text:
    JANE SHORT v. CONNECTICUT BANK AND TRUST COMPANY ET AL.
    (AC 19981)
    Spear, Pellegrino and Peters, Js.
    Argued June 9
    officially released October 10, 2000

      Richard G. Kascak, Jr., for the appellant (plaintiff).

      Nancy E. Berdon, for the appellees (defendants).
   Opinion

SPEAR, J.

The plaintiff, Jane Short, appeals from the decision of the workers’ compensation review board (board) affirming the workers’ compensation commissioner’s (commissioner) award in favor of her employer, the defendant Connecticut Bank & Trust Company (employer). The sole issue is whether the employer is entitled to a credit, known as a moratorium, against its obligation to pay future workers’ compensation benefits to the plaintiff in an amount equal to the net proceeds from the settlement of the plaintiffs third party personal injury action. The plaintiff asserts that the employer waived its right to a moratorium by its release agreement with the third party tortfeasors. We affirm the decision of the board.

We glean the following facts from the record. On April 29, 1991, the plaintiff suffered a compensable injury while working for her employer. The defendant Travelers Property & Casualty Corporation (Travelers) was the workers’ compensation insurance carrier for the employer and paid the plaintiff $67,396.35 in workers’ compensation benefits. The plaintiff filed a third party action against Hi-Ho Maintenance Services, Inc., and Hi-Ho D’Addario Industries, Inc., claiming that they were responsible for her injuries. The employer intervened in the third party action pursuant to General Statutes § 31-293 (a) to secure a lien on any proceeds that might be forthcoming. By agreement of all of the parties, the claim was settled for the sum of $40,000. The employer received $13,333.33 in satisfaction of its lien, and the plaintiff received $12,007.04 as her share of the net proceeds of the settlement. The agreement was not presented to the commissioner for approval.

Pursuant to § 31-293, the employer sought a ruling from the commissioner that it was entitled to a moratorium against future workers’ compensation benefits in an amount equal to the plaintiffs share of the settlement. The plaintiff contested the request, asserting that the employer had waived its right to a moratorium based on the following language in a release: “Specifically, [the employer and the defendant insurance carrier] release any rights which they may have to recover Workers’ Compensation benefits paid to [the plaintiff] in connection with her April 29,1991 work related left hip injury.” Noting that the plaintiffs assertion was based on “an unartfully-drafted paragraph contained in the Superior Court release,” the commissioner determined that the release ran only to the third party defendants in the Superior Court action and concluded that the employer was entitled to a moratorium. After the board affirmed the commissioner’s decision, the plaintiff filed this appeal.

We are called upon to construe whether the release executed by the employer, Travelers, and the third party defendants was intended to waive the moratorium that would ordinarily be available to the employer by law pursuant to § 31-293. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission Systems, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000). “[T]he interpretation and construction of a written contract present only questions of law, within the province of the court ... so long as the contract is unambiguous and the intent of the parties can be determined from the agreement’s face.” (Internal quotation marks omitted.) Id. “[T]he construction and legal effect of the contract [is] a question of law for the court . . . .” Bria v. St. Joseph’s Hospital, 153 Conn. 626, 632, 220 A.2d 29 (1966). Although the parties disagree as to the legal effect of the contract, neither claims that the language is ambiguous. Accordingly, our review of this question of law is plenary.

The inteipretation of these contract provisions is guided by well established principles of contract law. “A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999).

It is clear that the agreement was intended to release only the third party tortfeasors from any further liability to the defendants. The settlement was in the amount of $13,333.33 as against a hen amount of over $67,000. The second paragraph of the release, on which the plaintiff relies, precludes the employer from any further claim against the third party tortfeasors for the balance of the $67,000 or any other benefits paid to the plaintiff. The employer and Travelers released any rights that they had “to recover Workers’ Compensation benefits paid to [the plaintiff].” There is nothing in this record that indicates that the employer had any right to recover from the plaintiff any of the benefits that it already had paid to her. This language makes sense only if read as releasing the employer’s claim against the third party tortfeasors. The moratorium operates in futuro as to benefits that may become payable; it does not apply to the benefits that already have been paid. As the release references only paid benefits, the parties could not have intended to affect a moratorium by the release.

The plaintiff also asserts that because there was no agreement between the parties as to a moratorium, the commissioner improperly created an agreement to the effect that a moratorium existed. This claim fails for two reasons. First, the commissioner did not “make a contract” between the employer and the plaintiff. He interpreted the language of the release and concluded that nothing in that language constituted a waiver of the employer’s right to a moratorium. Second, the employer’s right to a moratorium is created by § 31-293, and not by agreement. We conclude, on the basis of the language of the contract, that the parties intended to release the third party tortfeasors, but that they had no intent to waive the employer’s right to a moratorium.

In light of our resolution of the waiver claim, it is not necessary for us to discuss whether reversing the decision of the board would result in a “double recovery” for the plaintiff. The release agreement did not waive the employer’s right to a moratorium, and, therefore, the double recovery issue is eliminated.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The plaintiff also raised three other issues: (1) “Whether the commissioner lacked jurisdiction to interpret and determine the terms of the private settlement, agreement entered into by the parlies in relation to the third party action as well as the terms, if any, relating to the existence of and application of a moratorium”; (2) “Since the amount of the settlement in the third party action did not exceed the amount of workers’ compensation benefits paid, and since the workers’ compensation insurer accepted monies from that settlement, which were less than the outstanding liens, whether the commissioner erred in concluding that there would be a moratorium in the absence of a written agreement previously approved by the commissioner so providing”; and (3) “Whether the trial commissioner erred in finding that no evidence was submitted contemplating a full release of [the employer’s] claimed credit.” At oral argument, the plaintiff conceded that similar claims to those raised here were resolved adversely to her position in Schiano v. Bliss Exterminating Co., 57 Conn. App. 406, 408, 750 A.2d 1098 (2000). We reject the claims on the basis of Schiano and see no need to address them further.

       General Statutes § 31-293 (a) provides: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (tí) of section 31-284, a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury; and any employer or the custodian of the Second Injury Fund, having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If the employee, the employer or the custodian of the Second Injury Fund brings an action against such person, he shall immediately notify the others, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate. In any case in which an employee brings an action against a party other than an employer who failed to comply with the requirements of subsection (b) of section 31-284, in accordance with the provisions of this section, and the employer is a party defendant in the action, the employer may join as a party plaintiff in the action. The bringing of any action against an employer shall not constitute notice to the employer within the meaning of this section. If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting the recovery. The rendition of a judgment in favor of the employee or the employer against the party shall not terminate the employer’s obligation to make further compensation which the commissioner thereafter deems payable to the injured employee. If the damages, after deducting the employee’s expenses as provided in this subsection, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. No compromise with the person by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by him. For the purposes of this section, the claim of the employer shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of the injury. The word ‘compensation’, as used in this section, shall be construed to include incapacity payments to an irqured employee, payments to the dependents of a deceased employee, sums paid out for surgical, medical and hospital services to an injured employee, the burial fee provided by subdivision (1) of subsection (a) of section 31-306, payments made under the provisions of sections 31-312 and 31-313, and payments made under the provisions of section 31-284b in the case of an action brought under this section by the employer or an action brought under this section by the employee in which the employee has alleged and been awar ded such payments as damages. Each employee who brings an action against a party in accordance with the provisions of this subsection shall include in his complaint (A) the amount of any compensation paid by the employer or the Second Injury Fund on account of the injury which is the subject of the suit and (B) the amount equal to the present worth of any probable future payments which the employer or the Second Injury Fund has, by award, become obligated to pay on account of the injury. Notwithstanding the provisions of this subsection, when any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury and the injured employee has received compensation for the injury from such employer, its workers’ compensation insurance carrier or the Second Injury Fund pursuant to the provisions of this chapter, the employer, insurance carrier or Second Injury Fund shall have a lien upon any judgment received by the employee against the party or any settlement received by the employee from the party, provided the employer, insurance carrier or Second Injury Fund shall give written notice of the lien to the party prior to such judgment or settlement.”

