author: Dupont, C. J.

text:
    State of Connecticut v. Terrence S. Murphy
    (3214)
    Dupont, C. J., Spallone and Bieluch, Js.
    Argued December 6, 1985
    decision released March 11, 1986

      James J. Alaimo, Jr., with whom, on the brief, was Edward Ponticoloni, for the appellant (defendant).

      Jeffrey L. Kline, special assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

This is an appeal from the judgment of guilty rendered against the defendant, following his pleas of nolo contendere, to the crimes of tampering with physical evidence, a violation of General Statutes § 53a-155, illegal possession of marihuana, a violation of General Statutes § 21a-279 (c), and violation of probation, a violation of General Statutes § 53a-32. The defendant entered his pleas conditional on the right to appeal from the trial court’s denial of his motion to suppress evidence based on an unreasonable search or seizure. See General Statutes § 54-94a. The sole issue on appeal is whether the court should have granted the motion to suppress because the search in question violated either the fourth amendment to the United States constitution or article first, § 7 of the Connecticut constitution.

The defendant was stopped while driving his motor vehicle by a police officer for a minor traffic violation. A check of the vehicle registration by the police officer revealed that the temporary registration of the defendant’s motor vehicle had expired less than one hour before the defendant was stopped. The defendant was issued a summons by the police officer for operating an unregistered motor vehicle, and for an improper turn. At this point, the police officer informed the defendant that his automobile would be impounded pursuant to police department policy. The police officer asked the defendant to remove any valuables from the automobile. The defendant replied that there were no valuables in his automobile and that he wished to have his automobile taken to his home, approximately one and a half miles from the location of the stop, rather than have his automobile impounded and towed to a police lot. The police officer denied the defendant’s request and began to search the defendant’s automobile in order to inventory its contents. In the course of this inventory, the police officer opened the glove compartment of the defendant’s automobile and observed a mirror lying face up with a quantity of white powder on it. At this point, a passenger, who had been in the defendant’s vehicle from the time it was initially stopped, attempted to leave the scene. As the police officer got out of the defendant’s automobile in order to prevent the passenger from leaving, the defendant reentered his vehicle and turned over the mirror, spilling its contents onto the car seat. As a result of the defendant’s action, an insufficient amount of the substance remained for chemical analysis. Upon resuming his search, the police officer also discovered the remains of two marihuana cigarettes in the ashtray of the defendant’s car. The defendant was later placed under arrest and charged with tampering with physical evidence and possession of marihuana.

It is conceded by the parties that the search was a warrantless one and, therefore, must come within a recognized exception to the warrant requirement of the fourth amendment in order to be reasonable and thereby pass constitutional muster. See State v. Zindros, 189 Conn. 228, 236-38, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984); State v. Tully, 166 Conn. 126, 133-35, 348 A.2d 603 (1974). Although several exceptions to the warrant requirement have been recognized, the parties agree that the only exception at issue in this case is the administrative inventory search of the type recognized in South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). See also State v. Gasparro, 194 Conn. 96, 107, 480 A.2d 509 (1984), cert. denied, 474 U.S. , 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985); State v. Reddick, 189 Conn. 461, 467, 456 A.2d 1191 (1983). The state contends that the factual pattern in this case is similar to that reviewed by the United States Supreme Court in Opperman and that the search in question should be upheld on the basis of the same policies as those advanced in Opperman. The defendant maintains that the factual pattern of Opperman is inapposite to the present case.

In Opperman, the United States Supreme Court held that an inventory search of the contents of an automobile, impounded by the police for multiple parking violations, was not an unreasonable search in violation of the fourth amendment, where the inventory search was conducted in accordance with standard police procedures and the inventory was not for investigatory purposes. In order to determine the reasonableness of a routine inventory search, a court is required to weigh “the governmental and societal interests advanced to justify such intrusions against the constitutionally protected interest of the individual citizen in the privacy of his effects.” South Dakotas. Opperman, supra, 378 (Powell, J., concurring); see also Illinois v. Lafayette, 462 U.S. 640, 643-44, 103 S. Ct. 2605, 77 L. Ed. 2d 65 (1983); Delaware v. Prouse, 440 U.S. 648, 654, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979).

In applying this balancing test, the Supreme Court identified three governmental and societal interests in support of inventory searches: (1) protection of the police from danger; (2) protection of the police against claims and disputes over lost or stolen property; and (3) protection of the owner’s property while it remains in police custody. South Dakota v. Opperman, supra, 369. When these interests singly or together comprise the reason for invading a citizen’s expectation of privacy in his automobile, the Supreme Court has concluded that the limited intrusion into an individual’s privacy interest caused by an inventory search is outweighed by the legitimate governmental interests embodied in the “community caretaking functions” of the police. Id., 368-69; Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973); see also State v. Tully, supra, 136-37.

An examination of the governmental interests usually advanced in support of inventory searches leads to the conclusion that the inventory search in this case was unreasonable. The first governmental interest, protection of the police from potential danger, cannot justify the inventory search in this case. See Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967). It is generally acknowledged that, except in rare cases, there is little danger to the police in impounding automobiles which have not been subjected to an inventory search. South Dakota v. Opperman, supra, 378 (Powell, J., concurring). In this case, the police officer testified that he did not observe anything in the defendant’s vehicle which constituted a threat to him. The officer further testified that he had no suspicion that a possible felony or misdemeanor was in progress at the time he stopped the defendant’s vehicle.

The other two governmental interests identified in Opperman, protection of police against claims and disputes over lost or stolen property and protection of the owner’s property while it remains in police custody, could have been satisfied by having the defendant’s vehicle towed to his home, as the defendant requested, rather than having the vehicle impounded and searched.

A police officer testified that the defendant’s car could have been towed to his home, in accordance with police department regulations, if satisfactory arrangements for the towing charge were made with the authorized “impound” towing service but that an inventory was first required. If police department policy allowed the car to be towed to the home of its owner, an inventory just prior to such towing was not necessary to protect the police against claims of lost or stolen property or necessary to protect the owner’s property while in police custody.

State courts sometimes disagree as to the constitutionality of inventory searches based on the particular facts or the particular administrative procedures, but, in general, agree that the police should inventory an impounded vehicle when the owner or possessor is present at the time only if he elects to allow the police to have custody of it. See 2 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 7.4. If the defendant’s car had been towed the one and a half miles to his house, after satisfying the “impound wrecker” of payment for the towing, the police could have eliminated any bailment situation and, thus, protected themselves from claims involving lost or stolen property, and the defendant could have protected his own property.

Whether a search is reasonable is to be determined on a case by case basis, depending upon the particular fact situation. South Dakota v. Opperman, supra, 373, 375; Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). On the facts of this case, the search was not reasonable. The ownership and registration of the car had been established by the time of the search to inventory the contents of the glove compartment and the defendant had already stated that no valuable property was located in the car. See South Dakota v. Opperman, supra, 372. The policy of the police department did not require that the vehicle be held in its custody if the defendant could make arrangements, through an authorized towing service, for its removal from the side of the highway and no valuables were visible to the police.

The conclusion that the inventory search in this case was unreasonable is not inconsistent with the United States Supreme Court’s decision in Opperman. In Opperman, the court observed that “[t]he owner, having left his car illegally parked for an extended period, and thus subject to impoundment, was not present to make other arrangements for the safekeeping of his belongings. The inventory itself was prompted by the presence in plain view of a number of valuables inside the car.” South Dakota v. Opperman, supra, 375-76. In the present case, however, the availability of the defendant to make other arrangements for the towing of the vehicle made the inventory search, and subsequent impoundment of the vehicle unnecessary and unreasonable. See, e.g., Arrington v. United States, 382 A.2d 14 (D.C. App. 1978); Judge v. State, 419 So. 2d 1171 (Fla. App. 1982); Miller v. State, 403 So. 2d 1307 (Fla. 1981); State v. McDaniel, 383 A.2d 1174 (N.J. Super. 1978); see also note, “Lawfulness of ‘Inventory Search’ of Motor Vehicle Impounded by Police,” 48 A.L.R. 3d 537. Nor were there any valuables in plain view in this case, in contrast to the factual situation in Opperman. See also State v. Tully, supra, 129, 136.

The defendant has claimed, as error, the failure to suppress evidence, under the constitutions of the United States and of Connecticut. Both constitutions forbid most searches as unreasonable when they occur outside the judicial process. The federal constitution is our national guaranty of minimal standards for the protection of our citizens against unreasonable searches and seizures, but nothing in the fourth amendment to the United States constitution or in its fourteenth amendment prevents individual states from marching to the cadence of a higher standard. State v. Kimbro, 197 Conn. 219, 234-35, 496 A.2d 498 (1985). Under either constitution, whether or not the Connecticut constitution provides more or equivalent protection against unreasonable warrantless searches than does the fourth and fourteenth amendments to the United States constitution, the motion to suppress the evidence garnered in this inventory search should have been granted.

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.

