text:
    F. P., Inc. v. Collegium and Wethersfield Limited Partnership et al.
    (12617)
    Foti, Freedman and Spear, Js.
    Argued January 14
    decision released March 29, 1994

      Thomas R. Legenhausen, with whom was Gina M. Varano, for the appellant (substitute plaintiff).

      Richard P. Weinstein, for the appellee (defendant Michael Bellobuono).
   Freedman, J.

The substitute plaintiff, F. P., Inc., appeals from the trial court’s denial of a motion for a deficiency judgment. It claims that the trial court improperly found that it could not recover a deficiency judgment because (1) it was not a party to the foreclosure action and (2) it had not filed a substitute complaint. We reverse the judgment of the trial court.

By an amended complaint dated October 11, 1990, Connecticut Bank and Trust Company, N.A., the original plaintiff, sought to foreclose a certain mortgage that it held on real property owned by the defendants located in Hartford. All of the defendants were defaulted. Thereafter, on May 24, 1991, the original plaintiff filed a motion for judgment of strict foreclosure and, on June 3,1991, the original plaintiff filed a motion for substitution of plaintiff. The motion for substitution of plaintiff alleged that F. P., Inc., was the current holder of the note and mortgage that was being foreclosed. On June 10, 1991, the trial court granted the motion to substitute F. P., Inc., as the plaintiff and rendered a judgment of strict foreclosure. On August 15, 1991, the substitute plaintiff filed a motion for a deficiency judgment, and, on November 18, 1992, it filed an amended motion for deficiency judgment, amended to include an allegation as to the value of the property on the date title vested in the substitute plaintiff.

After conducting a hearing on the amended motion for deficiency judgment, the trial court, on June 17, 1993, denied the motion. At that hearing, both the substitute plaintiff and the defendants presented testimony regarding the value of the subject property. In its memorandum of decision, the trial court found that the substitute plaintiff, F. P., Inc., was “not a party nor . . . a foreclosing plaintiff.” The trial court further found that the substitute plaintiff, F. P., Inc., had “not filed a substituted complaint alleging its entitlement to a deficiency judgment.” Thereafter, the plaintiff commenced this appeal and filed a motion to reargue the motion for a deficiency judgment in the trial court. The plaintiff attached to its motion to reargue a transcript of the June 10, 1991 proceedings in the trial court, which revealed that the motion to substitute F. P., Inc., as plaintiff had been granted on that date.

Subsequently, the defendants then filed a motion in the trial court requesting that the trial court articulate its opinion as to fair market value and the entitlement of the substitute plaintiff to a deficiency judgment based on the credibility of the expert witness.

The trial court issued a memorandum of decision presumably in response to both the motion to reargue and the motion for articulation. In this memorandum of decision, the trial court did not address the issue of whether F. P., Inc., had been substituted as the plaintiff. The memorandum of decision stated that “this court reject[s] the testimony of the plaintiffs expert,” that “the value set at the foreclosure shall stand,” and “[accordingly, a deficiency judgment is denied.” The trial court also stated: “This determination of the value of the property makes it unnecessary for this court to grant reargument of the legal issues pertaining to the deficiency judgment because the value of the property does not merit a deficiency judgment. For the reasons stated, the motion to reargue is denied.”

We must first address the defendant Michael Bellobuono’s argument that regardless of whether the trial court was correct on the issue of standing, its finding that the value of the property did not merit a deficiency judgment is dispositive of the matter and, therefore, the judgment of the trial court must be affirmed. We do not agree.

“Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.” Fuller v. Planning & Zoning Commission, 21 Conn. App. 340, 346, 573 A.2d 1222 (1990). “[Ojnce the trial court found that it lacked subject matter jurisdiction to hear the [matter] ... it was without authority to decide the case on the merits.” Cole v. Planning & Zoning Commission, 30 Conn. App. 511, 513 n.1, 620 A.2d 1324 (1993). Here, the trial court’s denial of the amended motion for deficiency judgment on the grounds that the substitute plaintiff was “not a party nor . . . a foreclosing plaintiff” and that it had “not filed a substituted complaint alleging its entitlement to a deficiency judgment” was tantamount to a finding of lack of standing and, therefore, a lack of subject matter jurisdiction. Once the trial court found that it lacked subject matter jurisdiction, it was without authority to determine the value of the property. Therefore, its finding that the value of the property did not merit a deficiency was a nullity and has no dispositive effect.

We must next determine whether the substitute plaintiff did have standing to pursue the deficiency judgment. The trial court’s finding that F. P., Inc., was not a party to the foreclosure action requires little discussion. F. P., Inc., was a party to the foreclosure action, as its motion to be substituted as plaintiff was granted by the trial court on June 10, 1991, prior to the trial court’s rendering of the judgment of strict foreclosure. “A judgment [or decision] is in fact rendered in a cause tried to the court when the trial judge officially announces his [or her] decision orally in open court . . . . ” Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 535, 294 A.2d 573 (1972). The fact that the order of the court was not recorded in the file does not nullify the order. See Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 254-56, 524 A.2d 610 (1987).

“The manner in which to bring a title taken by an assignment pending suit to the attention of the court is by and in an application for a change of parties. . . . No new cause of action, in such case, has arisen; there has been simply a transfer of the right of action for the original cause. . . . The substitution was effected when the order that it be made was passed. Nothing further was required to put the new plaintiff in the shoes of the former plaintiffs.” Fish, Receiver v. Smith, 73 Conn. 377, 385-86, 47 A. 711 (1900). Therefore, when, in an action to foreclose a mortgage, there is a substitution of a new plaintiff arising out of the assignment of the underlying debt and security, it is not necessary for the substitute plaintiff to file an amended complaint.

Any motion to cite in or to admit new parties must state the grounds on which it is made. Practice Book § 103. Here, the motion to substitute, which was unopposed by the defendants, thoroughly described the background and history of the necessity to substitute F. P., Inc., as the plaintiff. Both the trial court and the defendants were fully apprised of the substitute plaintiff’s allegations of interest and the defendants had the opportunity to contest such allegations. See Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., 31 Conn. App. 80, 84-85, 623 A.2d 517, cert. denied, 226 Conn. 908, 625 A.2d 1378 (1993).

We conclude that the substitute plaintiff had standing to initiate and to pursue the motion for deficiency judgment.

The judgment denying the deficiency judgment is reversed and the case is remanded for a new hearing on the motion for a deficiency judgment.

In this opinion the other judges concurred.

       The defendants at trial were Collegium and Wethersfield Limited Partnership, Parkview Limited Partnership, Thomas Shelto, Michael Bellobuono, Stephen Vecchitto, Sandra A. Squillante, Helen Gardner, Frederick L. Lynch, Jr., Dennis Gurevich, and Mac-Gray Company, Inc. The only defendant appearing in this appeal is Michael Bellobuono.

       The motion contained the following allegations:
      “1. On January 6, 1991 the Federal Deposit Insurance Corporation (‘FDIC’) became the receiver of the plaintiff, The Connecticut Bank and Trust Company, N.A., by virtue of a declaration of insolvency and appointment of receiver executed on that date by the Controller of the Currency pursuant to 12 U.S.C. § 1821 (d);
      “2. The FDIC as receiver succeeded to the rights, title and interest of The Connecticut Bank and Trust Company, N.A., including the Note, Mortgage, Assignment and Guarantees referred to in the Complaint;
      “3. The FDIC as receiver then entered into a purchase and assumption transaction with a newly organized national banking association, The New Connecticut Bank and Trust Company, N.A. (‘NCBT’), pursuant to which agreement the FDIC, as receiver, assigned, transferred and conveyed its right, title and interest to certain assets, including the Note, Mortgage, Assignment and Guarantees referred to in the Complaint herein to NCBT;
      “4. Further, on or about May 28, 1991, NCBT assigned all of its right, title and interest to the Note, Mortgage, Assignment and Guarantees referred to in the Complaint in this action, to F. P. Inc., the real party in interest to be substituted as plaintiff herein.”

       The trial court file at that time did not show that the motion to substitute F. P., Inc., as plaintiff had been granted.

       Even though we hold that the trial court, having found that it lacked subject matter jurisdiction, could not then decide the matter on the merits, the finding of the trial court would also fail because “[a]n articulation is not an opportunity for a trial court to substitute a new decision nor to change the reasoning or basis of a prior decision.” Koper v. Koper, 17 Conn. App. 480, 484, 553 A.2d 1162 (1989).

       “[Counsel for the plaintiff]: I also have a motion, Your Honor, to substitute a plaintiff.
      “The Court: I’ll grant that. The New Connecticut Bank and Trust. “[Counsel for the plaintiff]: The New Connecticut Bank also assigned the papers to another entity to take title, F. P., Inc.
      “The Court: All right. Those may be granted. All right, strict foreclosure.”


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    Christopher Dolnack v. Metro-North Commuter Railroad Company et al.
    (12117)
    Landau, Schaller and Cretella, Js.
    Argued October 25, 1993
    decision released March 29, 1994

      Joseph M. Brophy, for the appellant (plaintiff).

      Daniel E. Ryan III, with whom were Charles A. Deluca and, on the brief, John F. Leydon, Jr., for the appellee (named defendant).
   Landau, J.

In this negligence action, the plaintiff appeals from the judgment of the trial court (1) granting the named defendant’s motion for summary judgment, thereby rejecting the plaintiff’s claim that the named defendant should be estopped from raising the statute of limitations by special defense.

The following facts are relevant to this appeal. On September 1,1989, a commuter train collided with the plaintiff’s vehicle at a railroad crossing in Danbury. As a result of the collision, the plaintiff sustained injuries. On January 10,1991, the plaintiff instituted this negligence action against the named defendant, Metro-North Commuter Railroad Company (Metro-North). The plaintiff was a Connecticut resident at the time of the accident. Metro-North operates a railroad service between Grand Central Terminal in New York City and New Haven with branch service to New Canaan, Danbury and Waterbury.