       The full text of the release is as follows: “Travelers Insurance and Connecticut Bank & Trust Company, for and in consideration of the sum of $13,333.33 (Thirteen Thousand Three Hundred Thirty-Three and 33/100 Dollars) to be paid by, or on behalf of Hi-Ho Maintenance and D’Addario Industries release and forever discharge Hi-Ho Maintenance and D’Addario Industries, their heirs, executors and administrators, of any and all actions, suits, claims, demands and rights which they may have against them, their heirs, executors and administrators, as a result of Travelers Insurance’s and Connecticut Bank & Trust Company’s payment of Workers’ Compensation benefits with regard to the matter, Jane Short v. Connecticut Bank & Trust Company, Worker’s Compensation Commission, Fourth District, File Number 400005087.
      “Specifically, the undersigned release any rights which they may have to recover Workers’ Compensation benefits paid to Jane Short in connection with her April 29, 1991 work related left hip injury.”

       In requesting that we reverse the board’s decision, the plaintiff briefed her claim that “a holding that the [employer] is not entitled to any type of credit for proceeds received by the [plaintiff] is not contradictory to the public policy against double recovery.”


source: Caselaw Access Project

author: ZARELLA, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. GREGORY BURRUS
    (AC 18881)
    Lavery, C. J., and Landau and Zarella, Js.
    Argued May 10
    officially released October 10, 2000

      Robert W. Smith, for the appellant (defendant).

      RitaM. Shair, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Kathleen E. McNamara, assistant state’s attorney, for the appellee (state).
   Opinion

ZARELLA, J.

The defendant, Gregory Burrus, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the first degree in violation of General Statutes § 53a-122 (a) (4). On appeal, the defendant claims that the trial court improperly (1) found that there was sufficient evidence to support the jury’s verdict and (2) failed to instruct the jury on an essential element of the offense charged. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In February, 1992, the defendant applied to the department of transportation (department) to provide taxi service as Washington Cab Company. The application included a document called the “Taxi Over-Ten-Mile Tariff,” which provided that a trip ten miles or more is charged at a flat rate of $1.75 per mile. On November 5, 1992, the defendant attended a hearing in which his permit was being considered for approval. At that hearing, he again learned about rates. Upon approval by the department, the defendant registered his car as a taxi with the department and received his taxicab license plates.

In February, 1993, the defendant was approved as a medical transportation provider for the department of social services (social services) for medicaid recipients. As part of the social services manual, the defendant received all of social services’ policies and procedures and sample billing forms. The defendant also received a copy of the “Taxi Over-Ten-Mile Tariff” form and a mileage guide.

Social services reimburses a contracted driver at the metered rates if the trip is under ten miles and, if more than ten miles, at the flat rate of $1.75 per mile. An accounts examiner for social services discovered irregularities in the defendant’s billing amounts from October to December, 1993. A further review of the defendant’s billing history showed that the defendant had overtoiled the medicaid program for travel provided to at least twenty-eight medicaid recipients. The total amount of the defendant’s overbilling exceeded three hundred thousand dollars. After social services audited the defendant’s billing, the defendant admitted that he prepared all the billings himself so his employees would not know the amount of his earnings.

On July 30, 1998, the jury returned a verdict of guilty of one count of larceny in the first degree. On September 18, 1998, the court sentenced the defendant to a total effective sentence of ten years, execution suspended after four years, and five years probation. This appeal followed. Additional facts will be set forth as they become relevant in the context of the defendant’s claims.

I

The defendant claims first that the court improperly found that there was sufficient evidence to support the jury’s verdict. We disagree.

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. . . . State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993). In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). The jury’s function as the trier of fact is to draw all reasonable and logical inferences from the facts as it finds them to exist. State v. Wideman, 36 Conn. App. 190, 203, 650 A.2d 571 (1994), cert. denied, 232 Conn. 903, 653 A.2d 192 (1995). As a reviewing court, we must decide whether, on the facts established and inferences that could be reasonably drawn from those facts, the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991).” (Internal quotation marks omitted.) State v. Torrence, 37 Conn. App. 482, 485, 657 A.2d 654 (1995).

General Statutes § 53a-122 (a) provides in relevant part: “A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars.” General Statutes § 53a-119, in defining larceny, provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to . . . (6) Defrauding of public community. A person is guilty of defrauding a public community who (A) authorizes, certifies, attests or files a claim for benefits or reimbursement from a local, state or federal agency which he knows is false; or (B) knowingly accepts the benefits from a claim he knows is false; or (C) as an officer or agent of any public community, with intent to prejudice it, appropriates its property to the use of any person or draws any order upon its treasuiy or presents or aids in procuring to be allowed any fraudulent claim against such community. ...”

The defendant moved for a judgment of acquittal at the end of the state’s case-in-chief and at the conclusion of trial. The defendant claims that the state failed to prove that he intended to defraud a public community. The defendant argues that his contract with social services had no set rate, and, therefore, the rate charged by the defendant and paid by the state was not fraudulent. The defendant claims that he was performing lively, not taxi, services and that that distinction explains the differences in billings.

While the defendant’s contract with social services contained no set rate for services, it is obvious from the language of the contract that it was a contract drafted to cover a variety of different service providers. Specifically, the contract provided that the defendant was to “[rjender service or services as specified in the Standard Application Form . . . .”

On his application, the defendant selected “taxi” and not “livery” as his transportation specialty and he listed his taxicab certificate number. As part of his application, the defendant signed a “Taxi Over-Ten-Mile Tariff’ form. The mileage rate on that form is specifically listed as $1.75 per mile. The form also lists the defendant’s taxi certificate number, and the defendant’s signature appears at the bottom. Further, the jury heard extensive evidence about the defendant defrauding the state, specifically, the defendant’s submission of high numbers of bills, escalating charges and billings for more trips than had been made. For instance, medical records for several medicaid clients and the bills submitted for those clients showed overbilling. The jury also heard testimony that revealed that while the defendant had applied for a livery license after he had provided taxi services, that application was subsequently withdrawn and no livery license was ever obtained.

Upon a review of the record and after consideration of the arguments of counsel, we conclude that there was sufficient evidence presented from which the jury reasonably could have found that all of the elements of larceny in the first degree had been proven beyond a reasonable doubt.

II

The defendant claims next that the court improperly failed to instruct the jury on an essential element of the offense charged. Specifically, he claims that the court failed to include in its jury charge instructions concerning consent as an element of larceny. The defendant concedes that he failed to preserve this claim at trial and now asks for relief pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. “The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. . . . We may . . . dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” (Citation omitted; internal quotation marks omitted.) State v. Dunbar, 37 Conn. App. 338, 341, 656 A.2d 672, cert. denied, 233 Conn. 906, 657 A.2d 644 (1995).

