for a probation violation consecutive to a sentence he was then serving. This claim is without merit. This court has held to the contrary. See, e.g., State v. Ryerson, 20 Conn. App. 572, 576, 570 A.2d 709 (1990); State v. Gaskin, 7 Conn. App. 131, 135, 508 A.2d 40 (1986).

The judgment is affirmed.

       The record reveals that the defendant had fled the jurisdiction at the time of sentencing and was sentenced in absentia.


text:
    Steven R. Dolbow v. Sandra W. Dolbow
    (8038)
    O’Connell, Cretella and Lavery, Js.
    Argued June 18
    decision released June 27, 1990

      Bobbi Silver, with whom, on the brief, were Anthony A. Piazza, Glen A. Canner and Shelagh M. Neary, for the appellant-appellee (plaintiff).

      Philip M. French, for the appellee-appellant (defendant).
   Per Curiam.

The judgment is affirmed.


author: Norcott, J.

text:
    State of Connecticut v. Wilfredo Ramos
    (8608)
    Spallone, Daly and Norcott, Js.
    Argued June 14
    decision released August 28, 1990

      Vicki H. Hutchinson, for the appellant (defendant).

      PaulJ. Ferencek, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, Bradford, Ward and Corinne Klatt, assistant state’s attorneys, for the appellee (state).
   Norcott, J.

The defendant appeals from the trial court’s denial of his motions to withdraw his plea entered pursuant to the Alford doctrine. The defendant entered his plea to the charge of sexual assault in the first degree in violation of General Statutes § 53a-70. He was initially charged with a second count of risk of injury to a child in violation of General Statutes § 53-21, but that charge was nolled by the state at the time of sentencing as part of the plea agreement. On August 7, 1989, the trial court conducted a thorough canvass of the defendant pursuant to Practice Book §§ 711 and 712, and after the court was satisfied that a sufficient factual basis existed, pursuant to Practice Book § 713, it accepted the defendant’s plea. After entering a finding of guilty on the count of sexual assault in the first degree, the court ordered a presentence report and set a sentencing date for September 29, 1989.

On the date of sentencing, the defendant’s counsel indicated to the court that the defendant wished to withdraw his plea. Faced with this unanticipated situation, the trial court, after a brief discussion with the defendant concerning the August 7 plea canvass, treated defense counsel’s representation as an oral motion to withdraw the plea, ordered a transcript of that plea canvass and continued the matter for a new sentencing date.

On October 6,1989, the matter was returned to court for sentencing, and the defendant again attempted to withdraw his plea. The court, after reviewing the transcript of the August 7, 1989 plea canvass, denied the defendant’s motion and sentenced the defendant to the previously agreed recommendation for sentencing of fifteen years, execution suspended after ten years, five years probation. This appeal then ensued.

The defendant’s first two claims are interrelated. He argues that, contrary to the requirements of Practice Book §§ 712, 720 and 721, the trial court improperly accepted his guilty plea because that plea was not entered voluntarily, knowingly and intelligently and was the result of promises apart from the plea agreement. He further challenges the trial court’s refusal to grant his motion to withdraw his plea of guilty or to have an evidentiary hearing on the motion to withdraw his guilty plea. We affirm.

“It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable.” State v. Childree, 189 Conn. 114,119, 454 A.2d 1274 (1983). By entering a guilty plea, the defendant waives his constitutional rights to a jury trial and to confront his accusers as well as his privilege against self-incrimination. Boykin v. Alabama, 395 U.S. 288, 89 S.Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Wright, 207 Conn. 276, 542 A.2d 299 (1988). It is well settled that the record must affirmatively disclose “that the defendant’s choice was made intelligently and voluntarily.” State v. Childree, supra, 120.

Our careful review of this entire record, including a close scrutiny of the transcripts, leads us to conclude that the trial court was correct in accepting the defendant’s plea as voluntarily and knowingly given. At the time he entered his Alford plea, the defendant was twenty-one years old and had had prior experience with the criminal justice system. The defendant’s counsel assured the court that the defendant did not require the services of an interpreter, and the record does not reflect that the defendant had difficulty understanding the trial court.