On December 24,1991, Metro-North filed an answer and three special defenses. On September 25, 1992, Metro-North filed a motion for summary judgment based on its special defense claiming that the plaintiffs action was barred by the statute of limitations. On January 19, 1993, the trial court filed a memorandum of decision granting Metro-North’s motion for summary judgment. The trial court found that Metro-North was a public authority created by the New York state legislature, and thus, under the sovereign immunity doctrine, subject to suit only to the extent that immunity was waived by statute. It further found that Metro-North is a wholly owned subsidiary of the Metropolitan Transit Authority, and that both the Transit Authority and Metro-North are public benefits corporations governed by the New York Public Authorities Law. The court stated that § 1276 (2) of the New York Public Authorities Law creates a right to sue the Transit Authority and its subsidiaries within one year after the cause of action in tort arises. Because the plaintiff’s action was commenced fifteen months after the cause of action arose, the trial court held that it was time barred under § 1276 (2) of the New York Public Authorities Law, and granted Metro-North’s motion for summary judgment. This appeal ensued.

“[T]he granting of summary judgment by the trial court must meet well established standards. Practice Book § 384 provides that ‘[t]he judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Sharp v. Wyatt, Inc., 31 Conn. App. 824, 832, 627 A.2d 1347 (1993). “While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment; see D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . Bassin v. Stamford, 26 Conn. App. 534, 537, 602 A.2d 1044 (1992). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. . . . Trotta v. Branford, [26 Conn. App. 407, 410, 601 A.2d 1036 (1992)].” (Internal quotation marks omitted.) Cortes v. Cotton, 31 Conn App. 569, 572-73, 626 A.2d 1306 (1993).

On the basis of our independent review of the doctrine of sovereign immunity, we conclude that the trial court improperly granted the defendant’s motion for summary judgment. The trial court failed to make a threshold determination as to whether, as a matter of law, the defendant was entitled to claim sovereign immunity in this state. In making such a determination, the trial court is required to assess whether the action is, in effect, against the state, or whether the defendant asserting sovereign immunity is an instrumentality of the state to the extent that the interests or rights of the state are directly affected, or whether the state has a pecuniary interest or substantive right to protect. An examination of the attributes of the entity in question will disclose whether there is a state nexus. Several factors for consideration have evolved in determining whether a given entity is an “arm” of the government entitled to be clothed in the tort immunity of the state. These inquiries include whether the entity was created by the state and to whose control the entity is subject, an analysis of the issues involved and the relief sought, whether the state itself has a pecuniary interest or a substantive right in need of protection, whether the governmental body functions statewide, does the state’s work, was created by the state legislature and is subject to local control, and to what extent the entity depends financially on state coffers, and whether the instrumentality was created as a state agency and empowered to accomplish a public purpose. Some other considerations are the character of power delegated to the governmental body by a legislative enactment, the relation of the entity to the state, whether the entity is a public corporation separate from the state, and whether the instrumentality uses state owned land or owns the land independently. The fact that an entity was created by a state statute does not alone establish that it is an arm of the state. Indeed, all of the above characteristics must be examined before a trial court can conclude that a governmental body is entitled to sovereign immunity.

“In ruling on a motion for summary judgment, the trial court’s function is not to decide issues of material fact, but rather to decide whether any such issues exist. Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982).” Cortes v. Cotton, 31 Conn. App. 569, 575, 626 A.2d 1306 (1993). Our review of the record shows that there was insufficient evidence presented by which the trial court could determine, as a matter of law, that the defendant was entitled to our state’s sovereign immunity. Therefore, we conclude that the trial court improperly granted the motion for summary judgment.

The judgment is reversed and the case is remanded with direction to deny the motion for summary judgment.

In this opinion the other judges concurred.

       The trial court granted the motion for summary judgment filed by the named defendant, Metro-North Commuter Railroad Company. The two remaining defendants, Consolidated Rail Corporation and Peter O’Hara, are defending the plaintiff’s negligence action pending in the trial court.

       Metro-North Commuter Railroad Company is authorized to do business in Connecticut and has a Connecticut agent for service. Metro-North also operates two other rail line services within the state of New York.

       On November 6,1992, the trial court filed a memorandum of decision granting Metro-North’s motion for summary judgment without argument or the benefit of the plaintiffs brief. On November 16,1992, the plaintiff filed a motion to reargue, which the trial court granted on November 30, 1992. A second memorandum of decision was filed on January 19, 1993.

       The New York Public Authorities Law § 1276 (2) (McKinney 1982) provides in pertinent part: “An action against the authority founded on tort shall not be commenced more than one year after the cause of action therefor shall have accrued . . . .”

       In granting Metro-North’s motion for summary judgment, the trial court rejected the plaintiffs claim of estoppel. Because resolution of the plaintiffs first claim is dispositive of this appeal, we do not address the estoppel claim.

       In determining whether an action was a suit against the state, the court in Robb v. Sutton, 147 Ill. App. 3d 710, 713, 498 N.E.2d 267 (1986), analyzed two factors, the issues involved and the relief sought. “[I]f a judgment for the plaintiff could operate to control the actions of the State or subject it to liability, it will then be deemed an action against the State, even though the State is not a named party.” Id.

       A governmental body cannot avoid suit simply because of its governmental nature. “[W]hether any governmental entity is amenable to suit depends upon whether it is or is not part of the [state] . . . .” Specter v. Commonwealth, 462 Pa. 474, 478, 341 A.2d 481 (1975).

        “In order for the doctrine [of sovereign immunity] to apply and immunity to attach, the relief asked must involve some direct or substantial interest of the state. (Lefebvre v. Somersworth Shoe Co., 93 N.H. 354, 357 [41 A.2d 924 (1945)]; see Morrill v. American Reserve Bond Co., 151 F. 305, 308-310 (1907); Ex parte State, 245 Ala. 193, [16 So. 2d 187 (1943)]; Fidelity & Deposit Co. v. Shaid, 103 W. Va. 432 [137 S.E. 878 (1927)] . . . .) Thus, even though the doctrine of sovereign immunity bars suits against the state and its agencies alike, that doctrine will not be applied where the state or governmental unit, although named as a defendant, is not an actual or interested adverse party.” (Citation omitted; internal quotation marks omitted.) Glassman v. Glassman, 309 N.Y. 436, 443, 131 N.E.2d 721 (1956).

       In Glassman v. Glassman, 309 N.Y. 436, 444, 131 N.E.2d 721 (1956), the New York Court of Appeals held that the suit was not against the state because the state did not stand to lose or gain as a result of the litigation. The court ruled that in a suit against the state in which the doctrine of sovereign immunity applies, the state has a pecuniary interest or substantive right to protect. Id.; see also Fidelity & Deposit Co. v. Shaid, 103 W. Va. 432, 439, 137 S.E. 878 (1927) (declining to apply doctrine of sovereign immunity because no money judgment was sought against governmental agency or state).

        Prendergast v. Park Authority, 227 Va. 190, 194, 313 S.E.2d 399 (1984).

        Robb v. Sutton, 147 Ill. App. 3d 710, 712-13, 498 N.E.2d 267 (1986).

        Glassman v. Glassman, 309 N.Y. 436, 443, 131 N.E.2d 721 (1956).

        Ohio Valley Contractors v. Board of Education, 170 W. Va. 240, 241, 293 S.E.2d 437 (1982). That an entity is heavily dependent on state financial support does not necessarily justify a conclusion that it is entitled to state immunity. Id., 242; see also Deal v. Tannehill Furnace & Foundry Commission, 443 So. 2d 1213, 1216 (Ala. 1983), where the state Supreme Court concluded that a state park commission was created as an arm of the state of Alabama and any judgment for the injured plaintiff would directly diminish any monetary appropriation made by the commission out of the state treasury. Such a payment, the court held, would directly affect a state property right and was “tantamount to a lawsuit against the State itself.” Id.

        Guthrie v. State Ports Authority, 307 N.C. 522, 532, 299 S.E.2d 618 (1983).

        Deal v. Tannehill Furnace & Foundry Commission, 443 So. 2d 1213, 1216 (Ala. 1983).

        Deal v. Tannehill Furnace & Foundry Commission, 443 So. 2d 1213, 1216 (Ala. 1983).

        Deal v. Tannehill Furnace & Foundry Commission, 443 So. 2d 1213, 1215 (Ala. 1983).

       See Deal v. Tannehill Furnace & Foundry Commission, 443 So. 2d 1213, 1216 (Ala. 1983) (that state park commission used state-owned land for its statutory purpose was cited as one factor pointing to strong nexus between commission and state).

