author: Stoughton, J.

text:
    State of Connecticut v. Richard Quint
    (6663)
    Dupont, C. J., Daly and Stoughton, Js.
    Argued May 11
    decision released June 27, 1989

      Thomas E. Minogue, Jr., for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda Knight, assistant state’s attorney, for the appellee (state).
   Stoughton, J.

The defendant appeals from the judgment of conviction rendered after a jury returned a verdict finding him guilty of four counts in a six count information. We find no error.

The first two counts of the information charged the defendant with sexual assault in the first degree, a violation of General Statutes § 53a-70 (a). The third, fourth and fifth counts charged the defendant with intentionally aiding another person to commit sexual assault in the first degree, a violation of General Statutes §§ 53a-8 and 53a-70 (a). The sixth count charged the defendant with unlawful restraint in the first degree, a violation of General Statutes § 53a-95 (a). The jury returned a verdict of guilty on counts three, four, five and six. The jurors reported that they were unable to agree on counts one and two, and the court declared a mistrial as to those counts.

The defendant claims that the evidence was insufficient to prove beyond a reasonable doubt that he was guilty as an accessory to three distinct sexual assaults. He also claims that the trial court erred in refusing to grant his motion for a mistrial after a prosecution witness referred to “mug shot files” during his testimony.

After the jury had returned its verdict, the defendant filed a motion for judgment of acquittal pursuant to Practice Book § 899. The court denied the motion. Section 899 provides for a judgment of acquittal following a guilty verdict as to any offense for which the evidence does not reasonably permit a finding of guilty beyond a reasonable doubt.

The jury reasonably could have found the following facts. The victim of the assaults, a seventeen year old girl, had been rollerskating with friends on a Saturday night. At about midnight, she was driven to the apartment of a girlfriend where she remained for about one hour. As she and her girlfriend left to go to a store from which she could telephone to her home for a ride, a car stopped. There were two males in the car, one of whom was the defendant. The victim, her girlfriend, and the two males went to the apartment. The victim talked to her girlfriend about whether it was all right to go with the two males and then left with them for her home in another town. She gave them directions, but agreed when they suggested that they stop to buy some rum and again when they suggested going to a beach cottage. When they arrived at the cottage, the lights were not working. The males built a fire in the living room and the defendant, his companion and the victim drank some rum and beer and talked. The victim tried to use the telephone but was unable to get a dial tone. After some time, the defendant asked the victim to go to another room with him. There was a bed in the room, and the defendant pushed the victim down on the bed and took off her clothing. Later on, three ■other males walked into the room. The defendant tied the victim’s hands above her head while the three others held her legs down. Each of the three other males,, none of whom she could identify, had sexual intercourse with the victim.

At some point, the victim attempted to get loose, breaking a window in the process and suffering scratches on her shoulders. The three other males then left the room, and the defendant told the victim to get dressed. The male who had been with the defendant originally was not one of those who assaulted the victim, and he was outside with the three others when she left the house. The defendant and his original companion drove the victim to a bridge and let her out.

The police were called and the victim took them to the cottage where they found a fire in the fireplace, beer cans on the floor and a broken bedroom window. The victim picked out a picture of the defendant from an array of nine pictures and she identified him in court. Her girlfriend picked out a picture of the defendant from an array of pictures and identified him as the person who had been at her apartment earlier and who had left with the victim. She also identified the defendant in court. There was medical evidence to corroborate the victim’s account.

When the sufficiency of the evidence is challenged, we review the evidence in the light most favorable to sustaining the verdict and determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Levine, 17 Conn. App. 257, 267, 551 A.2d 1271, cert. denied, 210 Conn. 809, 556 A.2d 608 (1989).

The defendant correctly points out that there is no such crime as being an accessory; State v. Edwards, 201 Conn. 125, 130, 513 A.2d 669 (1986); and that the state was required to prove the substantive offense in order to establish accessorial liability. He claims that the state failed to sustain its burden of proving beyond a reasonable doubt that each of three underlying sexual assaults occurred, particularly in light of the fact that the jury could not agree on the two counts charging the defendant himself with having committed sexual assault in the first degree.

It is true that the victim testified that the defendant had twice committed a sexual assault upon her, but we cannot know why the jury failed to convict on those counts and it is useless to speculate upon its reasons. Consistency in the verdicts is not necessary, and the defendant has received the benefit from the mistrial arising out of the failure of the jury to agree on those two counts. State v. Cassidy, 3 Conn. App. 374, 389-90, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985). There was sufficient evidence for the jury reasonably and logically to conclude as it did that the defendant was guilty of the three counts of intentionally aiding another person to commit sexual assault in the first degree and of one count of unlawful restraint in the first degree.

The remaining claim of the defendant arises out of a prosecution witness’ use of the term “mug shot” during his direct examination. A brief description of the circumstances during which this occurred is necessary in order to place the claim in perspective. After the victim testified that she had looked at a number of pictures and had identified one as a picture of the defendant, the state offered the array of nine pictures as an exhibit. The defendant objected, primarily because the pictures showed a portion of a strap used to hold a sign identifying the defendant, claiming that it indicated that he had a prior record. The trial judge determined that there was nothing shown on any picture that was prejudicial to the defendant and overruled the objection. No error is claimed in this ruling.

Thereafter, the state called Ronald Blauvelt, a detective on the Stratford police force. Blauvelt testified that he put together a photo array that included a picture of the defendant. The assistant state’s attorney then asked Blauvelt if he had any names associated with the cottage. Blauvelt gave the following answer: “Yes, I— the name Quint came up. That’s how I — in that, that particular name I used in my investigation in looking into our mug shot files to see if — ”

The defendant immediately objected and, outside the presence of the jury, moved for a mistrial. He claimed that the use of the term “mug shot” had conveyed to the jury the fact that he had a prior record and denied him a fair trial. The trial judge admonished Blauvelt but denied the motion. The defendant excepted to the ruling and claimed that no curative instruction could erase the prejudicial impact of the reference to “mug shot files.” After the jury returned, the court instructed the jurors to disregard the remark and to strike it from their minds.

The defendant claims that the evidence of his acces-sorial liability was not strong and that the use of the term “mug shot” by Blauvelt prejudiced his right to a fair trial by infecting the factfinding process with the extraneous element of some prior bad act. He claims that the instruction tended to emphasize rather than cure any prejudice because it directed attention to the remark. He also asserts that because of the remark by Blauvelt, he was obliged to testify in order to explain his prior arrest.

Basic to the defendant’s claim is the premise that the evidence against him was not strong. We disagree with his assessment of the evidence. Credibility is for the trier of fact, and here the testimony of the victim was certain and decidedly sufficient to convict if believed by the jury. In addition, her testimony was corroborated by her identification of the cottage and by what the police observed therein. Her identification of the defendant as one of the persons with whom she had left for home was corroborated by testimony of her girlfriend.

Although the defendant objected to the offer of the whole array of photographs, he does not claim error in the ruling that admitted them as an exhibit. In his brief, he states that the court overruled his objection after a determination that there was nothing shown in any picture in the array that prejudiced the defendant. He also comments on the effort made by the trial court to mask from the jury’s view any indication that the persons shown in the photographs had prior criminal arrest records. His only claim of error is that the use of the words “mug shot files” was so prejudicial as to require a mistrial.

The trial court enjoys wide discretion in deciding whether a mistrial is warranted, and its decision will be reversed on appeal only if it is established that this discretion has been abused. State v. Hancich, 200 Conn. 615, 625, 513 A.2d 638 (1986); State v. Briggs, 17 Conn. App. 648, 654-55, 554 A.2d 1112 (1989). The reference to “mug shot files” occurred spontaneously, and there was nothing in the question by the assistant state’s attorney that would have suggested the response. Of course it would have been better had it not been said, but the trial court instructed the jury to disregard the statement and added that there are many reasons why police departments might have pictures of various individuals. The “mug shot files” reference was inadvertent and incidental to the purpose of Blauvelt’s testimony and it was not repeated. See United States v. Monks, 774 F.2d 945, 955 (9th Cir. 1985) (no abuse of discretion in denying mistrial after inadvertent references to photo lineup pictures as mug shots).

The prompt action taken by the trial court to instruct the jury to disregard the statement by Blauvelt was a proper response to the defendant’s motion for mistrial. The claim that this action by the trial court could not protect the defendant because it drew attention to the remark adds nothing. See State v. Gary, 211 Conn. 101, 112, 558 A.2d 654 (1989).

The defendant himself took the witness stand and put his prior record before the jury. We reject his claim that he was obliged to do so in order to explain a prior arrest by the mention of “mug shot files.” We assume that the jury followed the court’s admonition to disregard the remark. It is by no means certain that the remark informed the jury that the defendant had committed some prior bad act, since the court told the jury that there are many reasons why police departments might have pictures of various persons. More important to our determination to reject this claim of the defendant is that he testified to an alibi, which was more likely to have been the real reason for his having taken the witness stand. Under those circumstances, it is common practice for a defendant to inform the jury of his prior record in order to forestall an attempt by the state to use his record to attack his credibility.

We cannot find that the trial court abused its discretion in denying the motion for mistrial.

There is no error.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    William R. Petrillo v. Janice A. Petrillo
    (6542)
    Dupont, C. J., Stoughton and Norcott, Js.
    Argued March 7
    decision released March 15, 1989

      Robert S. Kolesnik, with whom, on the brief, was Maureen E. Norris, for the appellant (defendant).

      William R. Petrillo, pro se, the appellee (plaintiff).
   Per Curiam.