In the present case, the record is adequate to review the defendant’s claim. The defendant also has alleged a claim of constitutional magnitude. State v. Floyd, 253 Conn. 700, 706-707, 756 A.2d 799 (2000). We conclude, however, that the defendant’s claim fails the third prong of Golding because the alleged constitutional violation does not clearly exist and did not clearly deprive the defendant of a fair trial.

A conviction for larceny in the first degree, pursuant to § 53a-122 (a) (4), requires that a person commit larceny as defined by § 53a-119 and that the property be obtained by defrauding a public community. Larceny as defined by § 53a-119 includes, but is not limited to, defrauding a public community by filing a claim for benefits or reimbursement from a local, state or federal agency that is known to be false or knowingly accepting benefits from a claim that is known to be false. The defendant cites no authority for the proposition that lack of consent is an element of the crime of larceny. We conclude, therefore, that the defendant failed to show that the court’s instruction to the jury on the offense charged clearly deprived him of a fair trial. Accordingly, the defendant’s claim fails under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-122 (a) provides in relevant part: “A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars.”

       The defendant’s brief raises four issues. The first three issues concern the sufficiency of evidence presented by the state. The defendant claims that the court improperly denied his motion for judgment of acquittal at the conclusion of the state’s case-in-chief and at the conclusion of trial. Further, the defendant claims that the court improperly found that there was sufficient evidence to support the jury’s verdict. The defendant, by electing to proceed and put on his own evidence after the denial of his motion for judgment of acquittal at the end of the state’s case-in-chief, waived his right to appellate review of the sufficiency of the evidence at end of the state’s case-in-chief. State v. Spillane, 54 Conn. App. 201, 206, 737 A.2d 479, cert. granted on other grounds, 251 Conn. 914, 740 A.2d 866 (1999). The defendant’s first two claims require the same analysis as the sufficiency claim, and, therefore, we will address only the sufficiency claim.

       Local trips of nine miles or fewer are based on metered rates.


author: SPEAR, J.

text:
    DONNA L. KROLL ET AL. v. KENNETH W. STEERE
    (AC 19276)
    Schaller, Spear and Pellegrino, Js.
    Argued May 8
    officially released October 10, 2000

      William C. Kroll, for the appellant (named plaintiff)

      Ralph J. Monaco, with whom, on the brief, was 'Thomas J. Londregan, for the appellee (defendant).
   Opinion

SPEAR, J.

The plaintiff Donna L. Kroll appeals from the judgment of the trial court rendered after it granted the motion for summary judgment filed by the defendant, Kenneth W. Steere, the zoning enforcement officer of Groton Long Point Association, Inc., a municipal corporation. The plaintiffs amended complaint alleged that the defendant infringed on her right to free speech, and enforced a sign ordinance against her in a discriminatory and selective manner. The plaintiff raises ten claims in her brief, only three of which warrant review. She claims that the summary judgment was improper because (1) there is a question of material fact as to whether a “mural” she placed on her property was a sign that was subject to the size limitation of § 3.20 of the zoning regulations, (2) the sign size limitation improperly infringed on her constitutional right of free speech and (3) the court improperly found that the allegations of her amended complaint regarding selective and discriminatory enforcement of the sign ordinance were inadequate. We affirm the judgment of the trial court as to the first two claims. We reverse the judgment of the trial court on the selective enforcement claim.

We glean the following facts and procedural history from the court’s memorandum of decision and the record. The plaintiff owned certain residential property in Groton Long Point. On or about August 1, 1997, the plaintiff placed a twenty square foot piece of plywood against her garage. On the plywood was a painting of two deer with the words, “Who Asked the Deer?” At an earlier time, the officers and directors of Groton Long Point Association, Inc., had recommended the adoption of an ordinance that allowed deer hunting with bows and arrows and shotguns.

The defendant contacted the plaintiff and ordered her to “cease and desist” by removing the alleged mural because it violated § 3.20 of the zoning regulations of Groton Long Point Association, Inc. The plaintiff then commenced an action against the defendant, alleging a violation of 42 U.S.C. § 1983. The plaintiff claimed that the cease and desist order improperly infringed on her right to freedom of speech pursuant to the United States and Connecticut constitutions, and that the defendant improperly and in a discriminatory manner engaged in selective enforcement of the zoning regulations against her despite the presence of many other signs in Groton Long Point that violated the size limitations of § 3.20. The defendant moved for summary judgment, and the court granted the defendant’s motion. This appeal followed.

We first state our standard of review in summary judgment matters. “The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Tarsia v. Great Atlantic & Pacific Tea Co., 52 Conn. App. 136, 145, 727 A.2d 219, cert. granted on other grounds, 248 Conn. 920, 734 A.2d 569 (1999).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995). On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous. 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994). Kramer v. Petisi, 53 Conn. App. 62, 66-67, 728 A.2d 1097, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).” (Internal quotations marks omitted) Tryon v. North Branford, 58 Conn. App. 702, 706-707, 755 A.2d 317 (2000).

I

The plaintiff first claims that there is a question of material fact as to whether her “mural” was a sign that could be precluded by the size limitations of § 3.20 of Groton Long Point Association, Inc., zoning regulations. We disagree.

Our review of the pleadings, affidavits and other documents in the record convinces us that there was no dispute about any of the physical characteristics of the subject piece of plywood and what was painted on it. The court properly concluded that it was a question of law whether the object was a mural or a sign. The plaintiff claimed that it was a “mural,” but offered nothing other than her assertion to that effect. The court relied on Webster’s New World College Dictionary (3d Ed.), which defines a mural as “a picture, esp. a large one, painted directly on a wall or ceiling, or a large photograph, etc; attached directly to a wall.” There is no dispute that the piece of plywood was only placed against the plaintiffs garage wall; it was not a part of the wall. The plywood was movable, and the plaintiff in fact moved it to a different location. We cannot say that the court improperly rejected the plaintiffs claim that the piece of painted plywood was a mural.

Again, resorting to Webster’s New World College Dictionary (3d Ed.), the court found that “sign” is defined as “[a] publicly displayed board, placard, etc. bearing information, advertising, a warning, etc.” It is undisputed that the plaintiff wanted to convey the message that killing deer was wrong and that she was opposed to it. The word “sign” was not defined in the zoning regulations; therefore, it was proper for the court to adopt the ordinary meaning of the word. See Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 153, 543 A.2d 1339 (1988). We conclude that the plaintiffs claim is without merit.

II

The plaintiff next claims that even if the plywood board is considered a sign, the size limitation improperly infringed on her constitutional right to freedom of speech. She claims in her brief that § 3.20 is “unconstitutional in violation of the first and fourteenth amendments to the United States constitution.” We disagree.

The plaintiff briefs and relies on a single case, Ladue v. Gilleo, 512 U.S. 43, 114 S. Ct. 2038, 129 L. Ed. 2d 36 (1994). In Gilleo, an ordinance of the city of Ladue, a suburb of St. Louis, Missouri, banned, with ten exemptions, all residential signs. The plaintiff placed an eight and one-half inch by eleven inch sign in one of her windows stating: “For Peace in the Gulf.” (Internal quotation marks omitted) Id., 46. Although the sign was within the one square foot size limitation of the city ordinance, it was not within one of the ten exemptions to Ladue’s ban on residential signs. Id., 46-47.

The United States Supreme Court held that the ordinance impermissibly violated the plaintiffs first amendment right of free speech. Id., 58-59. The court stated: “It is common ground that governments may regulate the physical characteristics of signs . . . Id., 48. The problem in that case was that the city’s regulation almost totally banned all residential signs in the interest of minimizing visual clutter and, therefore, its exemptions discriminated on the basis of the sign’s content. Id., 55-56.