       The principle that a state’s sovereign immunity from tort liability extends into a sister state is no longer a required tenet under the United States constitution. Nevada v. Hall, 440 U.S. 410, 99 S. Ct. 1182, 59 L. Ed. 2d 416 (1979). In Hall, the plaintiffs brought suit in California to recover for injuries resulting from a automobile accident in California against the driver of an automobile owned by the university and state of Nevada. The Supreme Court held that a state is not constitutionally immune to suit in the courts of another state. The decision of the Nevada legislature to limit liability in tort was not one in which the people of California had any voice. The system adopted by California was a different system and the court held: “Each of these decisions is equally entitled to our respect.” Id,, 426. The Hall court explained that California’s exercise of jurisdiction would not usurp the principles of sovereign immunity — “traffic accidents occurring outside of Nevada could hardly interfere with Nevada’s capacity to fulfill its own sovereign responsibilities.” Id., 424 n.24; see also Daughtry v. Arlington County, 490 F. Sup. 307 (D. D.C. 1980) (state of Virginia could be sued in District of Columbia for alleged misconduct of Virginia police); Peterson v. Texas, 635 P.2d 241 (Colo. App. 1981) (state of Texas could be sued for negligence in courts of Colorado); Struebin v. Iowa, 322 N.W.2d 84 (Iowa), cert. denied, 459 U.S. 1087, 103 S. Ct. 570, 74 L. Ed. 2d 933 (1982) (state of Illinois could be sued for wrongful death in courts of Iowa); Hansford v. District of Columbia, 329 Md. 112, 617 A.2d 1057 (1993) (District of Columbia could be sued in Maryland court for allegedly tortious activities in Maryland); Wendt v. County of Osceola, 289 N.W.2d 67 (Minn. 1979) (Iowa political subdivision could be sued in Minnesota for negligent failure to post adequate road signs and barricades); Mianecki v. District Court, 99 Nev. 93, 658 P.2d 422, cert. dismissed, 464 U.S. 806, 104 S. Ct. 570, 74 L. Ed. 2d 171 (1983) (doctrine of sovereign immunity did not prevent suit in Nevada against Wisconsin for actions of Wisconsin parolee in Nevada). The Hall court reasoned that “[i]t may be wise policy, as a matter of harmonious interstate relations, for States to accord each other immunity or to respect any established limits on liability. They are free to do so.” Nevada v. Hall, supra, 426. Some states have declined jurisdiction as a matter of comity and public policy. See Newberry v. Georgia Department of Industry & Trade, 286 S.C. 574, 336 S.E.2d 464 (1985); Simmons v. State, 206 Mont. 264, 670 P.2d 1372 (1983).

       The trial court cited, inter alia, Ecker v. West Hartford, 205 Conn. 219, 530 A.2d 1056 (1987), and Morris Plan Industrial Bank v. Richards, 131 Conn. 671, 42 A.2d 147 (1945), for the proposition that Connecticut’s two year statute of limitations in negligence actions could not be applied in this case because it is a procedural limitation rather than substantive in nature. These cases hold that “[wjhere ... a specific time limitation is contained within a statute that creates a right of action that did not exist at common law [as does the statute in this case], then the remedy exists only during the prescribed period and not thereafter. ... In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone.” (Citations omitted.) Ecker v. West Hartford, supra, 232. We need not reach the substantive issue addressed in these cases because the threshold issue of whether there is sovereign immunity was not addressed by the trial court.


author: Per Curiam.

text:
    Ernest Santoro v. Nellie Santoro
    (13001)
    Dupont, C. J., Lavery, Landau and Schaller, Js.
    Considered March 3
    decision released March 29, 1994

      Charles E. Tieman III and Mary Beattie Schairer, in support of the motion.

      Vito A. Castignoli, in opposition to the motion.
   Per Curiam.

The defendant, Nellie Santoro, has filed an amended appeal from the trial court’s order granting the motion by the plaintiff, Ernest Santoro, to terminate the automatic stay. The dispositive issue is whether the defendant can properly appeal from the trial court's order granting the plaintiff's motion to terminate the stay. We conclude that Practice Book § 4049 requires that the amended appeal be dismissed.

The facts of this case are not in dispute. The trial court dissolved the parties’ marriage on October 19, 1993, and ordered the defendant to vacate the family residence within forty-five days. On November 5,1993, the defendant filed an appeal, asserting that the trial court improperly granted the plaintiff possession of the family residence. The filing of the appeal stayed the execution of the order requiring her to vacate the residence. Practice Book § 4046. On December 6, 1993, the plaintiff filed a motion to terminate the stay pursuant to § 4046. After a hearing, the trial court granted the plaintiff’s motion on December 21, 1993, and ordered termination of the stay on December 30,1993, at 5 p.m. In response, the defendant filed a motion for review of the order with this court. This court granted review but denied the relief requested on February 16, 1994.

The defendant filed an amended appeal on January 10,1994, claiming that the trial court improperly granted the plaintiffs motion to terminate the stay. On January 20,1994, the plaintiff filed a motion to dismiss the amended appeal, arguing that a party cannot directly appeal from an order regarding a stay.

“Issues regarding a stay of execution cannot be raised on direct appeal. ‘The sole remedy of any party desiring . . . [review of] ... an order concerning a stay of execution shall be by motion for review under [Practice Book] Sec. 4053.’ ” Scarsdale National Bank & Trust Co. v. Schmitz, 24 Conn. App. 230, 233 n.5, 587 A.2d 164 (1991), quoting Practice Book § 4049; see also Mulholland v. Mulholland, 31 Conn. App. 214, 219 n.4, 624 A.2d 379, cert. granted, 227 Conn. 905, 632 A.2d 693 (1993); In re Clifton B., 15 Conn. App. 367, 368 n.1, 544 A.2d 666 (1988).

Because Practice Book § 4049 provides that the defendant’s sole remedy for review of a stay order is by way of a motion for review under Practice Book § 4053, the defendant cannot properly raise this claim by way of a direct appeal or amended appeal. In the present case, this court has already considered whether the trial court improperly granted the plaintiff’s motion to terminate the stay when we considered the defendant’s motion for review under § 4053.

In State v. Holloway, 22 Conn. App. 265, 577 A.2d 1064, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), we declined to consider a claim that the trial court improperly denied the defendant’s motion for articulation on the basis that the defendant’s argument had already been reviewed by this court in connection with the defendant’s motion for review filed pursuant to Practice Book § 4054. We compared Practice Book §§ 4049 and 4054, and concluded that “[t]o hold otherwise would mean that a defendant, having unsuccessfully sought review by this court of a trial court’s ruling on a motion for articulation, could thereafter present the same issue to this court on the merits of the appeal. We would then be providing two appellate reviews of the same issue.” Id., 275. In this case, if we permitted the defendant to raise this issue again in her amended appeal, we would “be providing two appellate reviews of the same issue.”

The plaintiff’s motion to dismiss the defendant's amended appeal is granted.

       Practice Book § 4049 provides in pertinent part: “The sole remedy of any party desiring the court to review an order concerning a stay of execution shall be by motion for review under Sec. 4053. . . .”

       The defendant’s amended appeal and the plaintiff’s motion to dismiss relate only to the termination of the stay. Our dismissal of the amended appeal has no effect on the defendant’s initial appeal.

       Practice Book § 4046 provides in pertinent part: “In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired ... A motion to terminate the stay of execution may be filed before judgment . . . .”

       Practice Book § 4053 provides in pertinent part: “The court may, on written motion for review stating the grounds for the relief sought, modify or vacate . . . any order made by the trial court concerning a stay of execution on appeal. ...”

       Practice Book § 4054 provides in pertinent part: “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Sec. 4051 may . . . make a written motion for review to the court . . . .”


author: Foti, J. Landau, J.,

text:
    Santina Calabro v. Marie Calabro, Administratrix (Estate of Joseph Calabro), et al.
    (11451)
    Foti, Landau and Freedman, Js.

      Argued December 6, 1993
    decision released March 29, 1994

      Max F. Brunswick, with whom were Andrew M. LaBella, and, on the brief, Sherman A. Zitomer, for the appellants (defendants).

      Timothy Brignole, for the appellee (plaintiff).
   Foti, J.

The defendants appeal from the judgment rendered for the plaintiff, following a jury trial, awarding recovery in the amount of $105,000. The defendants claim that the trial court improperly failed to set aside the verdict as it (1) was against the evidence or contrary to law, (2) awarded excessive damages, (3) was barred by the statute of limitations, and (4) was contrary to the interrogatories as answered by the jury. The defendants also allege that the trial court improperly awarded interest pursuant to General Statutes § 52-192a and refused to declare a mistrial. We reverse the judgment and remand for a new trial.

The jury could reasonably have found the following facts relevant for purposes of this appeal. The plaintiff, Santina Calabro, and the defendant, Marie Calabro, are sisters-in-law. The plaintiff was the sister of the decedent, Joseph Calabro, and the defendant was his wife. In 1980, the plaintiff entrusted Joseph with the sum of $45,000 upon his representation that he would double or triple her money. The defendant denied that she had any knowledge of the plaintiff’s entrustment. The money represented the bulk of the plaintiff’s life savings and was intended for her retirement. Joseph represented that he would invest the funds by himself or through the C.C.W. Corporation, which he controlled. He allegedly invested the funds in real estate and the purchase of fifty shares of stock in the C.C.W. Corporation. Several real estate purchases were made by the decedent in his and his wife’s names with rights of survivorship.

Joseph Calabro died intestate on August 11, 1986, and the Probate Court appointed the defendant administratrix of his estate on September 4,1986. On July 22,1987, the estate of Joseph Calabro denied the plaintiff’s claim of $135,000. This action was commenced and a revised complaint was filed on August 8, 1988.

The plaintiff’s revised complaint was brought in five counts. The first and second counts were brought against Joseph Calabro for breach of fiduciary duty and negligent misrepresentation, and sought damages for economic harm and emotional distress. The third count was brought against Marie Calabro “acting as Administratrix of the Estate of Defendant, Joseph Calabro, and as heir, devisee or beneficiary of the Estate of Defendant, Joseph Calabro, and as an officer of C.C.W. Corporation” for conversion. The fourth count was against Marie Calabro as successor trustee and alleges breach of fiduciary duty. The fifth count was brought against Joseph Calabro for alleged breach of contract. The plaintiff sought the following relief: the declaration of a trust for the benefit of the plaintiff, an accounting of the trust, the return to the plaintiff of the proceeds once the trust has been terminated, monetary damages, costs and attorney’s fees, and such other relief as the court might deem fit.

