author: Hull, J.

text:
    James R. Kimbrell v. Frank A. Rossitto et al. Frank A. Rossitto et al. v. Oslo Development Company, S.A., of the Republic of Panama et al.
    (3205)
    (3268)
    Hull, Borden and Daly, Js.

      Argued December 11, 1985
    decision released April 1, 1986

      John J. Carta, Jr., for the appellant in the first case (plaintiff in the first case).

      Nanay G. Radojf, for the appellant in the second case (named defendant in the second case).

      Sebastian N. Giuliano, for the appellee (named defendant in the first case, plaintiff in the second case).

      Frank H. Santoro, assistant United States attorney, with whom, on the brief, was Alan H. Nevas, United States attorney, for the appellee (intervening defendant United States in both cases).
   Hull, J.

These two cases involve an ill-fated drug smuggling venture which rivals any current bestseller in its cast of colorful characters and its high seas intrigue. The actions were tried together and combined on appeal because the relationships and events giving rise to each case overlap substantially. In the first action, Kimbrell v. Rossitto, Kimbrell sued Rossitto to recover for the loss of a forty-two foot, 1975 Westsail cutter rig sailboat. Rossitto, in the second case, Rossitto v. Oslo Development Co., sought the return of certain real property located in Connecticut which he claimed Oslo obtained by use of duress. The court found for Rossitto in both actions. Kimbrell and Oslo now appeal from the judgments rendered in their respective cases. Kimbrell claims error in the court’s factual findings while Oslo challenges certain of the court’s evidentiary rulings. We conclude that the trial court’s actions were legally and logically correct and its factual determinations not clearly erroneous, and, accordingly, we find no error.

The trial court found the following facts: The plaintiff Kimbrell and a childhood friend purchased a forty-two foot sailboat intending to use it to start a charter business in Florida. Neither of the two men had any experience in chartering boats, and the venture was not successful. Kimbrell, who had no other job, lived on the boat, the Tamure, and spent his time there entertaining. During this period, Kimbrell met Rossitto and the two men became friendly. On one occasion, Rossitto showed Kimbrell a large supply of marihuana, and later he offered to help Kimbrell make some money. Kimbrell thereafter began working for Rossitto collecting debts from drug dealers. By this time, Kimbrell’s friend wanted to sell his one-half interest in the Tamure, and Kimbrell, with Rossitto’s financial assistance, purchased that interest and also paid the arrearage on a note he had taken out to finance the boat originally. Kimbrell then executed a sales agreement transferring a one-half interest in the boat to Rossitto. Rossitto later equipped the Tamure with sophisticated machinery, and made other extensive improvements on the boat.

At the time he met Kimbrell, Rossitto was a wholesaler of illegal drugs. His supplier was a man named Bill Ellswick. Ellswick advanced Rossitto drugs for some time until Rossitto owed him over a million dollars. When Ellswick first began pressuring him for repayment, Rossitto replaced Kimbrell as his collector. He needed to raise as much money as he could, as fast as possible, and he felt that Kimbrell was not effective at eliciting payment. Kimbrell stopped working and returned to his home in Mississippi after agreeing with Rossitto that they would share the use of the Tamure equally during the year.

The change in collectors did not, as Rossitto had hoped, generate the money he needed, and the pressure from Ellswick was building. Two of Ellswick’s collectors beat Rossitto to reinforce the need for immediate repayment. Rossitto began to fear for his safety and anxiously searched for ways to raise the money. Finally, he decided to bypass Ellswick and obtain drugs directly from growers in Colombia with the hope that he would reap a large profit which he could then use to pay Ellswick.

Rossitto decided to use the Tamure to pick up the drugs in Colombia, and he made the necessary preparations for the trip. Just before the Tamure was ready to sail, however, the captain called Kimbrell in Mississippi and told him the boat was going to the islands. Kimbrell immediately called Rossitto for an explanation. Rossitto told him not to worry, that the Tamure was “going south,” an expression used in the drug trade to mean making a drug run to South America, and that he would get his cut. Kimbrell said nothing further.

The Colombia venture was a disaster. Rossitto’s contacts could not deliver the marihuana. The crew members, including a man named Dana Stipes, were arrested and imprisoned in Colombia for approximately one year when they brought the boat from international waters into Colombian waters. The boat was impounded and sank sometime later. Rossitto was still in debt to Ellswick.

Approximately one year later, Ellswick sent Stipes, who was then working for him, to recover the money Rossitto owed. Stipes began to take Rossitto’s possessions: a Rolex watch, gold jewelry, a Maserati, and land in Aspen, Colorado. Rossitto did not resist until Stipes attempted to obtain Rossitto’s Connecticut property, the Deep River Plantation, a six and one-half acre estate on the Connecticut River in the town of Deep River. By that time, Kimbrell had already initiated his suit against Rossitto based on the loss of the Tamure, and he had obtained a $300,000 prejudgment attachment on the property. When the attachment was lifted for a brief time, Rossitto transferred the property to Lucille and Nuzio Coviello, his mother and stepfather, with the understanding that they would reconvey it to him at his request. Stipes then called Rossitto’s family and told them that if they did not sign the property over to him, their son’s life would be in danger. They agreed to convey the property and signed a warranty deed transferring it to Oslo Development Company, a Panamanian Corporation.

Rossitto had, during this period, remained involved in drug smuggling activity. Eventually, he was arrested and convicted on drug related charges. He spent approximately one year in federal prison, and when he was released began to cooperate with drug enforcement officials. He entered the federal witness protection program, was relocated, and was given a new identity. At this point, Rossitto sought to recover Deep River Plantation from Oslo and instituted the other suit involved in this appeal.

I

Kimbrell v. Rossitto

In this action, Kimbrell sued Rossitto for the loss of the Tamure. He claimed four grounds for imposing liability on Rossitto: (1) breach of express contract based on Rossitto’s failure to return the boat and his failure to keep it in the territorial waters of the United States; (2) conversion; (3) negligence; and (4) breach of contract based on Rossitto’s failure to pay one-half of the mortgage on the boat. Rossitto counterclaimed in two counts, alleging that Kimbrell failed to pay his proportional share of the maintenance costs for the boat. The United States government, claiming an interest in the Deep River Plantation because Rossitto was delinquent in tax payment and because he allegedly purchased the land with money made from the illegal sale of drugs, moved to be made a third party defendant. That motion was granted by the court, Vasington, J., prior to trial.

The court found against Kimbrell on his complaint and against Rossitto on his counterclaim. In denying Kimbrell recovery, the court relied on its findings that he had been aware of and acquiesced in Rossitto’s use of the Tamure to smuggle drugs. The court decided against Rossitto on his counterclaim, finding that he had neither expected Kimbrell to contribute to the Tamure’s maintenance, nor asked him to do so.

Kimbrell now appeals from the judgment rendered against him claiming, essentially, that the court’s factual findings are incorrect. Specifically, he attacks four of the court’s findings: (1) that Rossitto agreed to make improvements to the Tamure sufficient to make up the difference between his original investment of $25,000 and the value of the boat; (2) that Kimbrell contributed nothing to the maintenance and operation of the Tamure; (3) that he knew of and acquiesced in Rossitto’s using the boat to smuggle drugs; and (4) that Rossitto was a more credible witness than Kimbrell. Kimbrell also claims that the court erred by failing to find that he and Rossitto formed an express contract to use the Tamure for pleasure only, the breach of which entitled Kimbrell to damages.

This court has repeatedly stated that it will not retry the facts of a case. Glasson v. Portland, 6 Conn. App. 229, 233-34, 504 A.2d 550 (1986); Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983), cert. denied, 192 Conn. 802, 470 A.2d 1218 (1984). Where the trial court’s factual findings are challenged on appeal, this court performs an extremely limited review solely to determine whether the challenged findings are clearly erroneous. Pulaski v. Ledwith, 5 Conn. App. 629, 631, 501 A.2d 396 (1985); Rodziewicz v. Giguere, 5 Conn. App. 293, 295, 497 A.2d 1025 (1985). If they are not, they will not be disturbed. Pulaski v. Ledwith, supra. Kimbrell has not shown, nor has our review of the record disclosed, that the court’s factual findings were not supported by the evidence.

Kimbrell first claims that the trial court’s finding that Rossitto fully performed the agreement through which he acquired a one-half interest in the Tamure was based on a clearly erroneous finding: its finding that, in consideration for the transfer, Rossitto agreed to make up the difference between the $25,000 he had already invested and the value of the boat. Kimbrell asserts that, contrary to the court’s finding, the parties agreed that Rossitto would invest enough to double the Tamure’s value.

It is somewhat unclear why Kimbrell presses this argument. An agreement to double an item’s value is the same as an agreement to invest the equivalent of its value. For example, at the time the agreement in question was made, the Tamure was worth approximately $90,000. To double the boat’s value, therefore, Rossitto would have had to contribute $90,000. To make up the difference between the amount he had already invested ($25,000) and the value of the Tamure ($90,000), Rossitto would have been required to spend, in total, the value of the boat: $90,000. The only difference between Kimbrell’s version of the agreement and the court’s finding is semantic. Under either formulation, the court’s or Kimbrell’s, Rossitto’s financial commitment was to total $90,000. The court’s finding was, therefore, not clearly erroneous.

Nor was the court’s finding that Rossitto performed his contractual obligation clearly erroneous. Kimbrell argues in his brief that Rossitto invested enough in the Tamure so that after the improvements were made, their respective shares were approximately equal. He also introduced evidence to show that the value of the boat after the improvements was close to $200,000. He therefore concedes that Rossitto invested at least $100,000. Since it is undisputed that the value of the boat before improvements was approximately $90,000, it is clear that even under Kimbrell’s interpretation of the agreement and the facts, Rossitto did double the boat’s value, and thereby fully performed any contractual obligation he had.