At best, the record does reflect some initial confusion in the dialogue at the plea canvass after the court asked the defendant if he understood that there would be no trial and that the matter would be continued for sentencing pending the receipt and review of a presentence report. The pertinent part of this dialogue was as follows:

“The Court: So you understand if I accept your guilty plea there is not going to be any trial. I’m going to refer the matter to the department of adult probation. They are going to do a presentence investigation and report to the court after which you’ll be sentenced. You understand that? Is that what you’re willing to do, sir?
“Mr. Quinn: He said I would like the assault dropped. I would like to fight it.
“The Court: I’m sure you’d like to have a lot of things dropped. Is that the other count?
“Mr. Ward: The risk of injury.
“Mr. Quinn: Risk of injury.
“The Court: That is going to be nolled. You understand I’m going to refer this matter to the department of adult probation and when the report is prepared, you’re going to be sentenced? Do you understand that?
“Mr. Ramos: Yes.” (Emphasis added.)

The defendant argues that his lawyer’s representation that the defendant wanted “the assault dropped” referred to the crime of sexual assault in the first degree to which he had just entered an Alford plea. In the context of the entire proceeding, we find this argument to be unconvincing.

We first note that just prior to the seemingly ambiguous representation of the defendant’s counsel, the defendant had clearly responded “guilty” to the charge of sexual assault in the first degree that was put to him by the clerk of the court. Next, the assistant state’s attorney clearly recited the factual basis for the charge of sexual assault in the first degree, after which he put on the record the agreed recommendation for sentencing, that is, fifteen years suspended after ten years, five years probation. The court then informed the defendant that it wanted to be assured that the defendant understood what he was doing and that he was doing so “freely and voluntarily.” The court then conducted a thorough and exhaustive canvass that included the defendant’s assurance that no promises had been given him in exchange for his plea other than the agreed recommendation. The court reviewed the elements of an Alford plea, after which the defendant replied affirmatively to the court’s question of whether he believed that he would probably be found guilty of the crime of sexual assault in the first degree.

Finally, the court asked the defendant: “The bottom line is this, you understand that once your guilty plea is accepted it can’t be withdrawn unless the court decided not to impose that sentence that it indicated it would impose on [you or] for some other good cause with the court’s permission. Do you understand?” To this, the defendant responded, “Yes, sir.”

It is clear from our review that whatever unreported words transpired between the defendant and his counsel, the record supports the court’s conclusion that the defendant had voluntarily and knowingly pleaded guilty to the charge of sexual assault in the first degree. The record also supports the state’s position that any reference to a charge being dropped referred to the count of risk of injury, which, in fact, was nolled as part of the plea agreement.

The defendant also challenges the court’s denial of his motion to withdraw his plea, pursuant to Practice Book §§ 720 and 721, on the same ground, that is, that his plea was involuntarily and unknowingly made. We again disagree.

“A guilty plea, once accepted, may be withdrawn only with the permission of the court. State v. Rish, 17 Conn. App. 447, 451, 553 A.2d 1145, cert. denied, 211 Conn. 802, 559 A.2d 1137, cert. denied, 493 U.S. 818, 110 S. Ct. 72,107 L. Ed. 2d 38 (1989). The court is required to permit the withdrawal of a guilty plea upon proof of any ground set forth in Practice Book § 721. State v. Collins, 207 Conn. 590, 597, 542 A.2d 1131 (1988); State v. Lasher, 190 Conn. 259, 265, 460 A.2d 970 (1983). Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused. State v. Crenshaw, [210 Conn. 304,] 308-309 [, 554 A.2d 1074 (1989)]; Szarwak v. Warden, 167 Conn. 10, 23, 355 A.2d 49 (1974).” State v. Morant, 20 Conn. App. 630, 633, 569 A.2d 1140 (1990).

The record reveals that on September 29,1989, the original sentencing date, the defendant gave the following reasons for withdrawing his plea: (1) surprise at the plea agreement, (2) “plenty of promises which never happened,” and (3) intimidation, purportedly by his own counsel. These reasons, at best, were an expansion of the ground for withdrawal on August 7, 1989, which was the desire to “fight” the sexual assault charge. The court then prudently ordered the transcript of the August 7 plea canvass and continued the matter until it could review that transcript.

At the rescheduled sentencing hearing, the defendant, in response to the court’s question as to the ground for the withdrawal of his plea, reported the following: “Well, from my understanding, when I came from downstairs, [defense counsel] himself had told me it was going to be dropped to second degree and the time was going to be less . . . to more or less balance out with • the time I got on my probation. And he told me just to agree to whatever [the court] say.” The defendant’s counsel made no statement for the record on this issue. The trial court concluded that the defendant’s story was “less than frank and truthful” and denied the motion to withdraw the plea. It then concluded that the defendant’s representations should be treated as a claim of ineffective assistance of counsel, and, as such, they should be left for a habeas court to address.

