author: Maloney, J.

text:
    William Strong et al. v. Conservation Commission of the Town of Old Lyme et al.
    (10807)
    Nokcott, Freedman and Maloney, Js.

      Argued May 12
    decision released August 4, 1992

      James E. Mattern, for the appellant (named defendant).

      John S. Bennet, for the appellees (plaintiffs).
   Maloney, J.

This appeal arises from the denial of an inland wetlands application by the defendant conservation commission (commission). The plaintiffs own 0.48 acres of land in Old Lyme which form a narrow parcel containing two wetlands. The entire parcel falls within the 100 foot wetlands boundary subject to the regulations.

The plaintiffs filed two applications for permits to develop the site by constructing a house and septic system within the regulated area, but outside the wetlands proper. Both applications were denied by the defendant commission. The plaintiffs appealed the second denial to the Superior Court pursuant to General Statutes § 22a-43, contending, among other claims, that the record did not provide an adequate basis for the denial. The trial court found in favor of the plaintiffs and ordered the commission to grant the application.

The commission raises three issues on appeal: (1) whether the finding that the plaintiffs were aggrieved was clearly erroneous; (2) whether the court abused its discretion in finding that there were no alternatives to the plaintiffs’ primary plan; and (3) whether the court abused its discretion in remanding the case with instructions to grant the permit.

The trial court found that the plaintiffs, as owners of the property in question, are aggrieved by the commission’s action. General Statutes § 22a-43 (a); Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987). In contesting aggrievement, however, the commission alleges that the plaintiffs’ application, which is the subject of this appeal, is identical to their 1987 application, which was denied and not appealed. The commission contends that the plaintiffs cannot be aggrieved by the present denial, therefore, because it is, in effect, merely an affirmance of its prior decision. We do not agree.

“Administrative agencies are impotent to reverse [themselves] unless (1) a change of condition has occurred since its prior decision or (2) other considerations materially affecting the merits of the subject matter have intervened and no vested rights have arisen. Middlesex Theatre, Inc. v. Hickey, 128 Conn. 20, 22, 20 A.2d 412 (1941); Hoffman v. Kelly, 138 Conn. 614, 616-17, 88 A.2d 382 (1952). The principle applies, however, only when the subsequent application seeks substantially the same relief as that sought in the former. Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 279, 129 A.2d 619 (1957). Grillo v. Zoning Board of Appeals, 206 Conn. 362, 367, 537 A.2d 1030 (1988).” (Internal quotation marks omitted.) Carlson v. Fisher, 18 Conn. App. 488, 497-98, 558 A.2d 1029 (1989).

A review of the record in this case persuades us that the commission’s argument on aggrievement cannot be sustained. The commission failed to raise this issue as one of its reasons for denying the application and also failed to introduce a copy of the 1987 application in the record. Furthermore, one of the plaintiffs, William Strong, Jr., testified that although the two applications concerned the same plan, the second application presented several alternatives, thus differentiating it from the first. We cannot conclude, therefore, on the basis of this record, that the 1987 application and the subject application are substantially the same. Accordingly, we hold that the trial court correctly found that the plaintiffs were aggrieved.

The defendant next claims that the trial court abused its discretion in concluding that there was no alternative to the plaintiffs’ principal plan to develop the lot. General Statutes § 22a-41 (b) provides that “a permit [for the conduct of a regulated activity] shall not be issued unless the [commission] finds that a feasible and prudent alternative [to the activity] does not exist.” The question before the trial court was whether the commission had sufficient evidence to justify the denial of the plan and, if so, whether there was sufficient evidence to determine that an alternative existed. The trial court determined that “there is no substantial evidence to support the decision of the commission.” The minutes of the commission meeting of November 28,1989, show that Commissioner David Rhum presented a motion in summary form and an unsigned supporting memorandum. Together, the motion and memorandum constitute the commission’s decision denying the application. The main points of the motion were “(1) the area of the proposed construction is close to the wetland, which would have an impact on it; (2) however the wetland existed, it was part of a major system with considerable water flow to bring water into a large important system downstream; (3) there were options, such as making changes in the boundary terrain or the dimensions of the uplands, which might be changed by excavation or fill. This was one option that the commission felt was a possibility and to which no consideration had been given.”

The unsigned memorandum described the parcel and the plaintiffs’ proposal. The underlying reasons for the decision are found in the third paragraph of the memorandum, which states that “[t]he actual distances of proposed construction from the wetlands and watercourse, and the proposed terrain changes on the property, make it likely that runoff and leachate will reach and enter the watercourse and wetland, producing an ecologically undesirable impact. The potential severity of the impact is enhanced by the function of the watercourse in feeding the open marsh and Big Pond. The site preparation, land elevation for building, etc., may also impact negatively on the immediate neighbor, Mr. Stanley Hancock, who has expressed concern about runoff. In the event that the septic reserve is required to be used, a pipe will have to be laid across and under the full width of the wetland, leading to major disruption during construction and to probable septic pollution while the construction is underway. . . . However the building and septic system are located, the site as it stands is inherently a poor location for development.”

When reviewing the transcripts of the public hearings and comparing the information elicited at those hearings with the reasons given for the denial, the trial court found it “difficult to determine how the commission members arrived at the material indicated in the decision.” The trial court found that there was no substantial evidence in the record to support the commission’s decision.

The trial court’s standard of review in an administrative appeal is to determine whether there is substantial evidence in the record that reasonably supports the administrative decision. Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980). If the record provides such substantial evidence, the court should not substitute its judgment for that of the agency. Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 572-73, 538 A.2d 1039 (1988); New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988). If the court finds, however, that there was insufficient evidence to support the findings and conclusions of the agency, it must sustain the appeal. General Statutes § 4-183 (j); Feinson v. Conservation Commission, supra.

Our courts have considered the issue of substantial evidence in several cases similar to the case before us. In Kaeser v. Conservation Commission, 20 Conn. App. 309, 314, 567 A.2d 383 (1989), the court held that the substantial evidence rule does not call for a roll call of qualified experts, merely that “[a]n agency decision must be based on reliable evidence made public and the applicant must have an opportunity to respond to agency concerns.” (Emphasis added.) Id., 314; see Huck v. Inland Wetlands & Watercourses Agency, supra, 547; Manor Development Corporation v. Conservation Commission, 180 Conn 692, 701, 433 A.2d 999 (1980); Mrowka v. Board of Zoning Appeals, 134 Conn. 149, 154, 55 A.2d 909 (1947).

In Tanner v. Conservation Commission, 15 Conn. App. 336, 544 A.2d 258 (1988), the plaintiff’s four experts agreed that the proposed project could be built on the site. This court affirmed the trial court’s ruling that the commission, in dealing with complex issues, could not ignore the testimony of the expert witnesses and rely solely on its own insight. “We find that there was no substantial evidence since there was an absolute disregard of the unanimous contrary expert opinion.” Id., 341.

In Huck v. Inland Wetlands & Watercourses Agency, supra, the plaintiff offered four expert witnesses to testify that the proposal would have no adverse impact on the wetlands; the agency did not present any expert testimony in rebuttal. In that case, however, the court found that there was other substantial evidence to support the agency’s denial of the permit. Id., 543-50. The agency did not “ ‘whimsically ignore substantial expert testimony’ nor was its action ‘the result of the prejudicial desire of the [agency] to have [the] plaintiff’s land remain in a natural state.’ . . . This agency . . . reasonably resolved fairly debatable questions based on substantial evidence.” Id., 552.

In Feinson v. Conservation Commission, supra, the only expert witness was the plaintiff’s design engineer; no public official or member of the public contested the application. The commission disregarded the expert’s testimony and based its decision entirely on the specialized knowledge, judgment, and concerns of its own members. It brought these factors into the process, however, after the public hearing and at a time when the plaintiff could not contest or rebut them. The court held that the commission had acted in a manner that placed its data base beyond the plaintiff’s scrutiny and therefore acted “without substantial evidence, and arbitrarily.” Id., 429.

These four cases, taken together, establish that an administrative agency must base its decision on substantial reliable evidence in the record. It may not base its decision on the special concerns and insights of its members unless it has given the applicant an opportunity to respond to them. Finally, an agency cannot capriciously ignore the testimony of expert witnesses.

The record before the commission in the present case reveals that two engineers testified as expert witnesses for the plaintiff and that an attorney representing an abutting landowner questioned the effect that the proposed plan would have on drainage onto his client’s land. He also questioned the damage caused by the construction of a pipe over the wetlands if the primary septic system failed. There was no discussion of the effects of any runoff during construction or on the pond downstream. The question of whether the wetlands could be shifted away from the house and septic system was raised, but barely explored, and was soundly rejected by the engineers. The final issue mentioned in the commission’s supporting memorandum, the effect on the abutting landowner, was raised; however, there was no evidence on which to base a finding.

Our review of the commission’s decision and the record before it, as we have set forth previously, does not disclose substantial, reliable evidence to support the agency’s findings and conclusions. In particular, the commission’s finding that the plaintiffs could change the terrain as an alternative to their plan was unsupported by evidence. Furthermore, the commission did not provide the plaintiffs an opportunity to respond to its concerns about possible pollution of the downstream open marsh and Big Pond, the effect of laying a pipe across the width of the wetland in the unlikely event that the primary septic system failed, or the effect of runoff on abutting lands. Instead, the commission expressed those concerns for the first time in its decision, when it was too late for the plaintiffs to respond. For all of these reasons, we hold that the trial court did not abuse its discretion in reversing the decision of the commission.