The defendants, along with an answer, filed two special defenses alleging that the plaintiff had assumed the risk and that the action was barred pursuant to the limitations of General Statutes § 52-577. The plaintiff denied both special defenses and, in “reply” to the second special defense, alleged (1) fraudulent concealment, (2) false representation, (3) breach of a fiduciary relationship, and (4) laches. The “answer” to the plaintiff’s “reply” denied those allegations.

Many interrogatories were submitted to the jury. In addition, the jury signed and returned, through its foreperson, nine verdict forms directed at each count and each defendant in different capacities. Seven of the forms awarded recovery to the plaintiff of $105,000 damages on the assorted counts against the defendant. The jury returned verdict forms, finding as follows: (1) against the estate of Joseph Calabro on the first, second, and fifth counts; and (2) against Marie Calabro on the second, third and fourth counts. The court rendered judgment for the plaintiff in the amount of $105,000 plus prejudgment interest of $46,585 and counsel fees of $350. Thereafter, the court denied several postjudgment motions by the defendants including motions to set aside the verdict and for remittitur.

We note at the outset that, while the second count of the plaintiff’s complaint was not directed against the defendant Marie Calabro, individually, interrogatory number three asked: “Has the plaintiff proven by a fair preponderance of the evidence the allegations contained in Count Two of her complaint that the Defendant Marie Calabro negligently misrepresented to the Plaintiff such facts which caused her to make an investment in C.C.W. [Corporation] which negligent misrepresentation caused the Plaintiff Santina Calabro to sustain an economic harm?”

The jury responded in the negative to this interrogatory. The jury, nevertheless, returned a verdict form for the plaintiff as against the defendant Marie Calabro “on the Second Count” and awarded $105,000 in damages. In addition, the jury returned a verdict against Marie Calabro on all other counts directed at her. The plaintiff, at oral argument, conceded that submitting this interrogatory and the corresponding verdict form to the jury was improper as to count two.

The trial court has broad discretion in deciding whether to set aside a jury verdict; O’Brien v. Seyer, 183 Conn. 199, 208, 439 A.2d 292 (1981); and a reviewing court should accord great weight to that decision. Labatt v. Grunewald, 182 Conn. 236, 240, 438 A.2d 85 (1980). “ Tn reviewing the action of the trial court in denying ... [a motion] to set aside the verdict . . . we decide only whether, on the evidence presented, the jury could fairly reach the verdict they did. . . ” (Citation omitted.) Ginsberg v. Fusaro, 225 Conn. 420, 431, 623 A.2d 1014 (1993). The question is whether the jury could reasonably and legally have reached its conclusion. Gemme v. Goldberg, 31 Conn. App. 527, 541, 626 A.2d 318 (1993).

“The court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding. Miles v. Sherman, 116 Conn. 678, 683, 166 A. 250 (1933); Fine v. Connecticut Co., 92 Conn. 626, 630-31, 103 A. 901 (1918). Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982).” (Internal quotation marks omitted.) Goodmaster v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993). It is axiomatic that the parties are bound by their pleadings. The court should submit to the jury all issues outlined by the pleadings and reasonably supported by the evidence. Id.

In a civil case, when a “verdict rests upon a factual finding contradictory to another finding of the same issue by the trier the judgment cannot stand.” Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 577, 479 A.2d 781 (1984). The record indicates on its face that the jury was confused and may have been misled by the interrogatories. Particularly, the jury found that the plaintiff had failed to establish negligent misrepresentation by Marie Calabro, individually, and, yet, returned a verdict against her on all counts directed against her. The verdict forms, the interrogatories, the pleadings, and the jury’s responses cannot be reconciled. “ ‘In a case such as the one before us, where the error is clear and is one which may well have been determinative, [the case] should be considered in the interest of “justice between the parties.” ’ ” Batick v. Seymour, supra, quoting, Capozzi v. Luciano, 174 Conn. 170, 175, 384 A.2d 359 (1978) (Speziale, J., dissenting). We conclude that the trial court should have set aside the verdict.

When a trial court has set aside a verdict, it may, thereafter, either order a new trial or direct entry of judgment as requested by the petitioning party. Practice Book § 321. The determination of the appropriate alternative is within the discretion of the trial court. A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 205 n.5, 579 A.2d 69 (1990). We have reviewed the record. Under all the circumstances of this case, we cannot say that, had the trial court set aside the verdict as it should have done, it would have been an abuse of discretion for it to have ordered a new trial rather than to have rendered judgment for the defendants. See Fabrizio v. Youhas, 148 Conn. 426, 429, 172 A.2d 69 (1961). It follows that this court cannot order that judgment be rendered for the defendants; Gibson v. Fullin, 172 Conn. 407, 413-14, 374 A.2d 1061 (1977); Robinson v. Southern New England Telephone Co., 140 Conn. 414, 420-21, 101 A.2d 491 (1953); but must order a new trial. In view of our conclusion that a new trial is required, it is unnecessary to discuss the other claims raised by the defendants.

The judgment is reversed and the case is remanded for a new trial.

In this opinion Freedman, J., concurred.

Landau, J.,

concurring. I concur in the opinion to the extent that it orders a new trial. Because recovery is impossible against Maria Calabro individually under the allegations of the complaint, the trial court should be directed to render judgment for the defendant Maria Calabro, individually, notwithstanding the verdict. See Fabrizio v. Youhas, 148 Conn. 426, 430, 172 A.2d 69 (1961) (Murphy, J., concurring).

       The complaint lists the defendants as “Estate of Joseph Calabro, deceased; and Marie Calabro, individually and as administratrix of the estate of Joseph Calabro.” The complaint and interrogatories refer to the decedent as a defendant. We do so as well only for clarity.

       At oral argument before this court, the parties indicated that a motion to strike was granted as to all the claims of recovery for emotional distress.

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       Although the interrogatories were numbered one through fifteen, three separate interrogatories were marked as number one. There were actually thirty-six answers returned by the jury because of multiple parts to the questions.

       In count three, the jury awarded $105,000 for Marie Calabro’s misconduct in each of the following capacities: (1) as officer of the corporation, (2) as director of the corporation, (3) as administratrix of the estate, and (4) as heir, devisee or beneficiary.


author: Spear, J.

text:
    State of Connecticut v. Justo Cruz
    (12261)
    Foti, Heiman and Spear, Js.
    Argued December 13, 1993
    decision released March 29, 1994

      Kenneth W. Simon, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward R. Narus, assistant state’s attorney, for the appellee (state).
   Spear, J.

The defendant, Justo Cruz, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). The defendant claims that the trial court (1) improperly instructed the jury that a reasonable doubt is not “a slight doubt,” (2) unfairly marshaled the evidence during its charge to the jury, thereby depriving the defendant of a fair trial, and (3) gave an unbalanced and coercive charge after the jury reported that it was deadlocked five to one. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 1, 1992, at approximately 7:40 p.m., the defendant entered the Shell Food Mart at the corner of Sisson Avenue and Park Street in Hartford. After being in the store for about five minutes, he asked the clerk, Amaldo Vega, for change for a dollar. When Vega opened the cash register, the defendant started to take money from the drawer. Vega attempted to close the drawer, but drew back after the defendant brandished a knife and said, “I’ll kill you.” After taking several bills from the cash register, the defendant left the store and fled toward Sisson Avenue.

Officer Oscar Delima of the Hartford police department was dispatched to the scene, where Vega described the robber as a Hispanic male with a light moustache, about five feet, nine inches tall, and weighing approximately 155 pounds. The robber wore a blue hooded sweatshirt with orange lettering and light colored jeans. Delima broadcast Vega’s description of the robber over his police radio. Shortly after receiving the broadcast, Detective Eddie Rivera observed the defendant emerge from a driveway on Sisson Avenue. The defendant, who fit Vega’s description, was carrying a white plastic bag. He ran across the street and entered the passenger side of a red Chevrolet Cavalier waiting at a traffic light. Rivera pulled the red car over as it entered the on-ramp to 1-84 east. Within minutes, Officer David Wyman arrived on the scene to assist Rivera. When Wyman approached the car, he saw the defendant stuff something down his shirt. The defendant was then placed in Wyman’s cruiser and Vega was brought to the scene. Vega identified the defendant as the person who had robbed the store, although he now had on different clothes. A search of the white plastic bag revealed light blue jeans and a blue hooded sweatshirt with orange lettering that Vega identified as the clothing worn by the robber. The defendant was then placed under arrest.

At trial, the defendant presented an alibi defense claiming that when the robbery took place, he had been drinking with his nephew, Johnny Sanchez, at Sanchez’ house at 145 Sisson Avenue. Sanchez had called Dickie Madley to give the defendant a ride because the defendant was drunk. Madley was the driver of the red car.

After two days of deliberations, the jury reported that it was deadlocked. The court then gave a “Chip Smith charge” which is frequently given to juries that report an impasse. State v. Smith, 49 Conn. 376, 386 (1881). The instruction charged the jurors to reach their own conclusion and not simply to acquiesce in the conclusions of the others. The instruction also charged each juror, especially those in the minority, to reexamine carefully his or her position with due regard and deference to the opinion of the others. A verdict of guilty was returned the next day.

I

The defendant first claims that the trial court improperly instructed the jury that a reasonable doubt is not a “slight doubt.” The defendant took no exception to this language at trial and challenges the instruction for the first time on appeal. The defendant can prevail on an unpreserved claim only if all of the conditions set out in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), are satisfied. The Golding criteria are as follows: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id.

Only the third factor is disputed by the state. The defendant argues that the court’s instruction was an improper quantification of the reasonable doubt standard that resulted in a lessening of the state’s burden of proof, thereby clearly depriving the defendant of a fair trial. We disagree.

The defendant relies principally on Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990), which disapproved instructions describing reasonable doubt as “such doubt as would give rise to a grave uncertainty,” and “actual substantial doubt” and “a moral certainty.” Id., 40. The United States Supreme Court stated that “[i]t is plain to us that the words ‘substantial’ and ‘grave,’ as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard. When those statements are then considered with the reference to ‘moral certainty,’ rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.” Id., 41.