From our review, we find that the trial court correctly concluded that the defendant put forth no plausible reason for withdrawing his plea and that he should not be granted an evidentiary hearing. “Ordinarily, a defendant is not allowed to withdraw his plea of guilty, nor is he entitled to an evidentiary hearing to determine the voluntariness of his plea, merely because he makes a general allegation that his plea was involuntary. State v. Torres, 182 Conn. 176,185, 438 A.2d 46 (1980).” State v. Morant, 13 Conn. App. 378, 384, 536 A.2d 605 (1988). We cannot say here that the trial court abused its sound discretion in determining that no basis for a plea withdrawal existed after hearing the defendant and his counsel on three different occasions and after carefully reviewing the transcript of his own plea canvass.

Furthermore, the trial court correctly refused to hold an evidentiary hearing on the motion to withdraw the plea. “In considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusionary, vague or oblique.” State v. Lasher, supra, 266. In light of the entire proceeding, we find the defendant's contention that he was entitled to an evidentiary hearing on his motion to be without merit.

Finally, the defendant claims that the court failed to advise him correctly of the mandatory minimum sentences as well as the possible maximum sentences. We note that this claim was not presented to the trial court. We have repeatedly held that we will not review such unpreserved claims regarding plea canvasses where the defendant received the exact sentence to which he agreed by virtue of the plea agreement and where “the record does not indicate that fundamental injustice was done, even if this was an error of constitutional proportions. State v. Luca, 19 Conn. App. 668, 671, 563 A.2d 752 (1989).” State v. Morant, supra, 20 Conn. App. 630, 634.

The judgment is affirmed.

In this opinion the other judges concurred.

       Under an Alford, plea, a defendant consents to sentencing as if he were guilty. He acknowledges only that the state has enough evidence to convict him without expressly acknowledging his guilt. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

      . The state claimed that the defendant had forcible sexual intercourse with a thirteen year old girl.

      . Defense counsel represented to the court that on the morning of the first scheduled sentencing hearing, the defendant asked “What am I going to get,” and defense counsel informed Mm of the sentence that the court indicated it would impose. Defense counsel then told the court that the defendant had said that if that would be the sentence imposed, he would withdraw his plea.

       The trial court also terminated a pending probation, ordering the execution of the sentence that had been suspended. That termination had no effect on this sentence, as the two sentences were to run concurrently.

       At the time of the plea canvass the defendant was on probation for conviction of risk of injury to a child.


author: Spallone, J.

text:
    Takis Argentinis v. Paul L. Gould et al. Paul L. Gould v. P. A. Argentinis et al.
    (8454)
    Dupont, C. J., Spallone and Daly, Js.
    Argued May 7
    decision released August 28, 1990

      Eugene E. Cederbaum, for the appellants (defendants in the first case, plaintiff in the second case).

      Daniel B. Glass, for the appellees (plaintiff in the first case, defendants in the second case).
   Spallone, J.

This is an appeal from the judgments rendered on consolidated actions. In the first captioned action, Takis Argentinis sought damages for breach of a construction contract and of an express warranty by the defendants, Paul L. Gould and Paul L. Gould, Inc. In the second captioned action, Gould sought to foreclose a purchase money mortgage granted by Argentinis and his wife, the defendants in that action, P. A. (Takis) Argentinis and his wife, Ourania Argentinis, securing the final payment due on the contract.

After a trial to an attorney trial referee, the reported findings were accepted and judgments rendered for Argentinis on both the contract action and on the foreclosure action. On appeal, Gould challenges the court’s acceptance of the trial referee’s findings (1) that Argentinis was entitled to both compensatory damages for breach of contract and a judgment in the foreclosure action, (2) that Gould had not substantially performed under the terms of the construction contract, (3) that Gould had the burden to prove the soundness of the structural plans, and (4) that Gould was personally liable for contract damages. Gould also claims that the court should not have accepted findings that did not comply with the rules of practice. We affirm the judgments.

The evidence introduced at trial supports the following facts. In November, 1980, Gould individually and as president of Paul L. Gould, Inc., entered into a contract with Argentinis for the construction of a custom designed house in Fairfield. The agreement incorporated the house plans and specifications prepared for Argentinis by professional architects. The contract contained Gould’s various express warranties, including a warranty against water leakage into the premises for one year after closing. The house was to be ready for occupation by May 1, 1981.

The closing took place in April, 1981. Gould took from Argentinis a purchase money mortgage for the final $50,000 of the total sales price of $344,000. Although a certificate of occupancy had been issued, the Argentinis family was unable to occupy the house as scheduled because some forty to fifty items of construction remained unfinished. After further negotiation, the parties reached a supplemental agreement modifying the terms of the mortgage. Argentinis received a credit of $4000 toward the final $50,000 due. The parties agreed to a modified promissory note and mortgage for $43,000 and a cash payment of $3000 which was to be released on the completion of those construction items recognized to be unsatisfactory.