We have scrutinized the record and briefs submitted with this appeal. After affording the defendant’s claims of error the appropriate scope of review, we find them to be without merit.

There is no error.


text:
    State of Connecticut v. Roger Harrell
    (6960)
    Borden, Daly and Jacobson, Js.
    Argued February 28
    decision released March 13, 1989

      Ernest J. Diette, Jr., for the appellant (defendant).

      John O Mear a, deputy assistant state’s attorney, with whom were Daniel A. Lyons, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Per Curiam.

On September 27, 1983, the defendant was convicted, after a trial to a jury, of the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48 (a). On October 28, 1983, the defendant was sentenced, on the robbery charge, to a term of twenty years, execution suspended after service of fifteen years, and, on the conspiracy to commit robbery charge, to a term of ten years, execution suspended with three years probation.

On the day the defendant was sentenced, an application for waiver of fees, costs and expenses and for the appointment of counsel to appeal the judgment of conviction was filed. Despite the appointment of a number of appellate counsel between January, 1984, and February, 1987, nothing was done to perfect the defendant’s appeal. On the basis of the particular facts of this case, the defendant was allowed to file a late appeal.

Having thoroughly reviewed the record in this case, we find no error.

There is no error.


text:
    State of Connecticut v. Paul Huzina
    (7239)
    Dupont, C. J., Stoughton and NorcotT, Js.
    Argued March 7
    decision released March 15, 1989

      Dante R. Gallucai, special public defender, for the appellant (defendant).

      Richard F. Jacobson, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Per Curiam.

There is no error.


text:
    Philip A. Cammarano et al. v. Westchester Fire Insurance Company
    (7205)
    Dupont, C. J., Stoughton and Norcott, Js.
    Argued March 7
    decision released March 15, 1989

      Donald A. Mitchell, for the appellants (plaintiffs).

      Ralph F. Scofield, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    State of Connecticut v. Richard Edge
    (7354)
    Borden, Daly and Jacobson, Js.
    Argued March 1
    decision released March 15, 1989

      Nicholas P. Cardwell, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Cecelia Wiederhold, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

There is no error.


text:
    Dorothy Cabral v. Albert Lee
    (6967)
    Borden, Stoughton and Norcott, Js.
    Argued March 8
    decision released March 15, 1989

      Leon O. Gross, for the appellant (plaintiff).

      Barry T. Pontolillo, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Mathew Chmura v. A. Gervasio Construction Company, Inc.
    (7102)
    Spallone, O’Connell and Foti, Js.
    Argued March 16
    decision released March 22, 1989

      Homer G. Scoville, for the appellant (defendant).

      John K. Harris, Jr., for the appellee (plaintiff). .
   Per Curiam.

There is no error.


text:
    In re Frank H.

    (7154)
    Dupont, C. J., Daly and Jacobson, Js.
    Argued March 3
    decision released March 22, 1989

      Jonathan W. A. Ruhe, for the appellant (respondent mother).

      Patricia Lilly Harleston, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle acting attorney general, Joseph I. Lieberman, former attorney general, and Robert W. Garvey, assistant attorney general, for the appellee (petitioner).

      Bessye W. Bennett, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, 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.

The department of children and youth services filed co-terminous petitions on October 7,1987, alleging that Frank H. was a neglected and abused child and seeking to terminate the parental rights of his mother and named father. During the trial court proceeding, it was determined that the unacknowledged father had no legal status with respect to the child. Thus, both petitions concerned only the mother as the sole legal guardian and respondent.

Following a plenary trial, the court found the child to be neglected and abused pursuant to General Statutes § 46b-120, and terminated the mother’s parental rights, pursuant to General Statutes § 17-43a (a). In addition, the court found that the circumstances of the case required a waiver of the one year waiting period as authorized under General Statutes § 17-43a (c).

The respondent appealed to this court, arguing that the trial court erred in waiving the one year period and in finding the evidence sufficient to terminate the mother’s parental rights. The respondent’s claims of error relate strictly to the discretionary and fact-finding powers of the trial court. We have examined the record and briefs and conclude that the court acted properly and in accordance with applicable law. We cannot retry this case. Stiepel v. Cone, 14 Conn. App. 815, 541 A.2d 547 (1988).

There is no error.


text:
    Falls Mills Associates, Ltd. v. Lewis C. Maruzo et al.
    (7209)
    Spallone, O’Connell and Foti, Js.
    Argued March 17
    decision released March 23, 1989

      John C. Driscoll, with whom, on the brief, was William N. Sebastian, for the appellants (defendants).

      F. Herbert Gruendel, with whom, on the brief, was Maureen Duggan Regula, for the appellee (plaintiff).
   Per Curiam.

At oral argument, the parties stipulated, and we agree, that this appeal should be dismissed as moot.

The appeal is dismissed.


text:
    Susan Futia v. Charles Futia
    (7047)
    Spallone, O’Connell and Foti, Js.
    Argued March 15
    decision released March 22, 1989

      Charles R. Futia, pro se, the appellant (defendant).

      Robert P. Cardone, for the appellee (plaintiff).
   Per Curiam.

Our review of the record, transcripts and briefs, and our analysis of those claims of error properly before us fail to disclose any abuse of the broad discretion that the trial court employs in deciding family relations matters.

There is no error.


text:
    Frank X. Lo Sacco v. Debra M. Parmelee et al.
    (6815)
    Borden, Daly and Jacobson, Js.
    Argued February 28
    decision released March 13, 1989

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

The plaintiff appeals from the judgment of the trial court dismissing this case for failure to prosecute with reasonable diligence pursuant to Practice Book § 251, and from the denial of his motion to restore the case to the docket. The court erred in dismissing the case for failure to prosecute with reasonable diligence. Thus, the motion to restore this case to the docket should have been granted by the trial court.

There is error, the judgment is set aside and the case is remanded with direction to restore the case to the docket.


text:
    People’s Bank v. Gaston Garrido, Jr., et al.
    (7015)
    Spallone, O’Connell and Foti, Js.
    Argued March 15
    decision released March 22, 1989

      Douglas A. Strauss, Thomas W. Witherington and James P. Maher filed a brief for the appellant (plaintiff).

      Gerald, T. Wiener and Judith A. Mauzaka filed a brief for the appellee (defendant Elda Garrido).
   Per Curiam.

There is no error.


text:
    Lewis C. Maruzo et al. v. Falls Mills Associates, Ltd.
    (6963)
    Spallone, O’Connell and Foti, Js.
    Argued March 17
    decision released March 23, 1989

      John C. Driscoll, with whom, on the brief, was William N. Sebastian, for the appellants (plaintiffs).

      F. Herbert Gruendel, with whom, on the brief, was Charles McPhedran, law student intern, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Fredrick Carpentino v. Perkins Trucking Company et al.
    (6964)
    Spallone, O’Connell and Foti, Js.
    Argued March 16
    decision released March 28, 1989

      Michael J. McClary, with whom, on the brief, were HughF. Keefe, JohnJ. Keefe, Jr., and CharlesE. Tier-nan III, for the appellant (named defendant et al.).

      Gregory P. Patti, for the appellee (defendant Michigan Mutual Insurance Company).

      Colette Mauborgne, with whom, on the brief, was Kevin J. Maher, for the appellee (defendant Chubb Group of Insurance Companies).

      Jason M. Dodge, for the appellee (defendant Travelers Insurance Company).

      EdwardS. Downes, Jr., for the appellee (defendant Kemper Insurance Company).

      Carl J. Schuman, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, Joseph I. Lieberman, former attorney general, and CarlJ. Schuman, assistant attorney general, for the appellee (defendant Second Injury and Compensation Assurance Fund).
   Per Curiam.

In this appeal, the defendant employer and its insurer have attacked the factual findings of the workers’ compensation commission as affirmed by the compensation review division. We cannot intervene, where, as in this case, such findings are amply supported by the evidence.

There is no error.


text:
    Roderick M. Hartung v. Planning Commission of the Town of Old Lyme et al.
    (6692)
    Dupont, C. J., Stoughton and Norcott, Js.
    Argued March 9
    decision released March 30, 1989

      John S. Bennet, for the appellant (plaintiff).

      James J. Machowski, for the appellees (defendant J. Kirk MacNaughton et al.).

      James Mattern, for the appellee (named defendant).
   Per Curiam.

The trial court dismissed this zoning appeal pursuant to Practice Book § 143 because the plaintiff failed to file a memorandum in opposition to the defendants’ motion to dismiss for lack of aggrievement. This court granted certification to appeal the decision of the trial court.

The result in this case is controlled by Burton v. Planning Commission, 209 Conn. 609, 553 A.2d 161 (1989). Contrary to the plaintiff’s argument, his August 17,1987 filing of a memorandum of law addressing, inter alia, the issue of aggrievement cannot be deemed a response to the motion to dismiss filed on September 15,1987.

There is no error.


text:
    Robert Della Pietra v. American Factors, Inc.
    (6548)
    Borden, Daly and Jacobson, Js.
    Argued March 1
    decision released March 29, 1989

      Robert H. Boynton, for the appellant (defendant).

      Edward J. Botwick, for the appellee (plaintiff).
   Per Curiam.

In this summary process action instituted for the nonpayment of rent, the defendant appeals from the judgment rendered for the plaintiff on the complaint and the counterclaim.