       There are four recognized situations where a warrantless search of a car may lead to the conclusion that such a search was reasonable under the United States or state constitutions. They are: (1) it was made incident to a lawful arrest; (2) it was conducted when there was probable cause to believe that the car contained contraband or evidence pertaining to a crime; (3) it was based upon consent; or (4) it was conducted pursuant to an inventory of the car’s contents incident to impounding the car. State v. Reddick, 189 Conn. 461, 467, 456 A.2d 1191 (1983). The defendant in this case was arrested during the course of the search of his automobile, but it is unclear from the record at what exact point during the events in question the defendant’s arrest took place. There is no claim that the search in question satisfies any exception to the warrant requirement other than that it was a proper inventory search.

        State v. Gasparro, 194 Conn. 96, 480 A.2d 509 (1984), cert. denied, 474 U.S. , 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985), upholds the search of a car, after it was taken to the police department, as an inventory search, where there was probable cause at the time of the search to believe that the defendant had committed a felony, the car could not be left indefinitely on a public street, and the apparent owner had expressed concern about leaving the car on a public street.

       In State v. Reddick, 189 Conn. 461, 456 A.2d 1191 (1983), it was held that a warrantless search of a car belonging to a defendant was not constitutionally infirm since the defendant had consented to the search preliminary to the impoundment. The court did not reach the issue of whether the search of the defendant’s car was constitutionally permissible under the federal and state constitutions as an inventory search before impoundment of the car.

       The United States Supreme Court has concluded that there is a lesser expectation of privacy in an automobile, as compared to a home or office, on the basis of two factors: (1) the extensive governmental regulation of automobiles, including such periodic contacts as licensing and safety inspections; and (2) the public nature of automobile travel, where both the occupants and the contents of the car are usually in plain view. See South Dakota v. Opperman, 428 U.S. 364, 367-68, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); Cardwell v. Lewis, 417 U.S. 583, 590, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974).

       The written police department policy for inventory searches establishes a procedure for inventory of a motor vehicle after a police officer has taken a vehicle into custody. It states that “[a]ny motor vehicle that is taken into custody by a police officer for any of the following reasons shall be inventoried . . . .’’One of the reasons listed is “[m]otor vehicles taken into custody on a motor vehicle violation (drunk driving, unregistered, under suspension, etc.).” The written procedure is to be instituted for several reasons and lists those reasons as the protection of the owner’s property, the protection of the police officer against claims over lost or stolen property and the protection of the public and police from dangerous contents in the motor vehicle. The procedure may be read as giving a police officer guidelines for determining when a car shall be taken into custody, but that if none of the reasons for an inventory search is present, an unregistered car should not be taken into custody.

       “Such alternative means of disposition serve not only to protect the arrestee’s possessory and privacy interests in the vehicle but also to relieve the police of continuing responsibility for the car and its contents, and thus are to be preferred over impoundment when one such alternative has been requested by a properly-advised arrestee and can reasonably be accomplished under the circumstances.” 2 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 7.5.

       Although the majority in Opperman did not specifically address the issue of whether an inventory search is permissible where the owner is present to make other arrangements, several justices concluded that the majority opinion did not sanction an inventory search under such circumstances. South Dakota v. Opperman, 428 U.S. 364, 392 n.12, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976) (Marshall, J., dissenting).

       It is not clear on this record that the inventory search was carried out for noninvestigatory purposes and according to established police procedures. On cross-examination, the police officer testified that he looked in the ashtray of the defendant’s motor vehicle “[bjecause I had found contraband in the car, which led me to believe that there was other narcotics in the car and that the ashtray would be a place for narcotics.” The examination of the ashtray, which the officer admitted was an unlikely place for the defendant to store any valuables, was subsequent to the officer’s examination of the glove compartment and discovery of the mirror.


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    State of Connecticut v. Jeffrey L. Fluery
    (2583)
    (2584)
    Hull, Spallone and Daly, Js.
    Argued January 17
    decision released March 11, 1986

      Glenn E. Coe, for the appellant (defendant in both cases).

      JohnM. Massameno, assistant state’s attorney, with whom, on the brief, was Terrence Sullivan, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant entered a plea of guilty in the first case to the charge of carrying a revolver without a permit in violation of General Statutes § 29-35. In the second case, the defendant pleaded guilty to the charge of failure to appear in the first degree in violation of General Statutes § 53a-172.

After a presentence investigation and following a sentence proceeding in which the defendant presented testimony along with a sentencing memorandum with an attached psychiatric report, the defendant was sentenced on the weapons charge to fifteen months execution suspended after one year followed by two years of probation. The defendant was sentenced on the failure to appear charge to six months to be served concurrent with the sentence on the weapons charge. The defendant filed separate appeals for each of the convictions and they have been combined and incorporated into a single record.

In the defendant’s preliminary statements of issues, he challenged both sentences as constituting an abuse of the court’s discretion and with respect to the weapons charge, challenged the court’s refusal “as a matter of law” to consider the defendant’s mental condition as a mitigating circumstance when imposing sentence. The defendant failed to brief the first issue relating to the alleged abuse of the court’s discretion, and has briefed only the issue of whether the court erroneously refused to consider the psychiatric evidence as to both convictions. We consider only that issue which has been properly raised, i.e., that the trial court refused to consider the defendant’s mental condition as a mitigating circumstance as to the weapons charge. DeMilo v. West Haven, 189 Conn. 671, 677 n.4, 458 A.2d 362 (1983); Presutti v. Presutti, 181 Conn. 622, 626, 436 A.2d 299 (1980); Emerick v. Emerick, 5 Conn. App. 649, 650 n.1, 502 A.2d 933 (1985).

The factual basis supporting the charges to which the defendant pleaded guilty are as follows. On the evening of September 18,1982, the defendant was carrying a .357 caliber magnum revolver. He carried this weapon while he was inside as well as outside a public cafe. There were six shells in the cylinder, three of which were empty, indicating that the weapon had been discharged. The other three shells were live rounds, one of which was the next in sequence to be fired. A police officer was told that the defendant had the weapon strapped to his leg. Later, the officer observed the defendant waving the revolver above his head as he moved about the cafe’s dance floor. The defendant was arrested outside the cafe.

The defendant failed to appear in court on the weapons charge which resulted in the further charge of failure to appear. The defendant subsequently pleaded guilty to carrying a revolver without a permit and to failure to appear. At the sentencing hearing for both convictions, additional facts were presented to the court. These included information that the defendant had a criminal record, that he had been placed on probation on three prior occasions, that he had been found in violation of probation, that, while on probation, he had twice been convicted of breach of the peace, and that he had two convictions for disorderly conduct, one for interfering with a police officer and the other for failure to appear. The defendant was an admitted user of alcohol, cocaine and other drugs and had not been regularly employed for two years.

In presenting evidence of mitigating circumstances to avoid the imposition of the mandatory minimum sentence and also to establish general mitigating circumstances with respect to the failure to appear charge, the defendant relied heavily on the psychiatric report of Dr. Walter A. Borden. This report described severe family disturbances in the defendant’s life, alcohol and drug abuse which resulted in the defendant experiencing complex psychiatric problems and his gradual personality deterioration with distorted thinking processes and impairment in judgment.

Notwithstanding this psychiatric report, the court had before it the presentence report which contained information that led the court to conclude that the defendant intentionally and purposefully carried the revolver on the day of his arrest and that he did so with the knowledge that he was violating the law. The defendant had told his probation officer that he always carries a gun because it is his habit to carry large amounts of cash on him.

We agree with the trial court’s finding that there existed no mitigating circumstance which would justify the imposition of less than the mandatory minimum sentence of one year.

The defendant’s categorization of the court’s action as “concluding as a matter of law” that it could not consider the defendant’s mental condition when imposing sentence, is completely at variance with the court’s written statement concerning mitigating circumstances which it prepared in compliance with General Statutes § 29-37 (b). A fair reading of this statement clearly establishes the fact that all the evidence presented at the sentencing proceedings, including the psychiatric report of Dr. Borden, was thoroughly considered by the court in determining the sentence to be imposed. Nowhere in its meticulously detailed and well reasoned statement did the court rule that the defendant’s mental condition was not a mitigating circumstance as a “matter of law.” A reasonable construction of the statement leads to the opposite conclusion that the court considered all of the circumstances, evidence and reports, including the evaluation of the defendant’s mental condition, in arriving at its sentence determinations.

Here, we have no stonewalling against evidence of the defendant’s mental condition. But see Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982); People v. Simpson, 90 Cal. App. 3d 919, 154 Cal. Rptr. 249 (1979). The record in this case indicates that the trial court undertook a genuine and sincere consideration of Dr. Borden’s report. The trial court considered the report along with all the facts and circumstances in this case and found that the report failed to establish mitigating circumstances which would justify the imposition of less than the mandatory minimum sentence required by statute.

There is no error in either case.

In this opinion the other judges concurred.

       General Statutes § 29-37 (b) provides in part: “Any person violating any provision of section 29-35 may be fined not more than one thousand dollars and shall be imprisoned not less than one year nor more than five years, and, in the absence of any mitigating circumstances as determined by the court, one year of the sentence imposed may not be suspended or reduced by the court. The court shall specifically state the mitigating circumstances, or the absence thereof, in writing for the record.”


text:
    State of Connecticut v. Ernst Weber
    (2072)
    Dupont, C. J., Spallone and Bieluch, Js.
    Argued December 5, 1985
    decision released March 11, 1986

      John R. Williams, for the appellant (defendant).