The defendant argues that the words “a slight doubt” are the “mirror image” of the words “substantial doubt.” He claims that, by instructing the jury that reasonable doubt is something more than a slight doubt, it in effect defined reasonable doubt as substantial doubt, a definition deemed improper under Cage v. Louisiana, supra. This court addressed the use of the words “substantial doubt” in a “reasonable doubt” charge in State v. Dizon, 28 Conn. App. 444, 611 A.2d 432 (1992). We held, after examining the charge as a whole, that there was no constitutional violation by this sole misstatement in a lengthy reasonable doubt charge. Id., 449. This one statement did not rise to the level of the several misstatements contained in the jury instructions in Cage v. Louisiana, supra. State v. Dizon, supra, 448-49.

Although the reasonable doubt instructions here were not as lengthy as those in State v. Dizon, supra, the same reasoning applies. Jury instructions must be examined in their entirety and not clinically dissected. State v. Fernandez, 27 Conn. App. 73, 84-87, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992); State v. Toczko, 23 Conn. App. 502, 507, 582 A.2d 769 (1990). The test is whether reasonable jurors would, on the whole, understand the charge. Francis v. Frank lin, 471 U.S. 307, 315-16, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985); see also State v. Mason, 186 Conn. 574, 585-86, 442 A.2d 1335 (1982).

The defendant relies on cases where attempts to quantify the concept of reasonable doubt have been struck down. Instructions in those cases, however, attempted to quantify reasonable doubt by using examples that could have misled the jury. In State v. Smith, 183 Conn. 17, 24-27, 438 A.2d 1165 (1981), the trial court used an example of “tipping” the scales. Even though the court, in a correcting instruction, said that the scales had to be “ ‘tipped beyond a reasonable doubt,’ ” the court also stated that it could not describe the necessary tipping as “ ‘an inch or a foot or a yard or a mile.’ ” Id., 26-27. This, instruction was held to be reversible error as the jurors could have found guilt if they “believed beyond a reasonable doubt that the ‘scale’ had been tipped in favor of conviction. This is not the same as the constitutionally mandated standard of proof beyond a reasonable doubt.” (Emphasis in original.) Id., 28.

ln State v. DelVecchio, 191 Conn. 412, 464 A.2d 813 (1983), the trial court instructed the jury that “[y]ou don’t have to go a hundred yards for a guilty finding. You got to go somewhere, I suppose, beyond the fifty yard line; where it is in there is up to you to decide.” Id., 417-18. The court’s football field analogy was not cured by an accurate statement of the law. Our Supreme Court held that it was reasonably possible that the jury was misled by the erroneous instruction. Id., 424-25.

In McCullough v. State, 99 Nev. 72, 657 P.2d 1157 (1983), the trial court attempted to illustrate the concept of reasonable doubt with a numerical “scale.” Id., 73. The instruction in which the court quantified reasonable doubt as “ ‘seven and a half, if you had to put it on a [zero to ten] scale’ ” was struck down on appeal. Id., 74.

The problem that arises when courts amplify reasonable doubt instructions is well stated in United States v. Pinkney, 551 F.2d 1241 (D.C. Cir. 1976). The court observed that “[judicial attempts to clarify the meaning of the phrase ‘reasonable doubt’ by explanation, elaboration or illustration . . . more often than not tend to confuse or mislead [the jury].” Id., 1244. Moreover, “the jury is likely to give undue weight to examples, since they are easier to comprehend, and it may simply compare the defendant’s conduct with the example.” People v. Shepherd, 63 Mich. App. 316, 322, 234 N.W.2d 502 (1975).

In this case, the trial court used no such potentially misleading examples. Unlike Cage v. Louisiana, supra, where there were several incorrect statements in the reasonable doubt charge, here there was only one misstatement. That brief statement came at the very beginning of an otherwise unchallenged statement of the law governing reasonable doubt. Such an error in the jury charge is harmless if, in the context of the entire charge, it is not reasonably possible that the jury was misled. State v. Ortiz, 217 Conn. 648, 661 n.11, 588 A.2d 127 (1991); State v. Carrione, 188 Conn. 681, 685, 453 A.2d 1137, cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1982); State v. Willis, 24 Conn. App. 678, 683 n.5, 591 A.2d 445 (1991), aff’d, 221 Conn. 518, 605 A.2d 1359 (1992). It is established law “that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); State v. Cooper, 227 Conn. 417, 444, 630 A.2d 1043 (1993); State v. Crafts, 226 Conn. 227, 249, 627 A.2d 431 (1993); State v. Andrews, 29 Conn. App. 533, 540, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993).

We conclude that the error, if any, in the use of the phrase “slight doubt” in the context of the entire charge on reasonable doubt, could not reasonably have misled the jury. As the defendant has failed to establish the third prong of the Golding test, he cannot prevail on this claim.

II

The defendant next claims that the trial judge unfairly marshaled the evidence in a manner that was “harmfully prejudicial” to his defense. We are not persuaded.

“A trial court often has not only the right, but also the duty to comment on the evidence. State v. Hernandez, 218 Conn. 458, 461-62, 590 A.2d 112 (1991). Fair comment does not become improper merely because it tends to point out strengths, weaknesses, or difficulties of a particular case. State v. Pollitt, 205 Conn. 132, 157, 531 A.2d 125 (1987) .... The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing on any point in issue and may comment on the weight of the evidence as long as it does not direct or advise the jury how to decide the matter. State v. Shannon, 212 Conn. 387, 408, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989).” (Citation omitted; internal quotation marks omitted.) State v. Ash, 33 Conn. App. 782, 798, 638 A.2d 633 (1994).

The trial court instructed the jury at the outset of its charge that the jury’s recollection of the evidence, not the court’s, must govern. The court also instructed the jury that its comments on the evidence were intended to illustrate the principles of law involved in the charge. The court reviewed the testimony of all of the witnesses, and in none of the instructions did the court indicate whether the court believed or disbelieved the evidence. There was no favorable or unfavorable comment on any of the witnesses. There was simply more evidence from the state on which the court could comment than from the defendant.

“In evaluating the court’s charge, we are cognizant that [t]he test of a charge is not whether it applies pertinent rules of law to every ramification of facts conceivable from the evidence. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [State v. Hernandez, supra, 465]; see also State v. Rumore, 28 Conn. App. 402, 411, 613 A.2d 1328 (1992); State v. Lee, 32 Conn. App. 84, 103-105, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993).” (Citations omitted; internal quotation marks omitted.) State v. Ash, supra, 799.

The trial court properly commented on the evidence and did not prejudice the defendant or deprive him of a fair trial.

Ill

The defendant’s last claim is that the trial court gave an unbalanced and coercive charge after the jury reported that it was deadlocked.

The defendant conceded at oral argument that he failed to take an exception to this charge pursuant to Practice Book § 852 and further failed to request review under State v. Golding, supra. As this claim was not properly preserved, we will not review it.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”

       The note from the jury stated: “We can’t come to a unanimous decision as to the guilt of the suspect. The vote is five to one.”

       The court’s charge on reasonable doubt was as follows: ‘ ‘Each element of the charge against the defendant must be proved by the state by a reasonable doubt. [If] proof of even one element of the charge is lacking, you must find the defendant not guilty. . . . A reasonable doubt is not a slight doubt, or any possible doubt, nor is it a surmise, a guess or a conjecture, nor does it arise from feelings of sympathy or pity for the defendant or anyone who may be affected by your verdict. And it doesn’t arise simply because a fact is contested. A reasonable doubt is one which is founded on the evidence and flows naturally from the evidence or lack of evidence. It is, in short, a doubt based on reason. In this connection, it is not necessary for the state to prove the absolute guilt of the defendant or guilt with certainty. Each element which is essential to establish the defendant’s guilt must be proved by facts or circumstances beyond a reasonable doubt.”

       Practice Book § 852 provides in pertinent part: “The [appellate] court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. . . .”


text:
    People’s Bank v. John R. Bartlett, Jr., et al.
    (12173)
    O’Connell, Freedman and Schaller, Js.
    Argued October 5
    decision released November 2, 1993

      Jack Stock, for the appellant (named defendant).

      Robert F. Frankel, for the appellee (plaintiff).

      David Eric Ross, for the defendant Westport Bank and Trust Company.
   Per Curiam.

In this mortgage foreclosure action, the owner of the equity of redemption appeals from the trial court’s denial of his request that the court order a strict foreclosure or, in the alternative, order a new sale date of July 1, 1993. Whether to order foreclosure by sale, and the date of the sale, rest in the discretion of the trial court. Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 355, 579 A.2d 1054 (1990). The trial court did not abuse its discretion in this case.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


text:
    Troy Wylie v. Warden, State Prison Ernest Miller v. Warden, State Prison
    (11650)
    (12096)
    O’Connell, Heiman and Freedman, Js.
    Argued October 4
    decision released November 2, 1993

      Christopher C. Sheehan, deputy assistant public defender, for the appellant (petitioner).

      Steven R. Strom, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Stephen J. O’Neill, assistant attorney general, for the appellee (respondent).
   Per Curiam.

In this combined appeal, each petitioner brought a writ of habeas corpus to the trial court challenging the legality of his confinement. The trial court dismissed both petitions on the ground that it lacked subject matter jurisdiction. Thereafter, the trial court, pursuant to General Statutes § 52-470 (b), granted the petitioners’ petitions for certification to appeal to this court. We dismiss both appeals as moot.