In contrast, § 3.20 makes no attempt to regulate the content of residential signs. The court correctly noted that “[t]he government has a significant interest in the regulation of signs in order to maintain the safety of vehicular traffic.” The plaintiff concedes that her sign was designed to attract the attention of passing motorists. In Gilleo, the United States Supreme Court pointed out that “[u]nlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.” Ladue v. Gilleo, supra, 512 U.S. 48. We conclude that the enforcement of § 3.20 of the zoning regulations did not infringe on the plaintiffs constitutional right to freedom of speech.

Ill

The plaintiff finally claims that the court improperly rendered summaiy judgment for the defendant on her claim that the defendant selectively enforced § 3.20 of the zoning regulations in a discriminatory fashion against her while allowing other signs to remain undisturbed. The court granted summary judgment as to this claim because “[t]his part of the [amended] complaint fails to plead facts which will provide the court with the identification of others similarly situated with which to compare the plaintiffs treatment and does not provide allegations as to the exact nature of the violations.” As to this aspect of the summary judgment motion, the court treated it as a motion to strike and ruled that the allegations of the [amended] complaint were insufficient. When assessing whether the allegations of a complaint are legally sufficient pursuant to a motion to strike, the court assumes that all well pleaded facts are true. We disagree with the court’s legal conclusion that the plaintiffs allegations were insufficient to state a cause of action based on discriminatory, selective enforcement of § 3.20.

Because this issue is a question of law, our review is plenary. The plaintiffs amended complaint alleged that “there were countless readily visible violations of ‘3.20’ in Groton Long Point, some having been there for months, but most having been there for years.” She also alleged a specific violation by the vice president of Groton Long Point Association, Inc., who “put up three (3) signs all measuring 18 inches [by] 26 inches that supported political candidates [on a lot] next door to the plaintiffs home.” Moreover, the plaintiff alleges that the defendant “never took any action against any of the homeowners in Groton Long Point for the myriad of violations on people’s homes in Groton Long Point as well as real estate for sale signs that violated ‘3.20.’ ” (Emphasis added)

Contrary to the trial court, we conclude that the plaintiffs allegations are sufficient. The specific identification of those homeowners with signs that violated the size limitations of § 3.20 would be a matter of proof at trial. Bianco v. Darien, 157 Conn. 548, 254 A.2d 898 (1969), relied on by the court in its memoiandum of decision, is not to the contrary. In Bianco, the plaintiffs claimed that by taking action against them and failing to enforce its zoning regulations against other violators, the defendant town violated the plaintiffs’ right to equal protection under the law. Id., 559. Our Supreme Court stated that “[m]ere laxity in the administration of the law, no matter how long continued, is not and cannot be held to be a denial of the equal protection of the law. To establish arbitrary discrimination inimical to constitutional equality, there must be something more, something which in effect amounts to an intentional violation of the essential principle of practical uniformity.” (Internal quotation marks omitted.) Id., 559-60. In Bianco, the trial court had a full trial on the plaintiffs’ injunction action against the town of Darien. Id., 552. It was only alter a full trial that the court; found that the plaintiffs had not shown the nature or location of the other alleged violations on the street on which the plaintiffs’ business was located. Id., 560. We conclude that the court in this case improperly granted summary judgment for the defendant on the plaintiffs claim of selective enforcement of § 3.20.

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion for summary judgment as it applies to the plaintiffs claim of selective enforcement of § 3.20 of the zoning regulations. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The other plaintiff in this action is William Stuart. Only Kroll has appealed. We therefore refer in this opinion to Kroll as the plaintiff.

       The plaintiff makes the following claims:
      “1. Did the court err and abuse its discretion in finding there was no genuine issue as to any material fact based on the pleadings, affidavits and other proof before the court?
      “2. Did the court err and abuse its discretion in finding that, [General Statutes §] 8-2 with regard to ‘the height, size and location of advertising signs and billboards’ gave the Zoning Officer and the Zoning Board the power to regulate a sign/mural protesting a deer kill that was placed on her property?
      “3. Did the court err and abuse its discretion in finding that the Plaintiff’s (Appellant’s) sign/mural was an advertising sign(s) and or billboard?
      “4. Did the court err and abuse its discretion by permitting the Zoning Officer to define ‘sign’ when the Groton Long Point Association, Inc.’s, Zoning Regulations had no definition for the word ‘sign?’
      “5. Did the court err and abuse its discretion in finding that the Groton Long Point Zoning Regulation 3.20 as written bestowed power upon the Zoning Official to regulate a political protest on the Appellant’s property in light of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S. Ct. 2038, 129 L. Ed. 2d 36 (1994)?
      “6. Did the court err and abuse it discretion in finding that the Plaintiff displayed a sign and not a mural in violation of 3.20 of the Groton Long Point Zoning Regulations?

        “7. Did the court err and abuse its discretion in finding that 3.20 as written did not afford commercial speech greater protection than noncommercial speech as distinguished in Ladue v. Gilleo?

      “8. Did the court err and abuse its discretion in finding that there was no proof before the court that the Plaintiff’s rights under the 14th amendment to the United States constitution were violated by selective enforcement of 3.20 of the Zoning Regulations?
      “9. Did the court err and abuse its discretion when it was aware at oral argument relative to the Motion for Summary Judgment on October 5,1998, that the Plaintiff had been unable to taire the deposition of the Defendant, and further ordered the Defendant’s counsel to make a date available to take the Defendant’s deposition and then failed and or refused to consider the testimony of the defendant (appellee) after the transcript became available?
      “10. Did the court err and abuse its discretion in footnote #1 of its Memorandum of Decision dated December 18, 1998, when it refused to consider a letter to the Zoning Enforcement Officer as evidence marked as ‘Exhibit #4 to plaintiff’s Memorandum In Opposition To Summary Judgment’ when the Court had two separate exhibits signed under oath by the Plaintiff and Defendant that were attached to the Defendant’s Memorandum in Support of Motion For Summary Judgment that indicate the Plaintiff’s Counsel sent Exhibit #4 to the Defendant, Kenneth Steere and Kenneth Steere acknowledging receipt of said letter (exhibit #4) in his affidavit?”
      The plaintiff’s first and fifth claims are set out as issues one and two in this opinion. Her eighth claim is issue three in this opinion. Her other claims will not be discussed for the following reasons.
      The second, third and fourth claims were not raised in the trial court. We are not required to review claims that were not distinctly raised in the trial court. Practice Book § 60-5; see Bell Atlantic Mobile, Inc. v. Dept. of Public Utility Control, 253 Conn. 453, 485, 754 A.2d 128 (2000). As to the fourth claim, the plaintiff’s brief is not altogether clear, but the complaint seems to be that the defendant made certain statements at his deposition that there were political signs in town that were larger than one square foot. The plaintiff points to nothing in her brief that shows that the defendant defined what a “sign” is or that the comt took any such definition into account.
      The plaintiffs sixth and tenth claims are subsumed in the discussion of issues one and three in this opinion. Issues seven and nine were not addressed by the court and, therefore, the record is inadequate to review them.