In his second argument, Kimbrell attacks as clearly erroneous the court’s finding that he paid nothing for the maintenance and operation of the Tamure. The evidence fully supported this finding. During trial, Kimbrell testified that his boat chartering venture was a financial failure from the beginning, and that he was running short of funds. He also testified that he wanted Rossitto to purchase an interest in the Tamure because Rossitto could then absorb the costs of maintaining the boat. Rossitto testified that he paid the captain’s salary. Given this evidence, it is difficult to understand how Kimbrell can even claim that the finding was clearly erroneous. It was not.

What Kimbrell is really arguing in this claim of error is that the court was not entitled to credit Rossitto’s testimony as to the amount he spent improving the Tamure without requiring that he introduce tangible evidence to document the amount. There is no merit to this claim. Rossitto testified at length and in detail concerning the improvements he made on the Tamure. This evidence, which the court was free either to accept or to reject; Morande v. Newman Lincoln-Mercury, Inc., 5 Conn. App. 423, 499 A.2d 78 (1985); was sufficient to support the court’s finding as to the relative amount Rossitto and Kimbrell spent on the Tamure. There was no requirement that Rossitto introduce additional evidence.

To support his claim, Kimbrell relies on Bertozzi v. McCarthy, 164 Conn. 463, 468, 323 A.2d 553 (1973). That case, however, stands for the proposition that damages may not be based on speculation but must be supported by evidence. Bertozzi and its progeny are not relevant, however, in a case such as this, where no damages were awarded. Had the court found for Rossitto on his counterclaim, then the adequacy of his proof of damages might be an appropriate ground for claiming error. Under the circumstances present in this case, the court did not err in crediting Rossitto’s testimony.

Kimbrell also claims that the trial court erred by finding that he knew the Tamure was going to be used for drug smuggling and that he acquiesced in its use for these purposes. There was, however, substantial evidence upon which the trial court could reasonably base the challenged finding. Kimbrell testified that he was aware that Rossitto was a drug wholesaler and that he had worked for Rossitto in his drug business for approximately eight months. He knew that Rossitto had made substantial changes to the Tamure and that the changes made the boat capable of cruising over long distances. According to Kimbrell, Rossitto put a lot of new equipment on the boat: sonar, a generator, a desalinization unit, a bigger winch, a new mast, spinnaker rigs and an outrigger. In light of this testimony, it would not have taken the acumen of Elliot Ness to infer, as did the trial court, that Kimbrell “saw and allowed [the Tamure’s] transformation into a boat that could be used for smuggling.” This inference was entirely reasonable, and the resulting finding was not clearly erroneous.

On the basis of this testimony alone, the trial court could have concluded that Kimbrell knew the Tamure would be used for illegal purposes. There was, however, additional evidence supporting this conclusion. Kimbrell testified that the captain of the Tamure called to tell him that the boat was “going south,” although it was not his habit to call and report on the Tamure’s movement. Kimbrell, according to his own testimony, was sufficiently concerned to call Rossitto for more information. Rossitto testified that he also told Kimbrell the boat was “going south,” and not to worry since he would be compensated. This testimony provided more than ample support for the court’s finding that Kimbrell acquiesced in Rossitto’s use of the boat to smuggle drugs.

In his fourth claim of error, Kimbrell attacks the trial court’s conclusion that Rossitto’s testimony was more credible than his testimony. “Nothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. Morgan v. Hill, 139 Conn. 159, 161, 90 A.2d 641 (1952). Our function is restricted to determining whether the facts found are supported by the evidence or whether the facts as found are clearly erroneous in light of the evidence and the record as a whole. Branigan v. Cohen, 3 Conn. App. 580, 581, 490 A.2d 1019 (1985).” Morande v. Newman Lincoln-Mercury, Inc., supra, 423-24.

The record in this case discloses the following. Rossitto is a federally protected witness living under an assumed identity, and accordingly is not at liberty to enjoy any benefits which might accrue to him should he prevail in this lawsuit. Additionally, the Deep River Plantation is the subject of a federal forfeiture action that has been stayed pending resolution of this appeal. In view of these facts, the court reasonably could have determined that Kimbrell had a greater incentive to fabricate than did Rossitto. Having reviewed the record carefully, we see no reason to disturb the court’s conclusions as to credibility.

Kimbrell’s final argument is that the court erred by failing to find that Rossitto breached the parties’ agreement to use the Tamure for pleasure only. This allegation was not, however, contained in Kimbrell’s complaint. Nor was it ruled on by the trial court. “We review this case on the theory upon which it was tried and upon which the trial court decided it. See Machiz v. Homer Harmon, Inc., 146 Conn. 523, 525, 152 A.2d 629 (1959); Cole v. Steinlauf, 144 Conn. 629, 632, 136 A.2d 744 (1957); Maltbie, Conn. App. Proc. § 42.” Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985). Because the theories raised at trial did not include the one the plaintiff now attempts to raise, we do not consider this ground of error. Practice Book § 3063.

II

Rossitto v. Oslo Development Co.

In this action, Rossitto brought suit against Oslo and against Lucille and Nuzio Coviello, his mother and stepfather, based on the Coviellos’ conveyance of Deep River Plantation to Oslo. In his first count, Rossitto alleged that the Coviellos conveyed the property without his authority. In the second count, Rossitto claimed that Oslo obtained the property by falsely representing to the Coviellos that Rossitto had agreed to the conveyance. Rossitto asserted in his third count that Oslo obtained the Deep River Plantation by using duress. Rossitto sought to have his conveyance to the Coviellos and their conveyance to Olso set aside. Oslo counterclaimed in two counts, alleging that Rossitto had interfered with its enjoyment of the property and that he had slandered its title. Oslo also filed a cross complaint against the Coviellos asserting that they conveyed unmarketable title to Oslo’s detriment. The Coviellos were deleted as party defendants on their motion and added as party plaintiffs. As party plaintiffs, the Coviellos filed a complaint against Oslo alleging duress and undue influence. The federal government was permitted to enter the case as a third party defendant.

The court found that Oslo had obtained the Deep River Plantation by using duress. It declared the conveyance null and void, and rendered judgment for Rossitto on his complaint and on Oslo’s counterclaim. The court also rendered judgment for the Coviellos on Oslo’s cross complaint while dismissing their complaint against Oslo. Oslo thereafter filed this appeal.

Oslo now claims that the court erred in three respects: (1) in admitting into evidence Rossitto’s testimony about Ellswick’s involvement in the drug trade, which Oslo claims constituted inadmissible hearsay; (2) in admitting a translation of a Colombian judicial document without proper authentication; and (3) in refusing to award Oslo reimbursement for money it allegedly expended improving the Deep River Plantation. Each of these arguments is unavailing.

In its first claim, Oslo argues vigorously that the court erred by allowing Rossitto to testify about the illegal marihuana trade and about Bill Ellswick’s involvement in it. According to Oslo, this testimony was inadmissible for several reasons: the testimony was hearsay; Rossitto did not demonstrate sufficient personal knowledge to be deemed to be competent to testify on the topic; and the evidence was irrelevant. Oslo claims that the admission of this testimony constituted harmful error because, through this testimony, Rossitto was allowed to offer his opinion that Oslo was an alter ego for Ellswick. According to Oslo, Rossitto thereby provided a motive for Oslo’s alleged use of duress to obtain the property: to collect Rossitto’s drug debt to Ellswick.

Rossitto contends that the challenged testimony was not hearsay, and that it was relevant. He also asserts that his competence to testify on the subject of drug dealing was demonstrated. The United States agrees with these arguments but also claims that Oslo did not except to the court’s ultimate ruling on its objections and therefore failed to preserve the court’s ruling for review. Oslo’s counsel argues that she did object to the testimony when it was initially offered, and that she renewed this objection later. She claims that she did take an exception when the court overruled her renewed objection.

A somewhat lengthy review of the sequence of events in question is necessary to resolve this dispute. It was during Rossitto’s testimony that the challenged evidence was admitted. Rossitto began to discuss Ellswick, and he stated that Ellswick had made his way up through the ranks of organized crime. At this point, Oslo’s counsel objected, claiming that the testimony was hearsay and that it called for a “value judgment.” The court indicated that it would limit Rossitto’s testimony to areas in which he could demonstrate personal knowledge and to areas which did not call for hearsay testimony. The court then asked Oslo’s counsel if she was pressing her objection. Counsel responded that she was because of her concern that Rossitto was testifying as to “conclusions and value judgments.” The court responded that it would allow no conclusions or opinions but only testimony as to what Rossitto had seen personally. Oslo’s counsel responded that she had “no problem with that” but moved that Rossitto’s prior answer be stricken. The court then asked whether the objection was based on lack of foundation, and counsel responded that at the very least she felt a proper foundation had not been laid. The court then told Rossitto’s counsel to attempt to lay a foundation for the testimony. No objection was made nor was any exception taken to this ruling.

Rossitto then began to testify about Ellswick’s lifestyle. He spoke at some length about his own drug dealing: the amount of marihuana he had purchased from Ellswick, the amount he had paid for the marihuana, the amount he charged for the marihuana and the profit he realized from one sale. After Rossitto had testified in this fashion for some time, Oslo’s counsel objected on the basis of relevancy. The court overruled the objection and Oslo’s counsel took an exception to this ruling.

Under Practice Book § 288, counsel is required, when making an objection to the admission of evidence, to state distinctly the grounds for the objection and to take an exception to the court’s ruling on that objection. Section 288 specifically provides that “[a]n exception to the ruling must be taken in order to make it a ground of appeal.” (Emphasis added.) The objection-exception rule performs an important function: it requires counsel to make an evidentiary objection clear at a time when the trial court can take corrective action and thereby avoid unnecessary retrials. See State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984).