The claim of the petitioners in the trial court was that their confinement was illegal because the department of correction had refused to allow them to apply for admission to the various community release programs provided for in General Statutes § 18-100b. Effective October 1, 1990, General Statutes § 18-100b was amended by No. 90-261, § 3, of the 1990 Public Acts. Section 18-100b (e) now provides that “the commissioner of correction shall not release from confinement any prisoner to an approved community residence after June 30, 1993.”

Since there is no longer any authority for the commissioner of correction to release any prisoner from confinement to an approved community residence, this court can no longer grant the petitioners any practical relief. “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985).

Both appeals are dismissed as moot.


text:
    State of Connecticut v. Larry A. Radicioni State of Connecticut v. Linda J. Hurst
    (11776)
    (11777)
    Daly, Foti and Landau, Js.
    Submitted September 27
    decision released October 12, 1993

      Michael L. Regan, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellant (state).

      Joseph F. Segal, for the appellees (defendants).
   Per Curiam.

This consolidated action is now before us on remand from the Supreme Court. The relevant facts are fully reported in State v. Radicioni, 32 Conn. App. 267, 629 A.2d 432, remanded for reconsideration, 227 Conn. 921, 632 A.2d 698 (1993). We have reconsidered our decision in light of State v. Diaz, 226 Conn. 514, 628 A.2d 567 (1993).

The judgments are reversed and the case is remanded for further proceedings.


text:
    In re Ashley M. et al.

    (11562)
    O’Connell, Landau and Schaller, Js.
    Argued September 28
    decision released November 9, 1993

      Barbara J. Claire, for the appellant (respondent father).

      Benjamin Zivyon, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

We have fully reviewed the records and briefs and considered the oral arguments of the parties. The appeal largely relies on fact bound issues. The trial court’s findings are supported by the evidence and the inferences that may reasonably be drawn therefrom. Having applied the appropriate standard of review, we conclude that the trial court did not abuse its discretion and that its decision conforms to the applicable law.

The judgment is affirmed.


text:
    Jean Bailey v. Nationwide Mutual Insurance Company
    (12029)
    Landau, Sciialler and Cretella, Js.
    Argued October 25
    decision released November 9, 1993

      Peter D. Clark, with whom, on the brief, was Michael P. Bowler, for the appellant (plaintiff).

      A. Jeffrey Somers, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Jamie Scott
    (11848)
    Dupont, C. J., Lavery and Heiman, Js.
    Argued October 28
    decision released November 23, 1993

      Stephen V. Moran, assistant public defender, for the appellant (defendant).

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, was Herbert E. Carlson, supervisory assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Goran Dahl et al. v. Dennis Banks et al.
    (11920)
    Landau, Freedman and Schaller, Js.
    Argued October 27
    decision released November 23, 1993

      Stephen D. Wippermann, for the appellants-appellees (plaintiffs).

      Herbert F. Rosenberg, for the appellees-appellants (defendants).
   Per Curiam.

The judgment is affirmed.


author: PER Curiam.

text:
    Canh Tran Nguyen v. Huu Nguyen
    (11707)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued November 2
    decision released November 23, 1993

      Marci J. Silverman, with whom were Richard G. Kent and, on the brief, Jocelyn L. Birnbaum, for the appellant (defendant).

      Annacarina DelMastro, for the appellee (plaintiff).
   PER Curiam.

The judgment is affirmed.


text:
    Patricia Angiolillo et al. v. Wilma Corris et al.
    (11772)
    Dupont, C. J., Foti and Freedman, Js.
    Argued October 29
    decision released November 23, 1993

      James H. Lee, for the appellant (named defendant).

      Wilfred J. Rodie, Jr., for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    Donna M. Joyce v. Connecticut Bar Examining Committee
    (11890)
    Dupont, C. J., Lavery and Heiman, Js.
    Argued October 28
    decision released November 23, 1993

      Donna M. Joyce, pro se, the appellant (petitioner).

      Carolyn K. Querijero, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   Per Curiam.

The judgment is affirmed.


text:
    Nationwide Mutual Insurance Company v. Todd R. Karzian
    (12011)
    Landau, Freedman and Schaller, Js.
    Argued November 1
    decision released November 23, 1993

      A. Jeffrey Somers, for the appellant (plaintiff).

      Gerald S. Sack, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Anton E. Nemeth v. Gun Rack, Ltd., et al.
    (11802)
    O’Connell, Lavery and Heiman, Js.
    Argued November 3
    decision released November 23, 1993

      James H. Lee, for the appellant (plaintiff).

      Michael T. Wade, with whom, on the brief, was F. Timothy McNamara, for the appellee (defendant Robert M. Carroll).
   Per Curiam.

The judgment is affirmed.


text:
    Robert Fromer v. John Lombardi et al.
    (11878)
    O’Connell, Heiman and Freedman, Js.
    Argued November 2
    decision released November 23, 1993

      Robert Fromer, pro se, the appellant (plaintiff).

      Thomas J. Londregan, for the appellees (named defendant et al.).
   Per Curiam.

The judgment is affirmed.


text:
    Essex Savings Bank v. John F. Coyne et al.
    (12313)
    O’Connell, Lavery and Heiman, Js.
    Argued November 3
    decision released November 23, 1993

      Kenneth R. Davis, for the appellant (named defendant).

      John S. Bennet, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Edward Jurczenia et al. v. Planning and Zoning Commission of the Town of Greenwich et al.
    (11844)
    Heiman, Freedman and Cretella, Js.
    Argued November 2
    decision released November 23, 1993

      Charles W. Pieterse, with whom was L. Page Heslin, for the appellant (named plaintiff).

      Jane D. Hogeman, for the appellee (defendant Vincent Giagni).

      John K. Wetmore, assistant town attorney, for the appellee (named defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Linda Murdick v. Larry R. Meachum, Commissioner of Correction
    (11856)
    Dupont, C. J., Freedman and Schaller, Js.
    Argued November 4
    decision released November 23, 1993

      David B. Bachman, with whom, on the brief, was Frederick M. O’Brien, for the appellant (petitioner).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Timothy Liston, assistant state’s attorney, for the appellee (respondent).
   Per Curiam.

The judgment is affirmed.


text:
    Chester J. Later et al. v. Planning and Zoning Commission of the Town of Cromwell et al.
    (12152)
    Heiman, Freedman and Cretella, Js.
    Argued November 2
    decision released November 23, 1993

      William O. RiisJca, with whom, on the brief, was Gregory T. D'Auria, for the appellants (plaintiffs).

      Richard W. Tomc, with whom, on the brief, was John H. Hanks, for the appellees (defendants).
   Per Curiam.

Although the briefs submitted by the parties raise multiple legal issues, the dispositive threshold question is whether there exists any material issue of fact that would have precluded the trial court from granting summary judgment for the defendant.

We conclude that no such material issue of fact was presented by the plaintiffs’ affidavit filed in opposition to the motion for summary judgment and that the granting of the summary judgment was proper.

The judgment is affirmed.


text:
    Paul N. Wenger, Sr. v. Connecticut National Bank
    (12014)
    Foti, Landau and Heiman, Js.
    Argued November 4
    decision released November 30, 1993

      David M. Somers, for the appellant (plaintiff).

      Neil E. Atlas, with whom, on the brief, was Lynne R. Dzilenski, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Connecticut National Bank et al. v. Paul E. Harrigan et al.
    (12362)
    Lavery, Freedman and Cretella, Js.
    Argued November 8
    decision released November 30, 1993

      Robert W. Storm, with whom, on the brief, was Ralph L. Larson, for the appellant (named defendant).

      Lynne R. Dzilenski, with whom, on the brief, was George E. Hill, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Anne Perzanowski v. Ann Just
    (12478)
    O’Connell, Heiman and Schaller, Js.
    Argued November 5
    decision released November 30, 1993

      Theodore J. Wurz, with whom, on the brief, was Mary-Lynn Krusz, for the appellant (plaintiff).

      Robert B. Levine, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Helen J. Lynch
    (12330)
    O’Connell, Freedman and Schaller, Js.
    Argued November 30
    decision released December 21, 1993

      John F. Cocheo, for the appellant (defendant).

      Pamela S. Meotti, deputy assistant state’s attorney, with whom were Peter A. McShane, assistant state’s attorney, and, on the brief, C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. James Davis
    (11824)
    O’Connell, Lavery and Schaller, Js.
    Argued December 2
    decision released December 21, 1993

      John L. Stawicki, special public defender, for the appellant (defendant).

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, chief state’s attorney, Warren Maxwell, senior assistant state’s attorney, and Joan Alexander, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Boston Five Mortgage Corporation v. Colonial Land Development, Inc., et al.
    (12138)
    Foti, Freedman and Cretella, Js.
    Argued November 29
    decision released December 21, 1993

      Gregory Musumano, pro se, the appellant (defendant).

      Christopher J. Hug, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Giuseppe Tripodi et al. v. Gem Construction Company, Inc. Gem Construction Company, Inc. v. Giuseppe Tripodi et al.
    (12162)
    (12164)
    FOTI, LAVERY and SCHALLER, Js.
    Argued December 2
    decision released December 21, 1993

      Thomas J. Sansone, for the appellants (plaintiffs in the first case, defendants in the second case).

      David A. Haught, with whom, on the brief, was Anthony J. Pantuso, for the appellee (defendant in the first case, plaintiff in the second case).
   Per Curiam.

The judgments are affirmed.


text:
    Comfed Savings Bank v. Skender Shehu et al.
    (12243)
    Dupont, C. J., Heiman and Freedman, Js.
    Argued December 7
    decision released December 21, 1993

      William F. Gallagher, with whom, on the brief, was William R. Bowles, for the appellants (named defendant et al.).