On appeal, the defendant raises seven claims of error that attack either the factual findings of the court, or its exercise of discretion. As we have often stated, we will not retry the case. Coles v. Coles, 17 Conn. App. 831, 832, 553 A.2d 1169 (1989). Our review of the record fails to disclose that the court’s factual findings were clearly erroneous in view of the evidence and pleadings, or that the decision was otherwise erroneous in law; Practice Book § 4061; or unsupported by the evidence. Branigan v. Cohen, 3 Conn. App. 580, 581, 490 A.2d 1019 (1985).

The defendant’s claims that attack the court’s eviden-tiary rulings are also meritless. Rulings involving the court’s discretion will be disturbed on appeal only upon a clear showing of abuse of that discretion. Leech v. Rozbicki, 17 Conn. App. 352, 353, 552 A.2d 451 (1989). Our review indicates that the court’s actions were clearly within its discretion.

There is no error.


text:
    George L. Lepofsky, Trustee v. Kenneth J. Slapin et al.
    (6348)
    Dupont, C. J., Stoughton and Nokcott, Js.
    Argued March 8
    decision released April 5, 1989

      Blair Axel, pro hac vice, with whom was Michael D. Bromley, for the appellants (defendants).

      Lawrence M. Lapiñe, with whom, on the brief, was Christopher R. Bello, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Frank Sponzo et al. v. Zoning Board of Appeals of the Town of Bloomfield
    (7263)
    Spallone, Daly and Jacobson, Js.
    Argued April 5
    decision released April 12, 1989

      Dan E. LaBelle, for the appellants (plaintiffs).

      Bessye W. Bennett, deputy town attorney, for the appellee (defendant).
   Per Curiam.

In this matter, the petition for certification to appeal was improvidently granted.

The appeal is dismissed.


text:
    Philip E. Sullivan v. American Cellophane, Inc. (formerly L.G., Inc.) et al.
    (6874)
    Spallone, Daly and Jacobson, Js.
    Argued April 4
    decision released April 12, 1989

      Philip E. Sullivan, pro se, the appellant (plaintiff).

      Raymond T. DeMeo, with whom, on the brief, was Steven L. Richards, for the appellee (named defendant).

      Susan L. Miller, for the appellee (defendant Kenneth Shluger).

      John B. Farley, with whom, on the brief, was Thomas J. Hagarty, Jr., for the appellee (defendant Jon Schoenhorn).

      William O. Riiska, for the appellee (defendant Igor Sikorsky).
   Per Curiam.

We have carefully reviewed the record in the light of those claims of error properly before us and find such averments to be without merit.

There is no error.


text:
    Sandra Messina v. John Messina
    (7222)
    Spallone, Daly and Jacobson, Js.
    Argued April 5
    decision released April 12, 1989

      Prescott W. May, for the appellant (defendant).

      Gary I. Cohen, with whom were Lee Marlow and, on the brief, Laurel Ellson, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    State of Connecticut v. David Sanchez
    (6961)
    Spallone, Daly and Jacobson, Js.
    Argued April 5
    decision released April 12, 1989

      Donald, Dakers, public defender, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   Per Curiam.

There is no error.


text:
    Mildred Coward v. City of New Haven
    (6835)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued April 12
    decision released April 26, 1989

      W. Martyn Philpot, Jr., assistant corporation counsel, for the appellant (defendant).

      Trida L, Palmieri, for the appellee (plaintiff.
   Per Curiam.

There is no error.


text:
    Medija Redzepi v. Tair Redzepi
    (7144)
    Borden, Stoughton and Norcott, Js.
    Argued April 18
    decision released April 26, 1989

      Paul J. Yamin, for the appellant (defendant).

      Prescott W. May, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Henry O. Briggs v. State Employees Retirement Commission
    (5570)
    Dupont, C. J., Borden and O’Connell, Js.
    Submitted on briefs April 25
    decision released May 15, 1989

      Peter F. Culver filed a brief for the appellant (plaintiff).

      Richard T. Sponzo, assistant attorney general, ClarineNardi Riddle, acting attorney general, Joseph I.

      Lieberman, former attorney general, and Robert E. Walsh and Brian J. Comerford, assistant attorneys general, filed a brief for the appellee (defendant).
   Per Curiam.

This case is here on remand from our Supreme Court; Briggs v. State Employees Retirement Commission, 210 Conn. 214, 554 A.2d 292 (1989); which found error in our earlier decision on the plaintiff’s appeal. See Briggs v. State Employees Retirement Commission, 13 Conn. App. 477, 538 A.2d 225 (1988). In accordance with that remand, we now consider “the plaintiff’s evidentiary claim that he had established a permanent orthopedic disability, [and] his legal claim that the defendant had employed an erroneous legal standard. Briggs v. State Employees Retirement Commission, 13 Conn. App. 477, 480 and nn. 4, 6, 538 A.2d 225 (1988).” Briggs v. State Employees Retirement Commission, supra, 216 n.4. We find no error.

Review of the record discloses substantial evidence to support the board’s finding that the plaintiff had not established a permanent orthopedic disability. With regard to the second claim, we agree with the trial court that the board was aware of and applied the proper statutory standard in evaluating the plaintiff’s application for disability retirement benefits.

There is no error.


text:
    Alexanderina Clarke v. Bridgeport Roman Catholic Diocesan Corporation
    (7080)
    Borden, Spallone and Daly, Js.
    Argued May 2
    decision released May 9, 1989

      John T. Bochanis, with whom, on the brief, was Thomas J. Weihing, for the appellant (plaintiff).

      Michael T. Ryan, with whom was Steven P. Kulas, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    State of Connecticut v. Arthur Luster
    (6609)
    Spallone, Daly and O’Connell, Js.
    Argued April 6
    decision released April 25, 1989

      Thomas Ullman, assistant public defender, for the appellant (defendant).

      Rita Shair, deputy assistant state’s attorney, with whom were Michael Dearington, state’s attorney and, on the brief, Arthur Hadden, former state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals his conviction, after a jury trial, of the crime of possession of marihuana in violation of General Statutes § 21a-279 (c).

After the jury found him guilty of possession of marihuana and acquitted him of the crime of possession of narcotics with intent to sell under General Statutes § 21a-277 (a), the defendant was sentenced to the maximum term of one year imprisonment.

The defendant claims that, in recommending the maximum sentence, the prosecutor committed prose-cutorial misconduct, and that the imposition of the maximum sentence by the court constituted cruel and unusual punishment. Both claims are without merit.

At the time of sentencing, the trial court had before it the report of the probation department’s presentence investigation of the defendant. This report revealed that since 1979 the defendant had been convicted twice for felonies and six times for misdemeanors. Further, the defendant was on probation for another offense at the time he was convicted of the offense involved in this case.

There is no error.


text:
    Evelyn Pliska et al. v. Arietta Tsolakis
    (7187)
    Borden, Stoughton and Norcott, Js.
    Argued April 20
    decision released May 2, 1989

      Stacy A. Welch, with whom, on the brief, was Charles G. Karanian, for the appellant (defendant).

      Nicholas E. DeNigris, for the appellees (plaintiffs).
   Per Curiam.

There is no error.


text:
    John P. Moffett, Jr. v. J. William Burns, Commissioner of Transportation
    (7525)
    Dupont, C. J., Stoughton and Norcott, Js.
    Argued May 9
    decision released May 17, 1989

      James K. Smith, with whom, on the brief, was Robert J. Guendelsberger, for the appellant (plaintiff).

      Louis B. Blumenfeld, with whom was Joseph A. LaBella and, on the brief, Richard A. Ferris, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Morris Silverstein’s Appeal from Probate
    (7446)
    Borden, Spallone and Daly, Js.
    Argued May 5
    decision released May 18, 1989

      Morris Süverstein, pro se, the appellant (plaintiff).

      David C. Rappe, with whom was Constance L. Epstein, for the appellee (defendant Dorothy Mitchell).
   Per Curiam.

In this probate appeal, the plaintiff, Morris Süverstein, executor of the estate of Esther S. Süverstein, has raised fifteen claims of error that either challenge the factual findings of the trial court or implicate its discretionary powers.

Our review of those allegations of error properly before us fails to disclose that the factual findings of the trial court are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. See Practice Book § 4061. Moreover, we have determined that the trial court properly exercised its discretion in conformity with applicable law.

There is no error.


text:
    Elaine DeCarlo v. Michael A. Lombardo
    (7566)
    Dupont, C. J., Stoughton and Norcott, Js.
    Argued May 10
    decision released May 17, 1989

      John Lino Ponzini, with whom, on the brief, was Geoffrey S. Brandner, for the appellant (plaintiff).

      Glen A. Canner, with whom, on the brief, was Michael T. Bologna, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Robert E. Poluhowich v. Lawrence F. DelPonte, Commissioner of Motor Vehicles, et al.
    (7478)
    O’Connell, Norcott and Foti, Js.
    Argued May 17
    decision released May 24, 1989

      Robert J. Mead, with whom, on the brief, was Anthony M. Guerrera, for the appellant (plaintiff).

      John Yacavone, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, and Priscilla J. Green, assistant attorney general, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Marion Perosino, Conservatrix (Estate of Pauline Bolot) v. Charlotte Hungerford Hospital et al.
    (7060)
    Dupont, C. J., Stoughton and Norcott, Js.
    Argued May 9
    decision released May 25, 1989

      Richard D. Casella, for the appellant (plaintiff).

      Jack G. Steigelfest, with whom, on the brief, were Roland F. Young III and Constance L. Epstein, for the appellee (named defendant).

      Vincent M. DeAngelo, with whom were Louis B. Blumenfeld and Karen Jansen Casey, for the appellee (defendant John L. Buckley).
   Per Curiam.