Here, the requirements of Practice Book § 288 were not satisfied. Oslo neither objected to, nor took an exception to, the court’s final ruling on the admissibility of the testimony that lead to Oslo’s hearsay objection. When the court told Rossitto’s counsel to proceed with his foundation for the testimony and Oslo did not object, the court could reasonably have concluded that it had satisfied Oslo’s concerns about the testimony.

Oslo’s counsel claims that she preserved this ground of error by objecting and excepting to Rossitto’s later testimony about his lifestyle and the cost of marihuana. She asserts that this objection was merely a renewal of his former hearsay objection. We must reject this claim. Counsel’s relevancy objection did not, under these circumstances, alert the trial court to the present claim that the evidence was inadmissible hearsay. The only objection and exception properly taken was to the court’s ruling on counsel’s relevancy objection, entirely different grounds from those now alleged. Accordingly, we decline to rule on this claim of error.

Oslo’s second claim is that the trial court erred by admitting into evidence an unsigned, uncertified translation of a Colombian document. At trial, Oslo objected to the admission of the document and duly excepted when the court overruled its objection and admitted the document. Oslo now argues that the admission of the document constituted reversible error and it reasserts one of the grounds on which it relied in making its objection at trial, that the document was not properly authenticated.

The United States asserts, in the face of Oslo’s strong protestation to the contrary, that the document was properly authenticated by Dana Stipes. Rossitto argues that the translation was admissible for the limited purpose of impeaching Stipes even if it was not properly authenticated. Both Rossitto and the United States contend that any possible error caused by the admission of the document was harmless since the contents were cumulative of other testimony.

It is well recognized that any error in the admission of evidence does not require reversal of the resulting judgment if the improperly admitted evidence is merely cumulative of other validly admitted testimony. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 391, 461 A.2d 422 (1983). Here, the evidence contained in the document merely repeated Stipes’ and Rossitto’s testimony. The document purported to impose a fine on the Tamure’s crew for an unnamed offense. Stipes himself testified that he was found guilty of violating Colombian water space and of possession of firearms. It described the finding of the Colombian officials who searched the Tamure that, contrary to Stipes’ testimony at trial, the Tamure was in good working condition except for a damaged propeller. Speculation that the Tamure was in Colombian waters in relation to the illegal drug trade and not, as the crew claimed, for necessary repairs for damage the Tamure sustained en route to Panama was incorporated into the document. Rossitto, who sent the Tamure to Colombia, gave testimony corroborative of these facts and speculation. He testified that the Tamure went to Colombia to transport drugs back to the United States. The document also asserted that there were guns aboard the boat and charts of Colombian waters, which Stipes himself readily admitted.

The Colombian document was only a minor part of the total evidence showing why the Tamure was in Colombia. Accordingly, even if we were to determine that the trial court erred in admitting the evidence, we would not disturb the judgment on this basis. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., supra, 391. We therefore decline to rule on the validity of the trial court’s decision to admit the translation.

Oslo’s final argument is that the trial court erred by not ordering Rossitto to repay Oslo for the money it spent on the Deep River Plantation. In support of this claim, Oslo notes that the remedy fashioned by a court of equity should be designed to put the parties in the position they would have been in had no damage occurred. It argues that the court’s failure to order Rossitto to repay the $67,588.33 it spent paying off Rossitto’s mortgage on the land, violates this equitable principle and unjustly enriches Rossitto.

“Unjust enrichment applies when justice requires compensation to be given ‘ “for property or services rendered under a contract, and no remedy is available by an action on the contract.” 5 Williston, Contracts (Rev. Ed.) § 1479.’ Cecio Bros., Inc. v. Greenwich, 156 Conn. 561, 564, 244 A.2d 404 (1968); Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 53, 492 A.2d 223 (1985).” Bolmer v. Kocet, 6 Conn. App. 595, 612, 507 A.2d 129 (1986). Here, there was neither an express contract nor an implied in fact contract under which Oslo claims a right to recover. Rather, on equitable grounds, it makes its claim that this court should find an implied in law contract under which Rossitto would be required to compensate Oslo.

“Unjust enrichment is a very broad and flexible equitable doctrine; Cecio Bros., Inc. v. Greenwich, supra; which has as its basis that ‘ “it is contrary to equity and good conscience for [one party] to retain a benefit which has come to him at the expense of the [other party].” ’ National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985).” Bolmer v. Kocet, supra, 612. When deciding a claim of unjust enrichment, “[a]ll the facts of each case must be examined to determine whether the circumstances render it ‘just or unjust, equitable or inequitable, conscionable or unconscionable/ to apply the doctrine. Cecio Bros., Inc. v. Greenwich, supra, 565.” Id. Further, it must be remembered that “balancing of equities is a matter which falls within the discretion of the trial court.” Montanaro Bros. Builders, Inc. v. Snow, supra, 54.

Here, the trial court effectively found that one drug dealer, acting under the disguise of Oslo Development Company, used death threats to strong-arm another drug dealer into conveying a piece of land. Given these findings, which we have held are fully supported by the evidence, it is difficult to imagine how justice or equity require that Oslo be reimbursed for its expenditures. The trial court did not abuse its discretion by refusing to pay Oslo for the money it spent protecting its ill begotten gains.

There is no error on either appeal.

In this opinion the other judges concurred.

       Kimbrell also brought a fifth count against Lucille and Nuzio Coviello, Rossitto’s mother and stepfather, alleging a fraudulent conveyance of the Deep River Plantation from Rossitto to the Coviellos. This count was withdrawn after the Coviellos assigned any interest they had in the property to Rossitto.

       Rossitto filed a third party complaint impleading, as third party defendants, members of the boat’s crew: Dana Stipes, William Higgins and Daniel Monteferante. The third party complaint was dismissed as to Stipes by the court, Spallone, J., on the basis of its finding that it did not have in personam jurisdiction over Stipes. Higgins and Monteferante did not appear.

       The Coviellos also alleged that Oslo had falsely imprisoned them. This count of the complaint was struck by the court, Edelberg, J.


source: Caselaw Access Project

author: Bieluch, J.

license: Public Domain

text:
    American Factors, Inc. v. Foreign Intrigue, Inc., et al.
    (2558)
    Dupont, C. J., Spallone and Bieluch, Js.
    Argued December 6, 1985
    decision released April 1, 1986

      Gerald T. Weiner, with whom were Burton M. Weinstein and, on the brief, Richard Emanuel, for the appellants (defendants).

      Robert H. Boynton, with whom, on the brief, was Susan A. Moch, for the appellee (plaintiff).
   Bieluch, J.

The defendants have appealed from a judgment of the trial court in favor of the plaintiff in its action for breach of contract. Because we conclude that the appeal is not from a final judgment, we dismiss it.

After a trial to the court, judgment was originally rendered in favor of the defendants on June 24,1982, because the contract was found to be usurious and thus unenforceable. On August 22,1983, the court granted the plaintiffs motion to open that judgment on the ground that the plaintiffs trial counsel and the court had mistaken the effective date of repeal of the key statute and the effect of the new statute. The court, therefore, rendered a first supplemental judgment in favor of the plaintiff. The court did not, however, award damages to the plaintiff in its judgment. The defendants moved, on September 19,1983, to open the latter judgment, but that motion was withdrawn and an appeal from that judgment was filed on September 29,1983.

On November 17,1983, the plaintiff again moved to open the judgment of the court, this time for the purpose of finding the amount of damages. That motion was granted, and on August 30, 1984, the court rendered a second supplemental judgment awarding the plaintiff $440,579. On September 19,1984, the defendant filed an “Amended Appeal” from the judgment of August 30, 1984, awarding these damages to the plaintiff.

The original appeal of the defendant filed on September 29,1983, failed to contain the required jurisdictional statement, but it is clear from the preliminary statement of issues that the appeal was taken from the first supplemental judgment finding the defendants liable on the contract without assessing damages. “[Wjhere a judgment has been rendered only upon the issue of liability without an award of damages . . . [it is] interlocutory in character, [and] is not a final judgment from which an appeal lies.” Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84, 495 A.2d 1063 (1985). Nor does such a judgment “fall within one of the narrowly defined exceptions to the general prohibition against appeals from judgments that are not final.” Id., 85. The filing of the subsequent “Amended Appeal” on September 19, 1984, does not cure the defective appeal because a jurisdictional defect renders an appeal void ab initio and uncorrectable. Id., 86 n.3. The power to permit an amendment to an appeal presupposes jurisdiction of the original appeal. Id. Since jurisdiction is lacking in this case, the amended appeal is legally ineffective to grant the required jurisdiction necessary for a proper appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       This action was consolidated with the defendants’ action to enjoin the plaintiff from pursuing its breach of contract claim.

       The motion to open was filed on behalf of the plaintiff by new counsel.

       This second supplemental judgment also reflected the court’s decision to grant a third motion to open the judgment, filed on March 12,1984, for the sole purpose of correcting a clerical error in the first supplemental judgment.


author: Spallone, J.

text:
    Deolinda B. Pereira et al. v. Administrator, Unemployment Compensation Act, et al.
    (3524)
    Dupont, C. J., Borden and Spallone, Js.
    Argued November 6, 1985
    decision released April 1, 1986

      John C. Bullock, with whom was William T. Cremins, for the appellant (defendant Naugatuck Glass Company).

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, and Robert E. Walsh, assistant attorney general, for the appellee (named defendant).
   Spallone, J.

The defendant, Naugatuck Glass Company (Naugatuck Glass) is appealing from the judgment of the Superior Court dismissing its appeals from decisions of the employment security board of review.