The final claim of the commission is that the trial court’s order remanding the case was improper. Having found that the commission’s denial of the plaintiffs’ application should be reversed, the trial court remanded the case to the commission “with instructions to grant the inland wetlands permit sought by the applicants.”

Genera] Statutes § 4-183 governs appeals from the commission’s decision. See General Statutes § 22a-43. The trial court may affirm the decision of the agency or remand the case for further proceedings. General Statutes (Rev. to 1989) § 4-183 (g).

Normally, “[w]hen agency action is overturned . . . because of invalid or insufficient findings, we have held that a court must ordinarily remand the matter under consideration to the agency for further consideration.” Feinson v. Conservation Commission, supra, 429-30. In this case, the trial court ruled that, as a matter of law, there was only one conclusion that the commission could reasonably reach. As in Feinson, however, the record in this case indicates that the commission may have authority to accept the plaintiffs’ application with conditions or modifications. In fact, the plaintiffs conceded at the administrative hearing that they would agree to a condition, imposed by the commission, requiring down spouts to drain runoff away from neighboring property. In view of this issue, we cannot agree with the trial court that as a matter of law there was “only one reasonable result for the commission to have taken.” A direct order to the commission is therefore legally unwarranted and the case must be remanded to the commission for further consideration of any conditions that should be attached to the issuance of the permit as supported by evidence in the present record. Feinson v. Conservation Commission, supra; see also Plastic Distributors, Inc. v. Burns, 5 Conn. App. 219, 497 A.2d 1005 (1985).

The judgment is reversed in part and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 4-185 (a) provides that an amended version of General Statutes § 4-183 applies to all agency proceedings commenced on or after July 1, 1989. Agency proceedings commenced before July 1, 1989, are governed by the law in effect when the proceeding commenced. As the application being appealed in this case was filed on June 15,1989, the older version of the statute applies.


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    State of Connecticut v. Danilo Dizon
    (10663)
    O’Connell, Lavery and Heiman, Js.
    Argued June 8
    decision released August 4, 1992

      M. Fred De Caprio, public defender, with whom, on the brief, was Lawrence S. Hopkins, former public defender, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, and Warren Maxwell, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant, Danilo Dizon, appeals from a judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). He claims that the trial court’s jury instructions regarding reasonable doubt constitute reversible error. We affirm the trial court’s judgment.

The charges against the defendant arose out of allegations that he robbed a seventy year old woman at gunpoint as she attempted to exit her car, which was parked in her garage. The primary issue at trial was the reliability of the victim’s identification of the defendant.

At the conclusion of the trial, the court instructed the jury on the pertinent legal principles, including the definition of reasonable doubt as it applied to the state’s burden of proof. The trial court’s reasonable doubt instruction was: “Before you can render a verdict of guilty, the state must prove every essential element of the crime charged beyond a reasonable doubt. This phrase, reasonable doubt, has no technical or unusual meaning. You get the real meaning of the phrase if you emphasize the word reasonable. A reasonable doubt is a doubt for which a valid reason can be assigned. It is a doubt that is something more than a guess or a surmise. A reasonable doubt is not such a doubt as is raised by one who questions simply for the sake of argument. It is not a doubt suggested by the ingenuity of counsel which is not warranted by the evidence. A reasonable doubt is a real doubt, an honest doubt, a doubt which has its foundation in the evidence offered here in this case, or in the absence of evidence. A reasonable doubt is not hesitation springing from feelings of sympathy or pity for an accused. A reasonable doubt is one for which you can in your own mind consciously give a reason. If the facts you may find proven, or the evidence that you deem credible are consistent with and may be explained by any reasonable hypothesis, not a possible hypothesis, then the accused must be given the benefit of the doubt and acquitted. A mere possible hypothesis of innocence will not suffice.

“Now, I have stated to you that the state must prove its case beyond a reasonable doubt. Now this does not mean that the state must prove guilt with absolute certainty. It is almost impossible to make out a case of absolute certainty. The state is required only to prove a case beyond a reasonable doubt. Now, a doubt to prevent you from finding a person guilty if the proof shows guilt is not to be a whimsical or captious doubt, but a substantial doubt, and, again, it must rest upon some element of weakness in the proof that gives you, as reasonable men and women, a reason for doubting guilt. In other words, if there should be any evidence in the case that has created a reasonable doubt in your minds of the guilt of the accused, then the case is not made out beyond a reasonable doubt. But if there is no reasonable ground for doubting guilt, then it is made out beyond a reasonable doubt. A reasonable doubt which would justify an acquittal is not an imaginary doubt, but is a doubt raised upon reason and common sense. If any individual juror is not convinced of the defendant’s guilt beyond a reasonable doubt, he or she cannot convict.”

After the trial court finished instructing the jury, it asked counsel whether they had any exceptions to the jury instructions. After hearing the defendant’s exception to a portion of the instructions not relating to the concept of reasonable doubt, the following colloquy occurred:

“The Court: Are there any other exceptions?
“[Defendant’s Attorney]: No, Your Honor.
“[State’s Attorney]: None. Matter of fact, I thought the charge on reasonable doubt was super.
“[Defendant’s Attorney]: I agree.”

On appeal, the defendant seizes on a single phrase in the trial court’s exhaustive exegesis of the term reasonable doubt: “[A reasonable doubt is] not ... a whimsical or captious doubt, but a substantial doubt.” Relying heavily on the United States Supreme Court decision in Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990) (per curiam), he argues that the trial court’s sole characterization of a reasonable doubt as a substantial doubt constitutes reversible error.

The defendant concedes that his challenge to the trial court’s jury instructions was not preserved for appellate review, and seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In State v. Golding, supra, 239-40, our Supreme Court reformulated the standard of appellate review of unpreserved claims: “[W]e hold that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) We conclude that because the defendant cannot satisfy the third prong of Golding, that an alleged constitutional violation clearly exists and clearly deprived him of a fair trial, he cannot prevail on his claim.

We begin our analysis with the axiom that we do not clinically dissect a jury charge, but read the charge as a whole to determine whether there exists a reasonable possibility that the jury was misled. State v. Fernandez, 27 Conn. App. 73, 84-87, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992); State v. Toczko, 23 Conn. App. 502, 507, 582 A.2d 769 (1990).

In Cage v. Louisiana, supra, the Supreme Court of the United States reversed the petitioner’s murder conviction, concluding that the trial court’s jury instructions on the definition of reasonable doubt impermissibly diluted the state’s burden of proof. In ruling that the trial court’s jury instructions were constitutionally defective, the Supreme Court focused on the trial court’s descriptions of reasonable doubt as “such doubt as would give rise to a grave uncertainty,” “an actual substantial doubt” and “a moral certainty.” Id., 329. “It is plain to us,” the Supreme Court declared, “that the words ‘substantial’ and ‘grave,’ as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard. When those statements are then considered with the reference to ‘moral certainty,’ rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.” Id., 329-30.

Thus, the Supreme Court in Cage v. Louisiana, supra, focused not merely on the trial court’s characterization of a reasonable doubt as a substantial doubt but on the cumulative effect of three offending terms that hopelessly polluted the trial court’s reasonable doubt instructions. This point was underscored recently by Justice Stevens, respecting the denial of the petition for a writ of certiorari in Gaskins v. McKellar, U.S. , 111 S. Ct. 2277, 114 L. Ed. 2d 728 (1991). Although the Supreme Court’s denial of certiorari has no precedential value, Justice Stevens’ short written opinion highlights what a careful reading of Cage v. Louisiana, supra, itself makes clear — that a question under Cage v. Louisiana, supra, presents itself only if a trial court employs instructions that contain the same flaws as did the instructions in Cage v. Louisiana, supra, particularly the “grave uncertainty” language.

Such is not the case here. The defendant in this case spotlights a sole misstatement — the reference to a reasonable doubt as a substantial doubt — in the trial court’s lengthy and otherwise unexcepted to explanation of reasonable doubt. See State v. Fernandez, supra, 86-88. Because he cannot show that a constitutional violation clearly exists and clearly deprived him of a fair trial, we will not review his claim further. See State v. Negron, 221 Conn. 315, 326, 603 A.2d 1138 (1992); State v. Golding, supra.

The judgment is affirmed.

In this opinion the other judges concurred.


author: Norcott, J.

text:
    Kevin Sullivan v. City of Norwalk
    (10208)
    Norcott, Lavery and Cretella, Js.

      Argued May 6
    decision released August 4, 1992

      Katherine C. Senie, assistant corporation counsel, with whom, on the brief, were Alfred Santaniello, corporation counsel, and OwenMcEvoy and Jennifer Hauhuth, legal interns, for the appellant (defendant).

      Richard P. Gilardi, with whom, on the brief, was George Booth, for the appellee (plaintiff).
   Norcott, J.

The defendant appeals from the trial court’s judgment, after a jury trial, in favor of the plaintiff, awarding him $125,000 in damages for injuries suffered as a result of the defendant’s violation of General Statutes § 13a-149, one of the state’s highway defect statutes.