The Argentinis family moved into the house in early July, 1981, and the cash payment and documents were released to Gould from escrow. Some items due for completion later that month or “within a reasonable period of time” had not yet been performed. Of principal concern to Argentinis was the lack of water pressure in the house and the contaminated well water. It was subsequently discovered that the well had been placed, without a permit, too near a septic system and a sewer drain. Argentinis was without potable tap water for three months. Structural defects soon became manifest. Particularly, the basement was vulnerable to flooding during rains. Storm flooding occurred within the warranty period, again in June, 1982, and twice more in April, 1983, causing substantial damage to personal and real property.

■ Argentinis made repeated demands upon Gould within the warranty period to rectify the problems of the improperly sited well, the flooding basement and numerous other significant deficiencies. Gould refused to repair the defects unless given an unconditional release for all defects and the right to determine those defects for which he was responsible. Argentinis refused to give this release, refused to make payments on the outstanding debt, and brought suit against Gould for breach of contract and of express warranties. Gould sought to foreclose the $43,000 mortgage.

The consolidated actions were tried before an attorney trial referee who found for Argentinis on the contract claims, awarding $73,068.75 in damages. The referee also found for Argentinis on Gould’s foreclosure action, ruling that Gould was not entitled to the final contract payment because he had not substantially completed construction. The trial court accepted the referee’s report in September, 1989, and rendered judgments consistent with the report. This appeal followed.

I

Gould first challenges the referee’s findings that Argentinis was entitled both to compensatory damages for breach of contract and to judgment in the foreclosure action. Gould argues that the balance due on the mortgage and promissory note should have been set off against the damage award. He asserts that in finding for Argentinis on both claims, the referee awarded Argentinis a double recovery of more than $154,600; $73,068.75 in breach of contract damages and $43,000, plus interest, owed on the promissory note.

In refusing to set off the balance due under the contract against the damage award, the referee relied on Edens v. Kole Construction Co., 188 Conn. 489, 450 A.2d 1161 (1982). In Edens, the plaintiff sued for breach of a construction contract and the defendant counterclaimed for the unpaid portion of the purchase price and for foreclosure of a mechanic’s lien. Id., 491. Our Supreme Court approved the trial court’s treatment of these claims as distinct and separate issues. In Edens, as here, no challenge was mounted to the determination that the builder had breached the contract or to the calculation of the resulting damages. Id., 493. The builder, as here, challenged only the court’s failure to find that he was entitled to the total purchase price. Id. That issue turned wholly on whether the builder had proved his claim to the balance due by virtue of his having substantially performed the contract. Id. The Edens court, finding no substantial performance, ruled that the builder was not entitled to any amount over that already paid and thus awarded the buyer contract damages and also forgave the balance due. Id., 496.

Contrary to Gould’s first claim, Edens makes it clear that it is not per se improper both to award damages and to forgive the outstanding debt. Setoff is proper only if the contract has been substantially performed; the buyer will not be forced to pay for value not received. Id.

II

Gould next claims that the referee’s conclusion that construction was not substantially completed is against the weight of evidence. He states that Argentinis’ architects had performed inspections as the work progressed and had approved the materials and workmanship. The town building inspector had found that the project met all but one minor code requirement and had issued a valid certificate of occupancy. We do not agree that this evidence forces a conclusion that Gould substantially performed under the terms of the contract.

A party cannot recover on a contract unless he has performed his obligations or has a legal excuse for not performing. Mayfair Roofing & Renovating Co. v. Rameo Technologies, Inc., 18 Conn. App. 682, 686, 560 A.2d 464 (1989). Substantial performance contemplates the performance of all items of a building contract except for minor details, those easily remedied by minor expenditures. Rosnick v. Aetna Sheet Metal Works, Inc., 146 Conn. 565, 568, 153 A.2d 435 (1959). Whether a building contractor has met this standard is ordinarily a question of fact for the trier. Edens v. Kole Construction Co., supra. Our review of this claim is therefore limited to a determination of whether, based on the record, the referee’s finding of no substantial performance is clearly erroneous. Howie’s Painting Service, Inc. v. Ferreria, 12 Conn. App. 583, 584, 532 A.2d 1318 (1987).