The claimants, Deolinda B. Pereira, Victor P. Simoes and Joaguim Maceira, were employed by Naugatuck Glass, and each left their jobs to accept employment elsewhere for higher wages. Subsequently, all three were laid off by their new employers and each filed claims for unemployment benefits with the defendant, the administrator of the Unemployment Compensation Act (administrator). All three were found eligible by the administrator and were separately awarded benefits chargeable to Naugatuck Glass’ account. Naugatuck Glass appealed each of the awards to appeals referees who, after conducting hearings de novo, made findings of fact and affirmed the administrator’s decisions. Naugatuck Glass then appealed each decision to the board of review, which adopted the findings of the referees and affirmed the decision in each case. Naugatuck Glass then appealed each decision to the Superior Court. The court consolidated the appeals and rendered one judgment dismissing each appeal. It is that judgment from which the defendant now appeals.

The sole issue before this court is whether the claimants, who left their jobs voluntarily to accept new positions at higher pay and who were subsequently laid off by their new employers, were entitled to unemployment benefits from their former employer, Naugatuck Glass, pursuant to General Statutes § 31-236 (2) (A). The dis-positive question raised by this issue is whether, when the claimants left Naugatuck Glass’ employ for higher wages elsewhere, they left “suitable work for cause” and are therefore eligible for unemployment benefits pursuant to § 31-236 (2) (A).

We have recently had occasion to decide this precise issue in Valley Surgical Group, P.C. v. Administrator, 6 Conn. App. 588, 506 A.2d 1075 (1986). We there held that although the ordinary prudent person might be impelled to leave work voluntarily for better pay, that fact standing alone is not sufficient to establish that the claimant left suitable work for cause as required by General Statutes § 31-236 (2) (A). That case was based on an interpretation of Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 434 A.2d 293 (1980). In Robinson, the Supreme Court held that a claimant must show not only that he has left employment for reasons which would impel the ordinary prudent person to leave, but also for reasons which provide the particular individual no reasonable alternative but to terminate that employment. Id., 23.

In the present case, the trial court upheld the conclusion in each appeal that leaving suitable work for better pay was sufficient to establish good cause. This conclusion completely ignores the fact that Robinson expounds a two-pronged test to establish cause. A reasonable person might be impelled to leave suitable work for better pay but this fact standing alone is insufficient to establish cause. The second prong of Robinson mandates a showing that there was no other reasonable alternative available to the claimant.

There is nothing in the record to indicate that termination of employment was the claimants’ only reasonable option. We will not speculate whether there were other options or alternatives available to the claimants, but it was their burden, under Robinson, to prove that no such reasonable alternatives existed. In the absence of such proof the trial court was clearly erroneous in affirming the decisions of the trial referee and the board of review.

There is error, the judgment is set aside and the case is remanded with direction to sustain the appeals.

In this opinion the other judges concurred.

       The claimants are not parties to this appeal.


author: Per Curiam.

text:
    Bailey Employment Service of Branford, Inc. v. Fairfield Electric Supply, Inc.
    (3971)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 7
    decision released April 1, 1986

      Donal C. Collimore, for the appellant (defendant).

      Thomas S. Brown, for the appellee (plaintiff).
   Per Curiam.

This appeal arises out of the judgment of the trial court in favor of the plaintiff in an action upon a contract for the plaintiffs services. The judgment was rendered in accordance with a factfinder’s report to which the defendant had objected. The defendant now claims four errors which it concedes “can be boiled down to the proposition as to whether or not the Fact Finder found sufficient facts to justify his conclusions which would in turn justify the entry of judgment based on that report.” We find error in part.

The facts are undisputed. The plaintiff, an employment agency, was hired by the defendant to find a salesman for employment. The plaintiff referred two potential candidates to the defendant, the latter of which, William Sessa, was actually hired by the defendant at an annual salary of $18,200. Pursuant to the plaintiff’s fee schedule, a commission of 19 percent of Sessa’s annual salary was to be paid by the defendant to the plaintiff, plus the state sales tax. The factfinder found the commission to be “$3579.03, plus sales tax of $121.03.”

The defendant’s sole argument is that the material “findings of fact,” numbers nine through fourteen of the factfinder’s report, merely recited testimony as statements of evidence rather than as the required findings of fact. Hence, it asserts, the conclusions of the factfinder are not adequately supported by subordinate facts. Consequently, they do not justify a judgment for the plaintiff. This argument, however, overlooks the factfinder’s express statement made after his initial findings, that “[t]he decision in this case depends upon the answers to the following questions: 1. Was the plaintiff corporation an employment agency? 2. Was Mr. William Sessa hired by the defendant through contact with the plaintiff? 3. Was there a meeting of the minds that the plaintiff would send to the defendant an individual or individuals to be hired as a salesman? 4. Was there a meeting of the minds as to the terms of compensation from defendant to plaintiff?” The fact-finder’s express affirmative answers to all four of these questions establish the necessary factual predicates for his conclusions.

Although findings nine through fourteen of the fact-finder’s report do not state findings of fact, but merely present conflicting testimony as to the issues in the case, these mislabeled “findings of fact” were merely a prelude to the factfinder’s determination of the four crucial facts. The conflicting testimony was presented as evidence of the respective two positions claimed by the parties. The factfinder’s subsequent answers to those four questions from the evidence provided a sufficient basis for his conclusions, and for the court’s subsequent judgment in favor of the plaintiff.

The factfinder, however, mistakenly characterized his ultimate conclusion as a decision and erred in the amount of commission due when he stated: “Decision is rendered for the plaintiff to recover from the defendant $3,579.03, plus sales tax of $121.03.” The commission of 19 percent of the annual salary of $18,200 should have been properly computed to be $3458. The amount of the state “use tax” of 3.5 percent applicable to services of an employment agency was properly determined to be $121.03. General Statutes §§ 12-411 (1) and 12-407 (2) (i) (C). The correct total commission and use tax due should have been found to be $3579.03. The factfinder’s computational error was further compounded by the court’s rendition of judgment “that the plaintiff recover of the defendant damages of $3,579.03 plus sales tax of $2,121.03,” plus taxable costs. The judgment is in error and should be corrected to reflect the proper amount of the commission and use tax due the plaintiff as damages.

There is error only in the amount of damages awarded the plaintiff, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiff in the amount of $3579.03.


text:
    Peter J. Revill et al. v. Clarence B. Walworth et al.
    (4020)
    Dupont, C. J., Borden and Spallone, Js.
    Argued February 5
    decision released April 8, 1986

      Robert F. Stengel, for the appellants (defendants).

      M. Jaw Christensen, for the appellees (plaintiffs).
   Per Curiam.

This case involves the ownership of and the right to use that part of a driveway, leading to the defendants’ house, which runs across the land of the plaintiffs. When the defendants sought to pave the part of the driveway which is on the plaintiffs’ property, the plaintiffs sued them for damages for trespass and sought an injunction. The defendants claimed ownership of that part of the driveway by adverse possession, and an easement by prescription. The trial court filed a thoughtful and complete memorandum of decision, finding all the critical factual issues in favor of the plaintiffs and against the defendants. On appeal, the defendants raise sixteen claims of error, none of which has merit. Fourteen attack the findings of the trial court, which our review of the record indicates are not clearly erroneous. Another claims that the court employed the wrong burden of proof on the adverse possession issue; the memorandum of decision clearly belies this claim. The final claim is that the court erred in declining to view the premises. Such a decision rests in the sound discretion of the trial court; Decko v. Wood, 6 Conn. App. 95, 96, 503 A.2d 185 (1986); which the defendants have not shown was abused.

There is no error.


text:
    Carol J. Robidoux v. Richard E. Robidoux
    (3481)
    Dupont, C. J., Borden and Spallone, Js.
    Argued March 11
    decision released April 8, 1986

      Maxwell Heiman, with whom, on the brief, was Michael C. Daly, for the appellant (defendant).

      Arnold H. Klau, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Stanley Wisniewski et al. v. Zoning Board of the City of Stamford et al.
    (3781)
    Dupont, C. J., Borden and Daly, Js.
    Argued February 4
    decision released April 8, 1986

      Edward J. Frattaroli, assistant corporation counsel, with whom, on the brief, was Jay H. Sandak, corporation counsel, for the appellant (named defendant).

      Walter T. Flaherty, Jr., for the appellees (plaintiffs).
   Per Curiam.

This is a zoning case in which we granted the petition of the named defendant, the zoning board of the city of Stamford, to appeal from the judgment of the trial court. That judgment sustained the plaintiffs’ appeal to the Superior Court from the action of the board which amended the zoning map by changing the classification of three contiguous tracts of land from a general industrial zone to a multiple family residence zone. The judgment also ordered that the zone change be modified to exclude the plaintiffs’ property. The trial court found that the zone change was not warranted because there was no new condition “that had not existed at the time of the last change.” It also found that the zone change appeared to meet the needs of the applicant, the defendant Holy Name of Jesus Church, but was not for the good of the community as a whole.

Where a local zoning authority is acting in a legislative capacity in enacting a zone change, it is “not bound by the general rule which would prohibit it from reversing an earlier decision without evidence of a change in conditions.” Morningside Assn. v. Planning & Zoning Board, 162 Conn. 154, 158, 292 A.2d 893 (1972). The change of conditions rule “will only be applied in those rare instances where the zoning amendment is patently arbitrary.” Id., 158-59. It is clear from the record in this case that the action of the board was not patently arbitrary.

Furthermore, from our review of the entire record we conclude that the “trial court far exceeded its proper bounds in reversing the [board’s] decision . . . . ” Goldfeld v. Planning & Zoning Commission, 3 Conn. App. 172, 178, 486 A.2d 646 (1985). It purported to assess the credibility of witnesses before the board and to weigh the evidence, and in doing so, it substituted its judgment for the legislative judgment of the board. That legislative judgment is adequately supported by the record. Id.

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


text:
    State of Connecticut v. Juan Benite
    (3555)
    Hull, Spallone and Daly, Js.