      Christopher Malany, deputy assistant state’s attorney, with whom, on the brief, was James Radda, former deputy assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant is appealing from the judgment of his conviction after a jury trial of the crimes of breach of the peace in violation of General Statutes § 53a-181, and interfering with a police officer in violation of General Statutes § 53a-167a. The jury could reasonably have found the following facts. On October 7, 1981, Alfred Amendola and David Adams, two part-time New Haven police officers, were on foot patrol, walking their assigned beats. They were in uniform and, in the course of their duty, had ticketed a number of illegally parked cars.

At about 9 p.m., the patrolmen observed an automobile parked on a pedestrian crosswalk near the corner of Chapel and Park Streets. The vehicle was obstructing the crosswalk and the rear of the car jutted out into the traffic lane of Park Street. The car was parked opposite a bar called Ron’s Place. Amendola asked the doorman at Ron’s Place if he knew who owned the car, but received no reply. Amendola ticketed the car for a parking violation and then continued on patrol with Adams. After the officers had proceeded a short distance up the street, they were approached by Wayne Johnson, who asked them about the parking violation. Along with Johnson, the officers walked back to ascertain which vehicle was the subject of Johnson’s inquiry. They established that the defendant’s vehicle was involved and explained to Johnson that the car had to be moved. Johnson left the officers and entered Ron’s Place.

The defendant was then inside Ron’s Place and had been there since approximately 6:30 p.m. During that time, he had consumed a quantity of beer and blackberry brandy. Earlier that morning, the defendant had appeared in court because of a motor vehicle arrest by Yale University and New Haven police that had occurred the previous week. When the defendant exited the bar, the officers were about twenty feet away, proceeding along Chapel Street. The defendant began to shout at the police officers. Amendola testified that the defendants first words were: “[Y]ou fucking pig. You did it again. You tagged my car. Why did you tag my fucking car?” Amendola recalled that the defendant also yelled: “[Y]ou are a fucking asshole.” Adams stated that this initial tirade was punctuated by the epithet “Motherfuckers.”

The patrolmen walked back to where the defendant was standing to “see what the problem was.” The defendant appeared to be intoxicated; his breath smelled of alcohol, his words were slurred and spittle sprayed from his mouth as he shouted at the officers. The officers tried to explain to the defendant the nature of the parking violation and the proper procedure for challenging the validity of the ticket. The defendant evidently was not satisfied with the explanation given to him. The officers also told the defendant that as long as he was there, he should move the automobile off the crosswalk or it would be towed away. Johnson, who was present, urged the defendant to move his car. The defendant responded by moving his car about five feet, which satisfied the officers that the vehicle was no longer in violation and they started to walk away.

The defendant for a second time began screaming at Amendola and Adams, saying: “You fucking cowards, you pigs. Come back here now.” Amendola interpreted this outburst as a challenge, testifying: “He wanted to fight us.” The officer again walked back, and in an obvious attempt to placate the defendant and to cool down the situation stated to him: “I didn’t hear what you said. Go back [into Ron’s Place]. . . I didn’t hear anything.” The defendant conceded at the trial that the officers “took great pains to ignore [him].” Johnson, taking the defendant by the arm, drew him back inside the bar.

Again the officers resumed their beat, but had proceeded only about one hundred feet when they heard the sound of running footsteps approaching them from the rear. The officers turned and found that the defendant was only a few feet away, “yelling at the top of his voice,” and shouting at the officers: “You fucking pigs, I want you now. ... I am going to get you. I did it before.” The defendant also called the officers “cowards.”

By this time, a crowd of about twenty people had gathered to observe the defendant’s confrontations with the police. The crowd included both patrons of Ron’s Place, who had come out of the bar, and passersby. The crowd had become polarized and vocal. According to Amendola, some were cheering the defendant on, and others were cautioning him to get back inside the bar before he got into trouble.

At this point, Adams decided it had become necessary to arrest the defendant for breach of the peace. Amendola put his arm around the defendant and told him he was under arrest. The defendant knocked Amendola’s arm away, exclaiming: “You fucking pig, you are not going to arrest me.”

The officers again informed the defendant that he was under arrest. Amendola took the defendant’s right arm and placed a handcuff on his wrist, and Adams took the defendant’s left arm. The officers placed the defendant against the side of a building in order to conduct a patdown search for weapons. At this point, the defendant pulled free from Adams and shoved Amendola into the side of the building, injuring the officer’s right hand. The defendant kneed Amendola in the groin, causing the officer to fall to the ground still grasping the defendant’s arm. The defendant fell over onto the officer and a struggle ensued, during the course of which Amendola called for assistance on his police radio, which the defendant knocked from his hand. With the assistance of Adams and other police officers who had arrived on the scene, the defendant was subdued, placed in a prisoner van and transported to police headquarters.

The defendant claims that the court erred (1) in its refusal to grant his oral motion of recusal, (2) in failing to find that the defendant’s conduct was constitutionally protected free speech, (3) in failing to find General Statutes §§ 53a-181 (a) (5) and 53a-167a unconstitutional as vague and overbroad, and (4) in denying the defendant’s motion for acquittal as to the charges in counts two and three.

Regarding the defendant’s claim of error based on the trial judge’s refusal to disqualify himself, we note that the defendant has not followed the procedural requirements necessary for us effectively to review the actions of the trial court. See Practice Book § 997. Our concern here is whether the defendant’s failure to follow the procedure required by Practice Book § 997 has precluded our consideration because the record does not contain sufficient information upon which we may base our review. We answer in the affirmative.

In this matter, the defendant claims bias and prejudice on the part of the trial court, W. Sullivan, J., because of remarks attributed to the judge. When the case was reached for trial, there were certain pretrial motions pending in the file, having been heard by another judge, Chernauskas, J., but not yet acted upon. Judge Sullivan took the file to Judge Chernauskas and left it with him. Some twenty-five minutes later, the file was returned to Judge Sullivan, who noted that Judge Chernauskas had denied the motions. At this point, defense counsel made an oral motion that Judge Sullivan disqualify himself. Defense counsel stated that there was a civil suit pending, brought by the defendant against the New Haven police, and that: “[Y]our Honor’s position on this and all cases during your period of [criminal] jury [duty] in this court has been that . . . motions to dismiss should not be granted and nolles should not be entered and [accelerated rehabilitation] should not be approved unless there is some reasonable assurance that the police will not be sued . . . .” Judge Sullivan had allegedly expressed this opinion in chambers some three months prior to the trial. He had previously defended police officers in civil suits prior to his appointment to the bench. Defense counsel also stated that “the policy has been announced both in my presence and privately from time to time.” Defense counsel contended that such a “policy” created “an appearance of impropriety, terrible appearance of impropriety,” which extended to “Judge Chernauskas, as well, because of [Judge Sullivan’s] ruling. ...”

There was an absolute failure on the part of counsel to conform to the requirements of Practice Book § 997 which reads in pertinent part: “A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith.” This provision creates a mandatory procedure to be followed by any party seeking to recuse a judge. See State v. Cook, 183 Conn. 520, 521-23, 441 A.2d 41 (1981). At no time in this case did the defendant file a written motion to recuse, an affidavit setting forth factual allegations, or a certificate of good faith by counsel as mandated by § 997 of the rules of practice. Furthermore, the defendant never requested nor demanded a hearing in order to present evidence to support his claim of judicial recusal.

The disqualification of a judge under circumstances as are present here is governed by Canon 3 (C) of the Code of Judicial Conduct. “Under Canon 3 (C) (1) of the Code of Judicial Conduct ‘[a] judge should disqualify himself [or herself] in a proceeding in which his [or her] impartiality might reasonably be questioned . . . . ’ (Emphasis added.)” Papa v. New Haven Federation of Teachers, 186 Conn. 725, 744-45, 444 A.2d 196 (1982). The judge’s conduct must be measured by an objective standard to the defendant’s claim of partiality. Id., 746. We must determine whether there were reasonable grounds for questioning the judge’s impartiality. This we cannot do on review without a proper record.

Representations made by counsel are not evidence in the record upon which we can rely in our review of the judge’s conduct. Counsel's failure to conform to the dictates of Practice Book § 997, which requirements we hold to be mandatory are a condition precedent to a hearing on a judge’s disqualification. See State v. Cook, supra. The lack of a recusal hearing leaves the record bereft of any factual basis upon which we may base our review. It is the appellant’s responsibility to secure a record which is adequate for appellate review, and under normal circumstances, as here, a case will not be remanded to correct a deficiency the appellant should have remedied. Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983); see Caracansi v. Caracansi, 4 Conn. App. 645, 648-49, 496 A.2d 225 (1985). Since the defendant has failed to supply the necessary record, as was his burden, we are precluded from finding that the action of the trial judge in refusing to recuse himself was clearly erroneous.

The defendant in his second claim of error contends that the trial court erred in failing to rule that the defendant’s conduct and utterances were constitutionally protected free speech.