      Ann R. Stravalle-Schmidt, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Gilbert Johnson
    (12041)
    Foti, Freedman and Schaller, Js.
    Argued November 30
    decision released December 21, 1993

      Deborah Del Prete Sullivan, assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were James Dinnan, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from the trial court’s judgment revoking his probation and committing him to the custody of the commissioner of correction to serve the suspended portion of his sentence. The dispositive issue in this case is whether the trial court applied the proper standard of proof. While the trial court used phrases such as “reliable and probative,” “abundantly clear,” and “sufficient cause,” the only standard stated was “whether there is probable cause to believe he committed the violation of threatening.” (Emphasis added.)

This matter is controlled by State v. Davis, 29 Conn. App. 801, 618 A.2d 557, cert. granted, 225 Conn. 918, 623 A.2d 1024 (1993).

The judgment is reversed and the case is remanded for a new trial.


text:
    State of Connecticut v. Richard Kenyon, Jr.
    (12016)
    Landau, Heiman and Spear, Js.
    Argued December 8, 1993
    decision released January 4, 1994

      Charles A. Eggert, Jr., with whom, on the brief, was Karen E. Souza, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Philip A. Scarpellino, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Seymour Framson v. Frank Riccio
    (11822)
    Dupont, C. J., Lavery and Schaller, Js.
    Argued December 10, 1993
    decision released January 4, 1994

      Francis J. Ficarra, for the appellant (defendant).

      Cathy S. Kohut, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Olga Abdulquader v. Catherine V. Solek
    (11911)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued December 8, 1993
    decision released January 4, 1994

      Donald J. McCarthy, Jr., for the appellant (plaintiff).

      Robyn L. Sondak, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Angela D. Charron v. Daniel G. Stoughton et al.
    (12068)
    O’Connell, Foti and Lavery, Js.
    Argued December 7, 1993
    decision released January 4, 1994

      Patsy M. Renzullo, for the appellant (named defendant).

      John W. Pickard, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Ernest Corriveau et al. v. Aetna Casualty and Surety Company
    (11866)
    Dupont, C. J., Lavery and Spear, Js.
    Argued December 9, 1993
    decision released January 4, 1994

      Alan M. Solomon, with whom, on the brief, were Sandra K. Gerber and Christopher Hynes, legal intern, for the appellants (plaintiffs).

      Joel J. Rottner, with whom, on the brief, was Barbara B. Sacks, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Roger A. Thorpe v. Ducci Electrical Contractors, Inc., et al.
    (12183)
    La very, Landau and Schaller, Js.
    Argued December 9, 1993
    decision released January 4, 1994

      Roger A. Thorpe, pro se, the appellant (plaintiff).

      Mark E. Blakeman, for the appellee (named defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Hans Isbrandtsen et al. v. Planning and Zoning Board of Appeals of the Town of Greenwich et al.
    (10757)
    O’Connell, Foti and Lavery, Js.
    Argued December 7, 1993
    decision released January 4, 1994

      Jeffrey J. Mirman, for the appellants (plaintiffs).

      John K. Wetmore, assistant town attorney, for the appellee (named defendant).
   Per Curiam.

This case is controlled by Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 623 A.2d 1007 (1993).

The judgment is affirmed.


text:
    Barbara Schrader v. United Services Automobile Association
    (12266)
    Lavery, Heiman and Spear, Js.
    Argued December 8, 1993
    decision released January 4, 1994

      Mary-Margaret Dalton, for the appellant (plaintiff).

      Earl F. Dewey II, for the appellee (defendant).
   Per Curiam.

The trial court properly weighed and balanced the forum non conveniens factors as set out in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). Moreover, a Virginia court had already rendered a judgment declaring that Virginia law applied to the policy and that the plaintiff had no rights under the underinsured motorist provisions. That judgment was affirmed on appeal. The plaintiff’s argument that a Connecticut court should be given the opportunity to reach a different result on public policy grounds is not supported by authority and is not persuasive in its reasoning.

The judgment is affirmed.


text:
    Patricia Gillanders v. Horace Bushnell Memorial Hall
    (12175)
    O’Connell, Foti and Lavery, Js.
    Argued December 7, 1993
    decision released January 4, 1994

      Kenneth J. Levine, for the appellant (plaintiff).

      Claudia A. Baio, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Star Enterprise v. Richard Hanna, Trustee, et al. Richard Hanna, Trustee, et al. v. Texaco, Inc.
    (12230)
    Landau, Schaller and Spear, Js.
    Argued December 9, 1993
    decision released January 4, 1994

      Richard W. Farrell, for the appellants (defendants in the first case, plaintiffs in the second case).

      Jerome A. Mayer, for the appellees (plaintiff in the first case and defendant in the second case).
   Per Curiam.

This appeal consists of two separate cases that were consolidated for the purposes of trial and appeal. The defendants in the first case, Richard Hanna and Robert N. Talarico, appeal from the judgment compelling them specifically to perform the option agreement contained in a written lease and finding for the plaintiff on each of the defendants’ counterclaims. They appeal as plaintiffs in the second case from the judgment rendered for the defendant in that case, Texaco, Inc.

Much of the evidence was disputed, but it is axiomatic that this court cannot retry the facts or pass on the credibility of witnesses. State v. Speers, 17 Conn. App. 587, 592, 554 A.2d 769, cert. denied, 211 Conn. 808, 559 A.2d 1142, cert. denied, 493 U.S. 851, 110 S. Ct. 150, 107 L. Ed. 2d 108, cert. denied sub nom. George v. Connecticut, 493 U.S. 893, 110 S. Ct. 241, 107 L. Ed. 2d 192 (1989). The claims raised on appeal attack the court’s factual findings. The appellants have failed to demonstrate that the trial court’s findings were clearly erroneous or that its decision was otherwise erroneous in law. Practice Book § 4061; see U. S. Fidelity & Guaranty Co. v. K.J. Enterprises, Inc., 19 Conn. App. 806, 563 A.2d 1386, cert. denied, 212 Conn. 818, 565 A.2d 538 (1989), cert. denied, 493 U.S. 1088, 110 S. Ct. 1155, 107 L. Ed. 2d 1058 (1990).

The judgment is affirmed.


text:
    Sunland Realty Company v. Knapp Storage, Inc. Knapp Storage, Inc. v. Sunland Realty Company
    (12369)
    (12370)
    (12371)
    (12372)
    O’Connell, Freedman and Schaller, Js.
    Argued January 5
    decision released January 25, 1994

      Daniel Shepro, for the appellant (defendant in the first and second cases, plaintiff in the third and fourth cases).

      George J. Markley, for the appellee (plaintiff in the first and second cases, defendant in the third and fourth cases).
   Per Curiam.

The judgment is affirmed.


text:
    Teresa Sheikh v. Morard Sheikh
    (11945)
    O’Connell, Heiman and Spear, Js.
    Argued December 9, 1993
    decision released January 25, 1994

      William B. Barnes, for the appellant (defendant).

      Thomas B. Lynch, with whom, on the brief, was George F. Martelton, Jr., for the appellee (plaintiff).
   Per Curiam.

This is a marriage dissolution action in which the defendant challenges the trial court’s financial and visitation orders as well as its rulings relating to disclosure of the plaintiff’s interest in a general partnership.

Our standard of review in domestic relations cases is very narrow, and we will afford great deference to a trial court’s rulings. Roach v. Roach, 20 Conn. App. 500, 505, 568 A.2d 1037 (1990). “We will not reverse such a ruling unless the appellant demonstrates that the court has misapplied the law or could not reasonably have reached its conclusions.” Curzi v. Curzi, 21 Conn. App. 5, 7, 570 A.2d 1134, cert. denied, 215 Conn. 802, 574 A.2d 217 (1990). Our review of the record indicates that the trial court acted within its broad discretion. Specifically, the record fails to disclose that the factual findings of the court were clearly erroneous in view of the evidence, that the decision was otherwise erroneous in law; Practice Book § 4061; or unsupported by the evidence. Cromwell Common Associates v. Koziura, 21 Conn. App. 1, 5, 570 A.2d 1131 (1990).

The judgment is affirmed.


text:
    United Electric Supply Company, Inc. v. E. I. Constructors, Inc.
    (12174)
    O’Connell, Heiman and Spear, Js.
    Submitted on briefs January 4
    decision released January 25, 1994

      Bernard Green and Joel Z. Green filed a brief for the appellant (defendant).

      Eugene C. Cushman filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Nancy Burton v. Planning Commission of the Town of Redding et al.
    (12306)
    O’Connell, Lavery and Spear, Js.
    Argued January 4
    decision released January 25, 1994

      Nancy Burton, pro se, the appellant (plaintiff).

      Michael N. LaVelle, for the appellee (named defendant).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Albert Ortiz
    (11966)
    O’Connell, Freedman and Schaller, Js.
    Argued January 5
    decision released January 25, 1994

      Joseph A. Hourihan, with whom, on the brief, were Joan Keating McKeon and Robert J. Sickinger, law student intern, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward Narus, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    City of Stamford v. Milivoje Kovac et al.
    (10693)
    O’Connell, Lavery and Heiman, Js.
    Considered January 7

    decision released February 1, 1994

      Sigmund L. Miller, with whom was Joseph A. Maker, for the appellants (named defendant et al.).

      James V. Minor, assistant corporation counsel, with whom, on the brief, was David M. McCabe, corporation counsel, for the appellee (plaintiff).

       The microfiche record and briefs in this appeal are filed under the date of the original argument before this court, June 8, 1992.

   Per Curiam.

The appeal is dismissed pursuant to Stamford v. Kovac, 228 Conn. 95, 634 A.2d 897 (1993).


text:
    James W. Thomas v. Ileen D. Thomas
    (11948)
    Foti, Freedman and Spear, Js.
    Argued January 7
    decision released February 1, 1994

      Leslie Byelas, for the appellant (plaintiff).