The record here indicates that the referee took testimony and evidence over a period of twenty-four days. On the basis of this evidence, the referee expressly listed twelve specific construction conditions that were not in conformity with the terms of the contract, including the illegally installed contaminated well, the substandard basement construction, the defective heating system and the defective siding. These conditions were found to have been caused by Gould’s poor workmanship or inadequate materials, and the referee calculated the cost to Argentinis for the repair or replacement of defective items as a measure of contract damages.

Having found that Gould failed to deliver under the terms of the contract, the referee went on to distinguish between the breach of contract and the foreclosure actions. He found that Argentinis was justified in refusing to pay the balance due on the note, stating that Gould had failed to install adequately or to complete numerous items required by the contract, particularly the heat pumps, air conditioning units and a fireplace stove. “In short, [Gould] failed to substantially perform this contract.” This conclusion is fully supported in the record, replete with evidence of Gould’s shoddy work and broken promises. We cannot say that the referee reached a mistaken conclusion when the damages resulting from Gould’s substandard performance total more than 20 percent of the purchase price.

Because Gould did not substantially perform under the contract, the referee properly refused to set off the damage award against the mortgage debt. As in Edens, Gould was not owed the balance due on the contract because he failed to prove that he had completed any more work than that for which he already had been paid. We find no double recovery for Argentinis. He had paid for the work to the extent actually completed and was owed the reasonable cost of restoring this work to the condition for which he had contracted.

III

In his third claim, Gould argues that he was improperly held responsible for damages resulting from Argentinis’ faulty house specifications and, further, improperly allocated the burden of proving these plans to be structurally sound “by compelling evidence.” The record does not support either argument.

Gould asserts that Argentinis’ house plans and specifications were not prepared by a licensed architect and that they were unsound and defective when delivered to him. A contractor is not responsible for damages resulting from defective plans or specifications supplied by a contractee. Southern New England Contracting Co. v. State, 165 Conn. 644, 656, 345 A.2d 550 (1974); D’Esopo & Co. v. Bleiler, 13 Conn. App. 621, 624, 538 A.2d 719 (1988). This argument overlooks the fact that the referee weighed the testimony given by the parties’ expert architects, and found that the plans supplied by Argentinis were structurally sufficient. The referee expressly found that the dwelling’s deficiencies were not attributable to any fault in the plans, but rather to poor workmanship and materials. We will not encroach on the referee’s broad discretion to try facts and to pass upon the credibility of witnesses. Ruwet-Sibley Equipment Corporation v. Stebbins, 15 Conn. App. 21, 25, 542 A.2d 1171, cert. dismissed, 209 Conn. 806, 548 A.2d 437 (1988); Essex Savings Bank v. Leeker, 2 Conn. App. 98, 102, 476 A.2d 1071 (1984).

Moreover, we do not agree that the referee shifted the burden to Gould of demonstrating the soundness of the plans. Gould had raised the adequacy of the plans prepared by Argentinis’ architects as an issue in his general denial to Argentinis’ breach of contract claims. A general denial does not place any burden on the denier; Eastern Consolidators, Inc. v. W. L. McAviney Properties, Inc., 159 Conn. 510, 510-11, 271 A.2d 59 (1970); and the burden is properly placed on the party seeking recovery. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1081). After evaluating the testimony and evidence of Argentinis’ architects, the referee expressly noted that the Argentinises “sustained their burden of proof by demonstrating through credible testimony and evidence that their architect, Mr. Valus, drew plans and specifications that were structurally sufficient.” The referee found that Gould “failed to offer compelling evidence to rebut or weaken the plaintiffs’ witnesses on this issue.”

It is clear that the referee properly placed the burden of proof upon Argentinis, not Gould, to prove that the plans and specifications were adequately drawn. The referee did not shift the burden but merely remarked that Gould did not present “compelling evidence” sufficient to undermine and rebut Argentinis’ witnesses. Because the referee believed the testimony of Argentinis’ architects that the house plans were not the source of the house defects, he properly refused to excuse Gould’s deficient performance on that ground.

IV

In his fourth claim, Gould contends that, judgment should not have been rendered against him as an individual. This claim is without substance. Argentinis brought a breach of contract action against Gould both individually and in his capacity as president of Paul L. Gould, Inc. In his answer to Argentinis’ complaint, Gould stated that “[t]he defendant, Paul Gould, hereby answers the Revised Complaint of the plaintiff dated July 7,1983 as follows: (1) The defendant admits that on November 13,1980, the parties executed.an agreement whereby the defendant agreed to erect a residence on Winton Road . . . .”