      Argued January 16
    decision released April 8, 1986

      Joette Katz, public defender, for the appellant (defendant).

      Guy W. Wolf III, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Hull, J.

The defendant was convicted, after a trial to a jury, of burglary in the first degree in violation of General Statutes § 53a-101 (a). The defendant now appeals from his judgment of conviction claiming that the trial court made two errors in its charge to the jury: (1) in failing to charge the jurors that they all had to agree on what specific type of conduct prohibited by General Statutes § 53a-í01 (a) the defendant committed; and (2) in commenting on the sufficiency of the evidence of one of the essential elements the state was required to prove. We find no error in either of the aspects of the trial court’s charge challenged by the defendant.

The jury reasonably could have found the following facts. Before going to bed on August 4,1982, Joseph Crisco, who lived on the second floor of a multi-family house in New Haven, opened his kitchen door to let some air in. He also hooked the kitchen screen door. Several hours later at approximately 3 a.m., Crisco was disturbed by noise his dog was making. In response to that noise and to his wife’s scream that someone was at the kitchen door, Crisco went into his kitchen and encountered an intruder. Crisco wrestled with the man and while so doing saw that he held some kind of shiny object in his hand. During the scuffle, the intruder inflicted two minor cuts on Crisco before slipping free and fleeing out the kitchen screen door. Crisco then noticed that the bottom panel of the screen was pushed out, and that the molding had been removed from the exterior of the door and the screen had been cut. The door was still hooked.

When the police arrived, Crisco identified the intruder as one of his neighbors and further described him as a twenty to twenty-five year old latin male with dark complexion and short hair, wearing brown pants and no shirt. Minutes later, a police officer who had received word of the incident found an individual near the Crisco’s home who matched this physical description. That individual, the defendant, Juan Benite, was wearing brown pants and no shirt. The officer took the defendant to the home where Crisco positively identified him as the intruder. The defendant was, thereafter, convicted of burglary in the first degree in violation of General Statutes § 53a-101 (a).

The defendant’s first claim on appeal concerns the requirement, under the sixth amendment to the United States constitution, applicable to the states through the fourteenth amendment, that the verdicts of six member juries be unanimous. Burch v. Louisiana, 441 U.S. 130, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979). The defendant was charged with burglary in the first degree. To obtain a conviction for burglary in the first degree, the state must prove beyond a reasonable doubt that the individual charged committed burglary, and it must also prove one of two aggravating factors: (1) that the individual committed the burglary “armed with explosives or a deadly weapon or dangerous instrument”; General Statutes § 53a-101 (a) (1); or (2) that he committed burglary and “in the course of committing the offense, he intentionally, knowingly or recklessly inflict[ed] . . . bodily injury on anyone.” General Statutes § 53a-101 (a) (2). According to the defendant, the trial court’s failure to charge the jurors that they all had to agree on which, if either, of the factors the state had proven, created a reasonable possibility that the jurors were misled to believe that, contrary to the mandates of the sixth amendment, they could return a guilty verdict absent unanimity on the aggravating factor.

The state contends that because the defendant neither submitted a request to charge, nor excepted to the charge as given, this claim should not be reviewed by the court. The defendant argues that review is appropriate under the fundamental right-fair trial rationale of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

Generally, this court will not consider claims of error relating to the trial court’s charge to the jury where no request to charge was submitted and no exception was taken to the charge as given. Practice Book §§ 854, 3063. Where, however, the defendant seeks review under State v. Evans, supra, and “the record adequately supports a claim that [he] has clearly been deprived of a fundamental constitutional right and a fair trial”; id., 70; this court will review the charge to the jury. See State v. Alston, 5 Conn. App. 571, 575-76, 501 A.2d 764 (1985).

The defendant’s unanimity claim falls into the category of cases that may be reviewed under the Evans bypass rule. The defendant asserts that he was deprived of his right, under the sixth amendment to the United States constitution, to a unanimous verdict of his six member jury. In so doing, he claims deprivation of a fundamental right and implicates the fairness of his trial. This court has previously found that if the record provides adequate support for such a claim, it will be reviewed even if no request to charge was submitted and no exception to the charge was taken. State v. West, 3 Conn. App. 650, 654, 491 A.2d 428, cert. denied, 196 Conn. 810, 497 A.2d 906 (1985). Here, the record does adequately support the claim. Accordingly, we will conduct a limited review to determine whether the defendant was deprived of a fundamental right and a fair trial, and if so, whether reversal of the resulting judgment is required. State v. Torrence, 1 Conn. App. 697, 702-705, 476 A.2d 598 (1984), aff d, 196 Conn. 430, 493 A.2d 865 (1985).

There is no question that the sixth amendment to the United States constitution guarantees a defendant in a criminal case the right to a unanimous verdict if his jury consists of only six members. Burch v. Louisiana, supra. The defendant in this case claims abridgement of this right. He asserts that because the state presented evidence supporting both of the aggravating factors under General Statutes § 53a-101 (a), and because the trial court did not charge that the jurors had to agree on which of the two factors the state had proven, there is a very real possibility that the jurors did not all agree on the same factor. The defendant further argues that the factors are conceptually distinct and, therefore, a disagreement by the jurors as to which of the two have been proven, would in essence be a disagreement as to the actus reus element of the crime in violation of the sixth amendment unanimity right. In support of his claim, the defendant relies on United States v. Gipson, 553 F.2d 453 (5th Cir. 1977).

In Gipson, the defendant was charged with selling or receiving a stolen vehicle moving in interstate commerce in violation of 18 U.S.C. § 2313. In response to the jury’s request for clarification on a certain point, the trial court told the jurors they need not agree on which of the six activities prohibited by 18 U.S.C. §2313 (receiving, concealing, storing, selling, bartering or disposing) the defendant had committed. United States v. Gipson, supra, 455-56. The United States Court of Appeals for the Fifth Circuit reversed the conviction agreeing with the defendant that the challenged instructions violated his right to a unanimous verdict of his jury.

To resolve the defendant’s claim, the Court of Appeals reviewed the goals behind the unanimity rule and determined that those goals could be satisfied only when all the jurors are in “substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged.” Id., 457-58. The court then determined that 18 U.S.C. § 2313 prohibited two distinct types of conduct: the act of keeping the vehicle which encompasses the acts of receiving, concealing and storing; and the act of marketing the vehicle which encompasses the acts of selling, bartering and disposing. Because the two groups of acts were conceptually distinct, the court concluded that “a jury finding of the actus reus element of the offense would not be ‘unanimous’ if some of the jurors thought the defendant committed only an act in the first conceptual grouping while others believed he committed an act only in the second.” Id., 458. The court noted that the prosecution had presented evidence showing that the defendant had committed each of the six acts. It concluded that the judge’s charge to the jury had therefore created a possibility that the jurors had disagreed as to which illegal act the defendant had committed. Reversal of the conviction was required, the court held, because it was impossible to determine that all the jurors had agreed as to the actus reus, and, accordingly, the instruction could not be shown to be harmless beyond a reasonable doubt as required under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967). United States v. Gipson, supra 459.

This court, and our Supreme Court, both have faced claims premised, as is the claim the defendant now presses, on the Gipson holding. State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984); State v. West, supra. In State v. Jones, supra, the defendant, relying in part on Gipson, claimed that the indictment which charged him with felony murder was fatally defective because it charged him disjunctively with the predicate crimes of robbery and attempted robbery and thereby allowed the jury to convict him absent unanimity as to which of the two predicate crimes the state had proven. The Supreme Court rejected the defendant’s claim not because of any disagreement with the Gipson holding, but rather on the basis of the unusual relationship between the two crimes charged. The Supreme Court held that because attempt merges into the substantive crime, the verdict must have been unanimous; those jurors, if any, who convicted on the basis of a finding that the defendant committed the completed crime necessarily found that the defendant first committed attempt. They thereby agreed with those jurors who found attempt only. State v. Jones, supra, 76-77.

In State v. West, supra, the defendant was charged with committing sexual assault in the first degree in violation of General Statutes § 53a-70. The information charged that the defendant committed the crime “by the use of force or the threat of use of force.” One of the defendant’s claims, based in part on Gipson, was that the court erred by failing to charge the jurors that they had to agree on which conduct he committed: use of force or threat to use force. This court distinguished Gipson, reasoning that the conduct prohibited under both of the subcomponent of the phrase “use of force or the threat of the use of force” was conceptually very similar to that prohibited by the other. Accordingly, there was no reason to assume that all the jurors had not reached substantial agreement as to what conduct the defendant had committed.

While neither the Jones nor the West courts explicitly adopted the rationale of Gipson, both courts decided the cases on the assumption that the Gipson holding was correct. We too find that case persuasive. If the actions necessary to constitute a violation of one statute or subsection of a statute are distinct from those necessary to constitute a violation of another, then jurors who disagree on which one the state proves cannot be deemed to agree on the actus reus: the conduct the defendant committed. Where the evidence presented supports both alternatives, the possibility that the jurors may actually disagree on which alternative, if either, the defendant violated is the highest. Under such circumstances, the jurors should be told that they must unanimously agree on the same alternative. We do not now hold that the kind of charge countenanced in Gipson must always be given. Rather, such a charge is required only where a trial court charges a jury that the commission of any one of several alternative actions would subject a defendant to criminal liability, and those actions are conceptually distinct from each other, and the state has presented some evidence supporting each alternative. The determination of whether actions are conceptually distinct must be made with reference to the purpose behind the proposed charge: to ensure that the jurors are in unanimous agreement as to what conduct the defendant committed.