       Section 3.20 of the zoning regulations of Groton Long Point Association, Inc., provides: “[0]nly one sign of not over one (1) square foot in area may be displayed on any building in any district, except as provided in Sections 4.1.6 and 5.3.1 provided one (1) sign not over four (4) square feet in area may advertise for sale the land or buildings upon which it is displayed. Any such sign shall be removed not later than forty-eight (48) hours after closing of the advertised sale. During the construction of a building, similar signs may advertise the name of the architect, contractor, or material suppliers for such building. No illuminated sign shall be permitted in any district.”

       Section 1983 of title 42 of the United States Code provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party ipjured in an action at law, suit in equity, or other proper proceeding for redress . . . .” 42 U.S.C. § 1983 (Sup. II 1996).

       “The full catalog of exceptions, each subject to special size limitations, is as follows: ‘[MJunicipal signs;’ ‘[subdivision and residence identification’ signs; ‘[r]oad signs and driveway signs for danger, direction, or identifica-lion'; ‘[h]ealth inspection signs’; ‘[s]igns for churches, religious institutions, and schools’ (subject to regulations set forth in [the ordinance]; ‘identification signs’ for other not-for-profit organizations; signs ‘identifying the location of public transportation stops’; ‘[gjround signs advertising the sale or rental of real property,’ subject to the conditions, set forth in [the ordinance], that such signs may ‘not be attached to any tree, fence or utility pole’ and may contain only the fact of proposed sale or rental and the seller or agent’s name and address or telephone number; ‘ [c] ommercial signs in commercially zoned or industrial zoned districts,’ subject to restrictions set out elsewhere in the ordinance; and signs that ‘identify] safety hazards.’ ” Ladue v. Gilleo, supra, 512 U.S. 47 n.6.

       See Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 32 n.17, 699 A.2d 964 (1997), in wMch our Supreme Court reviewed amotion for summary judgment as if it were a motion to strike testing the legal sufficiency of the allegations of a claim under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., because the parties treated the matter in that fashion. Footnote 17 in Haynes states: “We review this issue, as the plaintiff and the defendants did in their arguments before this court, as if the motion for summary judgment were a motion to strike testing the legal sufficiency of the allegations of the CUTPA claim. Accordingly, we decide the issue raised by the parties as if the allegations of fact were true.” We also note that the plaintiff has raised no claim that she should have been allowed to plead over after the trial court granted summary judgment on the ground that the allegations of her complaint were insufficient.


author: SCHALLER, J.

text:
    ROBERT DESALLE, SR. v. GUSTAF T. APPELBERG ET AL.
    (AC 18774)
    Sehaller, Hennessy and Zarella, Js.
    Argued April 5
    officially released October 10, 2000

      David M. Woilman, with whom were David W. Rubin and, on the brief, Donald R. Kiefer, for the appellant-appellee (plaintiff).

      Stanton H. Lesser, for the appellees-appellants (named defendant et al.).
   Opinion

SCHALLER, J.

The plaintiff, Robert DeSalle, Sr., appeals and the defendants Gustaf T. Appelberg (individual defendant) and Appelberg, Inc., now known as A-l Sign Company, Inc. (corporate defendant), cross appeal from the judgment of the trial court awarding the plaintiff damages against the defendants for breach of contract. On appeal, the plaintiff claims that the court improperly interpreted the parties’ contract in finding only the corporate defendant liable for a purchase money loan (note). The defendants claim that the court improperly awarded the plaintiff the full purchase price of the contract without reducing that amount by the damages caused by the plaintiff’s breach of a covenant not to compete. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. In 1989, the plaintiff was the owner and operator of A-l Sign Company, Inc. (A-l Sign), a sign manufacturing business located in Bridgeport. After becoming interested in selling the business, the plaintiff engaged the services of a broker to assist in the sale. In October, 1989, the broker was contacted by the individual defendant in connection with the possible purchase of the plaintiffs business. From October, 1989, to May, 1990, the individual defendant and others considered and evaluated the purchase of the plaintiffs business for $450,000. The individual defendant was reluctant because he did not believe that the sales level demanded apurchase price of $450,000. After reviewing numerous materials provided by the plaintiff, the individual defendant was satisfied that the business could produce annual gross sales in the area of $600,000. Thereafter, on May 21, 1990, the parties entered into an asset purchase agreement.

The final purchase price for the plaintiffs business was in the amount of $450,000 payable as follows: (1) $7000 at the signing of the agreement; (2) $63,000 to be paid at the time of the closing; (3) “350,000 on the date of the closing by the way of a purchase money loan from Seller to Buyer”; and (4) $30,000, without interest, payable in four quarterly installments commencing on September 1, 1990.

The agreement contained a covenant not to compete by the plaintiff. The agreement also contained an allocation of the purchase price allocating avalué of $300,000 for the covenant not to compete. The agreement was made between the corporate defendant and the plaintiff. At the time the documents were signed, the plaintiff also executed an employment agreement and an indemnification agreement. The assets of A-l Sign were transferred to the corporate defendant, which thereafter changed its name to A-l Sign Company, Inc.

The plaintiff received payments from the defendants at or before the closing in the amounts of $7000 and $63,000. The defendants, however, failed to pay the balance of the $380,000 as provided for in the contract.

The plaintiff brought this action against the defendants alleging, inter alia, breach of contract and failure to pay a promissory note. After a trial to the court, the court found the corporate defendant liable on the promissory note. The court also found both the corporate and individual defendants hable for the quarterly payments in the amount of $30,000. The plaintiff has appealed from this judgment, and the defendants have cross appealed. Additional facts will be set forth as necessary.

I

The plaintiff claims that the court improperly interpreted the parties’ contract in finding only the corporate defendant liable on the note. We disagree.

The issue of a defendant’s liability ordinarily involves a mixed question of fact and law for the trier to determine. In this case, however, the issue at hand presents us with a challenge to the factual basis of the trial court’s decision. See Shetucket Plumbing Supply, Inc. v. Processes, Inc., 3 Conn. App. 504, 505-506, 490 A.2d 93 (1985). “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Citation omitted.) Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

In his amended complaint, the plaintiff alleges, inter alia, breach of contract against the defendants. The plaintiff contends that the coiporate defendant and the individual defendant are both hable on the note for the purchase price in the agreement. The crux of the plaintiffs claim is that the language of the contract itself imposes liability on the individual defendant for the note. The plaintiff asserts that the individual defendant is “specifically defined as a ‘Buyer’ in the contract and he executed the contract individually.” Next, the plaintiff notes that “[a]t [the] closing, both parties [agreed] to a ‘purchase money loan’ from ‘Seller’ to ‘Buyer. ’ ” The plaintiff therefore concludes that “if those provisions of the agreement are to be given effect, it is apparent that [the individual defendant], as well as [the corporate defendant], both are hable for the entire balance of the purchase price payable after the closing, both the $350,000 [note] as well as the unsecured $30,000 contract balance.” The plaintiffs line of reasoning is unpersuasive.

General Statutes § 42a-3-401 (a) provides in relevant part: “A person is not liable on an instrument unless (i) the person signed the instrument . . . .” The trial court specifically found that the note was signed by “Gustaf T. Appelberg in his capacity as president and [contained] no signature nor indication of personal liability on the individual defendant other than the stock pledge agreement.” (Emphasis added.) Furthermore, under the agreement, the defendants satisfied their obligation by producing the note at the closing. On the whole record, the conclusions of the trial court challenged here are legally and logically correct, and the facts set out in the court’s memorandum of decision find ample support in the evidence. We, therefore, conclude that the plaintiff’s claim must fail.