Gould’s answer to the complaint in his personal capacity is a judicial admission of personal liability and is conclusive on him. See Practice Book § 160; Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199, 286 A.2d 308 (1971); DelVecchio v. DelVecchio, 146 Conn. 188, 191, 148 A.2d 554 (1959). Gould signed the construction contract in his own name. Cf. Northeast Gunite & Grouting Corporation v. Chapman, 20 Conn. App. 201, 204, 565 A.2d 256 (1989). Gould was individually named in Argentinis’ action, and he appeared and defended without ever seeking to have the action dismissed as to him as an individual. At no time during trial did he seek to withdraw, modify or explain his admission. See West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 312, 514 A.2d 734 (1986). Having judicially admitted that he was a party to the contract, Gould cannot now complain about being held individually responsible for the damages flowing from his breach of the construction contract.

V

After trial, Gould filed thirty-four pages of proposed findings of fact for the referee’s consideration. Gould’s final claim is that the trial court should not have accepted findings that did not comply with Practice Book § 435 because the referee failed to consider or reference any of these proposed findings in his report. The record indicates otherwise.

Practice Book § 435 permits a party to request that an attorney trial referee “make a finding of subordinate facts [and to submit] a statement of the facts, or rulings, or claims, he desires the [referee] to incorporate in the report.” There is, however, no authority that requires a referee specifically to consider each proposed finding of fact or to include it in the report. Nevertheless, the referee’s report indicates that he was cognizant of Gould’s requests and expressly “chose not to address each and every proposed finding since it was felt that each was adequately dealt with in the body of the memorandum.” He considered Gould’s proposed findings to be “surplusage,” extraneous and “so much fodder to clutter the findings.” Pursuant to Practice Book § 434, the referee stated only “the ultimate facts found.” Those facts and conclusions were sufficient to support the judgments rendered by the court.

We agree with the referee that Gould’s proposed findings amount to a request to substitute his version of the facts for the referee’s own. Gould’s claim is no more than a sweeping attack on the referee’s factual findings. “Although we are loath to repeat ourselves, we must again declare our disapproval of such claims.” Howie’s Painting Service, Inc. v. Ferreria, supra. We will not retry the case.

The judgments are affirmed.

In this opinion the other judges concurred.

       We will refer in this opinion to P.A. (Takis) Argentinis and Ourania Argentinis as Argentinis.


author: Landau, J.

text:
    O & G Industries, Inc. v. John Mizzoni et al.
    (8339)
    (8340)
    Dupont, C. J., O’Connell and Landau, Js.

      Argued May 2
    decision released August 28, 1990

      Dana P. Lonergan, for the appellant (named defendant).

      David M. McHugh, for the appellant (defendant Orlando Marini).

      Phyllis J. Trowbridge, with whom, on the brief, was Robert L. Trowbridge, for the appellee (plaintiff).
   Landau, J.

In these consolidated appeals, the defendants John Mizzoni and Orlando Marini appeal, following a trial to the court, from the judgment for the plaintiff. A third defendant, Garwood Construction Company (Garwood), has not appealed. Mizzoni was defaulted for failure to plead and participated only in the damages portion of the trial. He claims that the trial court should have granted his motion to open the default, and should not have admitted into evidence a credit application. Marini raises this same evidentiary claim as Mizzoni. He also claims that the court improperly awarded attorney’s fees. We affirm the trial court’s judgment.

The following facts are relevant to this appeal. In March, 1986, the plaintiff brought this debt collection action against Garwood. Mizzoni and Marini were also sued in their capacity as personal guarantors of the debt. In response to the plaintiffs demand for disclosure of defense, Marini claimed that the amounts owed were paid. Mizzoni never responded to the plaintiff’s demand.

The plaintiff moved to default Mizzoni and Marini for failure to plead. The trial court granted this motion subject to a ten day grace period for Mizzoni and Marini to file an answer. Marini filed an answer, and by special defense claimed that payments made to another entity should be applied to any amounts that the plaintiff alleged were due. Mizzoni never filed an answer, and, as a result, was defaulted on June 25, 1987.

On August 1, 1989, immediately prior to trial, Mizzoni orally moved to open the default which had been entered against him. The trial court denied the motion and proceeded to a trial of the issues with respect to the other defendants. Mizzoni participated only in the hearing on damages. The court rendered judgment against all defendants. These two appeals by the personal guarantors followed.

I

Mizzoni first claims that the court should have granted his motion to open the default. He argues that neither his counsel at the time the default was entered nor his present counsel ever received notice of the default.