In this case, the defendant was charged and convicted of breach of the peace, in violation of General Statutes § 53a-181, which provides in pertinent part: “(a) A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: . . . (5) in a public place, uses abusive . . . language . . . . ” The words employed by the defendant, as previously quoted, in some circumstances, under modern case law have been held to be constitutionally protected. See generally State v. Beckenbach, 1 Conn. App. 669, 677-79, 476 A.2d 591 (1984), rev’d on other grounds, 198 Conn. 43, 501 A.2d 752 (1985). They are not constitutionally protected per se, however, but must be viewed in the context of the circumstances during which the utterances were made. State v. Bellamy, 4 Conn. App. 520, 529, 495 A.2d 724 (1985); State v. Beckenbach, supra. The use of invectives in the nature of those utilized by the defendant do not automatically come under the shield of the federal or state constitutions as protected speech, but can only be classified in juxtaposition with the other factors present when the words were expressed. The words, standing alone, are, except for their lexicographical definition, without consequence. When, however, as in this case, they are shouted by an obviously intoxicated person in a hostile and challenging confrontation and in front of a crowd of people that is starting to take sides, they may constitute the abusive language and breach of the peace proscribed by the statute. State v. Beckenbach, supra, 678. The United States Supreme Court has stated that insulting or fighting words, those which by their very utterance inflict injury or tend to incite an immediate breach of the peace, are not protected speech. Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 86 L. Ed. 2d 1031 (1942). “[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no questions under that instrument.’ ” (Footnote omitted.) Chaplinsky v. New Hampshire, supra, 572, quoting Cantwell v. Connecticut, 310 U.S. 296, 309-310, 60 S. Ct. 900, 84 L. Ed. 2d 213 (1940). We hold that the trial court ruled correctly when it refused to dismiss the charge and when it denied the defendant’s motion for acquittal on the basis of the defendant’s contention that his conduct and speech were constitutionally protected.

The defendant’s next claim is that General Statutes §§ 53a-181 (a) (5) and 53a-167a are unconstitutionally vague or overbroad. We disagree. As discussed, words may be abusive or not depending upon the context within which they were uttered. The breach of peace statute simply states the circumstances under which language, otherwise tolerable, becomes an element of a crime. We must look to when, how, where and in whose hearing the words were uttered. The same words that may not be abusive when found in literature, or in appellate opinions for that matter, can become opprobrious when shouted in the face of a police officer in a hostile confrontation before a crowd. The statute clearly sets forth the elements that constitute a breach of peace. Abusive language is not in and of itself proscribed, but must be uttered “with intent to cause inconvenience, annoyance or alarm, or recklessly creating the risk thereof.” General Statutes § 53a-181 (a). The public policy inherent in this statute is not to prevent the free expression of ideas, but to promote a peaceful environment wherein all human endeavors, including the free expression of ideas, may flourish. See, e.g., Chaplinsky v. New Hampshire, supra; Cantwell v. Connecticut, supra; State v. Beckenbach, supra.

The defendant’s constitutional attack on General Statutes § 53a-167a on the ground of vagueness or overbreadth is likewise unwarranted. The statute in plain, unambiguous language declares that “[a] person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.” This statute meets the requirement of fair notice to the defendant as expressed in State v. Tyson, 195 Conn. 326, 332, 487 A.2d 1091 (1985). There is no merit to this claim of error.

Finally, the defendant claims that the court erred in denying his motion for acquittal. We have already ruled on the defendant’s first ground for acquittal, the constitutional claim of protected speech, in reviewing his second claim of error.

The defendant’s second ground for acquittal is adequately addressed by our ruling in State v. Privitera, 1 Conn. App. 709, 719, 476 A.2d 605 (1984), where we held that the legality of a police officer’s conduct while on duty is not an element of the crime of interfering with a police officer as defined by General Statutes § 53a-167a (a).

The remaining grounds upon which the defendant sought acquittal challenge the sufficiency of the evidence to convict the defendant. “The test employed in determining whether the evidence is sufficient to sustain a verdict is whether the trier could reasonably have concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” State v. Davis, 3 Conn. App. 359, 368, 488 A.2d 837 (1985); State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983); State v. Perez, 5 Conn. App. 129, 131, 497 A.2d 82 (1985). When reviewing the jury’s verdict, the evidence presented at the trial must be given a construction most favorable to sustaining it. State v. Scielzo, supra. There was ample evidence presented in this case to sustain the verdicts of the jury.

In summary, we hold that there is an insufficient record before us to sustain the defendant’s claim of bias and prejudice on the part of the trial judge, and that the court did not err in denying the oral motion to recuse. Further, the court in denying the defendant’s motions to dismiss and for acquittal acted properly and in accordance with the law. Finally, the evidence submitted in this case was more than enough to support the jury’s verdicts.

There is no error.

In this opinion the other judges concurred.

       The defendant was tried by a jury on a four count information. The jury returned the following verdicts: guilty on the second count, breach of peace by use of abusive language in violation of General Statutes § 53a-181 (a) (5); guilty on the third count, interfering with an officer in violation of § 53a-167a; and not guilty on the fourth count, assault in the third degree in violation of § 53a-61 (a) (1). At the time of the jury’s verdict, the court granted the defendant’s motion for acquittal as to count one, breach of peace by use of obscene language in violation of General Statutes § 53a-181 (a) (5). The court subsequently denied the defendant’s motion for acquittal as to counts two and three.


author: NiGR.0, J.

text:
    Northwestern Electric, Inc. v. Zbigniew S. Rozbicki
    (2161)
    Dupont, C. J., Borden and Nigro, Js.

      Argued November 4, 1985
    decision released March 11, 1986

      Wesley W. Horton, with whom, on the brief, were William A. Conti and Joseph J. Poniatowski, pro hac vice, for the appellant-appellee (defendant).

      John L. Gerardo, with whom, on the brief, was William T. Barrante, for the appellee-appellant (plaintiff).
   NiGR.0, J.

The plaintiff, an electrical contractor, brought this action to recover the unpaid balance on bills for work done at a restaurant known as the Night Watchman, Inc. The trial court concluded that the defendant, the president and sole stockholder in the corporation, was personally liable for the balance. The court awarded $8347.16 to the plaintiff on the complaint, but allowed a setoff in the defendant’s favor of $1500 for meat spoilage due to the plaintiff’s negligent installation of a switch controlling power to the restaurant’s freezer. The court also awarded the defendant $472.83 on his counterclaim for legal services rendered to incorporate the plaintiff. On the final adjusted judgment for the plaintiff of $6374.33, the court awarded 15 percent interest calculated to the date of trial, totaling $2581.47. Both parties have appealed from the trial court’s judgment.

The defendant has appealed from that portion of the judgment in favor of the plaintiff. The defendant has withdrawn any claims of error regarding the court’s conclusion that he was personally liable for the debt, but presses his claim that the court erred in concluding that the plaintiff had proven, by a fair preponderance of the evidence, the reasonableness of the billing as found in the judgment.

The plaintiff has cross appealed from that portion of the judgment allowing a setoff for meat spoilage. It claims that the court erred in permitting a tort setoff in a contract action where the cause did not arise out of the same transaction and lacked mutuality.

Both parties have appealed from the court’s award of 15 percent simple interest on the final judgment. The defendant claims error in the award of any interest or, alternatively, in the award of interest greater than the statutory allowance. The plaintiff, on the other hand, claims that the court erred in failing to award simple interest at the contractual rate of 18 percent, in conformity with the finance charge listed on its billing.

In the memorandum of decision, the trial court made the following findings of fact. The defendant engaged the plaintiff to perform electrical services at a restaurant he was renovating. The agreement was an oral time and materials contract. The plaintiff commenced work at the restaurant on October 25, 1978, and continued on a steady basis through November, 1979, making a few service calls thereafter until January, 1980. The defendant was, in effect, the general contractor, providing proposed plans and specifications for the work. During working days, he met the plaintiffs foreman at the restaurant where he would then tell the foreman what work he wished to be performed.

The plaintiff billed for the work at an hourly rate of $13.50 for journeymen electricians and $10 for apprentices. All the experts who testified, and the defendant himself, agreed that this was a reasonable rate. The material prices were taken from an electrical manual used nationwide and included a profit and overhead charge. While the plaintiffs record keeping was not businesslike, the plaintiff did submit monthly bills indicating the amount of time and material expended. These bills rarely contained a description of the work done. The plaintiff billed a total of $16,119.38 for time and materials. These billings included finance charges totaling $2175.89. The defendant paid the plaintiff a total of $7651.78, leaving a balance of $8467.60. From the balance, the court deducted $1500 as a setoff for meat spoilage resulting from the plaintiffs negligent installation of a switch to the restaurant’s meat freezer. The court also deducted $472.83 for unpaid legal services rendered by the defendant to incorporate the plaintiff. Finally, the court deducted $120.44 for billing shown to be unrelated to the Night Watchman restaurant. The net judgment rendered for the plaintiff totaled $6374.33. To this net sum, the court added $2581.47 in interest, reflecting 15 percent annual simple interest calculated from December 1, 1980, to the date of trial. The final judgment for the plaintiff was $8955.80.