II

The defendants claim that the court improperly awarded the plaintiff the full purchase price of the contract without reducing that amount by the damages caused by the plaintiff’s breach of a covenant not to compete. We disagree.

Subsequent to the sale of the assets, problems arose between the respective parties. The parties agreed that the plaintiff would not continue to work for the defendants after October, 1990. The parties, however, were in dispute as to when in October, 1990, the plaintiffs employment would end and as to the circumstances giving rise to that event. The plaintiff alleged that the defendants told him that the company could not afford to pay him and that he should see his lawyer. The defendants claimed, on the other hand, that the plaintiff failed to return to work and, therefore, breached the employment agreement. The defendants further alleged that the plaintiff began competing with the defendants in breach of the covenant not to compete.

The defendants claim that the court improperly awarded the plaintiff the full purchase price for the business, which included $300,000 for the covenant not to compete, while allowing the plaintiff to keep profits obtained from his breach of the covenant. Therefore, the defendants claim that the court’s decision actually awards the plaintiff a double benefit.

The court made specific findings regarding this matter. The court found that there are certain facts that indicate that the plaintiff continued to work for the defendants after the September, 1990 meeting and the subsequent meeting at a diner. See footnote 7. Accordingly, the court found that the defendants “terminated the plaintiffs employment in the latter part of October, 1990, and therefore the failure of the plaintiff to continue working was not a breach of the employment agreement.” (Emphasis added.) Moreover, the court found that there was no evidence “sufficient to demonstrate that the plaintiff violated the noncompetition provisions of the agreement until after his employment was terminated and at a time when interest payments were not being made pursuant to the note and quarterly installments called for in the agreement had not been paid.”

On the whole record, the conclusions challenged here are legally and logically correct, and the facts set out in the court’s memorandum of decision find ample support in the evidence. We, therefore, conclude that the court’s conclusions must stand.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Gustaf T. Appelberg, A-l Sign Company, Inc., David L. Quatrella and Martin J. O’Neill. Only the defendants Gustaf Appelberg and A-l Sign Company, Inc., have appealed, and we refer in this opinion to those defendants as the defendants.

       A-l Sign Company, Inc., is a Connecticut corporation wholly owned by the individual defendant.

       This appeal follows a retrial of the case after this court reversed the judgment and remanded the case for a new trial. See DeSalle v. Appelberg, 44 Conn. App. 323, 688 A.2d 1356 (1997).

       The agreement further provided that “[s]aid loan shall be evidenced by a promissory note . . . and shall be secured by a pledge of stock in E-L, Technologies, Inc., owned by [the individual defendant].” The promissory note referred to in the agreement was executed by the individual defendant in his capacity as president of the corporate defendant. There is no promissory note executed by the individual defendant in his individual capacity.

       Both parties agreed that the defendants failed to make payments called for in the asset purchase agreement except for the first interest payment provided for in the promissory note. The plaintiff claimed that the defendants breached the agreement because the first quarterly payment of $7500 due on September 1, 1990, was not made. The defendants claimed, and the trial court found, that the parties agreed to defer the September 1,1990 payment until December, 1990.

       Count one of the plaintiffs amended complaint alleges liability against the defendants for breach of contract in failing to make interest and quarterly payments. Although count one does not expressly assert that the individual defendant is liable for the purchase price, i.e., for his failure to pay on the promissory note, the court stated that “[t]he procedural history of the case including the proceedings before the attorney trial referee, who previously tried this case, and subsequent proceedings clearly indicate that the plaintiff is attempting to claim that the individual defendant is liable for the purchase price.”

       The defendants claim that after a meeting in September, 1990, in which there was an agreement 1o postpone the quarterly payment until December, 1990, the plaintiff and a representative of the defendants met at a diner where certain sums of money owed to the plaintiff were paid to him. It is after this meeting, the defendants claim, that the plaintiff never returned to work.


text:
    MAFCOTE INDUSTRIES, INC. v. GANNICOTT LIMITED
    (AC 19167)
    Zarella, Pellegrino and O’Connell, Js.
    Argued June 13
    officially released October 10, 2000

      David S. Doyle, for the appellant (plaintiff).

      Myles F. McDonald, Jr., for the appellee (defendant).
   Opinion

ZARELLA, J.

The plaintiff appeals from the judgment of the trial court rendered in favor of the defendant. The plaintiff claims that the court improperly (1) found that there could not be a breach of the implied warranty of fitness for a particular purpose in the absence of an express warranty and (2) failed to enforce the agreement of the parties. We affirm the judgment of the trial court.

The court found the following facts. The plaintiff, Mafcote Industries, Inc., is located in Norwalk and produces various types of paper products. The defendant, Gannicott Limited, is a manufacturer of equipment located in Ontario, Canada. The plaintiff purchased a “sheeter” machine from the defendant pursuant to a purchase order dated January 12, 1993. The plaintiff paid the purchase price of $256,140 in full. The purchase order contained a warranty that covered “all Line parts and the proper functioning of the machine for 1 year or 2000 hours, whichever [is] less, after completed installation.” The machine was manufactured specifically for the plaintiff according to the plaintiffs specifications.

In April, 1993, the plaintiffs plant manager, Peter Rohde, a mechanical engineer, inspected the machine at the defendant’s plant in Canada. Rohde witnessed the machine’s operation and reported to the plaintiffs president that he was “very pleased and impressed with the workmanship and making of [the] product.” Additionally, he reported that the machine “ran up to 500 per minute.” The machine was accepted and delivery and installation were accomplished on May 13, 1993. The equipment was operational by the middle of June, 1993. In July, 1993, two gears were determined to be defective and were replaced as provided for under the express warranty provision of the contract.

Thereafter, the plaintiff purchased another piece of equipment, referred to as an “overwrapper,” which was manufactured by Norco Packaging Machinery, Inc., and installed in January, 1994. The overwrapper was to work in conjunction with the sheeter. There had been no expression of any dissatisfaction with the sheeter to this point. The first indication of a problem came in a February 28, 1994 letter from the plaintiffs president to the defendant, some nine months after installation. In the letter, the plaintiff expressed dissatisfaction with the sheeter jamming at speeds of 500 feet per minute and with the fact that the machine could not be operated by one person if that same person was responsible for the operation of the overwrapper as well. On Februaiy 28, 1994, the plaintiff also wrote to Norco indicating that it was experiencing jams of the overwrapper that caused “the line to go down for extended periods of time.”

On May 9, 1996, by amended complaint, the plaintiff alleged, in the first count, a breach of express warranties with regard to the operating speed of the machine and the number of operators necessary. In the second count, the plaintiff alleged a breach of the implied warranty of merchantability. In the third count, the plaintiff alleged a breach of any implied warranty of fitness for a particular purpose. The trial court found that there was no breach of either express or implied warranties.

I

The plaintiff first claims that “the trial court [improperly] determined that in the absence of an express warranty, [the] plaintiff could not prevail on its claim that [the] defendant had breached an implied warranty of fitness for a particular purpose.”

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Citation omitted.) Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The plaintiff claimed that the defendant expressly warranted that the machine could produce at speeds of up to 500 feet per minute and that one person alone could operate the machine. The court found, however, that the purchase order did not contain any such express warranties and, thus, that the plaintiff failed to show that the defendant breached an express warranty. The plaintiff also claimed that the defendant breached an implied warranty of fitness for a particular purpose. In concluding that the plaintiff failed to prove that claim, the court stated that “if there are no express warranties regarding production at a certain rate or the operation of the sheeter by one [person], it is difficult to discern why there could be breaches of any implied warranties. The machine did convert rolls of paper to sheets of paper, which was its purpose, and is still in operation in the Louisville plant.”