In this suit for medical malpractice, the plaintiff conservatrix claims that the trial court erred in denying her motion for permission to amend her complaint.

After giving the plaintiffs claims the appropriate standard of review, we find that the plaintiff has failed to supply this court with an adequate record upon which to review the basis for the trial court’s decision. Furthermore, it is impossible for us to determine the merits of the plaintiff’s claims of error because of the failure of the plaintiff’s brief to conform to the requirements of Practice Book § 4065.

There is no error.

       Despite the plaintiffs claim to the contrary, the proposed amendment related solely to the named defendant. Therefore, the plaintiffs claim as to the defendant John L. Buckley is without merit.


text:
    Allyn Schiavone v. Joel Schiavone
    (7247)
    Daly, O’Connell and Stoughton, Js.
    Argued May 18
    decision released May 31, 1989

      William H. Narwold, with whom, on the brief, was Barbara M. Schellenberg, for the appellant (defendant).

      Mark R. Soboslai, with whom, on the brief, was Howard A. Jacobs, for the appellee (plaintiff).

      Susan W. Wolfson, for the minor children.
   Per Curiam.

We have carefully examined the record, transcripts and briefs submitted to us on this appeal. After affording the defendant’s claims of error the appropriate scope of review, we conclude that the trial court correctly applied the law to the evidence. Stiepel v. Cone, 14 Conn. App. 815, 541 A.2d 547 (1988).

There is no error.


text:
    Frederick W. Messenger v. Candice N. Messenger
    (7204)
    O’Connell, Norcott and Foti, Js.
    Argued May 17
    decision released June 1, 1989

      William J. Tracy, Jr., with whom, on the brief, were William J. Eddy, Timothy W. Furey and Christopher M. Storm, for the appellant (defendant).

      Sid M. Miller, for the appellee (plaintiff).
   Per Curiam.

We have carefully considered each of the defendant’s claims of error including a plenary review of the record, transcript and briefs of the parties. As the appellant, the defendant has the burden of showing that there was error in the judgment from which the appeal was taken. Janet v. Scarpetti, 17 Conn. App. 825, 552 A.2d 1225 (1989); Manzin v. United Bank & Trust Co., 6 Conn. App. 513, 517, 506 A.2d 169 (1986); B. Holden & J. Daly, Connecticut Evidence § 60. After affording the claims of error the appropriate, scope of review, we conclude that the defendant has not met her burden.

There is no error.


text:
    Cheryl A. Ricciardi v. Edward T. Ricciardi
    (7271)
    Daly, Foti and Jacobson, Js.
    Argued May 16
    decision released June 8, 1989

      Edward T. Ricciardi, pro se, the appellant (defendant).

      Mark M. Wrenn, with whom, on the brief, was James P. Caulfield, for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from the trial court’s denial of his motion to modify child support payments.

The defendant, as the appellant, has the burden of showing that there was error in the judgment from which the appeal was taken. Manzin v. United Bank & Trust Co., 6 Conn. App. 513, 517, 506 A.2d 169 (1986). We have carefully considered the defendant’s claims of error and, after affording those claims the appropriate scope of review, we find that the defendant has not met his burden.

There is no error.


author: Foti, J.

text:
    State of Connecticut v. Roger Poirier
    (7678)
    O’Connell, Norcott and Foti, Js.
    Argued May 19 —
    decision released July 4, 1989

      Glenn E. Knierim, Jr., for the appellant (defendant).

      Carl J. Schuman, assistant attorney general and special assistant state’s attorney, with whom were Joseph

      Rubin, assistant attorney general and special assistant state’s attorney, and, on the brief, Clarine Nardi Riddle, acting attorney general, and John Kelly, chief state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of offering to make home improvements without being registered in violation of General Statutes (Rev. to 1987) § 20-427 (b) (5). The dispositive issue on appeal is whether General Statutes (Rev. to 1987) § 20-427 (b) (5) prohibits a person, whose certificate of registration has expired, from making or offering to make home improvements. We find that it does.

The jury could reasonably have found the following facts. In July, 1980, the defendant registered as a home improvement contractor with the department of consumer protection and was issued a certificate of registration. Each year thereafter, until 1985, the defendant renewed his certificate. After 1985, the defendant did not renew his certificate of registration. On May 28, 1987, the defendant offered to make renovations at the home of a West Hartford resident.

General Statutes (Rev. to 1987) § 20-427 (b) provides in pertinent part: “No person shall ... (5) offer to make or make any home improvement without having first obtained a certificate of registration under this chapter . . . .” (Emphasis added.) The defendant maintains that the phrase “first obtained” limits the applicability of this section in that it only proscribes the offering to make or making by those who never applied for and received a certificate and does not apply to a contractor who, at some time in the past, possessed a valid certificate. Under the defendant’s interpretation of this section, therefore, the fact that a certificate of registration expired, was revoked or denied is of no import. We find that the defendant’s interpretation of this section is untenable and undermines the statute’s purpose to regulate home improvement contractors.

In interpreting a statute, some general principles control. Where two interpretations of a statute are possible and “one alternative proves unreasonable or produces the possibility of bizarre results, then the more reasonable alternative should be adopted.” State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985). Although as a general rule penal statutes must be construed strictly, “they are not to be construed so as to disregard the context in which they exist or to frustrate the obvious intent of the legislature. State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983).” State v. Kozlowski, 199 Conn. 667, 678, 509 A.2d 20 (1986). In reviewing statutes, we may look to the legislative history of the act to determine its scope and purpose, and in doing so we must consider the “ ‘problem in society to which the legislature addressed itself.’ 2A J. Sutherland, Statutory Construction (14th Ed. Sands) § 45.02; see State v. Gaines, 196 Conn. 395, 400, 493 A.2d 209 (1985).” O’Donnell v. Rindfleisch, 13 Conn. App. 194, 202, 535 A.2d 824, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988).

“Statutes should be considered as a whole, reconciling their separate parts so that a reasonable overall interpretation is achieved. Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984).” Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 438, 489 A.2d 398 (1985), aff'd, 200 Conn. 630, 513 A.2d 52 (1986). In reviewing the overall statutory scheme of the Home Improvement Act, it is evident that annual renewal of a certificate is required. The section of the act under which the defendant is charged prohibits “offer[ing] to make or mak[ing] any home improvement without having first obtained a certificate of registration under this chapter.” (Emphasis added.) General Statutes (Rev. to 1987) § 20-427 (b) (5). “Certificate” is defined as that which is “issued under section 20-422.” General Statutes § 20-419 (1). General Statutes § 20-422 (2) provides that the commissioner may “revoke or refuse to renew” any certificate issued under this chapter. In addition, General Statutes § 20-427 (d) expressly states that certificates expire annually and provides the procedure by which certificates must be renewed. Accordingly, we conclude that under the overall statutory scheme of the act, the language “first obtained a certificate of registration under this chapter” contemplates the renewal of certificates on an annual basis as well as first time renewal.

Furthermore, the primary purpose of the act is to protect consumers who contract for home improvement work by issuing certificates of registration to contractors with “no past history of fraud or deceit, and thereby protecting] consumers from any unscrupulous businessmen.” O’Donnell v. Rindfleisch, supra, 203. This statute also protects contractors, by regulating “ ‘the influx of irresponsible and fly-by-night operations, which not only undercut the responsible contractor but also contribute to the industry’s negative image with the public.’ 22 H.R. Proc., Pt. 33, 1979 Sess., pp. 11, 613-14, remarks of Representative William P. Candelori.” Id. To interpret § 20-427 (b) (5), as the defendant posits, to apply only to those contractors who never acquired a certificate of registration, would immunize contractors with expired or revoked licenses from prosecution when they “offer to make or make” home improvements. This result would defeat the clear legislative purpose of the act to protect consumers and certified contractors from unscrupulous contractors.

Finally, we interpret Public Acts 1988, No. 88-269, which amended § 20-427 (b) (5) by replacing the phrase “first obtained” with the word “current,” as a clarifying amendment intended to declare the meaning of the original act. Shelton v. Commissioner, 193 Conn. 506, 514, 479 A.2d 208 (1984); see also State v. Smith, 16 Conn. App. 156, 163 n.6, 547 A.2d 69 (1988).

Accordingly, we hold that General Statutes § 20-427 (b) (5) makes it unlawful for a home improvement contractor whose certificate of registration has expired to offer to make or make home improvements.

There is no error.

In this opinion the other judges concurred.


author: Spallone, J.

text:
    Sandra Carlson Bucy v. Paul C. Bucy
    (6782)
    Borden, Spallone and Jacobson, Js.
    Argued May 3 —
    decision released July 4, 1989

      Gaetano Ferro, for the appellant (defendant).

      Ellen B. Lubell, with whom, on the brief, was Edward Nusbaum, for the appellee (plaintiff).

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

The defendant appeals from an adverse decision rendered by the trial court on the plaintiffs postjudgment motion for contempt. We dismiss the appeal, sua sponte, for lack of a final judgment.

On September 13,1978, the marriage of the parties was dissolved. The judgment of dissolution granted custody of the parties’ two minor children to the plaintiff. The judgment also provided in pertinent part that the defendant was to pay “all medical, dental and orthodontia expenses for the children not covered by insurance and in excess of $100 per child per year.”

In October, 1985, the plaintiff took the parties’ older daughter to Katherine Kernan, a licensed psychologist specializing in the treatment of severe eating disorders. She was diagnosed as suffering from bulimia, anorexia and “an adjustment disorder with mixed emotional features.” The cost of her extensive treatment was $16,036.