I

The defendant claims that the trial court’s finding as to the number of billable hours was not supported by a preponderance of the evidence. In his attack on the conclusion of the court and its findings, the defendant points to the following evidence. The plaintiff’s principal admitted that the number of hours spent on the job was logged by the plaintiff’s employees. The plaintiff, however, did not independently verify those hours. The plaintiff’s corporate records did not contain any calculation of what work was done on a particular day and how long it took to do a particular job. Some of the bills also included charges for time spent by the plaintiff’s principals in reviewing the work of its employees. The defendant testified that some of the billings were received a year after the work had been done. Also, there was conflicting testimony as to the extent of the work done.

Before considering the defendant’s allegation concerning the sufficiency of the evidence, we shall address the defendant’s argument, made for the first time at oral argument in this court, that we should accept as true the factual allegations made in the defendant’s brief, namely, that the number of billable hours was not supported by the record, because the plaintiff’s brief failed to cite to evidence in the record to support the findings of the trial court. Instead, the defendant asserts, the plaintiff has relied upon the findings in the memorandum of decision itself.

Usually, when an appellant attacks certain facts as being found without sufficient evidence, and supports that claim in his brief either by citing to contrary evidence in the record or by asserting that a conscientious search of the record indicates no evidence to support the finding, the burden shifts to the appellee to support the attacked findings by referring in his brief to the supporting evidence in the transcript. Duksa v. Middletown, 192 Conn. 191, 196 n.4, 472 A.2d 1 (1984); Jennings v. Reale Construction Co., 175 Conn. 16, 18-20, 392 A.2d 962 (1978). This is not such a case, however. The defendant’s brief essentially pointed to the conflicting evidence on the issue and acknowledged that there was evidence from the plaintiff to support the finding, but argued that the evidence presented by the plaintiff was insufficient because of its lack of specificity and documentary or other backup. Therefore, no specific refutation of the defendant’s claim was necessary, although it would have been prudent and more effective appellate advocacy. Additionally, the defendant waited until oral argument to object to the alleged deficiencies in the plaintiff’s brief. Although he filed a reply brief, he did not raise therein the procedural claim he made at oral argument. In the interest of justice, therefore, we have chosen to make an independent review of the transcript. See Jennings v. Reale Construction Co., supra, 18-19. We now address the substance of the defendant’s first claim as to the sufficiency of the evidence.

“ ‘On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book § 3060D. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.’ Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). ‘We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.’ Id., 222.” Rodriguez v. New Haven, 183 Conn. 473, 476-77, 439 A.2d 421 (1981), as quoted in Duksa v. Middletown, supra, 205-206.

The following essential findings of the court have not been attacked by the defendant in his brief. The plaintiff was hired under an oral time and materials contract to perform electrical services at the restaurant and did so under the supervision of the defendant who acted as a general contractor. The work involved extensive renovations. The defendant saw the plaintiff’s principals on the job site on many occasions but never made any complaints or raised any questions about the work. The plaintiff billed according to its usual rate which was not contested as unreasonable. The plaintiff submitted monthly bills. The defendant accepted these bills without objection until the time this action was commenced and made partial payments against them. Such findings demonstrate, not only the intent of the parties as to the creation and terms of the contract, but also that the plaintiff’s performance was in accordance with the contract. Hydro-Hercules Corporation v. Gary Excavating, Inc., 166 Conn. 647, 653-54, 353 A.2d 714 (1974).

While there may have been conflicting testimony about the extent of the work and its complexity, the trial court explicitly gave credit to the testimony of the plaintiffs witnesses on this and other issues. “It is futile to assign error involving the weight of testimony or the credibility of witnesses.” Slattery v. Maykut, 176 Conn. 147, 149, 405 A.2d 76 (1978).

Although some of the bills may have included time spent by the principals in reviewing the work of the plaintiffs employees, the trial court have reasonably found that billing for such time was within the contemplation of the parties.

The plaintiff produced slim but sufficient evidence to prove the amount of time and materials rendered. Therefore, the trial court was not required to speculate as to the amount of damages. Proof of damages does not require mathematical certitude. “[Mjathematical exactitude in the proof of damages is often impossible, and . . . ‘all that can be required is that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation which will enable the trier to make a fair and reasonable estimate.’ ” (Citation omitted.) Hedderman v. Robert Hall of Waterbury, Inc., 145 Conn. 410, 414, 144 A.2d 60 (1958), as quoted in Dooley v. Leo, 184 Conn. 583, 587, 440 A.2d 236 (1981).

While it was proper for the trial court to award damages based upon the amount indicated on the plaintiffs billings, the court erred in calculating the amount. The court’s memorandum of decision indicates that the court began its calculation of damages with a total balance of $16,119.38. This figure represents all of the plaintiff’s bills charged to the defendant, including $2175.89 in finance charges. These finance charges were in conformity with the plaintiff’s general practice, as noted on its billings, of charging 18 percent annual simple interest on all past due accounts. As we will discuss in more detail later, however, the court did not find that the defendant had agreed, either expressly or impliedly, to pay the finance charges as indicated on the plaintiff’s billing. Since there was no finding of an agreement concerning the payment of finance charges, the court should have deducted such charges from its calculation of damages. This the court failed to do. Instead, the court went on to subtract from $16,119.38, the amount paid by the defendant, $7651.78, leaving a balance of $8467.60. The court found that this figure represented the proper amount of damages on the plaintiffs complaint. In the absence of a finding that the defendant agreed to pay the finance charges contained in the plaintiffs billing, that amount of the billing representing finance charges, $2175.89, should have likewise been deducted, leaving the proper amount of damages at $6291.71 exclusive of statutory prejudgment interest, setoffs and counterclaims.

II

The plaintiffs cross appeal alleges that the court erred in allowing a setoff for meat spoilage. The facts surrounding the setoff are as follows. In July, 1979, an employee of the restaurant, while closing one night, accidently switched off the power to the freezer when he had intended to turn off the lights in the banquet room. By the time this was discovered, on the following day, all of the meat in the freezer had spoiled. The defendant testified that the meat was valued at $1500. The trial court found that the plaintiff had wired an electrical panel containing switches to both the banquet hall and the meat freezer. Although the plaintiff labeled the switches, he failed to install a lock to prevent the accidental shut off of the switch to the meat freezer. Such a lock costs $2 and is easily installed. The court concluded, from the testimony, that it is usual for switches to important restaurant appliances, such as a meat freezer, to be fitted with a lock.

The plaintiff claims that the trial court erred in granting the defendant this “Further Set-Off” sounding in tort when the plaintiff’s action was in contract, because there was no mutual debt and the claim did not arise out of the same transaction as that involved in the complaint. Traditionally, the distinction between a setoff and a counterclaim centers around whether the claim arises from the same transaction described in the complaint. If the claim involves a debt which is mutual and liquidated, even though it arises from separate transactions, it is characterized as a setoff. See General Statutes § 52-139. If the claim arises out of the same transaction described in the complaint, it is characterized as a counterclaim. Savings Bank of New London v. Santaniello, 130 Conn. 206, 211, 33 A.2d 126 (1943). The title of the pleading is not controlling. The issue is, rather, whether sufficient facts are pleaded that would allow recovery either as a setoff or as a counterclaim. Peters Production, Inc. v. Dawson, 182 Conn. 526, 528, 438 A.2d 747 (1980).

Even in the older cases, a counterclaim sounding in tort could be filed in a contract action if “ ‘the subject-matter of the counterclaim is so connected with the matter in controversy under the original complaint that its consideration is necessary for a full determination of the rights of the parties. Downing v. Wilcox, 84 Conn. 437, 80 Atl. 288 [1911].’ Schaefer v. O.K. Tool Co., 110 Conn. 528, 531, 148 A. 330 [1930].” Springfield-Dewitt Gardens, Inc. v. Wood, 143 Conn. 708, 713, 125 A.2d 488 (1956). A more recent Connecticut case favors the joinder of closely related claims where such joinder serves the interest of judicial economy. Jackson v. Conland, 171 Conn. 161, 368 A.2d 3 (1976). Such joinder is proper when “the same issues of fact and law are presented by the complaint and the [claim sought to be joined] and . . . separate trials on each of the respective claims would involve a substantial duplication of effort by the parties and the courts.” Id., 166-67. “[T]he trial court’s determination as to whether [the claim shall be joined] ought not be disturbed except for an abuse of discretion.” Id., 166. Here, where the parties are the same and the damage claimed by the defendant arose out of the plaintiff’s performance of the contract alleged in the complaint, we find no abuse of discretion in the trial court proceeding with the “Further Set-Off.”

The plaintiff’s final claim as to the “Further Set-Off” is that the court had no evidence upon which to postulate a standard of care which the plaintiff breached. To prove his setoff, the defendant had the burden of proving that the plaintiff had done something that an ordinarily prudent electrical contractor would not have done, or had omitted to do something that the ordinarily prudent electrical contractor would have done. The defendant produced Raymond Turri, an electrical contractor, who testified that he would have installed a lock costing $2 and easily affixed to prevent the inadvertent switching off of the freezer circuit located on a panel controlling the ordinary light switches. “ ‘The plaintiff in all negligence cases may show that better, safer and more practicable devices than those used were available to the defendant.’ ” Delmore v. Polinsky, 132 Conn. 28, 31, 42 A.2d 349 (1945). Turri’s testimony was adequate to supply a standard by which to measure the plaintiff’s duty, especially when it comports with common sense.