Whether a party has been given notice is a question of fact. Batory v. Bajor, 22 Conn. App. 4, 9, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990). Here, the court, by denying the motion to open, impliedly found that notice had been given. It was Mizzoni’s responsibility to secure an adequate appellate record and, absent any articulation precluding a finding of notice, we read the record so as to sustain the court’s judgment. Practice Book § 4051; see Hadgkiss v. Bowe, 21 Conn. App. 619, 621, 574 A.2d 1303 (1990).

Further, at the August 1, 1989 hearing, counsel for Mizzoni admitted that “because of the change in counsel, I think that was probably one of the reasons that attributed to my lacking notice for the defendant John Mizzoni . . . . ” It does not escape this court’s review that counsel for this defendant unequivocally asserted in his appellate brief that there was never any notice given, yet, at trial, admitted that his own lack of notice was likely due to the substitution of counsel. We therefore find no abuse of discretion in the court’s denial of Mizzoni’s motion to open.

II

Marini claims that the court should not have allowed the credit application into evidence because it was unauthenticated hearsay. He argues that, without this evidence, the plaintiff failed to prove its prima facie case, and the court should have granted his motion to dismiss. Specifically, he contends that the credit application was inadmissible because it failed to satisfy the prerequisites for admission under the business record exception to the hearsay rule, and because it was not authenticated.

Marini failed to raise the objection concerning the business record exception requirements of General Statutes § 52-180 at trial. Only in exceptional circumstances will we review evidentiary claims raised on appeal that differ from those objections raised at trial. See LaFaive v. DiLoreto, 2 Conn. App. 58, 64, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984). Because we find no such exceptional circumstances here, Marini’s claim on appeal is limited to his objection raised at trial, namely, that the credit application is inadmissible because the signatures of the guarantors were not authenticated.

The trial court rejected Marini’s authentication objection because the signatures were not relevant to the issues being tried. Marini’s defense, disclosed in response to the plaintiffs’ demands for disclosure of defense, was claimed payment of the amount owed, not nonexecution of the application. Given Marini’s claimed defense, the trial court did not abuse its discretion in admitting the document.

Ill

Marini’s final claim is that the award of attorney’s fees was improper because the request was made and granted after the plaintiff had rested its case. Whether a trial court will permit further evidence to be offered after the close of testimony in a case is a matter resting in the sound discretion of the court. Toffolon v. Avon, 173 Conn. 525, 537, 378 A.2d 580 (1977). Furthermore, under certain circumstances, a court may award attorney’s fees even when no evidence of the value of a reasonable attorney’s fee has been introduced at trial. Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 386, 494 A.2d 1216, cert. denied, 197 Conn. 808, 499 A.2d 58 (1985). The award of attorney’s fees in this case was well within the court’s discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because Garwood Construction Company has not appealed, we will not concern ourselves with the proceedings with respect to that defendant.

       We will not consider this claim with respect to Mizzoni. In an action at law, the entry of a default operates as a confession by the defaulted defendant of the truth of the material facts alleged in the complaint that are essential to a judgment. United National Indemnity Co. v. Zullo, 143 Conn. 124,129-30,120 A.2d 73 (1956). The entry of a default does not constitute judgment, but it is an order that precludes the defendant from making any further defense insofar as his liability is concerned. Culetsu v. Dix, 149 Conn. 456, 458,181 A.2d 116 (1962). Because Mizzoni had a default entered against him at the time of trial, he was limited to contesting the amount of damages. Kloter v. Carabetta Enterprises, Inc., 186 Conn. 460, 464, 442 A.2d 63 (1983). We conclude, therefore, that he is precluded from challenging the plaintiffs satisfaction of its burden of proof relevant to his personal guarantee. That guarantee is relevant only to his liability, which he is precluded from contesting. The guarantee has no bearing whatsoever on the amount of damages for which he is liable.


author: Daly, J.

text:
    William H. Cashman v. Sullivan and Donegan, P.C.
    (8560)
    Spallone, Daly and Norcott, Js.
    Argued May 3
    decision released August 28, 1990

      William H. Cashman, pro se, the appellant (plaintiff).

      Roger Sullivan, pro se, the appellee (defendant).
   Daly, J.

The plaintiff appeals from the trial court’s denial of his application to vacate an arbitration award. The plaintiff claims that the trial court incorrectly held that he waived his objection to the arbitration proceedings by his continued participation in the proceedings. We affirm the trial court’s judgment.