      Herman H. Tarnow filed a brief for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Wilcox Trucking, Inc. v. First Hartford Realty Corporation
    (11971)
    O’Conneijl, Lavery and Schaller, Js.
    Argued January 13
    decision released February 1, 1994

      Douglas G. Farber, for the appellant (plaintiff).

      Jeffrey M. Carlson, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Edward Rosenfeld v. Rose Marie Cymbala et al.
    (11993)
    Landau, Heiman and Freedman, Js.
    Argued January 7
    decision released February 1, 1994

      David M. Sheridan, with whom, on the brief, was James S. Twaddell, for the appellant (plaintiff).

      Robert M. Axelrod, with whom, on the brief, was Deborah L. Moore, legal intern, for the appellee (named defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Village Manor Health Care, Inc., et al. v. Audrey Rowe, Commissioner, Department of Income Maintenance
    (12059)
    Foti, Landau and Heiman, Js.
    Argued January 11
    decision released February 1, 1994

      Joseph D. Anroman, for the appellants (plaintiffs).

      Heather J. Wilson, assistant attorney general, with whom were Arnold I. Menchel, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Elias Jaser v. Raymond Mansi
    (12374)
    Foti, Landau and Speak, Js.
    Argued January 12
    decision released February 1, 1994

      Rocco J. Tirozzi, for the appellant (plaintiff).

      Laurence V. Parnoff, with whom, on the brief, was Kathryn L. Braun, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Louis J. Bishop et al. v. John O. Hastings et al.
    (12107)
    O’Connell, Lavery and Schaller, Js.
    Argued January 13
    decision released February 1, 1994

      David S. Grossman, for the appellants (defendants).

      Sperry A. DeCew, for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Gary Jones
    (12148)
    Lavery, Freedman and Schaller, Js.
    Argued January 11
    decision released February 1, 1994

      Bruce A. Sturman, public defender, for the appellant (defendant).

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and John Gravalec-Pannone, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Ronald Batson
    (11928)
    Lavery, Freedman and Schaller, Js.
    Argued January 11
    decision released February 1, 1994

      Todd A. Edgington, assistant public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Donna Mambrino and Edward Wilson, assistant state’s attorneys, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Leslie B. Urso v. Department of Motor Vehicles
    (12397)
    Foti, Landau and Heiman, Js.
    Argued January 11
    decision released February 1, 1994

      Ralph J. Alexander, with whom, on the brief, was John F. Sullivan, for the appellant (plaintiff).

      Robert T. Morrin, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Gertrude O. Weiss v. City of Stamford et al.
    (12314)
    Dupont, C. J., Heiman and Freedman, Js.
    Argued January 13
    decision released February 1, 1994

      Tobias Weiss, for the appellant (plaintiff).

      James V. Minor, assistant corporation counsel, with whom, on the brief, was Daniel M. McCabe, corporation counsel, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Philip Ireland et al. v. Ten Waterchase Drive Associates et al.
    (11434)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued January 12
    decision released February 1, 1994

      Brian P. Daniels, with whom, on the brief, was Marie A. Casper, for the appellants (defendants).

      Thomas C. Austin, Jr., for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Conservation Commission of the Town of Newtown v. Milivoje Kovac
    (10883)
    Dupont, C. J., Foti and Heiman, Js.
    Argued January 18
    decision released February 15, 1994

      Sigmund L. Miller, for the appellant (defendant).

      Joseph G. Walsh, for the appellee (plaintiff).
   Per Curiam.

We have fully reviewed the record and briefs and considered the oral arguments of the parties. The appeal largely rests on fact bound issues. The trial court’s findings are supported by the evidence and the inferences that may reasonably be drawn therefrom. Having applied the appropriate standard of review, we conclude that the trial court’s findings are not clearly erroneous, that it did not abuse its discretion and that its decision conforms to the applicable law.

The judgment is affirmed.


text:
    Richard D. Lauer v. Planning Commission of the Town of Redding et al.
    (11682)
    O’Connell, Lavery and Spear, Js.
    Argued January 4
    decision released February 15, 1994

      Nancy Burton, for the appellant (plaintiff).

      Michael N. LaVelle, for the appellee (named defendant).
   Per Curiam.

We have carefully examined the record, transcripts and briefs submitted to us in this appeal. After affording the appellant’s claims that are properly before us the appropriate scope of review, we find them to be without merit.

The judgment is affirmed.


text:
    Frank X. Lo Sacco v. Post Newsweek Stations, Connecticut, Inc.
    (12188)
    Foti, Landau and Freedman, Js.
    Argued February 17
    decision released March 8, 1994

      Frank X. Lo Sacco, pro se, the appellant (plaintiff).

      James Sicilian, with whom was Barbara A. Petitjean, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    New England Savings Bank v. Stephen Krijger, Administrator (Estate of Marinus Krijger)
    (12522)
    Lavery, Landau and Schaller, Js.
    Argued February 16
    decision released March 8, 1994

      Stephen Krijger, pro se, the appellant (defendant).

      Edward B. O’Connell, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Nannlisa Baril v. Ernest Mitton et al.
    (12052)
    O'Connell, Heiman and Schaller, Js.
    Argued February 18
    decision released March 8, 1994

      Timothy Brignole, for the appellant (plaintiff).

      Timothy F. Woodbridge, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Gregory Blue
    (12143)
    Dupont, C. J., Landau and Schaller, Js.
    Argued February 14
    decision released March 8, 1994

      Neal Cone, assistant public defender, for the appellant (defendant).

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward Wilson, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Cornelius Hargrove
    (11659)
    Freedman, Schaller and Spear, Js.
    Argued February 15
    decision released March 8, 1994

      Dante R. Gallucci, special public defender, filed a brief for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard P. Eisenman, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Joan M. Honegger et al. v. Lisa L. Platt
    (12423)
    O’Connell, Freedman and Spear, Js.
    Argued February 22
    decision released March 22, 1994

      James A. Mulhall, Jr., with whom was Kevin T. Nixon, for the appellants (plaintiffs).

      Raymond J. Plouffe, Jr., for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Wilson S. Kistler et al. v. Douglas Gnazzo et al.
    (12114)
    Foti, Lavery and Landau, Js.
    Argued February 15
    decision released March 22, 1994

      Jeffrey J. Mirman, for the appellant (named defendant).

      Robert J. Cathcart, with whom, on the brief, were Gregory T. D'Auria and Keith E. Krusz, for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed. See American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 574 A.2d 796 (1990).


text:
    State of Connecticut v. Gregory Bradley
    (12461)
    Lavery, Freedman and Spear, Js.
    Argued February 22
    decision released March 22, 1994

      Thomas M. Conroy, special public defender, for the appellant (defendant).

      Pamela S. Meotti, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Clark, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Elizabeth Anderson v. Douglas S. H. Anderson
    (12061)
    Foti, Heiman and Spear, Js.
    Submitted on briefs February 25
    decision released March 22, 1994

      John R. Williams filed a brief for the appellant (defendant).

      P. Benedict Fraser filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Elizabeth Gallagher, Executrix (Estate of Thomas Gallagher) v. J. William Burns, Commissioner of Transportation et al.
    (12315)
    Foti, Heiman and Schaller, Js.
    Argued February 25
    decision released March 22, 1994

      Steven P. Kulas, with whom, on the brief, was Prescott W. May, for the appellant (plaintiff).

      Edward P. Brady III, for the appellee (named defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Roger A. Maniccia v. Administrator, Unemployment Compensation Act et al.
    (12433)
    Foti, Heiman and Schaller, Js.
    Argued February 25
    decision released March 22, 1994

      Roger A. Maniccia, pro se, the appellant (plaintiff).

      Sharon A. Scully, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (named defendant).
   Per Curiam.

The judgment is affirmed.


text:
    City of Hartford v. Stanley V. Tucker et al.
    (11859)
    Foti, Lavery and Freedman, Js.
    Argued February 23
    decision released March 22, 1994

      Stanley V. Tucker, pro se, the appellant (named defendant).

      Michael C. Collins, for the appellee (plaintiff).
   Per Curiam.

By stipulation of the parties and with the approval of this court, we conclude that the awarding of committee fees and expenses by the trial court was improper.

The order is reversed and the matter is remanded with direction to deny the motion for committee fees and expenses.


text:
    Wendy Z. Sanders v. William C. Sanders
    (12405)
    O’Connell, Landau and Schaller, Js.
    Submitted on briefs February 28
    decision released March 22, 1994

      Paul E. Potanka filed a brief for the appellant (plaintiff).

      Ira A. Jacobs filed a brief for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Citytrust v. Peter C. Steele et al.
    (12654)
    Lavery, Freedman and Cretella, Js.
    Submitted on briefs February 28
    decision released March 22, 1994

      Christopher C. Noble, for the appellant (named defendant et al.).

      Jonathan D. Elliot and Monica M. Copertino filed a brief for the appellee (substitute plaintiff).
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    M.A.T. Associates v. Steven Saunders
    (12556)
    O’Connell, Landau and Schaller, Js.
    Submitted on briefs February 28
    decision released March 22, 1994

      Mark Fitzhugh Lee filed a brief for the appellant (defendant).

      Robert J. Crean filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    Lorraine Benton v. John B. Benton
    (12356)
    Lavery, Freedman and Cretella, Js.
    Submitted on briefs February 28
    decision released March 22, 1994

      Frank P. Cannatelli filed a brief for the appellant (defendant).

      Thomas C. Healey and Leo Vine filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    New England Bank and Trust Company v. Emile B. Ouellette et al.
    (12470)
    Lavery, Freedman and Spear, Js.
    Submitted on briefs February 24
    decision released March 22, 1994

      John H. Parks filed a brief for the appellants (defendants).

      Edward Pontacoloni filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.