The court’s decision must be read and construed in its entirety. The court stated that the purchase order referred to a “maximum” speed of 500 feet per minute, not that it could produce at that rate. Taken in that context, it is reasonable that the court refused to find the existence of an implied warranty that contradicted the express representation contained in the purchase order. Similarly, the court found that there was a representation in the purchase order that the “Line” could be operated by a single person. In light of this express representation, the court did not find that there was an implied warranty that the overwrapper and the sheeter together could be operated by a single operator. Thus, reading the court’s decision as a whole, we conclude that the court properly found that there was no breach of the implied warranty of fitness for a particular purpose.

II

The plaintiff next claims that the court failed to enforce the agreement of the parties that stated that “the machine would function properly for one year or 2000 hours, whichever occurred first.”

The plaintiff claims that the court improperly determined that it had waited too long to notify the defendant that the goods were nonconforming. The plaintiff, in effect, claims that the court substituted its terms in lieu of the terms contained in the written contract. Specifically, the plaintiff claims that the court’s finding, pursuant to General Statutes § 42a-2-607 (3), that the plaintiff failed to give notice of the alleged breach within a reasonable time because the plaintiff did not notify the defendant until nine months after the goods were accepted and, thus, that the plaintiffs claim for breach of warranty was barred was a modification of the twelve month warranty in the contract. We need not address this claim in light of the determination in part I of this opinion that the court properly found that there was no breach of any express or implied warranties.

The judgment is affirmed.

In this opinion the other judges concurred.

       The terms “line,” “machine” and “sheeter” have been used by the plaintiff interchangeably. In its amended complaint, the plaintiff claims to have purchased a “Roll/Sheet Converting Line” (line) from the defendant. The purchase order ordering the equipment from the defendant warrants the line’s parts for 2000 hours or 1 year, whichever occurs first. The plaintiff also refers to the equipment manufactured by the defendant as the “machine” or “sheeter.” Also, the plaintiff, at times, refers to the line to include the equipment subsequently purchased from Norco. In this decision, we use the terms sheeter, machine and line to mean the equipment purchased from the defendant only.


text:
    STATE OF CONNECTICUT v. ALBERTO RODRIGUEZ
    (AC 18347)
    Lavery, C. J., and Schaller and Daly, Js.
    Argued April 27
    officially released October 10, 2000

      Jeremiah Donovan, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Sandra L. Tullius, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Alberto Rodriguez, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes (Rev. to 1989) § 53a-70 (a) (2), as amended by Public Acts 1989, No. 89-359, one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), one count of attempt to commit sexual assault in the first degree in violation of General Statutes § 53a-49 and General Statutes (Rev. to 1989) § 53a-70 (a) (2), as amended by Public Acts 1989, No. 89-359, and one count of risk of injury to a child in violation of General Statutes § 53-21.

On appeal, the defendant claims that the trial court improperly (1) refused to allow the defense to inspect the victim’s school health assessments and allowed only one page of those records to be admitted into evidence, (2) refused to admit testimony from the school nurse about the victim’s teacher, (3) instructed the jury that it could consider the two versions of the facts as presented by the victim and the defendant, and (4) instructed the jury that it could consider the defendant’s interest in the outcome of the case when evaluating his credibility. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1989, at the time the sexual assaults began, the victim, her mother and the defendant all lived together. The victim was ten years old. During the summer of that year, the defendant began to perform oral sex on the victim approximately two to three times per week. The defendant also attempted to have the victim perform fellatio on him, but she refused. When the victim was eleven years old, the defendant began having sexual intercourse with her in his bedroom and the living room of their dwelling.

One morning in 1991, the victim’s mother returned home from work and found the defendant in bed with the victim in the victim’s bed. The defendant immediately pretended that he was trying to wake the victim, but he had an erection when he got out of the bed.

At trial, the state proffered testimony about the physical and psychological effects of the sexual abuse. The victim testified that she starved herself, her hair became brittle as a result of her deficient diet and that she became dizzy at school. Additional facts will be set forth where necessary.

I

The defendant claims first that the court abused its discretion in refusing to allow the defense to inspect the victim’s school health assessments and in limiting the admission of the assessments into evidence to a single page. We disagree.

The defense issued a subpoena to the New Haven board of education bureau of nursing, directing the production of the victim’s school medical records pertaining to her physical examinations, which records were produced in court. The state made a motion in limine to preclude disclosure of the records under General Statutes §§ 10-205 through 10-209, claiming that the records were inadmissible. The defendant sought to examine all of the subpoenaed records for the purpose of determining their usefulness to the defense. The victim was not in court when the issue arose and took no position on the disclosure of the documents. The state’s attorney, however, indicated that the victim “has pretty much vested in me the ability to go on my best judgment as to what I feel is appropriate. I think that in that stead, for the limited use of this document that the state will not object, and I think I can state that [the victim] would not object as well since she is eighteen and she has control of her own records at this time.” The corporation counsel for the city of New Haven argued that the court should review the materials pursuant to General Statutes § 10-15b before disclosing any of the records.

The court did not make a determination that § 10-209 created a privilege that required it to withhold the health assessment records from the trial proceedings. The court, however, examined the records in camera and, after doing so, decided that only one two-sided page of the documents was relevant to the proceedings. The court ruled that “[t]he balance of the documents have no bearing on this case with one exception and that simply repeats something that’s on the reverse side of the document that you are now talking about.” The court filed the remainder of the documents as a court exhibit under seal. We note that although the defendant states in his principal brief that he “continued to request that [he] be given access to the entire document,” he did not seek a specific ruling from the court as to the basis for its decision to withhold the documents.

The defendant argues first that the court improperly failed to allow him to examine the documents himself, instead reviewing them in camera. We disagree. Section 10-209 provides that the subject records are not to be public. Furthermore, “[n]o such record or copy shall be open to inspection by any person except upon the order of a judge of the court concerned,” and “[a]ny and all parts of any such record or copy, if not otherwise inadmissible, shall be admitted in evidence . . . .” (Emphasis added.) General Statutes § 10-15b (b). Pursuant to the language of § 10-15b (b), the court acted properly in accordance with its authority to determine whether anyone should have access to the records and to determine the admissibility of portions of the records. The court’s in camera review of the records was authorized by statute and therefore was proper.

The court’s ruling on the admissibility of evidence is entitled to great deference. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); see State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. ... A party is not required to offer such proof of a fact that it excludes all other hypotheses; it is sufficient if the evidence tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 305, 664 A.2d 743 (1995).

Both parties request that we conduct an independent review of the sealed records. See, e.g., State v. Santiago, 224 Conn. 325, 337, 618 A.2d 32 (1992) (appeals court may review sealed records). Our review of the sealed file in the record leads us to a conclusion no different from that reached by the trial court. The trial court did not abuse its discretion in its determination regarding the admissibility of the balance of the records.