Ill

Both parties allege that the trial court’s calculation of prejudgment interest at the rate of 15 percent was erroneous. The plaintiff contends that interest should have been awarded at a contractual rate of 18 percent; the defendant contends that interest should not have been awarded at all, or, if awarded, was limited to the then statutory rate of 8 percent.

“It is fundamental that ‘[ijnterest by our law is allowed on the ground of some contract express or implied to pay it, or as damage for the breach of some contract, or the violation of some duty.’ ” (Citation omitted.) Ruscito v. F-Dyne Electronics Co., 177 Conn. 149, 163, 411 A.2d 1371 (1979).

The court did find that the plaintiff’s bills contained a notation that a finance charge of 1.5 percent per month would be added to all balances not paid within thirty days, and that the defendant had paid a small finance charge when he reduced the balance then due to zero on January 9, 1979. The court also found that the defendant, in his capacity as an attorney, had advised the plaintiff’s principals to include this finance charge on its billing, when he acted to incorporate the plaintiff. The trial court did not conclude, however, that there was an implied agreement to pay finance charges. Rather, the court used these findings to determine “whether the interests of justice require the allowance of interest as damages for the loss of the use of money.” The court found that justice required the payment of interest. This finding was clearly within its discretion.

Since there was no finding of an express agreement to pay finance charges of 1.5 percent per month and since the trial court did not conclude that there was an implied agreement to pay such finance charges, but rather concluded that interest should be allowed for the wrongful detention of money only, the court’s award of interest was limited by the then statutory rate of 8 percent. General Statutes (Rev. to 1983) § 37-3a. The court was in error in awarding interest at the rate of 15 percent. Additionally, such interest should also have been computed to the date of judgment rather than to the date of trial. Vincenzi v. Cerro, 186 Conn. 612, 614, 442 A.2d 1352 (1982).

There is error in part, the judgment is set aside as to the amount of damages awarded in favor of the plaintiff and as to the rate and term of the interest allowed and the case is remanded with direction to correct, in accordance with this opinion, the amount of damages and the amount of interest awarded.

In this opinion the other judges concurred.

       We note that the counsel who presented oral argument for the defendant did not participate on the defendant’s briefs.

       Although the plaintiff objected to the defendant’s being allowed to amend his answer to file this “Further Set-Off” on the day trial was to begin, this was within the court’s discretion. There is no indication that the plaintiff filed a motion to strike, or asked for a postponement of trial or a delay in order to address this amendment. We find no abuse of discretion. Smith v. New Haven, 144 Conn. 126, 132-33, 127 A.2d 829 (1956).


text:
    Sylvia Schwarz et al. v. Waterbury Public Market, Inc.
    (3708)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 7
    decision released March 11, 1986

      William F. Gallagher, with whom, on the brief, were Elizabeth A. Gallagher, Herbert Watstein and Julius Watstein, for the appellant (defendant).

      Robert J. Cooney, for the appellees (plaintiffs).
   Dupont, C. J.

The defendant appeals from a judgment rendered by the trial court upon the jury’s verdicts for the plaintiffs. The defendant claims that the trial court erred: (1) in denying the defendant’s motion for directed verdicts, in refusing to set aside the verdicts and in denying the defendant’s motion for judgment notwithstanding the verdicts, all on the grounds that the evidence on the issue of liability was insufficient as a matter of law; (2) in admitting into evidence a page from a log book kept by the defendant, where the page contained information concerning accidents unrelated to the one in question; (3) in refusing to admit into evidence an ambulance report which, the defendant claims, contained a statement by the plaintiff or her mother that the plaintiff had a history of the same injury; and (4) in permitting plaintiff’s counsel to mention specific sums of money and the effects of inflation in his argument to the jury.

The jury could have reasonably found certain facts based upon the evidence submitted to it. The plaintiff, a young woman of thirteen years of age, was grocery shopping with her sister at the defendant’s supermarket. While walking down an aisle, the plaintiff slipped and fell on a spot of spilled milk. Several witnesses testified that they observed spots of spilled milk and that the milk was dirty in appearance. Evidence was presented that the spilled milk came from gallon milk containers which had a tendency to leak when they were placed on their sides. Employees of the defendant, including the store manager, were aware of this condition. As a result of her fall, the plaintiff suffered a broken left hip and was taken by ambulance to the hospital where she underwent surgery. The operation involved the placement of three pins in the plaintiff’s left hip, which were subsequently removed. As a result of her injury, the plaintiff was left with two permanent scars in the area of her left hip and a 15 percent permanent partial disability of the left hip.

At the conclusion of the plaintiff’s case, the defendant moved for directed verdicts, a prerequisite to a motion for judgment notwithstanding the verdict. Practice Book § 321. This motion was denied by the trial court. The jury returned a verdict of $100,000 for the plaintiff and $8,097.95 in medical damages for the plaintiff’s father. The defendant moved for judgment notwithstanding the verdicts and moved to set aside the verdicts. The court denied these motions and rendered judgment for the plaintiffs.

The defendant’s first claim is that the evidence of liability was legally insufficient. In determining whether the trial court erred in denying the defendant’s motions to set aside the verdict on this ground, and to render judgment notwithstanding the verdicts, the evidence presented must be considered in the light most favorable to the plaintiffs. Herb v. Kerr, 190 Conn. 136, 140, 459 A.2d 521 (1983); Magnon v. Glickman, 185 Conn. 234, 237-38, 440 A.2d 909 (1981); see Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 326-27, 505 A.2d 25 (1986).

The defendant had a duty to use reasonable care to keep premises under its control in a reasonably safe condition. Cruz v. Drezek, 175 Conn. 230, 234, 397 A.2d 1335 (1978); Morris v. King Cole Stores, Inc., 132 Conn. 489, 492, 45 A.2d 710 (1946). If the defendant breached this duty and had actual or constructive notice of the defect within a reasonable time to remedy it, the plaintiff was entitled to recover damages for her injuries. Morris v. King Cole Stores, Inc., supra.

In resolving the defendant’s claim, the sole issue is whether the jury could have reasonably found that the defendant breached its duty to use reasonable care to keep the premises under its control in a reasonably safe condition and had actual or constructive notice of a defective condition which caused the plaintiff’s injury. The ultimate question here is whether the defendant had constructive notice of a defective condition. In deciding whether the defendant had such notice the subsidiary question is whether the condition had existed for such a length of time that the defendant’s employees should, in the exercise of due care, have discovered the defect in time to have remedied it. Morris v. King Cole Stores, Inc., supra, 492-93. What constitutes a reasonable length of time is a question of fact to be determined based upon the circumstances of each case. The nature of the business and the location of the defective condition are factors in this determination. Id., 494.

Several witnesses testified to the existence of spilled milk on the defendant’s premises and the dirty appearance of the spots of milk. One testified that there was a trail of milk, covering six aisles in the defendant’s supermarket, at the time of the plaintiff’s fall, and another that milk leaked frequently from milk containers housed in the defendant’s store. From such evidence, the jury could reasonably have concluded that the condition had existed for a length of time, that a reasonable inspection by the defendant would have discovered the existence of the spilled milk on the defendant’s premises and that, therefore, the defendant had constructive notice of the defective condition. Cruz v. Drezek, supra, 235; Long v. Savin Rock Amusement Co., 141 Conn. 150, 154-55, 104 A.2d 221 (1954); Morris v. King Cole Stores, Inc., supra, 493-94.

The defendant’s second claim of error is that the trial court improperly admitted into evidence the entire page from a log book of the defendant which page contained allegedly irrelevant and prejudicial information regarding other accidents which had occurred on the defendant’s premises. The defendant, in answer to the plaintiff’s allegation that the defendant owned, controlled and maintained the premises in which the plaintiff fell, alleged that it did not have any knowledge or information sufficient to form a belief. Such a pleading is, in effect, a denial of the plaintiff’s allegation. Second Exeter Corporation v. Epstein, 5 Conn. App. 427, 429, 499 A.2d 429 (1985). The plaintiff, therefore, had to prove it. Evidence of other falls on the aisles of the store was relevant to prove the defendant’s possession, control and maintenance of the premises. See Aprile v. Colonial Trust Co., 118 Conn. 573, 173 A. 237 (1934).

The document in question was a page from a log book kept by the defendant in the normal course of its business. The log book contained information regarding accidents which took place on the defendant’s premises involving both customers and employees. Although the plaintiff had filed a request for disclosure of all reports regarding the accident, the existence of the log book and the entry regarding the plaintiffs accident was only revealed to the plaintiff at trial during the examination of the defendant’s store manager, who had torn the page on which the plaintiff’s accident was recorded from the log book and brought it to court with him. An examination of the page indicates that none of the other entries refer to falls as a result of slipping on spots of milk on the floor. The entry regarding the plaintiff’s accident stated that she had slipped on milk which had leaked from another customer’s milk carton. Since the defendant had denied that the plaintiff had slipped on milk, the entry was material and relevant. The rest of the page was relevant to possession and control of the premises by the defendant. A trial court has broad discretionary powers in its rulings on the relevancy of evidence. It did not abuse that discretion here. Vazzano v. Slater, 6 Conn. App. 1, 6, 502 A.2d 440 (1986).