Here, the two kinds of conduct which expose an individual to punishment for burglary in the first degree are conceptually different from one another. The conduct prohibited by General Statutes § 53a-101 (a) (1) is committing burglary while “armed with explosives or a deadly weapon or dangerous instrument.” This subdivision of subsection (a) requires that the actor have with him some sort of object, tool, implement or weapon. There is, however, no requirement that the defendant actually use it to inflict injury. State v. Jones, 173 Conn. 91, 95, 376 A.2d 1077 (1977). In contrast, General Statutes § 53a-101 (a) (2) prohibits the intentional, reckless or knowing infliction of bodily injury during the course of committing a burglary. The actor need not have any tool or implement. He must inflict bodily injury, although a specific intent to do so is not required. Finally, the infliction of any bodily injury, serious or not, will suffice under this subdivision. Given these differences between the two subdivisions, if some jurors found the defendant guilty of violating subdivision (1), and some found him guilty under subdivision (2), they did not necessarily agree on essentially what conduct the defendant committed.

The element which increases the possibility of juror disagreement is also present in this case: the prosecution presented some evidence tending to show a violation of both subdivisions of General Statutes § 53a-101 (a). Evidence supporting a verdict under subdivision (1) included testimony from Crisco that while struggling with the intruder, he noticed that he held a shiny object. Neither he nor his wife could, however, identify the object. Crisco further testified that while wrestling with the intruder, he received two small cuts which were not serious. From this testimony, and from Crisco’s testimony that the screen door had been cut, the jury reasonably could have inferred that the defendant carried a dangerous instrument in violation of subdivision (l). This testimony also supplied direct evidence that the defendant inflicted bodily injury on Crisco in violation of subdivision (2). Because the conduct prohibited by subdivision (1) is distinct from that prohibited by subdivision (2), and because the evidence raised the possibility that the jurors would disagree, the trial court erred by not instructing them that they had to agree unanimously on which, if either, of the subdivisions the defendant violated.

“This does not end our inquiry. We must still determine whether the error was reversible. ‘An error of constitutional dimension in the instructions in a criminal case is reversible error when it is reasonably possible that the jury were misled by the instructions.’ State v. Kurvin, [186 Conn. 555, 572, 442 A.2d 1327 (1982)] (Speziale, C. J., dissenting); see also the majority-opinion in State v. Kurvin, supra, 558-66.” State v. Torrence, supra, 703-704. Here, there is no reasonable possibility that the defendant’s jurors were incorrectly led to believe that they could return a guilty verdict without all reaching unanimous agreement on the conduct the defendant had committed. The defendant is correct in claiming that the trial court used the disjunctive in charging the jurors on the aggravating factors under General Statutes § 53a-101 (a). The court, however, also read the information to the jurors which charged in the conjunctive. Additionally, the jurors had the information available to them during their deliberations. Finally, the court twice told the jurors in general terms that their verdict had to be unanimous. While this case presents a close call, we hold that because of these facts, there is no reasonable possibility that the jurors were misled by the charge.

The defendant’s second claim is that the trial court, by commenting on the evidence when charging the jurors, relieved the state of its burden of proving an element of the crime beyond a reasonable doubt. The state urges this court not to consider this claim of error because the defendant did not except to the charge as given by the trial court. The defendant argues that this ground of error implicates his due process right to be convicted only upon proof beyond a reasonable doubt of each essential element of the crime with which he was charged; In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); and, therefore, this court should conduct a review pursuant to the fundamental rights-fair trial exception of State v. Evans, supra.

Where the record was adequate, our Supreme Court has reviewed, under Evans, claims that a trial court’s charge to a jury relieved the state of its burden of proving every element of a crime beyond a reasonable doubt. State v. Miller, 186 Conn. 654, 663, 443 A.2d 906 (1982); see also State v. Fernandez, 198 Conn. 1, 18, 501 A.2d 1195 (1986) (reviewing under Evans claim that court’s instruction relieved the state of the burden of proving intent). Here, the record adequately supports the defendant’s constitutional claim, and, accordingly, we will review it.

In the challenged portion of the charge, the trial court commented that “there is no question that [the Criscos] know the accused . . . .” The defendant claims that by so stating, the court in effect told the jurors that the state had proven that the intruder was Benite.

“The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue and may comment upon the weight of the evidence so long as it does not direct or advise the jury how to decide the matter.” State v. Mullings, 166 Conn. 268, 274, 348 A.2d 645 (1974). The defendant’s argument that this limitation on the trial court’s right to comment on the evidence was violated in this case is based on an incomplete reading of the charge. When the challenged portion of the charge is examined in context, it is clear that the defendant’s claim is without merit. The pertinent portion of the charge was given as follows: “Anyway, there is no question that they know the accused, and they say on the stand here positively that that is the man that was in their kitchen sometime shortly after three o’clock in the morning and the man that Mr. Crisco struggled with and who was cut by that person. They say positively it was him.” (Emphasis added.) The court did not, as the defendant claims, tell the jurors that the Criscos correctly identified the intruder as their neighbor. Rather, it merely stated the obvious: that the Criscos knew their neighbor. The court very carefully attributed the identification to the Criscos, and in no way indicated agreement with their identification. Additionally, the court had previously told the jurors that “you are the sole judges of the facts, the sole judges of whether or not they are sufficient to demonstrate the guilt of the accused, or whether they do demonstrate his innocence.” Right after giving the challenged charge, the court again emphasized the distinctions between the judge’s role and that of the jury. He stated that “I have just outlined my recollection of the facts. Of course, as I say, yours controls. If anything I said doesn’t agree with yours you take your version, not mine.”

There are additional reasons to conclude that the court did not relieve the state of the burden of proving the identity element. Immediately after giving the challenged portion of the charge, the court charged the jurors on the state’s burden to prove identity. It stated as follows: “Now I have mentioned that the burden of proof is at all times on the State to prove beyond a reasonable doubt all the essential elements of the crime. One of those elements is, of course, the identification of the acccused as the person who committed the crime, so that even though you find that a crime was committed you must be satisfied beyond a reasonable doubt that this accused committed that crime before you find him guilty of committing the crime.” (Emphasis added.) Through this language, which came after the portion of the charge the defendant challenges, the court clearly and unequivocally told the jury that the state was required to prove that the defendant was the individual who committed the crime.

The trial court charged the jurors that it was their duty to find the facts, that their recollection of the facts controlled, and that the state had the burden of proving every element of the crime beyond a reasonable doubt. It did not direct or advise the jury how to decide the case.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-101 (a) provides: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument, or (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       Because the state did not include a counter statement of facts in its brief, we assume that it agrees with the facts contained in the defendant’s brief. Practice Book § 3060G (c).

       As a predicate to proving burglary in the first degree, the state must prove that the defendant entered or remained unlawfully in a building with the intent to commit a crime therein.

       The statutory definition of dangerous instrument reads in part as follows: “any instrument, article, or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . General Statutes § 53a-3 (7). Serious physical injury is defined in part as follows: ‘ ‘physical injury which creates a substantial risk of death . ” General Statutes § 53a-3 (4). In determining whether an object is a dangerous instrument within the meaning of General Statutes § 53a-3 (7), the dispositive issue is not the nature of any injury inflicted, but rather, whether the object, under the circumstances in which it was used, was capable of causing serious physical injury. State v. Scully, 195 Conn. 668, 678, 490 A.2d 984 (1985); State v. Jones, 173 Conn. 91, 96-97, 376 A.2d 1077 (1977). Here, there was direct evidence that the unknown object was capable of cutting an individual and circumstantial evidence that it was used to cut a screen door. The jury could reasonably infer that such an object, when used offensively during a struggle, is capable of inflicting serious physical injury.


text:
    John Joseph Cimino v. Carl Robinson, Warden (Somers Correctional Institution)
    (3276)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 10
    decision released April 8, 1986

      Joan A. Leonard, assistant public defender, with whom was Denise Drager, assistant public defender, for the appellant (petitioner).

      Walter D. Flanagan, state’s attorney, with whom, on the brief, was Brian E. Cotter, assistant state’s attorney, for the appellee (respondent).
   Bieluch, J.

This is an appeal by the petitioner from the trial court’s denial of his petition for a writ of habeas corpus. The writ, if granted, would have resulted in his immediate release from the Somers Correctional Institution. We conclude that the action of the court was correct.

The petitioner was arrested on August 18,1981, and charged with arson in the third degree, in violation of General Statutes § 53a-113, and burglary in the third degree, in violation of General Statutes § 53a-103. He pleaded not guilty to both counts in the mistaken belief that each charge was a class D felony, carrying a sentence of imprisonment for a term not exceeding five years, or a combined maximum of ten years imprisonment if the sentences were to run consecutively. General Statutes § 53a-35a. This erroneous assumption with regard to his possible maximum sentence was the result of an admitted mistake made by his trial counsel. Counsel had obtained his information regarding the applicable sentences from a recently outdated volume of the General Statutes. Hence, he failed to discover that arson in the third degree, § 53a-113, had been amended by Public Acts 1979, No. 79-570, § 5, to increase its classification for the purposes of sentence from a class D felony to a class C felony. The maximum prison sentence for a class C felony is ten years. General Statutes § 53a-35a (5). Thus, the maximum combined sentence to which the petitioner was in fact exposed was fifteen, not ten years.

After a jury trial, the petitioner was found guilty of both charges. He was sentenced to ten years imprisonment, execution to be suspended after seven years, with probation thereafter for a period of five years for his conviction of arson in the third degree, and to five years imprisonment for the conviction of burglary in the third degree, the two sentences to run concurrently for a total effective sentence of ten years, execution to be suspended after seven years, and probation thereafter for five years. It was at his sentencing that the petitioner first discovered his counsel’s misinformation concerning the maximum penalty for arson in the third degree. Notwithstanding the wrong ceiling on his maximum effective sentence, the petitioner received a term of imprisonment three years less than what he was informed was possible if convicted of both crimes.