On appeal, the defendant claims that the trial court (1) improperly denied the defendant’s motion for a directed verdict, (2) improperly instructed the jury on common law negligence, (3) improperly ordered the jury to reconsider its responses to certain written interrogatories, and (4) failed either to grant judgment notwithstanding the verdict or to set aside the verdict. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The plaintiff, an experienced motorcyclist, and his passenger, Suzanne Kelly, were riding his motorcycle on the evening of June 21 and in the early morning of June 22. At about 1:40 a.m., they approached a Y-shaped intersection in Norwalk where four days earlier the defendant’s public work’s department had directed a street cleaning crew to remove sand. At a speed of roughly twenty-five to thirty miles per hour, the plaintiff proceeded toward the intersection, intending to bear left on Allen Road. When he saw an accumulation of sand in the intersection, the plaintiff decided that the safest course of action was to slow the vehicle to a speed at which he could lay it down on the ground and bring it to a full stop. He chose this approach to avoid what he perceived would be an uncontrolled slide and collision with a stone wall on the opposite side of the intersection. The plaintiff nevertheless lost control of the vehicle, was thrown from the motorcycle and was injured.

At trial, the defendant, at the close of the plaintiff’s case-in-chief, moved for a directed verdict, arguing that the plaintiff had not made out a prima facie case under General Statutes § 13a-149. The trial court denied the motion. The jury returned a verdict for the plaintiff accompanied with responses to special interrogatories prepared by the defendant. Because two of the answers were inconsistent with the verdict, the court ordered the jurors to reconsider their answers to the interrogatories. Shortly thereafter, the jury returned with answers to the two interrogatories, changed so as to conform to the verdict. The defendant subsequently moved for judgment notwithstanding the verdict and requested the court to set aside the verdict. The trial court also denied these motions. This appeal followed.

The defendant first claims that the trial court improperly denied a motion for a directed verdict and a motion to set aside the verdict. In essence, the defendant argues that the plaintiff failed to establish a prima facie case of liability under General Statutes § 13a-149. We disagree.

Our review of the trial court’s refusal to direct a verdict is limited. “ ‘[W]e view the evidence in the light most favorable to the plaintiff. ... A directed verdict is justified if on the evidence the jury could not reasonably and legally reach any other conclusion than that embodied in [a verdict for the defendant] ... or if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.’ ... When a jury has returned a verdict and the trial court has refused to set it aside, ‘[t]he court’s decision will be upheld on appeal if, from the evidence presented, the jury could reasonably have concluded as it did.’ ” (Citations omitted.) Hall v. Winfrey, 27 Conn. App. 154, 157-58, 604 A.2d 1334, cert. denied, 222 Conn. 903, 606 A.2d 1327 (1992); Boehm v. Kish, 201 Conn. 385, 388-89, 517 A.2d 624 (1986).

Pursuant to General Statutes § 13a-149, the plaintiff must present evidence sufficient to support the following elements by a fair preponderance of the evidence: “(1) ^at the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence.” Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981).

Our Supreme Court has defined a highway defect as “ ‘[a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon . . . .’” Sanzone v. Board of Police Commissioners, 219 Conn. 179, 202, 592 A.2d 912 (1991). “Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law . . . .” Id., 201.

In this case, the alleged defect is the presence of sand in the intersection. As a matter of law, a road covered with loose gravel may be defective. Hickey v. Newtown, 150 Conn. 514, 518,192 A.2d 199 (1963). At issue, then, is whether the facts pertaining to the presence of sand on the road support the jury’s finding of a defect. The plaintiff called three witnesses who testified about the condition of the intersection. Each described an accumulation of sand in the intersection. From this evidence, the jury reasonably could have concluded that the road was defective because of the presence of sand.

Likewise, the jury could have reasonably concluded that the plaintiff sustained his burden of proof as to notice of and failure to remedy the defect. Our Supreme Court recently articulated the test for establishing these two elements. “When a possessor of land fails to make or to have made a reasonable inspection which would have disclosed the dangerous condition, his negligent ignorance is, in the eyes of the law, equivalent to actual knowledge. . . . The duty to make a reasonable inspection, i.e., investigation or detection, absent actual notice depends upon the nature of the defect and the length of time it existed. The circumstances of each case must be examined.” (Citations omitted.) Hall v. Burns, 213 Conn. 446, 479-80, 559 A.2d 10 (1990).

In this case, the evidence was sufficient for the jury to determine that the defendant had notice and that it failed to remedy the defect. For example, Thomas Kelly, the defendant’s superintendent of maintenance, testified that four days before the plaintiff’s accident, city workers swept the streets that formed the intersection. Suzanne Kelly, however, testified that immediately before the accident she saw sand in the intersection. She further testified that the next day she saw sand spread across the intersection in the shape of a V, noting that it appeared as though a street cleaner had brushed the sand from the curb into the street. On the basis of this testimony, the jury could reasonably have concluded that the city was on notice and failed to remedy the road defect adequately.

The plaintiff was obligated to establish that the accident was in no way attributable to his own negligence. Lukas v. New Haven, supra. Again, the evidence is sufficient to support the jury’s finding that the plaintiff satisfied this requirement. A factual finding will not be reversed on appeal unless it is clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Likewise, “[i]t is the province of the jury to determine the credibility and weight to be given the evidence.” Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 544, 562 A.2d 1100 (1989). Here, the reasonableness of the plaintiffs decision to apply the brakes and then to lay the motorcycle onto the pavement was a factual issue for the jury as trier of fact. Apparently, the jury adopted the plaintiffs testimony in light of his experience as a motorcyclist. On the basis of our review of the record, we cannot find that the jury’s determination was clearly erroneous. Rather, we conclude that the plaintiff’s evidence was sufficient to establish a prima facie cause of action within the purview of General Statutes § 13a-149.

The defendant next claims that the trial court’s instructions to the jury confused principles of common law negligence with the statutory elements of the plaintiff’s cause of action, thereby misleading the jury. We disagree.

The following additional facts are pertinent to our resolution of this claim. In its instructions to the jury, the court explained the tests for assessing whether the defendant exercised reasonable care, drawing, in part, on the law of negligence. The court’s discussion of negligence also addressed the element of causation, referring at times to the substantial factor test for causation.

The court also instructed the jury on the elements necessary to establish liability under General Statutes § 13a-149, making two references to the plaintiffs obligation to prove that the defective road was the “sole proximate cause” of the accident. For instance, the court.stated that “if you find that [the plaintiff] failed to prove by a fair preponderance of the evidence that his injuries were the direct result, the sole proximate cause of the negligence of the city . . . your duty as jurors to decide this case is over, because your verdict will be for the defendant.”

Our standard of review concerning claims of instructional error is well settled. “[Jjury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error.” (Citations omitted; internal quotation marks omitted.) Hall v. Burns, supra, 475; see also Lemonious v. Burns, 27 Conn. App. 734, 739-41, 609 A.2d 254 (1992). A court’s instructions must be adapted to the issues and not mislead the jury but reasonably guide it in reaching a verdict. Lemonious v. Burns, supra.

The defendant asserts that the court improperly incorporated the law of negligence into its instruction on the defendant’s duty to maintain its roads. This claim, however, defies controlling precedent. Our Supreme Court recently held that “[t]here can be no question but that the nature of the duty resting upon the state ... is to exercise reasonable care to keep the state highways in a reasonably safe condition for public travelers .... That duty is that of reasonable care, that is, that degree of care which the ordinarily prudent person would exercise under similar circumstances. . . . [Section] 13a-144 incorporates a similar standard to that used in common law negligence . . . .” White v. Burns, 213 Conn. 307, 322-23, 567 A.2d 1195 (1990). Thus, even though the plaintiffs cause of action is statutory, principles of negligence are instructive in analyzing the extent of the defendant’s duty to the plaintiff. In this case, the court referred to common law negligence principles as a foundation for determining whether the defendant breached its duty under § 13a-149. Because of the close parallel between negligence and § 13a-149, the court’s instructions in this respect were proper.

The court’s charge on the issue of causation is somewhat more troubling. As stated above, the plaintiff must prove that the defendant’s negligence was the sole proximate cause of the accident. Lukas v. New Haven, supra, 207. The court underscored the importance of this element when it twice referred to sole proximate cause as a necessary element the plaintiff must establish under § 13a-149. Although it is settled that the substantial factor test is not the proper method of analysis for establishing causation under the statute; Id.; Klingeman v. MacKay, 25 Conn. App. 217, 224, 594 A.2d 18, cert. denied, 220 Conn. 910, 597 A.2d 333 (1991); the court’s instructions, read in their entirety, were appropriately tailored to the plaintiffs cause of action under § 13a-149. The instructions articulated each of the statute’s elements, were adapted to the issues and were stated so as not to mislead the jury. Lemonious v. Burns, supra. Despite technical and isolated inaccuracies, the court’s charge to the jury accurately and adequately described the legal requirements of the plaintiff’s cause of action.

The defendant’s final claim on appeal is that the court improperly returned the jury for further deliberations instead of rendering judgment in the defendant’s favor on the basis of the jury’s initial responses to written interrogatories. We disagree.

The following additional facts are pertinent to our disposition of this claim. After the court instructed the jury, it provided the jury with six interrogatories prepared by the defendant. When the jury initially returned with a verdict for the plaintiff and with responses to the interrogatories, its answers to the fifth and sixth interrogatories indicated that the plaintiff had not operated the motorcycle with reasonable care and that the plaintiff was in part responsible for the accident. The court promptly explained to the jury that the answers to questions five and six could not be squared with a verdict for the plaintiff. The court then ordered the jury to reconsider its responses to the interrogatories. When the jury returned, it presented to the court the interrogatories with changes to the fifth and sixth answers, finding that the plaintiff had acted in due care and was not in any degree responsible for the accident.