The plaintiff submitted the bills to the defendant for payment in accordance with the provisions of the dissolution decree. After the defendant refused to pay the bills, claiming that expenses incurred for Kernan’s services did not constitute medical expenses, the plaintiff brought a motion for contempt seeking enforcement of that part of the judgment requiring the defendant to pay medical expenses and requesting an order requiring the defendant to pay the costs and reasonable counsel fees associated with bringing the motion. After a contested hearing, the trial court found that the costs of the treatment by Kernan for the bulimia, anorexia and adjustment disorder were “medical expenses” within the meaning of the judgment. The trial court expressly limited the defendant’s obligation to pay the medical expenses to $12,030, the cost of those sessions directly concerned with the treatment of the child’s disorders. The court refused, however, to find the defendant in contempt, stating that the defendant’s failure to pay the medical bills “arose out of a dispute over the interpretation of the decree and was not therefore willful.” From this decision, the defendant has appealed.

This appeal must be dismissed because the record clearly establishes that it was not taken from a final decision of the trial court. In its memorandum of decision, the trial court expressly stated: “Counsel are directed to contact this court for a date for an additional hearing to hear and determine the following issues:

“1. At the initial hearing there was testimony regarding medical bills other than those of Dr. Kernan, but the parties felt that they could resolve the issue of those bills between themselves. If, however, they cannot do so, this court will enter appropriate orders in this regard.
“2. The terms by which the defendant husband is to pay the sums he is obligated to pay pursuant to this decision.”

The trial court thus left several issues raised by the plaintiffs motion unresolved, directing counsel to contact the court to schedule a hearing for the purpose of resolving those issues. Instead of proceeding as directed by the trial court, the defendant appealed the incomplete order.

Because there are unresolved issues, the order of the trial court is not final. Although this issue was not raised by the parties, this court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985); Fattibene v. Kealey, 12 Conn. App. 212, 216, 430 A.2d 206 (1987).

The appeal is dismissed.

In this opinion the other judges concurred.

       Some of the charges were for sessions that had been cancelled. The court held that the defendant was not obligated to pay charges for cancelled sessions.

       The trial court also noted the unresolved issue of whether the plaintiff should be awarded attorney’s fees. The issue of counsel fees played no part in our determination of the lack of final judgment in this matter. Our Supreme Court has defined a “bright-line rule” to treat decisions on the merits and on attorney’s fees separately. Paranteau v. DeVita, 208 Conn. 515, 522-23, 544 A.2d 634 (1988). “[W]e hold that a judgment on the merits is final for purposes of appeal even though the recoverability or amount of attorney’s fees for the litigation remains to be determined.” Id., 523.


author: O’Connell, J.

text:
    A. Secondino and Son, Inc. v. Anthony LoRicco
    (6492)
    Spallone, O’Connell and Norcott, Js.

      Argued February 17 —
    decision released July 4, 1989

      Raymond A. Garcia, for the appellant (defendant).

      Richard B. Cramer, for the appellee (plaintiff).
   O’Connell, J.

This is the defendant’s appeal from a judgment granting foreclosure by sale of a mechanic’s lien. The defendant claims that the trial court erred (1) in permitting the amount of damages to be established by an affidavit of debt, (2) in rendering judgment without a prior hearing in damages, (3) in denying his motion to set aside the judgment, (4) in denying the defendant’s motion to make Richard A. LoRicco a party defendant, and (5) in awarding the plaintiff attorney’s fees. We find no error.

The following facts are relevant to this appeal. On September 29, 1986, the plaintiff commenced foreclosure of a mechanic’s lien on a commercial building owned by the defendant. Following numerous mesne pleadings, the court ordered the defendant to file an answer by April 30, 1987. When the defendant failed to do so, the plaintiff moved, pursuant to Practice Book § 351, that the defendant be defaulted for failure to comply with the court’s order. That motion was granted on June 8, 1987, and, on June 10, 1987, notice of the default was mailed to counsel of record.

On June 22,1987, the defendant moved to set aside the default. He claimed that, in rendering the default, the court was not aware that the defendant had filed an objection to the plaintiffs motion for default because it had not been placed in the court file at the time the court had considered the plaintiff’s motion. The court heard the defendant’s motion to set aside the default on July 6,1987, “took the papers,” and denied it later that day.

Prior to the July 6, 1987 hearing, the plaintiff had filed a motion for judgment of strict foreclosure. Upon receiving notice of the court’s denial of his motion to set aside the default, the defendant objected to the foreclosure and sought to reargue the default entered against him. After a hearing on July 27,1987, the court overruled the defendant’s objection and denied the motion to reargue. On October 5, 1987, it rendered judgment of foreclosure by sale and awarded the plaintiff attorney’s fees and costs.

On October 23, 1987, the defendant moved to set aside the judgment of foreclosure by sale. In that motion, he again challenged the default entered against him. In addition, he claimed that the court erred in failing to conduct a hearing in damages prior to rendering the judgment of foreclosure and in awarding attorney’s fees to the plaintiff. The trial court denied the relief sought and this appeal followed.

I

The defendant’s first claim is that the trial court erred in allowing the amount due to be established by an affidavit of debt. Practice Book § 364 (b) allows proof of damages by affidavit of debt in foreclosure cases in which the debt is liquidated. He raises a question as to whether his debt was liquidated.

The facts of the present case are similar to those in Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 475 A.2d 310 (1984). There, as here, the trial court defaulted the defendant and rendered judgment against him based on an affidavit of debt submitted by the plaintiff for the cost of maintenance and repair work that it had performed and that the defendant failed to pay.

In response to the defendant’s claim that he was entitled to a hearing in damages because the debt was not liquidated, the Costello .court found that the defendant had been informed by repeated billings of the amount claimed by the plaintiff during the course of the proceedings. His failure to respond caused the debt to become liquidated within the meaning of § 364 (b), notwithstanding the parties’ failure to come to an agreement during their initial discussions concerning the exact amount due. Id., 166.

“When a debtor knows precisely how much he is to pay and to whom he is to pay it, his debt is a liquidated one.” Id., 165. As in Costello, the defendant in the present case was aware of the amount claimed by virtue of its recitation in the lien and in the complaint. Furthermore, the plaintiff furnished a detailed breakdown of the itemized costs and expenses in response to an interrogatory. If a claim is for an amount certain or “ ‘susceptible of being made certain in amount by mathematical calculations from factors which are or ought to be in the possession or knowledge of the party to be charged’ ” it is a liquidated debt. Id.; Perri v. Cioffi, 141 Conn. 675, 678, 109 A.2d 355 (1954).

Under the circumstances of this case, we have no difficulty concluding that the amount claimed by the plaintiff for materials furnished and services rendered in the construction and renovation of the defendant’s commercial building falls within the definition of a liquidated debt as set forth in Costello. Accordingly, the trial court did not err in allowing the amount due to be established by an affidavit of debt.

II

The defendant next claims that the court erred by rendering a judgment of foreclosure without a prior hearing in damages. The short answer to this claim is that the procedure followed here is expressly sanctioned by Practice Book § 364 (b) which provides in pertinent part that “the court, at the time it renders the default, may also render judgment in foreclosure cases . . . provided the plaintiff has also made a motion for judgment and provided further that any necessary affidavit of debt or accounts or statements verified by oath, in proper form, are submitted to the court.” The effect of this section is to substitute the affidavit of debt for a hearing in damages in appropriate cases.

Here, the plaintiff made a motion for judgment, and its affidavit of debt was in proper form. Nothing more was required to authorize the court to follow the procedure set forth in Practice Book § 364 (b). This claim is meritless.

III

The defendant next claims that the trial court erred in denying his motion to set aside the judgment of foreclosure rendered upon a default. General Statutes § 52-212 furnishes the authority for granting the relief the defendant contends he deserves. It provides in pertinent part that any judgment rendered upon a default “may be set aside . . . upon the complaint or written motion of any party . . . showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment . . . and that the . . . defendant was prevented by mistake, accident or other reasonable cause from making the defense.”

To qualify under § 52-212, the movant must meet a two-prong test: (1) there must be a showing that a good defense, the nature of which must be set forth, existed at the time judgment was rendered; and (2) the party seeking to set aside the judgment had to have been prevented from making the defense because of mistake, accident or other reasonable cause. Cholewinski v. Conway, 14 Conn. App. 236, 241, 540 A.2d 391 (1988). The decision to grant or deny this relief rests within the trial court’s discretion. Id.

The defendant argued vigorously that he had several defenses to assert that he had set forth in a “Notice as to Hearing in Damages” filed on July 16,1987, after he was defaulted. This “notice” was in the file and we will presume that the trial court was aware of the contents of the file. See Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 5-7, 513 A.2d 1218 (1986). We are satisfied that the trial court was apprised of the defendant’s defenses and apparently was not persuaded that they met the first prong of showing that a good defense existed.

Turning to the second prong, the defendant again raises the claim that the court did not have the benefit of his objection when it rendered the default because it had not yet been placed in the court file. The record discloses that the defendant informed the court of this situation during argument on his motion to set aside the default. Because the court distinctly stated that it would decide the matter on the papers, we are satisfied that the court reviewed the defendant’s objection and gave it the proper weight even though it ultimately ruled against him. Until the contrary is shown, the law presumes that judges have acted in accordance with the law. We do not presume error. Brookfield v. Candlewood Shores Estates, Inc., supra, 7. This is not a case where the court refused to reconsider its prior decision in light of a previously missing document. See Asgrow Seed Co. v. Wagner, 12 Conn. App. 547, 548-49, 532 A.2d 1305 (1987). Moreover, by virtue of the defendant’s argument on his motion to set aside the foreclosure and his several other rearguments concerning the default, the court was well aware of his reasons for failing to comply with its order to file an answer and thus had a basis to determine that it was not the result of mistake, accident or other reasonable cause.