In his petition, the petitioner claimed that he was denied effective assistance of counsel because of the mistaken advice he received from his attorney which prevented him from making an informed and intelligent decision regarding whether to plea bargain in exchange for the state’s recommendation of a two year sentence, or to risk trial. The trial court concluded that the erroneous advice did not prejudice the petitioner in any way since “[t]he sentence received was [three years] less than that which the petitioner was advised he could receive, albeit mistakenly.” Additionally, it held that, from the evidence presented, “the court cannot conclude that the petitioner was represented by incompetent counsel.” The petitioner claims on appeal that the court erred (1) in its conclusion that his decision to plead not guilty was sufficiently intelligent and informed, and (2) in permitting his trial counsel to express an opinion as to whether the petitioner would have elected to go to trial had he known of the correct exposure to sentence after trial. We find no error.

With regard to the petitioner’s first claim, the sentence imposed was three years shorter than the maximum sentence which he admits that he had been willing to risk all along. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. . . . The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify relianee on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” Strickland v. Washington, 466 U.S. 668, 691, 104 S. Ct. 2052, 80 L. Ed. 2d 674, 696, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984). “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., 698. The trial court found that the petitioner did not prove either that his counsel was ineffective or that he was prejudiced by trial. Even if we assume without deciding that the trial court was incorrect as to the denial to the petitioner of effective assistance of counsel, we cannot disturb its finding that the erroneous advice did not prejudice the petitioner.

Although the petitioner was unwittingly exposed to the greater risk of being sentenced to a maximum of fifteen years imprisonment on the two charges, rather than the ten years which he was told was the maximum, the trial court did not find that, but for the error, the result would have been different. First, there was no finding or evidence that, had he accepted the state’s offer of a two year maximum sentence, the court would have accepted the plea bargain and imposed that sentence. Second, the petitioner expected concurrent sentences on the two charges against him, since these were his first felony offenses, but he knowingly risked that his sentences might run consecutively for a maximum of ten years even based only on the mistaken information. He gambled on a trial. He rolled the dice, hoping for less than the offered recommendation of two years against the odds of a possible ten years, but he did not lose all that he risked, for in fact he received a total effective sentence of ten years, execution suspended after seven years, and probation for five years. With hindsight, he now seeks to recall his gamble by placing the onus on counsel who in no way prejudiced him. He cannot now be heard to say that his miscalculation of the odds without any resulting loss should permit him to retract his pleas of not guilty. The error was solely his in not recognizing the “bargain” offered him in the plea bargain negotiations, for he, and not his attorney, took the risk of its refusal.

The petitioner relies upon a battery of case authorities including, among others, State v. James, 197 Conn. 358, 497 A.2d 402 (1985); Buckley v. Warden, 177 Conn. 538, 418 A.2d 913 (1979); State v. Collins, 176 Conn. 7, 404 A.2d 871 (1978); and State v. Schaeffer, 5 Conn. App. 378, 498 A.2d 134 (1985), in support of his argument that the accused must be informed of, and fully understand, the potential sentence facing him when making his plea of not guilty and electing to be tried. Those cases, however, are not relevant to the present issue. Each of them involved the defendant’s decision to plead guilty or nolo contendere knowingly and voluntarily under Practice Book §§ 708 through 718. Practice Book § 711 provides that “[t]he judicial authority shall not accept the plea [of guilty or nolo contendere] without first addressing the defendant personally and determining that he fully understands: ... (4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction . . . .” In such case, the plea of guilty or nolo contendere itself is the basis for the defendant’s conviction and the resulting sentence. The focus of those cases is that an accused’s right to trial should not be compromised by his failure to be fully informed and to understand the factors to be weighed in deciding to plead guilty, and thus waive the constitutional rights associated with his right to trial. Those concerns, however, are not involved where, as here, the petitioner’s decision has not been to forego his right to trial, but rather to exercise that right. In the present case, the petitioner elected to stand on his right to trial. He did not waive his rights “to plead not guilty or to persist in that plea if it has already been made . . . to be tried by a jury or a judge ... to the assistance of counsel . . . to confront and cross-examine witnesses against him, and [his] right not to be compelled to incriminate himself.” Practice Book § 711 (5). His authorities are inapposite to the facts and issue before the court, as is his claim which is based upon them.

With regard to his second claim of error, the petitioner asserts that the court erred in permitting counsel to state his opinion regarding whether correct information as to the maximum sentence on the arson charge and the combined charges would have caused or induced the petitioner to plead differently. The petitioner’s objection to this testimony is essentially that “[t]he court thus allowed a nonexpert witness to give an opinion in response to a hypothetical question.”

Such an opinion, based on personal observation, is not objectionable. Counsel opined that “[the petitioner] appeared very adamant in wanting to proceed with the trial.” “It is permissible to admit into evidence the ‘opinions of common observers in regard to common appearances, facts and conditions . . . in a great variety of cases.’ . . . [Although‘[t]o render opinions of common witnesses admissible it is indispensable that the opinions be founded on their own personal observation, and not the testimony of others, or on any hypothetical statement of facts, as is permitted in the case of experts.’ ” (Citations omitted.) State v. Schaffer, 168 Conn. 309, 318-19, 362 A.2d 893 (1975). Indeed, it has been held that some emotions can only be observed through circumstances so numerous and complicated that “only an opinion or impression may reasonably describe [them].” State v. Palozie, 165 Conn. 288, 299, 334 A.2d 468 (1973). The court in the exercise of its discretion could properly allow such opinion testimony. Id. In the present case, the trial attorney observed and talked to the petitioner as he faced these charges. Counsel was deeply involved in the petitioner’s defense and decision regarding his pleas. The factors which the petitioner balanced and his attitude toward the plea decision facing him were well within the observation of his attorney who was retained to counsel, advise, represent and defend him against his criminal charges.

There is no error.

In this opinion the other judges concurred.


text:
    Robert K. Bartsch et al. v. Planning and Zoning Commission of the Town of Trumbull et al.
    (4056)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 7
    decision released April 8, 1986

      Austin K. Wolf, with whom, on the brief, were Stewart I. Edelstein and John Sapiro, for the appellants (plaintiffs).

      Samuel T. Rost, with whom were Burton S. Yaffle and, on the brief, Eric M. Gross, for the appellees (defendants).
   Bieluch, J.

This appeal arises out of the decision of the named defendant granting the application of the remaining defendants, Milton I. Schwartz, George J. Geanuracos, John F. McGarry, Melvyn Rapoport and Purification Pua, for a zone change and special permit to allow the construction of a medical office building in what had been a Residential AA zone. The trial court dismissed the plaintiffs’ appeal, and we granted their petition for certification to appeal to this court. We find error.

On February 23, 1983, the defendant Milton I. Schwartz applied to the commission to amend the town zoning map and zone boundaries in order to change the classification of property owned by the remaining individual defendants, consisting of 5.959 acres located in Trumbull, from Residence Zone AA to Commercial Zone B-C. At the same time, Schwartz applied for a special permit to construct on these premises a professional medical office building consisting of two floors, a basement, and a parking facility. The public hearing was held on March 16, 1983. Thereafter, the commission approved the application for a zone change conditional upon: (1) the placement on the town land records of a restrictive covenant “limiting use of said premises to a medical office building including the uses incidental thereto, and said restriction shall be perpetual in nature and run with the land”; and (2) the creation of a “green belt” buffer area, fifty feet in width, and supplemented by plantings where necessary, along the boundaries of the property adjoining the surrounding residence zone. On the same day, the commission also approved Schwartz’s application for a special permit to construct the requested professional medical office building and parking area, subject to fifteen conditions. One of those conditions required the “[rjeceipt of revised site plan to incorporate a 50' greenbelt-buffer area surrounding property pursuant to zone change amendment.”

The plaintiffs appealed from the decision of the commission to the Superior Court. That court dismissed the appeal, after finding the action of the commission proper. We granted certification and this appeal followed. The plaintiffs have raised five claims of error for our consideration: (1) whether the court erred in concluding that the requirement of a “green belt” buffer zone in connection with the zoning change did not violate the uniformity requirement of General Statutes § 8-2; (2) whether the court erred in concluding that the uniformity requirement of § 8-2 was not violated by the commission’s requirement that a permanent restrictive covenant be recorded to run with the land; (3) whether the court erred in concluding that the zoning change was not granted without regard to the public health, safety and welfare as required by § 8-2; (4) whether the court erred in finding that the commission did not act arbitrarily and illegally in granting the zone change when a similar application had been denied earlier; and (5) whether the court erred in not finding that the rezoning constituted illegal contract zoning which is beyond the authority of a municipality.

The first two claims of error raised by the plaintiffs deal with the uniformity requirement of General Statutes § 8-2 and we treat these claims concurrently. Section 8-2 provides that “[a]ll [zoning] regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district . . . .” General Statutes § 8-3 sets forth the procedure by which the regulations enacted pursuant to § 8-2 may be established or changed. “Nothing in § 8-3, however, abrogates the express requirement of § 8-2 that such regulations shall be uniform. The obvious purpose of the requirement of uniformity in the regulations is to assure property owners that there shall be no improper discrimination, all owners of the same class and in the same district being treated alike . . . .” Veseskis v. Bristol Zoning Commission, 168 Conn. 358, 360, 362 A.2d 538 (1975).

In the present case, the commission has grossly violated the statutory uniformity requirement by requiring that a perpetual restrictive use covenant be placed on the land records, and that a buffer zone be created between the property at issue and the surrounding properties as a prerequisite to its approval of a zone change.

The commission approved a zone change for 5.959 acres of land owned by the individual defendants from Residence AA to Commercial B-C, “provided however that a restrictive covenant be placed on the Land Records limiting use of said premises to a medical office building including the uses incidental thereto, and said restriction shall be perpetual in nature and run with the land.” The zone change was made effective “ten (10) days after certification by the Town Clerk that said restrictive covenant has been recorded in the Trumbull Town Land Records.”