A court’s order for reconsideration is within its sound discretion. General Statutes § 52-223; Practice Book § 311. The court was not obligated to render judgment for the defendant on the basis of the jury’s initial responses to the interrogatories. “ ‘To justify the entry of a judgment contrary to a general verdict upon the basis of answers to interrogatories, those answers must be such in themselves as conclusively to show that as a matter of law judgment could only be rendered for the party against whom the verdict was found . . . .’” (Emphasis added.) Murteza v. State, 7 Conn. App. 196, 201, 508 A.2d 449 (1986), quoting Belchak v. New York, N.H. & H. R. Co., 119 Conn. 630, 634, 179 A. 95 (1935); see also DeJesus v. Craftsman Machinery Co., 16 Conn. App. 558, 548 A.2d 736 (1988).

In this case, the court could not have directed a verdict for the defendant because the jury’s initial responses to the interrogatories did not conclusively negate an essential element of the plaintiffs claim. The jury’s response to question four was irreconcilable with its responses to questions five and six; the defect could not have been the “entire cause” of the accident if the plaintiff was responsible in some degree. Because of this fundamental inconsistency, the jury never conclusively determined whether the plaintiff contributed to the cause of the accident. Absent a conclusive finding with respect to causation, the responses did not conflict with the verdict, and the court properly declined to direct a verdict for the defendant. Therefore, the court properly ordered the jurors to reconsider their answers to the interrogatories.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court explained to the jury: “Ladies and gentlemen be seated. Your verdict is in conflict with your answer in paragraph five and paragraph six. I’m going to give you these interrogatories back. Go back to the jury room and you’d better read these questions again.”

       “Our standards of review for a directed verdict and denial of a motion to set aside the verdict are the same.” Hall v. Winfrey, 27 Conn. App. 154, 157, 604 A.2d 1334 (1992). Thus, we address jointly the defendant’s first and fourth claims on appeal.

       General Statutes § 13a-149 provides in pertinent part: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair.”

       The holding in Hall is based on an interpretation of General Statutes § 13a-144, which outlines the state’s liability for highway defects. Regarding the relationship between §§ 13a-144 and 13a-149, “ ‘there is no material difference in the obligation imposed on the state by § 13a-144 and that imposed on municipalities by § 13a-149.’ ” Hall v. Burns, 213 Conn. 446, 477, 559 A.2d 10 (1990), quoting Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970).

       For example, the trial court explained: “So, ladies and gentlemen, reasonably we must analyze what is negligence. It’s the warrantee or the failure to exercise reasonably prudent judgment. And that care must be defined as what you would understand to be what a reasonably prudent person would do under the circumstances existing in a given situation of accident.”

       In one instance the court stated: “If you find the plaintiff on the complaint sustained his burden of proof on one issue, then you must determine the second issue. That is, whether such negligence was the proximate cause or substantial factor in producing the injuries and the property damage sustained by the party plaintiff.”

       The court in White interpreted General Statutes § 13a-144. The Supreme Court has clearly stated that there is no material difference between §§ 13a-144 and 13a-149 regarding the elements necessary to establish liability. Hall v. Burns, 213 Conn. 466, 477, 559 A.2d 10 (1990).

       The interrogatories and initial responses were as follows:
      “1. Was the presence of sand at the intersection of Allen Road and Toilsome Avenue such as to render the highway defective?
      “ANSWER: Yes
      “2. Did the City of Norwalk have actual or constructive notice of the sand? “ANSWER: Yes
      “3. Having either actual or constructive knowledge of the sand, did the City have sufficient time to remove the sand and did fail to do so? “ANSWERS: Yes
      “4. Was the presence of sand the entire cause of this accident? “ANSWER: Yes
      “5. Was the Plaintiff acting in due care while operating his motorcycle at this intersection?
      “ANSWER: No
      “6. Was the Plaintiff responsible in any degree for this accident? “ANSWER: Yes."


author: Freedman, J.

text:
    Pullman, Comley, Bradley and Reeves v. Tuck-it-away, Bridgeport, Inc., et al.
    (10649)
    Daly, O’Connell and Freedman, Js.
    Argued June 10
    decision released August 4, 1992

      Alexander H. Schwartz, with whom, on the brief, was Stephen M. Moore, for the appellant (defendant Vest-pro Corporation).

      William J. Wenzel, with whom, on the brief, was John C. Bombara, for the appellee (named defendant).
   Freedman, J.

In this interpleader action, the defendant, Vestpro Corporation, appeals from the judgment of the trial court awarding the other defendant, Tuck-it-away, Bridgeport, Inc., $100,000 as liquidated damages for Vestpro’s default under the terms of a contract for the sale of real property. Vestpro claims that the trial court improperly found that Tuck-it-away was entitled to the $100,000 as liquidated damages for Vest-pro’s default in performance of the contract of sale. We affirm the judgment of the trial court.

The parties stipulated to the following facts. On or about April 13,1988, Tuck-it-away, as seller, and Vest-pro, as buyer, signed a contract for the sale of real property located in Bridgeport. Pursuant to the contract, Vestpro deposited $100,000 in escrow with Tuck-it-away’s attorneys, Pullman, Comley, Bradley and Reeves. This is the money presently in dispute between the parties. By correspondence dated October 14,1988, Tuck-it-away and Vestpro agreed in writing to extend the closing date until December 10, 1988.

On December 10,1988, a Saturday, no closing took place. On or about December 14, 1988, Tuck-it-away received from Vestpro a letter purporting to cancel the contract on the basis of three alleged title defects: (1) a lis pendens dated August 9, 1983, (2) a certificate of attachment dated June 27, 1988, and (3) a three foot nonconformity in one of the lengths in the legal description of the property as referenced in the contract.

Before December 10,1988, Tuck-it-away’s attorneys had in their possession a release of the August 9,1983 lis pendens and a release of the June 27,1988 attachment. At the time of execution of the contract, neither Tuck-it-away nor Vestpro was aware that the legal description contained an incorrect length. On or about September 16, 1988, attorneys for both Tuck-it-away and Vestpro received a survey from Preferred Land Title Services, Inc., showing a correct legal description of the property. At no time prior to the December 12, 1988 letter did Vestpro ever advise Tuck-it-away or complain to Tuck-it-away about the error in the legal description of the property contained in the contract.

In addition to these stipulated facts, other facts necessary to a resolution of this matter can be summarized as follows. The total purchase price due under the contract was $1,900,000. The contract provided that the closing date would be 120 days from the date of execution of the contract, but that Vestpro could obtain four extensions of time upon payment to Tuck-it-away of $15,000 for each extension. Because Vestpro exercised all four rights of adjournment, the actual closing date was December 10, 1988. The contract provided that time was of the essence.

As December 10 approached, Vestpro was short of the total funds necessary to complete the deal. On December 7, 1988, Alan Goldman, one of Vestpro’s principals, met with Gerald Sprayragen, Tuck-it-away’s president, to discuss the situation. At that meeting, Goldman indicated that Vestpro did not yet have the total funds necessary, but that it was close to attaining its goal, and optimistic that it would reach its goal, but that a further extension of time was needed. Although the express contractual language did not permit another extension, Sprayragen indicated that he would permit another extension if Vestpro would pay a fee for the extension. Vestpro refused to pay for a further extension, and as a result no agreement for an extension came from this meeting. Sprayragen also spoke with Stephen Hochman, a partner in Vestpro whose job was to solicit investors. He too indicated to Sprayragen that Vestpro was unable to close on December 10 and needed an extension of the closing date.

During that week, Michael Proctor, an attorney who represented Tuck-it-away in this deal, spoke with Gary Kleinman, an attorney who represented Vestpro in its negotiations and dealings with Tuck-it-away. Kleinman told Proctor that Vestpro would not be able to close on December 10 and needed another two weeks to secure the remaining funds. It thus was clear to Tuck-it-away that Vestpro would not be able to close the deal on December 10, 1988.

On December 9, 1988, Vestpro representatives met with their prospective investors to discuss the situation. During the meeting, the group received a call from Kleinman, who told the group “You got lucky” because he had discovered a discrepancy in one of the courses in the property description. As a result of this information, Vestpro decided to send a letter to Tuck-it-away electing to cancel the contract under its provisions because of Tuck-it-away’s inability to convey title to the premises in accordance with the terms of the contract. The létter represented to Tuck-it-away that Vestpro elected to cancel the contract because of the three alleged defects in title previously discussed. The letter was not mailed to Tuck-it-away until the end of the day on December 12, 1988, and Tuck-it-away did not receive the letter until December 14, 1988.

Vestpro argues that because Tuck-it-away’s failure was not excused by an anticipatory breach by Vestpro, Vestpro was not in default and thus was entitled to a return of its deposit by reason of its letter of cancellation. Vestpro also argues that the trial court improperly found Vestpro in default for failing to appear for the closing on December 10,1988. Vestpro claims that this finding was improper because Tuck-it-away also failed to appear for the closing and tender title to the property.

We begin our analysis of Vestpro’s claim by noting that the trial court’s detailed memorandum of decision contains all of the necessary subordinate findings to support the conclusion that Vestpro had anticipatorily breached the contract as claimed at trial by Tuck-it-away, even though it did not, in fact, use the talismanic words “anticipatory breach.”

Vestpro argues, however, that if the trial court did find that it anticipatorily breached the contract, that finding was clearly erroneous because it had no basis in the evidence presented. “An anticipatory breach of contract occurs when the breaching party repudiates his duty before the time for performance has arrived. Martin v. Kavanewsky, 157 Conn. 514, 518-19, 255 A.2d 619 (1969); Koski v. Eyles, 37 Conn. Sup. 861, 862, 440 A.2d 317 (1981). Its effect is to allow the nonbreaching party to discharge his remaining duties of performance, and to initiate an action without having to await the time for performance. Martin v. Kavanewsky, supra.” McKenna v. Woods, 21 Conn. App. 528, 532, 574 A.2d 836 (1990). “The manifestation of intent not to render the agreed upon performance may be either verbal or nonverbal; White v. Finch, 3 Conn. Cir. Ct. 138, 142, 209 A.2d 199 (1964); and is largely a factual determination in each instance.” Koski v. Eyles, supra, 863.