Citing Davis v. Alaska, 415 U.S. 308, 320, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), the defendant also argues that the “exclusion” of the subpoenaed documents violated his constitutional right to present witnesses. The documents were not excluded in their entirely. Only the portions deemed not to be relevant were excluded. The defendant has no right to present evidence that is not admissible according to the rules of evidence, and it is the trial court’s function to make evidentiary determinations. The defendant concedes in his principal brief that “[t]he constitution does not require that the defendant be permitted to present every piece of evidence he wishes, although the exclusionary rules of evidence cannot be applied ‘mechanistically’ to deprive the defendant of his rights.” State v. Cassidy, 3 Conn. App. 374, 383, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985). The defendant further concedes that if proffered evidence is not relevant, his right to present witnesses has not been affected. In this case, the trial court carefully reviewed the documents. We conclude, on the basis of our own review, that the trial court did not abuse its discretion.

II

The defendant claims next that in light of testimony by the victim and her mother that the sexual abuse had caused physical and psychological changes in the victim, and testimony from the victim’s teacher that she had observed none of those changes, the court improperly precluded the defendant from establishing through the school nurse that the teacher conscientiously observed her students’ health and psychological difficulties, and would have noticed the changes described by the victim had they actually occurred. We disagree.

The teacher taught the victim in the sixth, seventh and eighth grades, and was her homeroom teacher in the eighth grade. To rebut the contention of the victim and her mother that the victim’s physical and mental health changed with the advent of the sexual abuse, the defendant elicited the testimony of the teacher that she noticed no changes in the victim relative to the sexual abuse. While questioning the school nurse, the defense asked, “[w]hile you were a school nurse . . . did you have an ability to sense whether [the teacher] was conscientious about noting health changes or health concerns with respect to students?” The state objected to the question on the ground that the defendant was seeking to have one witness vouch for the credibility of another, and the court sustained the objection.

The victim and her mother were witnesses at the trial and, therefore, the defendant had the opportunity to impeach their credibility. Furthermore, the teacher testified that contrary to the testimony of the victim and the victim’s mother, she noticed no changes in the victim related to the sexual abuse. The defendant was free to argue these contradictions to the jury. We conclude that in addition to the grounds for objecting to the proffered testimony, the excluded testimony was cumulative of evidence that the defendant either did or had the opportunity to elicit or rely on. It is within the court’s discretion to exclude cumulative evidence. State v. Watley, 195 Conn. 485, 490, 488 A.2d 1245 (1985). Because adequate other grounds existed for the court’s exclusion of the proffered testimony, we need not address the defendant’s claim regarding the propriety of the court’s grounds for exclusion. See, e.g., State v. Green, 38 Conn. App. 868, 875, 663 A.2d 1085 (1995) (where court reaches correct conclusion, reviewing courts sustain action if proper grounds exist.)

Ill

The defendant claims next that the court improperly instructed the jury when it juxtaposed the testimony of the victim and the defendant, and told the jury to “resolve any conflicts in testimony and find where the truth lies,” thereby diluting the state’s burden of proving him guilty beyond a reasonable doubt. We are not persuaded.

During the course of its charge to the juiy, the court, in three instances, set forth claims made by the state and, in each instance, stated that the defendant’s position was opposite to that of the state. The gravamen of the defendant’s claim is that the court stated: “As I told you, you must resolve any conflicts in testimony and find where the truth lies, and in so doing the credibility of the witness is entirely within your province as jurors.” Read as a whole, the court’s instruction was proper.

In reviewing claims of improper jury instructions, we are guided by well established principles. “In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Schiappa, 248 Conn. 132, 171, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999).

The defendant objected to the subject portions of the charge and pursuant to the objection, the court provided the following supplemental instruction: “I wanted to add one thing to the charge. I just want to make sure, I don’t want you to—by the fact that I brought you back out—to think that anything is, one thing is more important than anything else. The whole charge should be taken in its total context.

“The only thing I wanted to add is that nothing that I have said about the evidence should be viewed by you as relieving the state of its burden of proof. The state has the burden of proving guilt, and you understand that, I’m sure.” Elsewhere in the original charge, the court reiterated the state’s burden of proof several times.

Our review of the charge as a whole leads us to the conclusion that it adequately apprised the jury as to its duty to assess the credibility of the witnesses and as to the requirement that the state prove its case beyond a reasonable doubt. Furthermore, it was not reasonably probable that the jury was misled as to the state’s burden of proof.

IV

The defendant claims finally that the court improperly instructed the jury that it could consider his interest in the outcome of the case when evaluating his credibility. This claim is without merit.

The court instructed the jury as follows: “Ladies and gentlemen, an accused person is not obliged to take the witness stand in his own behalf. On the other hand, he has a perfect right to do so, as this defendant has done. In weighing the testimony he gave, apply the same principles by which the testimony of other witnesses [is] tested. That necessarily includes a consideration of his interest in the case, the importance to him of the outcome of the trial. An accused person, having become a witness, comes before you just like any other witness. He is entitled to a fair and careful consideration of his testimony, but he must have his testimony tested and measured in the same way as any other witness, including the element of his interest in the decision you are to render.”

In State v. Colon, 37 Conn. App. 635, 639-41, 657 A.2d 247, cert. denied, 234 Conn. 911, 660 A.2d 354 (1995), this court rejected a challenge to language virtually identical to the language here. Accordingly, the defendant’s claim fails..

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claims that the court improperly allowed the state to elicit from the boyfriend of the victim’s mother testimony concerning what the mother had told him about her daughter’s claimed sexual abuse and testimony concerning statements by the victim to her mother. This claim was not preserved at trial.
      Although the defendant initially objected to questions by the state, after an off-the-record discussion the state resumed questioning without further objection. No ruling by the court exists. In his principal brief, the defendant does not seek review of his unpreserved evidentiary claim under State v. Golding, 213 Conn 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 60-5. The defendant seeks review under both for the first time in his reply brief, which precludes our review. See, e.g., State v. Torres, 31 Conn. App. 443, 445-46 n.l, 625 A.2d 239 (1993), aff'd, 230 Conn. 372, 645 A.2d 529 (1994). Moreover, the evidentiary claim is unavailing under Golding; State v. Teel, 42 Conn. App. 500, 504-505 n.5, 681 A.2d 974, cert. denied, 239 Conn. 921, 682 A.2d 1012 (1996); and the claimed improper ruling is not “so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Domian, 235 Conn. 679, 692, 668 A.2d 1333 (1996).

       General Statutes § 10-15b (b) provides in relevant part: “If any private or public school is served with a subpoena issued by competent authority directing the production of school or student records in connection with any proceedings in any court, the school upon which such subpoena is served may deliver such record or at its option a copy thereof to the clerk of such court. Such clerk shall give a receipt for the same, shall be responsible for the safekeeping thereof, shall not permit the same to be removed from the premises of the court and shall notify the school to call for the same when it is no longer needed for use in court. Any such record or copy so delivered to such clerk shall be sealed in an envelope which shall indicate the name of the school or student, the name of the attorney subpoenaing the same and the title of the case referred to in the subpoena. No such record or copy shall be open to inspection by any person except upon the order of a judge of the court concerned, and any such record or copy shall at all times be subject to the order of such judge. Any and all parts of any such record or copy, if not otherwise inadmissible, shall be admitted in evidence without any preliminary testimony, if there is attached thereto the certification in affidavit form of the person in charge of such records indicating that such record or copy is the original record or a copy thereof, made in the regular course of the business of the school, and that it was the regular course of such business to make such record at the time of the transactions, occurrences or events recorded therein or within a reasonable time thereafter. . . .”

       General Statutes § 10-209 provides: “No record of any medical examination made or filed under the provisions of sections 10-205, 10-206, 10-207 and 10-214, or of any psychological examination made under the supervision or at the request of a board of education, shall be open to public inspection.”

       See footnote 3.