In view of the record before it, the trial court did not abuse its discretion in denying the defendant’s motion to set aside the foreclosure judgment.

IV

The defendant’s next claim is that the court erred in denying the application of attorney Richard A. LoRicco to be made a party defendant. Whether to allow the addition of a party to pending legal proceedings generally rests in the sound discretion of the trial court. Lettieri v. American Savings Bank, 182 Conn. 1, 13, 437 A.2d 822 (1980); Christ-Janer v. A.F. Conte & Co., 8 Conn. App. 83, 90, 511 A.2d 1017 (1986). Factors to be considered include the timeliness of the application, the possibility of prejudice to the other party and whether the applicant’s presence will enable the court to make a complete determination of the issues. Lettieri v. American Savings Bank, supra.

In determining whether the trial court abused its discretion, we note that it had the following facts available for its consideration: (1) the application to be made a party had been so recently filed that it was not on the printed short calendar on October 5,1987 when the defendant asked the court to rule on it, (2) a motion for foreclosure was before the court at that time, (3) the action had been pending for twelve months, (4) the “new party” was an attorney who had previously had an appearance in the case representing the defendant, and (5) the “new party” was the defendant’s son. These considerations raise a strong inference that the application was filed solely for the purpose of delay.

We are not convinced that the entry of the defendant’s son as a party would have enabled the court to make a more complete determination of the issues than would have been possible without his entry. On the other hand, we are convinced that the plaintiff, who has had every motion for judgment frustrated by an eleventh hour motion from the defendant, would be prejudiced if the application was granted. Hence, the court did not abuse its discretion in denying Richard A. LoRicco’s application to be made a party defendant.

V

The defendant’s final claim of error is that the court erred in awarding attorney’s fees to the plaintiff. Connecticut case law follows the general rule, frequently referred to as the “American Rule,” that attorney’s fees are not allowed to the prevailing party as an element of damage unless such recovery is allowed by statute or contract. Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 652-53, 529 A.2d 702 (1987). General Statutes § 52-249 (a) succinctly and unambiguously provides for the allowance of attorney’s fees in actions for foreclosure of mortgages or liens.

The defendant asks us to examine the statute’s legislative history and thereby arrive at a construction that would support his claim of error. We decline to do so. Courts will look to legislative history as an aid to construction only if the statute is ambiguous. Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 486, 547 A.2d 528 (1988). “ ‘A statute does not become ambiguous solely because the parties disagree as to its meaning.’ . . . ‘ “If the words of a statute are clear, the duty of a reviewing court is to apply the legislature’s direction, since, where the wording is plain, courts will not speculate as to any supposed intention. The question before a court then is not what the legislature actually intended, but what intention it expressed by the words that it used. . . .”’(Citations omitted.)” Ford Motor Credit Co. v. B. W. Beardsley, Inc., 208 Conn. 13, 18, 542 A.2d 1159 (1988).

The court acted properly in awarding attorney’s fees to the plaintiff.

There is no error.

In this opinion the other judges concurred.

       The trial court at first declined to rule on the application on the grounds that it was not properly before it. Practice Book § 206. It subsequently denied the application.

       General Statutes § 52-249 provides in pertinent part: “COSTS AND attorney’s fees IN ACTIONS FOR foreclosure, (a) The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorney’s fee, as if there had been a hearing on an issue of fact.”


author: Jacobson, J.

text:
    Patricia Maruca et al. v. John Standard
    (7122)
    Spallone, Daly and Jacobson, Js.

      Argued April 7 —
    decision released June 15, 1989

      Richard D. Casella, for the appellants (plaintiffs).

      Hilary Fisher Nelson, for the appellee (defendant).
   Jacobson, J.

This is an appeal from the granting of the defendant’s motion for summary judgment. The plaintiffs claim that the court erred in granting the motion because it decided a material issue of fact. We agree.

In her complaint, the plaintiff alleged that in August, 1972, the defendant surgeon, John Standard, performed surgery to remove a benign tumor from her left parotid gland. She alleged that during the operation the defendant inadvertently ruptured the tumor and failed to inform her of the rupture. She alleged that, as a result of the rupture, the tumor “seeded,” causing other tumors. The plaintiff has undergone three additional surgical procedures to remove the tumors and alleges a number of injuries resulting from the defendant’s malpractice. In the second count of the complaint, the plaintiff alleged that the defendant was liable in assault and battery because he failed to inform her of the risks associated with the procedure before he operated. The defendant moved for summary judgment on the ground that the plaintiff’s cause of action was barred by the statute of limitations under General Statutes § 52-584.

In reviewing the propriety of a summary judgment, this court examines whether “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.” Practice Book § 384; Craftsmen, Inc. v. Young, 18 Conn. App. 463, 464-65, 557 A.2d 1292 (1989). In this case, the defendant specially pleaded that the plaintiff’s action was barred by the statute of limitations. The plaintiff responded that the defendant had fraudulently concealed the existence of a cause of action, and argued that such fraudulent concealment tolled the statute of limitations in General Statutes § 52-584, citing General Statutes § 52-595.

During the hearing on the motion for summary judgment, the plaintiff argued that after the 1972 operation the defendant had assured her that the tumor had been removed entirely and that she would be fine. At about the same time, the defendant prepared a discharge summary, of which the plaintiff was unaware, indicating that the tumor had been inadvertently ruptured.

The trial court granted the defendant’s motion for summary judgment, indicating in its memorandum of decision that the statute of limitations had run even for the purposes of General Statutes § 52-595. The plaintiff argues on appeal that the trial court impermissibly decided a question of material fact when it granted summary judgment: namely, whether the defendant had fraudulently concealed, until 1985, the existence of a cause of action.

“A trial court may appropriately grant a motion for summary judgment only when the affidavits and evidence submitted in support of the motion demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Catz v. Rubenstein, 201 Conn. 39, 48-49, 513 A.2d 98 (1986); Barnes v. Schlein, 192 Conn. 732, 738, 473 A.2d 1221 (1984). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact, a 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. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party.” Rotophone, Inc. v. Danbury Hospital, 13 Conn. App. 230, 232-33, 535 A.2d 830 (1988).

Because the evidence in the pleadings and affidavits submitted by the parties leaves open for resolution by a factfinder the question of whether the defendant “fraudulently concealed] . . . the existence of [a] cause of . . . action,” as provided in General Statutes § 52-595, a genuine issue of material fact remained unresolved and the trial court erred in granting summary judgment.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The complaint claimed money damages for the plaintiff Patricia Maraca in two counts. The third count of the complaint claimed money damages for loss of consortium suffered by her husband, Robert Maraca. In this opinion “the plaintiff” refers to Patricia Maraca.

       General Statutes § 52-584 provides: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       General Statutes § 52-595 provides: “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.”


text:
    In re Shannon S. et al.

    (7480)
    Spallone, Daly and Jacobson, Js.
    Argued April 7 —
    decision released July 4, 1989

      SaraR. Martin, for the appellant (respondent father).

      Mary-Anne Mulholland, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, and Judith Merrill Earl, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, 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.

The defendant father is appealing the judgment of the trial court terminating his parental rights regarding his two minor children. He claims that the trial court erred (1) in failing to find that his due process rights were violated when the department of children and youth services (DCYS) denied him visitation without notice and an opportunity for a hearing, (2) in failing to find that his right to equal protection was violated when DCYS offered its services only to the mother of the children, (3) in finding abandonment without sufficient evidence, (4) in relying on General Statutes § 17-43a (d) in determining his failure to rehabilitate, (5) in making certain findings pursuant to General Statutes § 17-43a (d) without a sufficient factual basis, and (6) in finding that allowing further time for the establishment or reestablishment of a parent-child relationship would be detrimental to the best interests of the children. These claims are without merit.

The trial court filed a complete and legally sound memorandum of decision incorporating the facts found and setting forth legal conclusions made in conformity with applicable law. The trial court’s decision so completely articulates the issues involved and so adequately explains the legal basis for its conclusions that it may be referred to for a detailed discussion of the facts and applicable law. See Faith Center, Inc. v. Hartford, 192 Conn. 434, 436, 472 A.2d 16, cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d (1984); Hinchliffe v. American Motors Corporation, 192 Conn. 252, 253, 470 A.2d 1216 (1984). Accordingly, the trial court’s memorandum of decision, reported in In re Shannon S., 41 Conn. Sup. 145, 562 A.2d 79 (1989), should be referred to for a detailed discussion of the facts and legal conclusions in the case.

There is no error.

       General Statutes § 17-43a (d) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (3) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (4) the age of the child; (5) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (6) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”


text:
    Alfred Trumpold et al. v. Robert J. Besch et al.
    (6758)
    Dupont, C. J., Daly and Jacobson, Js.
    Argued March 2 —
    decision released June 15, 1989

      Richard L. Jacobs, with whom were Ina L. Silverman, John M. Shannon, legal intern, and, on the brief, Steven D. Jacobs, for the appellants (plaintiffs).

      William F. Gallagher, with whom were Terence A. Zemetis and, on the brief, Elizabeth A. Gallagher, for the appellees (defendants).
   Jacobson, J.