Here, the trial court, in its memorandum of decision, stated that “it was Sprayragen’s testimony that he knew there would be no closing on December 10,1988, and, further, that no request from Vestpro for a closing either on December 10 or December 12 was ever received.” The trial court also stated: “Based on conversations with Gary Kleinman, attorney for Vestpro, it was Proctor’s clear understanding that Vestpro would be unable to close and was depending on an adjournment and relying on financing to complete at some vague future date.” The trial court found no merit in Vestpro’s apparent claim that it could have closed on December 10,1988. Furthermore, the court stated that “the issues are found in favor of Tuck-it-away, Bridgeport, Inc., as against Vestpro Corporation. . . . It is further found that Vestpro Corporation was in default under the terms of said contract.”

Although Vestpro presented evidence and testimony that denied that any of its representatives told Tuck-it-away’s representatives that it would not be able to close on December 10, the trial court found the facts in favor of Tuck-it-away and stated that it had “difficulty in finding any legal basis to accord validity to Vestpro’s claims.” “When the factual basis of the trial court’s decision is challenged on appeal, the role of this court is to 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).” Cupina v. Bernklau, 17 Conn. App. 159, 161, 551 A.2d 37 (1989). “ ‘[T]he trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony.’ ” Cupina v. Bernklau, supra, 162. “On appeal, the function of this court is limited solely to the determination of whether the decision of the trial court is clearly erroneous. . . . This court cannot find fact or draw conclusions from primary facts found, but can only review such findings to determine whether they could have legally, logically and reasonably been found by the trier.” (Citations omitted.) Robertson v. Nationwide Mutual Ins. Co., 20 Conn. App. 635, 637, 569 A.2d 565 (1990).

We have reviewed the record in this case and conclude that the trial court’s findings supporting the conclusion that Vestpro had anticipatorily breached the contract are sufficiently supported by the evidence presented. Sprayragen and Proctor testified that during the week of December 5, the Vestpro representatives had stated that they would not be able to close on December 10,1988. Such statements are clear and unequivocal manifestations of Vestpro’s inability to close on December 10. Furthermore, it is obvious from the trial court’s memorandum of decision that it did not believe the testimony of Vestpro’s witnesses that they never told Tuck-it-away that they would not be able to close on December 10. For example, the court sarcastically characterized as “cute” Goldman and Kleinman’s testimony that they never told any of Tuck-it-away’s representatives that Vestpro would not or could not close on the closing date.

The trial court also found that Vestpro breached its duty to perform by not showing up at the closing on December 10 and tendering full payment of the purchase price, and that such a breach excused Tuck-it-away from its obligation to perform.

With respect to the time for performance of obligations contained in a contract, the general rule is: “Where all or part of the performances to be exchanged under an exchange of promises can be rendered simultaneously, they are to that extent due simultaneously, unless the language of the circumstances indicate the contrary.” 2 Restatement (Second), Contracts § 234 (1). Here, paragraph 4 of the contract provided: “At the closing, on payment of the purchase price as provided above, the seller shall deliver and the buyer shall accept, a full covenant Warranty deed . . . .” This language indicates that the parties agreed that the performances would not be rendered simultaneously, but rather that Vestpro’s duty to perform would be a condition precedent to Tuck-it-away’s obligation to tender and convey title.

“A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance.” Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951). “ ‘Whether the performance of a certain act by a party to a contract is a condition precedent to the duty of the other party to act depends on the intent of the parties as expressed in the contract and read in light of the circumstances surrounding the execution of the instrument.’ Ravitch v. Stollman Poultry Farms, Inc., 165 Conn. 135, 149, 328 A.2d 711 (1973); Lach v. Cahill, supra.” Christophersen v. Blount, 216 Conn. 509, 512, 582 A.2d 460 (1990).

The express language of paragraph 4 of the contract evidences the parties’ intent that Vestpro’s duty to tender full payment of the purchase price is a condition precedent of Tuck-it-away’s obligation to convey title to Vestpro. Because Vestpro failed on December 10, 1988, to tender the $1,800,000 balance due on the purchase price, Tuck-it-away was excused of its obligation to perform under the contract.

Vestpro argues, however, that Tuck-it-away’s failure to go through the act of tendering a deed to the nonappearing buyer placed it in default and thus precluded it from recovering the $100,000 as liquidated damages. The law, however, does not require a party to undertake a futile act. Luttinger v. Rosen, 164 Conn. 45, 47, 316 A.2d 757(1972); Vachon v. Tomascak, 155 Conn. 52, 57, 230 A.2d 5 (1967); Tracy v. O’Neill, 103 Conn. 693, 699, 131 A. 417 (1925). Because Vestpro failed to appear at the closing and perform its obligation, which was a condition precedent to Tuck-it-away’s obligation to perform, it would have been an act in futility for Tuck-it-away to tender a deed to Vestpro. We will not require the seller in this situation to perform such a futile act.

We conclude that the trial court’s factual findings were adequately supported by the record. The trial court, therefore, correctly awarded the $100,000 deposit to Tuck-it-away.

The judgment is affirmed.

In this opinion the other judges concurred.

       This action was commenced by the plaintiff, Pullman, Comley, Bradley and Reeves, as the holder of a $100,000 escrow deposit made by Vestpro in connection with the underlying real estate transaction here in dispute. The plaintiff sought and was granted an interlocutory judgment requiring the defendants to interplead concerning their claims to the funds so that the court could order the plaintiff to give the funds to the proper party and be released of any further obligations or liabilities to Vestpro.

       Paragraph 15 of the contract provided in pertinent part: “If the buyer fails to perform the terms of this contract, seller shall be entitled to retain all sums theretofore paid as provided in Sections 2 and 8 hereof which sums, to the extent held in escrow hereunder, shall be released from escrow and thereupon paid to the seller together with any accrued and unpaid interest thereon, as liquidated damages for loss of a bargain and not as a penalty. ...”

       As previously stated, Pullman, Comley, Bradley and Reeves commenced this interpleader action as escrowee of the disputed funds. Once the trial court granted the interlocutory judgment requiring Vestpro and Tuck-it-away to interplead their claims to the funds, Pullman, Comley, Bradley and Reeves represented Tuck-it-away in this action. Such representation was permitted by paragraph 19 (c) (ii) of the contract of sale, which provided, in pertinent part, that if a dispute arises as to who is entitled to the funds and no agreement can be reached between the parties, “then the escrowee shall have the right to pay and deliver the deposit into the Superior Court for Fairfield County, Connecticut, and interplead seller and buyer in respect thereof, and thereupon the escrowee shall be discharged of any obligations in connection with this agreement, and shall be permitted to represent seller in connection with the subject matter of this agreement, including, without limitation, any dispute in regard to the deposit, as escrowee is seller’s counsel.”

       Kleinman testified: “I said I found something. I was looking for a hook, if you will, to buy some time, and I conveyed to them I thought I had found something. I was going through the contract and the survey and things like that.”

       Paragraph 11 of the contract provided in pertinent part: “If the seller shall be unable to convey title to the buyer at the closing, or adjourned closing, in accordance with the terms of this contract, the buyer shall have the option of ... (b) canceling this contract . . . .”

       At trial, one of Vestpro’s claims was that Tuck-it-away was, in fact, the party in breach because of these alleged defects in title. The trial court ruled against Vestpro on this claim, finding that either the defect was minor, or was curable by December 10, 1988, and concluded that “there was no basis for Vestpro’s claim that Tuck-it-away’s title was defective.” Because the defendant does not challenge these factual findings of the trial court, we need not address them in this opinion.


author: Foti, J.

text:
    State of Connecticut v. Kalid Hester
    (9970)
    Norcott, Foti and Landau, Js.
    Argued June 5
    decision released August 4, 1992

      Barry A. Butler, assistant public defender, with whom, on the brief, was William Holden, public defender, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, was Jonathan Benedict, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault of a peace officer in violation of General Statutes § 53-167c (a) (1) and larceny in the sixth degree in violation of General Statutes §§ 53a-119 and 53a-125b (a). On appeal, the defendant claims that the trial court improperly instructed the jury on the defense of justification concerning the initial aggressor, and the standard for determining reasonable physical force. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On Saturday, July 15, 1989, at approximately 5:15 p.m., the defendant was observed in the rear of the Ally Oop clothing store in Fairfield where some Batman tee shirts had been stolen earlier that day. After the defendant exited the store, Fairfield detective Christopher Lyddy observed him walking quickly down an alley next to the building. The defendant took a white bag from some bushes behind the store and returned through the alley to the street. After learning from the store owner about the stolen tee shirts, Lyddy confronted the defendant and observed a partially open white plastic bag containing Batman tee shirts on a bus stop bench near the defendant. When apprehended, the defendant was using a public telephone in the bus stop enclosure.

After identifying himself and displaying his badge, Lyddy arrested the defendant and searched him for weapons. As Lyddy attempted to handcuff the defendant’s left wrist, the defendant spun around and struck a glancing blow to the officer’s head with his right hand. The defendant attempted to run, but Lyddy grabbed the defendant by the shoulders and fell on top of him. The defendant then grabbed the officer’s service revolver and placed the barrel against Lyddy’s stomach. Lyddy seized the cylinder to prevent the weapon from firing. They continued to struggle for several minutes until, with the aid of a bystander, Lyddy removed the pistol from the defendant’s hand. Lyddy sustained injuries as a result of the struggle.