The defendant’s third claim of error is that the trial court erred in refusing to admit the ambulance attendant’s report of the accident as a business record pursuant to General Statutes § 52-180. Counsel for the defendant attempted to introduce the report through the testimony of two witnesses, first, the president of the volunteer ambulance association and, second, the ambulance volunteer who responded to the accident and treated the plaintiff. The report contained a statement that the plaintiff had a history of the same injury. Neither witness was able to identify the source of this information, nor could either state that it was transmitted by the plaintiff or by one with a business duty to do so. The trial court allowed the report into evidence with the statement excised from the document.

It is well established that although an accident report is generally admissible as a business record under General Statutes § 52-180, it does not necessarily follow that everything in the document must be admitted into evidence. See Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 384-85, 461 A.2d 422 (1983); Hutchinson v. Plante, 175 Conn. 1, 4-5, 392 A.2d 488 (1978); Mucci v. LeMonte, 157 Conn. 566, 569, 254 A.2d 879 (1969). “To be admissible under the business record exception of General Statutes § 52-180, ‘the business record must be one based upon the entrant’s own observations or upon information transmitted to him by an observer whose business duty it was to transmit it to him.’ D’Amato v. Johnston, 140 Conn. 54, 59, 97 A.2d 893 (1953). Statements obtained from volunteers are not admissible though included in a business record because it is the duty to report in a business context which provides the reliability to justify this hearsay exception. Id. Information in a business record obtained from a person with no duty to report is admissible only if it falls within another hearsay exception. State v. Palozie, 165 Conn. 288, 295, 334 A.2d 468 (1973).” State v. Sharpe, 195 Conn. 651, 663-64, 491 A.2d 345 (1985).

In this case, there is no indication that the statement, that the plaintiff had a history of the same injury, was obtained from a person who had a business duty to report it. The ambulance volunteer who made out the report testified that there was a great deal of confusion at the scene of the accident and that he could not recall from whom he obtained the information. Nor was the defendant able to show that the statement qualified under some other exception to the hearsay rule. Thus, the statement that the plaintiff had a history of the same injury was properly excluded.

The defendant attempts to rely on Shuchman v. State Employees Retirement Commission, 1 Conn. App. 454, 472 A.2d 1290 (1984), in arguing that the trial court erred in excluding this statement. In Shuchman, this court stated that “[t]he lack of personal knowledge of the entrant as to the particular source of the information affects the weight of the evidence, not its admissibility.” Id., 459. The defendant argues that in light of this language, the trial court erred in not admitting the ambulance report in its entirety. A close reading of the decision in Shuchman, however, clearly reveals that under the circumstances of that case, the information which was transmitted to the entrant could only have come from a person with a business duty to transmit such information. The source of the information in the business record in Shuchman was limited to officials involved in the business, all of whom were under a duty to transmit such information. By way of contrast, the statement that the plaintiff had a history of the same injury could have been obtained from anyone at the scene of the accident. The statement, therefore, could have involved “mere volunteers with no business connection to the business” or “officious intermeddler[s].” Id., 458. By failing to establish that the statement was transmitted by a person with a business duty or that it qualified under some other exception to the hearsay rule, the defendant cannot prevail in his claim that the trial court erred in refusing to admit into evidence the ambulance report in its entirety.

The defendant’s final claim is that the trial court erred in permitting the plaintiffs counsel to state specific monetary amounts in his closing argument to the jury and in permitting him to tell the jury that they could consider the effects of inflation in determining what amount of damages, if any, should be awarded. During the argument, counsel for the defendant objected several times on the ground that it was improper for the plaintiff’s counsel to mention the specific sums of $100,000 and $150,000 as possible compensation for the plaintiff’s injuries. Counsel for the defendant further objected to remarks by the plaintiff’s counsel that the jury could consider “the value of a dollar today as compared to what it will be in the future.” The trial court overruled these objections.

“ ‘The trial court is invested with a large discretion with regard to the arguments of counsel, and while its action is subject to review and control, we can interfere only in those cases where the discretion was clearly exceeded or abused to the manifest injury of some party.’ Levin v. Ritson, 179 Conn. 223, 226, 425 A.2d 1279 (1979), quoting Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 342-43, 160 A.2d 899 (1960).” Tomczuk v. Alvarez, 184 Conn. 182, 193, 439 A.2d 935 (1981). It is within the discretion of a trial court to allow a mention of the estimated value of a case, as long as the jury is instructed that a party’s estimate of such value is not evidence and that it is solely the jury’s function to determine if any damages are due and if so, the amount of them. Levin v. Ritson, supra, 227. An examination of the court’s charge to the jury clearly indicates that the jury was instructed to decide the issues, including the question of damages, solely on the basis of the evidence presented in the case. The trial court’s charge to the jury on the issue of damages clearly stated that it was up to the jury to determine what dollar amount might be fair and reasonable damages, if that question were reached.

Finally, the defendant’s claim is that the trial court erred by allowing the plaintiffs counsel to tell the jury that they could take inflation into account in determining their award. It is permissible for a jury to take inflation into consideration as a factor in reaching a decision on the issue of damages. See, e.g., Kiniry v. Danbury Hospital, 183 Conn. 448, 457-58, 439 A.2d 408 (1981); Katsetos v. Nolan, 170 Conn. 637, 657-58, 368 A.2d 172 (1976).

There is no error.

In this opinion the other judges concurred.

       The plaintiffs are the parents of a minor child whose fall on the defendant’s premises is the subject of this appeal. The action was brought on behalf of the child by her mother, and the child’s father sought to recover incurred expenses. “Plaintiff’ as used in this decision refers to the minor child, unless otherwise noted.

       Appellate counsel was not involved in the trial of this case.

       General Statutes § 52-180 provides in part as follows: “admissibility of BUSINESS ENTRIES and photographic copies, (a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      ‘“(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility.”

       The relevant portion of the court’s charge to the jury regarding damages is as follows: “Now, there were some arguments by counsel to you this morning concerning amounts, numbers. It is up to you to determine what the damages are, fair, just and reasonable, whatever you feel that figure might be. So, remember that. While counsel may have quoted some figures to you as to what you might bring in, putting that aside, it is up to you, as members of this jury, if you reach the question of damages, to bring in whatever figure you feel is fair, just and reasonable. No more and no less. The general rule is, that insofar as money can do it, the plaintiff is to get fair and just compensation for the injuries she has suffered. It is for you, in the exercise of your best judgment, to say what is fair and just compensation to her insofar as money will compensate for the injury which she has suffered. There is no fixed rule which you can apply. You have to apply sound common sense in reaching the amount of your verdict.”


author: Bieluch, J.

text:
    State of Connecticut v. The R.A. Civitello Company, Inc.
    (3482)
    Hull, Daly and Bieluch, Js.

      Argued November 15, 1985
    decision released March 11, 1986

      Bradley K. Cooney, for the appellant (defendant).

      William J. White, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (state).
   Bieluch, J.

This is an appeal from a judgment of the trial court vacating an arbitration award in favor of the defendant on the ground that the award violated public policy and contravened General Statutes (Rev. to 1981) § 4-137g. The defendant claims that the court erred in vacating that award since the submission to arbitration was unrestricted and, therefore, the arbitrator was not obligated to render an award which complied with state law. We disagree with this conclusion and find no error.

The facts are not in dispute. On September 1,1981, the defendant entered into a contract with the state of Connecticut for repairs to a hangar at Bradley International Airport in Windsor Locks. The contract price, based upon Civitello’s bid, was $1,545,725.

Subsequently, a sub-bidder on the project, M. J. Daly & Sons, Inc., voluntarily withdrew its sub-bid and was replaced by the low prefiled sub-bidder for fire protection work, Electrical Mechanical Contractors, Inc., for a cost reduction or saving of $30,000. The state, therefore, reduced the defendant’s contract price to reflect the difference in compliance with General Statutes (Rev. to 1981) § 4-137g. Civitello refused to accept the adjustment and, upon completion of the project, filed a demand for arbitration under paragraph eleven of the contract on or about June 2, 1982, for restoration of the amount. The submission to arbitration was unrestricted, and merely sought “the restoration of $30,000.00 to the Contract.”

In April, 1984, the arbitrator awarded Civitello the sum of $30,000. The plaintiff filed an application to vacate the award under General Statutes § 52-418. The defendant filed a counter-application to confirm the award under General Statutes § 52-417. On August 2, 1984, the court vacated the arbitrator’s award on the ground that it contravened the public policy behind General Statutes § 4-137g and was, therefore, illegal. The defendant’s motion to confirm the award was denied. From the judgment of the court, the defendant has appealed.

The defendant claims that the court erred in vacating the arbitration award on the ground that it violated public policy. Arbitration is a remedy bargained for by the parties. The procedure to be employed is born of negotiations between them. Where the parties contractually agree to a procedure and have delineated the authority of the arbitrator, they must adhere to, and are bound by, the agreed limits. A reviewing court may only examine the award to determine whether it conforms to the submission. Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 211-12, 470 A.2d 1219 (1984). Neither errors of law nor of fact may be corrected upon review of an award if the submission was unrestricted. Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 106, 438 A.2d 1171 (1981); Trumbull v. Trumbull Police Local 1745, supra, 213.