This is a negligence action brought in 1983 by Alfred Trumpold, claiming damages for injuries he sustained in an automobile accident, and by his wife, Linda, for loss of consortium. The complaint alleged that an automobile, owned, by the defendant Douglas Battery Corporation and driven by the named defendant, collided with the rear of the plaintiffs’ vehicle while it was stopped at a traffic light. The defendants’ answer included a special defense of contributory negligence.

The jury returned a verdict for Alfred Trumpold, finding the defendants 90 percent negligent and Alfred Trumpold 10 percent negligent, and awarding him a total of $1485.10. The jury also returned a verdict for Linda Trumpold, but awarded zero damages. After the trial court ordered the jurors to reconsider their verdicts, they returned with the same verdict and award for Alfred Trumpold but changed their verdict as to Linda Trumpold to a verdict for the defendants. The plaintiffs moved to set aside the verdict, for a new trial, and for additur. After oral argument, the court denied the motions and rendered judgment in accordance with the verdicts.

The plaintiffs appeal from the judgment rendered on the verdicts and from the trial court’s denial of their posttrial motions, claiming that the trial court erred (1) in permitting defense counsel to ask allegedly improper questions of the plaintiffs during trial and to refer to that testimony during summation, (2) in making an improper remark while instructing the jury, (3) in permitting defense counsel to make other improper, inflammatory and prejudicial remarks to the jury during summation, and (4) in rendering judgment on the jury’s verdicts because they were against the weight of the evidence. We find no error.

The plaintiffs’ initial claim is that the trial court erred when it permitted defense counsel to ask the plaintiffs when they had first contacted an. attorney after the accident. The essence of their argument is that once the plaintiffs testified that they had contacted their attorney soon after the accident, the jury would believe that something improper had transpired with regard to the plaintiffs’ pursuit of their claims in court. They argue that the questions were irrelevant, and that defense counsel’s reference to the plaintiffs’ responses to the questions during summation invaded the attorney-client privilege and violated their federal and state constitutional rights to counsel. We disagree.

First, turning to whether the trial court erred in permitting the questions over objection because they were irrelevant, we note at the outset that trial courts are given broad discretion in determining the relevancy of evidence; State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); and that their “rulings will be reversed [only] if the court has abused its discretion or where injustice appears to have been done.” State v. Echols, 203 Conn. 385, 393, 524 A.2d 1143 (1987), citing State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985); State v. Johnson, 190 Conn. 541, 548-49, 461 A.2d 981 (1983).

“Evidence is relevant only when it tends to establish the existence of a material fact in issue or to corroborate other direct evidence in the case.” State v. Talton, 197 Conn. 280, 285, 497 A.2d 35 (1985). “ ‘ “Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent. No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience.” Pope Foundation, Inc. v. New York, N.H. & H.R. Co., 106 Conn. 423, 435, 138 A. 444 [1927].’ State v. Towles, 155 Conn. 516, 523, 235 A.2d 639 (1967).” State v. Echols, supra.

The following additional facts are relevant to this claim. During the trial, the jury reviewed a videotaped deposition of Linda Trumpold. Before it was shown to the jury, counsel for the plaintiffs argued to the court, out of the presence of the jury, that defense counsel’s cross-examination question, “Did you call Mr. Jacobs that night [after the accident] or the day after?” was irrelevant and the court should not allow the jury to review that portion of the videotape. The court overruled the objection and the jury reviewed that testimony. The plaintiffs argue that similar, improper questioning by defense counsel occurred during his cross-examination of the plaintiff Alfred Trumpold when he asked, “Is it your recollection that [your wife Linda] called Attorney Jacobs that night or the next morning?”

The plaintiffs argue that defense counsel asked these questions in order to encourage the jurors to infer that the plaintiffs’ attorney guided them in pressing their claim to fullest advantage, and to play upon the public’s mistrust of attorneys. The defendants counter that the testimony of the parties concerning the force of the impact of the colliding vehicles and the severity of resulting injury was so disparate that the jury was entitled to examine this testimony. The defendants contend that Alfred Trumpold could not have been and was not injured whereas Alfred Trumpold claims he was severely injured. The defendants argue that the court properly allowed the evidence because Linda Trumpold’s actions following the accident tended to corroborate the defendants’ version of the occurrence, because Alfred Trumpold did not seek medical assistance immediately following the accident, but instead consulted an attorney.

After reading the transcripts and considering all other relevant information, we agree with the defendants that asking the plaintiffs when they first contacted their attorney following the accident was permissible on these particular facts. Under other factual circumstances, such evidence might be inadmissible.

“The trial court enjoys a liberal discretion in fixing the limits of cross-examination, particularly if it affects credibility. State v. Croom, 166 Conn. 226, 231, 348 A.2d 556 (1974); State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689 (1970).” State v. Ouellette, 190 Conn. 84, 101-102, 459 A.2d 1005 (1983). “Cross-examination, in quest for the truth, provides a means for discrediting the testimony of a witness. ‘When pursued for that purpose, the examination frequently and legitimately enters into matters collateral to the main issues.’ Hirsch v. Vegiard, 137 Conn. 302, 304, 77 A.2d 85 (1950). . . . Given that function of cross-examination in shedding light on the credibility of the witness’ direct testimony, ‘[t]he test of relevancy is not whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness and assessing the probative value of the direct testimony.’ McCormick, Evidence (2d Ed.) § 29.” State v. Ouellette, supra, 102.

The trial court, in its discretion, could have concluded that the information was useful to the jury in assessing the parties’ testimony concerning the nature of the accident, and on cross-examination the defendants were entitled to demonstrate to the jury apparent weaknesses in the plaintiffs’ testimony educed during direct examination. The trial court did not abuse its discretion in making that evidentiary ruling and we do not find that injustice occurred as a result of that ruling.

The plaintiffs next argue that, during defense counsel’s summation to the jury, reference to the plaintiffs’ having called an attorney violated the attorney-client privilege. They cite Rienzo v. Santangelo, 160 Conn. 391, 396, 279 A.2d 565 (1971), which held, in the specific factual context of that case, that a court’s ordering a witness to answer the question “Did you tell your attorney where on the premises this accident occurred?” improperly invaded the scope of the privilege.

In State v. Manning, 162 Conn. 112, 120, 291 A.2d 750 (1971), our Supreme Court held that Connecticut “is in accord with the majority rule that the [attorney-client] privilege does not extend beyond communications”; therefore, “an attorney is not bound to remain silent as to all information regarding his client, but only as to that information born of confidential communication.” Id., 121. Additionally, “since the privilege tends to prevent a full disclosure of the truth in court, it will be strictly construed. Turner’s Appeal, 72 Conn. 305, 318, 44 A. 310 (1899).” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 12.5.1, p. 442; 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed.) § 126d, pp. 1304-1305. Because our law is clear that the privilege applies only to “information born of confidential communication,” we decline to hold that the trial court’s evidentiary ruling that permitted defense counsel to ask the plaintiffs, as witnesses, when they first contacted their attorney violated the confidentiality of their privileged communications. Therefore, defense counsel’s summation remarks alluding to the plaintiffs’ contacting their attorney did not violate the privilege.

The next claim of error proffered by the plaintiffs concerns an alleged impropriety in the trial court’s charge to the jury. They argue that the court’s comment to the jury at the close of its charge, that “you have some difficult issues to resolve,” constituted prejudicial error because, the plaintiffs contend, the case actually was simple, and the court’s comment was prejudicial to them because it altered the burden of proof to the defendants’ benefit. We disagree.

Our examination of the court’s charge, in its entirety, leads us to conclude that the court did not err by stating that the jury had some difficult issues to resolve. The primary function of the charge to the jury is to assist them in applying the law correctly to the facts that they find to be established. Magnon v. Glickman, 185 Conn. 234, 244, 440 A.2d 909 (1981). Our Supreme Court has long held that courts are authorized to comment on evidence when charging the jury; Heslin v. Malone, 116 Conn. 471, 477, 165 A. 594 (1933); provided they do not misstate facts or evidence, and provided the comment is reasonable and fair. Id.; Ladd v. Burdge, 132 Conn. 296, 298, 43 A.2d 752 (1945). We do not view the comment as unreasonable or unfair; rather, it was within the trial court’s discretion to make such a statement to emphasize to the jurors the seriousness of the factual questions they were to resolve. This claim is without merit.

The plaintiffs’ third claim of error is that the trial court erred in allowing defense counsel to give a summation that was improper, inflammatory and prejudicial. Essentially, the plaintiffs argue that during closing argument, defense counsel drew attenuated inferences from testimony heard earlier, attempting to persuade the jury that the plaintiffs had exaggerated the extent of their injuries from the accident.

The transcript reveals that the plaintiffs failed to object during defense counsel's summation. In addition, the plaintiffs failed to request a curative instruction by the trial court. “The absence of any objection or exception to improper argument, which we may infer from the absence of any such indication in the transcript, has . . . been regarded as a waiver of the right to press such a claim of error.” State v. Austin, 195 Conn. 496, 504-505, 488 A.2d 1250 (1985), citing State v. Vitale, 190 Conn. 219, 226, 460 A.2d 961 (1983); Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 343, 160 A.2d 899 (1960). See 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed.) § 12, p. 76. The failure to object to the remarks at the time they were made or at the close of argument constitutes a waiver of the plaintiffs’ right to press this claim of error.