The defendant first claims that the trial court misstated a portion of the jury charge regarding self-defense. The original transcript indicated that the jury had been instructed that the defendant could not be found guilty unless the state could prove that he “wasn’t” the initial provocateur or aggressor and did not attempt to withdraw. The state filed a motion to rectify the trial transcript, and, after a hearing on the state’s motion, the court granted the relief requested. The transcript was rectified to reflect the trial court’s instruction that the state had to prove that the defendant “was” the initial provocateur or aggressor. We granted the defendant’s motion for review but denied the relief requested, thereby declining to reverse the trial court’s decision.

The defendant’s first claim is, in essence, a request that we reconsider our action in regard to his motion for review. We decline to do so, and, thus, this claim must fail. State v. Holloway, 22 Conn. App. 265, 275, 577 A.2d 1064, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990); Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn. App. 559, 568, 559 A.2d 241 (1989).

The defendant next claims that the trial court improperly instructed the jury on the defense of justification by using an improper standard for determining reasonable physical force. He claims that the court, in explaining the defense of justification, stated twice that “reasonable force is that force which an average person of ordinary intelligence and like circumstances would judge to be necessary.”

General Statutes § 53a-19, which justifies the use of physical force for purposes of self-defense, presents a question of fact that focuses on what the person asserting the defense reasonably believes under the circumstances. State v. DeJesus, 194 Conn. 376, 389, 481 A.2d 1277 (1984). “Self-defense thus requires the trier of fact to measure the justifiability of the defendant’s actions from a subjective perspective.” State v. Hall, 213 Conn. 579, 586, 569 A.2d 534 (1990). “The Connecticut test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the perspective of the defendant. Section 53a-19 (a) requires, however, that the defendant’s belief ultimately must be found to be reasonable.” State v. DeJesus, supra, 389 n.13.

The standard of review to be applied to a claim of an improper instruction on the elements of self-defense is whether it is reasonably possible that the jury was misled. State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989); State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). The charge is to be read as a whole; sections are not to be judged in isolation from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978). The charge is not to be “critically dissected in a microscopic search for possible error.” State v. Foreshaw, 214 Conn. 540, 548, 572 A.2d 1006 (1990). The test to be applied to any part of a charge is whether the charge as a whole presents the case to the jury in a manner to prevent injustice. State v. Maturo, 188 Conn. 591, 599, 452 A.2d 642 (1982). We review the whole charge to determine whether it sufficiently guided the jury to a proper verdict. State v. Shaw, 24 Conn. App. 493, 499, 589 A.2d 880 (1991).

It is obvious from reading the instruction that the trial court properly addressed the subjective aspects of the self-defense justification claim. Our review reveals no reasonable possibility that the jury was misled. The trial court instructed the jury, in language similar to that of § 53a-19 (a), that “[a] person is justified in the use of reasonable physical force upon another when he reasonably believes that such force is necessary to protect himself . . . .” The court further instructed that “the danger or apparent danger claimed by the defendant is to be determined from his standpoint at the time of the attack and under all the existing circumstances, the act leading to the defendant’s claim of self-defense need not be an actual threat or assault. The test is not what the other person actually intended but what the aggressor’s act caused the defendant to reasonably believe was his intention. In other words, the danger need not have been actual, real, imminent or unavoidable. In judging the danger to himself, however, the defendant is not required to act with infallible judgment.” Thereafter, in instructing the jury on the use of deadly force, the court stated: “[The defendant] may justifiably use deadly force only if he reasonably believes that the other person was using or about to use deadly physical force or inflicting or about to inflict great bodily harm.”

“Taken as a whole the charge sufficiently apprised the jury that the test for self-defense is both subjective and objective.” State v. Williams, 25 Conn. App. 456, 466, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991). The court herein, unlike the court in Williams, used language similar to that of § 53a-19 (a). Although the challenged portion of the jury instruction here is nearly identical to that challenged in Williams, a meaningful distinction between the facts of Williams and the facts of the present case can be made based on the trial court’s use of language from § 53a-19 (a). We conclude that it is not reasonably possible that the jury was misled. Because it is not reasonably possible that the jury was misled, even if the instruction on the subjective-objective use of force was improper, any error was harmless beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was found not guilty of attempted murder in violation of General Statutes §§ 53a-54a (a) and 53a-49.

       General Statutes § 53a-19 (a) provides in pertinent part: “[A] person is justified in using reasonable physical force upon another person to defend himself . . . from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose . . . .”


text:
    State of Connecticut v. Reginald Harris
    (10202)
    (10203)
    Dupont, C. J., Laveky and Freedman, Js.
    Argued April 29
    decision released August 4, 1992

      Matthew Ramia, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Jack W. Fischer, deputy state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Edward Narus, assistant state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals, following a jury trial, from the judgment of conviction of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and 53a-8, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2), 53a-48 (a) and 53-8, and from the judgment of conviction of possession of a sawed-off shotgun in violation of General Statutes § 53a-211 (a). The defendant claims that the trial court (1) cast itself in the role of an advocate by questioning witnesses and making the prosecution’s objections, thereby denying the defendant of his constitutional right to due process of law, and (2) improperly instructed the jury on reasonable doubt thus interposing a preponderance of the evidence standard. We affirm the judgments of conviction.

The jury reasonably could have found the following facts. At about 6:30 p.m. on October 12,1989, the victim, Timothy Wallace, age eighteen, was walking with a friend, Eugene Finley, on Collins Street in Hartford. As they turned onto Huntington Street, they observed three men on the other side of the street. The three men crossed the street and came up behind the victim and Finley. The victim turned and saw that one of the men had grabbed Finley and was telling Finley to leave the area. As Finley left, one of the men put a gun to the victim’s head and another of the men, the shortest one, flicked the victim’s glasses off.

The man who had put the gun to the victim’s head grabbed the victim’s arm and ordered him to keep walking. The defendant, who was the tallest of the three and wearing a brown trench coat, carried a sawed-off shotgun and a duffel bag. The defendant walked on the victim’s right side and the shortest man walked behind. They crossed several intersections and finally stopped in front of 122 Huntington Street.

When they stopped, the man who had put the gun to the victim’s head told the victim to take off his jacket, which was a green Whalers jacket. The victim complied. The man then ordered the victim to give him his watch and the victim again complied. The man then struck the victim on the nose with the butt of the gun, fracturing the victim’s nose and causing him to fall backwards onto the sidewalk. As the victim attempted to get up from the sidewalk, the defendant pushed him back down and struck him in the eye with the shotgun. The shortest man then demanded money and reached into the victim’s pocket and removed approximately $54. The defendant then said “Let me shoot him,” but one of the other men advised against it. The victim was then told to leave at which point he ran to a friend’s house.

Shortly thereafter, the victim notified the police and gave them a description of the three men. Within a short time the police saw three men who fit the description given by the victim. The defendant, who was one of the three men spotted, was carrying a shotgun. All three men were taken into custody and the police recovered a sawed-off shotgun, a duffel bag, and a green Whalers jacket from them. The next day, the victim went to the police station where he identified all three men from photographs.

The defendant first claims that the trial court, by questioning witnesses and making objections for the prosecution, improperly cast itself into the role of an advocate. Because the defendant failed to raise any objection concerning these matters in the trial court, we review this claim only to determine whether the court’s actions deprived the defendant of his constitutional right to due process of law. State v. Golding, 213 Conn. 233, 239-41, 567 A.2d 823 (1989); State v. Fernandez, 198 Conn. 1, 9-10, 501 A.2d 1195 (1985). The defendant can prevail on this unpreserved constitutional claim only if he can satisfy the four conditions enumerated in State v. Golding, supra. He must show that “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 239-40. We conclude that the defendant cannot prevail on the claims of judicial misconduct under the principles of Golding.

The defendant culls from the record four incidents where the trial court restated or clarified a question asked of a witness and two incidents where the trial court prompted an objection by the prosecution. “Before turning to the allegations made by the defendant, we recite certain well established principles regarding the responsibilities of the trial judge in conducting a criminal trial. ‘ “Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. U.S. Const., amend. XIV; Conn. Const., art. I, 8 . . . . In a criminal trial, the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner which approaches an ‘atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.’. ...” ’ (Citations omitted.)State v. Gordon, 197 Conn. 413, 424D-25, 504 A.2d 1020 (1985); State v. Fernandez, supra, 10. . . . ‘Thus, when it clearly appears to the judge that for one reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain silent. On the contrary, the judge may, by questions to a witness, elicit relevant and important facts.’ State v. Fernandez, supra, 11.” State v. Tatum, 219 Conn. 721, 740, 595 A.2d 322 (1991).

We turn first to the four instances in which the defendant claims that the trial court improperly asked witnesses questions. “A trial court has a discretionary right to intervene in the examination of witnesses where such intervention is necessary to clarify confusing testimony . . . or to elucidate a witness’s understanding of a question. State v. Smith, 200 Conn. 544, 549-50, 512 A.2d 884 (1986).” State v. Graham, 21 Conn. App. 688, 692-93, 575 A.2d 1057, cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990). “The court’s questioning of a witness is not necessarily improper because it draws attention to the strengths or weaknesses of a party’s case.” State v. Smith, supra, 550.