The facts are not in dispute. On or about June 17, 1986, the defendant law firm filed a grievance against the plaintiff, a former employee, claiming that the plaintiff had removed files and recordings belonging to the defendant. At the suggestion of the grievance committee, the parties agreed to arbitrate their dispute and stipulated that all matters arising out of the plaintiff’s employment by the defendant be submitted to an arbitrator for consideration. The plaintiff agreed to arbitrate only if the defendant withdrew its grievance with prejudice against refiling. On or about October 1,1986, the defendant notified the grievance committee about the arbitration agreement and withdrew its grievance. The statewide grievance committee notified both the defendant and the plaintiff by letters dated February 9, 1987, that it had dismissed the defendant’s complaint without prejudice. Meanwhile, the arbitration had begun on January 7, 1987. The plaintiff soon discovered that the grievance matter had not been withdrawn with prejudice and sent a letter dated November 18, 1987, to the American Arbitration Association (AAA), informing it that he declined to proceed with the arbitration due to the defendant’s failure to withdraw its grievance with prejudice. The defendant responded by letter dated November 20, 1987, to the AAA indicating that it had no intention of refiling the grievance and that it had no control over the action of the grievance committee. In a letter dated November 23,1987, the plaintiff indicated that he would not proceed with the arbitration, reiterating that the arbitrator had no power to arbitrate in light of the defendant’s failure to obtain a dismissal of the grievance with prejudice. The AAA replied by a letter dated November 25,1987, that because the defendant did not intend to refile the grievance, the issue had been removed from the case. Further, the plaintiff was told that he could raise the issue at the next hearing.

The plaintiff took no further action on his objection and proceeded with the arbitration, which resulted in an award on January 3, 1989, in favor of the defendant. The plaintiff then filed an application to vacate the award and the defendant filed an application to confirm it. From the trial court’s denial of the plaintiff’s application, this appeal ensued.

Judicial review of an arbitration award is limited in scope by General Statutes § 52-418. Judicial review is further limited by the parties’ agreement. Waterbury Board of Educations v. Waterbury Teachers Assn., 168 Conn. 54, 63, 357 A.2d 466 (1975); see also, O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133,146, 523 A.2d 1271 (1987); East Hartford v. East Hartford Municipal Employees Union, Inc., 10 Conn. App. 611, 615-16, 525 A.2d 112 (1987), rev’d, 206 Conn. 643, 648, 539 A.2d 125 (1988). The plaintiff’s objection, which is his claim on appeal, is that the defendant breached a condition precedent to the contract and that, contrary to the trial court’s ruling, this claim has not been waived. We need not consider whether the plaintiff waived his claim because there was no breach of the condition precedent. Therefore, because there was no breach of the condition precedent, we conclude there was no procedural violation of the parties’ agreement.

The arbitrator considered the plaintiff’s claim in the letter of November 25, 1987, when he informed the plaintiff that by the defendant’s express intention not to refile, the issue had been removed from the case. Further, the arbitrator told the plaintiff that if he was not comfortable with this resolution, he could raise the claim as a threshold issue at the next hearing. The plaintiff never mentioned the issue again until he sought to vacate the award.

Arbitration is created by a contract between the parties, referred to as the agreement of submission. The written submission defines the powers of the arbitrator, and the parties are bound by the limits they have fixed. It is the submission that generally controls the parties’ rights on judicial review. Bennett v. Meader, 208 Conn. 352, 363, 545 A.2d 553 (1988).

The submission in this case provided in pertinent part that arbitration would involve “all claims, disputes or controversies arising out of the employment or association” of the plaintiff with the defendant. This unrestricted submission empowered the arbitrator to decide all the factual and legal questions presented by the parties. Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584, 440 A.2d 774 (1981). Every reasonable presumption and intendment will be made in favor of the award and of the arbitrator’s acts and proceedings. Id., 585. An award will not be vacated on the ground that the construction placed on the facts or the interpretation of the agreement by the arbitrator was erroneous. Id., 584.

Here, the arbitrator decided that the defendant’s assurance in withdrawing its grievance sufficiently met the plaintiff’s objection. The defendant’s assurance that it would not refile the grievance was binding as one of the terms of the arbitration. Norwich R. C. Diocese Corporation v. S. N. E. Contracting Co., 164 Conn. 472, 476, 325 A.2d 274 (1973); East Hartford v. East Hartford Municipal Employees Union, Inc., supra, 615. Thus, the condition precedent was adequately fulfilled. The arbitrator’s decision was reasonable and within the scope of the parties’ unrestricted submission to arbitrate “all claims, disputes or controversies.” Because the arbitrator ruled within the parameters of the parties’ submission, providing a fair hearing, the award will not be set aside. Bennett v. Meader, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-418 provides in pertinent part: “(a) . . . the . . . court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (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.”