We reach this result after examining the plaintiffs’ argument, raised for the first time in their reply brief, that the trial court’s failure to limit defense counsel’s allegedly improper comments constituted plain error. Plain error review is not warranted because the error complained of does not pose one of those “ ‘truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259, cert. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980).” Smith v. Czescel, 12 Conn. App. 558, 563, 533 A.2d 223, cert. denied, 206 Conn. 803, 535 A.2d 131 (1987).

The final claim advanced by the plaintiffs is that the trial court erred in rendering judgment in accordance with the verdict, because the verdict was against the weight of the evidence. We do not agree.

The plaintiffs, in their brief, list with particularity those elements of the testimony they believe the jury should have accepted. Our review of the record and transcripts, however, indicates that the jury had more than sufficient evidence on which to base its verdict and to apportion damages as it did.

“As we have noted before, ‘[tjhere are serious constitutional issues posed by setting aside a jury verdict. This is so because “ ‘[ljitigants have a constitutional right to have issues of fact decided by the jury.’ Bambus v. Bridgeport Gas Co., 148 Conn. 167, 169, 169 A.2d 265 (1961).” ’ Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 326, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986). Accordingly, a court should be hesitant to set aside a jury’s verdict and must only do so when the jury verdict ‘so shock[s] the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.’ Shea v. Paczowski, 11 Conn. App. 232, 233, 526 A.2d 558 (1987). ‘A court should be especially hesitant to set aside a jury’s award of damages.’ Zarrelli v. Barnum Festival Society, Inc., supra. ‘ “The assessment of damages ‘defies any precise mathematical computation’; Floyd v. Fruit Industries, Inc., 144 Conn. 659, 675, 136 A.2d 918 (1957); and, therefore, establishing damages ... is a task peculiarly within the expertise of a jury.” ’ Zarrelli v. Barnum Festival Society, Inc., supra.” Creem v. Cicero, 12 Conn. App. 607, 609-10, 533 A.2d 234 (1987).

In the case before us, the trial court found nothing in the evidence that indicated it should disturb the jury’s verdict. Neither do we. The evidence does not compel us to conclude that “the jury’s award did not fall somewhere within the necessarily uncertain limits of just damages, or that it shocked the sense of justice. See Zarrelli v. Barnum Festival Society, Inc., supra. ‘Furthermore, a parsimonious jury award is not inadequate as a matter of law.’ Shea v. Paczowski, [supra, 235].” Biagioni v. Aetna Life & Casualty Ins. Co., 16 Conn. App. 690, 693, 549 A.2d 279 (1988).

There is no error.

In this opinion the other judges concurred.

       Linda Trumpold’s claim for damages for injuries was removed from the jury’s consideration by the court because she failed to establish that she had sustained expenses in excess of $400, as required by General Statutes § 38-323.

       Linda Trumpold suffered from agoraphobia and could not testify in court.

       The plaintiffs take issue, inter alia, with the following language: “Now, what they do from that scene of the accident I think is important. They drive home, they sit down and they start calling people. And among the people they call that evening or the next morning are the grandfather, apparently and it’s assumed, and they call the police station and they call their lawyer.”

       In light of our holding that defense counsel’s questions did not abridge the plaintiffs’ attorney-client privilege, we decline to examine the plaintiffs’ argument that, because their privilege was violated, so were their state and federal constitutional rights to counsel.

       The court made the remark in the following context: “Well, ladies and gentlemen, believe it or not I’ve gone through my outline and as far as I know I have not missed anything in my outline. I am going to let you go to lunch now. It’s a quarter to two. I’ll expect to be back at a quarter to three. And I may or may not have something else to say to you after I’ve talked to the attorneys. They are my monitors. They listen to what I have to say. If they think I made a mistake they are going to tell me about them. And if I think I made a mistake and I agree with them, I will tell you about it; but I don’t think I made a mistake. I won’t tell you about it, but we do that because we want to carefully present the case to you. As both attorneys have said they both waited a long time for you to decide this case. And we want to give it to you in the best fashion we can. I join with the attorneys and thank you for the attention that you have given to the case. It’s been an unusually long case. And you have been very attentive. You have some difficult issues to resolve. I hope I’ve pointed them out to you so that you don’t waste your time on insubstantial issues and you get right to the heart of the matter, and you follow the procedure that I have suggested to you.”

       We find credence in the the trial court’s explanation for the remark, when it responded to the plaintiffs’ claim of error in its memorandum of decision denying the plaintiffs’ posttrial motions: “Looked at in the light of the evidence of [Alfred Trumpold’s] preexisting serious back injury, a preexisting permanent disability, a long period of convalescence prior to returning to work [before the accident at issue in this case occurred] and a contradictory work history after returning to work after [a] disc operation, the jury did indeed have ‘serious issues’ of fact to resolve in Alfred Trumpold’s case.” (Emphasis in original.)

       Practice Book § 4185 provides in relevant part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.”

       After the jury returned a verdict for Alfred Trumpold, awarding him $1650.12 but reducing it by 10 percent for his own negligence, the court requested that the jury reconsider its verdict in light of the fact that the award differed from the amount of medical bills admitted into evidence. The jury then asked the court: “Are we required, being the jury, to award 90 percent of the requested amount by the plaintiff? Or are we allowed to accept only those [medical] bills submitted which we feel are applicable to the accident?” The court responded: “You are allowed to accept only those bills submitted which you feel are applicable to the accident.”


author: Borden, J.

text:
    MFS Associates, Inc. v. Autospa Realty Corporation
    (7593)
    Borden, Stoughton and Norcott, Js.

      Argued April 19 —
    decision released July 4, 1989

      Richard P. Weinstein, for the appellant (plaintiff).

      Kimball Haines Hunt, with whom, on the brief, was Richard M. Leibert, for the appellee (defendant).
   Borden, J.

The plaintiff appeals from the order of the trial court granting the defendant’s motion for disbursement of funds pursuant to General Statutes § 47a-26f. The plaintiff claims that the court erred in ordering the return to the defendant of funds for use and occupancy that the defendant had paid into court during the pendency of the summary process action between the plaintiff and the defendant. We find error.

Certain facts are undisputed. In February, 1988, the plaintiff brought a summary process action against the defendant seeking possession of certain premises owned by the plaintiff and leased to the defendant. The defendant moved to dismiss the action on the basis of, inter alia, an invalid notice to quit that had been served on January 16,1988. On August 3,1988, the trial court dismissed the summary process action for lack of subject matter jurisdiction, on the ground that, at the time of the service of the notice to quit, the defendant was not in possession of the premises and that a subtenant of the defendant was in possession. Meanwhile, the court had ordered the defendant to pay for use and occupancy during the pendency of the action, pursuant to General Statutes § 47a-26b, and the defendant paid $4500 per month into court for the five months between the court’s use and occupancy order and its judgment dismissing the action.

The defendant thereafter moved for disbursement to it of the funds it had paid into court. After a hearing held pursuant to General Statutes § 47a-26f; see footnote 1, supra; the court entered the following order: “Since the named defendant, Autospa, was not in possession at the time of the service of the notice to quit . . . the case against Autospa was dismissed for lack of subject matter jurisdiction. Accordingly, all funds received by the court from Autospa and held by the court are hereby ordered to be returned to Autospa.” This appeal followed.

The court was in error in ordering that the use and occupancy funds be distributed to the defendant simply because the court had ultimately dismissed the underlying action for lack of jurisdiction. A proceeding under General Statutes § 47a-26f is a statutory proceeding separate and distinct from the summary process action that it follows. Indeed, no such proceeding is contemplated by General Statutes § 47a-26f until “[ajfter entry of final judgment” in the summary process action.

We agree with the Appellate Session of the Superior Court that there is “no support in General Statutes § 47a-26f ... for the proposition . . . that the funds must be paid to [the defendant] simply because [it was] the prevailing part[y].” Groton Townhouse Apts. v. Marder, 37 Conn. Sup. 688, 690-91, 435 A.2d 47 (1981). Similarly, there is no support in the statute that the funds must be distributed to the defendant simply because the trial court ultimately dismissed the summary process action for lack of subject matter jurisdiction.

The statute requires that the disbursement order “be based upon the respective claims of the parties arising during the pendency of the proceedings after the date of the order for payments . . . .” General Statutes § 47a-26f. “The evident purpose of the statute was to authorize the court to settle equitably the many disputes which may arise during the pendency of the proceeding not necessarily related to the merits of the action.” Groton Townhouse Apts. v. Marder, supra, 691. The court did not apply these principles in making its determination; nor is it clear from the transcript of the hearing that the evidence regarding those equities was undisputed. A new hearing is therefore required.

There is error, the order granting the defendant’s motion for disbursement of funds is set aside and the case is remanded for a new hearing on that motion.

In this opinion the other judges concurred.

       General Statutes § 47a-26f provides: “After entry of final judgment [in a summary process action], the court shall hold a hearing to determine the amount due each party from the accrued payments for such use and occupancy [made pursuant to General Statutes § 47a-26b] and order distribution in accordance with its determination. Such determination shall be based upon the respective claims of the parties arising during the pendency of the proceedings after the date of the order for payments and shall be conclusive of such claims only to the extent of the total amount distributed.”
      General Statutes § 47a-26b provides for payments into court by a defendant in a summary process action for use and occupancy of the premises during the pendency of the action. The consequence of failure to make such payments is to accelerate the pleading process. General Statutes § 47a-26b (c); Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn. App. 574, 597, 548 A.2d 744 (1988).

       The propriety of that ruling is not before us in this appeal.