In the four incidents cited by the defendant where the trial court asked questions of a witness, we conclude that the trial court did no more than clarify confusing testimony or facilitate the witness’ understanding of a question. We find nothing improper in these actions of the trial court. In addition, the trial court gave the jury a curative instruction regarding its responsibility as the sole and absolute finder of fact. “Such curative instructions are entitled to great weight and ordinarily prevent an appellate court from finding that the trial court committed reversible error. State v. Fernandez, supra.” State v. Graham, supra, 702.

We now examine the two instances in which the defendant claims that the trial court improperly prodded the state into objecting to the defendant’s line of questioning. We take particular note of the fact that the defendant’s trial counsel did not consider “the interruption to be significant enough to warrant an objection or a motion for a mistrial. See State v. Mack, 197 Conn. 629, 642, 500 A.2d 1303 (1985).” State v. Cazimovski, 20 Conn. App. 190, 192, 565 A.2d 254 (1989). We also take note of the fact that the defendant does not claim that the trial court’s rulings on the questions were improper.

In addition, neither line of questioning involved a critical, contested issue in the defendant’s trial. One instance involved the victim’s identification of the defendant and his cohorts. The defendant’s identity, however, was not in serious dispute because he was caught by the police with the shotgun that was used in the robbery in his hand. In the other instance, the question involved the value of a watch taken from the victim during the robbery. The value of the watch, however, had no relevance to the question of whether the victim had been the victim of an armed robbery.

After reviewing the six instances of alleged judicial misconduct, we conclude that the defendant cannot prevail on this unpreserved claim. The alleged constitutional violation does not clearly exist and did not clearly deprive the defendant of a fair trial. The defendant, therefore, cannot satisfy the third Golding condition.

The defendant also claims that the trial court improperly instructed the jury on the issue of reasonable doubt thereby interposing a preponderance of the evidence standard. Although not preserved at trial, the defendant suggests that this claim can prevail under the Golding criteria. State v. Golding, supra. We disagree.

Connecticut courts have repeatedly approved the use of the challenged instruction, the two inference instruction, when the instructions as a whole correctly charged the jury regarding the state’s burden of proof. State v. Smith, 219 Conn. 160, 166, 592 A.2d 382 (1991); State v. Dyson, 217 Conn. 498, 504, 586 A.2d 610 (1991); State v. Falcon, 26 Conn. App. 259, 272, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992). “[S]uch an instruction that principally serves to benefit the defendant is proper under our case law.” State v. Dyson, supra. Here, the defendant acknowledges that the trial court correctly instructed the jury on the state’s burden of proof several times.

The defendant argues that the challenged instruction in this case is different from those cited previously because the trial court immediately followed the two inference instruction by telling the jury that it was as good a definition of reasonable doubt as they will get, and that they will hear another definition but it will not be as good as this one. We fail to see how this added language transformed the instruction from one that benefited the defendant into one that would require reversal by this court.

The judgments are affirmed.

In this opinion the other judges concurred.

       The Whalers are a professional hockey team from Hartford.

       The incidents as recited in the defendant’s brief to this court are as follows:
      (1) “Mr. Britt [Defense Counsel]: Did Detective Manzi tell you that one of the individuals was in the eight photos and it was up to you to pick him out?
      “The Witness: He had three sets of photos. It was one in each photo, one in each set.
      “The Court: What the question was that Mr. Britt asked, Mr. Wallace, is this: When Officer Manzi brought the photo arrays to you, did he suggest to you that there were people in there who had done the crime?
      “The Witness: Yes.
      “The Court: Okay. What did he tell you?
      “The Witness: He said look through these pictures and when you think you know or when you think you have a positive ID of who it was, put the picture aside.
      “The Court: He didn’t tell you there was somebody in there that did the crime?
      “The Witness: No.
      “The Court: He told you to look at the pictures and see if somebody in there looked familiar?
      “The Witness: Yes.
      “The Court: All right. Go ahead. Put your next question.’’
      (2) “Mr. Britt: Mr. Wallace didn’t you swear to in your statement that one of the gentlemen was six feet?

        “The Witness: Yes.
      “Mr. Britt: And didn’t you also swear to in the statement that the other two gentlemen were five foot six inches?
      “The Witness: I said about. . .
      “Mr. Britt: About five foot six inches?
      “The Witness: I said he was about six foot too.
      “Mr. Britt: And then the other one was about six foot tall?
      “The Witness: Yes.
      “Mr. Britt: And that is your sworn testimony?
      “The Witness: Yes.
      “Mr. Britt: So you are telling us that one of the gentlemen was about your height, correct?
      “The Witness: Yes.
      “Mr. Britt: And the other two were substantially shorter than you right?
      “The Witness: Not much shorter, but a little bit.
      “Mr. Britt: You are six one?
      “The Witness: Yes.
      “Mr. Britt: They are about five six, six inches shorter than you, half a foot about?
      “The Witness: Nope, no that day when I told him that I wasn’t thinking, but I know — now I know that they are taller than five six.
      “Mr. Britt: Because you are in the courtroom with the gentlemen?
      “The Court: That question is argumentative in form. Is there objection?
      “Mr. Naurus [Assistant State’s Attorney]: Yes there is, Your Honor.
      “The Court: Sustained.
      (3) “Ms. Levy [Defense Counsel]: And since there has been some questioning already about watches, approximately what was the value of the watch which you now know was taken from you?
      “The Court: Sustained.
      “Mr. Naurus: Objection.
      “The Court: Doesn’t make any difference if it is worth a dollar and a quarter; a robbery is a robbery is a robbery if it is larceny accompanied by force. That is what the statute says. Go on to something else.”
      (4) “The Court: I just want to make sure I understand one thing clearly. That is this. I think I asked you probably about an hour and a half ago that when you talked with Mr. Manzi, and he gave you these three packets of pictures — .
      “The Witness: Uh-huh.

        “The Court: I thought you told me in response to my question to what he did was, he handed you the pictures and said look in these and see if you see anybody that you recognize, is that so?
      “The Witness: He told me to look—
      “The Court: You’ve got to speak up now.
      “The Witness: He told me to look through each set of the photos, right, and pick out the person who I thought was — who robbed me who was one of the suspects.
      “The Court: See if there was somebody in there that had robbed you?
      “The Witness: Yes.”
      (5) “Mr. Cosgrove [Defense Counsel]: Okay. But are you telling us today that you did not convey to him that there were any suspects in those group of photos?
      “The Witness: No, sir.
      “The Court: Yes, you are telling us that you did not?
      “The Witness: That is correct.
      “The Court: All right. Fine.
      “Mr. Cosgrove: You did not tell him that you were showing any suspects within those arrays?
      “The Witness: No, that is not my standard operations procedure when I show photo arrays to victims.
      “Mr. Cosgrove: Okay. Perhaps I’m phrasing this wrong, but when I say you did not tell him, you said that is correct, is that right?
      “The Witness: Okay. See if I can clarify this now.
      “The Court: I don’t care what the answer is; why don’t I ask it this way? When you talked to him, did you tell him that contained in those twenty-four pictures were pictures of people that you suspected of having committed this crime?
      “The Witness: No, sir.
      “The Court: Very good.”
      (6) “Mr. Naurus: Okay. Have you had an opportunity since October 12 to discuss what occurred on that evening with these other individuals, with your son Willy Johnson; have you talked to him at all about what you guys were doing that evening?
      “The Witness: Well, not really because they all know what happened, you know, so it wasn’t really no reason to discuss it because they knew what happened.
      “Mr. Naurus: But you never brought up the subject of what each of you were doing that evening since October 12 of last year?

        “The Witness: Well, we knew. We all knew what we was doing. We all knew that we were at my home, we all knew that we looked at the same shows, and they I know what time they left and they know that Keith left with them.
      “The Court: I think what Mr. Naurus is asking you, Mrs. Johnson, is this. That from the day of the occurrence on October 12,1989, until today, have you talked to your son Willy about this case or talked to him about what you were doing and he was doing that night or have you had no conversation with Willy?
      “The Witness: Well, yes, yes, we — yes, we talked about what happened because, you know, we were trying to figure out, you know.”

       The trial court instructed the jury that: “Any reactions of the court during the trial in ruling on motions or objections by counsel or in questions that I may have asked of any witness or in setting forth the law in these instructions are not to be taken by you as any indication as to the court’s opinion as to how you should determine the issues of fact. If you feel that the court has expressed or intimated any opinion as to any fact, you are not in any way bound by that opinion because what the verdict in this case shall be and what are the facts in this case are your sole and absolute and exclusive duty and responsibility.”

       The challenged portion of the trial court’s instruction is: “Now, let me also tell you that presumption of innocence also requires that if all of the evidence in this case fairly considered is capable of two reasonable interpretations, one of which is consistent with innocence, you must adopt the interpretation consistent with innocence because in that event you would have a reasonable doubt. So if you look at all of the evidence together and you can say it is consistent with innocence, it is also consistent with guilt, that is the totality of the evidence, you must give it the interpretation consistent with innocence because that is probably as good a definition of reasonable doubt as you’ll hear. You’ll hear another one, but it won’t be that good.”


text:
    Bernard Fisher v. Jean B. Fisher
    (10082)
    Dupont, C. J., Foti and Lavery, Js.
    Argued May 6
    decision released August 4, 1992

      C. Ian McLachlan, with whom, were Laura W. Ray and, on the brief, William H. Narwold, for the appellant-appellee (defendant).