This perpetual restrictive covenant is a condition precedent to the zone change that exhibits a blatant violation of the strict requirement of § 8-2 that zoning regulations “be uniform for each class or kind of buildings, structures or use of land throughout each district.” In effect, the commission has established a singular and permanent “medical office building use” of the 5.959 acres of land covered by the reclassification to Commercial Zone B-C and set it apart from the regulations for that zoning district. Not only is such a condition contrary to the uniformity requirement of § 8-2 but, additionally, it would create a nonamendable regulation or use classification precluding future changes pursuant to the provisions of § 8-3. Any such restriction on the future amendment of zoning regulations pertaining to the subject property is contrary to the public policy expressed by the legislature in the enactment of § 8-3 providing for the establishment and change of zoning regulations and districts.

Furthermore, “[t]o require by zoning regulation a buffer strip between one zone of a particular classification and another zone of a different class in one specific instance and not in other instances when zones of these two zone classifications abut clearly violates the statutory uniformity requirement [of § 8-2] and is exactly the arbitrary and discriminatory use of the police power which the statute was designed to prevent.” Veseskis v. Bristol Zoning Commission, supra. The defendants’ reliance, here and in the trial court, upon the claim that the commission had a policy which uniformly required the creation of a buffer strip in cases such as the present one is misplaced. Since no requirement exists in the pertinent zoning regulations requiring such buffer strips for zone change borders, the commission’s self-adopted unwritten “policy” exists at its pleasure and discretion. The commission did not have the power or authority under §§ 8-2 and 8-3 to create “a green belt buffer area, 50 feet in width . . . along the boundaries [of the property] which adjoin a residence zone.”

Because our conclusions with regard to these first two claims of error are dispositive of this appeal, we decline to discuss the remaining three claims of error.

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

In this opinion the other judges concurred.

       In addition to the named plaintiff, Eileen I. Bartsch, Elva M. Riccio, Josephine G. Delvecchio, Frances King, Aimee Gallucci and Eva King, all of whom own land abutting the premises at issue, are plaintiffs herein.

       In addition to these claims, the plaintiffs have raised an additional issue which we do not consider. This issue was not briefed and is, therefore, deemed abandoned. Fullerton v. McGowan, 6 Conn. App. 624, 625 n.1, 507 A.2d 473 (1986).

       The restrictive covenant “perpetual in nature [to] run with the land” limiting the use of the 5.959 acres contained in the premises to a medical office building, while appearing beneficial to the property owners in their present desire, could foreseeably become a heavy cloud upon the land title in the future upon a change in circumstances of the ownership or surrounding area.


author: Daly, J.

text:
    Roseann Maresca v. Lisa Marie DeMatteo et al.
    (3889)
    Hull, Borden and Daly, Js.

      Submitted on briefs December 13, 1985
    decision released April 8, 1986

      Victor P. Fasano filed a brief for the appellant (named defendant).

      Gwen B. Drielinger and Jack M. Bassett filed a brief for the appellee (plaintiff).
   Daly, J.

This action was brought to foreclose a mortgage given by the named defendant to the plaintiff. In addition to the foreclosure and possession of the mortgaged premises, the plaintiff sought a deficiency judgment against the named defendant.

A judgment of strict foreclosure was rendered on January 3, 1984, in favor of the plaintiff, Roseann Maresca. The amount of the debt was fixed at $69,441.91, plus attorney’s fees, costs and interest from the date of judgment at the rate of 19 percent as provided by the note. The named defendant’s law day of April 24, 1984, passed without any redemption. The final law day for all of the defendants, April 30, also passed without redemption and title vested in the plaintiff on May 1, 1984. The following encumbrancers with liens subsequent to the plaintiff’s mortgage also failed to redeem their interests: the defendants Peter Shanley and Michael Fisher with a mortgage of $6900 dated January 27,1983; the defendant Frank Scopetta with a mortgage of $10,000 dated January 25,1983; and the defendant Yale-New Haven Hospital, Inc., with a judgment lien in the amount of $358.16 plus costs dated March 24, 1983. The plaintiff filed for a deficiency judgment on June 1,1984, and, thereafter, formal proceedings took place culminating in a supplemental judgment dated December 31,1984. Based on an appraisal valuing the premises at $74,000, that judgment assessed a deficiency in favor of the plaintiff in the amount of $5685.29, plus a $150 appraiser’s fee and a $100 attorney’s fee.

The named defendant has appealed from the judgment raising the following errors: (1) the motion for the deficiency judgment was untimely; (2) the deficiency judgment was barred by the usury statutes; (3) prior tax and water liens should not have been deducted from the determined value of the premises; (4) the awarding of interest at the rate of 19 percent to April 30, 1984, was usurious; and (5) the awarding of additional appraiser’s and attorney’s fees in the supplemental judgment was improper.

General Statutes § 49-14 (a) provides in relevant part: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment . . . .” The named defendant contends that her law day, plus thirty days, would have been May 24, 1984, and, therefore, that the plaintiffs motion for deficiency judgment dated June 1, 1984, was untimely.

“[General Statutes § 49-14] is solely a provision for appraisal and deficiency proceedings following foreclosure. The initial determination of strict foreclosure has already taken place, as it must before the statute comes into play.” (Emphasis in original.) Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 568, 409 A.2d 1020 (1979). “ ‘The plain object [of the statute] is to require a mortgage creditor, who appropriates the property in part payment only of his debt, to apply the actual value of the security to the debt before collecting any claimed deficiency,’ and we therefore refer to it as a ‘provision for fixing the actual value of the property as of the date of foreclosure, and for making that valuation a conclusive basis for determining the . . . amount of any claimed deficiency.’ . . . Justice to all parties as well as the purpose of the statute dictates that the value of the property shall be appraised as of the date when title becomes absolute in the mortgagee.” People’s Holding Co. v. Bray, 118 Conn. 568, 571, 173 A. 233 (1934); Staple v. Hendrick, 89 Conn. 100, 103, 93 A. 5 (1915); City Savings Bank of Bridgeport v. Miko, 1 Conn. App. 30, 33, 467 A.2d 929 (1983).

As General Statutes § 49-14 (a) would not be triggered until title became absolute in the plaintiff as of May 1, 1984, the motion was timely filed.

The defendant further claims that the deficiency judgment was barred by the usury statute. General Statutes § 37-4 prohibits the loaning of money to any person at an interest rate greater than 12 percent per year and General Statutes § 37-8 prohibits actions to recover “principal or interest of any loan prohibited” by § 37-4. General Statutes § 37-9 (3), however, provides that the provisions of § 37-4 do not affect “any bona fide mortgage of real property for a sum in excess of five thousand dollars . . . .” The defendant claims that the exemption from the usury statute provided by § 37-9 (3) does not apply to a deficiency judgment, which is an unsecured claim for the balance of the money owed on the promissory note. The defendant argues, therefore, that the 19 percent interest rate on the principal balance is usurious as to any deficiency judgment, and that the provisions of General Statutes §§37-4 and 37-8 bar a deficiency judgment in this case.

Although the precise issue of whether the usury statute applies to a deficiency judgment has never been squarely decided by our Supreme Court, a careful reading of the precedents convinces us that it does apply. “The provision . . . first appearing in . . . 1902, permitting the court to enter a judgment for the deficiency between the debt and the appraisal, was obviously to do away with the necessity of bringing a separate action to satisfy the debt . . . ” Equitable Life Assurance Society v. Slade, 122 Conn. 451, 455, 190 A. 616 (1937). Mortgages have been exempted from usury statutes, leaving relief from the consequences of usury in foreclosure actions to the equity powers of the court. Atlas Realty Corporation v. House, 120 Conn. 661, 669-70, 183 A. 9 (1936). In dictum, the Supreme Court has stated: “Because of this exemption, the defense of usury is unavailable in a suit for foreclosure of the mortgage, even if the defense would be available in a suit upon the note if upon foreclosure of the mortgaged property it was necessary to act upon a deficiency judgment.” Associated East Mortgage Co. v. Highland Park, Inc., 172 Conn. 395, 405, 374 A.2d 1070 (1977).

These cases clearly suggest that the deficiency judgment procedure, although procedurally a part of the foreclosure action, serves the separate function of providing for recovery on the balance of the note which was not satisfied by the strict foreclosure. The dictum of Associated East Mortgage Co. v. Highland Park, Inc., supra, quoted above, recognizes that the deficiency judgment procedure is the functional equivalent of a suit upon the note, to which the usury statute would apply. We conclude, therefore, that usury is a defense in a deficiency judgment proceeding, and that the trial court was in error in precluding it. In some circumstances, a lender can evade the usury bar by showing that he had no intent to extract more than the lawful rate of interest. See, e.g., Mutual Protective Corporation v. Palatnick, 118 Conn. 1, 5, 169 A. 917 (1934). The circumstances of this case, however, preclude such a finding, and the plaintiff has not, in this appeal, suggested that she could make such a showing. The facts established in this record therefore require a conclusion that the usury statute bars the deficiency judgment sought by the plaintiff. Since this issue is dispositive of the appeal, it is unnecessary to consider the remaining issues.

There is error in part, the deficiency judgment is set aside and the case is remanded with direction to render judgment as on file except for the deficiency judgment.

In this opinion the other judges concurred.

       The city of New Haven’s claim in the premises by virtue of a lien for taxes on the list of October 1,1981, in the amount of $899.07, is not affected by this action as it is an encumbrance of record prior in right to the plaintiff’s lien.

       The named defendant does not argue that the plaintiffs motion for a deficiency judgment was not filed within thirty days of May 1, 1984.