The issue before this court, however, is not whether a question of law or fact may be corrected on judicial review. Simply put, what we must resolve is whether a public policy may be contravened by the submission of the parties to arbitration, or the resulting award itself. The public policy expressed by the statutes prescribing strict procedures for the awarding of contracts on public works by public bids is self-evident. Public projects are financed by public funds obtained from public taxation. Neither state officials, nor private contractors, nor well-meaning arbitrators, nor judicial review may allow the unnecessary expenditure of public funds contrary to statutory bidding procedures. The expenditure of public funds is a public trust to be zealously guarded and legally restricted by all concerned. It was with these basic public considerations in mind that General Statutes Chapter 51a, entitled “Public Building Contracts,” was enacted. Section 4-137g (Rev. to 1981) thereof in relevant part provided: “If a selected sub-bidder fails within five days . . . after presentation of a subcontract by the general bidder selected as a general contractor, to perform his agreement to execute a subcontract in the form hereinafter set forth with such general bidder . . . the awarding authority and the general contractor shall select, from the other sub-bids duly filed with the awarding authority for such subtrade not rejected, the next lowest responsible and eligible sub-bidder at the amount named in his sub-bid as so filed, and the contract price shall be adjusted by the difference between the amount of such sub-bid and the amount of the sub-bid of the delinquent sub-bidder . . . . ” (Emphasis added.)

Just as parties cannot expect a court to enforce a contract between them that is illegal or otherwise contrary to public policy, they cannot expect any arbitration award which condones illegal payment or contravenes public policy to receive judicial endorsement. Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979). In such a case, the reviewing court is not concerned with the correctness of the arbitrator’s decision, but with the lawfulness of enforcing the award. Id. The arbitration process does not legitimatize illegality under a conflicting statute. If payment to the defendant cannot be enforced contrary to the public policy expressed in § 4-137g, it is not rendered enforceable by the arbitrator’s decision. Board of Trustees v. Federation of Technical College Teachers, supra, 196. We hold, therefore, that the trial court did not err in concluding that the arbitrator’s award contravened § 4-137g and the public policy behind it, and was thus rendered in excess of the arbitrator’s powers and is unenforceable. General Statutes § 52-418 (a) (4).

Our conclusion that the arbitrator exceeded his authority is dispositive of this appeal. We choose, however, to comment briefly on the second claim of error. The defendant states that the court erred as a matter of law in its consideration of the application to vacate the arbitration award under § 52-418 (a) (4) by admitting into evidence documents and testimony beyond the demand for arbitration and the arbitrator’s award. The defendant’s brief states the issue, but does not discuss it beyond stating in its “Conclusion” that “[t]he State’s attempt to ‘appeal’ the arbitrator’s decision to the Superior Court goes beyond the scope of review specifically provided by the legislature in Conn. Gen. Stat. § 52-418 [a] (4).” “However, nothing more than this bare statement, without citation to legal authority, appears in [the defendant’s] brief. Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” Rodriguez v. Mallory Battery Co., 188 Conn. 145, 148-49, 448 A.2d 829 (1982).

There is no error.

In this opinion the other judges concurred.


author: Allen, J.

text:
    Olive Electric Supply Company, Inc. v. Brewery Square Limited Partnership et al.
    (3699)
    Dupont, C. J., Borden and Allen, Js.
    Argued November 26, 1985
    decision released March 11, 1986

      Raymond A. Garcia, with whom, on the brief, was Elaine Gordon, for the appellants (named defendant et ah).

      Andrew J. O’Neill, with whom, on the brief, was Thomas E. Crosby, for the appellee (plaintiff).
   Allen, J.

This is an appeal from a decision of the trial court in which it determined that a mechanic’s lien filed on the land records by the plaintiff was not fatally defective because of a misstatement of the commencement date of providing materials. Because we find that the decision appealed from is not a final judgment, we dismiss the appeal sua sponte for lack of jurisdiction.

The defendant Brewery Square Limited Partnership (Brewery Square) entered into a contract with the defendant The R.A. Civitello Company, Inc. (Civitello), wherein Civitello would construct a structure on premises owned by Brewery Square. In the course of its contract, Civitello hired the defendant J & R Electric Company, Inc. (J & R Electric), which is not a party to this appeal, to perform electrical power and lighting services at the premises. J & R Electric and Civitello hired the plaintiff to furnish electrical power and lighting materials.

The plaintiff claimed that it was not paid in full for its materials and it thereupon filed a mechanic’s lien against land owned by Brewery Square. The mechanic’s lien stated that the furnishing of materials and performance of services commenced on February 1,1983, and ceased on November 22, 1983. Civitello substituted a bond in lieu of the lien pursuant to General Statutes § 49-37 (a).

The plaintiff commenced this action on the bond. Civitello moved to declare the mechanic’s lien invalid or to reduce its amount pursuant to General Statutes § 49-37 (b) (3). The trial court held an evidentiary hearing on the motion. At the hearing, it became apparent that materials were first provided by the plaintiff on May 9, 1983, and not on February 1, 1983, the date stated in the certificate of lien. The trial court found that the lien was not fatally defective because of the misstatement of the commencement date of the providing of materials, and it further found that there was probable cause to sustain both the validity of the lien and its amount. Civitello and Brewery Square filed this appeal, claiming that the ruling of the trial court concerning the misstatement of the commencement date of the providing of materials was in error.

Although this appeal purports to be taken pursuant to General Statutes § 49-35c, we find that section of the statutes to be inapplicable to this case. General Statutes § 49-35c (a) authorizes appeals from orders entered pursuant to General Statutes § 49-35b (b), which concerns motions in regard to the discharge or reduction of mechanic’s liens where no bond has been substituted.

The case before us concerns a situation where a bond has been substituted for the mechanic’s lien and an action on the bond is pending before the court. General Statutes § 49-37 (b) (3) is the applicable statute. It provides in pertinent part: “(b) Whenever a bond has been substituted for any lien pursuant to this section: . . . (3) If an action on the bond is pending before any court, any party to that action may at any time prior to trial, unless an application under subdivision (1) of this subsection has previously been ruled upon, move that the lien for which the bond was substituted be declared invalid or reduced in amount.” (Emphasis added.) Clearly, that is the section of the statute under which the motion to declare the mechanic’s lien invalid or reduce it in amount was made. A bond had been substituted and this action on the bond was pending in court.

There is no provision in the statutes which allows an appeal from an order pursuant to General Statutes § 49-37 (b) (3), although there is a provision which allows an appeal from an order pursuant to General Statutes § 49-37 (b) (1). General Statutes § 49-37 (b) (6) provides: “Any order entered upon an application set forth in subdivision (1) of this subsection shall be deemed a final judgment for the purpose of appeal.” General Statutes § 49-37 (b) provides in pertinent part: “Whenever a bond has been substituted for any lien pursuant to this section: (1) The principal or surety on the bond, if no action to recover on the bond is then pending before any court, may make application . . . that a hearing be held to determine whether the lien for which the bond was substituted should be declared invalid or reduced in amount . . . . ” (Emphasis added.) Thus, General Statutes § 49-37 (b) (6) limits an appeal from the trial court’s action on an application to reduce or declare a bond invalid to the situation in which no action on the bond is then pending. There is no statutory provision for an appeal from an order under General Statutes § 49-37 (b) (3) which applies where an action on the bond is pending.

The rationale for this legislative distinction is that where no action on the bond is pending, there is no other redress from an adverse decision on a motion to declare the lien invalid or to reduce its amount other than by a direct appeal. This is not true where there is a pending action on the bond and the trial court will make a final decision as to the validity and adequacy of the lien when it decides the merits of the pending action. Therefore, where an action on the bond is pending, any decision on a motion to declare the lien invalid or to reduce its amount is interlocutory and an appeal from such a decision would be premature.

Here, an action on the bond was pending. Indeed, Civitello’s motion, on which the court acted, was a part of that action on the bond. Therefore, it is not General Statutes § 49-37 (b) (1) which applies, but General Statutes § 49-37 (b) (3), from which there is no statutory provision for an appeal. Absent a statutory right of appeal, the court’s order was not a final judgment and is, therefore, not appealable. “The decision of the trial court did not terminate any separate and distinct proceedings nor conclude the rights of the plaintiffs so that further proceedings cannot affect them.” Bartelstone v. Blue Cross & Blue Shield of Connecticut, Inc., 3 Conn. App. 627, 629, 491 A.2d 417, cert. denied, 196 Conn. 808, 494 A.2d 905 (1985); Timothy v. Upjohn Co., 3 Conn. App. 162, 164-65, 485 A.2d 1349 (1985).

The appeal is dismissed sua sponte.

In this opinion the other judges concurred.

       Although Civitello’s motion cited General Statutes § 49-37 (c) (3) as its basis, we consider that a typographical error, and that it meant to refer to General Statutes § 49-37 (b) (3). There is no subsection (c) of § 49-37, and § 49-37 (b) (3) provides for an application to reduce or declare invalid the lien for which the bond was substituted.