      L. Paul Sullivan, for the appellee-appellant (plaintiff).
   Foti, J.

The defendant appeals from the judgment of the trial court granting the plaintiff’s motion for modification of an award of periodic alimony awarded to the defendant after the judgment of dissolution of marriage, and as modified on three previous occasions.

We recently reviewed the granting of the defendant’s motion for modification of alimony; Fisher v. Fisher, 25 Conn. App. 82, 592 A.2d 968, cert. denied, 220 Conn. 917, 597 A.2d 333 (1991); and remanded it for a determination of whether the change in circumstances was contemplated by the parties at the time of the decree. Prior to that matter’s being argued before this court, the plaintiff’s motion that is the basis of this appeal had already been heard and decided by the trial court.

The defendant claims that the trial court improperly (1) found a substantial change of circumstances, (2) determined that the orders should reflect the needs that existed in 1986, the year of the initial modification of the dissolution, and (3) failed to follow the statutory procedures for considering the plaintiffs motion to modify. The plaintiff has filed a cross appeal claiming that the trial court improperly (1) failed to consider an inheritance by the defendant in ruling on the plaintiff s motion and (2) concluded that its order reducing the defendant’s alimony should not be retroactive. We remand for further proceedings.

The facts necessary for a resolution of this matter may be summarized as follows. On October 4,1984, the marriage between the parties was dissolved. On May 30, 1986, upon a motion for modification by the plaintiff, a state trial referee, Hon. John M. Alexander, modified the defendant’s alimony and awarded her $2400 per month. On May 16, 1990, the trial court, Steinberg, J., granted the defendant’s second motion for modification and increased the alimony award to $4800 per month. The plaintiff appealed and we remanded with direction.

On August 29, 1990, the plaintiff filed the present motion for modification. On March 13, 1991, the trial court, Barall, J., granted the motion, and reinstated the trial referee’s 1986 modification orders.

The Appeal

The defendant first claims that the court’s finding of a substantial change in circumstances was unsupported by the facts because the plaintiffs financial circumstances had not deteriorated subsequent to the granting of the prior modification by the court on May 16, 1990. Such an uncontemplated substantial change must have occurred after the date of the last modification order. Hirst v. Hirst, 2 Conn. App. 348, 349-50, 478 A.2d 618 (1984); see also Connolly v. Connolly, 191 Conn. 468, 473, 464 A.2d 837 (1983); Cersosimo v. Cersosimo, 188 Conn. 385, 405, 449 A.2d 1026 (1982).

The plaintiffs motion for modification claimed a substantial change of circumstances in two aspects: an inheritance by the defendant in the amount of $149,541.45, and a reduction in the plaintiffs assets. In May, 1990, Judge Steinberg had concluded that the plaintiff had saleable assets totaling $1,447,800, which could be used to meet the existing annual deficit of $62,509.20 resulting from the plaintiff’s failure to project a future resumption of a $72,000 per year income. These assets were three mortgages amounting to $847,000, and Waterbury Operating Corporate stock valued at $600,000.

In 1991, Judge Barall recognized that the findings made by the prior court and by the state trial referee were matters of record that could not be altered. The court accepted those facts and conclusions, but found that the Waterbury Operating Corporation, operating under a lease and in the process of being evicted, had become valueless since the last hearing. It found that the stock had a value of zero and that the $72,000 annual income, as projected in the prior modification hearings, had never materialized. The court further found that one of the assets existing in 1990, a mortgage note valued at $150,000, was no longer an asset in 1991. The court also made certain determinations as to the other two assets that are not necessary to this appeal.

“ ‘ “In a modification action, the decision of the trial court is attributed great weight and every consideration must be given in support of its correctness. . . . The action of the trial court will not be disturbed unless the court has abused its discretion or its finding has no reasonable basis in the facts.’ ” (Citation omitted.) Richard v. Richard, 23 Conn. App. 58, 62, 579 A.2d 110 (1990). This court will not substitute its judgment for that of the trial court, which has broad discretion in domestic relations matters. Borkowski v. Borkowski, 25 Conn. App. 1, 2, 591 A.2d 1278 (1991).” Salaman v. Salaman, 25 Conn. App. 563, 564, 595 A.2d 909 (1991).

After review of the briefs and the record, we conclude that the trial court did not abuse its discretion and that a reasonable basis exists in the facts that a substantial change of circumstances could reasonably have been found to have occurred subsequent to the 1990 modification.

The trial court, having found that there had been a substantial change of circumstances, then made new orders. The trial court was not required to determine whether such change in circumstances was contemplated by the parties at the time of the decree of dissolution.

The defendant next claims that the trial court improperly failed to follow the statutory criteria in ruling on the plaintiffs motion to modify. We agree.

The trial court, having found a substantial change in circumstances, put the parties back to “square one,” being the status of the parties as of state trial referee Judge Alexander’s decision. The trial court did not examine the present circumstances of the parties but rather adopted those that existed in 1986.

“Once a trial court, determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine an initial award of alimony and support are relevant to the question of modification. Sanchione v. Sanchione, 173 Conn. 397, 401-402, 378 A.2d 522 (1977).” Hardisty v. Hardisty, 183 Conn. 253, 258-59, 439 A.2d 307 (1981). The court’s power to modify is created by statute and it must make its determinations on the basis of the statutory standards. The trial court was limited to reviewing the current situation of the parties in light of the statutory criteria set forth in General Statutes § 46b-82. “These have chiefly to do with the needs and financial resources of the parties.” Sanchione v. Sanchione, supra, 402. “Our modification statute, General Statutes § 46b-86, reflects the legislative judgment that continuing alimony payments should be based on current conditions.” Rubin v. Rubin, 204 Conn. 224, 236, 527 A.2d 1184 (1987). The court must determine, inter alia, the defendant’s current needs and the plaintiff’s current ability to pay in light of those needs. We remand for that purpose.

The Cross Appeal

The plaintiff claims that the trial court improperly failed to grant him some relief by virtue of the defendant’s inheritance, which, he contends, “like winning the lottery, is probably the classic favorable change of circumstance.”

The record reveals that the court considered the inheritance, stating, “I’m not quite sure whether the inheritance in and of itself would have been sufficient for a change of circumstances, although it has a certain amount of net inheritance of Mrs. Fisher of approximately $125,000 to $150,000, depending on how — whether you’re attributing the amount that she’s already received and has partially expended.”

In cases involving a modification of alimony, “great weight is due to the action of the trial court and every reasonable presumption will be made in favor of its correctness.” Noce v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980). A trial court has broad discretion in deciding a domestic relations matter; Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); and our review is limited to whether the court’s conclusions were correct in law and reasonably reached on the basis of the evidence presented. Cattaneo v. Cattaneo, 19 Conn. App. 161, 166, 561 A.2d 967 (1989). We will not substitute our judgment for that of the trial court unless there has been an abuse of discretion or the findings lack a reasonable basis in fact. Paddock v. Paddock, 22 Conn. App. 367, 372, 577 A.2d 1087 (1990).

Our review of the record and briefs in this matter leads us to conclude that the result was reasonably reached and that the court did not abuse its discretion.

The plaintiff also alleges that after first determining that its order reducing the defendant’s alimony should be retroactive, the trial court then improperly concluded otherwise. The parties agree that retroactive alimony may be ordered from the date of the filing of the motion for modification of alimony. General Statutes § 46b-86, effective October 1, 1990, prior to the filing of the motion herein, specifically allows the court to order retroactive alimony. The defendant argues that while it is discretionary for the court to order retroactive alimony for orders involving increases in alimony, no such discretion should be allowed for retroactive reductions in alimony awards. The plaintiff argues that the court abused its discretion in failing to order that the reduced award be retroactive.

Because our remand as required on the direct appeal may render this issue moot, we decline to address it and leave it for another day. “ ‘[I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.’ ” Graham v. Graham, 25 Conn. App. 41, 48, 592 A.2d 424 (1991).

The judgment is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Although our record does not so indicate, the parties agreed at oral argument that the court, Steinberg, J., had determined on remand that the change in circumstances on which the modification was based was not contemplated by the parties at the time of the dissolution. As such, our decision in Fisher v. Fisher, 25 Conn. App. 82, 592 A.2d 333 (1991), required an affirmance of the modification to $4800 per month. The appeal from that finding on remand is currently pending.

       We note that General Statutes (Rev. to 1989) § 46b-86 (a), which became effective as Public Acts 1987, No. 87-104, on October 1,1987, provided in relevant part that after a dissolution of a marriage, modification may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of the dissolution. The dissolution of the marriage between the parties was entered on October 4,1984, at which time an uncontemplated substantial change in circumstances of either party was required to be established by the party seeking a modification of a periodic award of alimony. Fisher v. Fisher, 25 Conn. App. 82, 83, 592 A.2d 968 (1991). Subsequent to our decision therein, our Supreme Court stated: “The legislature’s prompt action in adopting the expressly retrospective language of P.A. 90-213, § 46, unambiguously clarifies its original intention that P.A. 87-104 applies to all alimony and support orders regardless of the date on which they were entered.” (Emphasis added.) Turner v. Turner, 219 Conn. 703, 717, 595 A.2d 297 (1991). This effectively reverses Darak v. Darak, 210 Conn. 462, 556 A.2d 145 (1989).

       General Statutes § 46b-82 provides in relevant part: “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       We therefore conclude that we need not address the defendant’s third claim.

       The record indicates that some evidence was presented at the hearing of April 4,1991, regarding the defendant’s debts of $68,000 and estimated attorney fees to date of $25,000.

       General Statutes § 46b-86 (a) provides in relevant part: “No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.”